Time and time again, human resource professionals get blank stares when they ask managers for documentation supporting their strong desire to get rid of an employee they consider to be a poor performer. Not having prepared contemporaneous documentation of such problems when they arose, employers are sometimes tempted to make up for this deficiency by rushing to recreate such evidence around the time of termination. Earlier this month, the Fifth Circuit Court of Appeals reminded employers that such last minute efforts can have the opposite of the intended legal effect.

In Burton v. Freescale Semiconductor, Inc., the plaintiff was a temporary employee assigned by a placement agency to the defendant’s workplace. Several months into the assignment, she began complaining of chest and heart problems from alleged exposure to fumes in the workplace. Two weeks later, the defendant decided to end the assignment, and the temporary agency asked for documentation of the performance reasons supporting this decision. The plaintiff’s supervisors had not prepared any such records, but began preparing detailed notes of her performance issues. The termination followed several months later, but the supervisors’ documents included incidents both before and after the actual termination decision was made. The plaintiff filed suit, claiming discrimination based on a perceived disability under the ADA.

On appeal, the Fifth Circuit reversed a grant of summary judgment for the employer. The court viewed the last minute and retroactive documentation of the plaintiff’s performance problems as evidence that such reasons were pretext for discharging her due to her medical complaints. The documentation contradicted average to good performance evaluations actually prepared during the time periods covered by the supervisors’ notes. The Fifth Circuit considered the last minute documentation to be evidence of the employers’ attempt to justify a decision already made.

This case is a textbook example of the crucial need for supervisors to prepare contemporaneous documentation of performance issues. The absence of such documentation will be held against the employer regardless of the legitimate business reasons for the decision. Trying to recreate this missing documentation after the fact can boomerang, making the employer appear to have retroactively created the reasons to justify a decision already reached.