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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Sunday, December 14, 2014

When you have a case, and when you just don't

From Wait A Second!, the Second Circuit civil rights blog, discussing a recent case from the U.S. Second Circuit Court of Appeals, about an employee who says that he was fired because of his disability: Although he admitted his inaccurate time records, he said that he was treated more harshly than other employees. The employee lost:

But plaintiff "has not identified any other similarly situated employees -- that is, employees who admitted submitting erroneous timesheets -- much less shown that they were treated more leniently than he was."

So what do you need to prove a case?

Best would be a statement of the decision-maker to indicate prejudice as a reason to discipline or terminate, and fairly close to the event, supported by a witness or something in writing, like an email.  Alternatively, it would be good if you had a statement from the employer that it knew or strongly suspected its reason was a false one, supported by a witness or in writing.


Absent that, you can provide circumstantial evidence for what we lawyers call "pretext." That means the employer's reason was not the real reason for the discipline or termination, and that prejudice was the real reason.  (I note that the standards for retaliation for making a complaint are a little different.)

Showing "pretext" could involve a lot of things.  Here's a list from J.F. Beasley, an employment discrimination lawyer in Georgia, who has published a good discussion of the issue. (http://www.jfbeasleylaw.com/) The more of these you have, the more likely you are to have a good case.

1) Suspect business practices
  • Listing the race of employees in a matrix showing employees subject to discipline, as in Smith v. Lockheed-Martin Corporation, 644 F.3d 1321 (11th Cir. 2011).  
  • An employer’s failure to adhere to a documented policy and practice of hearing an employee's side of the story before terminating him, as in Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 68
    (1st Cir. 2008)
  • An employer's failure to show that it consistently applied a policy of terminating probationary employees that receive negative evaluations and warnings, as in Lugo v. Avon Products, Inc., 2011 WL 747961 (D.P.R. 2011)
  • See the original paper for other cases
2) Implausible reasons for termination
  • Physical contact with manager during investigatory interview because the employee was specifically asked to demonstrate how he had touched another employee, as in Garabedian v. Lone Star Steakhouse & Saloon, 2007 WL 1795677 (E.D. Pa. 2007)
  • Layoff due to overstaffing and efficiency where most of the construction crews were working 10 hour days, six days a week and the project was months behind schedule, as in Hall v. N.L.R.B., 941 F.2d 684, 688-89 (8th Cir. 1991)
  • Rejection of application for "refusal" to submit to pre-employment medical tests, where the employee said she “would not want” to take further tests in light of her pregnancy, as in Beatty v. Chesapeake Ctr., Inc., 818 F.2d 318, 322 (4th Cir. 1987)
  • See the original paper for other cases
3) Inconsistencies and Shifting Reasons
  • Terminated for participating in an unauthorized infomercial, first based on a contract, then shifting to a non-compete agreement, to an unwritten policy, to a standard industry practice, as in Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004).  
  • Less qualified for the position because of insufficient core area expertise, but it turned out that the focus was on non-core areas, as in Kobrin v. Univ. of Minnesota, 34 F.3d 698, 703 (8th Cir. 1994)
  • After an employer was bought out, employees were fired in order to provide the division with a team from the purchasing corporation, but then poor performance was alleged, then it was said the whole management team was fired for failure to sell a facility, but only some of the management team were fired, and some non-management, as in Cicero v. Borg–Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir.2002) 
  • See the original paper for other cases
4) Past Discrimination and General Practices

  • An employer who excluded minorities from its workforce, had fired two other employees specifically because of their ages, offered free rides to white customers but not black customers, and that members of management used the n-word, as in Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988)
  • Black workers who complained about racial discrimination were terminated, and subjected to new conditions, such as being required to sign a promissory note on an employee salary advance, being reprimanded for disabling automatic deductions from paychecks, being warned about having visitors at work, and receiving a disproportionate amount of the workload, as in Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir.2008)
  • See the original paper for other cases
5) Comparators

This refers to evidence that other employees, who were similarly situated to the plaintiff in terms of job and disciplinary history, who engaged in the same or substantially the same behavior, were not disciplined as seriously. Different courts require different levels of similarity, with some requiring "nearly identical" comparators, and others permitting "reasonably similar" comparators. 
  • An employee was terminated for allowing abuse of equipment, failure to cooperate with investigation, and improper recording of overtime, although another employee who jointly participated and was not fired, as in Rogers v. White, 657 F.3d 511 (7th Cir. 2011)
  • An employee was fired because she told her psychiatrist she was having thoughts of killing her supervisor, but two other employees at the same facility had recently threatened another employee at knife-point, yet received only one-week suspensions from the same manager, as in Coleman v. Donahoe, 667 F.3d. 835 (7th Cir. 2012).
  • Employees were fired for excessive absences, while another employee was only suspended for three days, as in Billingsley v. Jefferson Cnty., 953 F.2d 1351 (11th Cir. 1992).
  • See the original paper for discussion
Unfortunately, it is often difficult, even with the evidence described here, to tell which cases are winners and which ones are losers. The courts have become increasingly unsympathetic to employees' claims of employment discrimination. The application of the law has become more of a question of the political beliefs of the judges than the application of clear law. The question of whether a particular judge will permit broad discovery into comparable employee records, so as to permit finding of suspect business practices, past discrimination and comparators, is also key. One case may look like there is no evidence, though there is a mass of it just sitting on the other side of a discovery motion. Another case may look clear, but the judge assigned believes that employers shouldn't be held responsible unless they say they're firing you because of your race or sex, and makes up all kind of reasons why the 47 other employees who didn't get fired for similar or worse infractions aren't "substantially similar." Sometimes it comes down to a gut feeling as to which case just smells right. This isn't a blog post dissecting the dysfunctions of the law, which would have to be much longer, so I'll just keep it at that.   

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