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Documenting Performance Issues Will Establish Defenses Against Wrongful Employment Actions

September 3, 2019

By Michael Burns, courtesy SBAM Approved Partner ASE

Human Resources 101 dictates “document, document, document.” The following illustrates one more example of an employer’s successful discrimination defense against a very tricky termination that was initiated right in the middle of an employee’s “protected” Family and Medical Leave Act (FMLA) leave.

An employee of Southern Company Services was terminated just after requesting an FMLA leave. The request was due to extreme high blood pressure. The company approved the leave just before firing him. The employee sued alleging a violation under the FMLA. The lower federal court rejected the claim in summary disposition. The 5th Circuit Court of Appeals affirmed this decision. How did this happen?

Good employer documentation.

The employee in this case had performance problems going back for some time that Southern Company had addressed with him and documented. These performance problems were primarily in the “soft” areas of unprofessionalism and inappropriate behavior and also along the line of profanity use, interrupting meetings, and being sarcastic to co-workers.  It was not due to being unable to perform the job assigned to him.

As disciplinary actions started to crescendo the employee went to his doctor who found his blood pressure dangerously high. The doctor ordered the employee to not work until his blood pressure returned to normal. At this point the employee advised Southern Company of his condition. He also informed the company that he had witnessed the creation of a fatal safety risk by a co-worker a month before along with pictures of this risk. He informed another employee that he had pictures of the potentially fatal security risk but did not report it at the time stating this constituted “job security” for him.

Southern Company informed the employee he was eligible for FMLA but then terminated him because he had failed to reform his behavior and did not report the safety problem that he had previously known about and documented with photos.

Upon hearing, the lower court awarded the employer summary judgement against the employee. Southern Company stated a legitimate, nondiscriminatory reason for firing the employee and the employee presented no evidence that those reasons were a pretext as required to prove his allegation of FMLA discrimination.

The court noted that the employer had provided and documented “years of coaching and counseling by his supervisors.” Because his behavior did not improve and because he had delayed reporting a possibly fatal safety risk for over a month, the employer was within its rights to terminate employment – despite being covered by FMLA.

The plaintiff-employee argued the company had a policy “guaranteeing an employee’s right to be heard before termination.” The court found no evidence of this but pointed out that the company did have the right to terminate an employee “at any time for serious infractions….”

This case demonstrates an employer that keeps good documentation on performance and discipline, follows its relevant internal company policies in a consistent fashion, or alternatively updates or revises policies to accurately reflect the current way it does conduct business.  Doing these things will prevail against wrongful employment practices claim even when the employee tries to hide behind other protections of the law.

A few other tips for good documentation practices are:

  • When creating contemporaneous documents include the full name and full date 

  • If possible, obtain the employee’s signature to verify the discussion and goals

  • Use a professional tone orally and in writing

  • Avoid bias

  • Do not express personal opinions, accusations, or judgements

  • Do not use generalities, overstatement, or exaggerations

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