Speculation will not get you a trial in a discrimination case

This plaintiff asserts she was denied commissions while working at a car dealership because she was pregnant. The argument was that her manager was delaying her commissions because she lost access to a computer program that allowed her to quickly process credit checks for prospective customers, forcing her to rely on her sales manager to process the checks on her behalf, but he intentionally delayed doing so, costing her customers.

The case is Stidhum v. 161-10 Hillside Auto, a summary order issued on March 18. The Court of Appeals holds that plaintiff does not have a discrimination case. While the trial court held that plaintiff did not actually sustain an adverse action even under the Supreme Court's recent case, Muldrow v. City of St. Louis, which relaxed the adverse action standards under Title VII, the Court of Appeals sustains summary judgment against her on different grounds: plaintiff cannot prove she was treated any differently than her male coworkers.

The Second Circuit (Calabresi, Nathan and Vargas [D.J.]) reiterates that one way to prove discrimination is by comparing your adverse treatment to the male workers. If they enjoyed favorable treatment, then you can win the case on the basis that you were singled out because of sex. But the record shows that the manager with access to the credit check software took vacation and no one else at the dealership had the password. This meant that plaintiff "was placed in the same position as every other salesperson at the dealership." Everyone suffered a delay in recovering their commissions. Plaintiff tries to get around this by arguing that the male salespeople sold more cars at this time, which can only mean they must have experienced shorter wait times for their credit checks. This may be true, but you need evidence to prove it. That's what summary judgment motions are all about: what evidence do you have that can justify a verdict at trial? Plaintiff could only speculate that "their customers were taken or tended to a little more promptly." That kind of speculation will not be enough in opposing a summary judgment motion.

Plaintiff argued that since the dealership destroyed the weekly sales records, thus preventing her from proving her case, that kind of spoliation argument will not work here because the records were destroyed prior to plaintiff's filing this lawsuit. There was therefore no bad faith in destroying the records. Had plaintiff been able to prove such bad faith, she might have gotten an "adverse inference" in her favor on this point.