By: Storrs Downey
While it is not the only factor a court looks at, where an employer has a written history of ongoing disciplinary reports on an employee, this can be quite helpful in potentially defeating a claim of discrimination. In Simpson v. Franciscan Alliance, Inc., 2016 WL 3536669 (7th Cir. 6/28/16), the Seventh Circuit affirmed the lower court’s granting of summary judgment to the defendant nursing home on dismissing Plaintiff employee’s age and race discrimination claims.
Plaintiff was reprimanded four times between October 2010 and September 2011. The employer used a form called an “Employee Corrective Action Report” to document each incident. The disciplinary incidents included a failure to follow a doctor’s orders associated with changing a patient’s dressings and stopping a controlled pain medication, improperly directing a patient-care technician to step in for her on two procedures despite a nurse being required for same, three patient complaints all in one month about various issues and finally prematurely removing a patient’s morphine pump after the patient complained about not getting ice as requested from Plaintiff.
Plaintiff alleged she was held to a higher standard than non-African American and employees under the age of 40. However, she could not provide sufficient evidence that such employees were treated more favorably.
The court concluded that Plaintiff had not established a prima facia case of age or race discrimination, nor did she present evidence from which a jury could reasonably conclude that the basis for her termination was pretextual.
Although written disciplinary reports used in support of terminating an employee will not always be sufficient to overcome a claim of discrimination, they can make it much stronger to adequately defend such a case than when such discipline is oral in nature only.