Lamay v. State of
Vermont, 2012 VT
49 (mem.).
Once again, today’s case brings us to the well of employment
law, and the procedural and factual tangle that this area encompasses.
Today’s case is a discrimination claim, which follows one of
two formats. When an employee is
terminated and claims that she was terminated for an inappropriate, discriminatory
reason, the case follows one of two formats.
If plaintiff claims that she suffered a negative employment
action for a discriminatory reason, then the court follows this format:
Step 1 plaintiff must show that she is a member of a
protected class (woman, racial minorities, parents, and the elderly are
examples of such classes; alcoholics, pet owners, and smokers are not); that
she suffered a negative employment action (fired, demoted, refused promotion);
and that there is a reasonable basis to understand that membership in this
class was the reason for the negative employment action.
Step 2 employer must show that there was a legitimate
reason for the employment action separate and apart from plaintiff’s membership
in a protected class (she yelled at clients; she did nothing but read SCOV Law
all day).
Step 3 plaintiff must show that this alleged
legitimate reason was nothing but pretext for the illegitimate purpose.
If plaintiff claims that she suffered a negative employment
action for both legitimate and illegitimate reasons concerning her protected
class status, then the court follows this format:
Step 1 plaintiff must show that she is a member of a
protected class; that she suffered a negative employment action; and that the
negative action was motivated by a mixture of legitimate and illegitimate
reasons.
Step 2 employer must show that it would have taken
the same action even if the illegitimate reason had not been considered.
In each format, the party with the burden (she or it who
“must show”) can do this in one of two ways.
They can either present direct evidence (think: smoking gun) or through
circumstantial proof (indirect but broad evidence to make a conclusion likely).
Here is where the employment litigators earn their bread and
butter. Proving that an employer acted
in a particular way can be difficult.
Unless they are rubes, most employers mind their manners and never
mention protected class. Even if they
are firing you for being old, they are not going to say it. In such cases, circumstantial evidence is
essential to show that the illegal purpose is there—even if no one is saying
it.
Today’s case is no exception. Plaintiff in this case is claiming the second
type of discrimination, the so-called mixed-motive claim.
Plaintiff was a state trooper and is a single mother. As a result, her work schedule was not as
flexible or susceptible to change as some of her male co-workers. Plaintiff asserts that at least partially
because of this status, she was terminated from her position.
The State disagrees.
As the facts show, Plaintiff was reprimanded in 2004 when an
internal investigation showed that she filed a report on a high-speed chase
with factual errors and inaccuracies.
Shortly, thereafter, she became subject to a second internal
investigation when the State’s Attorney’ office brought to her supervisor’s
attention discrepancies between her testimony about a drug seizure and the
videotape of the incident.
While this investigation was pending, Plaintiff was suspended
with pay. She called a co-worker and
asked him to dispose of some marijuana in her desk, which she claimed was a
“loose end” from a previous case. The
co-worker reported it to the supervisors who started a third internal
investigation.
In the end, the State terminated Plaintiff’s employment for
misuse of evidence and providing false and inaccurate statements.
Plaintiff in her complaint suggests that the reason she
received the additional scrutiny was because of her status as a woman and a
single mother. She cites the
inflexibility of her schedule as a reason why her supervisor had it in for
her. She also notes that others
committed the same errors as her without losing their job. Finally, she cites to allegedly hostile
statements made by her supervising officer.
Upon closer scrutiny by the SCOV, none of these allegations
amount to the type of circumstantial evidence necessary to conclude that
discrimination was part of Plaintiff’s termination. The allegations are simply too scattered, and
the facts do not pan out to support Plaintiff’s conclusions.
For example, the alleged comments are not actually
discriminatory. They are descriptive
statements accurately reflecting Plaintiff’s status as a woman and mother. They did not show discriminatory animus. Furthermore, they were essentially stray
remarks that do not constitute discrimination.
This is Plaintiff’s problem in a nutshell. She is unable to connect her allegations of
gender discrimination to either a factual pattern that supports it or a chain
of behaviors that shows a discriminatory purpose behind her termination to the
level of proof required.
In the end, the SCOV concludes that the evidence only shows
that Plaintiff’s employment was terminated for violating procedure and
obligations—and not because she was a woman.
Plaintiff’s final argument is that the trial court failed to
consider the allegations she made in her initial complaint to the Vermont Human
Right’s Commission to support her claim of a pattern of disparate treatment and
gender stereotyping, which in turn supports her claim of an improper employment
decision.
The SCOV addresses this final point by noting that they
agree with Plaintiff. A factual pattern
of disparate treatment and gender stereotyping can provide circumstantial
evidence to support an inference that a negative employment action had an
improper motivation. But this is cold
comfort to Plaintiff because just as quickly the SCOV discounts Plaintiff’s
complaint as insufficient. The complaint
is not evidence, per se, of this pattern but is a collection of hearsay and
conclusory statements that are insufficient as a matter of law.
The point that SCOV makes here is important. You can prove a mixed motive discrimination
claim by showing a pattern of disparate treatment and stereotyping in the
workplace over a period of time. This is
a bit of a leap since it is not direct proof that the employer was acting in a
discriminatory manner. Rather it is
proof that the workplace was so filed with discrimination that it is difficult,
if not impossible, to conclude that discrimination was not a part of the
decision process.
But the SCOV is saying that is as far as we will take
it. Plaintiffs cannot rely on additional
inferences or circumstantial proof to establish that the workplace was
discriminatory in nature. The evidence
of this must be direct. It either was or
it was not. The SCOV will not allow the
inferences to stack up.
Here the evidence falls short, and so Plaintiff is
ineligible to infer the discriminatory workplace, and the game is over. Case is dismissed.
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