September 25 Tip of the Week

“Document, Document, Document”

In real estate, there is a well-known phrase:  “Location, location, location.”  The meaning behind this phrase is that, while you can always make changes to the physical appearance and structure of a house, you cannot change its location.  Therefore, you should make the decision to buy a house by giving great consideration to its location.  In the human resources world, there is a similar mantra that all HR professionals must follow and that is “document, document, document.”  Most, if not all, HR issues fall into a “he said, she said” pattern and HR professionals need to justify the decisions they make, particularly those involving termination.  Investigating employee claims and complaints, documenting performance concerns, documenting employee meetings and counseling sessions, and otherwise ensuring that the employee’s personnel record reflects the concerns raised and the efforts to correct those concerns is imperative to successfully defending against wrongful termination complaints. A recent Third Circuit Court of Appeals decision illustrates the importance of such documentation. 

In Bridget Holmes-Mergucz v. Cellco Partnership, No. 21-2617 (10/31/2022),  a nonprecedential setting decision by the Third Circuit Court of Appeals, the court affirmed the lower court’s grant of summary judgment to the employer and rejected the plaintiff’s claim that she had been terminated due to disability discrimination and retaliation.  The plaintiff was a marginal employee who was the subject of numerous complaints, complaints from both her colleagues and customers regarding her attitude and interactions with them; she often worked unapproved overtime and left work early.  Her employer had a ranking system for employees in her job title and she routinely ranked at the bottom, 176 out of 180.  The plaintiff was given several performance improvement plans over the course of her employment, but her work, and her attitude which was described as unprofessional and combative, continued to be marginal at best. 

At one point in her employment with the company, the plaintiff was involved in a car accident that left her with some medical issues.  To accommodate those issues, her employer allowed her to work from home.  However, during this time, the employee’s work continued to be substandard – she continued to miss deadlines and to receive complaints from customers and colleagues alleging that she was disrespectful in her interactions with them.  The plaintiff was once again placed on a performance improvement plan.  Shortly thereafter, the employer, in an attempt to cut costs, began to look at their lowest performing employees and laid them off.  The plaintiff and one other employee from her department were laid off as part of the cost cutting efforts.  Plaintiff then filed a claim for employment discrimination on the basis of disability and retaliation.

In rejecting the plaintiff’s claims, the court applied the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973).  Under that framework, the plaintiff must show that they are a member of a protected class and they were treated differently than others similarly situated to them due to their membership in that class (i.e., they were discriminated against because they were different).  The defending employer must then state a legitimate, nondiscriminatory reason for the action taken.  The burden then shifts to the plaintiff to show that the reason given was pretextual and that the real reason for their treatment was discriminatory in nature.  In this case, the court rejected the plaintiff’s circumstantial evidence of discrimination, finding that the timing of the decision did not give rise to an inference of discrimination.  The court further found that the employer gave a legitimate non-discriminatory reason for terminating her – she was one of the lowest performing employees in her department and the company was engaging in cost cutting efforts.  The court noted that this poor performance was well documented before her car accident and injury and, therefore, the plaintiff could not overcome the legitimate business reason for her termination. 

Why is this case important?  It confirms the need to document all efforts taken with respect to employee job performance and discipline.  If this employee had been allowed to engage in her poor job performance and inappropriate interactions with others without documented correction efforts, her claim would have been stronger and it would have been very difficult for the employer to show that the decision to terminate or lay this employee off was due to conduct that occurred prior to her accident.  Also, the employer had a rating system for employees that was based on objective factors, including productivity rates, errors, and meeting deadlines.  This rating system helped to establish the legitimate business reason for terminating the plaintiff. 

Documenting employee job performance, disciplinary issues, and counseling efforts is key to ensuring that an employer’s decision to terminate an employee withstands scrutiny.  At myHRcounsel, we can assist you in ensuring that you are able to effectively address employee performance issues and that decisions to terminate poorly performing employees are upheld by courts and enforcement agencies.