When an employee of a certain race is terminated and alleges race discrimination, in order to satisfy the requirements necessary to prove an indirect case of race discrimination, most often employees marshal evidence that members of a different race were treated differently. In Day v. Sears, 2014 U.S. Dist. LEXIS 5568 (E. D. Pa. January 15, 2014)(Baylson J.), the court found that even when two black males employed for 9 and 15 years respectively, were terminated from their employment as sales associates at a Sears department store could not show that they were treated differently than employees of a different race, the employees could proceed to trial with their claims.
In Day, the matters at issue involved delivery fees. When selling a large item at a Sears store, the size of the merchandise requires that it be delivered directly to the customer’s home. Sears programs its registers to automatically apply a delivery fee, however, a sales associate can “link” two different large purchases to waive one delivery fees and associates can also waive a delivery fee by obtaining manager approval. Sears conducted an investigation of an alleged abuse of the waiver of the delivery fees and the Plaintiffs were identified as the employees that most frequently issued delivery fees waivers. After consulting with its human resources department, Sears terminated the Plaintiff employees because of an “integrity issue” raised by the manner in which they gave fee delivery fee waivers. The employees asserted that they had manager approval cards and that these cards enabled them to waive delivery fees but Defendant contested the scope of the power authorized by the approval cards.
Defendant moved for summary judgment seeking to dismiss the claims and the Court applied the McDonnell Douglas burden-shifting analysis where to show a prima facie case of discrimination, the Plaintiff employees must point to evidence in the record that shows: (1) Plaintiffs belong to a protected class; (2) they were qualified for their position; (3) they were subject to an adverse employment action despite being qualified (4) under circumstances that raise an inference of unlawful discriminatory action.
Most often Plaintiff employees meet the inference of unlawful discriminatory action requirement by showing that a similarly situated employee outside the protected class (i.e. a member of a different race) received more favorable treatment. In other words, given the facts in Day, this standard would typically be met by showing that non-African Americans employees who have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct but were not terminated. In Day, the court noted that the prima facie test for disparate treatment is flexible and must be tailored to fit the specific context in which it is applied and a failure to demonstrate differing treatment for a similarly situated member of a non-protected class is not fatal as comparative evidence is not a mandatory component of a discrimination plaintiff’s prima facie case.
Thus, in considering a race discrimination claim, it is possible for a plaintiff employee to show circumstances which give rise to an inference of unlawful discrimination even where there are not members outside the protected class who are treated differently. In Day, the court found that Plaintiff employees pointed to such circumstances because they were issued manager approval cards which gave them authority to waive delivery fees, they were encouraged to waive delivery fees to save a sale, yet they were terminated for exercising the authority given to them to waive delivery fees. Under these circumstances, the court found that Plaintiffs raised an inference of discrimination because these acts, if otherwise unexplained, are more likely than not based on consideration of impermissible factors. The court also found sufficient evidence to create a genuine issue of material fact about whether their manager cards authorized the employees to waive delivery fees and the disputed issue, if found in Plaintiffs’ favor, would permit a reasonable juror to find that Defendant’s justification was pretextual.
For more information about race discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130158.html .