Employers, Managers, I Implore You…Document Performance and/or Conduct Issues Before Terminating That Employee

The cost of not doing so is waayyyy higher than the time it takes to document a problem with an employee.

This particular topic is a favorite of mine. In fact, I have a deck I use to train managers and supervisors called “The Power of Documentation,” and in my head, when I say the title aloud, it comes out in a booming echo in the voice of James Earl Jones. 100%, I have an active imagination.

Documentation is critical for everything from conduct issues, accommodations and the need for leave under various federal and state laws, violations of company policies, and, significant to this post, terminations.

You see, this weekend, I read that Starbucks Coffee Co. (“Starbucks”) would not be able to extricate itself early, on summary judgment, from a case that a former manager filed for reverse race discrimination.

The plaintiff sued Starbucks for “reverse” discrimination, alleging that Starbucks treated her, a White person, less favorably than Black employees in violation of  Title VII of the Civil Rights Act of 1964 (“Title VII”) and the state human rights statute in the wake of a well-publicized incident that occurred in Philadelphia in 2018.

The Starbucks Incident of 2018

To refresh your recollections, one nice Thursday in April 2018, two Black men walked into a Starbucks in downtown Philadelphia and sat down, waiting for a third man to join them for a meeting. A White employee denied the request by one of them to use the restroom and eventually asked the men to leave. The men did not leave, and the same (White) employee called the police.

When the third man joined, he found his colleagues surrounded by police, and then shuttled out in handcuffs. Guy #3 spoke to reporters and poignantly noted:

“What did they get called for?” asks the man, Andrew Yaffe, who is white, referring to the police. “Because there are two black guys sitting here meeting me?”

https://www.nytimes.com/2018/04/15/us/starbucks-philadelphia-black-men-arrest.html

The Starbucks CEO profusely and publicly apologized; and, significantly, the incident sparked a frenzy of training on unconscious bias, recognizing micro-aggressions training, and diversity, equity, and inclusivity.

Fast-Forward To This Lawsuit Filed in 2020

Plaintiff worked as Regional Director of Operations for the store at which the incident occurred. She began as a district manager in 2005 and worked her way up the corporate ladder.

Starbucks alleged that it asked her to step up her game after this incident, but Starbucks alleged that she was not focused, failed to appreciate the gravity of the situation, and missed important meetings on the topic.

But Starbucks did not document these alleged performance failures. And you know what? It cost Starbucks an early exit card on summary judgment.

What Role Did Documentation Play Here? First, We Examine The Burden-Shifting Standard.

Plaintiff alleged that Starbucks discriminated against her because of her race (White). In a race discrimination lawsuit, as I wrote about here—

First, a plaintiff must establish a prima facie case of discrimination by demonstrating that (1) they are a member of a protected group, (2) they were qualified for the job, and (3) the plaintiff was terminated under circumstances giving rise to an inference of unlawful discrimination.

Second, the burden shifts to the employer-defendant to offer a legitimate, nondiscriminatory reason for the decision it made (here, the plaintiff’s termination).

Third, if the employer provides a legitimate reason for the decision, the burden then shifts back to the plaintiff-employee to raise a genuine dispute as to whether the defendant-employer’s proffered reason is mere pretext for discrimination. 

There is so much to unpack about this case about “reverse” discrimination and the various burdens, but this is a blog! Not a law review article.

Lack of Documentation Means The Jury Gets To Decide

After the plaintiff established a prima facie case of discrimination, Starbucks offered a legitimate, nondiscriminatory reason for the termination: it claimed that the plaintiff failed to lead and perform her role after what happened; and other supervisors testified that she was not at meetings, seemed overwhelmed, and did not really understand the significance of what happened at the Philly store.

Sounds good, right?

It might have if Starbucks had documented these issues, but it did not. U.S. District Judge Joel H. Slomsky taught this employer (and all employers) a lesson:

Starbucks’ lack of documentation is further evidence of pretext. An employer’s lack of documentation about the plaintiff’s poor performance is evidence of pretext. See Zelesnick v. Temple Univ. Health Sys., Inc., No. CV 19-5820, 2021 WL 201300, at *8 (E.D. Pa. Jan. 20, 2021). In Zelesnick, the defendant-employer argued that the plaintiff was terminated because she “was distracted, had not developed a routine, and was making a variety of mistakes.” Id. at *8. However, the court determined that summary judgment was improper, holding: 

Notably, Defendants have not introduced any documentary evidence to prove that Ms. Zelesnick was making mistakes. … (further citations omitted)

Likewise, here, there is meager documentary evidence to support Defendant’s claim that, “after thirteen years of undisputedly stellar performance,” Plaintiff’s actions in the twenty-seven days between the incident and Plaintiff’s termination were “so severe that the situation ‘could not be recovered’[.]” 

Now, a jury will decide whether Starbucks’ reason for terminating the plaintiff was really a “pretext” for discrimination. Indeed, the lack of documentation for the plaintiff’s termination tanked Starbucks’ motion. Check out the opinion on page 19.

Employer Takeaways

If a performance or conduct issue is not documented, it’s like it did not happen. I kid you not. Whether we’re talking about poor performance, attendance, tardiness, KPIs, or following company policies, a talking-to is not enough. Supervisors and managers must document these conversations—and they should do so in real time.

An employer’s adequate documentation of the legitimate basis for an adverse action can squash, if not just defend against, a wrongful termination claim (as long as you didn’t discriminate, right?)

Supervisors, managers, I cannot stress this enough—document performance concerns, behavior, attitude, work product, policy violations, investigations, and any similar type of matter.

In other words, document, document, document!