Employee’s Performance Evaluations Proved That The Reasons For Terminating Him Were Pretextual

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers, Public Safety
DATE: May 03, 2022

Arnold Scheer was terminated from his position as Chief Administrative Officer (CAO) at the UCLA Department of Pathology and Laboratory Medicine in June 2016. Scheer had worked at the University since 2004.

Scheer sued the University.  He alleged he was wrongfully terminated in retaliation for whistleblowing. Scheer stated that he observed violations of safety procedures and mismanagement that resulted in lost and mislabeled specimens. The University moved for summary judgment.

When an employee alleges retaliation or discrimination, courts apply the McDonnell Douglas burden-shifting framework to analyze the claim. Under the framework, the employee must first establish a prima facie case of unlawful discrimination or retaliation. Next, the employer must articulate a legitimate reason for taking the challenged adverse employment action. Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is only a pretext for discrimination or retaliation.

The trial court held that under the McDonnell Douglas framework, Scheer had established a prima facie case of retaliation. The court also held that the University had articulated the following legitimate reasons for terminating Scheer in the Notice of Intent to Terminate (NOI): “poor performance and conduct”, and specifically that he: 1) had an overly aggressive attitude concerning certain negotiations; 2) had a harsh and disruptive style at meetings; 3) had become increasingly ineffective as CAO; (4) lacked enthusiasm, and 5) was not an effective leader.

Therefore, the burden shifted back to Scheer to demonstrate that the University’s proffered legitimate reasons were only a pretext for retaliation. Scheer argued that throughout his tenure at UCLA, he received accolades, positive feedback, promotions, and additional assignments and responsibilities from upper management. Each year he received a maximum merit increase in salary and near maximum incentive awards. Sheer argued: “Indeed, the reviews and evaluations … clearly indicate that his work and performance were exemplary during that time frame. Notably, [he] was consistently … given additional responsibilities and oversight until the date of his termination [emphasis added].”

The trial court found that despite these arguments, there was no triable issue of fact because the performance evaluations took the form of checklists relating to the completion of individual tasks, rather than subjective evaluations of the quality of his work or his style and manner in completing those tasks.  The trial court granted summary judgment for the University.

Scheer appealed. On appeal, the significant issue was whether Scheer had established that the claimed reason for his termination was a pretext. Scheer made the same arguments as he did at the trial court.

The California Court of Appeal examined the NOI and found the University’s alleged reasons for Scheer’s termination to be disputable.

First, despite the NOI stating that Scheer had become a problematic presence within the department, Scheer’s direct supervisor disagreed with that characterization.

Second, the NOI claimed that, in 2015, the University had removed certain responsibilities from Scheer because of a past personal interaction. However, Scheer’s declaration stated that he was never advised of this action and that Scheer’s fiscal year 2015 objectives were centered on those responsibilities, indicating that he still held them in 2015.

Third, the NOI criticized Scheer as being overly aggressive in negotiations on behalf of the University. In response, Scheer pointed to an email, which specifically congratulated him for achieving a good result for the University at the negotiating table.

Finally, the NOI criticized Scheer’s involvement in the opening of a new lab in China, saying he never followed through on opening the lab. However, Scheer’s performance evaluation specifically stated that he had achieved 100% of his goal of opening a “joint venture with CTI in Shanghai, China, and taking on new sites and testing.”

In sum, the Court of Appeal agreed with Scheer’s arguments, stating that “Scheer… showed that he unfailingly received excellent evaluations over a 12-year period, and no one ever advised him of any shortcomings or deficiencies.”

The Court of Appeal concluded that the University’s stated reasons in the NOI were untrue and were a pretext for retaliation. The Court, therefore, overturned the granting of summary judgment and remanded the case back to the trial court.

Scheer v. UC Regents, 76 Cal.App.5th 904 (2022).


This case is a cautionary tale for employers. Any adverse action an employer takes must be consistent with the documentation in the personnel file about the employee’s performance. Employers must take the time to prepare accurate performance evaluations, regardless of the format of the evaluation.

View More News

Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
County Could Withhold Names Of Those Arrested Eleven Months Prior
Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
Superior Court Upholds Personnel Appeals Board’s Decision To Terminate Police Officer