A Failure To Keep And Preserve Records To Support An Employee Termination Forces A Jury Trial


by Aaron Clark

aclark@mcgrathnorth.com
(402) 341-3070

A recent decision by a federal court in Michigan did not establish any new legal standards, but it did highlight the crucial importance of documentation and record keeping to support an employee discharge.

The plaintiff in Precopio v. The Kroger Co., suffered from severe anxiety and depression. After experiencing panic attacks, he was approved for intermittent FMLA leave, and used that leave on occasions in the months preceding his termination without controversy. He subsequently was terminated for failing to comply with a rule that required a call to store management at least one hour prior to the beginning of any shifts during which an employee was going to be absent.

The parties agreed that Precopio did not report for scheduled work shifts on February 20, February 22 and March 25. The plaintiff responded that the absences on February 20 and March 25 were due to his illness and were protected under the FMLA. He further stated that he did not report on February 22 because he had not been informed he had training scheduled for that day.

February 20th:   The parties agree that the plaintiff called the store to report his absence after the start of his shift on February 20. However, the plaintiff testified that he had notified an assistant manager on the evening of the 19th that he would not report for his shift the next day, the 20th. The supervisor stated that he believed that call actually took place on the evening of February 18 to report his absenteeism on that day, rather than with respect to the 20th. The store manager said he couldn’t remember whether the plaintiff had indicated that he would miss other shifts that week or if he (the supervisor) reported the call to anyone else in management. There were no records to support the timing or contents of that conversation. To confuse the matter further, a manager had signed an intermittent FMLA leave tracking sheet indicating that the plaintiff’s leave on February 20 was protected FMLA leave. The manager who signed the sheet stated that she did so only on her assumption, not actual knowledge, that the day was covered under the FMLA. Kroger responded that the manager had been counseled about her error.

February 22nd:   With respect to February 22, the plaintiff stated that he didn’t phone in because the training session that day wasn’t on his work schedule, Kroger admitted that it didn’t have a copy of the paper schedule that had been posted, since it had been disposed of under its normal document destruction procedures.

March 25th:   Finally, the plaintiff testified that he failed to timely call in his absence for his shift on March 25 for two reasons, including the fact that his workday on the 25th was a result of a schedule change about which he had not been notified, and that he was too sick to call in.

Kroger filed a motion to dismiss plaintiff’s claims. The District Court concluded that there were questions of fact, a lack of documentation and conflicting documentation with respect to each of the three absences which led to the plaintiff’s termination. It concluded that the matter should be presented to a jury to make factual decisions on the contrasting allegations.

The Court’s holding in Precopio demonstrates the importance of clear and uniform record keeping policy with respect to conduct leading to disciplinary matters. In cases where there is a dispute as to what the facts actually were, the District Court had no choice but to send the matter on to a jury.

Employers who do not want to be exposed to a jury trial with respect to employee discipline would be well advised to review and preserve records regarding alleged deficiencies in performance or attendance. Where a call-in procedure is used, there should be a uniform process for reporting such communication with employees in detail, and then preserving that information. Finally, schedules and schedule changes should be annotated with respect to the date of their posting and, again, when such postings may be related to a particular absence, they should be preserved as a part of the employee’s file, even though no grievance, charge or lawsuit has been filed at that time. An employer’s normal document destruction schedules should not override the need for preservation of evidence in a particular case.

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