A recent decision on a Workers Compensation retaliation claim shows a hidden value for employer-union grievance processes. In Macon v. UPS, No. 12-3080 (10th Cir. February 19, 2014), the plaintiff claimed that when he returned from a Workers’ Comp. leave, his supervisors began to scrutinize his work, wrote him up repeatedly, and repeatedly attempted to fire him. The employer’s grievance process thwarted at least two termination attempts. Employees could protest any discipline and a local panel of employer and union representatives would review the decision. Appeals from the local panel went to a regional panel of employer and union representatives. Twice, after the plaintiff’s Workers’ Comp. leave, panels reduced termination decisions to suspensions. The third time, however, the supervisor recommended termination for an infraction of policy having to do with recording the number of stops the plaintiff had made on a delivery route. A grievance panel had previously warned the employee directly about the correct way to record this information, and when he made the same error again, a panel approved his termination. Although the plaintiff claimed the supervisor had a discriminatory animus against him, and acted on that animus, he had no evidence that the members of the panel held the Workers’ comp. leave against him or that the panel merely rubber stamped the supervisor’s decision. The court determined the grievance panel actually made the termination decision and threw the claim out on summary judgment.
Passing the buck can be an effective defense to discrimination and retaliation suits, when the decision-maker truly is independent.