Sixth Circuit Reverses Employer’s Summary Judgment in Age Discrimination and Retaliation Case

 Earlier this month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment  on an age discrimination and retaliation case where the employee had been terminated in a reduction in force. Sloat v. Hewlett-Packard Enterprise Co., No. 20-6169 (6^th Cir. 2021).  After five years of excellent performance evaluations, the plaintiff’s new manager had asked him at least 10 times when he planned to retire and encouraged staff to refer to him as “Uncle.”  When confronted with whether he had a problem with the plaintiff’s age, he screamed, spoke to the plaintiff very little over the next four months, gave him the second worse possible mid-term evaluation and recommended him for termination.    In short, the court concluded that the plaintiff had produced enough evidence that the jury—and not the trial judge --  should be able to decide what the employer’s true motivation was in terminating his employment.

According to the Court, the plaintiff trainer had worked with stellar performance evaluations, incentive compensation and promotions until he was transferred in November 2016 after 6 years to a new division, which he had been told wanted him to roll out the training program that he developed.  However, it was apparent that this was not the true reason for his transfer because his new manager had no knowledge of or interest in his training program and found his position to be redundant and without any assigned responsibilities or recognition of achievements. The plaintiff was the manager’s oldest direct report.   The manager’s chief of staff called him by the wrong name and then referred to him as “Uncle” thereafter, with support from the manager.  The manager asked him at least ten times when he planned to retire and why he was still there and interacted him on an extremely limited basis.  After the plaintiff complained about age discrimination, the manager then began advocating for him to be terminated. In this mid-year performance evaluation, the manager gave him the second lowest score.  The manager also became very angry when the plaintiff raised his concerns with HR and with the manager directly.  HR refused to conduct any investigation of the plaintiff’s concerns.  The plaintiff was informed of his termination by a different executive, who freely admitted that he was merely the messenger and not the decisionmaker.

While the Court agreed that a few inquiries about retirement plans could be necessary or prudent, badgering an employee – especially considering their limited interaction – was evidence of age discrimination.  That the employer attempted to explain the inquiries was merely an attempt to shift the summary judgment burden and did not give favorable inferences to the non-moving party:

That response is inexplicable: one or two inquiries along these lines from one’s boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. [The employer] also responds that [the manager] asked about [the plaintiff’s] retirement plans “in the context of [the manager] telling [the plaintiff] that he did not appreciate his constant emails.” Br. at 33. But that point merely views the evidence in a light favorable to [the employer]; that [the manager] complained about [the plaintiff’s] emails in these conversations does nothing to preclude the straightforward inference that [the manager] thought [the plaintiff] should retire because [the manager] thought he was too old for the job. In sum, [the plaintiff] has sufficient evidence that [the manager] was biased against him because of his age.

[The manager’s] inquiries about retirement also support an inference that [he] engaged in a series of actions, driven by bias, whose intended effect was to drive [the plaintiff] out of the company. At first (one could reasonably infer) [the manager] pushed to have [the plaintiff] leave voluntarily; to retire from a position is to leave it. That [the manager] gave [the plaintiff] “the lowest bonus of all his direct reports”—and told [him] as much directly—supports this view. So does the fact that, in March 2017, [the manager] asked [the plaintiff], “Why are you still here?” ([The manager] did not dispute that point either in his deposition.) But [the plaintiff] did not leave voluntarily, so (one could reasonably infer) [the manager] sought to terminate him. [His] first attempt took the form of a proposed one-person workforce reduction. . . —in which [the plaintiff’s] position alone would be eliminated.  [The manager] abandoned that plan only after [HR] flagged it for “legal attention” and  . . .  advised him to wait for a company-wide workforce reduction that was then pending . ..

The Court also found sufficient evidence that the manager, and not the executive, had been the decisionmaker or the executive had relied on the manager’s recommendation and explanation for why the plaintiff should be fired.   The executive had limited and only favorable impressions of the plaintiff’s work and had been unaware of how he had been treated by the manager.   There was no independent investigation and no break in the chain of causation showing that the plaintiff had been terminated for reasons unrelated to his manager’s alleged discriminatory animus.   The Court concluded that a reasonable jury could find that the manager’s discriminatory animus based on the plaintiff’s age was the but-for causation, or had a determinative influence on the outcome of the decisionmaking process.

The Court similarly found that the plaintiff could satisfy his burden of proving that retaliation was a but-for cause for his termination:

As to that question, Sloat emphasizes that Hagler “scream[ed]” at him and was “furious” when (per Iyer’s advice) he told Hagler directly that he thought Hagler was discriminating against him because of his age. Sloat also has evidence that, after that conversation, Hagler avoided speaking with him (by Hagler’s count, they spoke seven times in the next four months), stripped him of all his remaining responsibilities as to Ropes, and gave him his worst performance review ever. Hagler also tried to get Sloat transferred off his team and—when that failed—sought to terminate him in a one-person “WFR.” Moreover, Iyer’s email flagging that “situation” for “legal attention” and an examination of “the rationale and any risks associated with it” supports an inference that even she thought the one-person “WFR” was potentially retaliatory. Thus, much of the same evidence that supports Sloat’s claim of age discrimination likewise provides sufficient support for his prima facie case for the retaliation claim.

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 Supreme Court: RIFs Can Be Accomplished Through Attrition and Do Not Require Layoffs

 Last week, a divided Ohio Supreme Court affirmed the dismissal of a mandamus action by a number of police officers who sought to be promoted to positions which had previously been abolished by the City Council upon the retirement of the prior incumbents.  State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren, Slip Op. 2020-Ohio-5372.  The Court held that when the City Council had already reduced the headcounts for officers to be accomplished upon the next retirement to occur in those positions (i.e., through attrition), vacancies never occurred in those positions into which the next most senior officers could be promoted.  The Court distinguished a prior opinion which reached the opposite result because in this case the City Council reduced the headcounts and abolished the positions “on a prospective basis,” before the retirements and before the creation of a vacancy.  In other words, “[t]he statute does not say that reduction in the force can be accomplished only by layoffs.”

 According to the Court’s opinion, the City of Warren was subject to Ohio’s civil service statutes, including O.R.C. §§124.37 and 124.44.   In 2014, the City Council amended the authorized strength of the police force (in place since 1987) to reduce by one the number of captains, lieutenants and sergeants “through attrition.”  When the next captain and lieutenant retired in 2015 and 2016, their positions were not filled through promotion and were deemed abolished upon the retirement of the incumbents.   The plaintiffs filed a mandamus action because they were next in line to receive the promotions into the captain, lieutenant and sergeant positions.  Initially, the court found that the retirements created vacancies which first had to be filled before the positions could be abolished.  However, after stipulated facts were submitted on reconsideration, the court reversed and granted judgment on the pleadings to the City.  The officers appealed and a divided Supreme Court affirmed in a per curiam opinion.

 The civil service statutes require promotions, or civil service examinations, when a vacancy occurs.   When a position is abolished, the employee with the lowest seniority in that rank is demoted to the next lower rank, which then demotes the least senior employee of that rank and so on until the least senior officer is laid off.  The plaintiffs argued that positions cannot be abolished through attrition and can only be abolished after a vacancy created by a retirement is filled through promotion.  However, the Court of Appeals found “nothing in [R.C. 124.44 and 124.37] prohibit[s] the City from accomplishing a reduction in force by attrition” and that “attrition is the least disruptive means of all possible methods to reduce the force” inasmuch as “[n]o officer was laid off, and no officer needed to be demoted.”  In other words, “the present case involves ‘attrition’ in the sense of automatic abolishment upon the former officers’ retirement, preventing a vacancy from occurring in the first place.”   

The City pointed out that the “statute does not say that reduction in the force can be accomplished only by layoffs. . . . Nothing in the statute suggests that the appointing authority may not abolish a position unless it is simultaneously demoting someone from that position.”  Instead, the statutes merely point out the order of demotions (starting with the least senior employees) should an abolishment occur in a position held by an incumbent.   Further, the plaintiffs were arguing for the creation of a fiction by the promotion of individuals who would be almost immediately demoted with the abolishment of the position.  The Court agreed that “[o]nce the incumbent’s position has been validly disestablished, then a vacancy simply does not occur upon his retirement.”

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.

Sixth Circuit Affirms City's Judgment But Reversed Union's Judgment in Case Alleging Discriminatory Layoffs

This week there have already been three interesting decisions.  In one, the Sixth Circuit absolved a City of discrimination for accommodating a union demand to layoff one group of employees over another, but pulled the union back into the litigation for potential discrimination liability for making that demand in the first place.   Peeples v. City of Detroit, No. 17-222 (6^th Cir. 2018). The Court refused to let plaintiffs alleging race discrimination “piggyback” on the only timely EEOC Charge which resulted in a right-to-sue letter when that charge alleged only national origin discrimination.  It also refused to find statements made by a city employee about the union’s purported motivation as direct evidence.  It also found no circumstantial evidence of discrimination based only on statistics which did not attempt to show significant deviations from non-discriminatory factors, like seniority, and which were based on small sample size.  The Court, however, found that the plaintiffs did not need to show that the union breached its duty of fair representation in order to sue the union under Title VII.

According to the Court’s opinion, the City of Detroit instituted layoffs in advance of filing for bankruptcy protection.  It announced the layoff list based on city-wide seniority, but the fire department union objected on the grounds that it should be based on department seniority and filed a grievance. The City ultimately resolved the grievance by granting the union’s request.   The distinction resulted in the layoff of more minority officers under the union’s proposal than the City’s plan.  After four EEOC Charges followed, the fire union relented and agreed to the City’s initial plan.  The City ended up re-hiring the affected employees 80 days later and giving them full back pay, missed overtime pay and medical benefits.  Nonetheless, even though only one of the plaintiffs had obtained a right-to-sue letter from the EEOC, eleven of the affected minority employees brought suit against the City and the Union, seeking compensatory and punitive damages.

The Court addressed whether all of the plaintiffs could piggy back onto the one plaintiff’s right-to-sue letter.  Sadly for the plaintiffs, they did not raise any arguments to rebut the failure-to-exhaust remedies argument raised in the City’s summary judgment motion and, thus, were limited in what could be argued on appeal.   The only plaintiff to obtain a right-to-sue letter asserted only a national origin discrimination claim and the remaining plaintiffs were asserting racial discrimination.  The Court found that they were not substantially related claims, and thus the race claims could not piggyback onto an EEOC Charge asserting only national origin discrimination.

The Court also rejected the plaintiff’s claim of direct evidence of discrimination.  One of the plaintiffs testified in deposition that he heard a City employee state that he concluded the union was trying to protect the “white boys” from layoff.    This was not direct evidence of discrimination because it was a city employee explaining the union’s motivation and required an inference that the City endorsed that motive.  It also likely hearsay, but the Court did not ultimately resolve that issue.  

The Court also rejected the plaintiffs’ statistical evidence, which was pretty much all that they had to show that they were selected for the layoff on account of their race (in that they were not replaced).  First, they failed to organize their statistics in any meaningful way before the trial court.  Second, the fact that the percentage of white layoffs fell and of minority layoffs rose significantly under the union plan did not, by itself, show impermissible bias.  To prove an inference of bias, “the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.”  For instance, one could use three standard deviations from hypothetical random chance.   The plaintiffs made no effort to account for seniority differences, for instance.  The City also argued about the sample size (only 27 people) and the other cost-cutting efforts made, including demotions, reductions in overtime and rescinded promotions.   The plaintiffs also made no effort to show the racial composition of the fire department before and after the layoff. “Unless the statistics, standing alone or in comparison, are sufficient to lead the mind naturally to the conclusion sought, they have no probative value; they do not move the proof one way or another.”

The Court also rejected the plaintiff’s damage claim in that they had already received full back pay with the resolution of their grievances. The plaintiffs failed to introduce any evidence disputing that they had already received full back pay.  The union pointed out that they never raised breach of settlement agreement claims based on the resolution of their grievances when they were reinstated.  Accordingly, while they might have some compensatory and punitive damages available under Title VII, their claims for backpay were rejected by the trial and appellate courts.

Finally, the Court rejected the union’s argument that Title VII claims were subject to the same burden of proof as fair representation claims under labor-relations laws, meaning that the plaintiffs need not show that the union breached its duty of fair representation before it could sue them for discrimination under Title VII. Because the union had prevailed on that issue before the trial court, the Sixth Circuit reversed the union’s summary judgment.  

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 be changed or 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.

Sixth Circuit: Union Can Challenge RIF and Non-Recall of Employees Except Where Employees Signed Release

Last week, the Sixth Circuit Court of Appeals reversed a summary judgment in favor of an employer against a union which challenged the layoff and non-recall of five union employees during a reduction in force.  International Union, UAW v. General Motors LLC, No. 12-2327 (6^th Cir. 7-10-13). The plaintiffs had been laid off out of order of seniority purportedly because they were not capable of performing work being performed after a reorganization.  They were not recalled to work in inverse order of seniority for the same reason.  The Court found that the union raised a material issue of fact about whether the employees were qualified to perform work that was being performed in the factory after the reorganization and by less senior employees who were recalled to work.   However, because two of the employees had signed a release in connection with their separation which waived their right to challenge their termination and any right to future employment, their individual claims were barred.

The union introduced four pieces of evidence which contradicted the employer’s position that the employees were incapable of performing work that remained in the factory.  First, it was undisputed that the employees were competent and performed their former jobs acceptably prior to the reorganization.   Second, the union proffered an affidavit by a line-employee stating that work previously performed by the five employees was still being performed, other than that all employees had to learn a new computer program.   The Court found the district court erred in excluding his testimony on the grounds that he was not a “supervisor” and was unqualified to explain whether any jobs consisted solely of novice-level work.  Third, the employer had recalled novice-level employees with less seniority. While the union might have been incorrect, that was an issue of credibility.  Finally, the union disputed the employer’s characterization of the employees’ qualifications since they were rated higher than the employer now claimed.  While the union might have been utilizing outdated information, that argument again went to credibility and weight instead of materiality.

Two of the five employees received severance pay in exchange for signing a release of claims that contained, in part, language that barred all:

 “claims, grievances, lawsuits, demands and causes of action, whether known or unknown . . . in any way relating to [the] employment and/or separations from General Motors Corporation . . .  .  “I understand that GM does not intend for me to be eligible at any time in the future for reemployment by GM . . . .”

The Court rejected the argument that the releases could not waive post-termination claims because the employees were aware of their recall rights at the time they signed the release and were aware that they were signing away their right to future employment.

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.

Sixth Circuit Affirms Dismissal of Age Discrimination Claim

This morning, the Sixth Circuit affirmed the dismissal of an age discrimination of a supervisor whose position has been eliminated in a reduction in force. Metz v. Titanium Metals Corp., No. 11- 3117 (6th Cir. 3-29-12). The Court concluded that employees laid off in a reduction in force have a higher standard of proof and cannot show that they were replaced by a younger individual when their duties were merely absorbed by the remaining employees. The Court also rejected the argument that references to the tenure and planned retirement of an older employee and the “new ideas” of the younger employee constituted direct evidence of age discrimination. Finally, the Court found nothing discriminatory in using a different standard to evaluate and compare employees for purposes of a RIF than is used in their annual performance evaluations.

According to the Court’s opinion, the plaintiff was a shipping supervisor who agreed to the promotion of a much younger supervisor to help him and an older supervisor when the company was experiencing record sales volume. At the time, the HR Manager indicated that the new employee would bring new ideas and might be able to replace the oldest supervisor when he retired in the near future (having already worked there for 42 years at that point). When the recession hit and sales volumes decreased dramatically, the company reduced costs by, among other things, reducing the number of shipping supervisors by one position. The company then evaluated all of the salaried employees and ranked them to determine which employees would be retained in the existing positions. The plaintiff ranked lower than his co-workers on this survey and was ultimately laid off.

The Court rejected the argument that the HR Manager’s comments constituted direct evidence of age discrimination. Tenure is not the same as age. References to the younger employee’s “new ideas” was ambiguous. Finally, mention of the planned retirement of the oldest employee did not constitute discrimination.

The Court also rejected the argument that the younger employee replaced the plaintiff because he had initially been promoted – with the plaintiff’s agreement – to help him. In addition, there was a reduction in the number of shipping supervisor position. Finally, the younger employee absorbed the plaintiff’s duties into his existing duties; they were not new duties.

Finally, the Court rejected the argument that management manipulated the RIF evaluation ratings to retain the younger employee over the plaintiff when they had traditionally received the same performance evaluation ratings. First, the employer retained the oldest shipping supervisor. There was also evidence that the plaintiff’s RIF rating was based in part because he “had occasionally been disrespectful toward management, had failed to be forthcoming about problems, and had failed to resolve conflicts among employees in [his] department.” Management had been unanimous in ranking the younger employee higher than him. The fact that their performance review ratings had been similar and the RIF evaluation was different was like comparing apples and oranges. One rated the employees against the same standard; one compared them to each other.

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.

Sixth Circuit: Disability Leave and Receipt of Social Security Benefits Do Not Destroy ADEA Claim Following a RIF.

This morning, the Sixth Circuit Court of Appeals in Cincinnati affirmed the dismissal on summary judgment of an age discrimination claim brought by a salesperson who took disability leave shortly after being notified that his position was being eliminated in a reduction in force. Johnson v. Franklin Farmers Cooperative, No. 09-5483 (6^th Cir. 2010). However, it did so for different reasons than the trial court – which had found that the plaintiff failed to show that the employer's explanation was a mere pretext for discrimination. Rather, consistent with similar claims, the Court ultimately agreed that the plaintiff could not show that he had been replaced, or selected for the RIF based on his age, when his duties were reassigned among the remaining employees. However, before reaching this unsurprising conclusion, the Court also rejected several arguments raised by the employer, including: (1) that the plaintiff did not suffer an adverse employment action when he took short-term and long-term disability leave after being notified that his position was being eliminated and (2) that his disability leave and receipt of social security benefits rendered him unqualified for his position. Nonetheless, the Court rejected the trial court's conclusion that the plaintiff had shown that he had been replaced by a younger employee when it found indisputable evidence of a RIF and imposed a higher burden of proof on the plaintiff to show that his age had been a factor in his selection for the RIF. Thus, it affirmed summary judgment for the employer.

The Court rejected the employer's argument that the plaintiff could not show as part of his prima facie case that he suffered an adverse employment action when he applied for short-term disability benefits (and then received LTD and social security benefits) shortly after being notified on September 5 that his position was to be eliminated in the RIF and before the position was actually eliminated on September 30. The employer denied the plaintiff's request that he be permitted to continue working for another 19 months (when he would qualify for full retirement benefits) and the plaintiff testified that he would have continued working if his position had not been eliminated (regardless of the content of his disability benefit applications). "Viewed in a light most favorable to [the plaintiff], the evidence supports [the plaintiff's] assertion that he involuntarily ceased working two weeks before [the employer] would eliminate his job, and that [the employer] brought about a significant change in his employment status. The prima facie showing is not intended to be onerous." Instead, such an argument would be better evaluated, if at all, at the pretext stage of analysis.

The Court also rejected the employer's argument that the plaintiff could not prove as part of his prima facie case that he was qualified for the salesperson job when he had submitted applications stating that he was completely unable to work. However, the Court found that the plaintiff had adequately explained the apparent inconsistency by, among other things, affidavits from co-workers, the employer's General Manager and former customers about how well he performed his job before he began his disability leave.

The Court rejected the trial court's conclusion that the plaintiff had been replaced by a younger employee. According to the Court's opinion, the employer selected three employees for the September 30 RIF because of a budget deficit, but it rehired one of them in November and delayed the termination of the other until he qualified for retirement on December 30. In addition, the General Manager admitted that some of his business decisions were influenced by the existence of the pending litigation because he did not want to have to admit that he actually needed an outside salesperson, like the plaintiff (thus, implying that he was merely waiting for the conclusion of the litigation to formally name the younger employee as the employer's outside salesperson). The plaintiff's duties had been distributed among two younger employees. The Sixth Circuit found that the employer had legitimately conducted a RIF despite the above facts because the retired employee was not replaced and the rehired employee was brought back to replace another departing employee. Thus, the employer's headcount following December 30 was three less than it had been when it announced the RIF on September 5.

The Court also found that the plaintiff's duties had been assumed by two younger employees, who continued to perform their existing job duties. " An employee is not replaced for purposes of the fourth element of a prima facie case of discrimination when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work."

Because the plaintiff's termination took place in a RIF, the Court imposed a higher burden of proof on him to show that he was impermissibly selected for the RIF on account of his age:

Where . . . there is a reduction in force, a plaintiff must either show that age was a factor in eliminating his position, or, where some employees are shifted to other positions, that he was qualified for another position, he was not given a new position, and that the decision not to place him in a new position was motivated by plaintiff's age. . . . . The purpose of the additional evidence requirement is to ensure, in reduction of force cases, that the plaintiff has presented evidence to show that there is a chance the reduction in force is not the reason for the termination.

Ultimately, the Court concluded that the plaintiff could not meet the higher burden of proof which applies in a RIF. The plaintiff admittedly did not have direct evidence of age discrimination and could not show an inference of age discrimination simply from the fact that two younger employees were retained instead of him. Finally, the General Manager's admission that his business and promotional decisions were influenced by the fact of the litigation was insufficient to carry the plaintiff's 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.

Sixth Circuit: A Tale of Two RIFS With Different Endings

This week, the Sixth Circuit released two opinions in two days addressing claims that the plaintiff was selected for a reduction in force in violation of federal employment laws. In one, the Sixth Circuit affirmed summary judgment for the employer and in the other it reversed it and sent the case back for trial. In one case the plaintiff claimed she was selected for the RIF because of her age; in the other the plaintiff claimed that she was selected because of medical leave. In one case, the managers may have violated the employer’s RIF policy which they claimed they were following; in the other the managers likely violated the employer’s RIF policy, which they blamed on ignorance. This comparison highlights how even the slightest difference in facts can lead to much different results.

In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.

The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.

In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:

The jury could also conclude that [Plaintiff’s] termination was based on her FMLA leave, because none of Kmart’s asserted reasons for her lower RIF appraisal scores were documented, and Kmart admitted that nothing in her performance changed during the twenty-day period between her last annual appraisal and the RIF appraisal. Although Kmart contends that variations between annual appraisal scores and the RIF appraisal scores were common, that [Plaintiff’s direct supervisor] inflated the annual appraisal scores, and that [Plaintiff’s] performance had been declining, a reasonable jury could reject Kmart’s contentions. Given [Plaintiff’s] prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that [Plaintiff’s] performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

. . ..

[Plaintiff] also argues—and the jury could conclude—that the same circumstantial evidence supporting the causal connection between her FMLA leave and her termination demonstrates that Kmart’s proffered non-discriminatory reason was pretextual. Specifically, the following facts could show pretext: the temporal proximity between her leave and termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisals and her RIF appraisal, and the “LOA” notation next to [Plaintiff’s] name on the Impacted Associates Form.

In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.

The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:

Business circumstances may result in a temporary or permanent reduction in the size of the work force. Making such decisions is not easy. However, the Company will attempt to identify employees who are the most qualified to perform the work available based on qualifications, productivity, attendance, general performance record and other factors the Company considers relevant in each case. When the Company considers these factors to be relatively equal, decisions will be guided by relative length of service.

Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s 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.

Franklin County Appeals Court: Nothing is Reasonably Reliable In a RIF or Public Litigation.

Last month, the Franklin County Court of Appeals affirmed the dismissal of a defamation and wrongful discharge suit brought by the former head of security for Capital University whose job was eliminated in 2006 during a budget crisis. Woods v. Capital Univ., No. 2009-Ohio-5672. Although the 54-year old plaintiff had been told in writing during his exit interview that his performance played no role in the elimination of his position (and he had received nothing but promotions prior to his termination), the university’s attorney was quoted in two local newspapers as attributing part of the termination decision to “job performance issues.” His responsibilities were divided and his public safety management responsibilities were given to a 28-year old safety officer. Nonetheless, the Court affirmed dismissal because the allegedly defamatory statements related to a matter of public concern, which required proof of actual damages or actual malice, and the redistribution of duties to existing employees cannot support an inference of age discrimination. Finally, his promissory estoppel claims were dismissed because the three verbal promises of continued employment were contracted by the terms of his written contract with the university.

According to the Court’s opinion, the plaintiff was eight years away from retiring from another college when he was hired by Capital to reorganize its public safety department. When he expressed reluctance to leave a secure position so close to his retirement age – particularly with friction that was likely to develop during the planned reorganization, he was assured by the VP/Treasurer that he would be employed at least eight years to retire at Capital. However, his offer letter only promised one year of employment. He was promoted the following year and given two more one-year appointments. When rumors surfaced about a possible budget deficit, he again sought reassurance about his job security and was again assured by the VP/Treasurer that his job was safe. When the VP/Treasurer was then fired, he sought and obtained similar assurance from the President, who then shortly thereafter left.

When an impending $12.5M deficit was revealed, a committee examined all positions and recommended the elimination of 72 positions, including that of the plaintiff. His termination letter informed him that his job was eliminated because of the budget difficulties and not because of his job performance. His public safety duties were reassigned to a 28-year old officer and his auxiliary duties to other employees. He then filed a lawsuit for $4.6M against Capital for age discrimination and promissory estoppel. The lawsuit received publicity in the local media and Capital’s attorney was quoted in two newspapers as stating that the plaintiff had been let go because of the budget difficulties and “job performance issues.” The plaintiff amended his claims to include the allegedly defamatory statements by the attorney. The trial court granted summary judgment to the defendants and the plaintiff appealed.

Defamation Claim

The Court of Appeals addressed the defamation claim first and found the attorney’s statement about the plaintiff being fired in part because of his job performance to be defamatory on its face (or defamation per se) since it had the tendency to hurt plaintiff’s career and ability to find another job. The Court rejected the defense attempt to

characterize this statement as vague and contend that if it is defamatory at all, it is only defamatory per quod. We disagree. No employer fires an employee for good job performance. The only reasonable reading of [the attorney’s] statement is that Capital terminated [the plaintiff’s] employment for two reasons, and one of those reasons was [the plaintiff’s] poor job performance. Thus, the statement in and of itself tends to injure [the plaintiff] in his occupation as any employer would hesitate before hiring a potential employee who underperformed in his previous job. Such a statement is defamatory per se.

Typically, damages in such situations are presumed without proof or pleading. However, in this case, the Court found the statement to also have limited protection from the First Amendment. Because the plaintiff worked for a private college, he was not a general public figure. Moreover, the fact that he filed a lawsuit – by itself – did not render him a limited purpose public figure. However, the fact that he sought $4.6M in damages from a significant private institution which was having very public budget difficulties rendered the issue of the reduction in force and his lawsuit a matter of public concern – as evidenced by the significant media coverage. Therefore, the claim was governed by the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345-46, which concluded that:

in such cases, the states could define for themselves an appropriate standard of liability, so long as they did not impose liability without fault. Gertz, 418 U.S. at 347. Subsequently, Ohio adopted the ordinary negligence standard as the standard of liability for actions involving a private individual defamed in a statement about a matter of public concern. Landsdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio.St.3d 176, 180. In addition to requiring an element of fault, the Gertz court also limited the type of damages recoverable in defamation cases involving private individuals and statements regarding a matter of public concern. Given the constitutional command of the First Amendment, . . . the states could no longer permit recovery of presumed or punitive damages, at least when liability was not based upon a showing of actual malice. Gertz, 418 U.S. at 349, . . . Thus, in Ohio, a plaintiff must prove either: (1) ordinary negligence and actual injury, in which case he can receive damages for the actual harm inflicted; or (2) actual malice, in which case he is entitled to presumed damages.

Thus, the plaintiff was required to show actual malice or actual injury (i.e., “out-of-pocket loss, impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”). However, the plaintiff’s testimony that he felt that his job hunt was impaired by “google searches” of the attorney’s statement was too speculative to support proof of actual injury. Moreover, he failed to introduce any evidence that the attorney knew that his statement was false at the time it was made. Therefore, summary judgment on his defamation claim was upheld.

Retaliation

The plaintiff also claimed that the attorney’s defamatory statement was made in retaliation for the plaintiff’s consultation with an attorney following his termination. However, the Court refused to infer causation (i.e., the defamatory statement from the consultation with counsel) based on the passage of two months between the demand letter from the plaintiff’s attorney and the newspaper accounts repeating the defamatory statement. Because there was no other evidence of causation or proving a link between the two events, the Court affirmed summary judgment.

Age Discrimination

Typically, a discrimination claim requires that the plaintiff show that he was replaced by someone outside the protected class. The Court noted that this is extremely difficult, if not impossible, to show when the plaintiff was fired in a reduction in force:

When a discharge results from a work force reduction, an employee is not replaced, instead his position is eliminated. Barnes v. GenCorp Inc. (C.A.6, 1990), 896 F.2d 1457, 1465. Logically, then, a plaintiff discharged as part of a work force reduction cannot offer evidence that he was replaced by a substantially younger person to satisfy the fourth element of the prima facie case. Moreover, even if such a plaintiff demonstrates that his discharge permitted the retention of substantially younger persons, no inference of discriminatory intent can be drawn. Id. In the context of a work force reduction, the discharge of the plaintiff and retention of a substantially younger employee is not "inherently suspicious" because a work force reduction invariably entails the discharge of some older employees and the retention of some younger employees. Brocklehurst v. PPG Industries, Inc. (C.A.6, 1997), 123 F.3d 890, 896. Permitting an inference of intentional discrimination to arise from the retention of younger employees "would allow every person age 40-and-over to establish a prima facie case of age discrimination if he or she was discharged as part of a work force reduction." Barnes at 1465.

{¶57} Consequently, when a plaintiff's position is eliminated as part of a work force reduction, courts modify the fourth element of the prima facie case to require the plaintiff to " 'com[e] forward with additional evidence, be it direct, circumstantial, or statistical, to establish that age was a factor in the termination.' " Kundtz v. AT & T Solutions, Inc., 10th Dist. No. 05AP-1045, 2007-Ohio-1462, ¶21 . . . The purpose of this modified requirement is to ensure that, in work force reduction cases, the plaintiff has presented evidence to show that there is a chance that the work force reduction is not the reason for the termination. Asmo v. Keane, Inc. (C.A.6, 2006), 471 F.3d 588, 593 . . .

Nonetheless, the plaintiff can also show discrimination if he was in fact replaced instead his duties being eliminated, consolidated or distributed among a number of different people:

An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.

In this case, the plaintiff’s 2004 promotion involved him assuming certain duties outside the public safety department. When his position was eliminated in 2006, those duties were reassigned and only his public safety duties were given to the 28-year old officer. The reassignment of his auxiliary duties were more than cosmetic or superficial duties. Thus, there was sufficient evidence to show that his position was eliminated and his duties distributed in a genuine reduction in force. Therefore, without additional evidence or direct evidence of age discrimination, summary judgment on this claim was affirmed.

Promissory Estoppel.

Plaintiff brought this claim based on the three separate promises of job security which he received both before and after he was hired by Capital. As explained by the Court:

Promissory estoppel provides an equitable remedy for a breach of an oral promise, absent a signed agreement. Olympic Holding Co. v. ACE Ltd., 122 Ohio.St.3d 89, 2009-Ohio-2057, ¶40. In order to succeed on a claim for promissory estoppel: "The party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading." . . . The elements necessary to prove a claim for promissory estoppel are: (1) a clear, unambiguous promise, (2) the person to whom the promise is made relies on the promise, (3) reliance on the promise is reasonable and foreseeable, and (4) the person claiming reliance is injured as a result of reliance on the promise.

The fatal flaw in his argument, however, is that he signed written contracts which promised him only employment for a year at a time. Therefore, his reliance on the oral promises was not reasonable under the circumstances:

[C]ourts cannot enforce an oral promise in preference to a signed writing that pertains to exactly the same subject matter, but has different terms. Ed Schory & Sons at 440. Thus, "[p]romissory estoppel does not apply to oral statements made prior to the written contract, where the contract covers the same subject matter.

The Court rejected the plaintiff’s argument that his employment letters were not binding contracts, but only acknowledgment of certain terms. The Court also rejected the argument that the plaintiff’s reliance on promises made during the budget crises were reasonable under the circumstances. In any event, the plaintiff did not provide any evidence that he relied on the promises to his detriment since there was not evidence that he rejected a job offer in reliance on the promises. On the contrary, despite the promises being made to him during the budget crises, he promptly began searching for another job and submitting his resume to other employers.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5672.pdf.

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.

EEOC: Store Pays $60K and Agrees to 5-Year Consent Decree After Laying Off Black Manager in RIF and Later Hiring White Managers.

Yesterday, the EEOC announced that Shopper’s Vineyard, a wine and liquor store in Clifton, New Jersey, agreed to consent decree to resolve a race discrimination lawsuit initiated on behalf of an African-American store manager who had been laid off in 2006. Pursuant to the five-year consent decree, the store will pay $60,000 and institute new anti-discrimination policies and procedures, including appointing an equal employment opportunity coordinator to insure compliance with Title VII and other anti-discrimination statutes, training managers regarding Title VII requirements on a regular basis, posting a notice to employees at the store about the decree, providing reports to the EEOC, and permitting the EEOC to monitor its compliance with the decree.

In its lawsuit, the EEOC alleged that the manager “was the only African American front-line manager at the Clifton store. Shopper’s Vineyard told [the manager] in 2006 that he was being laid off because of economic reasons, but [he] was actually laid off because of his race. Shopper’s Vineyard retained white managers with less tenure and experience and hired many new employees, including four new white managers, within the year after [the manager] was laid off.”

Insomniacs may read the full press release at http://www.eeoc.gov/press/3-4-09a.html.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit Rejects Disparate Impact Sex Discrimination Claims of Employees Laid Off in RIF by Columbus Moving Company.

Today, the Sixth Circuit affirmed the dismissal of sex discrimination claims brought by four terminated female employees who alleged that their employer’s reduction in force disproportionately affected women by focusing the RIF on predominately female departments. Shollenbarger v. Planes Moving & Storage, No. 06-4454 (10/21/08). In particular, the plaintiffs alleged that the RIF resulted in the termination of twelve women and only one man even though 53% of the employer’s total workforce consisted of women. At one point in the Court’s opinion, it noted that “the odds of selecting 12 women from the [employer’s] entire non-management labor pool is 0.1%.” Nonetheless, because the employer articulated a legitimate business justification for focusing its RIF on the predominately female departments, “statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

According to the Court, “[p]rior to the RIF, [the employer’s] non-management workforce comprised 120 women and 86 men, split into several departments. Management
comprised 18 women and 35 men. So, there were 259 total employees (53% female).” The employer then focused its RIF on certain departments: “Customer Service; Credit & Collections; Operations; and Billing & Rating. Of the 101 total employees in these departments, 90 were women and 11 were men, meaning that the departments were 89% female. Meanwhile, [the employer] excluded from the RIF its other departments: Warehouse; Movers & Packers; and Drivers. These departments consisted of 30 women and 75 men (105 total), meaning that they were only 29% female. [The employer] delegated to the individual department managers the decision of which employee(s) from their departments to lay off, using criteria of conduct, performance, reliability, and seniority. Ultimately, [the employer] laid off 12 women and one man.”

“The plaintiffs first challenged [the employer’s] ‘particular employment practice’ of selecting only certain (predominantly female) departments for the RIF. . . . The plaintiffs contend that the statistics . . . show a disparity and we agree. At this step in the analysis — the prima facie step —[the employer’s] reasons for selecting certain departments is immaterial; the only questions at this point are whether there was an identifiable disparity and, if so, whether the challenged employment practice (i.e., the selection of certain departments) could have caused the disparity. Based on a rudimentary statistical analysis, we answer both in the affirmative. If [the employer] had randomly selected one employee for layoff from its entire non-management labor pool (i.e., all departments), it would have had a 58% chance (120/206) of selecting a woman. By targeting only certain departments, the likelihood of selecting a woman increased to 89% (90/101). More telling is that the odds of selecting 12 women from the affected departments is 23%, whereas the odds of selecting 12 women from the entire non-management labor pool is 0.1%. We find this to be a sufficient disparity to demonstrate a disparate impact from the decision.”

Because the plaintiffs met their prima facie burden, “ the burden shifts and [the court] must consider whether [the employer] set forth a legitimate business justification. [The employer] explained that its declining business necessitated the RIF and that some departments were affected more that others; specifically, those employees who dealt most directly with customers were the most affected. In addition, the predominantly male, unaffected departments were staffed largely with seasonal workers (typically high school and college students) who had already left at the end of the peak summer season. And, there was no decline in the business being done by the warehouse. We conclude that the challenged employment practice of subjecting only certain departments to the RIF had a legitimate business justification.”

“Because [the employer] clearly met its burden of showing a legitimate business justification, the burden shifts back to the plaintiffs to show that “other tests or selection devices, without a similarly undesirable . . . effect, would also serve the employer’s legitimate [business] interest.” The plaintiffs argued that “there wasn’t any exploration of alternatives to these layoffs at all.” But, this is a misunderstanding of the standard and, hence, completely irrelevant. plaintiffs were obligated to prove equally effective alternatives and — although they offer alternatives to a RIF in general — they offer no alternative to subjecting only the particular, selected departments to the RIF. The purpose of this step is not to second guess the employer’s business decisions, it is to show — by pointing to obviously ignored alternatives — that the “particular employment practice” was actually pretext for discrimination.” Once the decision to focus the RIF on certain departments, the statistical anomalies disappear: “The RIF was 92% female (12/13), which is perfectly consistent with a random selection from an 89% pool. Statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0631n-06.pdf.


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.

EEOC Obtains $904K Settlement on Behalf of 10 Employees Fired in a RIF Who Alleged Age Discrimination and/or Retaliation.

Yesterday, the EEOC “announced the settlement of its age discrimination lawsuit against Lockheed Martin Global Telecommunications for $773,000 for a class of eight older employees” in addition to the severance pay already received by the eight employees. In addition, “through a separate consent decree filed last year to settle retaliation claims brought in the same lawsuit, “Lockheed Martin has paid $131,000 in damages to two former employees whose severance was withheld because they had pursued administrative complaints with the EEOC.”

"In its suit (05-cv-00287-RWT), filed in the U.S. District Court for the District of Maryland, Southern Division, the EEOC charged that the . . . employer violated the Age Discrimination in Employment Act (ADEA) when it discriminated against the employees, ages 65, 62, 61 (three), 53 and 47. The eight workers were fired during a reduction in force implemented in the COMSAT Mobile Communications Division in October 2000. The back pay remedies received by the claimants are in addition to severance pay already received.”

“In Fiscal Year 2007, the EEOC received 19,103 age discrimination charge filings, a 15% increase from the prior year and the biggest annual increase in five years. Allegations of age bias account for 23% of the agency’s private sector caseload.”

Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/4-7-08a.html.
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.

Age Discrimination Can Be a Sloppy Business

On October 15, 2007, the Sixth Circuit reversed a summary judgment which had been entered in favor of an employer in an age discrimination case and began its opinion as follows:

"When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can."

In Blair v. Henry Filters, Inc., No. 05-2437, the court returned the case to the district court for trial. The employer lost on appeal even though it showed that it had laid off two under-40 employees at the same time as plaintiff (and had reduced its workforce from 143 employees to just 52 employees in only two years) and the employer's witnesses denied the plaintiff’s version of events and that the decisionmaker was the same person making the ageist comments alleged by the plaintiff. However, courts are not permitted to weigh credibility at the summary judgment stage.

The appellate court noted that the comment about the plaintiff being “too old” to be handling the employer’s Ford account was direct evidence of his removal from the Ford account on account of his age, but was not direct evidence that he was terminated on account of his age. However, the cumulative effect of the comments and the fact that a twenty-year old salesperson was hired in some capacity four months later were enough to create a circumstantial case of age discrimination. The court also noted that plaintiffs in a RIF case had a lower burden of proof than in the typical discrimination case:

"We recognize that this holding comes close to permitting a plaintiff in a reduction-in-force case to get to a jury merely by creating a genuine issue of material fact regarding the prima facie case. But to create a genuine issue of material fact regarding the employer’s actual motivation, a plaintiff must still provide evidence from which a reasonable jury could conclude that an illegal motivation was more likely the reason for the adverse employment action. To create a genuine issue of material fact regarding the prima facie case in a case involving a reduction-in-force, a plaintiff’s standard is lower. The plaintiff must supply evidence tending to indicate that the employer singled the plaintiff out for impermissible reasons. Accordingly, creating a genuine issue of material fact regarding the prima facie case is not a free pass to a jury, even in a reduction-in-force case."

The employer could take some solace in the fact that the appellate court affirmed the dismissal of the plaintiff's hostile work enviornment claims on the grounds that the same discriminatory comments which created the circumstantial evidence of age discrimination were insufficient to interfere with his job performance.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/052437p.pdf.