Wednesday, January 6, 2021

Plaintiff falls short in trying to prove employment discrimination

In this employment discrimination case, the plaintiff claims her employer fired her because of gender and age. Management, of course, denies that and says plaintiff was fired because she had falsified time and temperature logs for good that she cooked and set out for sale in her role as a food service clerk at a food court owned by defendant. Plaintiff loses the case.

The case is Bjorklund v. Golub, a summary order issued on January 5. Many employment discrimination plaintiffs will argue that their termination must have been discriminatory because they were treated so unfairly that no other explanation makes any sense for their termination. The plaintiff's lawyer has to screen these cases to ensure that the case is worth her time. But if the plaintiff convinces the lawyer that the employer's reason for the termination is false, the lawyer might take the case, only to discover later that the case is not that strong. It's a judgment call at the outset of the case whether to proceed on the plaintiff's behalf. The biggest obstacle is the at-will employment rule in New York and every other state in these United States of America. That rule says the employee can be fired for any reason or even no reason at all unless the plaintiff can prove the termination violates a statutory right, like Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, national origin, color, or religion.

Plaintiff says the employer's reason for her termination was pretextual and that the real reason was discrimination because she did not falsify the time and temperature logs. But, the Court of Appeals (Cabranes, Park and Nardini) says the record tells us something else:

Before the District Court, however, Bjorklund conceded that she failed to enter times and temperatures contemporaneously into her official log and that she belatedly entered times and temperatures into her log while off the clock, in violation of Golub’s policy. On appeal, she points to evidence that she wrote down times and temperatures on  “a piece of paper” rather than her official log and that she was unable to update her official log contemporaneously “because she was too busy to do so.” But Bjorklund has never presented any evidence that this non-contemporaneous informal logging approach could satisfy Golub’s well-documented formal food safety policy.

What also kills the case is the principle that it is not enough to show the employer's reason for the termination is false. The plaintiff has to show the employer actually discriminated against her. That's two separate concepts. The evidence simply falls short on proving management's discriminatory intent. The Court says:

Bjorklund does not do enough to show that her firing was based on discrimination. Bjorklund conceded in the District Court that her supervisors, who reported her logging failures to Human Resources, subjectively believed that she had violated Golub’s food safety policy by failing to even check food temperatures. Further, Bjorklund does not contest that the Human Resources department made the decision to fire her, and that Human Resources was not involved in any of the discriminatory conduct she alleges. And, even if she is right that she did not falsify the logs, she has not demonstrated that Human Resources’ decision to fire her for failing to follow Golub policy by not entering times and temperatures in the log book contemporaneously was pretextual.


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