Update: appeal of dismissed Black XPO employee succeeds, case can move forward

(Update: the story has been clarified to note that while defendant McGee was successful in part of her appeal, the judge’s decision moves her complaint back into the court system for further steps. It does not offer a final decision on her case).

Black plaintiffs with discrimination lawsuits against XPO Logistics went one for three in a recent federal court ruling appealing a lower court case where the company had successfully defended itself.

In the case in which one of the defendants prevailed against XPO, a woman who said she was dismissed over the issue of leaving work early due to a distinctly female problem – the unexpected start of her menstrual cycle that left her clothes stained – the court ruled she may have been discriminated against when she was dismissed in 2016. The ruling was handed down late last month.

The woman who prevailed against XPO is Katina McGee. Her case, along with those of fellow Black XPO employees Anthony Mann and Dana Moye, was heard on appeal in the U.S. Court of Appeals for the 10th Circuit, based in Denver before Judge Gregory Phillips. Judge Phillips upheld the summary judgment against the cases filed by Mann and Moye.

In accepting some of the argument of McGee, Judge Phillips said the case would be remanded back into the court system.

The three former XPO employees had filed separate suits against the company but had all worked at XPO’s facility in Kansas City, Kansas. The suits date back to 2016. The lower court pulled them together in one action toward the end of that year.

All three employees were what XPO refers to as Driver Sales Representatives (DSRs), a job that entails driving, inspecting vehicles and working on the XPO loading dock.

A lower court had granted summary judgement to XPO in March 2019, ruling that the three defendants “had failed to show that XPO’s proffered nondiscriminatory reasons for firing them were pretext for discrimination or retaliation.” The three former XPO employees also had failed to show “a causal connection between their protected activity and their terminations,” the court said, in summing up the lower court decision.

The case involving McGee, the sole female of the three, started in April 2016, when one of her managers found out that a male DSR did not want to partner with her on “extended service line runs” because of possible objections from his wife, especially since some of the runs could involve the team using the sleeper cab to rest. The male driver reported that to Maureen Mahr, a human resources official at XPO in Kansas City. Mahr and McGee’s manager decided not to partner her only with females for an extended run, according to the court document, but they didn’t tell McGee.

McGee found out about it, and went to Mahr who told her that she was already aware of the situation and had “rectified” it. But McGee filed a written statement to Mahr complaining of race and gender discrimination.

The day after filing the statement, McGee had her incident with her menstrual cycle and left work after two hours. She claimed in her original action that she sought to tell somebody from management that she was departing but couldn’t find anybody. Ultimately, she was fired for violating rules about unauthorized absences.

McGee argued that she did not violate company policy and that the rules were being applied differently to her because of race and gender. The court ultimately agreed.

Conflicting testimony from an HR staff member

The dismissal, Judge Phillips wrote, was contrary to XPO practice. For example, Phillips cites testimony from Mahr, the human resources representative, that “if somebody had an attendance issue, we would want to start with talking to them.” What would follow would be two “letters of instruction,” and if the problem persisted, dismissal would then ensue.

But Mahr had testified separately that violating the rule regarding unauthorized absences would “in most cases (be) recommended for termination.” “Because attendance issues appear to fall under both policies, Mahr’s testimony contradicts itself,” Phillips wrote.

McGee provided testimony to the court that other workers had violated the rule on unauthorized absences and not been dismissed, according to Judge Phillips’ decision. Those facts “call into question Mahr’s assertion that she normally terminated employees who left their workstation without authorization.” The court also cited the document recommending McGee’s termination that noted the dismissed worker had no previous disciplinary problems in her work career and that she had an “inherently female” excuse for leaving early.

Had XPO not been granted summary judgment and the trial would have proceeded to court, Judge Phillips wrote, “the record would allow a jury to find that XPO ignored its practice of not immediately firing employees who left work early and that this disparate treatment was driven by discrimination.”

The legal analysis firm of JD Supra wrote about the McGee case and said that the most important lesson to take away is for employers “not to abandon common sense during termination decisions.”

XPO dismissed McGee for one violation, and did so soon after she complained of discrimination in being essentially banned from team driving with men. XPO also ignored the fact that McGee tried to inform management of why she left early. “Courts and juries, made up of humans, will certainly consider these dynamics,” JD Supra wrote.

The other defendants did have employment records with issues, unlike McGee. In the case of Mann, co-workers complained that he used his race to “harass other drivers and safeguard his job.” The recap of his record includes improperly hooking a trailer and using his cellphone when he was not permitted to do so, including taking outside phone calls twice while meeting with human resources representatives to discuss his performance. There also were issues about his attendance. Like McGee’s complaints about violations not being treated equally, Mann makes the same allegation.

As for Moye, the issues with him involved discrepancies in his pay sheet and mileage book, as well as not informing XPO about a suspension of his CDL and his continuation of work during that time despite the suspension.

Judge Phillips, reviewing the case against Mann, acknowledges some differences in treatment but says that “not every difference in treatment will establish discriminatory intent” and that there can be “nondiscriminatory motive.”

As for Moye, Judge Phillips wrote that “we conclude there is not enough to create an issue of material fact for the jury” and affirmed the lower court’s dismissal.

John Kingston