Employment Law Daily Questionable audit, suspicious timing thwart summary dismissal of fired Comcast worker’s bias, reprisal claims
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Friday, December 28, 2018

Questionable audit, suspicious timing thwart summary dismissal of fired Comcast worker’s bias, reprisal claims

By Victoria Moran, J.D.

A former Comcast customer service call center supervisor may proceed with her race and age discrimination claims after a federal court in Illinois concluded that evidence of the employer’s flawed audit procedures—the ostensible justification for her discharge—was enough to create disputed questions of fact. There was also sufficient evidence that she was disabled and was qualified to perform the essential job functions, and that her discharge was motivated by her disability, so her disability discrimination claim survived a summary judgment motion as well. In addition, the suspicious timing of her termination was enough to avoid summary judgment on her retaliation claim. However, the court granted summary judgment on her cause of action under the Illinois Personnel Records Review Act (IPRRA) because she failed to respond to arguments in briefing on this issue (Harden v. Comcast, December 18, 2018, Kennelly, M.).

Written warning following audit. The employee, an African-American woman over the age of 40, worked as a customer service call center supervisor. She began working for Comcast in 2000 and she was terminated in 2015. She took a medical leave of absence in the summer of 2014 because of mental health symptoms related to PTSD and depression, and an interim supervisor was appointed in her place. Just prior to her return, the employer conducted an audit of complaint handling by supervisors; final written warnings were issued to supervisors who complied with procedures less than 65 percent of the time. The employee received a final written warning because her compliance was only 56 percent. The employee objected to her superiors because the audit period began while she was on leave and included a time when she could not access the company’s systems to process tickets (meaning her audit included responses from other supervisors), but the employer took no action in response to her concerns.

Discharge following complaints. In February 2015, the employee complained to HR about discrimination; she also made these complaints to her superiors in May. In June, she was placed on administrative leave pending an investigation for allegedly emailing confidential information to an employee back in April. While on administrative leave, a second audit was conducted; the employee did not meet the 65-percent threshold and was terminated. She filed suit alleging the termination was motivated by race, age, and disability, that she was retaliated against for complaining about the discrimination, and that the employer violated the IPRRA. The employer moved for summary judgment on all claims.

Disability discrimination. The court denied Comcast’s motion for summary judgment on her disability discrimination claim because a reasonable jury could find that she was disabled, was qualified to perform the essential functions of her job, and was terminated because of her disability. Medical records supporting a diagnosis of PTSD and depression and reflecting that her symptoms interfered with her ability to do her work, interfered with major life activities, and were consistent with her 2014 leave of absence established that she was disabled.

Moreover, she presented sufficient evidence to support a finding that she was qualified to do her job by calling into question the validity and results of the audit. The audit included tickets completed by other supervisors during her absence and complaints made during a time she did not have access to the system. The employer failed to take corrective action after learning of these irregularities. The employee also provided evidence she could perform her essential job functions through a performance evaluation and absence of previous disciplinary actions. Lastly, evidence that the audit was conducted unfairly or arbitrarily could also support a finding of pretext. The timing of the audits also supported an inference that the first audit was related to her leave of absence.

Age discrimination. The court also denied summary judgment on the employee’s age discrimination claim, again relying on evidence of irregularities in the audit procedure. This evidence suggested that the employer lied about its reason for firing the employee. In addition, just two months before the employee was terminated, her direct supervisor commented that the employee did not understand changes in the business “because she was ‘an older employee.’” This statement alone would not be sufficient to create a genuine issue of material fact as to age discrimination but, coupled with the irregular audit process, it was enough to suggest age-based animus, and to defeat summary judgment on her age bias claim.

Race discrimination. Unlike the age and disability discrimination claims, the employee did not have additional circumstantial evidence to support her race discrimination claim. However, a reasonable jury could conclude that evidence of the flawed audit procedure shows that the reason for her discharge was pretext for race discrimination as well.

Retaliation. While suspicious timing alone cannot demonstrate causation, the facts surrounding the employee’s termination were “sufficiently suspicious” to support a finding of retaliation here. She was placed on administrative leave in June pending further investigation for an email sent two months earlier, which was one month after she complained to HR and her superiors about discrimination. It was unclear what investigation the employer needed to undertake—it already had possession of the single email, and one of her superiors had testified that the email wasn’t serious enough to warrant firing. As such, the justification for the delay between the sending of the email and her placement on administrative leave was questionable. There was also a second audit initiated after the employee was placed on administrative leave. This sequence of events could support the inference that the employer was looking for a justification to fire the employee, and had a retaliatory motive in doing so.

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