10th Circuit Shows How to Handle Gender Bias Claims

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An employer that terminated a female employee who left work early to attend to what an appeals court called an “inherently female” emergency situation must face a jury trial on a gender discrimination claim.


Anthony Mann, Dana Moye, and Katina McGee, former employees of XPO Logistics Freight, Inc., all contended their former employer had fired them for discriminatory and retaliatory reasons. They sued, and the federal trial court in Kansas granted XPO’s request for summary judgment (dismissal without a trial) with regard to all three. The U.S. 10th Circuit Court of Appeals, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, however, reversed the grant of summary judgment with regard to McGee.

XPO is a company that provides logistics and transportation services throughout the United States. McGee, an African-American woman, began her employment with XPO in 2013 as a driver sales representative. As part of her job, she worked on a “flex” team of drivers that drove extended service routes, which involved the transport of freight over long distances by teams of two. On nights where there wasn’t enough shipping volume to warrant a run, the drivers would perform dock work instead.

In April 2016, a male driver informed his manager he didn’t want to drive extended services routes with McGee because his wife wouldn’t be comfortable with him working closely with a woman. On April 19, McGee reported the issue to Maureen Mahr, an HR generalist at XPO’s Kansas City location, saying the driver’s request not to work with her made her feel discriminated against because of her race and gender. Although Mahr told the male driver’s manager he would have to work with a female driver if she was up for the spot, Mahr did not prepare a report on the issue or counsel or discipline the male driver.

On April 20, McGee clocked into work as usual. She didn’t have a run scheduled that night, so she was performing dock work. She clocked out and left work 2 hours later, though, after she realized she had started her period unexpectedly and ruined her pants. Although she looked to inform someone in management that she was leaving, she couldn’t find anyone and left anyway. She alleged that she tried calling management when she got home but didn’t reach anyone.

Early the following morning, McGee called and spoke to both her supervisor and the service center manager about having left work early the previous day. Later the same day, Mahr learned she had left work without approval and spoke with her about the incident. The next day, Mahr recommended she be terminated for leaving work early without permission.

Court’s Decision

At the trial court, XPO requested summary judgment on McGee’s claims of gender discrimination and retaliation. It claimed it terminated her for job abandonment because she had left work before her shift was over without notifying management. She claimed this reason was a pretext (excuse) for gender discrimination and/or retaliation.

With regard to McGee’s discrimination claim, the 10th Circuit reversed the lower court, finding there was sufficient evidence to create a jury issue about whether the termination was pretext for discrimination.

First, XPO’s attendance policy provided an explicit disciplinary process requiring an employee to accrue six “attendance events” in a rolling 12-month period to be subject to termination. McGee’s instance of leaving work early was a single attendance event, which would not lead to termination under the policy. Although another policy forbid employees from leaving their workstation without authorization, the inconsistency of the two policies opened the door for questions about what policy applied to McGee’s situation…

Source:  HR Daily Advisor

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