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August 12, 2019

Imposing different penalties on employees involved in a physical confrontation alleged to constitute discriminatory disciplinary action


If two workers get involved in a physical confrontation, must the employer mete out the same disciplinary penalty to each?

A technician [Technician] and her superior, a Team Leader, [Leader] were pointing their fingers at each other, presumably to emphasize points that they were making. When Leader grabbed Technician 's finger, Technician responded by slapping Leader.

The Employer dismissed the Technician. Technician sued, complaining that her termination constituted "discriminatory disciplinary action" because Leader had not been terminated as well.

The Circuit Court rejected Technician 's theory, commenting that Employer was not required to treat each "escalation" of the confrontation - finger pointing to finger grabbing to slapping - the same. In addition, the Court said another factor was that the two employees did not hold positions of similar rank. The decision by the Eighth Circuit U.S. Court of Appeals also indicates that while Leader "had a spotless disciplinary record, Technician had a record of disciplinary problems."

The court upheld Technician's dismissal, commenting that the respective actions by Leader and Technician "are clearly differentiated because the incident involved two separate levels of escalation" ranging from the mutual pointing of fingers to a slap in retaliation for the grabbing of the finger.

The decision is posted on the Internet at:


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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com