March 21, 2023

Derogatory Comments + Lack of Documentation = Appearance of Discrimination

In this case, the district court granted the employer’s request for summary judgment on all eight claims of alleged age discrimination and unlawful retaliation. But on appeal, the 5th Circuit Court of Appeals reversed three of those. Why? As the court wrote, “We find that material factual disputes preclude summary judgment on these counts.”

While the employer reported work performance deficiencies, the employee’s evidence, “tells a different story.” The employee alleged (1) supervisors made age-related, derogatory comments to her on more than one occasion; (2) a younger employee had performance issues and did not receive corrective action or poor performance appraisals; and (3) her “twelve-page affidavit, sworn to under penalty of perjury, contains extensive factual assertions supporting her contention that [her employer] made it impossible for her to succeed.”

What else did the court highlight? Document, document, document! The employer “did not document the performance deficiencies it relies on as the basis for [the employee’s] termination…multiple forms that would have documented performance deficiencies were absent…a lack of documentation of purported job deficiencies is germane to [the employee’s] theory of pretext in this case: that management’s claims of poor performance were artificial.” In addition, the employee alleges her 30 and 60-day probationary performance evaluations were back-dated by as much as 19 days, giving the appearance she had been given more time to improve her performance than she really had.

Lessons learned. There is a reason HR professionals continue to tout the importance of documenting performance issues. If you fail to do so, it may appear that your claim that an employee’s work performance is unsatisfactory is “artificial.” When you document, be accurate! Even an unintended error like an incorrect date on a performance appraisal can create a “material factual dispute.”