In a recent case decided by the United States Court of Appeals for the Sixth Circuit, Fabiniak v. v. Wal-Mart Stores East, LP, No. 22-3636, 2023 WL 2592358 (6th Cir. Mar. 22, 2023), the employee, Brian Fabiniak, asserted an age discrimination and wrongful termination claim and pointed to the fact that his employer, Wal-Mart, skipped progressive disciplinary steps as evidence. Fabiniak managed the Madison, Ohio Wal-Mart store and had worked for Wal-Mart for over 10 years.
Wal-Mart has a progressive disciplinary system with steps designated by color – yellow, orange, and red. As a general practice, Wal-Mart’s progressive disciplinary steps proceeded sequentially, but supervisors had the ability skip steps for more “serious” infractions or when an employee received multiple warning to correct problematic behavior.
Fabiniak received a yellow discipline after he neglected to enter the management schedule into Wal-Mart’s internal systems after “multiple requests” to do so.
Later, Fabiniak’s store failed several cleanliness inspections, and despite being warned to fix it, the store failed another cleanliness inspection two weeks following the warning. At that point, the employer issued Fabiniak a red discipline (skipping the orange discipline) and placed Fabiniak on a performance improvement plan. The plan required Fabiniak to show “immediate and continuous improvement” in several cleanliness-related areas over the next two weeks. Two weeks later, the store failed the cleanliness inspection again. No additional discipline was issued. Another inspection followed in two more weeks, which also resulted in failed performance. At that point, Wal-Mart fired Fabiniak, who was 46, and replaced him with someone 20 years younger.
It was undisputed for the purposes of summary judgment that Fabiniak met his initial burden of proof to establish age discrimination by indirect evidence in that he (1) was over 40 years old; (2) was qualified for the position; (3) suffered an adverse employment action, which in this case was termination; and (4) was replaced by someone substantial younger than he was. The burden then shifted to the employer to state a legitimate reason for his termination, which was his continued poor performance. To demonstrate that this reason was pretext, Fabiniak pointed to the employer’s skipping of the orange progressive disciplinary step.
What does pretext mean in an employment discrimination case and how do you prove it?
In the context of employment discrimination, pretext refers to a false reason or explanation given by an employer for an adverse employment action (such as termination, demotion, or failure to promote), which masks the true, discriminatory motive behind the action. To prove pretext, the employee in an employment discrimination case must show that the employer’s proffered reason for the adverse employment action is false or implausible, did not really motivate the employer, or that the true reason was discriminatory. This can be established through evidence such as discrepancies or inconsistencies in the employer’s explanation for the adverse employment action; evidence that similarly situated employees outside the employee’s protected class were treated more favorably for the same given reason; the employer did not follow its own practices and procedures; and/or the employer’s explanation for the adverse employment action changed over time or was not consistent with the facts. This is not an exclusive list of evidence and you should consult with qualified employment law attorneys regarding your particular circumstances.
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Is skipping progressive disciplinary steps evidence that the employer lied about the reason for termination?
Evidence that an employer skipped progressive disciplinary steps may or may not be sufficient to establish that the employer’s stated reason is pretext. One factor that may indicate pretext is the failure to follow progressive disciplinary steps.
Progressive disciplinary steps are a set of steps that employers typically follow when disciplining employees. These steps usually involve verbal warnings, written warnings, suspension, and termination. The purpose of progressive discipline is to give employees an opportunity to improve their performance or behavior before more serious disciplinary action is taken. Skipping progressive disciplinary steps may indicate that the employer’s stated reason for the adverse employment action was not the real reason.
However, the failure to follow progressive disciplinary steps is not always enough to prove pretext. In some cases, an employer may be justified in skipping steps because of the seriousness of the employee’s conduct or the employer’s concerns about workplace safety or security. Moreover, even if the employer did not follow progressive disciplinary steps, the employee must still show that the adverse employment action was motivated by discriminatory intent.
There are several cases that address the issue of whether skipping progressive disciplinary steps is enough to prove pretext in a Title VII employment discrimination case. One such case is Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996). In Van Zant, the employee, a flight attendant, was terminated for allegedly failing to comply with company policy regarding the handling of passenger complaints. The employee argued that the real reason for her termination was age discrimination. One of the factors that the employee cited as evidence of pretext was the fact that the employer skipped progressive disciplinary steps by terminating her without first giving her a warning or suspension. The United States Court of Appeals for the Second Circuit held that the employee had failed to establish pretext. The Court noted that the employee had admitted that she had violated company policy and that the violation was serious enough to warrant termination. Moreover, the court found that the employer had a legitimate reason for skipping progressive disciplinary steps because of the seriousness of the employee’s conduct.
Another case that addresses the issue of skipping progressive disciplinary steps is Burrows v. Chemed Corp., 200 F.3d 551 (3d Cir. 1999). In Burrows, the employee, an African-American woman, was terminated for allegedly violating the employer’s attendance policy. The employee argued that the real reason for her termination was race/color discrimination. One of the factors that the employee cited as evidence of pretext was the fact that the employer had skipped progressive disciplinary steps by terminating her without first giving her a warning or suspension. The United States Court of Appeals for the Third Circuit held that the employee had established pretext. The Court held that the employee had presented evidence showing that similarly situated employees who were not African-American had received more lenient discipline for similar attendance violations. Moreover, the Court found that the employer had not presented a legitimate reason for skipping progressive disciplinary steps in the employee’s case.
In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the United States Supreme Court considered a case in which the employee alleged that he had been terminated because of his national origin. The employee argued that the employer had skipped progressive disciplinary steps by terminating him without first giving him a warning or suspension. The Supreme Court held that the employee had established a prima facie case of discrimination and that the employer’s failure to follow progressive disciplinary steps was one factor that supported an inference of discriminatory intent.
In Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999), the employee alleged that he had been terminated because of his age. One of the factors that the employee cited as evidence of pretext was the fact that the employer had skipped progressive disciplinary steps by terminating him without first giving him a warning or suspension. The Seventh Circuit Court of Appeals held that the employee had failed to establish pretext. The court held that the employee had admitted that he had violated company policy and that the violation was serious enough to warrant termination. Moreover, the court found that the employer had presented a legitimate reason for skipping progressive disciplinary steps because of the employee’s prior performance issues.
These cases illustrate that the issue of skipping progressive disciplinary steps is highly fact-specific and depends on the specific circumstances of each case. While the failure to follow progressive disciplinary steps may be one factor that supports an inference of pretext in a Title VII employment discrimination case, it is not determinative on its own. The employee must still present evidence that the adverse employment action was motivated by discriminatory intent.
What happened in Fabiniak?
In Fabiniak, the United States Court of Appeals for the Sixth Circuit held for the employer:
Even if Wal-Mart skipped a step in the disciplinary process, we see no evidentiary basis undermining the company’s honest assessment of Fabiniak’s faults, leading to his termination. As a starting point, even if Wal-Mart violated its own policy, “an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext.” Miles, 946 F.3d at 896 (citation omitted). Nor, in any event, would skipping a step even be a departure from company policy. Wal-Mart managers retain the discretion to jump steps for serious violations. Step-skipping, in fact, was typical in cases where an employee had previously been warned multiple times. If anything, the discretionary jump to “Red” should have alerted Fabiniak to Wal-Mart’s commitment to maintaining clean stores. On top of that, Fabiniak had multiple warnings to bring his store into compliance. Those warnings included his performance improvement plan, which offered detailed steps on how he could improve his managerial deficiencies. That Fabiniak chose to disregard this array of warnings is not “in any way related to [his] age or in any way reflect[ive of] age animus.”
Id. at *4.
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Does my employer have to follow progressive discipline before firing me?
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