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Chapter 4 - Proving Disparate Treatment Discrimination
4.500 McDonnell Douglas prima facie case
4.530 Prima facie cases listed by most common case types
4.533 Other forms of unequal treatment prima facie case

10th Circuit

In Hysten v. Burlington Northern and Santa Fe Ry. Co., 296 F.3d 1177, 1181-82 (10th Cir. 2002), the court explained:

A plaintiff in a discriminatory suspension case -- as distinguished from a discriminatory discharge case -- makes out a prima facie case upon showing: (1) that plaintiff belongs to a protected class; (2) that he suffered an adverse employment action; and (3) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). Our disagreement with the district court is largely one over semantics because ordinarily the third part of this test will be satisfied by proof that the employer treated similarly situated employees more favorably. Id. We stress, however, that "courts must be sensitive to the myriad of ways such an inference can be created."

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Proof that a qualified individual in a protected class was discharged and that his position remained open after the discharge raises an inference of discrimination because it eliminates the two most common legitimate justifications for discharge -- lack of qualification and elimination of a position. Perry, 199 F.3d at 1140. The same cannot be said in the suspension context. Proof that a qualified individual in a protected class was suspended and that his position remained after the suspension does not eliminate the common legitimate justification for suspension -- violation of workplace rules -- and thus does not warrant an inference of discrimination.