Dissimilar Treatment of Workers Undercuts Reasons for Discharge


​Different treatment of similarly situated employees may suggest that termination of one but not the other might have been due to race discrimination, a 4th U.S. Circuit Court of Appeals decision shows. A black employee allegedly fired for job abandonment was able to advance his race-discrimination claim to trial by showing that the company did not discharge a white employee who yelled at his supervisor. The plaintiff also noted that the employer gave inconsistent reasons for his termination.

The plaintiff, a trash-truck driver, regularly started working at 2 a.m. On Oct. 7, 2015, the plaintiff reported to work at midnight, two hours early for his shift, and found that his regular truck was being repaired. He was informed by the company mechanics that another truck would be available for him in five minutes.

Rather than wait, the plaintiff stated, “I’m going home; I’m leaving.” At approximately 1:15 a.m., the plaintiff texted his supervisor to tell him that he had come down with a stomach virus and would not work that day. The supervisor did not read the text until 3:30 a.m.

As a result, the company scrambled to find a replacement driver, and a quarter of the customers on the plaintiff’s route were left without services. The supervisor met with the mechanics, who reported that the plaintiff stated, “Forget this” or “F— this,” and then left the property. The supervisor met with the district manager and human resources, who decided to terminate the plaintiff for job abandonment.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

At trial, the company asserted for the first time three prior infractions as part of the basis for terminating the plaintiff’s employment: driving away without removing a fuel pump from a truck, undershooting a driveway and using his cellphone while driving.

The plaintiff provided evidence that a white employee who was supervised by the same person had engaged in similar cellphone infractions and also yelled at the supervisor before resigning his position. The employer let the white employee return to work. The 4th Circuit found that the white employee was an appropriate comparator because both employees dealt with the same supervisor, were subject to the same standards and engaged in similar conduct. Specifically, the white employee had more infractions, was less respectful to his superiors and may have engaged in more egregious conduct, yet he received more favorable treatment than the plaintiff. This evidence prevented summary judgment.

The 4th Circuit held that the plaintiff established that the employer’s rationales may have been pretext for discrimination because the company’s reason for termination shifted from job abandonment to including prior infractions and “poor attitude.” There was further confusion over the definition of “job abandonment,” as the company’s own policies defined it as “three days, no call and no show,” but the supervisor defined it as “coming in and leaving.” The evidence of pretext also created a question for a jury to decide. 

Haynes v. Waste Connections Inc., 4th Cir., No. 17-2431 (April 23, 2019).

Professional Pointer: To identify comparator employees, companies should look to see that the workers have the same supervisor, and that the same standards and similar facts apply (two employee issues will seldom involve exactly the same facts). Companies should also be aware of termination reasons given to employees and addressed on termination paperwork because, although an employer can expand on its original reason for termination, substantial changes to termination reasons may suggest pretext.

Gregory J. Kamer and Nicole A. Martin are attorneys with Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas.


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