It is so critical for employers and management to document employee performance issues to combat baseless discrimination and retaliation claims when poor performing employees are terminated. Too often, employers do not document performance problems (or do so too late), which creates major issues when the employee later claims he or she was fired due to some discriminatory or other unlawful reason.

A recent case out of the Southern District of New York perfectly demonstrates why documenting issues is so important. In Sparks v. The New York Times Co., Sparks claimed he was fired by the New York Times after he took parental leave under the Family Medical Leave Act (FMLA) and brought claims for discrimination and retaliation under federal and New York state and city laws.

Fortunately for the Times, it had procedures in place to document performance issues and followed through on those procedures. Specifically here, the Times conducted annual performance reviews and, although Sparks performed well early in his tenure at the Times, in 2022, his annual review reflected a poor performance score with issues like “disengaged in meetings,” “failed to take accountability,” and “was difficult to obtain critical information.”

The Times subsequently put Sparks on a performance improvement plan (PIP) and warned him that even if he completed the PIP, which was temporary, he’d still be subject to discipline and possible termination if he could not sustain the performance. After initiating the PIP, Sparks reported that his wife was pregnant and that he’d be taking leave later in the year. Although Sparks’ performance improved under the PIP, he failed to coordinate a major project he was working on before he left for his FMLA leave and further botched the project when he returned. This was all documented and ultimately was the basis for his termination following the documented history of prior performance issues.

With that backdrop, the Times was able to prevail on summary judgment in court and get the case dismissed. The Court held that Sparks’ termination was not pretextual in that he had ongoing performance issues both before and after his parental leave. The Court also found no evidence that the Times had taken any adverse action against Sparks due to his leave and had actually accommodated his request to go on a “baby moon” while he was still undertaking his PIP.

In short, the fact that the Times followed its procedures and documented Sparks’ poor performance history before any leave announcement was made saved the day here. Without the documented history, this case would be going to trial, where it could have gone either way or there likely would have been a significant settlement. Business owners, management, and HR departments should take note.