When Enough Is Enough: Sixth Circuit Affirms Dismissal When Employer's Actions and Belief Were Sufficient

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment dismissing a workplace harassment and retaliation claim.  Hamm v. Pullman SST, Inc., No. 25-1617 (6^th Cir. 2-12-26).   The plaintiff alleged that he was harassed by his co-workers and the construction superintendent and then was fired in retaliation for complaining.  The Court found that the employer’s actions to respond to his complaints were sufficient based on the information provided and his repeated failure to accept alternative work assignments gave the employer an honest belief that he was not interested in continuing his employment, justifying his termination. 

According to the Court’s opinion, the plaintiff was hired by the construction manager and reported to the superintendent.  After a few months, he mentioned that he was bi-sexual to a co-worker, who told others.  Starting in November, he was called derogatory names by his co-workers and the superintendent.   He finally reported to the manager in mid-February that unnamed co-workers were calling him homophobic slurs, but did not mention that he was bi-sexual.   Thinking it was merely a personality conflict, the manager spoke to the crew and the problem was resolved for a couple of weeks.  However, when it started again, he complained again to the manager in mid-March about two co-workers and the superintendent referring to him with homophobic slurs.  The manager said he would take care of it, still without any knowledge that this was a sexual harassment complaint because of the vagueness of the complaint.  The plaintiff claimed that the mistreatment continued, culminating in him leaving the worksite never to return on April 29 because of an anxiety attack.

He finally formally reported the problem on April 29 to HR, which conducted a thorough investigation.  Everyone – including the allegedly neutral witnesses – denied his allegations, except for the superintendent losing his temper with him on April 29.  Instead, he was described as lazy.   The superintendent was formally warned.  All of the supervisors were required to submit to anti-harassment training and the employees were required to re-read and re-sign the anti-harassment policy.  Nonetheless, the plaintiff refused to return to work and began a medical leave for his anxiety.  Throughout the month of May, he was offered five different re-assignments to different work locations, but he objected to all of them for reasons other than his medical leave or anxiety.  While he never technically refused, he never accepted them either and had secretly recorded at least one of job offers.   After twice extending his medical leave, he inquired about returning to work and was told that his employment had been terminated.

The Court declined to address a number of potential issues and others the parties chose to not dispute, including whether this constituted harassment prohibited by Title VII, whether the periodic comments were sufficient to create a hostile work environment, etc.

The Court rejected the argument that the employer was automatically liable for any comments by the superintendent because the plaintiff failed to produce any evidence that the superintendent took or could take any tangible employment actions, making him a supervisor whose actions would bind the employer. Instead, the superintendent was treated as a co-worker.

Employers are only held liable for co-worker harassment if it was negligent – i.e., it knew or should have known about the harassment and unreasonably failed to stop it. 

Or, as our own caselaw puts it, the employer’s response must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.”  . . .  If, then, an employer takes “prompt and appropriate corrective action” after learning of the harassment, employees cannot tie the harassment to the employer.  . . .

The Court concluded that the plaintiff failed to show manifest indifference by the employer.  The manager took immediate and effective action in response to his first (February) vague complaint (which had not identified any specific individuals because he had not wanted to get anyone in trouble).   The manager’s action about the second (March) complaint were still deemed sufficient since the plaintiff still had not provided information indicating that this was a sexual discrimination issue.   The HR Department conducted an immediate investigation which failed to corroborate his allegations and was not required to believe him, particularly when none of his own witnesses corroborated his allegations.  Moreover, the employer took action in any event to prevent future harassment, including training and counseling.  When the manager learned the details of the problem in early May, he immediately agreed to reassign the plaintiff and approved the medical leave and extensions.  He also offered the plaintiff alternative assignments which addressed his stated objections.

The Court rejected the plaintiff’s arguments that he had never actually refused the alternative work assignments.  However, based on his own secret recordings of the conversations, it was clear he had raised objections and never actually accepted the job offers.  Thus, the employer had an honest belief that he had rejected them:

And during the call with [the manager] (that [the plaintiff] secretly recorded), [the plaintiff] said he was “not at all” good at this type of work.  . . . [His] response to this offer came as close to an express denial as it could. All this said, we agree that [he] did not expressly deny most of the jobs. For example, he did not say “No” to driving to Toledo or Cincinnati. Rather, he asked a question: “Isn’t that a hike?”  . . . .  And he did not say “No” to the overhead demolition work; he simply said that this work “hurts [his] shoulder.”  . . .  Given his clear reluctance to take these jobs, we doubt that any reasonable jury could rely on this lawyerly argument to prove [the employer’s] pretext.

At day’s end, though, we need not resolve this debate over whether [the manager] made formal offers or whether [the plaintiff] gave formal denials. When an employee claims that an employer’s reason for an adverse action had no basis in fact, the employer does not need to prove that reason in court.  . . . . It just needs to prove that it held an “honest belief” that the reason was true.  . . . . . So, for example, an employer who fires an employee for fraud does not need to establish that the employee committed the fraud—just that it honestly believed the employee did so.  . . . .  And the employee cannot show pretext merely by showing that the reason was false.  . . . .. This rule applies here. Whether or not [the plaintiff] actually declined these many offers, [the employer] at least held an “honest belief” that he did.  . . .  And [his] “own assertions” that he never denied any assignment do not suffice to overcome this honest-belief rule.

The Court also rejected the plaintiff’s argument that he was not required to accept the alternative assignments because he was on medical leave.  He never once raised his medical leave or his anxiety as a reason that he rejected the five possible re-assignments.  Instead, he “raised concerns that the worksite was too far away, or too high in the air, or too demanding on his shoulders, or too late in the day given other appointments.” Moreover, the assignments were offered before he extended his medical leave.

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.

Political Beliefs Will Not Save Title VII Claims Without Comparator or Replacement Evidence

Last month, the Sixth Circuit affirmed summary judgment for an employer despite claims that the receptionist  had been fired, at least in part, for expressing her political beliefs about law enforcement officers.  Hightower-Mathis v. NextCare Michigan Providers, PLLC, No. 25-1623 (6^th Cir. Jan 16, 2026).  The plaintiff receptionist made comments to police officers seeking treatment at the clinic, which made them uncomfortable providing personal information to the clinic.    She was fired after they complained and an investigation.  She admitted that she was fired for the disputed comments and not because of her race or gender, dooming her Title VII claims. 

According to the Court’s opinion, the terminated medical clinic receptionist alleged that she had been fired on account of her race and gender after she had been fired for making unprofessional comments to a police officer who was there seeking medical treatment.  She admitted to making small talk with the officer when he checked in, including asking whether he had ever killed anyone (which was confirmed by her co-worker).  The officer then texted his supervisor about her rude comments to him about his uniform and asking if he was going to kill anyone tonight.   His sergeant then immediately came to the clinic and she allegedly asked him if he was going to beat up anyone tonight (which she denied).  He asked to speak with her supervisor, the clinic manager, who he immediately called to report her comments.  She, in turn, emailed her supervisor about the “grumpy old man” who was complaining about her because she had been joking with his police officer and asked to leave early to move her car with unregistered tags so that he did not give her a ticket.   She and her co-worker were asked by the Clinic Manager for statements about the incident.   The Police Chief called the next day to demand her termination or he would cancel the department’s contract with the clinic.  She was then fired for unprofessional conduct.

The courts found that she could not even prove a prima facie case of discrimination.  Not only could she not identify any replacement, she could not identify anyone who had engaged in similar conduct and not been fired.   She never complained about harassment and admitted in her deposition that she was fired because of her alleged comments to the police officers, which was investigated by her employer, and not because of her race or gender.  The courts did not address whether she was able to prove pretext because she did not produce sufficient evidence to carry her prima facie burden of proof.

 

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.

Appeals Court Remands Age Discrimination Discharge Claim for Trial Based on Decisionmaker Comments About Retirement Plans and Proximity to Retirement Age

Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment on an age discrimination claim on the basis that the decisionmaker’s comments about the plaintiff’s repeated retirement equivocations constituted direct evidence of discrimination when he was laid off shortly after the comments were made.  Selzer v. Union Home Mortgage, 2026-Ohio-38.   While the mere use of the word, “retire” is insufficient by itself to constitute evidence of age discrimination, the frequent inquiries about the plaintiff’s retirement plans and consideration of his proximity to retirement age as a factor in his selection for the reduction in force, and comments by decisionmakers, etc. was sufficient to create an disputed issue of material fact about the reasons for his termination. 

The plaintiff was laid off in a reduction in force at the age of 64.  He alleged that his age was a factor because the employer retained a 31 year old in the same position hired five months earlier.   The trial court granted the employer summary judgment and the Court of Appeals reversed on the grounds that he presented sufficient evidence to show that his age may have been a factor in his termination. 

To support his argument that he had presented sufficient evidence to survive the employer’s summary judgment motion, the plaintiff

points to frequent comments inquiring as to his retirement plans; the comments were made by numerous UHM employees who had supervisory authority over [him]. [He[ further points to an email from  . . . a vice president with UHM who was involved in the decision to terminate [him], in which [she] stated that [he] “keeps saying he will retire but hasn’t.” According to UHM senior vice president of mortgage operations  . . . , the purpose of [that] email containing this statement was to “communicate the reasons that [[he] was] being included on the termination list.”

[Plaintiff] argues that other courts have concluded that an employer’s consideration of an employee’s potential longevity with the company “is nothing more than a proxy for age” and therefore constitutes direct evidence of age discrimination . . . .  

We reiterate that in this context, “‘[d]irect evidence is evidence that, if believed requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’”  . . . In determining whether an employer’s statements constitute direct evidence of age discrimination, courts must consider the following four factors:

(1) whether the statements were made by a decision-maker or by an agent within the scope of his employment; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.

 . . .

This court has held that the use of the word “retire” by itself is not sufficient direct evidence of age discrimination.  . . .  Here, however, the record contains evidence that [his] supervisors frequently asked him about his retirement plans, and moreover, a UHM representative testified in her deposition that [his] proximity to retirement was a factor UHM considered in [his] termination. The comments were made by UHM decision makers in the scope of their employment, the comments were related to the decision-making process, and they were made close in time to the decision. Further, considering the pattern of [his] supervisors inquiring about and commenting on his retirement plans, the statement in [that] email was not isolated or ambiguous.

Viewing the evidence in the light most favorable to [the plaintiff] as we are required to do pursuant to Civ.R. 56, Selzer has created a genuine issue of material fact such that reasonable minds could disagree as to whether [he] suffered age discrimination. Therefore, the trial court erred in granting summary judgment in favor of UHM.   . . . 

(bolding added for emphasis).  The Court declined to rule on the arguments about whether the evidence was sufficient to show a circumstantial burden of proof or pretext.

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.

Interesting FLSA and FMLA Issues Arise in 2026 as well as Remote Workers Working Hours

Earlier this month, the Department of Labor issued a few interesting opinion letters which will be of interest to both employers and employees.  One involved the FMLA and the others the FLSA.  In FMLA2026-2, the DOL instructed that FMLA time off includes time travelling to and from the medical provider office, which should not have been necessary to explain.  In FLSA2026- 2, the DOL confirmed that the regular rate must include the generous safety/punctuality bonus when calculating overtime pay.  In FLSA2026-4 (1/5/26), the DOL explained that the federal exemption for commissioned workers in section 7(i) only requires that the pay be more than the federal minimum wage, but that the employer could still be in violation of similar exemptions under state  law if the pay was not sufficiently higher than the higher state minimum wage and that tips only count towards the pay if the employer utilizes the tip credit.  Finally, in September, the federal district court in Columbus issued an opinion on when a work-from-home employee’s working hours begin and end each day. 

In Opinion FMLA2026-2  (1-5-26), the inquiry asked about how much time off the FMLA would require when the medical provider indicated that the employee needed time off for 45-minute medical appointments, but the employee claimed that s/he needed 1 hour travel each way from home to the office of the medical provider.  “For the reasons set forth below, an employee may use FMLA-protected leave that counts against his or her FMLA entitlement to travel to or from a medical appointment for a serious health condition.” Additionally, a health care provider need not provide an estimate of an employee’s travel time to or from an appointment for the medical certification to be complete and sufficient under the Act. “

In Opinion FLSA2026- 2 (1-5-26), the inquiry involved whether the regular rate (used to calculate overtime pay) must include the safety/punctuality bonus (up to $9.50/hour) on top of the $12/hour wage contractual rate when calculating overtime anytime it is earned.    The answer was yes.  “[T]he rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek[.]”

In FLSA2026-4 (1/5/26), the inquiry involved the commissioned employee’s exemption under section 7(i) when state minimum wage exceeds federal minimum wage.   The DOL explained “an employee of a qualifying retail or service establishment paid more than one and one-half times the federal minimum wage satisfies the minimum pay standard in section 7(i)(1). “  Therefore, “the exemption currently requires that the employee’s regular rate exceed $10.875 per hour ($7.25 × 1.5)—or, for practical purposes, that the employee’s regular rate be at least $10.88 per hour—for any workweek in which the employer claims the exemption.”  That being said, this does not answer whether using the federal minimum wage could violate the state law which requires employers to pay a higher minimum wage.

Moreover, although tips are not commissions under section 7(i), in some circumstances, a portion of an employee’s tips would be compensation for purposes of determining whether an employee is primarily paid by commission under section 7(i)(2).  This would depend on whether employer utilizes the tip credit or not. 

In Lott v. Recker Consulting, LLC, 798 F. Supp. 3d 778 (S.D. Oh 2025), the Court addressed  when the workday begins for remote workers.  Plaintiffs claimed that they were not paid for time spent logging and clocking in before work and end of lunch and logging out each day – entitling them to unpaid overtime, etc.  The Court decided that

the workday starts at the moment a remote worker opens and begins operating a program or application they use as part of the principal work activities they are employed to perform. By the same token, the workday ends at the moment the employee closes out of the last such program or application. In the Court's view, this better reflects the relationship between the employee and the computer in terms of job performance.

The Court rejected the argument that the workday began as soon as the employee turned on his or her computer. 

In short, the question is not when an employee has powered on or logged into their computer. Rather, the question is when they have configured that computer to perform the tasks they are employed to perform—or stated differently, when they have loaded the first application that they use to perform their job.

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.

Cuyahoga Court Enforces Cognovit Note Against Employee for Employer's Training Expenses

 In October, I reported that the Cuyahoga Court of Appeals had enforced an employer's hiring bonus agreement and required the former employee to repay it when he had resigned before completing training and within 18 months of being hired.   In November, the Cuyahoga County Court of Appeals affirmed enforcement of a $10K cognovit note signed by an employee agreeing to repay training costs incurred by the employer if she resigned within two years of being hired.  Overdrive Espresso, L.L.C. v. Finein, 2025-Ohio-5226.  The Court concluded that it could not "say that this transaction, arising out of employment contract, was a consumer transaction as defined under R.C. 2323.13(E)."  Because her remaining defenses went to enforceability of the note and not to its creation or calculation of the underlying debt, they were invalid. 

According to the Court's opinion, the employee was hired in April 2022 and the employer incurred $10K to obtain specialized training for her.  Accordingly, she was required to sign a cognovit note promising to repay within 30 days that $10K training expense plus 10% interest and collection costs  if she was terminated before April 2024 or a judgment would be confessed against her in court.  She resigned in December 2023 and had not repaid the training expense before February.  A complained was filed and an answer filed on her behalf pursuant to the cognovit agreement admitting to the allegations and confessing judgment.  Judgment was entered in favor of the employer the same day (as is typical). She failed to file a timely employee and, instead, employee sought relief from judgment, which was denied.  The Court of Appeals affirmed. 

Motions for relief from judgment under Civil Rule 60 are evaluated only for abuse of discretion. 

 “‘A cognovit promissory note is a special type of commercial paper by which a debtor authorizes a creditor, in the event of the debtor’s default on his payment obligation, to obtain an immediate judgment against him without prior notice or an opportunity to be heard.’”  . . .  “‘The purpose of a cognovit note is to allow the holder of the note to quickly obtain judgment, without the possibility of a trial.’” . . . As such, “when a debtor signs a cognovit note, the debtor relinquishes the possibility of notice, hearing, or appearance at an action to collect in the event of nonpayment on the note.”

As a result, Ohio courts have determined that in such cases where the party had never had the opportunity to be heard in a cognovit note proceeding, their burden is lessened when moving for relief for judgment under Civ.R. 60(B).  . . .  “Therefore, ‘a movant who files for relief from a judgment taken upon a cognovit note need only establish (1) a meritorious defense and (2) that the motion was timely made.’”

Under Civ.R. 60(B), the “‘moving party need only to allege a meritorious defense; it need not prove that it will prevail on that defense.’”  . . .  Although proof of success is not required, “the moving party still needs to allege operative facts with enough specificity to allow the trial court to decide whether a meritorious defense exists.”  . . . And the “movant must provide evidentiary material supporting his or her Civ.R. 60(B) motion.”  . . . These evidentiary materials “‘must present operative facts and not mere general allegations to justify relief.’” 

This court has recognized that “[t]he defenses available to the maker of a cognovit note are extremely limited. The ‘defense of non-default’ is certainly one.”  . . . . But “the defense of non-default is not the only meritorious defense recognized by courts as being available to a cognovit judgment debtor seeking Civ.R. 60(B) relief[;] in general, a judgment on a cognovit note will ‘not be vacated for reasons which do not encompass such matters of integrity and validity.’”  . . . For instance, other meritorious defenses may include “‘improper conduct in obtaining the debtor’s signature on the note; deviation from proper procedures in confessing judgment on the note; and miscalculation of the amount remaining due on the note at the time of confession of judgment.’”  . . . In short, “a meritorious defense is one that goes to the integrity and validity of the creation of the debt or note, the state of the underlying debt at the time of confession of judgment, or the procedure utilized in the confession of judgment on the note.”

The Court rejected the employee's argument that this transaction was a consumer rather than a commercial transaction.  

R.C. 2323.13(E) provides that “[a] warrant of attorney to confess judgment . . . arising out of a consumer loan or consumer transaction, is invalid and the court shall have no jurisdiction to render a judgment based upon such a warrant.” As such, in cases where a note arises out of a consumer loan or consumer transaction a common pleas court lacks jurisdiction to enter a cognovit judgment against the defendant.  ... 

         . . . 

 R.C. 2323.13(E)(2) defines a “consumer transaction” as “a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, franchise, or an intangible, to an individual for purposes that are primarily personal, family, educational, or household.”  . . .. 

             . . . .  

Here, the cognovit note arose out of an employment contract between [plaintiff] and [employer], wherein [she] agreed to reimburse [it] for the total expense of training costs in the amount of $10,000 if she voluntarily quit or breached the contract within two years of signing the employment agreement. The agreement, which was signed by both parties, provided, in relevant part, that ““[s]imultaneous with the execution of this Employment Agreement, the Employee [Finein] shall execute and deliver to the Company [Overdrive] a written Cognovit Promissory Note for the Training Cost . . . .” The note was executed for the agreed upon training cost of $10,000. 

[She[ does not direct us to any authority holding that a cognovit note arising out of an employment contract is considered a consumer transaction. Rather, it is clear from the contract that the primary purpose of the training received by [her] was not personal, but as a condition of her employment with [the employer]. This is further evidenced by the fact that [the employer] sought to protect its investment by requiring [her] to remain employed for a period of two years. Thus, we cannot say that this transaction, arising out of employment contract, was a consumer transaction as defined under R.C. 2323.13(E).

The Court concluded that the remaining defenses did not go to the validity of the note, but rather, to its enforcement which could not be challenged at this point:

[Her] remaining claims challenge the enforceability of the cognovit note under New York law and federal law. [She] also challenges whether the amount owed on the note adequately represents the training costs incurred by [the employer]. None of these defenses allege improper conduct in obtaining the debtor’s signature on the note; a deviation from proper procedures in confessing judgment on the note; or a miscalculation of the amount remaining due on the note at the time of confession of judgment.  . . .  As discussed above, “a meritorious defense is one that goes to the integrity and validity of the creation of the debt or note, the state of the underlying debt at the time of confession of judgment, or the procedure utilized in the confession of judgment on the note.”  . . . Since none of [her] remaining claims amount to a meritorious defense to a cognovit note, the trial court did not abuse its discretion in rejecting these claims. 

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.