How An Employer’s Misleading Statements Can Be Evidence of Discrimination

Kollman & Saucier
Kollman & Saucier

Two cases decided this month demonstrate how an employer’s false or inaccurate statements can bolster employees’ claims that their employer engaged in unlawful discrimination.

Sykes v. Fed Ex Freight East, No. 2:17-cv-13189 (E.D. Mich. 8/3/19)

In this case, a supervisor’s misrepresentation or misapplication of a workplace policy led the district court to decide that the employer arguably discriminated against an employee because of his race.

Sykes, who is African American, worked as a dock worker for FedEx.  He alleged that he faced racial slurs at work.  For instance:

  • A driver called him “the N-word” several times;
  • His manager, Pollock, called other African American employees “Flava Flav” and “monkey”; and
  • His supervisor, McNamee, referred to another African American employee as “cracked out” and as having a “f**ked up” “fro.”

Sykes was cited for missing several of his shifts but claimed that many of these were Saturday absences that he believed were excused.  In one example, Sykes informed McNamee ahead of time that he would be out on a Saturday, and McNamee responded that Sykes was “good” and “covered.”  Sykes and Pollock also agreed that Sykes would be “on call” on Saturdays so that any Saturday absences would not accrue “attendance points.”  Sykes received a note from the HR department that he would not work any Saturdays.

Nonetheless, Sykes received several attendance notifications for various absences — including for some Saturdays on which he was supposedly on call and that were supposedly excused.  (Curiously, around this same timeframe, Sykes received another message from HR congratulating him on “cleaning up his attendance record.”)  A few weeks later, when Sykes called out of work again, he was deemed a “no call/no show” and was terminated.

Sykes brought a race discrimination claim under Michigan state law.  The court found that Sykes presented direct evidence that discriminatory animus could have played a role in the employer’s decision to terminate his employment.  The court took issue with McNamee’s representations that Sykes’s absences were excused, when in fact they appeared on Sykes’s attendance record, among other things.  And, it found enough evidence that suggested Pollock either misrepresented or misapplied the on-call policy to Sykes’s Saturday absences in trying to justify Sykes’s termination.  As a result, the court denied FedEx’s motion for summary judgment as to Sykes’s race discrimination claim.

Electrolux Home Products, Inc., 15-CA-206187 (N.L.R.B. 8/2/19)

In this National Labor Relations Act (“NLRA”) case, the National Labor Relations Board (“the Board”) found that even though the employer’s stated reason for terminating an employee was false, the true reason may not necessarily have been the employee’s union activity.

Mason worked as a materials department team lead for Electrolux when she was told one day to deliver microwaves to her line.  She failed to do so and was terminated roughly a week later supposedly for insubordination.

Mason had a history of participating in union activities at Electrolux.  For instance, around the time of a union election campaign, she distributed authorization cards, handed out union flyers, wore a pro-union T-shirt, and spoke out at a mandatory meeting regarding union dues and a nearby strike.

The ALJ found that Electrolux’s stated reason for terminating Mason was false because, among other things, there were several other employees also deemed guilty of insubordination who faced lesser discipline.  (The ALJ also found discriminatory animus based on statements made during a confrontation between Mason and her managers.)

In reversing the judge’s decision, the Board reasoned that, when stated reasons for employment action are found to be pretextual (i.e., either (1) false or (2) not in fact relied upon), discriminatory motive “may be inferred, but such an inference is not compelled.”  It continued that, “[w]hen an employer has offered a pretextual reason for discharging or disciplining an alleged discriminatee, the real reason might be animus against union or protected concerted activities, but then again it might not.  It is possible that the true reason might be a characteristic protected under another statute (such as the employee’s race, gender, religion, or disability), or it could be some other factor unprotected by the [NLRA] or any other law, which would be a permissible basis for action under the at-will employment doctrine.”

Even though Electrolux ultimately escaped liability under the NLRA, discrimination cases arising under other employment laws, such as Title VII, the ADA, and the ADEA, can present a different scenario – as the Board acknowledged.  Indeed, under certain circumstances, “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

Whether an employee relies, to his or her detriment, on a supervisor’s misrepresentations about a workplace policy, or an employer lies about the real reason it terminated an employee, such misleading or false statements can become evidence of discriminatory animus.  As both of these cases illustrate, employers are well served to ensure that they are truthful, and consistent with the records they prepare at the time they decide to take action, whenever justifying their employment decisions.

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