Race Discrimination: Employer’s Poor Time Records, Documentation Could Cost Them

BY Steven L. Brenneman and WAKEUP CALL

Most people would agree that hospital food service is nothing to write home about. But a recent decision by the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin–involving a hospital food-services employee is worth noting because it reminds employers of the importance of accurate time records and consistently applied policies.

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Setting the table

Tina Gosey began working in 2008 as a chef’s assistant at Aurora Medical Center in Kenosha, Wisconsin. In September 2009, she applied for a promotion to food-services manager at the hospital. More than 150 other applicants also sought that open position. Aurora ultimately hired a white female for the job.

Gosey, who is black, believed she was denied the promotion because of her race. A few months later, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) over the denied promotion as well as allegations that the hospital was assigning her extra duties and imposing discipline for sham infractions. She even claimed that Aurora was altering her attendance records to manufacture an excuse to fire her.

Chopped

Gosey’s fears were realized when the hospital fired her two months later. She then filed another administrative charge followed by a lawsuit alleging she was denied the promotion because of her race and subjected to harassment and terminated because of her race and in retaliation for her initial EEOC charge. A district court judge entered judgment in favor of the hospital on all claims before trial. Gosey appealed.

The 7th Circuit had no quibble with the lower court’s dismissal of Gosey’s promotion and harassment claims. It was undisputed that Aurora hired a more qualified candidate for the manager job, and Gosey had no evidence that race played any role in the promotion decision. Nor had she introduced any evidence suggesting that the alleged harassment, if true, was based on her race. Therefore, her claims challenging the denied promotion and the alleged harassment will proceed no further.

Main course

However, the 7th Circuit had a different view of Gosey’s claims challenging her termination. Aurora had argued that it fired her for her chronic tardiness. To support its dismissal request before the lower court, the hospital submitted various records. It relied in part on its employee handbook, which stated that employees who are late four more times after being formally warned about tardiness are subject to dismissal.

It also tendered written warnings from Gosey’s personnel file indicating that she was tardy on July 5, July 20, August 17, and October 11, 2010. For good measure, the hospital argued that she had been tardy many more times between April and October 2010.

To establish Gosey’s alleged tardiness on any given day, Aurora relied on a “punch detail history,” i.e., a computerized printout of her clock-in times. But the hospital’s records weren’t all they were cooked up to be. For July 20 (a day Aurora claimed Gosey had arrived 27 minutes late), the punch detail history actually showed that she was scheduled to begin work at 5:30 a.m. and had clocked in at 5:27 a.m.

In other words, she was actually three minutes early that day. Similarly, the punch detail record for August 17 showed that she was scheduled to arrive at 5:15 a.m. and had clocked in at 5:11 a.m., four minutes before her scheduled start time.

Recipe for disaster

Although the district court acknowledged that Gosey had raised a material dispute about whether she had arrived late on July 20 and August 17, it reasoned that dispute did not matter. The lower court believed the evidence showed that she had arrived late on four other days: July 25, July 27, October 11, and October 15, 2010. However, of those dates, Aurora had cited only the October 11 infraction in its documentation of her discharge.

To further complicate matters, on eight of the other days she was supposedly tardy, Gosey’s punch detail history showed two different arrival times—one at or before her scheduled start time and the other after. Gosey submitted a sworn affidavit stating that it was impossible for her to swipe into Aurora’s attendance system a second time. Aurora produced no evidence establishing that she was indeed responsible for the second entry time. Had the hospital cooked the books?

Ordering off the menu

Perhaps most damning for Aurora, Gosey had submitted the deposition testimony of Debra Franckowiak, the hospital’s former chief officer of clinical services, who testified that employees in the food-services department were allowed a seven-minute informal grace period at the beginning of each shift. Aurora didn’t counter Franckowiak’s testimony. It merely relied on its employee handbook, which defines tardiness to mean logging in “to the attendance system after the employee’s scheduled start time.”

According to the 7th Circuit, Gosey had introduced enough evidence to establish that she was complying with Aurora’s attendance requirements. When accounting for the seven-minute grace period, a jury could reasonably conclude that she was on time three of the four days that Aurora cited as its only basis for firing her. Further, said the court, the unexplained dual arrival times for some days in the punch detail history raised an inference that the hospital had manipulated those entries.

In light of that evidence, the lower court erred in concluding that the legitimate reason for Gosey’s termination was beyond dispute. She will now get a chance to have her race and retaliation claims heard at trial. Gosey v. Aurora Medical Center, No. 13-3375 (7th Cir., Apr. 11, 2014).

Food for thought

According to Aurora, Gosey was habitually tardy and deserved to be terminated. If that’s true, why is the hospital now facing a jury trial in federal court? We offer the following tidbits for you to chew on:

  • Inaccurate documentation. The hospital’s punch detail history showed Gosey actually punched in early on some days that its termination records accused her of being tardy. The 7th Circuit was not impressed.
  • Inexplicable (suspicious) records. The dual swipe-in times on some of Aurora’s time records for Gosey also troubled the court. Gosey insisted it wasn’t possible for her to have swiped in twice, and Aurora had no explanation for the dual swipes. This caused the court to suspect the company had manipulated the entries.
  • Inconsistency. Although the hospital’s written handbook policy said one thing about tardiness, the sworn testimony by a former manager said another: Employees were allowed a seven-minute grace period. That undercut the “official” written policy and allowed Gosey to create a genuine dispute over whether she complied with the hospital’s attendance requirements.

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