FLSA Cases Keeping Sixth Circuit Court Occupied

In the past month, the Sixth Circuit has issued a number of FLSA decisions affecting employers and employees.  Last week, the Court rejected objections to a class action settlement on behalf of exotic dancers.  Jane Does 1-2 v. Déjà Vu Consulting, Inc., No. 17-1801 (6^th Cir. 6-3-19).  In another, the Court rejected claims for overtime compensation by certain Fire Battalion Chiefs on the grounds that they were exempt employees and were not entitled to extra standby pay.  Holt v. City of Battle Creek, No. 18-1981 (6^th Cir. 6-3-19).   In another, the Court affirmed the trial court judgment imposing liability for unpaid overtime compensation for employees of a small lumber company, but remanded for a redetermination of the amount of damages due which did not include time spent on bona fide meal breaks or commuting to and from work.  Secretary of Labor v. Timberline South, LLC, No. 18-1763 (6^th Cir. 5-29-19).  In that case, the Court also refined the test for enterprise coverage for employers which only purchase and use equipment locally, but that which is manufactured out of state.  It also rejected the employer’s good faith defense for seeking incomplete advice from a non-expert.  Finally, the Court affirmed the dismissal of a FLSA retaliation claim where the plaintiff failed to show that she had ever communicated any complaints about unpaid overtime.   Rogers v. The Webstraurant Store, Inc., No. 18-6229 (6^th Cir. 5-23-19). Her “vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.”


Déjà Vu Consulting involved the settlement of class claims (brought under both Civil Rule 23 and FLSA § 216(b)) that exotic dancers had been misclassified as independent contractors to avoid paying minimum wages  and been subject to illegal wage deductions.  It was similar to prior litigation which involved many of the same dancers and defendants.  Many, if not all, of the 28,177 class members had signed agreements with the defendants containing arbitration clauses with prevailing parties being entitled to recover attorney’s fees, etc.   Accordingly, the Court found it was not an abuse of discretion for the trial court to affirm the settlement reached in light of the risk to the plaintiffs of being compelled to individually arbitrate their claims and possibly be financially liable to the defendants.   The Court also found that formal discovery was not necessary in light of the extensive discovery conducted in the prior case involving many of the same type of claims and parties.  The settlement provided for both injunctive and financial relief.   The financial settlement of $6.5M was divided among $1M in cash payments, $4.5 attributed to a secondary settlement pool that could be claimed while working at the defendant clubs in the future and $900K to class counsel.  The dissent would have remanded for a recalculation of the counsel fees because she characterized a requirement of the settlement – that the plaintiff dancers work at a defendant club to receive a financial benefit from the secondary pool of monetary relief – as a “coupon” under Class Action Fairness Act which can only be considered for purposes of evaluating attorney’s fees based on the coupons redeemed instead of merely the pool of money set aside.


Holt involved claims for unpaid overtime and standby time by two Fire Battalion Chiefs, the second in command in the Fire Department hierarchy. Their primary job duties involved management and administration.   They received an extra 1.5 hours of pay for each day when they were on call during the night shift (in addition to overtime if they were actually called back to work) and were required to monitor the radio and pager while on call.   They could not leave town or drink alcohol when on call because they might be called to a fire scene.


In evaluating their exempt status, the Court rejected the plaintiff’s argument that a narrow reading of exemptions should be given in light of the Supreme Court’s prior Encino Motorcar decision. The trial court found that Battalion Chief’s primary duty was managerial in nature because they

were required to directly supervise lower-ranking officers and personnel, evaluate personnel, administer and enforce department policy, and coordinate the day-to-day operations of the department . . . .  the battalion chiefs were expected to “take charge and operate as the incident commanders at the scene of a fire.”  

Further, one “was ‘in charge’ of all suppression personnel and [the other] was ‘in charge’ or ‘oversaw’ the training division.  Approximately 27 lieutenants and captains directly reported to [one] who monitored their adherence to standards.  Moreover, Chief [Hausman] testified that if any fire fighter ‘had a problem[,]’ he or she would take it to plaintiff Holt.”  In addition,  although the trial “court recognized that Plaintiffs did not have independent authority to hire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’ “suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees were given ‘particular weight.’”  The FLSA regulations do “not require courts to ask whether an employee’s recommendations as to personnel decisions were accepted every single time—instead, it presents the question of whether those recommendations were given “particular weight,” which is precisely what the district court found.”


In light of their management exempt status, the Court decline to evaluate whether they were also exempt administrative employees and whether their standby restrictions were so onerous as to require extra compensation.


Timberline concerned a small lumber company that harvested and transported lumber only inside the state of Michigan and bought and sold only from Michigan companies.   The operations manager consulted with an accountant and believed that some the employees were exempt agricultural workers and the transportation were exempt under the Motor Carrier Exemption Act, but did not consult with an attorney or explain why the office employees would be considered exempt.   The employer kept track of working hours for the hourly employees, but not the salaried employees.  Following a DOL investigation, the DOL filed a lawsuit and was awarded summary judgment in the amount of $439,437.42 in back pay and liquidated damages for unpaid overtime owed to 50 employees.


The first issue to be considered was whether the employer was a covered enterprise under the FLSA.  The employer argued that its equipment, though manufactured outside of the state,  was purchased locally and, as the end user of that equipment, could not be considered for purposes of §203(s)(1)(A)(1) of the FLSA that covers employers which have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.”  The Court ultimately adopted the test utilized by the Eleventh Circuit to evaluate whether equipment used by an employer to create its product constituted goods or materials under the FLSA enterprise test.   The Eleventh Circuit considered an amendment to the FLSA to include “materials” as well as “goods” and the exception for “goods” when the employer was the ultimate enduser of the goods.  It cautioned that

the same items could be goods in one case, materials in another, and neither goods nor materials in still another case, depending on the use of the item in the context of each case.  “Where a catering business uses the china plates at a client’s banquet, the plates count as part of the ‘materials’ necessary for serving a catered meal.  But, where a department store sells the same china plates as stand-alone items, the plates count as ‘goods’ for that retailer.”  Id.  Those same plates hung as decorations on the lobby wall of an accounting firm, however, constitute neither goods nor materials “because the plates have no significant connection to the business’s accounting work.”

                 . . .

Applying the definition of “materials” from Polycarpe, the logging and harvesting equipment used by Timberline’s employees plainly constitute “materials” because the equipment is necessary to cut down trees and transport the timber, which in turn have a significant connection to Timberline’s commercial activities of harvesting and selling timber.

The Court rejected the employer’s argument that this would effectively impose the FLSA on every business which purchases computers that are all manufactured overseas and pens that are manufactured out of state because the DOL has never sought such broad enforcement.  The Court also noted that Polycarpe specifically mentioned that incidental and internal consumption of an item would not satisfy the requirement that the materials be used in the employer’s commercial activity.  “[C]overage here is not premised on employees’ incidental use of office items; rather, it is premised on employees’ regular and recurrent use of logging and harvesting equipment that is used to carry out the company’s commercial activity of harvesting timber.”


The Court next rejected the employer’s Motor Carrier exemption because its drivers never left the State of Michigan even though they held CDLs and had DOT registration numbers:

The dispositive inquiry here is not whether Timberline’s employees held commercial driver’s licenses or whether its trucks had DOT registration numbers; rather, the dispositive inquiry is whether Timberline’s drivers transport goods in interstate commerce, thus rendering Timberline a motor private carrier.  49 U.S.C. § 13102(15); Vaughn, 291 F.3d at 904.  Courts have consistently interpreted this to mean that drivers must travel or transport the goods across state lines, or transport the goods in a “‘practical continuity of movement’ across State lines from the point of origin to the point of departure.”

Further, the employer failed to show that its timber was used by its buyers in interstate commerce.   On the contrary, it disclaimed knowledge of what use was made of the timber it sold.


Third, as for calculating back pay, the DOL had argued that employees’ regular rate include the compensation that they had received for their meal and commuting time – which otherwise is not considered working hours for purposes of the FLSA – because the employer traditionally and customarily paid employees for such time and the Portal-to-Portal Act referred to including such time of customarily compensated.  Neither the DOL nor the Court had made any effort to determine how many of the employees’ paid hours constituted such commuting or meal break time.  The Court rejected that argument:

Although the plain language of the Portal-to-Portal Act suggests that home-to-work commutes are deemed compensable if the employer has a custom or practice of compensating for such work, 29 C.F.R. § 785.34 explains that “ordinary travel from home to work (see § 785.35) need not be counted as hours worked even if the employer agrees to pay for it.”  And, 29 C.F.R. § 785.35 says plainly that “[n]ormal travel from home to work is not worktime.”  The reason is that the FLSA only requires overtime compensation for “actual work or employment,” Tenn. Coal, Iron & R. Co., 321 U.S. at 597, “[a]nd even where there is a contract, custom, or practice to pay for time spent in such a ‘preliminary’ or ‘postliminary’ activity, section 4(d) of the Portal Act does not make such time hours worked under the Fair Labor Standards Act, if it would not be so counted under the latter Act alone,” . . . “The general rule . . . is and always has been that the FLSA does not treat ordinary home-to-job-site travel as compensable.”  Kuebel v. Black & Decker Inc., 643 F.3d 352, 360 (2d Cir. 2011).  The same is true of “bona fide meal periods.”  29 C.F.R. § 785.19; see also Ruffin v. MotorCity Casino, 775 F.3d 807, 811-15 (6th Cir. 2015) (examining whether meal periods were compensable under the FLSA as “work”).

The Court remanded for the DOL and trial court to calculate how many hours the employees had been paid for commuting and meal breaks and to deduct that from the damages calculation.  Nonetheless, “Defendants may not use the amounts paid for those otherwise non-compensable work periods as an offset against the amounts owed.”


Fourth, the Court also rejected the employer’s argument that liquidated damages should not be awarded or should at least be reduced because it acted in good faith in consulting with its accountant about the agricultural exemption and in paying its employees well above the industry average.  An employer is required to show that it took affirmative steps to comply with the FLSA, but nonetheless violated it.   The employer did not provide sufficient information to the accountant about all of the employees and the accountant did not profess to be a FLSA expert.  Further, the employer knew that not all of the employees would qualify under the agricultural exemption and did not take reasonable steps to investigate the status of the other workers.  It did not even convincingly argue the agricultural exemption before the trial court and did not appeal that issue to the Sixth Circuit.  As for the generous compensation, that matter is irrelevant for purposes of FLSA compliance in the absence of good faith and reasonable grounds for non-compliance.


The plaintiff in Rogers had failed to demonstrate appropriate customer service skills and had been placed on a performance improvement plan.  She alleged that she had been terminating for complaining about unpaid overtime, but she failed to show that she had made any such complaints that could be objectively perceived as a complaint.  Her first “complaint” was really an apology for being late and asking whether she could attribute the 15 minutes that she worked past her shift the prior evening towards the 25 minutes that she had been late.  Her second “complaint” related to the tone of her voice when asking if she was supposed to work on her PIP outside of regular work hours.    Her third “complaint” related to notes that she sent her manager about how she was engaging in “self-reflection” outside of work hours and that she had been told to do this on “her own time.”  Indeed, he manager contacted her about whether she was working unauthorized overtime in order to give her back time that she had worked.  The plaintiff then admitted that she had not been recording all of her time working, but did not think that would be a concern.


Even if the allegations were true, the Court found that they could not constitute “complaint” under the FLSA that could support a retaliation claim. “The Supreme Court has said that the act of filing an FLSA complaint must contain ‘some degree of formality,’ such that a reasonable employer would understand it ‘as an assertion of rights protected by the statute and a call for their protection.’” However, “none of them even indicated that Rogers was complaining  or used any synonym or similar expression.”  Moreover, it is not clear that the employer could have realized that she was making a complaint.

While an employee need not explicitly mention the FLSA, she must do something to give fair notice that she is actually complaining about overtime or a lack of fair compensation, i.e. the core things the FLSA protects.  Kasten, 563 U.S. at 14.  Rogers’s vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.

                 . . . .

Not every grumble or “expression[] of concern or discomfort or frustration” by an employee constitutes an FLSA complaint.  Robinson v. Wal-Mart  Stores, Inc., 341 F. Supp. 2d 759, 763 (W.D. Mich. 2004).  Instead, an employee’s expressions  must be “sufficiently clear and detailed” to count as a complaint.  Kasten, 563 U.S. at 14.  Rogers’s allegations provide no information on how a mere tone of voice can be that clear.  Moreover, no required inference can save her lawsuit from that lack of clarity.

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.

Employer’s Evaluation of Inconsistent Witness Accounts Does Not Show Dishonest Belief

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age and reverse race discrimination claim based on the employer’s honest belief – despite contradictory information produced during its investigation – that the plaintiff had violated company policy.  Hardesty v. Kroger Co., No. 18-3378 (6^th Cir. 1-23-19).   Choosing between inconsistent accounts given during an investigation does not create an issue of fact about the employer’s bad faith.  The investigation was sufficiently diligent to be worthy of credence and the Court refused to second-guess the harshness of the punishment.

According to the Court’s opinion, the plaintiff had been hired six months earlier to conduct telephone interviews with job applicants for a new store.  He was observed by a co-worker hanging up on calls directed to his desk so that he could continue a discussion with another co-worker and this was reported to management as to time, place and witnesses.  There seemed to be a discrepancy whether she saw this happen two or three times.  The company’s “customer first” policy requires applicants to be given excellent customer service.  An investigation was conducted which showed that his average call time was under 2 minutes per call, compared to an average of 5 minutes per call.  The call logs did not track individual calls.  When confronted, the plaintiff explained that he just spoke quicker than his co-workers.  The other co-worker denied noticing the plaintiff hanging up on callers, but this was not mentioned in the investigation report.  Although the plaintiff was given the option of resigning, he chose termination.

The Court rejected the plaintiff’s argument that the failure to mention in the report that another witnesses could not corroborate the allegation showed consciousness of guilt and doubt in the truth of the allegations against him.  It found this argument to require a strained and unreasonable inference to be drawn:

Even assuming that [his co-worker’s] inability to corroborate the accusation can be fairly read to refute it, investigations often produce conflicting evidence, requiring an employer to evaluate credibility and weigh various pieces of information.  Just because an employer must choose between inconsistent accounts “does not mean that there inevitably is a genuine issue of fact concerning the employer’s good faith.

The Court also rejected the plaintiff’s attack on the Company’s reliance on the significant discrepancy in the average call times: “exceptionally short call times could reflect a pattern of dishonest behavior and reveal a practice of failing to properly screen applicants or disconnecting calls.”

While the employer may have left some stones unturned (like checking surveillance footage to see if the reporting employee actually walked by the plaintiff’s cubicle as described),

when we evaluate the honesty of an employer’s belief, we do not require evidence of an optimal decisional process or a scorched-earth investigation.  Smith, 155 F.3d at 807.  “[T]he key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”   

In any event, the evidence showed that the employer conducted a thorough and sufficiently diligent investigation which was worthy of credence:

She spoke to all potential witnesses, scrutinized Hardesty’s call logs for any suspicious patterns, sought advice from her colleagues in human resources and operations, and met with [the plaintiff] to clarify why his logs reflected such short phone calls as compared to his team’s average.  After reviewing all the data she believed available, she concluded that [the plaintiff] likely released at least one incoming call and determined that this warranted immediate termination.  “That [the plaintiff] or the court might have come to a different conclusion if they had conducted the investigation is immaterial.”  Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 287 (6th Cir. 2012).

The Court also rejected the plaintiff’s argument that his alleged misconduct did not warrant termination under the employer’s prior administration of its policies.  However, he apparently failed to identify a comparator who was sufficiently similarly-situated who was treated differently (i.e., better) because the alleged comparator’s actions may not have violated the policy.  Unfortunately, the Court did not elaborate.

Not a single Kroger employee involved in [this] investigation ever questioned whether hanging up on a customer merited termination.  And “disputes about the interpretation of company policy do not typically create genuine issues of material fact regarding whether a company’s stated reason for an adverse employment action is only a pretext designed to mask unlawful discrimination.”

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.

When Willful Misconduct Is not Necessarily All Other Intentional Misbehavior

Earlier this month the Montgomery County Court of Appeals affirmed a $655,733.44 jury verdict (in addition to$262, 227 in costs,  interest and attorney fees)  in favor of an executive who it found was terminated in violation of his employment agreement and in bad faith.   Becker v. Direct Energy, LP, 2018-Ohio-4134.   The Court concluded that the trial court’s jury instruction explaining when the defendant company could terminate “for cause” the executive was correct and that there was sufficient evidence to show that the company acted in bad faith.  Thus, when the employment agreement provided that the executive could only be terminated “for cause” if the company “in good faith” believed that he had “engaged in acts of fraud, material dishonesty, or other acts of willful misconduct in the course of his duties hereunder,” the “other acts of willful misconduct” referred to conduct which was similar to “fraud” and “material dishonesty.”    Therefore, the jury could conclude that the plaintiff’s behavior did not constitute willful misconduct that the employer acted in bad faith in terminating him for yelling at and poking a subordinate employee who twice in three weeks had violated significant safety rules when the plaintiff had a long history of excellent performance and no prior disciplinary infractions, when other employees had received far less severe sanctions and when circumstantial evidence showed that his potential severance pay could have been a motivating factor for his termination.

According to the Court’s opinion, the plaintiff’s employment agreement provided that the executive could be terminated for cause or without cause.  However, if he was terminated without cause, he would be entitled to severance pay (including 24 months of salary and 18 months of COBRA payments), or he could resign with three months’ notice (entitling him up to 3 months of pay if the company opted for an earlier separation).  The executive had worked for many years for the company and its predecessors and his performance reviews reflected that his division was one of the most profitable.  The company had also been more focused on employee safety.  

The plaintiff was responsible for conducting random surprise inspections of employees and found an employee, who had been suspended during the prior year for safety issues, engaged in a number of unsafe practices and serious quality issues.  After discussing the issues with the employee, the plaintiff spoke with the employee’s supervisor about taking disciplinary action, but the supervisor never spoke to or terminated the employee.  Two weeks later, the plaintiff spoke with the supervisor about whether that employee was even teachable because the supervisor had not properly handled the situation.   He then decided to inspect that employee’s work again on his way to another meeting and found some of the same safety violations he had previously noted just two weeks earlier.   Stressed because he was running late, the plaintiff lost his temper with the employee.  He poked the employee (who was much larger than him) in the chest and yelled at him in a very unprofessional manner.  Although he apologized, he also believed that the employee should be fired because of his unsafe practices.

The employee called his wife, who worked in HR for another company and told her that he thought that he was going to lose his job.  The next day, he filed several internal complaints about the executive’s unprofessional treatment of him the prior day.  The executive admitted that much of the complaint was true.  While he denied harassing the employee, he was embarrassed by his behavior.  Up to this point, there was no allegation about violence, pushing or physical harm.  HR conducted an investigation and the current and former manager both recommended that the executive receive no more than a written reprimand or warning based on his prior record and level of the offense.   After a conference call with senior management, HR forwarded a copy of the executive’s employment agreement to legal counsel.  During the next conference call, the decision was made to terminate the executive for willful misconduct under his employment agreement.

The executive was informed of his termination and asked to remain until the end of the month. The script prepared for his termination indicated that he was not to be permitted to resign (even though the company’s practice had always been to permit employees to resign at any time for any reason) and that the remaining employees would be told that he was passing the torch, instead of being terminated.  The plaintiff filed suit for breach of contract, breach of the duty of good faith and fair dealing, and defamation.  

On appeal, the Court rejected the employer’s arguments that the court should have ruled in its favor as a matter of law on the grounds that the plaintiff materially breached the employment agreement.  The court found this to involve an issue of fact, which was resolved against the employer at trial.

The Court also agreed that “willful misconduct” under the employment agreement was ambiguous.  Under the doctrine of ejusdem generis, because “the agreement used the term “or other acts of willful misconduct,” it  can be read, under an established principle of construction, to indicate that willful misconduct was intended to relate back and be confined to the same general nature as the previous, more specific terms, which were fraud and material dishonesty.”  Indeed, the former executive who had hired the plaintiff testified (without objection) that this is what he meant when that term was inserted into the employment agreement.  In addition, “[t]here is no dispute about the  fact that [the defendant’s] legal counsel prepared the agreement, and Ohio law is settled that  ambiguities in contracts are construed strictly against the drafter.”  The employer could have avoided the ambiguity by defining the term “other acts of willful misconduct”  or deleted “other,” which had referred back to the earlier specific acts.

The Court also rejected the employer’s argument that there was no evidence (i.e., admissions) that the plaintiff had been fired in order to avoid paying his severance pay because circumstantial evidence may support a verdict as well as direct evidence.  The jury had ample circumstantial evidence that the employer had acted in bad faith.  The HR employees had not initially recommended more than a written warning for the plaintiff’s misconduct.  After this, she then learned that the plaintiff’s most recent performance evaluation had been “exceeds expectations,”  and she provided his employment agreement to counsel.  Consideration of the employment agreement could support a plausible inference that the severance pay factored into the decision, particularly because none of the witnesses recalled any discussion as to whether violation of the harassment/workplace violence policies would similarly constitute willful misconduct under the agreement or whether there were any grounds to terminate him for cause under the agreement.  The employer also prepared a script for the termination meeting which did not permit the plaintiff to voluntarily retire and which gave a false reason for his separation.  The actual decisionmaker was not called to testify as to the basis for their decisions.  There was also testimony that the employer did not have a zero tolerance workplace violence policy and comparisons to other similar situations show that the plaintiff was treated much more harshly for a first time disciplinary infraction.

As for the jury instructions, the Court found that the trial court’s instruction were proper:  “the terms fraud or material dishonesty may be instructive regarding the seriousness  required for behavior * * * to constitute an other act of willful misconduct.”  Moreover,

As indicated above, the agreement provides that the termination must be made in, quote, “good faith.”  Thus, a second issue is whether [the defendant’s] termination of [the plaintiff] on the basis that his conduct was an act of willful misconduct, breached [its] obligation to exercise good faith and fair dealing in interpreting the agreement to justify terminating [his] employment.

The jury was also instructed that “it could not find for [the plaintiff] regarding a breach of good faith and fair dealing unless it found that [the employer’s] action in terminating [him] from his position for cause

“was not an act of honesty in interpreting and applying the language in the Employment Agreement, but was instead an act of dishonesty in applying the definition of cause for an ulterior purpose or motive, and not a truthful interpretation or application of the definition of “cause” as contemplated by the parties.

As for the award of attorney’s fees, they generally are not awarded in the absence of punitive damages or statute.  However, the Court recognized an exception for when “a prevailing party may be awarded attorney fees after demonstrating the unsuccessful litigant’s bad faith.”  In this case, “[b]ad faith can involve conduct during litigation, but can also involve conduct giving rise to a party’s claim.”  “The jury did not just find that [the employer] had breached the duty of good faith and fair dealing; it specifically found that [it] had acted to take advantage of [the plaintiff].”  The jury unanimously agreed that the employer had acted in bad faith when responding to one of the jury interrogatories:

Do you find that Plaintiff proved by the preponderance of the evidence that Defendant’s decision to terminate him “for cause” was made in bad faith to take advantage of Plaintiff and improperly deny him the benefits he would have received if he had been terminated “without cause” under the contract? 

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 Affirms $1.5M Verdict for Sexual Harassment of and Retaliation Against Temporary Employees

Last week, a unanimous Sixth Circuit affirmed a $1.5M jury verdict against a logistics employer which fired three women and one male employee who protested sexual harassment by a supervisor who also played significant roles in having each of them fired.  EEOC v. New Breed Logistics, No. 13-6250 (6^th Cir. 4-22-15).  The Court rejected the employer’s argument that opposing and protesting a supervisor’s sexual harassment to his face is not protected “opposition” under Title VII and specifically noted that the statute does not require the employee to protest to anyone in particular.  The Court also found the employer could be held liable for punitive damages based solely on the harassing supervisor’s knowledge and conduct and because the employer did not distribute the anti-harassment policy to temporary employees, did not conduct a good faith workplace investigation of the anonymous harassment complaint about the supervisor, and terminated three of the four plaintiffs during the workplace investigation.

According to the Court’s opinion, the defendant employer operated with mostly temporary employees assigned from staffing companies.  It only provided employee handbooks to its regular employees.  One of its supervisors had the authority to terminate temporary employees and was regularly harassing female subordinates with lewd comments and physical contact.   Not only did the employees object to his conduct, a male co-worker also requested that he stop it.  Only one of the employees ever complained to management and only did so anonymously.  The subsequent investigation was initially limited to interviewing the harassing supervisor.  All of the plaintiffs were ultimately fired shortly after the anonymous complaint was made.  Two of them were fired for purported attendance issues and two for making a mistake.   The harassing manager was found to have been the decisionmaker or to have played a role in all of their terminations.  The employees denied having attendance issues and evidence was presented that other employees had made mistakes without being fired.

The employer had argued that the plaintiffs could not prove retaliation because they could not show that they engaged in any protected conduct before their termination.  Only one of them had made an anonymous complaint to management prior to her termination.  The employer contended that the employees’ protest to the harassing supervisor himself and resistance to his harassment was not protected conduct.  Surprisingly, two other court decisions agreed with this argument, with one of them noting that resistance to harassment could not be protected conduct or every harassment claim would automatically constitute a retaliation claim as well.  The Sixth Circuit rejected this argument because Title VII’s opposition clause in the anti-retaliation provision prohibits retaliation against any employee because the employee opposed an unlawful employment practice.   The Supreme Court has previously noted that “oppose” means to resist.  Therefore, the Sixth Circuit has found protected opposition with informal complaints of discrimination:

[A] demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful  harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed.

Because the supervisor knew of their protests of his behavior and played a role in their terminations, the Court had no difficulty finding sufficient evidence of but-for causation in their retaliation claims.   Where he merely played a role in two plaintiffs’ termination, the decisionmaker relied upon his evaluation of their work and gave inconsistent explanations about why she held them to a higher standard than other employees.   There was also a strong temporal proximity between the time of the protected conduct and the retaliatory terminations.  In addition, the EEOC was able to provide evidence that the reasons given for the terminations were pretextual because the harassing supervisor had told one of the employees that he would disguise her tardiness (instead of discharging her), one of the employees had never been accused of attendance issues before he was fired shortly after being interviewed during the harassment investigation, and two of the employees could show that other employees had make similar mistakes and not been fired.

The Court also refused to consider the employer’s Ellerth affirmative defense because each of the plaintiffs suffered a tangible employment action when they were fired.

The Court found that the employer could be held liable for punitive damages.  The Court rejected the employer’s argument that it could not be liable since sexual harassment was outside the scope of the supervisor’s employment because the tangible employment action -- firing the employees -- was within the supervisor’s authority.  The Court also rejected the employer’s defense that management could not have acted with deliberate disregard of federal law since management did not previously know about the harassment because the supervisor clearly knew about the harassment. “The EEOC only had to show that the “individual[] perpetrating the discrimination [or, here, retaliation]” acted with malice or reckless disregard for federally protected rights.”   

Further, the Court rejected the employer’s good faith defense because it did not undertake efforts to prevent and remedy the harassment by, for instance, providing an employee handbook or harassment policy to the temporary employees.  It also had initially only interviewed the supervisor after the anonymous complaint was made and did not interview all of the potential witnesses identified. “In assessing whether an employer engaged in good-faith efforts to comply with Title VII, we focus “both on whether the defendant employer had a written sexual harassment policy and whether the employer effectively publicized and enforced its policy.’”  Finally, the jury was entitled to infer a lack of good faith from the fact that three of the plaintiffs were terminated during the employer’s investigation of the anonymous complaint.  

The jury instruction on punitive damages omitted language about the employer’s good faith defense.  The Court found that the employer had waived its objection to this omission by failing to argue about the missing language during the charge conference even though the employer had submitted a proposed jury instruction with the missing language.   The Court also rejected the employer’s argument that it constituted plain error for the jury instruction to omit the employer’s good faith defense because the employer did not make an argument about its good faith during its closing arguments to the jury. 

The Court also rejected challenges to the jury instruction use of “because of” instead of “but for” in the retaliation instruction.  

The EEOC press release about its victory mentions that the lawsuit was first filed in September 2010 and the jury reached its verdict in May 2013.

 

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 Limits Employer’s Challenge to Reliability of FMLA Medical Certification

Last week, the Sixth Circuit Court of Appeals affirmed a jury verdict and liquidated damages in favor of an employee who alleged that her employer improperly denied her FMLA leave and then fired her in retaliation for taking FMLA leave.  Hyldahl v. Michigan Bell, No. 09-2087 (6^th Cir. 10/31/12).  The Court rejected the employer’s argument that the employee’s supplemental medical certification was invalid or at least unreliable because it was unsupported by a contemporaneous medical or psychological examination and was based instead on the employee’s subjective description of how she was feeling.    

According to the Court's opinion, the employee had been under medical care by the particular healthcare providers for chronic depression and PTSD for seven years at the time they certified that she was unable to work on the day in question.  The court found these medical providers were familiar enough with her serious health condition and course of treatment to certify her inability to work without a contemporaneous medical examination.   

The Court also found that liquidated damages were appropriate even though the employer acted in good faith because it did not have a reasonable basis to believe the opinion of its retained physician -- who had never examined the employee  -- over the medical certifications of the employee’s treating physician.  “Liquidated damages are presumptively awarded against an employer who violates the FMLA, and it is the employer’s burden to demonstrate that its decision to deny leave was both made in good faith and based on reasonable grounds.”  The trial court also had discretion to award such damages.
 
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: “Reasonable Time for Negotiations” or “It’s Déjà Vu All Over Again.”

This week, the Sixth Circuit affirmed an August 2008 bargaining order by the NLRB involving the voluntary recognition of a union by a small plumbing company in May 2000, two decertification petitions submitted by the employees in March 2002 and May 2003 and two sets of negotiations, the last of which ended in May 2003 and none of which resulted in an initial bargaining agreement. Town & Country Plumbing & Heating, Inc. v. National Labor Relations Board, Nos. 08-2242/2384 (6th Cir. 11/9/09). By the time the employer decided to fight in June 2003, the dispute sat at the NLRB for five years when it was finally resolved against the employer by the NLRB on stipulated facts. In short, the NLRB found that the employer had failed to recognize the union for the required six month period in compliance with the parties’ settlement agreement because the NLRB does not recognize the “modern” business practice of correspondence or telephones and, instead required the parties to meet face-to-face before the clock started ticking on the six-month period.

The union began an organizational campaign in early 2000, which culminated in unfair labor practices being filed against the employer. When the General Counsel issued a complaint, the employer instead decided to informally settle the complaint by voluntarily recognizing the union in May 2000 and providing back pay to twelve employees. The employer and union then negotiated in good faith for almost two years without ever reaching an initial bargaining agreement. In March 2002, the employees filed a decertification petition and the employer withdrew recognition from union on March 14, 2002. The union again filed ULP charges, the General Counsel again issued a complaint and the employer again agreed to settle the complaint by voluntarily recognizing the union and negotiating in good faith in October 2002.

Unfortunately for the employer, this settlement agreement contained a clause that it did not become effective until approved by the NLRB – which did not happen until February 3, 2003 and it was not judicially approved by a Court until September 2003. Notwithstanding this, the employer immediately attempted to negotiate with the union, submitted proposals and responded to information requests by the union. The parties agreed in writing to a limited wage increase for five employees on October 30, 2002. However, for a variety of reasons, the union refused to meet face-to-face with the employer until January 16, 2003. The parties then met two more times, but exchanged information and proposals several times over the next five months and came close to reaching an initial agreement.

As in 2002, the employee again submitted a decertification petition to the employer and, as in 2002, the employer withdrew recognition from the Union on June 27, 2003 – almost eight months after they began negotiating in writing in October 2002, but only five months after the Board approved the formal settlement agreement on February 3, 2003 and 5.5 months after they met face-to-face for their first bargaining meeting on January 16, 2003. Again, the union filed a ULP and, again, the General Counsel issued a complaint. However, this time, the employer decided to fight. The parties waived a hearing before an ALJ and instead issued stipulated facts directly to the NLRB, which did not rule on the dispute until August 2008 – more than eight years after the employer first recognized the union for the first time.

The NLRB decided that it was in the interest of industrial peace to require the employer to negotiate with the union for at least six months before honoring any decertification petition submitted by the employees. The NLRB was not influenced in any way by the 22 months when the employer had already bargained with the union without reaching a bargaining agreement in 2000-2002. The NLRB’s prior decision in Lee Lumber requires a presumptive six-month bargaining period following an adjudicated unfair labor practice during which a union has an irrebuttable presumption of majority status after re-recognition. In this case, the employer argued that the six-month period began in October 2002 when the parties exchanged and agreed upon proposals, information, and limited wage increases, but the union argued that the six month period did not begin until February 3 when the settlement agreement was approved by the Board. The NLRB ultimately split the baby and decided that the six months did not begin until the parties first met face-to-face on January 16, 2003. Accordingly, six months had not passed when the employer withdrew recognition on June 27, 2003 after receiving its second decertification petition in two years.

The Court affirmed the Board’s decision as reasonable and not unduly prejudicial of the employees’ rights to be free of an ineffective union since the employer was only required to recognize the union for another six months before it could, once again, entertain a third decertification petition and withdraw recognition from the union for a third time in this never-ending story . . . ..

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0729n-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.

Sixth Circuit: State and Federal Whistleblower Statutes Do Not Protect Internal Reporting by Employee Until He Investigates and Reports to Government

Today, the Sixth Circuit affirmed the dismissal of whistleblowing and public policy claims by the terminated officer of a financial institution who had provided information about misconduct to his supervisors that lead to his former boss being fired. Hill v. Mr. Money Finance Co., No. 07-3907. The Court found that the plaintiff’s activities were not protected by state or federal whistleblowing statutes or public policy because, among other things, he was fired before he reported the misconduct to government authorities.

According to the Court’s opinion, the plaintiff was hired as a Senior Vice President and was permitted by the company president to work three days each week in the office (since he lived approximately 90 miles away). At some point, he provided about 54 pages of evidence to a member of the Board of Directors about misconduct by the company’s president, including questionable credit card charges (for, among other things, flowers and lingerie), and two questionable loans. This information was forwarded to the CEO and ultimately to outside counsel, which arranged for the president to resign. None of this was reported to any federal or regulatory authorities. That same Board member was eventually hired as the new president and he terminated some of the “perks” of the plaintiff’s position, including his ability to work from home or receive a car allowance. When the plaintiff sought an increase in compensation to reflect the changes, the new president instead arranged for him to interview with other companies that would consider his compensation needs.

The plaintiff then attended a seminar where he learned about Suspicious Activity Reports (SARs) filed with the federal law enforcement and the Treasury Department concerning improper loans. He informed the new president that he believed that the former president’s misconduct was required to be documented in a SAR, but the new president failed to take any action on this information or learn about the SAR process. A few weeks later, the new president decided to eliminate the plaintiff’s SVP job as part of a reorganization. However, before the plaintiff was so informed of the reorganization, he sent a letter to the Board and the bank’s compliance officer about his concern that the bank was required to file a SAR concerning the former president’s misconduct. In particular, he believed it was illegal not to submit a SAR under the circumstances. The bank’s outside counsel refused to disclose whether a SAR had been filed, but responded “that [the plaintiff’s] approach to the situation created ‘disturbing problems’; that Mr. Money has no problem with filing an SAR because it has no reason to protect the resigned [former president]; and that if [the plaintiff] wanted to file an SAR, he should ‘go ahead.’” Apparently unaware that the plaintiff had already raised the issue with the current president, the attorney also expressed displeasure “at [the plaintiff] choosing to ignore ‘the chain of command,’ and suggested that [the plaintiff] ‘manufactured this issue for reasons that have nothing to do with’ filing a SAR.” Nonetheless, the attorney advised the compliance officer to “seek clarification from the Financial Crimes Enforcement Network (“FinCEN”), a division of the Treasury Department, whether an SAR needed to be filed.” The compliance officer sought clarification about one of the two improper loans and was told that it was not criminal misconduct which required a SAR.

Eleven days after informing the Board that he felt a SAR was necessary, the plaintiff was fired in the reorganization based on the needs of the business and his requested compensation. He then provided a letter he had mailed the day before detailing how he felt retaliated against for reporting the prior president’s misconduct when his working conditions had been changed by the current president. Two months later, the plaintiff filed suit and then filed a SAR.

The Court affirmed the dismissal of the plaintiff’s claim that his termination violated Ohio’s Whistleblower statute at Ohio Revised Code § 4113.52. The Court concluded that an employee is only protected “from retaliation ‘as long as he made a ‘reasonable and good faith effort to determine the accuracy’ of each informational element.’” The Court did not believe that the plaintiff satisfied this requirement of the Ohio statute despite evidence that he:

1) “gathered the concerns of multiple employees”; (2) assembled these concerns “into a written report,” which he presented to [the Board member]; (3) sought “additional information” on a credit card account when another employee brought her concerns to him, which entailed “obtaining online account information”; (4) reviewed “approximately 54 pages of MasterCard statements, which revealed the specifics of [the former president’s] activity”; (5) “pulled files to review loans” made to [an] (individual with the Ohio address, whose loan documents were delivered to New Jersey) and [a] singer; (6) “read the statutes relating to embezzlement and bank fraud.”

While the plaintiff “demonstrate[d] that he transmitted the concerns of multiple employees to [the Board member]. However, . . . serving as a “mere conduit” of information does not by itself amount to a reasonable and good faith effort” under the Ohio Whistleblower statute. “[I]t is clear that only those employees in the chain of command – only those “conduits” – who satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of information they received and passed on are protected under the statute.”

The Court also rejected the plaintiff’s argument that he had submitted a written report to the Board member when he assembled the 54 pages of evidence of the misconduct, including his handwritten notes on some of the pages. Rather, the evidence “likewise fails to show that [the plaintiff] sought any information beyond that contained in the statements printed by another employee. He states that he did not know nor seek to ascertain whether the bank conducted an audit on the credit card or exactly how much money [the former president] paid back, if any.” The Court was also troubled by the amount of effort which the plaintiff put into determining whether the misconduct was criminal – or even felonious. “Merely stating in a sworn affidavit that he ‘believed that these serious crimes were felonies’ may conceivably satisfy the requirement that the employee reasonably believed a felony occurred, but it does not satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of that belief. Even if it is not inconceivable that a jury would find reasonable and good faith effort with regard to the first informational component (occurrence of misconduct), it is far less conceivable with regard to the second informational component (criminality of misconduct), and wholly inconceivable with regard to the third informational component (felonious nature of misconduct). Therefore, we affirm the district court’s decision as to [the plaintiff’s] claim under the Ohio Whistleblower Statute, on the grounds that [the plaintiff] did not proffer sufficient evidence to create a genuine issue of material fact as to his reasonable and good faith effort to determine the accuracy of the information he reported.”

The Court also affirmed the dismissal of the federal whistleblowing claims because the plaintiff failed to “establish that his conduct qualifies for whistleblower protection under Federal Whistleblower Statutes [at 31 U.S.C. §5328 and 12 U.S.C. §1831j] , because [he] did not file protected information with the federal agencies specified in the statutes until after Defendants terminated his employment, and his ‘internal whistle-blowing’ to . . . the Board members does not satisfy statutory requirements.” As explained by the district court, “The language of sections 1831j and 5328(a) is clear and unambiguous. If the plaintiff did not report the relevant information, himself or through a conduit, to a federal banking agency, the Attorney General, the Secretary of the Treasury, or any federal supervisory agency, before being discharged or otherwise discriminated against . . . then the plaintiff is not protected by these whistle-blower protection laws.” More pointedly, “[a]lthough [the plaintiff] “had threatened to file an SAR on more than one occasion, and even announced his intent to do so, [he] did not actually file an SAR until after Defendants fired him.” Statutory language is clear that retaliation must follow the provision of information to a specified federal authority.”

The Court likewise affirmed the dismissal of the public policy claim. As explained by the district court: Because the plaintiff “did not report criminal activity within the corporations to anyone outside of the companies with any authority or oversight over the Defendants’ industries until after he was terminated,” [the plaintiff’s] actions “do not fulfill the goals of these statutes or of the public policy behind these statutes.” According to the Court, “[t]he obvious implication of [Ohio decisions] is that an employee who fails to strictly comply with the requirements of [the shistleblower statute] cannot base a [public policy] claim solely upon the public policy embodied in that statute.”

“[T]here is no genuine material issue as to whether [the plaintiff] reported anything outside the company – and as we agreed above, he did not. [The plaintiff’s] conduct did not fulfill the goals of the identified public policies, not solely because [he] did not comply with statutory requirements, but also because [he] failed to report, as required by the clear public policies he identified. Holding that a public policy in favor of reporting crimes requires that a possible crime actually be reported is not at odds with lower court decisions [he] cites in support of his claim.”

For some reason, the Court found distinguishable other public policy claims which protected internal whistleblowers simply because they involved different public policies. Rather “all of [those] cases deal with the policy favoring workplace safety. “

The Court likewise faulted the plaintiff for failing to identify any other specific public policy which prohibited retaliation against employees engaged in his behavior. The Plaintiff “does not match the “source” to the clear policy: we are left guessing as to which of these numerous statutes manifests a clear public policy against the “dismissal of bank employees in retaliation for reporting unlawful conduct by the officers of financial institutions,” let alone what specific statutory language expresses said policy clearly. Even if such a policy were clearly manifest, this claim fails for the same reasons as above – there was no “reporting” of violations to external authorities. Since [the plaintiff] did not establish the clarity element of the tort, whether he has established the jeopardy element is moot.”

Even if the Court did not think much of the plaintiff’s retaliation claims, it dismissed the Defendants’ request for sanctions for pursuing a frivolous claim.

Insomniacs can read the full option at http://www.ca6.uscourts.gov/opinions.pdf/09a0099n-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.