May 07, 2021

Look at Past Practice Over Policy

Your conduct policy reads that an employee found sleeping on duty may be subject to corrective action, up to and including discharge. An employee is found sleeping on duty. You fire her. So, what’s the problem? Likely none if your past practice matches your policy. But the 5th U.S. Circuit Court of Appeals recently found such was not the case for one employer.

In a period of about 60 days, a Dispatch Supervisor (black female) goes from being commended for “superb work” to being fired for sleeping on duty. In the interim period, the employee had produced a doctor’s note recommending she be provided at least three, 24-hour shifts off from work each week due to anxiety.  She also stated that her sleeping on duty was because she had developed “some medical issues” that were interfering with her sleep patterns.

After being fired, she sued for race discrimination under Title VII and FMLA retaliation. She claimed and the record supported that a white, male Dispatch Supervisor had also been found sleeping on duty and he had only been counseled. As a result, the Court found in her favor and remanded the case to the District Court that had initially found in the employer’s favor.

Lessons Learned?

  1. Timing might not be everything but it can be decisive. The court noted, “the timing of her discharge is also incriminating evidence of pretext.” Before you take adverse action against an employee, consider if there have been any recent events that might give the appearance of a retaliatory motive. It does not mean you should not or cannot proceed with your plan of action. But be prepared to explain your business reasons why your action has nothing to do with any protected status (age, race, religion, sex, etc.) or any recent, protected activity like requesting time off for medical reasons.
  2. Past practice. The employer’s defense was, in part, that she was fired not just for sleeping on duty but for several other performance issues.  That might have been a successful defense. The problem was the Review Board considered only sleeping. Thus, the court looked at two employees who were similarly situated – both found sleeping on duty and both held the same job. The white male is counseled, the black female who recently requested time off for medical reasons was fired. That evidence, said the court, “raises a genuine dispute as to whether sleeping on the job was the real reason [the employee was] fired…a reasonable jury could infer a retaliatory motive from the falsity of [the] explanation.”
  3. Don’t count on luck.  I am rather intrigued that the suit involved only two claims. I can see where this could have been a kitchen sink case adding four or five other claims: ADA discrimination based on actual or perceived disability; ADA  failure to provide reasonable accommodation; FMLA interference – firing her in lieu of granting FMLA job-protected leave; and Title VII sex discrimination.