Developing circumstantial evidence of intent in the decision-maker’s deposition

As any experienced employment lawyer knows, there is one overriding goal in deposing the decision-maker in an employment discrimination case: to discover evidence of the decision-maker’s discriminatory intent. In essence, this goal requires that the decision-maker admit either that she took the adverse employment action because of the plaintiff’s (i.e., the former employee’s) protected status or that she made blatant discriminatory comments about the plaintiff in discussions regarding the adverse employment action. As the courts have recognized, however, it is “very difficult to uncover” direct evidence of discriminatory intent.

Assuming direct evidence of discriminatory intent is unavailable, your employment lawyer must seek to discover evidence from which discrimination can be inferred. This is usually a two-step process. First, your attorney will uncover the defendant’s explanation for the adverse employment actions taken against you. This is a straightforward task, usually accomplished by simply asking the decision-maker why she made the decision to not hire, demote, or fire you. The second step is more difficult—to discover evidence that will allow you to prove that the employer’s explanation for the adverse employment decision is false. In attempting to fulfill this second goal, your employment lawyer may inquire into the following subject areas:

  • The employer’s policies and procedures for documenting disciplinary actions and problems. [If pressed, most decision-makers will admit that it is company policy and practice to document serious discipline/performance problems. With this admission, it is easy for your employment lawyer to argue that any discipline/performance problems that you may have had, which were not documented, were not serious.]
  • Who else participated in the adverse employment action decision?
  • Who played any role in the adverse employment action decision? [Even if the decision-maker harbored no discriminatory animus, you may find evidence that the decision was based on information “contaminated” by one who did harbor discriminatory animus. For example, if the general manager of the plant made the ultimate decision about who to include in a reduction-in-force, he may admit during his deposition that he included you in the reduction-in-force solely based upon a workplace evaluation of you by a supervisor who did harbor discriminatory animus.]
  • Whether any documents (e.g., performance evaluations, disciplinary write-ups, etc.) were relied upon in making the adverse employment decision.
  • Any notes or documents regarding the adverse employment action decision.
  • Your work performance, personnel file, and other files (desk-files) maintained by the employer.
  • Similarly situated employees and information about their performance, job qualifications, and educational background.
  • Whether you were treated the same as similarly situated employees.