Allegedly Tardy Worker Advances Discrimination Claim

​A former employee's race discrimination claim advanced to trial, despite his allegedly being late or absent more than 50 times in one year. According to the plaintiff, the attendance defense was a pretext for discrimination. The plaintiff had evidence of the inconsistent application of discipline for attendance infractions and maintained that reporting to work within a 6:00 a.m. - 9:00 a.m. window complied with the employer's flextime policy.

The plaintiff, a black man, was one of four quality assurance associates (QAs) reporting to the same supervisor at the Greater Cleveland Regional Transit Authority. The other three QAs were white. The plaintiff alleged that his supervisor required him to submit weekly QA visit forms without requiring the same forms from the other QAs and enforced a strict start-time policy with him, even though he was a salaried employee exempt under the authority's flextime policy.

The supervisor reprimanded the plaintiff for QA visit-form violations and attendance issues. In May 2015, the authority and the supervisor were notified that the plaintiff filed a complaint with the Equal Employment Opportunity Commission alleging harassment and discrimination against him based on his race. Subsequently, the authority placed the plaintiff on decision-making leave, which was the equivalent to a final written warning. In September 2015, the plaintiff's employment with the authority was terminated for purportedly approving a shipment of defective brakes without inspecting them.

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According to the authority, attendance and performance issues provided sufficient nondiscriminatory reasons for the plaintiff's termination. The authority explained that its flextime policy did not allow employees to come in whenever they chose between the flextime hours. The authority maintained that the plaintiff had several discussions with his supervisor for his routine tardiness and failure to provide weekly visit reports in a timely manner. Additionally, the plaintiff had failed to complete a project and was issued a written reprimand for missing deadlines. The final straw occurred when the plaintiff approved brake kits that video evidence showed he failed to open and inspect.

The authority conceded that the plaintiff could meet his initial burden, acknowledging he was a member of a protected class; suffered the adverse employment action of termination; was objectively qualified for the job and was replaced by a white man.

The court noted that the authority presented legitimate, nondiscriminatory bases for the plaintiff's termination by showing he was tardy or absent more than 50 times, and the other QAs had nowhere near that number of infractions; his failure to timely submit his weekly visit sheets; his failure to timely complete assignments; and ultimately, his failure to inspect the brakes he approved.

Upon the authority having met its burden, it fell to the plaintiff to establish pretext by one of the three accepted methods: that the authority's articulated explanation "has no basis in fact, did not actually motivate the defendant's challenged conduct or was insufficient to warrant the challenged conduct."

The plaintiff provided time records for the three white QAs purportedly showing infractions that resulted in no discipline, and other time records that showed the plaintiff arrived at work at varying times but within the three-hour flextime window. The court found employee testimony and the flextime policy competent evidence of the policy as understood by its employees, raising an issue of fact as to whether the plaintiff's reporting to work at varying times within the 6:00 a.m. - 9:00 a.m. window was in violation of the policy.

Furthermore, the court noted that the policy clearly stated exempt employees "will not be held to the tardy, leave early and occurrence provisions of the attendance policy should they need to adjust their daily schedule to attend non-RTA [regional transit authority] business related concerns."

A plain reading of the language indicated to the court that the plaintiff's understanding of the policy was plausible from the "ambiguous terminology concerning 'non-RTA business related concerns.' " Notably, the plaintiff's interpretation was supported by the deposition testimony of a human resources manager at the authority.

As the plaintiff's reprimands stemmed largely from attendance issues, the court concluded that a jury must determine whether under the authority's policy he was subject to discipline and, if not, by inference whether this was pretext for unlawful discrimination.

McIntosh v. Greater Cleveland Regional Transit Authority, N.D. Ohio, Case No. 1:16-CV-1680 (March 22, 2018).

Professional Pointer: Components for the successful implementation of any policy include reducing the policy to writing, giving adequate employee notice, and providing the necessary manager and employee training for uniform interpretation and administration.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.

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