In the Game of Thrones, You Either Win Or You Die

 Yesterday, a unanimous Sixth Circuit affirmed a Columbus nursing home’s summary judgment on claims of retaliatory discharge on the grounds that the plaintiff employee had failed to produce evidence of pretext for each of the employer’s stated explanations for terminating her employment.   Bashaw v. Majestic Care of Whitehall LLC, No. 24-3292 (6^th Cir. 3/5/25).  The Court found that the employer was justified to terminate her for secretly recording workplace conversations which included confidential patient information because it undermined workplace trust and created potential patient liability.  Further, she failed to prove that any similarly situated employee had comparably poor attendance.  Finally, she similarly failed to prove that it was pretextual to terminate her employment when she had told the HR Director that she was already looking for another job.   Accordingly, even if she proved a prima facie case of retaliatory discharge for engaging in protected activities in opposing allegedly illegal conduct towards employees and patients, her claims were dismissed because the employer articulated at least one non-discriminatory/retaliatory reason for terminating her employment which she failed to prove was mere pretext for illegal retaliation.

According to the Court’s opinion, the plaintiff was hired in November 2021 as the Director of Social Services and was terminated after four months.  In the last six weeks of her employment, she was late for the daily morning meeting 11 times and  missed 8.5 days without prior authorization.  She was unclear with Mt. Carmel hospital  on February 25 about whether the nursing home would take back a patient with significant psychological issues, which lead to threats of a government investigation.   She complained about patient care and on March 1 complained to the HR Director about the Executive Director’s insensitive, unprofessional and potentially discriminatory statements and actions towards staff and claimed that she was secretly taping workplace conversations in order to gather evidence.  (There is no indication that she was successful).  She also claimed that she and other directors were looking for another job and intended to resign if he was not replaced. 

In the meantime, the Executive Director had taken steps to clarify who had the authority to refuse a patient admission and had begun preparing a disciplinary action against the plaintiff concerning her attendance.   However, when he went to meet with her on March 1, she had already left work early, again without authorization.   The HR Director had already escalated the issue to the regional director, who began investigating the plaintiff’s concerns.  On March 2, the plaintiff had a heated confrontation with the Executive Director during the morning meeting about the patient and left the unfinished meeting and work, again without authorization.  The Executive Director then involved the VP of HR, who joined the existing investigation.  When the plaintiff was interviewed, she again indicated that she had been secretly recording workplace conversations in attempting to get evidence against the Executive Director.  The investigation failed to substantiate her allegations and she was fired a week later.  Litigation ensued and the employer was granted summary judgment on all claims.

The Court of Appeals held that she had to prove that all of the employer’s stated reasons for terminating her employment were pretextual in order to survive summary judgment.  Although it agreed that there were factual disputes about the misunderstanding with Mt. Carmel, it concluded that she failed to prove that employer lacked a basis for terminating her for (1) secretly recording workplace conversations that included confidential patient information; (2) poor attendance and (3) seeking another job with the intention to resign because she did not want to return to work.

Even if courts find some reasons pretextual, if “at least one other is not, the defendant employer is still entitled to summary judgment.”  . . . .  In other words, if the employer proffers a single independent nondiscriminatory reason for its conduct, that can defeat a retaliation claim.

The Court rejected her argument that she could not be legally fired for secretly recording workplace conversations because it was not illegal and the employer had not prohibited it in any policy.   The HR VP found this to undermine trust in the workplace and created a risk of liability to employer because each of the three recordings made included confidential patient information.  “But the lack of an official policy or law prohibiting the behavior does not itself demonstrate pretext  . . . And an employer may terminate an employee whose actions undermine the employer’s trust.”  In addition, employers “may terminate an employee for creating legal risk for the company,” which included potential exposure of protected health information without the patient’s informed consent.

The Court also rejected her argument that he attendance could not have motivated her termination because on March 1, the Executive Director only intended to warn her.  However, the also walked out early on March 1 and 2.  Further, she failed to produce evidence that any similarly situated employees had comparatively poor attendance.    She had to do more than identify a comparable co-worker.   Moreover, it was not the Executive Director’s decision to terminate her; it was the HR VP’s decision and she was not required to follow his recommendation of disciplinary action.

Finally, the Court agreed that the employer had shown an honest belief that the plaintiff did not want to return to work based on her comments to the HR Director about seeking another job and her statements to the VP that she did not feel comfortable working in the building because it was a toxic environment and she felt gaslighted.   It was apparently irrelevant that she also told the VP (on a recorded call) that she loved her job and the residents.

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.

Court Rejects Plaintiff's Brief "Self-Serving" Denial of Misconduct Which Justified His Discharge as Insufficient to Prevent Summary Judgment

 Last month, the Ohio Court of Appeals affirmed an employer’s summary judgment on a breach of employment agreement claim after the employer fired the plaintiff a year before his employment agreement expired.   Stedke v. Hume Contracting, L.L.C., 2025-Ohio-323. The Court found that even though there was no provision in the agreement describing the circumstances under which the employer could terminate the employee before the conclusion of the three-year term, it was implied that an employer can always lawfully terminate an employee for just cause.  In this case, the employer provided evidence that the plaintiff had threatened a co-worker with physical violence and the plaintiff’s brief, “self-serving” denial without elaborating on any details from personal knowledge was insufficient to prevent summary judgment. 

According to the Court’s opinion, the plaintiff was hired after selling most of the assets of his business to the defendant employer.  He then signed an employment agreement providing him with employment for three years.  The agreement did not contain any provisions governing how or whether it could be terminated prior to the conclusion of the three year term.  However, it contained a non-disparagement clause which prohibited the plaintiff from disparaging the employer’s business during the term of his employment and thereafter, regardless of whether he was terminated “for any or no reason.”   Two years into his agreement, he was fired for allegedly disparaging the employer, removing its equipment without authorization and threatening a co-worker.  Litigation ensued on a wide variety of issues.  The trial court found that the employer failed to produce any evidence of disparagement, but provided three affidavits regarding the threats of physical violence.  The plaintiff merely denied those allegations, but did not provide any details to support his denial. 

“Unlike an at-will employment relationship, an employer who is a party to an employment contract of definite term may properly discharge the employee only for ‘just cause.’”  Because the contract did not define just cause, the court looked to “common sources” for its definition.

 “Conduct which gives rise to ‘just cause’ for termination is that kind of conduct which an ordinarily intelligent person would regard as a justifiable reason for discharging an employee.”   . . . .

“To justify the discharge of an employee for just cause, ‘it is sufficient for the employer to show that the employee was guilty of a default in duty whose natural tendency was to injure [its] business, and actual injury thereto need not be shown.’ . . .  “Negligence, neglect of duty, misconduct, injury to the employer’s business, dishonesty, or disloyalty are all grounds for termination for just cause regardless of the existence of an employment contract.”

The employer presented three affidavits about the plaintiff coming onto the property, attempting to remove some of the employer’s equipment and threatening a co-worker with physical violence for objecting and reporting his conduct.  In response, the plaintiff provided an affidavit merely denying the allegation in fifteen words without any elaboration.  The dissenting judicial opinion found this affidavit sufficient to create a material dispute of fact, but the majority found it to be an inadmissible self-serving statement. 

“‘Generally, a party’s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact.’”  . . . “‘Otherwise, a party could avoid summary judgment under all circumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party.’” . . .

In this case, the plaintiffs failed to corroborate Stedke’s self-serving affidavit with any evidence and Stedke’s affidavit does not include any specific facts (made on personal knowledge) which would create a triable issue.

  . . . .

 . . . a self-serving affidavit can be used to defeat an opponent’s motion for summary judgment if it contains factual assertions that are made on personal knowledge. . . .

 . . . . That is, there is no evidence in the record before this court showing that Stedke responded to the defendants’ motion for summary judgment with any specific details (based on his personal knowledge) about his conversation with Eisert to create a genuine dispute. Accordingly, there is no doubt that Stedke’s words are self-serving and lack corroborating evidence to demonstrate a genuine issue of material fact. . . .

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.

NLRB General Counsel’s Valentine’s Day Gift for Employers

On Friday, and as expected, the new Acting General Counsel of the NLRB rescinded a number of the General Counsel memoranda issued by the prior NLRB General Counsel where she was attempting to create new laws through the NLRB.  As explained in the NLRB Press Release, the action was taken in part to reduce the large case backlog created by the aggressive number of priorities: “The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.” The rescinded memoranda include issues involving confidentiality in separation agreements, non-compete cases, student athletes, remedies, electronic monitoring, captive speeches, etc. Some of her memos have been rescinded entirely, while others are suspended pending further guidance.

The Memorandum reads in full as follows:

Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload. Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.

Since assuming the role of Acting General Counsel, working with experienced field and headquarters professionals, I have conducted a comprehensive review of active General Counsel Memoranda and determined that the following actions are warranted.

A.      The following General Counsel Memoranda are rescinded:

• GC 21-02 Rescission of Certain General Counsel Memoranda

• GC 21-03 Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines

• GC 21-04 Mandatory Submissions to Advice • GC 21-08 Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act

• GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment)

• GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights

• GC-23-04 Status Update on Advice Submissions Pursuant to GC Memo 21 04

• GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision

• GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act

• GC 24-04 Securing Full Remedies for All Victims of Unlawful Conduct

• GC 24-05 Section 10(j) Injunctive Relief and the U.S. Supreme Court’s Decision in Starbucks Corp. v. McKinney • GC 24-06 Clarifying Universities' and Colleges' Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act

• GC 24-06 Attachment

• GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act

• GC 25-02 Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations

B.      The following General Counsel Memoranda are rescinded pending further guidance:

• GC 21-05 Utilization of Section 10(j) Proceedings

• GC 21-06 Seeking Full Remedies

• GC 21-07 Full Remedies in Settlement Agreements

• GC 22-01 Ensuring Rights and Remedies for Immigrant Workers Under the NLRA

• GC 22-01 (en Español) Asegurando los Derechos y Remedios para Trabajadores Inmigrantes Bajo la NLRA

• GC 22-02 Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns

• GC 22-03 Inter-agency Coordination

• GC 22-05 Goals for Initial Unfair Labor Practice Investigations

 • GC 23-01 Settling the Section 10(j) Aspect of Cases Warranting Interim Relief

• GC 23-07 Procedures for Seeking Compliance with and Enforcement of Board Orders

• GC 24-01 (Revised) Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC

• GC 25-03 New Processes for More Efficient, Effective, Accessible and Transparent Casehandling

• GC 25-04 Harmonization of the NLRA and EEO Laws

 

C.     The following General Counsel Memorandum is rescinded as no longer relevant in light of the Board’s Decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024):

• GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings

D.      The following General Counsel Memorandum is rescinded and the guidance in GC 18-01 is restored:

• GC 23-03 Delegation to Regional Directors of Section 102.118 Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies

E.       The following General Counsel Memorandum is rescinded as COVID-19 is no longer a Federal Public Health Emergency (PHE).

 • GC 21-01 Guidance on Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020).

 

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.

President Trump Takes Broad Aim at DEI and Takes Steps to End All Affirmative Action in Employment by Revoking EO 11246

On Tuesday, President Trump signed an Executive Order to end employment preferences based on, among other things, race and gender, as well as programs to encourage diversity, equity and inclusion.  He has directed federal agencies to investigate private sector employers which are not complying with equal opportunity statutes (like Title VII) and are, instead, showing impermissible racial and gender preferences.  While the actions aimed at DEI programs was expected, the Executive Order goes as far as to revoke the 1965 Executive Order 11246 which established and governs affirmative action programs required of virtually all federal contractors.   While federal contractors may continue to comply with their Affirmative Action Plans and the current regulations for 90 days, OFCCP has been directed to immediately cease promoting “diversity,” holding employers liable for affirmative action or requiring employers to obtain workforce balancing based on race, gender, sexual identity, religion or national origin, etc.  DEI objectives are to be removed from grants and federal acquisition materials.  The Order specifically provides that it does not affect employment preferences for veterans and does not prohibit free speech, including speech which endorses or advocates DEI initiatives (even if considered to be illegal under this Executive Order).  The Order is silent about the statutory Rehabilitation Act and Vietnam Era Readjustment Act requirements of federal contractors.  The DOL and OFFCP indicated on Thursday that all pending EO 11246 investigations, enforcement activity and conciliations will be closed and the Rehab and VERA investigations and reviews are being held in abeyance pending further guidance.

The Order also indicates an intention to formulate a policy of private sector enforcement of EEO laws against DEI policies.  As part of that initiative:

As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;

The text of the order is below, with parts boded of particular interest:

ENDING ILLEGAL DISCRIMINATION AND RESTORING MERIT-BASED OPPORTUNITY

Section 1.  Purpose.  Longstanding Federal civil-rights laws protect individual Americans from discrimination based on race, color, religion, sex, or national origin.  These civil-rights protections serve as a bedrock supporting equality of opportunity for all Americans.  As President, I have a solemn duty to ensure that these laws are enforced for the benefit of all Americans. 

Yet today, roughly 60 years after the passage of the Civil Rights Act of 1964, critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called “diversity, equity, and inclusion” (DEI) or “diversity, equity, inclusion, and accessibility” (DEIA) that can violate the civil-rights laws of this Nation.

Illegal DEI and DEIA policies not only violate the text and spirit of our longstanding Federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system.  Hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex.

These illegal DEI and DEIA policies also threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society, including all levels of government, and the medical, aviation, and law-enforcement communities.  Yet in case after tragic case, the American people have witnessed first-hand the disastrous consequences of illegal, pernicious discrimination that has prioritized how people were born instead of what they were capable of doing.

The Federal Government is charged with enforcing our civil-rights laws.  The purpose of this order is to ensure that it does so by ending illegal preferences and discrimination.

Sec. 2.  Policy.  It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work.  I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.  I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.

Sec. 3.  Terminating Illegal Discrimination in the Federal Government.  (a)  The following executive actions are hereby revoked:
(i)    Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations);
(ii)   Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce);
(iii)  Executive Order 13672 of July 21, 2014 (Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity); and
(iv)   The Presidential Memorandum of October 5, 2016 (Promoting Diversity and Inclusion in the National Security Workforce).

(b)  The Federal contracting process shall be streamlined to enhance speed and efficiency, reduce costs, and require Federal contractors and subcontractors to comply with our civil-rights laws.  Accordingly:
(i)    Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), is hereby revoked.  For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.
(ii)   The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:
(A)  Promoting “diversity”;
(B)  Holding Federal contractors and subcontractors responsible for taking “affirmative action”; and
(C)  Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.

(iii)  In accordance with Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), the employment, procurement, and contracting practices of Federal contractors and subcontractors shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation’s civil rights laws.

(iv)   The head of each agency shall include in every contract or grant award:
(A)  A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
(B)  A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
(c)  The Director of the Office of Management and Budget (OMB), with the assistance of the Attorney General as requested, shall:
(i)    Review and revise, as appropriate, all Government-wide processes, directives, and guidance;
(ii)   Excise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil-rights laws; and
(iii)  Terminate all “diversity,” “equity,” “equitable decision-making,” “equitable deployment of financial and technical assistance,” “advancing equity,” and like mandates, requirements, programs, or activities, as appropriate.

Sec. 4.  Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences. 

(a)  The heads of all agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.

(b)  To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.  The report shall contain a proposed strategic enforcement plan identifying:
(i)    Key sectors of concern within each agency’s jurisdiction;
(ii)   The most egregious and discriminatory DEI practitioners in each sector of concern;
(iii)  A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences.  As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
(iv)   Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
(v)    Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
(vi)   Potential regulatory action and sub-regulatory guidance.

Sec. 5.  Other Actions.  Within 120 days of this order, the Attorney General and the Secretary of Education shall jointly issue guidance to all State and local educational agencies that receive Federal funds, as well as all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program under Title IV of the Higher Education Act, 20 U.S.C. 1070 et seq., regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

Sec. 6.  Severability.  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

Sec. 7.  Scope.  (a)  This order does not apply to lawful Federal or private-sector employment and contracting preferences for veterans of the U.S. armed forces or persons protected by the Randolph-Sheppard Act, 20 U.S.C. 107 et seq.
(b)  This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c)  This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

Sec. 8.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:
(i)   the authority granted by law to an executive department, agency, or the head thereof; or
(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)  This order is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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 Finds Adult Sibling Could be "Child" Under In Loco Parentis FMLA Theory and False Unemployment Compensation Answers Could Be Retaliatory

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v.  Brentlinger Enterprises, No. 23-2582 (6^th Cir. 12/13/24).   It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister.   It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.

According to the Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was dying from cancer and the plaintiff (who worked in Columbus) was helping her other sister (who apparently lived in another state) to care for her.  Her request for FMLA leave was denied because she was not the parent.  However, she was given paid and unpaid leave and her work schedule was reduced to permit her more time off.  That being said, she alleged that the HR Representative indicated that she should choose between her sister and her job.  When her healthy sister’s flight was delayed, she claimed to have attempted to contact her employer on Sunday night to let them know that she would be late on Monday.  However, the text was not received until mid-Monday morning, after the employer attempted to call her when she was late reporting to work, and she was terminated.  Her sister died two days later.  The employer apparently informed the unemployment office that she abandoned her job, disenrolled her from the medical plan the next month, but then failed to send her a COBRA notice.  When her lawyer threatened to file suit under the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.

The trial court agreed that the FMLA does not allow for time off to care for a sibling and could not be “in loco parentis” unless that parental relationship or the serious illness began while the sibling was a minor. Otherwise, the list of enumerated relationships covered by the FMLA would be meaningless.  The court explained that “if merely caring for someone with a serious ailment could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that person.”

 However, the appellate court found that it was an issue of fact. In examining the FMLA, it concluded the statute and regulations to be ambiguous about when the parental relationship must have begun.  It found no requirement that it must begin before the onset of the serious illness.  It then looked at common law decisions (concerning mostly cases about survivorship benefits) and found that a cousin, sibling or aunt could qualify as a parent depending on the circumstances even though the relationship did not begin until adulthood. 

While the FMLA tells us what protections are available for in loco parentis parents and their children, this case hinges on whether [the plaintiff] was an in loco parentis parent at all. The FMLA neither defines “in loco parentis” nor specifies how or when these relationships form. We know that the FMLA contemplates in loco parentis relationships that involve children who are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis parent, can take time off to care for a sick child over the age of eighteen if that child has a disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that situation, the text does not say whether the in loco parentis relationship or the child’s disability must have started during the child’s minority. The text also does not specify whether the in loco parentis relationship must predate the child’s incapacity. Resolving this case requires us to answer those questions.

 . . .

we drew an analogy to legal adoption, which is not limited to minors. Id. The definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered on adoption: “A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” . . . .

 . . . [The employer] argues that Niewiadomski—which also surveyed the common law—weighs in its favor because there, we observed that an in loco parentis relationship “is essentially different from the relationship of brother and sister,” which does “not include the legal obligations existing between parent and child.”  . . .  But that observation just restates an obvious point: when a person acts in loco parentis to another, they take on duties of care and support that surpass what is typically shown toward a sibling. The observation does not rule out the possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an in loco parentis relationship formed when his slightly older cousin took him in.

 . . . .

Therefore, reading the FMLA against the backdrop of the common law, we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed. Indeed, under the common law, a debilitating condition was not a requirement at all.

It also concluded that she had alleged sufficient facts to warrant reconsideration, although it was still unclear whether she would qualify under the common law standard as a parent instead of as a sibling who shared care-giving duties with another sibling. “The district court’s concern assumes that ‘merely caring for someone with a serious ailment’ creates an in loco parentis relationship. As we describe later, that’s not so; it requires a more robust relationship.”    The court’s decision indicates that:

Between June 20 and 25, [the plaintiff] used her allotted paid time off to travel to Kentucky to take care of [her dying sister]. [She] alleges that she supported her sister financially by paying some portion of her bills and buying groceries and other essential household items. She also cooked her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her around in bed to prevent bed sores. She also provided emotional support. [Her] other sister  . . . . provided similar care to [the dying sister] during the same period. On some days, [the plaintiff] or [her other sister] took care of [the dying sister] alone, and on others, the sisters divided the responsibilities. [The other sister] was [the dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid days off, [the employer] allowed her to take unpaid leave at its discretion, but it was unclear for how long.

A number of factors remain to be explored.

The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis is “the intention, rather than . . . the act of the party.”  . . .  Accordingly, we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a parental nature, but also whether they have done so “with the intention” of serving as a parent.  . . .  It’s not enough that a person has provided for another as a parent might, though that “raises a strong inference that the person had assumed the character of a parent.” Id. The person “must have intended to assume” that role.  . . . . Other circuits examining the common law agree, emphasizing that “the loco parentis relationship is such that it must reside in the minds and hearts of the parties involved.”

But how do we know adult parties intended to assume a parental relationship? In some cases, we have relied on direct evidence that the parties thought of themselves as parent and child, including their internal communications and statements to others that they perceived themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a parent-child relationship, including “the kind of service done and the kind of thing given.” Banks, 267 F.2d at 538–39.

                   . . .

Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no immediate family or was estranged from immediate family—came to live with an older relative (though the cousin in Niewiadomski was only a few months older, while the aunt in Thomas was about two decades older).  . . . The cases have many similarities. We noted in both that the alleged in loco parentis parent took her cousin or nephew into her home and provided lodging, a seat at the table for meals, medical care, and clothing.  . . . The alleged in loco parentis children also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to household chores.  . . .  And in both cases, the younger relatives later served in the military and designated their aunt or cousin as the beneficiary of their statutorily provided military life insurance, identifying the relationship as parental . . .  Both servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.  . . .

Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas, we held there was.  . . . This distinction rested on several key factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as “brother” and “sister” and that “she considered the insured as a brother, and not as a child” was the “most conclusive factor” in the case.  . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.”

The Court also remanded to reconsider the retaliation claim.  The plaintiff alleged that co-workers with poor attendance were not terminated under similar circumstances and, if that she was not fired for being absent but in retaliation for having requested FMLA leave (even if she ultimately were not eligible for FMLA leave).   Also, the employer provided false information to oppose her unemployment compensation claim by claiming that she abandoned her job when it was admitted that she was fired and that she had not quit or abandoned her job.

A jury could find that making false statements to an unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family” because it can result in “the loss of income associated with unemployment benefits.”  . . .  The false statements, or threat thereof, may require a plaintiff to choose whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . . stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the former.

Interestingly, it did not find the threat of Rule 11 sanctions to be retaliatory because lawyers are supposed to send such a letter before filing a Rule 11 motion.

The Court also remanded the plaintiff’s ADA claim.  Although she was not entitled to leave under the ADA to care for her sister, it would violate the ADA to fire her because of her association with her dying sister.   She alleged that the HR Representative had told her that she should choose between her sister and her job and she was fired when she was late returning to work from caring for her sister.  She alleged that the employer made a discriminatory assumption that her sister was distracting her from her job duties. “The ADA thus prevents an employer from terminating an employee based on “unfounded fears that [the employee] would be distracted at work on account of” a loved one’s disability."

Finally, the Court affirmed the $85/day fine for failing to provide the plaintiff with the mandatory COBRA notice.  It maximum fine is $110/day. “ The district court reasoned that Chapman had not produced evidence that MAG violated COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of notice.”  . . .  Because she did not receive notice of her coverage options under COBRA, Chapman did not acquire health insurance until May 2020. Without coverage, she delayed treatment for a condition she later discovered was malignant skin cancer.”

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.