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

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

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

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

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

 

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

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

 

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

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

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

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

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

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

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

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

Franklin County Appeals Court Reinstates $549K Race Discrimination Verdict Against Columbus Employer

Earlier this month, a divided Franklin County Court of Appeals reinstated a $549K jury verdict rendered against a south-side employer in a lawsuit alleging race discrimination, hostile work environment and retaliation and producing evidence about disparaging comments and implied threats by management involving guns.    Smith v. Superior Production LLC, 2014-Ohio-1961 (5-8-14).  The plaintiff had been a production supervisor who requested a transfer in 2008 after his manager (also the son of a company owner and part owner himself) yelled at him and referred to him as the “n-word.”  The plaintiff admittedly never mentioned the n-word incident when he requested the transfer or anytime afterwards until he filed his lawsuit.   However, he claimed (over employer denials) that he had complained about his manager being a racist and the hostile work environment that existed in his former facility.  His transfer was granted, but he was demoted.  Despite his years of experience and seniority, he was one of the first employees laid off (with 60 other employees) during the great recession later that year and was not recalled to work when the economy improved months later.   During the jury trial in March 2013, the jury heard evidence about the use of the “n-word” by five different people (two managers and three co-workers) – out of 250 people who worked in the plant -- sporadically in a 10- year period and how a manager would intimidate black employees by putting a cocked gun on his desk during a meeting in his office.  The employer argued that the evidence was insufficient to show that there was pervasive harassment or different treatment of employees and the trial court determined that the employer was entitled to another trial, but then ultimately granted the employer judgment notwithstanding the jury verdict.  On appeal, the Court of Appeals reversed.

The Court concluded that the trial court erred in granting the JNOV motion because the plaintiff produced sufficient evidence to support the jury’s verdict.  For instance, the Court found that there was sufficient evidence to support the race discrimination in termination claim because the plaintiff had been one of the first employees laid off despite his seniority and experience.  Although the evidence was disputed, there was also evidence that the plaintiff’s racist manager had been involved in selecting employees for layoff by identifying the employees he wanted to keep (which, clearly, did not include the plaintiff).   The Court found the manager’s use of the n-word directly to the plaintiff months before the layoff decision was sufficiently proximate to support the jury verdict.  As explained by the Court:

Constructing the evidence in favor of Smith, we determine that perhaps the most offensive word in the English language was used directly by Smith's supervisor in telling him to clock out and leave. As a result, Smith, no longer willing to work under Holstein, was moved to another facility, demoted in title and pay, and worked on another shift. This same supervisor was involved in the decision to layoff Smith two months later. There was a culture of discrimination at Superior evidenced by the common use of the n-word by both staff and management, including the owners as well as the lack of reprimands for use of the word. Holstein also used a gun to intimidate African-Americans during meetings in his office. . . .

There was evidence presented that only about 60 employees were initially terminated,  . . . There was also evidence that Superior sought to retain employees who could perform multiple jobs and provide the most flexible and skilled labor force. Superior typically tried to push down from the top of the workforce, to layoff only the bottom employees, but this was not the case with Smith. (Tr. Vol. III, at 362.) Smith was the first production employee laid-off and only the eighth employee overall. . . . Viewing the evidence most favorably for Smith, the jury could find that Smith, who was a production supervisor, who had performed every job on the production floor, and had over two decades experience, would not have been terminated but for his race.

The Court also concluded that the trial court erred in granting the JNOV motion on the retaliation claim, even with its higher level of proof.  There was evidence that this same manager may have been involved in the recall decisions and that he had made statements to another black employee in early 2009 disparaging the plaintiff with the n-word.  The employer had contended that the plaintiff had not been recalled because his primary skill was in an area supervised by his prior manager, who he had already refused to work for.  The Court concluded that the plaintiff had a wider skill set than the employer freely admitted and that there had never been any complaints about his work performance.   The Court also concluded that the jury may have found the employer witnesses to not be credible in light of inconsistencies in their testimony and discovery responses.

Further, if the jury believed that Holstein was acting like a racist, then Smith's desire not to be directly supervised by Holstein can be viewed by the jury as not being a legitimate business reason for failing to rehire him, and would further damage Holstein's credibility. This view is especially reasonable since Superior had multiple facilities and shifts in which Smith could work and not be supervised by Holstein. (Tr. Vol. III, at 343.) Superior could also have changed Duane Holstein's position so that he was not a manufacturing manager, an occurrence which happened anyway when Holstein became a safety manager. (Tr. Vol. III, at 317.) Reasonable minds can conclude that the jury properly found that Superior's proffered reasons for failing to rehire Smith were pretextual.

The Court also concluded that the trial court erred in granting the JNOV motion on the hostile work environment claim on the grounds that the use of the n-word was isolated and sporadic and “and merely an offensive utterance, rather than being threatening or humiliating.”

Reasonable minds can easily conclude that Holstein's use of the n-word, directly to Smith, while on the production floor, at the same time telling him to go home, was humiliating.

In any event, the Court also concluded that the employer was not entitled to a new trial – even under an abuse of discretion appellate standard -- and, therefore, reinstated the jury’s verdict (which will undoubtedly be appealed to the Supreme Court).

The dissent agreed with the majority on the impropriety of the JNOV verdict on the hostile work environment claim (based on the use of the n-word by two of the company’s owners), but believed the trial court was correct on the race and retaliation claims and saw no abuse of discretion in granting a new trial on all of the claims.   Among other things, he did not find the manager’s disparagement of the plaintiff two months before his layoff to be proximately related to the decision to lay him off.   He also noted that the plaintiff had been replaced by other black employee.  He also disputed the relevance of the gun evidence since there was no evidence that the manager behaved differently with white employees. He also rejected the retaliation claim because the employer’s explanation – that none of the supervisors requested the plaintiff’s return – did not show that the other supervisors were retaliating.  “While Superior's reason is not particularly fair to Smith, it is a motive other than unlawful 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.

Sixth Circuit: Pro Se Plaintiff Gets Another Chance to Prove Unlawful Retaliation

Earlier this month, the Sixth Circuit Court of Appeals in Cincinnati reversed summary judgment for an employer on a retaliation claim brought by a pro se plaintiff while affirming dismissal of the underlying discrimination claim based on the same factual allegations.  Lasterv. City of Kalamazoo, No. 13-1640 (6^th Cir. 3-13-14).   The Court affirmed dismissal of the underlying discrimination claim because many of the alleged events had been remedied when grieved and had not been implemented with the intent of forcing the plaintiff to retire.   Without a constructive discharge, the Court concluded that the plaintiff could not show that he suffered a "materially adverse employment action" as necessary in a Title VII discrimination claim.  However, the Court concluded that the district court erred by analyzing the Title VII retaliation claim under the same analysis applied to the First Amendment retaliation claims and the Title VII discrimination claims.  Title VII retaliation claims have a lower burden of showing a “materially adverse action” and could survive summary judgment based on the same alleged facts that were just found insufficient to support a discrimination claim.

According to the Court’s opinion, the plaintiff alleged that during the 23 years he served as a public safety officer,

he was treated less favorably than similarly-situated co-workers. Specifically, Plaintiff alleges that KDPS subjected Plaintiff to heightened scrutiny, selectively enforced policies against Plaintiff, and was complicit when individual employees harassed and discriminated against Plaintiff. Plaintiff alleges that such disparate treatment was attributable, at least in part, to Plaintiff’s race or to his complaints about discrimination.

As examples, he complained about his sergeant downgrading a performance evaluation with the approval of the captain, but the decision was reversed when he filed a union grievance. He was initially denied permission to attend part of an out-of-state safety conference and was only approved for half of the expenses involved after two white employees were approved to attend for the full week with all of their expenses covered.   After a sergeant complained that the plaintiff and a white co-worker were disruptive in the meeting (with the white co-worker being particularly so, according to the sergeant), the plaintiff was suspended without pay for two days while his white co-worker suffered no disciplinary action.  When the plaintiff complained about the discriminatory treatment, his suspension was rescinded.  There was also an incident about an anti-Obama screensaver which was used a week after the plaintiff shared pictures of himself with the President.  The opinion details 11 such incidents over the few years before the litigation commenced.  

The plaintiff also filed several formal complaints of discrimination with the Human Resources Department.  When he felt that no one treated his complaints seriously, he filed an EEOC Charge, which resulted in a finding of probable cause of discrimination and request by the EEOC for the city employer to take certain actions.  When the city refused to take the requested actions, the matter was referred to the Department of Justice.  The plaintiff complained of additional harassment and retaliation to the EEOC, which was also referred to the DOJ.  Ultimately, instead of bringing its own lawsuit, the DOJ issued the plaintiff his own right-to-sue letter.

In the meantime, in June 2010, President Barack Obama was the guest speaker at the Kalamazoo Central High School commencement ceremony which was held at Western Michigan’s Field House. To ensure the President’s safety, KDPS positioned police personnel at all entrances. Plaintiff was not among those officers who were on duty that day. Rather, Plaintiff had acquired four tickets to attend the commencement with his family.

Plaintiff attended the commencement along with his wife and two daughters on June 7, 2010. Plaintiff contends that he had ascertained a permissible parking location in advance from a Western Michigan Public Safety Officer. According to Plaintiff, he parked in the indicated parking location without incident, and did not have any negative interactions with KDPS personnel, Secret Service, or any other individuals or law enforcement officers. According to Defendants, Plaintiff “crashed” his vehicle into a police car and left the scene of the accident, “negatively engaged with supervisory officers,” and tried to make an unauthorized entry into the area where the President of the United States was seated. Defendants contend that “Plaintiff entered the building and engaged in a series of acts that may have constituted violations of either law or department policy and rules.”

KDPS began an internal investigation into possible wrongdoing by Plaintiff. During the investigation, KDPS interviewed Plaintiff and various employees who either interacted with or observed Plaintiff that day. Each witness submitted varying factual encounters of the incident, but the investigation resulted in no conclusive findings that Plaintiff had been drinking or was intoxicated.

 . . .

In August 2010, when KDPS had concluded its internal investigation into Plaintiff’s alleged wrongdoing, Plaintiff and Union Representative Laura Misner were provided with notice that Plaintiff would have a “pre-determination hearing” on September 2, 2010. . . .

Prior to the scheduled pre-determination hearing, Plaintiff was advised that if he were terminated, he would not be eligible for health insurance benefits for his dependents––including his pregnant wife and two young children––and his retirement package would be deferred. Plaintiff was extremely concerned about losing health insurance benefits for his family.

This inaccurate COBRA advice about his health benefits was confirmed in writing by the Human Resources Department, although there was no evidence that the misstatements were intentional or communicated with a discriminatory or retaliatory intent.  Plaintiff was also informed that there were rumors that he was to be terminated at the conclusion of the pre-determination hearing, although he would be able to appeal his termination through the union grievance process.   He was, therefore, encouraged by a number of people to retire in order to avoid termination and the loss of his health benefits.  However, because he would be retiring after 23 years of service, he would not be eligible for a full pension that employees with 25 years of service receive.  Following his retirement, the city released a copy of its investigation report into the graduation ceremony incident pursuant to a FOIA request by a reporter.   The local newspaper reported the story and included an internet link to his entire personnel file, which greatly embarrassed the plaintiff and his family. He then filed suit.

No Materially Adverse Employment Action to Support Title VII Discrimination Claim.  With respect to the plaintiff’s Title VII race discrimination claim, the Court concluded that the plaintiff could not show that he had been constructively discharged and had failed to precisely identify other discriminatory events, and thus, had not suffered a materially adverse employment action.

In the context of a Title VII discrimination claim, an adverse employment action is defined as a “materially adverse change in the terms or conditions” of employment. Kocsis v.Multi-Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996). An adverse employment action “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Adverse employment action “requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” Id. at 762. In addition, it typically “inflicts direct economic harm.” Id.

Most of the alleged events (such as his unpaid suspension) which plaintiff identified had been rectified through the union grievance process and, therefore, could not constitute a basis for discrimination after they had been cured.   The Court concluded that there was also insufficient evidence of a constructive discharge.  “A constructive discharge occurs when the employer, rather than acting directly, ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’”  It can also occur “where, based on an employer’s actions, “the handwriting was on the wall and the axe was about to fall.” 

Although Plaintiff has presented some evidence that he was subjected to heightened scrutiny and treated differently than his non-minority peers, he has not presented any evidence that this behavior was undertaken with the specific intention of forcing Plaintiff to quit. Indeed, Plaintiff ultimately resigned not because of the “intolerable” working conditions, but because he received bad information. Upon review of the evidence, it appears that this informational error was inadvertent and was not intended to force Plaintiff to quit. Simply put, Plaintiff has not adduced sufficient evidence to show that Defendants deliberately created intolerable working conditions with the intention of forcing Plaintiff to quit.

The Court also found insufficient evidence that the plaintiff was certain to be discharged if he did not first resign.  Although he heard rumors that he was to be terminated at the conclusion of the pre-disciplinary hearing, he had not heard these “rumors” from anyone with first-hand knowledge.  In other words, it was only speculation.

Sufficiently Adverse Employment Actions to Support Title VII Retaliation Claim.  Title VII also protects an employee’s opposition to discrimination.  Unlike Title VII discrimination claims which require evidence of materially adverse employment actions, retaliation claims only require evidence of materially adverse actions (whether employment related or not).   Also unlike Title VII discrimination claims, retaliation claims require evidence that the plaintiff would not have suffered the adverse actions “but for” the unlawful retaliation.

Plaintiff's burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” Michael, 496 F.3d at 595–96 (citing Burlington N., 548 U.S. at 67–71). Unlike a Title VII discrimination claim, “the antiretaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” Burlington N., 548 U.S. at 57. To establish the third element of the prima facie Title VII retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citations omitted). In analyzing the significance of any given act of retaliation, “[c]ontext matters. . . . “A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about  discrimination.” Id. at 82 (citing 2 EEOC 1998 Manual § 8, p. 8–14). “An act that would be immaterial in some situations is material in others.” Id. (citation omitted). “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”

The Court then found that the plaintiff’s list of discriminatory events (which it found insufficient to support a Title VII discrimination claim) were sufficient to create an issue of fact as to whether he had been retaliated against for complaining about discrimination and harassment by management and his co-workers.

Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a predetermination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity (i.e., formal and informal complaints to human resources and the EEOC) was the cause of such action.

First  Amendment Claims.  The Court agreed that the plaintiff could not base a First Amendment retaliation claim on his filing his EEOC Charge.  To the extent that the claim is based on a complaint to the USDA about a co-worker’s activities, that could be protected conduct.  However, there was no evidence about his complaint to the USDA, that the employer was aware of it or that the employer retaliated against him because of it.

The concurring judge questioned whether the trial judge had erred in mis-analyzing the Title VII retaliation claim or had simply failed to notice the claim because the defendant employer had only moved for summary judgment on the discrimination and First Amendment claims.    As a result, she believed that the matter should have been remanded to the trial judge to examine the retaliation claim instead of analyzing it for him.

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 Reverses Employer’s Summary Judgment in EEOC Race Harassment Lawsuit Because Defendant Was a Joint Employer of Harassed Employees

On Tuesday, the Sixth Circuit reversed summary judgment for the defendant employer in a racial harassment lawsuit brought by the EEOC under Title VII and §1981.   EEOC v. Skanska USA Building, Inc. Nos. 12-5967 and 12-6236 (6^th Cir. 12-10-13).  In that lawsuit, the EEOC alleged that the employees of a construction subcontractor were subjected to daily name-calling and other harassment by workers on the construction site, were supervised almost exclusively by the general contractor and were subjected to retaliation by the general contractor for complaining about the unlawful racial harassment. The EEOC alleged that the general contractor was a joint employer with the subcontractor of the harassed employees.   The district court granted summary judgment to the defendant general contractor on the basis that it was not the employer of the harassed employees. The Sixth Circuit reversed on the basis that the general contractor was a joint employer of the harassed employees. “Entities are joint employers if they “share or co-determine those matters governing essential terms and conditions of employment.’”

 

Construing the evidence most favorably to the non-moving EEOC, the Court found the evidence showed that the subcontracting employer played a minimal role in employing and supervising the harassed employees.  While it selected, hired and paid the employees, the general contractor supervised them, monitored their performance, removed them from the job site with minimal explanations, and covered them with workers compensation insurance, etc.  The Court rejected the defendant employer’s argument that the subcontractor was required by contract to exercise supervisory authority over its own employees:  “That the terms of C-1’s contract with Skanska envisioned a more active role for C-1 is besides the point.” 

 In a rather direct analysis, the Sixth Circuit explained its reversal as follows:

To determine whether an entity is the plaintiff’s joint employer, we look to an entity’s ability to hire, fire or discipline employees, affect their compensation and benefits, and direct and supervise their performance. Id. Here, Skanska supervised and controlled the operators’ day-to-day activities without any oversight from [the subcontractor’s owner]. As a general matter, Skanska routinely exercised its ability to direct and supervise the operators’ performance. Skanska set the operators’ hours and daily assignments. Skanska assigned the operators’ supervisors. When the operators complained about the conditions on site, Skanska handled their complaints. When the operators had disagreements with their supervisors, Skanska arranged a meeting to discuss the situation. Moreover, Skanska did not consult with [subcontractor’s owner] about the operators’ complaints or their conflicts with Skanska’s supervisors. And when the operators called [the subcontractor’s owner] to ask him to improve conditions at the site, [he] did nothing.

Particular incidents likewise demonstrate Skanska’s control over the operators. As discussed above, Skanska executive Mike Rayburn called a meeting with [two harassed employees] and a  Skanska designated supervisor because “[the buck-hoist operators] were representing Skanska” and the operators “work, you know, under our direction.” No one told [the subcontractor’s owner] about this meeting. Skanska also had [two of the harassed employees] sign a document— typed on Skanska letterhead—entitled “Buck-hoist Operator  Responsibilities.” And Skanska repeatedly removed C-1’s operators from the job site without any challenge from [the subcontractor’s owner].  

The reality is that C-1 was a nonentity on the construction site. That the terms of C-1’s contract with Skanska envisioned a more active role for C-1 is besides the point. Viewed in the light most favorable to the plaintiffs, the record here is enough to support a determination Skanska jointly employed the operators.

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 Employment Claims Brought by Independent Contractor Surgeon

Last week, the Sixth Circuit affirmed the summary judgment dismissal of Title VII and §1981 claims brought by a surgeon after her surgical privileges were revoked by a hospital after she injured a patient.  Brintley v. St. Mary Mercy Hospital, No. No. 12-2616  (6^th Cir. 11-15-13).  After she had used a particular surgical technique which may caused significant complications for a young patient following a routine procedure, the Hospital’s Chief of Surgery for the defendant hospital requested that the plaintiff surgeon remove herself from the emergency call list and to cease using that surgical technique.  An investigation revealed that in the 13 months she had been on staff, six of her patients had suffered avoidable complications compared to one avoidable complication during the same period for the remaining nine surgeons combined.  The hospital’s executive committee recommended that the plaintiff undergo a proctorship where all of her surgeries would be supervised.  However, when the plaintiff objected to the proctors’ directions, and continued to perform the problematic surgical technique, the Executive Committee voted to suspend her medical privileges.   She brought suit for racial discrimination under Title VII and §1981. 

The Court found that she was not covered by Title as an independent contractor.  She paid her own taxes, licensing fees and malpractice insurance premiums and billed her own patients.  She held privileges at other medical facilities which were not supervised or controlled by the Hospital. She never filed tax returns claiming to be an employee of the hospital.

The Court likewise affirmed the dismissal of her §1981 claim on the grounds that the medical bylaws did not constitute a contract. Section 1981 “protects the equal right of all persons . . . to make and enforce contracts without respect to race.”  The Plaintiff claimed that the hospital violated this statute when it revoked her medical privileges.  The Plaintiff did not have an independent contractor agreement or other contract with the hospital. 

 

Brintley contends that St. Mary’s bylaws created such a contract. But she does not explain which of the bylaws’ provisions create a contract with her, much less how any provision does so. And the bylaws themselves appear primarily, if not exclusively, to describe St. Mary’s self governance and organization. Nothing in them speaks to or creates a contractual relationship with Brintley.

While the bylaws did not explicitly state that they were not a contract, the Court did not find this to be controlling.  The Court did not discuss any quid pro quo which flowed from the hospital to the plaintiff or visa versa.

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.

A Hodgepodge of Activity in February

There have been a few interesting decisions within the past month in the employment context, but none of them are earth-shattering (unless you are facing a factually similar situation in your workplace).   The NLRB once again dinged a non-union employer for terminating an HR employee for discussing confidential salary information with co-workers because the employer failed to show she was a statutory supervisor and employees have a right to discuss wage information.  After she declined reinstatement, the employer offered “to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.”  Of course, whether this decision survives is an open question since the D.C. Court of Appeals ruled last month that President Obama lacked the authority to make three recess appointments to the NLRB on January 4, 2012 and, without those recess appointments, the NLRB lacks a quorum to vote.  (Yes, here we go again).  The NLRB announced it intended to appeal the decision in that particular case and essentially otherwise ignore the decision while conducting business as usual until the Supreme Court tells it otherwise.  The Sixth Circuit also issued a few interesting decisions.

In one case, Quinn v. Griffith, No. 12-1465 (6^th Cir. 2-21-13) the Sixth Circuit affirmed a jury verdict holding an employer liable for a sexually hostile work environment created by the manager in a two-person office and the imposition of punitive damages.  The employee apparently set up a hidden camera in the office to substantiate her allegations after the employer’s internal investigation concluded that it could not substantiate her allegations. The trial court refused to permit testimony by the employer’s lip-reading expert to rebut what the jury saw on the videotape.  Even without lost wages, the plaintiff was awarded $25,000 in compensatory damages and $50,000 in punitive damages.   (Attorney fees for a prevailing plaintiff were not discussed in the opinion).  The matter was remanded for the trial court to clarify or modify the allocation of damages among the individual and corporate defendant and among the state and federal claims.  The Court had no difficulty in rejecting the employer’s argument that it should not be held liable for the manager’s conduct because it failed to preserve the Ellerth/Faragher affirmative defense in its answer to the plaintiff’s complaint or in its summary judgment motion.  Moreover, the employer failed to present any evidence of how it had exercised reasonable care to prevent and remedy the harassment.   (Obviously, this is difficult when it failed to distribute a sexual harassment policy, but not impossible according to the Court).   The same could be said of its argument that it could not be liable for punitive damages.  “An employer may avoid liability by showing that it engaged in good-faith efforts to comply with Title VII, which is most often shown by effective implementation of an anti-harassment policy.”

The Sixth Circuit has also heard and rejected a few appeals involving firefighters suing the City of Columbus.   Yesterday’s decision in Arnold v. City of Columbus likewise found no evidence of race discrimination.  This case involved a series of external and internal investigations over a few years into the conduct of the inspections section/fire protection bureau of the fire department.  Employees complained, in particular, about how the internal investigations were conducted and alleged that they were treated differently than white employees in terms of the presence of union officers in interviews, whether certain interviews were tape recorded and whether they could object to the presence of union officers in interviews, etc.   Ultimately, the Court found that the plaintiffs were not treated differently on account of their race.   In the Fullen case, the Court upheld disciplinary action when a plaintiff refused to be interviewed in the presence of a union representative.

 

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 Defines “Direct Evidence” and Again Holds Managers Can Be Held to Higher Standard Than Subordinates in Discrimination Claims

Yesterday, the Sixth Circuit affirmed the dismissal of a reverse race discrimination claim brought by a retail manager terminated for making racially insensitive comments in violation of company policy. Martinez v. Cracker Barrel Old Country Store, Inc., No. 11-2189 (6^th Cir. 1-10-13). The plaintiff had been fired in February 2010 for "violating company rules prohibiting rude and boisterous conduct, or any form of discriminatory or harassing behavior" following an internal workplace investigation which revealed that she had, among other things, referred to a state public assistance card used by several employees as a "ghetto card." The Court rejected the plaintiff's arguments that she had produced direct evidence of discrimination and that she had identified similarly-situated employees who had received better treatment. Her evidence could not be "direct evidence" because it required the listener to make inferences. Moreover, none of the employees she had identified had either been proven to refer to the assistance card as a "ghetto card" or were of the same managerial rank in the employer's organization.

As for the plaintiff's claim that she had produced direct evidence of discrimination, the Court found that neither statement constituted direct evidence. The Court defined "direct evidence" of discrimination as follows:

Direct evidence explains itself. As this Circuit has noted, such evidence does not require the fact finder to draw any inferences to reach the conclusion that unlawful discrimination was at least a motivating factor. See Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) ("Direct evidence is evidence that proves the existence of a fact without requiring any inferences.").

The plaintiff claimed her "direct evidence" consisted of two statements. In the first, a manager responded affirmatively – over an objection by the employer's counsel to the ambiguous form of the question -- when asked "So you mean, you would agree [based on] the information you have, race was an issue in the discharge." After the deposition, the witness "clarified" her answer with an affidavit, stating: "To the extent that Plaintiff's counsel interprets my statements as indicating that Plaintiff was discharged because of her race, this is an inaccurate interpretation of my testimony. Instead, I believe that racially charged comments by Plaintiff may have led to her discharge." In light of the "poorly phrased question" and the witness's clarifying affidavit, the Court concluded that her affirmative answer "cannot reasonably be construed to mean that [the plaintiff's] race was the reason for her termination." On the contrary, the ambiguous nature of the question "requires the kind of inferential speculation as to the proper subject of the phrase 'race was an issue in the discharge' that fails to come within the ambit of direct evidence."

In the second statement, the plaintiff recounted a conversation she had with the company investigators during the investigation. The plaintiff claimed that after she inquired whether she was to be discharged, they responded that they would "go to bat for you, but you have to remember that this is Flint and you know the history of this store." The plaintiff explained that this statement referred to an earlier incident when a white manager had been fired after complaints from African-American customers. However, the plaintiff's affidavit did not reveal that the investigators were asked to clarify or explain their reference to "the history" of the Flint store or that they did so. Like the earlier testimony, the Court rejected this as "direct evidence" because it required the listener to infer its meaning.

The Court also rejected the plaintiff's argument that she had identified similarly-situated employees who received better treatment. Although the plaintiff claimed that a black assistant manager had also discussed the "ghetto card," the internal investigation found that claim to be unsubstantiated because the assistant manager denied it and there were no other witnesses. Moreover, the plaintiff's "conduct was admittedly more pervasive and severe than merely uttering the term "ghetto card." While other employees had used the term and were subjected to "policy reviews," they were not managers. 

In establishing that two people are similarly-situated, a "plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment." . . . Instead, "the plaintiff [must] demonstrate that he or she is similarly situated to the [claimed comparator] in all relevant respects." . . . In the disciplinary context, the Sixth Circuit has held that to be found similarly situated, "the plaintiff and [her] proposed comparator must have engaged in acts of 'comparable seriousness.'" . . . To make this assessment, a court must look "to certain factors, such as whether the individuals 'have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'" (citations omitted).

The Court found "the degree of misconduct is sufficiently dissimilar to remove [the assistant manager] from consideration as a bona fide comparator for purposes of establishing the prima facie case." In addition, the plaintiff's role as a manager "could reasonably justify holding her to a more stringent standard of conduct than that applied" to an assistant manager.

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 Race Discrimination Claim of Plaintiff Discharged for False Expense Report

On Friday, the Sixth Circuit Court of Appeals affirmed the dismissal of a race discrimination case by the federal district court in Columbus. David Carson v. Patterson Companies, No. 09-4559 (6^th Cir. 2011). The plaintiff had been fired for falsifying his expense report by obtaining reimbursement for an expense that was direct billed by the supplier. Although the plaintiff claimed that he had earlier informed the company of a problem with the supplier's website and had never spent the funds, the Court concluded that the plaintiff failed to show that the employer's refusal to accept his explanation was a pretext to hide discriminatory animus.

According to the Court's decision, the plaintiff was hired in March 2007. Some of his business expenses were directly billed to the employer and others were billed to his corporate credit card. In December 2007, he attempted to purchase some supplies from a supplier's website and those supplies were supposed to be billed directly to the employer. However, when the website would not cooperate with a direct-bill arrangement, he had the expenses put directly on his corporate credit card. Although these expenses never appeared on his corporate credit card invoice, he still submitted a reimbursement request for these expenses and was reimbursed by the employer for those expenses. His practice was to keep a separate account for reimbursed expenses and he noticed that he still had leftover funds after paying his credit card bill. He assumed that he had never been charged for certain expenses that he had put on the credit card. He claims to have told his supervisor and let the matter go when he was allegedly told not to worry about it.

Of course, the discrepancy was later discovered in February 2008. The supervisor emailed the plaintiff for an explanation and received a response three days later only that the plaintiff was looking into it. A meeting was scheduled for the following Monday. The plaintiff explained that he had sought reimbursement for the direct-billed expenses because he thought his credit card had been charged and asked for more time to investigate. Convinced that the plaintiff had attempted to steal from the employer by falsifying an expense report, the supervisor fired him the following week. Again, the plaintiff failed to explain the discrepancy and only offered to return the disputed funds.

The plaintiff filed suit for race discrimination in his termination and compensation and the employer counterclaimed for the $757 that plaintiff had improperly been reimbursed. The district court granted summary judgment against the plaintiff. On appeal, the plaintiff argued that he was pursuing a mixed-motive theory of discrimination, but the Sixth Circuit found that he had failed to pursue that legal theory by arguing it explicitly below or raising it in his complaint.

The plaintiff argued that he was treated differently than white employees who had submitted incorrect expense reports. However, the Sixth Circuit found these employees not to be similarly situated because (1) they reported to a different supervisor; (2) had technical errors on their reports rather than seeking reimbursement for incorrect amounts or (3) corrected their mistakes (of charging personal expenses on their credit cards) immediately before they were actually reimbursed by the employer. In contrast, the plaintiff waited two months after he had been reimbursed and 13 days after being asked to explain the incorrect reimbursement request and never returned the money. The Court rejected the plaintiff's speculation that the supervisor was not the actual decisionmaker because there was no evidence on the record that he consulted anyone before terminating the plaintiff.

Although the plaintiff claimed that he had raised the issue with his supervisor when he received the credit card bill and realized that he had been reimbursed for more than the charges, he did not remind his supervisor of his when confronted in February, offer an explanation (about the malfunctioning website) or return the money. Accordingly, there was insufficient evidence of a disputed issue of material fact for a jury to consider if the case went to trial.

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.

EEOC: Store Pays $60K and Agrees to 5-Year Consent Decree After Laying Off Black Manager in RIF and Later Hiring White Managers.

Yesterday, the EEOC announced that Shopper’s Vineyard, a wine and liquor store in Clifton, New Jersey, agreed to consent decree to resolve a race discrimination lawsuit initiated on behalf of an African-American store manager who had been laid off in 2006. Pursuant to the five-year consent decree, the store will pay $60,000 and institute new anti-discrimination policies and procedures, including appointing an equal employment opportunity coordinator to insure compliance with Title VII and other anti-discrimination statutes, training managers regarding Title VII requirements on a regular basis, posting a notice to employees at the store about the decree, providing reports to the EEOC, and permitting the EEOC to monitor its compliance with the decree.

In its lawsuit, the EEOC alleged that the manager “was the only African American front-line manager at the Clifton store. Shopper’s Vineyard told [the manager] in 2006 that he was being laid off because of economic reasons, but [he] was actually laid off because of his race. Shopper’s Vineyard retained white managers with less tenure and experience and hired many new employees, including four new white managers, within the year after [the manager] was laid off.”

Insomniacs may read the full press release at http://www.eeoc.gov/press/3-4-09a.html.

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.

Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.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.