Documentation exonerates the employer in discrimination case

March 4, 2023

In a recent discrimination case, the 7th U.S. Circuit Court of Appeals ruled in January that an organization’s documentation demonstrated that the employee’s performance was the reason for her transfer, not her race.

The employee, Catrina Bragg, who is Black, entered into a 90-day orientation program for newly licensed nurses at a hospital. She was denied full-time employment and transferred to another position with lower compensation after 90 days. She alleged that these adverse employment actions were based on “racially discriminatory evaluations of her performance” and were retaliatory, and she sued under Title VII of the Civil Rights Act.

The District Court dismissed the case on summary judgment and the appeals court affirmed.

Bragg cited several instances of conduct she deemed racially insensitive and also pointed to the challenges Black women face in the workplace. However, the appeals court evaluated only the facts before it in concluding that Bragg produced insufficient evidence of discrimination and that the employer produced sufficient documentation to demonstrate that Bragg’s performance was substandard and that these performance concerns were adequately shared with Bragg.

To prove discrimination, the employee needed to show that she was a member of a protected class (which she asserted was her race), that she performed reasonably on the job in accord with her employer’s legitimate expectations, that despite her reasonable performance she was subjected to an adverse employment action, and that similarly situated employees outside of her protected class were treated more favorably by the employer.

After these allegations are made, the burden shifts to the employer to “articulate a legitimate, nondiscriminatory reason for adverse employment action.” After that’s done, the burden shifts back to the employee to submit evidence that the employer’s explanation is pretextual.

The court held that the employer “had abundant evidence of Bragg’s substandard performance, documented in the Progress Meetings and Progress forms.”

The employee produced several arguments contending that she didn’t understand the performance concerns. “Bragg did not show, however, that Community’s communications with her left any room for doubt,” the court explained. “The hospital produced four Progress Forms and records from six Progress Meetings, dating between Oct. 1 and Dec. 9, 2018. Bragg’s signature is on the first three Progress Forms” but was missing from others. The court added, “Bragg asks us to infer from the absence of her signature that Community never discussed the four unsigned forms with her.”

The court continued: “Even if we give Bragg the benefit of the doubt, however, the record is still devoid of evidence that would permit a reasonable jury to find that Community failed to alert her to the performance problems that led to the denial of a position at the hospital. There is too much other evidence that Bragg knew of Community’s concerns with her performance.”

In fact, two weeks before her dismissal, Bragg signed a form that stated that she needed significantly more time than was available to complete the orientation, adding that she “still required prompting to complete basic tasks, had never completed a patient admission, still needed to develop critical-thinking skills to anticipate patient needs and was not yet managing a full patient load.” The court reasoned, “That timeline also rules out any suggestion that Community fabricated its criticism of Bragg’s performance after the fact.”

Interestingly, Bragg also alleged that Community’s explanation was pretextual because it transferred her instead of firing her. Community responded that she was ill-suited for acute care but could do better in a long-term facility.

There was also evidence that a certain preceptor wanted to get Bragg fired, and she closely monitored Bragg, seemingly to develop a legal record in case of termination. The court questioned why the preceptor was doing this and whether it was motivated by racism or performance concerns. On this point, the court held, “Bragg did not proffer evidence that would allow a fact-finder to connect [the preceptor’s] close supervision to an unlawfully discriminatory motive.” The record showed that other preceptors had similar performance concerns about Bragg, and there was insufficient evidence to demonstrate that the preceptor’s “overbearing attitude” was motivated by racism.

This case is a textbook example of where honest, objective and clearly documented conversations with an employee about performance concerns will hold the most weight in any dispute about discrimination.

It isn’t enough to document performance concerns. It isn’t enough to talk to the employee about performance concerns. The magic happens with the organization documents the conversation with the employee.

Employers need to stop avoiding these conversations and need to stop having conversations that are not documented. It does no good to paper the file with concerns that are never discussed with the employee. And, even here where the company documented concerns, the employer must prove that the employee received the documentation and that the conversation took place. If an employee refuses to sign documentation, bring in a witness to sign that the documentation was received by the employee.