Earlier this week, a unanimous Franklin County Court of Appeals
affirmed summary judgment on a discrimination claim, but reversed summary
judgment on a retaliation claim, finding sufficient evidence for a trial on
whether the plaintiff was subjected to a workplace investigation and potential termination
in retaliation for a Charge of Discrimination he had filed two months earlier. Moody
v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected
to discrimination when he was given a paid three-day suspension for being hours
late to work due to a misunderstanding about the work schedule. During
a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated
patients, but he had never filed formal incident reports about any of those
incidents. He was then investigated for
failing to file incident reports and threatened with a five-day suspension or
termination. He resigned and filed suit.
The Court found that a paid three-day disciplinary
suspension which did not affect the plaintiff’s compensation, status, or other
terms and conditions of employment could not constitute a material adverse
employment action for purposes of employment discrimination. However, subjecting the plaintiff to a
workplace investigation two months later could constitute an actionable
retaliatory action and was sufficiently close in time to his protected conduct
of filing a Charge of Discrimination.
The Court also found sufficient evidence of pretext when the employer’s
explanation was challenged by an independent witness who agreed with the
plaintiff that there was no mandatory duty to file a formal incident report for
relatively minor infractions which could be adequately resolved by reporting
them to the Charge Nurse.
According to the Court’s opinion, the plaintiff received
disciplinary action after engaging in horseplay at work. He was directed to read some materials and
prepare a performance improvement plan within a week, which he failed to
do. He was then given a written reprimand
for failing to complete the assignment.
A few months later, he was given a one-day paid suspension for creating
a workplace disturbance. He then
transferred to a new supervisor and had no further issues for almost
three years. However, he was then more
than two hours late to work after relying on an earlier draft of the work
schedule. The next step in the progressive
disciplinary policy was a paid three-day suspension. Incorrectly believing that the bargaining
agreement provided that his prior disciplinary actions dropped off after two
years (instead of three years), he filed a Charge of Discrimination with the
Ohio Civil Rights Commission, which was dismissed for lack of probable
cause. Two months later, he was
interviewed as part of unrelated investigations of two co-workers. He alleged during those investigations that
the co-workers had been abusive towards patients. Because he had never filed incident reports
concerning any of those situations, he was then investigated and subjected to
disciplinary action, including termination.
He resigned and filed suit. The
Court of Claims granted summary judgment to the employer.
A unanimous Court of Appeals affirmed in part and reversed
in part. The plaintiff failed to produce
evidence of different treatment concerning most of the challenged employment
actions. His bare assertions that other
employees, for instance, engaged in horseplay without disciplinary action was
insufficient to create a material dispute of fact necessary to avoid summary
judgment. However, he did produce documentary evidence and
a witness affidavit that a few other co-workers were late to work under similar
circumstances and only received informal counseling, instead of formal
disciplinary action. Nonetheless, the
Court concluded that the plaintiff could not prevail on a discriminatory
treatment claim because his paid suspension had not altered his compensation,
employment status or other terms or conditions of his employment.
"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis. . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation." . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “ . . . . [citations omitted]
While
terminations, failure to renew a contract, and unpaid suspensions can constate material
adverse employment actions, “the Sixth Circuit has held that a paid suspension
generally does not constitute an adverse employment action.”
We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .
In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.
However, the Court found sufficient evidence to support the
plaintiff’s claim of retaliation.
In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").
We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim. . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .
[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.
The Court found that the plaintiff also presented sufficient
evidence to show that his protected conduct (in filing the Charge) was the
cause of the workplace investigation because the investigation was conducted
less than three months after his protected activity.
We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation." . . . Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation. . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection. . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.
While the employer articulated a legitimate and
non-discriminatory reason for investigating the plaintiff, the Court also found
that he had presented sufficient evidence to question whether that explanation
was pretextual for retaliation. The
plaintiff contended that filing incident reports was not mandatory for minor
infractions and was able to cite to a statement made by a Registered Nurse
during the investigation confirming his understanding.
[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs." . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.
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.
