Gallucio’s v. Kane

Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711. The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager. She was granted maternity leave and told she could return to work to her previous schedule when physically able. Id. at *1. When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired. Id. When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside. The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule. Id. The Equal Employment Review Board found the defendant discriminated against the plaintiff. On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.” Id. However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim. The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement. Id. Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.