Monday, March 17, 2025

Sixth Circuit Rejects Challenge to Severance Agreement By Highly Educated, Experienced and Well Compensated Plaintiff With Months to Consider Terms

Last month, the Sixth Circuit Court of Appeals affirmed the dismissal of race and age discrimination claims on the grounds that the plaintiff had signed a valid release of all discrimination claims.  Jamil v. Mercedes-Benz Financial Services USA, LLC,  No 24-1871 (6th Cir. 2/4/25).   The plaintiff was highly educated, experienced with contracts and had over 4.5 months to consider the severance agreement (which provided her with 18 months of pay to bridge her to retirement age).  The Court rejected her allegation that her signature was not knowing and voluntary in light of her education, experience and amount of severance pay, and her admission that the agreement was straightforward, and that she chose not to consult with an attorney.  It also rejected her claim that she had been mislead about the reason for her termination or that this would invalidate the agreement.  Finally, it denied her motions to extend discovery when she waited four months to notice depositions. 

According to the Court’s opinion, the plaintiff had several advanced college degrees and worked for more than 10 years as a finance executive, with several oversees assignments.  After conflicting with a supervisor about whether to extend credit to particular dealerships, she was informed that she was being sent back to the USA instead of to her next overseas assignment and that she would have to accept a demotion, if any positions were even still available, or sign a severance agreement within 4.5 months.  The severance agreement provided for 18 months of severance and contained a waiver of all employment discrimination claims.  After being told that no positions at her level or immediately inferior level were available and after learning that others had received transfers upon their repatriation which she had desired, she signed the severance agreement, but later filed claims for age and race discrimination.   The trial court granted the employer’s motion for summary judgment and denied her motions to extend discovery. 

Federal law governs the validity of a release of employment discrimination claims.

To determine whether a release was knowingly and voluntarily executed, we assess: “(1) plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.” . . . Under the last factor, we consider whether fraud, duress, or other breach-of-contract defenses render the severance agreement unenforceable.

The Court of Appeals rejected her argument that the release was not binding because she had four college degrees and experience with lawyers from her 10 years as a finance executive.  It rejected her argument that her contract experience was not with severance agreements because she also admitted that the agreement was straightforward and so she did not need to consult with an attorney.

The Court agreed that 4.5 months to consider the terms of the agreement was far more than necessary. “As much as she now asserts that some terms were unclear, it was her “obligation to seek [counsel] before she signed if she felt she did not understand the [agreement].”

In addition to her admission that the terms were straightforward, the Court noted that “ “a law degree” was unnecessary “to grasp the import of these terms.”  It did not find that the 18 months of salary was unfair or insufficient was consideration.

Finally, it rejected her allegation that she had been deceived into signing the agreement by numerous representations that there were no open positions available when, in fact, there were comparable positions that the employer filled with other employees being repatriated.   The Court noted that the final straw which motivated her to sign the agreement was learning that a position she had desired was filled with another co-worker.  She had suspected for a while that her former supervisor was blocking her from being rehired.

Simply put, while  . . .  human resources department may have overstated the company’s financial difficulties, the record shows that [she] signed the contract with her eyes wide open. [She] knew there were no positions available for her, but that such positions were available to others. The key inquiry here is whether [her] release of claims was knowing and voluntary, and she voluntarily signed the agreement with full knowledge. The totality-of-the-circumstances factor favors [the employer].

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.

Thursday, March 13, 2025

Sixth Circuit Affirms Dismissal of ADA Reasonable Accommodation, Discrimination and Retaliation Claims by Toxic Employee

On Monday, a divided Sixth Circuit affirmed an employer’s summary judgment on claims of failure to accommodate and disability discrimination and retaliation. Woodie v. Motorola Solutions, Inc., No. 24-3257 (6th Cir. 3/10/25).    A unanimous Court found that the plaintiff could not show pretext, retaliation or disability discrimination when he had been terminated after repeatedly being abrasive to customers and colleagues and often threatened to resign when given feedback or removed from assignments.   Noting that he had objected to his work and travel schedule for multiple reasons, a divided Court found that he had failed to request a reasonable accommodation or start the interactive process when he refused to contact the employer’s accommodation department despite referrals each time he requested a schedule change because of his health.  The dissent acknowledged this to be a possible failure to commence the interactive process, but concluded that the employer had a duty to do more than refer him to HR, which should have reached out to him to discuss the issue after his request to his supervisors for a scheduling accommodation. 

According to the Court’s opinion, the plaintiff claimed to suffer from nocturnal epilepsy.  His job involved traveling 75% of the time, including weekends, but not, apparently, evenings or nights.  When the travel was increased to 80%, he objected vigorously on behalf of all employees and continued to complain for the remainder of his employment.  He apparently offended customers and colleagues by intruding on the duties and responsibilities of others and insisting on doing everything his own way.  He was removed from one job at a customer’s request for being arrogant and abusive.  He was removed from other jobs as well under similar circumstances.  He usually responded to feedback and adverse employment assignments by threatening to resign and was insubordinate to his supervisors.  A few times, he requested vague schedule changes on account of his health.  However, every time he was referred by his supervisors to Human Resources to pursue a possible schedule change/accommodation, he declined to do so.  Ultimately, he was terminated without cause on account of his inability to modify his offensive and insubordinate comments despite multiple coaching.  He found another job the next day and was only unemployed for a month.   He filed suit alleging failure to accommodate, disability discrimination and retaliation.   The employer obtained summary judgment.

The Sixth Circuit affirmed dismissal of the claims.  The unanimous panel agreed that he had no direct evidence of disability discrimination and could not show that the reason for his termination was pretextual.  He admitted to making insubordinate comments and threatening to resign repeatedly when he did not get his own way.  He also did not deny that multiple customers had requested his removal from their projects because of his toxic attitude and that he did not get along well with his colleagues. 

The Court also refused to infer pretext from the fact that his termination was coded “without cause,” meaning that he could possibly be rehired when the employer contended that it had fired him for cause as described above.

The Court’s majority found that his steadfast refusal to pursue a reasonable accommodation through HR despite multiple referrals by his supervisors constituted a failure to request an accommodation.  (It also indicated a breakdown in the interactive process on his part).  The majority focused on his failure to provide medical documentation of his disability (even though the employer never specifically requested it at this point).

On numerous occasions when [the plaintiff] requested a travel change based on his disability, his supervisors and HR directed him to OHR in the event he need an accommodation. Even before requesting travel changes, [he] told  . . . , his immediate supervisor, that he had nocturnal epilepsy. [His supervisor] directed [him] to contact OHR if he needed an accommodation, and he offered to contact OHR for him. Woodie declined. When [he] asked [a manager] for a schedule change, [that person] told him that he didn’t have the authority to provide an accommodation for a disability; such a request had to go through OHR. So he told [him]  to contact OHR. [Yet another supervisor] also told [the plaintiff] he had to go to OHR to request a disability accommodation. [That person] then notified an “HR person that [he] ha[d] somebody that might be requesting a medical accommodation.”  . . .  [The plaintiff] mentioned his medical condition to  . . .  a Human Resources Business Partner, who told [him] that he could “always apply for a reasonable accommodation if needed” and gave him the OHR policy.  . . . [He] again declined.

[The plaintiff] was thus aware of [the employer’s] process for requesting a disability accommodation. He was given the policy, and at each turn, his supervisors directed him to contact OHR because only OHR could determine whether [he] was disabled and needed an accommodation. [One supervisor] contacted HR to inform them of a possible pending request, and [he] discussed his disability with HR. Despite all of that, at no time in his employment with [the employer] did [he] contact OHR. [He] thus failed to request an accommodation sufficient to start the interactive process under the ADA.  . . .

The dissent, however, agreed that the plaintiff’s refusal to contact HR could constitute a breakdown in the interactive process, but would have faulted the employer for not doing more than refer him to HR.  Instead, the dissent found that this request to his supervisors was sufficient to constitute a request for a reasonable accommodation and it was the employer which had the duty to reach out to him instead of setting up a process where he had to contact HR. 

But [his] failure to follow [the employer’s] policy goes to [his] participation in the interactive process; it does not impact whether he requested an accommodation. . . .

 . . . . Here, too, [his] failure to follow [the employer’s] accommodation policy is relevant—not to whether he requested an accommodation— but to whether he caused a breakdown in the interactive process.

Once [he] requested a reasonable accommodation, [the employer] “ha[d] a duty to engage in an interactive process.”  . . .  This duty “requires the employer to initiate an informal, interactive process, in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  . . . .  This process is mandatory and both parties must participate in good faith.  . . .

 . . .. Courts should also “attempt to isolate the cause of the breakdown [in the interactive process] and then assign responsibility.”  . . .  Thus, if [he] caused the breakdown in the process, he cannot recover for [the employer’s] failure to accommodate or failure to engage in the interactive process. . . . .

There is a genuine factual dispute about whether [the employer] caused the breakdown in the interactive process. [He] repeatedly requested a reasonable accommodation from his supervisors starting in November 2020. Yet no one at [the employer] ever engaged with him to determine an appropriate accommodation, even though [it] had “a duty [to] inquire further.”

True, [his] supervisors told him to contact [the employer’s] human resources department about filing a formal request, which he did not do. Even so, our precedent and EEOC Guidance both suggest that the ADA required [it] to do more than just refer [him] to human resources. We have held that an employer participates in the interactive process in good faith when “it readily meets with the employee, discusses any reasonable accommodations, and suggests other possible [accommodations].” . . .

 . . .

Moreover, [his] failure to follow [its] accommodation policy did not excuse [it] from engaging in the interactive process. . . .

An employee’s failure to file a formal accommodation request does not end the interactive process. True, “an employer may ask the individual to fill out a form or submit the request in written form,” and can also ask that the employee provide “reasonable documentation” related to his disability. See EEOC Guidance, at ¶ 3;  . . .  And where the employee’s disability or need for accommodation “is not obvious,” the employee is not entitled to an accommodation if he refuses to provide such documentation. . . . “the employer cannot ignore the initial request,” id. at ¶ 3, and “failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could [still] result in liability for failure to provide a reasonable accommodation,” id. at ¶ 6. That is exactly what [the employer] did here—ignore [his] initial requests for an accommodation just because he never filled out a form.

 

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.

Monday, March 10, 2025

Sixth Circuit Reverses Employer's Summary Judgment on Racial Harassment and Retaliation Claims Based On "Seemingly Neutral" Actions.

Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a racial harassment and retaliation claim.  Jones v. Fluor Facility & Plant Services, No. 24-5249 (6th Cir. 3/5/25).   The Court found that the plaintiff had produced enough evidence that "seemingly neutral" conduct was race related, severe and pervasive.   The plaintiff had also complained to his manager and supervisor, who took some remedial action, but his co-workers then began ostracizing him and hiding his equipment.  HR referred to his as “horseplay” that was unrelated to his race even though he was often referred to as “boy” and a ‘rapper” and “basket ball player.”

According to the Court’s opinion, the plaintiff had been hired for the day shift, when he was harassed by a white co-worker for two weeks.  That co-worker was fired and the plaintiff was transferred to the nigh shift, where there were only five employees.  He was again racially harassed, including the n-word.  His supervisor took action within two weeks without him having to complain.  Thereafter, he was subjected to less obvious harassment, including hiding his equipment, ostracizing him, and stereotypical comments about how he must be good at basketball or be a rapper.  After he was counselled for working without his safety harness, which he alleged had been hidden from him by his racist co-workers, HR conducted an investigation which found the “horseplay” was unrelated to his race.   However, the investigation seemed to stall for several months, so he filed an EEOC Charge.  The district court also agreed that the alleged harassment, although daily, was not severe or pervasive enough to constitute actionable harassment and seemed unrelated to his race.   The Sixth Circuit reversed.

We conclude that [the plaintiff] has established, at the very least, a factual dispute as to whether this seemingly neutral conduct was race-related. We have said that “[c]onduct that is not explicitly race-based may be illegally race-based and properly considered in a hostile-work-environment analysis when it can be shown that but for the employee’s race, [he] would not have been the object of harassment.”

  . . . .

[The Plaintiff] presents evidence of two categories of incidents fairly tied to his race. The first set of incidents are verbal harassment directly linked to Jones’ race, the second set of incidents may facially present as race-neutral, but a factfinder could nevertheless infer that they were race-based.  . . .

As to the first category, Jones established three uses of the n-word by his coworkers: One direct usage, when [one co-worker] referred to [the plaintiff] as a “nigger,” and two indirect usages, when [another co-worker] used the term during the November 9 meeting to argue that it should be okay to continue to refer to [him] that way. The n-word is indubitably racist, “highly offensive and demeaning,” . . .

As the district court acknowledged, [the plaintiff] also submitted evidence that [a co-worker] goaded him to make racist jokes, and [that co-worker] told racist jokes himself. Whether [his] evidence of the “content or frequency” of these occurrences was insufficient, or whether they were “mere offensive utterances,” as the district court concluded,  . . .  goes to whether the harassment Jones faced was severe or pervasive, but not to whether the harassment was race-based. A factfinder could readily conclude that “but for” [his] race, he would not have been the subject of [that] goading.  . . .  The same is true for [that co-worker’s] comment that another white coworker,  . . . , was [his] “boy” after [that person] spilled oil on himself. [He] fairly understood this comment to be racial in nature, as it allows the inference that [the co-worker] was implying a familial relationship between [the person] and [the plaintiff] after [the person’s] skin was presumably rendered black because of the oil.

. . . “facially neutral abusive conduct can support a finding of animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly discriminatory conduct.” . . .

For the same reasons, we can attribute racial motivation to the night crew’s ostracization of [the plaintiff]. There were “multiple instances in which [he] was ostracized” as the only African American on the night crew. . .  As [his supervisor] testified, efforts to exclude [him] were led by [two coworkers], who had previously made racist comments or used racial epithets. Further, the ostracization coincided with racist verbal harassment. This provides sufficient evidence for a reasonable factfinder to conclude that Jones’ complained-of ostracization was based on race. . . .

A rational factfinder could also find that other incidents cited by [the plaintiff] that may lack explicit racial animus may nevertheless constitute racial harassment under Title VII. For one, [he] presented evidence that his white coworkers referred to him as “boy.” We have said that although not explicitly racial, a white colleague “referring to an adult African American colleague as ‘boy,’ without ‘modifiers or qualifications’ can qualify as evidence of impermissible racial bias.” . . . . Likewise, white coworkers’ comments referencing [him] being a rapper or a basketball player may not be explicitly racial out of context. But these comments undoubtedly reflected African American stereotypes such that a rational factfinder could find that they would not have been made but for Jones’ race, as Jones recognized.  . . . . Therefore, the comments may be “properly considered in a hostile-work environment analysis.” . . .

  . . .

In the present case, the district court erred in granting summary judgment to [the employer] on the severe or pervasive prong of [his] claims because there is sufficient evidence in the record that he subjectively regarded his work environment as abusive, and that his coworkers’ racial harassment was severe or pervasive enough for a reasonable person to find his work environment hostile. The district court did not separately evaluate the subjective and objective prongs of the severe or pervasive test and appeared to proceed solely on the objective prong. Nevertheless, [the employer] argues that [he] did not subjectively perceive a hostile work environment because he stated that [a co-worker’s] use of the n-word was a “term of endearment,” and he only complained of racial harassment in March 2021, “‘saving’ his complaint” for when he faced discipline for failing to use his harness.   . . .  We reject [its] arguments inasmuch as Jones has provided sufficient evidence that he subjectively regarded his work environment as hostile.

As an initial matter, “the intent of the alleged harasser is irrelevant in the court’s subjective prong analysis.”  . . .  That [the plaintiff] perceived that [a particular co-worker] meant his use of the n-word as a term of endearment does not mean that [he] perceived the slur to be inoffensive. And [the co-worker’s] intent “is not a defense under the subjective test if the conduct was unwelcome.”  . . .  [He] provided sufficient evidence that he regarded [the co-worker’s] use of the n-word to be offensive and unwelcome. [He] characterized [that] use of the slur as a “term of endearment” because [it] “said it to [him] as if we say it to each other all the time,” as though the two were friends.  . . .  But he clarified that he was not excusing [the] utterance of the slur as harmless.  . . .  [He] further described the possibility of [his co-worker] calling him the n-word again as a “problem” that was solved when [he] was moved to another work location and was “no longer in [his] face every day.”  . . . . [He] also made clear that he perceived his coworkers’ use of racial epithets to be offensive, and he perceived their conduct to be abusive.  . . . Indeed, by March 2022, [he] felt so abused by his coworkers that he expressed suicidal and homicidal ideation because of stress at work.  . . .

“In addition, the subjective component of the prima facie case does not require that a plaintiff report a hostile work environment.”  . . . So, contrary to [the employer’s] argument, [his] failure to report racial harassment to its human resources before March 2021 does not cut against our conclusion that he provided sufficient evidence that he perceived his work environment as abusive. “A plaintiff can be subjected to [racial] harassment sufficiently severe or pervasive as to constitute a hostile environment and yet, for a number of valid reasons, not report the harassment.”  . . .  For example, [he] testified that he did not immediately report [the] statement because he was afraid his coworkers would retaliate if he reported. He also questioned whether it would be “right” to report the incident, given that it would affect [his co-worker’s] career when [that person] was new to the workforce and, from [his] perspective, possibly unaware of the “mistake” he made in using the n-word.  . . .  Nevertheless, the record shows that [he] did report racial harassment multiple times before March 2021, albeit not directly to [its] human resources. [He] reported the incident with [day shift], on the day shift, to [his manager], presumably resulting in [the] firing. [He] also participated in the [his supervisor’s] November 9, 2020 meeting addressing the instances of harassment against [him] in November 2020. And, after [a co-worker] threw grease on his car, [he] immediately showed [his supervisor] evidence of [that] conduct. So, rather than “‘sav[e]’ his complaint of harassment for the proverbial ‘rainy day,’”  . . . . the record contains evidence that [he] brought his coworkers’ continual racial harassment to his superiors’ attention. At present, [he] has provided evidence, sufficient to preclude summary judgment, that he subjectively regarded his work environment as abusive.

 . . .

 . . . Viewing [his] evidence in the light most favorable to him, [he] experienced a weeks-long period of verbal hostility, . . . The verbal hostility “directly affected the day-to-day conditions of [his] work environment,” . . . so much so that his supervisor,  . . , “had enough” of the harassment and held a meeting to stop it.  . .  The verbal harassment did not stop after the meeting but continued. And, as in Schlosser, the verbal hostility escalated into a physical threat when [a co-worker] threw grease on [his] windshield.  . . .  In addition, [his] coworkers ostracized him for months, subjected him to stereotyping, and called him “boy.” This is clearly enough evidence of severe or pervasive harassment for Jones to submit his racially hostile work environment claim to a jury. Contrary to the district court’s conclusion, [he] does not allege instances of “offensive utterances and social avoidance . . . alone,”  . . .. Rather, he presents evidence of persistent racial harassment that took various forms, from overt verbal harassment, to physical conduct, to persistent stereotyping, to ostracization.

The district court came to its erroneous conclusion because it failed to consider all of [his] evidence of racial harassment, and failed to consider [his] evidence holistically. It erroneously discounted [his] evidence, other than “the use of racial epithets and the incident where [the co-worker] poured grease on his windshield,” id., for two reasons. First, it concluded that [his] evidence paralleled that in Reed v. Procter & Gamble Manufacturing Co., in which we found that a plaintiff’s allegations of an isolated racist gesture and racist remarks did not amount to severe or pervasive harassment when the plaintiff failed to tie his other allegations of harassment, including that he was the “subject of unfriendly treatment from some colleagues,” to his race.  . . .  Second, it concluded that “the majority of [his] claims [we]re simply too vague to support the notion that his coworkers’ conduct was sufficiently severe or pervasive.”

But [his] evidence of ostracization, as well as his evidence that he was subjected to pervasive racial comments, stereotyping, and called “boy,” are fairly considered as contributing to the totality of severe or pervasive racial harassment. The cases on which [the employer] and the district court rely for the proposition that [his] complained-of workplace exclusion did not contribute to a pattern of severe or pervasive racial harassment, particularly Reed, are distinguishable.

The Reed plaintiff complained only of social isolation, not the ostracization that affected his work like in this case.

The district court also erred in removing many of [his] allegations of harassment from the severe or pervasive calculus on the grounds that the evidence was too vague. The court characterized [his] evidence of ostracization, stereotyping, and being called “boy” as insufficiently specific to contribute to the totality of the circumstances of severe or pervasive racial harassment. But we have “noted that when a victim makes allegations of ongoing harassment, the ‘inability to recount any more specific instances goes to the weight of her testimony, a matter for the finder of facts.’”

The Court also found that the plaintiff produced sufficient evidence of retaliation by his co-workers to survive summary judgment.

However, the Court remanded the harassment claim for the court to consider whether the employer had sufficient knowledge of the alleged racial harassment to impose vicarious liability because the trial court had not addressed that issue in its opinion.

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.

Thursday, March 6, 2025

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 (6th 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.

Wednesday, March 5, 2025

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.