Whether you intend to encourage the employee or simply do not want to be a downer, supervisors may be tempted to emphasize strengths and downplay weaknesses during a struggling employee’s performance reviews. But beware: the road to costly wrongful termination litigation is paved with good intentions, as illustrated in a recent Minnesota federal case.
In Walker v. South Washington County Schools, an African-American teacher was non-renewed during her three-year probationary period. Case No. 15-CV-3670 (D. Minn. Nov. 29, 2016) (Doty, J.). During that time, the teacher received eight reviews from several different supervisors. The performance reviews generally were positive, noting the teacher’s warmth and compassion toward students and families and her proficiency in special education matters. In a couple of instances, the performance evaluations emphasized the need to meet deadlines, but offered no details regarding any late assignments.
While the supervisor was considering moving the teacher to continuing contract status, she received reports that the employee missed a deadline, failed to attend a training, and got into a heated exchange with a co-worker over email. Except for the email issue, the supervisor did not look into the allegations but accepted, uncritically, the reports from other employees. Ultimately, the supervisor decided not to recommend the teacher for continuing contract status. The school board informed the teacher that she was terminated due to poor performance.
The court found that, given the evidence available, a reasonable jury could reject the school district’s stated reason for termination as mere pretext for discrimination and, therefore, the facts of the case needed to be decided at trial. The court stated:
Although defendants rely heavily on the assertion that Walker performed poorly through her tenure—most notably in regularly failing to submit timely evaluations—the record before the court does not corroborate such a finding. Although there are vague references in the progress reports that Walker should ‘act with more intensity and/or with a quicker pace’ and that a challenge ‘will be keeping up on the paperwork,’ none of the progress reviews identified untimely reports, let alone a continual problem with timeliness.
Employers can learn several important lessons from this case. First, if there is an allegation of poor or non-performance of duties, it must be investigated. Second, if the allegation is substantiated, the employer must document the incident, in sufficient detail to identify the nature of the misconduct and how the employer responded to it. Third, if there is a pattern of conduct, each new disciplinary action—and non-disciplinary action—imposed should refer back to previous incidents and the employer’s response. For example, a one-day suspension for a habitually late employee might include the following information “This is not the first time you have been tardy without excuse. On December 15, 2017, you received a written reprimand for being late on December 8 and December 11.”
In the event of a challenge to a future employment action, an employee may use inaccurate or incomplete performance evaluations to show that there was no “real” issue with his or her work performance, since the employer failed to note it. Likewise, failure to document prior warnings or discipline may be used by the employee to establish that the problem did not exist prior to the incident giving rise to discipline or that one incident was used to justify discrimination against the employee.
While it may be difficult, make it a New Year’s resolution to stop being “nice” in performance reviews, disciplinary letters, and other documentation regarding employees and their job performance. Instead, make it a resolution to be truthful and complete in assessing employee performance. Remember, sugar-coating the facts now may leave you with a bitter pill to swallow later.