Progressive discipline.  I wish I had a nickel for every potential client who told me the employer did not follow the progressive discipline policy and, instead, fired the potential client after only one (or none) write-ups.  Well, as I have mentioned elsewhere on this blog, the employee handbooks are not binding on the employer.  Many handbooks provide that an employee will be disciplined in writing three times before termination.  

But, the reader should keep in mind the result in Berube v. Great Atlantic & Pacific Co. (2d Cir. 2009).    In this case, the second circuit overturned summary judgment for the employer.  The court found that evidence that the employer did not follow its progressive discipline policy in regard to an older worker showed there was enough evidence to justify a jury trial.  The key was that the employer could not explain why it deviated from its progressive discipline in the case of this one older worker.   

The older employee pointed to other employees who were charged with offenses of "comparable seriousness," yet who were not terminated.  The court found that when the employee compared his discipline to that of other workers, the worker need not show identical supervisors or even identical infractions.   It was enough to show that the infractions were of equal seriousness.  The alleged infractions should be of "comparable seriousness," said the court.  

So, the case will proceed to trial.  As one commentator pointed out, employers need to apply their progressive discipline consistently across the board.  One can debate the utility of progressive discipline policies.  But, if the employer uses them, the employer needs to make sure they are applied evenly.