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Employer’s Failure to Follow Progressive Discipline Policy Allows Bias Claim to Proceed


Employer’s Failure to Follow Progressive Discipline Policy Allows Bias Claim to Proceed

By Jeffrey L. Rhodes 3/27/2015

An employee allegedly fired for multiple acts of misconduct can proceed with his age discrimination claim where he presented evidence that the employer had a progressive discipline policy that it applied to other employees but did not apply to him, the 1st U.S. Circuit Court of Appeals ruled.

The employee, Addiel Soto-Feliciano (Soto), worked as the head chef for the Villa Cofresi Hotel on the beach of Rincón, Puerto Rico. The hotel was owned and operated by the Caro family, including Sandra Caro, the general manager and Soto’s second-level supervisor. Soto alleged that, at various times during his employment, Caro made statements concerning his age, including that he was too old to be working the cooking line and that the hotel was “moving up, not down.” The hotel, in contrast, claimed that Soto was counseled about being late to work and often became angry when preparing food, using profanity in the kitchen that could be heard by other staff and possibly even customers. The hotel further claimed that Soto had engaged in potential religious harassment, disparaging a Catholic waiter’s request to eat a meal without meat on Ash Wednesday. The employee complained about Soto, and Caro investigated the matter by speaking with Soto.

In addition to these alleged acts of misconduct, the hotel claimed that Soto refused an instruction to prepare a meal by his direct supervisor, and later threatened that same supervisor. He refused to speak to Caro when she conducted a final investigation of these and other incidents. At about the same time, Soto notified Caro that he had spoken with the Department of Labor concerning his rights and also complained to her brother, the finance manager, regarding her alleged ageist comments. Based on Soto’s alleged misconduct, the hotel issued him a written suspension describing his alleged misconduct, and then discharged him eight days later.

After his discharge, Soto brought claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) in federal court. During that litigation, the hotel filed a motion for summary judgment, claiming that Soto did not provide sufficient evidence of age discrimination to establish a prima facie case of discrimination and that Soto’s documented misconduct demonstrated a legitimate nondiscriminatory reason for his discharge. The court agreed and dismissed Soto’s claims based on the hotel’s summary judgment motion.

On appeal, the 1st Circuit considered the claim in light of the burden-shifting framework set forth by the U.S. Supreme Court for discrimination cases. That framework imposes a light initial burden on the plaintiff to establish only that the plaintiff is protected due to his age (over 40), that the plaintiff suffered an adverse employment action and that it occurred under circumstances supporting an inference of discrimination. The 1st Circuit found that Soto satisfied this initial burden. The burden of production then shifted to the employer to present a legitimate nondiscriminatory reason for discharge, which the hotel had satisfied with its evidence of misconduct.

The burden then returned to the plaintiff to establish pretext by showing that the reason given for termination was false and that discrimination was the real reason. Here, the 1st Circuit ruled that Soto’s evidence could show that the hotel did not fire him because of his misconduct but because of his age and his discrimination complaints. The 1st Circuit found that Soto presented evidence that the hotel had a progressive discipline policy that it applied to other employees but did not apply to him, instead taking drastic action by suspending him and then firing him. Based on this and other evidence potentially undermining the hotel’s basis for discharge, the 1st Circuit reversed the lower court, revived the claim and required it to proceed to trial.

Soto-Feliciano v. Villa Cofresi Hotels Inc., 1st Cir., No. 13-2296 (Feb. 20, 2015).

Professional Pointer: When an employee claims discrimination or harassment shortly before impending discipline, a company should carefully evaluate and investigate the employee’s claim and make sure that the impending discipline is commensurate with that administered to other employees.

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