A recent decision by a federal district court in Washington should serve as a reminder to employers to make sure that they follow their disciplinary and other processes in a fair and consistent manner to avoid liability under the FMLA and anti-discrimination laws. In this case, the court denied an employer summary judgment on an FMLA retaliation claim, citing the employer’s failure to follow its regular disciplinary process as potential evidence of a retaliatory motive. The case is White v. Burlington Northern Sante Fe Railroad Co.(W.D. Washington 2/27/17).

Employee 2010 hotline complaint. The facts showed that the employee had worked for the employer for 17 years and that he regularly used FMLA leave for chronic pain. The employer twice accused him of fraudulent FMLA use but found no wrongdoing. In fact, over that 17 year period, the employee had a clean disciplinary record apart from tardiness violations and a write-up for wearing a bike helmet at work. In March 2010, the employee’s supervisor accused the employee of fraudulent FMLA use. The employee denied the allegation and reported the false accusation and time sheet scrutiny to the hotline. The court noted that the employer investigated his hotline report “but failed to contact him directly or visit his work site” and that the employer “found no wrongdoing and continued scrutinizing White’s attendance.” 

Employer disciplines for 2012 tardiness – does not follow processes. In 2012, the employer held a series of hearings to assess disciplinary action, contending that the employee had been tardy from 3 to 8 months on a number of occasions. The employee denied that he was tardy and there was evidence that the employer’s electronic hand-scanning device for recording attendance regularly malfunctioned causing late arrivals. The court emphasized that the employer “deviated from its normal practice of grouping together questionable late occurrences instead treating them as separate offenses, requiring more severe discipline. 

2013 – 2nd hotline complaint & physical altercation. In July 2013, the employer again accused the employee of fraudulent FMLA use, and the employee again reported the false allegation to the hotline. The employer then cancelled its investigation of alleged FMLA abuse. In August 2013, the employee and a Caucasian co-worker were involved in both a verbal and physical altercation after each attempted to play music on separate devices in White’s office. The facts indicated that the other employee initiated the verbal threats and physical altercation. The employer found that both employees violated its conduct and altercation policies and terminated both from employment in September 2013.   Both employees filed union grievances and sought reinstatement. Ultimately, the employee’s request for reinstatement was denied while the co-worker was reinstated. 

Race discrimination allegations. In addition to asserting retaliation in violation of the FMLA, the employee also alleged race discrimination. There was evidence that in 2011 he discovered a noose displayed at work and that two Caucasian workers admitted hanging it as a “joke.” The employer failed to discipline either employee.  The employee also argued that the refusal to reinstate him while the employer reinstated the Caucasian co-worker was also race discrimination.

Lessons for employers? It cannot be overstated how important it is for employers to  both have good processes and policies and to make sure that such processes and policies are followed consistently and fairly. The court here was critical of the employer’s decision to treat the batch of tardiness as separate offenses. The court also appears to have been influenced by the employer’s failure to consider that the malfunctioning electronic scanner may have played a role. The court further appeared critical of the employer’s failure to discipline the two Caucasian employees who admitted to hanging a noose.  Indeed, the employer flunked a basic fairness test: It disciplined a 17 year employee who had a batch of 3-8 minutes instances of tardiness as measured by a malfunctioning scanner but provided no discipline to employees who openly admitted to hanging a noose at work.   The employer here may have been awarded summary judgment if it had been more lenient with regard to the tardiness, taken action with regard to the “noose” incident, and not agreed to reinstate the Caucasian co-worker who instigated the altercation.  Employers should ensure that they follow policies and that they enforce them consistently and fairly under the circumstances.