?Takeaway: Before disciplining an employee, a company should carefully compare its intended discipline to that administered to other employees to ensure it is consistent. However, an employer can still discipline an employee more harshly than others based on more serious misconduct.
?A worker who was fired for reportedly using his cellphone while sitting on an idling forklift lost his discrimination claim, failing to convince the 6th U.S. Circuit Court of Appeals that his co-workers weren’t terminated for similar conduct.
The plaintiff, who is Black, worked for Stanley Engineered Fastening, a parts supplier for and division of Stanley Black & Decker, for 21 years. He most recently held the position of forklift operator at Stanley’s Hopkinsville, Ky., plant. Due to the dangerous nature of Stanley’s industrial operations, the company maintains extensive safety policies, including a prohibition on using cellphones while working on the plant floor. According to Stanley, the plant’s director had warned the plaintiff multiple times against using his phone on the plant floor.
On Jan. 31, 2018, a Stanley employee who worked in the same area as the plaintiff filed a report claiming that he was driving a forklift toward her with neither of his hands on the steering wheel because he was manipulating his smartwatch. She also claimed she saw him using his smartwatch again a few minutes later as he sat on the forklift, which was stationary but still running.
Stanley initiated an investigation. The plaintiff denied any wrongdoing but did not explain his conduct. Stanley credited the co-worker’s account and determined that the incident occurred as she reported it. Stanley then took steps to terminate the plaintiff immediately, but his union interceded and proposed that he be placed on a last-chance agreement. This agreement provided that any additional safety violations within two years would result in immediate termination. The plaintiff agreed and signed the agreement in February 2018.
In August 2018, the same co-worker reported that she saw the plaintiff using his cellphone in his lap while sitting on an idling forklift. He again denied the misconduct. Yet, after an investigation, Stanley concluded that he had violated his last-chance agreement and fired him the next day. The union initially filed a grievance on his behalf but withdrew it after he refused to provide his cellphone records to corroborate his story.
In a separate matter, the plaintiff had filed an Equal Employment Opportunity Commission (EEOC) complaint in July 2015 against Stanley for not promoting him. The EEOC dismissed the complaint in April 2016.
The plaintiff filed a federal lawsuit against Stanley in August 2019. He claimed he was fired in violation of the Kentucky Civil Rights Act because of his race and in retaliation for his 2015 EEOC complaint. Both the plaintiff and Stanley moved for summary judgment. The court granted Stanley’s motion for summary judgment because it found that none of the plaintiff’s comparators were truly similar to him and that Stanley had a legitimate reason to fire him because of his severe safety violations.
The plaintiff appealed the decision to the 6th Circuit. On appeal, the 6th Circuit considered the plaintiff’s evidence of six white employees who he claimed engaged in similar misconduct but were not fired. One employee was suspended for three weeks and put on a last-chance agreement for viewing inappropriate material on a work computer. Another employee had to attend anger management classes after writing demeaning notes to a co-worker. Four other male employees engaged in safety violations of various types, including drug use and, in the case of one employee, multiple forklift wrecks, the plaintiff claimed.
The 6th Circuit found significant differences between the plaintiff and his colleagues. While four of the alleged comparators had been placed on last-chance agreements, only one had violated that agreement and then obtained reinstatement through the union. Two comparators had not engaged in safety violations at all. For the four involved in safety-related incidents, none involved cellphones, and their misconduct endangered themselves, rather than co-workers. The plaintiff could not substantiate his claims of drug use by colleagues.
Moreover, evidence produced by the plaintiff revealed he was receiving calls or texts on his cellphone or smartwatch on the dates in question. Finally, the EEOC complaint had been filed too long before his discipline to support a claim of retaliation.
As a result, the 6th Circuit upheld the district court’s dismissal of the case on summary judgment.
Blount v. Stanley Engineering Fastening, 6th Cir., No. 22-5356 (Dec. 15, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
