Supreme Court Reinstates SOX Jury Verdict With Lower Burden of Proving Employer's Motive Against Whistleblower

 This morning, the Supreme Court unanimously found that proof of retaliatory intent is not necessary to prevail on a claim for wrongful discharge brought under §1514A(a) of the Sarbanes-Oxley Act of 2002, and the employee must prove that the protected activity was merely a contributing factor to his or her employment termination.  Murray v. UBS Securities, LLC, No. 22-660 (U.S. 2-8-24).  “Under the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002, no covered employer [publicly-traded companies] may ‘discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of’ protected whistleblowing activity. 18 U. S. C. §1514A(a).”  The protected activity includes reports by employees “what they reasonably believe to be instances of criminal fraud or securities law violations.”     “When a whistleblower invokes this provision, he bears the initial burden of showing that his protected activity ‘was a contributing factor in the unfavorable personnel action alleged in the complaint.’ 49 U. S. C. §42121(b)(2)(B)(iii). The burden then shifts to the employer to show that it ‘would have taken the same unfavorable personnel action in the absence of ‘ the protected activity. §42121(b)(2)(B)(iv).”  The statutory language prohibiting discrimination against the employee does not require proof of retaliatory intent. 

According to the Court’s opinion, the plaintiff was employed as a research strategist who was required by SEC regulations to certify to his employer’s current and prospective customers that his reports were prepared independently and reflected his own views.  He alleged that he was fired after internally reporting in December 2011 and January 2012 that the leaders of two trading desks were improperly pressuring him to skew his reports to support their business strategies and to “clear” his articles with them before publication.  He found their conduct to be both unethical and illegal.  His supervisor, while sympathetic, urged him to not alienate those two individuals and was not helpful when the plaintiff reported that he was improperly being left out/excluded from meetings.   Despite having just given the plaintiff a strong performance evaluation, the manager then recommended him for layoff or to be transferred to a trading desk analyst position where he would not have SEC-certification responsibilities.  When the trading desk rejected him, he was fired in March 2012.  At trial, the employer argued that “market-wide difficulties and a $2-billion loss on a [its] trading desk in London had required the elimination of certain positions,” including his.

At trial, the judge instructed the jury that he was “not required to prove that his protected activity was the primary motivating factor in his termination, or that . . . UBS’s articulated reason for his termination was a pretext.”  When the jury sought clarification, the judge instructed that they ““should consider” whether “anyone with th[e] knowledge of [the plaintiff’s] protected activity, because of the protected activity, affect[ed] in any way the decision to terminate [his] employment.”  Recommending a $1M verdict, the “jury found that [the plaintiff] had established his §1514A claim and that [the employer] had failed to prove, by clear and convincing evidence, that it would have fired [him] even if he had not engaged in protected activity.”  The court added $1.7M in attorneys fees and costs to the jury’s recommendation.   On appeal, the Second Circuit concluded that the plaintiff was required to show that the employer possessed a retaliatory intent.  Today, the Supreme Court reversed.

Unlike most federal employment statutes, SOX adopts the “burdens of proof set forth in section 42121(b) of title 49, United States Code”—a provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).” Under that statute, “the whistleblower bears the burden to prove that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U. S. C. §42121(b)(2)(B)(i). If the whistleblower makes that showing, the burden shifts to the employer to show “by clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of ” the protected activity. §42121(b)(2)(B)(ii).”  This framework

originated in the Whistleblower Protection Act of 1989 (WPA), 5 U. S. C. §1221(e), which provides legal protection for whistleblowers within the civil service. The framework was meant to relieve whistleblowing employees of the “excessively heavy burden” under then-existing law of showing that their protected activity was a “‘significant’, ‘motivating’, ‘substantial’, or ‘predominant’” factor in the adverse personnel action, and it reflected a determination that “[w]histleblowing should never be a factor that contributes in any way to an adverse personnel action.” Congress then incorporated the easier-to-satisfy “contributing factor” framework into a series of similar whistleblower statutes that protect non[1]civil-service employees in industries where whistleblowing plays an especially important role in protecting the public welfare—including, as noted above, the airline industry (AIR 21) and the securities industry (Sarbanes-Oxley).

The Court then explained that

Section 1514A’s text does not reference or include a “retaliatory intent” requirement, and the provision’s mandatory burden-shifting framework cannot be squared with such a requirement. While a whistleblower bringing a §1514A claim must prove that his protected activity was a contributing factor in the unfavorable personnel action, he need not also prove that his employer acted with “retaliatory intent.”

                . . . .

An animus-like “retaliatory intent” requirement is simply absent from the definition of the word “discriminate.” When an employer treats someone worse—whether by firing them, demoting them, or imposing some other un[1]favorable change in the terms and conditions of employment—“because of ” the employee’s protected whistleblowing activity, the employer violates §1514A. It does not matter whether the employer was motivated by retaliatory animus or was motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements.

The Court rejected the employer’s argument that innocent employers will be held liable for adverse employment actions which were not motivated by retaliation or the protected conduct, such as when the employee’s protected conduct results in the biggest client to leave and the employee without any work to do:

The statute’s burden-shifting framework provides that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of ” the protected behavior. 49 U. S. C. §42121(b)(2)(B)(ii). The right way to think about that kind of same-action causation analysis is to “change one thing at a time and see if the out[1]come changes.” Bostock, 590 U. S., at 656. The question is whether the employer would have “retain[ed] an otherwise identical employee” who had not engaged in the protected activity. Id., at 660. As the Federal Circuit has explained in the WPA context, the same-action analysis “does not require . . . that the adverse personnel action be based on facts ‘completely separate and distinct from protected whistleblowing disclosures.’”  . . . In that case, the correct inquiry was whether the employer would have taken the same action if it had learned of the contents of the employee’s protected disclosure through other means.  . . .. In UBS’s hypothetical, the relevant inquiry would be whether the employer still would have fired the employee if the client had left for some other reason. If so, it will have no trouble prevailing under the statute.

To be sure, the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself provides.

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 Conclusory Allegations in Complaint of Racial and Retaliation Discrimination and Harassment

 Last week, the Sixth Circuit affirmed the dismissal of a racial discrimination, harassment and retaliation claim against a university. Ogbonna-McGruder v. Austin Peay State University, No. 23-5557 (6^th Cir. Jan. 30, 2024).   First, the Court found that discrete acts of discrimination rarely constitute a hostile work environment claim.  Second, it found that four acts over more than 30 months were not sufficiently severe or pervasive enough to constitute harassment.  Third, her retaliatory harassment claims failed for the same reasons, even if the burden of proving retaliation is lower than discrimination.  Fourth, her discrimination claims failed because she failed to allege that they were motivated by her race or that she was treated differently than anyone who was similarly situated from her. “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

According to the Court’s opinion, the plaintiff taught university classes for more than a decade when the university decided to divide her department.  She was unhappy with a number of decisions made about her reassignment, including her classes, her performance evaluations and the location of her office, etc.  When she appealed some of these decisions, she was told that a decision had been wrong, but denied that they were not racially motivated.  She filed an EEOC Charge and later filed suit for discrimination, harassment and retaliation.  The trial court dismissed her complaint for failure to state an actionable claim.

The Court agreed that the plaintiff had failed to sufficiently allege severe or pervasive harassment based on a number of employment actions taken against her over a 30 month period:

First, the district court correctly found that the allegations of discrete acts of discrimination could not be characterized as part of the hostile work environment claim. The Supreme Court has explained that under Title VII, a plaintiff may bring a claim alleging that either (1) an employer engaged in “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire”; or (2) the employer’s “repeated conduct” created a hostile work environment. . . . Because the two claims are “different in kind,” we have consistently held that allegations of discrete acts may be alleged as separate claims, and as such “cannot properly be characterized as part of a continuing hostile work environment.” . . .

 . . . . Her allegations that she was denied the opportunity to draft a grant proposal and teach summer courses, received low evaluations, was replaced by a white adjunct professor, and was reassigned to teach public management courses represent discrete acts that could perhaps support separate claims of discrimination or retaliation under Title VII.

 . . .

But even viewing those allegations [of four incidents] as a whole, [Plalintiff] did not sufficiently allege facts from which we may infer that the harassment she experienced was severe or pervasive. Courts consider the totality of circumstances in determining the severity and pervasiveness of alleged harassment, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s performance.”  . . . Notably, the alleged harassment must be both objectively and subjectively severe and pervasive to be actionable. Id. at 21–22. Allegations of “simple teasing, . . . offhand comments, and isolated incidents (unless extremely serious)” do not suffice. . ..

             . . . As an initial matter, those events occurred over a period of approximately two and a half years—that is too infrequent to demonstrate that her workplace was “permeated with” ridicule and insult. . . . And defendants’ comments about her teaching abilities and qualifications, while undoubtedly offensive, are not sufficiently serious to constitute severe harassment.  . . .  Moreover, she did not allege that the harassment was physically threatening. Her conclusory assertions that defendants’ actions “unreasonably interfered with [her] work performance,” without alleging supporting factual allegations, is insufficient for purposes of a motion to dismiss.  . . . Because she failed to plausibly allege severe or pervasive harassment, the district court did not err in dismissing her race-based hostile work environment claim.

While the Court agreed that there was a lower standard of proving retaliation compared to discrimination, this did not save her retaliatory harassment claim because, as discussed above, she failed to allege sufficiently severe or pervasive behavior necessary for the harassment part of her claim.  “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

When the employer argued that her discrimination claim was untimely -- because the alleged acts took place more than 300 days before her EEOC charge was filed -- she apparently did not make any legal argument to the contrary.  Accordingly, her claim was deemed abandoned on appeal.  Nonetheless, the Court also observed that she failed to allege that any of the discrete acts were motivated by racial animus and to allege that she was treated worse than anyone similarly situated to her.  “]H]er conclusory statement that [the employer] treated her poorly “because of her race” is insufficient for purposes of a motion to dismiss.”

Similarly, when the employer challenged her retaliation claim as untimely, she made no legal arguments in opposition.  Accordingly, her claim was deemed abandoned.

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 Court Rejects Free Speech and Retaliation Claim by Private Sector Employee Fired for Facebook Post

Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020.  Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.    The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech.  Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her.  The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.

According to the Court’s opinion, the plaintiff had been employed for several years when she posted a meme on her Facebook page which, among other things, compared BLM protestors to monkeys.  She denied that she had seen the entire photo before she posted it and argued that it was more political than racial.   Several of her co-workers and subordinates saw it and complained to Human Resources.  She was then fired and brought suit, claiming that she was fired in violation of the right of free speech.  She pointed out that one of the complaining employees was retaliating against her for reporting them twice to Human Resources in the prior few months for making racially charged comments and allegations (which were unfounded) about her and other employees. 

The Court rejected her argument that she was fired in retaliation for reporting one of her subordinates for making racially charged and inappropriate comments.  She could not show causation when other employees had also complained and lacked the same motive to retaliate against her.  The passage of 25 weeks between her arguably protected conduct and termination also meant that she could not rely on temporal proximity to prove causation. 

As for whether she could show her termination violated public policy, she could not identify any court decisions where such a public policy had been applied to a private employer and at-will employee.   On the contrary, the court cited to a Franklin County Court of Appeals decision finding that the right of free speech under the U.S. and Ohio constitutions only apply to government employers. “[I]n the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for [plaintiff], an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against [the defendant company], a private employer.”

we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this claim.

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.

Franklin County Appellate Court Rejects Discrimination Claims Based on Criminal Conviction and Non-Substantially Limiting Impairments

[Editor's Note:  On August 3, 2023, the Court deleted its original opinion and re-issued it after a request for reconsideration on the issue (noted below) about whether a request for a reasonable accommodation may constitute protected activity for purposes of a retaliation claim.  Without resolving that issue, the Court deleted the paragraph discussing that issue (as noted below) and modified the opinion, but not the result: " In light of appellant’s reconsideration motion and the accompanying amicus brief filed with this court, we reissue our June 20, 2023 decision without original paragraph 102 and with a slight modification to original paragraph 103 (now 102). Whether a request for accommodation constitutes protected activity under Ohio law is a question that warrants full briefing before definitive resolution by this court."]

Last month, a unanimous Franklin County Court of Appeals affirmed an employer’s summary judgment where the plaintiff had alleged that he had been terminated on account of his race, disability and in retaliation for engaging in protected conduct.  Childs v. Kroger Co., 2023-Ohio-2034.  The plaintiff had been hired into a bargaining unit position despite a murder conviction from when he was a juvenile and was ultimately promoted to a salaried assistant manager position before he was fired when management learned about his prior murder conviction.  The Court found that he was unqualified for his position because the company policy at the time of his termination precluded the employment of convicted murderers.

According to the Court’s opinion, the plaintiff was convicted of murder in 1996 from when he was a juvenile.  He was hired by Kroger into an hourly bargaining unit position in 2014.  He had truthfully reported that he had a criminal conviction on his employment application and claimed to have explained the details to his interviewer.  The background check only reviewed the prior 7 years and so did not pick up the earlier murder conviction.   His job history listed his prison employment as well as his current job.  It apparently did not occur to the individuals reviewing his job application that his prison employment was as a prisoner instead of as a private contractor.  In 2015, he applied for and was selected for a management training position.  In 2017, he began suffering panic attacks after the store was robbed and he was physically threatened.  He was given a poor performance evaluation a couple of months later and put on a performance plan.  He then accused his manager a few months later of being racist based on observed favoritism.  A month later, he then submitted a medical statement about his depression and asked to be transferred to another store.  He then complained again in October 2017 about his manager, who was then transferred.  The plaintiff was also transferred from Reynoldsburg to Sunbury in February 2018 and he received a better performance evaluation.

While in Sunbury, the plaintiff learned in April 2018 that an employee had been convicted as a sexual offender.  He recommended termination and participated in the union grievance process that resulted in the employee’s termination as a risk to minor employees.  Shortly thereafter, an employee was searching for information about the plaintiff’s recent motorcycle accident and discovered his 1996 murder conviction.  It was reported to management and he was fired at the end of May 2018 because company policy provided that it was a disqualifying offense.  More than a year later, the plaintiff filed suit alleging race and disability discrimination and retaliation and wrongful discharge in violation of public policy, as well as unlawful aiding and abetting and defamation.  The trial court eventually granted summary judgment to the defendants on all claims and it was affirmed on appeal.  Much of the lengthy appellate decision involves procedural and discovery issues.

The Court concluded that, despite the fact that the plaintiff had worked more than three years at Kroger and been promoted, he could not satisfy his prima facie case and show that he was qualified for his position before being fired because his 1996 murder conviction rendered him unqualified.  The plaintiff “is unable to establish the third element of his prima facie case, because his murder conviction rendered him unqualified for employment at Kroger.” Evidence was presented that the company refused to hire individuals with certain convictions and fired them if a disqualifying conviction was later discovered.   Even if murder was not a disqualifying conviction at the time he was hired, it was at the time he was terminated.

The Court also rejected his claim for disability discrimination, which was based on his depression, anxiety and PTSD.  The Court found that the plaintiff failed to show that his depression substantially limited any major life activities because he admitted that he was able to continue to work and the remaining limitations were relatively insignificant.  Although the plaintiff

 indicated that his depression impacted his ability to sleep and do household chores on some days, he did not claim that his depression affected his ability to sleep or do chores for significant amounts of time. [The plaintiff] presented no evidence indicating that his depression substantially limited his ability to think or otherwise engage in major life activities, and he affirmed that he could hold a job despite his depression. Accordingly, [he] failed to demonstrate that his depression occurred in sufficient duration and with sufficient severity to significantly limit any major life activity.

In any event, even if the plaintiff could show that he were statutorily disabled, he “also could not establish that he was qualified for his assistant store manager position either with or without a reasonable accommodation, because his murder conviction rendered him unqualified for any position of employment with Kroger.”

As for his retaliation claim, the Court initially rejected his argument that he was retaliated against for requesting a transfer as a reasonable accommodation. “A request for reasonable accommodation does not amount to “participation in any manner in any investigation, proceeding, or hearing” or “opposition to an unlawful discriminatory practice” under R.C. 4112.02(I).” In other words, Ohio law does not consider a reasonable accommodation request to be protected activity for purposes of asserting a retaliation claim.  However, the Court withdrew that part of its opinion on August 3, 2023 as noted in the Editor's Note above. 

Similarly, the Court concluded that it was not protected conduct under ORC 4112 to report the sexual offender conviction of a subordinate to management when he asserted that his termination was motivated by reporting the sexual offender despite the store manager’s resistance.

Nonetheless, his other retaliation claim had more merit.  He claimed that he was placed on a performance improvement plan after asking his supervisor if he was racially biased against him.  However, the company contended that it was based on his earlier, year-end performance evaluation.  Sadly for the plaintiff, his own comments on his performance evaluation acknowledged that his performance needed to improve and commented on specific mistakes or shortcomings that he had shown.  He also could not disprove that the company always placed low-performing employees on performance plans.  Therefore, the Court dismissed the retaliation claim.

Because all of his ORC 4112 claims were dismissed, the aiding and abetting allegations against the individual employees and managers were similarly dismissed.

The Court also dismissed the wrongful discharge claim on the basis that his murder conviction motivated his termination and not his earlier report of the sex offender employee.  He could not show that public policy was jeopardized by his reporting of the sex offender to management.  Even if that report had motivated his termination, he could not identify a public policy which was violated by his termination:

[His] termination would not have jeopardized the public policy expressed in R.C. 2950.034(A). The statute prohibits sexually oriented offenders from residing in specific locations; it does not prohibit sexually oriented offenders from working at specific locations.

Finally, the Court dismissed the defamation claim based on the incorrect report that he had failed to previously disclose his murder conviction.  He claimed – without contradiction – that he had disclosed it in his job interview.  However, he could not prove that the HR employee passed that information along to management or that the individuals who allegedly defamed him knew that he had previously disclosed it in a 2014 interview.   Further, management has a qualified privilege to discuss other employees.

Furthermore, “ ‘a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege.’ ” . . . “Once the defense of qualified privilege attaches, a plaintiff can only defeat the privilege with clear and convincing evidence that the defendant made the statements at issue with actual malice.”

Ms. Gray and Mr. Shepard were both managers at Kroger, and their communication regarding [the plaintiff’s] failure to disclose his murder conviction was a matter of common business interest between them. As such, Ms. Gray’s statement to Mr. Shepard was subject to a qualified privilege. Because the evidence demonstrates that [he] failed to disclose his murder conviction to Kroger [in writing], Mr. Childs cannot establish that Ms. Gray made her statement to Mr. Shepard with actual malice.

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 Inference of Retaliation From Passage of Time Whether it Be Six Years, Fifteen Months or Even Possibly Four Months.

Last month, a unanimous Sixth Circuit affirmed an employer’s summary judgment on a retaliatory failure to promote claim on the grounds that the passage of more than 15 months -- since the dismissal of the plaintiff’s prior lawsuit were affirmed on appeal -- prevented an inference of retaliatory motive.  Wheeler v. Miami Valley Career Technology Center, No. 22-3315 (6^th Cir. 1/10/23).    When the only retaliatory action the plaintiff could identify was being passed over for a promotion, the Court agreed that the passage of six years since her prior lawsuit had been filed, and 15 months since her appeal had been dismissed, could not support an inference of retaliatory causation.  The Court suggested that the passage of as little as four months could be insufficient by itself to show causation. 

 According to the Court’s opinion, the plaintiff teacher had been employed for approximately 30 years and applied, was minimally qualified and was interviewed for three open administrative positions in 2018, but was not selected for any of them.  She initially filed Charges of Discrimination alleging that she was passed over on account of her age and in retaliation for an EEOC Charge and lawsuit which she had filed in 2012 (but which had concluded in January 2017 when the Sixth Circuit affirmed the trial court’s 2016 summary judgment in favor of the employer).  The trial court dismissed her lawsuit on the grounds that the six years which had passed since she filed her initial Charges of Discrimination and lawsuit prevented any inference of retaliation for failing to promote her in 2018.  After appealing only the dismissal of her retaliation claim, the Court of Appeals affirmed because she:

 complains of actions that occurred years before the alleged wrongful actions by [the employer], with her prior complaint being filed in 2012. This proximity is woefully insufficient by itself—the Supreme Court has held that events not even two years apart are nowhere near close enough. See Clark Cnty. Sch. Dist ., 532 U.S. at 274 (“Action taken . . . 20 months later suggests, by itself, no causality at all.”). [She] responds that we should consider that her litigation lasted until January 2017, about 15 months before [the employer] hired someone other than [her] for the first administrative position. But this is still insufficient—we have held that far shorter time periods do not establish the required causation. See Imwalle, 515 F.3d at 550 (“In this circuit, a period of more than four months was found to be too long to support an inference of causation.”). The temporal proximity in the present case is simply not enough.

The plaintiff also attempted to challenge the employer’s explanation (of more qualified external candidates) on the grounds that the employer typically promoted internal candidates for administrative positions and that her interviews were “poisoned” by being interviewed by individuals who had been involved in her prior litigation.  However, the Court did not find her argument to be supported by the evidence.  In short, her only evidence of retaliation was not being promoted:

But given the amount of time that has elapsed since the prior lawsuit, this, by itself, is far from enough evidence needed to create a genuine dispute of material fact as to causation. . . . . She has not produced sufficient evidence establishing that the 2012 complaint was a “but-for” cause of her failed 2018 promotion, nor can she prove that she would have been promoted if not for the 2012 complaint.

 

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 Reinstates FMLA Claims Where Employee Called Off for Vague "Flare-ups" and Manager Knew of FMLA Requests.

Yesterday, the Sixth Circuit reversed an employer’s summary judgment on FMLA retaliation and interference claims.  Render v. FCA US LLC, No. 21-2851 (6^th Cir. 11-16-22).   The plaintiff had been tentatively approved for intermittent FMLA leave for his depression and anxiety.  However, when he called off on multiple days, he only once referred to the FMLA (when asked) and usually just said he was unwell or was having a “flare-up” (the term his physician used to describe his need for FMLA).  The Court found that this otherwise vague reference to his FMLA Medical Certification was sufficient to put the employer on notice of the need to inquire further and that he did not need to specially refer to the FMLA or to his anxiety or depression.  The Court also found sufficient evidence of retaliation in light of the temporal proximity of his protected activity of requesting FMLA leave and the termination decision. “It is the request that is protected activity,” not whether the leave is qualified or not.  The Court rejected the employer’s honest believe defense because the decisionmaker was aware that he had requested FMLA leave, was seeking to use it on the days in question, and had disputed the mis-coding of his absences as non-FMLA (i.e., that she had been provided with mistaken information which she had the authority and power to correct herself).   Finally, the Court agreed that the employee had sufficiently complied with the employer’s customary call off procedures when the information he had been provided was confusing and contradictory.

According to the Court’s opinion, the plaintiff had been terminated for poor attendance, but was reinstated following a grievance and subject to a conditional reinstatement letter that he would be fired again if he had more than two attendance infractions in the next year’s probationary period.  Within six months, he missed or was tardy at least four times and was fired.  Thing is, he applied for and was conditionally approved for four days per month of intermittent FMLA leave for his depression and anxiety.  The FMLA administrator sent him inconsistent and contradictory information about how he was to report his FMLA absences and the recordkeeping of the employer and FMLA Administrator was also inconsistent and contradictory.   Although he was given confirmation numbers when he called, he generally failed to indicate that he was using or had been approved for FMLA leave and would only refer vaguely to “flare-ups” and not being well enough to work.  The decisionmaking HR manager checked with other HR and the FMLA Administrators, but was given incorrect and/or misinterpreted the information.   Because she could not confirm that he had called in as required on all of the dates and the FMLA administrator had failed to record them as FMLA absences, the HR manager decided to terminate him even though he told her that he had attempted to use his approved FMLA leave. 

The Court’s majority found that there was sufficient evidence to prove that the employer may have interfered with his right to take FMLA leave.  While employees who have been approved for FMLA leave are required when calling off work to refer to the FMLA or to their FMLA approved condition and say more than that they are “sick,” the Court found that the employer is bound by the employee’s prior notice requesting FMLA leave and the supporting medical statement describing his medical condition.   

Either way, an employee “[c]alling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act,” though an “employer will be expected to obtain any additional required information through informal means.”

 In this case, the plaintiff had requested and been approved for intermittent FMLA leave for “flare-ups” of his chronic depression and anxiety.  So, when he called off due to “flare ups,” the employer was on notice to inquire further if it questioned whether this was covered by the FMLA:

With less context, some of [the plaintiff’s] four call-ins could be viewed as providing insufficient notice. Although [he] referenced the FMLA during his December 7, 2017 call-in, he did not do so during his call-ins on December 6, 2017 and January 5, 2018, opting instead to say that he was suffering from “flare ups.” . . . .  As the district court noted, a “flare up” just means “a sudden appearance or worsening of the symptoms of a disease or condition.” . . . .The term does not by itself indicate what these symptoms or the underlying disease or condition are. Standing alone, an employee reporting that they were having a “flare up” could be the equivalent of calling in “sick,” which 29 C.F.R. § 825.303(b) explicitly provides “will not be considered sufficient notice to trigger an employer’s obligations under the Act.” The same is true of [his] call from December 8, 2017, during which he merely reported having been “sick the last few days,” referencing his calls from December 6 and 7.

But there is more to this story. Nothing in 29 C.F.R. § 825.303(b) commands that we overlook pertinent background. . . . Given that employers are under a duty to inquire further about the nature of the leave requested, a previously submitted medical certification listing symptoms is relevant to evaluating what can be reasonably gleaned from an employee’s call-in. See 29 C.F.R. §§ 825.301(a), 825.303(b).

Before making any of his calls, [he] provided [the employer] with such a certificate.  . . . This document informed the company that [he] would be unable to work when the symptoms of his depression and anxiety were acute. . . . . More importantly, the certificate alerted [the employer] that [he] would be unable to work when these symptoms “flare[d] up.” Id. It also noted that these flare ups could occur three-to-four times a month. Id. Therefore, when [he] called in on three consecutive days in December 2017 specifically referencing either his symptoms flaring up, or the FMLA, or, by the last day, his previous two days out and his subsequent need to be late to work, it would be reasonable to conclude that he put [the employer] on notice that he was referring to his FMLA-qualifying condition. . . . . The same is true for the January 5, 2018 call, during which [he] also identified a flare up of his symptoms as the reason for his tardiness. . . . .. At the very least, [the employer] knew that [he] had been requesting FMLA leave during the December call-ins by the day of the last leave request because he reinformed the company that he had been doing so.  . . . . On this record, we hold that a reasonable jury could conclude that [he] provided adequate notice of his need for unforeseeable FMLA leave each time that he called in.

The minority opinion also concluded that he had complied with the employer’s customary call-off policies and the majority opinion agreed: “For the reasons stated in the lead opinion, a reasonable jury could find that [the plaintiff] provided sufficient notice of his intent to take FMLA leave under [the employer’s] internal leave policies.”

In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. . . . Accordingly, [the employer] could adopt a policy requiring employees to call both Sedgwick and the [the employer’s] call-in line to report an FMLA absence. But an employee cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy.

In this case, Sedgwick’s letter was so confusing that even Mitchell, who worked in FCA’s human resources department, could not decipher what it was asking employees to do. . . .

Understandably, [the plaintiff] did not follow these confusing instructions to a tee. He believed that he simply had to call the 1-800 number and report his absence. He “didn’t realize there was a second number.” . . . .We cannot fault him for failing to call both [the employer] and Sedgwick when (1) the list of instructions only gave one phone number (the one he called), and (2) the letter did not clearly list a phone number for Sedgwick. Moreover, Render took other steps to ensure that he properly reported his FMLA days. In the days immediately following his absences, he told two different supervisors that his absences were FMLA days, and he followed up with [the HR Manager] to ensure that his absences were properly coded.

As for his retaliation claim, the Court had no trouble finding that the plaintiff had engaged in protected activity in requesting FMLA leave and that the employer knew about his requests before terminating him.  It was irrelevant whether the absences were in fact protected by the FMLA for purposes of deciding whether he had engaged in protected activities. 

Employers are charged with knowing about FMLA protected activity as soon as an employee requests leave, even if it turns out the employee was not entitled to benefits. It is the request that is protected activity. . . . . Even if [the employer] did not know that [the plaintiff] was using his intermittent FMLA leave at the time of his absences, the issue is whether it knew about his protected activity before it terminated him. In this case, even if [the manager] was unaware that [the plaintiff] asked to use his leave on December 6, she admitted that she knew he was claiming FMLA protection by December 8, over a month before she terminated him.

The Court’s majority also found that the plaintiff could satisfy his burden of showing that his protected activity motivated his termination because of the temporal proximity between his initial FMLA request in October, his first attempt to use it in December and his termination in January.  While the employer may rely on the violation of his probation terms as its legitimate and non-discriminatory reason, the prima facia causation element was satisfied by the temporal proximity of the events. 

The Court also found that the plaintiff could show pretext on the ground that the employer’s explanation had no basis in fact because his absences had been miscoded by the FMLA administrator as miscellaneous instead of as intermittent FMLA as he had been conditionally approved.  When the plaintiff discovered the mistake, he was told that he would have to request HR to re-code his absences as protected by the FMLA.  However, when he went to the HR manager about the problem, she admitted that she could re-code his absences, but terminated him instead.   

The Court rejected the employer’s argument that it could rely on the honest belief rule based on incorrect information given to it by the FMLA administrator and other HR employees because the HR Manager was aware that the plaintiff had been conditionally approved for FMLA leave, that he had attempted to use that FMLA leave on all but one of the absences in question and that she had the authority to re-code the absences as covered by the FMLA leave.

Viewing the facts in the light most favorable to [the plaintiff], [the HR Manager] failed to catch the many errors that were made in the process of marking [his] absences as “MISU.” Even though she had the power to fix those errors, [she] did not recode [his] absences. Instead, she terminated him. A jury could find that [her] errors were the only thing giving her a reason to terminate [him], given that his absences would have otherwise been excused. Indeed, the record shows that [she] terminated [him] even though she knew that he was trying to use his FMLA days and that he was already conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as FMLA. A jury could thus find that the proffered reason had no basis in fact.

. . . .At this point, [he] has provided ample evidence indicating that [the employer] wrongfully designated his absences as unexcused when they should have been coded as FMLA. And [she] admitted that she terminated [him] even knowing that he qualified for FMLA leave and that he was trying to use his approved leave to cover his absences and tardies in December and January. [He] thus raised sufficient facts showing that FCA’s nondiscriminatory reason was pretextual.

In short, the honest belief rule will not protect a manager from her own error when she was on notice that she may have been given incorrect information during her investigation. 

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.

Requesting a Reasonable Accommodation is Not a Protected Activity Under Ohio Retaliation Law

The Crawford County Court of Appeals last month affirmed an employer’s summary judgment on claims asserting that the plaintiff had been terminated for requesting a reasonable accommodation.  Hall v. Crawford County Job and Family Services, No., 2022-Ohio-1358.  The Court held that requesting a reasonable accommodation is not a protected activity under Ohio law which can support a retaliation claim.  Rather, denying a reasonable accommodation may be unlawful discrimination, but the request itself is not a protected activity for purposes of a retaliation claim.  Further, the Court found that the plaintiff had voluntarily disclosed her disability to her employer and it was justified in requesting a fitness-for-duty examination when she claimed her disability adversely affected her job performance and submitted an FMLA request. 

According to the Court’s opinion, the plaintiff voluntarily disclosed to her supervisor that she suffered from MS which sometimes made her mind foggy and could impair her job performance.    She brought it up again during a March 20 pre-disciplinary conference and was recommended to apply for FMLA leave.  Although she said she objected and did not require it, she submitted FMLA paperwork on March 26, which did not mention her MS diagnosis.  She was also requested to submit to a fitness-for-duty examination.   She was given a three-day suspension and ultimately terminated.  She filed suit, claiming retaliation and improper medical inquiries.  The trial court found that she had been provided with a reasonable accommodation, could not prove causation, etc.

The plaintiff alleged that the employer’s request for a fitness for duty examination was an improper medical inquiry.  However, the court found that the plaintiff voluntarily disclosed her MS disability and claimed that it could be impairing her job performance.  Moreover, once she had requested FMLA leave and a reasonable accommodation, the employer was entitled to request information about the nature and extent of her alleged disability.

The plaintiff alleged that she was terminated in retaliation for requesting a reasonable accommodation.    The court found that requesting a reasonable accommodation is not a protected activity under Ohio Revised Code Chapter 4112 which could support a retaliation claim.  While terminating an employee for requesting a reasonable accommodation might be unlawful discrimination, it does not fit within the types of activities that constitute protected conduct under Ohio law, such as opposing discrimination, testifying, participating in an investigation, etc.

The plaintiff denied that she had attempted to pursue a failure-to-accommodate claim, and objected the trial court granting summary judgment to the employer as though she had done so.  The appellate court refused to address this argument. 

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. 

Although Plaintiff Was Not Plainly Superior Candidate, He Could Still Prove Pretext With Disputed Comments

On Monday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in an age discrimination failure-to-hire case, but affirmed dismissal of the plaintiff’s retaliation claim.   Aday v. Westfield Ins. Co., No. 21-3115 (6^th Cir. 1/24/22).   The Court discussed alternative ways for a plaintiff to prove that an employer’s explanation is pretextual in a failure to hire case and permitted the case the be resolved by a jury based on only two ageist comments from debatable decisionmakers.  The Court agreed that the plaintiff had not proven that he was the plainly superior candidate, in part because of the comparative leadership experience and because that he wanted to remotely manage his team from Seattle, far away from any company office.  However, when considering what would typically be “stray remarks” from arguably non-decisionmakers that may have indicated an age bias and a discriminatory atmosphere together with evidence that he had comparable qualifications to the successful candidates, the Court found sufficient evidence of pretext to let a jury decide the outcome.  The Court also rejected the argument that the employer's counterclaim was objectively baseless. 

Background

According to the Court’s decision, the 63-year old plaintiff has worked successfully for 40 years and received both promotions and transfers into leadership and other significant positions.  When his domestic partner accepted a job in Seattle, he sought authorization to work remotely from there or, in the alternative, to be transferred into a different management position for the Central U.S. which he would manage remotely from Seattle.  His own manager supported his efforts.  While he was denied authorization to work remotely, he was permitted to work from Ohio as long as he wished.   Although he interviewed well for the new management position, a 50-year old employee from Toledo with 22 years of comparable experience who had been a direct report of the hiring manager was chosen.   The employer later explained that there were questions about his passion for the position and his intent to manage his team from Seattle.

The plaintiff claimed that the hiring manager’s superior once joked to him over a lunch that he would be the next person to retire.  He also alleged that a co-worker claimed to have spoken with the interviewing/draft management team about the hiring decision and reported that they felt that it was time for the plaintiff to retire. He eventually retired, moved to Seattle and brought suit for age discrimination.  The employer filed a counterclaim for misappropriation of trade secrets and the plaintiff responded by amending his complaint to add a retaliation claim.  The trial court granted summary judgment dismissing the claims and the plaintiff appealed.

There was no dispute about whether the plaintiff had alleged a prima facie case of age discrimination and the focus of the Court’s opinion was on whether or not he had created a factual dispute (for a jury to resolve) about whether the employer’s explanation was pretextual.  The standard way to show pretext is “that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”  However, in a failure-to-hire context, a plaintiff

may prove pretext through the relative-qualifications test. . . . that either (1) he was the “plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former,” or (2) he “was as qualified as if not better qualified” than Somogyi and Zito and the record contains “other probative evidence of discrimination.”

Not a Plainly Superior Candidate

The Court found that the plaintiff failed to produce objective evidence that he was plainly superior candidate. Courts will not act as a super-personnel department to second guess business decisions.   “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are not significantly better than the others.” In other words, “[s]imply being “more qualified” is not sufficient to prove Plaintiff is the plainly superior candidate.”  Similarly, giving a good job interview does not make one plainly superior.

While the plaintiff had more industry and technical expertise than the other candidates, simply being more qualified than them on one aspect of the job was insufficient by itself to satisfy his burden of proof.  “[E]ven if Plaintiff were considered the candidate with marginally better technical experience, no reasonable juror could conclude he was the plainly superior candidate under the Sixth Circuit’s exacting standard, especially considering technical experience is only one facet of the job.”

The Court was less impressed with his prior “leadership experience.”  The hiring manager recalled his six years leading a team and he had seemed stressed and overworked.  Indeed, he had left that position to become an individual contributor as an claims specialist and this contributed to the decision that he lacked sufficient desire for a leadership role.  One of the other candidates had 11 years of “incredible” leadership experience and the other had comparable leadership experience.  “In terms of leadership experience, no reasonable jury could find that Plaintiff was the plainly superior candidate.”

The Court also disagreed that plaintiff’s desired work location in Seatle made him more qualified to supervise a team in Arizona, Colorado, Minnesota and Illinois.  However, “anything requiring in-person attendance would incur a greater expense” because the other candidates were working more closely to the rest of the company.  This concern with his remote work location had been expressed to the plaintiff repeatedly throughout the process.

In his best-case scenario, a reasonable juror could conclude that Plaintiff had marginally better technical training, had better leadership experience than Zito , and was in a marginally better geographic location. This is not enough.

Plaintiff has not produced enough evidence from which any reasonable juror could conclude that he had better leadership experience than Somogyi.

Comparative Qualifications with Some Other Evidence

Plaintiff could not show that he was plainly superior because of his comparable leadership experience and questions about his ability to effectively manage remotely from Seattle.  To prevail on the alternative argument, the plaintiff need not show that he was the indisputably best candidate; he need only show that his qualifications made him arguably “as qualified.”  He satisfied this burden with the employer’s admission that he had been ranked as one of the top four candidates.  

The second prong requires other probative evidence of discrimination.  For this, the plaintiff proffered two statements made to him: a joke about him being the next to retire and a disputed allegation by a co-worker that the hiring managers had expressed their belief that he should retire.  The Court held this was sufficient evidence:

By themselves, neither  . . . .  comment would likely be sufficient to create a genuine dispute. However, considering the comments together, we believe Plaintiff has produced probative evidence of discrimination.

The parties disputed whether the joke was made by anyone involved in the decision to hire the plaintiff.  However, the jokester was the hiring manager’s manager and had the authority to override her decision (although he had rarely done so). “Nevertheless, we need not determine whether Bowers was a decisionmaker because this Court has ‘held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.’” Further, it was irrelevant at this stage that everyone admitted the comment was a joke. “This Court has held, however, that statements may be probative evidence of discrimination even if they are made as a joke.”  This joke could contribute to a discriminatory atmosphere where discriminatory decisions are made.

We noted that evidence of a discriminatory atmosphere “may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.” . . . And while a workplace atmosphere replete with discrimination is not conclusive proof that an individual plaintiff is the victim of age discrimination, a discriminatory atmosphere “‘tend[s] to add “color” to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.’” . . .  Here, Bowers was a very senior leader at Westfield and his willingness to comment on and “joke” about a junior employee’s retirement status in the midst of that employee’s search for a new position could reasonably be interpreted as contributing to a discriminatory atmosphere at Westfiel

While the co-worker admitted telling the plaintiff that he should retire, he denied ever speaking with any of the hiring managers about the decision.   Nonetheless, the Court found that a jury could decide to credit the plaintiff’s memory – that his co-worker had in fact claimed to have spoken with the hiring managers – over the co-worker’s denial that he had ever done so. 

General Pretext

The Court rejected the plaintiff’s other evidence of pretext.  Although he was able to cast sufficient doubt on one of the employer’s explanations, he did not have evidence showing that the other explanations lacked a basis in fact, etc.

With respect to plaintiff’s perceived lack of passion for the position, he pointed out that one of the successful candidates had applied for any and every position after her current position had been eliminated.    The other candidate had previously left the industry altogether at one point to pursue a different field.   The plaintiff had also scored highly on an assessment.  “Considering all this, a reasonable juror could conclude that Lilly’s explanation that Plaintiff lacked passion for the Unit Leader position had no basis in fact and was pretextual.”

Plaintiff has cast doubt on some—but not all—of the reasons Defendants articulated for not hiring him. While [the hiring manager’s] explanation that he lacked passion for the Unit Leader position arguably has no basis in fact, Plaintiff has failed to cast doubt on [her] subjective beliefs that one candidate had more relevant experience and the other candidate presented a more creative plan. Since these are both nondiscriminatory bases for choosing to hire [them] over Plaintiff, Plaintiff has not created a genuine dispute under the general pretext test.

No Retaliation for Counterclaim

The plaintiff’s retaliation claim was based on the employer’s filing of a counterclaim for misappropriation of trade secrets.  The Court rejected this argument as well. 

While ‘”an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity,”. in some situations, the filing of counterclaims may constitute adverse employment action.  . . . The central question is whether the counterclaims are filed “not in good faith and instead motivated by retaliation.” . . . Stated differently, the Court must find (1) “the employer acted with retaliatory motive” and (2) that the employer’s counterclaims “lack a reasonable basis in fact or law.”

The employer’s claim was based on the plaintiff emailing trade secrets to the personal email accounts of himself and his domestic partner.   The trial court concluded that the plaintiff had not used improper means to access the information in violation of any policy and there was no evidence that anyone other than the plaintiff had accessed any trade secrets.   The plaintiff argued that the claims were “objectively baseless” because of the lack of precedent condemning emailing confidential information to an employee’s personal email account. “A claim is not objectively baseless simply because it fails.”

Defendants’ argument is not nearly as outlandish as Plaintiff tries to make it seem. Courts around the country have considered whether emails sent to oneself can constitute misappropriation. For example, in Aon PLC v. Infinite Equity, Inc., No. 19 C 7504, 2021 WL 4192072, at *14 (N.D. Ill. Sept. 15, 2021), the court found there was a reasonable likelihood of success on a misappropriation claim when an employee “forwarded emails from his Aon email address to his personal email address.” See generally
Mintz v. Mark Bartelstein & Assocs. Inc., No. 2:12-CV-02554-SVW-SS, 2013 WL 12182602, at *4 (C.D. Cal. June 14, 2013); CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 809 (D. Minn. 2018). Having failed to prove Defendants’ counterclaims lack a reasonable basis in fact or law, for this reason alone, Plaintiff’s claim of retaliation must fail.

The Court also rejected the argument that the employer’s counterclaim was retaliatory because it knew that other employees emailed information to themselves but only sued him for it after he brought an age discrimination claim.

There are many reasons an employer would not litigate every infraction employees commit. However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions. Additionally, Defendants only filed the counterclaims after Plaintiff brought the conduct to their attention. During the parties’ initial disclosures, Plaintiff mentioned he had emailed documents to his personal email account. Defendants sought leave to file the counterclaims after taking the time to audit Plaintiff’s email account. Finally, these were compulsory counterclaims that, if not filed in the present action, would be barred in future litigation.

 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.

Employer's Inadvertent Actions Effectively Ended Workplace Harassment, and Thus, Were Reasonable.

In June, the Sixth Circuit affirmed an employer’s summary judgment on workplace harassment and retaliation claims where the plaintiff had alleged that the employer’s investigation and response to the harassment claims were inadequate and denied her a promotion in retaliation for her complaints.  Doe v. City of Detroit, 3 F.4^th 294 (6^th Cir. 2021).   The plaintiff had been subjected to anonymous threats by a co-worker.  Although the employer interviewed a suspect following the second incident, it did not interview him following any of the death threats.  The Court affirmed dismissal of the hostile work environment claims because the employer’s response to each incident was reasonable and the final action – in inadvertently suspending and relocating the suspect – was apparently effective, and thus reasonable, in ending the anonymous harassment.  The Court also found no evidence that the plaintiff had been denied a promotion on account of her prior harassment complaints.

According to the Court’s decision, the plaintiff began transitioning about six months after being hired.  Following the plaintiff’s first series of medical procedures, a co-worker submitted complaints that the plaintiff had violated the employer’s dress code.  Although the plaintiff was informed about only the existence of the complaints, she was reassured that her attire was appropriate.  Following the plaintiff’s second series of medical procedures, her office name plate was defaced, which the City immediately rectified.  A few days later, the plaintiff received an anonymous gift bag with sex toys and a handwritten Bible verse about men wearing women’s clothing.  The employer conducted an immediate investigation, interviewed all nearby employees and required handwriting samples from each of them.  The perpetrator was never identified.  The investigation report recommended a few months later that a lock be installed on the plaintiff’s office door, but did not approve the plaintiff’s request for a security camera. 

Five months later, the plaintiff received a typed anonymous death threat.  The employer reported the incident to the police (which refused to investigate) and finally requested a lock for her office door, but refused the security camera, permission to keep her door shut during office hours or to permit her to work from home. A few employees were questioned, but not the individual who had previously filed the dress code complaints.  A few weeks later, another anonymous death threat was made. The City temporarily relocated the plaintiff’s office, installed locks and a security camera and again questioned a few employees, but not the employee who had previously made the dress code complaints.  At that point, the plaintiff suggested that the perpetrator might be that employee.  A few weeks after that, the employer learned that employee had inappropriately accessed the plaintiff’s Facebook page and discussed it with subordinates.  He was given a three-day suspension and his office was relocated onto a different floor from the plaintiff.  There were no further harassing incidents or threats made against the plaintiff.

The plaintiff then complained that her work was being subjected to more criticism, etc.  Her supervisor resigned and suggested someone else to be promoted instead of plaintiff.   The supervisor’s suggestion was not taken, but the decisionmaker promoted a different employee other than the plaintiff. 

The trial court and Sixth Circuit ruled in favor of the employer on the harassment and retaliation claims.   It addressed the City’s response to each incident, rather than evaluating whether the initial response was adequate for the escalation.   While the plaintiff and the alleged perpetrator were both supervisors, neither had authority over the other; they were essentially co-workers.  Thus, the Court evaluated the matter as co-worker harassment.  When workplace harassment is

committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action . . . To find liability, the employer’s response to a coworker’s harassment must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.” . . .  An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’” . . . . “The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.” . . . “Steps that would ‘establish a base level of reasonably appropriate corrective action’ may include promptly initiating an investigation[,] . . . ‘speaking with the specific individuals identified’” in the complaint, “following up with the complainant,” and “reporting the harassment to others in management.”

The employer immediately rectified the graffiti and conducted an immediate and thorough investigation following the gift bag incident.   The Court rejected the plaintiff’s argument that the employer’s response was unreasonable (in that no perpetrator was ever identified) because in another case the employer had unreasonably delayed 10 days in conducting an investigation, already knew the identity of the alleged perpetrator and had failed to separate the perpetrator from the victim with an administrative suspension.

“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” . . . “By doing so, ‘the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.’”

The Court also rejected the plaintiff’s argument that the employer’s actions were unreasonable in delaying the installation of door locks or security cameras following the first two incidents:

“a harassment victim may not dictate an employer’s action against a co-worker.” . . . . While taking these measures would have been reasonable, failing to do so does not render the city “so indifferent to [Doe’s] concerns that it essentially permitted the harassment to continue.”

The employer’s response to the first death threat was also found to be reasonable as the police were contacted within three days and a request was made to install locks on the plaintiff’s office door.  While the plaintiff argued that it was unreasonable to not have then interviewed the employee who had previously complained about her attire, she admits that she never suspected him at this time either and there was no evidence tying him to any of the incidents.

Further, on this record, it was not unreasonable for the city to require Doe to return to the office. Nothing in the record indicates that Doe’s job was capable of remote performance. And the city took steps to address the harassment. Although these steps were ultimately unsuccessful in preventing the final act of harassment—the note on May 22—the city did not “exhibit[] indifference rising to an attitude of permissiveness that amounted to discrimination.”

Finally, the Court found that the City’s response to the final threat was reasonable even though by then the plaintiff had identified a possible suspect and neither the employer nor the police ever interviewed him about any of the death threats.  Rather, it was after this final threat that the City learned about the Facebook incident, suspended the suspect and relocated his office.  After that, the plaintiff suffered no more harassment.  The Court agreed that even inadvertent action by an employer can be effective in ending workplace harassment.

An inadequate investigation may render an employer’s response unreasonable. . . . But the city also temporarily relocated Doe at her request to a different floor until locks and security cameras could be installed. And the city moved Allen to another floor shortly thereafter, which both Doe and Allen assumed had something to do with the Facebook incident. See Harris v. Sodders, No. 07-4398, 2009 WL 331633, at *2 (6th Cir. Feb. 11, 2009) (employer’s actions appropriate in part because “[e]ven though [employer] was unaware of the alleged harassment, his decision to transfer [the harasser] had the inadvertent effect of stopping the harassment”). Doe agrees that there have been no further incidents since May 22, 2017. If Allen was indeed responsible for these incidents, it appears that moving him, disciplining him, and installing locks and cameras effectively ended the harassment. . . . These efforts did not “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known,” so “we cannot say that the employer has itself committed an act of discrimination.”

Finally, the Court affirmed dismissal of the retaliation claim because there was no evidence that the decisionmaker based his decision in any way on the plaintiff’s protected conduct.  More than five months had passed since her last complaint and the promotion decision.   Her suspicions do no constitute evidence that the promotion decision was tainted or that her supervisor's criticisms were retaliatory.

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.

FCA Retaliation Claim Filed Five Days Too Late When Decision Was Made Prior to Written Notice

On Monday, the Sixth Circuit Court of Appeals affirmed the judgment on a False Claim Act retaliation claim on the grounds that the lawsuit had been filed five days too late.  El-Khalil v. Oakwood Healthcare, Inc., No. 21-2669 (6^th Cir. 1/10/22).   The physician alleged that his employment agreement with the defendant hospital was not renewed because he had reported to the federal government false Medicare claims being filed by the hospital’s staff.  He had appealed the denial of his staff privileges under the medical bylaws.  The final step was made to a joint conference committee, which heard oral argument and, after he had left for the evening, voted to affirm the denial on September 22 and notified him in writing on September 27.  He filed suit against the hospital three years later on September 27.  The Hospital moved to dismiss on the grounds that his lawsuit was untimely.  The courts agreed, finding that the decision had been made and verbally announced on September 22 – more than three years before he filed suit.  According to the statute, 31 U.S.C. § 3730(h)(3): “Such an action ‘may not be brought more than 3 years after the date when the retaliation occurred.”  Unlike other employment statutes, Congress did not create a discovery rule under the FCA retaliation provision based on when notice is provided.  “The statute simply adopts “the standard rule” that the limitations period begins when the plaintiff “can file suit and obtain relief.”

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 Appeals Court Reverses Employer’s Summary Judgment on Retaliation Claim Based on Workplace Investigation

 

Earlier this week, a unanimous Franklin County Court of Appeals affirmed summary judgment on a discrimination claim, but reversed summary judgment on a retaliation claim, finding sufficient evidence for a trial on whether the plaintiff was subjected to a workplace investigation and potential termination in retaliation for a Charge of Discrimination he had filed two months earlier.   Moody v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected to discrimination when he was given a paid three-day suspension for being hours late to work due to a misunderstanding about the work schedule.   During a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated patients, but he had never filed formal incident reports about any of those incidents.  He was then investigated for failing to file incident reports and threatened with a five-day suspension or termination.  He resigned and filed suit.  The Court found that a paid three-day disciplinary suspension which did not affect the plaintiff’s compensation, status, or other terms and conditions of employment could not constitute a material adverse employment action for purposes of employment discrimination.   However, subjecting the plaintiff to a workplace investigation two months later could constitute an actionable retaliatory action and was sufficiently close in time to his protected conduct of filing a Charge of Discrimination.  The Court also found sufficient evidence of pretext when the employer’s explanation was challenged by an independent witness who agreed with the plaintiff that there was no mandatory duty to file a formal incident report for relatively minor infractions which could be adequately resolved by reporting them to the Charge Nurse.

According to the Court’s opinion, the plaintiff received disciplinary action after engaging in horseplay at work.  He was directed to read some materials and prepare a performance improvement plan within a week, which he failed to do.  He was then given a written reprimand for failing to complete the assignment.    A few months later, he was given a one-day paid suspension for creating a workplace disturbance.  He then transferred to a new supervisor and had no further issues for almost three years.  However, he was then more than two hours late to work after relying on an earlier draft of the work schedule.  The next step in the progressive disciplinary policy was a paid three-day suspension.  Incorrectly believing that the bargaining agreement provided that his prior disciplinary actions dropped off after two years (instead of three years), he filed a Charge of Discrimination with the Ohio Civil Rights Commission, which was dismissed for lack of probable cause.  Two months later, he was interviewed as part of unrelated investigations of two co-workers.  He alleged during those investigations that the co-workers had been abusive towards patients.  Because he had never filed incident reports concerning any of those situations, he was then investigated and subjected to disciplinary action, including termination.  He resigned and filed suit.  The Court of Claims granted summary judgment to the employer.

A unanimous Court of Appeals affirmed in part and reversed in part.   The plaintiff failed to produce evidence of different treatment concerning most of the challenged employment actions.  His bare assertions that other employees, for instance, engaged in horseplay without disciplinary action was insufficient to create a material dispute of fact necessary to avoid summary judgment.   However, he did produce documentary evidence and a witness affidavit that a few other co-workers were late to work under similar circumstances and only received informal counseling, instead of formal disciplinary action.  Nonetheless, the Court concluded that the plaintiff could not prevail on a discriminatory treatment claim because his paid suspension had not altered his compensation, employment status or other terms or conditions of his employment.

"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis.  . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation."  . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “  . . . .  [citations omitted]

While terminations, failure to renew a contract, and unpaid suspensions can constate material adverse employment actions, “the Sixth Circuit has held that a paid suspension generally does not constitute an adverse employment action.”

We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .

In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.

However, the Court found sufficient evidence to support the plaintiff’s claim of retaliation.

In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").

We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim.  . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .

[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.

The Court found that the plaintiff also presented sufficient evidence to show that his protected conduct (in filing the Charge) was the cause of the workplace investigation because the investigation was conducted less than three months after his protected activity. 

We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation."  . . .  Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation.  . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection.  . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.

While the employer articulated a legitimate and non-discriminatory reason for investigating the plaintiff, the Court also found that he had presented sufficient evidence to question whether that explanation was pretextual for retaliation.   The plaintiff contended that filing incident reports was not mandatory for minor infractions and was able to cite to a statement made by a Registered Nurse during the investigation confirming his understanding.

[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs."  . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices  . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.

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.