Sixth Circuit Finds Female Plaintiff Similarly Situated to Male Co-Workers Who Were Not Fired

Last month, the Sixth Circuit reversed an employer’s summary judgment decision on a sex discrimination lawsuit.  In that case, the plaintiff was the only female Mental Health Technician (out of fourteen) in the defendant psychiatric hospital.  Jackson v. VHS Detroit Receiving Hospital, No. 15-1802 (6^th Cir. 2-23-16).   She was terminated after only outstanding performance evaluations following her first violation of a major disciplinary offense even though two male MHTs were not discharged even though they had violated the same rule and/or a similar major disciplinary offense, and had prior disciplinary records and/or were on last chance agreements.  The Court found that the plaintiff was similarly-situated to both male MHTs despite slight differences in the circumstances and consequences in their violations.  It also rejected the employer’s proffered non-discriminatory reasons that her offense could have resulted in more harm to the patient and that she had that morning received training about the rule that she violated.  The Court also rejected that it was relevant that the decisionmaker was female.

According to the Court’s decision, the plaintiff and other MHTs had received training in the morning about the importance of the nurse and the MHT both checking a patient’s identification band before discharging the patient.   That same afternoon, the plaintiff was instructed by a nurse to discharge a particular patient and she did so without checking the patient’s wrist band because she relied on the nurse and had been busy that morning.  The wrong patient was discharged, having just admitted himself the night before because of suicidal thoughts.  Luckily, the patient readmitted himself a few hours later.   The plaintiff was fired for committing a major infraction that jeopardized the safety of patients or staff even though she had only received positive performance evaluations and no record of disciplinary violations.  She filed suit that she was treated more harshly than male MHTs who committed the same or similar offenses.

One of the comparator MHTs had committed several major disciplinary offenses, been given a final warning and placed on a last chance agreement (whereby he could be terminated for even minor offenses).  Nonetheless, he was not discharged after walking out the wrong patient without first checking the patient’s identification band on the direction of a nurse even though the patient required crutches and he did not give those crutches to the patient upon discharging him.   The manager determined that he had been entitled to rely on the direction of the nurse because he had been busy at the time tending to other patients.  The other comparator had been disciplined for discharging a patient on the instructions of a social worker (instead of a nurse) and admitting a patient without first searching him (and confiscating three knives he had been carrying).  Even though these were similarly serious violations, he has only suspended and placed on a final warning.

The Court found these comparators to be similarly situated to the plaintiff despite slight differences in their infractions.  The Court also rejected the employer’s explanation that the plaintiff’s violation was more egregious because the potential consequences of incorrectly discharging a suicidal patient were not necessarily much more severe than discharging the incorrect patient without his necessary crutches or admitting a patient who was carrying lethal weapons.  Speculation about the potential, likelihood and comparative severity of the various infractions should be left to the jury.   The Court also rejected the employer’s argument that the plaintiff’s infraction was more severe because she had just been trained on that standard the same morning because the same standard had been in place when the comparators also violated the rule.   While the jury could reasonably conclude that the plaintiff had been terminated in order to make an example of her, it could also conclude that she should have been treated more leniently in light of her lengthy tenure and spotless performance record in comparison to the male comparators.

The Court also rejected the employer’s argument that different discipline was warranted for the slightly different offense of failing to search a newly admitted patient because the rule was identically severe in its treatment in the employer’s policies.

Several facts in the record can be used to draw the inference that DRH considered Jackson’s and Little’s infractions substantially identical in terms of severity of potential consequences. That their mistakes were cited as violating the same two major infractions indicates that those mistakes were substantially identical in terms of potential disciplinary consequences: DRH’s discipline policy defines major infractions by the potential for immediate termination. Similarly, that Jackson’s and Little’s mistakes were cited as violations of major infraction “k,” which is defined as “[a]ny action or conduct that endangers or may be detrimental to the well being of a patient, co-worker, physician, contractor or visitor” . . . suggests that DRH considered the potential harm resulting from those mistakes to be similar. Indeed, Leorea Heard provided “[t]he patient getting an improper search” as an example of an “incident that might have put the unit in danger.”

The Court was also influenced by the fact that “[i]n a majority female workplace, the fact that Jackson was the only female out of fourteen MHTs supports her contention that DRH preferred males for that particular position.”  Nonetheless, the Court rejected the employer’s argument that this factor was outweighed by the fact that the decisionmaker was also female and the plaintiff had always received positive performance evaluations because the evaluations might have warranted more leniency and the Supreme Court's decision in 

Oncale does not prohibit any consideration of the fact that the decision-maker was the same sex as the plaintiff. See id. But that case makes clear that a mere conclusory assertion to that effect does not, on its own, render unreasonable an inference of discriminatory intent. We find this maxim especially true here, where the primary inference Jackson attempts to draw from the record is that Crisis Center management preferred males for the position of MHT, perhaps “because they thought females could not physically handle unruly patients.” (Pl.’s Br. At 1.) Jackson’s case is thus largely unaffected by the fact that her managers were female.

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 Enters Judgment for Employee’s Reinstatement Claim Because USERRA Trumps Employer’s Regular Return-to-Work Procedures.

Today, the Sixth Circuit issued an important decision applying USERRA, reversed summary judgment in favor of the employer and entered summary judgment in favor of the plaintiff employee whose re-employment rights had been violated. Petty v. Metropolitan Government of Nashville-Davison County, No. 07-5649 (8/18/08). In that case, the Sixth Circuit faulted the employer for delaying the employee’s reinstatement to his former position beyond two weeks pending completion of the employer’s regular return-to-work process and pending completion of investigations about the plaintiff’s honesty in explaining the reasons for the termination of his military service.

While the plaintiff was serving in Kuwait, he was brought up on charges for violating the Code of Military Justice for conduct unbecoming an officer in having bootleg alcohol in his quarters and sharing the alcohol with an enlisted female soldier. He was eventually permitted to resign from the military in lieu of court martial, returned home on February 1 and sought reinstatement to his former job as a police sergeant on February 28, 2005. His discharge was identified by the military as “under honorable conditions.” Before the police department would reinstate him, however, they required him to undergo its standard return-to-work process to ensure that he was mentally, temperamentally and physically fit to serve as a police officer. This included “a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening, and a debriefing with a Police Department psychologist. In addition, the Police Department requests that returning officers execute a medical records authorization, and for individuals returning from military duty, an authorization to obtain military records.” After the plaintiff was required to explain in writing about any disciplinary charges during his military service, investigations arose as to whether he should be disqualified from police service because of the recommended court martial and because of concerns that the plaintiff had not honestly explained the situation during the return-to-work process.

Although the plaintiff was not rehired until March 21, 2005 – almost a month after he sought reinstatement – he was not reinstated into his former position as a sergeant. Rather, he was given a desk job accepting civilian complaints pending completion of the investigations into his former military service and his honesty during the return-to-work process. Ultimately, the employer determined that the military disciplinary action would not preclude his reinstatement, but it remained concerned about his honesty in disclosing the subject. Thereupon, it was discovered that plaintiff had not submitted a complete copy of his DD-214 form memorializing his honorable discharge. Rather, the copy he had submitted had been so enlarged that the last three sections of the form – one of which indicated that he had resigned in lieu of court martial – had been deleted from the form. As this situation continued, plaintiff requested authorization to resume his off-duty security work, but was denied in light of the investigations into his honesty.

Plaintiff then filed suit alleging that his USERRA rights had been violated. The district court granted summary judgment to the City on the grounds that Plaintiff had been treated the same as other police officers who took leaves of absence and could not prove any unlawful discrimination. The Sixth Circuit reversed and entered judgment in favor of the plaintiff employee:

“For the purposes of this case, USERRA performs four key functions. First, it guarantees returning veterans a right of reemployment after military service. 38 U.S.C. § 4312. Second, it prescribes the position to which such veterans are entitled upon their return. 38 U.S.C. § 4313. Third, it prevents employers from discriminating against returning veterans on account of their military service. 38 U.S.C. § 4311. Fourth, it prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. § 4316.”

The Court found that “upon his return, he was required to request reemployment from Metro within the time frame outlined in § 4312(e) and with the documentation specified by § 4312(f). [In addition], his separation from service must have been under “honorable conditions.” 38 U.S.C. § 4304(2).

The documents which satisfy the documentation requirements of 38 U.S.C. § 4312 are identified in 20 C.F.R. § 1002.123. Among those listed is a form DD-214, which the employee provided when he sought reinstatement. But the employer argued that the employee’s DD-214 was not sufficient under USERRA, because the copy which he submitted admittedly did not include three fields at the bottom of the form — most notably one including the statement “Narrative Reason for Separation: In lieu of trial by courtmartial.” The employer also argued that the DD-214 was “void” because the failure to include all fields constituted an alteration voiding the form.

The Court held that “it would be inconsistent with the goals of USERRA to prevent [the employee] from exercising his right to reemployment because he failed to provide forthrightly information that is statutorily unnecessary to his establishing the right in the first place. First, 20 C.F.R. § 1002.123(a)(2) expressly recognizes that the types of documentation necessary to establish eligibility for reemployment may vary from case to case. The focus of USERRA is on securing rights to returning veterans, not on ensuring that any particular documentation is produced. Second, in compliance with [the employer’s] return-to-work process, [the employee] signed an authorization granting [the employer] unfettered access to all of his medical and military records, including a complete DD-214. Accordingly, we find that [the plaintiff] satisfied USERRA’s documentation requirement, and, inasmuch as [the employer] does not dispute his having satisfied the other statutory prerequisites, it is apparent that he established his right to reemployment as guaranteed by §§ 4312 and 4313. [The employer], therefore, was not permitted to delay or otherwise limit [the plaintiff’s] reemployment rights in any way; in particular, [the employer] was not permitted to limit or delay [the employee’s] reemployment by requiring him to comply with its return-to-work process. Section 4302(b) expressly states that USERRA “supersedes any . . . contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” By applying its return-to-work process to [the plaintiff], [the employer] not only delayed his reemployment, but as we shall explain, it also limited and withheld benefits to which [the employee] was entitled under USERRA.”

“It is of no consequence here that [the employer] believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. [The employer] does not question [the employee’s] physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But [the plaintiff’s] separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits, 38 U.S.C. § 4304(2). To the extent that his military service may have in fact left [the employee] unfit to carry out his duties as a police officer but is not reflected in the classification of his separation from service, USERRA would allow, after his reemployment, a “for cause” termination of that employment. 38 U.S.C. § 4316. Furthermore, Congress recognized USERRA would limit the ability of employers to rescreen returning veterans, but still chose to make this the general rule under USERRA. This is evident because, in certain circumstances, Congress altered this general rule to allow vetting of returning veterans before full rehiring. Section 4315 allows the heads of agencies listed under 5 U.S.C. § 2302(a)(2)(C)(ii) – e.g., FBI, CIA, NSA – to “prescribe procedures for ensuring that the rights under [USERRA] apply to employees of such agency.” 38 U.S.C. § 4315(a). Congress did not grant similar discretion to local police departments; therefore, [the employer’s] return-to-work process as applied to [the plaintiff] was in violation of USERRA’s reemployment provisions.” (emphasis added).

The Court also found that the lower court had erred in endorsing the City’s return-to-work process because they did not discriminate against veterans under USERRA. “First, § 4302(b) does not limit its superseding effect only to “additional prerequisites.” It supersedes any “policy, plan, [or] practice” that “reduces, limits, or eliminates in any manner any right or benefit” provided by USERRA, “including,” but not necessarily limited to, “the establishment of additional prerequisites.” Second, [the employer’s] return-to-work procedures do constitute “additional prerequisites” for returning veterans, because the procedures are in addition to the requirements Congress specified for the exercise of USERRA’s reemployment rights. The district court apparently viewed the term “additional prerequisites” as meaning “additional to the employer’s existing prerequisites,” and concluded that [the employer’s] procedures are not discriminatory because they apply to all individuals returning to the department. But this analysis is not appropriate for a claim brought under § 4312, and the superseding effect of § 4302(b) is not so limited; [the employer’s] return-to-work procedures are indeed superseded by USERRA’s reemployment provisions.

It is important to note that [the plaintiff] was not required to make any showing of discrimination in order to sustain either of his reemployment claims. The district court incorrectly characterized part of [the plaintiff’s] reemployment claim — that part dealing with the position to which he was reinstated — as being part of his discrimination claims and therefore held that it required a showing of discrimination. . . . the Department of Labor specified that “[t]he employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be eligible for reemployment.” 20 C.F.R. § 1002.33 . . . , the imposition of § 4311’s discrimination requirement on a reemployment claim is not consistent with the plain language of §§ 4312 and 4313. Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found [the employee] to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.”

“At the point at which [the employee] was entitled to reemployment under §§ 4312 and 4313, [the employer] had no basis on which to question his qualifications. [the employee] had satisfied the only prerequisites to § 4313 — those specified in § 4312 — and [the employer’s] attempt to impose additional prerequisites through its return-to-work process was, as we have already explained, wholly impermissible.” The employer’s return-to-work process (and the questions about the plaintiff’s honesty which arose during that process) “cannot serve as a basis for delaying or otherwise limiting [the employee’s] right to reemployment.”

The Court found that not only did the employer fail to properly rehire the plaintiff, but it also failed to reinstate him to his former position: “Because of its return-to-work process, [the employer] took three weeks to “rehire” [the employee], and even then it did not place [the employee] in the correct position as outlined in § 4313.” The employer “cannot defeat the “prompt reemployment” guarantee of § 4313 by engaging in never-ending investigations into [the employee’s] qualifications. Indeed, courts have recognized that: It is presumed under the law that a veteran, who was qualified for his employment status upon its termination by his entry into the active military service of the United States, remains qualified to claim reemployment upon his discharge from such active military service. . . . An employer who refuses to reemploy a discharged veteran who has timely applied for reemployment has the burden of proving the veteran's disqualification for reemployment.” Because the employer failed to meet that burden, the Court ordered the trial court to enter judgment in favor of the employee on his claims that the City failed to properly reinstate him to his former position as a police sergeant within two weeks of his seeking reinstatement.

Finally, the Court held that the plaintiff’s complaint about not being authorized for off-duty security work could not be brought as a reinstatement claim, but rather should be analyzed as a discrimination claim. At that point, the court analyzed whether the plaintiff’s military service was a motivating factor for the denial of his request to perform off-duty security work. Because the trial court failed to conduct the proper analysis, the Court remanded that claim to the court for reconsideration.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0302p-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.