Employment Law Daily Same-day firing of employee for safety violation may have been pretext for age, disability bias
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Thursday, April 19, 2018

Same-day firing of employee for safety violation may have been pretext for age, disability bias

By Sean Myers

An employee’s discrimination lawsuit under the ADA, ADEA, and the state’s human rights act survived a summary judgment motion after a federal district court in Tennessee determined that the employer’s termination decision could have been pretextual. Further, the court found there was evidence the termination decision had the kind of discriminatory intent that could overcome the Sixth Circuit’s “honest-belief rule” (Bland v. Carlstar Group, LLC, April 13, 2018, Anderson, S.).

Employee quickly fired for possible workplace violation. The employee was a 55-year-old maintenance technician with a peripheral artery disease that made it difficult for him to walk well. This medical condition led to him taking FMLA leave for surgery. When he returned, his supervisors seemed surprised and expressed concern that he would not be able to perform his job. One day while at work, the employee and one of his supervisors adjusted a machine without “locking it out” of its power supply. The plant’s safety policies required these machines to be “locked out” before being fixed, but the adjustment the employee was conducting likely fell into an exception to this rule. Nevertheless, the employee was terminated that same day. His supervisor, who had helped him perform the adjustment, was not even reprimanded.

Case skips straight to issue of pretext. The employer admitted that the employee had set out allegations of a prima facie case, and the employee admitted that the employer was claiming a nondiscriminatory reason for his termination. Therefore, the court jumped straight to the issue of pretext.

Employee might not have violated safety rule. The employee had been fired for not “locking out” or “tagging out” a machine from its energy source before working on it. The employer’s safety policy required workers to “lock out” a machine before working on it to prevent the machine from an unexpected start up while maintenance was being performed. However, there were exceptions to this policy. One of those exceptions was for minor “adjustments.” In the particular instance that led to the employee’s discharge, the work order had told the employee to “adjust” the machine, he had brought his adjustment tools, and he adjusted the machine according to training protocol that did not require the machine to be “locked out.” In the eyes of the court, this suggested that the safety rule violation was merely being used as a pretext to oust the employee.

Termination decision happened less than two hours after alleged violation. More evidence of pretext came from the fact that the alleged safety violation occurred around 4 p.m. and the decision to fire the employee was made before 5:30 p.m. on the same day. Interviews by the personnel responsible for the firing were conducted quickly, and the discharge papers were signed even before the employee could tell his version of the events.

Employer’s very tolerant “zero tolerance” rule. Further, the employee’s supervisors claimed that the safety policy he was charged with violating had a “zero tolerance” rule. There was, however, no such rule in the written safety policy, and numerous employees had been reprimanded, but not fired, for violating it in the past. Additionally, the employee’s supervisor, who had helped him adjust the machine, had not even been investigated for violating the safety policy.

Prior statements and later developments indicate discrimination. The court also noted that various supervisors had made statements to the employee before the safety violation incident that indicated an interest in getting him to leave. When the employee’s FMLA leave ended and he contacted the Human Resources department to return to work, he was told, “we’ll call you and let you know when to come back,” but he was not contacted. On the day he would have been terminated if he had not returned to work after his leave, he went to work but found that his time card would not punch in. He was then reprimanded for coming to work before he was called. One of his supervisors told him, “I figured you’d probably think about disability or something. I didn’t think you’d probably show back up out here,” and another supervisor offered to move the employee to a different position that required less walking. The employee declined the offer because of the pay cut. Additionally, after the employee was fired, he was replaced by someone in his mid-twenties who was not known to be disabled, and who, unlike the employee, had numerous write-ups in his personnel file.

Court refuses summary judgment on basis of “honest-belief” rule. The employer claimed that, even if its decision to fire the employee was mistaken, it had been done in the honest belief that the employee had violated its safety policies and not out of an intent to discriminate. The court held that the employee successfully rebutted this defense by showing how quickly the decision to fire him had been made, which threw doubt on the legitimacy of the decision itself.

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