The importance of evidence in employment discrimination cases (pt.2)

On Behalf of | Sep 21, 2015 | Workplace Discrimination


In our last post, we were discussing a woman who had been fired, according to her employer, for mistakes she made on the job. She claimed that reason was a pretext because she had taken Family and Medical Leave Act (FMLA) leave on multiple occasions, including in the month before she was fired.

A federal district court and a court of appeals disagreed and ruled she failed to prove pretext because the other employees she claimed who were similarly situated were not fired.  


The court differentiated those employees, stating the test for “similarly situated” is “rigorous.” However, they note, an employee “need only establish that he or she was treated differently than other employees whose violations were of comparable seriousness.” This may not be as easy as the “only” in that sentence suggests.

The test requires that the employee demonstrate that where errors were excused in other employees, those employees worked “with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”

The court highlighted that she had committed four “egregious” errors within 17 days, she had five years of experience in the position and she made a shipping mistake involving two of her own clients. It appears the court found this combination of mistakes despite her experience convincing in differentiating her from the other customer service representatives.

What a case like this demonstrates is that it is essential to have a wealth of evidence that supports your claims. You must show that other employees are similarly situated as defined by the courts and not simply that they perform a job somewhat similar to yours, in order for this type of claim to succeed.

An attorney can explain how these requirements may apply in your specific situation, which may allow you to obtain the necessary evidence that will satisfy this test.

Source:, “No trial and lots of errors: Employee’s FMLA claim fails,” Stephen W. Jones, September 14, 2015

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