In Emanuel v. Gap, Inc. et al, 2023 WL 5211007 (S.D.N.Y. August 14, 2023), the court, inter alia, denied defendant’s motion for summary judgment as to plaintiffs’ race discrimination claims.
In sum, plaintiffs argue that they were terminated for engaging in alleged misconduct (modifying employee timecards) while a caucasian employee (Kolibabek) suffered only a reprimand.
From the decision:
Plaintiffs argue that Banana Republic’s disparate treatment of Kolibabek is evidence of pretext. Defendants counter that Kolibabek is not similarly situated to Plaintiffs because she was of a different management level, had different awareness of company policies and the requirements of New York law, and had been employed for a different amount of time. The Court finds that a reasonable jury could find Plaintiffs are similarly situated to Kolibabek.
As discussed supra, although employees’ positions in a company are “relevant to the analysis, employees need not be of the exact same rank to be considered ‘similarly situated.’ ” The inquiry is focused on workplace standards. Here, the evidence does not support there being a significant difference between the workplace standards for Assistant and General Managers of Banana Republic such that they could not be found similarly situated as a matter of law. Rather, the record shows that all managers were expected to abide by the same timekeeping policy which required maintenance of accurate timecards. Additionally, Sobocinski had a discussion with an Assistant Manager at the Westchester Store about New York State meal/break rules on at least one occasion, which shows that Banana Republic had at least some expectations that Assistant Managers would be aware of company policies regarding timing of breaks. Also, despite having deposed several members of Banana Republic’s leadership, Defendants do not cite to any record evidence to support their assertion that “behavioral expectations for Plaintiffs as General Managers were significantly different from the expectations for the managers who reported to them.” Therefore, a reasonably jury could find that Plaintiffs were held to the same workplace standards as Kolibabek with respect to timekeeping.
A reasonable jury could also find that Kolibabek engaged in misconduct of comparable seriousness to Plaintiffs since she committed the same violation of Banana Republic’s timekeeping policy by manipulating timecards.
Despite having committed the same terminable violation and, upon confrontation, citing the same explanation of an unofficial three-minute rule, Kolibabek was sent back to work without a formal reprimand while Plaintiffs were terminated. Accordingly, the Court finds that a reasonable jury could find Plaintiffs were similarly situated to, but treated differently than, Kolibabek.
The court further held that plaintiff’s evidence of disparate treatment was sufficient to create a triable issue of fact as to plaintiff’s discrimination claims under 42 U.S.C. § 1981, even under its heightened burden (i.e., that “but for” plaintiff’s race she would not have been terminated).