She Admitted Poor Performance – So Why Did Court Back Her Discrimination Claim?

This employer had a perfectly good reason to let an employee go – but was still unable to squelch a claim of unlawful gender discrimination.

How is that possible, you ask? Let’s look at a ruling from a federal appeals court in New York. It’s an important one for HR pros to know.

Supermarket Worker Has Shortcomings

Elaine Bart started working as a team leader at Price Chopper supermarkets in 2011. In that role, she oversaw the store’s hot food stations and was responsible for keeping food logs.

There was no dispute that Bart’s performance during her employment tenure was less than stellar. In 2016, she was admonished because she did not properly maintain food logs. She admitted responsibility for that shortcoming.

About a year later, Bart was transferred to a new store, and Damon Pappas became her supervisor. According to Bart, Pappas was generally rude to her and to other workers at the store. She also said Pappas made several comments indicating gender discrimination.

More specifically, Pappas allegedly said:

• Women should not be managers
• Being a manager was “too stressful” for women, and
• Women are “too sensitive to be managers.”

Bart was disciplined several more times after her job transfer, including for problems with logbooks.

In mid-August 2018, Pappas formally admonished Bart for several work-related deficiencies. On the same day, Bart complained to HR about Pappas’ alleged mistreatment of her and other employees.

Ten days later, Bart was disciplined yet again for a problem with food logs. She admitted responsibility and asked for another transfer. Instead, Pappas documented her job performance issues in an email to an HR employee. On the same day, Bart’s employment was terminated.

Lawsuit Alleges Gender Discrimination

She sued under Title VII and state law, alleging unlawful discrimination based on her gender.

A federal district court granted summary judgment against her, saying she could not win because she admitted that the reason given for her termination – poor job performance – was factually accurate.

Discrimination Cases: 2 Things Can Be True

Unfortunately for the employer, a panel of the U.S. Court of Appeals for the Second Circuit said it’s not quite that simple – and explained why the case should go forward.

It explained that when a Title VII plaintiff relies on circumstantial evidence to prove discrimination – as Bart did here – they must first show:

• They are a member of a protected class
• They were qualified to do their job
• They suffered an adverse job action, and
• The circumstances permit an inference of discrimination.

Bart did that here, volleying the burden to her employer to articulate a legitimate reason for the challenged action.

The employer easily met that burden by showing the court Bart’s history of performance issues. But that didn’t end the inquiry.

When an employer proffers a legitimate reason for its action, the employee can keep the case going by showing that the proffered reason is false — or what the law calls “pretextual.”

Bart didn’t try to do that. In fact, she admitted that she had job performance issues.

But luckily for her, the appeals court also said she could continue to advance her case if she came up with evidence showing that the decision to terminate her employment was motivated at least in part by her gender.

The ‘Why’ Is Critical in Discrimination Cases

This is the part of the story where HR pros need to take a breath and let that sink in.

Essentially, the court said that if there’s evidence of gender bias, a discrimination claim can proceed even if there was also a perfectly good reason for the adverse action.

For Bart, who fully admitted to her job shortcomings, this evidence preserved the ultimate question in the case: Why was she really let go?

Bart presented evidence indicating that Pappas made gender-based remarks — and that those remarks were made up until just about two months before her termination. That evidence was enough to keep the case alive, the appeals court ruled.

The appeals panel vacated the lower court’s decision to kill Bart’s discrimination claim and remanded the case for further proceedings.

In October 2024, the U.S. Supreme Court denied the employer’s petition for certiorari.

Avoiding Liability for Discrimination: Key Takeaways

Here are some key takeaways:

• The existence of a legitimate reason for an adverse job action may not insulate an employer from a discrimination claim if the adverse action was motivated by discrimination.
• Understand the legal difference between generally rude supervisor behavior and supervisor behavior that is unlawfully discriminatory. You obviously don’t want either, but the former is not likely to lead to legal liability. Remember: The law protects certain classes/characteristics (gender, race, etc.), which means that a supervisor who is rude to everyone probably isn’t violating any law against discrimination.
• Even solid documentation of poor performance may not save employers from legal liability if discrimination is the true motivation for the adverse action. In this case, Bart’s supervisor documented her performance-related issues in emails to an HR employee, and Bart did not dispute that her job performance was deficient in several respects. But the supervisor’s alleged mistake — making gender-based comments — kept the case alive. Of course, this fact doesn’t negate the critical importance of creating and maintaining solid documentation for job performance. But as this ruling shows, documentation may not always provide an airtight defense to a claim of unlawful employment discrimination.
• In this decision, Bart did not prevail on the ultimate question of whether her employer illegally discriminated against her based on her gender. The big win from this ruling is that Bart was awarded the opportunity to present that ultimate question to a fact-finder.

Bart v. Golub Corp., 96 F.4th 566 (2d Cir. 2024).