Absenteeism Costly to Employee

Usually absenteeism is a cost measured by employers. In this case, it wound up working the other way!

From the: NEW MEXICO EMPLOYMENT LAW LETTER, MARCH, 2008, Volume 14, Issue 3, 832 words, Tinnin Law Firm, A Professional Corporation

Absenteeism dooms $ 300,000 jury verdict for fired worker


In a recent opinion, the U.S. Court of Appeals for the Tenth Circuit, which hears appeals from federal trial courts in six states,including New Mexico, ruled that a trial judge was correct in setting aside a jury's $ 300,000 verdict.

The verdict had been awarded to a fired worker who claimed his termination was in retaliation for his complaints of discrimination. His employer contended that his record of attendance problems was the real reason for the termination.

Roadway shows no-show the road.

The employee had loaded and unloaded trucks at Roadway Express' Denver distribution center for seven years. On August 21, 2001, he failed to report for work. The assistant terminal manager, after reviewing Weaks' record of attendance issues over the previous nine months, decided to terminate his employment for excessive absenteeism. He filed a grievance under the contract between Roadway and his union, Teamsters Local #17. A grievance panel upheld the termination,and Weaks filed suit in federal court under 42 U.S.C. § 1981,Title VII of the Civil Rights Act of 1964, and state law.

He alleged his termination was due to discrimination and retaliation for his complaints to the company about alleged racial harassment. The trial court dismissed all of his claims except for the § 1981 retaliation claim, narrowing the issue to a dispute over the reasons for his termination. The case was tried before a jury, which awarded Weaks $ 100,000 in compensatory damages and $ 200,000 in punitive damages. After trial,Roadway requested and the court granted judgment in the company's favor.

The court concluded that Weaks hadn't proved his discharge was motivated by retaliation or that Roadway's explanation (absenteeism) was a pretext for retaliation. Weaks appealed to the Tenth Circuit. He claimed he protested racist conduct

On the one hand, Weaks claimed that he was "at war" with Roadway almost from the moment he began working there and that he protested numerous incidents of alleged racist conduct. According to Weaks, as a result of his protests, his performance was hyperscrutinized and he was retaliated against in various ways. The alleged retaliation included:

(*) being required to take his breaks separately from other workers;
(*) not being allowed to engage in conduct that other employees engaged in freely; and
(*) being issued numerous unwarranted notices of intent to discipline.

But he didn't come to work.

On the other hand, Roadway proved at trial that in the nine-month period preceding the final absence that led to his termination, Weaks missed work at least six times, arrived late at least three times, and left early at least twice. The union contract allowed Roadway to make disciplinary decisions based on incidents up to nine months in the past. Tenth Circuit's decision The Tenth Circuit first noted that to establish a prima facie(minimally sufficient) § 1981 claim, an employee must demonstrate that:

(*) he engaged in protected opposition to discrimination;
(*) a reasonable employee would have found the challenged action materially(significantly) adverse; and
(*) a causal connection existed between the protected activity and the adverse action.

Only the third element, causation, was at issue in Weaks' appeal. The court found it unnecessary to determine whether he had established a prima facie case, however, because even assuming that he had done so, his evidence wasn't sufficient to carry his ultimate burden of proving that the termination was retaliatory or pretextual. The court concluded that while Weaks had made disturbing allegations suggesting that Roadway's docks were "enveloped in a toxic miasma of racial bias," his supporting evidence was weak at best and his excessive absenteeism was an independent and verifiable reason for termination.

While Weaks contended that Roadway had issued him unwarranted disciplinary notices for attendance issues, he didn't refute the majority of the attendance incidents. Thus, he failed to provide any basis for retaliation. Under the terms of the collective bargaining contract between Roadway and the union, Weaks, not the union, was responsible for filing a grievance over Roadway's notice of intent to discharge him. He failed to file a grievance before his termination, and the Tenth Circuit held that that fact, combined with the abundant and uncontroverted evidence regarding his attendance issues, justified the set-aside jury verdict. Weaks v. Roadway Express, Inc., 2007 U.S. App. LEXIS 28666 (Dec. 11,2007).

Bottom line:

Despite disturbing allegations of racial harassment and a timeline suggesting retaliation, Roadway's adherence to its policies and its maintenance of records establishing Weaks' attendance problems allowed it to escape a large jury verdict. Once again, an employer's good policies and careful documentation carried the day.