Documentation Defeats Gender Discrimination Claim

By Scott M. Wich March 7, 2018
Documentation Defeats Gender Discrimination Claim

​A best practice of HR management is to document the reasons why adverse employment actions, such as discipline or a failure to hire, are taken. By doing so, an HR professional provides great assistance to an organization's risk management efforts. As recently noted by the U.S. District Court for the Northern District of California, a well-maintained paper trail can lead to the summary dismissal of a discrimination claim.

An employee worked as a per-diem nursing attendant for a medical center. In December 2010, she attended a meeting and voiced opposition to a nurse manager's perceived unfair treatment of employees. In March 2011, she complained of a co-worker speaking a language other than English in her presence. In February 2012, her application for a more permanent position with the medical center was denied.

The medical center denied the employee's February 2012 application because of a "history of tardiness, dress code violations and attitude problems." The company had documented that the employee had been tardy at least 46 times during a three-month period in 2011. With respect to dress code violations, the worker had been counseled on multiple occasions to avoid wearing provocative or unsafe apparel. The medical center had also received numerous complaints about the employee's performance, including conflicts with a supervisor.

In March 2012, she filed charges of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 with the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing. The EEOC issued a right-to-sue notice as a result of those charges. However, the employee took no further action on those allegations.

In June 2012, the medical center again denied the employee an opportunity for a more permanent position, based on the same reasons it gave in February 2012. Thereafter, the medical center advised the employee that she was removed from the per-diem list.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

In November 2012, the employee filed a new charge with the EEOC alleging that the employment decisions were in retaliation for the filing of her earlier EEOC charges.

In her lawsuit, the employee expanded her retaliation claim to assert that the refusal to hire her for a more permanent position was also in retaliation for her activities in 2010 and 2011, as well as in retribution for her March 2012 EEOC discrimination charge. The court dismissed the retaliation claims except with respect to the March 2012 EEOC charge. It held that the employee had failed to assert before the EEOC the other facts as a basis for retaliation, resulting in a failure to exhaust her administrative remedies. Independently, the court found that the activities in late 2010 and early 2011 were too remote in time to relate to adverse employment actions that started in February 2012.

With regard to retaliation for filing the March 2012 discrimination charge, the court highlighted that the medical center had well-documented and substantiated reasons for taking the adverse actions against the employee. In turn, the employee failed to provide any evidence to refute that information. As such, the court concluded, the medical center had a legitimate and nonretaliatory reason for not hiring the employee. Consequently, the remainder of the retaliation claim was also dismissed.

Sesay v. Santa Clara County Valley Medical Center, N.D. Cal., No. 5:16-cv-03761 (Jan. 8, 2018).

Professional Pointer: Documentation of, and consistency in, employment actions is highly valuable in defending against claims of employment discrimination. A record of warnings and corrective actions can be a powerful tool in explaining the reasons for adverse employment actions.

Scott M. Wich is an attorney with Clifton Budd & DeMaria, LLP in New York City.


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