Can Employment Discrimination Victims Still Prevail When They Have A “He Said, She Said” Case?

Having represented employment discrimination victims for more than twenty years, our employment lawyers in Marion County, Florida know that a common employment law myth is employment discrimination victims do not have meritorious claims when their case involves a “he said, she said” scenario. This employment law myth, our Ocala, Florida employment attorneys have learned, is perpetuated by employers who routinely argue that employment discrimination cases without corroborating witnesses are entirely baseless, if not frivolous.

In perpetuating this employment law myth, employers incredulously refuse to acknowledge they defend employment discrimination cases through the testimony of biased employees who, whether acting out of self-interest or self-preservation, shamelessly parrot the employer’s self-serving factual account of events. Brazenly ignoring they do what they vehemently condemn, employers disingenuously maintain that employees cannot prove employment discrimination cases through their own allegedly self-serving testimony. In this article, our employment attorneys in Marion County, Florida explain how the decision in Brown v. Metropolitan Dental Associates, D.D.S. P.C., 2023 WL 5154415 (S.D. N.Y. Aug. 10, 2023) illustrates that the overwhelming majority of employment discrimination cases involve a classic “he said, she said” scenario.

Employment Discrimination Lawsuit

In that case, a woman named Brown brought an employment discrimination lawsuit against her former employer, Metropolitan Dental Associates, D.D.S. P.C. (“MDA”), pursuant to the Pregnancy Discrimination Act (“PDA”). The PDA prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. Brown claims that she was discriminated against because of her pregnancy in violation of the PDA.

In May 2019, Brown began working as at dental assistant at MDA. On July 5, 2019, Brown learned that she was pregnant. At that time, Brown was advised by her doctor that her pregnancy was high risk due to her age. Brown was directed to avoid nitrous oxide and x-ray radiation to protect her unborn child. Shortly thereafter, Brown told a dentist employed by MDA, Naco, that she was pregnant. Brown claims that she asked Naco to keep her away from nitrous oxide and x-ray radiation consistent with the medical advice she received from her doctor. Naco allegedly denied Brown’s request for accommodation without providing a reason and advised Brown to continue working.

After Brown advised Naco that was pregnant, Naco purportedly asked Brown if she planned to keep her child as doing so would hinder Brown in performing her duties as a dental assistant. Naco allegedly berated Brown for her work performance in a way that she had never done before Brown requested her accommodations. Brown claims that Naco told her that new dental assistants would be hired, which Brown understood as a threat to her employment. Brown further claims that on one occasion in September 2019, Naco sent her home. Brown believes that she was sent home as she was unable to take x-rays or be in the room with nitrous gas.

Pregnant Worker Claims She Was Fired

After approximately five days at home, Brown called a dentist employed by MDA, Orantes, to inquire about returning to work. Brown alleges that Orantes provided little insight into her work situation and advised that she refrain from calling him. Brown maintains that she had previously discussed her pregnancy with Orantes and asked to be kept away from x-rays and nitrous gas. According to Brown, Orantes had instructed her to obtain a doctor’s note advising what accommodations were required. Brown claims that she provided a medical note directing her to stay away from nitrous oxide and x-ray radiation to a human resources representative of MDA.

On October 3, 2019, Brown met with Orantes and another dentist employed by MDA, Cohen. Brown alleges that Cohen insulted, yelled at, and belittled her in this meeting. Cohen allegedly told Brown that dealing with her was a “pain” and accused her of poor performance. Brown further alleges that she was accused of preferring litigation to continue her employment at MDA. Cohen purportedly told Brown to return to her doctor and get a letter indicating that there is no medical reason for Brown not to perform routine dental duties, including taking x-rays. Brown claims that she was informed that this new letter would be required for employment to continue. In return, according to Brown, Cohen indicated that he would try to keep her away from x-rays and nitrous gas and would transfer her to the general practice department.

Brown contends that she asked Cohen if she could continue working prior to acquiring the new letter as her next doctor’s appointment was scheduled for October 16, 2019. Brown also claims that she asked Cohen if she could be transferred to the periodontal treatment department instead of general practice. Cohen, evidently believing that Brown was being uncooperative with the process, directed Brown to leave his office. Brown understood Cohen’s statement to mean that she was terminated; she subsequently applied for unemployment assistance. Neither Cohen nor Orantes believes that Brown was, in fact, terminated.

“He Said, She Said” Scenario Goes To Jury

MDA filed a motion with the trial court seeking the dismissal of Brown’s pregnancy discrimination claim. In moving for dismissal, MDA argued that Brown was accommodated and was not terminated. The trial court denied MDA’s motion for dismissal and ruled that Brown had presented sufficient evidence to establish that she was discriminated against because of her pregnancy in violation of the PDA.

In denying MDA’s motion for dismissal, the trial court explained that there were “major disputes” about the facts, including whether Brown’s pregnancy was in fact accommodated, Brown’s desire to engage in constructive dialogue with her supervisors regarding her employment, and whether Brown was in fact terminated. Based on the conflicting account of events, the trial court observed that “before the Court is a classic ‘he said/she-said’ scenario, which involves an assessment of credibility and the resolution of competing inferences from the disputed facts.” Where there is a “he said, she said” scenario, the trial court explained, it is for the jury—not the court—to decide which conflicting versions of events to believe. Thus, the trial court concluded that “this case must be tried by a jury.”

Marion County, FL Employment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment attorneys in Marion County, Florida have litigated employment discrimination cases in Florida courts for more than two decades. If you have experienced workplace discrimination or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our employment lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.