patinoBy Nicole Patino

“I kept asking how I could improve, but my supervisor would never tell me what I was doing wrong, and when I was fired, it came out of the blue.”

It’s a complaint that we repeatedly hear as clients come into our offices, sure that they are victims of wrongful termination. They often point to positive performance evaluations and a lack of “write-ups” as evidence of their strong job performance. Some say that they only had a passing conversation with a manager regarding something that they could improve on. Often these employees are angry because they believe that they could have improved their performance had they just been given more indications of what they were doing wrong before they were terminated from their employment.

This complaint’s commonality was demonstrated in Heard-Leak v. N.C. State Univ. Ctr. for Urban Affairs (N.C. App., 2016), a recent unpublished case from the North Carolina Court of Appeals. Heard-Leak was an educational consultant with the North Carolina State University Center for Urban Affairs, responsible for reviewing statement testing and developing new and improved testing based on the statewide curriculum. Heard-Leak had worked under one supervisor from her initial hire in November 2008 until April 2013, when she was moved to another facility and began reporting to another direct manager, Shelia Brown. Brown met with Heard-Leak in April 2013, shortly after the move, to discuss her workplace expectations.

Brown apparently had concerns about Heard-Leak’s workplace performance and unexplained absences soon after her transfer, but waited until December 2013 to discuss those concerns with Heard-Leak during an interim performance appraisal meeting. Brown shared her concerns with Heard-Leak but did not write them on the interim performance appraisal. Brown additionally reduced the amount of Heard-Leak’s work assignments to help her meet performance expectations. In January, Brown reduced the amount of Heard-Leak’s work assignments even more. Heard-Leak failed to perform at even the reduced standards, and on April 29, 2014, she was given a Written Warning for Unsatisfactory Job Performance, which documented Heard-Leak’s failure to perform and several absences from work. Heard-Leak was placed on a Performance Improvement Plan at this time. On May 16, 2014, Heard-Leak argued that the goals on the PIP were unreasonable and they were modified. On July 15, 2014, Heard-Leak was given a Final Written Warning for Unsatisfactory Job Performance requiring immediate improvement in her work. Heard-Leak failed to improve her performance at work.

At the pre-dismissal conference on September 15, 2014, Heard-Leak admitted that she had not been meeting work expectations and presented no evidence to rebut the recommendation of dismissal for unsatisfactory work performance. On September 17, 2014, Heard-Leak received a Notice of Dismissal for Unsatisfactory Job Performance. She filed a grievance on November 19, 2014, alleging that her dismissal lacked just cause and was due to discrimination. Her dismissal was upheld.

Heard-Leak then filed a Petition for a Contested Case Hearing because she believed she was dismissed without just cause. At this hearing, her managers explained that they did not document all their concerns with Heard-Leak because they believed that they could resolve these issues through a discussion. Heard-Leak filed a Motion for Summary Judgment asserting noncompliance with N.C. Gen. Stat. § 126-35 because every reason that was used to determine her dismissal was not specifically detailed on her Notice of Dismissal for Unsatisfactory Job Performance. The ALJ granted the Motion because “considerable information concerning petitioner’s work history” was considered in the decision to terminate Heard-Leak’s employment, which went beyond the notice given to Heard-Leak.

The North Carolina Court of Appeals reversed the ALJ’s decision. The Court explained that while the statute does require employees to be provided with sufficient notice of the acts or omissions which were the basis for their dismissal, it does not require notice of every item pertaining to the acts or omissions.

While Heard-Leak was a State employee, this case is illustrative of the problems that are created when employers fail to provide regular feedback and documentation, whether in the public or private sector. Heard-Leak had clear performance issues and even admitted to those issues, but she fought her dismissal because much of what she felt the decision was based on was not documented until she was given written warnings and final warnings. Her poor performance went on for an extended length of time without documentation.

To prevent these problems for our clients, we need to make sure to encourage regular performance evaluations and documentation of performance problems as close to the time they occur as possible. These issues should not only be discussed with the employee, but should also be written down and included in a personnel folder for the employee. Developing a consistent practice of documentation and feedback will not only help to provide evidence in favor of the employer when an employee disputes a dismissal on just cause grounds (if a State or contract employee), but can also serve as a basis to refute allegations of unlawful discrimination. It also will help to put employees on notice of the expectations the employer has for them. Encouraging our clients to engage in regular evaluations and get in the practice of documenting performance issues will help them defend against claims that they were engaging in an unlawful practice and will also help us as we defend those claims.