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Fourth Circuit - Race Discrimination decision

The Fourth Circuit today reversed the district court (South Carolina) in a Section 1981 and Title VII race discrimination case. The plaintiff was evidently represented pro bono on appeal by the Univ. of Virginia. The plaintiff was a garbage truck driver and was terminated after he complained about delays in getting his truck repaired; the employer also claimed that the plaintiff had committed several earlier infractions.

The Fourth Circuit held it was reversible error to apply a too-restrictive standard to comparator evidence, which requires only similar conduct on the part of the plaintiff and the comparator, not identical conduct. It was also reversible error to find no pretext, since the fact that the employer's explanation for the termination had substantially changed over time was itself evidence of pretext. And, circumstantial evidence of pretext means that the case must go to the jury.

http://www.ca4.uscourts.gov/opinions/172431.P.pdf

Some excerpts follow (emphasis added):

Haynes v. Waste Connections, Inc., No. 17-2431, __ F.3d __ (4th Cir. Apr. 23, 2019)

Before GREGORY, Chief Judge, THACKER, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Thacker and Judge Harris joined.

ARGUED: Alicia Penn, Marie Hanewinckel, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Kurt N. Peterson, LITTLER MENDELSON PC, Atlanta, Georgia, for Appellees. ON BRIEF: Stephen L. Braga, Thomas Howard, Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.

GREGORY, Chief Judge:

This appeal arises from Appellant Jimmy Haynes's action for employment discrimination. Haynes, who is black, claims that his former employer, Appellee Waste Connections of South Carolina, Inc., a subsidiary of Waste Connections, Inc. ("WCI"), unlawfully terminated his employment because of his race and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court granted summary judgment in favor of WCI on all of Haynes's claims after finding that Haynes had failed to establish an appropriate comparator and to produce evidence of pretext. Because both of these determinations were in error, we reverse the district court's grant of summary judgment and remand the case for further proceedings. . . .

. . . . Haynes filed pro se an action against WCI under Title VII and § 1981. Id. WCI moved for summary judgment, arguing that Haynes was unable to establish a prima facie case of race discrimination and that even if he had, WCI had offered a legitimate, nondiscriminatory reason for the termination, i.e., "poor performance and walking off the job without valid reason or notice." The district court dismissed Haynes's action on summary judgment. The district court, adopting the report and recommendation of the magistrate judge, found that Haynes had failed to establish a valid comparator and that even if he had, Haynes had failed to show pretext. Haynes's post-judgment filing, which was construed as a Rule 59(e) motion, was denied by the district court. Haynes timely appealed. . . .

. . . . Turning first to the issue of an appropriate comparator, this Court has emphasized that a comparison between similar employees "will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances." Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Rather, to establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator "dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)) (alterations in original).

Haynes has produced evidence that Joe Hicks, a white employee also supervised by Fountain, had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late. Haynes also pointed to evidence, which appears undisputed, that Hicks became angry and yelled at Fountain before quitting his job. Yet, Hicks was permitted to return to his job, and Haynes, who had fewer infractions and did not yell at his supervisor, was not permitted to return to his job and instead had his employment terminated. Considering this evidence, a reasonable fact finder could conclude that Hicks and Haynes were appropriate comparators, because they dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct. See Cook, 988 F.2d at 511. Indeed, it appears that Hicks, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct, yet received more favorable treatment. . . .

. . . . Although the district court granted summary judgment solely on the basis of its comparator and pretext findings, WCI also argues on appeal that Haynes has failed to demonstrate that he was performing his job satisfactorily at the time of his termination. We disagree. Such a showing of satisfactory performance does not require the plaintiff to show that he was a perfect or model employee. Rather, a plaintiff must show only that he was qualified for the job and that he was meeting his employer's legitimate expectations. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006). Haynes submitted evidence that Fountain told him in September 2015 (mere weeks before his termination) that "everything looks good" and there was "nothing to worry about" regarding his upcoming performance review. J.A. 369. Haynes also received bonuses for the period in question. Such evidence raises the reasonable inference-which must be drawn in Haynes's favor at this stage-that he was performing at a satisfactory level. Although WCI contends that Haynes could have been given a larger bonus if he had performed better, Haynes does not have to prove that he was a perfect employee, only that he was performing satisfactorily. Additionally, although WCI argues that Haynes failed to perform satisfactorily by sending a text to Fountain in violation of company policy, a dispute of fact would still exist as to whether Haynes met his employer's legitimate expectations at that time, because evidence in the record suggests that Haynes routinely communicated with Fountain via text. Thus, Haynes successfully presented a prima facie case of discrimination, and the district court erred in holding otherwise.

The district court likewise erred in determining that Haynes had not shown any evidence of pretext. In order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact. E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001). Once the plaintiff offers such circumstantial evidence, the case must be decided by a trier of fact and cannot be resolved on summary judgment. Id. This Court has allowed an inference of pretext in cases where an employer has made substantial changes to its proffered reason for discharge over time. Id.; Wesley v. Arlington Cnty., 354 F. App'x 775, 782 (4th Cir. 2009).

Here, because Haynes has produced evidence that WCI's reason for his termination has changed substantially over time, he has presented sufficient evidence of pretext. Perhaps most importantly, WCI now asserts for the first time during this litigation an entirely different reason for the termination than was offered initially: Haynes's poor attitude. Additionally, when Haynes's employment was terminated, Fountain told him that he had met with the human resources department and that the reason for the termination was "job abandonment." J.A. 201. As Haynes points out, WCI's own policy defines job abandonment as "three days, no call and no show," which is inconsistent with Haynes's behavior on October 7. Haynes had in fact texted and called before returning to work after only one day. . . .

While an employer is certainly permitted to expand on its original reason for a termination, such evidence of substantial changes to WCI's proffered reason for the termination permits an inference of pretext. See Sears Roebuck & Co., 243 F.3d at 852-53. Thus, because Haynes has pointed to sufficient evidence to create a genuine issue of material fact as to whether WCI's proffered reason for the termination is pretext, summary judgment on this basis would be in error. . . .

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