How Not to Terminate an Employee

By Joe Murray

I don’t know if Waste Connections, Inc. (WCI) discriminated against Jimmy Haynes when it terminated him in October 2015, but I do know that it did just about everything wrong from an HR standpoint. Because Haynes had to use the McDonnell-Douglas framework to prove his case, those mistakes allowed the 4th Circuit to reverse an award of summary judgment in favor of WCI. Haynes v. Waste Connections, Inc., No. 17-2431 (4th Cir. April 23, 2019).[1] Ultimately, the 4th Circuit found that Haynes proffered sufficient evidence to identify a comparator employee, that he was performing at a satisfactory level, and that WCI’s reason for termination was pretext.

Haynes, who is black, worked for WCI as a driver of large front-end loader trucks. On a day he was scheduled to work, Haynes arrived two hours prior to his shift so he could (start and) finish his work early. Mechanics informed him that his regular truck was down for repairs and he would have to drive a replacement truck. Haynes alleged he then explained that he was sick and unable to work. A little while later, about 45 minutes before his shift started, Haynes texted his supervisor that he was sick and would not be able to work. The supervisor did not see the text until well after Haynes’ shift started, which resulted in WCI failing to pick up numerous customers’ garbage.

The following day, the supervisor spoke with the mechanics, who reported that Haynes seemed upset with the truck repairs and said, “Forget this” or “F*** this.” The supervisor then met with the district manager and HR and decided to terminate Haynes, which occurred the following day.

Comparator Employee Does Not Mean Identical

While there was a dispute as to the severity of Haynes’ work infractions, WCI issued two written warnings and a one-day suspension to Haynes based on three driving infractions in the two months prior to his termination. Haynes identified a white employee, Joe Hicks, as a comparator. Hicks worked under the same supervisor as Haynes; had several workplace infractions, several of which involved driving infractions; and yelled at the supervisor before quitting—and then was allowed to return to his job.

The district court found that Hicks was not a comparator since his infractions were not as serious and because Hick’s provided notice of his quitting while Haynes just walked off the job.[2] In reversing, the 4th Circuit noted that a difference in the severity of the infractions does not end the comparator analysis and in this case in particular the infractions were similar enough to justify Hicks as a comparator. Further, the 4th Circuit found that trying to distinguish Haynes walking off the job versus Hicks quitting—especially when Hicks yelled at a supervisor—was just splitting hairs.

Satisfactory Job Performance Doesn’t Equal Perfect Employee

While not a basis for the district court’s MSJ award, on appeal WCI argued that Haynes was not performing his job satisfactorily. WCI alleged that Haynes’ infractions showed he was not performing up to standards, that Haynes received lower bonuses than he could have earned due to poor performance, and that by walking off the job Haynes failed to adhere to company policy.

The 4th Circuit easily rejected WCI’s arguments. First, the 4th Circuit noted that a month before his termination Haynes’ supervisor assured him that everything looked good with Haynes’ upcoming performance review. Next the court stated that Haynes did not have to obtain the max bonus—be the “perfect or model employee”[3]—to show he was performing satisfactorily. Finally, the court found that there was a question of fact on whether Haynes’ text met WCI’s expectations since Haynes and his supervisor communicated by text.

Why did WCI Terminate Haynes?

When the supervisor terminated Haynes, he told Haynes the termination was for “job abandonment,” which the supervisor defined as “coming in and leaving.” However, company policy defined job abandonment as “three days, no call and no show.” Since the supervisor consulted with HR on the termination, the 4th Circuit found this inconsistency could support pretext.

In the termination paperwork, WCI stated Haynes’ termination was due to “violation of rules.” But, in conjunction with the supervisor’s misuse of job abandonment, the 4th Circuit noted that it was unclear what rules Haynes violated: WCI official policy or the supervisor’s rules?

Most importantly, the 4th Circuit found that WCI asserted for the first time during litigation that it terminated Haynes for “poor attitude.” Despite stating this change in reason was “perhaps” most important, the 4th Circuit doesn’t actually explain this finding—it simply made a one sentence assertion and moved on.

WCI’s reason(s) for terminating Haynes is where it lost this case. The failure to have a clear, consistent, supported reason for termination allowed the 4th Circuit to find that WCI’s reason for termination was pretext.

WCI Terminated Too Quickly

Again, I can’t say if WCI discriminated against Haynes; there are some facts in the district court’s award that are favorable to WCI, for example that the same supervisor hired Haynes and terminated him. But based on the facts alleged in the two opinions, I see a reoccurring problem on the employers’ side: an employment relationship that slowly frayed over time and then finally snapped. Once the relationship snapped, the focus on termination pushes aside all other considerations[4] that could prevent a lawsuit or at least allow the employer to successfully defend a lawsuit.