Earlier this month, the Sixth Circuit Court of Appeals affirmed
summary judgments for two employers against employees who requested or took a
medical leave of absence. Both cases also rejected "stray remarks" as evidence of discrimination. In Bailey v.
Oakwood Healthcare, Inc., No. 17-2158 (6th Cir. 4-23-18), the
Court found that resume fraud by a relatively new senior human resources
professional justified her immediate termination on her first day back to work
from maternity leave. The fraud had been
discovered when her manager discovered a number of significant performance
errors during her leave which caused her to examine her resume more
closely. The court rejected arguments
that events seven months earlier could have motivated the employer over more
recent events. Also, it was irrelevant
if the employer had determined to discharge her before meeting with her and
confronting her in the termination meeting. In Tillotson
v. Manitowoc Co., No. 17-1640 (6th
Cir. 4-4-18), the plaintiff objected to the employer’s reliance on a
nine-factor rubric in selecting him for termination during a RIF because
several of the factors were based on subjective criteria, such as his future
potential. The Court found that there is
nothing inherently unlawful in utilizing some subjective criteria and the
plaintiff failed to conduct any discovery so as to introduce any substantive
evidence showing that the criteria were inaccurate or rigged against him. Further, because the plaintiff had not
actually required medical leave or even a reduced work schedule or reasonable
accommodation and had not asserted an ADA claim, evidence about negative
remarks made about his medical condition were essentially irrelevant to show his
termination in a RIF was a pretext for unlawful discrimination or retaliation.
In Bailey, the
plaintiff human resources employee had been fired eight months after being
hired on her first day back from maternity leave. While
her duties were being handled by her supervisor during her maternity leave, her
supervisor discovered several material mistakes, and this caused her to
question the plaintiff’s basic competence and re-examine her resume and job
application. In doing so, the manager
discovered that the plaintiff had applied for a similar job with the employer a
few years earlier and that the dates of employment, among other things, on her
resumes did not match. Instead, the
plaintiff had falsified and exaggerated her experience and qualifications on
her latter resume. When confronted, the plaintiff
could not deny the falsifications, but preferred to describe them as “embellishments.” Although she argued that these “embellishments”
were insufficient to justify immediate termination of her employment, the trial
court found that they would be a sufficient reason to terminate a senior human
resources professional. It also
rejected her argument that she should have received progressive counseling
before being hired for resume fraud.
As for the performance deficiencies, the manager had
assembled 28 pages of email messages and a list of 12 other mistakes, in addition
to problems with chronic tardiness. The Court
rejected the plaintiff’s over-reliance on her positive probationary period
performance evaluation because it had noted her need to pay more attention to
details, it gave her an overall rating of just “competent” and she had conceded
some of her performance mistakes. While
it tended to agree that many of the issues should have been handled with
progressive discipline, it could not ignore that the resume fraud, by itself,
was sufficient grounds for immediate termination of a senior HR professional.
The Court also rejected the plaintiff’s argument that the
decision to terminate her employment had been made before she was informed of
the issues and given a chance to respond. “Speculation as to when, precisely,
Oakwood, through its decision makers, formulated the resolve to terminate
Bailey’s employment is of little consequence.”
Regardless of the wisdom of the criticism of her job
performance, the court concluded that the plaintiff could not show that age or
race were the actual reason for her termination because the termination
decision had been made by the same people who hired her just 8 months earlier
when she was the same age and race.
While the plaintiff’s pregnancy discrimination claims were
stronger, they were still rejected. She
argued that she suffered pregnancy discrimination because she had been fired
seven months after revealing her pregnancy, had been required to report to work
a half-hour earlier after she announced her pregnancy, her supervisor had questioned
the wisdom of her having a baby at her age, she had been given more work to do
after her pregnancy announcement and she was assigned more work than her
peers. The Court rejected each of these
arguments. If an adverse action taken two
months or even two weeks after a pregnancy announcement were found to be too remote
to create, by itself, an inference of discrimination, then a delay of seven
months (and three months after the pregnancy itself) were too long to support a
causation argument. “It is well established that temporal proximity alone is
insufficient to support an inference of retaliation.” While her work time had changed and she was
criticized for chronic tardiness, the
same criticism existed when she was chronically tardy with a latter starting
time. Her statistics concerning
workloads was not supported by credible evidence and her extra work assignments
followed her own invitation to take on more work. Lastly, her manager’s comment was found to be
merely insensitive instead of reflecting an unlawful bias.
Finally, her retaliation claim was ultimately rejected because
she could not show that the reasons for her termination were pretextual. She alleged that she had a verbal
disagreement with her African-American manager about the hiring of
African-American applicants before her maternity leave. In her deposition, she admitted that some of
these applicants had flaws (such as recent criminal records) that disqualified
them from employment. Her subjective
belief that her manager was biased was insufficient to overcome her lack of
evidence to show that the reasons for her termination – poor work performance
and resume fraud – more than seven months after the verbal disagreement were the
actual reasons for her termination. “Such an intervening legitimate reason for
discipline tends to defeat any inference of retaliation based on the proximity
of the discipline to an earlier event.”
In Tillotson, the
plaintiff challenged his termination during a reduction in force as retaliatory
under the FMLA and state age discrimination laws. He suffered from what his physician
described as IBS and could not travel more than two consecutive hours. While he had requested time off work, his
physician did not certify that this was necessary. Further, his job did not need to be
restructured at that time because all of his sales territory was already within
two hours. When the VP of Sales,
however, heard about the restriction, he stated that the company could not have
a “sales guy” who could not travel.
Later, that VP was responsible for selecting which of his four
salespeople would be terminated in the reduction in force. Relaying on a nine-factor “rubric” that had
been assembled during an earlier annual performance evaluation process, the VP
selected the plaintiff for termination because he was the lowest rated of the
four.
The plaintiff objected to the company’s reliance on the
rubric because some of the factors were subjective, such as who was rated
higher for future potential. However,
the plaintiff conducted no discovery on the issue and did not submit any
evidence that the rubric or subjective evaluations were inaccurate or even
unfair.
The company needed some criteria to determine which of the
four product sales managers at Delfield would be terminated, and Tillotson
presents no basis for a juror to conclude that the 9-Box was altered, misused,
or erroneously or unfairly filled in after the company became aware of
Tillotson’s FMLA leave request.
. . . . We have
recognized the need to scrutinize evaluations that utilize subjective criteria
because of “the problems inherent in selection procedures which rely solely
upon . . . subjective evaluations,” . .
. but “a plaintiff can not ultimately prove discrimination merely because
his/her employer relied upon highly subjective qualities (i.e. ‘drive’ or
‘enthusiasm’) in making an employment decision,” . . . First, the company did not rely solely on
subjective criteria. Willoughby
testified that objective metrics such as “monthly sales targets and feedback
from customers and reps” were employed to evaluate a product sales manager’s
“performance rating” in the 9-Box rubric, and Wilczak testified that performance
scores were based largely on objective sales reports. More importantly, however, to the extent the
9-Box utilized subjective criteria to evaluate product sales managers’ “future potential,”
Tillotson has offered no evidence from which a reasonable juror could infer
that the company manipulated, abused, or misapplied that criteria to affect
Tillotson’s ranking.
The plaintiff had incorrectly argued that the rubric had
been created for the RIF decision (and, thus, had been impliedly rigged against
him), but the uncontested evidence was that the rubric was completed well
before the RIF had even been contemplated, and thus, could not have been “rigged”
to cause his termination. There was no
evidence introduced that the rubric had been created or completed after he
exercised his FMLA rights, so no speculative inference could be implied against
the employer on that count.
Further, the employer was not required to prove at the
pretext stage the basis for its ratings, such as the plaintiff’s “medium” rating
for potential. “’The defendant need not persuade the court that it was actually
motivated by the proffered reasons. It
is sufficient if the defendant’s evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff.’” Instead, it is the plaintiff’s
burden to prove discrimination. The plaintiff could have conducted discovery
on these issues, but he failed to do so.
As for the comments by the VP and an HR employee about his
medical restrictions on travel, the Court concluded that they were not evidence
of FMLA retaliation because the plaintiff never required a leave of absence, or
even a reduced work schedule, under the FMLA.
He did not even request an ADA accommodation or initiate an ADA claim in
this litigation. His travel schedule
never required any modification either. That both the ADA and FMLA related to
employee medical conditions does not make comments about medical restrictions
probative of both types of claims:
Tillotson’s request for travel accommodations is not
protected conduct under the FMLA because “the FMLA does not appear to have a freestanding
reasonable-accommodations provision,” .
. . .and “the leave provisions of the [FMLA] are wholly distinct from the reasonable
accommodations obligations of employers covered under the [ADA],”
Because the negative comments about his medical restrictions
were not related to any FMLA leave that he took and he failed to purse an ADA
claim, those comments were insufficient to prove that he was retaliated against
under the FMLA so as to prevent summary judgment.
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.
