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Good Personnel Records Save the Day for A & F

Abercrombie & Fitch fired one of its New York City security supervisors for poor performance. She filed a lawsuit, claiming among other things that she had been fired because she was African-American.

A&F won the case without even having to go through a trial, primarily because the fired employee’s manager had kept good personnel records to document her poor performance over several years.

A&F moved for summary judgment, which is a judgment without a trial based on undisputed material facts. The purpose of a trial is to establish the facts on which a judgment will be based. If either party can show that the “material” (outcome-affecting) facts are not genuinely disputed, then legally there’s no need for a trial, and the judge can simply render judgment.

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It appears that the fired security supevisor’s performance wasn’t stellar. According to the court’s opinion, during one evaluation period the fired supervisor had busted only nine shoplifters and fingered only one employee thief, while others in the same job had busted between 109 and 317 shoplifters. Moreover, in the fired employee’s store during that period, the overall theft rate was more than 9%, while the company-wide average was only 5.67%.

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Poor performance, however, didn’t necesarily mean that A&F would win. To defeat A&F’s summary judgment motion, the fired employee had merely to come forward with at least some non-trivial evidence that A&F had intended to racially discriminate against her. That would have shown the existence of a genuine issue of material fact. This in turn would have entitled the fired employee to have a jury hear the evidence, evaluate witness credibility, and weigh the conflicting evidence. The jury then would decide whether A&F had racially discriminated against her.

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In their summary-judgment motion, A&F’s lawyers wielded a not-so-secret weapon. For several years, the fired woman’s supervisor at A&F had regularly met with her to review her performance. He had prepared written evaluations showing poor performance, and had provided her with copies. He had also prepared written performance-improvement plans for her, and had gotten her to sign them. All those documents presumably were in the woman’s personnel file. A&F’s lawyers used them, along with the supervisor’s affidavit, in support of A&F’s motion for summary judgment.

A&F thus was able to put forward solid, documentary evidence that it had indeed terminated the woman for poor performance. Note that A&F didn’t try to rely solely on its manager’s hindsight recollection about the woman’s performance, which her attorney doubtless would have characterized as self-serving. Instead, it brought contemporaneous documentary evidence to bear.

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In rulling on A&F’s summary judgment motion, the judge focused on A&F’s documentary evidence and its manager’s affidavit, and on the fired employee’s failure to put forth any substantial evidence of discriminatory intent. The judge ruled that there was no genuine dispute concerning any material fact, and threw out the fired employee’s case. (Khan vs. Abercrombie & Fitch, Inc., Sept. 17, 2003)

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