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HR 101: What Not to Write in Personnel File After Employee Files EEOC Complaint

Nov 25, 2013

The human resources manager for the defendant in the recent Texas Court of Appeals case of A&L Industrial Services, Inc. v. Oatis, apparently never took this course.  Largely because of his actions, the plaintiffs—former employees who were terminated—were able to convince a jury not only that they were retaliated against for complaining about discrimination, but also that they were entitled to punitive damages.  What is somewhat surprising is that the appellate court upheld these findings in spite of the fact that the plaintiffs failed to prove their underlying discrimination claim.

When investigating pre-suit allegations of discrimination, we always remind our clients not to take any action against the complaining employee that could be construed as retaliation.  We often explain how it is possible for an employee to have a meritless claim of discrimination, but a valid claim of retaliation.  This case is but one example of how that can be.

This case is also a rare example of a situation where the plaintiffs are able to establish the defendant’s motive through the defendant’s own written words.  In this case, the employer’s human resources manager admitted that he made notes in the plaintiffs’ files after they were terminated, indicating that they were not eligible for rehire.  Incredibly, the human resources manager acknowledged that it was his receipt of notices indicating that the plaintiffs had filed complaints with the Equal Employment Opportunity Commission (“EEOC”) that prompted him to make these notes in the files.  One of his notes was actually quite explicit:

[P]lease note he is not eligible for rehire ever.  Tried to sue us.  Simply tell him ‘sorry but we have nothing for you at this time.  Please try again.  Have a nice day.’  Not for rehire.  Per [human resources manager].

Before upholding the finding of malice, the court noted that the human resources manager testified:

  • He was aware that if an employee opposes a discriminatory practice and is fired as a result, the employee has a potential retaliation claim.
  • He admitted he made the notes that they were ineligible for rehire.
  • He admitted that the receipt of the EEOC notices prompted him to make the notes.
  • He acknowledged that retaliating against an employee for filing a charge of discrimination was legally impermissible.

Although it is rare that an employer will so readily document its own unlawful conduct, it is not so rare that an employer will stand accused of retaliation.  Since 1997, the percentage of retaliation claims handled by the EEOC have steadily increased from nearly 23% of all charges filed to 38% of all charges filed as of 2012.  In fact, retaliation claims lead all other claims of discrimination handled by the EEOC.  Similar results can be found before the New York State Division of Human Rights.  In the most recent report available, retaliation claims were alleged in nearly 20% of all cases filed with the Division.

If you have any questions about retaliation or discrimination and its impact on your business, please feel free to contact Peter Weishaar at pweishaar@mccmlaw.com or (585) 512-3542.  Peter also writes a law blog, the Rochester Law Review, covering legal developments, cases of interest, and events happening in all of the key areas of his practice.  You can follow the blog on Facebook and Twitter

Peter's employment practice includes the representation of businesses and individuals in matters involving discrimination and failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.