Sometimes, someone who has performed well for years and received stellarstarts to display performance that leaves much to be desired. It may be burnout, failure to keep skills up-to-date or simply a matter of a new supervisor with different expectations.
No matter the cause, you can address declining performance without fearing that the employee will find some reason to sue you.
The best approach is careful and meticulous record-keeping showing expectations and how the employee isn’t meeting them. Objective facts trump the employee’s feelings that she is being discriminated against for some reason.
Recent case: Naomi had worked as a teacher in New York City for 20 years, earning stellar performance reviews. She began teaching at the East Bronx Academy in September 2007 and tookfrom Dec. 1, 2007, to Jan. 22, 2008.
She claimed that upon her return to the school, administrators retaliated against her by removing her from her previously assigned classroom, ignoring her complaints regarding disruptive students and subjecting her to intense scrutiny and evaluation.
The school district countered that students and other teachers complained about her performance, starting in March 2008.
The complaints and observations were documented carefully and weren’t based on just one observation. For example, Naomi was given specific recommendations for improvement, but didn’t implement them. After two years, she hadn’t improved and was fired.
She sued, alleging that since the criticism came after she tookleave, that must be why she was terminated.
The court disagreed. It said that timing alone didn’t trump objective, documented, even if those problems were new. (Davies v. New York City Department Of Education, et al., No. 13-164, 2nd Cir., 2014)