Company documentation under a microscope: Fired employee’s lawsuit says form proved racial bias

For HR pros, it’s a long-standing principle that company documentation can make or break an employer in court.

On one hand, solid documentation can protect employers from potential legal trouble. But on the other hand, paperwork mistakes (like these common documentation errors) often cause legal headaches.

Either way, your company documentation is likely to become a focal point if you end up in court.

Case in point: In Georgia, a man sued his former employer, alleging that he was fired because he’s white – and he said company documentation proved it.

Long history of questionable conduct

In 2012, Paul Ossmann was hired as a temporary weekend meteorologist for a CBS television station. By mid-2017, he was promoted to chief meteorologist and remained in that role until he was terminated in April 2019.

During Ossmann’s tenure, several female co-workers repeatedly complained that he exhibited inappropriate behavior and engaged in sexual harassment.

First complaint

For example, in early 2017, prior to Ossmann’s promotion, a female colleague reported that Ossmann told her that she “cockblocked” him over a dispute about vacation scheduling and that he said he had a dream about them having sex. She also reported that he told another woman that “his first three-way was with a Black woman.”

The company’s response: The HR director and his direct supervisor met with Ossmann to discuss the issue, reminded him of the company’s zero-tolerance policy for workplace harassment and issued a written warning. Ossmann signed the company documentation.

Second complaint

About six months later, at the height of the #MeToo movement, a female news producer reported to HR that Ossmann sent inappropriate Facebook messages to her. Specifically, he said he thought about her when he masturbated and he wanted to have sex with her. He also asked her to send nude photos.

The company’s response: By this time, Ossmann had been promoted to chief meteorologist. His new supervisor and the HR director met with him to discuss the new complaint. At the meeting, Ossmann admitted to sending the messages, saying he did so in an attempt to pursue “an off-duty personal relationship.” (If you missed it, click here for an attorney’s take on workplace romances.)

The meeting ended with Ossmann apologizing to the HR director and the supervisor for making the woman feel uncomfortable. The details of the meeting were noted in a final written warning for “exercising poor judgment.” However, Ossmann did not sign this warning, and he disputes receiving the company documentation at the meeting.

Third complaint

Nearly 18 months later, a third woman came forward. She complained that Ossmann pulled her aside to “compliment” her. He allegedly said: “Not to be like uncle Joe [Biden], I wanted to let you know I look at you all the time. You’re so pretty, put together. I see you walk around and you carry yourself very well. You’re very attractive and that’s attractive to me. You don’t flaunt it. Don’t put it out there. You’re not all a selfie kind of person. You always look nice.”

The woman said it made her uncomfortable, so she thanked him and immediately walked away. Then she called her husband and her parents. She said she was unhappy with how she handled the situation in the moment and feared that she had “set herself up for it to happen again.”

The company’s response: The HR director and supervisor met with Ossmann to discuss the latest allegations. According to the HR director’s contemporaneous notes, Ossmann admitted making the comments and said he didn’t “mean anything by his comments” but was only “paying his co-worker a compliment because he thought that they had ‘that kind of relationship’.”

Ossmann was temporarily suspended until the general manager of the TV station could weigh in. In the meantime, the HR director and supervisor determined that in light of Ossmann’s “pattern of violating [his employer’s] policy against sexual harassment,” they “had no choice but to terminate” him.

Company documentation in the spotlight

The station’s general manager told the HR director to “put together a recommendation to submit to corporate for approval to proceed with termination.”

The HR director’s standard practice—based on training from the company’s corporate HR director—was to fill out an “EEO Analysis.” The form was required for any discharge, job elimination, restructuring or reorganization, the HR director said.

The form provided space to document the complaints made and the company’s response. It also listed Ossmann’s race, sex and age, which Ossmann said “tainted the decisionmaking process.”

In addition, the form provided space to include comparators if other employees had been in a similar situation, and if so, how those situations had been handled. The form also included a section to record the demographics of any comparators listed.

Ultimately, Ossmann was terminated, and he was replaced by a Hispanic woman.

Ossmann sued, alleging a Section 1981 race discrimination claim. The company filed a motion for summary judgment.

A magistrate judge recommended granting the company’s motion, and a federal court adopted the recommendation for the company. Ossmann then appealed to the Eleventh Circuit.

Was it discrimination?

To state a valid Section 1981 race discrimination claim, Ossmann had to show “that race was a but-for cause of a termination,” the Eleventh Circuit explained.  

That didn’t mean he had to prove that “race was the exclusive cause of his termination, but it [did] require him to prove that but for his race he would not have been terminated,” the court clarified. (Emphasis in original.)

In other words, he had to show that a reasonable jury could conclude that had he not been white, he wouldn’t have been fired.

First, Ossman attacked the company documentation. In Ossman’s view, the EEO Analysis form was direct evidence that proved intentional discrimination.

Direct evidence of discrimination is a “rigorous standard,” and courts accept “only the most blatant remarks,” such as “a management memorandum saying, ‘Fire Earley—he is too old’,” the court explained.

The EEO Analysis form “does not meet—or even approach—this standard,” the court concluded.

Why not? The form listed several categories of information, including Ossman’s race, in a neutral fashion. To prove that Ossman was terminated based on his race, the court said it would have to “infer that it treated his race as a negative factor and that had his race been different,” his termination would not have been approved. If an inference is required, it’s not direct evidence. It’s circumstantial evidence, the court explained.

Because the form was circumstantial rather than direct evidence, the court analyzed the claim under the familiar burden-shifting framework outlined in McDonnell Douglas Corp. v. Green.

Assuming Ossmann stated a prima facie claim of race discrimination, the burden shifted back to the company to state a nondiscriminatory business reason for its decision. It did so, the court explained, noting that the company said it fired Ossmann for repeatedly violating its sexual harassment policy.

At that point, the burden shifted back to Ossmann to show that the proffered reason was a pretext for bias.

Ossmann again pointed to company documentation, claiming the EEO Analysis form provided sufficient evidence to show the proffered reason was pretextual.

But the court was not swayed. In the court’s view, the “form does not remotely approach the amount of evidence necessary for a reasonable jury to conclude that Ossmann was fired because of his race.”

The court pointed out that the form “clearly stated”  that Ossmann was “terminated for multiple sexual harassment policy violations. In fact, it specifically describes three incidents of harassment.”

It was speculation to say that the termination was race-based just because the form included racial data, the court said. Here, the language on the form didn’t tell the HR director what to do with the data, the court pointed out. Nor did it “require her to engage in racial balancing.” The language on the form was “completely neutral,” the court determined.

“No reasonable jury could conclude from the bare fact that this document includes data on the race of all weather employees at the station that Ossmann was fired because of his race,” the court decided. Thus, it affirmed the ruling in the company’s favor.

Ossmann v. Meredith Corp., No. 22-11462, 2023 U.S. App. LEXIS 23896 (11th Cir. 9/8/23).