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4.554 Employee's perception of own performance (or co-worker's perception)*

4^th Circuit

In King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003), the court explained:

   King's own testimony, of course, cannot establish a genuine issue as to whether King was meeting appellee's expectations. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4^th Cir. 1996) ("It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." (citations omitted)).

See, e.g., Hawkins v. Pepsico, Inc., 203 F.3d 274, 280 (4th Cir. 2000) ("The alleged opinions of Hawkins' co-workers as to the quality of her work are [ ] close to irrelevant." (citation omitted)); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998) ("[A]lthough the affidavits put forth by Tinsley document the fact that certain co-workers, Bank customers, and attorneys believed Tinsley was doing a good job, they fail to address whether management honestly believed that Tinsley was doing a good job." (emphasis added)).

6^th Circuit

In Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 729-30 (6th Cir. 1999), the court explained:

courts have held that the mere submission of materials from a co-worker or supervisor indicating that an employee's performance is satisfactory does not create a material issue of fact. See, e.g., Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994); see also Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959 (1981) ("the judgments of some who thought [a plaintiff's] work was good" not enough to raise material issue of fact as to whether plaintiff had "met his employer's legitimate expectations"). This is especially true here, where neither witness was in a position to evaluate all, or even most, of [the plaintiff's] work.

7^th Circuit

In Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006), the court explained:

"it is . . . axiomatic that a plaintiff's conclusory statements do not create an issue of fact. . . . 'An employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability.' " Jackson v. E.J. Brach Corp., 176 F.3d 971, 985 (7th Cir. 1999) (quoting Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7^th Cir. 1992) (internal citation omitted)).

In Burks v. Wisconsin Dept. of Transp., 464 F.3d 744 (7th Cir. 2006), the court explained with respect to co-workers:

we have indicated previously that "general statements of co-workers, indicating that a plaintiff's job performance was satisfactory, are insufficient to create a material issue of fact as to whether a plaintiff was meeting her employer's legitimate employment expectations at the time she was terminated." Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002); see also Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994) (same). In fact, our case law consistently states that the affidavits of coworkers do not establish a material issue of fact on the issue of adequacy of performance. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 300 (7th Cir. 2004) (noting "that plaintiff's coworkers 'may have thought that [she] did a good job . . . is close to irrelevant' " (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998))) . . .

Burks, 464 F.3d at 752-53 (footnote omitted).

9^th Circuit

Unlike other circuits, in Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002), the court came close to saying that the employee's self-assessment might be sufficient to establish this prong of the prima facie case:

   We have held that an employee's own statement that he was performing at a level equal to that of other employees is not enough to raise a genuine issue of material fact. Bradley, 104 F.3d at 270 ("[A]n employee's subjective personal judgments of [his] competence alone do not raise a genuine issue of material fact."). However, this holding did not pertain to the minimal showing needed to establish a prima facie case; rather, it spoke to the employee's lack of specific and substantial evidence showing that the employer's reasons for terminating him were false or discriminatory. Id. Because we are still at the prima facie stage, Aragon's self-assessment of his performance is relevant, and, in any case, it is not the only evidence he presented.

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*  See, 4.572.30 for a similar proposition of law related to whether the plaintiff is similarly situated with others for purposes of the fourth prong of the prima facie case.