To Succeed, Plaintiffs Need Comparative Evidence and Not Just Subjective Opinions

Earlier this month, the Sixth Circuit affirmed an employer’s summary judgment on an employee’s claims for FMLA retaliation, disability discrimination, sexual harassment and unequal pay.   Santiago v. Meyer Tool, Inc. No. 22-3800 (6^th Cir. 6/8/23).   The Court ultimately found that the plaintiff failed to identify any employees who were both similarly situated and treated differently because she had significant attendance and performance issues, unlike employees who only had one or the other.  It also found that she could not show FMLA retaliation when she was given her requested FMLA leave, failed to mention FMLA leave when calling off during the attendance infractions and never claimed when given the pre-litigation opportunity that her absences were covered by the FMLA.  She also did not provide sufficient comparative evidence – about skills, responsibility, effort, etc.,  to show that she was paid less on account of her gender merely because other men were paid more.  Finally, the Court found her sexual harassment EEOC Charge was filed 58 days too late and could not relate back to her original timely ADA Charge when she never indicated any continuing violations and had focused only on the date of her termination.

According to the Court’s opinion, the plaintiff was fired in 2017 as a machinist after 19 years of employment.  She had informed the Company of her HIV diagnosis in 2015 and was given intermitted FMLA leave to seek medical treatment, etc. in 2016 and 2017.  Nonetheless, both before and after her HIV diagnosis, she was frequently disciplined for excessive absenteeism, including a suspension a month before her termination.  Prior to the litigation, she never claimed that her attendance infractions were covered by her FMLA entitlement, even when given the opportunity on the disciplinary action form to protest the disciplinary action.  She also was occasionally disciplined for poor performance for creating deviated parts (that did not meet the customer’s specifications).  Her last such incident was on May 17, when she created 4 deviated parts that were ultimately rejected by the customer after her termination.   In contract, she had similarly created deviated parts in February 2017 without disciplinary action.  She was fired in July 2017 after her suspension for poor attendance and creating the deviated parts on May 17.

She filed an EEOC Charge in October 2017 alleging that non-disabled employees had also created deviated parts and not been fired.   In July 2018 – 358 days after her termination – she filed a second EEOC Charge alleging that her supervisor sexually harassed her for years and that she was paid less than other male machinists.  After filing suit, the trial court granted summary judgment to the employer, which was affirmed on appeal.

The Court found that the employer articulated a legitimate and non-discriminatory reason for her termination on account of her poor work performance and chronically poor attendance.  She failed to produce evidence disputing that she created four deviated parts on May 17, even if her performance at other times had been satisfactory.  She also failed to produce evidence that her attendance had been satisfactory or that she had complied with the employer’s call-off policies.   She could not simply rely on her own opinion to satisfy her burden of proof.

The Court also rejected her evidence of pretext based on statistics showing that all machinists who took FMLA leave between 2014 and 2017 were eventually terminated.  While that might be sufficient evidence to satisfy a prima facie case, it was insufficient without additional circumstantial evidence to show pretext or that discrimination/retaliation more likely than not motivated the decision in her case when it was rebutted by evidence showing the basis for the termination decision in this case – i.e., that she created four deviated parts and had repeatedly violated the attendance policy.  “Her statistical evidence, standing alone, is not so significant to indicate that her termination was more likely than not retaliation for her FMLA leave, particularly in light of her documented disciplinary history.”

The plaintiff also could not “show by a preponderance of the evidence that ‘other employees, particularly employees not in the protected class, were not fired even though they were engaged in substantially identical conduct to that which the employer contends motivated its discharge.’”  None of the other employees to whom she vaguely referred had both performance and attendance issues.  “First, she points to no employee with a disciplinary record that demonstrates the employee engaged in “substantially identical conduct” to her own.” One employee had been suspended for three days because of deviated parts, but had no attendance or other misconduct issues.  While the plaintiff asserted that there were nine other employees with more egregious performance issues, she failed to identify them or explain how their situations were comparable to hers.   Finally, while she was not personally aware of any other employees being terminated for poor performance, the employer had produced records showing that it had previously fired employees for creating too many deviated parts.

The Court also rejected her wage discrimination claim.  She produced evidence that male employees were paid more on average than female machinists.  She also showed that male employees with similar tenure to her – and some that she trained --  were given larger raises than her year after year.  However, she failed to produce any evidence of their respective skills, experience, responsibility, effort or job titles so that an effective comparison could be made to her.

The Court also rejected her sexual harassment claim as being filed too late with the EEOC and too unrelated to her timely ADA charge regarding her termination.  Charges must be filed within 300 days.  She did not indicate any continuing violations in her original, timely charge, but rather focused only on her termination date.

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

Sixth Circuit Rejects Plaintiff's Discrimination Claims Because Honest Belief Rule, Employee Handbook Rules and Vague Allegations Prevented Showing of Pretext

Yesterday, as I was participating in a webinar on the Honest Belief Rule, the Sixth Circuit affirmed an employer’s summary judgment in part because of – you guessed it – the Honest Belief Rule.  Okakpu-Mbah v. Postmaster, No. 21-2811 (6^th Cir. 2022).  The plaintiff had been fired at the conclusion of her 90-day probationary period for not working fast enough in sorting the mail.   The Court agreed that she could not show that the employer’s explanation was pretextual in light of documents showing that her efficiency had previously been rated as unacceptable, that she did not improve and, according to all of the other supervisors, was still working too slow by the time of her 80-day evaluation.  The Court also refused to find pretext from the use of a subjective standard for efficiency because there was no evidence that the employer had manipulated or abused the standard to single her out. It also refused to compare her to co-workers whose performance deficiencies were different and improved over time.  

According to the Court’s opinion, mail sorters receive 30, 60 and 80 day evaluations during their 90-day probationary period.  The Employee Handbook states that they will be separated during orientation as soon as it becomes evident that they are unable to meet the requirements of the position.  The plaintiff received a satisfactory 30-day probationary evaluation, except that her productivity was rated unacceptable. She denied receiving a 60-day evaluation (which was disputed).  However, as her 80-day evaluation approached, her supervisor reached out to other supervisors for their opinion.  One emailed that the plaintiff was very slow, did not grasp the concept, demonstrated no sense of urgency and sometimes had to be reassigned to a different task.  The local postmaster recommended that she be terminated.  She was terminated following her 80-day evaluation for inefficiency and brought suit alleging age, race and national origin discrimination and retaliation.  The district court granted the employer summary judgment.

The Court rejected the plaintiff’s argument that the employer’s explanation was pretextual because the rationale was insufficient to motivate the employer’s action.  She pointed to the fact that no other employee had ever been fired for working too slowly.  However, the Court summarily rejected her argument on the grounds that the Employee Handbook:

says that employees “should be separated as soon as it becomes evident that they are unable to meet the requirements of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.

The Court also rejected the plaintiff’s argument that her termination lacked a basis in fact based largely on the Honest Belief Rule.   The employer produced her 30-day evaluation showing that her productivity had been rated “unacceptable” and indicated that she never improved.  The employer also produced an email from one of her supervisors indicating that she worked very slowly and could not keep up with her co-workers.   Although the employer did not use objective metrics to measure productivity, the plaintiff’s own subjective view of her performance was insufficient to create a disputed issue of fact about whether the employer’s explanation was reasonably based on facts.   Her supervisor’s “belief about [the plaintiff’s] performance was reasonable. Not only was the belief based on [her] own observation, but also on the observations of other supervisors who all agreed she was working slowly.”  Because the supervisor’s conclusion was reasonable, the plaintiff “cannot show pretext by showing it was wrong.”

            [A]n employer’s use of subjective reasons in terminating an employee, without more, “does not raise an inference” of discrimination. . . . And [plaintiff] “has offered no evidence from which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that criteria to affect” her chances of being retained at the end of the probationary period. . . . . So even when an employer uses an “evaluation process [that] was haphazard” that alone cannot create a “reasonable inference” of discrimination.  . . . . And an employer’s “unwise business judgments” or “faulty evaluation system” does not establish an inference of discrimination either.

The plaintiff’s efforts to show that her inefficiency did not actually motivate her terminations failed largely from lack of specificity.  She did not show how other events were “’logically or reasonably tied’ to the adverse action against her, that the same “bad actors” were involved, or that the conduct was in close temporal proximity, among other factors.”   Among other things, she incorrectly claimed that four employees had been fired and could not show that her supervisor was involved in the termination of the fifth.    Her attempt to show better treatment of white coworkers failed because their negative evaluations related to their attendance and not to their productivity.  Thus, “[s]uperficial similarities between a disciplined employee and his colleagues” are not enough to make them comparators.”  Further, some of her alleged comparators improved their performance while the plaintiff did not.  The third comparator had a valid excuse for her absences. 

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.

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.

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

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

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

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

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

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

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

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

 

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

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.