An employer's alleged failure to strictly adhere to its progressive discipline policy was insufficient to defeat summary judgment.

The plaintiff alleged gender discrimination following the termination of his employment as a radiology technician at a hospital.  The facts presented to the court revealed that the plaintiff had several incidents where he demonstrated difficulties with attitude and anger, which included outbursts toward his co-workers.  In addition to these prior incidents, the plaintiff was also provided with a written warning for abusing sick time during his final year of employment.  Also, the plaintiff was disciplined for mistakes with the substance of his job duties during the final months of his employment, including performing an incorrect examination on a patient and another incident where the patient blacked out because the examination should have been conducted with the patient lying down.  Finally, the plaintiff also began yelling and cursing at a student working at the hospital in front of a patient, which prompted a complaint from the student.  Following these later incidents, an investigation was conducted, and the employer made the decision to terminate the plaintiff's employment.  During the litigation, the plaintiff argued that the employer's failure to strictly adhere to its progressive discipline policy was evidence that his termination from employment was a pretext for unlawful gender discrimination.  The court, however, rejected this argument, noting that, even if it accepted the plaintiff's contention as true (which it did not), the employer’s policy indicates that disciplinary action may be initiated at a higher level based upon the seriousness of an offense.  More importantly, however, was the fact that the failure to strictly adhere to the progressive discipline policy "[i]s simply not the kind of inconsistency that challenged the credibility of [the employer's] proffered reason, because jumping to a higher level of discipline is perfectly consistent with an employer being concerned about an employee's angry outbursts affecting the safety and peace of mind of other employees."

Case Law Alerts, 3rd Quarter, July 2014