Sixth Circuit Denies Paid Leave as Reasonable Accommodation and Rejects FMLA Claim Based on Normal Application of Policy

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment on ADA and FMLA claims brought by a Cincinnati teacher who sought three weeks of paid leave to be trained with a guide dog.   Tumbleson v. Lakota Local School District, No. 25-3548 (6^th Cir. 5-13-26).   The Court held that the ADA did not require the employer to provide her with paid leave and she could not show that she had been treated less favorably than others.  Unpaid leave remains a reasonable accommodation under the ADA which the employer can select without having to prove undue hardship.  It also found that she failed to show that her employer violated the FMLA by providing her with only unpaid leave under its existing policies.  Nonetheless, it reserved the right of future litigants to show otherwise with better arguments.

According to the Court’s opinion, the plaintiff’s medical condition was causing her to progressively lose her sight and hearing.  She had been provided with a number of classroom accommodations and a five-day leave to be assessed for a guide dog.   She continued to excel in her teaching duties.   She later sought three weeks paid leave to be trained with a guide dog, but the employer would only provide her with unpaid leave under the ADA since her request did not involve a “personal illness” under its sick leave or FMLA policies and she was not incapacitated or unable to perform her job duties. After taking the leave and obtaining her guide dog, her physician wrote a letter saying the dog was necessary for medical reasons, but the employer refused to change its decision.  This lawsuit ensued.

The Court rejected her disparate treatment claim under the ADA.    While the Court found that denial of paid leave could constitute an actionable adverse employment action under the ADA, she failed to show that she was treated less favorably than similarly situated co-workers outside her protected class.   This analysis matters both at the prima facie and pretext stages.    In this case, the employer denied the paid sick leave request because she did not fit within the “ due to personal illness” definition in the policy, Ohio law or the collective bargaining agreement.  “Yet she does not offer a single example of a nondisabled employee who received sick leave even when the employee’s proposed absence did not qualify for that leave.”  It was not enough to show that the HR Director routinely granted brief leaves of less than 10 days because she herself had also benefitted from this policy in her initial absence.   Thus, the policy had been neutrally applied and not discriminatorily.  She had also failed to request comparator information during discovery.

The Court also rejected her failure to accommodate claim because she was provided with three weeks of unpaid leave. 

The parties dispute only the “reasonable accommodation” part of this framework. The employee must identify an accommodation and prove its reasonableness.  . . .  How do we decide whether an accommodation is “reasonable”? The ADA’s text makes clear that an accommodation must be work related, meaning that it will allow an employee to “perform the essential functions of the” relevant job. 42 U.S.C. § 12111(8). To qualify as “reasonable,” then, an accommodation must alleviate “a key obstacle” that has prevented the employee from being able to perform an essential job function.  . . .  So courts will find a proposed accommodation unreasonable if an employee can perform the essential job functions and if the employee requests an accommodation for non-work-related reasons.  . . . We thus held that an employer did not have to change an employee’s schedule to allow her to avoid heavy traffic because this burden “exist[ed] outside the work environment.”

Further, even if an employee needs some accommodation, the employer “need not provide the” specific accommodation that the employee wants.  . . .  Rather, the employer has “discretion” to choose from among alternative reasonable accommodations if they all will permit the employee to perform the job.  . . .  The employer thus may pick an accommodation that is “less expensive” or “easier” to implement when given the choice between two reasonable accommodations.  . . .  We have held, for example, that a police department could provide an officer a “desk job” even though the officer preferred an “on the street” job with various restrictions.  . . . . And we have held that a clothing store could provide a warehouse employee with “leave time” even though the employee preferred a transfer to another warehouse role. . . .

This law forecloses [the plaintiff’s] failure-to-accommodate claim. At the outset, it is not obvious that [her] proposed accommodation—that [the school] provide her with paid leave to attend the Leader Dogs training—qualified as a reasonable one. At the time that [she] requested leave, she continued to be an excellent teacher who did a “wonderful job” in the classroom.  . . . . And we see little record evidence to suggest that the lack of a guide dog stood as an “obstacle” that stopped her from completing any “necessary function” of her teaching role.  . . .  Yet we need not decide this issue because [the employer] ultimately gave her an accommodation that allowed her to complete the guide-dog training: unpaid leave.

If [the school’s] unpaid-leave accommodation were reasonable, then, that fact would preclude [her] failure-to-accommodate claim because the ADA did not give her the right to her preferred accommodation.   . . .  Even if we assume that [she] needed a guide dog to work as a teacher, [its] accommodation met our reasonableness test.  . . .  There is no dispute that unpaid leave allowed [her] to attend the Leader Dogs training and bring home Henry. [She] also “offers no evidence linking” paid leave “to the performance of her job.”  . . .  Her doctor’s letter, for example, says nothing about whether that leave should be paid or unpaid. So [the employer] (not[the plaintiff]) had the “ultimate discretion” to choose between the paid-versus-unpaid alternatives because both allowed [her] to perform her job.  . . .  [bolding added for emphasis]

[Plaintiff] responds that unpaid leave was only “partially responsive” to her request because this accommodation required her to go three weeks without pay and caused some financial difficulties for her family.  . . . . But these financial difficulties arose “outside the work environment” and so do not go into the reasonableness calculus.  . . . [Her] financial difficulties are thus “beyond” [the employer’s] “duties to accommodate under the ADA.”  . . .  Indeed, her argument has no stopping point. The ADA says that giving an employee a “part-time” schedule can qualify as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B). Under [the plaintiff’s] view, if this employee did not have the financial means to work only part time, the ADA would require the employer to provide full-time pay for the part-time work. The rule requiring an accommodation to be for work-related reasons avoids this result.  . . . . [bolding added for emphasis]

The Court rejected the plaintiff’s argument that the employer was required to show that paid leave would be an undue hardship.  “That fact is true but irrelevant.”

True, an employer need not provide a reasonable accommodation if it “would impose an undue hardship on the” employer’s operations. 42 U.S.C. § 12112(5)(A). In other words, even if paid leave were the only reasonable accommodation, Lakota would not have to provide that leave if it would cause this hardship . . .  But we need not reach this hardship question because we resolve the appeal on a distinct element. The record proves that two different accommodations—paid leave and unpaid leave—were both reasonable. In that scenario, Lakota had the “ultimate discretion” to choose the “less expensive” option even if the more expensive one would not have posed an excessive hardship.  . . .  In sum, because unpaid leave allowed [the plaintiff] to obtain her guide dog, [the employer] met its obligation to provide a reasonable accommodation. The ADA required nothing more. [bolding added for emphasis]

The Court also rejected her FMLA claim.  “Although the FMLA requires employers to grant leave, it does not require them to pay the employee while off work. Rather, the FMLA presumptively allows employers to treat the required leave as unpaid.”

That said, the law gives employees the right “to substitute any of [their] accrued paid vacation leave, personal leave, or medical or sick leave” for FMLA leave.  . . .  But it then makes clear that “nothing in [the FMLA’s general rules] shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.” Id. To obtain paid leave, then, the employee must satisfy “the additional requirements in an employer’s paid leave policy[.]”

The Court observed that there were questions about whether the plaintiff even qualified for FMLA leave because, despite the serious health condition, she could still teach and it was her desire to attend training in Michigan that she sought leave.   The plaintiff did not address these issues, so the Court chose not to address them.    Instead, it rejected her argument that she was entitled to paid leave under the school’s policy when it did not normally provide such leave in similar circumstances.

To obtain paid leave under the FMLA, [the plaintiff] needed to show that [the employer] “normally provide[d]” this leave for those in her “situation[.]” Id. § 2612(d)(2)(B). But [the HR Director] testified that the guide-dog training did not fall within “the definition of sick leave” in the Ohio Revised Code, the collective bargaining agreement, or the school board’s sick-leave policy.  . . . . The district court thus held that [she] did not qualify for paid leave under the FMLA because she did not qualify for it under [the employer’s] sick-leave policy.

The Court rejected the argument that because the policy and statute did not define “due to personal illness” that this meant that it must be interpreted to incorporate guide dog training.  The Court instead agreed with the District Court that “due to personal illness” should be given its ordinary meaning.   While the symptoms of her serious medical condition could constitute a personal illness,  obtaining training when she was not incapacitated arguably could not.  Because, again, the plaintiff failed to argue this issue [that she required the training because of her serious health condition], thus giving the employer the opportunity to respond, the Court refused to raise the issue on its own initiative.   Nonetheless, it pointed out that this was an issue which could be argued in the future by other litigants. 

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 Affirms Jury Award for Sexual Harassment Where Plaintiff Awarded $179K and Her Attorneys $480K.

Yesterday, the Sixth Circuit affirmed a jury and attorney’s fee award in a sexual harassment case where the jury agreed that the plaintiff had not been fired in retaliation for her complaints, but still awarded her $314 in back pay, awarded her $179K in compensatory damages (for emotional distress) and the trial court awarded her attorneys over $480K in fees (while rejecting the request for $800K in fees).  Griffin v. Copper Cellar Corp., No. 25-5786 (6^th Cir. 5/5/26).   The Court found that the $314 amount was based on the defense’s own arguments and was presumptively entitled to be awarded in a hostile work environment case to make the plaintiff whole.  It found her testimony of emotional distress sufficient to support the compensatory damage award.  Finally, it concluded that her attorneys’ rejection of the offer of unconditional reinstatement and $25K for settlement was ultimately reasonable when it obtained seven times that much at trial.

According to the Court’s opinion, the plaintiff was being grossly and frequently sexually harassed by a restaurant co-worker.  Her employer failed to stop the behavior and was  unsympathetic, even laughing at her.  The employer offered her unconditional reinstatement five weeks later and $25K to resolve her complaint, but it was rejected by her attorneys.  At trial (which had been bifurcated between liability and damages), the employer apparently successfully argued that she had not been fired as alleged and at best would be entitled to no more than $314 in backpay, which is what the jury awarded to her.

The employer challenged the back pay award of $314 because the jury had determined that the plaintiff had never been fired as alleged.  Thus, if she voluntarily resigned, she was not entitled to any back pay.   The Court did not believe that this challenge was timely, but agreed that timeliness had never been raised by the plaintiff or at the trial court level.  In any event, not only did the defense fail to object to ANY award of back pay prior to the final verdict, it actually suggested in closing arguments that $314 was the most that the jury could award.   The defense also had failed to assert prior to the final verdict that only nominal damages would have been appropriate.   The Court ultimately determined that back pay is always a presumptively appropriate remedy in a hostile work environment case. 

Our cases establish that “successful Title VII plaintiffs are presumptively entitled to back pay” sufficient “to make them whole.”   . . . In deciding on an award of back pay, a jury considers “what the claimant would have received but for [the] discrimination.” . . . . We have, moreover, recently upheld awards of back pay on hostile-work-environment claims in cases that, like this one, lacked an express jury finding of discriminatory or retaliatory dismissal . . .  To be sure, an award of back pay typically flows from a jury’s finding of discriminatory, retaliatory, or constructive discharge.  . . .  But we have never held that such a verdict is required as a foundation for an award of back pay. Here, the district court determined that the evidence introduced was sufficient for the jury to find Copper Cellar’s Title VII violations “responsible for [Griffin] leaving her employment,”  . . .  and, therefore, that the award of back pay reflected “what [Griffin] would have received but for” the hostile work environment. . . .  Such an award would not, under our existing precedent, constitute a clear error of law, and thus the district court did not abuse its discretion.

The Court also rejected the argument that the plaintiff was only entitled to nominal damages because simply “being upset” by the co-worker’s behavior was insufficient to justify such a large award.   The Court cited to the plaintiff’s testimony about how upset she was and her physical and mental manifestations.  “All told, a jury considering and crediting [the plaintiff’s] testimony could reasonably find that [the employer’s] hostile work environment caused her substantially more than nominal harm.”  The Court also could not find the award to be excessive in light of the harassment and isolation she suffered. “Though we are not convinced that only a “particularly sensitive” plaintiff would suffer harm from the treatment [she] described, her exact degree of sensitivity is beside the point where, as here, the record is not “devoid of any evidence of intangible emotional loss to justify a large non-economic award.”

The plaintiff’s attorneys had requested $800K in fees, but were awarded $480K.  The employer argued that they should not have been entitled to fees when they had rejected a settlement offer of $25K and unconditional reinstatement within weeks.  The Court found no abuse of discretion. 

It is true that “a spurned [settlement] offer might warrant a reduc[ed]” fee award, because “[f]ew, if any, reasonable litigants would call a monetary judgment that comes in well under the money offered to settle the case a success.”  . . .  The problem for [the employer] here is that the $179,000 in damages [she] received was not “well under the money offered.” Id. Quite to the contrary, [her] attorneys convinced a jury to award more than seven times what [the employer] was willing to settle for. Therefore, even ignoring that “a rejected settlement offer” is only one among the “broad constellation of factors a trial court may consider” in awarding fees, this is not a case in which “‘a less favorable recovery after trial’” could justify a reduced fee award.

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 Entertains New Questions About Shortening OCRA Limitations Period By Contract

Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment dismissing the former employee’s OCRA sex discrimination and retaliation complaint as untimely under the shortened limitations period in her employment agreement.  Toth v. Rocket Mtge., L.L.C., 2026-Ohio-926.    The Court found that the trial court had failed to assess whether Michigan or Ohio law applied and whether the most recent amendments to Chapter 4112 would affect the enforceability of the shortened limitations period if Ohio law applied.

According to the Court’s opinion, the plaintiff alleged that she had always worked from home in Cuyahoga County and had been terminated in September 2021 on account of her sexual orientation and prior complaints.  She filed a Charge of Discrimination with the OCRC in May 2023 and her lawsuit in February 2024.   The employer moved to dismiss and converted it to a summary judgment motion on the grounds that her offer letter required her to report and visit its Detroit headquarters and employment agreement contained a Michigan choice of law and venue provision and contained a provision limiting her to bringing claims within one year.   The trial court agreed that the complaint was untimely and dismissed it. She appealed.  While agreeing that such shortened limitations periods have traditionally been enforced, when reasonable, the Court of Appeals reversed and remanded it to the trial court to make choice of law and venue findings.

The relevant employment agreement provided that claims must be filed within one year in the county where the employee was employed:

Limitation Period and Venue. You must assert any claim against the Company or its current or former employees, officers, owners, or agents, within 1 year after your claim arises or within the applicable statutory limitations period provided by law, whichever occurs first. Your failure to do so shall act as a bar to any claim that you may have. Claims must be asserted in the state court located in, or the federal court that has jurisdiction over, the county in which you are or were employed by the Company.

The Agreement also provided that the Agreement would be interpreted under Michigan law.

Assuming that the trial court believed the limitations period was enforceable whether Ohio or Michigan law applied, it dismissed the claims as untimely without conducting a choice of law analysis.   The appeals court found this to be premature and engaged in an extensive discussion about choice of law principles.   While the agreement required it to be interpreted in accordance with Michigan law,  this provision “does not evidence an intent to subject tort claims or other types of claims between the parties to Michigan law.”   Employment discrimination claims are more like tort claims.  This means that Michigan law may not be applicable since its choice of law provision only applied to contract interpretation and not statutory or tort claims.

In this case, the trial court failed to conduct a choice-of-law analysis to determine whether [the plaintiff’s] statutory employment-discrimination claims were properly brought under R.C. 4112.052 or instead governed by Michigan’s analogous employment-discrimination statute. The trial court’s failure to perform this analysis is significant. Without this threshold determination, the trial court could not definitively say whether the one-year contractual-limitations period contained in [her] Employment Agreement was enforceable.

Materially different considerations apply to the enforceability question depending on which state’s substantive law governs [her] claims. If Ohio law governs [her] employment-discrimination claims, the trial court will have to consider how recent amendments to R.C. Ch. 4112 — known as the Employment Law Uniformity Act (“ELUA”) — affect the enforceability of the statute-of-limitations clause, if at all. Prior to the ELUA, this court upheld contractual provisions shortening the limitations period for employment-discrimination claims brought under R.C. Ch. 4112.  . . . . However, the ELUA materially altered the statutory scheme. Among its most consequential changes, the ELUA (1) imposed an administrative-exhaustion requirement, mandating that claimants first file a charge of discrimination with the OCRC and exhaust administrative remedies before initiating a civil action for damages, see R.C. 4112.052(B)(1)(a), and (2) established a two-year statute of limitations for employment-discrimination claims, which tolls during the pendency of the OCRC process, see R.C. 4112.052(C)(1). Ohio courts have not yet assessed the impact, if any, of these changes on the enforceability of contractual limitations periods. But see Logan v. MGM Grand Detroit Casino, 939 F.3d 824, 828-829 (6th Cir. 2019) (holding that the contractual provision setting a six-month limitations period was unenforceable as applied to the plaintiff’s federal-discrimination claims brought pursuant to Title VII which, like the ELUA, imposes a mandatory administrative process and includes a limitations period directly in the statute). (bolding added for emphasis).

On the other hand, if Michigan law governs [her] employment discrimination claims, as the Michigan Supreme Court recently explained, contractual provisions in employment agreements that impose reduced limitations periods are enforceable only if they are reasonable.  . . .  Under Michigan law, the reasonableness of a contractually shortened limitations period is assessed by considering three factors: (1) whether the reduced limitations period in the contract affords the claimant a sufficient opportunity to investigate and file an action; (2) whether the time limitation is so short as to effect a practical abrogation of the right of action; and (3) whether the action would be barred before the loss or damage can be ascertained. . . .

The appeals court rejected the plaintiff’s argument regarding venue and the trial court had never ruled on it. “We do, however, note that on remand if it is determined that venue is not proper in Cuyahoga County but is proper in Michigan, then the Michigan court has authority to make the choice-of-law determination, using that law that applies to that forum.”

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 Court Finds Former Employee In Contempt for Refusing to Remove Employer's Confidential Information From Website

Last week, the Cuyahoga County Court of Appeals affirmed a contempt order against a former employee who posted confidential and trade secret information of his employer on his website for pecuniary gain in violation of a prior non-disclosure agreement and in violation of an agreed/consent order entered by the trial court after a preliminary settlement conference.  Combs v. Sherwin-Williams Co., 2026-Ohio-562.  The plaintiff argued that his attorney did not have authority to agree to the terms of the consent order, but the court of appeals disagreed.   Refusing to consider his substantive challenges to the order because the TRO and PI were not final orders at that time, the Court found that the employee had failed to show why he should not be held in contempt for violating the agreed/consent order. 

According to the Court’s opinion, the plaintiff filed a complaint against the employer alleging, among other things, breach of contract and tortious interference.  The employer filed similar counterclaims as well as conversion, unjust enrichment, theft of trade secrets and conversion.   In particular, the employer alleged that the plaintiff’s severance agreement contained non-disclosure terms that he violated by posting its trade secrets and confidential information on a personal website for personal monetary gain.   After he refused to remove the information, it filed for a temporary protective order, which he opposed, largely on the grounds that the information was not confidential.   The attorneys and court held a conference, where an interim order was entered agreeing to at least temporarily remove the employer’s information pending an evidentiary hearing on the merits, and scheduled settlement conference.   

However, the plaintiff refused to remove the information and, after initially opposing the employer’s motion for contempt,  his attorney withdrew representation.  The plaintiff continued pro se.  Another settlement conference was held (after much drama) and the case again was not resolved. An evidentiary hearing was held on the motion for contempt and TRO.   The trial court found the plaintiff to be in contempt of the order, granted both a TRO and preliminary injunction and the plaintiff appealed.  The Court of Appeals refused the appeal of the TRO and PI because they were not final orders, but affirmed on appeal the contempt order.

An “agreed order” or “consent order” is based upon the agreements reached by the parties and is considered a contract between those parties as well as an order of the court. . . . Moreover, courts have held that “‘[i]t is beyond question that a duly authorized attorney may enter into an agreed judgment entry[,] the terms of which will be binding on his or her client.’”

In opposing the contempt motion, the plaintiff had focused entirely on the merits of the allegations – challenging that the information was confidential and trade secret – and not on whether he was bound by his former attorney’s in-court agreement:

[Plaintiff] claims that he was excluded from the status conference and his “coerced attorney[’s]” approval of the order should not be akin to his consent. However — despite numerous filings and the opportunity to offer testimony and present evidence at the show-cause hearing — [he] presented no evidence that he was unaware of his counsel’s strategy for the status conference or the May 1, 2025 order issued thereafter. Nor did [he] offer any evidence to establish that he did not approve of or agree to that strategy or the conditions set forth in the order. Without any testimony or evidence indicating that his attorney was not authorized to enter into such an agreement at the status conference or that [he] had no knowledge of the May 1, 2025 order, we decline to find that [he] was not bound by its terms. Since [he] did not challenge the allegation that he “blatantly disregard[ed]” the terms of the May 1, 2025 order by failing to remove any information from his website or otherwise rebut [the employer’s] initial showing of contempt, the trial court did not abuse its discretion when it found [him] in contempt of court.

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 Enough Is Enough: Sixth Circuit Affirms Dismissal When Employer's Actions and Belief Were Sufficient

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment dismissing a workplace harassment and retaliation claim.  Hamm v. Pullman SST, Inc., No. 25-1617 (6^th Cir. 2-12-26).   The plaintiff alleged that he was harassed by his co-workers and the construction superintendent and then was fired in retaliation for complaining.  The Court found that the employer’s actions to respond to his complaints were sufficient based on the information provided and his repeated failure to accept alternative work assignments gave the employer an honest belief that he was not interested in continuing his employment, justifying his termination. 

According to the Court’s opinion, the plaintiff was hired by the construction manager and reported to the superintendent.  After a few months, he mentioned that he was bi-sexual to a co-worker, who told others.  Starting in November, he was called derogatory names by his co-workers and the superintendent.   He finally reported to the manager in mid-February that unnamed co-workers were calling him homophobic slurs, but did not mention that he was bi-sexual.   Thinking it was merely a personality conflict, the manager spoke to the crew and the problem was resolved for a couple of weeks.  However, when it started again, he complained again to the manager in mid-March about two co-workers and the superintendent referring to him with homophobic slurs.  The manager said he would take care of it, still without any knowledge that this was a sexual harassment complaint because of the vagueness of the complaint.  The plaintiff claimed that the mistreatment continued, culminating in him leaving the worksite never to return on April 29 because of an anxiety attack.

He finally formally reported the problem on April 29 to HR, which conducted a thorough investigation.  Everyone – including the allegedly neutral witnesses – denied his allegations, except for the superintendent losing his temper with him on April 29.  Instead, he was described as lazy.   The superintendent was formally warned.  All of the supervisors were required to submit to anti-harassment training and the employees were required to re-read and re-sign the anti-harassment policy.  Nonetheless, the plaintiff refused to return to work and began a medical leave for his anxiety.  Throughout the month of May, he was offered five different re-assignments to different work locations, but he objected to all of them for reasons other than his medical leave or anxiety.  While he never technically refused, he never accepted them either and had secretly recorded at least one of job offers.   After twice extending his medical leave, he inquired about returning to work and was told that his employment had been terminated.

The Court declined to address a number of potential issues and others the parties chose to not dispute, including whether this constituted harassment prohibited by Title VII, whether the periodic comments were sufficient to create a hostile work environment, etc.

The Court rejected the argument that the employer was automatically liable for any comments by the superintendent because the plaintiff failed to produce any evidence that the superintendent took or could take any tangible employment actions, making him a supervisor whose actions would bind the employer. Instead, the superintendent was treated as a co-worker.

Employers are only held liable for co-worker harassment if it was negligent – i.e., it knew or should have known about the harassment and unreasonably failed to stop it. 

Or, as our own caselaw puts it, the employer’s response must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.”  . . .  If, then, an employer takes “prompt and appropriate corrective action” after learning of the harassment, employees cannot tie the harassment to the employer.  . . .

The Court concluded that the plaintiff failed to show manifest indifference by the employer.  The manager took immediate and effective action in response to his first (February) vague complaint (which had not identified any specific individuals because he had not wanted to get anyone in trouble).   The manager’s action about the second (March) complaint were still deemed sufficient since the plaintiff still had not provided information indicating that this was a sexual discrimination issue.   The HR Department conducted an immediate investigation which failed to corroborate his allegations and was not required to believe him, particularly when none of his own witnesses corroborated his allegations.  Moreover, the employer took action in any event to prevent future harassment, including training and counseling.  When the manager learned the details of the problem in early May, he immediately agreed to reassign the plaintiff and approved the medical leave and extensions.  He also offered the plaintiff alternative assignments which addressed his stated objections.

The Court rejected the plaintiff’s arguments that he had never actually refused the alternative work assignments.  However, based on his own secret recordings of the conversations, it was clear he had raised objections and never actually accepted the job offers.  Thus, the employer had an honest belief that he had rejected them:

And during the call with [the manager] (that [the plaintiff] secretly recorded), [the plaintiff] said he was “not at all” good at this type of work.  . . . [His] response to this offer came as close to an express denial as it could. All this said, we agree that [he] did not expressly deny most of the jobs. For example, he did not say “No” to driving to Toledo or Cincinnati. Rather, he asked a question: “Isn’t that a hike?”  . . . .  And he did not say “No” to the overhead demolition work; he simply said that this work “hurts [his] shoulder.”  . . .  Given his clear reluctance to take these jobs, we doubt that any reasonable jury could rely on this lawyerly argument to prove [the employer’s] pretext.

At day’s end, though, we need not resolve this debate over whether [the manager] made formal offers or whether [the plaintiff] gave formal denials. When an employee claims that an employer’s reason for an adverse action had no basis in fact, the employer does not need to prove that reason in court.  . . . . It just needs to prove that it held an “honest belief” that the reason was true.  . . . . . So, for example, an employer who fires an employee for fraud does not need to establish that the employee committed the fraud—just that it honestly believed the employee did so.  . . . .  And the employee cannot show pretext merely by showing that the reason was false.  . . . .. This rule applies here. Whether or not [the plaintiff] actually declined these many offers, [the employer] at least held an “honest belief” that he did.  . . .  And [his] “own assertions” that he never denied any assignment do not suffice to overcome this honest-belief rule.

The Court also rejected the plaintiff’s argument that he was not required to accept the alternative assignments because he was on medical leave.  He never once raised his medical leave or his anxiety as a reason that he rejected the five possible re-assignments.  Instead, he “raised concerns that the worksite was too far away, or too high in the air, or too demanding on his shoulders, or too late in the day given other appointments.” Moreover, the assignments were offered before he extended his medical 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.

Divided Franklin County Court of Appeals Finds Noose By Itself to Be Sufficiently Severe for Hostile Work Environment

Last week, a divided Franklin County Court of Appeals reversed an employer’s summary judgment on racially hostile work environment and retaliation claims.  Croley v. JDM Servs., L.L.C., 2025-Ohio-4762.  The Court found that the existence of a noose in a vehicle temporarily assigned to a new African-American employee on his second day of work by itself – without any racial comments or other  evidence – was sufficient to create a jury question whether it was intended to harass and intimidate him on account of his race.  Similarly, the later spontaneous shattering of  his assigned vehicle’s windshield – with a pre-existing hole in it – was also sufficient to create a jury question whether it had been shot out without any other evidence of a gun or bullet fragment.  Finally, the employer’s termination of the employee for refusing to permit a sample to be taken from the noose to compare to other rope on the worksite during its investigation of his allegations was found create a jury question of retaliation when the employer had not already gathered rope samples before the employee’s refusal based on his mistrust of the employer.  The Court conceded that there was sufficient holes in the plaintiff's case for a jury to rule in favor of the employer, but felt that the jury should make the decision instead of the trial court. 

According to the Court’s opinion, the plaintiff was hired on January 10 by the employer’s General Manager and began work on January 13. On January 14, the GM directed that the plaintiff be trained on the compacter, which he was by two different employees.  During a ride on the compacter, he grabbed a rope for stability, but did not find it helpful.  Later, while alone in the compactor, he realized that the rope was a noose hung from the rearview mirror and it made him extremely fearful.  He took the noose and hung it from the door of the employee trailer.   That night, he reported it to the employment agency and the next day, January 15, the GM questioned him about it, reiterated that the employer does not tolerate discrimination and commenced an investigation.  The plaintiff put the noose in his truck for safekeeping and refused to turn it over to the employer, although he did let them see it and inspect it.  The following week, the windshield of the vehicle he was operating had a small hole in it and then spontaneously shattered while he was in it.   He believed that the windshield had been shot out by a gun and saw the GM’s vehicle parked up the hill.   A few days later, he was again requested for the noose or a piece of it so that it could be compared to other rope at the work site during the employer’s investigation.  While he allowed the noose to be inspected in his presence, he again refused to turn it over or permit a sample to be taken and was fired for insubordination for impeding the investigation.

After the plaintiff was terminated, the owner reported him for making criminal threats against a co-worker, but the co-worker told the police that he did not feel threatened and nothing came of it.  The employee filed suit in October.  The trial court granted summary judgment to the employer on the discrimination, harassment and retaliation claims.  The Court of Appeals reversed the harassment and retaliation claims, finding sufficient evidence for a reasonable jury to evaluate.

While the Court’s majority conceded that many courts would not find the noose incident – by itself – to constitute a hostile work environment, it disagreed:

The noose is a symbol of this nation’s violent legacy against African Americans and brings them “ ‘the grim specter of racially motivated violence’ that continues today.”  . . . . The noose is “among the most repugnant of all racist symbols, because it is itself an instrument of violence.”

Historically, the noose is forever “linked to lynching, the Ku Klux Klan (“KKK”), and the murdering of thousands of African-Americans.” . . .

 . . . .

 . . . For the reasons above, we conclude the act of hanging a noose on the mirror of an African American’s vehicle is undoubtedly an unwelcome form of harassment based on race.

 . . . .

 . . .  The question becomes whether the act of hanging a noose on the vehicle assigned to an African American male, on his second day of work at the facility, is severe enough conduct to support a hostile work environment claim. We unequivocally answer this question in the affirmative.

 . . . .

 . . . Even in cases where the noose does not appear directed at a particular individual, given the noose’s dark legacy, a reasonable African American employee could be forever altered by such a visceral symbol in the workplace. African Americans who observe such a heinous symbol should not be required to explain the violent history of the noose and how it can invoke fear and anxiety. The threat of a noose is self-evident.3

The Court also believed that the window spontaneously shattering while the plaintiff was inside could also be considered by a jury as evidence of harassment even though no shell casings or bb or pellet was found afterwards that might have explained why it shattered.  It also rejected the employer’s explanation that windshields periodically shatter at the worksite because of the regular vibrations.

As the window incident occurred only a week after the display of the noose, we find, considering the evidence in a light most in favor of the nonmoving party, the incident amounts to threatening conduct that indicates a willingness to act on the statement made by the noose incident. Because the window incident amounts to a physical threat of violence, the implicit threat from the noose is heightened and, based on the close sequence of events, could reasonably be construed to have a racial animus. Finally, there is a dispute of fact as to liability as [the plaintiff] claims that [the GM’s] vehicle was in the immediate vicinity when the glass shattered.

The dissent, realizing that nooses exist for reasons other than lynching, required more evidence than the bare existence of a noose:

The dissent contends that “[o]ther than the noose, there are no credible allegations of any race-based comments or other activity involving race. The noose is not connected to any threatening intent or racial animus by [the employer].”

 . . . .

 . . . At this phase of the case, however, we are limited to determining whether a dispute of fact exists for trial. Given the line of cases that have found that the single display of a noose in the workplace can create a hostile work environment, we find it is the province of the jury to determine whether the alleged conduct in this case is severe or pervasive enough to demonstrate a hostile work environment claim. What the dissent proposes is that, as a matter of law, leaving a noose in the vehicle of an African American male does not constitute a severe enough act, without more, to create a hostile work environment. In good conscience, we cannot support such an approach. While a jury could very well find that the alleged incident was not severe enough conduct to create a hostile work environment claim, the argument that hanging a noose in the excavator that [the plaintiff] was assigned to operate could not, as a matter of law, sufficiently alter the conditions of employment for an African American is untenable.

The Court then found that the employer could be held liable for the noose incident because it was alleged (without any evidence) that the GM had put it there since he was the individual who had assigned the plaintiff to that vehicle on that date.   The Court refused to credit the employer with conducting an investigation – despite its employee interviews – because it had delayed a few hours in retrieving and safeguarding the noose and had not gathered rope samples before firing the plaintiff for refusing to permit a sample to be taken.

It is the province of the jury to resolve whether the [the employer] took reasonable steps to correct the alleged behavior. Furthermore, there is a dispute of fact whether [the plaintiff] unreasonably failed to take advantage of any preventative or corrective opportunities that the employer provided. The [employer] commenced an investigation into the matter and met with [the plaintiff]. [He] agreed to show them the noose but refused to leave the noose or allow it to be cut for comparison with other rope at the worksite. [He]  explained that he did not feel comfortable turning over the noose or allowing them to cut a piece of it because he did not trust [the owner]. It is for the jury to resolve these factual disputes.

The Court rejected certain evidence submitted by the plaintiff to support his hostile work environment claim because he was unaware of the incidents until after he had been fired.  For example, he had been written up (without his knowledge) for improper operation of certain equipment.  They also rejected the police report as part of this claim because it happened after his termination.  ““ ‘Plaintiff cannot use events that happened after his termination to support his hostile work environment claim.’ ”

The Court also concluded that he had produced sufficient evidence that his termination was retaliatory for complaining about the noose incident.   While generally employees may be terminated for refusing to cooperate with a workplace investigation, there are exceptions and the Court found the plaintiff’s distrust of his employer to be sufficiently protected conduct in this situation to let a jury decide whether his distrust was justified and protected.

Considering the evidence in a light most favorable to [the plaintiff], a jury could reasonably determine that turning over evidence to a supervisor you do not trust, or allowing that evidence to be damaged, is a reasonable nonparticipation in the investigative process. This interpretation is bolstered by the fact that when [he] initially informed [the GM] of the noose’s location outside the employee trailer, [the GM] failed to [immediately] retrieve and secure the noose. Furthermore, [the plaintiff], despite his trepidations, repeatedly allowed the noose to be inspected. A jury could reasonably believe [his] explanation that his claim could be hindered if the noose was damaged or not be properly preserved. Conversely, the [employer] have represented that they wanted the noose to aid in the investigation. Given the accusation at issue, there is at least a dispute of fact that [his] fears were justified.

In addition, the plaintiff met several times with the employer and answered their questions.  His only refusal concerned preservation of the integrity and safekeeping of the noose.  Moreover, his termination came only days after his protected conduct in reporting the alleged harassment.

We find that the [the employer] have provided a legitimate, nonretaliatory reason for terminating [his] employment. A reasonable jury could find that failure to turn over the noose, or allow it to be cut, unreasonably impeded the investigation providing a legitimate reason for termination.

The Court then required the plaintiff to show that the employer’s explanation was pretext for retaliation.

[The plaintiff] can demonstrate pretext by introducing evidence that he provided the noose on multiple occasions to further the investigation. [He] had also previously allowed [the GM] to take the noose when he left it outside the employee trailer. [The owner] had not collected any samples of rope from around the worksite to compare it with the noose, did not offer to keep the noose in a neutral location, and never called law enforcement to report the incident.  .. . .  A jury could reasonably believe [the plaintiff’s] explanation for not wanting to turn the noose over to the appellees or allow them to cut a portion of the noose.

There was no discussion in the Court’s retaliation opinion about post-termination conduct of the employer in reporting the plaintiff for alleged criminal threats.  There was also no discussion of the same-actor inference since the alleged harasser was also the same individual who hired him only days earlier.  There was no also discussion of the racial composition of the workforce, which might have put more context in the plaintiff’s paranoia.

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 Claims After Plaintiff's Public, Profane and Unprofessional Attacks on Colleagues

Last week, the Sixth Circuit affirmed an employer ‘s summary judgment on Title VII, Rehabilitation Act and First Amendment discrimination and retaliation claims brought by a professor after the plaintiff’s request to transfer to the main campus was denied.  Patterson v. Kent State Univ., No. 24-3940 (6^th Cir. Sept 12, 2025).   There was no evidence that plaintiff’s gender identity was ever discussed or considered in the decision.  The sole stray remark about the plaintiff’s mental stability  -- in light of the unprofessional comments being made -- was insufficient upon which to base a disability discrimination claim.   The employer had sufficient reason for its actions in light of the plaintiff’s unprofessional and profane attacks on colleagues, and resignation from service.   There was also no evidence that the decisionmakers were aware of any protected activities at the time of the decisions.  Finally, complaints about colleagues were not matters of public concern entitled to First Amendment protections. “Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

According to the Court’s decision, the plaintiff tenured professor requested to be considered to Chair a dormant Center that had been suspended pending a reorganization.  Although the position was not open, the Dean agreed to reallocate half of the plaintiff’s teaching load so that the plaintiff could develop new course material for the dormant Center if it were to be resurrected.  The plaintiff was contacted by the Chair of the School where the Center would be housed about joining the planning committee.  The plaintiff was unhappy that the Dean and Chair would be in charge of the Center and began attacking them – using profanity and derogatory terms about their gender – on social media and in emails to other colleagues. “So to sum up, Patterson condemned both Mazzei and Munro-Stasiuk as “transphobe[s]” and “cishet white ladies in charge, with [no] content expertise,” engaged in “F*ckery,” “shit,” “trans antagonism,” and “epistemic violence” who were “quite literally killing [me].”   After a few weeks of this and plaintiff’s refusal to meet and discuss the stated concerns, the Dean cancelled the planned teaching allocation.   The plaintiff did not respond, but cancelled “and instead resigned from university service commitments.”  The Chair issued general invitations to join the gender studies and Center committees, but the plaintiff did not respond.  Instead, the plaintiff bullied those who did join the committee through tweets and applied to transfer to the main campus.  The requisite committees held a joint meeting, discussed the plaintiff's resignation from service, negative interaction with faculty colleagues and the department’s need and voted 12-2 against the transfer request.  The Dean requested that they reconvene and vote separately, which they did.  The result was the same and the plaintiff’s gender identity was never mentioned.

Title VII Discrimination

The Court rejected the plaintiff’s argument that denial of the transfer request was direct evidence of gender discrimination when there was no evidence that the plaintiff’s gender identity was ever mentioned or discussed.   Because an inference of discrimination would be required, the decision could not be direct evidence in and of itself.

[The plaintiff] also points to the committees’ discussion of whether the English department needed more faculty with backgrounds in LGBT studies, claiming that this is direct evidence of discrimination. That argument conflates a professor’s scholarly discipline with a professor’s personal traits.  . . . . An Italian person may offer to teach Italian classes, but if a university doesn’t need more Italian classes, that’s not direct evidence of animus against Italian people. So there’s no direct evidence of discrimination.

The Court agreed that the denial of the transfer request could be an adverse employment action under Title VII because it inflicted some harm.   Nonetheless, the employer clearly had a legitimate and nondiscriminatory reason for its actions in revoking the teaching reallocation and denying the transfer request:

[The employer] had legitimate, nondiscriminatory reasons for what it did. [The plaintiff] sent rude and profanity-laced tweets, emails, and texts insulting [the Dean] and [the Chair], including disparaging references to their race, sex, and occupations. Those messages violated university policy against attacking colleagues or their academic fields. And they easily provided reasonable grounds—having nothing do to with sex or gender—for disciplining or reprimanding an employee. . . .

[The employer] also had legitimate reasons to deny the campus tenure-transfer application. The evidence shows that [the plaintiff’s] lack of collegiality and decision to quit university service committees played a part. The classes [the plaintiff] wanted to teach also didn’t fit with the main campus English department’s curriculum and needs at that time. And the department wanted to preserve its ability to hire a new tenure-track professor the next year; it worried that a lateral hire from a regional campus would use up that spot. This is standard stuff for tenure decisions.

The Court finally concluded that the plaintiff could not show that these explanations were pretextual – or a disguise - - for unlawful discrimination.  “A plaintiff can establish pretext in several ways, such as by showing that the defendant’s articulated reasons had no factual basis, didn’t in fact motivate the action, or could not warrant the action taken.  . . . But there’s no evidence here to support any of those theories.”

[The employer’s] decisions had ample basis in fact. The record contains many disparaging tweets, emails, and texts, which led to a toxic work environment. And that factual basis was more than enough to warrant some kind of response. [The Dean and the Chair] were both originally excited to work with [the plaintiff]. They only changed course after the hostile tweets and texts. The tenure-transfer rejection likewise bears no indicia of pretext. The same English department had voted to unanimously to grant [the plaintiff] tenure less than a year before. If the committee members were biased against transgender people, wouldn’t they have shown it then? What’s more, after the committees voted “no” on the first transfer vote, [the Dean] realized that they hadn’t followed the right procedures. So she had them vote again. If she was biased, why not just leave the “no” vote at that? Why erase the vote and give [the plaintiff] another shot? No evidence suggests that [the employer’s] true motivation was animus against anyone’s sex or gender identity.

Title VII Retaliation

The Court also rejected the Title VII retaliation claim.  It agreed that the plaintiff could show protected opposition activities:

First, an email to a university official, Amoaba Gooden, in which [the plaintiff] resigned as a university DEI representative and complained that [the employer] wasn’t a “safe or welcoming place for trans faculty.”  . . .  Second, an email to Professor M’Baye, the English department chair, in which [the plaintiff] stepped back from service on a university “DEI Strategic Planning Process.”  . . . . Third, an email to Kathy Davis-Patterson, another faculty member, in which [the plaintiff] reported on “inequity” and “transphobes” at [the employer].  . . . . Fourth, an email to Deb Smith, who worked with the faculty union. In this email, [the plaintiff] resigned as a union representative, citing “inequity and discrimination in the workplace” at [the employer]. . . .

However, the second email never mentioned any protected activity or opposition, but instead, cited only health concerns.   Therefore, it could not be a protected activity.  In addition, the plaintiff could not show that the Center position had been filled by anyone, so there was no adverse action there.  Moreover, some of the protected activities took place after the Dean had revoked the teaching reallocation.  Finally, the remaining emails were unknown to the Dean and the tenure committees.  when the teaching reallocation was revoked.    Therefore, they could not have motivated any retaliation.

First Amendment

As for the First Amendment claims, the Court found that the plaintiff’s derogatory tweets did not touch on matters of public concern, but rather  were “complaints about other Kent State faculty members and their workplace decisions—“employee beef,” plain and simple,” which are not entitled to First Amendment protection. “The tweets are insulting, disparaging, and targeted. They use profanities, and they describe [the Dean and Chair] in terms of their race and sex. Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

[The plaintiff] frames the tweets as publicizing [the employer]s alleged transphobia and exposing discrimination in the workplace. In fairness, a few tweets do make more general references that sound less like targeted insults. For example, one tweet states: “Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist.”  . . . . In isolation, perhaps that qualifies as protected speech.  . . . . But the tweet is swarmed on either side by other attacks on [the Dean and Chair]. Indeed, that same tweet’s very next sentence accuses [the Chair] of “violen[ce].”  . . . . A public employee can’t blend protected speech with “caustic personal attacks against colleagues,” and then use the protected speech to immunize those attacks. . . .

And even if the tweets did involve a matter of public concern, they still wouldn’t receive protection. [The employer’s] interest as an employer in administering effective public services outweighs Patterson’s interest in this kind of trash talk. . ..

There’s a way to raise awareness of discrimination without engaging in profanity-laced and race- and sex-based aspersions against colleagues. The tweets created serious strife within the [the employer] community, causing [the Dean and Chair] to feel harassed and insulted. And it led to a dysfunctional work environment for several months. [The Chair] had to text [the Dean], for example: “I’m really thinking continuing [having [the plaintiff] involved] is unhealthy for the potential program and school, at this point. It’s clearly already having an impact. I have concerns.”  . . . . [The Dean] also testified to how noxious things had gotten. “The foundation of [revoking the offer],” she stated, “was the toxic, hostile tweets that [the plaintiff] had been posting over the course of over a month . . . . [I]t was escalating, continually targeting [the Chair], in particular, continually targeting [other professors], to a certain extent myself.”  . . . . The Dean discussed how [the plaintiff] had “show[n] over, and over, and over again” a refusal to be collaborative or respectful and was “completely trying to undermine the process.”  . . . . In short, [the plaintiff] had compromised any “ability to lead any initiative” and any “ability to work in the Center, or the [major.]”

[The employer’s] business is educating students. When an employee seriously undercuts the university’s power to do its basic job, the Constitution doesn’t elevate the employee over the public that [the employer] exists to serve. All told, “[t]he First Amendment does not require a public employer to tolerate an embarrassing, vulgar, vituperative, ad hominem attack, even if such an attack touches on a matter of public concern.”  . . .  When “the manner and content of an employee’s speech is disrespectful, demeaning, rude, and insulting, and is perceived that way in the workplace, the government employer is within its discretion to take disciplinary action.”

Rehabilitation Act

Finally, the Court rejected the plaintiff’s disability discrimination claim at the prima facie stage because it was based on one stray comment where concern was expressed by another professor about the plaintiff’s mental stability.

This isolated comment is not the kind of evidence that courts have found satisfies the “regarded as disabled” definition. “Personality conflicts among coworkers (even those expressed through the use (or misuse) of mental health terminology) generally do not establish a perceived impairment on the part of the employer.”  . . . . [The professor’s] remark simply expressed her concern about [the plaintiff’s] uncollegial and unprofessional attitude. At most, it is a “mere scintilla” of evidence—insufficient to survive summary judgment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can 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 Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees.  Walden v. General Electric Int’l, Inc. No. 24-5141 (6^th Cir. 10/24/24).   The plaintiff could not show that he was qualified for the promotion when he continued to fail the test.  The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement.  The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not.   The  Court also rejected his speculative arguments that the younger employees did not complete the test by themselves. 

According to the Court’s opinion, the plaintiff had worked tool and die maker for decades, then accepted a job as machine operator with the defendant employer.  He later applied for a tool maker position which required at least five years of experience and promised the job to the qualified applicant with the most seniority.  However, the employer had agreed with the union several years earlier to require a passing 85% score on a written test which was jointly developed.  The plaintiff failed the test with only an 80% score (which had been rounded up), while two younger applicants passed with 100% and 92%.  The next month, the union and employer agreed to have a local community college develop and administer the test, which now had written and hands-on components.   They also lowered the passing score to 70%.   However, the plaintiff only received a score of 51%, which the other, younger applicant received a score of 69.6%, which was rounded up to 70%.  The plaintiff filed an EEOC charge, Unfair Labor Practice charge and sued bother the employer and the union.

The Court also rejected each of his arguments attacking the job posting and testing requirement. 

First, he asserts that taking the test was not actually a requirement because GE’s job posting did not mention it. But the posting says that it’s not exhaustive. After the posting lists certain minimum qualifications and a job description, a disclaimer states that any “classifications and definitions are merely for purposes of identification and general description and do not purport to be all inclusive or exhaustive of the actual requirements of any job so classified or defined.”  . . . . [He] parses these terms finely, arguing that the non exhaustive “classifications,” “definitions,” and “requirements” differ from “qualifications,” and so we should not read the disclaimer to apply to the posting’s “qualifications.” This argument fails because the posting on its face does not use these divisions strictly. For example, it states outside the paragraph labeled “Qualifications” that candidates must also have “satisfactory performance on their present job.” Id. That’s clearly a minimum qualification. And in any event, we have noted that “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to implement a testing requirement, multiple witnesses described how it did so, and the company made [him] aware of that when he applied.

The Court also refused to treat the job posting as a contract, which must be construed within its four corners under the parol evidence rule:

But though the CBA was a contract, the job posting was not. The CBA required GE to hire qualified candidates based on seniority, but it did not dictate which qualifications GE could set in the first place. Contract rules do not apply to discerning GE’s intentions with the job posting.

[He] probably means to say that the posting was an offer, one that he “accepted” by applying with the most seniority. But the posting wasn’t even that. At best, it was an invitation to be considered, or in contract-law terms, an invitation to offer, since nothing would have obliged GE to take any candidates.

The Court also rejected his argument that 80% should have been a passing score because the employer is entitled to set its own standards and he could not show that the employer had ever used a lower standard.  It also rejected his argument about subjective grading since not all answers perfectly matched the grading key verbatim and it also benefitted him at times since not all of his answers perfectly matched the answer key.

Yet he fails to acknowledge that GE graded the tests for substantive accuracy, not a verbatim match. [The supervisor] stated that he used his “professional judgment based on decades of relevant employment at GE Aviation, to determine when answers were substantively correct, even if they did not exactly match the language set out in the answer key.”

Finally, it rejected his argument questioning whether the younger employees completed the first test by themselves because the photocopies of the test had different levels of darkness in the written answers, some being dark black and some being gray.   This was particularly true when the other employee authenticated his test sheet and the plaintiff did not have any expert or other evidence to contradict that authentication. 

It’s true that a few of [one employee’s] letters appear more grey while the rest appear black, but the same is true of the other tests in the record. When we look at those tests, the same slight differences in color gradation show up. Keep in mind that we can see only digital copies of the original documents on our electronic docket. To support some alternative, nefarious explanation that would account for all the tests, [the plaintiff] would have to claim (and provide evidence) that [the supervisor] rigged each one, not just [his]. This [the plaintiff] has not done. That a bit of color was lost in electronic translation does not support an inference of discrimination.

The final five answers on [that employee’s] test similarly provide no evidentiary basis for questioning the test’s integrity. Though the writing appears in grey, that alone would not permit a reasonable jury to infer that [he] did not complete the test. Perhaps if GE claimed that [he] wrote only with a black pen, and a few answers appeared in red ink, then a court could conclude from the document’s face that a jury could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th 563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a document with multiple redlines and electronic comments could be authenticated). Not so here. GE’s position is not that [he] couldn’t have used different writing utensils, say, a pen on the first sitting and a pencil on the second. It’s merely that [he] completed the test. So nothing [the plaintiff] gives us contradicts GE’s position.

                   . . .

[The plaintiff’s] argument, at bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he] would have to prove that the document is what he claims it is—the work, in relevant part, of someone other than [that employee]. And since GE has put forth [that employee’s] testimony recognizing the handwriting, [the plaintiff] has to convince us that he would have something in response. He doesn’t. He gives us nothing concrete to work with, such as an expert analysis or another handwriting sample for comparison, that could contradict the sworn testimony of [the employee and the supervisor].

As for the second test, the Court rejected his argument that the younger employee did not meet the minimum qualifications because he had been a tool shop supervisor and not a regular employee.

The Court also rejected his claims against the union for refusing to take his losing case to arbitration. 

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.

A Tale of Two FCRA Reports

This week, the Sixth Circuit addressed the Fair Credit Reporting Act in two different opinions.  In the first, the Court found that Experian violated the FCRA when it failed to investigate or clarify a consumer report about outstanding child support obligations after the consumer provided it with evidence from the court that he owed no outstanding child support obligations.  Berry v. Experian Information Solutions, Inc., No. 23-1961 (6^th Cir. Aug 19, 2024).    In the second, the Court found that the job applicant could not sue an employer for failing to provide him with a copy of his complete consumer report after it provided him with a copy of the partial (and accurate) report when he could not identify how he would have acted differently or been able to cure his prior failure to self-disclose a conviction. Merck v. Walmart, Inc., No. 23-3698 (6^th Cir. Aug. 20, 2024). 

In Berry, the plaintiff paid his wife directly instead of through the state agency, which recorded a deficiency.  When they reconciled, he obtained a court order that abated the non-existent support debt.  However, he was denied student loans because Experian reported information from the still-inaccurate state government database.  He sent copies of the court orders to Experian, which continued to rely on the state database and did not update its report.  He sued alleging that Experian negligently or willfully continued to report inaccurate information in violation of the FCRA.  The district court granted Experian judgment on the pleadings because it was required to report the state agency’s findings.  However, the Sixth Circuit reversed “[b]ecause [the plaintiff] sufficiently pleaded that Experian did not adopt reasonable procedures to ensure maximum possible accuracy and did not reasonably reinvestigate [his] consumer report after he challenged its accuracy.”  Consumer Reporting Agencies

must “adopt reasonable procedures” for reporting, see id. at § 1681(b), that “assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). If a consumer disputes a report’s accuracy, the CRA must “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the [consumer’s] file.” 15 U.S.C. § 1681i(a)(1)(A). If a CRA negligently or willfully violates the accuracy mandate, the consumer may bring suit. Id. at § 1681n (allowing private right of action for willful noncompliance); § 1681o (same for negligent noncompliance). Relevant here, the FCRA states:

Notwithstanding any other provision of this subchapter, a consumer reporting agency shall include in any consumer report furnished by the agency in accordance with section 1681b of this title, any information on the failure of the consumer to pay overdue support which— (1) is provided—

(A) to the consumer reporting agency by a State or local child support enforcement agency; or

(B) to the consumer reporting agency and verified by any local, State, or Federal Government agency.

15 U.S.C. § 1681s-1.

The Court found that to prevail on a claim that the CRA failed to have reasonable procedures to assure maximum possible accuracy, the plaintiff must plead and prove that the information is inaccurate.

An inaccuracy in a consumer report occurs when “a CRA report[s] either ‘patently incorrect’ information about [the consumer] or information that was ‘misleading in such a way and to such an extent that it [could have been] expected to have an adverse effect [on the consumer].’” . . .  In other words, a consumer can demonstrate an inaccuracy where a report was materially misleading or incomplete, even if it was technically accurate. Consequently, “accuracy” under the FCRA encompasses truthfulness and completeness.

Because the FCRA is designed to promote accuracy, “false impressions can be just as damaging as false information.” . . . For example, in Twumasi, the plaintiff Uber driver was fired after the CRA reported to Uber that the plaintiff had been involved in three car accidents.  .. .  While the Ohio Bureau of Motor Vehicles (BMV) furnished information to the CRA that did demonstrate that the plaintiff had been involved in three accidents, the BMV did not include a police report and court document adjudging him not at fault for two of the accidents.  . . . Although the plaintiff submitted this counter-evidence of his lack of fault to the CRA, the CRA did not change his consumer report.

Similarly, in this case, “Experian’s [alleged] omission of the court orders and its failure to inquire further resulted in a consumer report that was “‘misleading in such a way . . . that it [could have been] expected to have an adverse effect . . .’”

That being said, a dispute ensued about whether Experian was required to remove the state report or merely supplement or clarify it with the court order.  The Court agreed that Experian need not remove the allegedly erroneous state agency report.  The dissent/concurrence indicated that the plaintiff had waived the supplement theory argument, thus losing the appeal.  However, the majority remanded the case back to the district court to consider the supplement theory.    In practice, this means that the plaintiff may still not have been able to obtain student loans with ambiguous information and he should focus his efforts on clearing his credit with the state agency.  

In Merck, the plaintiff “applied to work at Walmart, [but] he forgot to disclose an old misdemeanor conviction.”  He was given a job offer conditioned on passing a background check.  “Before an employer can take any adverse action against a prospective employee based on a negative consumer report, the Fair Credit Reporting Act requires that the employer provide him with a copy of the report.”  The plaintiff was provided with “an incomplete version of the report that listed his misdemeanor and indicated he was “not competitive” for a job at Walmart” -- because of the failure to previously disclose the conviction.   He was provided with information to dispute the accuracy of the report, but did not do so. Unlike the plaintiff, Walmart was also informed that he had not self- disclosed the conviction. He alleged that he would have at least questioned the matter if had known it was the failure to self-disclose instead of the prior conviction that caused him to lose the job.     The Court found that he lacked sufficient injury from the incomplete report to sue Walmart when he did not identify how he would have changed the result and the undisputed evidence showed that he could not change the result. 

Walmart acknowledged that if [the plaintiff] had initially disclosed the misdemeanor, he would have been scored a “Competitive” applicant. But a Walmart employee also testified that, because the background report contained accurate information about his conviction, his only option under then-effective Walmart policy was to reapply—in other words, he could not have changed the outcome by explaining the mistake. And although [the plaintiff] argues that there is “uncertainty” about Walmart’s exercise of its “final hiring authority,” see Reply Br. 22, he doesn’t point to any specific evidence in the record suggesting Walmart would have acted contrary to its policy had he been able to explain his mistake.

In fact, he applied several more times and did not even receive an interview, let alone a job offer.   Walmart only kept applications for 60 days and no local store employees knew about his failure to self-disclose, which had only been reported to corporate HR.  He also sued the CRA for disclosing an old conviction that was more than seven years old and settled with it.   

He then sued Walmart in a class action almost 4 years after he had first applied on the basis that it violated the FCRA by failing to provide him and all other job applicants a full copy of the consumer report upon which it relied.  The district court dismissed on the grounds that the alleged informational injury was not actionable because “(1) the report was not inaccurate, and (2) Walmart testified that it would not have hired Merck even if he had been able to explain that he had mistakenly omitted the misdemeanor from his paperwork.”  In short, he failed to show that he suffered an injury the statute or constitution are designed to remedy.  “Under constitutional standing doctrine, an “injury in fact” is an “invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not conjectural or hypothetical.”  The Constitution “requires a concrete injury even in the context of a statutory violation.” In other words, “plaintiffs do not have standing to assert “bare procedural violation[s], divorced from any concrete harm.”

“[T]o have standing for an informational injury, a plaintiff must allege those two elements: (1) adverse effects that (2) result from the denial of information.”  After discussing a number of analogous cases, “this boils down to a fine line between an injury involving merely the denial of information subject to mandatory disclosure by statute—insufficient for standing—and a denial of information that causes “downstream consequences”—sufficiently concrete to establish standing.”

 . . . . The denied information must specifically relate to some negative outcome that the plaintiff suffered because he was unable to use that information to his benefit. So, to show standing at summary judgment, [the plaintiff] must point to specific evidence tending to prove that he has an interest in using the withheld information—the fact that he wasn’t hired because he failed to disclose his conviction—for some purpose beyond his statutory right to receive it.  . . .  In other words, his interest in using the withheld information must extend beyond simply suing to vindicate that interest.

In this case, the plaintiff did not and could not show that being informed about the code given to Walmart -- but not to him -- about his failure to self-disclose his prior conviction would have changed the result to his benefit.   

First, and perhaps most importantly, Walmart argues that its policy meant that it would not have reconsidered its initial decision not to hire him based on his failure to disclose the misdemeanor. And Walmart’s argument is supported by the record.  . . .  More to the point, [he] fails to carry his burden to identify any evidence in the record suggesting otherwise. On appeal, he argues there’s “uncertainty” about whether his first application could have “gone differently” had he known about the true basis for his rejection.  . . .  But that’s not enough. He needed to identify specific evidence that he could have used the denied information to create some material benefit (or avoid some adverse consequence) to himself—and, given the record, he could not have used the information about the self-disclosure code to change anything about the result of his first application.  . . .  So he fails to show he suffered any downstream consequences from Walmart withholding the “R3” code during his first application and rejection.

Similarly, [he] points to nothing in the record indicating that he would have used the withheld information to do anything differently during his second and third applications to work at Walmart. Very helpful to [his] case would have been evidence that Walmart in some way relied on [his] lack of an explanation to reject his later applications outright before allowing him to fill out a new criminal history addendum. Indeed, if there were some evidence to that effect, [he] likely would have a forceful argument that the withheld information materially affected the outcome of those applications. After all, in any later calls to Walmart, he could have attempted to correct that misimpression.

But during discovery, [he] apparently couldn’t uncover any evidence that Walmart rejected his later applications because of his failure to disclose the misdemeanor. And the evidence that we do have suggests that [his] first application had no bearing on the later ones. A Walmart employee testified that Walmart retained employment application information for only sixty days. Walmart also points to a policy indicating that the self-disclosure code was “used by” human resources “only and is not relevant to the hiring manager” at the store “or the candidate.”  . . .  Walmart argues that store employees would not have known what these codes meant. And [he] points to no record evidence refuting that. So it seems that even if [he] had known about the true basis of his first rejection, the record before us suggests he couldn’t have used that information to improve his chances for his second and third applications at Walmart. If his first application had no bearing on his later ones, we simply can’t say why he didn’t get interviewed the second and third time around. [his] burden was to show the reason related to the withheld information. He has not met that burden.

Finally, [he] argues that he has a general interest in understanding “why his job application had gone wrong at Walmart” because he was searching for other employment at the time.  . . .  Abstractly, this interest is compelling. But again, [he] fails to point to any evidence in the record that he could have used the denied information to do anything differently. He might be in a different position if he introduced proof that he declined to apply to other positions because he worried that his misdemeanor might bar him from being hired or spent more time unemployed than he otherwise would have if he had known that the true issue was merely his failure to disclose. But he cannot point to any supporting evidence in the record. Other than a passing reference to feeling like a “failure” after his rejection from Walmart,  he identifies nothing to suggest any material harm that resulted from the denial of information. Indeed, he applied for one other job after being rejected. He disclosed to the employer that he had a misdemeanor conviction. He got the job. And he timed the start of his job so that he had no gap in employment.

[He] makes no mention of anything that he could—or would—have done differently to find employment had he known the true basis of his Walmart rejections. Logically, it seems that he did exactly what he should have done, had he known about the self-disclosure code—disclose the conviction to the new employer before being hired. And he got hired. As above, [he] fails to identify any evidence in the record that he could have used the withheld information to do anything differently during his job search.  . . . So he has not suffered any downstream consequences to his broader job search, either.

The Court also rejected his argument that he was injured from denial of procedural due process. “A private employer—even in a contract with one of its employees—cannot alone create the kind of “legitimate claim of entitlement” to a property interest that the state has the power to confer.”

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.