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  • Writer's picturePavan Khoobchandani

Is There A Risk In Telling Fables To Your Employees? Not Always.

The United States Court of Appeal for the Fourth Circuit recently affirmed a trial court's granting of summary judgment to Virginia's Fairfax County Public Schools in an employment lawsuit.

The plaintiff in the case, an HR employee that worked for FCPS, alleged that she was discriminated and retaliated against because of her race and national origin. The trial court dismissed the case, holding that there was a well-documented "clear and long train of frustration" with the plaintiff's performance.

Note before we get to fables: employers are often frustrated when their attorneys tell them that there is not enough documentation in an employee's file to support termination. "They're bringing the whole team down," "My operations cannot support such a poor performer," and "I'll have a real engagement issue if I don't fire this person right now" are lines we often hear. This case highlights why good documentation is important and protects your company.

The allegations made by the plaintiff were that she was subject to a hostile work environment because FCPS closely monitored her conduct and activities, criticized her performance, put her on a PIP, reassigned her job duties, revoked her telework privileges, and changed her schedule. She alleges that she was fired for complaining about the alleged discrimination.

One of her claims was that her supervisor shared the Aesop fable "The Eagle, The Cat, and The Sow" at a staff meeting in an effort to pressure her to drop her complaint about the alleged discrimination and retaliation. To me, there's a real stretch there but maybe the employee gleaned a deeper meaning from the fable than I was able to.

The court reviewed all the allegations of the plaintiff, as well as the extensive documentation of FCPS detailing the poor performance of the plaintiff and the efforts to improve her performance including a PIP and counselings.

A key factor in the court's decision to dismiss the lawsuit was the fact that every decision made - including the revoking of teleworking privileges and the decision to terminate -was supported by reports, letters, investigation, and other documentation.

The evidence also demonstrates that FCSB's "growing dissatisfaction" with [the plaintiff's'] conduct and performance was based on reported, legitimate concerns from multiple co-workers, supervisors, principals, and other clients, many of whom were unaware of [her] protected activity. In sum, the evidence submitted demonstrates neither that FCSB's stated reasons were false nor that retaliation was the reason for the challenged conduct.

The takeaway:

Next time you are making an employment decision, think about whether you have documentation of a "clear and long train of frustration" with your employee's performance. If you do, it may not matter whether your managers recite fables!


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