The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
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
4.533.30 Wrongful suspension prima facie case
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.
stress, however, that "courts must be sensitive to the myriad of ways
such an inference can be created."
. . . .
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.