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  • WisBar News
    October 03, 2013

    Two Employees Disciplined Differently, Jury Must Decide Discrimination Issue

    Oct. 3, 2013 – A jury must decide if an employer violated anti-discrimination laws when it fired a convenience store worker who sold herself discounted candy but only warned another worker who made “dummy” alcohol purchases, a federal court has ruled.

    In 2009, Norma Perez was working as a manager for Thorntons, a convenience store in Illinois, when she sold herself $129 worth of candy bars for only $12.

    She was fired by executives under policies concerning inventory control. Perez says her supervisor, Donald Kozial, gave her permission to discount the candy. She also alleges that Kozial is a racist and influenced the regional manager’s termination decision.

    Her discrimination claim is based on the allegation that, months before she was fired, Kozial only received a warning for using his credit card to “dummy” purchase alcohol that was allegedly stolen. Kozial did not tell managers about this. He said he wanted to pay for the stolen inventory and keep it quiet in the hopes of catching the thieves.

    This conduct violated the same inventory policies used to fire Perez, she says, and the different treatment between them violates federal anti-discrimination laws because Perez is in a protected class as a Hispanic female, and Kozial is a non-Hispanic male.

    Specifically, Perez brought a lawsuit under Title VII of the Civil Rights Act of 1964, claiming she and Kozial violated similar work policies, but her national origin and gender motivated the different consequences laid down by her employer, Thorntons Inc.

    In federal district court, Perez lost at the summary judgment stage. But in Perez v. Thorntons, Inc., No. 12-3669 (Sept. 30, 2013), a panel for for Seventh Circuit Court of Appeals ruled, by a 2-1 majority, that summary judgment was granted in error.

    “In reviewing a grant of summary judgment,” the panel explained, “we must give Perez the benefit of conflicts in the evidence and any reasonable inferences in her favor.

    “In that light, a jury could find that Perez’s wrongdoing for which she was fired was comparable to the wrongdoing of her non-Hispanic male supervisor, and that the supervisor’s animus against women and Hispanics tainted the decision to fire her,” wrote Judge David Hamilton.

    Judge Kenneth Ripple dissented, stating that proper application of “procedural constructs” and “substantive standards” worked against Perez.

    “Unfortunately, today’s opinion takes a different course,” Judge Ripple wrote in his dissent. “[The majority’s] interpretation of established law and the methodology it sanctions will have, I fear a jarring effect on the bench and bar of the circuit.”

    Perez Overcomes Summary Judgment

    The 2-1 majority ruled that summary judgment was not appropriate because Perez, reviewing the evidence in her favor, satisfied the burden to prove the claims.

    There are two ways to prove discrimination, the majority explained. Under the “indirect method,” the plaintiff must show that she’s a member of a protected class who was treated differently than similarly situated persons outside the class.

    The district court had ruled that Perez’s conduct was not the same as Kozial’s conduct, so they were not similarly situated. But the appeals court majority disagreed.

    “At the end of the day, both of these infractions involved inventory control, and yet the employees were treated very differently by Thorntons’ higher management. We believe it should be left to a jury to decide whether they were similar enough to support an inference of discrimination,” Judge Hamilton wrote.

    On this point, the dissent argued that the conduct of Perez and Kozial was vastly different, and an employer “is free to respond to dissimilar conduct in different ways.”

    However, if a jury finds the conduct was similar, the majority noted, there was also enough evidence to show inventory policy was used as a pretext for illegal discrimination. For instance, management believed Kozial’s version of events, disbelieved Perez, and knew of Kozial’s sexist views, the majority explained.

    “There is sufficient evidence in this record to infer that the discounted purchase was not Thorntons’ true reason for Perez’s termination,” Judge Hamilton wrote.

    The majority also ruled that Perez overcame her burden under the second method of proof, the “direct method,” which requires the plaintiff to offer direct or circumstantial evidence of the employer’s discriminatory motive. Taken as true, an upper manager knew of Kozial’s bias against women, and saved Kozial’s job but fired Perez.

    “Perez has presented circumstantial evidence here from which a jury could reasonably infer that her firing was the product of illegal discrimination,” Hamilton wrote.

    Again, the dissent disagreed, explaining that the manager’s knowledge of discriminatory comments by Kozial was too removed to infect his termination decision.

    “Stray remarks, even those of ancient vintage and not in any way attributable to the decisionmaker, will now result in employer accountability,” Judge Ripple wrote.


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