Take Note: Here’s how strong DOCUMENTATION torpedoes discrimination claims.


Yesterday’s parting shot advised employers — not legal advice, mind you — that well-documented termination decisions are much better than “take my word on it, we should just fire him.”

Let’s test that theory today.

Honest to a fault.

The plaintiff in this case worked for a credit union. The credit union would review the plaintiff’s performance monthly. These reviews were written and scored. The parties agreed that anything below 2.0 was considered unsatisfactory.

Beginning in January 2017, the monthly records reflected unsatisfactory performance. The plaintiff, who is black, testified that his race did not motivate any of the scores he received in the months leading up to 2017.

On the January 2017 scorecard, the plaintiff received a score of 1.74. The plaintiff conceded that he could have done better.

In February 2017, the plaintiff dipped to a 1.0. The plaintiff noted on his performance review that although his team had some successes, “[i]t was not a month I am proud of as a leader.”

In April 2017, the plaintiff noted that “today my district is a [Not Satisfactory] in Quality and that is unacceptable.” He also testified that nothing on the performance review was racially discriminatory.

Over the next several months, from May 2017 until September 2017, his reviews continued to document performance deficiencies with the plaintiff and his team. Despite these documented deficiencies, the plaintiff testified that none of these performance reviews were discriminatory based on race.

Now, let’s pause here for a second.


As you might have guessed, the plaintiff claimed race discrimination. To prove his case, he had to show that he was qualified for his position. It’s axiomatic that if you’re consistently getting bad scores on performance reviews, then you are unqualified — unless race somehow motivated the scoring. But the plaintiff testified that it didn’t.

Well, except for one time. You see, he received a written warning in March 2017. On the written warning, the plaintiff’s supervisor noted that the plaintiff failed to complete several requirements. The plaintiff subsequently wrote on the form: “I apologize for my part in the issues documented above. I have put new processes in place to prevent these type of situations from arising in the future. I hope I will be given a fair assessment of my renewed efforts going forward as I want to succeed in my current role.”

Nothing at all about race.

At his deposition, however, the plaintiff testified that despite what he wrote on the form, he believed the written warning was discriminatory based on his race. But the court wasn’t having it with his guesswork:

[The defendant] consistently documented [the plaintiff’s] deficiencies and not only did [he] agree with the vast majority of [the company’s] assessment, but [the plaintiff] also testified that none of these performance reviews evidenced discrimination based on race. While [the plaintiff] now challenges his March 2017 written warning on the basis of race discrimination, despite having written his agreement with the assessment on the form in a section in which employee comments were optional, he relies on speculation. Furthermore, [the plaintiff] produces no evidence to dispute that the final two loans he made prior to his termination violated [the defendant’s] lending policies.

For these reasons, the court granted summary judgment to the defendant on the race discrimination claim.

Employer takeaways

How many of you have managers who willingly (and actually) provide monthly employee performance reviews?

Yeah, good luck with that.

But you should still train them to document performance issues. Juries expect to see it when employers testify about all the legitimate business reasons that they fired someone alleging discrimination. A simple email from a supervisor to a direct report documenting a conversation/counseling on a performance issue will suffice. Enough of those will help establish that the person suing you for discrimination was not so good at their job and paid the price for it.

Otherwise, you may end up paying a hefty jury verdict.

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