Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment for terminating an employee for time-card fraud despite his arguments about failure to accommodate, retaliation and a cat’s paw theory that was remarkably similar to an earlier decision in Gray v. State Farm Mutual Auto. Ins. Co., 159 F.4th 1024 (6th Cir. 2025) (finding possible selective enforcement of time card fraud policy in cat’s paw retaliation case). Shears v. FirstEnergy Corp., No. 24-3915 (6th Cir. 1/5/26). The Shears Court rejected the plaintiff’s assertion for the first time on appeal that his misconduct was caused by brain fog from his known disability and should have been accommodated. The Court rejected all retaliation claims, regardless of the suspicious timing, because there was insufficient evidence of pretext, such as comparators receiving better treatment, knowledge by the initiating manager of prior protected activity or deviation from policy, etc. The employer also conducted several reasonable investigations, entitling it to the honest belief defense. Unlike the Gray case, there was apparently insufficient evidence presented to the trial court about selective investigation of time card fraud.
According to the Court’s decision, Plaintiff was diagnosed
with Type 2 diabetes in 2012 and had been granted an accommodation to work only
days from 2012 to March 2019. In January
2019, he assisted co-workers with sexual
harassment complaints against his manager.
There was no evidence that the manager was aware of this. During a work emergency, his manager assigned
him to work nights again despite his complaints until he mentioned his diabetes
and was requested to provide medical documentation. He did in April and was immediately returned
to day shift. Afterwards, his manager
investigated and discovered time card discrepancies ranging from 36-106 minutes
during March 2019. These were
investigated and confirmed by his director, HR and a separate safety
committee. Plaintiff was interviewed
several times and apparently never claimed retaliation or different scrutiny.
He was fired in May 2019.
The trial court granted summary judgment to the employer. Employer was granted summary judgment. The employer articulated a legitimate basis to
terminate him for time card fraud, and the plaintiff never disputed that he had
had not entered the plant at times he had reported being at work. The employer
was also entitled to the honest belief defense because it had conducted several
reasonable investigations to confirm the facts and given him the opportunity to
respond.
The courts rejected his reasonable accommodation
claims. First, he had failed to show any
unreasonable delay in March when the employer was entitled to medical
documentation and immediately provided his requested accommodation once he
produced it and abandoned this theory on appeal. It also rejected his new argument that his
discrepancies were caused by brain fog from his known diabetes because “a
failure-to-accommodate claim requires proof that the employer denied a
reasonable accommodation—not that it disciplined or discharged an employee
whose disability allegedly contributed to the underlying conduct.” It found that he failed to prove this theory
and found his cited cases distinguishable.
What the Court did not note is that the EEOC
Guidance from 2008 had previously provided that an employer is not required
to accommodate misconduct caused by a disability unless the employee had put
the employer on notice of the need for an accommodation of that issue:
When an
employee does not give notice of the need for accommodation until after a
performance problem has occurred, reasonable accommodation does not require
that the employer . . . tolerate or excuse the poor performance;
. . . withhold disciplinary action (including termination) warranted by the
poor performance . . . .
The Court also rejected the ADA retaliation because he could
not show pretext when admitting the time card discrepancies and without
similarly situated comparators who were treated better. His excuses for his actions did not dispute
the action and the employer not required to believe his “honest mistake”
defense. He might have prima facie case from the timing
of his termination compared to his request to return to the day shift, but he
lacked evidence of pretext to rebut the intervening causation factor of his
time card fraud.
The Court also rejected his Cat’s Paw Theory because there
was apparently no evidence that his manager was aware about his prior protected
Title VII conduct in assisting his co-workers sexual harassment
allegations. There were also independent
investigations and plaintiff had insufficient evidence that other employees
engaged in similar misconduct without being fired or that he had ever alleged
such similar misconduct during the employer’s multiple investigations and
interviews. In other words, there was insufficient
evidence of selective enforcement by his manager of the time card fraud issues
to support a cat’s paw theory.
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.
