Failure to Perform Doesn’t Equal Discrimination

I may be a bit naive—even after 21 years of practicing law—but I have a hunch that the last person an employer would target for unlawful race and ethnic origin discrimination would be the Director of Affirmative Action.

Just a hunch.

Well this issue came up at Santa Clara University. There, the “aggrieved” employee was none other than Conchita Franco Serri, Santa Clara University’s Director of Affirmative Action since 1992. Until she was fired, that is, on March 7, 2007, after which a lot of litigation ensued. Defendants prevailed on summary judgment, which was affirmed on appeal.

What started all of this ugliness? Serri’s apparent failure to do her job, namely, failing to prepare three annual Affirmative Action Plans. Not only did Serri fail to produce the Affirmative Action Plans, when she was called on it, she blamed others for her failures!

What was her legal argument on appeal? Serri claimed that even though she didn’t do her job, it didn’t harm Santa Clara University.

How that argument supports a case for discrimination is beyond me, but then again, I didn’t graduate from Harvard and then Boston College Law School. They didn’t teach us this defense at McGeorge!

This case was a train wreck from the get-go, with sustained demurrers and amended complaints. The soap-opera detailed in the opinion makes me wonder why it took so long for the fine folks at Santa Clara University to fire Serri. I also wonder what would inspire a plaintiff like this to file a lawsuit in a case like this and then to appeal the slam-dunk summary judgment, just so an appellate court can affirm the judgment with all of the sordid details spelled out in a published court opinion which will be around forever for all to read?

Man, it would have been easier to simply produce those Affirmative Action Plans!

And I really do represent plaintiffs! Just not plaintiffs like this.

Conchita Franco Serri v. Santa Clara Univ., 2014 Cal. App. LEXIS 467.

This entry was posted in Cases to Avoid. Bookmark the permalink.

Comments are closed.