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Adequate performance evaluations aren’t enough to establish that the non-discriminatory reasons for termination advanced by an employer are pretext, unless the employer reasoned that the employee was “generally incompetent,” the U.S. District Court for the Eastern District of Pennsylvania has ruled. Judge Mary McLaughlin granted summary judgment for the employer-defendant in Cohen v. Pitcairn Trust Company. Pitcairn Trust Co., in Jenkintown, Montgomery County, terminated Barbara Cohen in 1998, just weeks before she was scheduled to go on maternity leave. She had worked as an accountant for Pitcairn for nearly 10 years. MIXED WORK PERFORMANCE During her tenure at Pitcairn, Cohen’s “work performance was mixed,” according to court records. But in 1990 and 1991, she received positive performance reviews and in 1992, she was promoted to assistant vice president of the Tax Department. In her 1993 performance evaluation, Cohen’s supervisor noted the need for improvement in some areas, but praised her overall work as good and gave her an overall rating of “meeting expectations” in all categories. In 1994 and 1995, however, Cohen’s reviewer noted she needed improvement in more areas. The report said that “she had a “9-to-5 mentality” and that she needed to “take more initiative.” Cohen’s personnel file contained notes from 1995 and 1996 that she was often arriving at work late and leaving early. In 1996, Pitcairn restructured Cohen’s position and took away some of her responsibilities. She was left with a part-time schedule of 31 hours and a position focusing on preparation, review and filing tax returns. In her review that year, Cohen’s supervisor wrote that she spent too much time on personal matters and needed to review the tax returns in a more timely manner. Her 1997 review, a bit more positive, said that Cohen had performed adequately. But the review still said that her goal for the next year should be more timely filing of the tax returns. In June 1998, Cohen informed her supervisor that she would be going on maternity leave in October. Around the same time, her supervisor talked to her about the “duration, volume and frequency of her personal telephone calls.” Soon after that, in her mid-1998 performance evaluation, Cohen’s supervisor wrote that she had to reduce her personal phone calls. In July 1998, Pitcairn re-organized its tax department, and Daniel Geary became Cohen’s new supervisor. After meeting with Cohen’s former supervisor, Geary determined that only 40 percent of the tax returns — for which Cohen was responsible — were ready to be filed by the August deadline. The two discussed Cohen’s performance. Geary then reviewed Cohen’s personnel file and recommended firing her, citing her 40 percent completion rate of the 1997 tax returns, her poor work ethic and her poor attitude toward her job. He also relied on Cohen’s work hours and personal phone use as reasons for the termination. Cohen sued Pitcairn, claiming Pitcairn terminated her because of her pregnancy. ANALYSIS Both parties agreed that Cohen had established a prima facie case of discrimination and that Pitcairn advanced a non-discriminatory reason for the employment decision in her Title VII and Pennsylvania Human Relations Act claims. But according to the court, Cohen failed to meet the burden of proving that Pitcairn’s justification for termination was mere pretext, required under Fuentes v. Perskie, 32 F. 3d 759, 764 (3d Cir. 1994). Under Fuentes, Cohen would have to provide evidence to “allow a fact finder reasonably to infer that each of the employer’s proffered non-discriminatory reasons” was a pretext. Cohen advanced three arguments to demonstrate that Pitcairn’s reasoning was pretextual: her positive evaluations, that Pitcairn “fabricated” its reasons for terminating her and the fact that she was treated less favorably than a similarly situated male counterpart. Relying on Brewer v. Quaker State Oil Refining Corp., 72 F. 3d 326, 331 (3d Cir. 1995), Cohen said her positive evaluations and substantial bonuses indicated adequate work performance. In Brewer, the plaintiff was an oil salesperson whose employer had stressed that sales volume “was the primary measure of performance.” Despite being the top salesperson in his region, the plaintiff was terminated on performance grounds. The 3rd Circuit found that this constituted a contradiction in the evidence that demonstrated “a triable issue of fact.” Judge McLaughlin disagreed with this logic. “The vast majority of the plaintiff’s reviews were mediocre, and several were unmistakably negative,” she wrote, noting that Cohen’s bonuses weren’t tied to individual performance. “Unlike the defendant in Brewer, who terminated the plaintiff despite his unimpeachable success in the sole area identified by the defendant’s own performance incentive program, Pitcairn … articulated a non-discriminatory reason for terminating [Cohen] that relates directly to an important measure of the plaintiff’s job performance –the timely processing of tax returns.” The court explained that while Cohen had some positive evaluations, it wasn’t enough to establish pretext on Pitcairn’s part. Quoting an 1991 8th Circuit decision, Frieze v. Boatmen’s Bank, the court wrote, “An employer rating an employee as competent discredits the employer’s stated reason for discharging the employee … only when the employer’s stated reason for discharge is the employee’s general incompetence.” McLaughlin noted that Pitcairn’s stated reason for terminating Cohen was not general incompetence; rather, Pitcairn gave tangible reasons for the termination and articulated a non-discriminatory reason for terminating the plaintiff that related directly to an important measure of the plaintiff’s job performance. After reviewing evidence that Cohen’s male colleague was a better performer than she, the court determined that “the disparate treatment between [the male employee] and the plaintiff can be properly attributed to their disparate performances, and not to their genders.” And the court quickly disposed of Cohen’s third argument that Pitcairn fabricated evidence. Cohen alleged that her supervisors had written her 1998 performance review after they terminated her. She also claimed that the review was not among the documents forwarded to her when she received her file on Aug. 25, 1998, despite the review having been written on Aug. 21, 1998. “Without more specific and implicating evidence, the court rejects the plaintiff’s claim of fabrication,” McLaughlin wrote. Cohen also advanced arguments that Pitcairn violated her rights under the Family and Medical Leave Act. Under the FMLA, Cohen had to first establish a prima facie case of discrimination and then prove that Pitcairn’s legitimate reason was a pretext for true discrimination. The court found that Cohen failed to present evidence “of any causal connection between her termination and her request for maternity leave … the fact that the termination occurred close in time to the request for FMLA leave is not sufficient to carry the plaintiff’s burden,” said the court. This defeated Cohen’s prima facie case under the FMLA. Even had Cohen established a prima facie case, wrote the court, she still failed to prove that Pitcairn’s reasoning was pretextual. Discriminatory employment termination cases turn on whether the employer was honest in its stated reasons for terminating the employee, not on whether the employer’s evaluation of the employee was accurate, McLaughlin said.

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