Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

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.

Unemployment Claims Denied When Employees Resigned Without Good Cause

This Spring has brought a couple of interesting unemployment compensation decisions.  In the first, the claimant was denied compensation when he resigned because of fear of contracting COVID.  In the second, the claim was denied because the employee resigned his job without discussing his concerns with an offered promotion before turning it down.

Last month, the Franklin County Court of Appeals affirmed the denial of Pandemic Unemployment Assistance benefits, which had been previously approved, based on a warehouse worker’s fear of contracting COVID.  King v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-1724.  The claimant had resigned his position in May 2020 out of fear of contracting COVID.  He was initially awarded and collected approximately $10k in pandemic unemployment benefits over the next year.  However, his benefits were later disallowed and he was ordered to repay the benefits.  His appeal was denied, but the Commission granted his request to waive the overpayment collection.  He still appealed his denial of PUA to the common pleas court, but never filed a brief.  Unsurprisingly, the trial court denied his appeal because it is required to affirm the Commission if there is any competent and credible evidence in the record supporting its decision.  “Here, the evidence before the commission demonstrated, after the COVID-19 public health emergency began, [the claimant] left his employment as an Amazon warehouse worker due to his fear of contracting this disease. But an individual’s general fear of exposure to COVID-19 at the workplace is not one of the listed qualifying conditions set forth in 15 U.S.C. 9021(a)(3)(A)(aa) through (kk).”

In April, the Lucas County Court of Appeals also affirmed the denial of unemployment insurance to a claimant who lost both his full-time job and part-time job during the pandemic, after he turned down or resigned from a new full-time job offered by his previous part-time employer without adequately discussing his objections to the job offer.  Mason v. Emerald Environmental Servs., Inc., 2023-Ohio-1418.  While the hearing officer referenced both issues, she only cited to the statutory section about resigning a job without just cause.

After the claimant had been laid off from his full-time university job, his part-time employer explained that it was restructuring his part-time position offered him a full-time job with benefits, but paying slightly less per hour than his previous part-time job being managed out of a different location.  Feeling that it would involve too much travel away from his sick girlfriend and his five children, he claimed that he turned it down without discussing his specific concerns with the employer.  The employer explained that he had initially accepted the job, but then changed his mind because of his sick girlfriend.  The employer explained that it would not have involved significant travel and would have relayed that information to him if he had previously articulated that concern.  There was also testimony that the employer would have continued to employ him part-time if he had expressed interest. 

Typically, an employee has the right to resign if the employer materially changes their job, but they first need to discuss it with the employer to give the employer the opportunity to correct the situation.  In this case, the Commission determined that the employee quit without just cause because he was offered a full-time job (after losing his full-time university job) when it was explained that his part-time job was being restructured and he declined the full-time job without explanation.  The employee never established that he had been laid off or when he was fired from his part-time job.  Rather, he said that there had just been a series of discussions.  Therefore, there was sufficient evidence in the record to support the Commission’s conclusion that he had resigned and not been fired.

The Commission determined that he lacked just cause to resign his employment when he was offered a position paying $920/week (more than his $250/week part-time wages) and he failed to have any meaningful discussion about the working conditions before turning it down.  Had he discussed his concerns with his employer, he would have learned that his was being paid more  (because of the health insurance and retirement benefits) and would be travelling approximately the same amount or less as he had been. Finally, he would have been able to remain working part-time if that appealed to him more.  Because he was not involuntarily unemployed through no fault or agreement of his own, he was not entitled to unemployment compensation.

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.

Unemployment Compensation Denied When Physician Indicated Claimant Had No Work Restrictions But Would Know When to Leave Job

 Last week, a divided Franklin County Court of Appeals affirmed the denial of unemployment compensation to a claimant who had given notice of resignation and then a week later failed to return to work. Boynton v. Ohio Dept. of Job & Family Servs., 2022-Ohio-2597.   The Court found that the employee did not have “just cause” to resign her position because she had failed to first attempt to resolve any issues with her employer before submitting her resignation.   Moreover, her physician had stated that he had not placed her on work restrictions or advised her to quit her job, rendering her medical complaints irrelevant. 

According to the Court’s opinion, the claimant had worked as a cashier for a retail establishment for a few years.  Because of, among other things, lower back pain, her employer had accommodated all of her requests, including reducing her work hours and permitting her to rest one leg on a basket.   However, one day, she indicated that she was giving her two-week notice of resignation for several reasons, including to care for her ill fiancé, her low back pain and dissatisfaction with the employee rewards system.  After a disagreement with a co-worker a week later, however, she informed the manager about her emotional distress, and left work early.  She later told her manager that she would not be returning to finish her two-week notice because of COVID concerns. 

The Court noted that employees cannot receive unemployment compensation following a voluntary resignation unless they had just cause to resign

"Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Rider v. Dir., Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-854, 2017-Ohio-8716, ¶ 9. Under this standard, " 'an employee is required to cooperate with the employer to resolve work-related problems. * * * If the employee does not cooperate or give the employer sufficient time to accommodate the employee's needs [and] concerns, that employee will usually not be found to have just cause if he or she quits.' " . . . " 'Essentially, an employee must notify the employer of the problem and request it be resolved, and thus give the employer an opportunity to solve the problem before the employee quits the job; those employees who do not provide such notice ordinarily will be deemed to quit without just cause, and, therefore, will not be entitled to unemployment benefits.' "

The claimant did not dispute that she failed to discuss her reasons for resignation with her employer before her resignation, except with respect to her medical ailments.   However, again, there was no evidence that she had ever indicated that the accommodations that she had requested and been provided were inadequate prior to her resignation (although there was evidence that the accommodations had not resolved her back pain issues).   She had provided with her unemployment application a statement from her treating physician that he had never placed her on work restrictions or advised her to resign, but that she would know when it was time to leave.

The ODJFS found that she lacked good cause to resign because she had not attempted to resolve with her employer any of these three issues before giving notice.  The Court’s majority found that there was adequate evidence in the record to support this conclusion. 

The dissent found that the physician’s comment that “she will know when it is time to not work anymore” satisfied her burden of proving good cause because it was clear no reasonable accommodation would be possible to permit her to continue working as a cashier.  The employer also had been on notice that her prior accommodations had not solved the issue with her back pain, but made no further suggestions.    Further, the dissent would not penalize her for leaving work prior to the completion of her two-week notice because she had been unwell and was legitimately concerned about COVID. 

Court Rejects Non-Compete Which Applied Following Employee "Termination" When the Employee Voluntarily Resigned

Earlier this month, the Franklin County Court of Appeals affirmed a judgment for physicians and a medical officer manager who were alleged to have violated post-employment restrictive covenants and misappropriated trade secrets.  Buckeye Wellness Consultants, L.L.C. v. Hall, 2022-Ohio-1602.   The Court agreed that the one-year terms of the employment agreements did not automatically renew when the contracts lacked language indicating automatic renewal and both physicians indicated that they wanted to renegotiate their contracts before they ultimately resigned between six and 16 months following the expiration of their agreements.   The non-solicitation clauses only applied during the term of the agreement and one for one year after termination of the agreements.   The clause had expired before one of the physicians had resigned.   While the court indicated that the clause could not be enforced against the other physician who had resigned only six months after his agreement expired, the Court also pointed out that the employer had failed to identify a single patient who had been inappropriately solicited and refused to find notification of a change of practice to constitute a solicitation.   The Court also agreed that one non-compete was unenforceable because the employee never worked in the restricted territory.  The Court also found that the other non-compete did not apply because the employee voluntarily resigned, his agreement implied a distinction between termination and (voluntary) separation, and the clause only applied “for one year “following termination of the Employee.”   Finally, the Court rejected the trade secret claim because the employer failed to produce any evidence that the defendants had inappropriately accessed the password protected trade secret lists or used them. 

According to the Court’s opinion, the defendants all worked at the same medical office before being hired by the plaintiff employer.  Each physician also practiced elsewhere.   The two defendant physicians entered into one-year employment agreements which contained restrictive covenants prohibiting competition and solicitation of patients.   One non-compete applied “so long as the Employee is employed by the Employer, and for a period of one (1) year following termination of the Employee.”  The other non-compete applied for one year “following termination by the Medical Doctor/Physician.”   Both non-solicitation clause applied only for one year following “after termination of this agreement.”  Interestingly, the agreements did not provide for automatic renewal.   Both physicians attempted to negotiate better terms after the first year and, when unsuccessful, submitted their resignations.  One resigned six months after his agreement expired and one 16 months after his agreement expired.   The office manager never signed an agreement or non-compete.   They ultimately formed a new practice and all patients were informed by the defendants and plaintiff of their move.  The employer then filed suit for breach of contract, tortious interference, theft of trade secrets, conversion, conspiracy, unjust enrichment, etc.  The trial court entered judgment for the defendant employees.

The most significant issue was when the one-year restrictive covenant periods commenced and expired.  As an initial matter, both clauses applied “during the term of the Agreement” and for “so long as the Employee is employed” by the employer.   Both non-solicitation clauses expired one year after termination of the agreements.   The employer argued that the term of the agreements and non-competes continued until termination of employment, but the Court disagreed.  Each clause indicated that “[t]he term of this Agreement shall commence on the Effective Date of this Agreement and shall continue for one (1) year(s) thereafter” and that the parties could revisit the physician’s compensation at the end of each contract year.  The agreements were silent as to the manner or duration of any renewal.  The employer asserted that renewal was implied, but the Court disagreed.   The language indicating that the agreement had a term of one -year was clear and unambiguous, particularly when renewal was never mentioned.   Generic references in other clauses of the agreement to potentially renewable terms was not a substitute for an explicit term discussing how long and when the contract would be renewed.  The reference to “year(s)” did not make the agreement ambiguous because it simply meant that the term “one” could have been made “five” while being negotiated.

The Court then addressed whether the restrictive covenants continued to apply after the agreements expired on their terms. 

The general rule of contracts under such a situation was " '[w]here a contract of employment for a definite time is made and the employee's services are continued after the expiration of the time, without objection, the inference is that the parties have assented to another contract for a term of the same length with the same salary and conditions of service, following the analogy of a similar rule in regard to leases.' . . . . The employee who continues working under the same terms and conditions after the employment agreement has expired becomes a hold-over employee.

However, the presumption that arises from an employee's continued employment is "rebuttable by proof that a new contract for the continued period has been entered into, or by facts and circumstances showing that the parties did not intend to continue upon the terms and conditions of the original contract."

In this case, at the expiration of the employment agreements, both physicians indicated their displeasure with their terms and conditions of employment and attempted to negotiate new agreements.    Among other things, one wanted to become a part-owner and the other wanted to work more days each week and spend more time with each patient and see more investment in EMR, etc.  “The evidence shows that the doctors did not intend to continue working under the terms and conditions of the original employment agreements, so a new one-year contract does not arise by implication of law.”  Accordingly, the terms of their prior written agreements no longer bound them and they became employed at will, entitling each of them to resign prior to completing another year of employment. 

The non-compete language was slightly different for each physician and their employment agreements expired at different times.   With respect to Dr. Santiago, the Court agreed that the non-solicitation covenant – which applied for 12 months after expiration of the employment agreement --  had expired by the time he had resigned 16 months after his employment agreement had expired.   The duration of the non-compete was ultimately irrelevant because he always worked outside the 5-mile restricted radius.   Both covenants applied so long as they were employed and were triggered by their terminations.   Although the Court thought that the language “termination by” the physician was ambiguous when Dr. Santiago had voluntarily resigned and the agreement did not define “termination,” the ambiguity was ultimately irrelevant.    In other words, the non-solicitation clause did not apply because it had expired before he resigned.  The non-compete duration was irrelevant because he had never worked inside the restricted territory.   

Dr. Hall’s situation was more complicated because he resigned only six months after his agreement had expired (before the non-solicitation clause expired) and the duration and territory of his non-compete were different:

During the term of this Agreement, including the renewals hereof, so long as the Employee is employed by the Employer, and for a period of one (1) year following termination of the Employee, Employee shall not . . . . Employee shall further not solicit any patient or employee of Employer for a period of one (1) year after the termination of this agreement.

Unlike Dr. Santiago’s agreement, Dr. Hall’s agreement contained a separate provision governing terminations which apparently did not explicitly apply to this dispute.  Also, unlike Dr. Santiago’s agreement, Dr. Hall’s agreement defined “employment separation” as "’the separation or termination of Employee's employment with the Company, regardless of the time, manner or cause of such separation or termination.’  . . . . ‘13(D) also refers to actions based on an employee's ‘termination or separation.’"  While “separation” was never mentioned in the non-compete clause, the definition of employment separation indicated that termination and separation were different terms with different meanings.  “The employment agreement clearly provided different meanings for the two terms, and they are not interchangeable.”  Because the non-compete only applied after employment if Dr. Hall were terminated, the Court concluded that it did not apply after employment if he voluntarily resigned.  

There was no discussion of the use of the terms in IRC 409A(a)(2)(A)(i) or 26 CFR § 1.409A-1 ("An employee separates from service with the employer if the employee dies, retires, or otherwise has a termination of employment with the employer.")

Oddly, the Court then converged the language of the non-compete clause with the language of the non-solicitation clause in rejecting the employer’s argument that the “termination” mentioned in the non-compete clause meant termination of their relationship, not the employee:  “the plain meaning limits termination to firing of the employee, which did not happen here. Hall was not subject to the covenant not to compete and solicit.”

The Court also rejected the claims that the defendants had misappropriated trade secrets (i.e., a password protected list of patient names and attorney referral sources).   The Court of Appeals found that the employer failed to produce any evidence that the lists were misappropriated, how or when the lists were obtained or how or when they were used.  Indeed, the employer could not identify a single patient who was supposedly misappropriated or solicited.  The Court concluded that it was mere speculation that the employer lost patients and the defendants gained patients based only on a misappropriation of password protected patient and referral source lists.

The Court rejected any argument that patients were improperly solicited when they were informed that the defendant physicians had changed medical practices:

Hall and Santiago, pursuant to their professional obligations, informed their patients that they were moving to a new location. Doctors have an obligation to their patients to ensure continuity of care and prevent a patient from being abandoned. These letters do not rise to the level of solicitation.

It is notable that there are a limited number medical providers who accept new workers' compensation patients, and so it is logical that patients will seek continuing care with a familiar provider, even when the provider moves. In addition, when you consider that Spanish speaking patients only have one or two medical providers who speak fluent Spanish, Santiago is in great demand by both patients and attorneys,  . .

Indeed, it appears that patients followed Dr. Santiago from his prior practice to the employer when he was hired and he was always busy with Spanish-speaking patients.

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.

Ohio Appeals Court Denies Unemployment to Employee Claiming Continued Harassment

Earlier this month, the Franklin County Court of Appeals unanimously affirmed the denial of unemployment compensation to an employee who resigned following her second complaint about her supervisor sexually harassing her.  Loughman v. Ohio Dept. of Pub. Safety, 2016-Ohio-1086.   Within a few months of being hired, the claimant complained about her supervisor sexually harassing her and he was disciplined following an investigation.   She returned to working for him and complained six months later that the harassment continued.  She was transferred into another position pending the investigation and offered four other possible positions in different sections (away from her former supervisor).   Plaintiff abruptly resigned her position a week later and filed for unemployment compensation on the grounds that she had been subjected to intolerable conditions when the harassment did not stop after her first complaint.  The Court  concluded that the employee’s resignation was unjustified under the circumstances because her second complaint was still under investigation and she had been immediately removed from the allegedly harassing situation once she made her second complaint.

In order to show that an employee was justified in resigning, the employee must first bring the intolerable situation to the employer’s attention in order to give the employer a realistic opportunity to cure the situation before the employee resigns.   If the employer fails to correct the situation, the employee may be justified in resigning and need not indefinitely subject herself to a hostile work environment.  In this case, the employee failed to explain how the employer’s discipline of the harassing supervisor following her initial complaint was insufficient.  She did not raise the issue again for six months and never alleged that the employer was aware before then that the harassment had continued.

She also could not show that the employer’s response to her second complaint was insufficient because she was immediately removed from the harassing situation, offered another position and began a second investigation (which had not yet concluded at the time she resigned).

The Court also refused to excuse the employee of the obligation to notify it of a medical condition which contributed to her resignation.

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.

Ohio Appeals Courts Rule in Favor of Unemployment Claims and Affirm Hearing Officers

Two unemployment decisions from September 30 illustrate the importance of convincing hearing officers in order to prevail or contest unemployment claims.  In one case, the hearing officer found that the employer’s witnesses and video evidence were not credible and awarded unemployment compensation where it appeared that the true reason that the claimant had been fired was because of his union activity instead of violating safety rules. Gen. Die Casters, Inc. v. Ohio Dept. of Jobs & Family Servs., 2015-Ohio-4033.   In the other case, a trucker was awarded unemployment compensation even though he resigned without advance notice and gave a completely different reason for his resignation in the uncontested hearing than he had in his questionnaire. Friedel v. Quota, 2015-Ohio-4060.  The trucker initially claimed that he quit because his employer left him stranded in the cold for several hours, but at the hearing produced evidence that he quit because his employer ordered him to violate federal hours of service regulations in order to make a delivery and the employer had not appeared at the hearing to dispute the new explanation.  The appeals court noted that the trial court erred in finding that the claimant had waived his right to assert at the hearing a different reason for his resignation by not raising it in his initial application for benefits.  Also, the court was required to affirm the hearing officer if there was any credible evidence in the record to support his decision.

In the first case, the claimant – who had worked there since 1979 --  was terminated for violating the employer’s safety rules by removing stuck objects from a machine without first locking it out. (Initially, I was impressed that the employer was enforcing its safety rules without first waiting for an injury – a practice upon which OSHA frowns).  The employer had no less than three witnesses to the safety violation.  However, the hearing officer did not find them credible.  First, the hearing officer found one witness to be inconsistent regarding his physical location and the series of events when he supposedly witnessed the claimant violate the lock-out procedures.  Second, he also found the shift manager to lack credibility because he asked a trainee about the lock-out procedures instead of the claimant and could not explain why he decided to inform management of the violation instead of confronting the claimant and stopping him from working in an allegedly unsafe manner.  Third, he found it more likely that management was motivated by the claimant’s prior NLRB complaints, history of union organizing at the plant and the recent decertification of the union.  Fourth, the hearing officer refused to give weight to the employer’s video evidence because the picture quality was so poor that he could not definitely identify the claimant and had doubts whether it captured the claimant on the day and machine in question.  Fifth, the claimant credibly testified that he had properly locked-out the machine before clearing it.  Finally, the claimant’s testimony was supported by another employee who worked on the machine immediately after him.  Once the hearing officer rules on credibility, that determination may not be reversed on appeal if there is any evidence in the record to support it.  The claimant and his co-worker provided credible testimony to support the hearing officer’s determination, so the employer’s appeal was rejected despite having video evidence.

In the second case, the claimant’s initial application for benefits was denied and he appealed, explaining that his employer refused to assist him when his truck broke down and left him sitting in freezing night-time temperatures for hours until his son-in-law came to help him.  In response, the employer contended that the claimant was responsible for minor repairs and had been given a debit card with a $500 limit in order to do so.   Again, unemployment compensation was denied. On appeal, the claimant testified to a new reason for his resignation at the unemployment hearing (in which the employer did not participate).  He contended that he had been driving since 9 a.m. when his truck broke down at 10:30 a.m. and he didn’t return home until 7 a.m.  Federal Motor Carrier Safety Administration regulations required that he not drive again for 34 hours, or that he at least get a 10 hour break.  49 C.F.R. § 395.3.  When he was called about a noon pick-up in Detroit, he explained that he was unavailable.  His employer arrived at his home and an argument ensured, during which he resigned.  He also produced his driver logs to support his position. Without contrary evidence in the record, benefits were awarded.  The UCBR denied the employer’s request for review and so the employer appealed to the common pleas court, which reversed the decision.

The trial court did not address the claimant’s hours of service explanation for his resignation, relying instead on his initial and unjustified explanation for his resignation.  ODJFS successfully argued that the trial court had improperly substituted his judgment for that of the hearing officer, which was in a better position to evaluate the claimant’s credibility.  By ignoring the claimant’s testimony about the federal hours of service rules, the court had also implicitly determined that this argument had been waived when it was no included in the claimant’s initial application for unemployment benefits and his initial administrative appeal.  However, there is no provision for waiver in the unemployment statute: “The unemployment compensation statutes do not provide that arguments not made prior to an administrative hearing are waived and, in fact, the court must consider the record transmitted by the UCRC.”    Moreover, prior court decisions have found employees to have just cause to resign when they are directed to violate the FMCSA hours of service rules.  

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

Divided Sixth Circuit Dismisses Age Discrimination Claim of News Anchor Who Objected to Assignment and Walked Out

This morning, a divided Sixth Circuit affirmed the dismissal of an age discrimination claim brought by a former news reporter who walked out of the station after he said that he planned quit following a suspension for objecting to an assignment. Sander v. Gray Television Group, Inc., No. 10-6120 (6th Cir. 4-19-12). This is yet another case in which the majority of the Court found it to be non-discriminatory to ask older employees about their retirement plans for succession planning purposes. The majority found that the plaintiff could not show that he was terminated on account of his age because he had resigned when he walked out after telling people he planned to quit. They also found the employer had a legitimate non-discriminatory reason to fire him based on his refusal to perform an assignment within his job duties and then telling co-workers he planned to quit over it. Management was justified in concluding that it would undermine his supervisor to permit the anchor to object like this to routine assignments. However, the dissent noted that his resignation had been ambiguous and the management admitted that they knew he did not really intend to quit. Moreover, there was evidence that his direct supervisor had previously made derogatory comments about his age and that other older anchors had potential claims for age discrimination as well. The majority dismissed those comments because the supervisor was not the decisionmaker.

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.

Employee Who Quit Because Boss Frequently Yelled at Him and Others Is Awarded Unemployment Compensation

In late January, a divided Ohio Court of Appeals from Summit County affirmed the award of unemployment compensation to an employee who quit twelve days after being hired because his actual duties did not match his job description and because the boss frequently yelled at him and others over his protests. Ro-Mai Industries, Inc. v. Weinberg, 2008-Ohio-301 (1/30/08).

The employee accepted a position with the employer after interviewing with the owner. The employee, “who had extensive experience in sales,” testified that he was told that his position with the employer would involve sales work and would require him to be at the office only from approximately 8:00 a.m. to 5:00 p.m. The owner testified: "When I hired [the employee], I told him I'm probably the worst employer to ever work for[.] I'm difficult. I expect a lot. And I warned him in advance that I'm very difficult. *** [W]hen it comes to the business, I . . . I can yell. I did yell."

The employee began work on October 24, 2005. After a few days of work, however, he says that it became clear that “his actual duties differed from the job description that he received. He was not given any sales work and he often worked well over the nine hour shift that he was promised.” In addition, he discovered that the owner had a habit of yelling at the employees. Although the employee told the owner that he did not appreciate being treated in such a manner, the owner continued to yell.

On November 3, 2005, the employee informed the head of human resources that he intended to quit and was told: "[O]h, it[] gets worse. That's the way he is." However, before the employee left the office the owner sought him out, promised to stop yelling at him, and convinced him to stay. The employee returned to work the next day, but the owner resumed his habit of yelling at him. Accordingly, the employee quit the following day.

In opposing the unemployment claim, the employer argued that the employee voluntarily quit without just cause because he did not want to work more than eight hours a day, as a salaried employee sometimes must do, and he did not enjoy the type of work that the employer assigned him. It also argued that the employee was overly sensitive to the owner’s yelling, in that such yelling had never caused any other employee to quit. The dissent was persuaded by this argument and expressed concern that an employee could obtain unemployment compensation anytime he or she quit after being yelled at by a manager or supervisor. “No other . . . employee quit because of the yelling. This, therefore, obviates the hearing officer's determination that a reasonable person would quit in such a situation. While it may be uncomfortable for an employee to have an employer yell at him or her, if we were to take the reasoning of the hearing officer to its ultimate conclusion, there would be reasonable ground for quitting just because one employee simply raised his voice at another. I would find being yelled at, as a matter of law, is not just cause to qualify for unemployment benefits.”

The hearing officer determined that a reasonable person in the employee’s position would have quit his employment. Noting that the employer had misrepresented the employee’s job duties and the number of hours that he would be expected to work as a salaried employee, the hearing officer and the majority of the Court were also influenced because the “yelling was not a single, isolated incident.” Had it been a single, isolated incident, the employee would not have had just cause to resign. Rather, it “was a repetitive problem that [the employee] unsuccessfully tried to address with [the employer’s] human resources department prior to quitting. [The employee] even agreed to resume work the first time that he intended to quit because [the owner] asked him to stay and promised to stop yelling. He did not abandon his employment without warning, or leave with utter disregard for the good of the business.”

Insomniacs may read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-301.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.