Recent Federal Decision Underscores the Importance of Periodic Performance Reviews

Unlawful discrimination claims have a “burden-shifting” framework that can make employers verify the legitimacy of their adverse employment decisions.  To reduce the risks associated with such claims, employers should make sure that an employee’s file is well-papered with nondiscriminatory reasons supporting any adverse action.  If done properly, careful documentation can help employers maximize their chances of success in defending against meritless unlawful discrimination claims.

The recent case of Hickman v. Kucharski illustrates the fate of an employment discrimination case in which an employer carefully documented an employee’s deficiencies.  In Hickman the plaintiff worked as an auditor for the Virginia Auditor of Public Accounts when he was terminated, allegedly for discriminatory reasons.  However, the plaintiff’s detailed performance reviews, generated over more than a year, demonstrated a pattern of professional shortcomings.  In each instance, the shortcomings were detailed with particularity.  And while the plaintiff disagreed with the performance reviews, he did not submit anything to rebut them or explain his perspective.

Although the plaintiff alleged sufficient facts suggestive of employment discrimination to avoid early dismissal of his case, the lack of facts rebutting the employer’s nondiscriminatory reasons for his termination prevented him from proceeding to trial. In granting summary judgment in favor of the employer on all claims, the court reasoned that the plaintiff had no evidence to overcome the documents detailing his professional shortcomings.  Although the plaintiff argued that the proof of his discrimination claim was found in the employer’s inability to show either gross misconduct or substantial incompetence, the court noted that the law does not require an employer to show either to justify a termination.

The Hickman case is an example of why employers should spend significant resources conducting periodic performance reviews and carefully documenting any shortcomings in an employee’s performance.  Had the employer in Hickman failed to conduct and document detailed performance reviews, it would have lacked much of the evidence that later proved so valuable in defeating an unsubstantiated employment discrimination claim.