Employment Law Daily Race bias claims revived for driver fired for job abandonment after texting supervisor about illness
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Thursday, April 25, 2019

Race bias claims revived for driver fired for job abandonment after texting supervisor about illness

By Kathleen Kapusta, J.D.

The employee had presented sufficient evidence to establish a prima facie case of racial discrimination,including comparator evidence and pretext based on shifting reasons for his discharge.

Not only did the court below err in finding that a discharged African-American employee failed to establish an appropriate comparator—he produced evidence that a white coworker dealt with the same supervisor, was subject to the same standards, and engaged in similar conduct yet received more favorable treatment—it also erred in finding that he failed to produce evidence of pretext, said the Fourth Circuit, noting that the employer’s reason for terminating him changed substantially over time. Accordingly, the appeals court reversed the grant of summary judgment against the employee’s Title VII and Section 1981 race discrimination claims and remanded for further proceedings (Haynes v. Waste Connections, Inc., April 23, 2019, Gregory, R.).

I’m leaving. Hired in 2006, the employee drove a multi-ton truck to pick up trash from his employer’s customers. One day in October 2015, he arrived at work two hours early because he wanted to finish early to have lunch with his wife and play basketball. When company mechanics told him that his truck was down for repairs, but that they could have a replacement ready in five minutes, he purportedly responded “I’m going home, I’m leaving.”

Text. As he left work around 45 minutes before the normal start of his shift, he texted his supervisor that he had come down with a stomach virus and would not be working that day. His supervisor did not see the text, however, until more than three hours later and had to scramble to find someone to cover the employee’s route. A number of customers along the route did not get their needs serviced as a result.

Fired. The employee called his supervisor later to say he felt better and would be at work the next day. Before the call, the supervisor had talked to the mechanics who claimed the employee was frustrated with the repairs to his truck and said “Forget this” or “F*** this.” After consulting with the district and HR managers, the supervisor decided to fire the employee for job abandonment.

The employer subsequently claimed he was fired for committing three previous infractions: driving away without removing a fuel pump from a truck; undershooting a driveway causing his truck to become stuck; and touching his cell phone while driving.

Prior proceedings. The employee filed a pro se action under Title VII and Section 1981 and the district court, adopting a magistrate’s report and recommendation, found he failed to establish a valid comparator or show pretext. Accordingly, it dismissed his action on summary judgment.

Comparator evidence. Emphasizing that a comparison between similar employees “will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances,” the appeals court found the employee produced evidence that a white coworker who was supervised by the same supervisor had several workplace infractions, including twice using a cell phone while driving, driving while distracted, and responding to a traffic situation late. There was also evidence the coworker became angry and yelled at the supervisor before quitting his job yet was permitted to return, while the employee, who had fewer infractions and did not yell at his supervisor, was not permitted to return and instead was fired.

Damage? While the employer argued that the two were not proper comparators because the employee’s infractions caused damage and the coworker’s did not, the employee pointed to evidence that a police officer did not issue any citation as a result of his undershooting the driveway because there was no damage and that the supervisor said the incident was not that bad. He also disputed that he was involved in an incident where he drove away without removing a fuel pump. Even assuming his infractions did cause damage, this would not necessarily end the comparator analysis, said the court, noting the dangerous nature of the coworker’s offenses.

Nor was it appropriate for the court below to conclude that the two were improper comparators because the coworker “notified his employer that he was resigning from his job prior to leaving the premises,” while the employee “left the premises and abandoned his job without speaking with management.” Not only was there evidence the employee texted his supervisor before leaving, the coworker did not just notify the supervisor he was leaving, he yelled at him before quitting, which a jury could find more egregious than the employee’s text.

And while the employer argued that its own investigation suggested the employee left work because he was frustrated that his truck was not ready while the coworker quit for a “seemingly honest” reason, “this contention,” said the court, “simply results in another dispute of fact, which must be read in the light most favorable to the non-moving party at this stage.” Taken as a whole, the evidence could permit a reasonable factfinder to conclude that the two employees were proper comparators.

Performance. The employer also argued on appeal that the employee failed to show he was performing his job satisfactorily at the time he was fired. The court, however, noted evidence that just weeks before his termination, the supervisor told him “everything looks good” and there was “nothing to worry about” regarding his upcoming performance review. Further, he received bonuses for the period in question and although his employer claimed the bonus could have been larger if he had performed better, he did not have to prove he was a perfect employee, only that he was performing satisfactorily. The employer also asserted that he failed to perform satisfactorily by texting his manager in violation of company policy; however, the employee claimed he routinely communicated with him in that manner. Thus, said the court, he presented a prima facie case of discrimination and the district court erred in holding otherwise.

Pretext evidence. Likewise, the lower court erred in finding he failed to show pretext as he produced evidence that the stated reason for his termination changed substantially over time. Perhaps most importantly, said the court, the employer asserted for the first time during this litigation an entirely different reason for the termination than was offered initially: the employee’s poor attitude. Further, he was initially told that he was fired for job abandonment but the company’s own policy defines job abandonment as “three days, no call and no show.” And here, the employee texted and called before returning to work after only one day.

Moreover, his final termination paperwork did not include job abandonment as a reason but instead stated “violation of rules” and it was unclear, said the court, which rules the paperwork was referring to—rules created by the supervisor or by the employer.

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