Monday, August 17, 2009

Papering a personnel file as evidence of retaliation?

When Carolyn Upshaw started filing EEOC charges against her employer, Ford Motor Company, it began to document her on-going performance problems. After she filed her 3rd charge and a lawsuit in a 15-month period, Ford terminated her employment. The termination occurred nine months after the last EEOC charge and four months after the lawsuit was filed. In Upshaw v. Ford Motor Co. (8/14/09) [PDF], the 6th Circuit concluded that her underlying discrimination lawsuit was baseless, but that her retaliation lawsuit, premised on the timing of Ford’s documentation of her performance problems, warranted a jury trial:

We have held that the combination of close temporal proximity between an employer’s heightened scrutiny and that plaintiff’s filing of an EEOC charge is sufficient “to establish the causal nexus needed to establish a prima facie case” of retaliation…. Here, Upshaw has proffered evidence that Ford subjected her to heightened scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that Hughes-Sharp and Brooks began developing a timeline of Upshaw’s employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw’s complaints to Human Resources…. Given the close temporal proximity between Upshaw’s August 2003 EEOC charge and Ford’s request for information from other employees documenting Upshaw’s complaint activity, and Brooks’s request for discipline, a reasonable juror could find that Upshaw has established a prima facie case of retaliation.

I’ve written in the past about the importance of timely and accurate documentation of performance problems. The Upshaw case underscores this point. It is not enough to document performance problems. The documentation must be consistent. A lot of employers think nothing of papering a personnel file after an employee becomes a pain in their side. Under Upshaw, such papering, that only begin once an employee files a discrimination charge or engages in other protected activity, could be used as prima facie evidence of retaliation. In other words, document early and document often, and don’t document selectively.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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