Eighth Circuit Remands Dismissal of Retaliation Claim Where Employer Refused to Consult Lawyer

Today, the Eighth Circuit upheld the dismissal of a racial hostile work environment claim but reversed the dismissal of a retaliation claim. Even recognizing that there are disputes over the facts, the case is a good lesson in how not to respond to a complaint about racial comments even if you believe the employee to be lying.

In July 2007, NuAir hired Lionel Pye as a temporary employee doing metal finishing work.  It was entry level work.  He was made a regular employee in October 2007, at which point he asked the company payroll administrator to fill out a form so he could get housing assistance from the county government.  The payroll administrator was apparently rude to Pye, and uttered a racial slur in his hearing (she disputed this).  Pye complained about it to the HR manager (Johnson) who met with Pye and his supervisor.  What was said at the meeting was disputed.  After the meeting, Johnson reported to the Vice-President (Peters) that Pye was trying to shake down the company by making an implied threat to sue.  The court explained what happened next:

Johnson suggested to Peters that a lawyer be consulted to see if NuAire could fire Pye for making threats. Peters responded that he did not need to consult a lawyer, and directed McKnight [the supervisor] to fire Pye when Pye next returned to work on Monday, November 19, 2007. The only information Peters had at the time he made the decision to terminate Pye pertained to Pye’s allegations of discrimination, and to the investigation; he had no information regarding Pye’s performance on the job.

The court's decision shows the employer made a critical error.  "There is no evidence that NuAire had any concerns regarding Pye’s performance before he engaged in protected conduct.  Indeed, Peters acknowledged that he had no information regarding Pye’s work performance when he made the decision to terminate him."  This led the court to hold that, if Pye's version was true, a jury could "believe that NuAire’s assertions of intimidation, coercion, and threatening behavior were pretext for -- if not further evidence of -- NuAire’s true prohibited reason for Pye’s termination."

Making false accusation of racial misconduct is not protected any more than are using those false accusations in an attempt to shake down an employer.  Even so, the standard, as I said in a prior post about a decision from this same court, is very high.  Most of the time, the employer's decision will have to be defended to a jury.  The employer could hopefully have saved itself some grief and expense by consulting with an attorney before firing Pye.  

Given this post's title, I suppose I should say what I would have recommended had I been called after the meeting.  In a situation like this, I would have recommended the employer document the statements made at the meeting in a memo to the employee.  I would ask the employee to confirm that the memo is accurate or get the employee's version of events (in writing, if possible).  Only then would I make a decision about whether to fire or otherwise discipline the employee for making threats.  A little patience goes a long way.  (And yes, I realize the title is self-serving and hope it is taken with the humor in which it is intended.)

Pending Tennessee Legislation would Overturn Summary Judgment Rulings of the Supreme Court

A bill pending in the General Assembly would effectively reverse several decisions of the Tennessee Supreme Court that have all but made it impossible for an employer to get an employment lawsuit dismissed without a jury trial.

The bill would add a new provision to the Tennessee code which would say:

In all motions for summary judgment in any civil action in Tennessee, the moving party shall prevail on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or
(2) Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.

One sponsor of the bill explained (in the House Judiciary Subcommittee - see video of the session from April 27, 2011, set out below) the purpose of the bill was to addresses the Supreme Court's 2008 decision in Hannan v Alltel Pub where the Tennessee Supreme Court changed how they applied rule 56 and made a wrong or incorrect decision which makes it almost impossible for a court to grant summary judgment by requiring a party to essentially prove a negative.

A prior post of mine criticized the Supreme Court's "deeply flawed" application of the Hannan decision after it issued the decision in Gossett v. Tractor Supply, which held that the method of analyzing discrimination claims adopted in the U.S. Supreme Court's decisions in McDonnell Douglas / Burdine (an explanation of what these decisions held was included in my prior post) did not apply to summary judgment motions under state law because they were inconsistent with the Hannan decision.

Not surprisingly, the Tennessee Employment Lawyers Association (a group of lawyers that represent employees) opposes the bill, saying it would let employment lawsuits be dismissed without given employees the opportunity to respond.  Their arguments (to the House Judiciary Subcommittee) were poorly founded and were sharply challenged by the bill's sponsor.  The fact that TELA spoke against this bill should tell Tennessee Employers all they need about whether to get behind this bill. Here is a video of the most recent subcommittee discussion about the proposed legislation:

Interestingly, a separate bill (House Bill 1641, by the same sponsor) would directly overturn the Supreme Court's decision in Gossett by adding a provision to the code which specifies that McDonnell Douglas / Burdine principles would apply to claims under the Tennessee Human Rights Act and claims for retaliatory discharge.  I am quite sure that TELA opposes this bill, as well.

Court Holds an Employer's Prior Leniency Doesn't Create Inference of Pretext

The federal court of appeals that sits in Denver issued a rather interesting race and retaliation decision today in the case of Wythe Crowe v. ADT.  Numerous complaints of harassment and improper conduct had been made against the employee (he, in turn, had complained about racial bias in promotions).  The employee was a minority, however, and the implication in the decision was that ADT, the employer, had been too lenient towards him because he was a minority.  After one more complaint of harassment, an HR manager wrote a report, which relied upon complaints against Crowe that occurred well before and after Crowe complained about promotion bias.  (The report's conclusion is worth setting out as it reflects a frustration many HR Managers feel): 

 [W]hy have we allowed Wythe to treat management and specifically, women in positions of power, with such disrespect? Why did ADT continue to try to appease this person and not support or protect our management team from this type of harassing and disrespectful abuse?  This behavior is against the law at any company in this country.  Why do we allow it here at ADT?  If Heather England took this case to the EEOC or to court, ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.

. . . .

The ramifications of not terminating Wythe Crowe could be huge! Think about this: What if a white male exhibits the same harassing, insubordinate, discriminatory, and disrespectful behavior as Wythe has done over the years.  If we decide to fire this person, we have now set ourselves up for a reverse discrimination lawsuit.  For that matter, since we have allowed Wythe to exhibit this type of behavior for many years, it does not matter whether the next person  is white, yellow, or pink, we are setting ourselves up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.

(The court rejected Crowe's argument that this report was itself evidence of bias.)  What was most interesting was, when it came to the retaliation claim, the court rejected the employee's argument that the employer's history of being lenient towards him itself raises an inference of pretext:

Accepting Mr. Crowe’s argument would have the peculiar result of penalizing employers which, like ADT did in this case, attempt to rectify alleged inappropriate behavior instead of immediately terminating an employee upon the first transgression. Indeed, Mr. Crowe’s argument effectively inverts an employer’s incentives—if two employees engage in the same protected behavior, terminating the employee with a longer, more extensive history of serious complaints would invite litigation, while terminating the employee with a shorter, less extensive history of minor complaints would not entail that risk. In sum, ADT’s prior leniency with Mr. Crowe, without more, does not constitute evidence from which a reasonable jury could conclude that firing Mr. Crowe based on his long history of alleged in appropriate behavior was pretextual.

The idea isn't unprecedented.  Years ago, the federal court of appeals in Chicago stated essentially the same thing when it said, "we cannot vilify every employer that exercises caution in the handling of delicate employment situations." Vore v. Indiana Bell, 32 F.3d 1161 (7th Cir. 1994).

No doubt, it is always better to be as even handed as possible in imposing disciplinary action but in today's costly litigation climate, the decision preserves some flexibilty for cautious employers.

Avoiding the Claim of Selective Investigations of Employees

There is an interesting decision from the federal court of appeals in St. Louis discussing the theory that selective investigations of employees who are in protected groups can provide evidence of pretext.  The idea behind the theory is that investigating a member of the protected group but not non-members shows the decision maker is searching for a reason to impose discipline. 

To give an example, one cited in the decision, evidence that an employer required more extensive documentation of pregnant employee’s medical appointments than those of non-pregnant employees, in addition to employer’s comments, supports the jury’s finding of pregnancy discrimination.  

The employer in the appeal, however, avoided harm.  The allegedly selective enforcement was the viewing of a store's surveillance video shortly after the employee (the store supervisor) requested not to work a shift due to her pregnancy.  The evidence showed that area managers regularly reviewed surveillance videos.  In addition, the court further held that any question about why the manager reviewed the surveillance video was not material given the sound reasons for the supervisor's discharge (which the manager consistently enforced).

The decision whether to investigate often can't be objectively defined (though here, a showing of a standard practice helped).  The factual scenarios are simply to varied.  Even so, employers should nevertheless consistently investigate reports of misconduct once it comes to their attention.

Here is a link to the pregnancy discrimination decision in Weirman v. Casey's General Stores

Proximate Cause and Independent Investigations

At some point, I'll tidy up prior posts in this blog that may or may not be helpful in light of the Supreme Court's decision in Staub v. Proctor Hospital.  There, the Supreme Court rejected the "hard and fast" rule that an "independent investigation" could automatically eliminate alleged bias by a non-decision-maker who provided information that was relied upon in the adverse employment action.  To quote the decision:

As we have already acknowledged, the requirement that the biased supervisor’s action be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. See, e.g., Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006); Sosa, supra, at 703. Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that),then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

But what is meant by "the traditional tort-law concept of proximate cause?"  To be honest, its use here seems out of place as it is a doctrine meant to relieve a remote tortfeasor (the person that is alleged to have caused harm to another) from liability.  Since employers, not biased supervisors, are liable for unlawful discrimination, using proximate cause to affect an employer' liability seems backwards.  The Court was not, we must assume, addressing the "traditional" effect of a proximate cause analysis but using it to illustrate the ultimate point, that the employer needs to show (and in some cases, such as USERRA, prove) that the supervisor's bias was not "a" cause of the employer's decision.

So what is proximate cause? This discussion of proximate cause is from a court of appeals decision (not in the employment discrimination field but a suit by shareholders against a corporations directors alleging a breach of the duty of loyalty) issued today:

The term “proximate cause” is pervasive in American tort law, but that doesn’t mean it’s well understood. A common definition is that there must be proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 989 (2010), quoting Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). But “direct” is no more illuminating than “proximate.” Both are metaphors rather than definitions. What the courts are trying to do by intoning these words is to focus attention on whether the particular contribution that the defendant made to the injury for which the plaintiff has sued him resulted from conduct that we want to deter or punish by imposing liability, as in the famous case of Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) (Cardozo, C.J.). The plaintiff was injured when a heavy metal scale collapsed on the railroad platform on which she was standing. The scale had buckled from damage caused by fireworks dropped by a passenger trying, with the aid of a conductor, to board a moving train at some distance from the scale. She sued the railroad; it would have been unthinkable for her to sue the scale’s manufacturer, even though if heavy metal scales did not exist she would not have been injured. No one would think the scale’s manufacturer should be liable, because no one would think that tort law should try to encourage manufacturers of scales to take steps to prevent the kind of accident that befell Mrs. Palsgraf. The railroad was a more plausible defendant; its conductor had tugged the passenger aboard while the train was already moving. But how could he have foreseen that his act would have triggered an explosion, as distinct from a possible injury to the boarder? If an accident is so freakish as to be unforeseeable, liability is unlikely to have a deterrent effect.

Coming closer to our case, the defendants cite our decision in Movitz v. First National Bank of Chicago, 148 F.3d 760 (7th Cir. 1998). The plaintiff had bought a building in Houston in reliance on what he claimed was the defendant’s misrepresentation of its value. Had it not been for the misrepresentation he would not have bought it. Shortly after the purchase the Houston real estate market collapsed and his investment was wiped out. The misrepresentation had not caused that collapse but it had been a cause of the plaintiff’s buying the building and thus had contributed to his loss. Yet we ruled, without using the term “proximate cause,” that he could not recover from the defendant because (among other reasons) that would produce overdeterrence by making the defendant an insurer of conditions that he could not control. Id. at 763. That would be as futile as making the manufacturer of the scale an insurer of Mrs. Palsgraf’s loss.

Proximate cause does not mean "but for."  Each of the examples the court of appeals gave could be "but for" causes of the perils described.  It means too remote

There is a lot to be said about the decision in Staub but for now, employers should continue to investigate allegations of employee misconduct only they should be sure to establish that information from an allegedly  biased (assuming that fact is asserted to begin with) should be independently corroborated so that the supervisor's alleged bias is as remote to the decision as possible.

6th Circuit Rejects ADA Claim from Poor Performing State Employee

In a published (and therefore binding precedent) decision issued today, the Sixth Circuit upheld the poor performance-based firing of an individual with a disability by Tennessee Department of Mental Health and Developmental Disabilities.  The interesting thing about the decision is that the employee (named Whitfield) blamed some, but not all, of her performance issues on her disability and the Department's failure to "successfully" accommodate them.  The court rejected this approach saying:

Although Whitfield attributes her spelling errors to a lack of spell check in the computer program used to input complaints, she made serious spelling and grammatical errors even in programs that had a spell-check feature. In December 2007, nearly three months into her employment, Whitfield neglected to enter the required county on numerous inspection forms and, on another form, entered the wrong county. And although she had difficulties using her computer due to her disability, she also made errors in assignments that were not performed on a computer, such as organizing files alphabetically. On other occasions, she mailed letters without zip codes or complete addresses. Many of Whitfield’s errors can be attributed to nothing more than  Whitfield’s lack of attention to detail, and Whitfield admitted as much in her deposition, stating that she “just wasn’t looking that close” when addressing mailings. At bottom, Whitfield routinely made serious errors that were unrelated to her disability or to a lack of accommodations.
In this context, Whitfield must do more than point to the facts that Defendants knew she was disabled and failed to provide all of her requested accommodations. Although these facts may help Whitfield establish her prima facie case of discrimination under the ADA, in order to survive Defendants’ motion for summary judgment, she needs to show that Defendants’ explanation for her termination could be deemed pretextual. Whitfield focuses only on the problems she had entering complaints into the computer, arguing that, if she had been given all the accommodations she requested, she would have not had the same problems, and, further, other employees made similar errors or were not required to enter complaints at all. Appellant’s Br. at 18–21. Although Whitfield succeeds in creating a genuine issue as to whether she could have adequately performed that particular function with the proper accommodations, she does not address the serious errors she routinely made while performing tasks that were not at all impacted by her disabilities, such as confirming that an envelope has a zip code before dropping it in the mail. Because Whitfield does not create a genuine issue of material fact as to whether she was fired due to her disability, summary judgment in Defendants’ favor was proper.

The holding let the court avoid addressing whether the Department had failed to reasonably accommodate the employee.  The Department had made several attempts to accommodate her but there were technological limitations that the IT employees could not overcome relating to placement of her monitor and the use of a one-handed  keyboard.

Employers must still make reasonable accommodations, of course, but this decision provides reassurance that an employer may terminate a disabled employee for poor performance, especially where the performance issues are not caused by the disability.  Terminations for performance issues that are caused by a disability require more thought but even the EEOC acknowledges that employees with a disability may be held to the same performance standards as other employees so long as the employee is provided the reasonable accommodations "required to assist an employee in meeting a specific production standard."

Another aspect of the decision is worth mentioning.  The court expressly rejected the employee's argument that all she needed to do to get to a jury was to establish a prima facie case.  Given it is very easy to establish a prima facie case, that provides employer with greater security when dealing with employee performance problems.

Get Your Story Straight Before Taking Action

A decision released today from the Sixth Circuit illustrates that Tennessee employers need to get their story straight before firing an employee. 

Brookdale Senior Living, Inc. is, its website says, the nation’s largest owner and operator of senior living communities throughout the United States and a leading national provider of senior-related services. The plaintiff, David Eades was a Regional Director of Start-up Operations.  Eads thought his new supervisor harassed and degraded him because of his age (he was in his early 40s).  Eads complained about it to HR and later to the company president.  Eads and the company discussed a severance package and Eads was sent home with the assurance that he was not fired.  Eads later learned his supervisor was telling folks he had been fired and he could no longer access his email from outside of work.  

The court of appeals held Eads was entitled to a jury trial.  The problem for Brookdale was that, as the court said it was "advancing different reasons in its brief on appeal than it represented to the district court."  Even worse, Brookdale's assertions in the litigation were not the same as those it made in response to Eads EEOC charge.  Brookdale's in house counsel said in the response that Eads had been terminated for "lack of any performance in any position."  This answer was so far wrong that Brookdale's brief on appeal "explicitly denies having terminated Eades for performance issues" saying its counsel had made a mistake. As the court said, however, "Brookdale offers no evidence that either one suggested that the response was erroneous, nor does it explain how its Senior Vice President for Legal Services made such a 'mistake.'"

The inconsistency with the EEOC response was not the only problem. Brookdale's lawyers appear to have put to much "spin" on the severance discussions. They asserted that Eads said "he could not work with [his supervisor] and that he wanted a severance package, but this position is inconsistent with the record testimony of the attendees of that meeting."

The problem with Brookdale's case wasn't simply that it gave unsupported reasons for firing Eads.  Any one of the reasons Brookdale advance might have valid ones (had the facts been in support).  But when employer  and employer asserts different and inconsistent reasons for a decision, that is itself evidence of pretext, as the court said: “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”  

In practice, there will be some debate as to what amounts to a "changing rationale."  Courts rightly look to whether the changing reasons are inconsistent, not merely changing.  For example, courts recognize that expanding on a reason already advanced does not ordinarily amount to taking an inconsistent position.  Here, however, Brookdale's assertion to the EEOC that performance was the sole reason for firing Eads could not be reconciled with its position in the litigation.  

By now, the lesson is obvious.  Before taking any employment action, employers need to investigate the  facts and make sure the explanation given at the start is something the employer can live with if litigation ensues.

Avoiding Pretext - Job Descriptions and EEOC Responses

A federal court of appeals recently upheld a jury verdict for an employee in an age discrimination claim.  The decision shows what happens when an employer explains a hiring or promotion decision by relying on a criteria not mentioned in the vacancy announcement.

National American University was hiring a director of admissions for its Rapid City, South Dakota campus.  The employee worked for the university and sought the promotion.  She was one of three finalists but was not offered the job when the two preferred candidates declined it.  Instead, the university broadened its search ultimately offering the job to a substantially younger candidate.

At trial, the University explained its refusal to promote the plaintiff on the ground that she lacked management experience.  While a director of admissions would seemingly need "management experience" the position vacancy announcements failed to mention it.

Worse, in its EEOC response, the University asserted the employee had "struggled" with her performance and had received "mediocre" ratings.  Yet, at trial, the University abandoned this explanation and its witnesses praised the employee's performance.

The lessons from the decision are pretty basic.  Make sure hiring or promotion decisions can be and are explained by reference to criteria stated in the job description.  While employers are not rigidly bound by what is in the position vacancy, it is a mistake to explain a promotion decision by citing criteria that are not in the job description.

The decision also illustrates the importance of making sure the response to an EEOC charge will be the reason asserted at trial.  It is often tempting, in responding to an EEOC charge, to "embellish" by asserting problems the employer had with the employee, even if the problems were not considered in reaching the decision at issue. If that is what the University did here, it backfired

Why Evaluations Must be Consistent

When I give talks and write about conducting reductions in force, I emphasize that current evaluations of an employee's performance (assuming performance is a factor in the layoff decision) must be consistent with the employee's past evaluations. No doubt, even good employees are laid off in a RIF but when the reason for the RIF evaluation is inconsistent with the prior evaluations, the employee has a much easier time in showing the RIF selection is pretextual.

An age discrimination decision involving the former Boeing commercial aircraft assembly plant in Kansas provides an example of the problem. Boeing sold the commercial manufacturing plant to a company that became known as Spirit Aerosystems. Spirit didn't have its own employees and didn't want to hire wholesale the existing crop of Boeing employees so it relied upon performance evaluations by Boeing managers. One of the employees ("Woods") who wasn't hired by Spirit sued Boeing and Spirit.

In his last annual performance evaluation before the sale, Woods received "met all expectations" ratings in all categories. The supervisor noted there had been few errors in Wood's work areas and that he had "performed well." In comparison to the others within Woods' group, his rating was the same as two workers, but not as good as two other workers.

Before Spirit took over, it asked the Boeing managers to review the employees and make recommendations regarding who should be hired. Woods was not hired but three employees in his job classification were (this is why it is significant that Woods rating was the same as two others workers, one of whom was hired by Spirit). This time, Woods' performance was described as "limited skills/low quality/ low productivity/marginal teaming abilities." Explaining this, the manager said that Woods didn't know how to use the software as well as the others and that he rated Woods quality as low because of Woods' failure to detect several errors in products he had checked. Of course, Woods was the oldest of the three employees (Woods included) who had scored "met all expectations" on the annual evaluation and Spirit hired the youngest of these three.

This was a close case. Whether or the decision is correct, the reason the court of appeals held a trial was necessary was because of the inconsistencies between the ratings on the annual evaluation and the evaluation prepared for Spirit.

And, to echo what I said in a prior post, employers need to realize, whatever is said by the ill-informed news media, that Gross v. FBL Financial doesn't make it easier to discriminate against older workers.

Short Post - Proving Pretext in Comparing Physical Restrictions

Friday, the Seventh Circuit issued an interesting decision involving a Title VII race-based challenge to an employer's decision to terminate an employee who returned to work with a 25 pound lifting restriction.

The employee didn't seriously challenge the decision under the Americans with Disabilities Act. Instead, he claimed the termination was wrong because other white employees with supposedly lesser restrictions were given jobs he felt he should have been awarded. The argument failed because the employee's evidence failed to provide enough details about the restrictions on the other two employees. That was enough to sink the lawsuit.

The decision, however, is a good reminder for employers that the ADA is not the only means employees have of challenging an employer's decision that it cannot accommodate an employee's restriction. Even here, the court emphasized, race discrimination is not established merely because the imposed restriction was not accurate.

Why Should You Acurately Document Performance Problems?

Today's decision of the court of appeals in Chicago points to the benefit of accurately documenting performance difficulities of employees, especially new employees.

As city in southern Illinois hired a jailer who, after some months on the job, got a mixed performance review. She did somethings OK, but the employer documented her slow work and lack of attention to detail were areas for improvement. She later complained about sexual harassment by a co-worker, her complaints were investigated, but her performance continued to lag. The employer called a meeting with her to discuss the performance. She brought a tape recorder to the meeting to surreptitiously record it, which under Illinois law constitutes a felony (unlike Tennessee law). The employer found out, had her house searched and the employee arrested when the tape was found.

The employee initially argued that she recorded the meeting to get evidence for her harassment suit and because the city admitted it had her arrested for illegally taping the meeting, the city effective admitted retaliating against her. The court turned this argument away as resting "upon a transparently overbroad view of the scope of the statute’s protection" because Title VII "does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination."

The employee next argued that the city criticized her performance after she complained, which showed, supposedly, bias against her. The court rejected this as well because the documented evidence was that the post-complaints performance criticisms were consistent with the critical evaluations made before she ever complained. That by itself, the court said, undermined any inference that her complaint and termination were related or that the employer's critiques of her performance were not genuine.

Employers hear the mantra of documentation alot and this case shows why. It is well understood that even valid complaints about an employee's performance can nevertheless be seen as pretextual if the employer ignores them until after the employee complains. In representing employers, we argue the employer's honest belief is what matters. It is hard to make this point effectively when the employer overlooks conduct that it would have otherwise had every right to criticize. It also mattered, in this case, that the employer did not "heap" more criticism on the employee after she complained. It did the smart thing and kept documenting the same performance difficulties noted before she complained.

Of course, this case also shows that an employer does not have to ignore, post-complaint misconduct at pain of being held liable for a retaliation claim. The employee's violation of the Illinois eavesdropping statute hadn't happened before her harassment complaint so, without evidence that this was dishonest, there was no reason the employer had to ignore this violation simply it arose after the employee complained.

Had the city employer not documented the performance issues before the employee complained about harassing conduct, the case might have come out differently. What may be also helpful to note is that the documentation was not elaborate. It simply listed the areas where the employee needed improvement. It takes something, in other words, but it doesn't take much.