The Leeway Provided In An Employer’s Workplace Violence Policy Found To Support A Discharge


by Ruth Horvatich

rhorvatich@mcgrathnorth.com
(402) 341-3070

A cardinal rule of both employment and human resources-based law is that an employer must follow its own policies and treat similarly-situated employees in a uniform manner. The failure to do so is relevant evidence of pretext for the discharge, but is not necessarily dispositive in every case. That same principle provides that similarly-situated employees must be similarly situated in all relevant respects and that the violations be of “comparable seriousness.”

In Findlator v. Allina Health Clinics, the U.S. Court of Appeals for the Eighth Circuit examined a situation involving friction between two employees, which it described as “interpersonal problems,” who were employed by the defendant employer. When a heated argument broke out and spilled into a patient waiting room, the plaintiff’s coworker took off her lab coat and twice threw it in the plaintiff’s direction. The plaintiff then approached the other employee, put her hands on the employee’s shoulders and pushed her. After an investigation, during which the plaintiff did not assert that her coworker had actually hit her with the lab coat when it was thrown, the plaintiff was terminated, but the coworker was simply issued a suspension and a final warning.

The plaintiff, to support her assertions that she was discriminatorily discharged because of her race, pointed out that they had both engaged in similar conduct but that the plaintiff had been terminated while the coworker, who was white, was not. Interestingly, the plaintiff also pointed out that the employer had admitted that it did consider the plaintiff’s race during its investigation. The employer countered that it did so, but only to ensure that no discriminatory animus impacted its employment decision. The court accepted that explanation.

In evaluating plaintiff’s claims, the court noted that employees being compared must have committed the same conduct without any mitigating or distinguishing circumstances. It also pointed out that the employer’s policy gave it the discretion to distinguish between different acts of violence and to distinguish acts of violence from threats of violence. The employer’s human resources director testified that the employer believed that pushing a coworker was more severe than simply throwing a lab coat, and asserted that the plaintiff’s behavior deserved a more severe punishment. The court noted that nothing in the employer’s Violence-Free Workplace policy or other policies prohibited the employer from treating some offenses as more severe than others and selecting a corrective action that it believed was proportional to the level of the severity of the violation. The Court upheld the dismissal of plaintiff’s claim.

It is significant in this decision that the employer’s policy allowed some leeway in evaluating the type of violent act and assessing the appropriate corrective action. Employers with disciplinary policies and, in particular, a workplace-violence policy, would be well advised to review their rules to make sure that the same leeway is built into their rule. A failure to do so could run afoul of the requirement of similar treatment of similar offenses in the course of defending an alleged discriminatory discharge.

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