Is selective application of policy or disparate treatment evidence of retaliation?

Disparate treatment in the selective application of policy is powerful evidence of reprisal.  See, e.g., Vieques Air v. DOL, 437 F.3d 102 (1st Cir. 2006) (“less severe sanction imposed” on non-protected employee); Che v. Massachusetts Bay Transportation Authority, 342 F.3d 31 (1st Cir. 2003) (discrimination demonstrated when employer did not, punish other employees who engaged in the same actions); Reich v. Hoy Shoe, 32 F.3d 361 (8th Cir. 1994) (employees with “equivalent or worse records” were “not discharged”); Kowaleski v. New York State Dept. of Correctional Services, 942 N.E.2d 291, 295 (N.Y. 2010) (“whistleblower protections…must shield employees from being retaliated against by an employer’s selective application of theoretically neutral rules.”); Donovan v. Zimmer America, Inc., 557 F. Supp. 642, 652 (D.S.C. 1982) (no prior enforcement of rule) (actions taken against employees were “selective and unevenly applied”); EEOC v. Thomas Dodge Corp., 2009 U.S. Dist. LEXIS 24838 (E.D.N.Y.) (other employee with low sales figures not fired).

These three examples illustrate how disparate treatment can prove retaliation or discrimination:

• In Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005), the defendants argued they fired plaintiff detective in part because he was unwilling to work overtime. Id. at 186.  However, plaintiff’s direct supervisor conceded detectives routinely declined overtime shifts, and with the exception of plaintiff, defendants had never documented such refusals, much less, reprimand detectives for refusing overtime. Id. Further, in Fasold, defendants argued they fired plaintiff detective, in part, because he did not submit proper leave forms. Id. at 186. However, plaintiff presented evidence tending to show that, in the past, when detectives failed to submit the proper leave forms, their supervisors did not even reprimand them, much less fire them, but simply reminded the detectives to fill out and submit the requisite forms.  Thus, a reasonable factfinder could choose to discredit defendants’ assertion about why they fired plaintiff.  Id. at 186.
• In Johnson v. Delaware Cnty. Det. Ctr., 545 Fed.Appx. 135, 137-39 (3d Cir. 2013), the employer claimed it fired an African American employee because he left his assigned station to make a call on his cell phone. Id. at 137. However, a white employee was not terminated for leaving his assigned station. Id. at 139. Moreover, the plaintiff was the only employee ever fired for allegedly violating the employer’s cell phone use policy. Id. at 137.
• In a pregnancy discrimination case, since the employer claimed the plaintiff was fired for policy infractions, the court also compared the plaintiff to non-pregnant employees who had committed similar or more serious infractions, and had not been terminated. Gallo v. John Powell Chevrolet, Inc., 765 F.Supp. 198, 206 (M.D. Penn. 1991).

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