UPS retaliatory discharge case will go to jury

In Kansas, an employer cannot defeat a worker's retaliation claim by merely alleging the worker's poor job performance precludes him from establishing a causal connection.

Case name: Scheffler v. United Parcel Service, Inc., No. 08-2648-JWL (D. Kan. 01/29/10).

Ruling: The U.S. District Court, District of Kansas denied the United Parcel Service's motion for summary judgment, finding the employee presented sufficient evidence to go to a jury concerning whether his termination was retaliatory.

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What it means: In Kansas, an employer cannot defeat a worker's retaliation claim by merely alleging the worker's poor job performance precludes him from establishing a causal connection.

Summary: A UPS driver alleged he was terminated in retaliation for pursuing a workers' compensation claim. The UPS argued his termination was based on the culmination of his escalating performance-related problems. It argued the driver could not establish a causal connection between his protected activity or injury and its decision to terminate him in light of its overwhelming evidence that his termination was pursuant to its progressive disciplinary policy. It further argued he could not show that its reasons for terminating him were pretext. The District Court rejected the UPS' arguments. It noted the Kansas Supreme Court expressly rejected the company's reasoning that poor job performance precludes a worker from establishing a causal connection in a retaliation claim. The court pointed out that the timing between his two injuries and the UPS' numerous termination attempts suggested a retaliatory motive, noting that at one point the UPS terminated him no less than four times in eight days. The court also concluded that the driver presented specific facts establishing a triable issue as to whether the UPS' reasons for terminating him were pretext for retaliatory discharge.

The driver presented evidence that he was treated more harshly than other drivers for committing certain infractions that the UPS conceded were not serious. He also pointed out that while one termination was pending, the highest-ranking supervisor conducted an on-area observation of him and terminated him based on his performance, even though the supervisor rated him 90 percent safe. The driver pointed out that typically the on-area observations are conducted by on-road supervisors, not high-level supervisors. The UPS union steward also testified it was "out of the ordinary" for the highest-ranking supervisor to conduct an on-area observation and said he not aware of any other time when the supervisor had participated in such an observation of a driver.

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March 15, 2010

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