Employer's Auditor Creates Doubt As To Whether Employee Was Poor Performer, Reminds Employers About Full And Robust Performance Reviews

Laner Muchin, Ltd.

Many companies’ fiscal years end in June and July, meaning that they may soon find themselves in the midst of performance review season. While Human Resources professionals routinely remind managers of the importance of documentation in performance reviews, employers should be cautious to instruct managers that accurate and supportable documentation is paramount.  Indeed, a recent ruling by the Eleventh Circuit reiterates the importance of such accuracy.  The plaintiff, who is Haitian and black, alleged that his former employer failed to promote him and then terminated his employment on account of his race and national origin, among other protected categories.  The employer disagreed and noted that it fired the plaintiff for poor performance, as reflected in his performance evaluations.  Although the district court granted summary judgment for the employer, the Eleventh Circuit vacated the judgment and remanded the claims for trial.  The Court agreed that the plaintiff’s performance reviews contained very negative information and scores.  However, the Court also noted that a third-party technology auditor had concluded that the company’s IT Department, which plaintif was responsible for running, was “above par and secure.”  The Court concluded that the discrepancy between the auditor's revew of the IT Department and the employer's evaluation of plaintiff's performance, which was not resolved in the plaintiff’s performance reviews, created a conflict in the factual record that could only be resolved by a jury trial.  As such, employers should provide thorough information in performance reviews, including, when applicable, explaining and giving context to potentially positive performances by an employee whose performance is generally negative.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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