Wednesday, October 16, 2013
Sixth Circuit Rejects Retaliation Claim When Plaintiffs Were About to Be Terminated Before Raising Harassment Claim
Monday, August 12, 2013
Unanimous Sixth Circuit Affirms $300K Sexually Hostile Work Environment Judgment, But Divides in Affirming Order for Employer to Pay Over $600K in Plaintiff’s Legal Fees
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.
Thursday, July 18, 2013
Sixth Circuit Reverses Employer’s Summary Judgment on Racial Hostile Workplace Claim Brought by Pro Se Plaintiff
Wednesday, August 15, 2012
Franklin County Court of Appeals Finds Possible Hostile Work Environment Drove Plaintiff From Workplace, But Denies Disability Wrongful Discharge Claim Based on Subsequent Medical Leave of Absence
Yesterday, the Franklin County Court of Appeals reversed an employer’s summary judgment on a sexual harassment claim, but affirmed dismissal of the wrongful discharge claim. Camp v. Star Leasing Co., 2012-Ohio-3650. In that case, the plaintiff presented sufficient evidence that her male boss regularly demeaned her, but was not similarly hostile to male employees. Only one of his comments was sex-specific and none of it was related to any arguable sexual attraction. The Court also rejected the employer’s affirmative defense. However, the Court upheld her termination after she requested four additional months of medical leave for depression and anxiety following the completion of her FMLA leave on the grounds that her episodic flare-up of mental symptoms did not qualify as a disability or entitle her to additional leave as a reasonable accommodation.
The Court’s opinion contained a number examples of the condescending and degrading treatment which the plaintiff alleged she endured over a five-year period. One of them was described:
[He] treated her in a degrading and humiliating manner throughout the time he acted as her supervisor. [She] testified to multiple examples of this treatment. First, [she] stated that [he] required her to stop whatever she was doing, turn her chair around to face him, put her hands in her lap, and look him in the eye whenever he spoke to her. One time, when [she] did not respond fast enough to [his] presence, [he] twirled her chair around and yelled, "I want eye contact. I want eye contact. Right here. Right here. Look me in the eyes." . . . . While yelling, [he] pointed at [her] face and then at his eyes. [He] did not require male employees to stop what they were doing, put their hands in their laps, and look him in the eye when he spoke with them.
He allegedly also used offensive language when he spoke with her, unlike the male employees. He would only meet with male sales representatives, but not female ones (although he would occasionally make comments about being sexually attracted to them). He permitted male employees to bring Playboy magazines to work, where she would be required to see them.
The plaintiff complained to upper management that she felt discriminated against on account of her sex, but no formal investigation was ever conducted. After a number of years, the plaintiff’s mental health suffered and she took a leave of absence upon her doctor’s advice. After exhausting her FMLA leave, she requested four additional months, but was denied and terminated on account of the nature of her position and inability to temporarily replace her. The trial court granted summary judgment to the employer on all of her claims.
The Court of Appeals found that she had provided enough evidence (from her own experience and that of other female employees) to demonstrate a hostile work environment. She experienced the hostile conduct on daily basis, making it sufficiently pervasive. While the employer attempted to defend her manager on the grounds that he was equally rude to everyone, her denial of ever seeing him similarly denigrate male employees was sufficient to create an issue of fact for the jury to resolve. She was able to show that it affected her ability to work in making her increasingly anxious and depressed, finally requiring significant medical treatment.
The employer attempted to argue that it was entitled to an affirmative defense because she failed to sufficiently utilized internal procedures concerning workplace harassment. It first argued that she could not show that she suffered a material job action in that she had always received raises and favorable performance evaluations. However, the Court pointed out that she was not required to prove the existence of a tangible job action to recover for a hostile work environment; that was an element of the employer’s affirmative defense. Moreover, the plaintiff had utilized the employer’s policy and complained about discriminatory treatment. While she did not utilized the word “harassment,” she sufficiently described his demeaning treatment of her. The employer did not conduct any investigation and concluded based on cursory inquiries that she simply had a personality conflict with her boss. When the employer argued that she had failed to submit any written complaints about her boss, the Court pointed out that the employer’s policy did not contain any such requirement.
Finally, the Court affirmed dismissal of her wrongful discharge claim. She claimed that she was fired on account of her mental disability when the employer refused to provide an accommodation of four months of additional medical leave. The Court determined that a four month episode of depression and anxiety was insufficiently severe or enduring to substantially limit a major life activity or constitute a disability. Therefore, she was not entitled to any reasonable accommodation or additional leave of absence following the conclusion of her FMLA leave.
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.
Wednesday, March 7, 2012
Sixth Circuit: No Hostile Work Environment When Plaintiff Cannot Recall Specific Words or Frequency
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.
Tuesday, November 10, 2009
Sixth Circuit: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.
According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”
A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”
During the termination meeting, [plaintiff] made general complaints regarding the way that [her supervisor] had administered the staff, but she made no complaints of sex- or age-based discrimination or harassment. Following her termination, Hyatt continued auditing [her] receipts for five dates in April 2007, revealing additional discrepancies. Because [she] had alleged during her termination meeting that [her supervisor] was attempting to get her fired and that he had papered her file and/or stolen the supporting documentation that she needed to explain the discrepancies, Hyatt conducted an audit of [her] transactions during a two week period prior to [his] employment at Hyatt. That audit revealed similar cash-handling problems. Hyatt also conducted an audit of all the checks closed out by the servers on April 25, May 1 through 4, and May 8, 2007, and found that none of them had discrepancies or cash-handling violations similar to [her] discrepancies.
Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.
The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”
She also could not show that others were treated more favorably because their alleged violations were not the same.
She claims that the younger employees’ practice of marrying alcohol and their admitted but unproven failure to turn in receipts were sufficiently serious to merit comparison to the disciplinary violation that led to her termination—the cash-handling-policy violation and misappropriation of funds. . . . This is not the case. Marrying alcohol may be a violation of Ohio law, but [she] never engaged in the practice and was never disciplined for not participating. The fact that [she] was terminated for engaging in an illegal practice does not automatically make marrying alcohol and [her] infraction comparable. Misappropriation of funds and marrying alcohol are different circumstances involving distinguishable conduct.
Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.
The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:
(1) The Director of Sexual “once invited [her] to lie down in his room;”
(2) The Security Director once told [her] that she was attractive;”
(3) The Director Security “once hit [her] on the buttocks and “untied [her] apron, which was tied in the back;”
(4) Her supervisor “once commented that he had a large penis;”
(5) Her supervisor “once told [her] that he had sex with one of her customers, [her] to provide a free meal to that customer, and then “put his hands . . . against the wall and dry humped it or did a pelvic thrust against it,” stating “I did her, I did her,”;
(6) Her supervisor “had once asked a female line cook to do the “boobie dance,” which involved putting the cook’s “hands underneath her chest” and moving them “up and down” and shaking “her hips;”
(7) Her supervisor “repeatedly bragged to [her] about the day that he had sexual intercourse with a fellow Hyatt server and [her] female co-worker at the Hyatt;”
(8) Her supervisor “repeatedly talked to [her] ‘about a sexual relationship he had with a former co-worker, how that co-worker was pregnant, how [he] needed to mail that pregnant woman a check so that the woman can pay for an abortion,” and how he wanted [plaintiff] to put [his] check in the mail.”
In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”
The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”
Although her post-deposition affidavit states that she complained to Hyatt management verbally over thirty times, [her] deposition testimony indicates that she never complained to anyone concerning [her supervisor’s] harassment and discriminatory conduct other than to [her supervisor] himself. Her deposition testimony further establishes that she never complained to anyone about [the Security Director’s] conduct. [Plaintiff] failed to make these complaints notwithstanding that she testified that she was aware of the open-door policy, the complaint procedure, and the fact that if her immediate supervisor failed to act on her complaint she could go elsewhere. [She] clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.
Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:
a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.
In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-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.
Wednesday, October 17, 2007
Age Discrimination Can Be a Sloppy Business
On October 15, 2007, the Sixth Circuit reversed a summary judgment which had been entered in favor of an employer in an age discrimination case and began its opinion as follows:
"When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can."
In Blair v. Henry Filters, Inc., No. 05-2437, the court returned the case to the district court for trial. The employer lost on appeal even though it showed that it had laid off two under-40 employees at the same time as plaintiff (and had reduced its workforce from 143 employees to just 52 employees in only two years) and the employer's witnesses denied the plaintiff’s version of events and that the decisionmaker was the same person making the ageist comments alleged by the plaintiff. However, courts are not permitted to weigh credibility at the summary judgment stage.
The appellate court noted that the comment about the plaintiff being “too old” to be handling the employer’s Ford account was direct evidence of his removal from the Ford account on account of his age, but was not direct evidence that he was terminated on account of his age. However, the cumulative effect of the comments and the fact that a twenty-year old salesperson was hired in some capacity four months later were enough to create a circumstantial case of age discrimination. The court also noted that plaintiffs in a RIF case had a lower burden of proof than in the typical discrimination case:
"We recognize that this holding comes close to permitting a plaintiff in a reduction-in-force case to get to a jury merely by creating a genuine issue of material fact regarding the prima facie case. But to create a genuine issue of material fact regarding the employer’s actual motivation, a plaintiff must still provide evidence from which a reasonable jury could conclude that an illegal motivation was more likely the reason for the adverse employment action. To create a genuine issue of material fact regarding the prima facie case in a case involving a reduction-in-force, a plaintiff’s standard is lower. The plaintiff must supply evidence tending to indicate that the employer singled the plaintiff out for impermissible reasons. Accordingly, creating a genuine issue of material fact regarding the prima facie case is not a free pass to a jury, even in a reduction-in-force case."
The employer could take some solace in the fact that the appellate court affirmed the dismissal of the plaintiff's hostile work enviornment claims on the grounds that the same discriminatory comments which created the circumstantial evidence of age discrimination were insufficient to interfere with his job performance.
Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/052437p.pdf.