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By Morey Raiskin

When the U.S. Court of Appeals for the 11th Circuit (which has jurisdiction over Employers operating in Florida) reversed a trial court’s grant of summary judgment to an Employer which fired an Employee who was sleeping on the job, the Court made an Employer’s failure to follow its own progressive discipline policy evidence of a discriminatory intent.        

In Chavez v. Credit Nation Auto Sales, LLC, Ms. Chavez was fired for sleeping on the job.  The trial court agreed with the Employer that this was a legitimate, nondiscriminatory, reason to dismiss an Employee and granted the Employer’s Motion for Summary Judgment.  On appeal, however, the 11thCircuit reasoned that Ms. Chavez, a transgender employee, should survive summary judgment because there was sufficient “…circumstantial evidence that creates a triable issue concerning the Employer’s intent” which tended to show that “gender bias was a ‘motivating factor’ in her termination, even though other factors also motivated her termination” Chavez v. Credit Nation Auto Sales, LLC. No. 14-14596 (11th Cir., Jan. 14, 2016 unpublished) at pg. 5.         

In reaching this result, the Appellate Court lached onto the fact that Ms. Chavez had never before been disciplined, the Employer had a four-step progressive discipline program, that exceptions to the policy permitting the Employer to immediately dismiss an Employee (or otherwise “skip” steps in the process) existed, that sleeping on the job was not listed as a reason for “skipping” steps and that Ms. Chavez testified that her Employer “subjected her to heightened scrutiny after learning about her gender transition plan.”  Under these facts, the 11th Circuit reversed the Trial Court’s grant of summary judgment to the Employer because sufficient circumstantial evidence existed to create a factual issue that required a trial (and a determination by a jury) of whether the Employer’s failure to follow its progressive discipline program was, in part, motivated by a desire to discriminate.            

The Chavez ruling should alert Employers in Florida to both follow their progressive discipline policies, to revisit those policies to make certain that every possible exception is detailed, to make certain that the disciplinary policy statement makes absolutely plain that it is not all inclusive and merely lists examples of possible employer responses to employee conduct and, finally, to appreciate the risk that not following their own policies (or that releasing an Employee for something as serious as sleeping on the job) carries potential litigation risks (and related expenses).