May 20, 2019

Tenth Circuit: UPS Employee Failed to Show Stated Reason for Termination–Dishonesty–Was Pretext for Retaliation

The Tenth Circuit Court of Appeals published its opinion in Macon v. United Parcel Service on Wednesday, February 19, 2014.

Jeff Macon was employed by the United Parcel Service and suffered two work-related injuries. The injuries were covered by workers’ compensation. Prior to his second injury, he was disciplined and terminated for improperly signing for a customer’s next-day air delivery. The termination was later reduced to a suspension. After several suspensions and grievances, Bacon was eventually terminated for dishonesty.

Bacon filed this action in federal district court alleging UPS terminated his employment because of his work related injury. He argued that UPS’s stated reason for his termination—dishonesty—was merely a pretext for retaliation. UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. The district court agreed and Macon appealed.

To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker’s compensation benefits or an injury that might support a future worker’s compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.

The Tenth Circuit reviewed the documents Macon cited, but none raised a genuine and material issue of fact sufficient to allow a reasonable jury to find pretext. Macon did not explain how any retaliatory motive on the part of his supervisors could be imputed to UPS when the final decision to terminate him was made by a grievance panel. Nor did he allege the grievance panel was biased, had a retaliatory motive, or merely rubber-stamped his supervisor’s decision to terminate him. The discipline imposed after the settlement of his workers’ compensation claim did not raise a triable issue of pretext.

Macon also argued a jury could determine his discharge for dishonesty was pretextual because the record showed he was not dishonest. Macon claimed he was not dishonest, merely inadequately trained. But he was not entitled to a determination of whether he was dishonest; rather, he was entitled only to a determination of whether the terminating grievance panel could reasonably have thought so.

Finally, Macon attempted to demonstrate pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. The problem with Macon’s approach was that it failed to give UPS credit for establishing grievance panels with independent authority to assess the propriety of discipline. Even assuming the difference in treatment between Macon and another employee resulted from their supervisor’s desire to terminate Macon in retaliation for his workers’ compensation claims, this improper motive could not be imputed to UPS when the independent grievance panel concluded there was adequate reason to terminate Macon for dishonesty. But, Macon simply did not argue—and nothing in the record suggested—the grievance panel was in any way complicit in or blind to the supervisor’s retaliatory motive.