Performance Evaluations: A Lesson on Documentation

Cases turn on the evidence. In the case of an employment discrimination or retaliation claim, the key may lie in the employee file maintained by the employer. One common piece of documentation created and maintained by many employers is performance evaluations. In Walker v. Verizon, a federal district court in Pennsylvania ruled on a case illustrating how important documentation can be in defending these claims.

The common legal framework in an employment discrimination and/or retaliation lawsuit has three steps. A plaintiff must first establish a prima facie case. Then the burden shifts to the employer to rebut this prima facie case by articulating some legitimate, non-discriminatory reason for the alleged adverse action taken against the employee. Then the employee must show that the employer’s response is a pretext for behavior actually motivated by discrimination.

A common legitimate non-discriminatory reason offered by employers is that the employee was a poor performer. In these instances the employer’s defense is bolstered by offering documentation and testimony supporting that the employee was in fact a poor performer and that the reason for his or her employment termination was that poor performance.

Walker involved a 56-year-old engineer who had worked for Verizon for 36 years before being laid off. In 2013, two years prior to her layoff, Walker took approximately two and a half months of FMLA leave. In her 2013 mid-year evaluation, Walker’s supervisor wrote that she “has missed time due to an injury” and gave her a less satisfactory rating of “developing” in the review.

In 2015 Walker’s supervisor and another manager were asked to select one person to terminate as part of a reduction in workforce. The managers were required to rate each employee’s primary skills, technical knowledge, ability to handle customer service in a cost-effective manner, corrective action, and any other relevant factors on a scale of one to five. Employees also received points for their 2013 and 2014 performance evaluations. The two managers did not engage in this formal rate and rank process to make their termination decision and instead spoke by telephone and orally agreed to terminate Walker.

Ultimately Walker prevailed on her claims of age discrimination and medical leave retaliation, and was awarded $188,000 in back pay damages, $256,000 in front pay damages, $10,000 in pain and suffering damages, and approximately $160,000 in attorneys’ fees and costs. Verizon has appealed the decision.

Walker reminds us of important lessons for employers to consider. First, while it is important to maintain medical documentation regarding an employee’s medical leave, those documents should be maintained in a file that is separate from the employee’s personnel file, and medical leave should never be noted in an employee’s performance evaluation. Second, managers must be counseled on how to perform and document performance evaluations of their subordinates. At times managers may be tempted to insert comments into a performance evaluation that should not be there or they may give a poor performer a positive evaluation because they are not comfortable providing criticism.  These kinds of missteps can sink an employer’s defense.


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