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Discrimination In The Workplace

On Behalf of | Sep 18, 2022 | Employment Law

To prove employment discrimination it is not enough for the employee to show that the disciplinary action he received was unfair or that the employer was wrong in finding that the employee had a performance problem which resulted in the disciplinary action. The employee must show that the employer took disciplinary action against the employee due to discriminatory animus. This issue was the subject of a United States Court of Appeal First for the Circuit decision of August 23, 2011 in the case of Espinal v. National Grid NE Holdings LLC.

In that case, Juan Espinal appealed an entry of summary judgment of the Massachusetts federal trial court in favor of his former employee, National Grid, in his employment race discrimination claim. The United States Court of Appeals for the First Circuit hears appeals from both New Hampshire and Massachusetts federal trial courts so therefore its decisions are important for employers and employees alike in both states.

Since December 2001, Espinal has worked as a Customer Meter Service Technician at National Grid and is currently a Senior Technician at the company’s Beverly, Massachusetts location. As such a technician, Espinal is responsible for investigating reported gas leaks while on duty and additionally once out of every four weeks he would be on call. In 2004, Espinal was twice disciplined for failing to respond to pages while on call. The Massachusetts Department of Public Utilities requires a National Grid to dispatch a trained employee to a reported gas leak within 60 minutes. National Grid’s employees are disciplined if they fail to respond to a page as to a gas leak when they are required to do. Espinal learned that another white employee had gone unpunished for failing to answer a gas leak page and claimed that showed National Grid discriminated against him in disciplining him with a 5-day suspension because of his Hispanic heritage. The white employee, when the information was brought to the attention of National Grid by Espinal, did receive a 5-day suspension and there was a distinction between the circumstances between Espinal and the white employee. In particular, there was no dispatch supervisor present when the white employee failed to return the page but there was when Espinal failed to answer his page. Because dispatch supervisors are tasked with establishing the employee for the missed page and preserving any relevant documentation, National Grid had to begin its investigation into the past event regarding white employee from scratch by collecting the night’s phone pager and dispatch records and interviewing all employees involved in order to establish good cause for any resulting suspension.

In this case, while Espinal argued that he had not received any of National Grid’s attempted communications on the night of the report of the gas leak, he was unable to prove that the decision-makers at National Grid who provided him with the 5-day suspension believed he had not received the notice but disciplined him anyway because he was Hispanic. To show discrimination under his claims, Espinal would have had to provide sufficient evidence that National Grid’s articulated reason for the disciplinary action was a pretext and that the true reason was discriminatory. The Court found that Espinal could not show sufficient facts to go to a jury on either points and therefore the case was dismissed.

This case is also a reminder to employers that some employees initiate a discrimination case even though the relatively small issue at stake, in this matter a 5-day suspension, appears not to justify a federal court battle. However, some employees may take such actions based upon principal and others may do so because they fear the employer’s discriminatory animus. The employee may believe the employer will try to find a way to fire the employee and the employee by actually bringing the discrimination lawsuit may further believe he will diminish that likelihood. That is because firing him after the discrimination claim was raised and pending could be the evidence that the employer was retaliating against the employee as a result of the discrimination claim that was filed. Thereafter the post-claim firing could put the employer at risk and the employer would be wary.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].