The importance of keeping a thorough record of every employee’s disciplinary infractions and performance history can’t be overstated. CollazoRosado v. University of Puerto Rico, a decision recently handed down by the U.S. Court of Appeals for the First Circuit, shows why.
Accommodations and reminders
The plaintiff suffered from Crohn’s disease. In 2006, she was hired by the university as the mentorship coordinator of the academic support development center. At her inter- view with the co-director, the plaintiff stated that, if hired, she’d need reasonable accommodations of frequent, unfet- tered bathroom access as well as use of accumulated sick leave for medical tests and doctor visits. The co-director agreed to provide these.
A few months after the plaintiff’s hire, the co-director sent out a staff memo instructing everyone to notify the administrative assistant before missing work, coming in late or leaving early. She also reminded staff members to punch in and out, and not to handwrite unauthorized changes on their time cards. The plaintiff later admitted that she’d handwritten changes on her time card many times before and after receiving the memo.
In August 2008, the plaintiff was given a new immediate supervisor. She informed this person of her medical con- dition and the agreed-on accommodations, which she hoped would remain in place. The new supervisor told her not to worry but asked the plaintiff to inform center personnel — by telephone, e-mail or text — when she would be away from her desk for a long time, as well as when she arrived late or left early. The reason for this was that the plaintiff’s job required that she be physically present at the center to supervise mentors and tutors.
In 2009, the supervisor became worried about the cen- ter’s performance after receiving complaints from profes- sors and being compared negatively to another center. In response, she asked the plaintiff to stage more and different workshops. The supervisor also distributed another staff memo regarding the use of time cards and the importance of giving advance notice when modifying work schedules.
Thereafter, the supervisor noticed that the plaintiff was arriving late, departing early and leaving her work area for long periods without giving anyone advance notice. So she issued the plaintiff a written warning. The plaintiff explained that, when she called in, no one would pick up because other staff members recognized her number on the caller ID. She also claimed that she had doctor’s notes for her leaves, though she provided only one.
The plaintiff felt she was being treated unfairly because of the written warning, as well as because she’d overheard a co-worker’s boyfriend laugh when she went to the bathroom. She complained to her supervisor about the boyfriend, but nothing was done about it. The plaintiff never accused any of her co-workers of teasing her.
Eventually, the plaintiff filed a complaint with her union and formally asked the university for the reasonable accommodations she’d requested at her job interview. She also filed charges of disability-based discrimination and retaliation with the Equal Employment Opportunity Commission.
In June 2009, the plaintiff received a poor performance evaluation from her supervisor. The supervisor stated that the plaintiff:
- Performed unsatisfactorily while training and super- vising tutors,
- Ran workshops that didn’t meet the university’s needs,
- Failed to conduct a required survey, and
- Didn’t comply with the center’s stated attendance policy.
In August 2009, the plaintiff was informed that the university wouldn’t be renewing her contract because it needed to restructure the tutoring and mentoring pro- gram. Two replacements were later hired to take over the plaintiff’s job and the center’s performance improved.
Credible and consistent
The district court granted summary judgment in favor of the university, finding that legitimate, nonpretextual reasons existed for the contract nonrenewal. The plaintiff appealed. And on that appeal, the First Circuit affirmed — holding that the plaintiff had failed to meet her burden of creating a triable issue of fact on the pretext issue.
The plaintiff argued that the university’s reasons were pretextual because the attendance and performance issues cited at trial weren’t stated in the contract nonrenewal notice. Therefore, the plaintiff contended, attendance and performance issues were conjured to bolster the univer- sity’s defense.
The First Circuit held that there was no law requiring employers to list each and every reason for termination. The record — including the memos, disciplinary write-ups and performance evaluations — established that the plain- tiff had exhibited verifiable attendance and performance issues and, at least partly because of these problems, the university had to restructure the center’s program. Therefore, the letter and reasons for termination were credible and consistent.
The lesson of this case is fairly straightforward: The record matters. Be sure to thoroughly document all dis- ciplinary warnings given to employees and meticulously maintain these files. If you’re sued for discrimination, the record you’ve created will serve as evidence of poor per- formance or attendance problems, which are legitimate and nondiscriminatory reasons for taking an adverse action such as termination.