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June 14, 2004

Counseling an Employee for Poor Performance?
Consider Getting a Signed Written Acknowledgement

In an age-discrimination lawsuit against American Airlines by a former employee, the court recently denied American's motion for a summary judgment dismissing the case. The court's reason offers a lesson for managers and HR personnel.

The former employee, one Walker, claimed he had been fired during a post-9/11 reduction in force because of his age. American Airlines responded with evidence that Walker had been a poor performer. Walker replied that American's performance argument was merely a pretext.

Walker supported his pretext contention in part with his affidavit that he never knew he had received low performance marks. (He also introduced evidence that other, younger employees in comparable positions had serious employment problems yet were not terminated.) The court concluded that Walker had produced enough evidence of pretext to entitle him to have a jury hear his case; it denied American's motion for summary judgment.

POSSIBLE LESSON: If you're counseling an employee because of poor performance, consider 1) writing up an accurate summary of the counseling, 2) asking the employee to sign it, 3) giving him or her a copy, and 4) keeping the signed original for the employee's personnel file. (If the employee refuses to sign, consider making a written note of the employee's refusal.) That should provide at least some ammunition to help refute a later claim that the employee never knew about the performance issues.

CITATION: I couldn't find the court's opinion on-line. The case is Walker vs. American Airlines, Inc., No. Civ.A 4:03-CV-46-Y (N.D. Tex. June 9, 2004), summarized in this BNA Corporate Law Daily report ($).

June 14, 2004 in Leadership and Management, Litigation, Record-keeping | Permalink

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Consider Getting a Signed Written Acknowledgement
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