Labor & Employment Law Daily Lab tech fired after fight with coworker fails to prove race, national origin bias
Friday, May 29, 2020

Lab tech fired after fight with coworker fails to prove race, national origin bias

By Wayne D. Garris Jr., J.D.

The employee was fired after she shoved her coworker during a workplace argument.

A former lab technician was unable to prove that her employer discriminated against her by terminating her for workplace violence but did not terminate her coworker who was also involved in the scuffle. Affirming the district court’s grant of summary judgment for the employer, the Eighth Circuit found that the employer’s workplace violence policy gave the employer discretion to distinguish between acts of violence and give different punishments based on severity of an act. In this instance, the coworker threw, but did not hit the employee with, a jacket and the employee responded by pushing the coworker. Because the employer determined that the employee’s act was more egregious, she and the coworker were not similarly situated (Findlator v. Allina Health Clinics, May 27, 2020, Erickson, R.).

The employee, a Black woman from the United Kingdom, worked as a lab technician for Allina. She did not get along with another lab technician who is white. The employee got into an argument with her coworker in an occupied patient waiting room. The argument escalated and the coworker threw her lab coat at the employee. The employee responded by pushing the coworker.

Termination. The employer investigated the incident and issued discipline to both employees. The coworker was suspended and issued a final warning for violating the employer’s Respectful Workplace and Commitment to Care policies. The employee was terminated for violating the same two policies—as well as the Violence-Free Workplace policy. According to the employer, the coworker was not cited for violating the violence policy because her lab coat did not hit the employee.

Lower court proceedings. The employee filed a grievance through her union because she received a more severe punishment than her coworker. After an arbitrator found that her termination was unwarranted, the employer offered to reinstate the employee. She rejected the employer’s offer and filed suit alleging race and national origin discrimination and intentional infliction of emotional distress. The district court granted summary judgment for the employer on all the employee’s claims. The employee appealed the dismissal of her discrimination claims only.

Direct evidence. The employee asserted that she put forth direct evidence of discrimination including that the employer considered her race during its investigation, that her coworker once said that the employee was in a gang, and the employer’s failure to cite the coworker for violating the workplace violence policy.

The court concluded that none of the employee’s evidence established direct evidence of discrimination. The evidence showed that the employer considered the employee’s race only to ensure that any corrective action was not based on racial discrimination. Next, her coworker’s comment about the employee belonging to a gang was not direct evidence because the coworker had no authority to discipline her. Lastly, the failure to cite the coworker for violating the workplace violence policy did not prove discriminatory animus.

Pretext. Turning to circumstantial evidence of discrimination, the court found that the employee failed to demonstrate that her employer’s reasons for terminating her were a pretext for discrimination. The employer’s workplace violence policy lists examples of impermissible behavior but did not prescribe a particular corrective action. The court concluded that the policy gave the employer discretion to distinguish acts of violence from threats of violence. Here, the employer established that it believed pushing a coworker was more severe than throwing a coat, warranting a more severe punishment. This was permissible under the employer’s policy, thus there was no indication of discrimination.

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