Earlier this month, the Sixth Circuit affirmed an employer’s summary judgment on an employee’s claims for FMLA retaliation, disability discrimination, sexual harassment and unequal pay. Santiago v. Meyer Tool, Inc. No. 22-3800 (6th Cir. 6/8/23). The Court ultimately found that the plaintiff failed to identify any employees who were both similarly situated and treated differently because she had significant attendance and performance issues, unlike employees who only had one or the other. It also found that she could not show FMLA retaliation when she was given her requested FMLA leave, failed to mention FMLA leave when calling off during the attendance infractions and never claimed when given the pre-litigation opportunity that her absences were covered by the FMLA. She also did not provide sufficient comparative evidence – about skills, responsibility, effort, etc., to show that she was paid less on account of her gender merely because other men were paid more. Finally, the Court found her sexual harassment EEOC Charge was filed 58 days too late and could not relate back to her original timely ADA Charge when she never indicated any continuing violations and had focused only on the date of her termination.
According to the Court’s opinion, the plaintiff was fired in
2017 as a machinist after 19 years of employment. She had informed the Company of her HIV
diagnosis in 2015 and was given intermitted FMLA leave to seek medical
treatment, etc. in 2016 and 2017.
Nonetheless, both before and after her HIV diagnosis, she was frequently
disciplined for excessive absenteeism, including a suspension a month before
her termination. Prior to the
litigation, she never claimed that her attendance infractions were covered by
her FMLA entitlement, even when given the opportunity on the disciplinary
action form to protest the disciplinary action. She also was occasionally disciplined for poor
performance for creating deviated parts (that did not meet the customer’s
specifications). Her last such incident was
on May 17, when she created 4 deviated parts that were ultimately rejected by
the customer after her termination. In contract, she had similarly created deviated
parts in February 2017 without disciplinary action. She was fired in July 2017 after her suspension
for poor attendance and creating the deviated parts on May 17.
She filed an EEOC Charge in October 2017 alleging that
non-disabled employees had also created deviated parts and not been fired. In July 2018 – 358 days after her termination
– she filed a second EEOC Charge alleging that her supervisor sexually harassed
her for years and that she was paid less than other male machinists. After filing suit, the trial court granted summary
judgment to the employer, which was affirmed on appeal.
The Court found that the employer articulated a legitimate
and non-discriminatory reason for her termination on account of her poor work performance
and chronically poor attendance. She
failed to produce evidence disputing that she created four deviated parts on
May 17, even if her performance at other times had been satisfactory. She also failed to produce evidence that her
attendance had been satisfactory or that she had complied with the employer’s
call-off policies. She could not simply
rely on her own opinion to satisfy her burden of proof.
The Court also rejected her evidence of pretext based on statistics
showing that all machinists who took FMLA leave between 2014 and 2017 were
eventually terminated. While that might
be sufficient evidence to satisfy a prima facie case, it was
insufficient without additional circumstantial evidence to show pretext or that
discrimination/retaliation more likely than not motivated the decision in her
case when it was rebutted by evidence showing the basis for the termination
decision in this case – i.e., that she created four deviated parts and had repeatedly
violated the attendance policy. “Her
statistical evidence, standing alone, is not so significant to indicate that
her termination was more likely than not retaliation for her FMLA leave, particularly
in light of her documented disciplinary history.”
The plaintiff also could not “show by a preponderance of the
evidence that ‘other employees, particularly employees not in the protected
class, were not fired even though they were engaged in substantially identical
conduct to that which the employer contends motivated its discharge.’” None of the other employees to whom she
vaguely referred had both performance and attendance issues. “First, she points to no employee with a
disciplinary record that demonstrates the employee engaged in “substantially
identical conduct” to her own.” One employee had been suspended for three days
because of deviated parts, but had no attendance or other misconduct
issues. While the plaintiff asserted
that there were nine other employees with more egregious performance issues,
she failed to identify them or explain how their situations were comparable to
hers. Finally, while she was not
personally aware of any other employees being terminated for poor performance,
the employer had produced records showing that it had previously fired
employees for creating too many deviated parts.
The Court also rejected her wage discrimination claim. She produced evidence that male employees
were paid more on average than female machinists. She also showed that male employees with
similar tenure to her – and some that she trained -- were given larger raises than her year after
year. However, she failed to produce any
evidence of their respective skills, experience, responsibility, effort or job
titles so that an effective comparison could be made to her.
The Court also rejected her sexual harassment claim as being
filed too late with the EEOC and too unrelated to her timely ADA charge
regarding her termination. Charges must
be filed within 300 days. She did not
indicate any continuing violations in her original, timely charge, but rather
focused only on her termination date.
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.
