Employer’s Uneven Discipline Supports Employee’s Retaliation Claim

Employers often treat employees in similar positions with varying degrees of respect, this can have a big impact on how the court’s might view an employment relationship.


A consultation with an experienced Costa Mesa employment lawyer can help you decide if you have been retaliated in the workplace.

An employer or manager may play favorites even when it comes to employee discipline and if the company has a uniform discipline policy this can be grounds for a retaliation lawsuit.

In a recent court case the 10th Circuit Court of Appeals held that discipline beyond what another similar employee may receive can give the disadvantaged employee a claim for retaliation.

The case involved an employee who was 18 years old and took the medical leave he was legally allowed. Prior to taking the medical leave the worker had great performance reviews.

After returning from medical leave the employee was abruptly fired for a safety violation – a first-time safety violation for this worker.

There was some evidence that the worker’s evaluations were retroactively lowered for “absenteeism.” The employee was also heavily encouraged to take a pay cut and alter his work shifts so the employer could more easily cover his absences.

Eventually the employee was fired for a safety violation, however, he was able to show that other employees had committed similar violations without being terminated as a result.

In a case for retaliation a court will typically pursue a burden shifting type of analysis. This means the employee must first present a small amount of evidence that retaliation or discrimination occurred (known as the “prima facie” case).

After proving a prima facie case exists the burden shifts to the employer who is required to show a nondiscriminatory reason for the employment action or termination.

In the final state the burden shifts back to the employee to prove that the reasons provided by the employer are pretextual and do not represent the real reasons for the retaliation or discrimination.

This case illustrates a few points. First, downgrading an employee’s evaluations when their absences from work are related to a legitimate medical need is not a good course of action for employers and could open them up to liability.

In addition, an employer should not attempt to accommodate an employee who must be absent from work by cutting pay. Cutting pay is likely to be viewed as an adverse employment action.

Finally, employers must apply the same discipline and decision making criteria across all similarly situated employees. If there is a deviation from the norm employers should document the reason for that deviation.

Costa Mesa employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 949.375.4734.

Additional Resources:

Smothers v. Solvay Chemicals Inc. , No. 12-8013 (10 Cir. 2014) Jan. 22, 2014, Institute for Legal Reform

More Blog Entries:

6 Tips for Dealing with Age Discrimination in the Workplace, December 11, 2013, Los Angeles Age Discrimination Lawyer Blog

California Man Files Disability and Age Discrimination Suit, January 5, 2014, Los Angeles Employment Lawyer Blog

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