Court Revives Title VII and FMLA Claims

The 5th U.S. Circuit Court of Appeals revived race discrimination and retaliation claims of a Black sheriff’s office employee fired for sleeping on the job based on evidence that the office only counseled a white employee for the same behavior.

The plaintiff was a shift supervisor in the dispatch department of the St. John the Baptist Parish Sheriff’s Office, where she worked off and on for 17 years. She had three levels of supervision: a lieutenant first-level supervisor, a commander second-level supervisor and the sheriff himself, who was her third-level supervisor.

On Jan. 30, 2018, the lieutenant commended the plaintiff and three other dispatchers for superb work in the 911 department leading to an arrest. Ten days later, however, the lieutenant counseled the plaintiff for poor performance.

On Feb. 9, the lieutenant told the plaintiff that she needed to do a better job in supervising her staff and a better job overall. He gave examples of her sleeping on the job, missing license-plate-recognition hits, making personal phone calls while on duty and failing to ensure that emergency units were dispatched promptly. No disciplinary measures were taken.

On Feb. 20, the plaintiff gave the lieutenant and the commander a doctor’s note. The note said that due to a diagnosis of anxiety, the plaintiff required three 24-hour shifts off each week. The commander passed the note up his chain of command and alerted HR.

Two days later, the lieutenant filed a disciplinary-review-board request, seeking review of the charges against the plaintiff. He charged that she had engaged in conduct and work performance unsuitable for an employee of the sheriff’s office.

He claimed five infractions:

• Instructing dispatchers that a license-plate-recognition hit was not valid when it was valid.
• Failing to ensure a prompt dispatch to an accident with injury.
• Failing to remove a recovered gun from a national database.
• Making excessive personal calls while on duty.
• Continuing to sleep while on duty after being counseled against doing so.

The lieutenant asked the plaintiff to respond in writing to the deficiencies that they discussed in their Feb. 9 counseling session. In her response, she admitted sleeping on the job but explained that she had developed some medical issues that affected her sleep patterns. On Feb. 23, she asked for an update on the response to her medical leave request.

On March 1, the disciplinary review board convened. The board reviewed only one of the five infractions: sleeping on the job. The board unanimously recommended that she be fired. The sheriff agreed and fired her the next day.

The plaintiff was not the only dispatch supervisor caught sleeping on the job. A white male dispatch supervisor was also caught, but only counseled and not fired.

Claiming disparate treatment and stressing the suspicious timing of her firing, the plaintiff sued the sheriff under both Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act (FMLA). She claimed race discrimination and that she was fired in retaliation for requesting FMLA leave.

The district court granted the sheriff’s motion for summary judgment. The court found that the plaintiff failed to produce competent summary judgment evidence to show disparate treatment or pretext.

On appeal, the 5th Circuit found evidence that the plaintiff was fired solely based on sleeping on the job. The plaintiff established pretext by presenting comparator evidence of a white dispatch supervisor who also slept on the job without being fired. The 5th Circuit thus revived the race discrimination claim and sent it to trial.

The 5th Circuit also revived the FMLA retaliation claim. It found the same evidence of pretext based on alleged inconsistent discipline and further found that the plaintiff’s initial discipline happened soon after her FMLA request. Both facts strongly supported her arguments of pretext and created a genuine issue of fact for trial, according to the appeals court. A dissenting judge disagreed that the race-based comparator evidence also supported the FMLA retaliation claim.

Watkins v. Tregre, 5th Cir., No. 20-30176 (May 7, 2021).

This is just another reason employers should review their disciplinary procedures for consistency and thoroughness. An employer’s inconsistency in administering discipline and failure to address all outstanding performance issues can support employee claims for wrongful discharge.