The Rocky Mountain Employer


Labor & Employment Law Updates

Tenth Circuit Decision Highlights the Importance of Documenting Performance Issues

Campbell Litigation often counsels its clients regarding the importance of documenting employee performance issues pursuant to company policy.  Documentation is particularly important in light of the Equal Employment Opportunity Commission’s (“EEOC”) increased efforts to enforce disability laws, including the Americans with Disabilities Act (“ADA”).[1]  A recent Tenth Circuit Court of Appeals (“Tenth Circuit”)[2] decision highlights the importance of documenting employee performance issues, as well as the ADA’s requirement that employers have knowledge of an employee’s disability before the employer may be liable under the Act.[3]  This article analyzes the Tenth Circuit decision and provides practical takeaways for employers.

Ewing v. DoubleTree DTWC, LLC 

In Ewing v. DoubleTree DTWC, LLC, plaintiff-employee sued her former employer under the ADA, claiming the employer terminated her because she had a mental impairment.[4]  The employer moved for summary judgment arguing that the plaintiff could not prove a prima facie case under the ADA because she never disclosed her disability to her employer;[5] and in any event, it had a legitimate non-discriminatory reason for terminating the plaintiff due to her documented history of performance issues.[6] The federal district court granted the employer’s Motion for Summary Judgment, and the plaintiff appealed to the Tenth Circuit.[7]

The Tenth Circuit affirmed the district court decision, noting that, while the plaintiff informed her doctor of her disability, she provided no evidence that her employer knew of the plaintiff’s disability.[8]  Under the ADA, an employer cannot be liable when it “indisputably had no knowledge of the disability.”[9] 

The Tenth Circuit further reasoned that, even in the event that the employer had knowledge of the plaintiff’s disability or that the plaintiff exhibited physical characteristics that made her disabilities obvious to the employer,[10] the plaintiff could not show that the company’s proffered explanation for terminating her was pretext because the company meticulously followed its progressive discipline policies and documented the plaintiff’s performance issues.[11]

Employer Takeaways

The Ewing decision highlights the importance of documenting employee performance issues.  Such evidence is critical for employers when defending employment discrimination claims, including those under the ADA.  When an employer terminates or disciplines an employee based on the employee’s performance, having consistent documentation of performance issues will help the company defend any potential discrimination lawsuit.  Companies with documentation policies should ensure management and human resources consistently follow the policies and keep the documentation in electronic and/or hard copy format.  Companies without such policies, should consider implementing documentation policies to better position the company to defend potential discrimination lawsuits.


[1] P. David Lopes and Mary O’Neil, The EEOC’s Top Ten Litigation Developments (Five Year Retrospective Edition), Equal Employment Opportunity Commission (Aug. 29, 2016) (Denver, Colo.).

[2] The Tenth Circuit hears appeals from federal district courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

[3] Ewing v. DoubleTree DTWC, LLC, No. 16-4037, 2016 WL 7228804 (10th Cir. Dec. 14, 2016). 

[4] Id. at *1.

[5] To state a prima facie case under the ADA for discriminatory termination, a plaintiff must show that: (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of her job with or without accommodations; and (3) she was terminated under circumstances which give rise to an inference that the termination was based on her disability. Where an employee establishes a prima facie case, the burden shifts to the employer to provide a legitimate non-discriminatory reason for the termination, and if it does so, the burden shifts back to the employee to show that the employer’s proffered explanation is pretextual. Ewing, No. 16-4037, 2016 WL 7228804 at *3.

[6] 1.

[7] Id.

[8] Id.

[9] Id. citing Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 n.9 (10th Cir. 1999). 

[10] Under the ADA, an employee who exhibits physical characteristics which make his or her disability obvious to his or her employer, will likely satisfy the employer knowledge requirement.  See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 130 (2d Cir. 2008).

[11] Ewing, 2016 WL 7228804 at 4.  Indeed, the plaintiff even admitted she had performance issues.