En Banc Sixth Circuit to Reconsider Olentangy School's Pronoun/Gender Identity Anti-Harassment Policy

 On Friday, the en banc (i.e., entire) Sixth Circuit Court of Appeals vacated the divided panel's decision rejecting a parent group's First Amendment challenge to the school's pronoun/gender identity anti-harassment policy, affirming a prior decision by Columbus Federal Judge Marbley.  The entire court will consider the case, which could have significant First Amendment ramifications, Title IX and maybe even affect the Court's prior decision in Meriwether v. Hartop (which had created an exception for preferred pronoun mandates if the speaker avoided using pronouns altogether).  The case is now again considered a pending appeal, has been opened to supplemental briefing and a new oral argument will be scheduled.  

FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

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 Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees.  Walden v. General Electric Int’l, Inc. No. 24-5141 (6^th Cir. 10/24/24).   The plaintiff could not show that he was qualified for the promotion when he continued to fail the test.  The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement.  The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not.   The  Court also rejected his speculative arguments that the younger employees did not complete the test by themselves. 

According to the Court’s opinion, the plaintiff had worked tool and die maker for decades, then accepted a job as machine operator with the defendant employer.  He later applied for a tool maker position which required at least five years of experience and promised the job to the qualified applicant with the most seniority.  However, the employer had agreed with the union several years earlier to require a passing 85% score on a written test which was jointly developed.  The plaintiff failed the test with only an 80% score (which had been rounded up), while two younger applicants passed with 100% and 92%.  The next month, the union and employer agreed to have a local community college develop and administer the test, which now had written and hands-on components.   They also lowered the passing score to 70%.   However, the plaintiff only received a score of 51%, which the other, younger applicant received a score of 69.6%, which was rounded up to 70%.  The plaintiff filed an EEOC charge, Unfair Labor Practice charge and sued bother the employer and the union.

The Court also rejected each of his arguments attacking the job posting and testing requirement. 

First, he asserts that taking the test was not actually a requirement because GE’s job posting did not mention it. But the posting says that it’s not exhaustive. After the posting lists certain minimum qualifications and a job description, a disclaimer states that any “classifications and definitions are merely for purposes of identification and general description and do not purport to be all inclusive or exhaustive of the actual requirements of any job so classified or defined.”  . . . . [He] parses these terms finely, arguing that the non exhaustive “classifications,” “definitions,” and “requirements” differ from “qualifications,” and so we should not read the disclaimer to apply to the posting’s “qualifications.” This argument fails because the posting on its face does not use these divisions strictly. For example, it states outside the paragraph labeled “Qualifications” that candidates must also have “satisfactory performance on their present job.” Id. That’s clearly a minimum qualification. And in any event, we have noted that “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to implement a testing requirement, multiple witnesses described how it did so, and the company made [him] aware of that when he applied.

The Court also refused to treat the job posting as a contract, which must be construed within its four corners under the parol evidence rule:

But though the CBA was a contract, the job posting was not. The CBA required GE to hire qualified candidates based on seniority, but it did not dictate which qualifications GE could set in the first place. Contract rules do not apply to discerning GE’s intentions with the job posting.

[He] probably means to say that the posting was an offer, one that he “accepted” by applying with the most seniority. But the posting wasn’t even that. At best, it was an invitation to be considered, or in contract-law terms, an invitation to offer, since nothing would have obliged GE to take any candidates.

The Court also rejected his argument that 80% should have been a passing score because the employer is entitled to set its own standards and he could not show that the employer had ever used a lower standard.  It also rejected his argument about subjective grading since not all answers perfectly matched the grading key verbatim and it also benefitted him at times since not all of his answers perfectly matched the answer key.

Yet he fails to acknowledge that GE graded the tests for substantive accuracy, not a verbatim match. [The supervisor] stated that he used his “professional judgment based on decades of relevant employment at GE Aviation, to determine when answers were substantively correct, even if they did not exactly match the language set out in the answer key.”

Finally, it rejected his argument questioning whether the younger employees completed the first test by themselves because the photocopies of the test had different levels of darkness in the written answers, some being dark black and some being gray.   This was particularly true when the other employee authenticated his test sheet and the plaintiff did not have any expert or other evidence to contradict that authentication. 

It’s true that a few of [one employee’s] letters appear more grey while the rest appear black, but the same is true of the other tests in the record. When we look at those tests, the same slight differences in color gradation show up. Keep in mind that we can see only digital copies of the original documents on our electronic docket. To support some alternative, nefarious explanation that would account for all the tests, [the plaintiff] would have to claim (and provide evidence) that [the supervisor] rigged each one, not just [his]. This [the plaintiff] has not done. That a bit of color was lost in electronic translation does not support an inference of discrimination.

The final five answers on [that employee’s] test similarly provide no evidentiary basis for questioning the test’s integrity. Though the writing appears in grey, that alone would not permit a reasonable jury to infer that [he] did not complete the test. Perhaps if GE claimed that [he] wrote only with a black pen, and a few answers appeared in red ink, then a court could conclude from the document’s face that a jury could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th 563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a document with multiple redlines and electronic comments could be authenticated). Not so here. GE’s position is not that [he] couldn’t have used different writing utensils, say, a pen on the first sitting and a pencil on the second. It’s merely that [he] completed the test. So nothing [the plaintiff] gives us contradicts GE’s position.

                   . . .

[The plaintiff’s] argument, at bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he] would have to prove that the document is what he claims it is—the work, in relevant part, of someone other than [that employee]. And since GE has put forth [that employee’s] testimony recognizing the handwriting, [the plaintiff] has to convince us that he would have something in response. He doesn’t. He gives us nothing concrete to work with, such as an expert analysis or another handwriting sample for comparison, that could contradict the sworn testimony of [the employee and the supervisor].

As for the second test, the Court rejected his argument that the younger employee did not meet the minimum qualifications because he had been a tool shop supervisor and not a regular employee.

The Court also rejected his claims against the union for refusing to take his losing case to arbitration. 

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 Wife's Joint Liability for Withdrawal from Multi-Employer Pension Plan by Husband's Business

Last month, the Sixth Circuit reversed a wife’s liability and affirmed a husband’s liability for over $1M in withdrawal liability from a multi-employer union pension plan of a single member corporation formerly owned and managed by the husband several years earlier.  Local 499 v. Art Iron, Inc., No. 22-3925/3926 (6^th Cir. 9/26/24).   While the evidence showed that the husband was the sole owner of the defunct corporation and his consulting business, there was no evidence that the wife’s hobby business of making jewelry was regular and continuous as required. 

According to the Court’s opinion, the husband owned a corporation which wound up its business in 2017, stopped paying taxes, sold its assets and distributed some of its proceeds to the husband as the sole shareholder and director.  Prior to that time, he had taken profit distributions from the corporation and also charged it consulting fees from his consulting business (a single member LLC), which continued to operate for several years after the corporation was dissolved and paid him with 1099-MISC forms instead of W-2s.   He and his wife (who owned her own single-member jewelry- making hobby-business LLC) shared a minor son.  The pension plan then sued both husband and wife for withdrawal liability and the district court agreed that they were jointly and severally liable since their single-member LLCs were under common control with the defunct corporation.   Notably, the wife had never responded to the pension plan’s motion or sought judgment in her favor.

The spouses disputed that their respective LLCs were “trades or businesses” for purposes of withdrawal liability.  The Sixth Circuit noted that:

Section 1301(b)(1) provides that, for ERISA purposes, all employees of trades or businesses that are under common control with an employer signatory to the pension plan shall be treated as employed by a single employer and all such trades or businesses are treated as a single employer. 29 U.S.C. § 1301(b)(1). Under the statute, this means that a trade or business under common control with Art Iron is treated as a single employer with Art Iron. The “primary purpose of the common control provision is to ensure that employers will not circumvent their ERISA and MPPAA obligations by operating through separate entities.”

The Court had no difficulty finding the husband’s consulting business to be a “trade or business”:

As the primary shareholder of [the corporation], [the husband] controlled how his income was allocated to him. He chose to receive income from [the corporation] in three different ways, as (1) employee wages, (2) shareholder distributions, and (3) independent-contractor fees for his consulting services. There is nothing in the record that suggests [he] received these payments for any purpose other than as income or profit.

The second factor, whether an activity is regular and continuous, is also met. According to the record, [he] provided consulting services to [the corporation] for several consecutive years including the year that [it] withdrew from the Plan. This regularity and continuity make [his] consulting business a “trade or business” under Groetzinger.

The Court rejected his argument that his consulting fees were wages because his “argument fails to account for the fact that tax returns are considered sworn statements, and well-established precedent dictates that contradicting sworn statements does not create a genuine issue of fact.”

The Court reversed the judgment against the wife because her hobby jewelry business did not qualify when she did not earn income from it every year, including 2017. “Her minimal level of engagement in her jewelry enterprise in 2017 falls well below what other cases have required for establishing whether continuity and regularity in a trade or business existed.”  It also refused to hold against her her failure to oppose the pension plan’s summary judgment motion because a court may not grant judgment merely because the adverse party failed to respond.

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.

HR's Failure to Document Leads to Factual Dispute and Dooms Employer's Summary Judgment on ADA Claims

Last month, the Sixth Circuit reversed an employer’s summary judgment on an ADA disability discrimination claim based on disputed issues of important facts about exactly what the employer did or did not do or say to the employee after she requested an accommodation for her COPD and the paint fumes.  Root v. Decorative Paint, Inc., No. 23-3404 (6^th Cir. 9/3/24).   She claims she was fired, but the employer claimed that management merely sent her home and wanted more information from her physician.  Ultimately, she was fired a few days later for an unexcused absence.  HR’s failure to document its actions or to give the plaintiff a reasonable accommodation form for her physician to complete doomed the employer’s summary judgment chances and required the entire matter to be submitted to a jury.  

According to the Court’s opinion, the plaintiff had worked for the small parts painting company on the Rework line (pulling and sanding blemished parts for repainting) for several years before the pandemic.   She also would fill in sometimes on the A and D lines for a couple of hours here or there.   She occasionally suffered from symptoms of COPD and asthma, but managed them well for several years.  During the pandemic, the company had laid off its employees and called them back in batches, but expecting them to work multiple roles while they slowly increased production.   However, all of the Rework employees remained assigned to their former duties, except for the plaintiff.  She was initially recalled and reassigned only to the D-line, working near heavy paint fumes for her entire 10-hour shift, instead of just a couple of hours as before.

When she experienced difficulty breathing, she called her doctor, explained her symptoms and requested to return to the Rework Department.  He then gave her a note explaining that she could not work around paint fumes, and did not explain or clarify that she could still perform her former Rework duties in the plant.   She gave her note to her supervisor, who gave it to HR.  No one agrees on what happened next.

• ·       HR contended that the entire management team discussed it and decided that the plaintiff should go home and re-visit with her physician what she could and could not do working in a paint plant if she could not be around paint fumes. The production manager, however, disputed that he participated in this conversation.
• ·       There was a meeting with the production manager, HR and the plaintiff where it was explained that her presence was a liability and she was sent home. 

o   The plaintiff testified that she was fired.

o   HR contended that the plaintiff was requested to get clarification from her physician, but did not give her any forms to have completed and did not take any notes.

• ·       HR contended that she called the plaintiff to follow up, but the plaintiff denied this and indicated her cell phone records do not show any such call.

·       When the plaintiff did not return to work after two days, HR backdated forms to indicate that her absences were unexcused and she was fired for attendance.

The trial court found that the plaintiff was not qualified to work in the plant since her physician had indicated that she could not be around paint fumes (which were everywhere in the plant) and had not clarified that she could still work in her former Rework department.   In essence, it was conceded that being able to work around paint fumes was an essential function of every job and her doctor’s note was viewed as a zero tolerance for paint fumes.

The Court agreed with the plaintiff that the employer was required to conduct an individualized assessment of her toleration for paint fumes.  However, there was a disputed issue of fact as to whether it did so.  HR contended that it did so and directed the plaintiff to get clarification and followed up with her a few days later.  The plaintiff contended that she was immediately fired and no one attempted to call her days later to get more information.  Accordingly, it was up to a jury to decide whether the employer attempted to conduct an individualized assessment as required by the ADA.

The Court also agreed that the plaintiff had proposed a reasonable accommodation of being reassigned to the Rework department since she had successfully worked there for 3 years before the pandemic.  Nonetheless, again, there was a disputed issue of fact for a jury to resolve whether the plaintiff had proposed a reasonable accommodation of her reassignment or whether she had requested zero tolerance to paint fumes.  Everyone seemed to agree that she never mentioned the reassignment in the meeting with HR or the production manager.  

The Court also found that there was a disputed issue of fact as to why the plaintiff was fired – her accommodation request or her unexcused absence.  Different burdens of proof would apply depending on whose version the jury believed.  It could be direct evidence of discrimination if the plaintiff were believed and indirect (i.e., the McDonnell-Douglas burden shifting) if the employer’s explanation were believed.  The trial court had not addressed this issue at all because it had found the plaintiff to be unqualified to work in a paint plant.

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.