Employer's Contemporaneous Documentation of Verbal Counseling Helps It Win Discrimination Lawsuit

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The Seventh Circuit recently upheld the summary judgment dismissal of a former hospital worker's claims for national origin and age discrimination after the worker was fired for repeatedly sending "negative, unprofessional, and disrespectful" emails to her boss and other co-workers.  Notably, the plaintiff presented evidence that her 2008 and 2009 performance evaluations were "satisfactory" and that several of her co-workers made a variety of remarks about her Puerto Rican national origin.  However, the hospital employer had documented its various disciplinary actions with plaintiff, including two counseling sessions Human Resources had with her in April 2010 regarding her unprofessional communications with peers and supervisors and a written warning in July 2010 for similar conduct.  In April 2011, after learning about three more unprofessional emails sent by the plaintiff to her boss, the hospital fired her.  The Seventh Circuit held that the plaintiff's evidence of meeting expectations on her performance evaluations was essentially trumped by the more recent and thorough documentation of the plaintiff's discipline issues, thus eliminating a triable issue of fact.  This case serves as a reminder of the importance for employers to keep up-to-date, thorough records of discipline issued to employees, including counseling sessions.  In this case, the employer's documentation prevented it from having the plaintiff's claims submitted to a jury as well as incurring the substantial costs of a jury trial.

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