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Court rules unauthorized absence justifies firing

published in McAfee & Taft EmployerLINC | July 29, 2016

By Anna Proctor

The federal appeals court that covers Oklahoma recently ruled in favor of Dillon Companies, Inc., a Kansas corporation that does business as King Soopers, in a lawsuit filed by a former grocery store employee who claimed he suffered a hostile work environment and was terminated because of racial discrimination.

Injured employee fired for refusing to return to work

Moe Aman, an African-American male, worked as a produce clerk at King Soopers. After being injured by a co-worker who deliberately slammed a cart into him, Aman was out of work for several weeks, during which time he was provided workers’ compensation benefits. The employee involved in the cart incident was terminated.

After returning from injury leave, Aman resumed working in the produce department, subject to a physician-imposed permanent lifting restriction of no more than 30 pounds. Given the physical requirements of the job and the permanent restriction placed on Aman, King Soopers later determined that he could no longer continue working as a produce clerk and transferred him to a service desk job with lower pay.

In response to his transfer, Aman asked for, but was denied, a leave of absence because the store had a position available for him. After being scheduled to work the new service desk job, Aman called in sick five days in a row, violating company policy by not speaking to one of his managers. On the fifth absence, Aman called the store to report that he would be out sick the entire next week as well.

After being absent for weeks without leave, King Soopers terminated Aman, who responded by filing a federal lawsuit alleging discrimination and retaliation for exercising his workers’ compensation rights. He also brought a hostile work environment claim against King Soopers over the cart assault incident and for instances in which he claimed he was called an “African monkey,” an “African lion,” and a “lazy African” by a co-worker.

After the trial court found in favor of King Soopers, Aman appealed the decision to the Tenth Circuit Court of Appeals. With respect to the hostile work environment claim, the appeals court held that the statements and actions used by the co-worker against Aman likely would have been considered inflammatory enough to create an abusive working environment. However, the statements could not be considered for the hostile work environment claim because they occurred outside of the maximum time in which Aman had to bring this suit. Those actions that were within the allowed time period, including King Sooper’s reclassification of Amam to a desk position due to his permanent medical restriction, were deemed by the appeals court to be neutral, nondiscriminatory conduct on the part of the employer.

With respect to Aman’s discriminatory termination claim, the appeals court held that King Soopers established that Aman was legitimately fired for being absent without leave. Aman missed several weeks of work, without his store manager’s approval, which was in violation of the company’s sick policy.

Takeaway

This case indicates how termination may be a reasonable option for an employer when an employee fails to appear to work for two weeks after being denied a leave of absence. However, employers must be cautious about actions that could be deemed discriminatory against employees. While transferring an employer to a service desk position due to medical restrictions will likely be seen as nondiscriminatory conduct, any inflammatory, discriminatory language against the employee could be considered evidence that the employer’s actions were motivated by race.

  • Aman v. Dillon Companies, Inc., No. 14-1461 (10th Cir. 4/15/16).