Part of our standard advice to nearly every client is "document, document, document." Typically, robust and timely documentation ensures that an employer has strong evidence of its legitimate rationale for making employment decisions. These documents inevitably become crucial to defend the company against any subsequent claims of discrimination or retaliation. A recent case from the Tenth Circuit Court of Appeals presents the unusual situation where documentation went too far and over-analysis actually undercut the employer’s defense. 

In Walkingstick Dixon v. Oklahoma, the Tenth Circuit overturned summary judgment for the employer on an employee’s claim for Title VII discrimination and retaliation. The court reasoned that while the employer had produced the legitimate, nondiscriminatory reason for termination by citing "poor job performance and...improper timekeeping," the employee had raised a genuine dispute regarding whether that rationale was pretextual. Specifically, the court cited two sets of notes taken by the employer’s human resources director. In one set of notes, the director considered whether the plaintiff qualified as a "key employee" who did not need to be reinstated following FMLA leave. Three weeks later, in a second set of notes, the HR director wrote down a number of different possible reasons to terminate the plaintiff, many of which were not later cited in her termination letter. Ultimately, the court held that "[a] reasonable juror could infer from these notes that [the employer] was grasping for reasons to fire [the plaintiff]."  

How can an employer avoid having its own documentation turned against it? 

• Stick to the facts and avoid writing notes about deliberations that may be misconstrued or misunderstood at a later point in time. 
   
• Ensure that notes accurately reflect the issues being considered and reasons for taking action. It is very possible that the HR director in this case was considering legitimate issues that could have support termination and had good faith reasons for not including those items in a termination letter. However, none of those deliberations were evident on the notes themselves.  
   
• Involve counsel to assist with challenging situations. Communications with counsel to seek legal advice are generally protected by the attorney-client privilege and therefore not subject to later discovery.

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