(press release: cdklawyers)
The San Antonio Court of Appeals recently upheld summary judgment for an employer accused of discrimination. Cantu v. Frito-Lay, Inc., No. 04-08-00630-CV, 2009 WL 1339123 (Tex. App.—San Antonio May 13, 2009, no pet. h.).
Sales representative Kirk Cantu sued Frito-Lay for discrimination when it terminated him after a customer barred Cantu from its stores because he used saliva to remove expiration dates from product packaging. Cantu alleged age and sex discrimination because, although it typically terminated employees barred from customers’ stores, Frito-Lay did not fire a younger female sales representative who also had been barred from one of the same customer’s stores.
To prove discrimination based on disparate discipline, the two employees’ misconduct must be of comparable seriousness and the two employees’ work situations (supervisors, responsibilities, disciplinary records, etc.) must be nearly identical. Here, the younger female employee was barred from one store because she shared personal information about the store’s manager, who was also her relative. In that instance, the customer specifically requested that the employee not be reprimanded, however, the customer in the case at bar adamantly refused Frito-Lay’s repeated attempts to reinstate Cantu to its stores. Because the underlying misconduct and the customer’s responses were not nearly identical, the summary judgment evidence established that Cantu was not similarly situated to the other employee for purposes of establishing discrimination based upon disparate discipline. The Court thus affirmed summary judgment for Frito-Lay.