The 10th Circuit in Brown v. Scriptpro, LLC, published November 28, 2012, addressed the importance of evaluations that identify specific performance issues.  Mr. Brown worked at Scriptpro, a company that makes and sells automated prescription drug dispensing systems.  He received an annual evaluation for the 2007-08 year that contained both positive assessments as well as assessments indicating the need for improvement specific areas.  The areas for improvement contained a narrative that detailed specific issues such as “being aware of personal boundaries at work” with several specific examples giving rise to the assessment, such as “arguing loudly with his wife on the phone” that made co-workers uncomfortable.  Subsequently, the employer documents several instances of poor performance.

Several months after the evaluation, Mr. Brown asked for and received FMLA time off due to the birth of his second child.  He claimed he had an arrangement with his prior supervisors that he could work from home to bank some of the time to use later and that he had done so when he took his leave.  He wanted to use some of this “banked time” to attend his wife’s doctor’s appointment.  Mr. Brown got into a shouting match with his current supervisor when he refused to allow this arrangement.  Shortly thereafter, Mr. Brown was terminated for unresolved previously discussed performance issues.

Mr. Brown sued his employer claiming that Scriptpro interfered with his right to take FMLA leave and that terminated him in retaliation for the exercise of that right.  Scriptpro defended against these claims by demonstrating that Mr. Brown would have been terminated anyway.  They pointed to the “unfavorable feedback in his … performance review, particularly in regard to his relationships with co-workers.”  The court noted the written comments regarding the very specific deficiencies in his work and found that this, and other documented deficiencies was very strong evidence of the employer’s dissatisfaction with Brown’s performance.  The court noted that even though Brown disputed these assessments, the employee’s personal evaluation did not trump the employer’s assessment.  The court also found the written specific performance deficiencies sufficient to defeat Brown’s claim of retaliation for taking his FMLA leave.

This case demonstrates the importance of using specific examples of performance deficiencies in evaluations.  Even though Brown had received positive assessments in other areas, the employer’s assessment of “needs improvement” in others, as well as citing to several specific examples of the behavior giving rise to the assessment, was sufficient to establish a legitimate business reason for the action.  As a result, the employer was able to obtain summary judgment against the claims of interference with FMLA rights and retaliation.

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