Sixth Circuit Rejects Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6^th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

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 Rejects Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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 Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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 Dismisses Claim When Plaintiff Was Fired Six Weeks After Returning from FMLA Leave

On Monday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an FMLA retaliation claim when the plaintiff had been terminated after nineteen years of employment only six weeks after he returned from FMLA leave.    Nieves v. Envoy Air, Inc., No. 18-1127 (6^th Cir. 1-14-19). The Court found that the plaintiff failed to show that his termination – for permitting his mother’s boyfriend to use his free flying privileges many years earlier in violation of policy – was causally related to his use of FMLA leave.  The plaintiff had admitted that he should not have identified the flier as his father.  Accordingly, the plaintiff could not prove his prima facie case of showing that his termination was causally related to his recent use of FMLA leave.   Interestingly, there was no discussion of temporal proximity satisfying the plaintiff’s burden of showing causation even though his termination on March 30 was merely six weeks after he returned to work on February 19.

According to the Court’s opinion, the plaintiff had worked in at the counter for nineteen years.  His relatively new supervisor did not like him and blamed him unfairly for a number of issues.  In April 2015, the plaintiff (along with several other employees) was selected by the corporate office for a random audit of his flying privileges to investigate potential abuse.  He was required to send proof of eligibility (i.e., familial or legal relationship) of the individuals listed on his travel log.  He only sent documentation of two people (his wife and one daughter) who were actively using his privileges instead of all of the individual who had used his privileges over the past 19 years (and included other children as well as a half-brother, a friend’s son who stayed with them on an extended basis and his mother’s 20-year boyfriend that he had once listed as father/step-father).   The audit stalled until January 2016 when the plaintiff was hospitalized for approximately a month for kidney failure and took FMLA leave.  Three weeks after he returned to work on February 19, he was interviewed on March 9 by telephone without prior notice about the individuals he failed to document and answered all of the questions truthfully. He was given nine days to produce documentation substantiating the legal/familial relationship with all of the individuals, which he later explained was impossible when some of the documentation had to be obtained from the Dominican Republic.  The corporate office – which was never told about the plaintiff’s FMLA leave -- determined quickly that the plaintiff should be terminated on March 30 because that was the recommended penalty for violation of the travel policy.  On appeal, the decision was upheld because the plaintiff admitted that his mother’s boyfriend should never have been listed as his father on the travel log.

The Court concluded that the plaintiff could not show that his termination was related to his FMLA leave.  It rejected the plaintiff’s argument that the investigator’s note in her files about the plaintiff’s FMLA leave was proof of retaliation because she explained that it was merely a reminder of why she had not yet interviewed him when she got to his file in January 2016.  The note explained his unavailability when she attempted to schedule his interview.  There was nothing in the investigator’s report to corporate about the plaintiff taking FMLA leave.

The Court also dismissed stray comments by his supervisor about him and suggesting that he retire.  Some comments were made more than a year before he took FMLA leave.  The supervisor was not the decisionmaker.  One comment followed the explanation of the plaintiff’s wife that his physician wanted him to do less lifting (which was a big part of his job).

The Court also rejected the allegation that his travel log was given more scrutiny following his FMLA leave because the employer documented each step of the investigation process and explained each of its steps and delays.

There is no discussion in the Court’s decision of the temporal proximity -- six weeks between the end of his FMLA leave in February and his termination on March 30 – being sufficient to infer a causal relation. Because there was no evidence linking the termination for a clear violation of the travel policy to his use of FMLA leave, the Court found that he could not prove his prima facie case and there is no discussion of pretext or honest belief defenses.

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.

Divided Sixth Circuit Affirms Dismissal of FMLA Claims But Finds Possible ERISA Claims Based on Same Evidence

Yesterday, a divided Sixth Circuit affirmed summary judgment on FMLA interference and retaliation claims where the plaintiff employee, like 55 employees before him, had been fired under the common company policy for failing to call off for three consecutive days, but on the same facts the Court reversed dismissal of his ERISA interference and retaliation claims on the grounds that the employer’s failure to call him to check on him (like some other employees who had similarly failed to show or call off) prior to terminating his employment could constitute evidence of pretext.   Stein v. Atlas Industries, Inc., No. 17-3737 (6^th Cir. 4-9-18).  The Court found that the employee could not show unlawful interference with his right to take FMLA leave because the FMLA regulations permit employers to enforce call-off policies, which the plaintiff admittedly had failed to observe due to his own confusion about when he had been released to return to work.  His confusion about what his physician had written did not excuse his failure.  The Court also concluded that he could not show unlawful retaliation based only on the passage of 10 weeks between the start of his FMLA leave and his termination because temporal proximity alone is insufficient evidence when the span of time is more than 8 weeks.  Unlike his FMLA claim, however, the employee was able to produce evidence that his self-insured employer was very concerned about the medical bills incurred by his son.   Therefore, the passage of 7 months did not destroy his evidence of causation because he was not relying on temporal proximity alone and it was known that his son would likely require another hospitalization.   This “extra” evidence of employer motivation also apparently made relevant evidence of  pretext that the Court had previously rejected as evidence of pretext in his FMLA claims.

According to the Court’s opinion, the plaintiff had worked for the defendant company for 20 years and even had a year of perfect attendance when his son required hospitalization for a severe, chronic and rare neurological condition that apparently caused the employer’s insurance rates to rise and had been blamed by some employees for the employer’s inability to raise wages.  The employee then required surgery for a work-related injury and was off work on FMLA leave for 10 weeks.   Near the end of July, his doctor told him that he could return to unrestricted duty on  August 10.  However, the employee did not understand or realize that his physician had immediately released him to return to work on light duty on July 20 and had so informed the employer.   Although employees are entitled under the FMLA to reject light duty work, they are still required to adhere to the employer’s attendance policy, which in this case required employees to call off every day that they did not intend to return to work after they have been released to light duty.  When the employer received the physician’s release for light duty, it called the physician to confirm the release because the employee had not called off work.  When the employee did not report to work for three consecutive days or call off, it terminated his employment like it had 55 employees before him.   The employee produce some evidence that the employer had called some other employees before terminating them under the same policy, thereby showing selective enforcement.

First, the Court rejected the FMLA interference claim.  The Court found that the employee’s confusion about his medical release and its ramifications did not constitute “unusual circumstances” to excuse his failure to call off work under the employer’s policy.  The type of “unusual circumstances” that would have justified him not complying with the policy would be a malfunctioning voicemail or telephone system.   While the Court was sympathetic that the doctor told the employee one thing, but wrote something else, the Court also found that the employee should have read the form which his physician gave him.  The Court also rejected the FMLA interference claim because FMLA regulations require employees to comply with their employer’s call off procedures even if they are entitled to be on FMLA leave. 

Here, [the employer’s] policy required employees on medical leave to either return to work or call in once their doctor released them with light-duty restrictions.  And the company’s employee handbook provided that “any associate who is absent three (3) consecutive days without permission or without calling in [would] be automatically discharged.”  . . . So, when [the plaintiff] failed to report for work or call in for three consecutive days after his release, [the employer] was within its rights to terminate him.   

It was irrelevant that the employee was legally entitled to reject light duty work under the FMLA. 

Had [the employee] contacted [the employer] to say that he was using his remaining two weeks of FMLA leave and the company subsequently fired him under the attendance policy, [he] would have a claim.  But that is not what happened.  [Its] policy required [him] either to return to work or call in and report his intentions, and [he] did neither.  So the light-duty regulations do not protect him.

Second, the Court rejected the FMLA retaliation claim.   The employee apparently admitted that his only evidence of retaliation was the temporal proximity of the termination – 10 weeks after he began FMLA leave.   There were apparently no stray or other remarks which would show that the employer was motivated to retaliate for his taking FMLA leave.  However, temporal proximity alone cannot constitute sufficient evidence of causation when the lapse of time is greater than 8 weeks.   Accordingly, the Court affirmed dismissal of the FMLA claims. 

Finally, the Court found that there was sufficient evidence for a jury to consider whether the employee was fired in retaliation for, and to prevent him from, using his ERISA benefits to obtain employer-covered medical treatment for his son.  The employer was self-insured for medical coverage and had stop-loss coverage for extraordinary claims.   The company had apparently spent $500K on his son’s care in the prior year (part of which was covered by the stop-loss coverage) and had been publicly lamenting “skyrocketing” health care costs in employee bulletins.  The HR Director was alleged to have complained about this to another employee and attributed the rising employee premiums to his son’s $1M in medical bills.  While the employee’s supervisor made the decision to terminate his employment, he did not act alone because the HR Director and the VP of Operations also participated in the decision, decided to not reconsider or excuse his confusion about his medical release, and were well aware of the cost of his son’s medical expenses.   Further, the passage of seven months between his son’s hospitalization and the termination decision did not destroy the temporal proximity inference because, as just discussed, the employee was not relying on temporal proximity alone (as he did in his FMLA claim).   This was particularly true when it was known and likely that his son would have to return to the hospital again in the future.

The employer again explained that it had fired the employee under its policy of automatically firing employees who fail to show up or call off for three consecutive days and pointed out that it had similarly fired 55 other employees under this policy.  

Thus it is [the employee’s] turn once more.  [The employee] “need not show that the employer’s sole purpose was to interfere with [his] entitlement to benefits” or to retaliate, but instead that a reasonable jury could find that unlawful considerations were a “motivating factor” in its actions.  

The Court then remarkably concluded that while the employer’s rationale was justified under the FMLA, it could constitute pretext under ERISA.   Although the Court rejected the employee’s argument that the employer’s failure to call him to schedule a return-to-work drug test after he had been released to return to light duty was evidence of pretext for his FMLA retaliation claim, it found that evidence relevant for his ERISA retaliation claim.  Finally, it found that the employee’s “suggestion” that the employer had called some workers to find out why they had not returned to work or called off (instead of automatically terminating them) constituted evidence of selective enforcement and ERISA retaliation, but was apparently irrelevant to his FMLA retaliation claim. 

[The plaintiff] had worked at [the defendant company] for nearly twenty years, had won at least one perfect attendance award, and had worked overtime when asked.  He seems to have been a satisfactory employee.  But as the three days after his release to light duty rolled by, [the defendant company] reached out only to [his] doctor and [its]third-party administrator for workers’ compensation claims—just to double-check that [he] had really been released.  And even though [its] employee handbook indicates that [he] had to “complete a return to work fitness exam and drug screen prior to returning to work” that “[would] be scheduled by the Human Resource department,”  . . . the company did not schedule [his] drug screen before it fired him.   . . .   Although [the defendant employer] was not required to reach out to [him, for reasons set out in the FMLA-interference discussion above, the fact that it did not do so could still raise a juror’s suspicions about [its] motives.  And while [the employer] claims that this was all just standard practice—pointing to a list of fifty-five employees that the company terminated under its no-call, no-show policy in the past twenty or so years—[its] list only includes names and dates.  It does not indicate whether these fifty-five terminations are otherwise similar to [the plaintiff’s] in the relevant respects.  And [the plaintiff], for his part, has pointed to evidence suggesting that his superiors selectively enforced the absenteeism policy by calling some employees to “ask what’s up” when they failed to show up for work, but not others.  

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.

Ohio Appeals Court Rejects Sexual Harassment and Retaliation Claims Based on Speculation and Gender-Neutral Policy

Last week, the Ohio Court of Appeals in Summit County affirmed an employer’s summary judgment on a former employee’s claims for sexual harassment and retaliation.   Messer v. Summa Health Sys., 2018-Ohio-372.  In particular, the plaintiff claimed that she had been subjected to a hostile work environment when the employer expected her (and all other radiology employees) to change in a unisex locker room (or the locker room bathroom) and that she was terminated after only one month of employment for objecting.  The court found that she could not identify how she was treated differently or harassed on account of her sex when the policy was gender neutral and the locker room and bathroom could be locked.  Further, it refused to impute knowledge of her discussion about the locker room issue with one supervisor to the manager who decided to terminate her for poor performance, finding the plaintiff’s retaliation argument to be nothing more than speculation.

According to the Court’s opinion, both the locker room and bathroom could be locked. The plaintiff did not comply with the policy and either wore her scrubs home or changed in a public restroom.   The plaintiff claimed to have suffered two incidents in the locker room: One when she inadvertently walked in on a male who was changing and once when someone almost walked in on her (although she never knew the gender of that person).   Although she claimed to have reported these incidents to the same supervisor and explained why she was uncomfortable, she never submitted a written complaint about them.  After being counselled about her job performance and gaps of knowledge, she was then counseled by her supervisor about not complying with the policy requiring her to change in the locker room.

On the day before her termination, she requested to leave early and was asked whether she had completed her completed online courses.  She responded that she only had two courses left to complete.  In fact, she still had five left to complete because she had not completed the quizzes for three of the courses (even though she claimed that she had listened to the lectures for those three modules).  She completed the quizzes the next morning.  That same day, a patient suffered a hematoma, which her manager indicated was the plaintiff’s fault while the plaintiff indicated it was because she had not been provided with the proper equipment.  Finally, there was a discrepancy with her resume because the plaintiff omitted a relevant medical employer, while including non-medical positions.  While she mentioned in her interview that she had worked a temporary job, she did not disclose the employer’s name.  When confronted, she indicated that she did not think that the position had been relevant (even though she had listed prior accounting jobs).  At the end of her shift, the manager terminated her employment. 

To prevail on a sexual harassment or discrimination claim, “[a] female plaintiff must show that she was treated differently or with greater hostility because she is  a woman.”  While the plaintiff argued that the mandatory use of a unisex locker room constituted a hostile work environment to women because women have a greater expectation of privacy, the court disagreed.   For one thing, the unisex locker room and its bathroom could be locked when privacy was desired.   The plaintiff also could not cite any precedent where gender-neutral rules were found to be discriminatory.  Accordingly, the plaintiff could not show that she was treated differently on account of her gender.

As for her retaliation claim, ““[t]he decision[]maker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.”    . . . An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made.”   While a plaintiff can prove the requisite knowledge with circumstantial evidence, such “evidence can support a reasonable inference if it is comprised of  ‘specific facts’ and not merely ‘conspiratorial theories,’ ‘flights of fancy, speculations, hunches, intuitions, or rumors.’”  In this case, while the plaintiff contended that she had told her supervisor about her locker room objections at least twice, she never asserted that she had ever shared those concerns with the manager who made the decision to terminate her.  Further, she proffered no evidence that this manager had ever learned of her concerns elsewhere, although she had been told about the plaintiff’s violation of the policy.   Finally, even though the plaintiff told the manager in her termination meeting that she was not comfortable changing in the unisex locker room, she never explained why so that her concern might have been arguably protected conduct.

The court refused to consider the cat’s paw theory which was asserted for the first time on appeal.

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.

EEOC Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

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 Rejects Retaliation Claim When Plaintiffs Were About to Be Terminated Before Raising Harassment Claim

Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment in a racial harassment and retaliation case on the grounds, among other things, that it had already pretty much been decided to terminate the plaintiffs before they engaged in any protected conduct.  Reynolds v. Federal Express Corp., No.  13-5010 (6^th Cir. 10-8-13).   In that case, one plaintiff had suffered some racial and union-related comments from a co-worker, but failed to bring the matter to the attention of management.  As the plaintiffs were suspended pending an investigation into allegations of rampant unauthorized absences (which they contend was raised by their racist co-workers) and a decision whether to terminate them, they first raised the issue of a racially hostile work environment and then claimed that their termination 20 days later was in retaliation for their complaint.  The Court rejected the claim that management was merely a “cat’s paw” for their racist co-workers because there was no evidence that the author of the anonymous letter harbored any racial animus. The Court also rejected their claim of a hostile work environment on the grounds that the incidents were too few, remote and minor to constitute unlawful harassment.

According to the Court’s opinion, the plaintiffs argued that the temporal proximity of their complaint of a hostile work environment and their termination 20 days later was sufficient to prove causation for their retaliation claim.  The Court disagreed because management was already contemplating terminating them and most of the investigation had been conducted before they raised their complaint during the meeting about their suspension.

 

That [the manager] fired the plaintiffs 20 days later “is immaterial in light of the fact that [FedEx] concededly was contemplating [the adverse employment action] before it learned of [the protected activity].” . . . Employers “proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Moreover, even if the plaintiffs were able to establish causation and a prima facie case of retaliation, the Court found that they could not prove the employer’s explanation for their termination was pretextual:

A plaintiff must show that the employer did not honestly believe the reasons cited for the adverse employment action. A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013); Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). A plaintiff may show that an employer does not honestly believe the reasons for its decision because it acted without information or consideration.

While the parties disputed the accuracy of the employer’s investigation results and its decision to terminate the plaintiffs, “there was nothing to suggest an “error too obvious to be unintentional,” or a sham investigation. The decision to terminate the plaintiffs was based on a reasonable investigation which considered documents, interviews with the plaintiffs and an unbiased co-worker, etc.

Finally, the Court rejected the plaintiff’s hostile work environment claim.  “The evidence [of harassment] needs to be specific.  A plaintiff may not rely on only, for example, “one specific incident of the use of a . . . race-based epithet” over entire span of her five-year employment and an otherwise “total lack of specificity as to verbal abuse.”  In this case, the plaintiff “testified about harassment on only two specific occasions. And when asked at his deposition how many times he heard [the co-worker’s] comments, [he] responded that “I can’t give you a count” never explaining the frequency of the comments, or how the comments affected his work.”  Title VII only prohibits harassment that is so severe that it alters the conditions of employment.  “A worker does not establish a hostile-work-environment claim by testifying that “there were times” he faced verbal abuse but specifically identifying only two occasions.”

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.

En Banc Sixth Circuit Rejects Prior Causation Standard for ADA and Now Requires Plaintiffs to Prove Employer Acted Because of Disability.

On Friday, the Sixth Circuit issued a rare en banc decision reversing over a decade of precedent requiring ADA plaintiffs to prove that disability discrimination was the sole or only reason for the employer’s adverse action. Lewis v. Humboldt Acquisition Corp. No. 09-6381 (6th Cir. 5/25/12). Instead, the Sixth Circuit now requires ADA plaintiffs to prove that the employer acted because of the plaintiff’s disability. In other words, the employer would not have discriminated or taken adverse action but for the plaintiff’s disability and the plaintiff’s disability no longer need be the employer’s sole or only consideration in order for an ADA plaintiff to prevail. The Court’s majority reached this decision because the statutory language in the ADA, like the ADEA, prohibits employers from discriminating “because of” an employee’s disability. The prior causation standard had been borrowed from the Rehabilitation Act, which the Court found to be inapposite in light of the differences in the statutory texts. “Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters.” The Court also determined that because the ADA statutory language mirrored that of the ADEA, it should follow the causation standard for that statute as recently explained by the Supreme Court in Gross v. FBL Financial Services instead of the more lenient “motivating factor” standard of Title VII as argued by the plaintiff. Although both Title VII and the ADA prohibit employment discrimination, the motivating factor language is never used in the ADA and the Court rejected the plaintiff’s attempts to incorporate it by cross-cross references to Title VII.

At issue was the termination of a registered nurse with a disability who the employer claimed had been fired because “an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.” At trial, the plaintiff had requested a jury instruction with the motivating factor theory of causation, but the trial court utilized the “sole” reason jury instruction. The Sixth Circuit rejected both approaches in favor of the “but for” theory of causation based on a comparison of statutory texts and the Supreme Court’s prior Gross opinion. Notably, as of last week, the Sixth Circuit was the only Court of Appeals to still utilize the “sole factor” causation theory in ADA cases and the only other Circuit to have addressed this issue since Gross also concluded that the ADA should be constructed the same as the ADEA. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961–62 (7th Cir. 2010).

Interestingly, all of the judges agreed that the sole factor test should be discarded, but there were three separate concurring opinions because they did not all agree on the “because of” standard.

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: No Hostile Work Environment When Plaintiff Cannot Recall Specific Words or Frequency

This morning, in a remarkably brief and concise eight-page opinion, the federal Sixth Circuit Court of Appeals affirmed summary judgment against a former massage therapist who had alleged that she had been fired for complaining about a hostile work environment. Keane v. IT-Works, Inc., No. 10-2512 (6th Cir. 3/7/12). The Court found that she could not satisfy her burden of proving a hostile work environment when she could not remember the specific words which the allegedly harassing co-worker had said or how often he was allegedly offensive. Without that evidence, she could not prove that his conduct was severe or pervasive. In addition, she could not show that the employer failed to take reasonable steps to stop the harassment when it had acted on her complaints to stop her co-worker’s offensive comments and there was no evidence that anyone complained about him after that point in time. Finally, she could not prove retaliation when she wasn’t fired until more than two months after she had complained about his offensive comments, and she had received both a favorable performance evaluation and a 7% raise between the time of her complaint and the time she was fired (for gossiping about the employer’s financial condition with her co-workers). “Intervening favorable actions of an employer may not be a complete bar to recovery, cf. Clay v. United Parcel Service, Inc., 501 F.3d 695, 711 (6th Cir. 2007), but they assuredly weigh against a claim of retaliation.”

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 the Calendar Is an Employer's Best Friend

Timing Is Not Always Enough to Show Retaliation And Sometimes Can Help Defend a Claim of Discrimination.

The following factual pattern regularly takes place in almost every workplace in America. After an employee is placed on a performance improvement plan and given closer supervision, s/he complains of discrimination, engages in insubordination by refusing to follow the supervisor’s instructions, and then is ultimately fired. Litigation follows. However, in a recent case by the Summit County Court of Appeals, the court refused to infer unlawful retaliation merely from the timing of the termination when the plaintiff was already in the disciplinary process and practically dared her employer to fire her and when the plaintiff also produced no evidence that the decisionmakers were aware of her prior discrimination complaint. Price v. Matco Tools, 2007-Ohio-5116 (9/28/07).

Even though the plaintiff was fired shortly after she had complained of discrimination (which would normally be enough to show causation as required for a prima facie case), the court found that temporal proximity alone was insufficient to meet the plaintiff's burden of proof. This was particularly true when the plaintiff could not show that any of the decisionmakers had knowledge of her discrimination allegations. In addition, “to conclude that this proximity alone is sufficient to establish a prima facie case of retaliation would disregard the pattern of discipline both before and after Appellant's complaint. Many employees complain of unfair treatment in the midst of disciplinary action. The conclusion that this, standing alone, raises the specter of retaliation would bind employers in a legal straightjacket and require this court to assume the position of a "`super-personnel department that re-examines an entity's business decisions.'"

Finally, with respect to the plaintiff’s age discrimination claim, the court ruled that the plaintiff could not show that she had been replaced by a substantially younger employee – which was necessary to prove her prima facie case -- when the employer did not fill plaintiff’s position until fourteen months after she had been fired. "A person is `replaced' only when another employee is hired or reassigned to perform that person's duties. 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."

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.