Ohio Court Rejects Free Speech and Retaliation Claim by Private Sector Employee Fired for Facebook Post

Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020.  Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.    The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech.  Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her.  The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.

According to the Court’s opinion, the plaintiff had been employed for several years when she posted a meme on her Facebook page which, among other things, compared BLM protestors to monkeys.  She denied that she had seen the entire photo before she posted it and argued that it was more political than racial.   Several of her co-workers and subordinates saw it and complained to Human Resources.  She was then fired and brought suit, claiming that she was fired in violation of the right of free speech.  She pointed out that one of the complaining employees was retaliating against her for reporting them twice to Human Resources in the prior few months for making racially charged comments and allegations (which were unfounded) about her and other employees. 

The Court rejected her argument that she was fired in retaliation for reporting one of her subordinates for making racially charged and inappropriate comments.  She could not show causation when other employees had also complained and lacked the same motive to retaliate against her.  The passage of 25 weeks between her arguably protected conduct and termination also meant that she could not rely on temporal proximity to prove causation. 

As for whether she could show her termination violated public policy, she could not identify any court decisions where such a public policy had been applied to a private employer and at-will employee.   On the contrary, the court cited to a Franklin County Court of Appeals decision finding that the right of free speech under the U.S. and Ohio constitutions only apply to government employers. “[I]n the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for [plaintiff], an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against [the defendant company], a private employer.”

we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this 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.

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6^th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

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 Pregnancy and FMLA Claims and Cat's Paw Theory and Evidence of Alleged Pattern and Practice Discrimination to Show Pretext Despite Temporal Proximity Evidence

Last week, the Sixth Circuit affirmed an employer’s summary judgment on claims of pregnancy discrimination and FMLA interference and retaliation after the plaintiff had been fired in a RIF just 10 days after she disclosed her pregnancy to her new supervisor and a couple of HR employees.  Johnson v. Evolent Health, LLC., No. 22-5574 (6^th Cir. 3/2/23).  The Court agreed that there was no evidence showing that anyone who had been involved in the RIF and decision to terminate her employment knew that she was pregnant.  While temporal proximity is often enough to show causation, “the individuals who decided to terminate [the plaintiff] must still have ‘had actual knowledge of her pregnancy at the time that the adverse employment action was taken’ for a nexus to exist.  “Because [the plaintiff] failed to show that any individual who participated in the RIF process knew she was pregnant at the time of her termination, and because she cannot show that any employee who was aware of her pregnancy showed any animus towards her or influenced the decisions of decision makers [under a cat’s paw theory], she has not established a prima facie case of pregnancy discrimination.” The Court also rejected evidence of alleged pattern and practice discrimination to show pretext because it does not evaluate individual employment decisions.   The Court rejected her FMLA claims on the same grounds.

According to the Court’s opinion, the plaintiff was hired in 2018 and had received only “below expectations” on her first two annual performance evaluations and was about to be placed on a Performance Improvement Plan.  Instead, the company decided to eliminate her department and offered her a transfer to a new team, which she accepted, sometime in 2020.  Her new supervisor reached out to her on February 10, 2020 to let her know that the reorganization would take place in a few weeks.  Meanwhile, on February 5, the Company identified the plaintiff and 67 other employees with poor performance evaluations for a reduction in force.  After analyzing which employees would have the least impact, 33 of them (including the plaintiff) were selected for the RIF on or about February 20.  All of these discussions were held among individuals who did not supervisor or manage the plaintiff.  Rather, her former supervisor was not informed until February 20 and was instructed that he would be the person to inform plaintiff since the reorganization had not yet been completed.  However, a few days earlier – on February 14 – the plaintiff had requested two days off from her new supervisor for doctor’s appointments because she had discovered that she was pregnant with twins.  The supervisor directed the plaintiff to contact Human Resources, but did not tell anyone else about the pregnancy.   The plaintiff then contacted the benefits department, which asked a few questions and put her on a tracking spreadsheet for pregnant employees.  On February 24, different Human Resources employees informed the plaintiff that her role was being eliminated and her employment terminated.  She protested that she had just been transferred and explained that she was pregnant.   No one else performing her duties was hired until the following year.  The plaintiff then filed suit for pregnancy discrimination and FMLA interference and retaliation.

The Court closely examined who had been involved in the RIF and termination decision (which had been finalized on February 21) and who had been informed of the plaintiff’s pregnancy on February 14.  It agreed that there was no evidence that anyone involved in the RIF decisions had been informed of the plaintiff’s pregnancy.  Rather, the plaintiff had only informed three people and none of those people share that information with anyone else, let alone anyone who was involved in the RIF decisions. 

Temporal proximity between the announcement of an employee’s pregnancy and that employee’s termination can sufficiently establish a nexus between the events. . . . . Even so, the individuals who decided to terminate [the plaintiff] must still have “had actual knowledge of her pregnancy at the time that the adverse employment action was taken” for a nexus to exist.

The Court rejected the plaintiff’s argument that other HR employees had access to the shared email box or tracking spreadsheet because they denied ever reviewing the information or learning about her pregnancy before her lawsuit.   The plaintiff could only speculate that other HR employees had actual knowledge and no actual evidence.

The Court also rejected the cat’s paw theory because she did not allege – let alone prove – that the individuals with knowledge of her pregnancy had any discriminatory animus whicvh they then used to influence others into taking discriminatory actions.

“In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” . . . . But the “predicate to cat’s paw” is a demonstration of discriminatory animus: that “by relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's paw.’”  . . . [The plaintiff] does not allege that any subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards [her].

In any event, the plaintiff also could not show that the employer’s explanation for her termination was pretext for discrimination.   The plaintiff attempted to challenge the termination decision – based on her documented poor performance – because ultimately only half of the employee initially selected on February 6 were actually terminated and no extra supporting comments were offered to support her termination.  However, it was undisputed that she had poor performance scores and she was not the only terminated employee without extra supporting comments. 

The Court also rejected her argument that the employer’s explanation had shifted from position elimination to poor performance.  However, the Court did not find it inconsistent to find that her position had been selected for elimination based on her poor performance.   While the termination script never mentioned her poor performance, it never gave any explanation for how or why she had been selected for termination.

The Court also rejected the plaintiff’s argument that pretext was shown because approximately 10% of pregnant employees were terminated by the Company.

pattern or practice evidence is unavailable to assess an individual plaintiff’s discrimination claim.  . . . Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case” because it does not evaluate individual hiring decisions. . . . It can support, however, an “otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail. Id. [The plaintiff] is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence does not raise a triable issue of fact nor does it allow [her] claims to survive summary judgment.

Similarly, the Court again rejected the temporal proximity of her pregnancy announcement and the termination decision as evidence of pretext:

The temporal proximity of [her] disclosure of her pregnancy and her termination may be indirect evidence of pretext but cannot alone support pretext here. . . . . Even when the timing appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the plaintiff] to succeed.”

The Court likewise rejected her FMLA arguments because she could not show pretext for the employer’s decision for the reasons discussed above and because at least one other employee had been terminated without requesting FMLA leave.

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 Inference of Retaliation From Passage of Time Whether it Be Six Years, Fifteen Months or Even Possibly Four Months.

Last month, a unanimous Sixth Circuit affirmed an employer’s summary judgment on a retaliatory failure to promote claim on the grounds that the passage of more than 15 months -- since the dismissal of the plaintiff’s prior lawsuit were affirmed on appeal -- prevented an inference of retaliatory motive.  Wheeler v. Miami Valley Career Technology Center, No. 22-3315 (6^th Cir. 1/10/23).    When the only retaliatory action the plaintiff could identify was being passed over for a promotion, the Court agreed that the passage of six years since her prior lawsuit had been filed, and 15 months since her appeal had been dismissed, could not support an inference of retaliatory causation.  The Court suggested that the passage of as little as four months could be insufficient by itself to show causation. 

 According to the Court’s opinion, the plaintiff teacher had been employed for approximately 30 years and applied, was minimally qualified and was interviewed for three open administrative positions in 2018, but was not selected for any of them.  She initially filed Charges of Discrimination alleging that she was passed over on account of her age and in retaliation for an EEOC Charge and lawsuit which she had filed in 2012 (but which had concluded in January 2017 when the Sixth Circuit affirmed the trial court’s 2016 summary judgment in favor of the employer).  The trial court dismissed her lawsuit on the grounds that the six years which had passed since she filed her initial Charges of Discrimination and lawsuit prevented any inference of retaliation for failing to promote her in 2018.  After appealing only the dismissal of her retaliation claim, the Court of Appeals affirmed because she:

 complains of actions that occurred years before the alleged wrongful actions by [the employer], with her prior complaint being filed in 2012. This proximity is woefully insufficient by itself—the Supreme Court has held that events not even two years apart are nowhere near close enough. See Clark Cnty. Sch. Dist ., 532 U.S. at 274 (“Action taken . . . 20 months later suggests, by itself, no causality at all.”). [She] responds that we should consider that her litigation lasted until January 2017, about 15 months before [the employer] hired someone other than [her] for the first administrative position. But this is still insufficient—we have held that far shorter time periods do not establish the required causation. See Imwalle, 515 F.3d at 550 (“In this circuit, a period of more than four months was found to be too long to support an inference of causation.”). The temporal proximity in the present case is simply not enough.

The plaintiff also attempted to challenge the employer’s explanation (of more qualified external candidates) on the grounds that the employer typically promoted internal candidates for administrative positions and that her interviews were “poisoned” by being interviewed by individuals who had been involved in her prior litigation.  However, the Court did not find her argument to be supported by the evidence.  In short, her only evidence of retaliation was not being promoted:

But given the amount of time that has elapsed since the prior lawsuit, this, by itself, is far from enough evidence needed to create a genuine dispute of material fact as to causation. . . . . She has not produced sufficient evidence establishing that the 2012 complaint was a “but-for” cause of her failed 2018 promotion, nor can she prove that she would have been promoted if not for the 2012 complaint.

 

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 Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6^th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

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. 

Ohio Appeals Court Reverses Employer’s Summary Judgment on Retaliation Claim Based on Workplace Investigation

 

Earlier this week, a unanimous Franklin County Court of Appeals affirmed summary judgment on a discrimination claim, but reversed summary judgment on a retaliation claim, finding sufficient evidence for a trial on whether the plaintiff was subjected to a workplace investigation and potential termination in retaliation for a Charge of Discrimination he had filed two months earlier.   Moody v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected to discrimination when he was given a paid three-day suspension for being hours late to work due to a misunderstanding about the work schedule.   During a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated patients, but he had never filed formal incident reports about any of those incidents.  He was then investigated for failing to file incident reports and threatened with a five-day suspension or termination.  He resigned and filed suit.  The Court found that a paid three-day disciplinary suspension which did not affect the plaintiff’s compensation, status, or other terms and conditions of employment could not constitute a material adverse employment action for purposes of employment discrimination.   However, subjecting the plaintiff to a workplace investigation two months later could constitute an actionable retaliatory action and was sufficiently close in time to his protected conduct of filing a Charge of Discrimination.  The Court also found sufficient evidence of pretext when the employer’s explanation was challenged by an independent witness who agreed with the plaintiff that there was no mandatory duty to file a formal incident report for relatively minor infractions which could be adequately resolved by reporting them to the Charge Nurse.

According to the Court’s opinion, the plaintiff received disciplinary action after engaging in horseplay at work.  He was directed to read some materials and prepare a performance improvement plan within a week, which he failed to do.  He was then given a written reprimand for failing to complete the assignment.    A few months later, he was given a one-day paid suspension for creating a workplace disturbance.  He then transferred to a new supervisor and had no further issues for almost three years.  However, he was then more than two hours late to work after relying on an earlier draft of the work schedule.  The next step in the progressive disciplinary policy was a paid three-day suspension.  Incorrectly believing that the bargaining agreement provided that his prior disciplinary actions dropped off after two years (instead of three years), he filed a Charge of Discrimination with the Ohio Civil Rights Commission, which was dismissed for lack of probable cause.  Two months later, he was interviewed as part of unrelated investigations of two co-workers.  He alleged during those investigations that the co-workers had been abusive towards patients.  Because he had never filed incident reports concerning any of those situations, he was then investigated and subjected to disciplinary action, including termination.  He resigned and filed suit.  The Court of Claims granted summary judgment to the employer.

A unanimous Court of Appeals affirmed in part and reversed in part.   The plaintiff failed to produce evidence of different treatment concerning most of the challenged employment actions.  His bare assertions that other employees, for instance, engaged in horseplay without disciplinary action was insufficient to create a material dispute of fact necessary to avoid summary judgment.   However, he did produce documentary evidence and a witness affidavit that a few other co-workers were late to work under similar circumstances and only received informal counseling, instead of formal disciplinary action.  Nonetheless, the Court concluded that the plaintiff could not prevail on a discriminatory treatment claim because his paid suspension had not altered his compensation, employment status or other terms or conditions of his employment.

"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis.  . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation."  . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “  . . . .  [citations omitted]

While terminations, failure to renew a contract, and unpaid suspensions can constate material adverse employment actions, “the Sixth Circuit has held that a paid suspension generally does not constitute an adverse employment action.”

We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .

In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.

However, the Court found sufficient evidence to support the plaintiff’s claim of retaliation.

In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").

We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim.  . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .

[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.

The Court found that the plaintiff also presented sufficient evidence to show that his protected conduct (in filing the Charge) was the cause of the workplace investigation because the investigation was conducted less than three months after his protected activity. 

We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation."  . . .  Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation.  . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection.  . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.

While the employer articulated a legitimate and non-discriminatory reason for investigating the plaintiff, the Court also found that he had presented sufficient evidence to question whether that explanation was pretextual for retaliation.   The plaintiff contended that filing incident reports was not mandatory for minor infractions and was able to cite to a statement made by a Registered Nurse during the investigation confirming his understanding.

[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs."  . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices  . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.

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 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.

Divided Sixth Circuit Affirms Dismissal of FMLA Claims But Finds Possible ERISA Claims Based on Same Evidence

Yesterday, a divided Sixth Circuit affirmed summary judgment on FMLA interference and retaliation claims where the plaintiff employee, like 55 employees before him, had been fired under the common company policy for failing to call off for three consecutive days, but on the same facts the Court reversed dismissal of his ERISA interference and retaliation claims on the grounds that the employer’s failure to call him to check on him (like some other employees who had similarly failed to show or call off) prior to terminating his employment could constitute evidence of pretext.   Stein v. Atlas Industries, Inc., No. 17-3737 (6^th Cir. 4-9-18).  The Court found that the employee could not show unlawful interference with his right to take FMLA leave because the FMLA regulations permit employers to enforce call-off policies, which the plaintiff admittedly had failed to observe due to his own confusion about when he had been released to return to work.  His confusion about what his physician had written did not excuse his failure.  The Court also concluded that he could not show unlawful retaliation based only on the passage of 10 weeks between the start of his FMLA leave and his termination because temporal proximity alone is insufficient evidence when the span of time is more than 8 weeks.  Unlike his FMLA claim, however, the employee was able to produce evidence that his self-insured employer was very concerned about the medical bills incurred by his son.   Therefore, the passage of 7 months did not destroy his evidence of causation because he was not relying on temporal proximity alone and it was known that his son would likely require another hospitalization.   This “extra” evidence of employer motivation also apparently made relevant evidence of  pretext that the Court had previously rejected as evidence of pretext in his FMLA claims.

According to the Court’s opinion, the plaintiff had worked for the defendant company for 20 years and even had a year of perfect attendance when his son required hospitalization for a severe, chronic and rare neurological condition that apparently caused the employer’s insurance rates to rise and had been blamed by some employees for the employer’s inability to raise wages.  The employee then required surgery for a work-related injury and was off work on FMLA leave for 10 weeks.   Near the end of July, his doctor told him that he could return to unrestricted duty on  August 10.  However, the employee did not understand or realize that his physician had immediately released him to return to work on light duty on July 20 and had so informed the employer.   Although employees are entitled under the FMLA to reject light duty work, they are still required to adhere to the employer’s attendance policy, which in this case required employees to call off every day that they did not intend to return to work after they have been released to light duty.  When the employer received the physician’s release for light duty, it called the physician to confirm the release because the employee had not called off work.  When the employee did not report to work for three consecutive days or call off, it terminated his employment like it had 55 employees before him.   The employee produce some evidence that the employer had called some other employees before terminating them under the same policy, thereby showing selective enforcement.

First, the Court rejected the FMLA interference claim.  The Court found that the employee’s confusion about his medical release and its ramifications did not constitute “unusual circumstances” to excuse his failure to call off work under the employer’s policy.  The type of “unusual circumstances” that would have justified him not complying with the policy would be a malfunctioning voicemail or telephone system.   While the Court was sympathetic that the doctor told the employee one thing, but wrote something else, the Court also found that the employee should have read the form which his physician gave him.  The Court also rejected the FMLA interference claim because FMLA regulations require employees to comply with their employer’s call off procedures even if they are entitled to be on FMLA leave. 

Here, [the employer’s] policy required employees on medical leave to either return to work or call in once their doctor released them with light-duty restrictions.  And the company’s employee handbook provided that “any associate who is absent three (3) consecutive days without permission or without calling in [would] be automatically discharged.”  . . . So, when [the plaintiff] failed to report for work or call in for three consecutive days after his release, [the employer] was within its rights to terminate him.   

It was irrelevant that the employee was legally entitled to reject light duty work under the FMLA. 

Had [the employee] contacted [the employer] to say that he was using his remaining two weeks of FMLA leave and the company subsequently fired him under the attendance policy, [he] would have a claim.  But that is not what happened.  [Its] policy required [him] either to return to work or call in and report his intentions, and [he] did neither.  So the light-duty regulations do not protect him.

Second, the Court rejected the FMLA retaliation claim.   The employee apparently admitted that his only evidence of retaliation was the temporal proximity of the termination – 10 weeks after he began FMLA leave.   There were apparently no stray or other remarks which would show that the employer was motivated to retaliate for his taking FMLA leave.  However, temporal proximity alone cannot constitute sufficient evidence of causation when the lapse of time is greater than 8 weeks.   Accordingly, the Court affirmed dismissal of the FMLA claims. 

Finally, the Court found that there was sufficient evidence for a jury to consider whether the employee was fired in retaliation for, and to prevent him from, using his ERISA benefits to obtain employer-covered medical treatment for his son.  The employer was self-insured for medical coverage and had stop-loss coverage for extraordinary claims.   The company had apparently spent $500K on his son’s care in the prior year (part of which was covered by the stop-loss coverage) and had been publicly lamenting “skyrocketing” health care costs in employee bulletins.  The HR Director was alleged to have complained about this to another employee and attributed the rising employee premiums to his son’s $1M in medical bills.  While the employee’s supervisor made the decision to terminate his employment, he did not act alone because the HR Director and the VP of Operations also participated in the decision, decided to not reconsider or excuse his confusion about his medical release, and were well aware of the cost of his son’s medical expenses.   Further, the passage of seven months between his son’s hospitalization and the termination decision did not destroy the temporal proximity inference because, as just discussed, the employee was not relying on temporal proximity alone (as he did in his FMLA claim).   This was particularly true when it was known and likely that his son would have to return to the hospital again in the future.

The employer again explained that it had fired the employee under its policy of automatically firing employees who fail to show up or call off for three consecutive days and pointed out that it had similarly fired 55 other employees under this policy.  

Thus it is [the employee’s] turn once more.  [The employee] “need not show that the employer’s sole purpose was to interfere with [his] entitlement to benefits” or to retaliate, but instead that a reasonable jury could find that unlawful considerations were a “motivating factor” in its actions.  

The Court then remarkably concluded that while the employer’s rationale was justified under the FMLA, it could constitute pretext under ERISA.   Although the Court rejected the employee’s argument that the employer’s failure to call him to schedule a return-to-work drug test after he had been released to return to light duty was evidence of pretext for his FMLA retaliation claim, it found that evidence relevant for his ERISA retaliation claim.  Finally, it found that the employee’s “suggestion” that the employer had called some workers to find out why they had not returned to work or called off (instead of automatically terminating them) constituted evidence of selective enforcement and ERISA retaliation, but was apparently irrelevant to his FMLA retaliation claim. 

[The plaintiff] had worked at [the defendant company] for nearly twenty years, had won at least one perfect attendance award, and had worked overtime when asked.  He seems to have been a satisfactory employee.  But as the three days after his release to light duty rolled by, [the defendant company] reached out only to [his] doctor and [its]third-party administrator for workers’ compensation claims—just to double-check that [he] had really been released.  And even though [its] employee handbook indicates that [he] had to “complete a return to work fitness exam and drug screen prior to returning to work” that “[would] be scheduled by the Human Resource department,”  . . . the company did not schedule [his] drug screen before it fired him.   . . .   Although [the defendant employer] was not required to reach out to [him, for reasons set out in the FMLA-interference discussion above, the fact that it did not do so could still raise a juror’s suspicions about [its] motives.  And while [the employer] claims that this was all just standard practice—pointing to a list of fifty-five employees that the company terminated under its no-call, no-show policy in the past twenty or so years—[its] list only includes names and dates.  It does not indicate whether these fifty-five terminations are otherwise similar to [the plaintiff’s] in the relevant respects.  And [the plaintiff], for his part, has pointed to evidence suggesting that his superiors selectively enforced the absenteeism policy by calling some employees to “ask what’s up” when they failed to show up for work, but not others.  

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 Reverses Employer’s Summary Judgment on Sexual Harassment and Retaliation Claim

Last week, a unanimous Butler County Court of Appeals reversed an employer’s summary judgment on a sexual harassment and retaliation claim brought by a former grocery store employee.  Ellis v. Jungle Jim's Market, Inc., 2015-Ohio-4226.   The court found that there were factual disputes which prevented judgment on the employer’s defenses even though it did a lot correctly after learning of the alleged harassment.  In particular, the Court found there was enough evidence to show that the employer did not sufficiently prevent or remedy harassment because its management had not been trained about harassment or workplace investigations, it failed to obtain written statements from all witnesses in a timely fashion and its anti-harassment policy did not specifically address informal and verbal reports of harassment.  A jury could also find that the employer retaliated against the plaintiff for filing her OCRC Charge by immediately transferring her to a lower-skilled bagging position at the same rate of pay purportedly in order to protect her because it had not transferred her when she earlier complained about harassment and had not transferred or suspended the harassing employee.

According to the Court’s opinion, the plaintiff had been hired as a bagger and was subsequently promoted into the seafood department.  She had been given the employer’s sexual harassment policy, which directed her to bring concerns to her supervisor, her manager or to a certain employee (who had previously died) who chaired the store’s investigation committee.  About a month after her promotion in February 2013, she claimed that her supervisor subjected her on a daily basis to inappropriate sexual comments and suggestions, many of which were graphic and gross.   Although she regularly objected to his conduct and suffered emotional and physical distress from it, she did not report it to management because he told her that he was just kidding and implicitly threatened her when he said that he knew that she liked her job.

Another employee reported the alleged harassment of the plaintiff to the assistant store manager, who then reported it to the store manager (who now chaired the store’s investigation committee).  After speaking with the plaintiff, the store managers interviewed her supervisor and two other employees (who did not corroborate the plaintiff’s allegations).  They did not interview all of the department employees or obtain written statements from the department employees.  Nonetheless, they issued a disciplinary action on May 5 directing the supervisor to cease any sexual comments under penalty of immediate termination.  The plaintiff was instructed to report any further problems to the store manager and she declined the opportunity to transfer out of the department.  Her working hours were changed so that she would no longer work with her supervisor.

There was conflicting evidence about whether the inappropriate comments continued.  The plaintiff at one point testified that he only whispered about her to other employees.  She claimed, however, that he retaliated against her by denying her time off, etc.  She did not immediately bring these issues to management even though they regularly walked through her department and checked in with her in order to ensure that she was suffering no further harassment.  Nonetheless, the plaintiff filed an OCRC Charge on May 28 alleging sexual harassment.  She was almost immediately transferred back to bagging without any reduction in pay and declined the owner’s offer to return her to the seafood department.  She subsequently injured her knee and was medically restricted to a sitting position.  Accordingly, the store gave her its only light duty position as the store greeter.  However, she resigned because she felt that she had been put in that position in order to ridicule her.

The plaintiff filed suit in November.  The following May, the store finally interviewed the rest of the seafood department employees almost a year after its first investigation and received further corroboration of the sexual harassment and that it continued after the plaintiff had been transferred out of the department.

Unlike the trial court, the Court of Appeals found that the plaintiff produced sufficient evidence that her supervisor created a hostile working environment with his daily sexual comments and suggestions because his conduct could be found by a jury to be sufficiently severe and pervasive enough to alter the terms and conditions of employment.  The Court also found that the alleged harassment was also objectively and subjectively hostile to a reasonable person in the plaintiff’s position.  Evidence about her failure to complain, the testimony of co-workers that they never witnessed the alleged harassment and the fact that she accepted a ride home from the harasser only affected the weight of the employer’s defense and not whether the plaintiff could prevail at trial.

Unlike the trial court, the Court also found that there was sufficient evidence to hold the employer vicariously liable for the harassment.   First, it found that there remained issues of material fact about whether the employer could raise the “no tangible employment action” defense.  The plaintiff could not show that her harassing supervisor had taken any tangible actions because her transfers, etc. had been taken by upper store management.  Nonetheless, the employer was not entitled to summary judgment on the defense because it could not show that it took sufficient steps to prevent and remedy harassment.   In particular, its policy did not explicitly provide for informal or verbal complaints.   There were also issues as to whether the employer actively implemented the policy or trained supervisors or staff about it because it had not been updated following the death of the investigations committee chair and none of the managers had received training about harassment or how to conduct investigations. Second, the employer did not interview all of the departmental employees identified by the plaintiff in her interview or obtain written statements from any departmental employees until after the plaintiff filed her OCRC Charge.   The Court also faulted the employer for leaving the plaintiff in the department, only periodically touching base with her thereafter and not training the harasser about how his conduct had been objectionable.

As for her retaliation claim, the trial court had found that the transfer back to a bagging position at the same rate of pay was lateral and therefore, not materially adverse.  The Court of Appeals found this to be a disputed factual issue because a bagger’s diminished responsibility might have deterred a reasonable person from filing an OCRC Charge.  Further, the plaintiff could show a causal connection between her transfer and her protected activity because she was transferred almost immediately (or within a few days) after the employer learned that she had filed her OCRC Charge.  It also found a factual dispute as to whether the employer’s legitimate business reason for transferring her – to protect her from further sexual harassment – was pretextual because it had not transferred her earlier even though she had allegedly complained about continued harassment.  A jury could reasonably find that she had been transferred in retaliation for filing her OCRC Charge because the harasser could have been transferred or suspended instead.

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

Sixth Circuit Affirms Dismissal of FMLA and ERISA Claims

Today, the Sixth Circuit released two opinions affirming the summary judgment dismissal of two lawsuits.  One involved FMLA and disability discrimination claims and the other involved denial of STD/LTD benefits under ERISA.  In the FMLA case, the plaintiff employee failed to show that his termination was related to his use of FMLA  leave or violated Ohio law.   Blosser v. AK Steel Corp., No. 12-4015 (6^th Cir. 4-2-13).  In the ERISA case, the plaintiff employee claimed to be too stressed out to work, but refused to consult with a psychiatrist and had only the vague support of her primary care practitioner to support her claims.  Therefore, the Court found it was not arbitrary or capricious for the insurance carrier to deny her claims under ERISA.   Hogan v. Life Ins. Co. of N. Am., No. 12-5902 (6^th Cir. 4-2-13).

In Blosser, the plaintiff employee was hired in 2007 as an at-will engineer and received negative performance feedback:

[The manager] informed [plaintiff] that his performance was not meeting expectations and told him that he would need to improve. On one occasion, [the manager] indicated that the cost and time associated with one of [plaintiff’s] projects was “getting out of hand” and that [his] projects were not progressing as expected. Nevertheless, [plaintiff] continued having problems and failing to meet the expectations of [the manager] and other supervisors at AK Steel.

In September 2008, the plaintiff took FMLA leave to remove a brain tumor and was released to return to work without any medical restrictions in November 2008.   He returned to work on December 1 without any medical restrictions and admitted that he was not suffering from any disability. His work performance did not improve after his medical leave.  While he accomplished assigned tasks, his manager felt that he did not show enough initiative or independent judgment.

[The manager] rated [plaintiff] as “below satisfactory” in seven of ten performance sections, including “job knowledge, planning, control, management of resources, decision-making, communications (oral and written), and current performance.” [The manager] explained his ratings by writing, “Al is slow to assume the responsibilities of the Infrastructure work for Middletown Works. . . . [He is] not aggressive enough. . . . The quantity and difficulty of the projects that Al has been assigned is lower due to the length of time he has taken to work on them. . . . [He] has not achieved the desired improvement in response time.” When [the manager] and [plaintiff] met to discuss the evaluation, [he] blamed any substandard performance on his recent medical problems.

In the meantime, the recession adversely affected the company’s business and layoffs were made based on seniority, job performance and uniqueness of skills.  Because the plaintiff had low seniority, a non-unique job and documented poor performance, he was selected for layoff.  Before he had been notified of the layoff, the plaintiff emailed the HR department – in an attempt to avoid being laid off – that his medical condition had not been properly considered in his prior performance evaluation.  He filed suit following his layoff.

The Court found that the plaintiff could not show that he was laid off because of his FMLA leave merely because the layoff occurred six weeks following his return to work.    First, the Court focused not on the date of his return to work, but on the date several months earlier when he requested FMLA leave in September.  The passage of four months between his FMLA request and his layoff was found insufficient to support, by itself, the implication of retaliation.  “[A] plaintiff must couple temporal proximity with other evidence to show causation.”  In this case, the “other evidence” submitted by the plaintiff was insufficient.  The offer by his supervisor to help him move was irrelevant.   A comment that his work performance had not improved or changed since his medical leave was also irrelevant.  Comments by the company CEO in general against a state law form of FMLA leave was also insufficient to show retaliation.  In addition, the plaintiff could not show pretext in that there had been dissatisfaction with his job performance before he requested medical leave and those comments were consistent with his subsequent performance evaluation following his medical leave.   He also could not dispute the company’s economic need for layoffs during the recession.  Finally, he could not show his layoff was retaliation for emailing HR because the decision had already been made before his email was sent.

The Court also rejected his disability discrimination claim under Ohio law on the grounds that he could not show that he was disabled when he returned from a brief medical leave with no medical restrictions.  The Court found that his surgery and the potential of a need for future medical treatments did not render him disabled as having a record of a disability.   Instead, his brain tumor – while serious – was of temporary duration and was resolved without any further medical restrictions.  Therefore, the Court rejected any argument that it constituted a record of a substantial impairment. 

The Court found that the plaintiff had failed to produce any evidence that he had been regarded as disabled and could not show that his layoff was pretext for discrimination.

In the Hogan case, the plaintiff visited her primary care physician in September 2008 complaining of anxiety, difficulties concentrating, panic attacks, disliking her job and back pain.  He diagnosed her with depression, prescribed medication and she stopped working two days later on the grounds of depression, anxiety and panic attacks.   She visited her physician a week later complaining of anxiety and work-related stress and he agreed that she required a medical leave to adjust to her new medications.  A month later, she explained to her physician that she was still too stressed to return to work and he referred her to a psychiatrist.   She visited her EAP, which noted no restrictions on her work or daily activities, but referred her to another psychiatrist in order to rule out Alzheimers or dementia.  There was no evidence that she had ever consulted with any psychiatrist.

The plaintiff’s claims for STD and LTD were denied because she failed to provide satisfactory proof of disability.  While her primary physician noted that "significant stressors at work exacerbate [her] condition . . . but did  not connect any specific work activity to her condition, nor did he provide any evidence of objective testing or fruther evaluation.  And while he noted restrictions on her work activities, he did not initially place any restrictions on any other activities of  [her] daily life."  In rejecting her claim, the defendant company explained the:

 

lack of clinical evidence of functional deficiencies and added “we cannot conclude from the records we received a physical or mental inability to function at work other than your current dislike for your position.

 . . . .

Disability is determined by medically supported functional limitations and restrictions which preclude ability in performing your occupation. We do not dispute you may have been somewhat limited or restricted due to your diagnosis, however an explanation of your functionality and how your functional capacity prevented you from performing the requirements of a Leave Processor was not clinically supported as we were not provided with physical exam findings, physical limitations, and severity of symptoms.

The Court affirmed the denial of the claim:

In evaluating Hogan’s claim, LINA received only three brief visit notes from Hogan’s treating physician—an internist lacking any sort of mental-health specialization. These notes indicated that the idea to take time off from work originated with Hogan and was not a restriction imposed by her physician (although Dr. Schurfranz agreed with her decision to stop working until her medications better controlled her self-reported symptoms). The record lacked any sort of clinical verification, and despite requests and opportunities to do so, Hogan failed to provide the type of information about her specific limitations that could be used by LINA to determine that she met the plan’s definition of disability.

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.