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Mass.: Biotech Worker Terminated for Poor Attendance, Not Race
 

By Diane Cadrain  7/10/2014

A black employee with an abysmal absenteeism record lost his claim that race played a role in his termination and his failure to win a transfer to another job, a Massachusetts federal court held. But the employer also claimed that race played a factor in its failure to promote him, and on this point, a supervisor’s alleged statement that race was a factor remained before the court.

Ron Harewood, a black man, began working for Genzyme, a biotech firm,   in 2008. Throughout the course of his employment, he applied for eleven different positions within the company, but Genzyme said that it did not fill nine of them, and that it selected other candidates for the remaining two. Harewood claimed that multiple individuals were given promotions he applied for.

Also throughout the course of employment, his attendance became an issue. By October, 2010, he had racked up 18 unscheduled absences. He was given a written warning stating that discipline and termination would result if his attendance did not improve. It did improve briefly in 2011, but then resumed its former pattern of tardiness and absence. By 2012, he’d been placed on a 30-day corrective action plan calling for him to be present at work from 8:30 am to 5:00 pm each work day, follow guidelines for lunch and break times, and empty his workflow inbox by the end of business. He understood that he would be terminated if he did not meet these goals. Nevertheless, during the 22 business days of the corrective action plan, according to Genzyme, Harewood was absent from work on five days, late on 17 of the 18 days that he reported to work and that he worked fewer than eight hours on 15 of those days. He was terminated in March 2012.

He sued the company for discrimination under state and federal law, alleging that race was a factor in Genzyme’s failure to promote and/or transfer him and its decision to terminate him. Genzyme asked the court to throw out the claims focusing on the termination and the failure to transfer...but not the failure to promote.

On the failure to promote issue, which the company had not asked the court to dismiss,

Harewood had alleged that his supervisor, Marilee Fields, told him he would never be promoted because he was black. The court said that this statement could certainly be considered direct evidence for Harewood’s claim that he was not promoted due to his race, and that portion of the claim remained alive after the disposition of the claims that were before the court. But it also said, focusing on the termination and the failure to transfer, that there was no evidence that Fields was involved in either of those decisions. For that reason, Fields’ alleged statement did not figure in the issues before the court.

On the termination claim, Genzyme argued that it had presented a legitimate, nondiscriminatory reason for the termination. The court stated that ample evidence, documentary and testimonial, supported the termination.

On the failure to transfer, the court accepted Genzyme’s argument that nine of the positions were never filled, and so therefore Harewood did not suffer adverse employment actions. As for the other two, which were outside his department, Harewood showed no evidence that he was qualified for those positions or rejected despite his qualifications while a person outside the protected category was chosen. The court decided against him on the termination and the failure to transfer, granting Genzyme’s motion to dismiss those claims.

Harewood v. Genzyme, D. Mass., Civil Action No. 12-12144-TSH (June 13, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.
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