[co-author: Amanda Frankel]
On March 10, 2017, the Tenth Circuit in Henson v. AmeriGas Propane, Inc., no.: 16-7057, declined to revive a discrimination and wrongful discharge lawsuit in finding that the lower court was correct in its holding that that the former AmeriGas Propane, Inc. delivery driver who brought the claims had not shown that his termination was pretextual. While this case originated out of Oklahoma, it provides beneficial guidance for our transportation trucking, and logistic clients.
In his initial complaint, filed in May 2015, Plaintiff Isaac Henson alleged that AmeriGas Propane, Inc. (“AmeriGas”) violated the Americans with Disabilities Act of 1990 (and subsequent Amendment) as well as Oklahoma’s Retaliatory Discharge Act for terminating his employment because his disabilities and/or because AmeriGas regarded him as disabled. Henson also asserted that he was terminated because he engaged in statutorily protected activity under Oklahoma’s workers’ compensation law.
Henson began working as a delivery driver for AmeriGas in May 2011. His responsibilities included filling and delivering propane tanks to commercial and residential customers. While executing those tasks in August 2012, he injured the middle finger of his right hand. AmeriGas attempted to accommodate him by assigning light work duties as needed. Despite this, Henson still required over sixty medical and occupational-therapy appointments and underwent hand surgery in April 2013. In September 2013, he advised AmeriGas that his doctors recommended a second surgery. During this time, Henson’s performance declined, though his initial performance appraisal was generally positive. There were repeated safety violations, including three separate incidents of Henson driving too fast and running a stop sign. In November 2012, he received a formal written warning in an employee disciplinary report for the safety violations. Also in April 2013, Henson received a second written warning and a four-day suspension for insubordination, a negative attitude, and customer service deficiencies. In May 2013, his performance appraisal reiterated AmeriGas’s safety concerns and advised him to be more positive toward the company. Ultimately, Henson was terminated in October 2013, with AmeriGas citing insubordination along with another safety violation: leaving the gauge open on a customer’s propane tank.
Dissatisfied with the termination, Henson filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and with the Oklahoma Employment Security Commission. He exhausted his administrative remedies but secured a right-to-sue letter, prompting him to file suit asserting that (1) AmeriGas violated the federal law when it fired him because of his hand impairment; and (2) AmeriGas violated the Oklahoma state law when it fired him in retaliation for engaging in statutorily protected activity. The district court found that Henson established a prima facie claim of discrimination under both federal and state law, however, it also found that AmeriGas established a legitimate and nondiscriminatory reason for termination. Moreover, the court said that AmeriGas was aware of Henson’s injury and its impact on his ability to perform his duties well before the need to go for a second surgery.
On appeal, the Tenth Circuit rejected Henson’s pretext argument using a standard similar to the Third Circuit and found that Henson’s performance history outweighed any timing issues as to the discharge being close to Henson’s workplace injury. The court also found that Henson’s self-assessment of his performance was not enough to show pretext. Rather, it noted that it is the manager’s perception of the employee’s performance, as opposed to a subjective self-evaluation, that is relevant to review of legitimate and nondiscriminatory termination practices carried out in good faith by a company.
This case is useful for our clients in the transportation, trucking, and logistics industries because it shows that when an employer effectively uses written discipline and can cite to safety and/or customer complaints, this can provide a powerful counter to a plaintiff’s claims of pretext. Employers in any industry should always try to ensure that there is a written and comprehensive record of discipline and/or performance reviews of employees to negate a plaintiff’s pretext argument.