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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can Employers Discriminate Against Probationary Employees When Enforcing Workplace Rules?

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Having litigated employment discrimination cases for more than two decades, our employment discrimination lawyers in Marion County, Florida know that a common employment law myth is that probationary employees do not have the same employee rights as permanent employees. Because of this employment law myth, our employment discrimination attorneys in Ocala, Florida have learned, employers believe that they are legally entitled to treat probationary employees differently and less favorably than permanent employees.

In far too many cases, employers use their purported legal right to treat probationary employees differently and less favorably from permanent employees to camouflage discriminatory employment decisions against probationary employees. For example, an employer will terminate a female probationary employee who violates a work rule but does not terminate male permanent employees who violate the same work rule. Likewise, an employer will fire a female employee for misconduct but does not fire male employees who engage in the same or more serious misconduct.

Whether employers are legally permitted to treat probationary employees differently and less favorably from permanent employees is significant in employment discrimination context because, as the U.S. Supreme Court explained in Hazen Paper Co. v. Biggins, 507 U.S. 609 (1993), discrimination can in some situations be proven “from the mere fact of differences in treatment.” If employers are legally entitled to treat probationary employers differently and less favorably from permanent employees when enforcing workplace rules, then probationary employees are deprived of a critical evidentiary basis for proving employment discrimination cases.

In this article, our employment discrimination lawyers in Marion County, Florida explain how the decision in Kotapka v. City of Bridgeport, Case No. 18-1660 (D. Conn. April 22, 2023) demonstrates that federal employment discrimination law protects probationary employees from being treated differently and less favorably from permanent employees in the enforcement of workplace rules.

Employment Discrimination Lawsuit

In Kotapka, a woman named Kotapka brought an employment discrimination lawsuit against her former employer, the City of Bridgeport (the City), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects employees from discrimination on the basis of sex. Kotapka claims that she was discharged from her position as a probationary police officer for the Bridgeport Police Department (BPD) because of sex discrimination.

While employed as a probationary police officer, Kotapka was living with a man named BP, a registered sex offender. As a condition of his probation, BP was prohibited from having or accessing unmonitored and unauthorized electronic devices capable of connecting to the Internet. At some point, Kotapka became aware that BP had an unauthorized and unmonitored smartphone that he was using to access the internet as well as unauthorized internet service under his name, but she took no action on the understanding that he was going online merely for innocent purposes. With that same understanding, Kotapka allowed him to use her laptop from time to time. BP, however, was going online to view child pornography. Probation officials ultimately searched the apartment Kotapka shared with BP and seized her laptop. BP was arrested for violating the conditions of his probation and receiving child pornography. BP pleaded guilty to the federal charge and was sentenced to a mandatory minimum term of imprisonment of 15 years.

After BP was arrested, the Department of Internal Affairs (OIA) investigated Kotapka’s conduct. The OIA concluded that by facilitating and failing to report BP’s use of internet-capable devices in violation of the conditions of his probation, among other regulated conduct, Kotapka had violated BPD regulations. Based on the OIA’s report, the City terminated Kotapka’s employment.

As the trial court pointed out, Kotapka “does not dispute that the BPD had grounds to discipline her for violation of BPD regulations.” However, Kotapka “claims that if she were male,” the BPD Chief “would have given her another chance, as he has male police officers who engaged in various forms of misconduct.” For example, Kotapka produced evidence that a male police officer who was arrested for criminal mischief, disorderly conduct, breach of the peace, stalking, harassment, and violation of a protective order was disciplined with a loss of ten holidays. While another male employee who was arrested for threatening, criminal mischief, and breach of the peace received a verbal warning. Still, another male employee who was arrested for disorderly conduct, assault, and threatening received a verbal warning.

Work Rules Must Be Enforced Equally

The City filed a motion with the trial court seeking the dismissal of Kotapka’s claim that she was fired because of sex discrimination. The City argued that Kotapka could not compare herself to the other male employees who were not fired for engaging in misconduct because those male employees, unlike Kotapka, were permanent employees. In other words, the City contended that Kotapka could not prove that she was fired because of sex discrimination by comparing her situation to male employees unless the male employees who received more favorable treatment were probationary employees. Thus, according to the City, differences in treatment between female and male employees were relevant in proving discrimination only if the differences in treatment involved probationary employees. If the male employees who received more favorable treatment were permanent employees, the City maintained, then what happened to them was irrelevant to Kotapka’s sex discrimination claim.

In rejecting the City’s argument and denying the City’s motion for dismissal, the trial court explained that courts have determined that “a probationary employee who has been terminated for engaging in a violation of workplace rules may raise an inference of discrimination by pointing to a permanent employee who engaged in the same or similar conduct yet received no discipline.” In applying this principle, the trial court observed that there was a disparity in the treatment Kotapka received because she was terminated while male officers who engaged in misconduct, if not more serious misconduct, were only subjected to disciplines, such as loss of holidays or verbal warnings, that was “effectively de minimis.” “It was also possible,” the trial court noted, “that some of the discipline imposed [on the male officers] was meted out in response to this litigation.” Based on the disparity in the City’s treatment of a probationary employee and de minimis punishment of permanent employees, the trial court concluded that a reasonable jury could find that, but for Kotapka’s gender, her misconduct would not have caused the City to terminate her employment.

Marion County, FL Discrimination Lawyers

Based in Ocala, Florida, and representing employees throughout Florida, our employment discrimination attorneys in Marion County, Florida have fought for the rights of employment discrimination victims for more than twenty years. If you have experienced employment discrimination or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our employment discrimination lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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