Labor & Employment Law Daily Dollar General employee with cancer failed to show discharge was due to bias rather than policy violations
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Monday, March 30, 2020

Dollar General employee with cancer failed to show discharge was due to bias rather than policy violations

By Tulay Turan, J.D.

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

An employee with cancer failed to show that a regional manager who made unprofessional remarks about his diagnosis and threatened to watch him work “until he dropped” was motivated by discriminatory animus when he took part in the decision to fire the employee, the Seventh Circuit ruled. Affirming summary judgment in Dollar General’s favor, the court also found the employee failed to show the reason for firing him—performance deficiencies—was pretext (Castetterv. Dolgencorp, LLC, March 25, 2020,Bauer, W.).

The employee underwent treatment for various forms of cancer during his employment with Dollar General. After returning from a few months of medical leave, he applied, but was not hired as a district manager (DM). Three months later, he secured a DM position in Fort Wayne, Indiana. He was responsible for managing stores and store managers in his district. His responsibilities included recruiting, training, and ensuring that proper employee paperwork and background checks were completed.

Watch you work until you drop. After an incident with a regional manager (RM), the RM identified deficiencies in the employee’s stores, including items that were out of stock, high employee turnover, and stores that were not customer ready. The RM placed the employee on a performance improvement plan, which prompted the employee to write a long letter to the prior RM complaining about the new RM. When the prior RM returned, 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.” The employee also alleged the RM said he knew “three people who had what you had, and they all died.”

Terminated. After the RM and a human resources employee reviewed the employee’s performance, they issued a final written counseling detailing his unprofessional conduct, discussions, and violations of Dollar General’s policies. He was ultimately terminated when Dollar General learned he had allowed employees to begin working without completing the on boarding process, without the required background and drug checks, and without processed I-9 forms.

The employee brought a disability discrimination action against Dollar General. The district court granted summary judgment in Dollar General’s favor. The employee filed this appeal.

No causal nexus. Pursuing an Ortiz approach rather than the McDonnell Douglas framework, the employee argued the evidence as a whole would lead a reasonable jury to find Dollar General terminated him due to his disability. He claimed the RM’s comments and actions provided a discriminatory animus regarding cancer. The court disagreed, however, finding there was no evidence the RM’s comments or conduct were contemporaneous with or part of the decision to terminate him. Thus, he failed to meet the requisite showing of discriminatory intent by showing a causal nexus between the unprofessional remarks and the decision to terminate him.

Disparate treatment. The court also rejected the employee’s argument that Dollar General discriminated against him when it terminated him and did not terminate his subordinate for the same reason. The employee delegated his DM responsibilities of hiring and completing payroll documents to a subordinate. Because she could not complete the hiring paperwork, the applicants remained non-employees and remained unpaid. The termination resulting from his failure to adhere to his DM responsibilities cannot be compared with discipline of a subordinate whose DM imposed responsibilities beyond the scope of her employment. Thus, the district court accurately concluded the employee failed to show a discriminatory animus.

Pretext. Lastly, the court found the district court correctly determined the honesty of Dollar General’s beliefs, and its reason for firing the employee was not pretextual. The employee failed to rebut the “voluminous evidence” showing his deficiencies as DM, including violations concerning compliance with processing employment documents, providing key authorizations to individuals without performing proper background checks, and failure to discover a cash discrepancy in one of his stores. He also did not cite any evidence that would allow for a reasonable inference that his employer did not have honest concerns about his professionalism and work ethic. Taken as a whole, his claims were insufficient to meet the level of proof that his disability was the “but for” cause of his termination. Thus, the court affirmed summary judgment in Dollar General’s favor.

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