Sixth Circuit Reverses Employer’s Summary Judgment Where Plaintiff Was Fired Following Altercation But White Co-Worker Was Not Fired Until After Charge of Discrimination Was Filed

Earlier this month, the Sixth Circuit reversed an employer’s summary judgment on a race discrimination claim where the plaintiff had been fired for his role in an altercation but his white co-worker was not (until after the discrimination charge was filed).  Wheat v. Fifth Third Bank, No.13-4199 (6^th Cir. 5-4-15).  The Court found that the plaintiff had stated a prima facie case of discrimination and produced enough evidence of pretext to put the case to a jury.  In particular, the Court found the plaintiff could show that he was similarly situated to the white co-worker in relevant respects even though they had slightly different job duties and behaved differently in the investigatory interview.  What was relevant for comparative purposes was their behavior during the argument.  In addition, the Court found that a reasonable jury could conclude that the Bank’s decision to terminate the plaintiff had no basis in fact, did not motivate its termination decision, or was insufficient to warrant termination.   In so holding, the Court emphasized the different manner in which the Employee Relations employee conducted the interviews of the white and black participants and the conclusions she reached from ambiguous comments by the plaintiff.

According to the Court’s opinion, the plaintiff got into a brief and unprofessional confrontation with a white co-worker.   After the plaintiff returned to his work area, the co-worker then proceeded to the plaintiff’s desk and resumed the disagreement, which was then taken into the hallway at the suggestion of another co-worker. Their physical contact was limited to a swat by the white employee.  A supervisor separated them and Human Resources was brought in to take action.  The plaintiff was still angry, was unprofessional during the interview and refused to answer certain questions.  He felt that no one asked his side of the story and asked him only questions to confirm that he was guilty of initiating the altercation.  At one point, he threw his employee badge on the table, but took it back and denied he was resigning because he felt that he had not done anything wrong.  After he indicated without further elaboration that “Monday would be a big day,” he was directed to go home and not return until called.  The white employee was then called to the conference room, asked his side of the story, told to go home only for the rest of the day and was requested to return to work the following Monday.  He explained that they were just having a bad day.    The HR employee explained that the plaintiff posed a threat of workplace violence, but the white employee did not. That Monday, the plaintiff was terminated for violating the workplace violence and harassment policies.  The white employee was given only a written disciplinary action, being deemed the non-aggressor, which stated that he “did nothing wrong and the next time just go straight to management.”  His supervisor told him that he was “absolutely fine.”    

The Bank conducted a second investigation of the incident after receiving the plaintiff’s Charge of Discrimination.   The white employee claims that he provided the same version of events as during the first interview and again reiterated that he was the one that had reinitiated the argument after the plaintiff had left and that he was the one who had swatted the plaintiff in the hallway.   The Human Resources employee found his second version to be materially different and then fired him for violating the workplace violence policy and being dishonest in the first interview.  Following its investigation, the EEOC found probable cause of discrimination, but could not settle the plaintiff’s Charge.    This lawsuit followed.

The district court had concluded that the plaintiff could not show that a similarly situated employee who was treated differently from his white co-worker.   The Bank argued that the plaintiff had a different job, was the aggressor during the altercation and was rude and inappropriate in the post-altercation interview.   Based on the testimony of the plaintiff and his supervisor, however, the Court concluded that the plaintiff and the white co-worker were performing different aspects of the same job and, thus, were similar enough for comparison.  For evidentiary purposes, a ““plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment” to be considered “similarly situated.” Instead, a plaintiff need show only that he and his comparator were “similar in all of the relevant aspects.””

 

More fundamentally, the identity of job responsibilities is not truly relevant here to the question of whether Wheat and Hatfield were similarly situated for Title VII purposes. Rather, because Wheat’s termination was spurred by a verbal, and potentially physical, altercation, the relevant comparison between Wheat and Hatfield should involve only the two men’s roles and actions in the contretemps.

Similarly, the Court rejected the Bank’s argument about plaintiff being the aggressor because there were disputed issues of fact as to who was responsible for prolonging the altercation and initiating any physical contact. “Such divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

 

The Court also rejected the argument that they were different in how they behaved during the interview because there was a factual dispute about how the HR employee conducted the interviews, which may have created some justification for the plaintiff to refuse to answer certain questions.  Moreover, his comments -- which the HR employee found to be threatening -- were ambiguous and were not found to be threatening by his supervisor (who was present during the interview).  

The Court also found that the plaintiff had produced evidence to cast doubt on the Bank’s explanation for his termination sufficient to rebut its explanation as a mere pretext for discrimination.  

“Pretext can be shown by offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated reason was insufficient to warrant the adverse employment action.”

The Court addressed each of the Bank’s termination explanations.  It found there was sufficient evidence to question whether the plaintiff’s behavior in the investigatory interview was sufficient to warrant his termination.  The plaintiff claimed that the HR employee’s questions were irrelevant and she never asked for his version of events, although she did so of the white employee.  Similarly, his vague statements about Monday being a “big day” and him “taking care” of himself were too ambiguous to warrant termination, particularly when the plaintiff denied making any threats.

The Court also rejected the Bank’s concern that the plaintiff would initiate more violence upon return to work because evidence had been produced that the white employee had been the aggressor, not the plaintiff.  In light of the fact that the white employee maintains that he had always told the Bank the truth about what happened, the HR employee’s credibility was in question as to whether she could genuinely have believed that the plaintiff was the aggressor before he was fired.

A jury could reasonably conclude that each of the rationales proposed by the defendant for its decision to fire Wheat either had no basis in fact, did not actually motivate the defendant’s decision, or was insufficient to warrant the challenged conduct.

Interestingly, there was no discussion in the opinion about the honest belief rule where the defendant acts based on mistaken assumptions after a good faith investigation.

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.

OSHA Issues Enforcement Guidance on Assessing Workplace Violence

Last month, the federal Occupational Safety and Health Administration (OSHA) issued enforcement guidance to its regional offices to establish uniform procedures for investigating and assessing incidents of workplace violence, like the one last Friday afternoon in a California hair salon. Workplace violence has ranked in the top four causes of death for more than fifteen years. “Workplace homicides remained the number one cause of workplace death for women in 2009.” “Employers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards.” In Ohio, it could also lead to public policy discharge and retaliation claims. A complaint concerning workplace violence could trigger an OSHA investigation into many of the employer’s safety and recordkeeping practices. According to OSHA, a combination of administrative, engineering and education measures can greatly reduce, if not eliminate, workplace assaults and other violence. The enforcement guidance also contains a checklist of steps employers can take to improve workplace assessments and safety. Interestingly, OSHA refuses to investigate complaints of co-worker disputes or bullying.

Workplace violence is recognized as an occupational hazard in some industries and environments which, like other safety issues, can be avoided or minimized if employers take appropriate precautions. At the same time, it continues to negatively impact the American workforce. Workplace violence has remained among the top four causes of death at work for over fifteen years, and it impacts thousands of workers and their families annually.

The Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational Injuries (CFOI) shows an average of 590 homicides a year from 2000 through 2009, with homicides remaining one of the four most frequent work-related fatal injuries. Workplace homicides remained the number one cause of workplace death for women in 2009 . . . . In addition, during the same time period, survey results showed that 19% of victims of workplace violence worked in law enforcement, 13% worked in retail and 10% worked in medical occupations.

Research has identified factors that may increase the risk of violence at worksites. Such factors include working with the public or volatile, unstable people. Working alone or in isolated areas may also contribute to the potential for violence. Handling money and valuables, providing services and care, and working where alcohol is served may also impact the likelihood of violence. Additionally, time of day and location of work, such as working late at night or in areas with high crime rates, are also risk factors that should be considered when addressing issues of workplace violence.

By assessing their worksites, employers can identify methods for reducing the likelihood of incidents occurring. The Directive also includes a list of best practices, including the following:

● Conduct a workplace violence hazard analysis (this includes analyzing vehicles used to transport clients).
● Assess any plans for new construction or physical changes to the facility or workplace to eliminate or reduce security hazards.
● Provide employees with training on workplace violence.

● Implement Engineering Controls, such as:
- Install and regularly maintain alarm systems and other security devices, panic buttons, hand-held alarms or noise devices, cellular phones and private channel radios where risk is apparent or may be anticipated. Arrange for a reliable response system when an alarm is triggered.
- Provide metal detectors—installed or hand-held, where appropriate— to detect guns, knives or other weapons, according to the recommendations of security consultants.
- Use a closed-circuit recording on a 24-hour basis for high-risk areas.
- Place curved mirrors at hallway intersections or concealed areas.
- Lock all unused doors to limit access, in accordance with local fire codes.
- Install bright, effective lighting, both indoors and outdoors.
- Replace burned-out lights and broken windows and locks.
- Keep automobiles well maintained if they are used in the field.
- Lock automobiles at all times.

● Implement Administrative Controls—to change work practices and management policies in order to reduce exposure to hazards. Such controls include:
- Establish liaisons with local police and state prosecutors. Report all incidents of violence. Give police physical layouts of facilities to expedite investigations.
- Require employees to report all assaults or threats to a supervisor or manager (in addition, address concerns where the perpetrator is the manager). Keep log books and reports of such incidents to help determine any necessary actions to prevent recurrences.
- Advise employees of company procedures for requesting police assistance or filing charges when assaulted and help them do so, if necessary.
- Provide management support during emergencies. Respond promptly to all complaints.
- Set up a trained response team to respond to emergencies.
- Use properly trained security officers to deal with aggressive behavior. Follow written security procedures. [Do they know how to respond to armed aggression? Have you asked about the training your security contractor provides to security guards assigned to your facility?]
- Develop a written, comprehensive workplace violence prevention program, which should include:
- policy statement regarding potential violence in the workplace and asignment of oversight and prevention responsibilities.
- workplace violence hazard assessment and security analysis, including a list of the risk factors identified in the assessment and how the employer will address the specific hazards identified.
- Development of workplace violence controls, including implementation of engineering and administrative controls and methods used to prevent potential workplace violence incidents.
- A recordkeeping system designed to report any violent incidents. Additionally, the employer shall address each specific hazard identified in the workplace evaluation. The reports must be in writing and maintained for review after each incident and at least annually to analyze incident trends.
- Development of a workplace violence training program that includes a written outline or lesson plan.
- Annual review of the workplace violence prevention program, which should be updated as necessary. Such review and updates shall set forth any mitigating steps taken in response to any workplace violence incidents.
- Development of procedures and responsibilities to be taken in the event of a violent incident in the workplace.
- Development of a response team responsible for immediate care of victims, reestablishment of work areas and processes and providing debriefing sessions with victims and coworkers. Employee assistance programs, human resource professionals and local mental health and emergency service personnel should be contacted for input in developing these strategies.

● Limit window signs to low or high locations and keep shelving low so that workers can see incoming customers and so that police can observe what is occurring from the outside of the store.
● Ensure that the customer service and cash register areas are visible from outside of the establishment.
● Use door detectors so that workers are alerted when someone enters the store.
● Have height markers on exit doors to help witnesses provide more accurate descriptions of assailants.
● Establish a policy of when doors should be locked. Require workers to keep doors locked before and after official business hours.
● Train all staff to recognize and defuse verbal abuse that can escalate to physically combative behavior.
● Train all staff and practice drills for physically restraining combative patients or clients, including the use of physical restraints and medication, when appropriate.
● Provide employee “safe rooms” for use during emergencies.
● Provide staff members with security escorts to parking areas in evening or late hours. Ensure that parking areas are highly visible, well lit and safely accessible to the building.

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.

When Bizarre and Threatening Behavior Constitutes Constructive Notice of a Need for FMLA Leave.

Setting a rather dangerous precedent, the Seventh Circuit Court of Appeals – in a 2-1 vote -- recently reversed summary judgment in favor of an employer which had fired an employee who freaked out over a stray puppy that had entered her workspace, engaged in bizarre and threatening behavior, called off sick for days on end due to the stray dog, and failed to provide the necessary medical certification to justify a medical leave of absence. Stevenson v. Hyre Electric Co., No. 06-3501 (7th Cir. 10/16/07).

After a dog wondered near the plaintiff’s desk, she began cursing, spraying deodorizer, and otherwise displaying agitated and belligerent behavior. Two hours later, she went home “ill.” She called off “sick” the next day as well. The following day, she accosted the company president first thing in the morning and screamed at him about the dog for ten minutes despite his efforts to calm her. She then left work again, filed a complaint with OSHA about the single incident involving the stray dog and went to the local ER, which obtained normal CAT scans and EKGs, but diagnosed her with anxiety and stress and prescribed Antivan. She called off “sick” for the next three workdays (again without elaborating why), but met with her union steward about the stray dog incident. She finally came to work for a few hours (and had been moved to a different office to accommodate her fear of stray dogs), but called the police about undefined harassment, screamed at her co-workers and left work again “ill” without completing any significant work. Before leaving, she left a copy of her records from her ER visit.

The company then notified the plaintiff that she had exhausted her paid leave and needed to provide medical certification of her need for FMLA leave within 15 days of her first absence or she would be terminated. Plaintiff called off “sick” again, but went to her regular physician (who prescribed sleep medication). Plaintiff did not return to work for a few days, but met with her union again. She also obtained a note from her physician “excusing” her absences through that date (February 20), but not certifying or even mentioning that she had a “serious health condition” or that she had been directed to remain off work. Despite her doctor visit, the plaintiff still did not return to work, but she provided the doctor’s “excuse” to her union, which sent it to the company president. In this age of workplace violence, the employer was alarmed by her bizarre behavior and lack of cooperation in supplying medical information. It changed its locks and barred her from entering when she finally showed up a few days later without a doctor's release. Only then did Plaintiff obtain an updated medical release to return to work, but by then, the company did not want it and refused to explain why to her union when asked.

Apparently not as concerned with the safety of her co-workers, the majority of the court interpreted the same bizarre behavior as sufficient evidence for a jury to believe that the plaintiff suffered from a serious health condition which was protected by the FMLA and excused her from seeking medical leave or providing timely medical certifications. Her bizarre behavior could constitute “constructive notice” to the employer of her need for medical leave in the same way that watching an employee break his or her arm would constitute constructive notice of a need for medical leave:

“Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give [the president] notice of a serious mental health condition. Of course, the factfinder could find that [Plaintiff] just had a bad temper that erupted during the period in question. The point here is that this is not a decision the court can make as a matter of law.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomniacs can read the full opinion at http://caselaw.lp.findlaw.com/data2/circs/7th/063501p.pdf.