posted on Friday, April 14, 2006 2:10 PM
by
Lou Michels
She Hit Me First: Escalation equals differentiation
An unpublished 11th Circuit case, Gamboa v. American Airlines, does a nice job of pointing out the discretion allowed an employer in enforcing its disciplinary policies. Two employees, a male and a female, got into what was described as an "altercation." The airline had a witness statement indicating that the female, Gamboa, physically struck her coworker, but that he did not make contact with her. The 11th Circuit affirmed the district court's summary judgment ruling, noting that although Gamboa disputed the witness statement, that was not enough to raise an issue of fact for summary judgment purposes. To quote the court, "An employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct." In other words, it wasn't enough for Ms. Gamboa to dispute the version of facts that the employer received. Instead she had to show that the employer itself did not believe the reason it gave for firing her and not her male coworker. The distinction between the two -- the fact that she made physical contact and the coworker did not -- and the fact that the employer believed that distinction existed, is a sufficient basis for the different discipline.