The Great Value Of Honest Performance Reviews And Documentation — All Is Not Lost
A recent decision of the Seventh Circuit of the U.S. Court of Appeals (Wisconsin), Ferrill v. Oak Creek-Franklin Joint School District, No. 15-3805 (7th Cir. June 21, 2017) affirmed a summary judgment order in favor of the employer School District against the Plaintiff, an African American school principal who did not have her employment contract renewed. The Plaintiff asserted discrimination because of her race, making the all too common “typical” allegations without any basis. She was in denial, seeking to blame others for her actual poor job performance.
The employer had demonstrated to the trial court that it had extensive documentation and evidence that the Plaintiff’s job performance was poor. Also it was key that the employer, before it took action, provided her with notice of her deficiencies and afforded additional training and accommodations to provide her with opportunities to be successful. Unfortunately, these efforts did not result in any significant improvement.
The employer went so far as to hire a consultant to review the situation and make recommendations. It was found that the Principal did not treat those that worked under her fairly, she was confrontational and quick to allege “racism” whenever things did not go her way. There were several performance complaints. The independent consultant concluded that there was no hope for the Plaintiff to succeed and recommended her discharge.
While dismissals before trial are difficult to achieve, this case is a prime illustration that it is not impossible. So long as the employer has good policies that are actually followed, “real” documented, detailed performance reviews which are not “sugar coated”, it should prevail. If the employer has acted fairly and reasonably, trying to improve performance before taking adverse disciplinary action, the employer’s defense should be successful and a costly trial can be avoided.
An employer cannot prevent all frivolous claims, of course, which can be time consuming and costly to defend. However, when the employer has taken the proper steps, taking a hard line, defending those claims early on, long term deterrence may be well worth the initial higher costs.
ABOUT NEIL A. MORRIS
Neil Morris has passionately represented employers for the last 30 years. He concentrates in the areas of labor and employment, municipal labor law, employment discrimination, defamation defense, commercial litigation, and business litigation. He has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.
ABOUT GABRIEL CELII
Mr. Celii devotes his practice to representing businesses and municipal entities navigating labor and employment disputes ranging from wage and hour litigation and work place discrimination defense to labor negotiations and the resolution of grievances. During his representation of Philadelphia-area Townships and Counties, he has successfully defended claims brought against public officials and advised municipalities on the drafting of local ordinances, such as Police Pension DROP amendments.
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