A recent decision from the Fourth Circuit Court of Appeals, Dawson v. Washington Gas Light Company, provides a reminder of what is (or should be) an obvious point: when disciplining or terminating employees, employers should not change or shift their explanations over time. Dawson v. Washington Gas Light Company, No. 19-2127 (4th Cir. July 13, 2021). Dawson — a case involving alleged retaliation, race, and color discrimination and harassment — reinforces the importance of having and sticking with a legitimate business reason for making employment decisions. Even better, have timely documentation to support the decision.
The appellant-employee worked for Washington Gas Light Company (Washington Gas) from 2007 until 2018. His employment was governed by a collective bargaining agreement (CBA) between Washington Gas and International Brotherhood of Teamsters, Local 96.
The CBA contained a five-step progressive discipline process under which the discipline imposed was based on the circumstances of the underlying conduct and the employee’s disciplinary record. The process generally moved from written reprimand to a combination of written reprimand and suspension (with increasing length), and then termination. An employee without discipline for 12 months would drop to the next lowest level of discipline.
The employee here received his first disciplinary action in late June 2013 for excessive tardiness. He was again disciplined (written warning and 2-day suspension) in mid-August 2013 after an “avoidable accident” in July. Then, in September 2013, the employee received a 5-day suspension and written reprimand after he caused a water leak. This discipline was later removed and the employee was paid for the suspension. After this discipline, however, Washington Gas removed the employee from its Crew Leader Development Program.
The employee then worked as a crew mechanic under a different supervisor. In November 2013, the employee was disciplined for not timely reporting an incident involving a company vehicle.
He reported concerns of discrimination and harassment to the Washington Gas human resources department and filed a charge with the EEOC in March 2014.
The employee was not disciplined again until August 2017 when his supervisor issued a reprimand and 2-day suspension for “poor job performance and failure to follow policies and procedures.” The employee filed a second EEOC charge in June 2018. On July 3, the employee received a 5-day suspension for “falsifying company documents” and not following company time off procedures. He simultaneously received a reprimand and 10-day suspension for running a red light in a company vehicle.
Washington Gas terminated the employee on July 24, 2018 for yet another policy violation.
The employee filed suit against Washington Gas and his supervisors, alleging race and color discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court granted summary judgment in the defendants’ favor.
On appeal, the Fourth Circuit agreed. The disciplinary actions were based on legitimate, non-discriminatory and non-retaliatory reasons and the employee did not show that the defendants’ explanation was pretextual.
The employee argued that his employer knew he was biracial (the alleged reason for some of the discipline) and that he was disciplined for things his colleagues of a single race were not disciplined. In upholding the lower court’s decision, the appellate court noted that “Defendants’ justifications for [the] reprimands have remained consistent prior to and throughout this litigation. This is important because the fact that an employer ‘never changed its story’ and that its ‘explanation has been consistent from the moment’ it took an adverse action tend to support the argument that it did not act pretextually.”
The court also found that the identified comparators were insufficiently similar to the appellant — in both cases there were mitigating circumstances for why the other tardy employees were not disciplined. One employee was a single father who had told Washington Gas he would be late. The other employee did not have a similar disciplinary history and did not behave in a sufficiently similar manner.
Thus, per the Court, there was no evidence casting doubt upon the defendants’ explanation, which were documented, applied consistent with the terms of the CBA, and the explanations for which remained consistent throughout.