FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

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.

Franklin County Appellate Court Rejects Discrimination Claims Based on Criminal Conviction and Non-Substantially Limiting Impairments

[Editor's Note:  On August 3, 2023, the Court deleted its original opinion and re-issued it after a request for reconsideration on the issue (noted below) about whether a request for a reasonable accommodation may constitute protected activity for purposes of a retaliation claim.  Without resolving that issue, the Court deleted the paragraph discussing that issue (as noted below) and modified the opinion, but not the result: " In light of appellant’s reconsideration motion and the accompanying amicus brief filed with this court, we reissue our June 20, 2023 decision without original paragraph 102 and with a slight modification to original paragraph 103 (now 102). Whether a request for accommodation constitutes protected activity under Ohio law is a question that warrants full briefing before definitive resolution by this court."]

Last month, a unanimous Franklin County Court of Appeals affirmed an employer’s summary judgment where the plaintiff had alleged that he had been terminated on account of his race, disability and in retaliation for engaging in protected conduct.  Childs v. Kroger Co., 2023-Ohio-2034.  The plaintiff had been hired into a bargaining unit position despite a murder conviction from when he was a juvenile and was ultimately promoted to a salaried assistant manager position before he was fired when management learned about his prior murder conviction.  The Court found that he was unqualified for his position because the company policy at the time of his termination precluded the employment of convicted murderers.

According to the Court’s opinion, the plaintiff was convicted of murder in 1996 from when he was a juvenile.  He was hired by Kroger into an hourly bargaining unit position in 2014.  He had truthfully reported that he had a criminal conviction on his employment application and claimed to have explained the details to his interviewer.  The background check only reviewed the prior 7 years and so did not pick up the earlier murder conviction.   His job history listed his prison employment as well as his current job.  It apparently did not occur to the individuals reviewing his job application that his prison employment was as a prisoner instead of as a private contractor.  In 2015, he applied for and was selected for a management training position.  In 2017, he began suffering panic attacks after the store was robbed and he was physically threatened.  He was given a poor performance evaluation a couple of months later and put on a performance plan.  He then accused his manager a few months later of being racist based on observed favoritism.  A month later, he then submitted a medical statement about his depression and asked to be transferred to another store.  He then complained again in October 2017 about his manager, who was then transferred.  The plaintiff was also transferred from Reynoldsburg to Sunbury in February 2018 and he received a better performance evaluation.

While in Sunbury, the plaintiff learned in April 2018 that an employee had been convicted as a sexual offender.  He recommended termination and participated in the union grievance process that resulted in the employee’s termination as a risk to minor employees.  Shortly thereafter, an employee was searching for information about the plaintiff’s recent motorcycle accident and discovered his 1996 murder conviction.  It was reported to management and he was fired at the end of May 2018 because company policy provided that it was a disqualifying offense.  More than a year later, the plaintiff filed suit alleging race and disability discrimination and retaliation and wrongful discharge in violation of public policy, as well as unlawful aiding and abetting and defamation.  The trial court eventually granted summary judgment to the defendants on all claims and it was affirmed on appeal.  Much of the lengthy appellate decision involves procedural and discovery issues.

The Court concluded that, despite the fact that the plaintiff had worked more than three years at Kroger and been promoted, he could not satisfy his prima facie case and show that he was qualified for his position before being fired because his 1996 murder conviction rendered him unqualified.  The plaintiff “is unable to establish the third element of his prima facie case, because his murder conviction rendered him unqualified for employment at Kroger.” Evidence was presented that the company refused to hire individuals with certain convictions and fired them if a disqualifying conviction was later discovered.   Even if murder was not a disqualifying conviction at the time he was hired, it was at the time he was terminated.

The Court also rejected his claim for disability discrimination, which was based on his depression, anxiety and PTSD.  The Court found that the plaintiff failed to show that his depression substantially limited any major life activities because he admitted that he was able to continue to work and the remaining limitations were relatively insignificant.  Although the plaintiff

 indicated that his depression impacted his ability to sleep and do household chores on some days, he did not claim that his depression affected his ability to sleep or do chores for significant amounts of time. [The plaintiff] presented no evidence indicating that his depression substantially limited his ability to think or otherwise engage in major life activities, and he affirmed that he could hold a job despite his depression. Accordingly, [he] failed to demonstrate that his depression occurred in sufficient duration and with sufficient severity to significantly limit any major life activity.

In any event, even if the plaintiff could show that he were statutorily disabled, he “also could not establish that he was qualified for his assistant store manager position either with or without a reasonable accommodation, because his murder conviction rendered him unqualified for any position of employment with Kroger.”

As for his retaliation claim, the Court initially rejected his argument that he was retaliated against for requesting a transfer as a reasonable accommodation. “A request for reasonable accommodation does not amount to “participation in any manner in any investigation, proceeding, or hearing” or “opposition to an unlawful discriminatory practice” under R.C. 4112.02(I).” In other words, Ohio law does not consider a reasonable accommodation request to be protected activity for purposes of asserting a retaliation claim.  However, the Court withdrew that part of its opinion on August 3, 2023 as noted in the Editor's Note above. 

Similarly, the Court concluded that it was not protected conduct under ORC 4112 to report the sexual offender conviction of a subordinate to management when he asserted that his termination was motivated by reporting the sexual offender despite the store manager’s resistance.

Nonetheless, his other retaliation claim had more merit.  He claimed that he was placed on a performance improvement plan after asking his supervisor if he was racially biased against him.  However, the company contended that it was based on his earlier, year-end performance evaluation.  Sadly for the plaintiff, his own comments on his performance evaluation acknowledged that his performance needed to improve and commented on specific mistakes or shortcomings that he had shown.  He also could not disprove that the company always placed low-performing employees on performance plans.  Therefore, the Court dismissed the retaliation claim.

Because all of his ORC 4112 claims were dismissed, the aiding and abetting allegations against the individual employees and managers were similarly dismissed.

The Court also dismissed the wrongful discharge claim on the basis that his murder conviction motivated his termination and not his earlier report of the sex offender employee.  He could not show that public policy was jeopardized by his reporting of the sex offender to management.  Even if that report had motivated his termination, he could not identify a public policy which was violated by his termination:

[His] termination would not have jeopardized the public policy expressed in R.C. 2950.034(A). The statute prohibits sexually oriented offenders from residing in specific locations; it does not prohibit sexually oriented offenders from working at specific locations.

Finally, the Court dismissed the defamation claim based on the incorrect report that he had failed to previously disclose his murder conviction.  He claimed – without contradiction – that he had disclosed it in his job interview.  However, he could not prove that the HR employee passed that information along to management or that the individuals who allegedly defamed him knew that he had previously disclosed it in a 2014 interview.   Further, management has a qualified privilege to discuss other employees.

Furthermore, “ ‘a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege.’ ” . . . “Once the defense of qualified privilege attaches, a plaintiff can only defeat the privilege with clear and convincing evidence that the defendant made the statements at issue with actual malice.”

Ms. Gray and Mr. Shepard were both managers at Kroger, and their communication regarding [the plaintiff’s] failure to disclose his murder conviction was a matter of common business interest between them. As such, Ms. Gray’s statement to Mr. Shepard was subject to a qualified privilege. Because the evidence demonstrates that [he] failed to disclose his murder conviction to Kroger [in writing], Mr. Childs cannot establish that Ms. Gray made her statement to Mr. Shepard with actual malice.

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 Self-Diagnosed ADA Claims

Last week, the Sixth Circuit Court of Appeals issued a decision confirming in writing an intuitive, but never explicit, aspect of the ADA:  That self-diagnosed medical conditions do not generally qualify as medical or mental impairments for purposes of proving the existence of a disability.   Neely v. Benchmark Family Services, No. 15-3550 (6^th Cir. 1-26-16).   It is hardly uncommon for an employee to complain about an undiagnosed medical condition and then later sue for failure to accommodate after an adverse employment action.   In this case, the plaintiff complained about his inability to sleep and fatigue, and sought medical treatment.   However, his specialist never made a diagnosis, speculated that his insomnia could be medically-related or due to poor life habits, and recommended further testing, which the plaintiff never obtained.   When he blamed his performance problems on his undiagnosed sleeping disorder, he was told to hurry up and take care of that.   When his performance did not improve, he was demoted and then later fired after his attitude deteriorated.    The Court found that the plaintiff could not prove that he had a disability because he had never been diagnosed with a medical or mental impairment.  Further, the Court rejected his “regarded as” claim because an employer’s knowledge that he had certain symptoms was not the same as regarding him as having a serious and non-transitory medical impairment and because the plaintiff admitted his problem did not affect his ability to work.  Finally, the Court rejected his retaliation claim on the grounds that simply discussing medical symptoms with an employer is not protected conduct when the plaintiff lacked a diagnosis, failed to ever request an accommodation and never filed an EEOC charge before being terminated.

According to the Court’s opinion, the plaintiff claimed that he was unable to sleep and sought medical treatment.  The specialist speculated that it could be sleep apnea, but also observed that he suffered from “poor sleep hygiene,” (i.e., went to bed only when he felt like it, ate at odd hours, etc.).  The specialist said that further tests would be necessary before he could make a diagnosis, but the plaintiff never pursued those tests.  In the meantime, the plaintiff self-medicated (i.e., caffeine and sleep supplements).  When he was repeatedly counseled about poor job performance and sleeping at work, he blamed it on a sleeping disorder and said that he was trying to treat it himself.  His supervisor told him to “try to hurry up with that.”    When the plaintiff’s performance failed to improve, he was verbally reprimanded and demoted.   He complained that it was unfair to hold his sleeping disorder against him (which caused the manager to roll his eyes).  When co-workers complained about his poor attitude in the week following his demotion, he was terminated, filed an EEOC Charge and ultimately commenced this lawsuit.

The Court found that the plaintiff could not prove that he suffered from a medical or mental impairment, as necessarily to establish the existence of a disability.  The fact that medical professionals made note of his claimed symptoms does not change the fact that he was never diagnosed with a sleep disorder. The plaintiff’s “bare assertions of sleep apnea, without any supporting medical evidence, cannot establish a “physical or mental impairment” within the meaning of the ADA.”  The Court rejected the plaintiff’s argument that his own experience should be sufficient evidence to establish a disability because the plaintiff’s “own experience” is relevant only to establishing whether the diagnosed impairment substantially limits a major life activity and not to whether the plaintiff suffers from an impairment.

Interestingly, the Court also concluded that even if the plaintiff actually suffered from sleep apnea and only got about 2-3 hours of sleep each night, that would still not constitute a disability because prior precedent indicates that poor sleeping and breathing are not substantially limiting or severe impairments.  The Court refused to relax those precedents in light of the 2008 amendments to the ADA:

Though the 2008 Amendments undoubtedly eased the burden required for plaintiffs to establish disability, we note that Congress expressly chose to retain the “substantially limits” modifier for “one or more major life activities.” See 42 U.S.C. § 12102(1)(A); ADA Amendments Act of 2008, PL 110–325, September 25, 2008, 122 Stat 3553. A lesser burden is a burden nonetheless, and one that [the plaintiff] has failed to carry. We agree with the district court that, “[w]hile a diagnosis might not be absolutely necessary [to establish a record of impairment], in this situation, some diagnosis must explain the duration or severity of the impairment.”  . . . We therefore hold that [the plaintiff’s] self-described symptoms to his physicians, without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity.

The Court also rejected the plaintiff’s claim that he had a “record of impairment.”  He had no diagnosis and the recommendation for further testing by his sleeping specialist did not constitute a record of impairment.

The Court also rejected the plaintiff’s claim that he was “regarded as” having an impairment.  While the Court acknowledged that the 2008 ADAA had relaxed the “regarded as” definition from being regarded as having a substantially limiting impairment to simply having an impairment, the plaintiff still could not satisfy the lesser burden.  “[I]t is not enough that the employer is simply aware of a plaintiff’s symptoms; rather the plaintiff must show that the employer regarded the individual as “impaired” within the meaning of the ADA.”    In this case, the plaintiff undermined his own allegations when he admitted that his sleeping disorder did not affect his ability to work because the ADAA’s definition of impairment under the “regarded as” prong did not include minor and transitory conditions. “We agree with the district court that Neely paints an inconsistent picture by “both asserting that his employer was dismissive of his alleged disability and that he was so affected by it that his employer regarded him as disabled.”  That his employer was aware of the plaintiff’s self-diagnosed symptoms was insufficient evidence to show that it perceived him as suffering from a medical or mental impairment.   

Finally, we note that the “regarded as” prong “is intended to allow individuals to be judged according to their actual capacities, rather than through a scrim of ‘myths, fears, and stereotypes’ accruing around a perceived impairment.” Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002). Benchmark’s comments about Neely’s purported sleep disability do not reflect the myths or stereotypes regarding disabilities that the ADA is designed to combat, nor do they suggest discrimination or bias arising from a perceived disability.

The Court also rejected the plaintiff’s retaliation claim because he never engaged in any protected activity before his demotion or termination.  The Court concluded that simply informing an employer about the possible existence of a medical impairment – without requesting a reasonable accommodation – is not – by itself – protected conduct:

The parties do not dispute that Neely never requested an accommodation nor filed a formal [EEOC] charge against his supervisor before he was terminated. Instead, Neely’s purported protected activity was “complaining to Hanrahan [his supervisor] that it was unfair to use his sleeping disorder against him.” Neely Br. at 24. Nonetheless, Neely asks us to extend Bryson to cover his circumstances—that is, permit an individual who is not disabled under the ADA, who never requested an accommodation, and who never filed a formal charge while employed to be deemed to have engaged in a “protected activity” simply for discussing his sleep issues with his employer. We decline to do so here.

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 $1.5M Verdict for Sexual Harassment of and Retaliation Against Temporary Employees

Last week, a unanimous Sixth Circuit affirmed a $1.5M jury verdict against a logistics employer which fired three women and one male employee who protested sexual harassment by a supervisor who also played significant roles in having each of them fired.  EEOC v. New Breed Logistics, No. 13-6250 (6^th Cir. 4-22-15).  The Court rejected the employer’s argument that opposing and protesting a supervisor’s sexual harassment to his face is not protected “opposition” under Title VII and specifically noted that the statute does not require the employee to protest to anyone in particular.  The Court also found the employer could be held liable for punitive damages based solely on the harassing supervisor’s knowledge and conduct and because the employer did not distribute the anti-harassment policy to temporary employees, did not conduct a good faith workplace investigation of the anonymous harassment complaint about the supervisor, and terminated three of the four plaintiffs during the workplace investigation.

According to the Court’s opinion, the defendant employer operated with mostly temporary employees assigned from staffing companies.  It only provided employee handbooks to its regular employees.  One of its supervisors had the authority to terminate temporary employees and was regularly harassing female subordinates with lewd comments and physical contact.   Not only did the employees object to his conduct, a male co-worker also requested that he stop it.  Only one of the employees ever complained to management and only did so anonymously.  The subsequent investigation was initially limited to interviewing the harassing supervisor.  All of the plaintiffs were ultimately fired shortly after the anonymous complaint was made.  Two of them were fired for purported attendance issues and two for making a mistake.   The harassing manager was found to have been the decisionmaker or to have played a role in all of their terminations.  The employees denied having attendance issues and evidence was presented that other employees had made mistakes without being fired.

The employer had argued that the plaintiffs could not prove retaliation because they could not show that they engaged in any protected conduct before their termination.  Only one of them had made an anonymous complaint to management prior to her termination.  The employer contended that the employees’ protest to the harassing supervisor himself and resistance to his harassment was not protected conduct.  Surprisingly, two other court decisions agreed with this argument, with one of them noting that resistance to harassment could not be protected conduct or every harassment claim would automatically constitute a retaliation claim as well.  The Sixth Circuit rejected this argument because Title VII’s opposition clause in the anti-retaliation provision prohibits retaliation against any employee because the employee opposed an unlawful employment practice.   The Supreme Court has previously noted that “oppose” means to resist.  Therefore, the Sixth Circuit has found protected opposition with informal complaints of discrimination:

[A] demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful  harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed.

Because the supervisor knew of their protests of his behavior and played a role in their terminations, the Court had no difficulty finding sufficient evidence of but-for causation in their retaliation claims.   Where he merely played a role in two plaintiffs’ termination, the decisionmaker relied upon his evaluation of their work and gave inconsistent explanations about why she held them to a higher standard than other employees.   There was also a strong temporal proximity between the time of the protected conduct and the retaliatory terminations.  In addition, the EEOC was able to provide evidence that the reasons given for the terminations were pretextual because the harassing supervisor had told one of the employees that he would disguise her tardiness (instead of discharging her), one of the employees had never been accused of attendance issues before he was fired shortly after being interviewed during the harassment investigation, and two of the employees could show that other employees had make similar mistakes and not been fired.

The Court also refused to consider the employer’s Ellerth affirmative defense because each of the plaintiffs suffered a tangible employment action when they were fired.

The Court found that the employer could be held liable for punitive damages.  The Court rejected the employer’s argument that it could not be liable since sexual harassment was outside the scope of the supervisor’s employment because the tangible employment action -- firing the employees -- was within the supervisor’s authority.  The Court also rejected the employer’s defense that management could not have acted with deliberate disregard of federal law since management did not previously know about the harassment because the supervisor clearly knew about the harassment. “The EEOC only had to show that the “individual[] perpetrating the discrimination [or, here, retaliation]” acted with malice or reckless disregard for federally protected rights.”   

Further, the Court rejected the employer’s good faith defense because it did not undertake efforts to prevent and remedy the harassment by, for instance, providing an employee handbook or harassment policy to the temporary employees.  It also had initially only interviewed the supervisor after the anonymous complaint was made and did not interview all of the potential witnesses identified. “In assessing whether an employer engaged in good-faith efforts to comply with Title VII, we focus “both on whether the defendant employer had a written sexual harassment policy and whether the employer effectively publicized and enforced its policy.’”  Finally, the jury was entitled to infer a lack of good faith from the fact that three of the plaintiffs were terminated during the employer’s investigation of the anonymous complaint.  

The jury instruction on punitive damages omitted language about the employer’s good faith defense.  The Court found that the employer had waived its objection to this omission by failing to argue about the missing language during the charge conference even though the employer had submitted a proposed jury instruction with the missing language.   The Court also rejected the employer’s argument that it constituted plain error for the jury instruction to omit the employer’s good faith defense because the employer did not make an argument about its good faith during its closing arguments to the jury. 

The Court also rejected challenges to the jury instruction use of “because of” instead of “but for” in the retaliation instruction.  

The EEOC press release about its victory mentions that the lawsuit was first filed in September 2010 and the jury reached its verdict in May 2013.

 

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: Vague Complaint To HR About Derogatory Comments Forms Basis for Next Week’s Retaliatory Discharge

Yesterday, a divided Sixth Circuit reversed summary judgment in favor of an employer on a retaliatory discharge claim brought under Title VII by a former executive who was fired for not being a “good fit”  shortly after “venting” to the Vice President of Human Resources on an overseas trip about repeated and inappropriate derogatory racial comments about other individuals made by another executive.  Trujillo v. Henniges Automotive Sealing Systems North America, Inc., No. 11-1148 (6^th Cir. 10-17-12).   The Court did not find the plaintiff’s vague expressions of discomfort to the offending speaker to constitute protected conduct because they were not complaints or expressions that he was in any way offended.  However, complaining to the VP about repeated derogatory statements about other races “can be construed as a complaint about a hostile work environment caused by racial and national origin discrimination.”

 It did not matter that the comments were not directed to him or about him.  It also did not matter that the individual incidents might not constitute actionable harassment, if collectively they could do so.   “We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation.”

 The district court had found the conversation with the VP was too informal to constitute protected conduct.  The Court conceded that in the past it has “found that some complaints to human resources personnel are not sufficiently specific to constitute opposition to employment discrimination.”  It has not extended protection to complaints about management style or vague comments of possible discrimination.   However, it concluded that a good faith complaint about a possible hostile work environment was sufficiently related to opposing unlawful employment practices to warrant protection in this case.

 The dissenting judge would have found the comments to be protected under Title VII only if the plaintiff had brought the issue to the attention of HR because it constituted discrimination against him or against other employees.  Instead, the plaintiff admitted that he had only been venting and had not intended for her to take any action. “Not every casual remonstrance against bad language equates to complaining of illegal discrimination.”

 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: Title VII Does NOT Protect Family and Friends of Charging Parties

This morning, a divided en banc Sixth Circuit reversed a prior panel decision rendered on March 31, 2008 in Thompson v. North American Stainless, LP, and held that Title VII only protects from retaliation individuals who have engaged in protected conduct (i.e., filed a Charge of Discrimination, opposed discrimination or participated in an investigation, etc.) and does NOT protect the family members and friends of individuals who have engaged in protected conduct. (The earlier decision was summarized here on April 10, 2008 at Sixth Circuit: Title VII Protects Family and Friends of Employees who File EEOC Charge).

As previously explained, the employer was alleged to have fired the plaintiff just three weeks after his fiance filed a Charge of Discrimination with the EEOC against the employer. He did not allege that he personally had engaged in any protected conduct, but rather, that his termination was in retaliation for the protected conduct of his fiance. In turn, the employer asserted that he was terminated because of his job performance.

The Court examined the anti-retaliation language in Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

There was nothing in this language about protecting individuals who did not engage in any protected activity under the Act. The majority found the language clear and unambiguous and elected to defer to Congressional intent to not enlarge the protected class of individuals under the statute.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.

. . .

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.

However, the court recognized the tension with the policy argument endorsed by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), when it stated:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Nonetheless, the Court distinguished Burlington because the plaintiff in that case had engaged in protected conduct and the question presented to the court was the scope of retaliatory behavior. "We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary
actor who engaged in protected activity and not by a passive bystander."

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-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: Another Employer Victory in Limiting Retaliation Claims.

Employers often feel powerless to defend themselves against employees who grouse about the employer to anyone who will listen, particularly after the employee files a lawsuit alleging illegal employment discrimination. However, today, a unanimous Sixth Circuit reminded employers that not all complaints made by an employee are protected by the federal employment laws. Fox v. Eagle Distributing Co., No. 07-5203 (6th Cir. 12/14/07).

In Fox, the plaintiff filed an age discrimination lawsuit against the employer and then bragged to a customer that upper management had been “out to get him” and that he had filed a $10M lawsuit that “would get their attention.” The customer reported the plaintiff’s statement back to his immediate supervisor and, after a more thorough investigation, the plaintiff was eventually fired. Not surprisingly, the plaintiff then alleged that his termination was illegal retaliation for engaging in protected conduct by protesting the employer’s unlawful treatment of him in his conversation with the customer. However, the Sixth Circuit agreed with the trial judge that the plaintiff’s misconduct in complaining to a customer about his employer was not protected by federal employment laws.

The court found that the plaintiff’s “statements to [the customer] are not protected because they did not amount to opposition to an unlawful employment practice by [the defendant employer]. In order to receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation of the ADEA.” The plaintiff’s complaints to the customer were too vague to constitute opposition to an unlawful employment practice. In fact, there was no evidence that the plaintiff had ever referred to age discrimination implicitly or explicitly. A “vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.” While the plaintiff had referred to a “$10M lawsuit,” he never mentioned that the basis of his lawsuit was age discrimination. The plaintiff’s “vague charge that [the employer’s] management was ‘out to get him’ is insufficient to constitute opposition to an unlawful employment practice and does not merit ADEA protection.”

Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/075203p.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.