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10th Circuit: Termination for Failure To Report to Work Upheld

By Maria Greco Danaher   12/21/2007

A fired worker failed to persuade the 10th U.S. Circuit Court of Appeals that the employer’s reason for termination—failure to report to work—was pretext for discrimination. This failure proved fatal to his retaliation claim.

Clifford Weaks’ job involved loading and unloading trucks at a distribution center for Roadway Express Inc., until his employment was terminated by Roadway in 2001. Weaks was a member of the Teamsters Local Union No. 17. Under the applicable collective bargaining agreement, an employee could avoid discipline by filing a grievance or by having a grievance filed on his behalf by the union. If a grievance was filed, Roadway and the union would attempt to resolve the issue before referring the matter to a regional grievance panel.

On Aug. 21, 2001, Weaks failed to report to work. Based on Weaks’ poor attendance history, Roadway issued a notice of intent to discharge Weaks. Neither Weaks nor the union filed a grievance opposing the notice, and Weaks’ employment was terminated on Sept. 19, 2001. The termination was upheld by a regional grievance panel.

Weaks sued Roadway in federal court and his claim of retaliation went to a jury. Although the jury initially found in favor of Weaks, Roadway’s post-trial motion for judgment as a matter of law was granted and the claim was dismissed. That dismissal was upheld on appeal.

To prevail on a retaliation claim, an employee must set forth evidence that the company’s proffered reason for the adverse employment action against the plaintiff was a pretext, and that the true reason was discrimination.

In this case, Weaks was unable to refute the evidence related to the attendance issues that formed the basis of his termination. He showed no proof of retaliatory motive, nor was he able to show that Roadway’s reason for firing him was “unworthy of credence.” According to the court, despite allegations that suggested that Roadway’s docks were “enveloped in a toxic miasma of racial bias,” the record established that Weaks’ excessive absenteeism created an independent and verifiable reason for the termination.

Weaks v. Roadway Express Inc ., 10th Cir., No. 05-1426 (Dec. 11, 2007). 

Professional Pointer: This case underscores the importance of taking disciplinary actions only for employment-related reasons, and for documenting such reasons clearly, objectively and consistently.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Editor’s Note: This article should not be construed as legal advice. 

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