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Fifth Circuit Establishes “Snapshot” and Contemporaneous Documentation Requirements for Employers

Published by on October 12, 2015

The Fifth Circuit recently issued a decision that impacts joint employer liability, perceived disability under ADAAA and the dangers of revisiting employee performance reviews. Michael Maslanka, a regular contributor to Texas Lawyer, wrote an article last month called, “L&E Plaintiff Lawyers Served Treat from Fifth Circuit.” The article focuses on Burton v. Freescale Semiconductor, in […]

The Fifth Circuit recently issued a decision that impacts joint employer liability, perceived disability under ADAAA and the dangers of revisiting employee performance reviews. Michael Maslanka, a regular contributor to Texas Lawyer, wrote an article last month called, “L&E Plaintiff Lawyers Served Treat from Fifth Circuit.”

The article focuses on Burton v. Freescale Semiconductor, in which the Court touched on several interesting issues, including joint employer liability, perceived disability under the ADAAA, and why it’s not a good idea to pad your file with extra “performance issues” after a decision to terminate an employee has already been made.

Burton worked in Freescale’s plant from 2009 to 2011 as a temporary employee under the auspices of a staffing company. She had received generally good performance reviews until the beginning of 2011. In January 2011, she broke a piece of machinery, and in March 2011, she inhaled chemical fumes while on the job. After some time, Burton developed health problems that she attributed to the fumes, was hospitalized, and filed a workers’ compensation claim.

About two weeks later (late June 2011), one of the supervisors, Bruce Akroyd, decided to terminate Burton but she was not terminated until late July, so that a replacement could be trained. Following Akroyd’s decision, he requested supporting documentation for her termination from Burton’s other supervisors. According to the Court, Burton’s supervisors “began generating retrospective ‘documentation’ and (in contrast to previous practices) meticulously cataloging Burton’s every shortcoming.”

Burton was terminated for poor performance, based on the documentation prepared by her supervisors and Akroyd. When it came time for the Court to look at Freescale’s legitimate non-discriminatory reason for Burton’s termination, the Court agreed that at least some of the performance issues raised could be a legitimate reason because they predated the decision to terminate her, but that “Purported examples of post-decision poor performance, however, are not evidence of a legitimate, nondiscriminatory reason for her termination.” The Court called it the “snapshot” approach, looking only at the information the decision-maker had at the time he made the decision.

Further, at the pretext analysis, the Court sided with Burton, stating, “Evidence of a sudden and unprecedented campaign to document Burton’s deficiencies and thus justify a decision that had already been made, however, could raise an inference of pretext.” Ultimately, the Court sided with Burton and reversed the grant of summary judgment.

The Court points to other Fifth Circuit cases regarding documentation, too. The upshot of it is that, if an employer has policies requiring rigorous documentation of performance issues or complaints, a failure to produce contemporaneous documentation creates an inference that the documentation is made up.

Here’s the relevant quote: “Here, as in Laxton and Evans, we face a lack of contemporaneous documentation coupled with evidence that such documentation should exist. As in Evans, such documentation was created after Burton came within the protections of the ADA and after the termination decision. Under the circumstances, this is additional circumstantial evidence of pretext.”

Laconic Lookout: It isn’t unusual to be faced with a termination decision and to want to “get all your ducks in a row” by ensuring you have all the necessary documentation. However, employers and their front-line management personnel must resist the temptation to go too far. This case is a great reminder that, under certain circumstances, it is the act of “getting your ducks in a row” that can actually be evidence of pretext and can lose your case for you. It is far better to create and regularly enforce a rigorous documentation policy as you go, to avoid the implication that you may have later created documentation that should have already existed.

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