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.

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.

Ohio Appeals Court: Employee’s Speculation Does Not Convert a Lateral Transfer Into a Constructive Discharge.

Late last month, Montgomery County Court of Appeals affirmed the dismissal of wrongful, constructive discharge claim against an employer which arose out of the plaintiff’s transfer to a similar job at a location 15 miles from his former job. Lookabaugh v. Spears, 2008-Ohio-1610. The court also dismissed defamation claims against the employer’s customer whose complaints about the plaintiff motivated his transfer because the customer had a qualified privilege to complain. Although the plaintiff speculated that the new job would not be reliable and prevented him from regularly checking on his ill wife during lunch, the court noted that a "[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions." Farris v. Port Clinton Sch. Dist., 2006-Ohio-1864, ¶64. Moreover, a lateral ‘transfer without a change in benefits, salary, title, or work hours is usually not an adverse employment action. Policastro v. Northwest Airlines, Inc.,” 297 F.3d 535, 539 (6th Cir 2002).

The plaintiff accepted the job in part in order to obtain health insurance because his wife had been ill. Although the job regularly required him to travel, he could often check on his wife during his lunch break. After a customer (who had long-standing conflicts with the plaintiff) complained and threatened to move his business if the plaintiff continued to work there, the employer transferred the plaintiff to the same job 15 miles away. The plaintiff rejected the transfer. After filing suit, the plaintiff claimed that the transfer was an adverse job action which forced him to resign because (1) there had not been a job previously available at the new location (i.e., it was a “ghost job” which had been created for him as a pretext), (2) the offered job was not comparable, and (3) his was no longer the decision-maker regarding his employment.

As noted by the court, an adverse employment action generally “occurs when it results in a material change in wage or salary, a less distinguished title, a material loss in benefits, significantly diminished material responsibilities, or other indices that might be unique to the particular situation. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A significant increase in the employee's commute may be a factor in whether a transfer is an adverse employment action. Keeton, 429 F.3d at 264-65 . . . . In determining whether the transfer is an adverse employment action, courts generally employ an objective test. See Mauzy, 75 Ohio St.3d at 588-89; Policastro, 297 F.3d at 539, citing Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996). An employee's subjective belief that one position is more desirable is irrelevant to whether the transfer is an adverse employment action. E.g., Policastro, 297 F.3d at 539; Tessmer v. Nationwide Life Ins. Co.,” Franklin App. No. 98AP-1278 (9/30/99).
The court rejected the plaintiff’s argument that the transferred job was not comparable. Although the plaintiff complained about the employee turnover rate at the new location, the seasonal downturns in working hours, and the new manager’s temper, the plaintiff “assumed that he would be fired from” the new location. The plaintiff “cannot base a constructive discharge claim based on an unsubstantiated assumption that his worst fears would come true. ‘Part of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions.’" Farris v. Port Clinton Sch. Dist., 2006-Ohio-1864, ¶64.

The fact that the plaintiff” would no longer be able to visit his wife during lunchtime does not render the position at [the new location] incomparable to the [former] position. Although [the plaintiff] benefitted from living close to the [former] facility by being able to check on his wife at lunchtime, that benefit was a subjective reason for [the plaintiff] preferring the [former] position. However, being able to go home at lunchtime was not a benefit of employment offered by Landmark to its employees. [The plaintiff] was not promised that he could go home at lunchtime, and he indicated that he did not go home every day because he was not always in the area during lunchtime. His position with Landmark . . . . . required him to travel to customers' properties throughout the day. Although [the plaintiff] would have preferred to work at the facility within a mile of his home, the addition of a ten to fifteen mile commute did not constitute a material change in the terms of his employment.”

Because there was no evidence that the plaintiff had been constructively discharged, he also could not prevail on his claim that his "discharge" had violated public policy.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-1610.pdf.

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