It probably comes as no surprise that documentation, or the lack thereof, can play a critical role in matters that lead to litigation.  An example of how a lack of documentation, combined with a delay in acting upon a decision, can have a negative impact on an employer’s defense is reflected in Linhart v. Zitelli & Broadland P.C., a recent decision by the federal district court for the Western District of Pennsylvania.

Steven Linhart, a technician in training at a medical practice specializing in dermatology, sued his employer for wrongful termination in violation of the Americans with Disabilities Act (“ADA”).  Linhart, who spent approximately two months working at the medical practice, claims that he was discharged because of a medical condition that led to him informing his employer mere hours before being fired that he had to undergo hip replacement surgery. 

Seeking to dismiss the case, the employer claimed that Linhart was fired because of poor work performance.  According to the employer, Linhart had a bad attitude, seemed disinterested in learning histopathology, did not spend enough time practicing his job, consistently produced a poor work product, and broke certain work rules.  Unfortunately, the employer never documented Linhart’s problems.

According to the employer, in mid-August 2008, a meeting was held to discuss Linhart’s future in light of his work-related struggles.  Linhart was not present at this meeting, and no documentation was created to confirm the substance of the meeting, or even that the meeting actually took place.  It was decided that Linhart would be discharged on the afternoon of August 20, 2008, as mornings were typically very busy.  

On August 19, 2008, Linhart was diagnosed with avascular necrosis and advised that he would need hip replacement surgery.  On the morning of August 20, 2008, Linhart allegedly told his immediate supervisor and Dr. John Zitelli, one of the founding physicians of the practice, that he had to undergo hip replacement surgery.  According to Linhart, his immediate supervisor was supportive, while Zitelli said nothing to him, instead turning in disgust and walking away.  Zitelli denied that Linhart said anything about a need for surgery.  That afternoon, Linhart was fired.  At the discharge meeting, Zitelli informed Linhart that he was not catching on and the decision had been made to terminate his employment.  According to Linhart, he was not given a reason for the decision; rather, he was told that he “was not a good long-term investment.”  His medical problems were not mentioned during the meeting.    

 The employer’s primary argument for dismissal of the case was that the discharge decision was made at a meeting held one or two days prior to when Linhart disclosed that he had avascular necrosis and was in need of hip surgery.  With that in mind, the employer argued that it could not have discriminated against Linhart because it made the decision to terminate his employment before it knew about his condition.   In denying the employer’s motion, the district court determined that Linhart had presented sufficient evidence from which a reasonable jury could discredit the employer’s reasons for the discharge decision and could doubt that the discharge decision was made prior to Linhart disclosing his ailment. 

Importantly, the court noted that there was no written documentation confirming the existence of the August meeting or the substance of what was discussed at the meeting.  Apparently, there was also no documentation of Linhart being disciplined or counseled for any work-related reason.  In fact, considering Linhart’s testimony that he was never formally disciplined, verbally or otherwise, the court found that there was a material dispute with regard to the employer’s reason for firing Linhart.

Now, the lesson learned: if you have an employee who is a poor performer, or perhaps even a malcontent, take the necessary disciplinary steps to promptly correct the performance and/or attitude issues.  And of course, document the work-related concerns and the disciplinary steps taken in response to those concerns. 

In addition, act quickly when dealing with problematic employees.  This is not to suggest that the employer in Linhart was unreasonable in employing the plaintiff for approximately two months before firing him.  The amount of time and training necessary for a new employee to learn how to properly perform his or her job functions can obviously vary from job to job.  However, if you have an employee whom you believe simply is not going to work out, waiting is not the answer.  The difference between waiting to take action and acting promptly can be the difference between firing or disciplining an underperforming employee and firing or disciplining an underperforming employee who has just placed you on notice of his or her disability.

Matt Hansberry focuses his practice in the areas of employment litigation and ski-industry defense. Mr. Hansberry has defended companies and management in both federal court and state court cases. He has also defended employers before the West Virginia Human Rights Commission.
» See more articles by Matthew B. Hansberry
» Read the full biography of Matthew B. Hansberry at Steptoe & Johnson

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