Plaintiff has a disparate treatment claim because she was treated differently than male officers who also engaged in misconduct. The test is whether she was "similarly situated in all material respects to individuals with whom she seeks to compare herself," as per Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000). About two years after all this went down, a male officer was only issued a written reprimand and lost one furlough day for disobeying a direct order.
But this is a tough way to win.The case is Billue v. Praxair, Inc., decided on November 20 by summary order. The general rule in this area is set forth in Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which holds that you can claim discrimination if similarly-situated co-workers were not comparably disciplined. The plaintiff, a truck driver, pointed to a co-worker who left his truck unattended for five minutes, leaving the rear trailer door locked, within 100 yards of the employer's property.