As this blog has consistently noted in the past, one of the most effective ways to combat unfounded allegations in the workplace is diligent record-keeping. Many employers have “point-based” disciplinary policies in which certain violations earn an employee points that are reflected in their personnel record. Once an employee reaches a certain level of points, consequences may arise – including suspension or termination. In Price v. Valvoline, the Fifth Circuit recently considered a point system and the employer’s vigilant documentation seemed to rule the day.
Show Up or Get Written Up
Valvoline had a progressive discipline policy that gave employees “points” for problems with attendance. Unexcused absences (with a few exceptions) would generate a certain number of points that were recorded in the employee’s file. The more points an employee earned in a year-long period, the more progressive the discipline: verbal warning, written warning, suspension and termination.
The plaintiff, Craig Price, was a loader at a Valvoline plant in Texas. In 2019, he earned enough attendance points to merit a verbal warning. Along with that verbal warning, Price signed a document acknowledging that further attendance issues would “result in further disciplinary action, up to and including termination.” In 2020, Price continued to accumulate points and received a written warning –again with a signed acknowledgment of the progressive discipline policy. Later that same year, he got more points and received a three-day suspension – again accompanied by a signed acknowledgment. Finally, in October 2020, he had another unexcused absence, was assessed another point, and was terminated pursuant to the attendance policy.
Allegations of Discrimination — Not So Fast, Says the Lower Court
In November 2021, Price filed a race discrimination case, claiming Valvoline supervisors and other members of management had made racially discriminatory remarks. Those allegations included a supposed comment from the plant manager that he wanted “more diversity in the workplace,” implying that they needed fewer black employees in the plant.
The trial court granted summary judgment to Valvoline. It found that the alleged comments presented by Price were “stray remarks” and did not show direct evidence of race-based discrimination. The court also noted that Price had not identified any similarly situated non-black employee that was treated differently under the disciplinary policy.
Fifth Circuit: There Were Enough Points
On appeal, the Fifth Circuit started by showing that a plaintiff in a race discrimination case can rely on direct or circumstantial evidence, or both. However, the court felt that it didn’t even have to go there. The opinion said that it was clear that Price was fired for his repeated violation of Valvoline’s attendance policy. Price knew how that policy worked and did not really contest that he was terminated for that reason. The Fifth Circuit plainly said that a “violation of a company’s attendance policy is a valid, non-discriminatory reason for termination.”
Documentation, Documentation, Documentation
This case is another great example of the importance of written employee reviews, disciplinary reports and interview notes. It certainly was not lost on the Fifth Circuit or the trial court that the employer not only specifically followed its attendance policy, but that it had documents that reflected that compliance and were acknowledged by the employee. Many supervisors and HR workers, especially in the South, hate to “say anything bad about anybody.” If an employee is not meeting expectations or is violating your company directives, it is essential that you document that problem. Otherwise, you hamstring your lawyers later when you want to defend a non-discriminatory decision.
