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James P. Tarquin, P.A. Motto
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Female Manager Allegedly Wanted A Man In The Position Held By Discharged Female Employee

sex discrimination image of woman figure with male figures

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employees from discriminating against employees on the basis of sex. Having represented victims of sex discrimination for more than 15 years, our Central Florida gender discrimination attorneys have learned that employers frequently terminate employees for behavior that is an accepted company practice. When an employer fires an employee for behavior that it usually tolerates, courts have consistently held that the employer’s deviation from its own standard practices is evidence that the proffered reason for the challenged employment decision is a pretext for discrimination. In other words, evidence that the employer acted contrary to an accepted company practice when making an employment decision reflects that discrimination was the real reason for the decision. A recent decision by the U.S. Ninth Circuit Court of Appeals in Mayes v. WinCo Holdings, Inc., 846 F.3d 1274 (9th Cir. 2017) illustrates that employees may establish a sex discrimination case by showing that it was not the employer’s policy or practice to respond to such problems in the way it responded in their case.

Employee Fired For Allegedly Stealing A Cake

In that case, Katie Mayes (Mayes) claimed that WinCo Holdings, Inc. (WinCo) fired her on the basis of sex in violation of Title VII. Mayes worked at WinCo, a grocery store, for twelve years. During her final years of employment, Mayes held the position of person-in-charge and supervised employees on the night-shift crew. WinCo fired Mayes for taking a stale cake from the store bakery to share with her crew and telling a loss prevention investigator that management had given her permission to do so. WinCo maintained that Mayes’ actions constituted theft and dishonesty. 

Mayes claimed that she had permission to take the stale cake because it was a common practice for persons-in-charge and management to take stale cakes from the bakery to the break room. In fact, Mayes testified that a management-level employee had given her permission to take stale cakes from the bakery to the break room in order to motivate her crew and boost their morale. Mayes further testified that when she brought stale cakes to the break room, assistant managers frequently ate them with her crew. Mayes’ version of events was confirmed by testimony from WinCo employees that taking sale cakes from the bakery to the break room was a customary practice by persons-in-charge and management.

During her employment, Mayes also experienced gender-based difficulties with her direct supervisor and store manager named Steen. Steen, like Mayes, is a woman. When Mayes asked Steen why she was being replaced with a male employee as chair of a safety committee, Steen told her that “a male would be better in that position.” Mayes testified that when she complained to an assistant manager that Steed treated her unfairly, the assistant manger told Mayes to “stay away” from Steen because she did not like that “a girl” was running the night-shift crew. 

Employee Cannot Have Stolen A Cake She Had Permission To Take

After the trial court dismissed Mayes’ sex discrimination claim, the Ninth Circuit reinstated Mayes’ claim and ordered a jury trial. Unlike the reversed trial court, the appellate court observed that Mayes’ claim she was fired on the basis of sex was supported by overwhelming evidence showing that “it was a common, accepted practice—rather than an offense punished by termination—for [persons-in-charge] to take cakes to the break room.” The appellate court found that firing Mayes for a following a common practice constituted evidence that “WinCo’s proffered explanation for her termination is not believable.” “Mayes could not have stolen a cake,” the appellate court reasoned, she had permission to take.” Moreover, the appellate court pointed out, management could not have “reasonably thought that Mayes lied about having permission if they knew that [persons-in-charge] were allowed to use stale cakes to motivate employees.” 

The Ninth Circuit also found that the trial court improperly ignored the sexist remarks allegedly made by Steen. Steen’s alleged sexist comments, the appellate court determined, constituted direct evidence of sex discrimination. The Ninth Circuit further explained, “the fact that Steen is also a woman does not preclude a finding of discriminatory animus” because the U.S. Supreme Court has ruled that “nothing in Title VII necessarily bars” a claim of sex discrimination because the alleged discriminator and the victim “are of the same sex.”

Free Consultation With Ocala Gender Discrimination Attorneys

Based in Ocala, Florida and representing employees throughout Central Florida, we have more than fifteen years of experience litigating cases involving sex discrimination in the workplace. If you have suffered from gender discrimination, or have questions about being fired for behavior that was an accepted company practice, please contact our office for a free consultation with our Central Florida sex discrimination lawyers. Our employee rights law firm takes gender 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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