When Nice Guys Do Not Always Finish Last

On October 5, 2007, the Lucas County Court of Appeals affirmed the summary judgment dismissal of a race discrimination case on the grounds that the plaintiff could not show that he was qualified for his position or had been treated more harshly than his similarly situated white co-workers after he had been granted repeated instances of leniency which had not been extended to his co-workers. Isbell v. Johns Manville, Inc., 2007-Ohio-5355. For instance, even though he was found sleeping on duty on numerous occasions and refusing to wear protective gear, he was not formally disciplined because his brother had been very ill and eventually died. Other employees, however, were formally disciplined each time they were caught. The plaintiff had already grieved and lost the union arbitration to challenge his termination before pursuing his race discrimination claims in court.

This decision is also interesting for its discussion of the employer’s new disciplinary system:

“By 2002, Johns Manville had adopted, as an alternative -- and purportedly less punitive -- approach to resolving performance problems, a system known as "performance counseling".1 Performance counseling consists of three phases: Phase I involves clarification of the employer's expectations; Phase II involves obtaining the employee's commitment to change; and Phase III involves a decision by the employee as to whether or not he wishes to continue employment with the company.”

The employer explained how it had exhausted the disciplinary process with the plaintiff before it terminated him for repeatedly failing to meet agreed-upon expectations about staying awake at work, etc. At one point, the plaintiff had provided written assurances that "From this day forward I will wear the protective gear that is required” and, without admitted to sleeping on duty, that "I realize that whether I was sleeping or not, this is not what Johns Manville pays me to do." Unfortunately for him, however, he failed to comply with these assurarnces.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-5355.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.