Thursday, June 30, 2011

Rebutting employer's defense to charges of unlawful discrimination


Rebutting employer's defense to charges of unlawful discrimination
Wallace v Methodist Hospital System, CA5, 271 F.3d 212

In the Wallace case, the Circuit Court of Appeals, Fifth Circuit, points out that an individual charging his or her employer with unlawful discrimination “must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive [a motion for] summary judgment”.

Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

Frequently an individual is able to establish a prima facie case of discrimination in challenging an adverse employment decision by introducing circumstantial evidence sufficient to raise a presumption of discrimination.

Once this is done, the employer is charged with the burden of producing a legitimate nondiscriminatory reason for the adverse employment decision. If the employer provides a legitimate nondiscriminatory reason for its action, the presumption of discrimination is defeated.


It then becomes the individual's burden to persuade the trier of fact that he or she was, in fact, the victim of unlawful discrimination by showing by a preponderance of the evidence that the employer intentionally discriminated against him or her because of his or her protected status.


In the Wallace case, the Hospital did not dispute that a former nurse, Veronica A. Wallace, had established a prima facie case of discrimination. However, in response to that prima facie case, the Hospital offered two nondiscriminatory reasons for discharging Wallace.

According to the decision, the Hospital contended that Wallace had violated two of its written rules and the violation of either constituted grounds for her immediate termination under its written policies without regard to her past performance:

(1) the employee performed a procedure without receiving a physician's order even though Hospital's written policies required an order; and

(2) the employee falsified medical records.

Although Wallace admitted that she had violated both policies, she argued that she was subject to disparate disciplinary treatment, and, therefore, Methodist's stated reasons were a pretext for discrimination.

According to the ruling, at the heart of whether the district court properly found that Wallace failed to demonstrate by substantial evidence that the Hospital's explanation of its actions constituted pretext.

While Wallace contended that she had provided evidence of disparate treatment, the district court held that the examples of disparate treatment she offered did not involve “similarly situated nurses.”

The Circuit Court sustained the lower court's findings, noting that it has held that in order for a plaintiff to show disparate treatment, Wallace had to demonstrate “that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained,” citing Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177.

Put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.

Here, said the court, the Hospital had shown that “with but one exception,” the nurses to whom Wallace points are not similarly situated as “they had either acted under a doctor's orders, did not need a doctor's order for their actions, or no one in a supervisory capacity was aware of the nurse's actions.”

In addition, said the court, Wallace failed to rebut the second reason advanced by the Hospital in discharging her -- falsification of medical records.

Concluding that there was no legally sufficient basis that would allow a jury to decide that Wallace had been discharged because of discrimination, the Circuit Court sustained the lower court's dismissal of Wallace's complaint.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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