DISCRIMINATION AND RETALIATION CLAIMS « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles


An Employer’s Lesson In Thorough Documentation

In Los Angeles County, it is not uncommon to see 100 lawsuits filed weekly against employers for alleged unlawful discrimination or retaliation, often both in the same complaint. One could say that unless a business knows and applies the important basics in preventing such expensive and time-consuming claims, it is only a matter of time before that company is hit with one.

Illegal discrimination is essentially an employment decision – for example, hiring, promotion, pay level, or termination — based improperly on an individual’s physical, cultural or other personal characteristics that are or should be irrelevant to his or her ability to perform.  For example, a person’s gender or religion should make no difference when he or she is able to competently perform a job position.  See, e.g.,Accommodating Religion in the Workplace and Proving Workplace Discrimination is Now More Difficult in California.

Illegal retaliation is an employment decision – for example, lowering pay, demotion, termination – based improperly on an individual’s sincerely complaining about an allegedly improper workplace practice, including, for example, a safety, health, or discrimination issue. See, e.g., Barbosa v. IMPCO – Terminating an Employee for Mistakenly Falsifying Time Card Violates Public Policy.

The critical battle line in such cases is very often whether the employer can demonstrate that it actually and sincerely made the adverse decision for a legitimate business reason, not the supposed discriminatory or retaliatory one.  A recent California appeals court case illustrates the importance of employers fully documenting the valid reasons for such adverse decisions, lest they are drawn into prolonged, costly and distracting litigation for lack of clear, thorough paperwork. Cheal v. El Camino Hospital (2014) 223 California Appellate Reports, fourth series (Cal.App.4th) 736

Plaintiff  Carol Cheal had worked in El Camino Hospital’s Nutrition Services Department for over 20 years when the hospital fired her in October 2008 at age 61. Her jobs had been preparing menus for patient meals and making sure the correct foods reached the correct patients.  Up to and including her performance evaluation in August 2007, plaintiff always received the highest ratings possible. Things changed when the hospital hired Kim Bandelier to supervise all “DietTechs,” including Cheal.  Over the ensuing months, Bandelier accused Cheal of numerous errors, issuing two write-ups, including a “final warning” in June, 2008.  After several more claimed incidents – none documented in writing – the hospital terminated her on October 10, 2008.

Cheal sued, claiming her performance was up to standards and that the actual reasons for the firing were her supervisor’s hostility towards her age and her complaining to management about alleged improper practices in the hospital.  The hospital won an early dismissal of the case when it convinced a Superior Court judge that the hospital could have only fired Cheal for her misconduct.  However, in a strong statement that employees must be given the chance to have a jury decide the case if the business’s documentation is not thorough, the Court of Appeal decided in Cheal’s favor and sent the case back for a trial.

The appeals court’s analysis of the hospital’s spotty documentation was extensive.  One example underscored the trouble employers can create for themselves for incomplete recordkeeping on work performance.  The hospital claimed it was justified in firing Cheal for her failures to enter the first names of patients and to mark dates of birth with a highlighter on progress charts.  Cheal admitted she made some mistakes here but declared that she had personal knowledge that other diet staff more frequently failed to follow these procedures but were not warned, written-up or fired.  Supervisor Bandelier in turn acknowledged that Cheal had commented on the pervasiveness of these errors by other workers, but asserted she told Cheal that it was up to Cheal to report these mistakes.

The Court of Appeal observed that Bandelier might be creating an “interesting discrepancy” by going out of her way to hunt down “Cheal’s errors on her own initiative, while leaving the errors of younger workers to be discovered and reported, if at all, by others.” The court also pointed out that more importantly the hospital was obviously slack in tracking just what was the acceptable norm of performance for diet techs on filling out patient charts and thus could not present any sort of verified data base to show that Cheal was better or worse than any of her co-workers who were not disciplined for such infractions.  223 Cal.App.4th at 748-749.

The irony is that a company’s asserted legitimate reasons for firing an employee just have to be sincere, they “need not necessarily have been wise or correct,” so long as they were not discriminatory.  223 Cal.App.4th at 755. The problem – and second irony – sits with inadequate documentation.  Since the hospital had not kept thorough records  to show that Cheal was undoubtedly failing at her job relative to younger co-workers, this raised the possibility that the hospital was lying about the reasons it fired her.  Thus, the appeals court gave Cheal the chance to present her whole case to a jury.  223 Cal.App.4th at 754-755, 760-761Any business that is willing to confidently confer upon an American jury the job of objectively evaluating conflicting evidence in a case such as this is courageous in the extreme.

For attorney assistance on proper and necessary documentation of personnel management matters, please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

May 28, 2014