A recent federal court case from Massachusetts allowed an employee to proceed with claims of discrimination and retaliation despite ample evidence that her employer had good cause to fire her for performance issues.

The employee, who is from Poland, worked for a medical device manufacturer and distributor as a quality control inspector for eight years.   Her employment was terminated after she skipped a step in the inspection process and then falsified a record indicating that she had performed the step.

The opinion describes numerous examples of discriminatory behavior by co-workers and supervisors in the two years leading up to her termination. They made disparaging comments about her accent and immigrant status.  They said that Polish people are stupid and that immigrants are taking jobs away from Americans. Her Polish to English translation software was deleted from her computer.

The employee repeatedly reported the harassment to her supervisor, to his manager, and to human resources, but the company failed to investigate except for one incident in the month before she was terminated.  During this time, her work performance was cited for deficiencies, and she was given a final warning three months before her termination.

The employee’s lawsuit included numerous claims of discrimination.  First, she claimed that she was subjected to a hostile work environment and terminated due to national origin discrimination.  The court found that there was evidence of hostile environment discrimination.

As to the termination, the court found that although there was a legitimate, non-discriminatory reason to fire the employee, a “reasonable factfinder could conclude that her performance issues were infected by discriminatory animus and that they affected the company’s decision to terminate her.”

Next, the employee alleged that her termination was in retaliation for reporting instances of national origin harassment.  The employee claimed that her termination arose from her report of a verbal altercation with a co-worker one month before her termination, which the company investigated but claimed that she did not allege discrimination in connection with the incident.

The employee alleged that she thereafter made two additional complaints of discriminatory harassment by other coworkers, which the supervisor dismissed as a personal issue.  Because the employee reported the harassing behavior shortly before her termination, the court found that she had a plausible claim of retaliation with respect to her termination.

Further complicating her exit from the company, the employee requested leave for “severe knee pain” shortly after the final incident, but before she was terminated.  She included a state law claim for handicap discrimination, alleging that her termination was caused in part by her taking a leave.  The leave was not designated as FMLA leave, and it predated the Massachusetts Paid Family and Medical Leave Act, so there was no statutory job protection.  With evidence that the termination was in process before the leave began, the court ruled in favor of the company on the handicap discrimination claim.

Finally, the lawsuit alleged discrimination on the basis of sex, both as to the hostile work environment and her termination.  The court rejected these claims outright as they were not supported by the evidence, other than one accusation that a co-worker had started a rumor about the employee’s sexual preference.

Termination for poor performance, however well documented, does not act as a shield against liability for discrimination or retaliation.  The court’s opinion noted that this employee had a satisfactory record of performance until the time the harassment began.  It gave weight to the employee’s explanation that the constant harassment by her co-workers led to difficulty in her work.

This case may have had a very different outcome had the company taken seriously her reports of harassment, investigated the complaints, and addressed the problem in a timely fashion.  The employer may have avoided a claim entirely had the supervisors and human resources manager acted on her complaints.

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