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John M. Husband, Thomas E.J. Hazard, and Emily Hobbs-Wright, Editors
Holland & Hart LLP
Vol. 17, No. 1
January 2008
RETALIATORY DISCHARGE
Evidence of fired worker's absenteeism enough to overturn $300,000 verdict
Christina Gomez
A seven-year employee ― who had previously complained about alleged racial harassment ― was terminated for absenteeism. He sued his former employer on several grounds. At trial, a jury awarded him $300,000 on his claim that his firing was
an act of retaliation for his earlier complaints. That verdict was overturned, however, when the court found that he hadn't offered enough evidence to dispute that the real reason for his termination was his absenteeism.
Dispute over reasons for termination
Clifford M. Weaks, an African American, loaded and unloaded trucks at Roadway Express' Denver distribution center for seven years. After he failed to report to work one day and his attendance record was reviewed, the company decided to fire him for
excessive absenteeism. Under the collective bargaining agreement with the union at the facility, the company could consider only the absences that had occurred in the past nine months. In that period, he had missed work six times, arrived late three
times, and left early twice.
Under the union contract, Roadway Express issued Weaks a notice of its intent to discharge him for excessive absenteeism. He had 10 days to file a grievance opposing the notice but failed to do so. Accordingly, he was terminated in September 2001.
Weaks, however, disputed the true reasons for his termination. He argued that:
- during his employment, he had protested several incidents of alleged racist conduct (even the appellate court noted "disturbing allegations that suggest Roadway's docks were enveloped in a toxic miasma of racial bias"); and
- as a
result of his protests, his performance was "hyper-scrutinized," he was required to take breaks separately from other workers, he wasn't allowed to engage in conduct that other employees engaged in freely, and he was issued unwarranted notices of
intent to discipline him.
Trial court's decision
Weaks filed suit under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and state law, alleging employment discrimination and retaliation. The court dismissed most of his claims without a trial. But his § 1981 retaliation claim,
which was based solely on the dispute over the reasons for his termination, was tried before a jury.
The jury ruled in Weaks' favor, awarding $100,000 in compensatory damages and $200,000 in punitive damages. The trial court, however, granted Roadway Express' posttrial request for judgment in its favor, concluding that Weaks hadn't proven causation
or pretext. In other words, the court found that he failed to provide enough evidence to show that his termination was an act of retaliation and not a reaction to his absenteeism. He appealed that decision but didn't appeal the dismissal of his
other claims.
Tenth Circuit's decision
On appeal, the Tenth U.S. Circuit Court of Appeals (which makes law for Colorado) reviewed the evidence presented by both sides and affirmed the dismissal of Weaks' claim. The court noted that to prove retaliation under § 1981, he had to show
that he engaged in protected opposition to discrimination, a reasonable employee would have found the challenged action to be significantly adverse, and there was a causal connection between the protected activity and the adverse action. Only the
third element was in dispute.
The court, however, didn't decide that issue because it found that even if Weaks could establish such a connection, he still hadn't provided enough evidence to show pretext, i.e., that Roadway Express' stated reason for the firing was false. Pretext
can be shown by providing direct proof of discriminatory motive or indirect proof that the offered explanation isn't worthy of belief. Weaks, the court found, had done neither.
As for direct evidence of pretext, the court discounted Weaks' allegations that he had been issued unwarranted disciplinary notices for attendance issues and that the company's harassment had caused him to experience mental and emotional difficulty
in coming to work. The court apparently found those allegations to be immaterial because he didn't dispute the majority of his absences.
On the issue of absenteeism as the stated reason for Weaks' termination, Roadway Express showed 11 occasions in the previous nine-month period when he had arrived late, left early, or missed work entirely. Weaks even admitted that he had
"approximately ten" unexcused absences in that period. In addition, he failed to file a grievance challenging his termination. For those reasons, the court found that he hadn't sufficiently put into question the company's "independent and verifiable
reason for terminating [him]." Therefore, his retaliation claim was properly dismissed.
Bottom line
Despite serious allegations of racial harassment and possible retaliation, the employer was able to dodge a large jury verdict because it had carefully recorded the employee's attendance problems ― and he even admitted to having those problems.
It just goes to show that good policies, good recordkeeping, and good lawyers are invaluable resources in running any business.
Find out more about effective responses to attendance problems in HR Quick List, 3rd Edition. This handbook guides you to a fast, confident, legally compliant decision whenever you tackle any of 61 common HR dilemmas. For more information, call
customer service at (800) 274-6774 or visit www.HRhero.com/hrquicklist.shtml.
Copyright 2008 M. Lee Smith Publishers LLC
COLORADO EMPLOYMENT LAW LETTER is intended only to inform, but not to provide legal advice, and recipients should seek professional advice with regard to specific applications of the information.
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