Sample Position Statement Responding to Discrimination Charge
Mr./Ms.
Enforcement Supervisor
U.S. Equal Employment
Opportunity Commission (“EEOC”)
Re: EEOC Charge No.
Employee v. Company
Dear Enforcement Supervisor:
In the discrimination charge filed on [date], [name] (hereinafter “Charging Party”) alleges
that the [Company] discriminated against her based on her race (Black) in violation of Title VII
of the Civil Rights Act of 1964, by placing her on a performance improvement plan, by declining
her request to be moved to another position to avoid her performance issues, and by terminating
her employment after she failed to satisfy the plan’s requirements. Charging Party further alleges
that [Company] subjected her to a hostile work environment because her managers criticized her
work performance and she received less support than white managers. [Company]’s thorough
investigation into Charging Party’s claims confirms that there is no evidence to support her
allegations of discrimination in any form. Therefore, [Company] respectfully requests that the
Charge be dismissed in its entirety.
Before addressing the substantive issues raised in the Charge of Discrimination, some
preliminary items should be highlighted. First, the information provided below is based on the
[Company] ’s current understanding of the available evidence. [Company] reserves the right to
submit additional relevant information, should any be revealed during its continuing
investigation of this matter.
Second, [Company]’s submission of information during the course of the Agency’s
investigation in no way constitutes a waiver of any available defenses or objections that it may
seek to raise at a later time in this or any other proceeding.
Finally, in accordance with applicable law, including Title VII, and similar state and local
regulations, the information provided by [Company] during the course of the Agency’s
investigation shall be treated as sensitive, kept confidential, and not disclosed to any third
parties, except as required by law.
FACTUAL BACKGROUND
A. The Company (background Information about the business).
B. Charging Party’s Employment at [Company] (give brief employment history and
description of prior performance reviews and prior discipline, if any).
Charging Party commenced employment with [Company] as a part-time Clerk on [date].
During her years at the Company, she applied for and received multiple promotions, favorable
reviews and accompanying salary increases, commensurate with her job performance. Most
recently Charging Party held the position of [title]. Her duties and responsibilities in that
position included [describe and attach job description]. Charging Party held this same position
for nearly three years, until her termination for poor performance.
C. Despite Management’s Support, Charging Party Fails to Improve
Her Performance for Three Years.
[Describe the background facts – here, the issue was poor performance and progressive
discipline.]
D. Charging Party Fails to Improve or to Expand Her Knowledge of
Accounts Receivable, and Is Placed on a Performance Improvement Plan.
[Describe progressive performance improvement steps or discipline.]
Despite these efforts, Charging Party failed to improve her unacceptable performance,
and she was terminated from [Company] employment effective [date].
[Company]’s RESPONSE
TO THE CHARGE OF DISCRIMINATION
Under the basic framework imposed by the Supreme Court,1 Charging Party must first
present a prima facie case of discrimination by establishing that:
(1) She is a member of a protected group;
(2) She was qualified for the position held;
(3) She suffered an adverse employment action, such as discharge; and
(4) Her discharge occurred in circumstances that give rise to an inference of
discrimination.
See George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005); Stella v. Mineta, 284 F.3d 135, 146
(D.C. Cir. 2003) (race discrimination, discharge); Russell v. Principi, 257 F.3d 815, 818 (D.C.
Cir. 2001) (same); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999) (same). If a claimant
cannot establish any one of these elements, then her charge must be dismissed.
In this case, it simply is impossible for Charging Party to establish a prima facie case of
race discrimination, and, therefore, her charge must be dismissed.
I. It Is Impossible for Charging Party to Establish Even a Prima Facie Case Of
Race Discrimination, as She Was Terminated Only After She Failed to Correct
Significant Performance Deficiencies for Three Years.
1
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Charging Party worked for [Company] successfully for many years, and was awarded
significant promotions, favorable ratings, and salary increases without regard to race because her
performance in other positions warranted such recognition. Regrettably, however, her most
recent promotion proved to be overwhelming for Charging Party and a mistake for [the
Company]. Despite coaching from the Director and nearly three years to learn the position,
Charging Party was never able to actually do the job by herself. Poor performance, not race, was
the only motivating factor here.
Accordingly, it is impossible for Charging Party to establish even a prima facie case of
discrimination in any form, and the pending charge is subject to immediate dismissal on this
ground alone.
II. It Is Impossible for Charging Party to Establish That [Company]’s Stated
Reasons for Her Termination Constitute a Pretext for Race Discrimination.
Even if it were possible for Charging Party to overcome this insurmountable evidentiary
hurdle, establishment of a prima facie case raises merely a presumption of discrimination, which
[Company] effectively has rebutted by articulating legitimate, nondiscriminatory reasons for its
decision to terminate her employment – her failure to meet objective benchmarks established as
performance measurements after three years as a manager. See Mungin v. Katten, Muchin &
Zavis, 116 F. 3d 1549, 1554 (D.C. Cir. 1999), citing Texas Dep't of Community Affairs v.
Burdine , 450 U.S. 248, 254 (1981). Thus, Charging Party must prove that Company’s stated
reasons for its actions constitute a pretext for discrimination. At all times, Charging Party bears
the ultimate burden of proving that she has been the victim of intentional discrimination. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993); Mungin v. Katten, Muchin & Zavis,
116 F. 3d at 1554; Waterhouse v. District of Columbia, 298 F. 3d 989, 992 (D.C. Cir. 2002).
Charging Party alleges that [describe allegations from complaint and refute factual basis].
Nor is Charging Party’s allegation that she was denied the opportunity to move to another
job probative of race discrimination. The alleged request came only after Charging Party was
placed on a performance improvement plan that could lead to termination from employment.
Under such circumstances, it makes no sense to simply transfer serious performance problems
along to another manager. Charging Party’s reference to an unidentified white employee who
was “encouraged” to apply for another position by an unknown supervisor is equally
unpersuasive. After all, Charging Party herself was promoted repeatedly. Finally, legitimate,
business-related criticism of substandard work performance cannot create an actionable hostile
work environment as a matter of law.
In short, it defies common sense to suggest that the decision to terminate Charging Party
from a position in which she continued to feel overwhelmed after three years, after promoting
her repeatedly over a period of many years, suddenly was motivated by her race and not her
work performance. Accordingly, the pending Charge of Discrimination must be dismissed on
this additional ground.
CONCLUSION
Without question, the factual evidence in this case confirms that Charging Party’s race
played no role whatsoever in any decision made with respect to either her previously successful
employment or her termination. There are several sound reasons to support the Agency’s
dismissal of this Charge of Discrimination. Thus, [Company] respectfully requests that the
EEOC issue a no probable cause finding in this case and dismiss the pending charge with
prejudice, without further delay.
Should you need any additional information, please do not hesitate to contact me.
Sincerely,