Employers who decide to fire an employee for a work rule violation usually feel pretty secure in the decision when the employee has admitted to the infraction. But it is important to remember that, in discrimination or retaliation cases, the real question is “how has the employer treated other employees in similar circumstances?” The need to focus on this “similarly situated” factor, as well as the possible “bad facts” in a case, was stressed in the Tenth Circuit’s recent decision in Smothers v. Solvay Chems., Inc. (10th Cir. January 21, 2014).
Steve Smothers worked for Solvay as a surface maintenance mechanic in Solvoy’s trona mine in Sweetwater County, Wyoming. As an aside, trona is a relatively rare sodium-rich mineral use in paper manufacturing and water treatment. As soda ash, it is an ingredient in baking soda and detergent. Sweetwater County is full of this stuff – accounting for about 30% of the global production and 90% of the domestic production of soda ash.
During his 18 years as Solvay, Smothers was never disciplined for a safety infraction. In 1994, however, Smothers suffered a neck injury and developed a degenerative disc disease in his spine. These conditions required him to apply for and take intermittent FMLA leave. There was no question that Smothers was in pain, and his doctors’ notes reflected that the pain caused him to have trouble sleeping, for which he also needed medical assistance.
Smothers worked the “graveyard” shift and his co-workers and supervisors complained that Smothers FMLA intermittent leave caused them difficulty. Management suggested that Smothers move to the day shift, which would have meant a decrease in pay for Smothers, something Smothers rejected. Human Resources told management that forcing Smothers to move to the day shift would violate the FMLA.
This was the situation when Smothers handled repairs after a hydrochloric acid leak one night in August 2008. The details are not terribly important. Suffice it to say that, while Smothers did almost everything correctly, he did not place a physical lock on the pump valve and this was a safety violation. He later apologized for the error and promised that it would not happen again.
While the repair was happening, co-worker Mahaffey and Smothers got into a confrontation over the proper actions to take. When Mahaffey offered to help, Smothers supposedly retorted “I don’t want your kind of help…. [and that Smothers was] going to take a s— and wanted to know if [Mahaffey] wanted to watch him to see if he did it right.”
Ultimately, following an investigation (in which Smothers was not asked for his side of the story), a group of six managers decided to fire Smothers. Five of them said it was because of the safety violation and the confrontation with Mahaffey. One said it was only because of the safety violation.
Smothers disagreed, claiming that he was fired in retaliation for taking FMLA leave and discriminated against under the ADA, among other things. The district court granted Solvay summary judgment. On appeal, the Tenth Circuit reversed.
Looking at the case in the light most favorable to Smothers, the court noted that Smothers had pointed to other employees who were not fired for their first safety violation. Solvay’s response – that those employees “apologized”- did not get Solvay off the hook since Smothers had also apologized. Solvay’s claim that the confrontation with Mahaffey needed to be added in the mix was unavailing because Smothers provided evidence there was not a real investigation into the incident, but more of a witch hunt, with Smothers in the role of witch.
These disputes of facts, coupled with the history of both supervisors and co-workers complaints about Smothers’s FMLA protected intermittent leave, convinced the appellate court to remand the case to the district court for trial.