Dive Brief:

• The 3rd U.S. Circuit Court of Appeals affirmed a jury's $258,000 award to a former manager for General Nutrition Corp. (GNC) who claimed his employer discriminated against him based on his age (Andujar v. General Nutrition Corp., No. 18-1715 (3rd Cir. April 12, 2019)).
• Santos Andujar managed a GNC store for 13 years before the company fired him at age 57, according to court documents. Andujar allegedly received below passing marks on his performance evaluations for four years in a row and failed to make improvements within the timeframe allotted. When GNC replaced him with a man in his twenties, Andujar sued and a jury awarded him more than $258,000 in back pay, front pay and emotional damages.
• On appeal, Andujar was able to show he was the only store manager in his region placed on an action plan or fired, even though others — all of whom were significantly younger — had failing scores, the court said. GNC argued that the other managers weren't proper comparators but the appeals court disagreed, saying the jury sufficiently concluded that Andujar and the other store managers were similarly situated and that his treatment differed because of age. "Companies have the right to discharge their employees for poor performance, but they can't excuse the shortcomings of younger workers while bringing down the hammer on older workers," the court said.

Dive Insight:

This case offers employers an important reminder: an employee can prevail on a legal claim even in an instance of subpar performance if others similarly situated are not treated the same way. The U.S. Equal Employment Opportunity Commission (EEOC) has explained that if two employees commit a similar offense, an employer may not subject them to different forms of discipline on the basis of factors such as age, race, national origin, etc.

Earlier this year, for example, a trial court ruled in Diallo v. Whole Foods Market Group, Inc. that a Whole Foods worker's uneven discipline claim on the basis of national origin discrimination could go to trial. Thierno Diallo claimed that he was the only worker fired for a single incidence of overstaying a break. And in Anderson v. Brennan, Postmaster General, a court found retaliation when an Asian-American postal worker found asleep on the job was fired while her white male co-workers were simply told to "get some coffee."

When discipline is doled out in an uneven fashion, employers may face discrimination and retaliation claims. It follows that employers can avoid legal liability by having disciplinary policies in place that are evenly applied to all.