Ohio Appeals Court Rejects Sexual Harassment and Retaliation Claims Based on Speculation and Gender-Neutral Policy

Last week, the Ohio Court of Appeals in Summit County affirmed an employer’s summary judgment on a former employee’s claims for sexual harassment and retaliation.   Messer v. Summa Health Sys., 2018-Ohio-372.  In particular, the plaintiff claimed that she had been subjected to a hostile work environment when the employer expected her (and all other radiology employees) to change in a unisex locker room (or the locker room bathroom) and that she was terminated after only one month of employment for objecting.  The court found that she could not identify how she was treated differently or harassed on account of her sex when the policy was gender neutral and the locker room and bathroom could be locked.  Further, it refused to impute knowledge of her discussion about the locker room issue with one supervisor to the manager who decided to terminate her for poor performance, finding the plaintiff’s retaliation argument to be nothing more than speculation.

According to the Court’s opinion, both the locker room and bathroom could be locked. The plaintiff did not comply with the policy and either wore her scrubs home or changed in a public restroom.   The plaintiff claimed to have suffered two incidents in the locker room: One when she inadvertently walked in on a male who was changing and once when someone almost walked in on her (although she never knew the gender of that person).   Although she claimed to have reported these incidents to the same supervisor and explained why she was uncomfortable, she never submitted a written complaint about them.  After being counselled about her job performance and gaps of knowledge, she was then counseled by her supervisor about not complying with the policy requiring her to change in the locker room.

On the day before her termination, she requested to leave early and was asked whether she had completed her completed online courses.  She responded that she only had two courses left to complete.  In fact, she still had five left to complete because she had not completed the quizzes for three of the courses (even though she claimed that she had listened to the lectures for those three modules).  She completed the quizzes the next morning.  That same day, a patient suffered a hematoma, which her manager indicated was the plaintiff’s fault while the plaintiff indicated it was because she had not been provided with the proper equipment.  Finally, there was a discrepancy with her resume because the plaintiff omitted a relevant medical employer, while including non-medical positions.  While she mentioned in her interview that she had worked a temporary job, she did not disclose the employer’s name.  When confronted, she indicated that she did not think that the position had been relevant (even though she had listed prior accounting jobs).  At the end of her shift, the manager terminated her employment. 

To prevail on a sexual harassment or discrimination claim, “[a] female plaintiff must show that she was treated differently or with greater hostility because she is  a woman.”  While the plaintiff argued that the mandatory use of a unisex locker room constituted a hostile work environment to women because women have a greater expectation of privacy, the court disagreed.   For one thing, the unisex locker room and its bathroom could be locked when privacy was desired.   The plaintiff also could not cite any precedent where gender-neutral rules were found to be discriminatory.  Accordingly, the plaintiff could not show that she was treated differently on account of her gender.

As for her retaliation claim, ““[t]he decision[]maker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.”    . . . An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made.”   While a plaintiff can prove the requisite knowledge with circumstantial evidence, such “evidence can support a reasonable inference if it is comprised of  ‘specific facts’ and not merely ‘conspiratorial theories,’ ‘flights of fancy, speculations, hunches, intuitions, or rumors.’”  In this case, while the plaintiff contended that she had told her supervisor about her locker room objections at least twice, she never asserted that she had ever shared those concerns with the manager who made the decision to terminate her.  Further, she proffered no evidence that this manager had ever learned of her concerns elsewhere, although she had been told about the plaintiff’s violation of the policy.   Finally, even though the plaintiff told the manager in her termination meeting that she was not comfortable changing in the unisex locker room, she never explained why so that her concern might have been arguably protected conduct.

The court refused to consider the cat’s paw theory which was asserted for the first time on appeal.

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

Sixth Circuit Rejects Sexual Harassment Claim When Comments About Sex Were Just Unprofessional

Last week, a divided Sixth Circuit affirmed an employer’s summary judgment in a sexual harassment case where much of the conduct underlying the claim may have stated an actionable retaliation claim if the plaintiff had asserted one.  Graves v. Dayton Gastroenterology, Inc. No. 15-4049 (6^th Cir. Sept. 13, 2016).  The plaintiff alleged that a co-worker texted her on vacation encouraging her to have sex with her husband.  He apologized after she complained to the CEO, but she refused to meet with him or have any non-work related conversation with him.  He then became angry, began treating her rudely and, when he became her supervisor, denied her time off during lunch breaks, etc.  She found his treatment unbearable and submitted her resignation less than two months later.  The Court found that his text messages were not gender-based or anti-female and that, even if they arguably were, they were not severe or pervasive enough to constitute harassment.

According to the Court’s opinion, the plaintiff had been the lead nurse, but requested to rescind her management responsibilities.  A few weeks before one of her co-workers took over as the lead nurse in February, she took a vacation in January and texted that same co-worker that she loved being on vacation and had done nothing all week.  He responded that she should enjoy herself and suggested that she have fun and wild sex.  She claimed to have been offended, but said nothing.  The following week he texted her: “You and your husband lay out a wonderful dinner an [sic] have wild sex on the table!!!!! I do think about sex all the time. I [sic] just not getting it.”  After she complained to the CEO, he apologized and sought to discuss it with her.  He became angry when she would not speak with him and began treating her rudely.  Over the next two months, he refused to answer questions, denied her lunch breaks, denied her requested days off, gave her difficult assignments, and threw a chart at her.  He attributed her treatment to her complaint about him and stated that she would be finding out what hell is like. She submitted her two-month notice of resignation at the end of March and later brought suit for sexual hostile work environment, but not for retaliation.

First, the Court found that the text messages were not gender-related:

“To be actionable, the harassment must consist of more than words that simply have sexual content or connotations.” . . . . “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”  . . . This typically includes “explicit or implicit proposals of sexual activity,” id., as well as “non-sexual conduct” that evinces ‘anti-female animus.’”  . . . We have none of that here. There is no suggestion in the record that [he] or any other  . . .  employee expressed an anti-female animus toward [her]. There is no evidence in the record of any other sexual statements, any physical sexual harassment, or any use of derogatory language by [him]. [She] does not allege, for example, that [he] asked her to have sex with him, touched her or threatened to touch her, made any comments about her body, used language derogatory to women, or treated any of the other women in the office inappropriately.   Moreover, [she] expressly denied that [he] “ever request[ed] any sort of sexual favor from [her].”  She even admitted that the text messages were “inappropriate and unprofessional no matter who received [them] . . . , whether it was . . . a man or another woman.”

In addition, she admitted that his rude conduct towards her was not based on her gender, but was based on his anger at her reporting of the text messages to the CEO.  Accordingly, his gender-neutral misconduct could not be attributed to her gender either.

Second, the Court found that his behavior was not severe or pervasive enough to constitute a hostile work environment.  The two text messages were isolated events.  The remaining incidents might have supported a successful retaliation claim, but the Court refused to stretch the law governing sexual discrimination to include gender-neutral acts that are otherwise only actionable as a retaliation claim (which she did not bring despite the opportunity to do so).

The dissent found that there was enough evidence presented both as to whether the conduct was gender related and severe and pervasive.

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.

EEOC Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

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

Sixth Circuit Rejects Plaintiff’s FMLA Jury Verdict Which Rested Solely on Temporal Proximity

On Tuesday, the Sixth Circuit reversed a jury verdict entered in favor of a plaintiff who claimed that she had been terminated for falsifying her time sheets in retaliation for taking FMLA leave.  Hartman v. Dow Chemical Co., No. 15-2318 (6^th Cir. 8-16-16).   However, the Court found that there was insufficient evidence to prove that the employer’s honest belief in her fraud was pretext for retaliation even if the findings had been potentially exaggerated because there was no evidence that the employer had known about and tolerated the fraud before her FMLA leave, the investigation which commenced after her leave produced clear evidence of fraud, there was no direct evidence based on co-worker pleas to terminate her employment during her FMLA leave, and the employer could not be faulted for considering the legal ramifications of her FMLA rights. “[W]here a plaintiff’s evidence of retaliatory animus ultimately rests solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand.”

According to the Court’s opinion, shortly after the plaintiff requested FMLA leave, the plaintiff’s co-workers reported their suspicions and concerns that the plaintiff had not been working all of her assigned hours, had engaged in personal matters during work time and had failed to perform assignments.   In particular, one co-worker produced a log of the plaintiff’s arrival and departure times to demonstrate that she had not been working her assigned hours.  Another discovered that the plaintiff had not even commenced a number of long-term assignments before she left for FMLA leave and also heard during her FMLA leave that she had been observed engaging in activities and comments which belied her need for FMLA leave.   However, her supervisor refused to confront her about these issues during her leave and was satisfied when she produced an updated FMLA medical certification form to support her FMLA request.  Nonetheless, he apparently informed Human Resources that she seemed to be exaggerating her illness when he met with her.

Following her return to work, her co-workers again monitored her comings and goings and personal activities on work time and requested that action be taken so that the intern who filled in could be hired instead.  Her supervisor finally obtained objective evidence of her arrivals and departures from the front gate and her computer log-ins. He confronted her several months after she returned from FMLA leave with the fact that she claimed to be working for 60 more hours than she had been physically present on company property.  When she claimed to be working from home for 2.5 hours nightly, he pointed out that she had only logged into the computer remotely twice in the past month and one of those had been on a day when she called off sick.  She was then terminated for timecard fraud.  A jury awarded her over $50,000 in back pay and over $122,000 for future damages.

The Sixth Circuit reversed on appeal.  Although the plaintiff argued that the defendant employer had been motivated by her FMLA leave, the employer’s explanation for her termination was supported by the honest belief rule.   While the plaintiff contended that the employer had exaggerated the discrepancy between her time sheet and gate records, she could not dispute that there remained a significant discrepancy and her mere disagreement with the result was legally insufficient to disprove her employer’s honest belief.  “This requires a specific showing that the employer’s decision-making process was not ‘reasonably informed and considered’ and is thus not worthy  of belief” or was based on nothing more than personal opinion.  Even a mistake by an employer does not trump its previous honest belief.  “As this court has previously explained, it does not matter whether the employee actually committed fraud—what matters is if the employer honestly believed that the employee did.”

Unable to show that the employer’s explanation was unworthy of belief (and thus pretextual or a cover-up), the plaintiff attempted to show that it did not actually motivate the employer’s decision.  In this case, the plaintiff pointed to the temporal proximity between her request for FMLA leave and when the employer began to scrutinize her attendance.  The employer argued that it did not matter what or who triggered the investigation into the plaintiff’s attendance because employers are permitted to enforce their rules regardless of who uses FMLA leave.   The Court agreed that “temporal proximity between the start of an investigation into an employee’s misconduct and the use of FMLA generally does not itself provide sufficient evidence of animus.”  Nonetheless, “where an employer treats an employee differently after she asserts her rights . . . than before she had done so, a retaliatory motive may be inferred.” But, in those cases where retaliatory motive was inferred from increased scrutiny, there had been evidence of uneven application of the rule or tolerance of the plaintiff’s poor attendance before taking FMLA leave and intolerance for it after the FMLA leave.   In this case, there was no evidence that the employer had been aware of the extent of the plaintiff’s malfeasance before she requested FMLA leave and only disciplined her for it after engaging in protected conduct.  In other words, there was no evidence that the employer had been aware of the plaintiff’s fraud before her leave and had ignored it, only to terminate her for fraud after her FMLA leave.

The plaintiff also argued that the timing of her termination – just a few months after she returned from FMLA leave – was suspicious.  However, for temporal proximity to substitute for causation, there must be other “independent evidence.”  The plaintiff tried to argue that a co-worker’s emailed plea to her supervisor after she returned from FMLA leave was such evidence.  However, that email focused on the plaintiff’s fraud and not on her FMLA leave.  It was too ambiguous to constitute direct evidence of retaliation.

The Court also rejected the Plaintiff’s argument that her co-workers’ attempt to have her fired for timecard fraud during her FMLA leave was evidence of retaliation, even if her supervisor refused to do so while she was on FMLA leave because of a fear of litigation.

To permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions.  Moreover, there must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and an employer terminating a plaintiff based on the employee’s protected status or engagement in a protected activity:  the latter results in liability for the employer while the former does not.  For that reason, it is legally insufficient for a jury to reasonably rely on Ingold’s alleged statement that Dow was concerned that if an ERM was held concerning Hartman, she might file suit.

Finally, the Court rejected the plaintiff’s argument that her supervisor’s skepticism of her need for FMLA leave was sufficient evidence of pretext.

First, statements and actions by a decisionmaker “outside of the decisionmaking process” cannot be the sole basis for proving pretext.   . . .  Second, even assuming that [her supervisor] was skeptical of [the plaintiff’s] use of FMLA leave, “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”   . . .  In fact, just prior to meeting with [the plaintiff, her supervisor] had received a report from [HR] that [the plaintiff] was engaging in activity inconsistent with her medical restrictions.  Regardless of [his] skepticism, once [she] provided a note from her doctor that indicated she needed more rehabilitation, [he] was satisfied. Therefore, this incident fails to provide any evidence that retaliatory animus motivated [the employer’s] termination of [the plaintiff].  

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

Sixth Circuit Affirms Dismissal of Overly Broad Injunction Request for Employer to Merely Comply with the Law

About two weeks ago, a divided Sixth Circuit Court of Appeals affirmed an employer’s summary judgment in an OSHA case brought by OSHA.   Perez v. Ohio Bell Telephone Co., No. 15-3303 (6^th Cir. 7-14-16).  In that case, the DOL alleged that the employer had retaliated against 13 employees who had work-place injuries on the grounds that the accidents had been preventable if the employees had complied with workplace safety rules.   It also sought an injunction requiring the employer to comply with the OSH Act going forward.  In response, the employer had revised the allegedly offending policies, removed the offending disciplinary records and compensated the employees for their unpaid suspensions.  It then moved for summary judgment on the grounds that the lawsuit was moot and the injunctive relief sought was overly broad.  The district court granted the employer’s motion, which was affirmed on appeal.  “An injunction that does no more than prohibit any and all conduct in contravention of already existing law is overbroad under the terms of Rule 65(d).”

According to the Court’s opinion, OSHA received 13 complaints over a 14 month period from Ohio Bell employees who had been disciplined (with usually an unpaid suspension) after reporting workplace injuries which the employer found to be preventable if the employees had complied with unspecified provisions of various safety policies.   Although the employer produced evidence that it only disciplined 11% of employees who reported workplace accidents and had found that only 29% of workplace accidents had been preventable, it revised is policies and procedures as requested by OSHA and rescinded the allegedly offensive policy.  (There was no discussion in the opinion about whether the employer ever disciplined employees for violating safety rules in the absence of a workplace accident, a practice which OSHA has previously indicated it would interpret retaliatory).   Not surprisingly, OSHA concluded that Ohio Bell had retaliated against the complaining employees for reporting workplace injuries and filed suit asserting violations of §11(c), which provides in relevant part that:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

The Complaint sought the recission of the disciplinary actions, the posting of a notice promising not to retaliate against employees who engage in protected conduct and seeking injunctive relief:

permanently enjoining and restraining Defendant, its officers, agents, servants, employees and those persons in active concert or participation with it, from violating the provisions of Section 11(c)(1) of the Act, and for such other and further relief as may be necessary and appropriate.

With such an injunction, the employer could be found to not only have violated the OSH Act, but also to be in contempt of court. The defendant employer promptly compensated the thirteen employees, rescinded their disciplinary action, and then moved for summary judgment on the grounds that the lawsuit was moot (in that all of the concrete requested relief had been provided) and the injunctive relief requested was overly broad and lacked factual support (in that the prior policies had been rescinded and OSHA had approved of the existing policies).   OSHA’s only response was to note that it had received two additional and similar employee complaints about the defendant employer, showing that it was still retaliating against employees who reported workplace accidents.

The Court observed that employees were not protected from disciplinary action merely because they had reported a workplace injury, although their protected conduct could not be a factor in the disciplinary action.  Nonetheless,

an employee cannot “refuse to comply with occupational safety and health  standards or valid safety rules implemented by the employer in furtherance of the Act.” 29 C.F.R. § 1977.22. An employee doing so is “not exercising any rights afforded by the Act.” Id. As a result, an employer may take disciplinary action “in response to employee refusal to comply with appropriate safety rules and regulations.” Id. Such discipline imposed by an employer “will not ordinarily be regarded as discriminatory action prohibited by section 11(c).” Id. The Act and its regulations, however, do not provide any further elaboration as to when an employer appropriately disciplines an employee for not complying with mandatorily imposed health and safety guidelines and when an employer inappropriately discriminates against an employee for refusing to be exposed to a hazardous condition, 29 C.F.R. § 1977.12, or otherwise exercising a protected right under the Act

In this case, the Court affirmed the dismissal and agreed that the concrete relief sought had already been provide and that lawsuit sought an overly broad and vague injunction:

Injunctions that do no more than compel compliance with existing law are overly broad and do not comply with Federal Rule of Civil Procedure 65. Because the request for an injunction was properly denied, and the Secretary’s requests for tangible relief had, by concession, been satisfied, the district court properly dismissed the case.

               . . .

               Most importantly, a broad injunction requiring a party to obey the law would require “that courts[,] . . . for the indefinite future[,] . . . give effect in contempt proceedings to an order of such breadth.” Id. “The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one.” . . .  Accordingly, the provisions of Federal Rule of Civil Procedure 65(d) are “designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.”  . . . Injunctions that seek no more than obedience to the law as written are deserving of scrutiny under Rule 65(d).

                . . . .

There may be circumstances when obey-the-law injunctions are justified by the facts of the case in which the injunction is sought.  . . . We do not now craft a per se rule against requests for obey-the-law injunctions. But, at a minimum, where an injunction request is challenged on a motion for summary judgment, the party seeking the challenged injunction is not relieved of its duty to respond to the merits of the Rule 56 motion. The responding party must furnish facts in accordance with Rule 56’s standards that justify the request for a broad injunction or propose a narrower injunction in keeping with the facts of the case viewed in the light most favorable to the non-movant.

The dissenting judge would have limited the analysis to mootness, which she found did not exist in this case.

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

Sixth Circuit Reversed Columbus Employer’s Summary Judgment on Employment Discrimination Claim, But Affirmed Dismissal of Constructive Discharge Claim.

Earlier this month, the Sixth Circuit reversed a Columbus employer’s summary judgment on an employment discrimination claim, but affirmed dismissal of the plaintiff’s constructive discharge claim.   Henry v. Abbott Laboratories, No. 15-4165 (6^th Cir. 6-10-16). The plaintiff alleged that she had been denied the opportunity for promotion and was retaliated against when she protested and ultimately filed an OCRC Charge.  The Court concluded that she could rely on similarly situated employees (who had similar qualifications and much less tenure) who reported to different supervisors to show both discrimination and pretext.   The Court also agreed that she could prove that she suffered increased scrutiny and adverse employment actions (through negative performance evaluations and performance plans) after she filed her Charge which could be attributed to her protected activity, but denied that her subjective belief that she was being forced to resign was sufficient to show constructive discharge without evidence that the employer deliberately created intolerable working conditions with the intention of forcing her to quit. 

The plaintiff had worked as a customer service representative since 1999 and in 2008 and 2009, she received “achieved expectations” evaluations.  To be promoted, she needed that level of annual evaluation, one year of experience and a favorable “readiness” rating by the quality assurance staff.  The last time she had been evaluated by the QA staff was in 2006 and it had not been favorable.  However, her supervisor did not survey the QA staff after her performance evaluations improved or refer her for additional training to make her eligible for promotion.  When the plaintiff inquired about her being overlooked for promotion, her supervisor told her that tenure was not important.   The plaintiff complained to HR in April 2010 when other new employees were then promoted instead of her.  When HR did not respond within the week, she filed an OCRC Charge in May, alleging employment discrimination.

HR questioned about her promotability and competence surveys were sent to the QA staff outside the regular schedule a month after the OCRC Charge had been received.  They were not favorable and were shared with the plaintiff.   The plaintiff rejected the feedback, so a quality coordinator was assigned to sit with her more frequently than normal in June.  Her scores plummeted and she complained to HR that she was being harassed.   Later that year, she had trouble acclimating to the adoption of SalesForce and made a significant security error in November, which resulted in her being placed on a two week disciplinary suspension.  There was a discussion about putting her on a performance improvement plan, but her managers were concerned that this would appear retaliatory.  Instead, they gave her a poor performance evaluation (which made her ineligible for promotion) in early 2011 and gave her scores which were depressed considering her objective statistics (because the latter months had been given greater weight than her earlier months).

The OCRC found probable cause of discrimination in April 2011 because she had been passed over for promotion in favor of co-workers outside her protected class with similar performance evaluations who had much less experience and tenure.   The next day, a manager said that he wanted to take the next step with her, but felt paralyzed.  Instead, two months later she was placed on a 60-day performance improvement plan.  The plaintiff took a two month stress leave of absence and announced her retirement upon her return because she felt that she was being forced to resign.  She then filed suit.  The district court ruled against her on all claims.  The Sixth Circuit reversed on the discrimination and retaliation claims, but affirmed denial of the constructive discharge claims.

While she had not received a favorable survey result from the QA staff (which was a requirement for being promoted),  no survey had been sought when she started receiving favorable performance evaluations.  This meant that the survey could not be a disqualifying reason.  Moreover, not every employee who had been promoted had been the subject of the survey.    When a survey was finally sought on her performance, it was done outside of cycle, which made it suspicious to the staff and was ignored by some of them.   The Court also concluded that she was permitted to compare herself to employees with different supervisors because they were similar in relevant respects and their supervisors reported to the same manager.

The Court also found sufficient evidence of pretext without slurs or other negative comments about her protected class.   She pointed out that no one in her protected class had been promoted since 2002.  Also, the explanations about her performance seemed pretextual because they directly contradicted the favorable comments written in her performance evaluations.   She clearly met the objective criteria to be promoted and management could not identify any employees who had met the objective criteria (i.e., performance scores) and had NOT been promoted (even though some of them had not worked there for even a year).    The employees who had been promoted did not have markedly supervisor qualifications which could also have explained the discrepancy.   A jury need not accept a subjective evaluation of the plaintiff’s performance to find pretext.

As for her retaliation claim, the Court found that the increased scrutiny of her performance within a month of receiving her OCRC Charge, poor performance evaluation eight months later (which rendered her ineligible for promotion), a performance improvement plan two months after a probable cause finding from the OCRC and being kept on the training line would dissuade a reasonable person from exercising her protected rights.  Multiple incidents over a year’s period can combine to form a materially adverse employment action. “A reasonable jury could also find that the other actions, although occurring later in time, also would not have occurred in the absence of Henry’s protected activity.”   It did not help the employer that the HR notes indicate that several managers were advocating for poor performance evaluations and concern about the OCRC Charge. Indeed, the day after the OCRC finding was received, a “note in an employee relations file” stated that they planned to wait “a reasonable amount of time” before “plac[ing] her on a formal coaching plan.”  This could reflect a pre-determined scheme to discipline her regardless of her actual job performance.  While the employer argued that her falling performance scores justified her rating, the jury could also attribute her falling scores to the increased scrutiny as a result of the OCRC Charge.   Indeed, her 2010 evaluation was markedly below her evaluations from 2003 through 2009, which, again, could be inferred was the result of retaliation instead of her actual job performance.

 

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

Sixth Circuit Rejects Whistleblowing Claims of Quarrelsome Employee

Last week, the federal Sixth Circuit Court of Appeals affirmed the dismissal of whistleblowing claims after a trial on the grounds that the employer was justified in terminating the plaintiff because of repeated interpersonal conflicts.  Ma v. AEP, Inc. No. 15-2105 (6^th Cir. 5-10-16).   The plaintiff had been fired for contributing to a dysfunctional department and us-and-them mentality despite a long history of superior job performance.  She claimed that she was fired for protesting an unsafe working environment.  Following a bench trial, the employer agreed that the plaintiff could not show that it was her safety concerns that motivated her termination.  On appeal, the Sixth Circuit affirmed.

According to the Court’s opinion, the plaintiff’s “engineering talents garnered her recognition for maintaining safety at AEP over her eleven-year career. But interpersonal conflict ultimately overshadowed her technical prowess . . .. Tempers flared and workflow slowed, culminating in a verbal altercation between” her and others after she made a safety complaint against another team and made another safety complaint when they objected.  Notwithstanding coaching on teamwork and professionalism, disciplinary action and an mandatory counseling, she continued  her combative behavior.  After a competing proposal was selected over her suggestion, she claimed it was unsafe and refused to work on it.  Believing that her safety objections was merely a continuation of her us-vs-them mentality, she was terminated.   Following a five-day bench trial, the court found that the plaintiff was fired for interpersonal shortcomings instead of legitimate safety objections.

The Energy Reorganization Act protects workers who report safety concerns from retaliatory termination. See 42 U.S.C. § 5851(a). To this end, the Act places an initial burden on employees to offer preponderating evidence that protected activity contributed to an adverse employment action; if the employee succeeds, 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 such behavior.”

Despite this heightened burden of proof, the employer was found to have met it in this case (after lengthy and expensive pre-trial discovery and a week-long bench trial).  Despite the fact that the plaintiff was undisputedly fired after expressing protected safety concerns, the employer showed that it would have fired her without those safety concerns based on the manner of her expression.

Here, it was not Ma’s safety reports and LOTIC2 objections that irked colleagues, but rather the aggressive tone with which she delivered them. And testimony showed that colleagues avoided going to Ma with concerns because of her confrontational attitude and unwillingness to accept criticism. AEP elicited sufficient testimony on these points to support the district court’s conclusion that Ma’s inability to talk, collaborate, or otherwise work with peers caused her termination. See Am. Nuclear Res., Inc., 134 F.3d at 1295 (“[A]n employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern.”).

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

Sixth Circuit Rejects FMLA and ADA Claims When Plaintiff Had Missed and Would Continue to Miss Months of Work Each Year

On Monday, the Sixth Circuit Court of Appeals affirmed the dismissal of the FMLA and ADA claims brought by a bank teller.  Boileau v. Capital Bank Financial Corp., No. 15-5820 (6^th Cir. 4-25-16).  The employer was permitted to terminate the plaintiff under the FMLA when her physician had certified that she would be unable to return to work at the conclusion of her FMLA entitlement.  Further, she could not prevail on her ADA claim on the grounds that a brief medical leave would constitute a reasonable accommodation because her job required regular attendance, she had already missed several months and her physician certified that she would regularly miss several months for the rest of her life.

According to the Court’s opinion, the plaintiff suffered from lupus and took a lot of FMLA leave in blocks and through intermittent leave.  In 2011, she took 3 weeks of leave following surgery and then intermittent leave for the remainder of the leave year.  In 2012, she then took another 2 weeks in January and then repeatedly delayed returning until April 2, by which time her physician had reported that she could expect to be incapacitated for 8-12 weeks every 1-2 months for the rest of her life.  By mid-March, she had exhausted her FMLA leave entitlement, her branch was short-staffed and, so, her employer terminated her employment.  When she applied for unemployment, her physician certified that she was unable to work until April 18, 2012. 

The Court easily rejected her FMLA claim because she had only speculative assertions of retaliation.  When the employer is given medical information that the employee will be unable to return to work following the exhaustion of the FMLA entitlement, it is not required to wait before terminating her employment.  Further, the plaintiff could not prove that its reason for her termination – her inability to return to work at the conclusion of the FMLA leave – was pretext for retaliation.

The Court found that she could not prevail on her ADA claim because she was not qualified in that she could not maintain regular attendance, which was an essential function of a bank teller’s job.  The Court rejected the plaintiff’s argument that she only required an additional short medical leave of absence (i.e., two weeks) because her physician had already certified that she would regularly miss work for prolonged periods for the rest of her life.  Individuals who miss work for months at a time are not qualified under the ADA when regular attendance is an essential function of the job.

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.

Supreme Court’s Holds Employer’s Motive Is Focus in First Amendment Retaliation Case, Not Employee’s Conduct

Today, a divided Supreme Court reversed summary judgment for a municipal employer in a First Amendment/§1983 case where the plaintiff cop had been demoted after he was observed socializing with the campaign staff of the incumbent mayor’s political opponent. Heffernan v. City of Patterson, NJ, No. 14-1280 (4-26-16).  The demotion was based on the incorrect assumption that the plaintiff supported the mayor’s political opponent (arguably protected conduct) when, in fact, he had simply been running an errand for his invalid mother (unprotected conduct).  Nonetheless, the Court found it was the employer’s motive for the demotion and not the plaintiff’s actual conduct that mattered for purposes of determining whether the First Amendment had been violated. “The upshot is that a dis­charge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

According to the Court’s opinion, the plaintiff was a police detective and a personal friend of the political opponent of the incumbent mayor (who had appointed the police chief and the plaintiff’s supervisor).  He was observed by fellow officers holding the opponent’s election sign and chatting with his election staff.  He was demoted to beat patrol the next day because of his “overt involvement” in the opponent’s campaign.  He denied that he had been supporting his friend’s campaign and explained that he had simply been picking up an election sign at the request of his invalid mother.  Because he had not actually been engaged in arguably protected First Amendment activities when he ran an errand for his mother, the trial court granted judgment for the employer on the grounds that its mistaken assumption about his activities could not form the basis of a claim under the First Amendment or §1983 and he had not been denied any First Amendment or other constitutional right.  The Third Circuit affirmed.    The Supreme Court reversed.  

“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”  For purposes of this case, the Court assumed that the activities in which the employer mistakenly believed that the plaintiff had engaged were, in fact, protected and that no legal exceptions were implicated.  The text of the First Amendment is not clear whether the constitutional right should focus on the employer’s motive or the employee’s actual conduct.  Nonetheless, in a prior case, the Court had found that an employer’s reasonable, but mistaken, belief that an employee had engaged in unprotected petty gossip rather than protected First Amendment conduct was sufficient to relieve the employer of liability.  Therefore, if an employer could avoid liability through a mistaken belief that the employee had not engaged in protected conduct, it could just as easily become liable for acting on a mistaken belief that the employee had engaged in protected conduct even though he had not.

[A] rule of law finding liability in these circumstances tracks the language of the First Amend­ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the free­dom of speech.” The Government acted upon a constitu­tionally harmful policy whether [the plaintiff] did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea­son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And [he] was directly harmed, namely, demoted, through application of that policy.

“The employer’s factual mistake does not diminish the risk of” discouraging employees from engaging in protected activities.  The Court rejected the argument that focusing on the employer’s motive would make litigation more expensive for employers and, instead, noted that it would become more difficult for plaintiffs:

a rule of law that imposes liability despite the em­ployer’s factual mistake will not normally impose signifi­cant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more diffi­cult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks.

Finally, the Court noted that its assumptions about the actual facts of the case could be mistaken and should be evaluated by the trial court:

There is some evidence in the record, however, suggest­ing that [the plaintiff’s] employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign.  . . . . Whether that policy existed, whether [his] supervisors were indeed following it, and whether it com­plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.

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.

 

EEOC Releases Updated Employment Retaliation Enforcement Guidance

Last month, the EEOC issued a draft of updated enforcement guidelines covering its investigations of retaliation allegations.   These were last updated in 1998.   As discussed below, the Guidelines take a few positions worth noting by employers. For instance, the EEOC explains that employees who make false allegations during an internal EEO investigation are protected from disciplinary actions.  Similarly, internal or formal complaints about incidents which are not yet severe or pervasive enough to constitute actionable harassment are also protected. However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”  The EEOC also specifically finds that HR employees and managers are protected from retaliation and notes that disciplinary action against employees for violating pay confidentiality policies may be unlawfully retaliatory if the employee was also complaining about pay discrimination.

The first section discusses the types of “participation” and “opposition” that could constitute protected activity.  The obvious areas including filing a Charge, threatening to file a Charge, pursuing an internal EEO complaint, participating in an internal or EEOC investigation, rejecting sexual advances, refusing to discriminate against subordinates, and requesting a reasonable accommodation for a disability or religious practice.   However, the EEOC also included in this reporting a sexual assault to the police, reporting alleged discrimination to the news media or the employer’s customers, picketing, and passively refusing to comply with an unlawful direction to discriminate.  Even though an employee engages in protected activity, however, does not mean that he or she is immune from disciplinary action for also engaging in improper conduct or poor job performance.   Accordingly, employees cannot attempt to prevent disciplinary action simply by engaging in protected activity.

Even if the employee is incorrect about whether discrimination or harassment occurred, the employee need only have a reasonable good faith belief that the underlying employment action is illegal to be covered by the opposition clause.   For instance, an employee may protest workplace conduct before it becomes serious and pervasive enough to constitute harassment. (However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”).  The EEOC will consider the employee’s opposition conduct to be protected unless his or her complaint is patently specious.  As an example, the EEOC described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside his protected class.   Similarly, an employee who complains about not receiving a promotion even though she admittedly did not possess the required degree or license would not have a reasonable belief about possible discrimination. 

That being said, the EEOC does not require a reasonable belief about the legality of the underlying activity when the employee is covered by the participation clause (i.e., filing a charge or participating in an EEOC investigation).  This is true even if the underlying alleged discriminatory action was legal or the Charge was untimely.  It even notes that the employee’s allegations may be malicious, defamatory and wrong, but still be protected.  Even though it recognizes that many federal courts – including the Sixth Circuit which has jurisdiction over Ohio and the Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints to be covered by the participation clause unless the employee also filed a Charge with the EEOC, the EEOC explicitly states that it views internal EEO complaints to be protected “participation” which does not require the employee to have a reasonable belief about the validity of the allegations or to even tell the truth.  (Nonetheless, the EEOC continues to discuss situations involving internal EEO complaints under the opposition standard throughout the Guidance).  Accordingly, this would prevent an employer from taking disciplinary action against an employee who provided incorrect (and possibly false and fabricated information) during an internal EEO or harassment investigation:

Thus, the application of the participation clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming.” These protections ensure that employers cannot intimidate their employees into forgoing the complaint process and that those investigating can obtain witnesses’ unchilled testimony. 

Encompasses Internal Complaints. The Commission also views “participation” as encompassing internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.  The text of Title VII prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

There were a few areas of protected activity that the EEOC discussed more extensively than others.  First, it emphasized that the actions of HR employees, managers and supervisors would be constitute protected activity even if their job duties involved remedying harassment and discrimination and granting reasonable accommodations, etc.  The EEOC also suggested that an employee’s violation of pay confidentiality policies could constitute protected conduct and notes that the NLRA and certain Executive Orders governing federal contractors and subcontractors cover the confidentiality of compensation information.  However, all of the examples provided in the Guidance involved employees who were protesting pay discrimination based on specific information, which would constitute protected opposition discussed earlier in the Guidance.

Employment and other actions can be retaliatory even if they do not constitute actionable discrimination because the retaliation standard is broader than the discrimination standard.   An action can constitute retaliation if it would deter a reasonable person from engaging in protected conduct, even if it does not actually deter the plaintiff.  The standard obviously includes various employment actions, but can also include non-employment actions, such as retaliation against someone associated with the protected employee, defamation, bad-mouthing the employee to the media, poor job references, surveillance, closer scrutiny of performance, disclosing confidential information about the employee, etc.   That being said, minor and trivial actions are still not actionable.

An employee’s opposition activity can lose statutory protection when the employee’s opposition manifests itself in an unreasonable manner. As examples, the EEOC discusses employees who make an unreasonable number of specious complaints, badgers a co-worker to provide or change a witness statement, or involves illegal conduct (such as threat of violence).  “Opposition to perceived discrimination does not serve as license for the employee to neglect job duties. If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”   

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

  

Sixth Circuit Rejects Self-Diagnosed ADA Claims

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

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

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

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

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

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

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

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

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

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

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