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Document all disciplinary actions, including why and when you decided to act

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in Discrimination and Harassment,Employment Law,Management Training

Some employees facing discipline believe that if they file a discrimination complaint, they can escape trouble. If disciplined, they’ll cry “retaliation!”

Smart employers counter this subtle form of blackmail by clearly documenting and time-stamping all decisions and the process that led up to those decisions.

That way, a court can easily tell whether discipline was already in the works or happened after the employee complained. Obviously, if the documents show management was contemplating discipline before the complaint, it couldn’t be retaliation after the fact.

Recent case: Patricia Waiters worked as a corrections officer and was cited for several incidents involv­ing improper behavior. For example, she showed inmates a video depicting some of her co-workers in an unflattering manner. She also failed to properly maintain her logbook.

While those disciplinary matters were working through the system, she filed an EEOC complaint alleging race discrimination.

A few months later, she was dis­ciplined for insubordination, neglect of duty and other infractions. Ulti­mately, Waiters was suspended for 30 days.

She sued, claiming retaliation. When asked to explain how discipline that was already in the works could be ­retaliation for a complaint she filed later, Waiters argued that her employer must have falsified the records.

The court said there was no evidence anything had been tampered with and accepted the employer’s records as genuine. It then dismissed her lawsuit. (Waiters v. Aviles, et al., No. 10-4152, 3rd Cir., 2011)

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