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

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

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

 

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

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

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

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

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

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

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

On Friday, the Sixth Circuit affirmed a trial court’s decision to award the prevailing plaintiff in a sexual harassment lawsuit the maximum amount under federal law ($300K) and to award to her attorney almost the full amount he requested as attorney fees ($684,506.25) even though the employer won the first trial in 2009 and all but one of the plaintiff’s initial claims were dismissed or withdrawn.  Waldo v. Consumers Energy Co., No. 12-1518 (6^th Cir. 8-9-13).  A unanimous Court agreed that she had proven her hostile work environment claim (based on events between 2001 and 2005) and rejected the employer’s technical defenses. The second jury had awarded her $7,900,000, but that amount was reduced because of Title VII’s statutory cap.  However, Court divided on the propriety of her attorney fees (which the employer had been ordered to pay).  The majority agreed that her attorney earned his fees, and that they should not be reduced to reflect that the first jury ruled in favor of the defendant, that virtually all of her claims had failed and that she had recovered only $300K because all of the claims arose around a common core of facts.  The dissent explained that the plaintiff’s attorneys “were the true winners. This is good work if you can get it.” 

The plaintiff’s allegations  -- which were largely corroborated, uncontradicted and/or conceded at trial – was that she had been subjected to a hostile work environment by her co-workers between 2001 and April 2005.  (Among other things, and as detailed in the Court’s opinion, they called her foul names, locked her in a porta-potty, and otherwise ostracized her).  She repeatedly complained to her supervisor and human resources, but no investigation was conducted, no disciplinary actions were issued and the employer’s diversity training did not cover name-calling.  Her supervisor never repeated her allegations to upper management or human resources.  The employer defended that there had been no illegal events in the 300 days before she filed her EEOC Charge and that some of the misconduct had not been specifically related to her gender.  The plaintiff also alleged retaliation when she was removed from a training program in June 2005 for making mistakes during a snap inspection in April.  The first jury rendered a verdict in favor of the employer, but the plaintiff was granted a new trial on only the hostile work environment claim and the second jury awarded her $7,900,000.

The Court rejected the employer’s argument that the harassment was not gender-based because some of the incidents were not sexual in nature (i.e., not sexual advances, physical contact or touching):   

This argument fails, because it construes too narrowly the types of conduct that can contribute to a work environment permeated with sexual harassment. We have held that “non-sexual conduct may be illegally sex-based where it evinces anti-female animus, and therefore could be found to have contributed significantly to the hostile environment.”

Moreover, a jury is to consider “the totality” of the facts and circumstances, so that evidence of the non-sexual incidents can be considered along with the evidence of the sexually-based incidents to “provide a basis for inferring that even the facially neutral incidents were based on [the plaintiff’s] gender.”   

The employer’s “failure to respond to known complaints demonstrated that [it] tolerated or condoned the harassing behavior, or, at the very least, that the company failed to take appropriate remedial action.” 

The employer attempted to exclude evidence of all incidents that took place more than 300 days before she filed her EEOC Charge and argued that she failed to identify any sexually harassing incidents within the 300-day limitations period.  The Court disagreed.  The Supreme Court has held that a hostile work environment that violates Title VII “occurs over a series of days or perhaps years . . . . Such claims are based on the cumulative effect of individual acts.”  Therefore, the jury could consider evidence of several years’ worth of harassing incidents as long as one of the incidents took place within the 300-day period. 

In addition, the Court found that she had identified sufficiently harassing incidents within the 300 days before she filed her EEOC Charge.  In particular, there was evidence that her co-workers continued to ostracize and isolate her within the relevant 300-day period: 

It was not an abuse of discretion for the district court to find that the clear weight of the evidence demonstrated ongoing isolation and an atmosphere of hostility towards Waldo, and that this atmosphere continued into 2005, when Waldo participated in the Step IV class. There was testimony from both Waldo and Cutts that Waldo’s coworkers ignored her and refused to speak with her during her Step IV class in 2005.  . . . Barnes, one of Waldo’s instructors in 2005, further corroborated this testimony when he stated that he reprimanded one of Waldo’s coworkers for making comments that he did not want to work with women and that women were not strong enough to do the job. . . . This type of conduct—ignoring and ostracizing a coworker—if motivated by gender-based animus, can be a form of gender-based harassment that contributes to a hostile work environment. . . . Because there was strong evidence that Waldo continued to face hostility and isolation in April 2005, the district court acted within its discretion by finding that the clear weight of the evidence demonstrated that at least one incident of harassing behavior contributing to the hostile environment occurred after March 12, 2005. Thus all of the relevant harassment could be considered.

The Court divided on the issue of requiring the employer to pay her attorney fees.  Prevailing civil rights plaintiffs are entitled to an award of attorney fees, but the amount of those fees is within the discretion of the court.  The plaintiff’s lead attorney fees were calculated at $400/hour as the “reasonable hourly rate” based on the court’s assessment of  the “prevailing market rate in the relevant community’”   The majority explained that 

the prevailing market rate is “that rate which  lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Id. A district court is permitted to “rely on a party’s submissions, awards in analogous cases, state bar association  guidelines, and its own knowledge and experience in handling similar fee requests.”

“The district court considered appropriate factors in its analysis, and its determination of a reasonable hourly rate is not outside the range of reported rates for highly experienced attorneys in the area.”

 

The majority also concluded that the fee request should not be reduced based on the number of claims which were reduced.   The most critical factor is the “degree of success obtained.” 

 In cases when “a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.”  Id. at 435. Accordingly, we have explained that “a reduction in attorney fees [awarded to a prevailing plaintiff] is to be applied only in rare and exceptional cases where specific evidence in the record requires it.”  . . . Specifically, a court should not measure a plaintiff’s success simply by using a ratio of successful claims to claims raised. . . . This is because when several claims arise from a common core of facts, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.”

The majority also concluded that the plaintiff’s attorney had deserved the greater fee because  -- acting as a private attorney general – he proved the case; the second jury awarded her $7,900,000 and the amount was only reduced as required by statute.

Although the dissent insinuates that the attorney fee award was unreasonable because it was slightly more than twice as much as the damages award to Waldo, see Dissent at 30, 32, “[i]n the civil rights area, there is no requirement that the amount of an award of attorneys’ fees be proportional to the amount of the underlying award of damages.”  . . .  In City of Riverside, the Supreme Court upheld an attorney fee award that was more than seven times greater than the damages awarded to plaintiffs. We similarly have affirmed an attorney fee award that was more than five times the damages awarded to a plaintiff in a civil rights case, stating that “the value of the rights vindicated goes beyond the actual monetary award, and the amount of the actual award is not controlling.” McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990). As the Supreme Court explained in City of Riverside: “Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. . . . In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.” 477 U.S. at 576, 578. Notwithstanding the dissent’s apparent displeasure with Congress’s chosen policy, our precedents establish that an attorney fee award in a civil rights case is not unreasonable merely because it is greater than the damages awarded to the plaintiff.

Finally, the majority refused to discount the fees for the first trial, where the jury ruled in favor of the employer on all claims.  ““[T]he question of whether a party ‘prevailed’ and whether a fee award is ‘reasonable’ is not one to parse too thinly . . . [based on] the number of trials required to reach a result.” 

The dissent objected to the reduction of only $1,000 of the requested attorney fees, “including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.” 

But the acceptance of these points in the aggregate here gives trial court discretion a bad name. I know of no case in which an appellate court upheld all fees for the first (losing) trial when the only reason for the second trial was the trial court’s granting of a new trial under Civil Rule 59(a)(1)(A), which is to say that the verdict was merely against the weight of the evidence, which is to say that the evidence would havepermitted a defense verdict to stand. See White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). There was nothing unfair about the first trial. Defense counsel did nothing wrong. The trial court did nothing wrong. And the jury did nothing wrong, as the evidence would have permitted a defense verdict to stand. All that happened was that the trial judge disagreed with the jury. If anyone did anything wrong, it was plaintiff’s counsel in failing to convince the jury to rule his way in the initial trial. No reduction, any reduction, for all of the work on the first trial? That is a heavy lift. Where, moreover, would this end? Would a second lost jury verdict and a second successful Civil Rule 59 motion for a second do-over permit fees as well? Some reduction was in order.  

. . . .  

I am prepared to hold my nose in upholding a lot of fee awards, whether they seem too small or too large at the time. But a blanket fee award of $684,506 for losing six of seven claims, including for all of the work in losing the first jury trial, is not one of them.

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 Reverses Employer’s Summary Judgment on Racial Hostile Workplace Claim Brought by Pro Se Plaintiff

Yesterday, the Sixth Circuit reversed a Franklin County employer’s summary judgment on a racially hostile workplace claim brought by a pro se plaintiff.   Paassawe v. Action Group, Inc., No. 12-3701 (6^th Cir. 7-17-13).  In this case, the plaintiff alleged, among other things, that he was subjected to verbal taunts and threats by his co-workers and discrimination on account of his race and support of President Obama during the 2008 election.   He claimed he was fired after missing work for a week following a workplace injury.   The Court ruled that the comments made to plaintiff about his support for Obama were not merely politically based, but the evidence also showed the comments were racially motivated because plaintiff was repeatedly referred to as “boy” and he was threatened.  He also showed that the conduct was sufficiently severe and pervasive, particularly when he showed that his complaints about his co-workers comments were not adequately addressed by management.  The Court also found that he adequately proved possible retaliation based on his complaints of harassment and unequal application of the company’s political paraphernalia policy.

According to the Court’s opinion, the company prohibited political paraphernalia in the workplace, but distributed McCain literature and paraphernalia.  By itself, this would not show race discrimination.    However, evidence that management asked him about his “true identity” and how he could afford to drive his nice car on his low wages, called the plaintiff “boy” and threatened him when he complained about the unequal application of the political paraphernalia policy could support a claim for racial discrimination.    The Court also found sufficient proof of retaliation based on differing accounts of the circumstances of his termination, the threatening comments from management about his job, and that he was fired within three months of raising complaints about the racial discrimination and harassment.

After checking the Franklin County and Southern District dockets, I can tell you this is not the plaintiff’s first  pro se rodeo.  After a few other lawsuits against other entities, he also sought and obtained unemployment compensation from this same employer and, with an attorney, pursued a claim for workers’ compensation.    

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County 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.

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

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

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.

This morning, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of a hospitality industry employer on a sexual harassment claim when the employer properly investigated and terminated the employee. Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, No. 09-3017 (11/10/09). Retired Justice Sandra Day O’Connor was part of the panel which issued the decision. The plaintiff was a long-time waitress who was found to have violated many cash-handling procedures over a period of time, including rules against increasing the amount of her tip on a customer’s credit card payment. After she was fired, she alleged that, among other things, she had been subjected to a hostile work environment and treated differently on account of her age and sex.

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.

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.