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Documentation of Your Employees’ Job Deficiencies Could Be Important After They Sue

Posted by Eric Parzianello on September 6, 2011

Are you sufficiently documenting your employees’ performance deficiencies? A recent Florida federal decision shows the importance of maintaining records which evidence any performance issues should that employee file a lawsuit for discrimination or retaliation.

In the case of Deer v. Saltzman, Tanis, Pittell, Levin & Jacobson, Lavern Deer, who is black, was employed by a pediatric medical practice. While her performance reviews were generally excellent for her first several years of employment, they included constructive comments on areas of improvement. When Ms. Deer was passed over for a promotion, she filed an EEOC complaint for discrimination while she was still employed by the medical practice.

Around that same time, her supervisor gave Ms. Deer low scores for “Individual Initiative,” “Personal Job Efficiency,”and “Planning” in her written performance evaluation. The supervisor noted that Ms. Deer “should spend more time with her staff,” and that she “needs to organize her work in order to spend more time on the floor managing her staff.” The supervisor provided a written performance warning to Ms. Deer which she signed. A subsequent investigation also found that she was spending work time using the office computer which was prohibited by office policy.

Ms. Deer was fired after admitting she sent private e-mails on company time. Ms. Deer then sued, alleging that her termination was in retaliation for her EEOC complaint.

In order for an employee to prevail on a retaliation claim, she must show (1) that she engaged in statutorily protected activity (for Ms. Deer, it was the filing of the EEOC complaint); (2) that she suffered a materially adverse employment action (termination, in Ms. Deer’s case); and (3) that there was some causal relationship between the two events.

As to the last issue, the Southern District of Florida federal court found that the earlier performance evaluations showed that her termination was caused by her performance deficiencies and not because of the filing of the EEOC complaint. The court found that the medical practice demonstrated “legitimate, nondiscriminatory reasons for its employment decisions,” and dismissed Ms. Deer’s complaint.

Lesson for employers? Document everything relating to your employees’ job performance especially any performance deficiencies. Even in an at-will employment situation, an employer can still be liable for wrongful termination if discrimination or retaliation can be proven. With proper documentation, these types of claims are easier to defend.

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