Title VII Gender Discrimination Claim Unsuccessful Where Female Employee Failed To Show That Males Were Similarly Situated And That She Was Treated Differently

Gryzelle Rosado was fired by her employer, Radio Shack, Inc., after almost thirteen years of employment and a steadily rising career in the company.

Before terminating her employment, Radio Shack had promoted Rosado up the ranks to the position of Store Manager in Bayamon, Puerto Rico. She ran the store from February 14, 1997 to January 15, 1998. In April 1997 she became aware of an opening for a District Sales Manager in Puerto Rico. She applied, but was not chosen. She was not yet a member of the President's Council (a reward for superior sales performance), and that was a qualification for the District Sales Manager job. At least one woman who was a member of the President's Council did apply and was considered. A male, Rene Castello, was given the District Sales Manager position in December 1997.

Nonetheless, Rosado prospered. In January 1998 she was promoted to Senior Sales Manager at a different store, in Santurce, Puerto Rico, and named to the President's Council. In that seeming success lay her downfall. Her old job at the Bayamon store passed to a new store manager, Pedro Rivera, who became concerned by the store's most recent monthly profit and loss statement, which showed large credit card/finance company chargebacks, high payroll expenses, high miscellaneous expenses, and a net loss. Rivera discussed his discoveries with Castello, the new District Sales Manager, and they instituted an investigation. The investigation revealed several departures from normal procedure, a number of which appeared to work to Rosado's financial benefit--such as shipping parcels to relatives at the company's expense, falsifying information to get free repairs on a telephone, and falsifying sales records to earn higher commissions. In addition, Radio Shack found evidence of failure to maintain accurate time cards, abuse of the store's petty cash, mismanagement, and violations of the policy against cashing personal checks. According to the company rules for personal conduct, which were signed by Rosado, several of these irregularities are grounds for immediate discharge.

When Radio Shack employees questioned her, Rosado initially denied all of the alleged irregularities. Later, after company loss prevention manager Edward Gillingham confronted her with the results of his investigation, Rosado recalled some of the irregularities, but remained less than candid. At first, for example, she denied recognizing the name and address of a family member--her brother's ex-wife--to whom she had sent a UPS package. The company terminated Rosado's employment on the basis of the results of the Gillingham investigation and her lack of candor when questioned.

Rosado brought suit alleging her discharge was caused by gender-based discrimination in violation of Title VII. The district court entered summary judgment for Radio Shack and Rosado appealed. The 1st Circuit affirmed:

Rosado's argument on appeal is that a jury question has been presented by the facts of record. Framing the case under the familiar test of McDonnell Douglas Corp. v. Green, Rosado argues that she has produced evidence from which a jury could reasonably infer that the stated grounds for her termination were pretext and the actual reason was gender discrimination.

In the face of [Radio Shack's proffered] non-discriminatory reasons for the termination, Rosado offers as evidence of discrimination the following. She says she was investigated by men and fired by men. She also says that she shared responsibility for running the store with her male superiors, none of whom were fired. These facts, she argues, permit an inference of discrimination and thus a basis to get before a jury on a differential treatment claim. That is not so.

To have a plausible differential treatment claim, Rosado must first show that males were similarly situated and that she was treated differently, and then that gender was the reason for that difference, She fails on the first point. None of the superiors to whom she compares herself were similarly situated. Further, while there was evidence she benefited personally from the irregularities, there was no evidence that her superiors did. Nor was there evidence of any lack of candor on their part.

There is also no evidence that the decision makers were motivated by gender discrimination. The mere fact that the decision makers were male does not alone, absent other evidence, create an inference that they engaged in gender discrimination. Rosado had been regularly promoted and rewarded by Radio Shack before the irregularities were discovered. There were no statements or behaviors by the males involved in terminating Rosado from which an inference of discrimination could be drawn.

Rosado also attempts a step-by-step refutation of the findings of the Gillingham investigation. Her attacks on the details of Gillingham's findings misconstrue Title VII, which does not ensure against inaccuracy by an employer, only against gender-based discrimination. We see little evidence even of inaccuracy, and Rosado admitted to some violations of company rules.

The district court correctly concluded that Rosado's evidence was insufficient to create a material issue of fact and entered summary judgment.

Rosado v. Radio Shack, Inc.

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The 1st Circuit Court of Appeals' jurisdiction includes Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.