Decision By Committee Does Not Insulate Employer From Potential Liability For FMLA, ADA Claims

Reviving a discharged mechanic’s FMLA and ADA claims, the Tenth Circuit U.S. Court of Appeals concluded the employee established a genuine issue of material fact as to whether his employer’s stated reasons for firing him—a safety violation and a (related) quarrel with a coworker over the incident — were pretextual, particularly in light of management’s oft-stated annoyance with the employee’s need for intermittent leave. The employer claimed that the discharge decision was made by a committee of managers, different decision-makers than the individuals responsible for determining the fate of other employees with similar infractions who were treated more leniently. “Although there is no clear legal rule as to how much overlap is needed among decision maker groups for employees to be similarly situated, requiring absolute congruence would too easily enable employers to evade liability for violation of federal employment laws,” the Tenth Circuit said. The case is Smothers v. Solvay Chemicals, Inc. (No. 12-8013).

Injury, intermittent leave. The employee had worked for the company for 18 years when he was fired, ostensibly for a first-time safety violation and a related dispute with a coworker. He filed suit under the FMLA, ADA, and state law, contending the real reason for his termination was the employer’s displeasure with his need for medical leave and his disability. He had injured his neck years earlier and developed a degenerative disc disease in his spine. His condition required three surgeries to his neck within five years, as well as numerous other medical procedures. He also suffered severe ongoing pain—chronic neck pain, severe migraine headaches, and lower back problems.

The employee had to travel for appointments with a medical specialist, who noted that his pain and injury required him to be “quite miserable” and miss “a lot of work.” At times the pain was so severe, his medical provider stated, that the employee “would basically be unable to work” without pain treatments. His disability also impacted his sleep; surgeries and other treatments, including pain medicine, offered no respite. His doctor also prescribed various sleeping aids, which did not resolve the problem. He sought and was granted intermittent FMLA leave for his condition.

Annoyed by absences. Managers and coworkers complained about his FMLA-protected absences. The production superintendent pressured him to change from the graveyard shift to a day shift, where the larger staff could more readily absorb his absences. But this shift change would have reduced the employee’s income by $7,000 a year and he did not want to do it. And, as an HR rep advised the superintendent, forcing him to transfer shifts would violate the FMLA. The superintendent relented, but he continued to complain about the absences. Moreover, while deemed an “excellent” employee, he was given a negative review because of his absenteeism. He also was rejected for a promotion, expressly due to his absences.

Safety incident. Finally, the employee was suspended pending an investigation into a safety-related incident in which he failed to wait for a “line break” permit and lockout before repairing a pump. During the incident, he got into a verbal spat with a coworker as to whether the “line break” permit was required before the repair could be made. Presciently, while out on suspension, he emailed to managers noting that he was “very worried” that the company was “going to use this incident as a reason to terminate my employment due to the amount of time I have missed due to my disability.”

While being interviewed in the course of the investigation, the employee was denied the opportunity to talk about the quarrel; the investigator wanted to hear only about the safety violation. Yet the company wanted to hear the coworker’s version of events, even going to his home to obtain a more detailed account of the incident. However, no effort was made to get the employee’s side of the story. Following the investigation, the employee was discharged, the result of a group decision by six managers. Among the group members: the site manager, HR manager, safety manager, and the production superintendent who had lobbied for his shift change. Prior to the final decision, three of the six had personally conferred with the employee’s coworker about the dispute with the employee; five of the six acknowledged in testimony that the dispute had weighed heavily in the group’s decision to fire the employee. Two said the coworker’s characterization of the employee’s behavior was heavily credited in the termination decision.

The Tenth Circuit, reversing the district court’s grant of summary judgment on the federal claims that followed, noted evidence that other employees were treated more favorably after committing serious safety violations. The employer treated the employee differently from similarly situated employees who committed comparable safety violations; its investigation into his quarrel with his coworker was one-sided and inadequate; and management previously took negative action against him because of his FMLA-protected absences. Together, these created a triable issue of fact as to whether his FMLA leave was a substantial motivation in the decision to fire him, the appeals court found.

Same-ish decisionmaker. The court rejected the employer’s contention that the comparators cited by the employee as having been treated more favorably were not similarly situated because different decision-makers were involved. According to the employer, it uses group decisionmaking to discipline for safety violations, and the composition of the group that fired the employee differed from the composition of the groups that disciplined the comparators identified by the employee. But the facts did not bear this out. Five of the six decision-makers who fired the employee also participated in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules. For example, a committee comprised of several of the same group members opted not to fire two foremen and one hourly worker, all of whom violated the lockout policy. Another group member was involved in a decision not to discipline an employee who committed the “presumably serious safety violation” of being intoxicated at work.

The district court erred by “insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision,” the Tenth Circuit found. “We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated.”

Violation no worse. Also without merit was the employer’s claim that the employee’s safety violation was worse than the other employees’ offenses because he acted deliberately and violated a clear policy. Yet the record indicated that other employees also deliberately violated clear policies. Similarly, while the employer argued that two violators were different because they had at least taken some safety precautions, had apologized, and promised not to repeat the mistake, the record showed the employee here also apologized and promised not to repeat the error. Moreover, he, too, took precautions. Next, the employer emphasized that the employee had been trained on the company’s safety rules, but every employee was required to complete the same safety training. As such, the employee established a material fact issue as to whether he was punished more harshly than similarly situated employees after comparable safety violations.

Unfair investigation. The employer then sought to distinguish the employee from his comparators by citing the subsequent quarrel with the coworker. However, a jury could still reasonably infer pretext given the company’s inadequate investigation into this dispute that purportedly drove the discharge decision. A failure to conduct a fair investigation of a violation that purportedly prompts an adverse action may support an inference of pretext, the Tenth Circuit observed. Here, the decision-maker concluded the employee had been “hostile” and “defiant,” which the employee adamantly denied. And the managers admitted that their characterization of his behavior was based entirely on the coworker’s description of the incident. Three decision makers personally spoke with the coworker to hear his allegations; none heard the employee’s take on the matter. In fact, during his only meeting with any of the decision-makers, the manager refused to let him talk about the quarrel at all. Moreover, he was not told about the coworker’s allegations or given a chance to explain or deny them. Yet one of the decision-makers even traveled to the coworker’s home to hear his story.

The record suggests that the decision-makers deliberately prevented the employee from defending his actions, then reached their conclusions about what transpired based on one-sided information. And the district court improperly resolved disputed facts and inferences in the company’s favor, ignoring “fatal problems” with the employer’s investigation, the Tenth Circuit held.

Past evidence of animus. Lending further support to the employee’s FMLA claim were the negative comments and actions concerning his FMLA-protected absences, which demonstrated bias and supported the inference that the safety violation was pretext. The district court had ruled that these past events could not support independent FMLA claims because they were not serious enough to be materially adverse employment actions. But that didn’t render these facts irrelevant. “Even when an incident of alleged employer discrimination or retaliation does not support an independent retaliation claim, it may be relevant as background evidence in a pretext inquiry.”

The employer conceded that managers and coworkers had long complained about the employee’s FMLA-protected absences and tried to force him to change shifts. The manager involved in this effort testified that he and others remained openly frustrated with the employee’s absences and repeatedly asked senior managers and HR if there was “something else [they could] do.” On these additional background facts, a jury could surely find that the employer was frustrated with the employee’s use of FMLA leave and “seized upon his safety violation and quarrel … as a pretext to fire him and avoid the inconvenience caused by his FMLA-protected absences.”

Disability bias claim revived. Quickly resolving the only issue in dispute as to the employee’s prima facie disability discrimination claim, the Tenth Circuit found the employee was disabled within the meaning of the statute because a reasonable jury could find that his medical condition substantially limited his ability to sleep. He consistently complained of an inability to sleep as a result of his medical condition: he reported waking between four and six times each night because of his pain and being able to sleep only four or six hours a night in spite of multiple prescription pain medications and various prescription sleep aids. And, because the showing of pretext for purposes of the FMLA claim extended to his ADA claim, summary judgment was reversed as to this cause of action as well.

Breach of contract claim. The Tenth Circuit would not, however, disturb the lower court’s holding on the employee’s state law claim for breach of an implied employment contract. He failed to show a genuine dispute of fact as to whether the company violated the terms of its employee handbook when it terminated him, as required to state a claim under Wyoming law. The handbook at issue contained an “unambiguous” provision allowing the company to terminate an employee immediately for a serious offense, including a safety violation. And the employee conceded he violated a safety rule. Thus, the grant of summary judgment in the employer’s favor on this claim was affirmed.

Visit our News Library to read more news stories.