As labor and employment attorneys, we often sound like broken records in counselling our clients on the importance of documenting the performance deficiencies of poor performing employees. It cannot be overstated how compelling strong and contemporaneous documentation can be to demonstrate the actual reason an employer disciplines, demotes or terminates an employee who is not performing to the employer’s legitimate expectations. A recent lawsuit filed by a former African American principal at the Oak Creek-Franklin Joint School District provides another vivid illustration.
The plaintiff was a previous principal at one of the elementary schools within the school district. Following her removal from her position, she filed a lawsuit in U.S. Court for the Eastern District of Wisconsin claiming that her removal from the district was motivated by her race, as well as in retaliation for her opposing discrimination in the workplace and raising concerns that she claimed were protected by the free speech guarantees of the First Amendment. While the federal district judge dismissed her race discrimination claim prior to trial, her claims of unlawful retaliation under both Title VII and the First Amendment were tried to a jury earlier this week.
At trial, Oyvind Wistrom represented the school district. Using the district’s detailed and contemporaneous documentation of the performance concerns, we were able to successfully show the jury that her complaints of discrimination and protected speech were not the reasons for the principal’s removal. We showed that her removal would have occurred regardless of her complaints and protected speech. After more than two days of testimony, it took the jury less than one hour to determine that the school district was justified in taking the steps it took to remove the principal. The successful defense of this case could not have happened without the testimony of several key district employees and the presence of clear and contemporaneous performance documentation by the school district.