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Careful documentation wins discharge cases

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in Discrimination and Harassment,Human Resources

It’s never pleasant to see a long-term employee’s performance decline. But if you intend to discipline a worker who previously was a good or even great performer, be sure to track the decline carefully.

You don’t want an age discrimination claim to catch you unaware. That won’t happen if you document every step along the way showing declining performance.

Recent case: Denise worked for many years as a registered nurse and got numerous excellent reviews while working under different managers and in different departments.  

For reasons that weren’t clear to supervisors, Denise’s interaction with patients and staff began a slow and steady decline. Her co-workers reported that she yelled at patients, refused to help other nurses with their duties when necessary and generally went from being a stellar performer to one who could not be counted on as part of the team, alienating patients and their families.

Her behavior was carefully noted and tracked and she was given many chances to improve her performance and attitude. That never happened. Denise simply told supervisors that they were wrong and that she really wasn’t yelling or being insubordinate or difficult.

Finally, she was fired. That’s when Denise filed an age discrimination lawsuit, alleging that she had really been terminated because she was older than age 60.

But the court looked at all the documentation and concluded that the employer had shown it had legitimate termination reasons despite her prior good performance. Denise’s case was dismissed. (Riley v. St. Mary Medical Center, No. 13-7205, ED PA, 2015)

Final note: A progressive discipline system is best for managing declining performance. It gives a previously good employee a chance to improve while building a good record to support termination if that becomes necessary.

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