Employment Law Daily Foul language, conflicts, and failure to admit misconduct led to firing, not racial bias
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Thursday, July 14, 2016

Foul language, conflicts, and failure to admit misconduct led to firing, not racial bias

By Lorene D. Park, J.D. Affirming summary judgment against an African-American supervisor at UPS who claimed he was fired due to his race, the Eighth Circuit instead found that the record showed he was fired based on his history of conflicts with coworkers and his manager, his use of foul language, and his refusal to acknowledge that he had a problem with conflict management and refusal to change (Smith v. United Parcel Service, July 12, 2016, Smith, L.). Workplace conflicts. Hired by UPS as an unloader in June 2010, the employee advanced rapidly and by September was a part-time supervisor. Five months later he was promoted to full-time supervisor of the "Night Sort" shift. Meanwhile, he had several interpersonal conflicts with others at UPS. For example, he distributed candy as a safety incentive and on one occasion, an area supervisor said "This ain’t the time for safety candy, come back later!" He yelled at the other supervisor, who called for assistance to make him leave. In November 2011, he became angry when his manager spoke to the employee’s subordinates about performance without first speaking to the employee. During the exchange, a Caucasian supervisor walked in and said "I ain’t got time for this bull s**t." Things again escalated and the employee angrily responded "Hold on mother****r. I asked your b***h a*s not to talk to me like that . . ." Thereafter, the division manager, who is African-American, called the employee and the other supervisor in to discuss the altercation but did not discipline either. In July 2012, the employee reported in an internal UPS survey that the communication breakdown among managers and supervisors was "out of control" and individuals were being "degraded, cursed out and humiliated" and "UPS’s model of, ‘beating people up,’ to achieve production numbers will eventually impact the perception of UPS." He requested a transfer but was denied. Fired for failing to acknowledge conflict management problems. At the end of August 2012, the employee’s manager asked him to run an errand. When he came back, his keys were missing from the drawer where he left them. He suspected the manager and the other supervisor used the errand as a rouse to take his keys and angrily confronted the manager—cursing and calling the manager foul names. He also called the police. Following the incident, the employee was put on administrative leave. He met with the HR director, who told him that he needed to change his attitude. When told he had been insubordinate, the employee responded, "I did no such thing." In a subsequent meeting he was again denied a request to transfer and told that he needed to stay in the hub and "learn how to deal with conflict management." He denied having any problems with conflict management. When the HR director said he needed to change his attitude, the employee again denied any problems. Finally, when the director asked if he would agree that "if you use profanity again, that will be your last day here?" The employee refused and was later fired. No race discrimination. Appealing summary judgment against his race discrimination claim, the employee argued that the evidence did not indicate he was fired for bad behavior but instead suggested he was fired because he is black. The appeals court disagreed; the record showed he cursed in the workplace, arguably threatened a supervisor, had multiple conflicts with coworkers, and disagreed with company efforts to address the problems. Significantly, the HR director’s explanation for the termination and the termination letter sent to the employee matched—both focused on his history of conflict management problems, stated that his conduct violated UPS policy, and noted that he refused to acknowledge his problems or commit to change. Furthermore, the employee’s own testimony did not establish a fact dispute because he testified that he "didn’t have behavior problems" but then answered "yes" when asked if it was bad behavior to call his manager a "mother****r" and to call another supervisor the same thing. In the appellate court’s view, his statements were consistent with UPS’s assessment that the employee was unwilling to acknowledge his behavior problems. Also, while the employee claimed that the manager referred to African-American employees as "idiots" and was "harder" on young black men, the evidence showed that the manager played no part in the termination decision, which was made by the division manager and HR director. For these reasons, final judgment in favor of UPS was affirmed.

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