Sixth Circuit Rejects Honest Belief Defense in Regarded As ADA Claim Based on Circumstantial Evidence That Questioned Employer’s Credibility.

On Wednesday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an ADA “regarded as” discrimination case and rejected the employer’s honest belief defense based on evidence produced by the plaintiff to create a jury question about pretext.   Babb v. Maryville Anesthesiologists PC, No. 19-5148 (6^th Cir. 11-6-19). First, the plaintiff produced expert witness evidence about the reasonableness of the plaintiff’s professional conduct, which made debatable the reasonableness of the employer’s decision, particularly when no investigation had been conducted before her termination.  In other words, there were no particularized facts supporting the employer’s decision beyond the initial report of allegations.  Second, the plaintiff relied on an email sent by a co-worker claiming that she had been fired because of concerns with her vision.  This was arguably not a stray remark when the co-worker had been requested to send the email by one of the decision-making physicians who failed to deny in his affidavit that he told her what to say.


According to the Court’s opinion, about a month after the experienced plaintiff CNRA was hired in June 2015, a physician noticed that she had poor eyesight (because of how close she had her face to a monitor in order to read it). She admitted that she had “degenerative retinal condition” that made it hard for her to read certain screens and medical records,” but assured him that it did not affect her ability to perform her job.  That physician told another and claimed that the plaintiff would be blind within 10 years, which the plaintiff disputes.   After a few other physicians expressed similar concerns, a meeting was held with the plaintiff on October 30 where she had explained that she had been diagnosed a decade earlier and was requested to obtain medical clearance that she could safely perform her job duties and to consider LTD insurance.  However, one of the physicians indicated that they may need to consult with counsel because her ophthalmologist was unlikely to give them the necessary assurance.   Otherwise, she was told that she was a “good fit” with the practice.


The plaintiff consulted with her ophthalmologist, but the Court noted that there was nothing in the record about what the plaintiff was told or, importantly, what – if anything -- she told her employer.  Apparently at the suggestion of two of the physicians to ensure that she was not misreading data, the plaintiff began having her co-workers read hospital monitors to her and this simply aggravated concerns about her eyesight and these concerns were noted in her performance evaluation.   The employer was then informed of two apparent clinical judgment errors that the plaintiff made in patient care which were unrelated to her eyesight.  No investigation was conducted concerning the errors, but at a partnership meeting the following week, her eyesight and the errors were discussed and the decision was made to terminate her for the alleged errors.   She was informed in mid-January that she was terminated solely because of the supposed errors, which shocked her because no one had questioned her about the issues beforehand.

A new co-worker, after discussing the termination with one of the physicians (who did not have responsibility for HR), then emailed the other CNRAs (at the physician’s direction).  She explained in her email that the plaintiff had been terminated because of concerns with her eyesight and “a few other issues” and that the plaintiff had failed to produce documentation that she could safely perform her job.  The undisputed evidence was that this new employee had never been told why the plaintiff had been fired and instead that she had based her explanation on staff gossip.  The particular physician was never questioned about it during the litigation and his affidavit was strangely silent about what information he told the new employee about why the plaintiff had been terminated.   


The plaintiff found another job as a CNRA and no issues were raised about her eyesight or professional judgment.  She filed an EEOC Charge and sued on the basis that she was illegally terminated because she was regarded as disabled when, in fact, she was not.   During the litigation, she supplied an expert affidavit that the alleged mistakes she had made were not in fact judgment errors, but were normal incidents during which she performed reasonably.   The trial court excluded the expert affidavit, and granted the employer’s motion for summary judgment, relying primarily on the honest belief defense.  On appeal, the Court ruled that portions of the expert affidavit were still admissible and could be used to show that the employer’s explanation for her discharge was pretextual.


To prevail on a “regarded as” discrimination claim, the Court held that the plaintiff must show

 that their employer believed they had a “physical or mental impairment,” as that term is defined in federal regulations.  The employer may then rebut this showing by pointing to objective evidence “that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.”

“[E]ven if an employee establishes that their employer “regarded” them as disabled under the aforementioned standard, the employee must still show that their employer discharged them (or took some other form of adverse employment action against them) because of, or “but-for,” their actual or perceived physical or mental impairment.”  This can be shown with either direct evidence or using the circumstantial burden of proof.   Under the latter method, if the employer articulates a non-discriminatory reason for its action, “an employee can show that an employer’s explanation was pretextual in “three interrelated ways”: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.”  Further, the plaintiff “may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.” At the summary judgment stage, the employee is only required to identify a disputed issue of material fact and is not required to prove her case.


The Court found sufficient evidence for the jury to find that the plaintiff was perceived as disabled:

Viewed in the light most favorable to Babb, the record shows, not only that Maryville physician-owners and employees openly expressed concern about Babb’s “degenerative retinal condition,” including on Babb’s job evaluation and during the meeting at which Maryville decided to fire Babb, but that Maryville’s head of personnel (Dr. Robertson) met with Babb specifically to discuss Babb’s vision, and, during that meeting, asked Babb if she had disability insurance.  See Babb, 361 F. Supp. 3d at 775 (emphasizing this latter fact).  More still, after that meeting, Dr. Robertson advised her colleagues that Babb’s vision issues might require them to consult an attorney.  This is more than enough evidence from which a reasonable juror could find that, in January 2016, Maryville genuinely believed Babb had a “physiological . . . condition” affecting one of her “body systems,” namely, her vision. 

While the Court agreed that requesting a fitness-for-duty examination (as happened here on October 30) cannot be used against the employer, this case was distinguishable from those cases where the employer ONLY requested a fitness-for-duty examination and did not also mention the concerns on a performance evaluation or discuss the medical condition while deciding to terminate the employee, etc.


The Court then found that there was sufficient evidence for the jury to consider whether the employer’s explanation was pretextual.  First, there was a question about whether the plaintiff’s two errors were in fact errors reflecting terrible clinical judgment which would justify her termination or, based on the expert affidavit, reflected that she performed reasonably under the circumstances.  “This dispute matters because the less serious Babb’s clinical mistakes, the more likely they were not the “real” motivation behind Babb’s termination.” The Court rejected the employer’s honest belief defense because it “failed to make a reasonably informed and considered decision before taking its adverse employment action.” The expert’s affidavit challenged “the likelihood that a reasonable anesthesiology practice would have actually relied on those facts to fire an experienced nurse practitioner like Babb.”


Second, the Court found sufficient disputed evidence as to whether the alleged clinical errors actually motivated the employer’s decision.  The employer insisted that she was fired solely because of the clinical errors and never contended during litigation that her vision posed a safety hazard.  But, hours after the plaintiff had been terminated, a co-worker sent an email immediately after speaking with one of the decision-making physician partners that the plaintiff had been terminated primarily because of questions about her vision.  Finally, her vision was a significant issue of discussion during the meeting when the decision was made to terminate her employment and was even discussed in her performance evaluation.   “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”


The Court refused to draw any favorable inferences in favor of the employer based on undisputed evidence that the co-worker’s email had contained information which had never been relayed to her by any of the physicians.  Rather, the Court found that the other undisputed facts made the co-worker’s explanation about her source of information a disputed issue of fact that only a jury could resolve.    In particular, ruling in the employer’s favor would require a finding that she “is a credible witness, which, of course, we cannot do at this stage.”


The Court also refused to disregard the co-worker’s email as an irrelevant “stray comment” because, among other things, the particular physician never submitted any evidence about what he told the co-worker in his affidavit and apparently was not deposed about the information either:

Aycocke’s e-mail, however, was not the kind of “stray discriminatory remark,” offered by a “non-decisionmaker,” disconnected to the decisional process,  . . . Rather, Aycocke’s e-mail was a quasi-official communication, written at the behest of one of the key players in Babb’s termination (Dr. Proffitt), almost immediately after Babb’s termination, following an in-person conversation with Dr. Proffitt.  It was not a speculative claim shared privately among colleagues; it does not read like gossip.  Indeed, despite submitting a declaration in discovery,  . . .  Dr. Proffitt has never testified to the contrary.  In light of this rather unique context, then, a jury should decide whether Aycocke based the content of her e-mail on “rumor and innuendo,” as she and Dr. Robertson testified at their depositions, or whether she based it on the word of Dr. Proffitt, as the circumstantial evidence would seem to suggest.  And, if a jury could find that Aycocke based her e-mail on the word of Dr. Proffitt, a jury could also find that Maryville acted pretextually when it fired Babb for “clinical errors.”

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 Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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 FMLA Leave to Rest Shoulder (by playing golf) When FMLA Use was Approved Only for Incapacitating Flare-Ups Which Prevented Plaintiff from Working

Last week, the Sixth Circuit affirmed an employer’s summary judgment on an FMLA retaliation claim where the employee was fired after being observed on two occasions playing golf when he had called off work under the FMLA due to a shoulder disability.  LaBelle v. Cleveland Cliffs, Inc., No. 18-2444 (6^th Cir. 9-13-19).  When the employer approved his intermittent leave request, it limited his FMLA use to the monthly “flare-ups” of his shoulder condition and four medical appointments each year.  However, the plaintiff was stacking his FMLA leave in between or following pre-scheduled vacation time, he says, to give his shoulder a rest.  The employer concluded that if he could play golf, he could work.  The FMLA leave was approved for “flare-ups” that incapacitated him, not for rest by playing golf.  The Court agreed and held that the employer did not unlawfully retaliate in firing the employee for FMLA abuse and did not even need to rely on an honest belief defense.

According to the Court’s opinion, the employee suffered bone deterioration from avascular necrosis and had already had hip replacement surgery in 2012.  The condition then began affecting his shoulders, causing him to suffer constant pain.  After receiving disciplinary counselling for attendance in 2016, he explained that he was missing work because of shoulder pain and was directed to seek FMLA leave.  His first FMLA request was denied because he failed to show the necessary incapacity or regular medical treatment for a chronic condition.   His next request from a different physician was granted for intermittent monthly three-day flare-ups and for four medical appointments per year.  


Over the next year, the employer then noticed that the plaintiff suspiciously took his FMLA leave in between or immediately following pre-scheduled vacation and assigned a private investigator to observe him on FMLA days, which suspiciously coincided with the plaintiff’s Tuesday golf league.

The videos showed that the plaintiff’s golf swing was unimpaired without any sign of pain or discomfort.  The employer provided the plaintiff with an opportunity to defend himself from what appeared to be FMLA abuse.   He explained that he was in constant pain and he thought that he could take the FMLA whenever he wanted and so he usually attached them to a weekend or other time off in order to give his shoulders the maximum rest from his repetitive duties. He claimed that golf was not nearly as hard on his shoulders as his job.  

The employer concluded that if the plaintiff was well enough to golf, he was well enough to work and terminated his employment.  He pursued union arbitration, but lost.  He then filed his federal lawsuit, alleging both FMLA interference and FMLA retaliation.  


The Court agreed that he had no interference claim because the employer permitted him to take FMLA leave and only fired him after he returned to work.  As for his retaliation claim, the plaintiff pointed to emails where the HR employees expressed hostility to FMLA use and desire to terminate some slackers.   However, in attempting to prove pretext, he did not argue that his golfing was not the actual reason for his termination.  Instead, he argued that his golfing did not constitute FMLA abuse – i.e., that the employer’s articulated reason for his termination had no basis in fact.   Sadly for him, the Court agreed with the employer that his FMLA use had only been approved for medical appointments and flare-ups, not for rest.

But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.  Thus, as the arbitrator put it, “[t]here is no doubt that [LaBelle] did not use his FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the purposes of the law.”  . . .  If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.   

The Court found that the plaintiff failed his burden of showing that the employer’s reason had no basis in fact.  Accordingly, the employer need not rely on an “honest belief” defense that it honestly believed the plaintiff had abused his FMLA leave even if the golf game constituted rest from his repetitive motion duties. 

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.

Court Rejects Disability Discrimination Claim and Plaintiff’s Unsupported Allegations

The Summit County Court of Appeals last month affirmed summary judgment for a school district on a disability discrimination claim brought by a former food services manager. Pilato v. Nordonia Hills City Schools Bd. of Edn., 2019-Ohio-3085.  The manager contended that she had been required to work during her medical leave, but the Court ruled that this did not create a jury question because emails that she sent before and during her medical leave reflected that she had voluntarily continued to work without being directed to do so.  Further, the Court concluded that she failed to create a jury question about the reason for her termination when the evidence was so clear and “one-sided” as to her fault despite her self-serving denial that there was nothing for the jury to decide.  In other words, the court refused to let the plaintiff’s self-serving and unsupported allegations contradict otherwise overwhelming evidence in order to avoid summary judgment.  


According to the Court’s opinion, the plaintiff had worked for many years without any disciplinary history.  Because she required knee surgery, she requested and was approved for 10 days off work at the end of the school year.  Before she left, she and her manager began planning for the next school year and indicated that they would touch base again after her surgery.  During her absence, a food order that she had placed was cancelled using her secret username and password from a non-school computer.  Further, employee payroll records were changed from her home computer.  Moreover, employees complained about her bullying them.  When confronted, she denied the allegations opted to resign her employment rather than accept a demotion and transfer or being fired, but then brought sue alleging disability discrimination.  


The Court found that she had not been denied a reasonable accommodation when she continued to work during her medical leave.  She had applied and been approved for medical leave.  Although she complained on appeal that she had been directed to address the food order cancellation issue while on leave, she had waived by issue by not raising it before the trial court.   While she argued in general that she had been expected to work from home while on leave, her supervisor denied this and her own emails indicated that she had not been asked to work.  The Court ultimately would not let her contradict her own emails with her deposition testimony in order to create a disputed issue of fact.  It found that the evidence was “so one-sided” that the employer was entitled to judgment as a matter of law.


The Court rejected her argument that the school fired her because it had required her to work during her medical leave. Instead, GFS had provided records showing that the food order had been cancelled using her secret username and password from a non-school computer and she admitted to having logged onto the GFS website that same evening.  Aside from her self-serving denial, the evidence was so overwhelming and “one-sided” that she was guilty of the offense that there was nothing for the jury to decide.  Indeed, it was undisputed that the school had already been working with her to plan for the next school year before she went on leave and the only intervening event was the misconduct alleged following her surgery.


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.

Sometimes It’s a Mistake to Leave the Office

Earlier this month, the Sixth Circuit Court of Appeals affirmed summary judgments for two employers against employees who requested or took a medical leave of absence.   Both cases also rejected "stray remarks" as evidence of discrimination.   In Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (6^th Cir. 4-23-18), the Court found that resume fraud by a relatively new senior human resources professional justified her immediate termination on her first day back to work from maternity leave.  The fraud had been discovered when her manager discovered a number of significant performance errors during her leave which caused her to examine her resume more closely.  The court rejected arguments that events seven months earlier could have motivated the employer over more recent events.  Also, it was irrelevant if the employer had determined to discharge her before meeting with her and confronting her in the termination meeting.  In Tillotson v. Manitowoc Co., No. 17-1640 (6^th Cir. 4-4-18), the plaintiff objected to the employer’s reliance on a nine-factor rubric in selecting him for termination during a RIF because several of the factors were based on subjective criteria, such as his future potential.  The Court found that there is nothing inherently unlawful in utilizing some subjective criteria and the plaintiff failed to conduct any discovery so as to introduce any substantive evidence showing that the criteria were inaccurate or rigged against him.   Further, because the plaintiff had not actually required medical leave or even a reduced work schedule or reasonable accommodation and had not asserted an ADA claim, evidence about negative remarks made about his medical condition were essentially irrelevant to show his termination in a RIF was a pretext for unlawful discrimination or retaliation.

In Bailey, the plaintiff human resources employee had been fired eight months after being hired on her first day back from maternity leave.   While her duties were being handled by her supervisor during her maternity leave, her supervisor discovered several material mistakes, and this caused her to question the plaintiff’s basic competence and re-examine her resume and job application.   In doing so, the manager discovered that the plaintiff had applied for a similar job with the employer a few years earlier and that the dates of employment, among other things, on her resumes did not match.  Instead, the plaintiff had falsified and exaggerated her experience and qualifications on her latter resume.  When confronted, the plaintiff could not deny the falsifications, but preferred to describe them as “embellishments.”   Although she argued that these “embellishments” were insufficient to justify immediate termination of her employment, the trial court found that they would be a sufficient reason to terminate a senior human resources professional.   It also rejected her argument that she should have received progressive counseling before being hired for resume fraud.

As for the performance deficiencies, the manager had assembled 28 pages of email messages and a list of 12 other mistakes, in addition to problems with chronic tardiness.  The Court rejected the plaintiff’s over-reliance on her positive probationary period performance evaluation because it had noted her need to pay more attention to details, it gave her an overall rating of just “competent” and she had conceded some of her performance mistakes.   While it tended to agree that many of the issues should have been handled with progressive discipline, it could not ignore that the resume fraud, by itself, was sufficient grounds for immediate termination of a senior HR professional.

The Court also rejected the plaintiff’s argument that the decision to terminate her employment had been made before she was informed of the issues and given a chance to respond. “Speculation as to when, precisely, Oakwood, through its decision makers, formulated the resolve to terminate Bailey’s employment is of little consequence.”

Regardless of the wisdom of the criticism of her job performance, the court concluded that the plaintiff could not show that age or race were the actual reason for her termination because the termination decision had been made by the same people who hired her just 8 months earlier when she was the same age and race.

While the plaintiff’s pregnancy discrimination claims were stronger, they were still rejected.  She argued that she suffered pregnancy discrimination because she had been fired seven months after revealing her pregnancy, had been required to report to work a half-hour earlier after she announced her pregnancy, her supervisor had questioned the wisdom of her having a baby at her age, she had been given more work to do after her pregnancy announcement and she was assigned more work than her peers.  The Court rejected each of these arguments.  If an adverse action taken two months or even two weeks after a pregnancy announcement were found to be too remote to create, by itself, an inference of discrimination, then a delay of seven months (and three months after the pregnancy itself) were too long to support a causation argument. “It is well established that temporal proximity alone is insufficient to support an inference of retaliation.”  While her work time had changed and she was criticized for chronic tardiness,  the same criticism existed when she was chronically tardy with a latter starting time.   Her statistics concerning workloads was not supported by credible evidence and her extra work assignments followed her own invitation to take on more work.  Lastly, her manager’s comment was found to be merely insensitive instead of reflecting an unlawful bias.

Finally, her retaliation claim was ultimately rejected because she could not show that the reasons for her termination were pretextual.  She alleged that she had a verbal disagreement with her African-American manager about the hiring of African-American applicants before her maternity leave.   In her deposition, she admitted that some of these applicants had flaws (such as recent criminal records) that disqualified them from employment.  Her subjective belief that her manager was biased was insufficient to overcome her lack of evidence to show that the reasons for her termination – poor work performance and resume fraud – more than seven months after the verbal disagreement were the actual reasons for her termination. “Such an intervening legitimate reason for discipline tends to defeat any inference of retaliation based on the proximity of the discipline to an earlier event.”

In Tillotson, the plaintiff challenged his termination during a reduction in force as retaliatory under the FMLA and state age discrimination laws.   He suffered from what his physician described as IBS and could not travel more than two consecutive hours.  While he had requested time off work, his physician did not certify that this was necessary.  Further, his job did not need to be restructured at that time because all of his sales territory was already within two hours.    When the VP of Sales, however, heard about the restriction, he stated that the company could not have a “sales guy” who could not travel.  Later, that VP was responsible for selecting which of his four salespeople would be terminated in the reduction in force.  Relaying on a nine-factor “rubric” that had been assembled during an earlier annual performance evaluation process, the VP selected the plaintiff for termination because he was the lowest rated of the four.

The plaintiff objected to the company’s reliance on the rubric because some of the factors were subjective, such as who was rated higher for future potential.  However, the plaintiff conducted no discovery on the issue and did not submit any evidence that the rubric or subjective evaluations were inaccurate or even unfair.

The company needed some criteria to determine which of the four product sales managers at Delfield would be terminated, and Tillotson presents no basis for a juror to conclude that the 9-Box was altered, misused, or erroneously or unfairly filled in after the company became aware of Tillotson’s FMLA leave request.

 . . . . We have recognized the need to scrutinize evaluations that utilize subjective criteria because of “the problems inherent in selection procedures which rely solely upon . . . subjective evaluations,”  . . . but “a plaintiff can not ultimately prove discrimination merely because his/her employer relied upon highly subjective qualities (i.e. ‘drive’ or ‘enthusiasm’) in making an employment decision,”  . . .  First, the company did not rely solely on subjective criteria.  Willoughby testified that objective metrics such as “monthly sales targets and feedback from customers and reps” were employed to evaluate a product sales manager’s “performance rating” in the 9-Box rubric, and Wilczak testified that performance scores were based largely on objective sales reports.  More importantly, however, to the extent the 9-Box utilized subjective criteria to evaluate product sales managers’ “future potential,” Tillotson has offered no evidence from which a reasonable juror could infer that the company manipulated, abused, or misapplied that criteria to affect Tillotson’s ranking.

The plaintiff had incorrectly argued that the rubric had been created for the RIF decision (and, thus, had been impliedly rigged against him), but the uncontested evidence was that the rubric was completed well before the RIF had even been contemplated, and thus, could not have been “rigged” to cause his termination.  There was no evidence introduced that the rubric had been created or completed after he exercised his FMLA rights, so no speculative inference could be implied against the employer on that count.

Further, the employer was not required to prove at the pretext stage the basis for its ratings, such as the plaintiff’s “medium” rating for potential. “’The defendant need not persuade the court that it was actually motivated by the proffered reasons.  It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’” Instead, it is the plaintiff’s burden to prove discrimination.    The plaintiff could have conducted discovery on these issues, but he failed to do so.

As for the comments by the VP and an HR employee about his medical restrictions on travel, the Court concluded that they were not evidence of FMLA retaliation because the plaintiff never required a leave of absence, or even a reduced work schedule, under the FMLA.  He did not even request an ADA accommodation or initiate an ADA claim in this litigation.  His travel schedule never required any modification either. That both the ADA and FMLA related to employee medical conditions does not make comments about medical restrictions probative of both types of claims:

Tillotson’s request for travel accommodations is not protected conduct under the FMLA because “the FMLA does not appear to have a freestanding reasonable-accommodations provision,”  . . . .and “the leave provisions of the [FMLA] are wholly distinct from the reasonable accommodations obligations of employers covered under the [ADA],”

Because the negative comments about his medical restrictions were not related to any FMLA leave that he took and he failed to purse an ADA claim, those comments were insufficient to prove that he was retaliated against under the FMLA so as to prevent summary judgment.

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

Divided Sixth Circuit Affirms Dismissal of FMLA Claims But Finds Possible ERISA Claims Based on Same Evidence

Yesterday, a divided Sixth Circuit affirmed summary judgment on FMLA interference and retaliation claims where the plaintiff employee, like 55 employees before him, had been fired under the common company policy for failing to call off for three consecutive days, but on the same facts the Court reversed dismissal of his ERISA interference and retaliation claims on the grounds that the employer’s failure to call him to check on him (like some other employees who had similarly failed to show or call off) prior to terminating his employment could constitute evidence of pretext.   Stein v. Atlas Industries, Inc., No. 17-3737 (6^th Cir. 4-9-18).  The Court found that the employee could not show unlawful interference with his right to take FMLA leave because the FMLA regulations permit employers to enforce call-off policies, which the plaintiff admittedly had failed to observe due to his own confusion about when he had been released to return to work.  His confusion about what his physician had written did not excuse his failure.  The Court also concluded that he could not show unlawful retaliation based only on the passage of 10 weeks between the start of his FMLA leave and his termination because temporal proximity alone is insufficient evidence when the span of time is more than 8 weeks.  Unlike his FMLA claim, however, the employee was able to produce evidence that his self-insured employer was very concerned about the medical bills incurred by his son.   Therefore, the passage of 7 months did not destroy his evidence of causation because he was not relying on temporal proximity alone and it was known that his son would likely require another hospitalization.   This “extra” evidence of employer motivation also apparently made relevant evidence of  pretext that the Court had previously rejected as evidence of pretext in his FMLA claims.

According to the Court’s opinion, the plaintiff had worked for the defendant company for 20 years and even had a year of perfect attendance when his son required hospitalization for a severe, chronic and rare neurological condition that apparently caused the employer’s insurance rates to rise and had been blamed by some employees for the employer’s inability to raise wages.  The employee then required surgery for a work-related injury and was off work on FMLA leave for 10 weeks.   Near the end of July, his doctor told him that he could return to unrestricted duty on  August 10.  However, the employee did not understand or realize that his physician had immediately released him to return to work on light duty on July 20 and had so informed the employer.   Although employees are entitled under the FMLA to reject light duty work, they are still required to adhere to the employer’s attendance policy, which in this case required employees to call off every day that they did not intend to return to work after they have been released to light duty.  When the employer received the physician’s release for light duty, it called the physician to confirm the release because the employee had not called off work.  When the employee did not report to work for three consecutive days or call off, it terminated his employment like it had 55 employees before him.   The employee produce some evidence that the employer had called some other employees before terminating them under the same policy, thereby showing selective enforcement.

First, the Court rejected the FMLA interference claim.  The Court found that the employee’s confusion about his medical release and its ramifications did not constitute “unusual circumstances” to excuse his failure to call off work under the employer’s policy.  The type of “unusual circumstances” that would have justified him not complying with the policy would be a malfunctioning voicemail or telephone system.   While the Court was sympathetic that the doctor told the employee one thing, but wrote something else, the Court also found that the employee should have read the form which his physician gave him.  The Court also rejected the FMLA interference claim because FMLA regulations require employees to comply with their employer’s call off procedures even if they are entitled to be on FMLA leave. 

Here, [the employer’s] policy required employees on medical leave to either return to work or call in once their doctor released them with light-duty restrictions.  And the company’s employee handbook provided that “any associate who is absent three (3) consecutive days without permission or without calling in [would] be automatically discharged.”  . . . So, when [the plaintiff] failed to report for work or call in for three consecutive days after his release, [the employer] was within its rights to terminate him.   

It was irrelevant that the employee was legally entitled to reject light duty work under the FMLA. 

Had [the employee] contacted [the employer] to say that he was using his remaining two weeks of FMLA leave and the company subsequently fired him under the attendance policy, [he] would have a claim.  But that is not what happened.  [Its] policy required [him] either to return to work or call in and report his intentions, and [he] did neither.  So the light-duty regulations do not protect him.

Second, the Court rejected the FMLA retaliation claim.   The employee apparently admitted that his only evidence of retaliation was the temporal proximity of the termination – 10 weeks after he began FMLA leave.   There were apparently no stray or other remarks which would show that the employer was motivated to retaliate for his taking FMLA leave.  However, temporal proximity alone cannot constitute sufficient evidence of causation when the lapse of time is greater than 8 weeks.   Accordingly, the Court affirmed dismissal of the FMLA claims. 

Finally, the Court found that there was sufficient evidence for a jury to consider whether the employee was fired in retaliation for, and to prevent him from, using his ERISA benefits to obtain employer-covered medical treatment for his son.  The employer was self-insured for medical coverage and had stop-loss coverage for extraordinary claims.   The company had apparently spent $500K on his son’s care in the prior year (part of which was covered by the stop-loss coverage) and had been publicly lamenting “skyrocketing” health care costs in employee bulletins.  The HR Director was alleged to have complained about this to another employee and attributed the rising employee premiums to his son’s $1M in medical bills.  While the employee’s supervisor made the decision to terminate his employment, he did not act alone because the HR Director and the VP of Operations also participated in the decision, decided to not reconsider or excuse his confusion about his medical release, and were well aware of the cost of his son’s medical expenses.   Further, the passage of seven months between his son’s hospitalization and the termination decision did not destroy the temporal proximity inference because, as just discussed, the employee was not relying on temporal proximity alone (as he did in his FMLA claim).   This was particularly true when it was known and likely that his son would have to return to the hospital again in the future.

The employer again explained that it had fired the employee under its policy of automatically firing employees who fail to show up or call off for three consecutive days and pointed out that it had similarly fired 55 other employees under this policy.  

Thus it is [the employee’s] turn once more.  [The employee] “need not show that the employer’s sole purpose was to interfere with [his] entitlement to benefits” or to retaliate, but instead that a reasonable jury could find that unlawful considerations were a “motivating factor” in its actions.  

The Court then remarkably concluded that while the employer’s rationale was justified under the FMLA, it could constitute pretext under ERISA.   Although the Court rejected the employee’s argument that the employer’s failure to call him to schedule a return-to-work drug test after he had been released to return to light duty was evidence of pretext for his FMLA retaliation claim, it found that evidence relevant for his ERISA retaliation claim.  Finally, it found that the employee’s “suggestion” that the employer had called some workers to find out why they had not returned to work or called off (instead of automatically terminating them) constituted evidence of selective enforcement and ERISA retaliation, but was apparently irrelevant to his FMLA retaliation claim. 

[The plaintiff] had worked at [the defendant company] for nearly twenty years, had won at least one perfect attendance award, and had worked overtime when asked.  He seems to have been a satisfactory employee.  But as the three days after his release to light duty rolled by, [the defendant company] reached out only to [his] doctor and [its]third-party administrator for workers’ compensation claims—just to double-check that [he] had really been released.  And even though [its] employee handbook indicates that [he] had to “complete a return to work fitness exam and drug screen prior to returning to work” that “[would] be scheduled by the Human Resource department,”  . . . the company did not schedule [his] drug screen before it fired him.   . . .   Although [the defendant employer] was not required to reach out to [him, for reasons set out in the FMLA-interference discussion above, the fact that it did not do so could still raise a juror’s suspicions about [its] motives.  And while [the employer] claims that this was all just standard practice—pointing to a list of fifty-five employees that the company terminated under its no-call, no-show policy in the past twenty or so years—[its] list only includes names and dates.  It does not indicate whether these fifty-five terminations are otherwise similar to [the plaintiff’s] in the relevant respects.  And [the plaintiff], for his part, has pointed to evidence suggesting that his superiors selectively enforced the absenteeism policy by calling some employees to “ask what’s up” when they failed to show up for work, but not others.  

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 Rejects Plaintiff’s FMLA Jury Verdict Which Rested Solely on Temporal Proximity

On Tuesday, the Sixth Circuit reversed a jury verdict entered in favor of a plaintiff who claimed that she had been terminated for falsifying her time sheets in retaliation for taking FMLA leave.  Hartman v. Dow Chemical Co., No. 15-2318 (6^th Cir. 8-16-16).   However, the Court found that there was insufficient evidence to prove that the employer’s honest belief in her fraud was pretext for retaliation even if the findings had been potentially exaggerated because there was no evidence that the employer had known about and tolerated the fraud before her FMLA leave, the investigation which commenced after her leave produced clear evidence of fraud, there was no direct evidence based on co-worker pleas to terminate her employment during her FMLA leave, and the employer could not be faulted for considering the legal ramifications of her FMLA rights. “[W]here a plaintiff’s evidence of retaliatory animus ultimately rests solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand.”

According to the Court’s opinion, shortly after the plaintiff requested FMLA leave, the plaintiff’s co-workers reported their suspicions and concerns that the plaintiff had not been working all of her assigned hours, had engaged in personal matters during work time and had failed to perform assignments.   In particular, one co-worker produced a log of the plaintiff’s arrival and departure times to demonstrate that she had not been working her assigned hours.  Another discovered that the plaintiff had not even commenced a number of long-term assignments before she left for FMLA leave and also heard during her FMLA leave that she had been observed engaging in activities and comments which belied her need for FMLA leave.   However, her supervisor refused to confront her about these issues during her leave and was satisfied when she produced an updated FMLA medical certification form to support her FMLA request.  Nonetheless, he apparently informed Human Resources that she seemed to be exaggerating her illness when he met with her.

Following her return to work, her co-workers again monitored her comings and goings and personal activities on work time and requested that action be taken so that the intern who filled in could be hired instead.  Her supervisor finally obtained objective evidence of her arrivals and departures from the front gate and her computer log-ins. He confronted her several months after she returned from FMLA leave with the fact that she claimed to be working for 60 more hours than she had been physically present on company property.  When she claimed to be working from home for 2.5 hours nightly, he pointed out that she had only logged into the computer remotely twice in the past month and one of those had been on a day when she called off sick.  She was then terminated for timecard fraud.  A jury awarded her over $50,000 in back pay and over $122,000 for future damages.

The Sixth Circuit reversed on appeal.  Although the plaintiff argued that the defendant employer had been motivated by her FMLA leave, the employer’s explanation for her termination was supported by the honest belief rule.   While the plaintiff contended that the employer had exaggerated the discrepancy between her time sheet and gate records, she could not dispute that there remained a significant discrepancy and her mere disagreement with the result was legally insufficient to disprove her employer’s honest belief.  “This requires a specific showing that the employer’s decision-making process was not ‘reasonably informed and considered’ and is thus not worthy  of belief” or was based on nothing more than personal opinion.  Even a mistake by an employer does not trump its previous honest belief.  “As this court has previously explained, it does not matter whether the employee actually committed fraud—what matters is if the employer honestly believed that the employee did.”

Unable to show that the employer’s explanation was unworthy of belief (and thus pretextual or a cover-up), the plaintiff attempted to show that it did not actually motivate the employer’s decision.  In this case, the plaintiff pointed to the temporal proximity between her request for FMLA leave and when the employer began to scrutinize her attendance.  The employer argued that it did not matter what or who triggered the investigation into the plaintiff’s attendance because employers are permitted to enforce their rules regardless of who uses FMLA leave.   The Court agreed that “temporal proximity between the start of an investigation into an employee’s misconduct and the use of FMLA generally does not itself provide sufficient evidence of animus.”  Nonetheless, “where an employer treats an employee differently after she asserts her rights . . . than before she had done so, a retaliatory motive may be inferred.” But, in those cases where retaliatory motive was inferred from increased scrutiny, there had been evidence of uneven application of the rule or tolerance of the plaintiff’s poor attendance before taking FMLA leave and intolerance for it after the FMLA leave.   In this case, there was no evidence that the employer had been aware of the extent of the plaintiff’s malfeasance before she requested FMLA leave and only disciplined her for it after engaging in protected conduct.  In other words, there was no evidence that the employer had been aware of the plaintiff’s fraud before her leave and had ignored it, only to terminate her for fraud after her FMLA leave.

The plaintiff also argued that the timing of her termination – just a few months after she returned from FMLA leave – was suspicious.  However, for temporal proximity to substitute for causation, there must be other “independent evidence.”  The plaintiff tried to argue that a co-worker’s emailed plea to her supervisor after she returned from FMLA leave was such evidence.  However, that email focused on the plaintiff’s fraud and not on her FMLA leave.  It was too ambiguous to constitute direct evidence of retaliation.

The Court also rejected the Plaintiff’s argument that her co-workers’ attempt to have her fired for timecard fraud during her FMLA leave was evidence of retaliation, even if her supervisor refused to do so while she was on FMLA leave because of a fear of litigation.

To permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions.  Moreover, there must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and an employer terminating a plaintiff based on the employee’s protected status or engagement in a protected activity:  the latter results in liability for the employer while the former does not.  For that reason, it is legally insufficient for a jury to reasonably rely on Ingold’s alleged statement that Dow was concerned that if an ERM was held concerning Hartman, she might file suit.

Finally, the Court rejected the plaintiff’s argument that her supervisor’s skepticism of her need for FMLA leave was sufficient evidence of pretext.

First, statements and actions by a decisionmaker “outside of the decisionmaking process” cannot be the sole basis for proving pretext.   . . .  Second, even assuming that [her supervisor] was skeptical of [the plaintiff’s] use of FMLA leave, “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”   . . .  In fact, just prior to meeting with [the plaintiff, her supervisor] had received a report from [HR] that [the plaintiff] was engaging in activity inconsistent with her medical restrictions.  Regardless of [his] skepticism, once [she] provided a note from her doctor that indicated she needed more rehabilitation, [he] was satisfied. Therefore, this incident fails to provide any evidence that retaliatory animus motivated [the employer’s] termination of [the plaintiff].  

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: Unfairness is No Substitute for Evidence of Discrimination

On Monday, the Sixth Circuit affirmed the dismissal of an age discrimination claim brought by a salesman who was terminated after he refused to resign following the hire of (younger and higher paid) salesmen as he had requested.  Treadway v. California Products Corp., No. 15-5718 (Aug. 1, 2016).   The Court rejected the plaintiff’s argument that he proved direct evidence of discrimination by repeated references to his retirement or semi-retirement because those comments were not connected to his age but were related to his request to “slow down” and reassign most of his territory.  “The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.“ Further, the Court rejected the plaintiff’s argument that the employer’s explanation for terminating his employment – to save money by allocating his minor remaining responsibilities – was pretextual.  While the employer’s decision might have been unfair and/or unwise, it was honestly held and not completely unworthy of belief.  Indeed, the Court concluded that the plaintiff himself was responsible for initiating the chain of events by asking to slow down, by seeking reassignment of most of his territory, and frequently inquiring when his replacement would be hired and that he only changed his mind when his new employer ultimately decided not to retain him as an independent contractor for his local and Bahamas territories.

According to the Court’s opinion, when the plaintiff was 66 years old, he requested to slow down and reduce his multi-state sales territory to eliminate most travel.  After discussions with his supervisor, it was decided to hire new salesmen to assume most of his duties and he would be limited to the area within 40 miles of his home and the Bahamas.   His supervisor assumed that he would retire by the end of 2009 based on their discussion, but the plaintiff denied ever expressing an interest in retirement.  While he was the oldest salesman in the company, all of the other salesmen were over 49 and most of them were over 60.  Initially, two other salesmen would lose their territories, which the plaintiff and another salesman would assume (as extra work), then new salesmen would be hired to take these territories and most of the plaintiff’s former territories.  At that point, the plaintiff would become an independent sales agent, lose his $48k/year salary and be paid strictly on commission, to be re-evaluated annually. 

Some months later, the employer was acquired by the defendant company.  Plaintiff was told to be patient while the new company evaluated its needs and options, so no one was hired to assume his newly expanded territory as had been contemplated a few months earlier.  His supervisor requested that the new company make plans to replace the plaintiff based on his impending retirement.  The plaintiff saw and never objected to the plan which mentioned his impending retirement, but no replacements were hired for more than two years and his salary remained unchanged.  The plaintiff continued to call his supervisor inquiring about the hiring of a replacement because he was stretched thin over four states. 

Finally, near the end of 2011, the defendant hired a new salesman to assume most of his territory.  He was 57, had prior industry and marketing experience and was paid $70K/year ($22k/year more than the plaintiff).  The rest of the plaintiff’s duties were assigned to existing and younger salesmen.  (Another younger and better paid salesman was hired the following year and was given some of the plaintiff’s former accounts).  The defendant refused to retain the plaintiff as an independent sales agent paid only through commission because it did not want to pay his travel expenses to the Bahamas when it could have a full-time employee assigned to that territory.  His supervisor tried again to convince the defendant to retain the plaintiff in some capacity, but was unsuccessful.  When the plaintiff learned that his services were no longer desired in any capacity, he refused to resign or retire as they had originally discussed.  The defendant then sent him a notice notifying him of his retirement and, when he objected, eliminated his position.

The Court rejected the argument that the plaintiff had produced direct evidence of age discrimination by the frequent references to his impending and constantly delayed retirement because there was no connection between the discussion of his retirement and his age.  In fact, he admitted that no one ever referenced his age at any time.  Simply being the oldest salesman and his speculation could not constitute evidence of age discrimination.

Direct evidence requires no inference to prove the existence of a fact while circumstantial evidence “is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”  . . .In the context of age discrimination, “‘[o]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age,’ satisfy this criter[ion].”

                . . .

The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.

The Court also rejected the plaintiff’s argument that the defendant’s explanation for terminating him and not retaining him as an independent sales agent was pretextual.  It was plausible for the defendant to believe that assigning the Bahamas territory to the employee already handling Bermuda made more financial sense. The plaintiff could not show that the defendant did not honestly believe its explanation:

We apply a modified version of the “honest belief” rule with regard to pretext.  . . . Under this rule, [the plaintiff] “must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.”  . . . To show that the proffered reason for its action is “honestly held,” [the defendant employer] “must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”   . . .. [The plaintiff], in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’”   . . . Ultimately, however, pretext “is a commonsense inquiry: did the employer fire the employee for the stated reason or not?”

The plaintiff’s evidence, at best, consisted of references to his impending retirement “in internal e-mails and documents, [the defendant’s] replacement of [him] with younger salesmen at higher salaries, [its] lack of transparency and candor about its plan to retire [him], and the allegedly fraudulent alteration of the March 9, 2009 agreement (evidenced by the two existing versions).”  It was the plaintiff “who wanted to reduce his sales territory and eventually go from being a[n] employee to an independent sales agent responsible for a small number of accounts – [his supervisor] and others at [defendant] used the terms “retire,” “semi-retire,” and “retirement” to refer to this plan."

The Court refused to find pretext by comparing the plaintiff’s $48k annual salary to the $70K and $65K annual salaries of the new salesmen because neither of them assumed all of the plaintiff's prior duties.   Further, the plaintiff overlooked the new employees' prior experience, skill and comparative workloads.

CPC maintains that terminating [plaintiff] and allowing existing employees to absorb his few remaining accounts at no cost was much more cost-effective than paying Treadway $48,000 a year to continue servicing them. These hiring and salary decisions may or may not make good business sense, but [plaintiff] cannot establish pretext simply by questioning CPC’s business judgment. This court is not a “super personnel department” tasked with “second guessing employers’ business decisions.” . . . The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions but only from decisions that are unlawfully motivated.

While the evidence may indicate that the plaintiff was treated unfairly, it does not establish that the employer’s explanation was a pretext (or a disguise) for unlawful discrimination.  Indeed, the plaintiff had seen the plan mentioning his contemplated retirement and never objected to it.

What is ultimately fatal to [the plaintiff's] claim, however, is that [he] himself initiated and impelled the chain of decisions he now claims was motivated by discriminatory animus on the part of CPC decisionmakers. [The plaintiff] proactively reached out to [his supervisor] in 2009 and asked to reduce his sales territory because he was getting older and needed to “slow down.” Together, [the supervisor] and [the plaintiff] negotiated the terms of the March 9, 2009 agreement which, under either version of the document, establish that [his] sales territory would temporarily increase until a new salesman could be hired to cover the Carolinas, and that [he] would then separate from CPC (“go from Company employee”) to become an independent sales agent handling only three accounts in the Bahamas and those existing accounts within a 40-mile radius of his home in Johnson City, Tennessee. CPC executives, including [his supervisor], used the terms “retire” and “retirement” to refer to this plan. 

 When the transition . . . slowed the process of hiring a new salesman, [the plaintiff] called [his supervisor] throughout 2010 and 2011 to ask when someone would be hired, and even referred two potential candidates  . . .in an effort to expedite the hiring process. After CPC hired Boepple and he assumed responsibility for the Carolinas, CPC decided not to retain [the plaintiff] as an independent agent or continue to pay him a full salary to service his few remaining accounts. [The plaintiff] now argues that these decisions were made because of his age, but no reasonable jury could infer such a discriminatory animus from CPC from decisions that were prompted by [the plaintiff] himself. 

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 Reversed Columbus Employer’s Summary Judgment on Employment Discrimination Claim, But Affirmed Dismissal of Constructive Discharge Claim.

Earlier this month, the Sixth Circuit reversed a Columbus employer’s summary judgment on an employment discrimination claim, but affirmed dismissal of the plaintiff’s constructive discharge claim.   Henry v. Abbott Laboratories, No. 15-4165 (6^th Cir. 6-10-16). The plaintiff alleged that she had been denied the opportunity for promotion and was retaliated against when she protested and ultimately filed an OCRC Charge.  The Court concluded that she could rely on similarly situated employees (who had similar qualifications and much less tenure) who reported to different supervisors to show both discrimination and pretext.   The Court also agreed that she could prove that she suffered increased scrutiny and adverse employment actions (through negative performance evaluations and performance plans) after she filed her Charge which could be attributed to her protected activity, but denied that her subjective belief that she was being forced to resign was sufficient to show constructive discharge without evidence that the employer deliberately created intolerable working conditions with the intention of forcing her to quit. 

The plaintiff had worked as a customer service representative since 1999 and in 2008 and 2009, she received “achieved expectations” evaluations.  To be promoted, she needed that level of annual evaluation, one year of experience and a favorable “readiness” rating by the quality assurance staff.  The last time she had been evaluated by the QA staff was in 2006 and it had not been favorable.  However, her supervisor did not survey the QA staff after her performance evaluations improved or refer her for additional training to make her eligible for promotion.  When the plaintiff inquired about her being overlooked for promotion, her supervisor told her that tenure was not important.   The plaintiff complained to HR in April 2010 when other new employees were then promoted instead of her.  When HR did not respond within the week, she filed an OCRC Charge in May, alleging employment discrimination.

HR questioned about her promotability and competence surveys were sent to the QA staff outside the regular schedule a month after the OCRC Charge had been received.  They were not favorable and were shared with the plaintiff.   The plaintiff rejected the feedback, so a quality coordinator was assigned to sit with her more frequently than normal in June.  Her scores plummeted and she complained to HR that she was being harassed.   Later that year, she had trouble acclimating to the adoption of SalesForce and made a significant security error in November, which resulted in her being placed on a two week disciplinary suspension.  There was a discussion about putting her on a performance improvement plan, but her managers were concerned that this would appear retaliatory.  Instead, they gave her a poor performance evaluation (which made her ineligible for promotion) in early 2011 and gave her scores which were depressed considering her objective statistics (because the latter months had been given greater weight than her earlier months).

The OCRC found probable cause of discrimination in April 2011 because she had been passed over for promotion in favor of co-workers outside her protected class with similar performance evaluations who had much less experience and tenure.   The next day, a manager said that he wanted to take the next step with her, but felt paralyzed.  Instead, two months later she was placed on a 60-day performance improvement plan.  The plaintiff took a two month stress leave of absence and announced her retirement upon her return because she felt that she was being forced to resign.  She then filed suit.  The district court ruled against her on all claims.  The Sixth Circuit reversed on the discrimination and retaliation claims, but affirmed denial of the constructive discharge claims.

While she had not received a favorable survey result from the QA staff (which was a requirement for being promoted),  no survey had been sought when she started receiving favorable performance evaluations.  This meant that the survey could not be a disqualifying reason.  Moreover, not every employee who had been promoted had been the subject of the survey.    When a survey was finally sought on her performance, it was done outside of cycle, which made it suspicious to the staff and was ignored by some of them.   The Court also concluded that she was permitted to compare herself to employees with different supervisors because they were similar in relevant respects and their supervisors reported to the same manager.

The Court also found sufficient evidence of pretext without slurs or other negative comments about her protected class.   She pointed out that no one in her protected class had been promoted since 2002.  Also, the explanations about her performance seemed pretextual because they directly contradicted the favorable comments written in her performance evaluations.   She clearly met the objective criteria to be promoted and management could not identify any employees who had met the objective criteria (i.e., performance scores) and had NOT been promoted (even though some of them had not worked there for even a year).    The employees who had been promoted did not have markedly supervisor qualifications which could also have explained the discrepancy.   A jury need not accept a subjective evaluation of the plaintiff’s performance to find pretext.

As for her retaliation claim, the Court found that the increased scrutiny of her performance within a month of receiving her OCRC Charge, poor performance evaluation eight months later (which rendered her ineligible for promotion), a performance improvement plan two months after a probable cause finding from the OCRC and being kept on the training line would dissuade a reasonable person from exercising her protected rights.  Multiple incidents over a year’s period can combine to form a materially adverse employment action. “A reasonable jury could also find that the other actions, although occurring later in time, also would not have occurred in the absence of Henry’s protected activity.”   It did not help the employer that the HR notes indicate that several managers were advocating for poor performance evaluations and concern about the OCRC Charge. Indeed, the day after the OCRC finding was received, a “note in an employee relations file” stated that they planned to wait “a reasonable amount of time” before “plac[ing] her on a formal coaching plan.”  This could reflect a pre-determined scheme to discipline her regardless of her actual job performance.  While the employer argued that her falling performance scores justified her rating, the jury could also attribute her falling scores to the increased scrutiny as a result of the OCRC Charge.   Indeed, her 2010 evaluation was markedly below her evaluations from 2003 through 2009, which, again, could be inferred was the result of retaliation instead of her actual job performance.

 

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.