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Yes, You Can Be Fired For Violating A Last Chance Safety Agreement

by | Dec 21, 2022 | Employment Discrimination, Employment Law, Federal Law Update, Wrongful Termination |

Today, we consider the recently decided alleged race discrimination and wrongful termination case United States Court of Appeals for the Sixth Circuit, Blount v. Stanley Eng’g Fastening, No. 22-5356, 2022 WL 17688036 (6th Cir. Dec. 15, 2022). In this case, the employee, Vulenzo Blount, Jr., worked for Stanley Engineering Fastening as a forklift operator at its Hopkinsville, Kentucky plant. As you can imaging, driving around in a populated manufacturing factory setting in a 9,000-pound forklift carries a lot of safety concerns. To that end, the employer has implemented extensive safety requirements, including banning the use of cell phones on the plant floor.

After the plant director’s several warnings to Blount about against using his phone on the plant floor, on January 31, 2018, Blount drove his forklift directly towards another employee, who reported that “neither of his hands on the wheel” because he was using his smartwatch and that she later caught him doing the same thing a few minutes later. Given the seriousness of the repeated safety violation, including almost crushing a coworker, the employer fired Blount. However, the Union stepped in to get the firing reversed. Instead, by agreement, Blount was placed on a two-year final last chance warning, which he signed on February 7, 2018.

On August 28, 2018, not even seven months later, Blount was busted using his cell phone in his lap while sitting on his idling forklift – which would be a clear and undisputed violation of the last chance agreement. Given the opportunity to refute this reported conduct during an investigation and as part of a union grievance, Blount refused to produce his cell phone data and records. Instead, Blount relied solely on his denial of the conduct. Given other evidence and witness reports, the employer fired Blount and this union dropped the grievance.

Blount, who is Black, sued his former employer claiming race discrimination. The primary basis for his claims was that he was treated differently than White employees, who also had committed violations.

What is disparate treatment race discrimination?

Disparate treatment, stated simply, is when an employee is treated less fairly than similarly situated coworkers of a different race. Like other forms of racial discrimination, disparate or differential treatment of employees based on race is unlawful under Title VII of the Civil Rights Act of 1964.

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To prove a case of differential treatment based on race, can I point to any other worker that was treated differently?

No. In order to establish a case of disparate treatment based on race, an employee must point to better treatment given to other employees, who are both of a different race and are also similarly situated.

What does similarly situated mean for a Title VII race discrimination case?

To be considered similarly situated for the purpose of a Title VII race discrimination claim, a comparator employee does not need to be exactly identical but rather be similarly situated “in all relevant respects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)(emphasis in original). “Differences in job title, responsibilities, experience, and work record can be used to determine whether two employees are similarly situated.” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004). “Superficial similarities between a disciplined employee and his colleagues” are not enough to make them comparators. Arendale v. City of Memphis, 519 F.3d 587, 604 (6th Cir. 2008).

Within the framework of differential disciplinary treatment, the employee and proposed comparator must have engaged in acts of “comparable seriousness.Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir.2002) (quoting McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 283 n. 11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976)). To determine whether there was comparable seriousness of the offenses committed by the identified employees, courts will consider a variety of factors, including whether the workers “have dealt with the same supervisor, have been subject to the same standards, and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)). For instance, that two employees may have both received a warning or a negative performance review would be insufficient to make those employees be similarly situated unless the negative review or warning regarded similar offenses or other work issues. Colvin v. Veterans Admin. Med. Ctr., 390 F. App’x 454, 458–59 (6th Cir. 2010).

In Blount, the employee specifically identified six White employees, who were in different positions and engaged in different conduct, such as having inappropriate materials on a work computer, leaving angry notes for coworkers, and attendance infractions. None of the identified coworkers violated a last chance agreement. Therefore, the United States Court of Appeals for the Sixth Circuit had no difficulty holding that they were not similarly situated. The Sixth Circuit further held that Blount’s generic assertion that “20 other white” employees used cell phones on the floor was insufficient evidence to establish comparator evidence.

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Can I avoid termination for cause by asserting race discrimination?

If the employee can successfully present a case for disparate race discrimination, the employer then has the opportunity to state a “legitimate, nondiscriminatory” reason for its actions. White v. Duke Energy-Ky., Inc., 603 F. App’x 442, 446 (6th Cir. 2015) (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). This is not a difficult burden, and the employer just has to present a non-discriminatory reason.

Once the employer gives a non-discriminatory reason, the legal burden shifts back to the employee, who has “produce sufficient evidence from which a jury could reasonably reject [the employer’s] explanation of why it fired” the employee, which is legally referred to as proving pretext. Miles v. S. Cent. Hum. Res. Agency, 946 F.3d 883, 888 (6th Cir. 2020) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).

In Blount, the United States Court of Appeals for the Sixth Circuit held that the employee could not overcome his safety violation of a last chance agreement by nearly running over a coworker with a forklift:

Taylor stated that she observed Blount using his phone between 12:30 p.m. and 1:00 p.m. During this time period, Blount received a text and sent at least two messages. More generally, Blount’s phone records reflect numerous incoming and outgoing texts and calls during the workday, and Blount admitted sending “a lot” of texts during business hours at Stanley.

Stanley’s explanation for why it fired Blount is thus well-grounded in fact, and, in any event, at the pretext stage Blount “must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason.” See Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th Cir. 1998)). Blount puts forward no such evidence.

Id. at *6.

Best Lawyer Blogs On Point:

Do I have a race discrimination or wrongful termination claim against my job?

Best Racial Harassment Discrimination Lawyer Answer: Under Title VII, race discrimination in the workplace is unlawful and protects you from harassment and termination based on being African American. If you were wrongfully fired today because you are Black or disciplined more harshly than White  employees, you should consult an employee’s rights law firm. At Spitz, The Employee’s Law Firm, our race discrimination attorneys focus only on employee’s rights and will give you a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?Why Having Skilled Employment Attorneys Is Critical). Our Ohio, Michigan, Kentucky, and North Carolina race discrimination attorneys are ready for your call.


The race discrimination blog and this employment law website are strictly for informational purposes and not to give you legal advice. Individuals should consult wrongful termination lawyers regarding their personal situations by contacting an employees’ rights law attorney. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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