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Suspension of ‘on call’ gas co. technician valid

Pretext assertion rejected by panel

A gas company technician of Hispanic heritage could be suspended for failing to respond to a gas leak while he was on call even though he denied receiving any of the company’s communications, the 1st U.S. Circuit Court of Appeals has decided.

The plaintiff employee argued that a reasonable jury could find the defendant company’s performance-based explanation for the suspension to be a pretext and that the real reason was discrimination against Hispanic employees.

But the 1st Circuit disagreed.

“Our task is limited to determining whether the employer ‘believe[d] in the accuracy of the reason given for the adverse employment action,’” Chief Judge Sandra L. Lynch wrote for the unanimous court. “There is no indication that [the defendant] believed plaintiff’s excuses for missing these communications yet nonetheless suspended him.”

The 14-page decision is Espinal v. National Grid NE Holdings 2, LLC, et al.

The employee was represented on appeal by Alex G. Philipson of Newton, Mass. David Joel Kerman of Boston argued for the employer.

Workplace troubles

Since December 2001, plaintiff Juan Espinal worked as a customer meter service technician, or CMST, at defendant National Grid NE Holdings 2, LLC.

As a CMST, the plaintiff was responsible for investigating reported gas leaks while on duty. Additionally, while on call one out of every four weeks, the plaintiff was required to respond to gas-leak pages from midnight to 8 a.m.

In 2004, the plaintiff was twice disciplined for failing to respond to pages while he was on call.

On March 17, 2004, he did not respond to a page at 6:25 a.m., and the employer was unable to dispatch an employee within the 60-minute timeframe required by state regulators. The plaintiff received a verbal warning from his supervisors on the same day.

On Sept. 1, 2004, the plaintiff did not respond to a page at 5:28 a.m. The dispatcher paged him a second time, contacted him via his Nextel phone and called his home phone number, all to no avail. After a disciplinary meeting on Sept. 3, the plaintiff received a five-day suspension.

On July 10, 2005, when a dispatcher mistakenly paged the plaintiff while he was not on call, the plaintiff suspected that another CMST had gone unpunished for failing to answer a gas-leak page and asked his union to obtain the “order details” — i.e., dispatch records — for that night.

The union requested the order details from National on July 19, 2005, to investigate “the potential subject of a grievance,” and received them on Aug. 25, 2005.

After reviewing the records, the union on Dec. 22 informed the company that a missed page had gone unpunished. The defendant initiated a full investigation.

That investigation was not completed until October 2006, approximately 10 months after the email from the union. The plaintiff alleged that the delay was caused by the company’s discriminatory practices, while the company claimed that it was attributable to scheduling conflicts, illnesses and other exigencies, including a union rule requiring a showing of “good cause” for any disciplinary action.

On the basis of the records and information collected, the defendant determined that Daniel Racki — a white CMST — had missed the July 10 page. On Nov. 6, 2006, Racki received a five-day suspension.

The plaintiff eventually filed suit in U.S. District Court claiming racially motivated disparate treatment, hostile work environment and retaliation. The defendant was awarded summary judgment.

No disparate treatment

The parties did not dispute that the defendant furnished a facially legitimate, non-discriminatory justification for disciplining the plaintiff — his failure to respond to the September 2004 on-call page.

The 1st Circuit accordingly turned to the issue of pretext.

The plaintiff maintained that his September 2004 suspension was improper and that the company treated Racki more favorably than the plaintiff following Racki’s failure to respond to a page.

From those premises, the plaintiff argued that a reasonable jury could find the defendant’s explanation for each to be a pretext and that the real reason was discrimination against Hispanic employees.

“Plaintiff’s disagreement with National’s reasons for disciplining him, on this record, does not allow inferences of pretext or discrimination,” Lynch responded. “In assessing whether an adverse employment decision is pretextual, we do ‘“not sit as a super-personnel department that reexamines an entity’s business decisions.”’”

The 1st Circuit found it beyond dispute that responding to on-call pages was part of the plaintiff’s duties as a CMST and that he failed to respond to two pages, a Nextel page and a home phone call on Sept. 1, 2004.

“Failure to respond to reported gas leaks, as his job required, is a serious matter, with considerable public safety ramifications,” Lynch said. “There was no pretext.”

The 1st Circuit went on to find no differential treatment, noting that Racki received an identical five-day suspension for failing to respond to a page.

“It is true that there were procedural differences,” Lynch acknowledged. “Espinal and Racki were not similarly situated in several important respects, which led directly to these procedural differences.”

The court pointed out that, unlike on the night on which the plaintiff missed a page, there was no “dispatch supervisor” present when Racki missed a page.

“Because dispatch supervisors are tasked with establishing the employee responsible for a missed page and preserving any relevant documentation, National had to begin its investigation into past events from scratch, collecting the night’s phone, pager, and dispatch records, and interviewing all involved employees, in order to establish good cause for any resulting suspension,” Lynch said.

The plaintiff did not argue that those procedures were also appropriate when, as in his case, a dispatch supervisor was present.

“Because these ‘“differentiating or mitigating circumstances … distinguish … the employer’s treatment”’ of its employees, … plaintiff’s evidence is insufficient to overcome summary judgment,” Lynch wrote.

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