An African-American employee comes into work early one day, with plans to leave earlier than originally scheduled. When he is informed that his vehicle is being serviced and is not immediately available, he blows up at the mechanic and leaves work. He texts his supervisor and says that he will not be working today because he has a stomach virus. The employer concludes that the employee left work out of frustration regarding the vehicle repairs and terminates his employment based on this and prior disciplinary incidents.

The employee then files suit against the company alleging race discrimination. He offers evidence that a white co-worker engaged in different kinds of disciplinary problems but was not fired. He also claims that during the lawsuit, the employer mentioned grounds for termination that were not communicated at the time he was fired. The employer moves for summary judgment and the district court agrees, dismissing the claim.

Last month, in Haynes v. Waste Connection, Inc., the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reviewed these facts and concluded that the employee had met his burden of proof in order to have his discrimination claims heard by a jury. The court first concluded that the plaintiff does not have to show a white comparator who engaged in the same sort of behavior but was treated more favorably. Generally comparable examples of behavior are enough. Second, the fact that the employer added new grounds for termination during litigation was sufficient evidence of pretext to allow the claim to go to jury trial.

The plaintiff represented himself in the early stages of litigation. This decision demonstrates the Fourth Circuit’s increasing tendency to allow apparently marginal employment claims to proceed to jury trial. District court judges reading these decisions have proven increasingly unwilling to grant summary judgment prior to trial based on concerns over being reversed at the next level. Employers facing discrimination claims in the Fourth Circuit need to understand these new realities. The cost and risk from seemingly dubious discrimination claims may be more than they initially anticipate.