TRUTH AND PERCEPTION

To defeat a Title VII discrimination claim, an employer must show that legitimate nondiscriminatory reasons supported an adverse employment decision. How does it do that? By using my favorite tactic: DOCUMENTATION! That is not always a guarantee of success as the employee has the opportunity to establish that the employer’s stated reasons are pretextual and meant as a “cover up” for discrimination. But, here again, if the employee cannot establish this, she cannot prevail.

In Salazar v. Commerce City, et al, the discharged director of economic development sued the city for employment discrimination. At the time of her discharge, the supervisor outlined the reasons in correspondence to her, including (1) unprofessional behavior; (2) demonstrated inability to work on a team; (3) failure to communicate effectively with her department; (4) poor judgment in sharing information with the city manager; (5) submission of repetitive, meritless and unsubstantiated complaints; and (6) refusal to participate in the investigations of her complaints. She sued for gender and national origin discrimination under title VII of the Civil Rights Act of 1964 and the trial court dismissed the complaint, whereupon she appealed to the 10th Circuit Court of Appeals.

The employee disputed the city’s claims, indicated that she responded to poor performance reviews and attributed communication problems to co-workers. The Appeals Court rejected these contentions, writing that “it is the manager’s perception of the employee’s performance that is relevant, not[the worker’s] subjective evaluation of her own relative performance.” This is absolutely the correct standard and it is refreshing to see a court articulate the rule so clearly.

Parenthetically, does your employee handbook state that failure to cooperate in an investigation may result in disciplinary action? Additionally, while you should encourage employees to air grievances, the filing of repeated, unwarranted complaints may reflect harassment of co-workers or the employer by the employee and may result in discipline, up to and including separation from employment, as well.

For an employee to prevail in a Title VII matter, she must be prepared to offer proof to support her contentions. Thus, although Salazar alleged that the city had discharged or demoted all female directors, that she was excluded from meetings on the basis of her gender, and that the city systematically discriminated against women, she offered no competent evidence in support of her claims.

One additional charge made by Salazar was that the city had violated her 1st Amendment right of freedom of speech, alleging that it retaliated against her for criticizing allegedly discriminatory treatment. The 10th Circuit opinion reflected that an exception to the doctrine that government may not take adverse action against someone for speaking openly is precisely in the realm of employment law. If a government worker makes critical statements in the capacity of her employment, she may be disciplined for those utterances. The law is still developing with respect to “outside utterances” to third persons via social media, such as Facebook, Twitter, You-Tube, etc.

Clearly, a city has the legal resources to aggressively defend such a claim in federal court which is an extremely costly endeavor. While it is wishful thinking to hope that plaintiffs’ counsel all move to another galaxy far, far away, what the Salazar case reflects is that, if an employer acts rationally AND extensively documents the basis for its decisions, it will ultimately prevail.

If you are contemplating an employee discharge, don’t act first and bear the consequences later.