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.