Paper Trails and Pitfalls— Documenting Performance Issues is a Must
Employers, I and every other management side lawyer implore you to document performance or conduct issues you have with an employee before you fire them.
This practice is not just a bureaucratic formality; it is a critical safeguard that can protect employers from legal disputes and ensure fair treatment of employees.
The case of Wannamaker-Amos v. Purem Novi, Inc., No. 23-1568 (4th Cir. 2025), serves as a stark reminder of the consequences of failing to properly document a termination.
I say this to clients all the time—if it is not in writing, it doesn’t exist.
What Happened In This Case?
Plaintiff, a Black woman, was a seasoned quality management professional (in the business for 30 years). In fact, she worked at the employer organization for seven years.
Despite years of positive performance reviews, plaintiff’s employer fired her after a series of alleged performance issues, primarily driven by one manager, the chief quality executive (let’s call him the CQE).
The CQE compiled a list of eight alleged performance issues but never shared this list with her. He seemed to have a personal vendetta against the plaintiff, treating her differently from his other employees—none of whom were Black and nearly all of whom were men.
Eventually, the CQE convinced HR to fire the plaintiff.
Plaintiff sued, alleging racial and gender discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and Section 1981.
While the district court initially granted summary judgment in favor of the employer, the Fourth Circuit Court of Appeals had other ideas. They vacated the summary judgment, finding that there were numerous material factual disputes that needed to be resolved by a jury.
What Kind of Disputes, You Ask?
First, in discovery, the employer’s corporate representative admitted that there was no evidence to support several of these allegations. During her seven years of employment, the company never disciplined the plaintiff and never cited her for any problems.
In fact, she did not receive a single warning at all before the CQE’s list of problems.
Second, the employer’s performance improvement policy required progressive discipline. And, guess what? The CQE did not follow the company’s policy, thereby undermining the termination decision as a nondiscriminatory one.
Moreover, the CQE’s failure to ever discuss perceived problems was damning. As the 4th Circuit stated in a footnote,
A jury can also infer pretext from a decisionmaker’s effort to build a file of issues never discussed with the plaintiff.
(Employers, creating documentation at the time of termination for past issues is asking for trouble - - especially where management never documented the past events at the time.)
Third, the CQE had a history of treating the plaintiff poorly compared to her white male colleagues, including a racist comment or two.
Fourth, the employer providing ever-shifting bases for the plaintiff’s termination at different times. Initially, the CQE cited several performance issues and significant financial damages, but later, the company downplayed most of these issues and focused on a single incident involving a customer email.
This inconsistency in the basis for the plaintiff’s termination suggested that the reasons were pretextual.
In fact, the total lack of documentation made it difficult for the employer to justify the termination as legitimate and nondiscriminatory.
Hence, the Fourth Circuit vacated the grant of summary judgment and remanded the case.
Why Does Documentation Matter?
As I wrote here, proper documentation provides a clear and consistent record of the reasons for an employee’s termination. This can be crucial in defending against claims of wrongful termination, discrimination, or retaliation. Without such documentation, it is far more difficult toprove that the termination was based on legitimate, nondiscriminatory reasons.
Here’s another big reason, employers: consistent documentation and adherence to company policies help ensure that all employees are treated equally.
This consistency is vital in defending against claims of discrimination, as it demonstrates that the employer applies the same standards to all employees.
Employer Takeaways
This case serves as a cautionary tale for employers. If a performance or conduct issue is not documented, it’s like it did not happen. Whether we’re talking about poor performance, attendance, tardiness, metrics, or following company policies, a verbal conversation is insufficient. Supervisors and managers must document these conversations—in real time.
Follow Your Own Policies: adhere to your company's performance improvement and disciplinary policies. Skipping steps or ignoring the policy can lead to legal challenges, as it did in this case.
Document Everything: maintain detailed records of performance issues, disciplinary actions, and the reasons for termination. Ensure that these records are accurate, consistent, and shared with the employee when appropriate.
Refrain From, You Know, Actually Discriminating: treat employees fairly and equally. Discriminatory comments and actions, even if made years before a termination, can be used against an employer in court. Proper documentation helps demonstrate that the termination was based on legitimate reasons and not discriminatory motives.
While I could provide you with four or five more tips, remember this one: document legitimate, nondiscriminatory reasons for termination. Always.