Terminated Employee Who Brings Shotgun to Work May Have Age and Sex Discrimination Claims

How can a terminated employee prove employment discrimination based on protected criteria such as age or sex when no one ever told the employee that the reason for termination was the employee’s age or sex? The answer is that federal and Pennsylvania law permits a Plaintiff employee to offer indirect evidence of discrimination. A recent Commonwealth Court of Pennsylvania case demonstrates that even when a gun is brought to work, if a similarly situated employee outside of a protected discrimination class is treated differently, courts may allow a discrimination claim to proceed.

In Leibensperger v. Carpenter Technologies, Inc. (Pa. Commwlth. Court September 22, 2016), the Commonwealth Court of Pennsylvania reversed the trial court and found that a terminated male employee may be able to show age and sex discrimination when the employer relied upon a policy which was not applied uniformly to a younger employee or a female employee. In Leibensperger, the proffered reason for termination of the male employee was that the employee violated the employer’s firearm policy that provides that bringing a firearm or other dangerous weapon onto the employer’s premises is considered an intolerable offense for which an employee will be immediately suspended with intent to discharge.

In Leibensperger, the employee brought an inoperable antique gun to the employer’s parking lot after his female co-worker said that she knew someone who could refurbish the shotgun and the co-worker agreed to transport the shotgun to the refurbisher’s place of business. While exchanging the shotgun in the parking lot, two other employees observed the transfer of the shotgun and reported the situation to the employer. After an investigation, the 53-year male employee was terminated but the female coworker was only suspended and then given a written warning. The terminated male employee filed age and sex discrimination claims regarding the termination and identified two other employees who were not terminated and received less harsh punishments for violating the employer’s dangerous weapons policy by bringing hunting bows onto the employer’s property.

Pennsylvania courts follow the analytical model established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) in determining whether summary judgment is appropriate for employment discrimination cases, involving indirect discrimination, where the Plaintiff employee must establish that: (i) the employee is a member of a protected class; (ii) the employee was qualified for the position; (iii) the employee suffered an adverse employment action; and (iv) the employee was discharged under circumstances that gave rise to an inference of discrimination. An employee can establish circumstances giving rise to an inference of discrimination by demonstrating that the employee was discharged and replaced by someone outside of his protected class and that similarly situated employees were not treated equally. Whether a comparator is similarly situated is generally a question of fact for a factfinder.

Once the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory motive for its action. If the employer does so, the employee is then given the opportunity to demonstrate that the proffered reason for termination was pretextual. There are two ways by which an employee can demonstrate that the employer’s legitimate, nondiscriminatory reason was pretextual. The first is to point to evidence that would allow a factfinder to disbelieve the employer’s reason for the adverse employment action. An employee may also point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer’s action.

In Leibensperger, the Commonwealth Ccourt found that the two employees who bought hunting bows to work were similarly situated in that they worked for the same supervisor, performed roughly the same job duties, and were both punished for violating the policy but not terminated, even though those employees violated the dangerous weapons policy prohibiting firearms on the employer’s property. The Court also found that the fact that firearm was an inoperable, rusty, antique shotgun that was not functional created a question whether the firearms policy was even applicable to the shotgun; while the hunting bow brought to work by younger employees who were not terminated, could fall within the policy as a “dangerous weapon.”

Ultimately the Commonwealth Court concluded that given the disparate treatment of other employees as compared to the terminated employee, as well as the potentially ambiguous nature of the employer’s policy, a reasonable factfinder could conclude that the employer’s policy was not violated by bringing an inoperable gun onto the employer’s parking area and that employer’s proffered reason for terminating employment could be a pretext for discrimination. Therefore, the Court found that viewing the evidence in a light most favorable to the terminated employee there was credible evidence that a reasonable factfinder could conclude that the employer’s proffered reason for terminating employment, thus, the Court reversed the trial court’s decision.

Abramson Employment Law represents employees in age discrimination and sex/gender discrimination claims. For more information on age and sex discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html,http://www.job-discrimination.com/lawyer-attorney-2130157.html,


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Filed under Employment DIscrimination, Employment Law, Sex / Gender Discrimination

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