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.

Ohio Appellate Court Affirms $250K Jury Verdict for Plaintiff Terminated on Account of Perceived Disability

At the end of last month, a unanimous Montgomery County Court of Appeals affirmed a $250,000 jury verdict in favor of a home health care nurse who had been terminated in July 2011 because she had been prescribed and was wearing a fentanyl patch to cope with pain.  Cavins v. S&B Health Care, Inc., 2015-Ohio-4119.  The court rejected the employer’s challenge to the trial court’s failure to bi-furcate the trial on punitive damages because that alleged error had been waived and was harmless when the jury did not award punitive damages.  It also found that the jury’s decision was supported by sufficient evidence.  The Court found that there was clear evidence that the employer viewed her as being disabled by a drug addiction because it disciplined and suspended her for wearing the patch pending a release from her physician, told her that they perceived her wearing a pain patch as a liability and two executives mentioned it in connection with her termination decision.  With such direct evidence of discrimination, she was not required to prove pretext, but had done so.  The employer could not rely on an “honest belief” defense when it conducted no investigation of the supposed HIPAA violation leading to her termination.  Similarly, the jury could disbelieve the employer based on its disparate treatment of the plaintiff in disciplinary warnings which were also not supported by its written policies.  The employer also failed to prove an accommodation constituted an undue hardship or a direct threat.   The court refused to find judicial estoppel from the plaintiff’s pursuit of a workers’ compensation claim and similarly refused to deduct her workers’ compensation recovery from her back or front pay award based on an application of the collateral source rule to deter discriminatory employers.  Finally, the court found the plaintiff could recover emotional distress damages without expert testimony or evidence of a physical injury.

Background.  According to the court’s lengthy opinion (which necessarily construed the facts in the prevailing plaintiff’s favor), the plaintiff had received above average performance evaluations in the two years prior to her termination.  Her evaluations and the company’s policy manual required that she turn in reports on a weekly basis. However, the evaluation had a handwritten “daily” inserted, which the plaintiff implied was done after her termination.  Her lowest scores in her performance evaluations concerned the inconsistent timeliness of her documentation.  In late 2010, she filed a workers compensation claim based on a deterioration of her arms and wrists from patient charting and the company ultimately arranged for a voice-activated computer to assist with her documentation.  Her supervisor sent her a holiday card to get some rest and not burn out.  While normal full-time employment was 20-25 patients/week, she generally had a much heavier workload, covering for other employees and working every holiday since she was hired.  For example, she saw 13 patients on July 4 shortly before she was fired.  In early January, her car was hit from behind while she was travelling to see a patient.   Although she was in pain, she continued to work because she could not afford to take time off.  In late May, she was given a written warning for untimely documentation and was reminded in writing that her documentation was due at 8 a.m. on Monday mornings (i.e., weekly).   She responded that she would try harder, but was in pain. On June 2, she was involved in another car accident while her daughter was driving.  After seeing to her daughter’s broken arm, she went to a different hospital the next day and claimed to have notified her employer (which denied knowing about this second accident).

On July 1, the plaintiff was prescribed a fentanyl patch for her pain.  There were no complaints about her performance after she began wearing the patch.   She requested and received approval to take July 8 off work for her birthday.  She subsequently emailed her supervisor that she had found others to cover for her on July 9 and 10 as well.  In the interim, a co-worker notified a supervisor that the plaintiff sounded impaired on the telephone and admitted to wearing a morphine patch.  This inaccurate information was relayed to a vice president, Human Resources, and the company’s lawyer.  The following day, another employee also claimed that she had slurred speech, and the plaintiff later explained that she had been up all night trying to catch up with her patient documentation and had not been wearing the patch at the time.  (Her all-nighter was confirmed in an email she sent at 6:33 a.m. to her manager).  

When the plaintiff reported to work on July 11, she was given three written warnings and suspended.  The first written warning was dated on July 7 and was for failing to notify management about her pain patch, even though the cited policy only prohibited the use of illegal drugs, alcohol or control substances which could affect employee performance or safety.  She was not permitted to return to work until her physician confirmed in writing that she could safely drive and perform her job.  The second warning was also dated July 7 and concerned the tardy submission of reports, which she had been submitting on Sunday night or early Monday morning instead of daily.  It reflected a performance plan and threatened to terminate her if she did not improve.  She refused to sign it since her most recent warning had only required her to submit weekly reports and she was not yet late with the reports from the prior week as alleged.   The third written warning was for failing to use the proper form to request time off for July 8.  However, the plaintiff denied knowing about such a policy or forms and the company never produced a copy of any such policy or forms at trial (which strongly suggests that they do not exist).  There was evidence that other employees had requested and received time off without such forms and never been disciplined.  The plaintiff returned to work on July 18 after her physician released her without restrictions.  Nonetheless, she was told that she was a liability while she wore her pain patch.  She subsequently offered to stop wearing it if the company and its attorney remained concerned, but her email received no response.  The next day, the company claimed that an anonymous employee told it that the plaintiff had secretly contacted a former patient.  Without any investigation, the decision was made to terminate the plaintiff.  At trial, the employer was unable to identify any employees or patients with knowledge that the plaintiff had improperly contacted them.   They arrived at her home (because she had called off sick) but she did not answer the door.  When the plaintiff emailed her supervisor that she thought that she would be off sick for less than two weeks, she was notified that she had been terminated and an employee was sent to pick up her equipment.  The company executives testified to different reasons for her termination, but two of them referred to her fentanyl patch. 

The plaintiff ultimately produced a physician note that should return to work on August 1, but in light of her termination did not work for two years.  During workers compensation litigation, the plaintiff received her termination documentation for the first time and it listed only a HIPAA violation (for contacting a former patient) and nothing about the fentanyl patch.  She returned to work on modified duty in 2014 for another employer.  In the meantime, she filed suit concerning her termination.  After trial, a jury awarded her $125,000 in back pay, $75,000 for front pay and $50,000 in compensatory damages, but denied punitive damages.  The employer appealed.

Failure to bifurcate was harmless error.  The appellate court rejected the employer’s argument that the trial should have been bifurcated because it was waived at trial (when the attorneys failed to have the jury instruction conference transcribed and included in the record) and any error was harmless in that the jury did not award punitive damages.

Direct Evidence that Perceived Disability Motivated Termination Decision.  The Court found substantial evidence that the plaintiff had been perceived as disabled on account of wearing her fentanyl patch and that the jury was in the best position to evaluate the credibility of the witnesses.  It noted that Ohio law and the ADAA only require evidence that the employer views an employee as impaired and does not require evidence that the employer perceived that impairment as substantially limiting a major life activity.   Accordingly, when the employer took adverse action against the plaintiff on account of the fact that she sometimes wore a fentanyl patch to treat the pain she suffered from two automobile accidents, it constituted direct evidence that the employer perceived her as disabled under Ohio law:

[The plaintiff] was taking measures (prescription medication) to correct or mitigate an underlying physical condition – injuries caused by one or more auto accidents. Accordingly, there was sufficient evidence to allow the jury to conclude that Cavins was perceived as disabled within the meaning of R.C. 4112.02(A)(1) and R.C. 4112.01(A)(13).

Indeed, the jury was not even required to infer that the plaintiff’s impairment played a part in the decision to terminate her because two of the company’s executives admitted as much.

No judicial estoppel from pursuing workers’ compensation claim.  In a rather confusing discussion, the court addressed the issue of whether the plaintiff had been qualified to perform her duties immediately prior to her termination, particularly in light of the fact that she did not work for two years following her termination and had submitted documentation that she had been unable to work because of her workers’ compensation injury.  First, the court noted that she had produced return-to-work notes on July 18 (and actually worked a few days thereafter before getting sick again) and had been released to return to work on August 1 (after her termination).  Second, the plaintiff also testified that her duties did not require her to lift patients.   Third, the court rejected the concept of judicial estoppel to preclude the plaintiff from contending that she could work (in order to recover back and front pay) while she was contending in different proceedings that she was entitled to workers’ compensation because she was unable to work.  The court did so because she had never made any representations to the BWC under oath (as required for judicial estoppel to apply).  Moreover, the court found that she was qualified to perform her job at the time she was terminated (in light of two medical releases) and could have continued to do perform her duties with a reasonable accommodation (of wearing her fentanyl patch).

Reasonableness of accommodation.  The court found that permitting the plaintiff to wear the patch was a reasonable accommodation because the employer had indicated that she could do so if her physician confirmed that she could safely drive and perform her duties while wearing it.

Pretext Evidence Not Required.  The court also rejected the employer’s argument that the plaintiff failed to show that the documented reason for terminating her – an alleged HIPAA violation and prior disciplinary history – was pretextual.  The Court found that the plaintiff was not required to prove pretext because she had produced sufficient direct evidence of discrimination when two executives admitted that her fentanyl patch was a motivating factor in her termination.  When direct evidence exists, the burden-shifting framework in cases of indirect evidence does not apply.   At that point, the employer could only prevail if it could prove undue hardship or a direct threat.  It could do neither.  In particular, its July 11 suspension of the plaintiff – until she could produce medical documentation that she could safely perform her job duties and drive – demonstrated the reasonableness of that reasonable accommodation.  The employer could not challenge the reasonableness of that accommodation upon her return to work without further investigation, which it failed to do before terminating her a few days after she returned to work.   

Pretext Proven.  In any event, the court found sufficient evidence of pretext on the record.  The plaintiff denied that she had violated HIPAA or contacted a former patient as alleged.  In contrast, the employer’s only evidence was that an anonymous employee supposedly told it of the violation.   This was not corroborated by the employee or the patient.  Accordingly, the jury was free to disregard the employer’s testimony.  Moreover, the employer could not rely on an honest belief defense because it conducted no investigation whatsoever of the anonymous tip; it did not contact any former patients or even confront the plaintiff with the allegation.  In addition, the management employees contradicted each other as to whether the fentanyl patch was a factor in the termination decision.   Finally, the fact that the plaintiff was terminated just a few days after she had been told that her wearing the fentanyl patch was a liability further undermined the legitimacy of the purported HIPAA explanation. 

With respect to the consideration of her prior disciplinary history, there was evidence to show that her disciplinary warnings were not supported by any written company policies and that she had been treated differently than other employees on those issues:

Moreover, even if one assumes that the basis for the termination included the prior disciplinary actions, there was evidence that these alleged violations were not actual violations of Black Stone policy, or that other employees were not similarly disciplined. In short, the record contains evidence that Black Stone’s actions were poorly documented, and that its policies were inaccurately and inconsistently applied. For example, although Black Stone disciplined Cavins for failing to request a day off in writing, the company failed to submit evidence of a written policy or form to this effect, and there was evidence from an employee other than Cavins that she had been allowed to submit an oral vacation request without being disciplined. Cavins also testified that she had never been required to submit a written request. Again, the jury was permitted to believe Cavins’ evidence.

The court also found the jury was entitled to disbelieve the employer about the documentation requirements.  The employer contended that she had for years been required to submit it daily, not weekly as the plaintiff contended.  She testified that July 11 was the first time she had been told it was due daily.   She was corroborated by the fact that the policy manual said weekly and her May 2011 written warning also said weekly.  The employer contended that the May 2011 warning had been a mistake and pointed to handwritten notes on her last performance evaluation referring to daily documentation.  However, the plaintiff denied that “daily” had been written on the evaluation when she received it.

The court also found that the jury was entitled to disbelieve the employer about whether the plaintiff had violated any policy by failing to report her prescribed fentanyl patch since the policy only referred to a prohibition against using illegal drugs, alcohol and controlled substances that would interfere with job performance.  There was no reporting requirement mentioned in the policy.

‘An employer's changing rationale for making an adverse employment decision can be evidence of pretext’ to establish discrimination.” Sells v. Holiday Mgt. Ltd., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-5974, ¶ 27, quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996), amended on other grounds, 97 F.3d 833 (6th Cir.1996). “The factfinder is entitled to infer from any ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ in the employer's proffered reasons for its action that the employer did not act pursuant to those reasons * * * . If the factfinder concludes that one of the employer's reasons is disingenuous, it is reasonable for it to consider this in assessing the credibility of the employer's other proffered reasons.”

Mitigation.  The court also rejected the employer’s argument that the plaintiff was not entitled to so much back pay because she failed to mitigate damages and had recovered workers’ compensation during the same period because she was purportedly unable to work.  Again, the court rejected a judicial estoppel argument because she might have been able to work with a reasonable accommodation.  The court also found the mitigation affirmative defense was waived because there no was argument about it in closing statements and it failed to object to the exclusion of its proposed jury instruction.  As with the bifurcation issue, it was an error to not transcribe the jury instruction conference and include on appeal.  Failing to include a mitigation jury instruction could not be a plain error because the collateral source rule precludes consideration on the receipt of unemployment or workers’ compensation in a discrimination case, in part to further deter discriminatory employer misconduct.  In any event, the employer bore the burden on this affirmative defense and it failed to introduce any evidence about jobs which had been available that the plaintiff could have performed.   Finally, the amount of back and front pay awarded by the jury was well below the plaintiff’s estimates of what she would have earned if she had not been terminated.

Compensatory Damages for Emotional Distress.  The court rejected the employer’s argument that the plaintiff could not recover for emotional distress without expert testimony or a contemporaneous physical injury. “Under Ohio law, even without proof of contemporaneous physical injury, one may recover for mental anguish, humiliation or embarrassment.”

 

At trial, Cavins testified that she had been forced to file for bankruptcy as a result of the termination and her resulting loss of income. Cavins further testified that in addition to incurring filing fees for the bankruptcy, her relationships with creditors and others had been affected. She also stated that she was humiliated. In addition, Cavins testified about stress and stomach issues while she worked at Black Stone, due to her employers’ attitude.

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.

  

Franklin County Court of Appeals Reinstates Age Discrimination Claim and Rejects Honest Belief Rule When Plaintiff Was Arguably More Qualified Than Successful Candidate

In early June, a unanimous Franklin County Court of Appeals reversed a university’s summary judgment on an age discrimination claim, but affirmed dismissal of the disability discrimination claim. Ceglia v. Youngstown State Univ., 2015-Ohio-2125.   The plaintiff was a part-time social work instructor for many years with the university and applied for a full-time teaching position.  He was much older and had more work and teaching experience than the successful candidate (who had no teaching experience at the time she applied).  When asked if his age had been an issue, he was told by the selection committee chair that they had focused on “mid-level” candidates.   The plaintiff was also able to produce evidence that each of the reasons given by the members of the selection committee as to why he had been rejected had no basis in fact and that they had contradicted each other.  Finally, the Court rejected the trial court’s reliance on the “honest belief rule” based on the plaintiff’s ability to dispute the university’s pretexual explanations and the subjective nature of the committee’s decision.

The most interesting aspect of the decision is the Court’s rejection of the application of the honest belief rule, which is generally an insurmountable obstacle for plaintiffs asserting employment discrimination claims.  “Under the "honest belief" rule, if the employer honestly, but mistakenly, believes in the proffered reason given for the hiring decision at issue, then the employee cannot establish the requisite pretext.”   

As discussed above, appellant did more than simply disagree with the University's proffered reasons for denying him the position. Appellant supported his denials with corroborating evidence upon which it may be reasonably inferred that many of the proffered reasons for denying appellant the position either had no basis in fact or were insufficient to support the decision. Appellant also produced circumstantial evidence of a discriminatory animus based on age. Dr. Morawski's remarks to appellant and the inferences properly drawn therefrom create a genuine factual issue whether the members of the search committee honestly believed the proffered reasons for denying appellant the position and whether appellant's age was the true reason for its decision.

The Court discussed in great detail why the plaintiff was able to sufficiently demonstrate that the university’s explanation for not hiring him were pretextual.    The Court found that the plaintiff showed that the stated reasons had no basis in fact or were insufficient to justify the decision to not interview or hire him.  The university gave five reasons why he was not selected for an interview or hired instead of the young and inexperienced candidate:  

1.      The plaintiff allegedly “crossed boundaries with students by taking them out to a restaurant and socializing with them outside of the classroom setting.” However, the only such events were held after classes were over for the semester and were attended by other department faculty and held at a restaurant on campus.  No one had ever criticized these outings during his fourteen years with the university. Indeed, this issue had apparently not been discussed in the selection committee meetings.

2.      There had been “complaints from some of [his] former students that [he] had permitted students to forgo a mandatory research paper.”  He denied this allegation.  The only research paper he ever required was when he taught a class on behalf of the department chair which required a mandatory research paper and no one else was willing or qualified to teach.  He distributed an example of a research paper to the class and still had two copies of research papers he received from students of that class.  One of the selection committee had been critical that the students were not prepared to conduct research.

3.      Some students had complained that he had given "favorable grades" and “that he dismissed classes early.”   However, when he asked the department chair about whether his grades were too high, he was told his grading was not a problem.   He denied dismissing class early very often and contended that he had kept students over just as often.

4.       He had cancelled classes.  He denied that this happened regularly or often.  None of the selection committee members would admit that they had raised this as an issue, had personal knowledge of it or discussed it.

5.     He was “not the best at paperwork."  However, he had never been reprimanded, disciplined or counselled about paperwork during his fourteen year employment.  Moreover, while there was some dispute about this, there was evidence that administrative duties were less than 10% of the full-time teaching position.

In addition to casting doubt on the university’s explanation for his treatment, the plaintiff also produced evidence that age was the actual reason he was denied an interview and job.  In particular, when asked if age was the reason he was not selected, he was told by the selection committee chair that they were seeking “mid-level” candidates.     While such a comment does not compel a finding of age discrimination (and is, therefore, not direct evidence), it does constitute an inference of discrimination because the speaker inferred age as correlated with experience.

The plaintiff was also able to demonstrate pretext by comparing his relative qualifications to the successful candidate.   

"Relative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified * * * if not better qualified than the successful applicant, and the record contains 'other probative evidence of discrimination.' "

The University gave several reasons why the successful candidate was more qualified than the plaintiff:

1.      She “had more experience with agency settings."  However, the plaintiff produced evidence that he had worked for multiple agencies and hospitals, supervised more than 50 student interns and 200 employees.  As an execute director with a county board, he "provided oversight for more than 30 agencies that provided social services.”

2.      She had a "more well-rounded resume."  However, she had no prior teaching experience at the time she applied for the position, in contrast to the plaintiff’s fourteen years of teaching experience.   Indeed, the plaintiff had more years of teaching at the BSW and MSW level than any of the candidates interviewed for the teaching position.  Moreover, the plaintiff’s LISW-S license meant that he could supervise students and able to perform clinical work without supervision.   One of the committee members admitted that this would contribute to the job, but that the successful candidate lacked this qualification.

3.      She had "more field education experience."

4.      She was "organized and had been a supervisor and had been effective."

5.      She was a "better fit" for the position.

 The Court ultimately concluded that there was sufficient evidence to show that the university’s decision had been based on subjective feelings instead of objective evidence about the relative qualifications of the candidates. “Construing the evidence in appellant's favor, the University's hiring decision appears to be based, in large part, on the individual committee member's subjective belief that Holcomb-Hathy was a superior candidate to appellant rather than on specific objective evidence.”   Again, when this evidence was paired with the ambiguous statements about age being the true reason for the decision, the plaintiff produced enough evidence at the summary judgment stage to avoid judgment and require a trial on the merits.

In contrast, the plaintiff was unable to produce evidence showing an inference of disability discrimination to survive summary judgment on that claim.

 

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 Reverses Employer’s Summary Judgment Where Plaintiff Was Fired Following Altercation But White Co-Worker Was Not Fired Until After Charge of Discrimination Was Filed

Earlier this month, the Sixth Circuit reversed an employer’s summary judgment on a race discrimination claim where the plaintiff had been fired for his role in an altercation but his white co-worker was not (until after the discrimination charge was filed).  Wheat v. Fifth Third Bank, No.13-4199 (6^th Cir. 5-4-15).  The Court found that the plaintiff had stated a prima facie case of discrimination and produced enough evidence of pretext to put the case to a jury.  In particular, the Court found the plaintiff could show that he was similarly situated to the white co-worker in relevant respects even though they had slightly different job duties and behaved differently in the investigatory interview.  What was relevant for comparative purposes was their behavior during the argument.  In addition, the Court found that a reasonable jury could conclude that the Bank’s decision to terminate the plaintiff had no basis in fact, did not motivate its termination decision, or was insufficient to warrant termination.   In so holding, the Court emphasized the different manner in which the Employee Relations employee conducted the interviews of the white and black participants and the conclusions she reached from ambiguous comments by the plaintiff.

According to the Court’s opinion, the plaintiff got into a brief and unprofessional confrontation with a white co-worker.   After the plaintiff returned to his work area, the co-worker then proceeded to the plaintiff’s desk and resumed the disagreement, which was then taken into the hallway at the suggestion of another co-worker. Their physical contact was limited to a swat by the white employee.  A supervisor separated them and Human Resources was brought in to take action.  The plaintiff was still angry, was unprofessional during the interview and refused to answer certain questions.  He felt that no one asked his side of the story and asked him only questions to confirm that he was guilty of initiating the altercation.  At one point, he threw his employee badge on the table, but took it back and denied he was resigning because he felt that he had not done anything wrong.  After he indicated without further elaboration that “Monday would be a big day,” he was directed to go home and not return until called.  The white employee was then called to the conference room, asked his side of the story, told to go home only for the rest of the day and was requested to return to work the following Monday.  He explained that they were just having a bad day.    The HR employee explained that the plaintiff posed a threat of workplace violence, but the white employee did not. That Monday, the plaintiff was terminated for violating the workplace violence and harassment policies.  The white employee was given only a written disciplinary action, being deemed the non-aggressor, which stated that he “did nothing wrong and the next time just go straight to management.”  His supervisor told him that he was “absolutely fine.”    

The Bank conducted a second investigation of the incident after receiving the plaintiff’s Charge of Discrimination.   The white employee claims that he provided the same version of events as during the first interview and again reiterated that he was the one that had reinitiated the argument after the plaintiff had left and that he was the one who had swatted the plaintiff in the hallway.   The Human Resources employee found his second version to be materially different and then fired him for violating the workplace violence policy and being dishonest in the first interview.  Following its investigation, the EEOC found probable cause of discrimination, but could not settle the plaintiff’s Charge.    This lawsuit followed.

The district court had concluded that the plaintiff could not show that a similarly situated employee who was treated differently from his white co-worker.   The Bank argued that the plaintiff had a different job, was the aggressor during the altercation and was rude and inappropriate in the post-altercation interview.   Based on the testimony of the plaintiff and his supervisor, however, the Court concluded that the plaintiff and the white co-worker were performing different aspects of the same job and, thus, were similar enough for comparison.  For evidentiary purposes, a ““plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment” to be considered “similarly situated.” Instead, a plaintiff need show only that he and his comparator were “similar in all of the relevant aspects.””

 

More fundamentally, the identity of job responsibilities is not truly relevant here to the question of whether Wheat and Hatfield were similarly situated for Title VII purposes. Rather, because Wheat’s termination was spurred by a verbal, and potentially physical, altercation, the relevant comparison between Wheat and Hatfield should involve only the two men’s roles and actions in the contretemps.

Similarly, the Court rejected the Bank’s argument about plaintiff being the aggressor because there were disputed issues of fact as to who was responsible for prolonging the altercation and initiating any physical contact. “Such divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

 

The Court also rejected the argument that they were different in how they behaved during the interview because there was a factual dispute about how the HR employee conducted the interviews, which may have created some justification for the plaintiff to refuse to answer certain questions.  Moreover, his comments -- which the HR employee found to be threatening -- were ambiguous and were not found to be threatening by his supervisor (who was present during the interview).  

The Court also found that the plaintiff had produced evidence to cast doubt on the Bank’s explanation for his termination sufficient to rebut its explanation as a mere pretext for discrimination.  

“Pretext can be shown by offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated reason was insufficient to warrant the adverse employment action.”

The Court addressed each of the Bank’s termination explanations.  It found there was sufficient evidence to question whether the plaintiff’s behavior in the investigatory interview was sufficient to warrant his termination.  The plaintiff claimed that the HR employee’s questions were irrelevant and she never asked for his version of events, although she did so of the white employee.  Similarly, his vague statements about Monday being a “big day” and him “taking care” of himself were too ambiguous to warrant termination, particularly when the plaintiff denied making any threats.

The Court also rejected the Bank’s concern that the plaintiff would initiate more violence upon return to work because evidence had been produced that the white employee had been the aggressor, not the plaintiff.  In light of the fact that the white employee maintains that he had always told the Bank the truth about what happened, the HR employee’s credibility was in question as to whether she could genuinely have believed that the plaintiff was the aggressor before he was fired.

A jury could reasonably conclude that each of the rationales proposed by the defendant for its decision to fire Wheat either had no basis in fact, did not actually motivate the defendant’s decision, or was insufficient to warrant the challenged conduct.

Interestingly, there was no discussion in the opinion about the honest belief rule where the defendant acts based on mistaken assumptions after a good faith investigation.

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.

Supreme Court Creates New Legal Standard For Pregnancy Discrimination Claims

This morning, a divided Supreme Court reversed the employer’s summary judgment in a disparate treatment pregnancy discrimination case, but rejected the legal and statutory interpretation arguments submitted by the government, EEOC, employer and plaintiff.  Instead, the Court created a new standard which applies only to pregnancy discrimination claims.  Young v. UPS, No. 12-1226 (3-25-15).  The issue confronting the Court was how an employer must treat a pregnant employee who requires an accommodation offered to some, but not all, other non-pregnant employees with similar physical restrictions.  The Court rejected most-favored-nations status for pregnant employees based simply on the grounds that accommodations have been offered to only some employees. It also rejected the employer’s argument that pregnant employees only need to be treated the same as other non-pregnant employees.  Instead, the Court slightly relaxed the similarly-situated standard in the prima facie case, rejected certain business justifications, and expanded what could constitute pretext for discrimination. 

According to the Court’s opinion, the employer requires delivery drivers to carry up to 70 pounds.  During her pregnancy, the plaintiff was medically restricted to carrying only 20 pounds.  The employer refused to waive the lifting requirement, to temporarily transfer her to an alternative position or to permit her to work.  She took unpaid leave and ultimately lost her medical coverage.  This lawsuit followed. 

The employer defended its refusal to waive its lifting requirements or to transfer her to a light duty position on the basis that it only accommodated employees with workers’ compensation injuries, who lost their DOT certifications, or who were covered by the ADA (which, should be noted, does not include pregnancy as a disability or require an employer to eliminate an essential job function, but could require a transfer to another, open position).  The plaintiff contended (over the employer’s objection) that it also accommodated other employees with physical limitations.  A union steward testified that the only physical limitations that the employer did not accommodate with a transfer were pregnant employees.   The employer was given summary judgment (on the basis that the plaintiff did not identify similarly situated employees who were treated better), which was affirmed on appeal.  Those courts would only permit the pregnant plaintiff to compare herself to employees injured off the job.

The Court noted that the Pregnancy Discrimination Act has two provisions at issue in the litigation:  the incorporation of pregnancy into the definition of Title VII’s sex discrimination and a duty to treat pregnancy physical limitations “the same . . . .as other persons not so affected but similar in their ability or in­ability to work.” 

The Court rejected the employer’s argument that the second clause in the PDA merely clarifies the meaning of sex discrimination because the clarification would render the first clause superfluous.  Therefore, the Court rejected the employer’s proposed analysis that “courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the em­ployer has violated Title VII.”  That analysis would exist even in the absence of the second clause: “If the second clause of the Act did not exist, we would still say that an employer who disfa­vored pregnant women relative to other workers of similar ability or inability to work had engaged in pregnancy discrimination.”

The  Court also rejected the plaintiff’s argument that an employer must accommodate every pregnant employee’s restrictions if it accommodates any other employee’s restrictions.  The Court found that this granted pregnant employees  “most favored nation” status which would discourage an employer from accommodating the physical restrictions of long-time employees, those employees with special, extraordinarily hazardous and/or necessary skills or elderly employees.  Indeed, seniority is a enumerated defense to a Title VII claim.

The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with simi­lar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their imple­mentation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpre­textual reason for doing so.

The Court refused to give any significant weight to last year’s EEOC PDA guidance which advised employers to provide the same accommodations to pregnant employees that it provides to employees with work injuries. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with its

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

The Court observed that the PDA was enacted to overrule the Court’s prior decision in General Elec. Co. v. Gil­bert, 429 U. S. 125 where the employer provided sickness and accident insurance to non-pregnant employees and the Court found no sex discrimination because women received the same coverage that men did.  Simply including pregnancy into Title VII would not have changed the result in Gilbert, which was the intent of the second clause in the PDA.

While pregnancy discrimination claims are to be treated similarly to any other sex discrimination claims, they will differ in three material respects.  For instance, the similarly-situated standard must be relaxed:

an individual plaintiff may establish a prima facie case by ‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII. . . . Nei­ther does it require the plaintiff to show that those whom the employer favored and those whom the employer disfa­vored were similar in all but the protected ways.

In particular, the Court laid out the shifting burdens of proof as follows:

First, the plaintiff must show:

a) that she belongs to the protected class,

b) that she sought accommodation,

c) that the employer did not accommodate her, and that the employer did accommodate others “simi­lar in their ability or inability to work.”

Second, the employer would need to provide a legitimate and nondiscriminatory reason for refusing to provide the requested accommodation.

 

But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accom­modates. After all, the employer in Gilbert could in all likelihood have made just such a claim.

Third, the plaintiff must show that the employer’s reason is pretextual.

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on preg­nant workers, and that the employer’s “legitimate, nondis­criminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large per­centage of nonpregnant workers while failing to accommo­date a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employ­ees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate preg­nant employees give rise to an inference of intentional discrimination.

In response to the dissent’s concern that the  Court was imposing liability under a disparate impact theory, it notes that it intends for “continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination.”

Ultimately, the Court reversed the employer’s summary judgment, but left open the possibility that the employer’s explanation could ultimately prevail on summary judgment because it was expressing no opinion as to whether the plaintiff had introduced sufficient evidence to show 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 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: No Summary Judgment for Employer in Sex-Plus Race Title VII Case Or Honest Belief Defense Based on Cursory Investigation

Last week, the Sixth Circuit Court of Appeals reversed summary judgment for the employer in a Title VII case.  Shazor v. Professional Transportation Management, Ltd., No. 13-3253 (6^th Cir. 2-19-14).  Among other things, the Court held that the plaintiff could survive summary judgment even though she was replaced by a female because her replacement was not an African-American female.  In other words, the Court employed a sex-plus analysis and decided to not separate her sex from her race. The Court also found that the plaintiff could show that the employer’s explanation for her termination – that she had been dishonest – was pretextual simply by creating an issue of fact as to whether her challenged statements were false.  The Court also rejected the employer’s honest belief defense because it only interviewed one witness about whether the plaintiff had lied during a board meeting and never questioned her about her motive for the misstatements.   While the sole interview might have been sufficient to discharge her for “overt misconduct,” it was insufficient to determine the truth or motive behind her statements.

According to the Court’s opinion, the defendant employer provided management services to a transit authority and, among other things, assigned plaintiff to be the transit authority’s CEO even though she had worked in public transit only two years.  When the plaintiff refused to participate in educational seminars that her employer provided, some of its management began questioning  her loyalty and whether she was attempting to be hired directly by the transit authority.  She was referred to in some emails as a “prima donna” and in one email as a “bi*ch.”  In her positive performance evaluation, she was criticized for poor teamwork.

Almost a year later, a dispute arose about two representations that the plaintiff made to the board of the transit authority about her employer’s willingness to provide training and consulting services concerning a labor-relations issue.  She had recommended the retention of a competing firm (which had a reputation of being anti-union) to provide training services and testified this had been the recommendation of the HR Director and General Counsel.  (The General Counsel later told her supervisor that the decision had been the plaintiff’s).  When questioned by the Board, she claimed that her new supervisor was too busy to handle union negotiations.  Some board members requested to meet specially with her supervisor to confirm this. There was some suspicion that she was not being honest because her supervisor had been active consulting with the authority in the past and she had a reputation of keeping her employer at arm’s length.   Plaintiff produced an email where her supervisor said he had another appointment on the date when the union wanted to meet and which showed that she had requested him to submit a proposal to provide union relations training.   When the meeting was held with the Board and her supervisor, the supervisor said that the plaintiff had lied when she said he was not available.  He fired her a few days later for being dishonest with the Board about his availability and for denying her role in selecting a competing firm to provide the union relations training.   His investigation consisted of one conversation with the authority’s General Counsel.     A Hispanic woman was eventually selected to replace the plaintiff as CEO.

The Court questioned the plaintiff’s argument that the emails constituted direct evidence of discrimination by essentially referring to her as an “angry black woman” or “uppity black woman.”  The email authors were not her supervisors or decisionmakers.  “Viewed as a whole,” their emails “might only show “occasional[]” sexist and racist comments, which would not be enough to establish direct evidence of discriminatory intent.”  Moreover, the Court was unsure if the cat’s paw theory could be used where the email authors were never her supervisors, had never sent them to the supervisor who terminated her and had sent the emails more than a year before her termination.  However, the Court ultimately decided to not rule on that issue because it found that she had presented sufficient circumstantial evidence to survive summary judgment.

 

The Court held that the plaintiff had shown that she was replaced by someone outside her protected class.  First, plaintiff is African-American and her replacement is Hispanic.   As for her sex discrimination claim, the Court refused to separate her gender from her race for purposes of evaluating her prima facie case:

Moving to Plaintiff’s sex discrimination claim, we find that it cannot be untangled from her claim for race discrimination. Naturally, “where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). The Supreme Court has acknowledged this truism and held that a plaintiff can maintain a claim for discrimination on the basis of a protected classification considered in combination with another factor. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). In many of these so-called “sex-plus” cases, the plaintiff’s subclass combines a characteristic protected by Title VII with one that is not. See id. We have therefore required sex-plus plaintiffs to show unfavorable treatment as compared to a matching subcategory of the opposite sex. See Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438–39 & n.8 (6th Cir. 2004).

In the case now before us, both classifications—race and sex—are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. Cf. Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994)(discussing sex-and-race Title VII claim brought by Asian woman). And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds. Thus in Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), we held that a plaintiff could rely on evidence of religious harassment to buttress his claim for racial harassment, even though the religious harassment claim could not survive independently.

 . . . If a female African American plaintiff (for example) establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that white women and African American men received the same treatment. See id. at 1032–33; see also  Gorzynski, 596 F.3d at 109–10. The realities of the workplace, let alone the purpose of Title VII, will not allow such an artificial approach. . . . .

The Court rejected the employer’s argument that the question should be whether the plaintiff can identify anyone similarly situated outside her protected class who was treated better.

This method is especially useful in cases where the plaintiff is not terminated, is not replaced, or is not replaced with a single person.. . .  But the replacement method works especially well when a plaintiff is terminated and the employer hires a single replacement to do the same job. That is precisely what happened in this case.

The Court rejected the plaintiff’s argument that the white male temporary replacement should have been considered to be her replacement because he was temporary.  The Court also left open the employer’s ability to show at trial that it had put forth four candidates to replace the plaintiff and the transit authority chose to hire the Hispanic woman.

 As for pretext, the employer explained that it had terminated the plaintiff because she lied to the transit authority board.  The Court found that the plaintiff produced sufficient evidence to prove that this explanation was pretextual because it lacked basis in fact.  In short, she produced sufficient evidence to question whether her statements to the board “were clearly untrue.” 

A jury can consider Hock’s and Plaintiff’s credibility and weigh the evidence accordingly. We cannot.

As for her denial to the Board that she was involved in the decision to recommend her employer’s competitor, the Court found the employer could not prevail on summary judgment because it produced only hearsay evidence to show that the plaintiff had lied.  Instead of producing deposition testimony or an affidavit from the General Counsel refuting his role in the decision and putting that decision on the plaintiff, the employer produced only an affidavit from the plaintiff’s supervisor claiming that this is what he had been told by the General Counsel.  Moreover, “Plaintiff’s sworn testimony that she did not have a role in the retention of MPI is enough to create a genuine issue of fact.”  

Finally, the Court rejected the employer’s reliance on the honest belief doctrine and created a higher threshold for this doctrine when the employee’s misconduct is based on lying and the employer failed to question her about the motive for her misstatements: 

“If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous.” . . .  “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.”

Hock’s investigation into Plaintiff’s two purported lies consisted of speaking with one person, Desmond, about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired Plaintiff for overt misconduct.  . . . .  But Hock fired Plaintiff for lying—not   just uttering a falsehood, but doing so “with intent to deceive.” Webster’s Third New Int’l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind Plaintiff’s statements, let alone her motive. Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply.

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.