Employment lawyers and human resources professionals regularly preach that managers must document employee performance issues as a best practice so that if/when that manager wants to terminate the employee, the company has the "receipts" to justify the decision.

Suppose that the employee later sues for age discrimination. He may be able to advance his case to trial and prevail if he can show inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action. Poor documentation, or none at all, lightens the employee's lift.

I'll give you a recent example involving a 59-year-old employee who worked his way up from part-time stock person in 1983 to District Sales Manager of 17 stores. Not surprisingly, he received positive employment evaluations along the way.

But as these things go, things eventually went bad.

In 2018, the employee's manager gave him a poor annual performance review. In 2019, the review was even worse, with the employee receiving the lowest overall score possible. That led to a performance improvement plan, an amended performance improvement plan, and, just a few months later, his termination of employment.

The age discrimination lawsuit followed.

The defendant told the court that it fired the plaintiff because he received poor performance evaluations. Consequently, the defendant placed the plaintiff on a PIP. Later, the defendant fired the plaintiff when he failed to comply with the PIP's requirements.

The plaintiff claimed that his termination and the events leading up to it were a pretext for age discrimination. The defendant replaced him with someone more than ten years younger, and the plaintiff presented evidence that his manager had made some ageist comments.

However, the court's tipping point was the inconsistencies, incoherencies, and contradictions in the defendant's documentation. For example, although the defendant argued that the plaintiff had performed poorly for "years," he received a "Meets Expectations" just a few years before his termination. He was also District Manager of the Year nationwide a few years before.

The plaintiff also questioned the legitimacy of the more recent poor performance evaluations. On his 2018 performance evaluation, the plaintiff received the lowest possible grade, accounting only for 15% of a category that constituted 50% of his total score. Yet, he also received the lowest possible overall score.

The PIP was also flawed. It purported to document that the plaintiff's manager counseled him about poor performance three times, but two of the conversations had yet to occur at the time of the PIP.

The plaintiff claimed to have met the PIP's objectives. However, the defendant provided no company documents to the court that didn't.

Lousy documentation discredits a company's official explanation of a termination. Here, a reasonable jury could conclude from the evidence that age discrimination motivated the plaintiff's termination.

I wonder what the jury will do.

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