Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff

Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff
Source: Kelley Drye & Warren LLP, by Michael E. Rigney, Esq.

Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review. She believed the review was unfair and filed a grievance.

The grievance was ultimately resolved in her favor and the negative review was removed from her record. Weber claims that a number of bad things began to happen to her after the grievance, ultimately including the elimination of her position in early 2004.

She accepted another position with the organization under a new supervisor. Weber had difficulty with her new supervisor from the beginning. She complained that she was the victim of retaliation and that her new supervisor treated her differently than other employees. Her supervisor complained that she was not getting her work completed and became suspicious of her computer usage. URA decided to monitor her Internet usage.

The results of its trace showed that Weber spent more than 16 hours in one workweek visiting websites unrelated to her work. Her usage included accessing dog-related sites and her personal e-mail accounts in connection with her dog training business.

URA terminated Weber's employment for violating its policies: a) requiring disclosure and authorization of outside employment and b) prohibiting the use of URA computer equipment in connection with outside employment. Weber brought suit pursuant to Title VII for gender discrimination and retaliation. Judge Andersen (N.D. Ill.) granted summary judgment to URA. Weber appeals.

In their opinion Judges Bauer, Kanne, and Tinder affirmed. The Court first concluded that Weber waived both claims under the direct method of proof by not sufficiently developing them in the district court. Since Weber does not challenge the district court's decision with respect to the retaliation claim under the indirect method, the only other issue before the Court was the discrimination claim under the indirect method. Weber attempted to meet the "similarly situated" element of her prima facie case by identifying a number of male co-workers who had unauthorized outside employment, who accessed the Internet for personal and outside employment use, and who accessed the Internet to view pornography.

The Court concluded that Weber did not meet the "similarly situated" element. To meet that requirement, she must identify employees who engaged in similar conduct in the absence of circumstances that would distinguish their conduct from hers.

The Court acknowledged that she identified multiple instances of policy violations but distinguished those violators. Weber presented no evidence that the violators had trouble finishing their work or that any of them violated a company policy "with the same reckless abandon" as Weber.

Weber v Universities Research Association (September 2, 2010). The full text of this 7th Circuit ruling is posted on the Internet at: http://www.intheiropinion.com/uploads/file/weber.pdf
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Determining if there is a basis for disciplinary charges

Determining if there is a basis for disciplinary charges
Waters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]

The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual.

As State Supreme Court Justice Lockman saw it, “[t]he issue to be resolved is not whether Captain Michael Waters, a decorated volunteer firefighter, performed the underlying acts alleged, but whether those acts constitute a violation of the by-law of the Massapequa Fire District with which he has been charged.”

On January 18, 1999, Waters telephoned other fire captains concerning a new driving policy that was of concern to the membership of the fire company. Fire Department Chief Michael Gange was very interested in this issue. However, instead of telling Waters that he wanted to be present at any discussion of the driving policy, Gange suspended him for making the calls after the two had “exchanged words.”*

Subsequently Chief Gange advised the Fire Commissioners that Waters “has been” relieved of duty, as he “admitted ... that he attempted to call a meeting of the officers ... without checking with or scheduling it through the Chiefs office.”

Ultimately Waters was served with disciplinary charges alleging that he violated department by-law Section 3.1(a), which, in relevant part, provide that “[t]he Chief shall be chairman of the meetings of the Department....” Found guilty of the charges, Waters was suspended for sixty days.

The court found this determination troubling. In addition to noting a number of significant procedural errors that constituted a denial of due process, Justice Lockman said that there was no evidence of any “meeting of the department”. Commenting that “there was no evidence of any meeting at all, departmental or otherwise, and no allegation that a meeting was ever held,” the court noted that the disciplinary decision itself merely states that “Captain Michael Waters’ acts constituted an attempt to schedule a meeting.”

As the evidence shows that the only act Waters took, and the only act which is supported in the record, was to place telephone calls to the district’s several firehouses to request that the officers present come over and discuss driver policy, Justice Lockman concluded that “there is no evidence, substantial or otherwise, to support the charge that Waters violated the by-law which states that the Chief shall chair department meetings.” The court annulled the disciplinary determination.

In such situations, courts would usually remand the matter back to the agency for a new hearing. Here, however, Justice Lockman said that there were multiple procedural irregularities which, when taken together, present a due process violation, as well as a “record utterly lacking in evidence of a violation of the by-laws.” Accordingly, the court elected to rescind the disciplinary action rather that return it for further proceedings.

* Chief Gange testified “I contacted Captain Waters on Tuesday, January 19. I asked him if he was calling an officers meeting. He said yes, he was. I said ‘Without my knowledge?’ He goes, ‘That’s correct’. I asked him if he was looking for a suspension of time. He said, ‘Do whatever you have to do’ and I said ‘You’re relieved of duty.”

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Equal pay for jobs the performance of which requires equal skill, effort, and responsibility

Equal pay for jobs the performance of which requires equal skill, effort, and responsibility
Belfi v Long Island Railroad, 2nd Cir., 191 F.3d 129

The Equal Pay Act [EPA] prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions [29 USC. Section 206(d)(1)].” Title VII bars discrimination on the basis of gender.

The Second Circuit U.S. Court of Appeals in New York commenced its review of Susan Belfi’s appeal of the summary dismissal of her Title VII and EPA complaints by a federal district court judge by commenting:

On this appeal we deal with an employer long on salary policies, but short on reasons justifying their application to a female employee whose salary for the same work was less than those of her male peers.

Belfi, originally employed by the Long Island Railroad [LIRR] in 1973 as a steno-typist, was promoted to the position of Office Engineer-Communications on a temporary basis in November 1989. Her salary: the minimum salary for that position, $39,508. On January 1, 1990 the minimum salary was increased to $40,691 but Belfi’s salary was not adjusted to this new, higher “minimum salary” rate.

On July 16, 1990, Belfi was permanently appointed Office Engineer-Signal in the Signal Department at $40,691 per year while the salaries of her two male peers -- the Office Engineer-Communications and the Office Engineer-Electric Traction -- were set at $52,794 and $53,046 respectively.*

By 1993, Belfi’s salary was increased to $44,857 while one co-worker’s salary was increased to $57,240. The other co-worker’s salary was not increased “because of his anticipated retirement.” On June 15, 1994, LIRR hired Gary Barnett to replace the retired Office Engineer-Electric Traction at a salary of $51,249, $6,000 more than Belfi’s salary and $8,931 more than the minimum for the position.

Belfi became aware of the salary differences in October 1992 and filed a number of grievances. LIRR offered a number of reasons to explain away these salary disparities, including:

1. The “time spent in the position by each of the incumbents” was the reason for the differences.

2. The 1986 transition of the office engineer positions to the Salary Plan, caused the disparity.

3. It was necessary to pay Barnett $51,249 to induce him to accept the position because “[i]n order to attract union employees to management, LIRR has found it necessary to consider W-2 earnings, which include overtime, in applying the ten percent (10%) promotional increase in accordance with its policy.”

Eventually LIRR consented to bringing Belfi’s salary up to Barnett’s retroactive to January 1, 1995. Still, Belfi’s salary from June 15, 1994 through December 31, 1994 was significantly less than Barnett’s.

The Circuit Court of Appeals emphasized that the EPA does not require the complainant to prove that the employer intended to discriminate in order to prevail.

Accordingly, a prima facie showing of the salary disparities was based on gender gives rise to a presumption of discrimination. If the plaintiff makes out a prima facie case under the EPA, the burden of persuasion shifts to the employer to show that the wage disparity is justified by one or more of the affirmative defenses allowed under the Act:

1. a seniority system;

2. a merit system;

3. a system which measures earnings by quantity or quality of production; or

4. a differential based on any other factor other than sex and that there is a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.

Once the employer offers one or more of these “affirmative defenses,” the burden of going forward shifts back to the employee, who must show that the reason given by the employer is, in fact, a pretext for unlawful discrimination in order to prevail.

The Circuit Court rejected LIRR’s combination of two affirmative defenses: seniority and factors other than sex, as justification for the differential between the salaries of Belfi and her male counterparts. Rather, it said, it was persuaded that these justifications were a pretext, as the evidence showed that its salary plan allows for an inequity increase under two circumstances:

1. where the employee’s salary is low in comparison with peers as a result of restructuring, reorganization, or job consolidation; or

2. where the promotion of a represented employee to a management position may have resulted in his or her earning a salary greater than that of a seasoned incumbent.

Accordingly, the Circuit Court concluded, there exist genuine issues of material fact regarding pretext sufficient to preclude the summary dismissal of Belfi’s EPA claims. It returned the case to the lower court for its further consideration of these claims.

The Circuit Court, however, affirmed the lower court’s summarily dismissing Belfi’s Title VII complaint.

* The salary range for these three “Office Engineer” positions was determined using the “Hay Method.” The Hay Method assigns a “point value” to a position based on the skills and talents needed to perform the job. A minimum, midpoint, and maximum salary for the position is then set. The decision notes that three positions had the same “Hay point value.”
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Filing for accidental disability retirement

Filing for accidental disability retirement
Sukup v McCall, App. Div., Third Dept., 264 AD2d 921

The Sukup case illustrates the importance of filing a timely application for accidental disability retirement benefits. Simply put, if the individual, or his or her representative, fails to file the application in time, the application for such benefits will be rejected. However, critical to such a determination is that the applicant knew that he or she was actually terminated from employment.

Broome County landfill employee Richard Sukup sustained a work-related accident in June 1994. Placed on Workers’ Compensation Leave pursuant to Section 71 of the Civil Service Law, the County terminated his employment after a three-month extension of his one-year leave of absence expired on September 24, 1995.*

In February 1997, Sukup filed for accidental disability retirement benefits. His application was rejected as untimely.

Sukup, however, denied receiving any notice that his employment had been terminated or that his leave had expired. As the Appellate Division pointed out, there was no direct evidence that the County notified him of the termination of his employment.

Clearly, Retirement and Social Security Law Section 605(b)(2) provides that an application for disability retirement benefits must be submitted within 12 months after an employee is advised that his or her employment status had been terminated.

The Comptroller concluded that the two identical letters concerning COBRA benefits that the County sent to Sukup in 1995 indicating that his employment was placed on “non-payroll status” effective June 24, 1994 constituted notice “of the termination of his employment no later than October 1, 1995.”**

However, a notice of “non-payroll status” could simply mean that the individual has been placed on “leave without pay” rather than he or she is “terminated.”

In this instance the Appellate Division concluded there was significant confusion as to whether Sukup received any notice that his employment had been terminated. For example, although the COBRA application form relied upon by the Comptroller lists a number of possible reasons for a change of enrollment, including termination, none of the boxes is checked and no “reason” was indicated on the form.

Also, although the “Employee Final Clearance Form,” which is to be completed upon an employee’s separation from employment, signed by Sukup was date-stamped “September 25, 1995,” it was apparently actually signed by Sukup and five other County employees, including Sukup’s supervisor, on either August 16 or August 19, 1996.

Because of “the ambiguity, confusion and uncertainty created by the notices to Sukup advising him that he had been placed on “non-payroll status” and, more importantly, the “Employee Final Clearance Form” dated in August 1996, the court deemed Sukup’s February 1997 application for disability retirement was timely.

This ruling demonstrates the importance of the employer making certain that an individual on leave without pay is given complete and accurate information concerning his or her status as an employee.

* For the purposes of Section 71, an employee may be terminated after being absent on workers’ compensation leave for a cumulative period of one year. In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals specifically considered “termination” under Section 71 and ruled that it was permitted.

** COBRA requires that employees who are covered by an employment-related health care plan are to be given the opportunity to elect continuation of such coverage after some qualifying event, including termination of employment [29 USC Section 1161].
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