Female Who Keeps Position Plus Male Who Loses Position Equals Discrimination Claim Surviving Motion to Dismiss

Last month, a federal judge in the Eastern District of Michigan denied the U.S. Postal Service’s Motion to Dismiss a claim of sex, military, and disability discrimination. The claim was premised on the allegation of a former employee who claimed he was fired when he became ineligible for a promotion as a result of a math deficiency and was denied the ability to return to a lesser position. (Edgin v. Brennan, No. 1:14-cv-14527 (E.D. Mich. Mar. 10, 2016).

The claim was permitted to proceed because the plaintiff (appearing pro se) had alleged that at least one female co-worker who was not disabled and who was not a veteran, but who was also deemed unqualified for a promotion she sought, was permitted to return to a lower-ranked job she was qualified for.

Recently we have discussed the importance of employers making sure that their actions (as to adverse actions as well as promotions and pay) should be similar without regard to any protected class. In large part, if litigation were to result from any of those actions (or inactions) comparator evidence would be relevant. Without evidence to show how the comparators are actually different, the employer will face an uphill battle in proving why the outcome of the decision was different—and not related to a protected class. To further discuss the importance of comparator evidence, contact a member of Verrill Dana’s Labor & Employment Practice Group.