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Oct 28, 2015

By Eric B. Meyer

When it comes to daytime television, personally, I’m more into The View

[Disclaimer: This post involves an employer client of mine. However, I was not involved in this particular action].

Here’s the thing: If you’re going to play hooky, try not to have clips of it on YouTube.

The case is called Selvato v. SEPTA. In December 2009, Ms. Selvato took sick leave to treat for neck and back pain. During that leave, Ms. Selvato and her boyfriend drove to New York City with advance tickets to see a taping of Live with Kelly & Michael.

She calls in sick, but attends a TV taping

The following day, SEPTA’s Director of Transportation received a link to a YouTube video clip from another SEPTA employee. The clip shows Ms. Selvato sitting in the front row at the taping.

SEPTA (the Southeast Pennsylvania Transportation Authority) has a sick leave and pay policy is explicitly for employees who are unable to work due to injury or illness. Employees are expected to remain at home, except for medical treatment. Violations of the policy are grounds for termination.

After Ms. Selvato’s return to work, the Director of Transportation interviewed her about her trip to NYC. She admitted that she had gone to see Live with Kelly & Michael while on sick leave.

About a week later, the Director of Transportation provided Ms. Selvato with written notice of the reasons for her imminent discharge. SEPTA then terminated her employment in early January 2013 for violating the sick leave policy.

A legitimate business reason to fire the employee

Among other things, Ms. Selvato claimed that her termination was motivated by her gender. She argued that other men were not terminated for the same conduct.

To demonstrate disparate treatment, a plaintiff ultimately has to poke holes in a company’s reasons for taking action against her. Here, SEPTA had smoking gun evidence (a video and her subsequent admission) that Ms. Selvato violated the sick leave policy.

Plus, the male comparators to whom Ms. Selvato compared herself were not comparators at all.

For example, one of the men supposedly took an unauthorized 45-minute lunch (as opposed to Selvato who, the Court noted, “feigned illness for several days while attending a live television show in a different state.”). There was no evidence that another male comparator had feigned illness. And, the other male comparator held a different position within the company. So, he was not a true comparator. (Generally, comparators must hold the same job and have the same supervisor).

Ms. Selvato also alleged that she was not faking sick. However, she did not argue that the Director of Transportation displayed any discriminatory animus towards her. Thus, the court was not concerned with whether Ms. Selvato was actually sick when she went to see Live with Kelly & Michael.

And, with blunt precision, the judge disposed of Ms. Selvato’s claims:

Whether or not Selvato was legitimately ill prior to being terminated, her subjective displeasure with the result of SEPTA’s investigation is, on its own, insufficient to demonstrate a causal link between her protected activities and the decision to terminate her. It is up to Selvato to present a prima facie case. After all, “summary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.”

Takeaway for employers: Follow your policies and procedures

I’m totally lifting Judge Beetlestone’s quote for a future brief.

In the meantime, what employers can take away from this decision is that if you have workplace rules and policies, apply them as evenly as you can. Do not create exceptions for folks who have complained about discrimination in the workplace.

Indeed, had SEPTA created an exception for Ms. Selvato, it could have done more harm than good.

Imagine what would happen if, in the future, a male employee engaged in similar behavior and was fired. Indeed, that could be gender discrimination.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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