“Fuqua and Vontice were both assistant managers at the same Wal-Mart store. Vontice had an arguably worse history of work violations. Both were found to have improperly taken cash advances and both timely paid them back. . . .[E]ach was given thirty days to repay the money and obtain an hourly position at another store. Fuqua failed to obtain another position and was terminated. However, Fuqua has presented evidence . . . that while she was terminated for failing to obtain a position at another store, Vontice was essentially handed a new position by Wal-Mart management without having to go through an interview process. The Court finds that the purported disparate treatment of Fuqua and Vontice to have taken place under nearly identical circumstances and is sufficient to establish a prima facie case of discrimination.” Fuqua v. Wal-Mart Stores E., L.P., No. 2:09cv188-SA-DAS, 2011 WL 2269020, at *4 (N.D. Miss. Jun. 7, 2011).
Finding a male employee a job for his transfer but requiring a similarly situated female employee to undergo an interview process for her transfer, both required to transfer as part of disciplinary actions, constitutes prima-facie disparate treatment.
Two employees with materially the same duties, a common decisionmaker, and similar histories of company violations are acceptable comparators.
“[Plaintiff and coworker] has ‘the same responsibilities,’ and ‘had their employment status determined by the same person.’” Turner, 675 F.3d at 896. “We are also satisfied that [they] had ‘essentially comparable violation histories.’” Id. at 897. “These employment histories are sufficiently similar to require comparison. Id.
Separate incidents caused by two employees, which violate mostly the same rules with similar degrees of severity and which are punished by the same decisionmaker, are legitimately compared to test disparate treatment.
“Two points convince us that Schmitt’s violations arising from the sideswipe incident are comparable to Turner’s putative violations in the derailment incident. First, Schmitt was found to have violated most of the same workplace rules that Turner was found to have violated.” Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 896 (5th Cir. 2012). Also, “[employer] argues that ‘generally a derailment is a more serious incident than a sideswipe,’” while an expert “testified that this sideswipe incident was ‘more severe’ than the derailment incident . . . .” Id. “[T]hese violations are comparably serious.” Id.
Refusing to offer an employee a raise due to a pay freeze, and then offering a raise to a similarly situated employee of the opposite sex during the alleged freeze evidences disparate treatment based on sex.
“Defendant contends that . . . due to a freeze starting in late 2008 or early 2009 no merit based pay raises were given to any Sales Managers.” Wojciechowski, 763 F. Supp. 2d at 858. “However, according to Defendant’s own statement of position to the EEOC, [employee], who was promoted to Sales Manager . . . received a salary increase on April 26, 2009. An issue of fact exists as to whether [employer] was giving pay raises to male Sales Managers . . . during the [alleged freeze]. Id.
Assigning work only to employees outside the plaintiff’s class raises a genuine question of fact as to disparate treatment.
“She claims that . . . [her employer] told her there was no work available for her. However, [plaintiff] alleges other male employees were assigned work during that time period. . . . Documentation in the record shows a genuine factual dispute about whether [plaintiff] was treated differently than male employees.” Collinson v. Tarver Land Dev., LLC ., CIV. A. No. 11-1787, 2013 WL 1187125, at *1-2 (W.D. La. Mar. 21, 2013).