Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The sad reality is that, on rare occasion, some employees will revert back to their middle school days and behave like a couple of children. Some will even resort to physical fighting. In such a case, employers are faced with a difficult question -- can I punish one employee more than other if I think they "started" it?

The answer has not always been as clear as you'd like in Connecticut.  Indeed, earlier this month, I commented about a case where the employer punished both employees -- and was still subject to a discrimination claim.  But the Second Circuit provided some helpful guidance to employers and suggests that not all fights need to be treated the same. 

The Second Circuit yesterday released an interesting "summary order" (being it is not "binding precedent") that tackles the subject even further.  In Mincey v. University of Rochester (download here), the Court was faced with an age discrimination claim by a former employee who was terminated for her role in an altercation with a younger co-worker, who was not. 

The employer moved for summary judgment on the claim arguing that the termination, which resulted from determining that the Plaintiff was the instigator, in an altercation, did not give rise to an inference of age discrimination.  The lower court granted the employer's motion and the employee appealed.

At first, it appears that the court is going to overrule the District Court's decision. Indeed, it concludes that the district court erred in finding that the employee was not terminated under circumstances giving rise to an inference of discrimination:

Although it is true, from the record, that Mincey admitted to striking [her co-worker], the record also demonstrates that she consistently stated that she had struck [her co-worker] only after he had struck her with his index finger. Taking the evidence in the record in a light most favorable to Mincey, her contention that [her co-worker] hit her first is sufficient to demonstrate that her termination gave rise to an inference of discrimination.

But the court quickly shoots down the employee's claim that her evidence was sufficient to send the case to trial because it found that the employer's decision was not false or "pretextual".

[E]ven if the conclusion made by the Hospital after its investigation was incorrect-- even if [the co-worker] did actually strike Mincey first -- so long as  that conclusion was the “actual purpose” for her termination, Mincey’s age-discrimination claim fails. An incorrect conclusion, while unfortunate for Mincey, does not constitute age discrimination.

Notably, for employees and their counsel, the case does highlight two arguments that could have been made that might have helped the employee's cause -- but were not. 

For example, the court notes that "Mincey offered no evidence that the investigation was improperly conducted for the purpose of providing a pretextual explanation for an otherwise discriminatory termination." The court also notes that plaintiff did not offer evidence "to suggest that other employees who had struck their coworkers had not been terminated by the [employer], or to rebut the [employer's] evidence that it uniformly terminated employees for fighting. "

The case shows that for employers, a consistently applied disciplinary policy will assist the employer in defending against discrimination cases.  It also reinforces the notion that were an employer conducts an investigation before terminating employees, that investigation should be thorough enough to withstand some criticism.  The case highlights the fact that employers should not be afraid to treat employees in a fight differently, but should be prepared with a good reason for doing so.

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As cases go, Smith v. Connecticut (D. Conn., Jan. 9, 2008) (Bryant, J.) will not rank up there in the annals of legal history.  (Even the name of the case sounds generic.)  Moreover, when you read the facts, the case doesn't scream "precedent".  The Smith case, however, reinforces the notion that consistently applied disciplinary policies are typically key to avoiding discrimination cases, as I've stated previously. 

But the case also shows that there need not be a blind application of this rule to the specific case you may have at hand.  Each case may be different, whether based on the position that someone holds (supervisor/non-supervisor) or the severity of the incident alleged. 

According to the Court:

On November 20, 2004, Smith was acting as shift supervisor at the Hartford Correctional Center when another lieutenant, Rhonda Arnold, confronted him and initiated an argument. Arnold grabbed certain papers away from Smith,sat on them, and refused to return them. A third lieutenant, Kyle Godding, observed the incident and told Smith to leave the room so that Godding could try to retrieve the papers from Arnold. Smith did not leave, and Arnold then struck him with her hand. Smith and Arnold proceeded to engage in a physical altercation, and Smith ultimately pinned Arnold against a window, grasping her shoulder with one hand and her neck with the other hand. Godding pulled Smith away from Arnold and stepped between them, but Arnold then picked up several objects from a desk and hurled them at Smith. Finally, Smith left the room. The entire incident lasted approximately five minutes. Arnold experienced redness on and discomfort in her neck after the altercation.

Smith and Arnold were subsequently placed on administrative leave and then terminated. ... Smith then filed this action, claiming that the department terminated him because of his race. In Smith’s view, he received a harsher form of discipline for his role in the altercation because of his race. Smith and Arnold are both African-American.

Now, looking at the case, and the fact that both of the people engaged in the altercation were African-American (and both terminated), the initial instinct might be to simply argue that there is no disparate treatment here because both employees were fired.  But the employer here argued in the summary judgment papers, something further; that it had terminated white employees for the same or similar conduct.  (The employee's brief in opposition can be downloaded here.)  It was an argument that ultimately the court said was unnecessary because none of the comparisons mattered.

All told, the evidence submitted by the parties indicated that 3 white employees were terminated for physical altercations, 5 white employees were not terminated for physical altercations, and 2 African-American employees were not terminated for physical altercations.  

The court, however, rejected comparison to all of them because there were not "similarly situated" to the Plaintiff. What does that mean? Most were not supervisors like Smith was; the Court found that it would only compare Smith to those who held the same rank or higher than he did.  And the incidents of physical conduct varied in scope from what was alleged here.

Therefore, the Court granted the Department of Corrections summary judgment noting, "it appears that the department has not terminated some African-American employees who were involved in violent workplace incidents, while the department has terminated some white employees who were involved in violent workplace incidents."   The Court concluded that there was insufficient evidence to suggest that the employee's race was a factor in his termination.

The case highlights the need for consistency because any variation will be heavily scrutinized. But it also demonstrates that blind adherence to past cases need not be rigid. Courts will allow employers to view each case on its own if it is not similar to past incidents.  Suppose that an employee had been previously warned about their misconduct, while another employee had not. The Court would likely view those people as not "similarly situated" for purposes of a comparison should they later engage in misconduct.

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