An oft-repeated and only sometimes rhetorical question of employers is: I have an employee that is not meeting performance expectations. I can still fire them, right?
A recent Second Circuit case strongly suggests the answer to that question: Yes.
In Chukwurah v. Stop & Shop Supermarkets (Nov. 25, 2009), an employee appealed a District of Connecticut decision that granted summary judgment to the employer on the grounds that the employee had not provided sufficient support for his claim that he had been fired because of his race.
The employee appealed claiming that the decision to fire him because of poor performance was a coverup for discrimination. The Second Circuit disagreed, and relied on the performance reviews to support its decision:
In the years prior to his termination, Chukwurah received consistently negative employment reviews. Those reviews characterized his performance as requiring improvement or less than competent. Although he asserts that some of the documents in his personnel file are of "dubious origin" and "recent fabrication[s]," Chukwurah himself signed most of the reviews that document his performance as being substandard. Moreover, he fails to identify any evidence that refutes defendants’ characterization of his performance.
Besides providing support for the suggestion that yes, employers can still fire employees for poor performance, the case does have one other good takeaway for employers.
Having employees sign and acknowledge receipt of the performance review (even if the employee doesn’t agree with it), can be a crucial piece to providing support for a termination decision. Without it here, the employer would have had to rebut charges that it made up the performance reviews.