Divided Franklin County Court of Appeals Finds Noose By Itself to Be Sufficiently Severe for Hostile Work Environment

Last week, a divided Franklin County Court of Appeals reversed an employer’s summary judgment on racially hostile work environment and retaliation claims.  Croley v. JDM Servs., L.L.C., 2025-Ohio-4762.  The Court found that the existence of a noose in a vehicle temporarily assigned to a new African-American employee on his second day of work by itself – without any racial comments or other  evidence – was sufficient to create a jury question whether it was intended to harass and intimidate him on account of his race.  Similarly, the later spontaneous shattering of  his assigned vehicle’s windshield – with a pre-existing hole in it – was also sufficient to create a jury question whether it had been shot out without any other evidence of a gun or bullet fragment.  Finally, the employer’s termination of the employee for refusing to permit a sample to be taken from the noose to compare to other rope on the worksite during its investigation of his allegations was found create a jury question of retaliation when the employer had not already gathered rope samples before the employee’s refusal based on his mistrust of the employer.  The Court conceded that there was sufficient holes in the plaintiff's case for a jury to rule in favor of the employer, but felt that the jury should make the decision instead of the trial court. 

According to the Court’s opinion, the plaintiff was hired on January 10 by the employer’s General Manager and began work on January 13. On January 14, the GM directed that the plaintiff be trained on the compacter, which he was by two different employees.  During a ride on the compacter, he grabbed a rope for stability, but did not find it helpful.  Later, while alone in the compactor, he realized that the rope was a noose hung from the rearview mirror and it made him extremely fearful.  He took the noose and hung it from the door of the employee trailer.   That night, he reported it to the employment agency and the next day, January 15, the GM questioned him about it, reiterated that the employer does not tolerate discrimination and commenced an investigation.  The plaintiff put the noose in his truck for safekeeping and refused to turn it over to the employer, although he did let them see it and inspect it.  The following week, the windshield of the vehicle he was operating had a small hole in it and then spontaneously shattered while he was in it.   He believed that the windshield had been shot out by a gun and saw the GM’s vehicle parked up the hill.   A few days later, he was again requested for the noose or a piece of it so that it could be compared to other rope at the work site during the employer’s investigation.  While he allowed the noose to be inspected in his presence, he again refused to turn it over or permit a sample to be taken and was fired for insubordination for impeding the investigation.

After the plaintiff was terminated, the owner reported him for making criminal threats against a co-worker, but the co-worker told the police that he did not feel threatened and nothing came of it.  The employee filed suit in October.  The trial court granted summary judgment to the employer on the discrimination, harassment and retaliation claims.  The Court of Appeals reversed the harassment and retaliation claims, finding sufficient evidence for a reasonable jury to evaluate.

While the Court’s majority conceded that many courts would not find the noose incident – by itself – to constitute a hostile work environment, it disagreed:

The noose is a symbol of this nation’s violent legacy against African Americans and brings them “ ‘the grim specter of racially motivated violence’ that continues today.”  . . . . The noose is “among the most repugnant of all racist symbols, because it is itself an instrument of violence.”

Historically, the noose is forever “linked to lynching, the Ku Klux Klan (“KKK”), and the murdering of thousands of African-Americans.” . . .

 . . . .

 . . . For the reasons above, we conclude the act of hanging a noose on the mirror of an African American’s vehicle is undoubtedly an unwelcome form of harassment based on race.

 . . . .

 . . .  The question becomes whether the act of hanging a noose on the vehicle assigned to an African American male, on his second day of work at the facility, is severe enough conduct to support a hostile work environment claim. We unequivocally answer this question in the affirmative.

 . . . .

 . . . Even in cases where the noose does not appear directed at a particular individual, given the noose’s dark legacy, a reasonable African American employee could be forever altered by such a visceral symbol in the workplace. African Americans who observe such a heinous symbol should not be required to explain the violent history of the noose and how it can invoke fear and anxiety. The threat of a noose is self-evident.3

The Court also believed that the window spontaneously shattering while the plaintiff was inside could also be considered by a jury as evidence of harassment even though no shell casings or bb or pellet was found afterwards that might have explained why it shattered.  It also rejected the employer’s explanation that windshields periodically shatter at the worksite because of the regular vibrations.

As the window incident occurred only a week after the display of the noose, we find, considering the evidence in a light most in favor of the nonmoving party, the incident amounts to threatening conduct that indicates a willingness to act on the statement made by the noose incident. Because the window incident amounts to a physical threat of violence, the implicit threat from the noose is heightened and, based on the close sequence of events, could reasonably be construed to have a racial animus. Finally, there is a dispute of fact as to liability as [the plaintiff] claims that [the GM’s] vehicle was in the immediate vicinity when the glass shattered.

The dissent, realizing that nooses exist for reasons other than lynching, required more evidence than the bare existence of a noose:

The dissent contends that “[o]ther than the noose, there are no credible allegations of any race-based comments or other activity involving race. The noose is not connected to any threatening intent or racial animus by [the employer].”

 . . . .

 . . . At this phase of the case, however, we are limited to determining whether a dispute of fact exists for trial. Given the line of cases that have found that the single display of a noose in the workplace can create a hostile work environment, we find it is the province of the jury to determine whether the alleged conduct in this case is severe or pervasive enough to demonstrate a hostile work environment claim. What the dissent proposes is that, as a matter of law, leaving a noose in the vehicle of an African American male does not constitute a severe enough act, without more, to create a hostile work environment. In good conscience, we cannot support such an approach. While a jury could very well find that the alleged incident was not severe enough conduct to create a hostile work environment claim, the argument that hanging a noose in the excavator that [the plaintiff] was assigned to operate could not, as a matter of law, sufficiently alter the conditions of employment for an African American is untenable.

The Court then found that the employer could be held liable for the noose incident because it was alleged (without any evidence) that the GM had put it there since he was the individual who had assigned the plaintiff to that vehicle on that date.   The Court refused to credit the employer with conducting an investigation – despite its employee interviews – because it had delayed a few hours in retrieving and safeguarding the noose and had not gathered rope samples before firing the plaintiff for refusing to permit a sample to be taken.

It is the province of the jury to resolve whether the [the employer] took reasonable steps to correct the alleged behavior. Furthermore, there is a dispute of fact whether [the plaintiff] unreasonably failed to take advantage of any preventative or corrective opportunities that the employer provided. The [employer] commenced an investigation into the matter and met with [the plaintiff]. [He] agreed to show them the noose but refused to leave the noose or allow it to be cut for comparison with other rope at the worksite. [He]  explained that he did not feel comfortable turning over the noose or allowing them to cut a piece of it because he did not trust [the owner]. It is for the jury to resolve these factual disputes.

The Court rejected certain evidence submitted by the plaintiff to support his hostile work environment claim because he was unaware of the incidents until after he had been fired.  For example, he had been written up (without his knowledge) for improper operation of certain equipment.  They also rejected the police report as part of this claim because it happened after his termination.  ““ ‘Plaintiff cannot use events that happened after his termination to support his hostile work environment claim.’ ”

The Court also concluded that he had produced sufficient evidence that his termination was retaliatory for complaining about the noose incident.   While generally employees may be terminated for refusing to cooperate with a workplace investigation, there are exceptions and the Court found the plaintiff’s distrust of his employer to be sufficiently protected conduct in this situation to let a jury decide whether his distrust was justified and protected.

Considering the evidence in a light most favorable to [the plaintiff], a jury could reasonably determine that turning over evidence to a supervisor you do not trust, or allowing that evidence to be damaged, is a reasonable nonparticipation in the investigative process. This interpretation is bolstered by the fact that when [he] initially informed [the GM] of the noose’s location outside the employee trailer, [the GM] failed to [immediately] retrieve and secure the noose. Furthermore, [the plaintiff], despite his trepidations, repeatedly allowed the noose to be inspected. A jury could reasonably believe [his] explanation that his claim could be hindered if the noose was damaged or not be properly preserved. Conversely, the [employer] have represented that they wanted the noose to aid in the investigation. Given the accusation at issue, there is at least a dispute of fact that [his] fears were justified.

In addition, the plaintiff met several times with the employer and answered their questions.  His only refusal concerned preservation of the integrity and safekeeping of the noose.  Moreover, his termination came only days after his protected conduct in reporting the alleged harassment.

We find that the [the employer] have provided a legitimate, nonretaliatory reason for terminating [his] employment. A reasonable jury could find that failure to turn over the noose, or allow it to be cut, unreasonably impeded the investigation providing a legitimate reason for termination.

The Court then required the plaintiff to show that the employer’s explanation was pretext for retaliation.

[The plaintiff] can demonstrate pretext by introducing evidence that he provided the noose on multiple occasions to further the investigation. [He] had also previously allowed [the GM] to take the noose when he left it outside the employee trailer. [The owner] had not collected any samples of rope from around the worksite to compare it with the noose, did not offer to keep the noose in a neutral location, and never called law enforcement to report the incident.  .. . .  A jury could reasonably believe [the plaintiff’s] explanation for not wanting to turn the noose over to the appellees or allow them to cut a portion of the noose.

There was no discussion in the Court’s retaliation opinion about post-termination conduct of the employer in reporting the plaintiff for alleged criminal threats.  There was also no discussion of the same-actor inference since the alleged harasser was also the same individual who hired him only days earlier.  There was no also discussion of the racial composition of the workforce, which might have put more context in the plaintiff’s paranoia.

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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Dismissal of Racial Harassment Claim Where Black Supervisor Called Plaintiffs Monkey A--.

Last week, the Sixth Circuit reversed an employer’s summary judgment on a racial harassment claim brought by two former truck drivers.   Smith v. P.A.M. Transport, Inc. , No. 24-5549 (6^th Cir. 9-25-25).   The  Court found that calling the plaintiffs “monkey a__” or ANY derivative of monkey was as racially derogatory as the n-word, even if it was mostly used against them by their black supervisor.   It also refused to find problems with whether black and African-American can be used interchangeably for evidentiary purposes when comparing the plaintiffs to “white” employees.   It rejected the employers’ evidence for an affirmative defense at the summary judgment stage concerning whether it took reasonable steps to prevent harassment when it promulgated an anti-harassment policy without evidence that it was effectively enforced or followed up with management training.  The Court’s majority also found sufficient evidence of comparative treatment to sustain the disparate treatment allegations. 

According to the Court’s decision, the plaintiff truck drivers both worked out of the Nashville terminal and alleged that they were paid a day rate, but were required to drive more hours and miles per week and in damaged trucks than their white counterparts.   One was fired after two negative performance evaluations, but without prior disciplinary warning.  Both alleged that they were “regularly” called “money a__” by their black supervisor, who was otherwise respectful in communicating with white truck drivers.  They alleged that their supervisor threatened to withhold pay or fire them and regularly demeaned them.  They alleged that they complained with “liaisons” about the mistreatment, but that nothing was done to rectify or stop it.    Their supervisor reported to a white manager.   Both sued under  Title VII and Section 1981.   The trial court granted the employer summary judgment on the grounds that they had failed to produce sufficient evidence of a racially hostile work environment or disparate treatment. 

The Court rejected the district court’s conclusion that derivatives of “monkey” were not plainly racist.

We have recognized that, “[g]iven the history of racial stereotypes against African-Americans and the prevalent one of African-Americans as animals or monkeys, it is [] reasonable—perhaps even [] obvious”—to conclude that the invocation of the term “monkey” against an African American is “intended [as a] racial insult.” . . .

Consequently, circuit courts, including our circuit, have overwhelmingly held that the use of the term “monkey” against an African American employee constitutes evidence of race-based harassment sufficient to support a hostile work environment claim. For example, we have found evidence of racial harassment where, among other things, African American firefighters were assigned to workstations labeled “Monkey Island.” . . .

 . . .

 . . . The term “monkey” and its derivatives, while not overtly racial in isolation, have a long and well-understood history as racial slurs when directed at African Americans.  . . . . In this case, two African American plaintiffs have testified that their supervisors directly and repeatedly called them “monkey” and “monkey ass.” The use of the terms in that context raises a reasonable “inference of discrimination on the basis of” race.  . . . . That suffices to show race-based harassment at the summary judgment stage. The district court’s determination that Plaintiffs’ testimony about the use of these terms does not constitute “evidence of the use of race-specific and derogatory terms,” therefore, was plainly incorrect.

The Court rejected as “frivolous” the argument that being called “money a__” was somehow not racist when being called monkey was inherently racist.

[The employer] offers no reason—and we can think of none—as to why the addition of the word “ass” somehow obviates the racialized nature of the term “monkey.” To the contrary, the “use of the term ‘monkey’ or derivative terms” against African Americans constitutes compelling evidence of racial harassment.  . . .  Simply put, there is no meaningful difference between the terms “monkey” and “monkey ass” when used by a supervisor against an African American employee, as alleged here.

The Court rejected the district court’s conclusion that the racist nature of the term was reduced because the speaker was also African-American.  Just as there can be same-sex harassment, there can be same-race harassment.

To be sure, in some contexts, the fact that the alleged perpetrator is within the same protected class as the alleged victim may be material. But on this record, we see no fact or reason why [the supervisor’s] race undermines the conclusion that a reasonable jury could find his (and his supervisor’s) alleged use of “monkey” and “monkey ass” to be racially derogatory.

The Court also rejected the argument that the plaintiffs were required to prove that the terms were not used against white employees.

The Court also rejected as “deeply flawed” the district court’s conclusion that African-American and “black” could not be used interchangeably, meaning that the African-American plaintiffs failed to carry their burden of proof by comparing themselves to “white” employees, who could also be African-American. 

This reasoning is deeply flawed. It starts from the erroneous premise that “African American” and “Black”—and, in turn, “non-African American” and “white”—are rigid categories of identity that can never be used interchangeably. Contrary to that assumption, our Title VII jurisprudence on race discrimination governs, and we have often used “African American” and “Black” interchangeably and compared “African Americans” with “whites.” . . . . The district court attempted to justify its additional evidentiary requirements by pointing to Title VII’s prohibition on discrimination based on skin color, reasoning that “discrimination based on color is distinct from discrimination based on race.”  . . . . But that distinction does not obviate our well-established caselaw recognizing “Black” and “white” as racial identities.

By relying on this narrow conception of racial identity, unadorned by legal precedent, the district court effectively imposed a heightened burden on Plaintiffs beyond what Title VII, § 1981, and the THRA require. Our circuit has never held that a plaintiff must proffer evidence of a comparator’s racial self-identification or genetic composition to survive judgment in a Title VII case. To the contrary, we have routinely accepted, at summary judgment, plaintiff testimony of disparate, race-based treatment grounded in experience and perception. . . .

The Court’s majority also found sufficient evidence of disparate treatment to also support the claims of racially harassment. 

“[F]acially neutral abusive conduct can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”   . . . . Here, given the alleged use of racial slurs by [the supervisor and manager], a reasonable jury could infer that the accompanying (purportedly race-neutral) verbal abuse by both individuals was, in fact, also racially motivated, without regard to Plaintiffs’ testimony that non-African Americans received more favorable treatment.

The Court also rejected the district court conclusion that the evidence was insufficient to show a severe or pervasive ractially hostile work environment.

Our governing precedent, however, requires evaluation of the work environment as a whole, including the broader context in which the terms “monkey” and “monkey ass” were allegedly used.  . . . . As noted, facially neutral abusive conduct, such as screaming, cursing, and threatening, “can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”  . . .  By refusing to consider the use of the slurs in conjunction with the accompanying verbal abuse (or, for that matter, the unfavorable employment-related treatment) when assessing severity and pervasiveness, the district court relied on an incomplete picture of the harassment that Plaintiffs allegedly experienced.

 . . .

 . . . our circuit has recognized that even a single incident of racial harassment, including the use of an egregious racial slur like the n-word, “may be so severe as to constitute a hostile work environment.” . . .  Like the n-word, the term “monkey” is “odious” and “degrading and humiliating in the extreme” when used as an insult against African Americans.  . . . . That is particularly true in this case, where [the plaintiffs] were purportedly called the term directly by their supervisors. The utterance of a slur by a manager “greatly increase[s] its severity,” and “harassment will be more severe if offensive comments were directed at a plaintiff.”

 . . . .

  . . .  [The plaintiffs] testified that they were directly called “monkey” and “monkey ass” by their supervisors on multiple occasions over time. Plaintiffs have also proffered evidence that, at least with respect to [one plaintiff], the term “monkey ass” was used in an overtly threatening manner. For example, [he] testified that [his supervisor] once told him, “you’re going to get your monkey A-S-S out there and do the job or . . . I’m going to write you up.”  . . . . Even standing alone, the evidence of these race-specific and derogatory terms very likely suffices to show severe or pervasive racial harassment.

We do not rely on the use of the slurs alone, however, because our governing cases require consideration of the totality of the circumstances in hostile work environment cases.  . . . . As discussed, [the plaintiffs] testified not only that they were directly called egregious, degrading, and humiliating racial slurs by their supervisors on several occasions, but also that they were subjected to sustained verbal use, in the form of threats, demeaning criticism, cursing, and screaming, while non-African American TRR drivers were spared from that same abuse. Plaintiffs also testified that they were consistently forced to work longer hours, drive lengthier routes with longer wait times, and use damaged trucks, unlike their non-African American counterparts. And both testified that the harassment caused them significant anxiety and diminished morale, which made it more difficult to drive on the road.

Viewing the totality of the record in the light most favorable to Plaintiffs, as we must, we conclude that a “reasonable person would have found [their work environment] hostile [and] abusive.” Id. at 309. In turn, a reasonable jury could find, from the totality of the evidence, that [they] were subjected to recurring, severe, and humiliating racial harassment that unreasonably interfered with their employment.

The Court also found sufficient evidence of employer vicarious liability because the employer failed to produce sufficient evidence to support its affirmative defense. 

While the employer points to the fact that it gave [the plaintiffs] a copy of its Anti-Discrimination and Harassment Policy, our caselaw makes clear that the existence and provision of a harassment policy alone are insufficient to show “reasonable care to prevent and correct promptly any racially harassing behavior.” . . . An employer must also show that the policy was reasonable and “effective in practice.”  . . .  [The employer] points to no evidence, and does not even attempt to argue, that it had an effective policy. It makes no mention of the policy’s “requirements” on supervisors or the “training regarding the policy”— both of which are baseline requirements for establishing the existence of a reasonable harassment policy. Id. at 349-50. The record also does not show that [the employer] took reasonable care to promptly correct the alleged harassment. To the contrary, Plaintiffs have testified that they placed [the employer] on notice of the harassment by reporting it to management-level employees, and P[it] has proffered no evidence that it acted to promptly correct the situation. On this record, we cannot say that [the employer] “exercised reasonable care to prevent and correct promptly any racially harassing behavior by its supervisor[s].”

 

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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio General Assembly Amended Employer Notice Requirements to Permit Internet Postings

Over the summer, Ohio’s General Assembly amended most of the state-specific posting requirements of employers to permit employers to permit those notices on the internet when accessible to employees.  This includes:

·       Child Labor Postings, O.R.C. §4109.08(A)(2)(b) – the abstract of the statute prepared by Director of Commerce

·       Ohio’s minimum and overtime wage requirements, as summarized by the Department of Commerce, O.R.C. §4111.09

·       A summary of the Ohio Civil Rights Act, prepared by the Ohio  Civil Rights Commission, O.R.C. § 4112.07

·       Prevailing wage rate information, if applicable, O.R.C. § 4115.07

·       Notice from the employer that the results of or failure to submit to a post-accident drug test may affect their entitlement to workers compensation, O.R.C. § 4123.54(F)

·       Bureau of  Workers Compensation Notices, O.R.C. § 4123.83

 

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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio's New Mini-WARN Act Becomes Effective Next Week

Next week, Ohio’s new mini-WARN Act, Ohio Revised Code §4113.31, will become effective.   While it essentially codifies existing federal regulations under the federal WARN Act and, with some exceptions, requires 60 days advance notice for the employees, it also contains some state-specific provisions which may catch unwary employers off guard, including:

·       The long-form notice is generally always required, including a detailed statement explaining the reason for the layoff/plant closure, the job titles and positions affected, and “information about any available services for an affected employee, including job placement assistance, retraining programs, or counseling services.”

·       In addition to notifying the State and City, the employer is also required to notify the Chief Elected Official of the County and provide a “description of any action taken or planned to mitigate the impact of the plant closing or mass layoff, including any efforts to secure alternative employment or training for affected employees.”

·       While the federal WARN Act requires notice if the 50 employees being laid off at a single site constitute at least 33% of the site’s workforce, Ohio’s statute does not contain that provision.

·       Ohio’s statute also does not contain the 90-day aggregation period of the federal WARN Act.

Ohio’s statute retains the federal exceptions to the full notice requirement for unforeseen circumstances, faltering companies still actively seeking capital, lockouts, natural disasters, etc.

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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Again Rejects Religious Exemption from COVID Testing By Healthcare Worker

Last week, the Sixth Circuit affirmed an employer’s summary judgment on the Title VII religious discrimination and retaliation claims brought against a hospital by an employee who objected to wearing a mask, being vaccinated and being tested.  Henry v. Southern Ohio Medical Ctr., No. 24-3863 (6th Cir. Sept. 11, 2025).   The Court concluded that the employee’s requested accommodation placed a substantial burden on the employer, which was tasked with providing a safe place for its vulnerable patients.  It was questionable whether the plaintiff had put her employer on notice that she would accept non-invasive (i.e., saliva) testing, but in any event, such results were unreliable and took twice as long as nasal tests, which could be processed inhouse.  “We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship.” The Court also rejected her retaliation claim because her being placed on leave was based on a pre-existing deadline and for legitimate patient care reasons and not on her allegedly protected opposition conduct. 

As many employers did, the Hospital required mandatory vaccination of its staff or regular nasal testing, which it could process inhouse within 24 hours.  A deadline was set to comply.  Every request for a religious exemption from the vaccine was granted, but the plaintiff also requested exemption from testing.  Her position involved direct patient care, including of new born babies.  She objected on religious grounds to any invasive procedures, including vaccines and tests.    After the deadline, she was placed on unpaid leave until the end of the pandemic, but refused to return when offered reinstatement because she had found other employment.   

After she filed suit, there was a factual dispute as to whether the plaintiff communicated her willingness to submit to a saliva test based on her repeated references to invasive testing. The trial court found that the only compromise she offered was to self screen and stay home if she felt sick.   In any event, the Court found that even saliva testing imposed an undue hardship on the employer.  The Court has previously found that it is an undue hardship to refuse all testing in a healthcare setting with direct patient care positions.

Now consider the request for saliva testing. Even this accommodation would place an undue hardship on SOMC by increasing the delay in analyzing [the plaintiff’s] test results. The district court concluded that “[m]ore than doubling the time it takes to learn whether a patient-facing employee is positive for the virus unmistakably compromises SOMC’s mission to serve the community and keep it safe.” . . . . The district court was correct. We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship. . . .

Before the district court, SOMC presented evidence showing that saliva testing was a less effective method of detecting COVID infection than other forms of testing available at the time—thus increasing the risk of the spread of COVID.  . . .  [The plaintiff] introduced no evidence to dispute this. SOMC also presented evidence showing that it did not have the in-house capacity to analyze saliva testing results. Analyzing saliva tests would have required third-party analysis which would have at least doubled the time (from 24 to 48 hours) it took for SOMC to learn whether [she] tested positive for COVID.

The Court also rejected her retaliation claim based on her being placed on unpaid leave when she refused to be tested (i.e., opposed allegedly unlawful requests).   Even if the plaintiff could prove a prima facie case of retaliation, the employer articulated a non-retaliatory reason for placing her on unpaid leave: “exempting her from vaccination and testing could lead to the spread of COVID-19 among its staff and patients.”

The Court rejected her argument that the temporal proximity between her allegedly protected opposition conduct and her being placed on leave was evidence of pretext.

That argument fails, however, because SOMC put [her] on unpaid leave the day after the long-established deadline (September 17) by which every employee had to vaccinate or agree to testing. The preexisting deadline “negate[s] any inferences that may arise from the temporal proximity between [her] protected activities” and her placement on unpaid leave.  . . .

Similarly, the Court rejected her argument that refusing to consider saliva testing also showed pretext because it found that her deposition testimony could not be contradicted by her affidavit when she could not remember during her deposition  putting the employer on notice that she would accept saliva testing and the affidavit also failed to identify when and how she communicated such willingness. 

[The plaintiff] also argues that SOMC’s refusal to provide her with available alternative forms of testing shows pretext. But that argument turns on us accepting the claim that [she] put SOMC on notice during the September 14 call that she would now consider other forms of invasive testing. For the reasons explained above, her deposition testimony and affidavit don’t establish that she provided SOMC such notice.

Finally, the Court rejected her argument that the Hospital’s grant of all other exemptions (to vaccination) meant the refusal to grant an exemption for her (to testing) was evidence of pretext:

Finally, [the plaintiff] argues that SOMC’s granting of all other accommodations shows pretext.  . . . . But the argument would fail in any event because [she] has not shown that any other accommodation recipients were similarly situated to her “in all relevant respects.”  . . .  The uncontested evidence shows that of the “approximately 300” employees who requested an accommodation, all “agreed to weekly testing” except [her] and one other nurse [who resigned].

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. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.