Franklin County Appeals Court Affirms Employer’s Summary Judgment on Sex, Race, Harassment and FMLA Retaliation Claims

Last month, the Franklin County Appeals Court affirmed an employer’s summary judgment on FMLA retaliation and sex and race discrimination allegations following the plaintiff’s demotion. Fields-Arnold v. Cent. State Univ. Bd. of Trustees, 2026-Ohio-826. The Court found that the plaintiff waived certain arguments about direct evidence, race discrimination and hostile work environment by failing to provide any substantive argument before the trial or appeals courts.  The plaintiff also failed to show replacement outside the protected class or to show that the employer’s explanation for her demotion was pretextual, dooming her sex discrimination and FMLA retaliation claims.  While she was not given a specific reason at the time of her demotion, she admitted that her job performance had previously been criticized and she failed to dispute the reasons given in the employer’s summary judgment motion.

According to the Court’s opinion, the plaintiff was encouraged by the university president to apply for a certain promotion, which she eventually received.  However, in their first post-promotion meeting, their relationship soured when she requested a higher salary than offered.  Although she prevailed in receiving a $5K increase, the president allegedly said that she talked too much and reminded him of his wife.   He later criticized her performance in a few meetings and she was demoted back to her prior position a few months later.  In the meantime, she had applied for and, after submitting additional documentation, FMLA leave. She was replaced by a white female and resigned the following year after filing this lawsuit.   The court of claims granted summary judgment on all claims to the employer.

The Court found that she had abandoned her race discrimination claim by failing to make any substantive arguments in her appellate brief when challenging the trial court’s rejection of this claim for failing to show pretext.  Indeed, she apparently only used the word “race” three times in her entire brief.  
Similarly, it rejected any claims of direct evidence of sex discrimination because she never raised this argument in opposing the summary judgment brief at the trial court level.  Moreover, the three alleged comments were not directly related to the issue of her demotion, and thus, were not direct evidence since it still required an inference as to the speaker’s intent. 

[His] comments, while disrespectful and perhaps based on stereotypes, do not satisfy the requirements to constitute direct evidence of discrimination. “ ‘Direct evidence is proof which speaks directly to the issue, requiring no support by other evidence.’ ”  . . .  It “ ‘does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.’ ”

In addition, she failed to identify anyone outside her protected age or sex class who was similarly situated, failed to meet the employer’s performance expectations and was treated better than her. 

The Court also rejected her appeal dismissing her hostile work environment when the trial court found that three alleged comments over a four month period were insufficiently pervasive or hostile.   As with her direct evidence argument, she failed to even mention “hostile work environment” when opposing the employer’s summary judgment motion at the trial court. 

As for her FMLA retaliation claim, the trial court had found that it failed because she received all of the FMLA leave she requested and her demotion did not deter her from seeking additional FMLA leave.  The Court’s majority reversed that determination, but found she still could not prevail because she failed to present evidence showing that the university’s dissatisfaction with her performance was pretext for retaliation. She admitted that the university president had criticized her performance to her face several times and did not try to show that those and other criticisms lacked a factual basis or were insufficient to motivate her demotion, etc.   Therefore, the fact that she was not told at the time of her demotion the specific performance reasons for it, she had previously been informed about dissatisfaction with her performance and failed to show those and other criticisms were pretextual.

Even if an employer approves an employee’s FMLA requests, the employer could still go on to impose an adverse employment action against the employee for exercising her rights under the FMLA. . . .  And that is exactly what [plaintiff] alleged in her complaint—that she was demoted because she took FMLA leave. We find the court of claims erred in concluding [she] “failed to identify an adverse employment action that was taken against her because she used FMLA leave.”

. . . .

Although [Plaintiff] did not receive specific examples of her unsatisfactory performance at or around the time of the demotion  . . . , she was aware of Dr. Thomas’s dissatisfaction before the demotion occurred. In her deposition, [she]recounted two meetings where [he] criticized her performance. . . .

While [her] deposition testimony reflects her general belief that she satisfied the job duties as listed in the job description  . . . , she did not contest the specific assertions [he] made about her purportedly unsatisfactory work. 

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 Upholds Termination for Time Card Fraud Despite Cat's Paw Theory or Suspicious Timing

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment for terminating an employee for time-card fraud despite his arguments about failure to accommodate, retaliation and a cat’s paw theory that was remarkably similar to an earlier decision in   Gray v. State Farm Mutual Auto. Ins. Co., 159 F.4th 1024 (6^th Cir. 2025) (finding possible selective enforcement of time card fraud policy in cat’s paw retaliation case).   Shears v. FirstEnergy Corp., No. 24-3915 (6^th Cir. 1/5/26).  The Shears Court rejected the plaintiff’s assertion for the first time on appeal that his misconduct was caused by brain fog from his known disability and should have been accommodated.  The Court rejected all retaliation claims, regardless of the suspicious timing, because there was insufficient evidence of pretext, such as comparators receiving better treatment, knowledge by the initiating manager of prior protected activity or deviation from policy, etc.  The employer also conducted several reasonable investigations, entitling it to the honest belief defense.   Unlike the Gray case, there was apparently insufficient evidence presented to the trial court about selective investigation of time card fraud.

According to the Court’s decision, Plaintiff was diagnosed with Type 2 diabetes in 2012 and had been granted an accommodation to work only days from 2012 to March 2019. In  January 2019, he  assisted co-workers with sexual harassment complaints against his manager.  There was no evidence that the manager was aware of this.  During a work emergency, his manager assigned him to work nights again despite his complaints until he mentioned his diabetes and was requested to provide medical documentation.  He did in April and was immediately returned to day shift.  Afterwards, his manager investigated and discovered time card discrepancies ranging from 36-106 minutes during March 2019.  These were investigated and confirmed by his director, HR and a separate safety committee.  Plaintiff was interviewed several times and apparently never claimed retaliation or different scrutiny. He was fired in May 2019.   

The trial court granted summary judgment to the employer.  Employer was granted summary judgment.  The employer articulated a legitimate basis to terminate him for time card fraud, and the plaintiff never disputed that he had had not entered the plant at times he had reported being at work. The employer was also entitled to the honest belief defense because it had conducted several reasonable investigations to confirm the facts and given him the opportunity to respond. 

The courts rejected his reasonable accommodation claims.  First, he had failed to show any unreasonable delay in March when the employer was entitled to medical documentation and immediately provided his requested accommodation once he produced it and abandoned this theory on appeal.  It also rejected his new argument that his discrepancies were caused by brain fog from his known diabetes because “a failure-to-accommodate claim requires proof that the employer denied a reasonable accommodation—not that it disciplined or discharged an employee whose disability allegedly contributed to the underlying conduct.”  It found that he failed to prove this theory and found his cited cases distinguishable.  What the Court did not note is that the EEOC Guidance from 2008 had previously provided that an employer is not required to accommodate misconduct caused by a disability unless the employee had put the employer on notice of the need for an accommodation of that issue: 

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer   . . . tolerate or excuse the poor performance; . . . withhold disciplinary action (including termination) warranted by the poor performance . . . .

The Court also rejected the ADA retaliation because he could not show pretext when admitting the time card discrepancies and without similarly situated comparators who were treated better.  His excuses for his actions did not dispute the action and the employer not required to believe his “honest mistake” defense.   He might have prima facie case from the timing of his termination compared to his request to return to the day shift, but he lacked evidence of pretext to rebut the intervening causation factor of his time card fraud.

The Court also rejected his Cat’s Paw Theory because there was apparently no evidence that his manager was aware about his prior protected Title VII conduct in assisting his co-workers sexual harassment allegations.  There were also independent investigations and plaintiff had insufficient evidence that other employees engaged in similar misconduct without being fired or that he had ever alleged such similar misconduct during the employer’s multiple investigations and interviews.   In other words, there was insufficient evidence of selective enforcement by his manager of the time card fraud issues to support a cat’s paw theory.

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 Again Rejects Religious Exemption from COVID Testing By Healthcare Worker

Last week, the Sixth Circuit affirmed an employer’s summary judgment on the Title VII religious discrimination and retaliation claims brought against a hospital by an employee who objected to wearing a mask, being vaccinated and being tested.  Henry v. Southern Ohio Medical Ctr., No. 24-3863 (6th Cir. Sept. 11, 2025).   The Court concluded that the employee’s requested accommodation placed a substantial burden on the employer, which was tasked with providing a safe place for its vulnerable patients.  It was questionable whether the plaintiff had put her employer on notice that she would accept non-invasive (i.e., saliva) testing, but in any event, such results were unreliable and took twice as long as nasal tests, which could be processed inhouse.  “We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship.” The Court also rejected her retaliation claim because her being placed on leave was based on a pre-existing deadline and for legitimate patient care reasons and not on her allegedly protected opposition conduct. 

As many employers did, the Hospital required mandatory vaccination of its staff or regular nasal testing, which it could process inhouse within 24 hours.  A deadline was set to comply.  Every request for a religious exemption from the vaccine was granted, but the plaintiff also requested exemption from testing.  Her position involved direct patient care, including of new born babies.  She objected on religious grounds to any invasive procedures, including vaccines and tests.    After the deadline, she was placed on unpaid leave until the end of the pandemic, but refused to return when offered reinstatement because she had found other employment.   

After she filed suit, there was a factual dispute as to whether the plaintiff communicated her willingness to submit to a saliva test based on her repeated references to invasive testing. The trial court found that the only compromise she offered was to self screen and stay home if she felt sick.   In any event, the Court found that even saliva testing imposed an undue hardship on the employer.  The Court has previously found that it is an undue hardship to refuse all testing in a healthcare setting with direct patient care positions.

Now consider the request for saliva testing. Even this accommodation would place an undue hardship on SOMC by increasing the delay in analyzing [the plaintiff’s] test results. The district court concluded that “[m]ore than doubling the time it takes to learn whether a patient-facing employee is positive for the virus unmistakably compromises SOMC’s mission to serve the community and keep it safe.” . . . . The district court was correct. We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship. . . .

Before the district court, SOMC presented evidence showing that saliva testing was a less effective method of detecting COVID infection than other forms of testing available at the time—thus increasing the risk of the spread of COVID.  . . .  [The plaintiff] introduced no evidence to dispute this. SOMC also presented evidence showing that it did not have the in-house capacity to analyze saliva testing results. Analyzing saliva tests would have required third-party analysis which would have at least doubled the time (from 24 to 48 hours) it took for SOMC to learn whether [she] tested positive for COVID.

The Court also rejected her retaliation claim based on her being placed on unpaid leave when she refused to be tested (i.e., opposed allegedly unlawful requests).   Even if the plaintiff could prove a prima facie case of retaliation, the employer articulated a non-retaliatory reason for placing her on unpaid leave: “exempting her from vaccination and testing could lead to the spread of COVID-19 among its staff and patients.”

The Court rejected her argument that the temporal proximity between her allegedly protected opposition conduct and her being placed on leave was evidence of pretext.

That argument fails, however, because SOMC put [her] on unpaid leave the day after the long-established deadline (September 17) by which every employee had to vaccinate or agree to testing. The preexisting deadline “negate[s] any inferences that may arise from the temporal proximity between [her] protected activities” and her placement on unpaid leave.  . . .

Similarly, the Court rejected her argument that refusing to consider saliva testing also showed pretext because it found that her deposition testimony could not be contradicted by her affidavit when she could not remember during her deposition  putting the employer on notice that she would accept saliva testing and the affidavit also failed to identify when and how she communicated such willingness. 

[The plaintiff] also argues that SOMC’s refusal to provide her with available alternative forms of testing shows pretext. But that argument turns on us accepting the claim that [she] put SOMC on notice during the September 14 call that she would now consider other forms of invasive testing. For the reasons explained above, her deposition testimony and affidavit don’t establish that she provided SOMC such notice.

Finally, the Court rejected her argument that the Hospital’s grant of all other exemptions (to vaccination) meant the refusal to grant an exemption for her (to testing) was evidence of pretext:

Finally, [the plaintiff] argues that SOMC’s granting of all other accommodations shows pretext.  . . . . But the argument would fail in any event because [she] has not shown that any other accommodation recipients were similarly situated to her “in all relevant respects.”  . . .  The uncontested evidence shows that of the “approximately 300” employees who requested an accommodation, all “agreed to weekly testing” except [her] and one other nurse [who resigned].

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 Affirms Dismissal of ADA Reasonable Accommodation, Discrimination and Retaliation Claims by Toxic Employee

On Monday, a divided Sixth Circuit affirmed an employer’s summary judgment on claims of failure to accommodate and disability discrimination and retaliation. Woodie v. Motorola Solutions, Inc., No. 24-3257 (6^th Cir. 3/10/25).    A unanimous Court found that the plaintiff could not show pretext, retaliation or disability discrimination when he had been terminated after repeatedly being abrasive to customers and colleagues and often threatened to resign when given feedback or removed from assignments.   Noting that he had objected to his work and travel schedule for multiple reasons, a divided Court found that he had failed to request a reasonable accommodation or start the interactive process when he refused to contact the employer’s accommodation department despite referrals each time he requested a schedule change because of his health.  The dissent acknowledged this to be a possible failure to commence the interactive process, but concluded that the employer had a duty to do more than refer him to HR, which should have reached out to him to discuss the issue after his request to his supervisors for a scheduling accommodation. 

According to the Court’s opinion, the plaintiff claimed to suffer from nocturnal epilepsy.  His job involved traveling 75% of the time, including weekends, but not, apparently, evenings or nights.  When the travel was increased to 80%, he objected vigorously on behalf of all employees and continued to complain for the remainder of his employment.  He apparently offended customers and colleagues by intruding on the duties and responsibilities of others and insisting on doing everything his own way.  He was removed from one job at a customer’s request for being arrogant and abusive.  He was removed from other jobs as well under similar circumstances.  He usually responded to feedback and adverse employment assignments by threatening to resign and was insubordinate to his supervisors.  A few times, he requested vague schedule changes on account of his health.  However, every time he was referred by his supervisors to Human Resources to pursue a possible schedule change/accommodation, he declined to do so.  Ultimately, he was terminated without cause on account of his inability to modify his offensive and insubordinate comments despite multiple coaching.  He found another job the next day and was only unemployed for a month.   He filed suit alleging failure to accommodate, disability discrimination and retaliation.   The employer obtained summary judgment.

The Sixth Circuit affirmed dismissal of the claims.  The unanimous panel agreed that he had no direct evidence of disability discrimination and could not show that the reason for his termination was pretextual.  He admitted to making insubordinate comments and threatening to resign repeatedly when he did not get his own way.  He also did not deny that multiple customers had requested his removal from their projects because of his toxic attitude and that he did not get along well with his colleagues. 

The Court also refused to infer pretext from the fact that his termination was coded “without cause,” meaning that he could possibly be rehired when the employer contended that it had fired him for cause as described above.

The Court’s majority found that his steadfast refusal to pursue a reasonable accommodation through HR despite multiple referrals by his supervisors constituted a failure to request an accommodation.  (It also indicated a breakdown in the interactive process on his part).  The majority focused on his failure to provide medical documentation of his disability (even though the employer never specifically requested it at this point).

On numerous occasions when [the plaintiff] requested a travel change based on his disability, his supervisors and HR directed him to OHR in the event he need an accommodation. Even before requesting travel changes, [he] told  . . . , his immediate supervisor, that he had nocturnal epilepsy. [His supervisor] directed [him] to contact OHR if he needed an accommodation, and he offered to contact OHR for him. Woodie declined. When [he] asked [a manager] for a schedule change, [that person] told him that he didn’t have the authority to provide an accommodation for a disability; such a request had to go through OHR. So he told [him]  to contact OHR. [Yet another supervisor] also told [the plaintiff] he had to go to OHR to request a disability accommodation. [That person] then notified an “HR person that [he] ha[d] somebody that might be requesting a medical accommodation.”  . . .  [The plaintiff] mentioned his medical condition to  . . .  a Human Resources Business Partner, who told [him] that he could “always apply for a reasonable accommodation if needed” and gave him the OHR policy.  . . . [He] again declined.

[The plaintiff] was thus aware of [the employer’s] process for requesting a disability accommodation. He was given the policy, and at each turn, his supervisors directed him to contact OHR because only OHR could determine whether [he] was disabled and needed an accommodation. [One supervisor] contacted HR to inform them of a possible pending request, and [he] discussed his disability with HR. Despite all of that, at no time in his employment with [the employer] did [he] contact OHR. [He] thus failed to request an accommodation sufficient to start the interactive process under the ADA.  . . .

The dissent, however, agreed that the plaintiff’s refusal to contact HR could constitute a breakdown in the interactive process, but would have faulted the employer for not doing more than refer him to HR.  Instead, the dissent found that this request to his supervisors was sufficient to constitute a request for a reasonable accommodation and it was the employer which had the duty to reach out to him instead of setting up a process where he had to contact HR. 

But [his] failure to follow [the employer’s] policy goes to [his] participation in the interactive process; it does not impact whether he requested an accommodation. . . .

 . . . . Here, too, [his] failure to follow [the employer’s] accommodation policy is relevant—not to whether he requested an accommodation— but to whether he caused a breakdown in the interactive process.

Once [he] requested a reasonable accommodation, [the employer] “ha[d] a duty to engage in an interactive process.”  . . .  This duty “requires the employer to initiate an informal, interactive process, in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  . . . .  This process is mandatory and both parties must participate in good faith.  . . .

 . . .. Courts should also “attempt to isolate the cause of the breakdown [in the interactive process] and then assign responsibility.”  . . .  Thus, if [he] caused the breakdown in the process, he cannot recover for [the employer’s] failure to accommodate or failure to engage in the interactive process. . . . .

There is a genuine factual dispute about whether [the employer] caused the breakdown in the interactive process. [He] repeatedly requested a reasonable accommodation from his supervisors starting in November 2020. Yet no one at [the employer] ever engaged with him to determine an appropriate accommodation, even though [it] had “a duty [to] inquire further.”

True, [his] supervisors told him to contact [the employer’s] human resources department about filing a formal request, which he did not do. Even so, our precedent and EEOC Guidance both suggest that the ADA required [it] to do more than just refer [him] to human resources. We have held that an employer participates in the interactive process in good faith when “it readily meets with the employee, discusses any reasonable accommodations, and suggests other possible [accommodations].” . . .

 . . .

Moreover, [his] failure to follow [its] accommodation policy did not excuse [it] from engaging in the interactive process. . . .

An employee’s failure to file a formal accommodation request does not end the interactive process. True, “an employer may ask the individual to fill out a form or submit the request in written form,” and can also ask that the employee provide “reasonable documentation” related to his disability. See EEOC Guidance, at ¶ 3;  . . .  And where the employee’s disability or need for accommodation “is not obvious,” the employee is not entitled to an accommodation if he refuses to provide such documentation. . . . “the employer cannot ignore the initial request,” id. at ¶ 3, and “failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could [still] result in liability for failure to provide a reasonable accommodation,” id. at ¶ 6. That is exactly what [the employer] did here—ignore [his] initial requests for an accommodation just because he never filled out a form.

 

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.

In the Game of Thrones, You Either Win Or You Die

 Yesterday, a unanimous Sixth Circuit affirmed a Columbus nursing home’s summary judgment on claims of retaliatory discharge on the grounds that the plaintiff employee had failed to produce evidence of pretext for each of the employer’s stated explanations for terminating her employment.   Bashaw v. Majestic Care of Whitehall LLC, No. 24-3292 (6^th Cir. 3/5/25).  The Court found that the employer was justified to terminate her for secretly recording workplace conversations which included confidential patient information because it undermined workplace trust and created potential patient liability.  Further, she failed to prove that any similarly situated employee had comparably poor attendance.  Finally, she similarly failed to prove that it was pretextual to terminate her employment when she had told the HR Director that she was already looking for another job.   Accordingly, even if she proved a prima facie case of retaliatory discharge for engaging in protected activities in opposing allegedly illegal conduct towards employees and patients, her claims were dismissed because the employer articulated at least one non-discriminatory/retaliatory reason for terminating her employment which she failed to prove was mere pretext for illegal retaliation.

According to the Court’s opinion, the plaintiff was hired in November 2021 as the Director of Social Services and was terminated after four months.  In the last six weeks of her employment, she was late for the daily morning meeting 11 times and  missed 8.5 days without prior authorization.  She was unclear with Mt. Carmel hospital  on February 25 about whether the nursing home would take back a patient with significant psychological issues, which lead to threats of a government investigation.   She complained about patient care and on March 1 complained to the HR Director about the Executive Director’s insensitive, unprofessional and potentially discriminatory statements and actions towards staff and claimed that she was secretly taping workplace conversations in order to gather evidence.  (There is no indication that she was successful).  She also claimed that she and other directors were looking for another job and intended to resign if he was not replaced. 

In the meantime, the Executive Director had taken steps to clarify who had the authority to refuse a patient admission and had begun preparing a disciplinary action against the plaintiff concerning her attendance.   However, when he went to meet with her on March 1, she had already left work early, again without authorization.   The HR Director had already escalated the issue to the regional director, who began investigating the plaintiff’s concerns.  On March 2, the plaintiff had a heated confrontation with the Executive Director during the morning meeting about the patient and left the unfinished meeting and work, again without authorization.  The Executive Director then involved the VP of HR, who joined the existing investigation.  When the plaintiff was interviewed, she again indicated that she had been secretly recording workplace conversations in attempting to get evidence against the Executive Director.  The investigation failed to substantiate her allegations and she was fired a week later.  Litigation ensued and the employer was granted summary judgment on all claims.

The Court of Appeals held that she had to prove that all of the employer’s stated reasons for terminating her employment were pretextual in order to survive summary judgment.  Although it agreed that there were factual disputes about the misunderstanding with Mt. Carmel, it concluded that she failed to prove that employer lacked a basis for terminating her for (1) secretly recording workplace conversations that included confidential patient information; (2) poor attendance and (3) seeking another job with the intention to resign because she did not want to return to work.

Even if courts find some reasons pretextual, if “at least one other is not, the defendant employer is still entitled to summary judgment.”  . . . .  In other words, if the employer proffers a single independent nondiscriminatory reason for its conduct, that can defeat a retaliation claim.

The Court rejected her argument that she could not be legally fired for secretly recording workplace conversations because it was not illegal and the employer had not prohibited it in any policy.   The HR VP found this to undermine trust in the workplace and created a risk of liability to employer because each of the three recordings made included confidential patient information.  “But the lack of an official policy or law prohibiting the behavior does not itself demonstrate pretext  . . . And an employer may terminate an employee whose actions undermine the employer’s trust.”  In addition, employers “may terminate an employee for creating legal risk for the company,” which included potential exposure of protected health information without the patient’s informed consent.

The Court also rejected her argument that her attendance could not have motivated her termination because on March 1, the Executive Director only intended to warn her.  However, she also walked out early on March 1 and 2.  Further, she failed to produce evidence that any similarly situated employees had comparatively poor attendance.    She had to do more than identify a comparable co-worker.   Moreover, it was not the Executive Director’s decision to terminate her; it was the HR VP’s decision and she was not required to follow his recommendation of disciplinary action.

Finally, the Court agreed that the employer had shown an honest belief that the plaintiff did not want to return to work based on her comments to the HR Director about seeking another job and her statements to the VP that she did not feel comfortable working in the building because it was a toxic environment and she felt gaslighted.   It was apparently irrelevant that she also told the VP (on a recorded call) that she loved her job and the residents.

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 Questions Whether Agreement to Simple Release of All Claims Was Voluntary When Union Gave Plaintiff Poor Advice and It Failed to Identify "Discrimination" Claims.

Yesterday, a divided Sixth Circuit reversed an employer’s summary judgment on racial discrimination and retaliation claims.  Moore v. Coca-Cola Bottling Co., No. 23-3775 (6^th Cir. 8/22/24).  The majority agreed that the plaintiff produced enough evidence to demonstrate a factual dispute about whether he was treated differently than white co-workers when he was terminated for testing six times higher than the prohibited threshold while two white co-workers were treated more leniently under comparable circumstances.  The Court refused to enforce the release of claims he signed in a last chance agreement given for insubordination despite his college education and failure to request more time to consider it when the entire meeting lasted about 10 minutes, the union vice-president encouraged him to sign it and the release of “all” claims against the employer arising out of employment did not specifically mention discrimination claims.   The Court remanded for the trial court’s consideration whether placing him on a second chance agreement and requiring random drug testing after he tested positive for marijuana below the employer’s prohibited threshold was discriminatory. The Court also found that the employer waived its affirmative defense to his failure to exhaust administrative remedies by failing to raise with the district court the plaintiff’s failure to file a Charge of Discrimination about the second chance agreement or mention it in a later charge about his suspension and last chance agreement. 

According to the Court’s opinion, the plaintiff had received college degrees in fashion design and hospital administration, but joined the defendant employer in 2015 as a warehouse employee after realizing his hospital career was not going further.   He began filing discrimination complaints with HR starting in August 2016, complaining about unpaid suspensions, etc.  Following an April 2017 accident where he significantly damaged an autonomous vehicle with a forklift he was driving, he was drug tested, but tested below the prohibited threshold in the employer’s policy, which provides for suspensions without pay, random testing for 24 months and immediate termination with another positive test within 60 months under a second chance agreement (SCA).   Although he objected to being placed on a SCA when he tested below the threshold, his supervisor -- who never saw the drug test results --  told him that he would be fired if he refused.  He did not ask for additional time to consider the agreement.

In June 2017, the plaintiff and other employees objected in salty language to a new operations directive.   He was then informed that he was being terminated for insubordination, but the union negotiated a last chance agreement for him the following month.  He met with the union vice president and his supervisor for ten minutes and was told that he would not be reinstated without signing the agreement, which contained a release of all claims against the company and the union.  Again, he did not request more time to review and consider the agreement.  He filed a Charge with the Ohio Civil Rights Commission challenging the termination (when other white employees also used salty language without being terminated), the LCA and his failure to receive backpay from his suspension, but did not mention the SCA.    A year later, he tested positive for marijuana at 6 times the prohibited level and was terminated in July 2018.   While he does not dispute that he tested positive, he challenged being placed on random drug testing under the SCA in the first place.  In May 2019, he filed an EEOC Charge alleging that he was treated differently than white co-workers. 

 

The district court found that the plaintiff had waived his challenge to the SCA and his suspension by signing the release in the LCA.  It also found that he could not show that the employer’s explanation for his termination -- his positive drug test -- was pretextual.   A divided Sixth Circuit reversed.

In the lengthiest part of the decision, the Court focused on the questions raised about whether the release of claims contained in the LCA were voluntary, and thus, enforceable under Title VII.   The majority discounted his college education for lacking legal training and his failure to request any time to consider the LCA because the union officer had told him to sign it if he wanted to be reinstated (and possibly poor legal advice) and the entire meeting lasted only 10 minutes.  It also discounted the fact that he had union representation and was never given an explicit deadline by the employer when he had to sign it.    In considering whether a release is valid and enforceable, courts will consider the following factors:

“(1) [the] plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.” Id. While weighing these factors, we also “must ‘remain[] alert to ensure that employers do not defeat the policies of . . . Title VII by taking advantage of their superior bargaining position.’”

Interestingly, the majority found that the union’s encouragement to sign the agreement should be held against the employer even though the union was more accurately aligned with the employee.  One has to wonder if merely a friend had similarly given him poor advice would similarly affect the court’s analysis.  In short, it found that a jury should be able to later decide whether his signature should be considered voluntary:

It is unclear from the record whether [the plaintiff] was required to sign the LCA the same day that he was presented with it, or if he was able to request additional time to consider the contract’s terms. Similarly, the record indicates that [he] did not have an attorney present but does not provide any information as to whether [he] would have been permitted to request one prior to his signing the LCA. Most telling is that Arrington, the union representative in the room with [him] when he signed the LCA, told [him] to just sign the LCA and that it was “better to fight with a job than fight without a job.”  . . .  Reasonable jurors could find that Arrington’s statements indicated that [his] discrimination claims would survive his signing the LCA and that they influenced [his] signing the agreement.

Although Moore holds associate’s and bachelor’s degrees, his education does not provide him with any type of legal, managerial, or contractual background that would be relevant to interpreting the LCA’s terms in a manner essentially at odds with what the union representative told Moore. . . .

The Court also questioned whether the simple language releasing all claims against the employer and union relating to his employment arising prior to that date was sufficiently clear when the simple sentence did not explicitly mention discrimination or statutory claims.

In other cases where we have found that such provisions are straightforward in their terms, the contracts have explicitly stated that the employee was waiving the right to bring a discrimination suit,  . . . or that an individual must “arbitrate any legal dispute relating to their employment . . . , including all state and federal statutory claims,”  . . . . The LCA that [the plaintiff] signed is not precise in explaining what was meant by “any and all liability of any kind whatsoever relating to his employment with” CCBC, and [he] lacks a background that would help him to interpret this term.  Most important in [his] case is [the union officer’s] statement in the context of signing the LCA that it was “better to fight with a job than fight without a job.”

 . . . . As discussed above, particularly important in this case are the facts that (1) the union representative effectively suggested that [the plaintiff] would be able to seek legal recourse notwithstanding [his] signing of the agreement; (2) the agreement was not clear with respect to what rights [he] was waiving; and (3) [the employer] was in a better bargaining position. In other words, consistent with our caselaw, [his] education and experience are not “dispositive,” but rather are considered in the full context of the other waiver factors.  . . . Indeed, the union representative’s comments alone suggest that the waiver was not likely knowing and voluntary: it is natural for an employee to trust that their representative’s representations concerning that employee’s rights are fair and accurate.

The Court also rejected the employer’s accurate argument that the plaintiff had failed to exhaust his administrative remedies because he never filed a Charge of Discrimination challenging the SCA because the employer never raised this argument in its summary judgment motion before the trial court.  The failure to exhaust administrative remedies is an affirmative defense.

In addition, the Court found that the plaintiff had produced sufficient evidence for the jury to consider whether the justification for terminating him -- the admitted positive drug test -- was pretextual because it was insufficient to motivate his discharge when other employees were not terminated under similar circumstances.  He alleged that he was targeted for drug testing six times -- more than any other employee -- even though two of his co-workers “were permitted to come to work under the influence of alcohol or drugs and were not likewise penalized.”   He alleged that one co-worker “was likewise on an SCA, but was not tested during this time, nor was [that employee] fired after he had a positive drug test while on a SCA” following an accident.  Instead, the white co-worker wasn’t fired for more than a year after he failed a third drug test.

A two-strikes policy for firing Black employees and a three-strikes policy for firing white employees would plainly constitute disparate treatment and raise pretext concerns. At this stage, all that we look for is similarly situated comparators who “were not fired” despite engaging in “substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.”

Because the trial court did not consider pre-LCA events, the Court remanded for further consideration the plaintiff’s argument that that he was placed on random drug testing under the SCA even though it was not factual that he failed the first drug test. 

Finally, the Court had no difficulty in finding adequate evidence for the jury to consider about the retaliation claim.  The plaintiff had filed many internal discrimination grievances with HR, which were known to his manager.  He submitted one complaint a mere week before the final random drug test that resulted in his termination. “Given the temporal proximity between Moore filing his EEO grievances and the adverse employment action taken against him, Moore has shown “sufficient temporal proximity to establish a causal connection.”

 

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 Rejects Lactation Retaliation and Hostile Work Environment Claims

 Last week, the Sixth Circuit affirmed a school employer’s summary judgment on a retaliation and harassment claim brought by a non-renewed special education teacher who had alleged that she was terminated in retaliation for taking lactation breaks.  Childers v. Casey County School District Board of Education, No. 23-5317 (6^th Cir. Aug. 1, 2024).   Although she brought the claims under Title IX and Kentucky state law, the Court applied Title VII burdens of proof to find that the employer’s explanation -- her failure to timely submit forms to fund a student’s education -- was not pretextual in light of the sporadic and stale allegations in her complaint. 

According to the Court’s opinion, the plaintiff was a contract special education teacher.  A new student was added during her maternity leave, but she failed to complete his enrollment verification form after she returned even though she was aware that his forms had not been properly completed or submitted for federal funding.  She and the Principal had agreed that she could use her locked classroom for lactation breaks and put a cover on the door.   When she returned from leave, the Special Education Director objected to the amount of paid time she intended to spend each day without seeing students: 60 minutes for planning, 60 minutes for lactation and 20 minutes for lunch.  She did not adjust her schedule.   Over the next six months, someone inadvertently entered her room during her lactation breaks on three separate occasions.  The Principal also asked her one time to remove the cover from her door for a safety audit, but she refused to do so.   For her performance evaluation, she was free to add examples of her students’ work, but she failed to do so.  She was evaluated as “developing” in part because the school lost funding for the new student for whom she had failed to timely submit a required form.  She appealed the evaluation, but it was affirmed and her contract was not renewed.

The Court found that the teacher failed to show that her poor performance evaluation was pretext for discrimination or retaliation.  While she agreed that the new student’s form was ultimately her responsibility and she had sufficient time to complete it, she attempted to shift the blame to others.   She also failed to show that the Special Education Director or his outburst six months earlier about her work schedule played any role the decision to not renew her contract.    Finally, she could not show pretext when she herself chose what was placed in her folder, not the Principal.

The Court also found insufficient evidence of a hostile work environment based on five sporadic incidents over a six month period.

While we are sympathetic to [the plaintiff’s] privacy concerns, these episodes are insufficient to raise an actionable hostile work environment claim. [She] acknowledged that she did not think that the janitors entered her classroom purposefully, which diminishes the severity of the intrusions. . . . The infrequency of the privacy violations, including the alleged removal of her window cover, demonstrates that [her] allegations are the types of “isolated incidents” that are legally insufficient to state a hostile work environment claim. . . . And [the Director’s] challenges to and frustrations with her draft schedule were not frequent, severe, physically threatening, or humiliating; at most, they constituted “mere offensive utterance[s].”

 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. 

Sixth Circuit Affirms Employer's Summary Judgment in Discrimination and Retaliation Case Where Plaintiff Had No Evidence of Pretext

 Two weeks ago, the Sixth Circuit affirmed an employer’s summary judgment on a supervisor’s claim that he had been demoted and his position had been eliminated on account of his European race and prior complaints of discrimination.  Browning v. Franklin Precision Industry, Inc. No., 23-5406 (6th Cir. Dec. 5, 2023).   The Court found that he could not prove that the employer’s explanation was pretextual because he had admitted that his was not the only position eliminated, that he had failed to comply with certain policies, that he had been counselled about prior conduct and had been demoted prior to his position being eliminated.  It also did not help that he had no documentation to prove that he had engaged in protected protestations of unlawful discrimination before he filed a Charge of Discrimination following his demotion. 

According to the Court, the plaintiff alleged that the Japanese employees of his employer made inappropriate jokes about his weight and European heritage and racist comments about African-American employees.  He also alleged that he had reported to HR multiple times about the refusal of management to permit him to promote African-American employees.  However, there was no documentation of any such complaints.   Prior to his alleged mistreatment, a female temporary worker complained that he made her uncomfortable when, for instance, he invited her to dinner alone to thank her for her work.  Although he denied he had acted inappropriately and he claimed that HR found no merit in her complaints, he was suspended for three days.  He was also counseled for leaving work prior to when a manufacturing defect had been remedied for a major customer.  He also admittedly refused to clock in an out pursuant to a new policy.  He was offered a demotion, which he ultimately accepted, but filed a Charge of Discrimination a few weeks later.  A few months after that, most employees were furloughed with the COVID pandemic.  Although the company eventually began to recall employees to work, it was determined that it would be more cost effective to outsource some positions, including that of the plaintiff.  He filed suit alleging discrimination and retaliation.    The trial court dismissed the claims on summary judgment. 

The court agreed that he could not show a prima facie case of retaliation or discrimination.  Although he engaged in protected activity by complaining about discriminatory comments, he could not show that his complaints motivated his demotion, furlough or ultimate termination because there was no evidence that any of the decisionmakers knew about his protected conduct:

However, as the district court found, [he] failed to present credible evidence that decisionmakers at FPI were aware of his complaints, or that his protected activities led to his demotion and termination.  . . .  Stated differently, [he] failed to establish that the protected activity and adverse employment action were causally connected.

Even if the plaintiff had complained to the decisionmakers, he could not show that their justification for the employment actions was pretext for unlawful discrimination or retaliation: “FPI provided legitimate reasons for its adverse employment decisions. The company maintains that it demoted [him] because he behaved inappropriately toward a temporary worker, failed to comply with timekeeping policies, and exhibited poor leadership skills.”

He does not dispute that he routinely failed to comply with company timekeeping policies and, on one occasion, left members of his team to handle a production crisis. Instead, [he] contends that his less-than-exemplary record did not justify the company’s decision to demote him. But as the district court correctly held, [he] cannot prove pretext by arguing that he thinks FPI made the wrong choice. . . . Instead, [he] was required to show that FPI’s “reasons [were] false [and] that retaliation was the real reason for the adverse action.” . . .

Moreover, [he] presented no evidence at the summary judgment stage or on appeal to rebut FPI’s stated reasons for his furlough and termination. To the contrary, [he] concedes that he was not the only person in his department who was furloughed, or whose position was eliminated to save costs in the aftermath of the COVID-19 pandemic.

                . . ..

[He] failed to establish that unlawful discrimination motivated FPI’s decision to demote, furlough, and fire him.  . . .  As explained above, it is undisputed that [he] regularly failed to clock in and out, and that he left his team after a major production issue. His argument that those errors did not warrant demoting him are insufficient to establish pretext. And [he] did not provide any evidence suggesting that FPI used the COVID-19 pandemic as a cover-up for discrimination when it furloughed and fired him.

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.

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6^th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

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.

To Succeed, Plaintiffs Need Comparative Evidence and Not Just Subjective Opinions

Earlier this month, the Sixth Circuit affirmed an employer’s summary judgment on an employee’s claims for FMLA retaliation, disability discrimination, sexual harassment and unequal pay.   Santiago v. Meyer Tool, Inc. No. 22-3800 (6^th Cir. 6/8/23).   The Court ultimately found that the plaintiff failed to identify any employees who were both similarly situated and treated differently because she had significant attendance and performance issues, unlike employees who only had one or the other.  It also found that she could not show FMLA retaliation when she was given her requested FMLA leave, failed to mention FMLA leave when calling off during the attendance infractions and never claimed when given the pre-litigation opportunity that her absences were covered by the FMLA.  She also did not provide sufficient comparative evidence – about skills, responsibility, effort, etc.,  to show that she was paid less on account of her gender merely because other men were paid more.  Finally, the Court found her sexual harassment EEOC Charge was filed 58 days too late and could not relate back to her original timely ADA Charge when she never indicated any continuing violations and had focused only on the date of her termination.

According to the Court’s opinion, the plaintiff was fired in 2017 as a machinist after 19 years of employment.  She had informed the Company of her HIV diagnosis in 2015 and was given intermitted FMLA leave to seek medical treatment, etc. in 2016 and 2017.  Nonetheless, both before and after her HIV diagnosis, she was frequently disciplined for excessive absenteeism, including a suspension a month before her termination.  Prior to the litigation, she never claimed that her attendance infractions were covered by her FMLA entitlement, even when given the opportunity on the disciplinary action form to protest the disciplinary action.  She also was occasionally disciplined for poor performance for creating deviated parts (that did not meet the customer’s specifications).  Her last such incident was on May 17, when she created 4 deviated parts that were ultimately rejected by the customer after her termination.   In contract, she had similarly created deviated parts in February 2017 without disciplinary action.  She was fired in July 2017 after her suspension for poor attendance and creating the deviated parts on May 17.

She filed an EEOC Charge in October 2017 alleging that non-disabled employees had also created deviated parts and not been fired.   In July 2018 – 358 days after her termination – she filed a second EEOC Charge alleging that her supervisor sexually harassed her for years and that she was paid less than other male machinists.  After filing suit, the trial court granted summary judgment to the employer, which was affirmed on appeal.

The Court found that the employer articulated a legitimate and non-discriminatory reason for her termination on account of her poor work performance and chronically poor attendance.  She failed to produce evidence disputing that she created four deviated parts on May 17, even if her performance at other times had been satisfactory.  She also failed to produce evidence that her attendance had been satisfactory or that she had complied with the employer’s call-off policies.   She could not simply rely on her own opinion to satisfy her burden of proof.

The Court also rejected her evidence of pretext based on statistics showing that all machinists who took FMLA leave between 2014 and 2017 were eventually terminated.  While that might be sufficient evidence to satisfy a prima facie case, it was insufficient without additional circumstantial evidence to show pretext or that discrimination/retaliation more likely than not motivated the decision in her case when it was rebutted by evidence showing the basis for the termination decision in this case – i.e., that she created four deviated parts and had repeatedly violated the attendance policy.  “Her statistical evidence, standing alone, is not so significant to indicate that her termination was more likely than not retaliation for her FMLA leave, particularly in light of her documented disciplinary history.”

The plaintiff also could not “show by a preponderance of the evidence that ‘other employees, particularly employees not in the protected class, were not fired even though they were engaged in substantially identical conduct to that which the employer contends motivated its discharge.’”  None of the other employees to whom she vaguely referred had both performance and attendance issues.  “First, she points to no employee with a disciplinary record that demonstrates the employee engaged in “substantially identical conduct” to her own.” One employee had been suspended for three days because of deviated parts, but had no attendance or other misconduct issues.  While the plaintiff asserted that there were nine other employees with more egregious performance issues, she failed to identify them or explain how their situations were comparable to hers.   Finally, while she was not personally aware of any other employees being terminated for poor performance, the employer had produced records showing that it had previously fired employees for creating too many deviated parts.

The Court also rejected her wage discrimination claim.  She produced evidence that male employees were paid more on average than female machinists.  She also showed that male employees with similar tenure to her – and some that she trained --  were given larger raises than her year after year.  However, she failed to produce any evidence of their respective skills, experience, responsibility, effort or job titles so that an effective comparison could be made to her.

The Court also rejected her sexual harassment claim as being filed too late with the EEOC and too unrelated to her timely ADA charge regarding her termination.  Charges must be filed within 300 days.  She did not indicate any continuing violations in her original, timely charge, but rather focused only on her termination date.

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 Rejects Pregnancy and FMLA Claims and Cat's Paw Theory and Evidence of Alleged Pattern and Practice Discrimination to Show Pretext Despite Temporal Proximity Evidence

Last week, the Sixth Circuit affirmed an employer’s summary judgment on claims of pregnancy discrimination and FMLA interference and retaliation after the plaintiff had been fired in a RIF just 10 days after she disclosed her pregnancy to her new supervisor and a couple of HR employees.  Johnson v. Evolent Health, LLC., No. 22-5574 (6^th Cir. 3/2/23).  The Court agreed that there was no evidence showing that anyone who had been involved in the RIF and decision to terminate her employment knew that she was pregnant.  While temporal proximity is often enough to show causation, “the individuals who decided to terminate [the plaintiff] must still have ‘had actual knowledge of her pregnancy at the time that the adverse employment action was taken’ for a nexus to exist.  “Because [the plaintiff] failed to show that any individual who participated in the RIF process knew she was pregnant at the time of her termination, and because she cannot show that any employee who was aware of her pregnancy showed any animus towards her or influenced the decisions of decision makers [under a cat’s paw theory], she has not established a prima facie case of pregnancy discrimination.” The Court also rejected evidence of alleged pattern and practice discrimination to show pretext because it does not evaluate individual employment decisions.   The Court rejected her FMLA claims on the same grounds.

According to the Court’s opinion, the plaintiff was hired in 2018 and had received only “below expectations” on her first two annual performance evaluations and was about to be placed on a Performance Improvement Plan.  Instead, the company decided to eliminate her department and offered her a transfer to a new team, which she accepted, sometime in 2020.  Her new supervisor reached out to her on February 10, 2020 to let her know that the reorganization would take place in a few weeks.  Meanwhile, on February 5, the Company identified the plaintiff and 67 other employees with poor performance evaluations for a reduction in force.  After analyzing which employees would have the least impact, 33 of them (including the plaintiff) were selected for the RIF on or about February 20.  All of these discussions were held among individuals who did not supervisor or manage the plaintiff.  Rather, her former supervisor was not informed until February 20 and was instructed that he would be the person to inform plaintiff since the reorganization had not yet been completed.  However, a few days earlier – on February 14 – the plaintiff had requested two days off from her new supervisor for doctor’s appointments because she had discovered that she was pregnant with twins.  The supervisor directed the plaintiff to contact Human Resources, but did not tell anyone else about the pregnancy.   The plaintiff then contacted the benefits department, which asked a few questions and put her on a tracking spreadsheet for pregnant employees.  On February 24, different Human Resources employees informed the plaintiff that her role was being eliminated and her employment terminated.  She protested that she had just been transferred and explained that she was pregnant.   No one else performing her duties was hired until the following year.  The plaintiff then filed suit for pregnancy discrimination and FMLA interference and retaliation.

The Court closely examined who had been involved in the RIF and termination decision (which had been finalized on February 21) and who had been informed of the plaintiff’s pregnancy on February 14.  It agreed that there was no evidence that anyone involved in the RIF decisions had been informed of the plaintiff’s pregnancy.  Rather, the plaintiff had only informed three people and none of those people share that information with anyone else, let alone anyone who was involved in the RIF decisions. 

Temporal proximity between the announcement of an employee’s pregnancy and that employee’s termination can sufficiently establish a nexus between the events. . . . . Even so, the individuals who decided to terminate [the plaintiff] must still have “had actual knowledge of her pregnancy at the time that the adverse employment action was taken” for a nexus to exist.

The Court rejected the plaintiff’s argument that other HR employees had access to the shared email box or tracking spreadsheet because they denied ever reviewing the information or learning about her pregnancy before her lawsuit.   The plaintiff could only speculate that other HR employees had actual knowledge and no actual evidence.

The Court also rejected the cat’s paw theory because she did not allege – let alone prove – that the individuals with knowledge of her pregnancy had any discriminatory animus whicvh they then used to influence others into taking discriminatory actions.

“In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” . . . . But the “predicate to cat’s paw” is a demonstration of discriminatory animus: that “by relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's paw.’”  . . . [The plaintiff] does not allege that any subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards [her].

In any event, the plaintiff also could not show that the employer’s explanation for her termination was pretext for discrimination.   The plaintiff attempted to challenge the termination decision – based on her documented poor performance – because ultimately only half of the employee initially selected on February 6 were actually terminated and no extra supporting comments were offered to support her termination.  However, it was undisputed that she had poor performance scores and she was not the only terminated employee without extra supporting comments. 

The Court also rejected her argument that the employer’s explanation had shifted from position elimination to poor performance.  However, the Court did not find it inconsistent to find that her position had been selected for elimination based on her poor performance.   While the termination script never mentioned her poor performance, it never gave any explanation for how or why she had been selected for termination.

The Court also rejected the plaintiff’s argument that pretext was shown because approximately 10% of pregnant employees were terminated by the Company.

pattern or practice evidence is unavailable to assess an individual plaintiff’s discrimination claim.  . . . Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case” because it does not evaluate individual hiring decisions. . . . It can support, however, an “otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail. Id. [The plaintiff] is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence does not raise a triable issue of fact nor does it allow [her] claims to survive summary judgment.

Similarly, the Court again rejected the temporal proximity of her pregnancy announcement and the termination decision as evidence of pretext:

The temporal proximity of [her] disclosure of her pregnancy and her termination may be indirect evidence of pretext but cannot alone support pretext here. . . . . Even when the timing appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the plaintiff] to succeed.”

The Court likewise rejected her FMLA arguments because she could not show pretext for the employer’s decision for the reasons discussed above and because at least one other employee had been terminated without requesting 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 Rejects Plaintiff's Discrimination Claims Because Honest Belief Rule, Employee Handbook Rules and Vague Allegations Prevented Showing of Pretext

Yesterday, as I was participating in a webinar on the Honest Belief Rule, the Sixth Circuit affirmed an employer’s summary judgment in part because of – you guessed it – the Honest Belief Rule.  Okakpu-Mbah v. Postmaster, No. 21-2811 (6^th Cir. 2022).  The plaintiff had been fired at the conclusion of her 90-day probationary period for not working fast enough in sorting the mail.   The Court agreed that she could not show that the employer’s explanation was pretextual in light of documents showing that her efficiency had previously been rated as unacceptable, that she did not improve and, according to all of the other supervisors, was still working too slow by the time of her 80-day evaluation.  The Court also refused to find pretext from the use of a subjective standard for efficiency because there was no evidence that the employer had manipulated or abused the standard to single her out. It also refused to compare her to co-workers whose performance deficiencies were different and improved over time.  

According to the Court’s opinion, mail sorters receive 30, 60 and 80 day evaluations during their 90-day probationary period.  The Employee Handbook states that they will be separated during orientation as soon as it becomes evident that they are unable to meet the requirements of the position.  The plaintiff received a satisfactory 30-day probationary evaluation, except that her productivity was rated unacceptable. She denied receiving a 60-day evaluation (which was disputed).  However, as her 80-day evaluation approached, her supervisor reached out to other supervisors for their opinion.  One emailed that the plaintiff was very slow, did not grasp the concept, demonstrated no sense of urgency and sometimes had to be reassigned to a different task.  The local postmaster recommended that she be terminated.  She was terminated following her 80-day evaluation for inefficiency and brought suit alleging age, race and national origin discrimination and retaliation.  The district court granted the employer summary judgment.

The Court rejected the plaintiff’s argument that the employer’s explanation was pretextual because the rationale was insufficient to motivate the employer’s action.  She pointed to the fact that no other employee had ever been fired for working too slowly.  However, the Court summarily rejected her argument on the grounds that the Employee Handbook:

says that employees “should be separated as soon as it becomes evident that they are unable to meet the requirements of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.

The Court also rejected the plaintiff’s argument that her termination lacked a basis in fact based largely on the Honest Belief Rule.   The employer produced her 30-day evaluation showing that her productivity had been rated “unacceptable” and indicated that she never improved.  The employer also produced an email from one of her supervisors indicating that she worked very slowly and could not keep up with her co-workers.   Although the employer did not use objective metrics to measure productivity, the plaintiff’s own subjective view of her performance was insufficient to create a disputed issue of fact about whether the employer’s explanation was reasonably based on facts.   Her supervisor’s “belief about [the plaintiff’s] performance was reasonable. Not only was the belief based on [her] own observation, but also on the observations of other supervisors who all agreed she was working slowly.”  Because the supervisor’s conclusion was reasonable, the plaintiff “cannot show pretext by showing it was wrong.”

            [A]n employer’s use of subjective reasons in terminating an employee, without more, “does not raise an inference” of discrimination. . . . And [plaintiff] “has offered no evidence from which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that criteria to affect” her chances of being retained at the end of the probationary period. . . . . So even when an employer uses an “evaluation process [that] was haphazard” that alone cannot create a “reasonable inference” of discrimination.  . . . . And an employer’s “unwise business judgments” or “faulty evaluation system” does not establish an inference of discrimination either.

The plaintiff’s efforts to show that her inefficiency did not actually motivate her terminations failed largely from lack of specificity.  She did not show how other events were “’logically or reasonably tied’ to the adverse action against her, that the same “bad actors” were involved, or that the conduct was in close temporal proximity, among other factors.”   Among other things, she incorrectly claimed that four employees had been fired and could not show that her supervisor was involved in the termination of the fifth.    Her attempt to show better treatment of white coworkers failed because their negative evaluations related to their attendance and not to their productivity.  Thus, “[s]uperficial similarities between a disciplined employee and his colleagues” are not enough to make them comparators.”  Further, some of her alleged comparators improved their performance while the plaintiff did not.  The third comparator had a valid excuse for her absences. 

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.