Here’s a warning for HR professionals who are reviewing personnel files for use in a lawsuit: Don’t even think about playing games with the judge by failing to hand over everything. For example, if you provide only negative information, chances are a judge won’t be pleased.
That’s especially true if the employee has worked for the company for many years and has only recently become a problem. Concentrate on the decline, but don’t hide any positive past.
Recent case: Carlos was dismissed from the job he had held for 34 years with Carestream Health. He was over 60 years old when fired and claimed that, over his career with the company, he had consistently received “stellar” performance reviews.
Because younger employees hadn’t been terminated, he suspected age discrimination and sued.
Carestream responded with a packet of documents allegedly showing. The documents, however, were heavily redacted, showing only negative comments. The lower court threw out Carlos’ case based on those documents, but Carlos appealed.
The 2nd Circuit Court of Appeals has reversed that decision, telling the lower court that it should not have dismissed the case based on blacked out and selective documents. Carlos now gets a chance to show a jury that he was the stellar employee he claims to have been. (Gonzales v. Carestream Health, No. 12-4202, 2nd Cir., 2013)
Final note: There’s a right way and a wrong way to approach litigation. The right way is to provide all relevant documents, including those that may reflect favorably on the employee. In this case, Carestream could have explained that Carlos’ performance had deteriorated over time. Instead, it chose to hide the positive, making the court naturally suspicious of some kind of coverup.