Sixth Circuit Finds Adult Sibling Could be "Child" Under In Loco Parentis FMLA Theory and False Unemployment Compensation Answers Could Be Retaliatory

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v.  Brentlinger Enterprises, No. 23-2582 (6^th Cir. 12/13/24).   It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister.   It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.

According to the Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was dying from cancer and the plaintiff (who worked in Columbus) was helping her other sister (who apparently lived in another state) to care for her.  Her request for FMLA leave was denied because she was not the parent.  However, she was given paid and unpaid leave and her work schedule was reduced to permit her more time off.  That being said, she alleged that the HR Representative indicated that she should choose between her sister and her job.  When her healthy sister’s flight was delayed, she claimed to have attempted to contact her employer on Sunday night to let them know that she would be late on Monday.  However, the text was not received until mid-Monday morning, after the employer attempted to call her when she was late reporting to work, and she was terminated.  Her sister died two days later.  The employer apparently informed the unemployment office that she abandoned her job, disenrolled her from the medical plan the next month, but then failed to send her a COBRA notice.  When her lawyer threatened to file suit under the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.

The trial court agreed that the FMLA does not allow for time off to care for a sibling and could not be “in loco parentis” unless that parental relationship or the serious illness began while the sibling was a minor. Otherwise, the list of enumerated relationships covered by the FMLA would be meaningless.  The court explained that “if merely caring for someone with a serious ailment could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that person.”

 However, the appellate court found that it was an issue of fact. In examining the FMLA, it concluded the statute and regulations to be ambiguous about when the parental relationship must have begun.  It found no requirement that it must begin before the onset of the serious illness.  It then looked at common law decisions (concerning mostly cases about survivorship benefits) and found that a cousin, sibling or aunt could qualify as a parent depending on the circumstances even though the relationship did not begin until adulthood. 

While the FMLA tells us what protections are available for in loco parentis parents and their children, this case hinges on whether [the plaintiff] was an in loco parentis parent at all. The FMLA neither defines “in loco parentis” nor specifies how or when these relationships form. We know that the FMLA contemplates in loco parentis relationships that involve children who are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis parent, can take time off to care for a sick child over the age of eighteen if that child has a disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that situation, the text does not say whether the in loco parentis relationship or the child’s disability must have started during the child’s minority. The text also does not specify whether the in loco parentis relationship must predate the child’s incapacity. Resolving this case requires us to answer those questions.

 . . .

we drew an analogy to legal adoption, which is not limited to minors. Id. The definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered on adoption: “A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” . . . .

 . . . [The employer] argues that Niewiadomski—which also surveyed the common law—weighs in its favor because there, we observed that an in loco parentis relationship “is essentially different from the relationship of brother and sister,” which does “not include the legal obligations existing between parent and child.”  . . .  But that observation just restates an obvious point: when a person acts in loco parentis to another, they take on duties of care and support that surpass what is typically shown toward a sibling. The observation does not rule out the possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an in loco parentis relationship formed when his slightly older cousin took him in.

 . . . .

Therefore, reading the FMLA against the backdrop of the common law, we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed. Indeed, under the common law, a debilitating condition was not a requirement at all.

It also concluded that she had alleged sufficient facts to warrant reconsideration, although it was still unclear whether she would qualify under the common law standard as a parent instead of as a sibling who shared care-giving duties with another sibling. “The district court’s concern assumes that ‘merely caring for someone with a serious ailment’ creates an in loco parentis relationship. As we describe later, that’s not so; it requires a more robust relationship.”    The court’s decision indicates that:

Between June 20 and 25, [the plaintiff] used her allotted paid time off to travel to Kentucky to take care of [her dying sister]. [She] alleges that she supported her sister financially by paying some portion of her bills and buying groceries and other essential household items. She also cooked her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her around in bed to prevent bed sores. She also provided emotional support. [Her] other sister  . . . . provided similar care to [the dying sister] during the same period. On some days, [the plaintiff] or [her other sister] took care of [the dying sister] alone, and on others, the sisters divided the responsibilities. [The other sister] was [the dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid days off, [the employer] allowed her to take unpaid leave at its discretion, but it was unclear for how long.

A number of factors remain to be explored.

The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis is “the intention, rather than . . . the act of the party.”  . . .  Accordingly, we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a parental nature, but also whether they have done so “with the intention” of serving as a parent.  . . .  It’s not enough that a person has provided for another as a parent might, though that “raises a strong inference that the person had assumed the character of a parent.” Id. The person “must have intended to assume” that role.  . . . . Other circuits examining the common law agree, emphasizing that “the loco parentis relationship is such that it must reside in the minds and hearts of the parties involved.”

But how do we know adult parties intended to assume a parental relationship? In some cases, we have relied on direct evidence that the parties thought of themselves as parent and child, including their internal communications and statements to others that they perceived themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a parent-child relationship, including “the kind of service done and the kind of thing given.” Banks, 267 F.2d at 538–39.

                   . . .

Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no immediate family or was estranged from immediate family—came to live with an older relative (though the cousin in Niewiadomski was only a few months older, while the aunt in Thomas was about two decades older).  . . . The cases have many similarities. We noted in both that the alleged in loco parentis parent took her cousin or nephew into her home and provided lodging, a seat at the table for meals, medical care, and clothing.  . . . The alleged in loco parentis children also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to household chores.  . . .  And in both cases, the younger relatives later served in the military and designated their aunt or cousin as the beneficiary of their statutorily provided military life insurance, identifying the relationship as parental . . .  Both servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.  . . .

Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas, we held there was.  . . . This distinction rested on several key factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as “brother” and “sister” and that “she considered the insured as a brother, and not as a child” was the “most conclusive factor” in the case.  . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.”

The Court also remanded to reconsider the retaliation claim.  The plaintiff alleged that co-workers with poor attendance were not terminated under similar circumstances and, if that she was not fired for being absent but in retaliation for having requested FMLA leave (even if she ultimately were not eligible for FMLA leave).   Also, the employer provided false information to oppose her unemployment compensation claim by claiming that she abandoned her job when it was admitted that she was fired and that she had not quit or abandoned her job.

A jury could find that making false statements to an unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family” because it can result in “the loss of income associated with unemployment benefits.”  . . .  The false statements, or threat thereof, may require a plaintiff to choose whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . . stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the former.

Interestingly, it did not find the threat of Rule 11 sanctions to be retaliatory because lawyers are supposed to send such a letter before filing a Rule 11 motion.

The Court also remanded the plaintiff’s ADA claim.  Although she was not entitled to leave under the ADA to care for her sister, it would violate the ADA to fire her because of her association with her dying sister.   She alleged that the HR Representative had told her that she should choose between her sister and her job and she was fired when she was late returning to work from caring for her sister.  She alleged that the employer made a discriminatory assumption that her sister was distracting her from her job duties. “The ADA thus prevents an employer from terminating an employee based on “unfounded fears that [the employee] would be distracted at work on account of” a loved one’s disability."

Finally, the Court affirmed the $85/day fine for failing to provide the plaintiff with the mandatory COBRA notice.  It maximum fine is $110/day. “ The district court reasoned that Chapman had not produced evidence that MAG violated COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of notice.”  . . .  Because she did not receive notice of her coverage options under COBRA, Chapman did not acquire health insurance until May 2020. Without coverage, she delayed treatment for a condition she later discovered was malignant skin cancer.”

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.

Butler County Court of Appeals Alters Summary Judgment Standard in Employment Discrimination Cases

Last week, a divided Butler County Court of Appeals reversed a car dealership’s summary judgment on claims of discriminatory compensation and public policy wrongful discharge brought by a six-month employee who claimed that she had been fired for reporting COVID and rodent issues to OSHA and who had been not been paid promised bonuses.  Johnson v. Cincy Automall, Inc., 2024-Ohio-5749.  While the Court was unanimous that she could pursue her wrongful discharge claim, a divided court held that the traditional burden shifting used for decades in all employment discrimination cases no longer applied in summary judgment cases.  Rather, the plaintiff as the non-moving party with the admitted ultimate burden of proof was not required to produce evidence supporting her claim or prima facie case until the employer/moving party disproved her allegations with actual evidence of its own in its motion.    In addition, the court's majority held that she could show that she was similarly situated without reference to a comparison of job duties or terms and conditions of employment based solely on her allegation that she had not been paid her earned bonus while male employees (with different jobs and terms and conditions of employment) had been paid their earned bonuses. 

According to the Court’s opinion, the plaintiff had been hired in July 2020 to manage the Facebook page, implement new software and develop sales leads for sales staff.  She was promised a weekly salary and monthly bonuses that were based on developed sales leads.   However, she was never paid any bonus and alleged the owner claimed that he could not afford to pay her, but he did pay the sales people (who were mostly male).  (The dissent notes that the owner apparently admitted that he owed her some unpaid bonuses).   When he ignored her concerns about non-compliance with COVID protocols and mouse feces, she reported her concerns to OSHA on December 15.  She claimed that her computer and FB access was revoked the next day and she was fired a week later.  The dealership denied this and claimed that she voluntarily resigned after being offered a transfer to an administrative position.  OSHA investigated and determined in March that she had not been fired for engaging in protected activities.  She brought suit in May, claiming unspecified sex discrimination and harassment, breach of contract, retaliation, and wrongful discharge in violation of public policy.   The trial court granted summary judgment to the employer on all claims, except notably, the breach of contract.   She appealed and a divided court of appeals reversed dismissal of the claims of discriminatory compensation (i.e., payment of the bonuses) and wrongful discharge.

The trial court dismissed the public policy claims on the basis that there were no clear public policies underlying the employer’s COVID practices and the rodent infestation.   Although the Court unanimously reversed this decision, this same Court had previously upheld the discharge of an HR Director on the grounds that COVID was not a workplace safety issue, but a general public health issue. The plaintiff “contend[ed] that COVID hazards and a mice infestation are matters of workplace health and safety and that an at-will employee who is fired for filing a complaint with OSHA concerning matters of health and safety in the workplace states a valid claim for wrongful discharge in violation of public policy.”  Importantly “she invoked the OSH Act's anti-retaliation provision in 29 U.S.C. 660(c).”   Ohio’s leading Supreme Court case on wrongful discharge claims – Kulch v. Structural Fibers – recognized a claim for retaliation for filing a claim with OSHA.   Other, later cases recognized claims for similar internal complaints. 

It is crucial to emphasize that the threshold for protection under this public policy is not the ultimate validity of the complaint, but rather the employee's good faith belief in its legitimacy. As the Ohio Supreme Court observed in Kulch, to require otherwise would risk deterring employees from reporting genuine health and safety concerns, which would undermine the policy favoring workplace safety.  . . .  This principle also finds support in federal law surrounding one of the main sources of the public policy, 29 U.S.C. 660(c).

The Court distinguished its former public policy/COVID decision on the grounds that the HR Director was not expressing safety concerns, “but rather for disagreeing with her employer's COVID-response protocol. Specifically, she advised an infected employee to quarantine for ten days contrary to her employer's order that the employee return to work.”  At that time, the Court did not view the employee’s objection to the employer’s refusal to honor a quarantine direction as an OSHA retaliation concern, but here, found the employee was expressing safety concerns (which focused on handwashing, sanitizers and unpaid leave for quarantines). 

All this being said, the Court refused to address the employer’s arguments refuting causation and its good reason for any adverse employment because these arguments had not been raised in its trial court motion or addressed by the trial court in its summary judgment decision.   While its review is de novo, it indicated that appellate courts should not address issues not raised by the trial court and, instead, would limit this decision to the scope of the trial court decision.  

A divided Court reversed the pay discrimination dismissal on the grounds that she had been denied bonuses which she had allegedly earned (and was the subject of a pending breach of contract claim), but male sales people were paid their bonuses.    At core, she was claiming that that the only reason she wasn’t paid for the bonuses that she earned was because she was female and the car salespeople (all but one of whom were male) were paid their bonuses because they were mostly male.    However, the Court’s majority criticized the trial court’s description of her claim as being that she was paid less than male employees for the same work when she held an administrative position and they were sales employees.  As far as the majority is concerned, she stated a discrimination claim when she compared the fact that she was not paid her earned bonus when male employees were paid their earned bonus, even if the terms of their bonus arrangements were based on different metrics and conditions.

 This question cuts to the heart of the "similarly situated" analysis, which requires us to determine whether the male comparators were similar "in all relevant respects."  . . .

 {¶ 39} It is imperative to note that there is no rigid, predetermined list of factors that must be considered in making this determination. As the Sixth Circuit aptly noted, a court must make an "independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee" based on the facts of the case.  . . .  This aligns with the Ohio Supreme Court's case law on this issue, which recognizes that "what is relevant depends on the case."

 . . .. In the present case, the minutiae of duties, job titles, or the particulars of bonus structures are of little consequence. What matters is the simple fact of entitlement to a bonus and payment—or lack thereof.

 . . . . .

[The employer] argues that [the plaintiff] cannot be similarly situated to male employees because she managed the Business Development Center while they worked in sales. But this misapprehends the nature of the similarly situated analysis. The question is not whether employees share identical job duties across the board in the abstract, but whether they are similarly situated in the specific context that forms the basis of the discrimination claim. . . . Here, [she] alleges discrimination in the payment of contractually-promised bonuses. The relevant comparison, therefore, is whether male employees who were contractually entitled to bonus payments received them while [she] did not. [The employer] offers no explanation for why the difference between management and sales positions matters for purposes of honoring contractual bonus obligations. In the absence of evidence demonstrating the relevance of this distinction to bonus payment practices, [the employer] has failed to meet its initial burden on summary judgment to show that no genuine issue of material fact exists regarding whether [she] was similarly situated to male employees who received their bonuses.

 . . . . [Her] compensation agreement, her complaint, her deposition testimony, and [the employer’s] answers to interrogatories collectively indicate that [she] and the men were entitled to bonus payments, that the men were paid, and that women (with one exception) were not paid.

In addition, the Court’s majority then ignored traditional burdens of proof in employment discrimination cases.  It faulted the employer for merely pointing out that the plaintiff had failed to sustain her burden of proving discrimination instead of producing its own independent evidence as the moving party.  Apparently, the employer had pointed out in its motion that the plaintiff did not produce any evidence, such as pay stubs, etc. and asserted that she had been an administrative assistant for months (thus, not entitled to any bonus).  Rather, Court’s majority contended that the employer “needed to point to evidence that, for example, the men were not entitled to payment or were not paid.”

The dissent pointed out that the employer in a discrimination case is not required to prove the absence of discrimination until the plaintiff produces enough evidence to show that she was treated differently.    However, the Court’s majority concluded: “This failure to discharge its initial burden is fatal to [the employer’s] motion for summary judgment on the sex discrimination claim.  It remains to be seen whether this case will be appealed to the Ohio Supreme Court based simply on the Court’s mysterious and inexplicable alteration of the burdens of proof in discrimination cases:

{¶ 45} It is crucial to emphasize that at this stage of the proceedings, the ultimate burden of persuasion has not yet shifted to [the plaintiff]. While she retains the ultimate burden of persuading the trier of fact that [the employer] intentionally discriminated against her,  that burden is not yet operative in the context of summary judgment.

The dissent identified a lot of problems with the majority decision.  First, the plaintiff’s complaint and the summary judgment briefs barely mention, let alone discuss, wage discrimination.  Rather, the motion focused on her allegation that she had been terminated (which the employer denied) and contended that she had resigned after refusing a transfer.  The plaintiff’s response to the motion likewise focused on the termination allegation, but also identified evidence that certain men were paid the bonuses that they earned and that the employer engaged in a lot of allegedly sexist conduct.  Nonetheless, the trial court addressed wage discrimination in his decision, concluded that she had suffered an adverse employment action, but could not show that she was treated differently by being paid less for the same work since her work was not the same.   He also noted that she had admitted in her deposition that she had never reviewed actual payroll records to support her allegations.  

In other words, [her] sex discrimination claim is not an equal pay claim—sometimes called a wage discrimination or pay discrimination claim—but is instead a sex discrimination claim that, as a factual matter, relates to [the employer’s] alleged failure to pay certain compensation (bonuses) that [she] alleges were owed to her.  [She] only alleges that [her employer] has discriminated against her in failing to pay bonuses, not in the terms of her bonus plan. There is therefore no need to examine equal pay statutes . . .

Second, the dissent took exception to the majority’s evaluation of who is similarly situated:

Speaking generally, the simple fact that some employees are entitled to a bonus and a plaintiff is not paid a bonus, by itself, does not establish that those employees are similarly situated to the plaintiff. Is it the same bonus? For doing the same work? Who decides who gets paid the bonus? Do the employees have the same bonus plan? Did the plaintiff and the other employees differ in their compliance with the terms of the bonus plan? At least some commonality must be established—the same or a similar job, the same pay plan, the same supervisor, etc.

The dissent then pointed out that the plaintiff had a very different job from the men to whom she was comparing herself.   She did not and could not produce any evidence that the men’s bonus plan was similar to her bonus agreement.

Finally, the dissent pointed out that for decades the plaintiff has been required in opposing a summary judgment to produce or identify evidence to support her burden of proof, but in this case, the majority was faulting the employer for not producing evidence to dispute the plaintiff’s burden. 

Next, the majority states that "[the employer] needed to point to evidence that, for example, the men were not entitled to payment or were not paid." In making this statement, the majority seems to imply that a court faced with a summary judgment motion must assume that employees identified as similarly situated by a plaintiff are in fact similarly situated, and that the burden is on the employer (the moving party) to disprove that the employees are similarly situated. I am aware of no case law supporting the majority's view of what McDonnell Douglas requires.

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.

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

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

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

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

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

Sixth Circuit Questions Whether Agreement to Simple Release of All Claims Was Voluntary When Union Gave Plaintiff Poor Advice and It Failed to Identify "Discrimination" Claims.

Yesterday, a divided Sixth Circuit reversed an employer’s summary judgment on racial discrimination and retaliation claims.  Moore v. Coca-Cola Bottling Co., No. 23-3775 (6^th Cir. 8/22/24).  The majority agreed that the plaintiff produced enough evidence to demonstrate a factual dispute about whether he was treated differently than white co-workers when he was terminated for testing six times higher than the prohibited threshold while two white co-workers were treated more leniently under comparable circumstances.  The Court refused to enforce the release of claims he signed in a last chance agreement given for insubordination despite his college education and failure to request more time to consider it when the entire meeting lasted about 10 minutes, the union vice-president encouraged him to sign it and the release of “all” claims against the employer arising out of employment did not specifically mention discrimination claims.   The Court remanded for the trial court’s consideration whether placing him on a second chance agreement and requiring random drug testing after he tested positive for marijuana below the employer’s prohibited threshold was discriminatory. The Court also found that the employer waived its affirmative defense to his failure to exhaust administrative remedies by failing to raise with the district court the plaintiff’s failure to file a Charge of Discrimination about the second chance agreement or mention it in a later charge about his suspension and last chance agreement. 

According to the Court’s opinion, the plaintiff had received college degrees in fashion design and hospital administration, but joined the defendant employer in 2015 as a warehouse employee after realizing his hospital career was not going further.   He began filing discrimination complaints with HR starting in August 2016, complaining about unpaid suspensions, etc.  Following an April 2017 accident where he significantly damaged an autonomous vehicle with a forklift he was driving, he was drug tested, but tested below the prohibited threshold in the employer’s policy, which provides for suspensions without pay, random testing for 24 months and immediate termination with another positive test within 60 months under a second chance agreement (SCA).   Although he objected to being placed on a SCA when he tested below the threshold, his supervisor -- who never saw the drug test results --  told him that he would be fired if he refused.  He did not ask for additional time to consider the agreement.

In June 2017, the plaintiff and other employees objected in salty language to a new operations directive.   He was then informed that he was being terminated for insubordination, but the union negotiated a last chance agreement for him the following month.  He met with the union vice president and his supervisor for ten minutes and was told that he would not be reinstated without signing the agreement, which contained a release of all claims against the company and the union.  Again, he did not request more time to review and consider the agreement.  He filed a Charge with the Ohio Civil Rights Commission challenging the termination (when other white employees also used salty language without being terminated), the LCA and his failure to receive backpay from his suspension, but did not mention the SCA.    A year later, he tested positive for marijuana at 6 times the prohibited level and was terminated in July 2018.   While he does not dispute that he tested positive, he challenged being placed on random drug testing under the SCA in the first place.  In May 2019, he filed an EEOC Charge alleging that he was treated differently than white co-workers. 

 

The district court found that the plaintiff had waived his challenge to the SCA and his suspension by signing the release in the LCA.  It also found that he could not show that the employer’s explanation for his termination -- his positive drug test -- was pretextual.   A divided Sixth Circuit reversed.

In the lengthiest part of the decision, the Court focused on the questions raised about whether the release of claims contained in the LCA were voluntary, and thus, enforceable under Title VII.   The majority discounted his college education for lacking legal training and his failure to request any time to consider the LCA because the union officer had told him to sign it if he wanted to be reinstated (and possibly poor legal advice) and the entire meeting lasted only 10 minutes.  It also discounted the fact that he had union representation and was never given an explicit deadline by the employer when he had to sign it.    In considering whether a release is valid and enforceable, courts will consider the following factors:

“(1) [the] plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.” Id. While weighing these factors, we also “must ‘remain[] alert to ensure that employers do not defeat the policies of . . . Title VII by taking advantage of their superior bargaining position.’”

Interestingly, the majority found that the union’s encouragement to sign the agreement should be held against the employer even though the union was more accurately aligned with the employee.  One has to wonder if merely a friend had similarly given him poor advice would similarly affect the court’s analysis.  In short, it found that a jury should be able to later decide whether his signature should be considered voluntary:

It is unclear from the record whether [the plaintiff] was required to sign the LCA the same day that he was presented with it, or if he was able to request additional time to consider the contract’s terms. Similarly, the record indicates that [he] did not have an attorney present but does not provide any information as to whether [he] would have been permitted to request one prior to his signing the LCA. Most telling is that Arrington, the union representative in the room with [him] when he signed the LCA, told [him] to just sign the LCA and that it was “better to fight with a job than fight without a job.”  . . .  Reasonable jurors could find that Arrington’s statements indicated that [his] discrimination claims would survive his signing the LCA and that they influenced [his] signing the agreement.

Although Moore holds associate’s and bachelor’s degrees, his education does not provide him with any type of legal, managerial, or contractual background that would be relevant to interpreting the LCA’s terms in a manner essentially at odds with what the union representative told Moore. . . .

The Court also questioned whether the simple language releasing all claims against the employer and union relating to his employment arising prior to that date was sufficiently clear when the simple sentence did not explicitly mention discrimination or statutory claims.

In other cases where we have found that such provisions are straightforward in their terms, the contracts have explicitly stated that the employee was waiving the right to bring a discrimination suit,  . . . or that an individual must “arbitrate any legal dispute relating to their employment . . . , including all state and federal statutory claims,”  . . . . The LCA that [the plaintiff] signed is not precise in explaining what was meant by “any and all liability of any kind whatsoever relating to his employment with” CCBC, and [he] lacks a background that would help him to interpret this term.  Most important in [his] case is [the union officer’s] statement in the context of signing the LCA that it was “better to fight with a job than fight without a job.”

 . . . . As discussed above, particularly important in this case are the facts that (1) the union representative effectively suggested that [the plaintiff] would be able to seek legal recourse notwithstanding [his] signing of the agreement; (2) the agreement was not clear with respect to what rights [he] was waiving; and (3) [the employer] was in a better bargaining position. In other words, consistent with our caselaw, [his] education and experience are not “dispositive,” but rather are considered in the full context of the other waiver factors.  . . . Indeed, the union representative’s comments alone suggest that the waiver was not likely knowing and voluntary: it is natural for an employee to trust that their representative’s representations concerning that employee’s rights are fair and accurate.

The Court also rejected the employer’s accurate argument that the plaintiff had failed to exhaust his administrative remedies because he never filed a Charge of Discrimination challenging the SCA because the employer never raised this argument in its summary judgment motion before the trial court.  The failure to exhaust administrative remedies is an affirmative defense.

In addition, the Court found that the plaintiff had produced sufficient evidence for the jury to consider whether the justification for terminating him -- the admitted positive drug test -- was pretextual because it was insufficient to motivate his discharge when other employees were not terminated under similar circumstances.  He alleged that he was targeted for drug testing six times -- more than any other employee -- even though two of his co-workers “were permitted to come to work under the influence of alcohol or drugs and were not likewise penalized.”   He alleged that one co-worker “was likewise on an SCA, but was not tested during this time, nor was [that employee] fired after he had a positive drug test while on a SCA” following an accident.  Instead, the white co-worker wasn’t fired for more than a year after he failed a third drug test.

A two-strikes policy for firing Black employees and a three-strikes policy for firing white employees would plainly constitute disparate treatment and raise pretext concerns. At this stage, all that we look for is similarly situated comparators who “were not fired” despite engaging in “substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.”

Because the trial court did not consider pre-LCA events, the Court remanded for further consideration the plaintiff’s argument that that he was placed on random drug testing under the SCA even though it was not factual that he failed the first drug test. 

Finally, the Court had no difficulty in finding adequate evidence for the jury to consider about the retaliation claim.  The plaintiff had filed many internal discrimination grievances with HR, which were known to his manager.  He submitted one complaint a mere week before the final random drug test that resulted in his termination. “Given the temporal proximity between Moore filing his EEO grievances and the adverse employment action taken against him, Moore has shown “sufficient temporal proximity to establish a causal connection.”

 

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.

Supreme Court Reinstates SOX Jury Verdict With Lower Burden of Proving Employer's Motive Against Whistleblower

 This morning, the Supreme Court unanimously found that proof of retaliatory intent is not necessary to prevail on a claim for wrongful discharge brought under §1514A(a) of the Sarbanes-Oxley Act of 2002, and the employee must prove that the protected activity was merely a contributing factor to his or her employment termination.  Murray v. UBS Securities, LLC, No. 22-660 (U.S. 2-8-24).  “Under the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002, no covered employer [publicly-traded companies] may ‘discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of’ protected whistleblowing activity. 18 U. S. C. §1514A(a).”  The protected activity includes reports by employees “what they reasonably believe to be instances of criminal fraud or securities law violations.”     “When a whistleblower invokes this provision, he bears the initial burden of showing that his protected activity ‘was a contributing factor in the unfavorable personnel action alleged in the complaint.’ 49 U. S. C. §42121(b)(2)(B)(iii). The burden then shifts to the employer to show that it ‘would have taken the same unfavorable personnel action in the absence of ‘ the protected activity. §42121(b)(2)(B)(iv).”  The statutory language prohibiting discrimination against the employee does not require proof of retaliatory intent. 

According to the Court’s opinion, the plaintiff was employed as a research strategist who was required by SEC regulations to certify to his employer’s current and prospective customers that his reports were prepared independently and reflected his own views.  He alleged that he was fired after internally reporting in December 2011 and January 2012 that the leaders of two trading desks were improperly pressuring him to skew his reports to support their business strategies and to “clear” his articles with them before publication.  He found their conduct to be both unethical and illegal.  His supervisor, while sympathetic, urged him to not alienate those two individuals and was not helpful when the plaintiff reported that he was improperly being left out/excluded from meetings.   Despite having just given the plaintiff a strong performance evaluation, the manager then recommended him for layoff or to be transferred to a trading desk analyst position where he would not have SEC-certification responsibilities.  When the trading desk rejected him, he was fired in March 2012.  At trial, the employer argued that “market-wide difficulties and a $2-billion loss on a [its] trading desk in London had required the elimination of certain positions,” including his.

At trial, the judge instructed the jury that he was “not required to prove that his protected activity was the primary motivating factor in his termination, or that . . . UBS’s articulated reason for his termination was a pretext.”  When the jury sought clarification, the judge instructed that they ““should consider” whether “anyone with th[e] knowledge of [the plaintiff’s] protected activity, because of the protected activity, affect[ed] in any way the decision to terminate [his] employment.”  Recommending a $1M verdict, the “jury found that [the plaintiff] had established his §1514A claim and that [the employer] had failed to prove, by clear and convincing evidence, that it would have fired [him] even if he had not engaged in protected activity.”  The court added $1.7M in attorneys fees and costs to the jury’s recommendation.   On appeal, the Second Circuit concluded that the plaintiff was required to show that the employer possessed a retaliatory intent.  Today, the Supreme Court reversed.

Unlike most federal employment statutes, SOX adopts the “burdens of proof set forth in section 42121(b) of title 49, United States Code”—a provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).” Under that statute, “the whistleblower bears the burden to prove that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U. S. C. §42121(b)(2)(B)(i). If the whistleblower makes that showing, the burden shifts to the employer to show “by clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of ” the protected activity. §42121(b)(2)(B)(ii).”  This framework

originated in the Whistleblower Protection Act of 1989 (WPA), 5 U. S. C. §1221(e), which provides legal protection for whistleblowers within the civil service. The framework was meant to relieve whistleblowing employees of the “excessively heavy burden” under then-existing law of showing that their protected activity was a “‘significant’, ‘motivating’, ‘substantial’, or ‘predominant’” factor in the adverse personnel action, and it reflected a determination that “[w]histleblowing should never be a factor that contributes in any way to an adverse personnel action.” Congress then incorporated the easier-to-satisfy “contributing factor” framework into a series of similar whistleblower statutes that protect non[1]civil-service employees in industries where whistleblowing plays an especially important role in protecting the public welfare—including, as noted above, the airline industry (AIR 21) and the securities industry (Sarbanes-Oxley).

The Court then explained that

Section 1514A’s text does not reference or include a “retaliatory intent” requirement, and the provision’s mandatory burden-shifting framework cannot be squared with such a requirement. While a whistleblower bringing a §1514A claim must prove that his protected activity was a contributing factor in the unfavorable personnel action, he need not also prove that his employer acted with “retaliatory intent.”

                . . . .

An animus-like “retaliatory intent” requirement is simply absent from the definition of the word “discriminate.” When an employer treats someone worse—whether by firing them, demoting them, or imposing some other un[1]favorable change in the terms and conditions of employment—“because of ” the employee’s protected whistleblowing activity, the employer violates §1514A. It does not matter whether the employer was motivated by retaliatory animus or was motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements.

The Court rejected the employer’s argument that innocent employers will be held liable for adverse employment actions which were not motivated by retaliation or the protected conduct, such as when the employee’s protected conduct results in the biggest client to leave and the employee without any work to do:

The statute’s burden-shifting framework provides that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of ” the protected behavior. 49 U. S. C. §42121(b)(2)(B)(ii). The right way to think about that kind of same-action causation analysis is to “change one thing at a time and see if the out[1]come changes.” Bostock, 590 U. S., at 656. The question is whether the employer would have “retain[ed] an otherwise identical employee” who had not engaged in the protected activity. Id., at 660. As the Federal Circuit has explained in the WPA context, the same-action analysis “does not require . . . that the adverse personnel action be based on facts ‘completely separate and distinct from protected whistleblowing disclosures.’”  . . . In that case, the correct inquiry was whether the employer would have taken the same action if it had learned of the contents of the employee’s protected disclosure through other means.  . . .. In UBS’s hypothetical, the relevant inquiry would be whether the employer still would have fired the employee if the client had left for some other reason. If so, it will have no trouble prevailing under the statute.

To be sure, the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself provides.

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 Conclusory Allegations in Complaint of Racial and Retaliation Discrimination and Harassment

 Last week, the Sixth Circuit affirmed the dismissal of a racial discrimination, harassment and retaliation claim against a university. Ogbonna-McGruder v. Austin Peay State University, No. 23-5557 (6^th Cir. Jan. 30, 2024).   First, the Court found that discrete acts of discrimination rarely constitute a hostile work environment claim.  Second, it found that four acts over more than 30 months were not sufficiently severe or pervasive enough to constitute harassment.  Third, her retaliatory harassment claims failed for the same reasons, even if the burden of proving retaliation is lower than discrimination.  Fourth, her discrimination claims failed because she failed to allege that they were motivated by her race or that she was treated differently than anyone who was similarly situated from her. “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

According to the Court’s opinion, the plaintiff taught university classes for more than a decade when the university decided to divide her department.  She was unhappy with a number of decisions made about her reassignment, including her classes, her performance evaluations and the location of her office, etc.  When she appealed some of these decisions, she was told that a decision had been wrong, but denied that they were not racially motivated.  She filed an EEOC Charge and later filed suit for discrimination, harassment and retaliation.  The trial court dismissed her complaint for failure to state an actionable claim.

The Court agreed that the plaintiff had failed to sufficiently allege severe or pervasive harassment based on a number of employment actions taken against her over a 30 month period:

First, the district court correctly found that the allegations of discrete acts of discrimination could not be characterized as part of the hostile work environment claim. The Supreme Court has explained that under Title VII, a plaintiff may bring a claim alleging that either (1) an employer engaged in “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire”; or (2) the employer’s “repeated conduct” created a hostile work environment. . . . Because the two claims are “different in kind,” we have consistently held that allegations of discrete acts may be alleged as separate claims, and as such “cannot properly be characterized as part of a continuing hostile work environment.” . . .

 . . . . Her allegations that she was denied the opportunity to draft a grant proposal and teach summer courses, received low evaluations, was replaced by a white adjunct professor, and was reassigned to teach public management courses represent discrete acts that could perhaps support separate claims of discrimination or retaliation under Title VII.

 . . .

But even viewing those allegations [of four incidents] as a whole, [Plalintiff] did not sufficiently allege facts from which we may infer that the harassment she experienced was severe or pervasive. Courts consider the totality of circumstances in determining the severity and pervasiveness of alleged harassment, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s performance.”  . . . Notably, the alleged harassment must be both objectively and subjectively severe and pervasive to be actionable. Id. at 21–22. Allegations of “simple teasing, . . . offhand comments, and isolated incidents (unless extremely serious)” do not suffice. . ..

             . . . As an initial matter, those events occurred over a period of approximately two and a half years—that is too infrequent to demonstrate that her workplace was “permeated with” ridicule and insult. . . . And defendants’ comments about her teaching abilities and qualifications, while undoubtedly offensive, are not sufficiently serious to constitute severe harassment.  . . .  Moreover, she did not allege that the harassment was physically threatening. Her conclusory assertions that defendants’ actions “unreasonably interfered with [her] work performance,” without alleging supporting factual allegations, is insufficient for purposes of a motion to dismiss.  . . . Because she failed to plausibly allege severe or pervasive harassment, the district court did not err in dismissing her race-based hostile work environment claim.

While the Court agreed that there was a lower standard of proving retaliation compared to discrimination, this did not save her retaliatory harassment claim because, as discussed above, she failed to allege sufficiently severe or pervasive behavior necessary for the harassment part of her claim.  “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

When the employer argued that her discrimination claim was untimely -- because the alleged acts took place more than 300 days before her EEOC charge was filed -- she apparently did not make any legal argument to the contrary.  Accordingly, her claim was deemed abandoned on appeal.  Nonetheless, the Court also observed that she failed to allege that any of the discrete acts were motivated by racial animus and to allege that she was treated worse than anyone similarly situated to her.  “]H]er conclusory statement that [the employer] treated her poorly “because of her race” is insufficient for purposes of a motion to dismiss.”

Similarly, when the employer challenged her retaliation claim as untimely, she made no legal arguments in opposition.  Accordingly, her claim was deemed abandoned.

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 Court Rejects Free Speech and Retaliation Claim by Private Sector Employee Fired for Facebook Post

Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020.  Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.    The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech.  Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her.  The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.

According to the Court’s opinion, the plaintiff had been employed for several years when she posted a meme on her Facebook page which, among other things, compared BLM protestors to monkeys.  She denied that she had seen the entire photo before she posted it and argued that it was more political than racial.   Several of her co-workers and subordinates saw it and complained to Human Resources.  She was then fired and brought suit, claiming that she was fired in violation of the right of free speech.  She pointed out that one of the complaining employees was retaliating against her for reporting them twice to Human Resources in the prior few months for making racially charged comments and allegations (which were unfounded) about her and other employees. 

The Court rejected her argument that she was fired in retaliation for reporting one of her subordinates for making racially charged and inappropriate comments.  She could not show causation when other employees had also complained and lacked the same motive to retaliate against her.  The passage of 25 weeks between her arguably protected conduct and termination also meant that she could not rely on temporal proximity to prove causation. 

As for whether she could show her termination violated public policy, she could not identify any court decisions where such a public policy had been applied to a private employer and at-will employee.   On the contrary, the court cited to a Franklin County Court of Appeals decision finding that the right of free speech under the U.S. and Ohio constitutions only apply to government employers. “[I]n the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for [plaintiff], an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against [the defendant company], a private employer.”

we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this claim.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sixth Circuit Rejects Inference of Retaliation From Passage of Time Whether it Be Six Years, Fifteen Months or Even Possibly Four Months.

Last month, a unanimous Sixth Circuit affirmed an employer’s summary judgment on a retaliatory failure to promote claim on the grounds that the passage of more than 15 months -- since the dismissal of the plaintiff’s prior lawsuit were affirmed on appeal -- prevented an inference of retaliatory motive.  Wheeler v. Miami Valley Career Technology Center, No. 22-3315 (6^th Cir. 1/10/23).    When the only retaliatory action the plaintiff could identify was being passed over for a promotion, the Court agreed that the passage of six years since her prior lawsuit had been filed, and 15 months since her appeal had been dismissed, could not support an inference of retaliatory causation.  The Court suggested that the passage of as little as four months could be insufficient by itself to show causation. 

 According to the Court’s opinion, the plaintiff teacher had been employed for approximately 30 years and applied, was minimally qualified and was interviewed for three open administrative positions in 2018, but was not selected for any of them.  She initially filed Charges of Discrimination alleging that she was passed over on account of her age and in retaliation for an EEOC Charge and lawsuit which she had filed in 2012 (but which had concluded in January 2017 when the Sixth Circuit affirmed the trial court’s 2016 summary judgment in favor of the employer).  The trial court dismissed her lawsuit on the grounds that the six years which had passed since she filed her initial Charges of Discrimination and lawsuit prevented any inference of retaliation for failing to promote her in 2018.  After appealing only the dismissal of her retaliation claim, the Court of Appeals affirmed because she:

 complains of actions that occurred years before the alleged wrongful actions by [the employer], with her prior complaint being filed in 2012. This proximity is woefully insufficient by itself—the Supreme Court has held that events not even two years apart are nowhere near close enough. See Clark Cnty. Sch. Dist ., 532 U.S. at 274 (“Action taken . . . 20 months later suggests, by itself, no causality at all.”). [She] responds that we should consider that her litigation lasted until January 2017, about 15 months before [the employer] hired someone other than [her] for the first administrative position. But this is still insufficient—we have held that far shorter time periods do not establish the required causation. See Imwalle, 515 F.3d at 550 (“In this circuit, a period of more than four months was found to be too long to support an inference of causation.”). The temporal proximity in the present case is simply not enough.

The plaintiff also attempted to challenge the employer’s explanation (of more qualified external candidates) on the grounds that the employer typically promoted internal candidates for administrative positions and that her interviews were “poisoned” by being interviewed by individuals who had been involved in her prior litigation.  However, the Court did not find her argument to be supported by the evidence.  In short, her only evidence of retaliation was not being promoted:

But given the amount of time that has elapsed since the prior lawsuit, this, by itself, is far from enough evidence needed to create a genuine dispute of material fact as to causation. . . . . She has not produced sufficient evidence establishing that the 2012 complaint was a “but-for” cause of her failed 2018 promotion, nor can she prove that she would have been promoted if not for the 2012 complaint.

 

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.