Friday, January 24, 2014

Butt-Grabber Clears Summary Judgment Hurdle

When an employee assaults a woman in the course of his employment, that's usually a pretty safe termination right? That's what I thought until I read Mitchell v. City of Pittsburgh (opinion here). HT: Eric Meyer who put the Complaint on Scribd and blogged about this case yesterday.

Prior to terminating the now-plaintiff, the employer received the following complaint:
[A nurse] stated . . . that as the patient was about to be moved, [Plaintiff, an EMT,] walked up behind her and brushed up against her, which took her by surprise. [The nurse] stated that seconds later [Plaintiff] grabbed her buttocks, and placed his fingers “very close to [her] private area.” [The nurse] stated she objected immediately, and [Plaintiff] responded: “That was for Valentine’s Day, they call me walking chocolate.” . . . . [The nurse] related that “[Plaintiff] placed both hands . . . near her vaginal area and her heels lifted off the ground,” adding that she “bolted upright” and said, “Excuse me! What was that?”
After an investigation, the employer terminated the plaintiff. The plaintiff filed race and age discrimination claims against the employer.

He has no chance of winning, right? Not so fast. The Court noted several "similar" incidents in which white employees were not terminated. I put "similar" in quotes because I think it's at least questionable whether they are really similar to the allegations against the plaintiff here.

Generally, they entail paramedics striking patients who were intoxicated and/or combative. Call me crazy, but I think smacking someone who is punching you is slightly different from randomly groping a co-worker's butt. The Court saw it differently though and held that a jury could find that the employer treated "similarly situated" white employees better than it treated the black plaintiff.

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