An employee with Hepatitis C failed in his disability discrimination lawsuit because his employer took the time to document his performance problems (even before it knew of his condition) in his performance appraisal. The employee (named Breen) sued his employer, Infiltrator ("the world’s leading manufacturer of plastic leachfield drainage chambers for environmental onsite wastewater solutions") under Kentucky's disability discrimination laws (which are the same as the pre-2008 ADA). The decision, however, addresses an issue common to all employment discrimination or retaliation lawsuits, the importance of accurately documenting performance on a performance evaluation.
Breen, the company said, was rude to customer service, one time in front of a major customer, he also shipped out new inventory (in violation of the "First in First Out" policy). The court sustained his discharge largely because these issues had been identified as areas for improvement in his performance appraisal:
Even before Breen informed Infiltrator of his condition, the company identified Breen’s relationship with the customer service department, Breen’s adherence to the company’s First In First Out policy and Breen’s attitude as areas that needed improvement. These issues were important enough for the company to mention in his annual review as areas of improvement for the upcoming year.
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