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Inconsistent Discipline Can Lead to Finding of Pretext
 

By Daniel G. Fritz  5/27/2014
 

If a worker can prove that the employer inconsistently investigated or disciplined violations of the same disciplinary policy by similarly situated employees, the worker can then prove that the employer’s stated reasons for its employment actions are pretextual, and a bias claim brought under the Age Discrimination in Employment Act (ADEA) can survive summary judgment, the 7th U.S. Circuit Court of Appeals ruled.

Marga Baker, 56, worked for 19 years as a caregiver for people with disabilities. Her employer, Macon Resources Inc., maintained a written policy requiring all employees who witnessed, heard of, or had reason to believe an incident of abuse or neglect had occurred to report the allegation to a supervisor; the State of Illinois required a similar report be submitted to the Office of the Inspector General starting in 2009. On two occasions, Baker complied with the employer’s policy when she reported that David Carter, a co-worker, used his finger to flick the back of a resident’s neck in the late 1990s. The supervisors, however, never investigated the report, and Macon Recources never investigated those supervisors for their inaction.

A decade later, the Office of the Inspector General interviewed three workers as it reviewed allegations that Carter had both sexually and physically abused the same resident. The investigation revealed that none of the individuals interviewed, including Baker, reported Carter’s recent abuse, and the Office of the Inspector General requested that Macon Resources address the three employees’ failure to comply with the reporting requirement mandated by state law.

Macon Resources found that all three individuals failed to report the abuse, in violation of the policy. Baker and a second caregiver, 61, were both found to be eyewitnesses to the physical abuse, and they were discharged by Macon Resources. A third caregiver, Angelia Cross, 39, was merely given a three-day suspension, even though the disciplinary report stated she had direct evidence and suspected that Carter had sexually abused a resident.

Macon Resources attempted to differentiate the discipline by claiming Baker and the second caregiver had witnessed flicking, whereas Cross had only heard rumors of sexual abuse. Unlike the district court, the appellate court was not persuaded by this distinction. Macon Resources’ policy drew no distinction in imposing a duty to report among those who witness abuse, those who are told of it, and those who have reason to believe it occurred.

Based on these facts, the appellate court held that Baker and Cross were sufficiently similar, because an inference could be drawn that Macon Resources viewed suspicion of abuse and witnessing abuse as equally offensive under the policy to support pretext. Further, selective enforcement or investigation of a disciplinary policy also could show pretext–Baker’s supervisors were not disciplined or investigated after they failed to act on her reports in the late 1990s.

Baker v. Macon Resources Inc., 7th Cir., No. 13-3324 (Apr. 25, 2014).

Professional Pointer: Employers must consistently investigate complaints and enforce their policies to minimize liability for claims of discrimination based on disparate treatment.

Daniel G. Fritz is an attorney with McMahon Berger PC, the Worklaw® Network member firm in St. Louis, Mo.

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