Sixth Circuit Reverses Employer’s Summary Judgment in Age Discrimination and Retaliation Case

 Earlier this month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment  on an age discrimination and retaliation case where the employee had been terminated in a reduction in force. Sloat v. Hewlett-Packard Enterprise Co., No. 20-6169 (6^th Cir. 2021).  After five years of excellent performance evaluations, the plaintiff’s new manager had asked him at least 10 times when he planned to retire and encouraged staff to refer to him as “Uncle.”  When confronted with whether he had a problem with the plaintiff’s age, he screamed, spoke to the plaintiff very little over the next four months, gave him the second worse possible mid-term evaluation and recommended him for termination.    In short, the court concluded that the plaintiff had produced enough evidence that the jury—and not the trial judge --  should be able to decide what the employer’s true motivation was in terminating his employment.

According to the Court, the plaintiff trainer had worked with stellar performance evaluations, incentive compensation and promotions until he was transferred in November 2016 after 6 years to a new division, which he had been told wanted him to roll out the training program that he developed.  However, it was apparent that this was not the true reason for his transfer because his new manager had no knowledge of or interest in his training program and found his position to be redundant and without any assigned responsibilities or recognition of achievements. The plaintiff was the manager’s oldest direct report.   The manager’s chief of staff called him by the wrong name and then referred to him as “Uncle” thereafter, with support from the manager.  The manager asked him at least ten times when he planned to retire and why he was still there and interacted him on an extremely limited basis.  After the plaintiff complained about age discrimination, the manager then began advocating for him to be terminated. In this mid-year performance evaluation, the manager gave him the second lowest score.  The manager also became very angry when the plaintiff raised his concerns with HR and with the manager directly.  HR refused to conduct any investigation of the plaintiff’s concerns.  The plaintiff was informed of his termination by a different executive, who freely admitted that he was merely the messenger and not the decisionmaker.

While the Court agreed that a few inquiries about retirement plans could be necessary or prudent, badgering an employee – especially considering their limited interaction – was evidence of age discrimination.  That the employer attempted to explain the inquiries was merely an attempt to shift the summary judgment burden and did not give favorable inferences to the non-moving party:

That response is inexplicable: one or two inquiries along these lines from one’s boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. [The employer] also responds that [the manager] asked about [the plaintiff’s] retirement plans “in the context of [the manager] telling [the plaintiff] that he did not appreciate his constant emails.” Br. at 33. But that point merely views the evidence in a light favorable to [the employer]; that [the manager] complained about [the plaintiff’s] emails in these conversations does nothing to preclude the straightforward inference that [the manager] thought [the plaintiff] should retire because [the manager] thought he was too old for the job. In sum, [the plaintiff] has sufficient evidence that [the manager] was biased against him because of his age.

[The manager’s] inquiries about retirement also support an inference that [he] engaged in a series of actions, driven by bias, whose intended effect was to drive [the plaintiff] out of the company. At first (one could reasonably infer) [the manager] pushed to have [the plaintiff] leave voluntarily; to retire from a position is to leave it. That [the manager] gave [the plaintiff] “the lowest bonus of all his direct reports”—and told [him] as much directly—supports this view. So does the fact that, in March 2017, [the manager] asked [the plaintiff], “Why are you still here?” ([The manager] did not dispute that point either in his deposition.) But [the plaintiff] did not leave voluntarily, so (one could reasonably infer) [the manager] sought to terminate him. [His] first attempt took the form of a proposed one-person workforce reduction. . . —in which [the plaintiff’s] position alone would be eliminated.  [The manager] abandoned that plan only after [HR] flagged it for “legal attention” and  . . .  advised him to wait for a company-wide workforce reduction that was then pending . ..

The Court also found sufficient evidence that the manager, and not the executive, had been the decisionmaker or the executive had relied on the manager’s recommendation and explanation for why the plaintiff should be fired.   The executive had limited and only favorable impressions of the plaintiff’s work and had been unaware of how he had been treated by the manager.   There was no independent investigation and no break in the chain of causation showing that the plaintiff had been terminated for reasons unrelated to his manager’s alleged discriminatory animus.   The Court concluded that a reasonable jury could find that the manager’s discriminatory animus based on the plaintiff’s age was the but-for causation, or had a determinative influence on the outcome of the decisionmaking process.

The Court similarly found that the plaintiff could satisfy his burden of proving that retaliation was a but-for cause for his termination:

As to that question, Sloat emphasizes that Hagler “scream[ed]” at him and was “furious” when (per Iyer’s advice) he told Hagler directly that he thought Hagler was discriminating against him because of his age. Sloat also has evidence that, after that conversation, Hagler avoided speaking with him (by Hagler’s count, they spoke seven times in the next four months), stripped him of all his remaining responsibilities as to Ropes, and gave him his worst performance review ever. Hagler also tried to get Sloat transferred off his team and—when that failed—sought to terminate him in a one-person “WFR.” Moreover, Iyer’s email flagging that “situation” for “legal attention” and an examination of “the rationale and any risks associated with it” supports an inference that even she thought the one-person “WFR” was potentially retaliatory. Thus, much of the same evidence that supports Sloat’s claim of age discrimination likewise provides sufficient support for his prima facie case for the retaliation 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.

Sixth Circuit: Dueling Diagnoses Justified Employer's Request for New Medical Examinations

At the end of July, a unanimous Sixth Circuit affirmed an employer’s summary judgment on an ADA retaliation and public policy wrongful discharge claim where the employee objected to the employer’s reasonable accommodation conditions (that he wear a CPAP machine) and the parties debated conflicting medical reports as to whether he suffered from sleep apnea.  Allmanv. WalMart, Inc., No. 19-4220 (July 30, 2020).   The Court found the employer’s conditions to be reasonable under the circumstances and entitled to request additional medical examinations.  Ultimately, “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest.”

According to the Court’s opinion, the plaintiff commercial truck driver disputed that he suffered from sleep apnea.  Federal DOT regulations require drivers to submit to annual physical examinations by specially certified physicians and to be free of sleep apnea.   Accordingly, once sleep apnea had been indicated during a mandatory annual medical examination, the employer required the plaintiff to submit at the employer’s expense to a sleep study, which confirmed the diagnosis.  He was thereafter required to wear a CPAP machine for at least four hours each night that he slept in his truck and this was apparently monitored remotely.  The plaintiff found the machine to be uncomfortable and objected to the requirement.  He was suspended each time he did not comply and could not return to work until he had worn it for five consecutive nights.  

The plaintiff then paid for his own sleep study, which was conducted by a physician who had not been certified by the DOT (or at least no evidence of such certification was ever provided), and it denied that he suffered from sleep apnea.   The employer requested that the plaintiff submit to a new DOT physical.  Sadly, the physician assistant simply accepted the results of the recent sleep study without conducting an independent examination. Accordingly, the employer requested that the plaintiff submit to a third sleep study by a third sleep specialist to resolve the prior conflict.  This study again confirmed that plaintiff suffered from sleep apnea.  After this study, the employer directed the plaintiff to wear the CPAP machine for 8 hours/night every night and would not permit him to return to work until he had worn it for three consecutive nights.

When the plaintiff still refused to wear the CPAP machine, the employer gave him one last chance:  within seven days he could take BOTH his non-apnea report and its most recent sleep study to a DOT certified physician of his choice to evaluate the conflicting medical reports and render a medical opinion.   The plaintiff refused and instead resigned his employment.  This lawsuit followed.

The Court found the employer’s accommodation of the plaintiff’s sleep apnea condition to be reasonable because without regular treatment with a CPAP machine, the plaintiff would not be qualified to work as a commercial truck driver under DOT regulations and could be a danger to other drivers when suffering from sleep deprivation while working. 

Regardless of whether the plaintiff could prove a prima facie case of retaliation, the employer provided a legitimate and non-retaliatory reason for its actions.

This court has explained that “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). And Walmart’s program of requiring drivers who have sleep apnea to wear a CPAP machine constitutes a legitimate safety requirement and disability accommodation.

The Court rejected the plaintiff’s pretext arguments.  “Walmart had before it two separate studies demonstrating that Allman had sleep apnea, and the company reasonably sought to ensure that Allman’s twice-diagnosed medical condition was under control.”  The plaintiff could not belatedly attack the validity of the two sleep studies and require his employer to believe his explanation over the accounts of two different certified professionals.   The employer was not required to accept the results of his physician’s sleep study, especially since he failed to ever produce evidence that his physician was DOT certified.  The plaintiff also failed to produce evidence that the CPAP requirement was imposed out of spite.  On the contrary, he admitted that the employer imposed the requirement because it believed that he suffered from sleep apnea.

The employer was not required to accept as binding a DOT recertification which was issued in error.  Instead, “employers may permissibly disregard DOT cards issued in error.”  The employer’s request for a third-sleep study – after the erroneous DOT recertification the first two studies disagreed  -- was reasonable.  Indeed, it confirmed the result of the first sleep study finding sleep apnea.

The Court also rejected the plaintiff’s wrongful discharge claim.  First, it could not find where he had opposed unsafe working conditions by refusing to wear the CPAP machine: “Walmart’s CPAP requirement was not an unsafe working condition, but instead a disability accommodation meant to promote public safety on the highways and to ensure compliance with federal law.”

Further, the Court questioned whether his objection to the CPAP machine’s safety had been made in good faith:

we believe that “good faith” required an objectively reasonable belief that the CPAP machine was an unsafe working condition. Nothing in the record before us would allow a reasonable person to hold such a belief. Allman’s personal discomfort in wearing a CPAP machine that so many others have successfully used to alleviate the dangers of sleep apnea is indeed unfortunate, but his personal discomfort does not satisfy the jeopardy element of his Greeley 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.

Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


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 Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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.

Employer Ordered to Pay $572K for Retaliation Claim

Last week, the federal Sixth Circuit Court of Appeals affirmed a $414,600 jury verdict for compensatory and punitive damages, back pay and front pay as well as $157,734 in attorney’s fees for retaliation claim brought by a former supervisor who claimed that she had been demoted on account of her gender and retaliated against when she complained internally and to the EEOC.   Hubbell v. FedEx Smart Post, Inc., No. 18-1373 (6^th Cir. 2019).   The plaintiff produced sufficient evidence to show that the employer had engaged in conduct towards her that would deter a reasonable person from exercising their protected rights through discriminatory disciplinary actions, surveillance and payroll policies.  Further, some of the actions occurred close in time to her protected conduct.  Finally, “the law in this circuit, however, is that a written anti-discrimination policy does not by itself shield an employer from punitive damages,” especially when there is evidence that the employer did not necessarily follow its own policies or investigate the plaintiff’s internal complaints of discrimination.


According to the Court’s opinion, the plaintiff had been working as a supervisor without any disciplinary record when the new hub manager suggested that women were better suited for administrative roles and she should seek a demotion.  When she refused, she claimed that he assigned her and other female supervisors the worse employees.  She was also given poor performance reviews and disciplinary actions.  When she objected and claimed to HR that he was discriminating against her, no formal or documented investigation was conducted.   After she was demoted, she was told that she – and she alone – could not clock into work more than three minutes early when all other employees were allowed to clock in and be paid 15 minutes early.    She subsequently filed an EEOC Charge.  She was then subjected to closer scrutiny, and was issued multiple disciplinary actions.  She was also restricted from working more than 8 hours/day.   When she filed another EEOC Charge, the guards were told to monitor her restroom breaks and other employees were interrogated about their conversations with her.   She was issued a disciplinary action for attendance even though she had doctor’s notes and was on medical leave.   Finally, she was not even assigned to work overtime during peak periods.  She was fired shortly after she initiated her lawsuit and then amended her complaint to include retaliatory discharge.  


While the trial court dismissed her hostile work environment claim on summary judgment, at trial several former co-workers testified in support that she was treated more harshly and more closely scrutinized than any other employee.  The jury found that she had suffered retaliation, and awarded her damages, but also initially found that the employer had acted in good faith, which would relieve it of punitive damages.  The judge told the jury to re-deliberate the issues with conflicting verdicts (i.e., punitive damages and employer’s good faith) and the jury returned by finding that the employer had not acted in good faith.   The trial court denied the employer’s post-trial motions, but reduced the punitive damage award in accordance with the damage caps in the 1991 Civil Rights Act.


On appeal, the Sixth Circuit affirmed the decision and verdict in all respects
.   

Supervisory knowledge.  There was no dispute that the decisionmakers were aware that she had filed EEOC Charges.  However, the court agreed that she did not carry her burden of proving that the decisionmakers were aware of her lawsuit until after she was fired.  One denied knowing about the lawsuit and another testified that he could not recall when he learned about it.  “Although [the plaintiff] argues that the question of whether to believe Jensen’s testimony should be left to the jury, Jensen’s statement that he did not remember when he learned that [she] filed suit is simply not enough to carry her burden of showing knowledge.”


Retaliation.  The trial court had found that the only materially adverse job action which the plaintiff had suffered was the employer’s refusal to let her clock in more than 3 minutes early when her co-workers had no such restriction.   However, regardless of how the trial court ruled on summary judgment, the jury and appellate court were not limited in considering such evidence that was introduced at trial.  Because this pre-dated her first EEOC Charge, the employer argued that she could not prove that she suffered any actionable retaliation from the negative feedback in her disciplinary actions and scrutiny.  The Sixth Circuit disagreed.

“a plaintiff seeking Title VII’s protection against retaliation need show only “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”   . . . .reiterating that the showing required for a Title VII retaliation claim “is less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.” 

Accordingly, the closer scrutiny, the unwarranted disciplinary actions over trial matters, and interrogating her co-workers about their conversations with her, etc.  could support a finding of retaliation.

A reasonable factfinder could also find that some or all these acts were taken in retaliation for Hubbell’s EEOC complaint(s).  Trial evidence revealed that Hubbell was repeatedly disciplined within a year of filing her EEOC complaints, starting with three disciplinary writeups within approximately two months of filing her first EEOC complaint—the first one coming a mere four days after she filed her complaint.  Such close temporal proximity, standing alone, may be enough to prove causation.

Punitive Damages.   While a plaintiff is required to show, among other things, that the employer acted with malice or reckless indifference with respect to the plaintiff’s civil rights,  the plaintiff is not required to show that the employer’s behavior was “egregious.” While egregious behavior is sufficient to show malice or reckless indifference, less egregious behavior can satisfy the standard.   Moreover, even if the employer took steps to avoid discriminating by distributing and training on anti-discrimination policies, it can still be held liable for the actions of a manager acting within the scope of his employment who is also acting with malice or reckless indifference.  “The law in this circuit, however, is that a written anti-discrimination policy does not by itself shield an employer from punitive damages.  Tisdale v. Fed. Express Corp., 415 F.3d 516, 532–33 (6th Cir. 2005).”  Moreover, in this case, there was evidence that the employer failed to formally investigate the plaintiff’s allegations.  

Attorney’s Fees.  The court found no abuse of discretion in reducing the amount of fees, even if the employer had not objected to the amount.

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.

FLSA Cases Keeping Sixth Circuit Court Occupied

In the past month, the Sixth Circuit has issued a number of FLSA decisions affecting employers and employees.  Last week, the Court rejected objections to a class action settlement on behalf of exotic dancers.  Jane Does 1-2 v. Déjà Vu Consulting, Inc., No. 17-1801 (6^th Cir. 6-3-19).  In another, the Court rejected claims for overtime compensation by certain Fire Battalion Chiefs on the grounds that they were exempt employees and were not entitled to extra standby pay.  Holt v. City of Battle Creek, No. 18-1981 (6^th Cir. 6-3-19).   In another, the Court affirmed the trial court judgment imposing liability for unpaid overtime compensation for employees of a small lumber company, but remanded for a redetermination of the amount of damages due which did not include time spent on bona fide meal breaks or commuting to and from work.  Secretary of Labor v. Timberline South, LLC, No. 18-1763 (6^th Cir. 5-29-19).  In that case, the Court also refined the test for enterprise coverage for employers which only purchase and use equipment locally, but that which is manufactured out of state.  It also rejected the employer’s good faith defense for seeking incomplete advice from a non-expert.  Finally, the Court affirmed the dismissal of a FLSA retaliation claim where the plaintiff failed to show that she had ever communicated any complaints about unpaid overtime.   Rogers v. The Webstraurant Store, Inc., No. 18-6229 (6^th Cir. 5-23-19). Her “vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.”


Déjà Vu Consulting involved the settlement of class claims (brought under both Civil Rule 23 and FLSA § 216(b)) that exotic dancers had been misclassified as independent contractors to avoid paying minimum wages  and been subject to illegal wage deductions.  It was similar to prior litigation which involved many of the same dancers and defendants.  Many, if not all, of the 28,177 class members had signed agreements with the defendants containing arbitration clauses with prevailing parties being entitled to recover attorney’s fees, etc.   Accordingly, the Court found it was not an abuse of discretion for the trial court to affirm the settlement reached in light of the risk to the plaintiffs of being compelled to individually arbitrate their claims and possibly be financially liable to the defendants.   The Court also found that formal discovery was not necessary in light of the extensive discovery conducted in the prior case involving many of the same type of claims and parties.  The settlement provided for both injunctive and financial relief.   The financial settlement of $6.5M was divided among $1M in cash payments, $4.5 attributed to a secondary settlement pool that could be claimed while working at the defendant clubs in the future and $900K to class counsel.  The dissent would have remanded for a recalculation of the counsel fees because she characterized a requirement of the settlement – that the plaintiff dancers work at a defendant club to receive a financial benefit from the secondary pool of monetary relief – as a “coupon” under Class Action Fairness Act which can only be considered for purposes of evaluating attorney’s fees based on the coupons redeemed instead of merely the pool of money set aside.


Holt involved claims for unpaid overtime and standby time by two Fire Battalion Chiefs, the second in command in the Fire Department hierarchy. Their primary job duties involved management and administration.   They received an extra 1.5 hours of pay for each day when they were on call during the night shift (in addition to overtime if they were actually called back to work) and were required to monitor the radio and pager while on call.   They could not leave town or drink alcohol when on call because they might be called to a fire scene.


In evaluating their exempt status, the Court rejected the plaintiff’s argument that a narrow reading of exemptions should be given in light of the Supreme Court’s prior Encino Motorcar decision. The trial court found that Battalion Chief’s primary duty was managerial in nature because they

were required to directly supervise lower-ranking officers and personnel, evaluate personnel, administer and enforce department policy, and coordinate the day-to-day operations of the department . . . .  the battalion chiefs were expected to “take charge and operate as the incident commanders at the scene of a fire.”  

Further, one “was ‘in charge’ of all suppression personnel and [the other] was ‘in charge’ or ‘oversaw’ the training division.  Approximately 27 lieutenants and captains directly reported to [one] who monitored their adherence to standards.  Moreover, Chief [Hausman] testified that if any fire fighter ‘had a problem[,]’ he or she would take it to plaintiff Holt.”  In addition,  although the trial “court recognized that Plaintiffs did not have independent authority to hire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’ “suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees were given ‘particular weight.’”  The FLSA regulations do “not require courts to ask whether an employee’s recommendations as to personnel decisions were accepted every single time—instead, it presents the question of whether those recommendations were given “particular weight,” which is precisely what the district court found.”


In light of their management exempt status, the Court decline to evaluate whether they were also exempt administrative employees and whether their standby restrictions were so onerous as to require extra compensation.


Timberline concerned a small lumber company that harvested and transported lumber only inside the state of Michigan and bought and sold only from Michigan companies.   The operations manager consulted with an accountant and believed that some the employees were exempt agricultural workers and the transportation were exempt under the Motor Carrier Exemption Act, but did not consult with an attorney or explain why the office employees would be considered exempt.   The employer kept track of working hours for the hourly employees, but not the salaried employees.  Following a DOL investigation, the DOL filed a lawsuit and was awarded summary judgment in the amount of $439,437.42 in back pay and liquidated damages for unpaid overtime owed to 50 employees.


The first issue to be considered was whether the employer was a covered enterprise under the FLSA.  The employer argued that its equipment, though manufactured outside of the state,  was purchased locally and, as the end user of that equipment, could not be considered for purposes of §203(s)(1)(A)(1) of the FLSA that covers employers which have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.”  The Court ultimately adopted the test utilized by the Eleventh Circuit to evaluate whether equipment used by an employer to create its product constituted goods or materials under the FLSA enterprise test.   The Eleventh Circuit considered an amendment to the FLSA to include “materials” as well as “goods” and the exception for “goods” when the employer was the ultimate enduser of the goods.  It cautioned that

the same items could be goods in one case, materials in another, and neither goods nor materials in still another case, depending on the use of the item in the context of each case.  “Where a catering business uses the china plates at a client’s banquet, the plates count as part of the ‘materials’ necessary for serving a catered meal.  But, where a department store sells the same china plates as stand-alone items, the plates count as ‘goods’ for that retailer.”  Id.  Those same plates hung as decorations on the lobby wall of an accounting firm, however, constitute neither goods nor materials “because the plates have no significant connection to the business’s accounting work.”

                 . . .

Applying the definition of “materials” from Polycarpe, the logging and harvesting equipment used by Timberline’s employees plainly constitute “materials” because the equipment is necessary to cut down trees and transport the timber, which in turn have a significant connection to Timberline’s commercial activities of harvesting and selling timber.

The Court rejected the employer’s argument that this would effectively impose the FLSA on every business which purchases computers that are all manufactured overseas and pens that are manufactured out of state because the DOL has never sought such broad enforcement.  The Court also noted that Polycarpe specifically mentioned that incidental and internal consumption of an item would not satisfy the requirement that the materials be used in the employer’s commercial activity.  “[C]overage here is not premised on employees’ incidental use of office items; rather, it is premised on employees’ regular and recurrent use of logging and harvesting equipment that is used to carry out the company’s commercial activity of harvesting timber.”


The Court next rejected the employer’s Motor Carrier exemption because its drivers never left the State of Michigan even though they held CDLs and had DOT registration numbers:

The dispositive inquiry here is not whether Timberline’s employees held commercial driver’s licenses or whether its trucks had DOT registration numbers; rather, the dispositive inquiry is whether Timberline’s drivers transport goods in interstate commerce, thus rendering Timberline a motor private carrier.  49 U.S.C. § 13102(15); Vaughn, 291 F.3d at 904.  Courts have consistently interpreted this to mean that drivers must travel or transport the goods across state lines, or transport the goods in a “‘practical continuity of movement’ across State lines from the point of origin to the point of departure.”

Further, the employer failed to show that its timber was used by its buyers in interstate commerce.   On the contrary, it disclaimed knowledge of what use was made of the timber it sold.


Third, as for calculating back pay, the DOL had argued that employees’ regular rate include the compensation that they had received for their meal and commuting time – which otherwise is not considered working hours for purposes of the FLSA – because the employer traditionally and customarily paid employees for such time and the Portal-to-Portal Act referred to including such time of customarily compensated.  Neither the DOL nor the Court had made any effort to determine how many of the employees’ paid hours constituted such commuting or meal break time.  The Court rejected that argument:

Although the plain language of the Portal-to-Portal Act suggests that home-to-work commutes are deemed compensable if the employer has a custom or practice of compensating for such work, 29 C.F.R. § 785.34 explains that “ordinary travel from home to work (see § 785.35) need not be counted as hours worked even if the employer agrees to pay for it.”  And, 29 C.F.R. § 785.35 says plainly that “[n]ormal travel from home to work is not worktime.”  The reason is that the FLSA only requires overtime compensation for “actual work or employment,” Tenn. Coal, Iron & R. Co., 321 U.S. at 597, “[a]nd even where there is a contract, custom, or practice to pay for time spent in such a ‘preliminary’ or ‘postliminary’ activity, section 4(d) of the Portal Act does not make such time hours worked under the Fair Labor Standards Act, if it would not be so counted under the latter Act alone,” . . . “The general rule . . . is and always has been that the FLSA does not treat ordinary home-to-job-site travel as compensable.”  Kuebel v. Black & Decker Inc., 643 F.3d 352, 360 (2d Cir. 2011).  The same is true of “bona fide meal periods.”  29 C.F.R. § 785.19; see also Ruffin v. MotorCity Casino, 775 F.3d 807, 811-15 (6th Cir. 2015) (examining whether meal periods were compensable under the FLSA as “work”).

The Court remanded for the DOL and trial court to calculate how many hours the employees had been paid for commuting and meal breaks and to deduct that from the damages calculation.  Nonetheless, “Defendants may not use the amounts paid for those otherwise non-compensable work periods as an offset against the amounts owed.”


Fourth, the Court also rejected the employer’s argument that liquidated damages should not be awarded or should at least be reduced because it acted in good faith in consulting with its accountant about the agricultural exemption and in paying its employees well above the industry average.  An employer is required to show that it took affirmative steps to comply with the FLSA, but nonetheless violated it.   The employer did not provide sufficient information to the accountant about all of the employees and the accountant did not profess to be a FLSA expert.  Further, the employer knew that not all of the employees would qualify under the agricultural exemption and did not take reasonable steps to investigate the status of the other workers.  It did not even convincingly argue the agricultural exemption before the trial court and did not appeal that issue to the Sixth Circuit.  As for the generous compensation, that matter is irrelevant for purposes of FLSA compliance in the absence of good faith and reasonable grounds for non-compliance.


The plaintiff in Rogers had failed to demonstrate appropriate customer service skills and had been placed on a performance improvement plan.  She alleged that she had been terminating for complaining about unpaid overtime, but she failed to show that she had made any such complaints that could be objectively perceived as a complaint.  Her first “complaint” was really an apology for being late and asking whether she could attribute the 15 minutes that she worked past her shift the prior evening towards the 25 minutes that she had been late.  Her second “complaint” related to the tone of her voice when asking if she was supposed to work on her PIP outside of regular work hours.    Her third “complaint” related to notes that she sent her manager about how she was engaging in “self-reflection” outside of work hours and that she had been told to do this on “her own time.”  Indeed, he manager contacted her about whether she was working unauthorized overtime in order to give her back time that she had worked.  The plaintiff then admitted that she had not been recording all of her time working, but did not think that would be a concern.


Even if the allegations were true, the Court found that they could not constitute “complaint” under the FLSA that could support a retaliation claim. “The Supreme Court has said that the act of filing an FLSA complaint must contain ‘some degree of formality,’ such that a reasonable employer would understand it ‘as an assertion of rights protected by the statute and a call for their protection.’” However, “none of them even indicated that Rogers was complaining  or used any synonym or similar expression.”  Moreover, it is not clear that the employer could have realized that she was making a complaint.

While an employee need not explicitly mention the FLSA, she must do something to give fair notice that she is actually complaining about overtime or a lack of fair compensation, i.e. the core things the FLSA protects.  Kasten, 563 U.S. at 14.  Rogers’s vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.

                 . . . .

Not every grumble or “expression[] of concern or discomfort or frustration” by an employee constitutes an FLSA complaint.  Robinson v. Wal-Mart  Stores, Inc., 341 F. Supp. 2d 759, 763 (W.D. Mich. 2004).  Instead, an employee’s expressions  must be “sufficiently clear and detailed” to count as a complaint.  Kasten, 563 U.S. at 14.  Rogers’s allegations provide no information on how a mere tone of voice can be that clear.  Moreover, no required inference can save her lawsuit from that lack of clarity.

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 Dismisses Claim When Plaintiff Was Fired Six Weeks After Returning from FMLA Leave

On Monday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an FMLA retaliation claim when the plaintiff had been terminated after nineteen years of employment only six weeks after he returned from FMLA leave.    Nieves v. Envoy Air, Inc., No. 18-1127 (6^th Cir. 1-14-19). The Court found that the plaintiff failed to show that his termination – for permitting his mother’s boyfriend to use his free flying privileges many years earlier in violation of policy – was causally related to his use of FMLA leave.  The plaintiff had admitted that he should not have identified the flier as his father.  Accordingly, the plaintiff could not prove his prima facie case of showing that his termination was causally related to his recent use of FMLA leave.   Interestingly, there was no discussion of temporal proximity satisfying the plaintiff’s burden of showing causation even though his termination on March 30 was merely six weeks after he returned to work on February 19.

According to the Court’s opinion, the plaintiff had worked in at the counter for nineteen years.  His relatively new supervisor did not like him and blamed him unfairly for a number of issues.  In April 2015, the plaintiff (along with several other employees) was selected by the corporate office for a random audit of his flying privileges to investigate potential abuse.  He was required to send proof of eligibility (i.e., familial or legal relationship) of the individuals listed on his travel log.  He only sent documentation of two people (his wife and one daughter) who were actively using his privileges instead of all of the individual who had used his privileges over the past 19 years (and included other children as well as a half-brother, a friend’s son who stayed with them on an extended basis and his mother’s 20-year boyfriend that he had once listed as father/step-father).   The audit stalled until January 2016 when the plaintiff was hospitalized for approximately a month for kidney failure and took FMLA leave.  Three weeks after he returned to work on February 19, he was interviewed on March 9 by telephone without prior notice about the individuals he failed to document and answered all of the questions truthfully. He was given nine days to produce documentation substantiating the legal/familial relationship with all of the individuals, which he later explained was impossible when some of the documentation had to be obtained from the Dominican Republic.  The corporate office – which was never told about the plaintiff’s FMLA leave -- determined quickly that the plaintiff should be terminated on March 30 because that was the recommended penalty for violation of the travel policy.  On appeal, the decision was upheld because the plaintiff admitted that his mother’s boyfriend should never have been listed as his father on the travel log.

The Court concluded that the plaintiff could not show that his termination was related to his FMLA leave.  It rejected the plaintiff’s argument that the investigator’s note in her files about the plaintiff’s FMLA leave was proof of retaliation because she explained that it was merely a reminder of why she had not yet interviewed him when she got to his file in January 2016.  The note explained his unavailability when she attempted to schedule his interview.  There was nothing in the investigator’s report to corporate about the plaintiff taking FMLA leave.

The Court also dismissed stray comments by his supervisor about him and suggesting that he retire.  Some comments were made more than a year before he took FMLA leave.  The supervisor was not the decisionmaker.  One comment followed the explanation of the plaintiff’s wife that his physician wanted him to do less lifting (which was a big part of his job).

The Court also rejected the allegation that his travel log was given more scrutiny following his FMLA leave because the employer documented each step of the investigation process and explained each of its steps and delays.

There is no discussion in the Court’s decision of the temporal proximity -- six weeks between the end of his FMLA leave in February and his termination on March 30 – being sufficient to infer a causal relation. Because there was no evidence linking the termination for a clear violation of the travel policy to his use of FMLA leave, the Court found that he could not prove his prima facie case and there is no discussion of pretext or honest belief defenses.

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

Franklin County Appellate Court Finds Employer Legally Conditioned Rehiring Offer on Release of Claims and Dismissal of Litigation

Late last month, the Franklin County Court of Appeals unanimously upheld a jury instruction and verdict rejecting the age discrimination and retaliation claims of the plaintiff employee against his former managers and officers at his bankrupt former employer.  Bresler v. Rock, 2018-Ohio-5138.  The plaintiff had been laid off with most other employees for financial reasons in May 2014, but was not recalled like his older co-worker in August 2014.  Instead, he was terminated and then filed suit in November 2014 alleging age discrimination and seeking an injunction against retaliation.  Even though the plaintiff had never applied for employment, the employer offered the next month and the following March to rehire him subject to signing a release of all claims and dismissal of the lawsuit.  After he rejected the offers, a younger woman was hired instead for his former position when his older co-worker retired.    The Court rejected the plaintiff’s attempt to amend his Complaint at trial to add a retaliation claim and the jury ruled in favor of the defendants on the age discrimination claims.  The Court found that there was nothing illegal or improper about the employer conditioning the plaintiff’s rehire on a release of claims when the employer had no obligation to rehire the plaintiff at all.

Although the employee did not appeal the denial of the Court’s refusal to permit an amendment of his complaint to include a retaliation claim, he did appeal the trial court’s instruction to the jury at the 2016 trial:

It is not an adverse employment action for an employer to require an employee to dismiss a lawsuit or withdraw claims as part of a condition of being rehired.  Employees and employers may lawfully negotiate settlements that include the waiver or release of age discrimination claims.

The employee argued that it is retaliatory to refuse to hire an employee on the basis of him filing a charge of discrimination or filing a lawsuit.   The Court reviewed federal law on retaliation and found that when an employer has no obligation to rehire an employee, it is not retaliation to offer rehiring conditioned on releasing discrimination claims and dismissing litigation.  Moreover, employers and employees are permitted to negotiate settlements of disputes that include waivers and releases of claims.  Among other things, refusing to pay severance pay to an employee in the absence of a release of claims is rarely found to be retaliatory.

The Court distinguished retaliation cases where the employee had otherwise been entitled to a certain benefit before the employer withheld it following the filing of a charge or lawsuit.  Because the plaintiff had been terminated and had never sought reinstatement or rehiring before the employer offered to resolve the dispute by rehiring him, he could not show that he had been retaliated against by the employer’s offer:

. . . . Ohio and Sixth Circuit case law supports the proposition that employers may offer re-employment and back pay conditioned upon settlement and release of claims.  Here, similar to the facts in Graves, the company was under "no obligation" to rehire appellant following the RIF.  Graves.  As the company had "no duty" to offer employment to appellant, "its failure to make such an offer would not have been an adverse employment action."  Id.

The Court also found that the Complaint’s request for injunctive relief was not a claim for relief for retaliation.  Indeed, the facts which the plaintiff claimed to support such a retaliation claim did not even occur until after the Complaint was filed and the plaintiff did not seek to amend his Complaint to include a retaliation claim until after the close of his evidence at trial several years later.   Requests for injunctive relief are remedies, not causes of action.  Accordingly, the Complaint did not give the defendants fair notice that a retaliation claim was being litigated during the discovery phase or prior to trial. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can 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.

Sometimes It’s a Mistake to Leave the Office

Earlier this month, the Sixth Circuit Court of Appeals affirmed summary judgments for two employers against employees who requested or took a medical leave of absence.   Both cases also rejected "stray remarks" as evidence of discrimination.   In Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (6^th Cir. 4-23-18), the Court found that resume fraud by a relatively new senior human resources professional justified her immediate termination on her first day back to work from maternity leave.  The fraud had been discovered when her manager discovered a number of significant performance errors during her leave which caused her to examine her resume more closely.  The court rejected arguments that events seven months earlier could have motivated the employer over more recent events.  Also, it was irrelevant if the employer had determined to discharge her before meeting with her and confronting her in the termination meeting.  In Tillotson v. Manitowoc Co., No. 17-1640 (6^th Cir. 4-4-18), the plaintiff objected to the employer’s reliance on a nine-factor rubric in selecting him for termination during a RIF because several of the factors were based on subjective criteria, such as his future potential.  The Court found that there is nothing inherently unlawful in utilizing some subjective criteria and the plaintiff failed to conduct any discovery so as to introduce any substantive evidence showing that the criteria were inaccurate or rigged against him.   Further, because the plaintiff had not actually required medical leave or even a reduced work schedule or reasonable accommodation and had not asserted an ADA claim, evidence about negative remarks made about his medical condition were essentially irrelevant to show his termination in a RIF was a pretext for unlawful discrimination or retaliation.

In Bailey, the plaintiff human resources employee had been fired eight months after being hired on her first day back from maternity leave.   While her duties were being handled by her supervisor during her maternity leave, her supervisor discovered several material mistakes, and this caused her to question the plaintiff’s basic competence and re-examine her resume and job application.   In doing so, the manager discovered that the plaintiff had applied for a similar job with the employer a few years earlier and that the dates of employment, among other things, on her resumes did not match.  Instead, the plaintiff had falsified and exaggerated her experience and qualifications on her latter resume.  When confronted, the plaintiff could not deny the falsifications, but preferred to describe them as “embellishments.”   Although she argued that these “embellishments” were insufficient to justify immediate termination of her employment, the trial court found that they would be a sufficient reason to terminate a senior human resources professional.   It also rejected her argument that she should have received progressive counseling before being hired for resume fraud.

As for the performance deficiencies, the manager had assembled 28 pages of email messages and a list of 12 other mistakes, in addition to problems with chronic tardiness.  The Court rejected the plaintiff’s over-reliance on her positive probationary period performance evaluation because it had noted her need to pay more attention to details, it gave her an overall rating of just “competent” and she had conceded some of her performance mistakes.   While it tended to agree that many of the issues should have been handled with progressive discipline, it could not ignore that the resume fraud, by itself, was sufficient grounds for immediate termination of a senior HR professional.

The Court also rejected the plaintiff’s argument that the decision to terminate her employment had been made before she was informed of the issues and given a chance to respond. “Speculation as to when, precisely, Oakwood, through its decision makers, formulated the resolve to terminate Bailey’s employment is of little consequence.”

Regardless of the wisdom of the criticism of her job performance, the court concluded that the plaintiff could not show that age or race were the actual reason for her termination because the termination decision had been made by the same people who hired her just 8 months earlier when she was the same age and race.

While the plaintiff’s pregnancy discrimination claims were stronger, they were still rejected.  She argued that she suffered pregnancy discrimination because she had been fired seven months after revealing her pregnancy, had been required to report to work a half-hour earlier after she announced her pregnancy, her supervisor had questioned the wisdom of her having a baby at her age, she had been given more work to do after her pregnancy announcement and she was assigned more work than her peers.  The Court rejected each of these arguments.  If an adverse action taken two months or even two weeks after a pregnancy announcement were found to be too remote to create, by itself, an inference of discrimination, then a delay of seven months (and three months after the pregnancy itself) were too long to support a causation argument. “It is well established that temporal proximity alone is insufficient to support an inference of retaliation.”  While her work time had changed and she was criticized for chronic tardiness,  the same criticism existed when she was chronically tardy with a latter starting time.   Her statistics concerning workloads was not supported by credible evidence and her extra work assignments followed her own invitation to take on more work.  Lastly, her manager’s comment was found to be merely insensitive instead of reflecting an unlawful bias.

Finally, her retaliation claim was ultimately rejected because she could not show that the reasons for her termination were pretextual.  She alleged that she had a verbal disagreement with her African-American manager about the hiring of African-American applicants before her maternity leave.   In her deposition, she admitted that some of these applicants had flaws (such as recent criminal records) that disqualified them from employment.  Her subjective belief that her manager was biased was insufficient to overcome her lack of evidence to show that the reasons for her termination – poor work performance and resume fraud – more than seven months after the verbal disagreement were the actual reasons for her termination. “Such an intervening legitimate reason for discipline tends to defeat any inference of retaliation based on the proximity of the discipline to an earlier event.”

In Tillotson, the plaintiff challenged his termination during a reduction in force as retaliatory under the FMLA and state age discrimination laws.   He suffered from what his physician described as IBS and could not travel more than two consecutive hours.  While he had requested time off work, his physician did not certify that this was necessary.  Further, his job did not need to be restructured at that time because all of his sales territory was already within two hours.    When the VP of Sales, however, heard about the restriction, he stated that the company could not have a “sales guy” who could not travel.  Later, that VP was responsible for selecting which of his four salespeople would be terminated in the reduction in force.  Relaying on a nine-factor “rubric” that had been assembled during an earlier annual performance evaluation process, the VP selected the plaintiff for termination because he was the lowest rated of the four.

The plaintiff objected to the company’s reliance on the rubric because some of the factors were subjective, such as who was rated higher for future potential.  However, the plaintiff conducted no discovery on the issue and did not submit any evidence that the rubric or subjective evaluations were inaccurate or even unfair.

The company needed some criteria to determine which of the four product sales managers at Delfield would be terminated, and Tillotson presents no basis for a juror to conclude that the 9-Box was altered, misused, or erroneously or unfairly filled in after the company became aware of Tillotson’s FMLA leave request.

 . . . . We have recognized the need to scrutinize evaluations that utilize subjective criteria because of “the problems inherent in selection procedures which rely solely upon . . . subjective evaluations,”  . . . but “a plaintiff can not ultimately prove discrimination merely because his/her employer relied upon highly subjective qualities (i.e. ‘drive’ or ‘enthusiasm’) in making an employment decision,”  . . .  First, the company did not rely solely on subjective criteria.  Willoughby testified that objective metrics such as “monthly sales targets and feedback from customers and reps” were employed to evaluate a product sales manager’s “performance rating” in the 9-Box rubric, and Wilczak testified that performance scores were based largely on objective sales reports.  More importantly, however, to the extent the 9-Box utilized subjective criteria to evaluate product sales managers’ “future potential,” Tillotson has offered no evidence from which a reasonable juror could infer that the company manipulated, abused, or misapplied that criteria to affect Tillotson’s ranking.

The plaintiff had incorrectly argued that the rubric had been created for the RIF decision (and, thus, had been impliedly rigged against him), but the uncontested evidence was that the rubric was completed well before the RIF had even been contemplated, and thus, could not have been “rigged” to cause his termination.  There was no evidence introduced that the rubric had been created or completed after he exercised his FMLA rights, so no speculative inference could be implied against the employer on that count.

Further, the employer was not required to prove at the pretext stage the basis for its ratings, such as the plaintiff’s “medium” rating for potential. “’The defendant need not persuade the court that it was actually motivated by the proffered reasons.  It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’” Instead, it is the plaintiff’s burden to prove discrimination.    The plaintiff could have conducted discovery on these issues, but he failed to do so.

As for the comments by the VP and an HR employee about his medical restrictions on travel, the Court concluded that they were not evidence of FMLA retaliation because the plaintiff never required a leave of absence, or even a reduced work schedule, under the FMLA.  He did not even request an ADA accommodation or initiate an ADA claim in this litigation.  His travel schedule never required any modification either. That both the ADA and FMLA related to employee medical conditions does not make comments about medical restrictions probative of both types of claims:

Tillotson’s request for travel accommodations is not protected conduct under the FMLA because “the FMLA does not appear to have a freestanding reasonable-accommodations provision,”  . . . .and “the leave provisions of the [FMLA] are wholly distinct from the reasonable accommodations obligations of employers covered under the [ADA],”

Because the negative comments about his medical restrictions were not related to any FMLA leave that he took and he failed to purse an ADA claim, those comments were insufficient to prove that he was retaliated against under the FMLA so as to prevent summary judgment.

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.