HR professionals are well aware of the need to contemporaneously document employee performance problems and of the related mantra, "if it is not documented, it never occurred." Just as important, however, is the need to preserve that documentation once HR is on notice of the terminated employee's intent to pursue a discrimination, retaliation or other claim.

In Kean v Brinker International, a 59 year old restaurant manager at Brinker's 2nd most profitable regional restaurant was terminated for creating a toxic culture, mistreating employees and customers and "not living the Chili's way." Kean was replaced by a 33 year-old employee with no management experience. The termination decision followed two employee complaints about Kean - one of which was never investigated or confirmed, and the other of which was determined to be baseless. While other complaints about Kean surfaced during the termination process, they were never documented. The day after he was terminated, Kean notified Brinker that he would be hiring an attorney to pursue an age discrimination claim. Shortly, thereafter, someone at Brinker created a report summarizing the reasons for Kean's termination and the internal email traffic discussing those reasons. However, no effort was made - at that time - to preserve those emails, the underlying complaints against Kean, his performance reviews or anything else related to his termination. As a result, when Kean filed suit, the underlying emails, performance reviews, etc. referenced in the report had been destroyed in the normal course of business. Further, since no one involved in Kean's termination could recall anything about the reasons for or circumstances of his termination, Brinker was forced to rely on the report as its sole support for its legitimate, non-discriminatory reasons for his termination. The problem: the report had no known author, no one recalled participating in its creation or even discussing the report, no one had any personal knowledge of its contents and no one could testify that it was created in the normal course of business (thus, that it was a business record) since Brinker's 30(b)(6) witness had never seen such a report before. The result: the report was deemed inadmissible, leaving Brinker with no evidence supporting its claim of a non-discriminatory reason for Kean's termination; summary judgment for Brinker was reversed; and the case was remanded to the trial court for, among other things, a determination of sanctions to be entered against Brinker for failure to preserve relevant evidence.

Take-aways: (1) confirm the veracity of complaints before you rely on them to support a termination or disciplinary decision; (2) hold decision makers accountable for their decisions and the ability to recall the reasons for those decisions; (3) do not wait for a charge of discrimination or lawsuit to be filed before undertaking preservation efforts; (4) immediately preserve (in coordination with your IT department) personnel files, complaints, emails and other materials supporting a termination or disciplinary decision, once you can reasonably anticipate litigation - which, in this case, was when Kean said he was hiring an attorney; and (5) implement a uniform document retention policy with specific reference to HR decisions which can reasonably be anticipated to result in litigation.

Article Written By: Kelly Kolb, Esq. Buchanan Ingersoll & Rooney, PC