Sixth Circuit Reminds Employees that Unfairness is not the Same as Discrimination

Last month, the Sixth Circuit affirmed the dismissal of Title VII discrimination and constructive discharge claims even though the plaintiff was treated unfairly because she could not show that she had been treated differently than a comparable male.  Gosbin v. Jefferson County Commissioners, No. 17-3441  (2/23/18).   The plaintiff had been publicly reprimanded and suspended for “insubordination” even though she had never been explicitly told to take a particular course of action.   The employer’s law firm had also been told to cease working with her or telling her why.  Realizing that she might be fired, she resigned and was replaced almost a year later by a male subordinate who lacked her qualifications.   While the Court agreed that she may have been treated unfairly, that unfairness was not discriminatory in the absence of evidence that she was treated differently than a comparable male.   Her efforts to compare herself to her male predecessor and successor were futile because the employer was unaware of the predecessor’s adoption of the challenged practice and he was paid more than her because he possessed additional professional licenses and responsibilities.  Her successor actually resolved the employer’s concerns taking bids for the hauling work and paying the lowest bidder.  Without a more favorable comparator, she could not prove her prima facie case.  In any event, while she may not have been technically insubordinate in the absence of a specific directive, the employer was still entitled to the honest belief defense because for two months she had continued a practice that they had informed her was legally inappropriate and needed to be corrected by placing the matter out for competitive bidding.

According to the Court’s opinion, the plaintiff had been promoted to department director in 2010 shortly after the long-time director retired.  A few years later, following a complaint and her investigation, the board of county commissioners learned that her predecessor had a verbal hand-shake deal with a local hauler to dump  septic waste at the sewage treatment plant at half-price in return for cleaning up emergency septic spills throughout the county.  While this might be acceptable in the private sector, public sector contracts must be bid so that everyone can compete for the business and opportunities.  She was directed to put the work and opportunities out for public bid.  While she took a few steps towards doing so, she did not discontinue the private arrangement or actually put the emergency septic work out for bid.  Upon learning this two months later, the Board explicitly directed her to cease permitting any haulers to dump until they had approved a policy.   She explained that she thought that they had merely directed her to put the arrangement out for bid, but until the bidding process was complete, that they current arrangement could continue.  Nonetheless, she terminated the arrangement the next day.   The Board then suspended her for 30 days for insubordination.  Following her suspension, her male subordinate took bids for the emergency septic work, and then paid the lowest bidder – the same company as before – for the work instead of letting him dump at half price.  The Board then directed its law firm to cease working with her and not tell her why.    The plaintiff resigned a few months later, was replaced by her male subordinate almost a year later, and brought suit for discrimination and constructive discharge.

The Court initially observed that the employee could not prove a prima facie case of discrimination because she could not identify any comparable male employees who were treated better than her.

In the end, whether deserved or not, there is no proof that the suspension was based on Plaintiff’s gender . . .  Plaintiff must show that the adverse action was not simply unfair, but a pretext for discrimination.  Absent any comparators, the only other evidence is [Commissioner] Gentile’s comment in early 2010 denying that he wanted Plaintiff out of management and his subsequent explanation that “it’s not because you’re a woman.”  But an isolated stray comment, three and one-half years before she was suspended, does not create an inference of discrimination. . . .

Even if Plaintiff had made out a prima facie case,  she has not shown that the Board’s reason for suspending her had no basis in fact, was not the actual reason, or was insufficient to explain the Board’s action.   . . .  Although the Commissioners did not issue a direct “cease and desist” order, they clearly asked Plaintiff to begin a public bidding process to replace the unbid hauling arrangement tout de suite; thus they had an “an honest belief” that Plaintiff did not follow their orders.

The Court also rejected the constructive discharge claim on the grounds that she could not prove any hostility was related to her gender and because the public reprimand and suspension were an insufficient basis for resigning.

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 Plaintiff’s FMLA Jury Verdict Which Rested Solely on Temporal Proximity

On Tuesday, the Sixth Circuit reversed a jury verdict entered in favor of a plaintiff who claimed that she had been terminated for falsifying her time sheets in retaliation for taking FMLA leave.  Hartman v. Dow Chemical Co., No. 15-2318 (6^th Cir. 8-16-16).   However, the Court found that there was insufficient evidence to prove that the employer’s honest belief in her fraud was pretext for retaliation even if the findings had been potentially exaggerated because there was no evidence that the employer had known about and tolerated the fraud before her FMLA leave, the investigation which commenced after her leave produced clear evidence of fraud, there was no direct evidence based on co-worker pleas to terminate her employment during her FMLA leave, and the employer could not be faulted for considering the legal ramifications of her FMLA rights. “[W]here a plaintiff’s evidence of retaliatory animus ultimately rests solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand.”

According to the Court’s opinion, shortly after the plaintiff requested FMLA leave, the plaintiff’s co-workers reported their suspicions and concerns that the plaintiff had not been working all of her assigned hours, had engaged in personal matters during work time and had failed to perform assignments.   In particular, one co-worker produced a log of the plaintiff’s arrival and departure times to demonstrate that she had not been working her assigned hours.  Another discovered that the plaintiff had not even commenced a number of long-term assignments before she left for FMLA leave and also heard during her FMLA leave that she had been observed engaging in activities and comments which belied her need for FMLA leave.   However, her supervisor refused to confront her about these issues during her leave and was satisfied when she produced an updated FMLA medical certification form to support her FMLA request.  Nonetheless, he apparently informed Human Resources that she seemed to be exaggerating her illness when he met with her.

Following her return to work, her co-workers again monitored her comings and goings and personal activities on work time and requested that action be taken so that the intern who filled in could be hired instead.  Her supervisor finally obtained objective evidence of her arrivals and departures from the front gate and her computer log-ins. He confronted her several months after she returned from FMLA leave with the fact that she claimed to be working for 60 more hours than she had been physically present on company property.  When she claimed to be working from home for 2.5 hours nightly, he pointed out that she had only logged into the computer remotely twice in the past month and one of those had been on a day when she called off sick.  She was then terminated for timecard fraud.  A jury awarded her over $50,000 in back pay and over $122,000 for future damages.

The Sixth Circuit reversed on appeal.  Although the plaintiff argued that the defendant employer had been motivated by her FMLA leave, the employer’s explanation for her termination was supported by the honest belief rule.   While the plaintiff contended that the employer had exaggerated the discrepancy between her time sheet and gate records, she could not dispute that there remained a significant discrepancy and her mere disagreement with the result was legally insufficient to disprove her employer’s honest belief.  “This requires a specific showing that the employer’s decision-making process was not ‘reasonably informed and considered’ and is thus not worthy  of belief” or was based on nothing more than personal opinion.  Even a mistake by an employer does not trump its previous honest belief.  “As this court has previously explained, it does not matter whether the employee actually committed fraud—what matters is if the employer honestly believed that the employee did.”

Unable to show that the employer’s explanation was unworthy of belief (and thus pretextual or a cover-up), the plaintiff attempted to show that it did not actually motivate the employer’s decision.  In this case, the plaintiff pointed to the temporal proximity between her request for FMLA leave and when the employer began to scrutinize her attendance.  The employer argued that it did not matter what or who triggered the investigation into the plaintiff’s attendance because employers are permitted to enforce their rules regardless of who uses FMLA leave.   The Court agreed that “temporal proximity between the start of an investigation into an employee’s misconduct and the use of FMLA generally does not itself provide sufficient evidence of animus.”  Nonetheless, “where an employer treats an employee differently after she asserts her rights . . . than before she had done so, a retaliatory motive may be inferred.” But, in those cases where retaliatory motive was inferred from increased scrutiny, there had been evidence of uneven application of the rule or tolerance of the plaintiff’s poor attendance before taking FMLA leave and intolerance for it after the FMLA leave.   In this case, there was no evidence that the employer had been aware of the extent of the plaintiff’s malfeasance before she requested FMLA leave and only disciplined her for it after engaging in protected conduct.  In other words, there was no evidence that the employer had been aware of the plaintiff’s fraud before her leave and had ignored it, only to terminate her for fraud after her FMLA leave.

The plaintiff also argued that the timing of her termination – just a few months after she returned from FMLA leave – was suspicious.  However, for temporal proximity to substitute for causation, there must be other “independent evidence.”  The plaintiff tried to argue that a co-worker’s emailed plea to her supervisor after she returned from FMLA leave was such evidence.  However, that email focused on the plaintiff’s fraud and not on her FMLA leave.  It was too ambiguous to constitute direct evidence of retaliation.

The Court also rejected the Plaintiff’s argument that her co-workers’ attempt to have her fired for timecard fraud during her FMLA leave was evidence of retaliation, even if her supervisor refused to do so while she was on FMLA leave because of a fear of litigation.

To permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions.  Moreover, there must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and an employer terminating a plaintiff based on the employee’s protected status or engagement in a protected activity:  the latter results in liability for the employer while the former does not.  For that reason, it is legally insufficient for a jury to reasonably rely on Ingold’s alleged statement that Dow was concerned that if an ERM was held concerning Hartman, she might file suit.

Finally, the Court rejected the plaintiff’s argument that her supervisor’s skepticism of her need for FMLA leave was sufficient evidence of pretext.

First, statements and actions by a decisionmaker “outside of the decisionmaking process” cannot be the sole basis for proving pretext.   . . .  Second, even assuming that [her supervisor] was skeptical of [the plaintiff’s] use of FMLA leave, “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”   . . .  In fact, just prior to meeting with [the plaintiff, her supervisor] had received a report from [HR] that [the plaintiff] was engaging in activity inconsistent with her medical restrictions.  Regardless of [his] skepticism, once [she] provided a note from her doctor that indicated she needed more rehabilitation, [he] was satisfied. Therefore, this incident fails to provide any evidence that retaliatory animus motivated [the employer’s] termination of [the plaintiff].  

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 Dismissal of FMLA Claims Without Actual Damages

Last month, the Sixth Circuit affirmed dismissal of FMLA interference and retaliation claims brought by a terminated warehouse worker, but remanded for the court to consider her state law claims.  Thiess v. Walgreen Company, No. 14-3892 (6^th Cir. 12-7-15).  The plaintiff could not show that she suffered any compensable harm from the alleged FMLA interference.  Her allegation “that she would have taken more absences if her request had been granted in no way proves that [the employer] interfered with her request in any way.”  She also could not show unlawful retaliation when the employer had an honest belief following its internal investigation that she was properly terminated in accordance with company policy for fabricating assault allegations against a co-worker and assaulting him.  Finally, the Court remanded the case for resolution of her remaining claims.

According to the Court’s opinion, the plaintiff failed to provide medical certification to support her request for intermittent FMLA leave despite many opportunities and reminders.  In the meantime, the employer provisionally issued disciplinary actions for her unexcused absences that she alleged should have been covered by her FMLA request.   A few months later, she alleged that a co-worker assaulted her and filed a criminal complaint against him.  Following separate investigations by the police and the employer, which included video evidence, both the police and the employer determined that the plaintiff had falsely accused her co-worker and had actually assaulted him.  Accordingly, she was terminated. 

The plaintiff brought suit in state court alleging sexual harassment, discrimination and retaliation, and violation of the FMLA.   The employer removed to federal court on the basis of diversity jurisdiction.  After dismissing the FMLA claims on summary judgment, the trial court remanded the remaining claims back to state court. 

The Court of Appeals found that the plaintiff could not show FMLA interference because she suffered no financial harm from the employer’s failure to approve her FMLA leave.  Although she alleged that she would have taken more time off work than she actually did if it had been approved and if she had not been provisionally disciplined, she suffered no compensable damages from this alleged harm. “[T]he FMLA does not provide a remedy “unless the employee has been prejudiced by the violation.”  

The FMLA provides that an employee whose rights are interfered with is entitled to

damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation.

29 U.S.C. § 2617(a)(1)(A)(i). If an employee does not suffer any damages, then the FMLA does not provide a remedy.

The Court also rejected the FMLA retaliation claim because the plaintiff could not show that the employer lacked on honest belief that she had violated company policy by fabricating assault allegations against a co-worker and assaulting him.  Therefore, there was insufficient evidence that it terminated her on account of her FMLA requests instead of its proffered reasons:

In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” . . . In reviewing Walgreens’s decision to fire Theiss, we are looking for “error on the part of the employer that is too obvious to be unintentional.”  . . . In light of this standard, we find nothing in the record showing any gross deficiency or oversight in Walgreens’s investigation. There is no evidence showing that Walgreens’s reasons for firing Theiss were dishonest, pretextual, not sincerely held, or discriminatory. On the contrary, Walgreens had a specific policy that provided for immediate termination in cases of “harassment or horseplay” and “falsifying . . . documents.” Since Walgreens determined—after due investigation—that this is precisely what Theiss had done, her termination was directly in line with a clearly established company policy.

Finally, the Court found that the case had been improperly remanded back to the state court after the dismissal of the FMLA claims.  The case had been removed to federal court on the basis of diversity jurisdiction, not just federal question jurisdiction.  Accordingly, the court had jurisdiction over the state law claims on the basis of diversity of citizen between the parties.

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 Appellate Court Affirms $250K Jury Verdict for Plaintiff Terminated on Account of Perceived Disability

At the end of last month, a unanimous Montgomery County Court of Appeals affirmed a $250,000 jury verdict in favor of a home health care nurse who had been terminated in July 2011 because she had been prescribed and was wearing a fentanyl patch to cope with pain.  Cavins v. S&B Health Care, Inc., 2015-Ohio-4119.  The court rejected the employer’s challenge to the trial court’s failure to bi-furcate the trial on punitive damages because that alleged error had been waived and was harmless when the jury did not award punitive damages.  It also found that the jury’s decision was supported by sufficient evidence.  The Court found that there was clear evidence that the employer viewed her as being disabled by a drug addiction because it disciplined and suspended her for wearing the patch pending a release from her physician, told her that they perceived her wearing a pain patch as a liability and two executives mentioned it in connection with her termination decision.  With such direct evidence of discrimination, she was not required to prove pretext, but had done so.  The employer could not rely on an “honest belief” defense when it conducted no investigation of the supposed HIPAA violation leading to her termination.  Similarly, the jury could disbelieve the employer based on its disparate treatment of the plaintiff in disciplinary warnings which were also not supported by its written policies.  The employer also failed to prove an accommodation constituted an undue hardship or a direct threat.   The court refused to find judicial estoppel from the plaintiff’s pursuit of a workers’ compensation claim and similarly refused to deduct her workers’ compensation recovery from her back or front pay award based on an application of the collateral source rule to deter discriminatory employers.  Finally, the court found the plaintiff could recover emotional distress damages without expert testimony or evidence of a physical injury.

Background.  According to the court’s lengthy opinion (which necessarily construed the facts in the prevailing plaintiff’s favor), the plaintiff had received above average performance evaluations in the two years prior to her termination.  Her evaluations and the company’s policy manual required that she turn in reports on a weekly basis. However, the evaluation had a handwritten “daily” inserted, which the plaintiff implied was done after her termination.  Her lowest scores in her performance evaluations concerned the inconsistent timeliness of her documentation.  In late 2010, she filed a workers compensation claim based on a deterioration of her arms and wrists from patient charting and the company ultimately arranged for a voice-activated computer to assist with her documentation.  Her supervisor sent her a holiday card to get some rest and not burn out.  While normal full-time employment was 20-25 patients/week, she generally had a much heavier workload, covering for other employees and working every holiday since she was hired.  For example, she saw 13 patients on July 4 shortly before she was fired.  In early January, her car was hit from behind while she was travelling to see a patient.   Although she was in pain, she continued to work because she could not afford to take time off.  In late May, she was given a written warning for untimely documentation and was reminded in writing that her documentation was due at 8 a.m. on Monday mornings (i.e., weekly).   She responded that she would try harder, but was in pain. On June 2, she was involved in another car accident while her daughter was driving.  After seeing to her daughter’s broken arm, she went to a different hospital the next day and claimed to have notified her employer (which denied knowing about this second accident).

On July 1, the plaintiff was prescribed a fentanyl patch for her pain.  There were no complaints about her performance after she began wearing the patch.   She requested and received approval to take July 8 off work for her birthday.  She subsequently emailed her supervisor that she had found others to cover for her on July 9 and 10 as well.  In the interim, a co-worker notified a supervisor that the plaintiff sounded impaired on the telephone and admitted to wearing a morphine patch.  This inaccurate information was relayed to a vice president, Human Resources, and the company’s lawyer.  The following day, another employee also claimed that she had slurred speech, and the plaintiff later explained that she had been up all night trying to catch up with her patient documentation and had not been wearing the patch at the time.  (Her all-nighter was confirmed in an email she sent at 6:33 a.m. to her manager).  

When the plaintiff reported to work on July 11, she was given three written warnings and suspended.  The first written warning was dated on July 7 and was for failing to notify management about her pain patch, even though the cited policy only prohibited the use of illegal drugs, alcohol or control substances which could affect employee performance or safety.  She was not permitted to return to work until her physician confirmed in writing that she could safely drive and perform her job.  The second warning was also dated July 7 and concerned the tardy submission of reports, which she had been submitting on Sunday night or early Monday morning instead of daily.  It reflected a performance plan and threatened to terminate her if she did not improve.  She refused to sign it since her most recent warning had only required her to submit weekly reports and she was not yet late with the reports from the prior week as alleged.   The third written warning was for failing to use the proper form to request time off for July 8.  However, the plaintiff denied knowing about such a policy or forms and the company never produced a copy of any such policy or forms at trial (which strongly suggests that they do not exist).  There was evidence that other employees had requested and received time off without such forms and never been disciplined.  The plaintiff returned to work on July 18 after her physician released her without restrictions.  Nonetheless, she was told that she was a liability while she wore her pain patch.  She subsequently offered to stop wearing it if the company and its attorney remained concerned, but her email received no response.  The next day, the company claimed that an anonymous employee told it that the plaintiff had secretly contacted a former patient.  Without any investigation, the decision was made to terminate the plaintiff.  At trial, the employer was unable to identify any employees or patients with knowledge that the plaintiff had improperly contacted them.   They arrived at her home (because she had called off sick) but she did not answer the door.  When the plaintiff emailed her supervisor that she thought that she would be off sick for less than two weeks, she was notified that she had been terminated and an employee was sent to pick up her equipment.  The company executives testified to different reasons for her termination, but two of them referred to her fentanyl patch. 

The plaintiff ultimately produced a physician note that should return to work on August 1, but in light of her termination did not work for two years.  During workers compensation litigation, the plaintiff received her termination documentation for the first time and it listed only a HIPAA violation (for contacting a former patient) and nothing about the fentanyl patch.  She returned to work on modified duty in 2014 for another employer.  In the meantime, she filed suit concerning her termination.  After trial, a jury awarded her $125,000 in back pay, $75,000 for front pay and $50,000 in compensatory damages, but denied punitive damages.  The employer appealed.

Failure to bifurcate was harmless error.  The appellate court rejected the employer’s argument that the trial should have been bifurcated because it was waived at trial (when the attorneys failed to have the jury instruction conference transcribed and included in the record) and any error was harmless in that the jury did not award punitive damages.

Direct Evidence that Perceived Disability Motivated Termination Decision.  The Court found substantial evidence that the plaintiff had been perceived as disabled on account of wearing her fentanyl patch and that the jury was in the best position to evaluate the credibility of the witnesses.  It noted that Ohio law and the ADAA only require evidence that the employer views an employee as impaired and does not require evidence that the employer perceived that impairment as substantially limiting a major life activity.   Accordingly, when the employer took adverse action against the plaintiff on account of the fact that she sometimes wore a fentanyl patch to treat the pain she suffered from two automobile accidents, it constituted direct evidence that the employer perceived her as disabled under Ohio law:

[The plaintiff] was taking measures (prescription medication) to correct or mitigate an underlying physical condition – injuries caused by one or more auto accidents. Accordingly, there was sufficient evidence to allow the jury to conclude that Cavins was perceived as disabled within the meaning of R.C. 4112.02(A)(1) and R.C. 4112.01(A)(13).

Indeed, the jury was not even required to infer that the plaintiff’s impairment played a part in the decision to terminate her because two of the company’s executives admitted as much.

No judicial estoppel from pursuing workers’ compensation claim.  In a rather confusing discussion, the court addressed the issue of whether the plaintiff had been qualified to perform her duties immediately prior to her termination, particularly in light of the fact that she did not work for two years following her termination and had submitted documentation that she had been unable to work because of her workers’ compensation injury.  First, the court noted that she had produced return-to-work notes on July 18 (and actually worked a few days thereafter before getting sick again) and had been released to return to work on August 1 (after her termination).  Second, the plaintiff also testified that her duties did not require her to lift patients.   Third, the court rejected the concept of judicial estoppel to preclude the plaintiff from contending that she could work (in order to recover back and front pay) while she was contending in different proceedings that she was entitled to workers’ compensation because she was unable to work.  The court did so because she had never made any representations to the BWC under oath (as required for judicial estoppel to apply).  Moreover, the court found that she was qualified to perform her job at the time she was terminated (in light of two medical releases) and could have continued to do perform her duties with a reasonable accommodation (of wearing her fentanyl patch).

Reasonableness of accommodation.  The court found that permitting the plaintiff to wear the patch was a reasonable accommodation because the employer had indicated that she could do so if her physician confirmed that she could safely drive and perform her duties while wearing it.

Pretext Evidence Not Required.  The court also rejected the employer’s argument that the plaintiff failed to show that the documented reason for terminating her – an alleged HIPAA violation and prior disciplinary history – was pretextual.  The Court found that the plaintiff was not required to prove pretext because she had produced sufficient direct evidence of discrimination when two executives admitted that her fentanyl patch was a motivating factor in her termination.  When direct evidence exists, the burden-shifting framework in cases of indirect evidence does not apply.   At that point, the employer could only prevail if it could prove undue hardship or a direct threat.  It could do neither.  In particular, its July 11 suspension of the plaintiff – until she could produce medical documentation that she could safely perform her job duties and drive – demonstrated the reasonableness of that reasonable accommodation.  The employer could not challenge the reasonableness of that accommodation upon her return to work without further investigation, which it failed to do before terminating her a few days after she returned to work.   

Pretext Proven.  In any event, the court found sufficient evidence of pretext on the record.  The plaintiff denied that she had violated HIPAA or contacted a former patient as alleged.  In contrast, the employer’s only evidence was that an anonymous employee supposedly told it of the violation.   This was not corroborated by the employee or the patient.  Accordingly, the jury was free to disregard the employer’s testimony.  Moreover, the employer could not rely on an honest belief defense because it conducted no investigation whatsoever of the anonymous tip; it did not contact any former patients or even confront the plaintiff with the allegation.  In addition, the management employees contradicted each other as to whether the fentanyl patch was a factor in the termination decision.   Finally, the fact that the plaintiff was terminated just a few days after she had been told that her wearing the fentanyl patch was a liability further undermined the legitimacy of the purported HIPAA explanation. 

With respect to the consideration of her prior disciplinary history, there was evidence to show that her disciplinary warnings were not supported by any written company policies and that she had been treated differently than other employees on those issues:

Moreover, even if one assumes that the basis for the termination included the prior disciplinary actions, there was evidence that these alleged violations were not actual violations of Black Stone policy, or that other employees were not similarly disciplined. In short, the record contains evidence that Black Stone’s actions were poorly documented, and that its policies were inaccurately and inconsistently applied. For example, although Black Stone disciplined Cavins for failing to request a day off in writing, the company failed to submit evidence of a written policy or form to this effect, and there was evidence from an employee other than Cavins that she had been allowed to submit an oral vacation request without being disciplined. Cavins also testified that she had never been required to submit a written request. Again, the jury was permitted to believe Cavins’ evidence.

The court also found the jury was entitled to disbelieve the employer about the documentation requirements.  The employer contended that she had for years been required to submit it daily, not weekly as the plaintiff contended.  She testified that July 11 was the first time she had been told it was due daily.   She was corroborated by the fact that the policy manual said weekly and her May 2011 written warning also said weekly.  The employer contended that the May 2011 warning had been a mistake and pointed to handwritten notes on her last performance evaluation referring to daily documentation.  However, the plaintiff denied that “daily” had been written on the evaluation when she received it.

The court also found that the jury was entitled to disbelieve the employer about whether the plaintiff had violated any policy by failing to report her prescribed fentanyl patch since the policy only referred to a prohibition against using illegal drugs, alcohol and controlled substances that would interfere with job performance.  There was no reporting requirement mentioned in the policy.

‘An employer's changing rationale for making an adverse employment decision can be evidence of pretext’ to establish discrimination.” Sells v. Holiday Mgt. Ltd., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-5974, ¶ 27, quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996), amended on other grounds, 97 F.3d 833 (6th Cir.1996). “The factfinder is entitled to infer from any ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ in the employer's proffered reasons for its action that the employer did not act pursuant to those reasons * * * . If the factfinder concludes that one of the employer's reasons is disingenuous, it is reasonable for it to consider this in assessing the credibility of the employer's other proffered reasons.”

Mitigation.  The court also rejected the employer’s argument that the plaintiff was not entitled to so much back pay because she failed to mitigate damages and had recovered workers’ compensation during the same period because she was purportedly unable to work.  Again, the court rejected a judicial estoppel argument because she might have been able to work with a reasonable accommodation.  The court also found the mitigation affirmative defense was waived because there no was argument about it in closing statements and it failed to object to the exclusion of its proposed jury instruction.  As with the bifurcation issue, it was an error to not transcribe the jury instruction conference and include on appeal.  Failing to include a mitigation jury instruction could not be a plain error because the collateral source rule precludes consideration on the receipt of unemployment or workers’ compensation in a discrimination case, in part to further deter discriminatory employer misconduct.  In any event, the employer bore the burden on this affirmative defense and it failed to introduce any evidence about jobs which had been available that the plaintiff could have performed.   Finally, the amount of back and front pay awarded by the jury was well below the plaintiff’s estimates of what she would have earned if she had not been terminated.

Compensatory Damages for Emotional Distress.  The court rejected the employer’s argument that the plaintiff could not recover for emotional distress without expert testimony or a contemporaneous physical injury. “Under Ohio law, even without proof of contemporaneous physical injury, one may recover for mental anguish, humiliation or embarrassment.”

 

At trial, Cavins testified that she had been forced to file for bankruptcy as a result of the termination and her resulting loss of income. Cavins further testified that in addition to incurring filing fees for the bankruptcy, her relationships with creditors and others had been affected. She also stated that she was humiliated. In addition, Cavins testified about stress and stomach issues while she worked at Black Stone, due to her employers’ attitude.

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.

  

Franklin County Court of Appeals Reinstates Age Discrimination Claim and Rejects Honest Belief Rule When Plaintiff Was Arguably More Qualified Than Successful Candidate

In early June, a unanimous Franklin County Court of Appeals reversed a university’s summary judgment on an age discrimination claim, but affirmed dismissal of the disability discrimination claim. Ceglia v. Youngstown State Univ., 2015-Ohio-2125.   The plaintiff was a part-time social work instructor for many years with the university and applied for a full-time teaching position.  He was much older and had more work and teaching experience than the successful candidate (who had no teaching experience at the time she applied).  When asked if his age had been an issue, he was told by the selection committee chair that they had focused on “mid-level” candidates.   The plaintiff was also able to produce evidence that each of the reasons given by the members of the selection committee as to why he had been rejected had no basis in fact and that they had contradicted each other.  Finally, the Court rejected the trial court’s reliance on the “honest belief rule” based on the plaintiff’s ability to dispute the university’s pretexual explanations and the subjective nature of the committee’s decision.

The most interesting aspect of the decision is the Court’s rejection of the application of the honest belief rule, which is generally an insurmountable obstacle for plaintiffs asserting employment discrimination claims.  “Under the "honest belief" rule, if the employer honestly, but mistakenly, believes in the proffered reason given for the hiring decision at issue, then the employee cannot establish the requisite pretext.”   

As discussed above, appellant did more than simply disagree with the University's proffered reasons for denying him the position. Appellant supported his denials with corroborating evidence upon which it may be reasonably inferred that many of the proffered reasons for denying appellant the position either had no basis in fact or were insufficient to support the decision. Appellant also produced circumstantial evidence of a discriminatory animus based on age. Dr. Morawski's remarks to appellant and the inferences properly drawn therefrom create a genuine factual issue whether the members of the search committee honestly believed the proffered reasons for denying appellant the position and whether appellant's age was the true reason for its decision.

The Court discussed in great detail why the plaintiff was able to sufficiently demonstrate that the university’s explanation for not hiring him were pretextual.    The Court found that the plaintiff showed that the stated reasons had no basis in fact or were insufficient to justify the decision to not interview or hire him.  The university gave five reasons why he was not selected for an interview or hired instead of the young and inexperienced candidate:  

1.      The plaintiff allegedly “crossed boundaries with students by taking them out to a restaurant and socializing with them outside of the classroom setting.” However, the only such events were held after classes were over for the semester and were attended by other department faculty and held at a restaurant on campus.  No one had ever criticized these outings during his fourteen years with the university. Indeed, this issue had apparently not been discussed in the selection committee meetings.

2.      There had been “complaints from some of [his] former students that [he] had permitted students to forgo a mandatory research paper.”  He denied this allegation.  The only research paper he ever required was when he taught a class on behalf of the department chair which required a mandatory research paper and no one else was willing or qualified to teach.  He distributed an example of a research paper to the class and still had two copies of research papers he received from students of that class.  One of the selection committee had been critical that the students were not prepared to conduct research.

3.      Some students had complained that he had given "favorable grades" and “that he dismissed classes early.”   However, when he asked the department chair about whether his grades were too high, he was told his grading was not a problem.   He denied dismissing class early very often and contended that he had kept students over just as often.

4.       He had cancelled classes.  He denied that this happened regularly or often.  None of the selection committee members would admit that they had raised this as an issue, had personal knowledge of it or discussed it.

5.     He was “not the best at paperwork."  However, he had never been reprimanded, disciplined or counselled about paperwork during his fourteen year employment.  Moreover, while there was some dispute about this, there was evidence that administrative duties were less than 10% of the full-time teaching position.

In addition to casting doubt on the university’s explanation for his treatment, the plaintiff also produced evidence that age was the actual reason he was denied an interview and job.  In particular, when asked if age was the reason he was not selected, he was told by the selection committee chair that they were seeking “mid-level” candidates.     While such a comment does not compel a finding of age discrimination (and is, therefore, not direct evidence), it does constitute an inference of discrimination because the speaker inferred age as correlated with experience.

The plaintiff was also able to demonstrate pretext by comparing his relative qualifications to the successful candidate.   

"Relative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified * * * if not better qualified than the successful applicant, and the record contains 'other probative evidence of discrimination.' "

The University gave several reasons why the successful candidate was more qualified than the plaintiff:

1.      She “had more experience with agency settings."  However, the plaintiff produced evidence that he had worked for multiple agencies and hospitals, supervised more than 50 student interns and 200 employees.  As an execute director with a county board, he "provided oversight for more than 30 agencies that provided social services.”

2.      She had a "more well-rounded resume."  However, she had no prior teaching experience at the time she applied for the position, in contrast to the plaintiff’s fourteen years of teaching experience.   Indeed, the plaintiff had more years of teaching at the BSW and MSW level than any of the candidates interviewed for the teaching position.  Moreover, the plaintiff’s LISW-S license meant that he could supervise students and able to perform clinical work without supervision.   One of the committee members admitted that this would contribute to the job, but that the successful candidate lacked this qualification.

3.      She had "more field education experience."

4.      She was "organized and had been a supervisor and had been effective."

5.      She was a "better fit" for the position.

 The Court ultimately concluded that there was sufficient evidence to show that the university’s decision had been based on subjective feelings instead of objective evidence about the relative qualifications of the candidates. “Construing the evidence in appellant's favor, the University's hiring decision appears to be based, in large part, on the individual committee member's subjective belief that Holcomb-Hathy was a superior candidate to appellant rather than on specific objective evidence.”   Again, when this evidence was paired with the ambiguous statements about age being the true reason for the decision, the plaintiff produced enough evidence at the summary judgment stage to avoid judgment and require a trial on the merits.

In contrast, the plaintiff was unable to produce evidence showing an inference of disability discrimination to survive summary judgment on that claim.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can 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.

Suspicious Internal Investigation Report Will Not Support Application of Honest Belief Rule in the Sixth Circuit

Last week, a per curiam panel of the Sixth Circuit reversed an employer’s summary judgment decision on an ADEA claim and criticized the trial court’s application of the honest belief rule.   Stewart v. Kettering Health Network, No. 13-4080 (6^th Cir. 8-13-14).  In that case, the plaintiff police officer had been terminated following an investigation for using excessive force against a psychiatric patient by kicking him in the head after he had been subdued.  He denied the allegation and pointed out that a younger officer – who had not reported the incident -- had punched the patient and broken his nose, but had not been disciplined.  The plaintiff’s alleged excessive force had not been mentioned in the physicians’ contemporaneous notes of the situation, were not the subject of a patient complaint, and were not reflected in the patient’s injuries, but was the focus of a subsequent investigation by the allegedly biased supervisor.  The plaintiff presented evidence of his supervisor making ageist comments and jokes and discouraging him from seeking a promotion on account of his age.  His supervisor also only seemed to hire young officers.  Based on this evidence, the Court refused to credit or apply the honest belief rule to the supervisor’s investigation of the plaintiff’s alleged misconduct which supposedly justified his termination.

The Sixth Circuit panel noted that it applies a modified version of the honest belief rule:

 . . . for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” . . . . Even when the employer makes such a showing, “the protection afforded by the rule is not automatic. . . . [O]nce the employer is able to point to the particularized facts that motivated its decision, the employee has the opportunity to produce ‘proof to the contrary.’”

 . . . the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” . . . . “[w]hen the employee is able to produce sufficient evidence to establish  that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of credence,’ then any reliance placed by the employer in such a process cannot be said to be honestly held.”

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 Summary Judgment for Employer in Sex-Plus Race Title VII Case Or Honest Belief Defense Based on Cursory Investigation

Last week, the Sixth Circuit Court of Appeals reversed summary judgment for the employer in a Title VII case.  Shazor v. Professional Transportation Management, Ltd., No. 13-3253 (6^th Cir. 2-19-14).  Among other things, the Court held that the plaintiff could survive summary judgment even though she was replaced by a female because her replacement was not an African-American female.  In other words, the Court employed a sex-plus analysis and decided to not separate her sex from her race. The Court also found that the plaintiff could show that the employer’s explanation for her termination – that she had been dishonest – was pretextual simply by creating an issue of fact as to whether her challenged statements were false.  The Court also rejected the employer’s honest belief defense because it only interviewed one witness about whether the plaintiff had lied during a board meeting and never questioned her about her motive for the misstatements.   While the sole interview might have been sufficient to discharge her for “overt misconduct,” it was insufficient to determine the truth or motive behind her statements.

According to the Court’s opinion, the defendant employer provided management services to a transit authority and, among other things, assigned plaintiff to be the transit authority’s CEO even though she had worked in public transit only two years.  When the plaintiff refused to participate in educational seminars that her employer provided, some of its management began questioning  her loyalty and whether she was attempting to be hired directly by the transit authority.  She was referred to in some emails as a “prima donna” and in one email as a “bi*ch.”  In her positive performance evaluation, she was criticized for poor teamwork.

Almost a year later, a dispute arose about two representations that the plaintiff made to the board of the transit authority about her employer’s willingness to provide training and consulting services concerning a labor-relations issue.  She had recommended the retention of a competing firm (which had a reputation of being anti-union) to provide training services and testified this had been the recommendation of the HR Director and General Counsel.  (The General Counsel later told her supervisor that the decision had been the plaintiff’s).  When questioned by the Board, she claimed that her new supervisor was too busy to handle union negotiations.  Some board members requested to meet specially with her supervisor to confirm this. There was some suspicion that she was not being honest because her supervisor had been active consulting with the authority in the past and she had a reputation of keeping her employer at arm’s length.   Plaintiff produced an email where her supervisor said he had another appointment on the date when the union wanted to meet and which showed that she had requested him to submit a proposal to provide union relations training.   When the meeting was held with the Board and her supervisor, the supervisor said that the plaintiff had lied when she said he was not available.  He fired her a few days later for being dishonest with the Board about his availability and for denying her role in selecting a competing firm to provide the union relations training.   His investigation consisted of one conversation with the authority’s General Counsel.     A Hispanic woman was eventually selected to replace the plaintiff as CEO.

The Court questioned the plaintiff’s argument that the emails constituted direct evidence of discrimination by essentially referring to her as an “angry black woman” or “uppity black woman.”  The email authors were not her supervisors or decisionmakers.  “Viewed as a whole,” their emails “might only show “occasional[]” sexist and racist comments, which would not be enough to establish direct evidence of discriminatory intent.”  Moreover, the Court was unsure if the cat’s paw theory could be used where the email authors were never her supervisors, had never sent them to the supervisor who terminated her and had sent the emails more than a year before her termination.  However, the Court ultimately decided to not rule on that issue because it found that she had presented sufficient circumstantial evidence to survive summary judgment.

 

The Court held that the plaintiff had shown that she was replaced by someone outside her protected class.  First, plaintiff is African-American and her replacement is Hispanic.   As for her sex discrimination claim, the Court refused to separate her gender from her race for purposes of evaluating her prima facie case:

Moving to Plaintiff’s sex discrimination claim, we find that it cannot be untangled from her claim for race discrimination. Naturally, “where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). The Supreme Court has acknowledged this truism and held that a plaintiff can maintain a claim for discrimination on the basis of a protected classification considered in combination with another factor. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). In many of these so-called “sex-plus” cases, the plaintiff’s subclass combines a characteristic protected by Title VII with one that is not. See id. We have therefore required sex-plus plaintiffs to show unfavorable treatment as compared to a matching subcategory of the opposite sex. See Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438–39 & n.8 (6th Cir. 2004).

In the case now before us, both classifications—race and sex—are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. Cf. Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994)(discussing sex-and-race Title VII claim brought by Asian woman). And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds. Thus in Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), we held that a plaintiff could rely on evidence of religious harassment to buttress his claim for racial harassment, even though the religious harassment claim could not survive independently.

 . . . If a female African American plaintiff (for example) establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that white women and African American men received the same treatment. See id. at 1032–33; see also  Gorzynski, 596 F.3d at 109–10. The realities of the workplace, let alone the purpose of Title VII, will not allow such an artificial approach. . . . .

The Court rejected the employer’s argument that the question should be whether the plaintiff can identify anyone similarly situated outside her protected class who was treated better.

This method is especially useful in cases where the plaintiff is not terminated, is not replaced, or is not replaced with a single person.. . .  But the replacement method works especially well when a plaintiff is terminated and the employer hires a single replacement to do the same job. That is precisely what happened in this case.

The Court rejected the plaintiff’s argument that the white male temporary replacement should have been considered to be her replacement because he was temporary.  The Court also left open the employer’s ability to show at trial that it had put forth four candidates to replace the plaintiff and the transit authority chose to hire the Hispanic woman.

 As for pretext, the employer explained that it had terminated the plaintiff because she lied to the transit authority board.  The Court found that the plaintiff produced sufficient evidence to prove that this explanation was pretextual because it lacked basis in fact.  In short, she produced sufficient evidence to question whether her statements to the board “were clearly untrue.” 

A jury can consider Hock’s and Plaintiff’s credibility and weigh the evidence accordingly. We cannot.

As for her denial to the Board that she was involved in the decision to recommend her employer’s competitor, the Court found the employer could not prevail on summary judgment because it produced only hearsay evidence to show that the plaintiff had lied.  Instead of producing deposition testimony or an affidavit from the General Counsel refuting his role in the decision and putting that decision on the plaintiff, the employer produced only an affidavit from the plaintiff’s supervisor claiming that this is what he had been told by the General Counsel.  Moreover, “Plaintiff’s sworn testimony that she did not have a role in the retention of MPI is enough to create a genuine issue of fact.”  

Finally, the Court rejected the employer’s reliance on the honest belief doctrine and created a higher threshold for this doctrine when the employee’s misconduct is based on lying and the employer failed to question her about the motive for her misstatements: 

“If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous.” . . .  “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.”

Hock’s investigation into Plaintiff’s two purported lies consisted of speaking with one person, Desmond, about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired Plaintiff for overt misconduct.  . . . .  But Hock fired Plaintiff for lying—not   just uttering a falsehood, but doing so “with intent to deceive.” Webster’s Third New Int’l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind Plaintiff’s statements, let alone her motive. Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply.

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.