Sixth Circuit Dismisses Title VII and §1983 Claims Brought by Volunteer Nuns

On Friday, the Sixth Circuit Court of Appeals dismissed for lack of subject matter jurisdiction Title VII religious discrimination and retaliation claims brought by two nuns who volunteered with the Red Cross and the Ross County Emergency Management Agency.   Sister Michael Marie v. American Red Cross, No. 13-4052 (6^th Cir. 11-14-14).  Similar constitutional and first amendment claims against the agency were likewise dismissed. The plaintiffs both volunteered with the Red Cross and county agency.  They alleged that the Red Cross denied them promotions to volunteer positions with higher authority and responsibility on account of their religion and terminated them in retaliation for complaining.  They allege that they were later terminated by the county agency for similar reasons and that the Red Cross Executive Director served on the Board of the agency.  They filed with the OCRC and EEOC Charges of Discrimination, which were dismissed for lack of jurisdiction since the nuns volunteered with the respondents and were not employees.  Neither plaintiff received or expected any monetary compensation for their services and did not receive any employment benefits, but were eligible for workers compensation, life insurance and travel reimbursement.  They filed suit in federal court, which dismissed the claims and was affirmed on appeal.

The Court of Appeals determined that coverage under Title VII is limited to common law employees, which depends on a number of factors, such as:

[1] the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

While this test is most frequently utilized to determine whether an individual is an employee or independent contractor, it can also be applied to determine whether a volunteer is a covered employee.  Unlike other circuits, the Sixth Circuit considers compensation to be just one of the relevant factors, instead of categorically more important.  The Court rejected the plaintiff’s argument that it should be of lesser importance. After noting that the plaintiffs received no compensation or employment benefits, it also noted that they largely controlled when they volunteered and how they performed.  The plaintiffs were in no way economically dependent on the defendants.  The only factors in their favor was that the plaintiffs had worked for the defendants for several years and performed services in the defendants’ core business. Nonetheless, it was debatable whether the nature of their services was like that typically performed by employees or independent contractors.

The Court also found that the plaintiffs did not show that they were retaliated against on the basis of their religious beliefs.  The agency’s executive director had been initially friendly with them, which meant that another factor must have arisen when his behavior allegedly changed years later.  The Court also concluded that they could not show denial of equal protection because they failed to identify any other volunteers who were treated differently in that they were the only two volunteers who criticized the agency’s management.

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: City Can Force Mandatory Retirement at Age 65 Because of Budget Deficit

This morning, a unanimous Sixth Circuit Court of Appeals affirmed summary judgment in favor of a defendant city employer concerning claims under the Age Discrimination in Employment Act and the Ohio Civil Rights Act where the plaintiffs had been forced to retire upon reaching the age of 65.   Sadie v. City of Cleveland, No.12-3143 (6^th Cir. 6-11-13). In that case, the City had adopted an ordinance requiring police officers and firefighters to retire at the age of 65 unless the Chief requested a year-to-year exemption which was supported by an independent medical examination.   After a budget cut in 2010 required the layoffs of 67, and demotions of 28, police officers, the Police Chief refused to request any more exemptions of the mandatory requirement ordinance.  This lawsuit followed alleging violation of the ADEA, the OCRA and the Equal Protection Clause of the 14^th Amendment.  The Court found that § 623(j) of the ADEA authorized the mandatory retirement ordinance and the plaintiffs failed to show that the ordinance or denial of exemptions was merely subterfuge intended to avoid the purpose of the ADEA.    In addition, the city proved that it had a legitimate budget concern in denying exemptions (because of the layoffs and demotions) which, again, showed the lack of subterfuge and disproved any denial of equal protection of the law.

The defendant city first adopted a mandatory retirement ordinance in 1960, but the version at issue in the lawsuit was adopted in 2009.  Section 623(j) of the ADEA provides as follows in relevant part:

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken—

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained—

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or

(B)

(i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of—

(I)               the age of retirement in effect on the date of such discharge under such law; and

(II)         age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

The Court described this provision as follows: “Section 623(j) applies if the firefighter or law enforcement officer is over fifty-five years old and is discharged pursuant to a retirement plan “that is not a subterfuge to evade the purposes” of the Act.” The Court decided to construe Ohio and federal law as the same.

 The primary dispute concerned whether the “subterfuge” provision in the exemption was an affirmative defense (where the City bore the burden of proof) or part of the claim (where the plaintiffs bore the burden of proof).  The district court held that the plaintiffs failed to bear their burden of proving subterfuge.  The Sixth Circuit concluded that it did not matter who bore the burden of proof because not only did the plaintiffs fail to show subterfuge, but the City produced enough evidence of their financial justification to disprove any claim of subterfuge.  

The retirees argue that the City enforced its mandatory-retirement ordinance because certain City officials expressed a preference for younger officers. Essentially, the retirees argue that the City was not concerned with the efficiency of the Police Department, but that it forced the retirees into retirement due to discriminatory animus toward older police officers. The problem with the retirees’ argument is that it ignores the fact that the Act explicitly allows for the termination of police officers on the basis of age. The First, Second, and Seventh Circuits have all rejected an interpretation of “subterfuge” that would nullify the exemption for the mandatory retirement of police and fire officers.

As for the plaintiffs’ Equal Protection Clause argument,

In a case such as this, where no suspect class or fundamental right is implicated, we apply the rational-basis test and sustain the government action in question “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [government’s] actions were irrational.” . . .

The retirees argue that Chief McGrath’s decision to deny all requests for extension of service amounted to a violation of the Equal Protection Clause because the Fire Chief decided to grant requests for extensions to all firefighters that passed the independent medical exam. The district court held that the police department’s decision not to extend the service of its officers over sixty-five years old was rationally related to the legitimate purpose of addressing budget concerns. We agree with the district court’s determination. Faced with budget concerns, the Police Department laid off sixty seven patrol officers and demoted twenty-eight promoted police officers. As a result of that decision, Chief McGrath decided that, when faced with the choice of bringing back and re-promoting those officers or extending the service of its officers over sixty-five, he would bring back the most-needed officers in order to help maintain the vitality of the department. Chief McGrath’s decision was rationally related to the legitimate purpose of addressing the Department’s budget concerns.

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.