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Not All Infractions Are Created Equal

Published by on January 25, 2019

The Eighth Circuit holds that Plaintiff was not similarly situated to other employees who had committed the same infraction for which he was terminated, as the other employees were not at the same stage of the employer’s progressive discipline process.

Plaintiff Todd Lindeman began working at St. Luke’s Hospital in 2006 and suffered from several disorders, including obsessive compulsive disorder, attention deficit disorder and bipolar disorder. (Lindeman v. Saint Luke’s Hospital, No. 17-3067 (8th Cir. 2018)). St. Luke’s had a progressive discipline system, which described the type of discipline an employee would receive based on how many infractions he or she had. Under this policy, an employee would receive a verbal warning for the first infraction, a written warning for a second infraction, a suspension or second written warning for a third infraction, and termination for a fourth infraction. St. Luke’s also had a policy prohibiting the disclosure of confidential patient information. These policies were provided to Plaintiff upon his hire.

In 2014, after being transferred to new supervisors, Plaintiff was disciplined for four infractions. He received a verbal warning for his first infraction, followed by a written warning for his second infraction and a temporary suspension for his third infraction. In April 2014, Plaintiff disclosed the name of a patient to several individuals, violating St. Luke’s confidentiality policies. He was subsequently terminated following this infraction. Plaintiff then sued St. Luke’s for claims under the Americans with Disabilities Act and Age Discrimination in Employment Act. The district court granted summary judgment in favor of St. Luke’s and Plaintiff appealed.

Plaintiff attempted to show that St. Luke’s reason for terminating him—disclosure of confidential information in violation of hospital policies—was a pretext for discrimination. To do so, Plaintiff pointed to two other employees he claimed revealed a patient name but were not disciplined. The Eighth Circuit held that Plaintiff failed to show these two employees were also at the last stage of the progressive disciplinary policy, which was “fatal” to his argument that these employees were similarly situated to him. Additionally, Plaintiff conceded that he had mentioned the patient’s name after being expressly told that doing so violated St. Luke’s policies. The Eighth Circuit therefore affirmed the grant of summary judgment in favor of St. Luke’s.

Welter Insight

The Eighth Circuit’s decision highlights an important lesson for employers—an employee may not be similarly situated to other employees just because they all engaged in the same infraction. Rather, in the Eighth Circuit at least, an employee would have to show that the other employees also had a similar misconduct history in order to show disparate treatment. Regardless of whether this favorable standard for employers will apply in your case, it stands as another important reminder of the need to treat similarly situated employees the same way with respect to discipline and termination.

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