Sixth Circuit Holds EFAA Prohibits Mandatory Arbitration of Entire Case and Not Merely Sexual Harassment Claims

Yesterday, a divided Sith Circuit held that a complaint sufficiently plead a hostile work environment claim and unanimously concluded that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “EFAA”) prohibits the mandatory arbitration of the plaintiff’s entire case, including her ADA claims, and not just her sexual harassment allegations under Title VII.  Bruce v. Adams and Reese LLP, No. 25-5210 (6^th Cir. 2-25-26).   As faithful readers may recall, the EFAA created an exception in the Federal Arbitration Act for sexual assault and harassment claims which otherwise would have been subject to a pre-dispute arbitration agreement.  First, the Court’s majority found that the amended complaint sufficiently alleged a hostile work environment claim under Civil Rule 8 without having to describe every single instance of inappropriate or humiliating comments.  Second, because the EFAA prohibits mandatory enforcement of a pre-dispute arbitration agreement with respect to the entire case, and not just the sexual harassment claims, the entire case, including ADA claims, could not be referred to arbitration.   While the Court acknowledge that this could result in the assertion of specious and frivolous sexual harassment claims to avoid arbitration of genuine claims, it believed that this could be consistent with Congressional intent to avoid piecemeal and more expensive litigation of plaintiff claims. 

According to the Court’s opinion, the plaintiff worked as a legal assistant in the Liquor Control group of a law firm, where one of the attorneys regularly made inappropriate comments and repeatedly extended invitations to her.  She suffered from a number of mental health issues and was afforded a flexible work schedule.   When the group changed law firms, she joined the new, defendant, law firm, was accepted to law school and was promoted to paralegal.  While the attorney was no longer regularly in the office, he still made inappropriate comments when he saw her.  Also, the new law firm insisted on her keeping a regular work schedule.  She was subjected to corrective action for late arrivals, even after she explained it was because of medication, and ultimately fired her while she was attempting to have her physician communicate with the firm.  She filed suit under the ADA and Title VII.  The law firm moved to dismiss the sexual harassment claim and to compel the ADA claim to arbitration under her pre-dispute arbitration agreement.  The trial court denied both motions and the law firm appealed.  A divided Sixth Circuit affirmed.

The Sexual Harassment Claim

The Sixth Circuit agreed that if the sexual harassment claim failed to satisfy Rules 8 and 12(b)(6), it could be dismissed and the ADA claim sent to arbitration.  However, the Court found that the complaint sufficiently alleged an actionable sexual harassment claim.  

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”  . . . “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  . . . . Under this standard, “a short and plain statement of the claim” sufficient to “give the defendant fair notice of what the . . . claim is and the grounds on which it rests” is enough, and a complaint “does not need detailed factual allegations.”

 . . . .

To invoke the EFAA’s safe harbor, a plaintiff must “allege[] conduct constituting a sexual harassment dispute,” 9 U.S.C. § 402(a), and a sexual harassment dispute is one “relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” id. § 401(4). The EFAA, however, does not itself define what it means for a plaintiff to “allege” such a dispute.

The Court declined to decide whether the EFAA standard of “alleging” a sexual harassment dispute means that the claims must satisfy the Rule 12(b)(6) standard or a lower standard.   The Court’s majority held that the plaintiff was not required to allege facts that would satisfy Title VII’s burden shifting standard. “For our purposes the question is simply whether Bruce’s complaint “allege[s] sufficient ‘factual content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable inference’” that Bruce was subjected to a hostile work environment.”

In evaluating whether the complaint sufficiently stated a claim for hostile work environment, the Court did not consider the allegations against the lawyer at the initial law firm and only considered the allegations which involved the defendant law firm.  The defendant law firm employed neither the attorney nor the plaintiff when the earlier alleged harassment occurred and, thus, could not be vicariously liable for it.   That being said, the Court’s majority found the complaint sufficiently alleged a hostile work environment against the defendant employer:

[Her] complaint outlines a consistent pattern of sexualized jokes and comments directed at her by [the attorney] throughout her employment with [defendant]. Although [he] was not always in the office at [defendant], he “continued sexually harassing [her] when he was in the office” by “making sexual comments and jokes to and about [her], as well as making inappropriate comments about [her] appearance, clothing, and private life.” [After giving several explicit examples of his inappropriate comments], [t]his conduct affected [her] ability to work as a member of the Liquor Group, as she “went out of her way to avoid” [him], and “hardly spoke to him” by late 2022. . . .

Viewed in the light most favorable to [her] and drawing all inferences in her favor, these facts plausibly allege conduct “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment.”  . . .  We gather and infer from [her] complaint that [he], who was among [her] supervisors and responsible for her employment at [defendant], consistently and continually directed sexualized comments at her in the presence of other employees at [defendant]. Or in Harris’s terms, [he] “frequen[tly]” and regularly “humiliat[ed]” [her], thereby “interfere[ing] with” her ability to perform her job as a member of the Liquor Group. . . . And it is certainly plausible that a young female paralegal would be humiliated and intimidated, and that her performance would be affected, by persistent suggestions from a supervisor that she keep clients happy by visiting them “in a short skirt,” that she is a “[h]oe,” and that it would be “hot” if she had sex on a desk in the office—not to mention his delivery of an unsolicited $750 “bonus” from his personal funds. . . .

To be sure, and as [defendant] is keen to point out, “occasional . . . offensive utterances” that are not “physically threatening or humiliating” do not render a work environment hostile and discriminatory.  . . .  [Defendant] characterizes [her] complaint as setting forth just “two discrete, one-time comments in a one year period.”  . . .  We agree with [Defendant] that such a complaint would be subject to dismissal because a hostile-work-environment claim premised on three or four instances of harassing comments over an extended period of time is likely to fail unless those comments are sufficiently severe to overcome their infrequency. . . .

But drawing all inferences in [her] favor, [his] conduct was much more frequent. Although [his] office attendance during [her] year at [defendant] was inconsistent, he “continued sexually harassing [her] when he was in the office.”  . . .  His comments were “persistent, ongoing, and continued up until the day  [she] was fired.”  . . .  These allegations are sufficient to allow a plausible inference that Pinson’s comments occurred more than a handful of times.

The majority rejected the argument that plaintiffs need to allege all or most of the incidents of humiliating comments supporting a hostile work environment claim:

[A] demand for a detailed telling of each offensive utterance, however, is more than Rule 8 requires. First, such a standard is “incongruous” insofar as it would “require [[her]], in order to survive a motion to dismiss, to plead more facts than [s]he may ultimately need to prove to succeed on the merits” at summary judgment or at trial.  . . .  Second, the  . . .  argument that the specific contents of each harassing statement are necessary for us to “independently determine” whether they add up to a hostile-work-environment claim,  . . .  would all-but-eliminate any room for “reasonable inference.”  . . .  In so doing, it would impose on hostile-work-environment plaintiffs a heightened pleading standard not unlike Rule 9’s fraud pleading standard.

The EFAA Standard

The Court observed that the majority of courts to have faced the issue have denied to refer entire cases – and not merely the sexual harassment claims – to arbitration based on the language of the EFAA (bolding added for emphasis):

IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

 . . .

The operative word here is “case.” That is because it is “with respect to a case” that an otherwise-valid arbitration agreement is invalid and unenforceable. 9 U.S.C. § 402(a). All data point clearly in the direction of “case” encompassing a plaintiff’s entire suit.. . . We need look no further than the FAA to find a use of the word “case” in accordance with these definitions, as Section 7 provides for the ability to call witnesses “in [a] case” in arbitration. 9 U.S.C. § 7. The use in Section 7 of the preposition “in” means that “case” makes sense only if read to refer to a proceeding. . . .

With this understanding of the meaning of “case” in mind, the EFAA’s text renders an arbitration agreement “[un]enforceable with respect to” a plaintiff’s entire case, or action, and not only with respect to certain claims therein. 9 U.S.C. § 402(a). And the cases the EFAA shields are those that “relate[] to the sexual assault dispute or the sexual harassment dispute.” “Relate” means “[t]o have some connection to; to stand in relation to.” . . . When a plaintiff files a case that includes a sexual harassment claim, that case certainly has “a connection with” and “reference to” the claim. Thus, we hold that a plaintiff’s case, such as Bruce’s, that contains a plausibly alleged claim of sexual harassment, therefore “relates to” a “sexual harassment dispute,” and arbitration may not be compelled under the FAA. 9 U.S.C. § 402(a).

The Court rejected the employer’s argument that FAA has traditionally resolved arbitrability on a claim-by-claim basis because of this “case” language from the EFAA.   It also rejected “the practical concern that plaintiffs will abuse the EFAA to avoid arbitration of non-sexual-harassment/abuse claims.”  “[T]he sole function of the courts—at least where the disposition required by [a statute’s] text is not absurd—is to enforce it according to its terms.”

Congress might indeed view the rule we adopt here as advancing its intent because a construction of the EFAA that required plaintiffs with both sexual-harassment and other claims to proceed separately in arbitration and court would discourage such plaintiffs from accessing the court system, on the pain of the increased costs and time-commitment in bringing two parallel actions in different fora. Because A&R has not demonstrated that the effects of our holding will contravene Congressional policy, much less sufficiently so that we could disregard the law’s plain text, we are not swayed.

The dissent pointed out, while acknowledging that the complaint also alleged that comments were continuous,  that only three discrete instances of inappropriate comments were made while the attorney and plaintiff worked for the defendant employer and this was insufficient to allege a hostile work environment claim.  He would not have drawn an inference that these were indicative of a “consistent pattern.”  He described her allegations as conclusory and “threadbare.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court Finds Former Employee In Contempt for Refusing to Remove Employer's Confidential Information From Website

Last week, the Cuyahoga County Court of Appeals affirmed a contempt order against a former employee who posted confidential and trade secret information of his employer on his website for pecuniary gain in violation of a prior non-disclosure agreement and in violation of an agreed/consent order entered by the trial court after a preliminary settlement conference.  Combs v. Sherwin-Williams Co., 2026-Ohio-562.  The plaintiff argued that his attorney did not have authority to agree to the terms of the consent order, but the court of appeals disagreed.   Refusing to consider his substantive challenges to the order because the TRO and PI were not final orders at that time, the Court found that the employee had failed to show why he should not be held in contempt for violating the agreed/consent order. 

According to the Court’s opinion, the plaintiff filed a complaint against the employer alleging, among other things, breach of contract and tortious interference.  The employer filed similar counterclaims as well as conversion, unjust enrichment, theft of trade secrets and conversion.   In particular, the employer alleged that the plaintiff’s severance agreement contained non-disclosure terms that he violated by posting its trade secrets and confidential information on a personal website for personal monetary gain.   After he refused to remove the information, it filed for a temporary protective order, which he opposed, largely on the grounds that the information was not confidential.   The attorneys and court held a conference, where an interim order was entered agreeing to at least temporarily remove the employer’s information pending an evidentiary hearing on the merits, and scheduled settlement conference.   

However, the plaintiff refused to remove the information and, after initially opposing the employer’s motion for contempt,  his attorney withdrew representation.  The plaintiff continued pro se.  Another settlement conference was held (after much drama) and the case again was not resolved. An evidentiary hearing was held on the motion for contempt and TRO.   The trial court found the plaintiff to be in contempt of the order, granted both a TRO and preliminary injunction and the plaintiff appealed.  The Court of Appeals refused the appeal of the TRO and PI because they were not final orders, but affirmed on appeal the contempt order.

An “agreed order” or “consent order” is based upon the agreements reached by the parties and is considered a contract between those parties as well as an order of the court. . . . Moreover, courts have held that “‘[i]t is beyond question that a duly authorized attorney may enter into an agreed judgment entry[,] the terms of which will be binding on his or her client.’”

In opposing the contempt motion, the plaintiff had focused entirely on the merits of the allegations – challenging that the information was confidential and trade secret – and not on whether he was bound by his former attorney’s in-court agreement:

[Plaintiff] claims that he was excluded from the status conference and his “coerced attorney[’s]” approval of the order should not be akin to his consent. However — despite numerous filings and the opportunity to offer testimony and present evidence at the show-cause hearing — [he] presented no evidence that he was unaware of his counsel’s strategy for the status conference or the May 1, 2025 order issued thereafter. Nor did [he] offer any evidence to establish that he did not approve of or agree to that strategy or the conditions set forth in the order. Without any testimony or evidence indicating that his attorney was not authorized to enter into such an agreement at the status conference or that [he] had no knowledge of the May 1, 2025 order, we decline to find that [he] was not bound by its terms. Since [he] did not challenge the allegation that he “blatantly disregard[ed]” the terms of the May 1, 2025 order by failing to remove any information from his website or otherwise rebut [the employer’s] initial showing of contempt, the trial court did not abuse its discretion when it found [him] in contempt of court.

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.

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.