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

After a long day of taking depositions on Tuesday, there's nothing like coming back to my computer with dozens of e-mail messages and hundreds of posts to read on the RSS feeds.  And, when I saw that the U.S. Supreme Court decided an employment law case, my brain got excited for a brief moment (and frustrated that I spent a day sitting in a conference room).

After all, when "The Nine" (good book by the way) speak, SURELY they must have something important to say. 

But alas, the decision issued on Tuesday by the Court is a let down. Don't get me wrong, I expected the results (though did not go into length about it as the Workplace Prof did), but I was hoping for something more dramatic than the nine-page, unanimous, color-by-numbers and connect-the-dots decision by Justice Thomas.

The SCOTUS Blog has, as usual, the most concise summary about the case, Sprint/United Management v. Mendelsohn.

[The Supreme Court] overturned a federal appeals court ruling on how courts are to treat ”me too” evidence — workplace discrimination testimony by workers other than the one raising a job bias claim.  In a unanimous decision, written by Justice Clarence Thomas, the Court found the Tenth Circuit Court in error in deciding on its own, without remanding to a trial judge, that such evidence is admissible.

Federal rules, the Court said, “do not make such evidence per se admissible or per se inadmissible.” It is up to District Courts, in trying job bias cases (here, an Age Discrimination in Employment Act case), to sort out the fact-intensive nature of such evidence. “Whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” the opinion said.

Since other employment law bloggers have already dissected what's left of the decision, perhaps its best to let them start to summarize the case.  Here's the rundown:

• Michael Fox at Jottings by an Employer's Lawyer calls it "[T]he equivalent to a judicial mulligan"
• Law Memo says the case "was not so much an employment law case as it was an evidence case. It turned on the proper role of the trial courts versus the appellate courts in applying the Federal Rules of Evidence."
• Michael Moore, at the Pennsylvania Employment Law Blog indicates that the true issue that will be at the forefront of the practice is whether employees are "similarly situated" to the employee who has brought the suit.
  
• Workplace Prof indicates that there is "dicta" language (which for non-lawyers out there means "non-binding") in the opinion that should be watched and calls the decision "a moral victory for ADEA plaintiffs."
• Jon Hyman, at Ohio Employer's Law Blog, has another good analysis in which he states, "This decision makes a lot of sense. It skirts the ultimate issue of whether "me, too" evidence is admissible or inadmissible because that decision should be fought in the trial court, which is in the best position to examine the evidence and weigh its relevance and admissibility." 
  
• The Laconic Law Blog also finds the Court's decision unsatisfying and says the "opinion leaves many questions about the admissibility of so-called “me-too” evidence unanswered."
• Not to be outdone, John Phillips at The Word on Employment Law, stated that the case the Court "decided today was hyped, but the Court’s decision didn’t deliver on the hype. Of course, the Court wasn’t hyping it." John closes by hoping that "Maybe the next decision will bring more excitement with it."
• Perhaps Will Schendel, of Alaska Employment Law Blog had it right when he didn't even waste time analyzing the case and said the equivalent of "ditto" to the analysis of the Workplace Prof. 

For employers, though, the question remains -- what's the practical takeaway from this decision?

In my view, nothing. The Supreme Court's decision, in essence, is just telling lower courts that sometimes evidence of discrimination of other employees is admissible. And sometimes it isn't.  For employers making employment law decisions, this case will have no effect on how it will treat its employees.  After all, employers don't go into a day thinking -- "hey, I'll treat Bob nice because if I don't, then Jim is going to use how I treated Bob as evidence in his own discrimination case".

The words of wisdom spouted by others remain true today: Treat employees fairly and it will nearly always reduce the risk of lawsuits and liability. 

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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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Disciplining employees for violations of company policy is, as a general rule, a good thing for an employer to follow.  However, when a company disciplines employees differently for the same offense, perceptions of discrimination (rightly or wrongly) can creep in.

A new case released this afternoon from the United States District Court illustrates that.  In Norris v. Metro-North Commuter Railroad Co.(Case No. 06-cv-00439)(Arterton, J.), the Court denied an employer's summary judgment on some discrimination claims because it concluded that there was a triable issue as to whether an employee was disciplined more severely because of his race. Indeed, the court also relied on an apparent statement by the supervisor that the discipline was harsher than in past years.

Readers to this blog should understand that denials of summary judgment are not uncommon in employment discrimination cases and that the decision is not a final ruling on the merits of the case.  Indeed, the employer in this case was able to get summary judgment (i.e. get the claims dismissed) on several other claims that were brought by the employee.

The case is a good illustration, though, about how small variations in punishment -- even over a multiple year period -- may lead to the foundation of a discrimination claim. 

Now, there may be very valid reasons why the discipline that an employer imposes is different than others. Suppose, that the employee had been warned previously, that fact might warrant a harsher punishment for a repeat violation. Or suppose that the employer was "cracking down" on these types of incidents and had notified its employees of the consequences of violations of policy. In either of the two instances, the employer's decision will certainly be bolstered if the employer identifies, in writing, at the time of the incident, why the punishment is different than others. It still may not defeat summary judgment, but it will help bolster a company's arguments later that the discipline was well-thought out and fair.

A review of the briefs for summary judgment spells out much more history and facts than this blog post.  You can find the memorandum in support of summary judgment here, with the opposition brief here and the reply brief here.  Combined with the court's analysis, it provides some insights into how the federal courts review complaints that are based on multiple causes of action and addresses several related causes of action.

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