• Flawed Documentation about Layoff Selections Works to Reverse Summary Judgment Victory for Employer
  • March 17, 2010
  • Law Firm: Hunton & Williams LLP - Richmond Office
  • In another case in which better employer documentation could have made the difference,  the U.S. Court of Appeals for the Sixth Circuit reversed earlier this month a district court's grant of summary judgment in favor of employer Kmart.  Based largely upon contradictory and unclear documentation, the court found that Kmart’s former employee, Susan Cutcher, presented sufficient evidence to allow a reasonable juror to find that Kmart terminated Ms. Cutcher in retaliation for taking leave under the Family and Medical Leave Act.

    In late 2005, Ms. Cutcher--a 20-year Kmart employee--learned that she would need surgery, and that she would need six weeks off of work for recovery.  Ms. Cutcher submitted the proper paperwork, and, on December 5, 2005, she began her FMLA leave of absence.  While Ms. Cutcher was on leave, Kmart terminated her employment as part of a nation-wide reduction in force.  Ms. Cutcher was one of six employees selected for termination from her store, and Kmart argued that Ms. Cutcher was selected based upon her low score on a final performance appraisal that the company used as a tool to determine which employees should be terminated.  This final performance appraisal was somewhat inconsistent with prior appraisals, and the announcement that Ms. Cutcher was one of the individuals selected for termination came just twenty days after Cutcher received a performance appraisal stating that she "exceeded expectations."  The evaluation form that identified Ms. Cutcher's as an employee selected for the RIF contained a notation next to Ms. Cutcher's name, indicating that she was on leave of absence.

    In determining that the lower court erred when it concluded that Kmart was entitled to judgment as a matter of law, the Sixth Circuit stated that, although Cutcher did not have any direct evidence to support her argument that her FMLA leave played a role in her selection for RIF, there was enough circumstantial evidence to prevent the court from dismissing the suit.  For instance, the court felt that a reasonable juror could be persuaded that the LOA notation on her appraisal form was, in fact, a reason for the lower final appraisal scores.  Additionally, the court found that a reasonable jury could find in favor of Ms. Cutcher because none of Kmart's asserted reasons for her lower RIF appraisal had been documented.

    There has not yet been a determination on the merits of Ms. Cutcher's claims.  In the meantime, the primary lesson from the Sixth Circuit's recent ruling is that employers should be consistent and complete in documenting concerns with employee job performance, and careful not to include any unnecessary or extraneous information on termination paperwork.  If performance issues are not consistently and accurately documented, an employer may be hard-pressed to rely upon them down the road as a justification for an employment decision.  And, if a certain piece of information about an employee plays no role in a termination decision, that piece of information should not appear on the termination paperwork.