A sales associate for a gas station and convenience store could not hold his employer liable for disparate treatment after his hours were reduced when he returned from a medical leave, the 1st U.S. Circuit Court of Appeals has decided.

The defendant employer claimed that an extra employee had to be hired to cover the plaintiff’s shifts during his leave and that the new hire was kept on once the plaintiff returned to work, resulting in fewer hours for the plaintiff.

“Even assuming that this reduction for a non-regularly scheduled employee amounted to an adverse employment action for Title VII disparate treatment purposes, [the plaintiff] failed to provide sufficient evidence that [the defendant]’s proffered explanation was pretextual,” Chief Judge Sandra L. Lynch wrote for the unanimous three-judge panel.

The 24-page decision is Cham v. Station Operators, Inc.

Mark P. Gagliardi of Providence, R.I., represented the plaintiff. Neal J. McNamara, also of Providence, defended the employer.

Working hours

Plaintiff Ousman Cham, a Muslim and native of The Gambia, immigrated to the United States in 2000. He worked for the defendant, Station Operators, Inc. (a division of Exxon Mobil), from May 2003 to May 2005 at an Exxon Mobil gas station and convenience store in Smithfield, R.I.

The plaintiff was hired as a part-time hourly employee and shortly thereafter became full time on an hourly basis. He testified that he was regularly scheduled to work 40 hours a week once he became a full-time employee.

The undisputed testimony at trial was that no employee was entitled to any particular shift and that the plaintiff did not have a contract with Station Operators guaranteeing him any shifts or even 40 hours a week. Full benefits were provided at 32 hours a week.

In February 2004, Andrew Pelletier became the new assistant manager at the Smithfield store and was Cham’s supervisor. Pelletier took over scheduling responsibilities in September and became manager in December 2004.

The plaintiff claimed his hours began to be reduced when Pelletier took over scheduling.

On Jan. 17, 2005, the plaintiff was injured in a car accident. The next day he informed Pelletier that he was taking Family and Medical Leave Act time off from Jan. 18 to Feb. 15, 2005, due to a back injury sustained in the accident, on his doctor’s recommendation.

At some point during his leave, the plaintiff informed Pelletier that his leave would need to be extended until March 14, 2005.

When the plaintiff returned to work, he was consistently scheduled to work 32 hours a week, though his actual work hours fluctuated and sometimes he worked less than scheduled. The plaintiff claimed the reduction in scheduled hours was in retaliation for taking FMLA leave and in violation of Title VII.

The plaintiff quit his employment at Station Operators on May 20, 2005, two days after suffering a panic attack at work that sent him to a hospital emergency room for treatment.

The plaintiff eventually brought suit claiming disparate treatment under Title VII and retaliation under the FMLA. After dismissing the Title VII claims, a U.S. District Court judge submitted the FMLA retaliation to the jury, which returned a verdict in favor of the plaintiff.

The judge then granted the employer’s motion for a new trial. Only the FMLA retaliation claim was at issue in the second trial.

The jury returned a verdict for the employer on that claim.

Pretext not shown

On appeal, the plaintiff challenged the dismissal of his disparate treatment claims. His theory was that Pelletier permanently reduced his schedule from 40 hours to 32 hours during holiday weeks on account of race or national origin.

“Cham’s claim is based on the purported loss of three shifts during the weeks encompassing Labor Day, Thanksgiving, and Christmas,” Lynch observed. “Such a reduction simply does not rise to the level of an adverse employment action in the context of a workplace where schedules fluctuate and no employee is entitled to any given shift.”

The plaintiff also alleged that his schedule was reduced from 32 hours to 24 hours in mid-May 2005.

“Such a reduction for a single week is not an adverse employment action,” Lynch said. “There is no evidence that such a reduction was to last for longer than a week, nor that a one-week reduction would lead to a loss of benefits provided to full-time employees, such as health insurance.”

The court then addressed the plaintiff’s claim that his work schedule was reduced from 40 to 32 hours a week upon his return from FMLA leave.

“Cham’s theory is that he normally was scheduled to work, and did in fact work, five eight-hour shifts per week, but that upon returning from FMLA leave his Friday-night shift was taken away, reducing his scheduled hours to thirty-two per week,” Lynch noted.

“When Cham returned to work, Pelletier kept the new hire to cover some shifts, including the hours Cham complains about, and Pelletier testified that this hiring, rather than any racial animus, motivated the scheduling decisions,” Lynch said.

The 1st Circuit found no evidence of pretext.

“Pelletier, the supervisor Cham claims was racially motivated to reduce his hours after the FMLA leave, did not materially reduce Cham’s hours from September 2004, when Pelletier took charge of scheduling, to January 2005, just before Cham’s FMLA leave,” Lynch stated.

“Under Pelletier, Cham was the highest paid sales associate during the relevant time period,” she added. “Moreover, upon his returning from FMLA leave, Cham’s scheduled hours were equal to or greater than most of the other employees at the Station Operators location.”