THE BLOG
01/24/2014 02:58 pm ET | Updated Mar 26, 2014

Employer's Uneven Discipline Supports Employee's Retaliation Claim

Employers without uniform employee disciplinary actions risk an employee's assertion that an imposed workplace discipline is unlawful retaliation for utilizing protected rights. When the discipline in question is beyond what other similarly situated employees received, the employee has a credible claim of retaliation. The U.S. Court of Appeals for the Tenth Circuit overturned a trial court's summary judgment in favor of an employer in such a case (Smothers v. Solvay Chemicals, Inc).

The 18-year employee had taken medical leave as allowed by law. He was subsequently fired for a first-time safety violation. The employee apparently had excellent performance reviews until he took medical leave. Then his evaluations were lowered for absenteeism. He was initially pressured to change work shifts with a pay cut so that his absences might be more easily covered. Other events occurred and ultimately the employee asserted unlawful retaliation under the Family and Medical Leave Act and the Americans With Disabilities Act. The employee was able to demonstrate that other employees who had committed safety violations had not been terminated.

The Court reviewed the typical shifting burden of proof in these cases. First the employee must present a small amount of evidence of discrimination or retaliation (the prima facie case). This requirement is "not onerous" and is reviewed under a preponderance of the evidence standard. The employee having accomplished that, the burden shifts to the employer to produce evidence of a legitimate nondiscriminatory reason for its action. At this stage the employer is not required to prove its claim. Finally, the burden moves to the employee to demonstrate that the employer's stated reason is a pretext to hide the unlawful action.

Evidence of pretext may take many forms including evidence that the employee "was treated differently from other similarly-situated employees who violated work rules of comparable seriousness." To be "similarly-situated" the employees must share the same decision maker or supervisor. This employer used a group to make disciplinary decisions involving safety violations. Five members of the six member group that disciplined this employee had been members of a group that gave less severe discipline in comparable cases. The Court stated that requiring all the disciplinary group members to be identical would make it too easy for an employer to avoid liability. This was a key factor in the Court's decision that remanded the case on the retaliation issue.

However, the Court did uphold summary judgment in favor of the employer on the employee's claim of breach of an implied contract. Applicable Wyoming state law allows this claim if the employer fails to follow its own employment procedures or fires without just cause. While the employment handbook in question contained a four-step progressive disciplinary process with termination at the end, the handbook also allowed immediate termination for a serious offense, including a safety violation. The handbook did not address the motivation for imposing discipline or require consistency in imposing discipline. Consequently, the broad discretion allowed in the handbook favored the employer on this issue.

The Court's decision contains several lessons. Downgrading an employee's evaluation for work absences resulting from medical conditions just invites problems. Employers should not attempt to structure an accommodation in a manner that cuts an employee's pay. Employers must require decision makers to apply employee discipline uniformly for similar offenses or have a clearly stated legitimate reason for deviations from the norm. Review employee handbook procedures with attention to what employer actions are mandatory and what employer actions are discretionary.