Impressive Credentials, Work Experience And Job Evaluations Are Not Enough To Demonstrate That An Employee Is Meeting Her Employer's Legitimate Expectations At The Time Of An Adverse Employment Action
DEAR v. SHINSEKI (August 20, 2009)
Deborah Dear, an African-American woman, had impressive educational and employment credentials when she was hired by a Veterans Affairs hospital in 2004. She continued to do well and received positive evaluations for a few years. In 2006, however, her supervisor discovered that the morale in her department was very low and staff members were complaining about Dear’s supervision. The supervisor also witnessed Dear engage in inappropriate discipline. Another supervisor asked Dear to develop and submit a plan for improving the situation. Dear did develop and submit a plan -- but it was late and failed to address many of the issues. Dear was temporarily reassigned to a non-supervisory position with a decrease in salary. She was replaced by a white woman. Dear filed an EEO complaint alleging race discrimination. Several days later, she was permanently reassigned to a staff nurse position. Dear filed a lawsuit pursuant to Title VII, alleging race discrimination, retaliation and hostile work environment. The district court granted summary judgment to the defendant. Dear appeals.
In their opinion, Judges Cudahy, Ripple and Wood affirmed. The Court addressed Dear’s discrimination claim under the indirect method of proof. The parties did not dispute that Dear was in a protected class and that her reassignment was an adverse employment action. The Court addressed the other two elements: whether she was meeting her employer's legitimate expectations and whether she identified a similarly situated employee who was treated more favorably. The Court concluded that she met neither element. With respect to meeting expectations, Dear relied on her impressive education and employment history. While those may be relevant, the Court emphasized that it must look to her performance at the time of the adverse employment action. The record contained several instances of her failure to meet expectations at the time of her reassignment. Dear also failed to meet her burden of identifying a similarly situated employee who was treated differently. The same two shortcomings prevent her from avoiding summary judgment on her retaliation claim. Finally, with respect to her hostile work environment claim, the Court noted that there was little support in the record for her contention that the environment was hostile to African-Americans.
In my opinion this case is a classic example of the critical need for career seekers and employees to learn basic Employee Rights before seeking and accepting employment. Had Ms. Dear educated herself to understanding the criteria for proving race discrimination, hostile work environment and retaliation before accepting employment she maight have prevailed.
For example, what was the racial makeup of the employees under her supervision? My experience and research shows a significant number of white males resist supervision from diverse management groups. This fact may account for the "complaints" about her suerpvision of the department.
With the prior knowledge of understanding her rights from day one, Ms. Dear would've had the advantge of the “Disparate Treatment” test as the standard for proving job discrimination. she would have been familiar with the U.S. Supreme Court definition of disparate treatment by the landmark Civil Rights decision McDonnell Douglas v. Green in 1973.
She might have been aquainted with the application of;
indirect and direct proof
understanding job evaluation manipulation
HR and EEO being company friendly not employee friendly
management, co-worker colusion
recognizing the subtle designed to be hidden cancer of race and other discrimination(s)
Had she learned these and other areas of employee rights a pattern of practice of disparate treatment over the years might have been established.
Unfortunately, the overwhelming majority of job seekers and employees learn on the backend
of employment what they should learn on the front end, Basic Employee Rights!