If You’re a Supervisor Writing Documentation, Watch What You Write—It Can Bite You

Your recorded words—they’re direct evidence. Direct evidence is evidence that proves the existence of a fact. Direct evidence includes someone else’s direct observations as in “I saw…,” “I heard….”

Here’s a recent case where a staffing firm torpedoed itself and their client. The firm’s recruiter emailed 66,000 recipients. They emailed 66,000 individuals seeking applicants for a desktop support position for a client with a subject line “Desktop Support (Need Young Folks Only).1


That’s direct evidence. And in September of 2021 the EEOC sued the staffing agency.

Here’s a landmark case, Stewart v. Wells Fargo Bank, 5:15-cv-00988-MHH, that shows how a manager can undercut a potentially needed termination.

Wells Fargo bank hired Deborah Stewart as a treasury management sales consultant.  She had experience that qualified her for her job, but her manager felt she had performance issues.

Although Stewart met benchmark standards, her manager issued her an informal performance warning and then a formal performance warning.

After she received the informal warning, but a week before the formal performance warning, Stewart learned she needed surgery. She requested FMLA medical leave. Her employer granted it.

Five weeks later, Stewart returned to work with limited duties. Her manager wanted her terminated. He sent an e-mail to HR listing multiple bases for termination including the comment, “Debbie submits a request for medical leave.” 

The bank fired Stewart and replaced her with an employee who lacked Stewart’s level of experience. Stewart sued for retaliation, alleging the bank wanted her fired due to her taking FMLA leave.

Wells Fargo tried to get the case dismissed and presented Stewart’s performance issues as proof.

The court didn’t buy what Wells Fargo was selling. 

That one statement, “Debbie submits a request for medical leave,” tanked Wells Fargo’s case, providing direct evidence of a discriminatory or retaliatory attitude sufficient to present Stewart’s case to a jury.

Ignorance of the law is bliss – until it bites you.

1 Eric Meyer, The Employer Handbook, October 5, 2021

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One thought on “If You’re a Supervisor Writing Documentation, Watch What You Write—It Can Bite You

  1. Hubba, hubba! the lawsuit couldn’t have happened to one of my more unfavorite employers, either. Yes, ignorance of the law is not bliss, but may bite you, and a tetanus shot won’t help in such situations. And FMLA requests, work limits upon return to work and termination actions are big-time causes of employment lawsuits.

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