An African-American salesman in Pennsylvania was repeatedly criticized by his managers as managing his sales territory poorly and lacking crucial sales skills. Two years into his employment, he was put on a 90-day performance improvement plan but fired after 73 days. He sued for race discrimination.

What happened. "McDonald" joined Teva Specialty Pharmaceuticals in 2006 with 6 prior years’ sales experience in the industry. He was assigned to market asthma inhalers and an asthma medication to physicians. Teva’s salespeople were periodically monitored by managers who would accompany them on their sales calls. Almost from the beginning, his managers found his sales skills lacking.

He reported for the first 18 months of his tenure to an African-American man and later to a white woman. Both had similar criticisms of him, especially that he talked too much and failed to ask probing questions that would indicate doctors’ individual needs. They termed his a "one-sided sales style." And, McDonald’s sales totals were below the regional, area, and national averages. Far from improving, his ratings were even lower in 2008 than in the previous 2 years.

Perhaps because McDonald complained about her approach to him, his manager arranged for her boss and another sales manager to accompany McDonald on some of his sales calls. Their criticisms were similar to her own. The performance improvement plan was imposed in November 2008. But in January 2009, his boss went with him on a series of unsuccessful calls, for which he had failed to make appointments and to note that a doctor he’d arranged to see was no longer in the practice. So on January 23, Teva fired him.

When a federal district judge heard his charges of racial bias, he ruled entirely for Teva, finding no evidence that the company’s reasons were a pretext for discrimination. McDonald appealed to the 3rd Circuit, which covers Delaware, New Jersey, and Pennsylvania.

What the court said. Appellate judges disagreed with the district judge that McDonald did have at least the beginning of a case: He showed that he’d been replaced by a white salesperson. But they, too, were unable to find evidence that Teva’s stated reasons for firing him were not the real ones.

They wrote that where "an employee consistently underperforms in a skill-set fairly designated as critical to his job," he will find it hard to show discrimination in the employer’s motives. McDonnaugh v. Teva Pharmaceuticals, U.S. Court of Appeals for the 3rd Circuit, No. 11-3462 (2012).

Point to remember: Teva had thoroughly documented all of McDonald’s reviews and ratings, which helped the employer in court.