Employer Avoids Liability by Showing Employee’s Documented Performance Issues

Showing that employees who make complaints of unlawful discrimination and retaliation can still be held accountable for their performance, the Sixth Circuit Court of Appeals dismissed a terminated employee’s discrimination and retaliation lawsuit. McKinley v. Skyline Chili, Inc. (6th Cir. 2013).

Skyline Chili terminated Mary McKinley December 1, 2010, after investigating a complaint from her subordinate that she had mishandled the subordinate’s promotion. McKinley’s supervisor, regional vice president Deborah Chitwood, made the decision to terminate. 

Skyline had documented performance problems in McKinley’s performance appraisal and had documentation of several previous performance discussions with her. After one such discussion in May 2010, McKinley complained to director of human resources Sheri Bleuer that Chitwood was only holding her accountable, but not younger employees and male employees. McKinley claimed that Bleuer told her “it wasn’t a good idea to go up against Debi Chitwood.” Bleuer did not inform Chitwood of McKinley’s complaint.

After her discharge, McKinley sued alleging sex and age discrimination and unlawful retaliation. The Sixth Circuit dismissed the case because McKinley had not shown that her dismissal for poor performance was a pretext for unlawful discrimination or retaliation. The court based its decision on evidence including that McKinley did not complain until six months prior to her discharge and that Chitwood was not aware of McKinley’s complaint at the time of the termination decision.

This case emphasizes the need for employers to address employee performance issues as they occur and to document their efforts. Such documentation is strong evidence in subsequent legal challenges.