Too often weak claims of employment discrimination gain strength when employers fail to properly document and support with documentation the legitimate, non-discriminatory reasons for an employee’s termination.  While the burden of proof never leaves the claimant, and there is no explicit legal obligation to document the basis for personnel decisions, jurors may develop a negative perception from the lack of effective management.  A recent decision by the United States Court of Appeals for the Tenth Circuit shows that employers who are diligent in documenting the reasons for personnel actions and presenting clearly the basis for a discharge, can succeed in obtaining summary judgment, thus saving the time, risks and expenses of a trial.  In Olson v. Penske Logistics, LLC, No. 15-1380, 2016 U.S. App. LEXIS 15780 (10^th Cir. 8/26/16), the Court upheld the trial court’s summary judgment ruling dismissing a former warehouse operations manager’s claim that he was discharged for using FMLA leave rather than for poor performance.  The plaintiff claimed he could have defended all of his alleged performance shortcomings had he not been out on leave.  In rejecting plaintiff’s position, the Court cited to the employer’s consistent and well documented reasons for the plaintiff’s performance issues, noting that “the record shows step by step how [the plaintiff’s] conduct was discovered” and  “[t]here were no holes, no conflicting statements, simply nothing that indicates inaccuracies in [the employer’s] story.” In addition, the company’s investigation, which resulted in written reports, revealed that the Plaintiff had failed to train his team on basic inventory procedures, failed to enforce employee attendance policies and did not return damaged items as required.

This case serves as a reminder to employers of the importance of consistent and accurate recordkeeping, as well as prompt and appropriate investigations into potential wrongdoing or other performance issues.