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Fourth Circuit Holds That Employer’s Shifting Story Is Evidence Of Pretext

To prevail in an employment discrimination case, the plaintiff is required to present evidence of pretext by his or her (former) employer.  What exactly does pretext mean, though, at a practical level?

The Fourth Circuit Court of Appeals recently explored this concept in holding that a former trash truck driver was entitled to go to trial based on sufficient evidence that his former employer’s proffered reason for terminating him was a pretext for race discrimination.  Haynes v. Waste Connections, Inc., No. 17-2431, 2019 U.S. App. LEXIS 11854 (4th Cir. Apr. 23, 2019).

Jimmy Haynes was hired to drive a trash truck for Waste Connections, Inc. (WCI).  One night, Haynes showed up early for his shift, which was set to begin around 2:00 am.  He was informed that his usual truck was under repair but that he could drive a replacement.  In “frustrat[ion]” Haynes responded either, “F*** this.” or “Forget this.”

Haynes subsequently became ill.  Prior to leaving, he sent a text message to his supervisor stating that he would be unable to work his shift due to a stomach illness.  The next day, Haynes sent another text message to his supervisor stating that he was feeling better and could return to work for his next shift.

After considering Haynes’s absence and speaking to the mechanics, Haynes’s supervisor consulted with HR and decided to terminate Haynes for “job abandonment.”  Under WCI’s own policy, “job abandonment” was defined as “three days, no call and no show.”  Haynes’s conduct — missing two shifts and notifying his supervisor ahead of time — did not meet this definition.

During the litigation that followed, however, WCI asserted for the first time that it terminated Haynes not for job abandonment, but for his poor attitude.  The district court accepted this legitimate non-discriminatory reason and concluded that WCI was entitled to summary judgment.

The Fourth Circuit panel unanimously reversed and held, among other things, that Haynes presented enough pretext evidence to get to trial.  “In order to show pretext,” the Court explained, “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.”  Id. at *12.  The Court added that, “[w]hile an employer is certainly permitted to expand on its original reason for a termination, such evidence of substantial changes to [an employer’s] proffered reason for the termination permits an inference of pretext.”  Id. at *15.  Therefore, Haynes’ claims will proceed to trial.

The takeaway here is that employers should have legitimate business reasons for taking employment actions that are both sincere and that remain consistent throughout any dispute that may arise after the action is taken.  Any significant change to an employer’s story is an opportunity for the (former) employee to argue that the reason given was a pretext for unlawful discrimination.  As Haynes demonstrates, such evidence can overcome summary judgment and move a case to trial.

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