Sixth Circuit Reverses Dismissal of Discriminatory Hiring Claim Where No Candidate Was Ever Hired

 

Earlier this month, the Sixth Circuit Court of Appeals reversed the dismissal of a reverse sex discrimination complaint brought under §1983 and Title IX when the college cancelled the faculty search instead of hiring the top-rated candidate because of the Dean’s alleged preference to hire female candidates.  Charlton-Perkins v. Univ. of  Cincinnati, No. 21-3840 (6^th Cir. 6-3-22).  A plaintiff need not have a valid claim in order to have standing to assert it, so it was irrelevant to a ripeness inquiry whether the position had ever been filed or not.  The plaintiff suffered a concrete injury when he was not hired.  The plaintiff also need not have alleged that less qualified female candidates had been hired instead of him when other evidence of discrimination was present.  “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  In this case, the plaintiff alleged that the job requisition was cancelled to avoid hiring him because he was male and that was sufficient to allege unlawful discrimination.   

According to the Court’s decision, after considering 62 applications, the plaintiff had been the top-rated candidate in a faculty search conducted by the department.  However, the Dean insisted that both next ranked female candidates be hired instead.  When the committee chair objected, the Dean cancelled the faculty requisition altogether claiming that the process had been tainted by a potential conflict of interest that the Diversity Officer had earlier approved.  The plaintiff sued and the trial court dismissed the complaint on the grounds that his claims were not ripe because he could not have been legally “injured” when the position had never been filled after the Dean cancelled the process and so the plaintiff could not prove that female candidates had been treated better.  

On appeal, the Court found that the trial court had conflated a ripeness inquiry with an analysis of the merits of the claims presented.  It was enough that the plaintiff did not get the posted job to show that he had suffered an injury sufficient to assert a ripe claim. “Ripeness is really, or at least paradigmatically, a doctrine about pre-enforcement challenges. That is why the relevant factors—whether the claim “concerns a dispute that is likely to come to pass” and whether there would be “hardship to the parties of withholding court consideration”—sound so out of place in the context of [this] claim.”  Indeed, the plaintiff “himself could later get the job and it would not erase the fact that he was denied the opportunity to get it in the first instance in 2018. So his injury is not speculative or even imminent; it is instead “actual” because the denial has undisputedly already occurred.” 

The Court also rejected the university’s argument that his claim could not be ripe if he suffered no adverse employment action.  “That reasoning is erroneous, again, because whether the plaintiff suffered an injury in fact does not necessarily hinge upon the substantive requirements of any particular cause of action.”

The Court also rejected the argument that the plaintiff had failed to plead a prima facie case sex discrimination. “Instead, to state an employment discrimination claim, [he] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  While alleging that someone else was given the position is a default rule for proving employment discrimination, it is not the only manner in which unlawful discrimination can be proved or alleged. “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”

We understand [the plaintiff] to make such a claim here—that defendants not only failed to hire him because of his gender, but they then canceled the search itself as a pretext to conceal the discriminatory reason for the failure to hire.

In particular, the plaintiff alleged “that defendants canceled the search to facilitate their allegedly unlawful gender discrimination against [him]. There was thus no need for him to additionally allege that somebody else filled the (canceled) position.”

The Court also rejected the argument that cancelling the hiring process purged any discrimination because other court decisions in which such purging had occurred resulted in new job searches without the taint of discrimination.  In contrast, the university here never re-opened the job search which would have given the plaintiff another opportunity to apply and be hired. 

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 Dismisses Claim When Plaintiff Was Fired Six Weeks After Returning from FMLA Leave

On Monday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an FMLA retaliation claim when the plaintiff had been terminated after nineteen years of employment only six weeks after he returned from FMLA leave.    Nieves v. Envoy Air, Inc., No. 18-1127 (6^th Cir. 1-14-19). The Court found that the plaintiff failed to show that his termination – for permitting his mother’s boyfriend to use his free flying privileges many years earlier in violation of policy – was causally related to his use of FMLA leave.  The plaintiff had admitted that he should not have identified the flier as his father.  Accordingly, the plaintiff could not prove his prima facie case of showing that his termination was causally related to his recent use of FMLA leave.   Interestingly, there was no discussion of temporal proximity satisfying the plaintiff’s burden of showing causation even though his termination on March 30 was merely six weeks after he returned to work on February 19.

According to the Court’s opinion, the plaintiff had worked in at the counter for nineteen years.  His relatively new supervisor did not like him and blamed him unfairly for a number of issues.  In April 2015, the plaintiff (along with several other employees) was selected by the corporate office for a random audit of his flying privileges to investigate potential abuse.  He was required to send proof of eligibility (i.e., familial or legal relationship) of the individuals listed on his travel log.  He only sent documentation of two people (his wife and one daughter) who were actively using his privileges instead of all of the individual who had used his privileges over the past 19 years (and included other children as well as a half-brother, a friend’s son who stayed with them on an extended basis and his mother’s 20-year boyfriend that he had once listed as father/step-father).   The audit stalled until January 2016 when the plaintiff was hospitalized for approximately a month for kidney failure and took FMLA leave.  Three weeks after he returned to work on February 19, he was interviewed on March 9 by telephone without prior notice about the individuals he failed to document and answered all of the questions truthfully. He was given nine days to produce documentation substantiating the legal/familial relationship with all of the individuals, which he later explained was impossible when some of the documentation had to be obtained from the Dominican Republic.  The corporate office – which was never told about the plaintiff’s FMLA leave -- determined quickly that the plaintiff should be terminated on March 30 because that was the recommended penalty for violation of the travel policy.  On appeal, the decision was upheld because the plaintiff admitted that his mother’s boyfriend should never have been listed as his father on the travel log.

The Court concluded that the plaintiff could not show that his termination was related to his FMLA leave.  It rejected the plaintiff’s argument that the investigator’s note in her files about the plaintiff’s FMLA leave was proof of retaliation because she explained that it was merely a reminder of why she had not yet interviewed him when she got to his file in January 2016.  The note explained his unavailability when she attempted to schedule his interview.  There was nothing in the investigator’s report to corporate about the plaintiff taking FMLA leave.

The Court also dismissed stray comments by his supervisor about him and suggesting that he retire.  Some comments were made more than a year before he took FMLA leave.  The supervisor was not the decisionmaker.  One comment followed the explanation of the plaintiff’s wife that his physician wanted him to do less lifting (which was a big part of his job).

The Court also rejected the allegation that his travel log was given more scrutiny following his FMLA leave because the employer documented each step of the investigation process and explained each of its steps and delays.

There is no discussion in the Court’s decision of the temporal proximity -- six weeks between the end of his FMLA leave in February and his termination on March 30 – being sufficient to infer a causal relation. Because there was no evidence linking the termination for a clear violation of the travel policy to his use of FMLA leave, the Court found that he could not prove his prima facie case and there is no discussion of pretext or honest belief defenses.

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 Affirms Dismissal of Threadbare ADEA Complaint

This morning, the Sixth Circuit affirmed the dismissal of a “threadbare” complaint under the Age Discrimination in Employment Act.  Smithv. Wrigley Mfg Co., No. No. 18-5397 (6^th Cir. 10-18-19).  The plaintiff alleged simply that she had been a good and long-time employee and that she had been unfairly fired when younger employees had not been.  While this allegation asserts the basic elements of an ADEA claim, it did not contain any facts showing the differences in ages, behavior or treatment that are necessary to survive a motion to dismiss under Civil Rule 12(b)(6).  A court must only accept as true factual allegations and need not defer to mere legal conclusions.  Accordingly, the case was dismissed before the plaintiff was permitted to conduct any discovery.

According to the Court’s opinion, the complaint in its entirety provided:

Plaintiff was a longtime employee of [Wrigley] and its predecessor company.  Despite Plaintiff’s good record with [Wrigley], [Wrigley] discharged the employment of Plaintiff on or about March 3, 2016.  This discharge was largely based upon the pretext of alleged misconduct when the real motivation was age discrimination in violation of 29 U.S.C. § Sections [sic] 621 to 634.  Plaintiff is and was over 40 years of age at the time of discharge.  The conduct of [Wrigley] in discharging Plaintiff was inconsistent with the way Plaintiff was treated in her many years of service with [Wrigley] and its predecessors, and inconsistent with the way other employees similarly situated, who were younger, were treated.  Plaintiff was qualified for her position and had been so during her many years of service.  [Wrigley] did not object to Plaintiff drawing unemployment.  Plaintiff before being terminated always gave [Wrigley] her best effort as she had always done for years.  Younger employees that were performing on a par with Plaintiff were still working with [Wrigley] after Plaintiff’s discharge.

The Court found that dismissal prior to discovery was appropriate because the complaint had failed to allege facts from which any court could “draw a reasonable inference of discrimination.   . . . . In the absence of facts regarding the ages or positions of the younger,  similarly-situated employees, or any example of how those employees were treated differently, the court could not do so.”

Though [the plaintiff] mentioned that younger employees who were “performing on a  par” with her were still employed when she was fired, she offered no names, ages, or qualifications for the younger employees who were treated differently, or any examples of how their treatment differed.  Without additional facts, the court cannot infer that [the employer] fired [the plaintiff] because of her age.

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. 

A Tale of Two Age Discrimination Cases in Central Ohio

Last week, a divided Franklin County Court of Appeals issued decisions in two different age discrimination cases.  One has been pending since 1999 and has been up and down the appellate process with a variety of results.  One has had several jury trials, while the other was a reversal of a bench trial.  In the first case, a nurse was terminated in 2009 for violating policies in the NICU at a local hospital after 21 years of service.  Although she appealed the case to an internal review board that recommended a lesser penalty, the president decided to sustain the termination of her employment.  The common pleas judge hearing the case ruled in her favor only to be reversed last week on appeal.  Mittler v. OhioHealth Corp., 2013-Ohio-1634.  In the second case, the plaintiff filed his lawsuit after his 1998 separation from employment.  The case was initially dismissed on summary judgment in 2001, was reversed on appeal, resulted in a jury verdict in 2002 awarding over $700,000 in compensatory (emotional distress) damages and $25M in punitive damages (as well as attorney fees), was reversed on appeal and so on.  More recently, the jury ruled against the plaintiff on his age discrimination claim, but last week a divided court of appeals remanded the case for yet another trial based on evidence it found was improperly excluded. Jelinek v. Abbott Laboratories, 2013-Ohio-1675.  This case is illustrative for a number of points, not the least of which is how unpredictable and how lengthy litigation can be.

To start with the briefer case, in Mittler, the plaintiff was fired following two incidents.  In one, she took a picture of a volunteer holding infant twins without first obtaining the permission of the babies’ mother (who later objected to volunteers holding her babies).  She had given a copy of the photo to the volunteer before obtaining permission and did not self-disclose her alleged HIPAA violation when the mistake came to light. She also mistakenly administered eye drops to the same infants and failed to submit an incident report. The HIPAA violation subjected the plaintiff to immediate termination.  On appeal, the problem review committee unanimous recommended the imposition of a less serious penalty.  However, the hospital’s president upheld the termination. 

The case was tried to the bench (instead of a jury) and the court found that the plaintiff would not have been terminated but for her age.  However, on appeal, the Court of Appeals concluded that she could not prove age discrimination because she could not show that she was replaced by a younger person.  According to the Court’s majority, no new employees were transferred to her shift after her discharge; her duties were merely redistributed among existing employees (some of whom were older than her).  The dissent noted that four older nurses had been terminated in two months and night shift nurses were hired and eight months later a day shift nurse was hired.  Therefore, the dissent agreed with the trial court that the plaintiff’s termination result in the hiring and retention of younger employees.

The plaintiff also could not show that younger employees were treated differently.  Her alleged comparators all reported their mistakes, unlike the plaintiff.  The dissent focused on alleged mistreatment of older nurses in other contexts.  In short, the dissent did not believe that the plaintiff would have been fired, but for her age.

The Jelinek case has had a long and tortured history.  The case was re-filed in 1999 alleging, among other things, that the plaintiff had been constructively discharged in 1998 on account of his age when he had been reassigned to an allegedly less desirable sales territory that included Gary, Indiana instead of to one that included Memphis, Tennessee which had been assigned to a younger peer who had previously worked in Chicago. The plaintiff had worked for the company for more than 30 years and was the oldest of the district managers when all of the district manager positions were eliminated.   The case was first dismissed on summary judgment in 2001, but was reinstated later that year on appeal (in an opinion written by Judge Tyack), on the grounds that the transfer to the smaller Indiana district instead of Tennessee could be discriminatory.  The Court also reinstated his claims for promissory estoppel and constructive discharge, but affirmed dismissal of the plaintiff’s claims for wrongful discharge in violation of public policy and retaliation.  The court denied the plaintiff’s motion for reconsideration and the Supreme Court declined to take his appeal.

Back at the common pleas court, the case proceeded to a jury trial in 2002.  Although the jury found for the employer on the promissory estoppel and constructive discharge claims, it found that the plaintiff had been discriminated against on account of his age, awarded him $700,000 in compensatory damages (for emotional distress), attorney fees, and $25,000,000 in punitive damages.  (This made a lot of news).   After motions for JNOV (judgment notwithstanding the verdict), a new trial and remittitur, the judge made a number of conditional orders in 2003.  First, he granted the defendants’ jnov motions.  Should that be reversed on appeal, he granted the defendants’ motion for a new trial.  Should that also be reversed, he denied the defendants’ motion for a new trial unless the plaintiff rejected a remittitur reducing the amount of compensatory damages to $100,000 and punitive damages to $4,000.000.  The trial judge also denied the plaintiff’s request for attorney fees.

On appeal, the case was remanded for another new trial on the age discrimination claim in 2005.  The Court agreed that there was enough potential of evidence of age discrimination to support the jury’s verdict and, therefore, the trial court had erred in granting the jnov motion.  However, there was insufficient evidence of intolerable working conditions necessary to show a constructive discharge.  The Court also concluded that it was within the trial court’s discretion to condition the grant of a new trial.

Again back at the common pleas court, there were two attempts at new jury trials, but both resulted in mistrials.  That judge then recused himself in 2008 and the case was assigned to a new judge who “issued a decision stating that 'the scope of the new trial is confined to the age-discrimination claim and excludes a retrial of the constructive-discharge claim, including facts or allegations that relate to that claim.'"  The plaintiff attempted to force the trial judge to permit him to again try his constructive discharge theory and filed a mandamus action for force the trial judge to do so.  The Court of Appeals agreed in 2010 that he had not prevailed on the constructive discharge as a separate claim in the last jury trial and the court had previously overruled his only objection to that verdict.   Therefore, the trial court had not manifestly erred.  On appeal to the Ohio Supreme Court, the decision denying the mandamus was affirmed near the end of 2010.  The plaintiff remained free to pursue his argument on appeal from any future verdict based on the trial court’s ruling, just as every party has a right to do.

The case was again tried to a jury in 2011 and this time the jury ruled against the plaintiff and in favor of the defendants.  Prior to deliberations, the trial court had directed a verdict for the defendants on the issue of punitive damages. The plaintiff again appealed and the appellate court again reversed, but this time based on evidentiary rulings against the plaintiff.   In ruling on pre-trial motions in limine, the plaintiff was precluded from introducing evidence concerning his prior claims that had been dismissed:  promissory estoppels, retaliation, wrongful discharge in violation of public policy and constructive discharge.  The Court again overruled the plaintiff’s objection to the exclusion of all evidence related to his constructive discharge theory.   The Court also affirmed the trial court’s directed verdict on the issue of punitive damages.

 According to the Court’s opinion from last week (coincidentally, also written by Judge Tyack),  the plaintiff “was precluded from referring to the crime rate in Gary, Indiana, the quality of the Lake County territory, and any testimony referring to a memorandum allegedly saying that all employees over 50 years old with 20 years of service should take early retirement.”  This evidence had previously been introduced to support the plaintiff’s defunct constructive discharge claim.  However, the plaintiff argued that he should still be permitted to introduce this evidence to explain why this territory was undesirable and why the employer should not be believed in contending that it was equivalent to the territory offered to younger peers.

 

Evidence that the territory was "collapsed" from twelve counties to two shortly before it  was offered to [the plaintiff] addresses both the issue of pretext, and the reason why [the plaintiff] was reluctant to accept the territory. This pretext evidence was critical to [his] ultimate burden of proof and therefore its exclusion was highly prejudicial. By taking the extreme position that any mention of the quality of the territory related only to constructive discharge, the trial court abused its discretion.

The trial court also excluded testimony by a former salesperson that the retired vice-president of sales had discussed with him in 1999 a memorandum written in 1997 that employees over the age of 50 with over 20 years of service (like the plaintiff) should retire.  No such memorandum was ever produced as evidence and the company denied that it even existed.  The defendants objected to this testimony as hearsay because the vice president had retired the year before the alleged conversation.  However, the plaintiff argued and the Court agreed that it could constitute evidence of an admission by a party-opponent because the vice-president was an individual defendant at the trial. “Since the alleged memorandum was never produced, the jury can decide how much weight, if any, to give to [the vice president’s] admission.”

 There were some other interesting evidentiary issues.  Typically (and was true in this case), it is the plaintiff and not the defendant which seeks to introduce evidence about the other party’s wealth.  In this case, however, because the plaintiff’s constructive discharge claim had been rejected in prior proceedings, his only claim for damages for related to the emotional distress of losing his substantial income and having bills to pay.   The defendants showed that he was a millionaire at the time he resigned and had just bought his wife a Mercedes automobile.  They also showed pictures of his home to the jury.  The Court found it was within the trial court’s discretion to allow this evidence because the plaintiff’s:

 

financial situation was at issue because his claim for compensatory damages was based entirely on emotional stress caused by his financial concerns.  [The plaintiff] testified that he had sleepless nights, tossing and turning, worrying about how much money he had in the bank, that he was very stressed about money, and he was concerned about making ends meet.

The defendants argued (and the jury was instructed) that the plaintiff’s position was eliminated in a reduction in force.  However, the plaintiff was denied discovery on the RIF and precluded from introducing statistics.  The company argued that statistics were irrelevant since he had not alleged a disparate impact theory. The Court overruled the plaintiff’s objection at this point as moot, but ordered that “if, when the case is retried, [the company] intends to argue that the elimination of  [the plaintiff’s] position was part of an overall reduction in force in order to receive the heightened jury instruction, [he] should be allowed to rebut [its] claim by means of statistical evidence.”

 The Court agreed that the plaintiff had failed to present sufficient evidence to request the jury to rule on punitive damages.  At best, his evidence showed that there may have been a lack of formal EEO instruction, “but to infer that [the company] exhibited a conscious disregard for [his] right to be free from age discrimination requires a leap of logic not supported by the evidence.”

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

Sixth Circuit Affirms Dismissal of Retaliation Claims Even Though Supervisor Terminated Plaintiff In Part for Disloyalty for Threatening to Sue Him

Last Thursday, the Sixth Circuit Court of Appeals affirmed summary judgment for a Central Ohio employer on retaliation claims brought under the FMLA and state law based on complaints of gender discrimination and attendance management practices.   Fields v. Fairfield County Bd. Of Develop. Disabilities, No. 12-3005 (6^th Cir. 12/6/12). In that case, the plaintiff complained about men being promoted more often and held to a lower behavioral standard than female employees, like her.  She also complained about a new attendance management practice whereby the employer notified employees about their absenteeism.  Her employer reacted unfavorably to both of her complaints, which helped her to prove a prima facie case of retaliation.  However, she failed to discuss, let alone rebut, the employer’s other concerns with unprotected issues of poor performance.  Therefore, the Court ultimately found that she failed to prove that her termination was the result of her protected activities instead of the uncontested incidents of poor performance.

According to the Court’s opinion, the plaintiff was unhappy with a number of facets in her employment.  First, when questions were raised about her supervision of the office receptionist, those concerns were investigated and the duty was removed from her based, in part, on her tone of voice with the receptionist.  However, the new male supervisor was similarly disrespectful to the receptionist (who apparently had some significant performance issues), but was never investigated or addressed. This incident adversely affected her relationship with her supervisor and she was subsequently disciplined for unrelated performance problems involving neglect of her direct duties.  After being bypassed for a potential promotion, she complained to a co-worker about hearing the decisionmaker wanted a male.  She also complained to this co-worker about age discrimination when a disrespectful younger employee received a raise.   She then sought and obtained information about filing a Charge of Discrimination with the Ohio Civil Rights Commission.  Her supervisor and HR Director heard about her concerns.  He began reviewing all of her emails and HR requested the decisionmaker to document all interactions with her.

The employer attempted to address an attendance problem at the agency.  Excepting FMLA leave, employees were notified when they utilized a certain amount of sick leave each year.  If they received three or more such notices, they could face disciplinary action.  The plaintiff objected to receiving these notices, even though she was told her notices were not disciplinary in nature.  She also apparently filed attendance reports given to other employees in the disciplinary action section of their personnel files and advised them that they constituted disciplinary actions.

The plaintiff’s neglect of her job duties continued and she failed to perform several tasks in a timely manner and disclosed embarrassing information about her supervisor when she was confronted.  Accordingly, she was placed on administrative leave and told that her contract would not be renewed.  She simultaneously received a performance evaluation which discussed her neglect, indiscretions about him and other employees, her repeated and willful miscommunications to co-workers about the attendance management policy, her stubborn insistence on treating attendance notices as disciplinary infractions when she filed attendance notices in employee personnel files (which caused problems for at least one employee while under investigation) and the lack of trust between him and her.   In particular, he objected to her loyalty after hearing that she planned to sue him and the Board for harassment. As stated by the Court:

As to the second point, [the supervisor] claimed to question [the plaintiff’s] “confidentiality and loyalty” in part because “[s]he has been heard to communicate to other staff that she is suing the Board and me for ‘harassment.’”

The Court easily dismissed her FMLA retaliation claim.   She received more than the FMLA leave she had been entitled to and her stubborn insistence on mischaracterizing the agency’s attendance management policy did not constitute protected conduct. Nonetheless, even assuming that she could prove a prima facie case, she could not show that her supervisor’s concern with her performance problems was insufficient to justify her termination.

The Court, however, found that her complaints about being bypassed for a promotion and being held to a higher standard constituted protected conduct even if they were discussed with a co-worker. “[A]n employee may complain about discrimination to anyone.”  The employer did not complain that her complaints were unreasonable, and thus, unprotected.  Her supervisor and HR found out about her complaints within days and took adverse action against her.  Her supervisor specially stated that her threat to sue him was a basis for his distrust of her. “Because lack of trust was one basis for refusing to renew [the plaintiff’s] contract, a causal connection between the two exists.”

 

[A] reasonable inference from the timing is that [his] concern regarding [the plaintiff’s] trustworthiness increased after e-mail monitoring revealed that [she] complained of gender discrimination. Importantly, the day after [she] sent the e-mail complaining about discrimination, [HR] “heard through the grapevine” that [she] might sue the Board for discrimination and asked [another supervisor] to document his interactions with [the plaintiff]. The timing of these actions, coupled with [her supervisor’s] statement in the performance evaluation, is sufficient to establish a causal connection.

While there was some evidence to support an argument that the employer’s explanation for termination was pretextual, the plaintiff surprisingly failed on appeal to address entirely the issue of her job performance.  Therefore, those issues were deemed to be undisputed.

[A]t this final stage, [the plaintiff] must show pretext. Instead, she ignores the legitimate reasons offered concerning her job performance and fails to demonstrate that they were not the true reason for the employment decision, but rather a pretext for discrimination. Though [she] offered evidence that satisfies the causal connection step of her prima facie case, that evidence is insufficient to create a genuine dispute of material fact that the job performance reasons offered by the Board are pretext for discrimination. [She] failed to identify evidence from which a reasonable jury could conclude that the Board’s legitimate, nondiscriminatory reason 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: A Tale of Two RIFS With Different Endings

This week, the Sixth Circuit released two opinions in two days addressing claims that the plaintiff was selected for a reduction in force in violation of federal employment laws. In one, the Sixth Circuit affirmed summary judgment for the employer and in the other it reversed it and sent the case back for trial. In one case the plaintiff claimed she was selected for the RIF because of her age; in the other the plaintiff claimed that she was selected because of medical leave. In one case, the managers may have violated the employer’s RIF policy which they claimed they were following; in the other the managers likely violated the employer’s RIF policy, which they blamed on ignorance. This comparison highlights how even the slightest difference in facts can lead to much different results.

In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.

The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.

In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:

The jury could also conclude that [Plaintiff’s] termination was based on her FMLA leave, because none of Kmart’s asserted reasons for her lower RIF appraisal scores were documented, and Kmart admitted that nothing in her performance changed during the twenty-day period between her last annual appraisal and the RIF appraisal. Although Kmart contends that variations between annual appraisal scores and the RIF appraisal scores were common, that [Plaintiff’s direct supervisor] inflated the annual appraisal scores, and that [Plaintiff’s] performance had been declining, a reasonable jury could reject Kmart’s contentions. Given [Plaintiff’s] prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that [Plaintiff’s] performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

. . ..

[Plaintiff] also argues—and the jury could conclude—that the same circumstantial evidence supporting the causal connection between her FMLA leave and her termination demonstrates that Kmart’s proffered non-discriminatory reason was pretextual. Specifically, the following facts could show pretext: the temporal proximity between her leave and termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisals and her RIF appraisal, and the “LOA” notation next to [Plaintiff’s] name on the Impacted Associates Form.

In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.

The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:

Business circumstances may result in a temporary or permanent reduction in the size of the work force. Making such decisions is not easy. However, the Company will attempt to identify employees who are the most qualified to perform the work available based on qualifications, productivity, attendance, general performance record and other factors the Company considers relevant in each case. When the Company considers these factors to be relatively equal, decisions will be guided by relative length of service.

Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s burden of proof.


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

Sixth Circuit Affirms Employer’s Summary Judgment on Race and Retaliation Claims Despite Messy Termination and Possible Evidence of Pretext

Today, the Sixth Circuit Court of Appeals affirmed the summary judgment entered by the federal court in Columbus in favor of an employer who terminated an African-American employee three times without always following all of its written procedures because the plaintiff was unable to show that any similarly-situated white employee was treated better. Moreover, the court affirmed dismissal of the plaintiff’s retaliation claims because there was no temporal proximity between his termination and when he filed his EEOC and OCRC Charges and no additional acts of retaliation. Gibson v. Shelly Co., No. 07-3009 (8/20/08). Nonetheless, the Court indicated that (i) it would still consider retaliation claims despite the passage of one year between the protected conduct and the adverse employment action; (ii) that the court could consider actions taken by the employer against the plaintiff outside the limitations period and (iii) that a plaintiff need not always show that similarly situated employees reported to the same supervisor if the supervisor’s role in termination decisions was minor.

Plaintiff was hired in 2003 (and in prior years) to assist with highway paving projects. As in other years, he received copies of the employer’s safety manual which provided for the Safety Committee terminating employees for one (and no more than two) serious safety violations (i.e., those which could result in serious injury or death) and for two (and no more than four) non-serious safety violations in a year. The manual also provided for conducting prompt investigations, including interviews with the violating employee, and that employees could be terminated at will (although, as a practical matter, because of union contracts, employees, such as plaintiff, could only be terminated for just cause). Employees who are terminated are not eligible for reemployment for at least one year.

Plaintiff’s first termination took place in May 2003 after he had been observed on three separate occasions driving the roller into moving traffic (which could have killed commuters) and after the employer received a sexual harassment complaint about inappropriate comments Plaintiff had made to a female co-worker. However, the decision was not made by the Safety Committee and the employer never completed its investigation of the sexual harassment complaint by, for instance, interviewing the Plaintiff. The employer also gave differing accounts of the reasons for his termination, at times citing only the safety violations and at others also referring to the sexual harassment allegations. Plaintiff filed a Charge of Discrimination with the EEOC and the OCRC (which were dismissed in February 2004) and a union grievance (which resulted in his reinstatement and back pay almost two years later). Plaintiff did not file a lawsuit after receiving his right-to-sue letters, and was inadvertently hired in June 2004, but was terminated two days later on account of his prior termination and the failure of the arbitrator to render a decision in the union grievance. Plaintiff again filed Charges of Discrimination and Retaliation with the OCRC and EEOC, but they were dismissed in April 2005.

Honoring the arbitration decision, Plaintiff was again hired in Spring 2005, but was again fired on May 12, 2005 following two serious safety violations. In one incident, he almost ran into a co-worker with the roller, and in another, he ran the roller off the road and almost into a ditch while grabbing something out of his lunch bag. An investigation was conducted, but again, the Plaintiff was not interviewed. This time, however, the Safety Committee considered the investigation report and voted to terminate Plaintiff. Plaintiff again filed a Charge of Discrimination and Retaliation with the OCRC and, again, it dismissed it in February 2006. Plaintiff then filed suit.

Although the employer’s failure to follow its own procedures, shifting and inconsistent explanations for his 2003 termination and failure to interview Plaintiff during its several investigations may have constituted evidence of pretext in connection with the parties’ respective burden of proof (and entitling Plaintiff to a jury trial of his claims), the trial and appellate courts concluded that it did not need to evaluate the sufficiency of the employer’s explanation for the termination – or Plaintiff’s evidence of pretext – because Plaintiff failed to satisfy his prima facie burden of proving that he was treated differently than similarly-situated employees. In particular, the courts found that the Plaintiff failed to identify any white employees who committed two serious safety violations who were not fired.

In addition, the courts found that the plaintiff failed to show that he was terminated for filing Charges of Discrimination in May 2003 or 2004 because he was not fired until June 2004 and May 2005 – approximately a year after the Charges had been filed. While the Sixth Circuit pointed out that it has found sufficient evidence of retaliation in cases where a year had passed between the adverse employment action and the filing of the Charge, those cases also possessed other evidence of retaliation – unlike this case. “We have never suggested that a lack of temporal proximity dooms a retaliation claim. In fact, we have previously found retaliation when the termination followed the complaint by over a year. . . . However, in order to overcome a lack of temporal proximity, the plaintiff must present sufficient evidence supporting the causal connection. “[W]here some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0507n-06.pdf.

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

Federal Sixth Circuit Revives Retaliation Claim Where Employer Fired Employee Upon Learning of EEOC Charge.

On January 31, 2008, the Sixth Circuit affirmed the dismissal of an age discrimination claim where the plaintiff could not identify a similarly-situated younger employee with better treatment, but revived a retaliation claim where the employer had fired the employee the same morning he returned to the office after the EEOC served the employer with the EEOC Charge. Mickey v. Zeidler Tool & Die Co., No. 06-1960 (6th Cir. 1/31/08). In particular, the EEOC Charge was received on October 14, 2004 while the employer was out of town. He returned to work on October 19, 2004 and fired the plaintiff at 7:30 a.m. in the morning. The Court held that the proximity of the employer’s termination decision and learning of the EEOC Charge was sufficient by itself to establish a prima facie case of retaliation.

The Court's opinion also suggested that events which predated the filing of the EEOC Charge and the employer's knowledge of it could support a prima facie case, but there was a dissenting opinion on that issue.

In addition, the plaintiff presented sufficient evidence of pretext. While the employer claimed that his decision had been motivated by poor business conditions and the lack of work for the plaintiff to perform, the plaintiff was able to show that the records that the employer had been reviewing the prior weekend showed it was profitable in 2004 and that it had been recruiting to hire employees with the plaintiff’s qualifications both before and after the plaintiff’s termination. While the jury could believe that the employer was attempting to keep the company afloat after three years of losses, the court refused to make that determination at the summary judgment stage. Moreover, although the employer claimed the plaintiff’s performance had been deficient and had substantially reduced his compensation earlier in the year, there were no negative performance evaluations in his personnel file. Further, the employer’s answers to deposition questions were evasive when asked whether the EEOC Charge played a role in the termination decision. Indeed, at one point the employer denied knowing about the EEOC Charge before he terminated the plaintiff and then corrected himself when challenged.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0056p-06.pdf.

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

Sixth Circuit: Prima Facie Case Does Not Require Female Plaintiff To Prove that She Was More Qualified Than Male Replacement

On December 19, 2007, the Sixth Circuit reversed summary judgment in favor of an employer where the female plaintiff had been laid off one day after a male employee was hired onto her work crew and she was never rehired even though the employer’s workforce increased overall by twelve laborers in the plaintiff’s division. Vincent v. Brewer Co., No.06-4138 (6th Cir. 12/19/2007). The district court had dismissed the case on grounds that her male replacement was more qualified, and thus implied that she was not sufficiently qualified for her position as required to meet her prima facie case. However, the Sixth Circuit noted that a plaintiff need only prove that she was replaced by someone outside the protected class and need not show that the replacement was less qualified, or even as qualified, as she. She would only need to show that she was similarly qualified to a similarly-situated male if she was claiming different treatment instead of being replaced by a male.

The employer had also argued it had not discriminated against the plaintiff because it had laid off other employees at the same time as her and that she had a history of misconduct. However, the Court noted that there was sufficient potential evidence of pretext in that, among other things, (1) the other employee were laid off were temps, unlike the plaintiff; (2) there was evidence of numerous sexist comments by the decisionmaker and other managers; (3) she had received several favorable performance evaluations and been promoted in the past; (4) her co-workers claimed that she was very productive; and (5) there was little temporal proximity between her layoff and the prior instances of misconduct. Therefore, there was enough of a factual dispute in the evidence for a jury to decide whether the plaintiff had been laid off on account of her sex as she claimed.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/064138p.pdf.

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

Age Discrimination Can Be a Sloppy Business

On October 15, 2007, the Sixth Circuit reversed a summary judgment which had been entered in favor of an employer in an age discrimination case and began its opinion as follows:

"When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can."

In Blair v. Henry Filters, Inc., No. 05-2437, the court returned the case to the district court for trial. The employer lost on appeal even though it showed that it had laid off two under-40 employees at the same time as plaintiff (and had reduced its workforce from 143 employees to just 52 employees in only two years) and the employer's witnesses denied the plaintiff’s version of events and that the decisionmaker was the same person making the ageist comments alleged by the plaintiff. However, courts are not permitted to weigh credibility at the summary judgment stage.

The appellate court noted that the comment about the plaintiff being “too old” to be handling the employer’s Ford account was direct evidence of his removal from the Ford account on account of his age, but was not direct evidence that he was terminated on account of his age. However, the cumulative effect of the comments and the fact that a twenty-year old salesperson was hired in some capacity four months later were enough to create a circumstantial case of age discrimination. The court also noted that plaintiffs in a RIF case had a lower burden of proof than in the typical discrimination case:

"We recognize that this holding comes close to permitting a plaintiff in a reduction-in-force case to get to a jury merely by creating a genuine issue of material fact regarding the prima facie case. But to create a genuine issue of material fact regarding the employer’s actual motivation, a plaintiff must still provide evidence from which a reasonable jury could conclude that an illegal motivation was more likely the reason for the adverse employment action. To create a genuine issue of material fact regarding the prima facie case in a case involving a reduction-in-force, a plaintiff’s standard is lower. The plaintiff must supply evidence tending to indicate that the employer singled the plaintiff out for impermissible reasons. Accordingly, creating a genuine issue of material fact regarding the prima facie case is not a free pass to a jury, even in a reduction-in-force case."

The employer could take some solace in the fact that the appellate court affirmed the dismissal of the plaintiff's hostile work enviornment claims on the grounds that the same discriminatory comments which created the circumstantial evidence of age discrimination were insufficient to interfere with his job performance.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/052437p.pdf.