Diversity & Inclusion

10th Circuit Shows How to Handle Gender Bias Claims

An employer that terminated a female employee who left work early to attend to what an appeals court called an “inherently female” emergency situation must face a jury trial on a gender discrimination claim.



Anthony Mann, Dana Moye, and Katina McGee, former employees of XPO Logistics Freight, Inc., all contended their former employer had fired them for discriminatory and retaliatory reasons. They sued, and the federal trial court in Kansas granted XPO’s request for summary judgment (dismissal without a trial) with regard to all three. The U.S. 10th Circuit Court of Appeals, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, however, reversed the grant of summary judgment with regard to McGee.

XPO is a company that provides logistics and transportation services throughout the United States. McGee, an African-American woman, began her employment with XPO in 2013 as a driver sales representative. As part of her job, she worked on a “flex” team of drivers that drove extended service routes, which involved the transport of freight over long distances by teams of two. On nights where there wasn’t enough shipping volume to warrant a run, the drivers would perform dock work instead.

In April 2016, a male driver informed his manager he didn’t want to drive extended services routes with McGee because his wife wouldn’t be comfortable with him working closely with a woman. On April 19, McGee reported the issue to Maureen Mahr, an HR generalist at XPO’s Kansas City location, saying the driver’s request not to work with her made her feel discriminated against because of her race and gender. Although Mahr told the male driver’s manager he would have to work with a female driver if she was up for the spot, Mahr did not prepare a report on the issue or counsel or discipline the male driver.

On April 20, McGee clocked into work as usual. She didn’t have a run scheduled that night, so she was performing dock work. She clocked out and left work 2 hours later, though, after she realized she had started her period unexpectedly and ruined her pants. Although she looked to inform someone in management that she was leaving, she couldn’t find anyone and left anyway. She alleged that she tried calling management when she got home but didn’t reach anyone.

Early the following morning, McGee called and spoke to both her supervisor and the service center manager about having left work early the previous day. Later the same day, Mahr learned she had left work without approval and spoke with her about the incident. The next day, Mahr recommended she be terminated for leaving work early without permission.

Court’s Decision

At the trial court, XPO requested summary judgment on McGee’s claims of gender discrimination and retaliation. It claimed it terminated her for job abandonment because she had left work before her shift was over without notifying management. She claimed this reason was a pretext (excuse) for gender discrimination and/or retaliation.

With regard to McGee’s discrimination claim, the 10th Circuit reversed the lower court, finding there was sufficient evidence to create a jury issue about whether the termination was pretext for discrimination.

First, XPO’s attendance policy provided an explicit disciplinary process requiring an employee to accrue six “attendance events” in a rolling 12-month period to be subject to termination. McGee’s instance of leaving work early was a single attendance event, which would not lead to termination under the policy. Although another policy forbid employees from leaving their workstation without authorization, the inconsistency of the two policies opened the door for questions about what policy applied to McGee’s situation.

Furthermore, McGee presented evidence that three male employees, in separate instances, had also left their shifts early without permission and received only warnings or reminders to comply with policy. One of the male employees, in fact, continued to leave work early without permission, on top of other attendance problems, and wasn’t terminated. On the other hand, McGee had no other discipline during her entire employment.

Although XPO did produce evidence of white men it had fired for leaving work early, they may have had previous discipline, and none of them left work for a similar reason to McGee. The 10th Circuit was persuaded that McGee’s menstruation situation was “an emergency,” as well as an “inherently female excuse for leaving early,” thus further distinguishing her situation from the men who had also been terminated for leaving early. The 10th Circuit found she was entitled to present her discrimination claim to a jury.

McGee also made a separate retaliation claim, alleging XPO terminated her in retaliation for her race and gender discrimination complaint, made just 3 days before her termination. The 10th Circuit reversed the grant of summary judgment on this claim as well.

In addition to the evidence of pretext McGee had presented, the appeals court noted the close temporal proximity between the complaint and the termination and that the person who recommended McGee’s termination (Mahr) was also the person who took the complaint. The 10th Circuit found McGee was entitled to present her retaliation claim to a jury, too. Mann v. XPO Logistics Freight, Inc., No. 19-3085 (10th Cir., June 19, 2020).

Reminder for Employers

This case offers several good lessons for employers. XPO had a policy supporting its reason for termination. Unfortunately, it also had a policy that didn’t support its reason. Directly contradictory and inconsistent policies are not only confusing to employees but are also unhelpful evidence in a lawsuit. Even worse, the company hadn’t followed its policies consistently, allowing some employees to get away with multiple violations without being terminated but firing McGee after a single violation.

Perhaps most importantly, the case is a good reminder to employers not to abandon common sense during termination decisions. XPO fired McGee for a single attendance violation only 3 days after she complained of discrimination.

It also ignored several mitigating factors for her leaving work early, including that she attempted to notify management before she left, she had a good reason for leaving work, and she called in early the next morning to explain the situation. Courts and juries, made up of humans, will certainly consider such dynamics.

Elizabeth Bowersox is an attorney in McAfee & Taft’s Oklahoma City, Oklahoma, office. She may be reached at elizabeth.bowersox@mcafeetaft.com.

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