Having well-written employment policies is a good thing, but it is only half the battle. If they are not enforced, they are like tools rusting away, unused in the garage. Worse, if they are enforced unevenly among employees, they can become tools of destruction. This was demonstrated rather starkly in Equal Employment Opportunity Commissioner v. Kohler Co., in which the 8th Circuit Court of Appeals reversed a summary judgment in favor of the employer because the employer failed to enforce its discliplinary policies uniformly.
The plaintiff, John Reynolds, was terminated on January 6, 1998, purportedly for not clocking in at the correct time. Reynolds was supposed to work from 7:00 a.m. until 3:30 p.m. However, at some point during his employment, he developed a habit of clocking in at 6:00 a.m. and clocking out at 2:30 p.m. Moreover, Reynolds testified that three other white male employees did the same thing.
Kohler's personnel policy did not permit clocking in and out at unauthorized times without a foreman's permission. However, the court concluded that Kohler "instituted, retracted, enforced, and ignored other such policies over the years. As a result, employees and managers were, at times, unclear about the state of the company's policies."
In December 1997 Kohler's human resources director met with Reynolds to discuss his clocking in and out early. Reynolds, who is black, admitted that he had done so, but he informed the human resources director that white employees were doing the same thing. Reynolds did not provide the names of those employees, and the human resources director did not investigate his allegations. Over the following month, the human resources director and Reynolds' direct supervisor reviewed Reynolds' time cards to observe his clock-in and clock-out activities. They also reviewed a white employee's time cards and found that his clocking activities were substantially similar to Reynolds. However, they did not question the white employee about modifying his shift; this employee also happened to be the son of the plant manager.
Shortly thereafter, on January 6, 1998, the human resources director recommended that Reynolds be terminated. Kohler did terminate Reynolds, but never investigated whether the white employee was doing the same thing that Reynolds was doing. Furthermore, the human resources director testified that although the white employee's time card showed the same hours as Reynolds - so much so that it prompted Kohler to accuse Reynolds of clocking in and out for the white employee - neither the human resources director nor Kohler questioned the white employee about the oddity or investigated whether he was working his full eight hour shift.
In a later jury trial, the jury found in favor of Kohler on the underlying discrimination claim, but against Kohler on the retaliation claim and awarded Reynolds $40,000.00 in compensatory damages and $50,000.00 in punitive damages. The court later granted Kohler a motion for judgment as a matter of law and overturned the jury's verdict on retaliation.
The EEOC argued on appeal that the proximity of Reynolds' complaint of discrimination in relation to his termination coupled with Kohler's inconsistent enforcement of its policies and use of disciplinary actions established facts from which a jury could have drawn the conclusion that Kohler retaliated against Reynolds. The appeals court agreed. The court found the fact that Kohler disciplined Reynolds disproportionately to other employees who violated company policies, such as failing to have their foreperson sign their time cards or clocking in and out at odd hours, supported the conclusion that Reynolds' termination for violating Kohler's clock-in policies was a pretext for retaliating against him. In fact, the EEOC offered evidence that four other Kohler employees violated similar policies and either were not disciplined or were disciplined with less severity. As the Court noted, "Kohler's lax enforcement of company policies and employee discipline, however, undermines its reasons for Reynolds discipline and termination."
This case is a cautionary tale for employers who believe they have caught an employee "hands down" in a violation of company policy and are ready to terminate. Note that Reynolds candidly admitted that he violated Kohler's policy. Even so, an employer must still be careful to discipline policy violations uniformly, i.e., do not terminate someone for something you only gave a verbal warning about previously. The Eighth Circuit covers South Dakota, North Dakota, Nebraska, Missouri, Minnesota, Iowa and Arkansas.
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