The fact that a company has a written policy does not divest it of discretion. Similarly, it may sometimes be a judgment call as to what constitutes a willful or negligent act. And the "can or will" language (if that is indeed the language used in the written policy) underscores that the company retains discretion.
If you think there was some sort of unlawful discrimination, that may change things. If an employee is treated different due to his or her gender, disability, age, race, color, national origin, or religion, then that is unlawful.
Good luck to you.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.
I agree with Mr. Haber. As long as they don't "pick and choose" on an illegal basis, they are within their right to apply the policy unevenly. Good luck.
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