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If your job performance was unacceptable, you're going to have a tough time establishing that your employment's termination was predicated upon a discriminatory pretext, according to a recent decision of the Appellate Division, First Department, in Basillote v. Holsa, Inc.

Although Ms. Basillote alleged that she had been fired from her job on the basis of her "national origin or condition of pregnancy," the New York County Supreme Court did not agree and and dismissed the case.  On appeal, the AD1 affirmed noting that Ms. Basillote was unable to demonstrate that she had performed her assigned tasks satisfactorily.  Rather, the court credited the employer's evidence that her work-product was consistently defective—calculation errors had been repeatedly made on monthly financial statements and even on a report she compiled on her final day of work.

In view of this evidence, the appellate court was of the opinion that the employee's termination was predicated upon "poor job performance"—rather  than on a discriminatory pretext—and thus her case could not continue.

For a copy of the Appellate Division's decision in Basillote v. Holsa, Inc., please click on the following link:             http://www.nycourts.gov/reporter/3dseries/2006/2006_08660.htm