Labor & Employment Law Daily Despite supervisor’s denigrating comments as to his cancer diagnosis, Dollar General employee was fired for policy violations
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Thursday, May 2, 2019

Despite supervisor’s denigrating comments as to his cancer diagnosis, Dollar General employee was fired for policy violations

By Kathleen Kapusta, J.D.

Although an employee pointed to supervisor comments, disparate treatment of coworkers, pretextual justification for termination, and suspicious timing, a reasonable factfinder could not conclude he was terminated due to his disability.

Denigrating comments by a Dollar General regional manager regarding an employee’s cancer diagnosis, together with the threat to watch him work “until he dropped,” was not enough to show the manager was motivated by discriminatory animus when he took part in the decision to fire the employee, a federal court in Indiana ruled. Granting summary judgment to Dollar General on the employee’s ADA claim, the court found no evidence the comments were contemporaneous with the termination decision or related to the motivation to discharge him (Castetter v. Dolgencorp, LLC, April 29, 2019, Springmann, T.).

As a Dollar General district manager in the Detroit, Michigan area, the employee oversaw 16 stores and was tasked with ensuring employees in his district properly completed all employment paperwork and background checks before starting work. Four months after he was hired in September 2013, he was diagnosed with colon cancer and placed on medical leave during which he underwent surgery and chemotherapy.

All dead. He notified the company that he would be ready to return to work in August 2014 and was informed of a district manager position in Gary, Indiana. During his interview, the employee claimed the regional manager (RM) told him he was “surprised” the employee was there because he knew three people “who had what [the employee] had and they were all dead.” When he did not hear back about the Gary position, he resumed working in Michigan.

Liver cancer. In November 2014, the employee filled a vacant district manager positon in Indiana, where he reported to the RM who had interviewed him for the Gary position. When the RM was temporarily reassigned, a new RM manager took over. In January 2015, the employee was diagnosed with liver cancer and began undergoing treatment. He claimed the new RM knew of his condition and was annoyed when the employee suggested hiring additional workers for his stores. He also claimed the new RM attempted to surveil him without his knowledge and visited his stores without advance notice.

Watch you work until you drop. His placement on a performance improvement plan in August prompted the employee to write a long letter to the prior RM complaining about the new RM. When the prior RM returned in December, the employee claimed he mocked and demeaned him and in one instance made him get on his hands and knees to straighten cans on a low shelf, saying “I am going to sit here in a lounge chair and watch you work until you will drop.”

In early 2016, the RM purportedly conducted a meeting when he knew the employee would be undergoing treatment. After the meeting, he issued the employee a final written counseling. The RM’s criticism continued and when the employee announced in March that he was cancer free, the RM purportedly forced him to do manual labor.

Terminated. In April, the employee was placed on another PIP when the company discovered that manager turnover was high in his district, critical staffing was low, and computer-based learning was below Dollar General’s goal. He was ultimately terminated when Dollar General learned he had allowed employees to begin working without completing the onboarding process, without the required background and drug checks, and without processed I-9 forms.

Comments. In arguing that Dollar General fired him because of his disability, the employee first pointed to the RM’s repeated denigrating comments about his cancer diagnosis, combined with the threat to watch him until he dropped, which he claimed demonstrated discriminatory animus. He failed to show, however, that the comments were contemporaneous with the termination decision or that they were connected to any discussion or decision to terminate him. Nor did he explain how the comments demonstrated the RM’s tendency to evaluate employees on impermissible grounds, such as a disability. Even viewed in the light most favorable to the employee, they did not reveal a discriminatory intent behind the termination decision.

Disparate treatment. The employee also argued the fact that the temporary RM and another store manager were comparators who violated company policies but were not terminated showed Dollar General’s discriminatory intent in terminating him. But the company’s decision not to discipline the temporary RM after the employee’s letter was not a proper comparison to the decision to terminate the employee, said the court. Even if the alleged conduct was true—the employee complained about the RM’s management of his region and about placing him on a PIP without justification—this was not similar to the conduct for which the employee was fired, namely violations concerning compliance with processing employment documents and providing key authorizations for individuals without performing the proper background checks. Nor was the store manager, to whom the employee purportedly delegated the onboarding responsibilities, a proper comparator as she was in a subordinate position in relation to him.

Pretext. The employee next claimed that by not taking adverse employment action against the temporary RM and the store manager, while terminating him, necessarily indicated that Dollar General’s reason for firing him was not honest. But this was nothing more than a recycled comparator argument and he provided no explanation for how the decision to fire him over his failure to process employment documents and ensure compliance with the company’s key authorization policies was pretextual.

Suspicious timing. Finally, he contended that the timing of certain adverse employment decisions evinced Dollar General’s discriminatory intent. Specifically, he noted that the same day as his first radiation treatment for liver cancer, the temporary RM began moving his employees to different stores without first consulting him and the RM presented him with a Final Written Counseling three days after he had a microwave ablation procedure to treat his liver cancer. Observing that he had 15 medical appointments and procedures in 2015 alone, and several more in 2016, the court explained that it would not be suspicious that he experienced what he characterized as adverse employment decisions at some point in temporal proximity to a medical procedure or appointment. Thus, he failed to overcome the general rule that suspicious timing alone is insufficient to support an employment discrimination claim.

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