Leave Management, Policy, and Compliance

10th Circuit: Was Unauthorized Absence Cause for Termination?

The U.S. 10th Circuit Court of Appeals—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—recently ruled in favor of Dillon Companies, Inc., a Kansas corporation that does business as King Soopers, in a lawsuit filed by a former grocery store employee who claimed he suffered a hostile work environment and was terminated because of race discrimination.

Kansas flag

Injured employee fired for refusing to return to work

“John,” an African-American male, worked as a produce clerk at King Soopers. After being injured by a coworker who deliberately slammed a cart into him, John was out of work for several weeks, during which time he was provided workers’ compensation benefits. The employee involved in the cart incident was terminated.

After returning from leave, John resumed working in the produce department, subject to a physician-imposed permanent lifting restriction of no more than 30 pounds. Given the physical requirements of the job and the permanent restriction placed on John, King Soopers later determined he could no longer continue working as a produce clerk and transferred him to a service desk job with lower pay.

In response to his transfer, John asked for but was denied a leave of absence because the store had a position available for him. After being scheduled to work the new service desk job, John called in sick 5 days in a row, violating company policy by not speaking to one of his managers. On the fifth absence, he called the store to report that he would be out sick the entire next week as well.

After John was absent for weeks without approved leave, King Soopers terminated him. He responded by filing a federal lawsuit alleging discrimination and retaliation for exercising his workers’ comp rights. He also filed a hostile work environment claim against King Soopers over the cart assault incident and for instances in which he claimed he was called an “African monkey,” an “African lion,” and a “lazy African” by a coworker.

Court’s decision

After the trial court found in favor of King Soopers, John appealed the decision to the 10th Circuit. With respect to the hostile work environment claim, the appeals court held that the coworker’s statements and actions against John likely would have been considered inflammatory enough to create an abusive working environment.

However, the statements couldn’t be considered for the hostile work environment claim because they occurred outside the maximum time in which John had to file this suit. The actions that occurred within the allowed time period, including King Sooper’s reclassification of Amam to a desk position because of his permanent medical restriction, were deemed by the appeals court to be neutral nondiscriminatory conduct on the part of the employer.

With respect to John’s discriminatory termination claim, the appeals court held that King Soopers established that he was legitimately fired for being absent without leave. John missed several weeks of work without his store manager’s approval, which was in violation of the company’s sick leave policy.  Aman v. Dillon Companies, Inc., No. 14-1461 (10th Cir., 4/15/16).


This case indicates how termination may be a reasonable option for an employer when an employee fails to appear for work for 2 weeks after being denied a leave of absence. However, employers must be cautious about actions that could be deemed discriminatory against employees.

Although transferring an employee to a service desk position because of medical restrictions will likely be seen as nondiscriminatory conduct, any inflammatory, discriminatory language against the employee could be considered evidence that the employer’s actions were motivated by race.

This article was edited by the attorneys of  Holland & Hart, LLP for the Wyoming Employment Law Letter.