How Your Employer’s Deviation from Normal Disciplinary Procedures May Be Important to Your Retaliation or Discrimination Case in New York

Today, many employers deal with employee performance and behavioral issues through a system known as “progressive discipline,” which means using a set of graduated or progressively more serious responses to an employee who is not meeting expectations. If you’ve been the target of illegal discrimination or retaliation, your employer’s progressive discipline system may potentially be a way to strengthen your case. If your employer skipped steps or otherwise failed to follow the standard procedure in dealing with you, then those “irregularities” can be a key piece of evidence demonstrating that you were the target of discrimination or retaliation. To find out how this might apply to your case, get answers from an experienced New York employment retaliation lawyer.

An upstate woman’s retaliation case shows pretty clearly how this can work. The woman, L.B., worked in the business office at a Syracuse hospital. In 2016, her doctors diagnosed her with cancer.

On May 4, 2017, the business office director informed L.B. and three peers that the hospital was eliminating their titles but not their positions. The other three workers were given new assignments immediately, while the director told L.B. that her job “was still in ‘formulation.'” Of the three peers who received immediate assignments, all three were younger than L.B. (who was in her early 60s) and all three were non-disabled.

A week later, L.B. visited the office of the hospital’s human resources director to inquire about her job status. According to the director, L.B. “was speaking in a raised voice and waving a finger at him… refused to stop engaging in such behavior when asked… stated that she would not meet with the Hospital’s management to discuss her position change, and… told him to fire her.” According to L.B., she calmly “gave a list of the ways that she was being treated that she thought were not right.

The employer suspended her for several days based on her conduct during that meeting.

L.B.’s employment ended the following month. The hospital said she resigned, but she asserted that she was constructively discharged in retaliation for her raising complaints about age discrimination and disability discrimination.

This woman clearly had a prima facie case of retaliation and, according to the court, the hospital “articulated a legitimate, nonretaliatory reason” for the adverse it took, based on L.B.’s “inappropriate conduct” in the meeting with the human resources director. That placed the ball back in L.B.’s court to prove that the reasons the hospital gave the court were actually just pretexts hiding the true motivation (which was retaliation.)

One of the key things that L.B. used successfully — and can be a crucial piece of evidence in your favor — was the way that her discipline deviated from the normal procedures the employer usually used.

Many progressive discipline systems start with verbal counseling, then graduate to a written warning or “write-up,” a suspension, and, finally, a termination… or steps similar to these. In unionized workplaces, the specifics regarding discipline may be spelled out and mandated by the collective bargaining agreement between the employer and the union.

A ‘Procedural Irregularity’ as Proof of Pretext

According to L.B., during the meeting in the human resources director’s office, she was “cordial and her voice was very quiet,” yet the employer suspended her for three days. The law here in New York is very clear that an employer’s bypassing of the usual steps of its procedures for progressive discipline is not enough to establish an inference of retaliation by itself, but it is enough for a jury to find the existence of pretext and, from that pretext, decide there was retaliation.

In L.B.’s case, the employer skipped lesser progressive discipline consequences and proceeded directly to suspension solely for her actions in a meeting where she allegedly was “cordial” and “very quiet.” That potentially was the sort of “procedural irregularity” that could be proof of pretext.

A similar outcome took place in a 2019 discrimination case here in New York City, where a supermarket produce worker from the West African nation of Guinea defeated his employer’s motion for summary judgment. The supermarket asserted that the man took an “unauthorized break” by overstaying his lunch period. The employer fired him based upon that single alleged occurrence.

However, the employee presented arguments that other, non-African workers had also overstayed their breaks, and the employer did not bypass other forms of discipline in favor of subjecting them to immediate termination based upon a single transgression (as they had the man from Guinea.) That was enough to give the employee a case he could take to trial.

Issues of discrimination or retaliation, pretext, and irregularities in the execution of progressive discipline are highly fact-intensive matters. Success requires amassing all the factual details regarding your employment and discipline and then knowing how to use them within the framework of the law. Count on the skilled New York workplace retaliation attorneys at Phillips & Associates to do just that and be the powerful and knowledgeable advocate you need for your case. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation.

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