The Importance of Documenting Complaints: A Cautionary Tale

On this blog, I repeatedly emphasize that you should always 1) complain to your employer in writing; and, preferably 2) have documented evidence of discrimination or retaliation in order to bring a successful claim under either the New Jersey Law Against Discrimination (the “LAD”) or the New Jersey Conscientious Employee Protection Act (“CEPA”).  Today, I’m going to talk about a recent New Jersey court decision that perfectly illustrates why documentation is not only important, but critical.

Law Against Discrimination Claims Undermined

In Rios v. Meda Pharm., Inc., Docket No. A-3680-18T3, the plaintiff, Rios, was a Hispanic male who was hired in May of 2015 to work in the marketing department of the defendant company, Meda. After he was fired in 2016 for the stated reason of performance deficiencies, he sued Meda under the LAD for hostile work environment discrimination on the basis of his gender and national origin.  However, at the end of the discovery period of litigation (meaning the parties had gathered and submitted all their evidence to the court), the lower trial court dismissed Rios’s LAD claims on a motion for summary judgment.  On appeal, the New Jersey Appellate Division affirmed the trial court’s dismissal.

Let’s take a look at some of the reasons why that happened:

1. Rios’s claims of hostile work environment based on national origin rested upon allegations that his immediate supervisor, a female, used the racial slur “spic” on two occasions.  Rios attested that he verbally reported his supervisor to HR for both these instances, and then was retaliated against by his supervisor for his complaints (via being placed on probation).  

The appellate court noted “the use of a national origin epithet even once or twice can . . . in some circumstances . . . constitute a hostile work environment.” However, the court admonished:

“Even accepting as true that [Rios’s supervisor] used the pejorative word, there is no evidence that [his supervisor] knew he reported this behavior to HR.  Indeed, the only evidence that he reported the statements is his own uncorroborated testimony.  He cannot rely on speculation that [his supervisor] came to learn of it and retaliated.”

In fact, not only did Rios not produce his complaint to HR in writing, he also failed to take any personal contemporaneous notes regarding his conversation with HR (I should point out that the company HR representative also did not take notes. HR will not bend over backward to help you file a discrimination claim).

In his court testimony, Rios said that he didn’t file a written complaint with HR because he had only been on the job for a short time and was “nervous” about creating a formal record.  But if you are serious about asserting legal protections against discrimination or retaliation, your nerves don’t matter.  You must submit complaints in writing or risk completely undercutting any potential claims.

2. Rios’s claims of hostile work environment gender discrimination rested upon two comments his supervisor made over the course of two years to his co-workers, to the effect that “men are unworthy” and females should rally around “girl power.” Besides expressing doubt that two such comments create the kind of “severe” and “pervasive” harassment characteristic of a “hostile work environment”, the appellate court noted:

“Plaintiff did not produce any evidence of these comments – no certifications or affidavits of the co-workers, and no e-mails or even any of his own documentation in support of these allegations.  Further, there is no evidence of his purported reports to [HR regarding the comments], and plaintiff did not follow up with [HR] to ensure any action was taken or a report made.”

Notice a pattern here? Get it in writing.

3. Finally, while Rios could not produce any evidence of his supervisor’s conduct or his subsequent complaints to HR, Meda did produce “documentation of plaintiff’s poor performance that justified his termination.” Any employer looking to get rid of you, for whatever reason, will compile a paper trail of disciplines and shoddy evaluations.  This is all the more reason for you to submit complaints in writing and as soon as they occur.

In sum, a lack of documentation can sink and otherwise viable claim.  If you would like advice or assistance in drafting a complaint of discrimination/retaliation or a whistleblower complaint to your employer, call our offices today for a free consultation.