Employment Law Daily Female health tech disciplined more harshly than males has sex bias claim revived
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Thursday, February 25, 2016

Female health tech disciplined more harshly than males has sex bias claim revived

By Brandi O. Brown, J.D. A hospital mental health technician, who was the only female holding that position and was fired after violating a rule requiring employees to check ID bracelets when discharging patients, had her sex discrimination claim revived by the Sixth Circuit, which questioned whether the decision to fire her was pretextual, considering evidence that two male technicians who committed either the same or similar infractions received more favorable treatment (Jackson v. VHS Detroit Receiving Hospital, Inc., February 23, 2016, Clay, E.). Spotless record, immediate termination. Fifteen years into her tenure as a mental health technician at the hospital's mental health crisis center, the employee, who had a spotless disciplinary record and strong performance reviews, was immediately fired for violating a rule that required technicians and nurses to check the ID bracelets of patients being discharged. She claimed she had been dealing with a difficult patient just prior to being told by the RN to escort the wrong patient out of the center. She admitted she made a mistake. Earlier in the day, in fact, her manager held a meeting with staff members to emphasize the importance of such checks and, although it was disputed whether the plaintiff actually attended the meeting, she had signed the sign-in sheet. Males violated same rule, but not fired. However, the rule was not a new one. Other employees had been found to have violated the rule, including a male mental health technician who did so while he was under a last chance agreement based on other infractions. Nevertheless, he was not fired. Similarly, another male technician violated the same policy provisions when he failed to conduct a complete search of an incoming patient who was later found in possession of three knives. Although he had received verbal counseling only a few months before, he was not fired and was instead placed on "final warning" status. The fired employee had been the only female out of 14 mental health technicians. She filed suit against the hospital alleging sex discrimination in violation of Title VII. The district court granted the employer's motion for summary judgment, holding that the mistakes of the comparators were not similar enough to create an inference that the plaintiff's treatment had been due to discrimination. She appealed. Proper comparators. Noting that an exact correlation was not required to show that the employee was similarly situated to the two male technicians, the appeals court found that they were similar in all relevant aspects. The actions of the male technicians were of "comparable seriousness" to the conduct leading to the employee's termination—in fact, her actions were "nearly identical" to that of one of the male technicians. Moreover, the other male technician, who conducted an improper search of an incoming patient, an infraction type that was considered a "major incident" by management, was cited for violation of the same two provisions. Nevertheless, neither male was fired. Although the employer argued that the employee's mistake was more egregious, the appeals court disagreed. The identified differences did not make the employee and her comparators "so facially distinguishable as to obviate" the employer's need to explain the disparate treatment. Thus, the employee established a prima facie case. Perceived differences were speculative. The appeals court further held that a reasonable jury could conclude that the justification for the employee’s discharge was pretextual. Conducting a more rigorous comparison for this part of the analysis, the court considered "both the actual and potential consequences of" the employees’ actions. As to the technician who had also discharged a patient without checking the ID bracelet, "any perceived differences in egregiousness" were based only on speculation, which was problematic because (1) "speculating on the likelihood and relative severity of injuries" that might have been experienced by patients was "a task better suited to a jury" and (2) even if the court were to engage in such speculation, the record would not support the conclusion reached by the employer. The male technician's wrongly discharged patient was disabled and obviously required crutches, but had been escorted out by the technician without crutches. He might have suffered a serious injury or died as a result of a fall. Example inference is not the only one. Moreover, the fact that the employee's mistake took place on the same day as a meeting reminding staff members to check ID bracelets was unpersuasive because it was undisputed that the male candidate had been subject to the same requirement. Although a jury could infer that the employer disciplined the employee more harshly to make an example of her, that inference was not the only one possible. A jury could also note that the employer had been lenient with the male technician's violation, in spite of aggravating circumstances that included past and subsequent infractions, and less lenient towards a female employee with a spotless record and more years of service. Although the employer responded that the male technician was shown leniency because a nurse had told him to discharge the patient, the employee had relayed a similar story without receiving the same leniency. With regard to the other technician, there was evidence that their infractions were substantially similar and that the circumstances were substantially identical. A jury could also reasonably infer that allowing a mental health patient to carry knives into a mental facility would have "self-evidently severe potential consequences." Female management not determinative. The court further explained that the fact that the employee’s managers were female did not change the analysis because the employee was attempting to draw an inference that management preferred males in the technician role based on a perception that they could better handle physically unruly patients.

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