While employers are understandably concerned about disparate treatment claims, the courts have become increasingly demanding in what they require from employees to establish the employer actually treated them differently enough to support the finding of a prohibited animus.
A recent case from the U. S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—shows how a union contract can be a shield against state law-based claims.
Facts
Leah Findlator and Leah Baruch worked as lab technicians for Allina Health Clinics. Findlator is a black woman from the United Kingdom who was employed by the company from August 2012 until her termination on December 6, 2016.
While Findlator had a positive performance history at Allina, she had interpersonal problems with Baruch, who is white. Findlator complained to supervisors about difficulties with Baruch and alleged Baruch made a comment about Findlator being in a gang.
On December 2, 2016, Findlator and Baruch got into a heated argument that spilled out of the lab and into an occupied patient waiting room. As the argument escalated, Baruch took off her lab coat and twice threw it in Findlator’s direction. Findlator then approached Baruch, put her hands on Baruch’s shoulders, and pushed her.
After HR completed its investigation of the incident, Allina issued corrective action notices to both Findlator and Baruch:
- Baruch was cited for violating Allina’s respectful workplace and commitment to care policies and issued a suspension and a final warning. At the time of the decision, the employer believed her lab coat didn’t actually hit Findlator.
- Findlator was cited for violating the same two policies and also Allina’s violence-free workplace policy.
Findlator was terminated, while Baruch was only suspended.
Findlator filed a grievance through her union because she received a more severe punishment than Baruch, and an arbitrator determined her termination was unwarranted. Allina offered to reinstate her, but she refused and instead filed suit in federal court alleging she was a victim of discrimination because of her race and national origin.
The district court granted summary judgment (dismissal without a trial) to Allina, and Findlator appealed to the 8th Circuit.
Review Standard on Appeal
As an initial matter, the 8th Circuit noted in summary judgment cases, it reviews the evidence without deference to the district court’s findings. It views the evidence in the light most favorable to the losing party and draws all reasonable inferences in that party’s favor.
The employee must either present direct evidence of discrimination or create a sufficient inference of bias under the McDonnell Douglas framework. Direct evidence consists of a specific link between a challenged decision and discriminatory animus.
Findlator alleged she presented direct evidence of discrimination including:
- Allina’s consideration of her race during its investigation to ensure no discriminatory animus affected its decision;
- Baruch’s comment that Findlator was in a gang; and
- Allina’s failure to cite Baruch for violating the violence-free workplace policy.
The 8th Circuit rejected her contention, finding none of her proposed direct evidence established a specific link between her termination and a discriminatory animus.
No Direct Evidence of Discriminatory Animus
Reviewing the record, the 8th Circuit noted Allina considered Findlator’s race only for her benefit to ensure any corrective action wasn’t based on race discrimination. The court found Baruch’s comment about Findlator belonging to a gang wasn’t enough to be direct evidence of racial animus because Baruch was only a coworker with no authority over the decision to fire Findlator. The court noted bias must be from a decision maker and relate to the decision process.
The 8th Circuit then found Allina’s failure to note a violence-free workplace policy violation on Baruch’s corrective action notice, standing alone, didn’t evidence a discriminatory animus. The company’s “zero tolerance” policy pertained to violent behavior or threats of violence.
An HR director testified Baruch wouldn’t have been terminated based on her misconduct even if she had been cited for violating the violence-free workplace policy. The failure to cite her under the policy wasn’t enough to show a specific link to a discriminatory animus.
Without direct evidence of discrimination, the 8th Circuit then turned to the familiar burden-shifting McDonnel Douglas analysis. Under that framework, an individual must first state a prima facie (or minimally sufficient) discrimination case, which shifts the burden to the employer to proffer a legitimate, nondiscriminatory reason for the challenged action.
If it presents a nondiscriminatory reason, the burden shifts back to the employee to show the alleged reason was a pretext (or cover-up) for discrimination.
Not Sufficiently Similar to Allow Inference of Discrimination
The 8th Circuit assumed Findlator had established a prima facie case and focused on whether she showed Allina’s stated reason for firing her was pretext. An employee can show pretext by presenting evidence that an employer failed to follow its own policies or treated similarly situated employees in a disparate manner.
Failure to follow policy is relevant evidence of pretext but isn’t necessarily dispositive in every case. The court emphasized similarly situated employees must be “similarly situated in all relevant respects,” which requires the violations to be of “comparable seriousness.” In other words, the employees being compared must have committed “the same conduct without any mitigating or distinguishing circumstances.”
Allina’s violence-free workplace policy states violators “will be subject to corrective action.” The 8th Circuit noted the policy lists examples of impermissible behavior but doesn’t prescribe a particular corrective action.
When determining the appropriate corrective action for the misconduct under consideration, the policy gives the employer the discretion to distinguish different acts of violence and separate violent acts from threats of violence.
The 8th Circuit observed Allina’s response to Findlator’s grievance and the deposition of an Allina HR director made it clear the employer believed pushing a coworker was more severe than throwing a lab coat at a colleague and that Findlator’s behavior justified a more severe punishment.
Nothing in the company’s violence-free workplace or other policies prohibited it from treating some offenses as more severe than others and selecting a corrective action it believed was proportional to the level of severity for the violation.
Because Findlator and Baruch engaged in different types of misconduct, the 8th Circuit found they weren’t similarly situated and that not including a violation of the violence-free workplace policy on Baruch’s corrective action notice wasn’t enough to show disparate treatment.
It found the employer’s rationale for firing Findlator, but only suspending Baruch, would have applied with the same force regardless of whether the latter’s notice included a violation of the violence-free workplace policy. Accordingly, the court found Findlator failed to establish she was a victim of prohibited discrimination and affirmed the dismissal of her case.
Bottom Line
You should always be attuned to whether employees of different races, genders, or national origins are treated in the same manner under similar circumstances. You should always do what Allina did: Review the races or other characteristics of disciplined employees to determine if there is a reason to believe one might have been treated more harshly than a counterpart engaging in the same or similar behavior. But that doesn’t mean you must be paralyzed by false equivalencies.
Findlator’s case makes clear the circumstances must truly be similar to the point of being nondistinguishable if differences in treatment are going to be sufficient to establish disparate treatment. If there’s a demonstrable basis for different treatment (here it was the physical contact of pushing compared to throwing a coat without contact) and the policy allows the employer discretion in treating the circumstances differently, the courts will defer to the employer.
If Allina’s policy had been that all employees will be terminated if they engaged in a physical altercation, it might have been harder to justify treating Baruch more leniently than Findlator. Its policy did allow discretion, however, and there was a rational basis for treating the actions of the two participants differently.
Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at sjones@jacknelsonjones.com.