would you summarize? Respondent's records will normally be the best source of evidence in a discharge or discipline charge. Most discharges and disciplinary actions are included in an employee's personnel file with the reason for each action noted. The failure by respondent to include a disciplinary action in a charging party's personnel file when it is respondent's policy to do so may be evidence that the disciplinary action was based on a discriminatory motive. The following example illustrates this point.

Example - CP was employed by R as a machinist. R alleges that CP was discharged for repeatedly violating company rules. CP, a Hispanic, denies that he repeatedly violated company rules. He alleges that he was discharged because of his national origin. He also alleges that his supervisor has made several disparaging remarks about Hispanics. The EOS is able to confirm this allegation through the testimony of several of CP's co-workers. A review of CP's personnel file did not reveal any documentation of the repeated violations of company rules, though it is respondent's policy to reduce each infraction of company rules to writing. CP identifies several employees who have been disciplined for violating company rules. A review of the personnel files of these employees reveals that the violations and the disciplinary actions taken because of the violations were all indicated in the employee's file. The fact that R did not indicate in CP's personnel file that he had repeatedly violated company rules lends credence to CP's allegations that he has not repeatedly violated rules. When R is asked about this discrepancy, its explanation is that its policy is to document all serious infractions of company rules. R states that CP's immediate supervisor apparently failed to take action to have the infractions included in CP's personnel file. The failure to document the alleged violations of company rules coupled with the supervisor's discriminatory attitudes towards Hispanic indicates that there is reasonable cause to believe that CP was discharged because of his national origin.

Respondent's records are also useful when charging party admits that (s)he has violated company rules, but alleges that employees of a different race, sex, color, or national origin have not been discharged or disciplined for the same or similar infractions. The following example illustrates this point.

Example - CP, a Black male, was discharged by R for the alleged theft of company property. It is undisputed that one of R's employees was seen attempting to remove some copper wire from R's premises. This man and another man signed statements outlining their roles in the attempted theft. Both men identified CP as the instigator of the attempted theft. R did not witness CP attempting to steal any of its property, and CP consistently denied that he planned the theft. R discharged CP and the other two employees, who are also Black, for violating R's rules and regulations which prohibit theft from R and from fellow employees. CP alleges that R applies this rule to its Black and White employees in a disparate manner. He contends that theft of company property is widespread and that R is aware of the problem but has not taken disciplinary action against White employees caught stealing. A review of the personnel records of several similarly situated employees identified by the CP indicates that several White employees have also been caught stealing, but they were not discharged. The only employees discharged for theft were the CP and the two individuals identified above. The records also indicate that R had reason to suspect that several White employees had stolen from R or from each other but they were not discharged. This comparative evidence indicates that there is reasonable cause to believe that a violation of Title VII has occurred. Commission Decision No. 81-1, CCH Employment Practices Guide ¶ 6759.

When an individual is discharged for violating respondent's rules and regulations, charging party's guilt or innocence is not normally at issue in the charge, and the investigation should not focus on this issue. In the example above, there is substantial evidence that charging party was involved in the attempted theft of respondent's property, but charging party's guilt or innocence was not at issue in the charge. The charging party alleged that White employees are not discharged for theft. The investigation is therefore limited to whether charging party was treated differently than Whites caught stealing, or who were suspected of stealing company property.  A respondent may justifiably discharge one who has engaged in unlawful acts against it, but only if this criterion for discharge is applied alike to members of all Title VII classes. McDonnell Douglas Corp. v. Green, supra; McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 12 EPD ¶ 10,997 (1976); Holman v. Anchor Distributors, Inc., 472 F. Supp. 361, 22 EPD ¶ 30,581 (E.D. Mo. 1979).