In the Game of Thrones, You Either Win Or You Die

 Yesterday, a unanimous Sixth Circuit affirmed a Columbus nursing home’s summary judgment on claims of retaliatory discharge on the grounds that the plaintiff employee had failed to produce evidence of pretext for each of the employer’s stated explanations for terminating her employment.   Bashaw v. Majestic Care of Whitehall LLC, No. 24-3292 (6^th Cir. 3/5/25).  The Court found that the employer was justified to terminate her for secretly recording workplace conversations which included confidential patient information because it undermined workplace trust and created potential patient liability.  Further, she failed to prove that any similarly situated employee had comparably poor attendance.  Finally, she similarly failed to prove that it was pretextual to terminate her employment when she had told the HR Director that she was already looking for another job.   Accordingly, even if she proved a prima facie case of retaliatory discharge for engaging in protected activities in opposing allegedly illegal conduct towards employees and patients, her claims were dismissed because the employer articulated at least one non-discriminatory/retaliatory reason for terminating her employment which she failed to prove was mere pretext for illegal retaliation.

According to the Court’s opinion, the plaintiff was hired in November 2021 as the Director of Social Services and was terminated after four months.  In the last six weeks of her employment, she was late for the daily morning meeting 11 times and  missed 8.5 days without prior authorization.  She was unclear with Mt. Carmel hospital  on February 25 about whether the nursing home would take back a patient with significant psychological issues, which lead to threats of a government investigation.   She complained about patient care and on March 1 complained to the HR Director about the Executive Director’s insensitive, unprofessional and potentially discriminatory statements and actions towards staff and claimed that she was secretly taping workplace conversations in order to gather evidence.  (There is no indication that she was successful).  She also claimed that she and other directors were looking for another job and intended to resign if he was not replaced. 

In the meantime, the Executive Director had taken steps to clarify who had the authority to refuse a patient admission and had begun preparing a disciplinary action against the plaintiff concerning her attendance.   However, when he went to meet with her on March 1, she had already left work early, again without authorization.   The HR Director had already escalated the issue to the regional director, who began investigating the plaintiff’s concerns.  On March 2, the plaintiff had a heated confrontation with the Executive Director during the morning meeting about the patient and left the unfinished meeting and work, again without authorization.  The Executive Director then involved the VP of HR, who joined the existing investigation.  When the plaintiff was interviewed, she again indicated that she had been secretly recording workplace conversations in attempting to get evidence against the Executive Director.  The investigation failed to substantiate her allegations and she was fired a week later.  Litigation ensued and the employer was granted summary judgment on all claims.

The Court of Appeals held that she had to prove that all of the employer’s stated reasons for terminating her employment were pretextual in order to survive summary judgment.  Although it agreed that there were factual disputes about the misunderstanding with Mt. Carmel, it concluded that she failed to prove that employer lacked a basis for terminating her for (1) secretly recording workplace conversations that included confidential patient information; (2) poor attendance and (3) seeking another job with the intention to resign because she did not want to return to work.

Even if courts find some reasons pretextual, if “at least one other is not, the defendant employer is still entitled to summary judgment.”  . . . .  In other words, if the employer proffers a single independent nondiscriminatory reason for its conduct, that can defeat a retaliation claim.

The Court rejected her argument that she could not be legally fired for secretly recording workplace conversations because it was not illegal and the employer had not prohibited it in any policy.   The HR VP found this to undermine trust in the workplace and created a risk of liability to employer because each of the three recordings made included confidential patient information.  “But the lack of an official policy or law prohibiting the behavior does not itself demonstrate pretext  . . . And an employer may terminate an employee whose actions undermine the employer’s trust.”  In addition, employers “may terminate an employee for creating legal risk for the company,” which included potential exposure of protected health information without the patient’s informed consent.

The Court also rejected her argument that he attendance could not have motivated her termination because on March 1, the Executive Director only intended to warn her.  However, the also walked out early on March 1 and 2.  Further, she failed to produce evidence that any similarly situated employees had comparatively poor attendance.    She had to do more than identify a comparable co-worker.   Moreover, it was not the Executive Director’s decision to terminate her; it was the HR VP’s decision and she was not required to follow his recommendation of disciplinary action.

Finally, the Court agreed that the employer had shown an honest belief that the plaintiff did not want to return to work based on her comments to the HR Director about seeking another job and her statements to the VP that she did not feel comfortable working in the building because it was a toxic environment and she felt gaslighted.   It was apparently irrelevant that she also told the VP (on a recorded call) that she loved her job and the residents.

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.

Court Rejects Plaintiff's Brief "Self-Serving" Denial of Misconduct Which Justified His Discharge as Insufficient to Prevent Summary Judgment

 Last month, the Ohio Court of Appeals affirmed an employer’s summary judgment on a breach of employment agreement claim after the employer fired the plaintiff a year before his employment agreement expired.   Stedke v. Hume Contracting, L.L.C., 2025-Ohio-323. The Court found that even though there was no provision in the agreement describing the circumstances under which the employer could terminate the employee before the conclusion of the three-year term, it was implied that an employer can always lawfully terminate an employee for just cause.  In this case, the employer provided evidence that the plaintiff had threatened a co-worker with physical violence and the plaintiff’s brief, “self-serving” denial without elaborating on any details from personal knowledge was insufficient to prevent summary judgment. 

According to the Court’s opinion, the plaintiff was hired after selling most of the assets of his business to the defendant employer.  He then signed an employment agreement providing him with employment for three years.  The agreement did not contain any provisions governing how or whether it could be terminated prior to the conclusion of the three year term.  However, it contained a non-disparagement clause which prohibited the plaintiff from disparaging the employer’s business during the term of his employment and thereafter, regardless of whether he was terminated “for any or no reason.”   Two years into his agreement, he was fired for allegedly disparaging the employer, removing its equipment without authorization and threatening a co-worker.  Litigation ensued on a wide variety of issues.  The trial court found that the employer failed to produce any evidence of disparagement, but provided three affidavits regarding the threats of physical violence.  The plaintiff merely denied those allegations, but did not provide any details to support his denial. 

“Unlike an at-will employment relationship, an employer who is a party to an employment contract of definite term may properly discharge the employee only for ‘just cause.’”  Because the contract did not define just cause, the court looked to “common sources” for its definition.

 “Conduct which gives rise to ‘just cause’ for termination is that kind of conduct which an ordinarily intelligent person would regard as a justifiable reason for discharging an employee.”   . . . .

“To justify the discharge of an employee for just cause, ‘it is sufficient for the employer to show that the employee was guilty of a default in duty whose natural tendency was to injure [its] business, and actual injury thereto need not be shown.’ . . .  “Negligence, neglect of duty, misconduct, injury to the employer’s business, dishonesty, or disloyalty are all grounds for termination for just cause regardless of the existence of an employment contract.”

The employer presented three affidavits about the plaintiff coming onto the property, attempting to remove some of the employer’s equipment and threatening a co-worker with physical violence for objecting and reporting his conduct.  In response, the plaintiff provided an affidavit merely denying the allegation in fifteen words without any elaboration.  The dissenting judicial opinion found this affidavit sufficient to create a material dispute of fact, but the majority found it to be an inadmissible self-serving statement. 

“‘Generally, a party’s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact.’”  . . . “‘Otherwise, a party could avoid summary judgment under all circumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party.’” . . .

In this case, the plaintiffs failed to corroborate Stedke’s self-serving affidavit with any evidence and Stedke’s affidavit does not include any specific facts (made on personal knowledge) which would create a triable issue.

  . . . .

 . . . a self-serving affidavit can be used to defeat an opponent’s motion for summary judgment if it contains factual assertions that are made on personal knowledge. . . .

 . . . . That is, there is no evidence in the record before this court showing that Stedke responded to the defendants’ motion for summary judgment with any specific details (based on his personal knowledge) about his conversation with Eisert to create a genuine dispute. Accordingly, there is no doubt that Stedke’s words are self-serving and lack corroborating evidence to demonstrate a genuine issue of material fact. . . .

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

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

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

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

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

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

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

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

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

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

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

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

 . . . . .

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

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

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

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

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

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

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

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

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

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

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

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

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