On December 19, 2007, the Sixth Circuit reversed summary judgment in favor of an employer where the female plaintiff had been laid off one day after a male employee was hired onto her work crew and she was never rehired even though the employer’s workforce increased overall by twelve laborers in the plaintiff’s division. Vincent v. Brewer Co., No.06-4138 (6th Cir. 12/19/2007). The district court had dismissed the case on grounds that her male replacement was more qualified, and thus implied that she was not sufficiently qualified for her position as required to meet her prima facie case. However, the Sixth Circuit noted that a plaintiff need only prove that she was replaced by someone outside the protected class and need not show that the replacement was less qualified, or even as qualified, as she. She would only need to show that she was similarly qualified to a similarly-situated male if she was claiming different treatment instead of being replaced by a male.
The employer had also argued it had not discriminated against the plaintiff because it had laid off other employees at the same time as her and that she had a history of misconduct. However, the Court noted that there was sufficient potential evidence of pretext in that, among other things, (1) the other employee were laid off were temps, unlike the plaintiff; (2) there was evidence of numerous sexist comments by the decisionmaker and other managers; (3) she had received several favorable performance evaluations and been promoted in the past; (4) her co-workers claimed that she was very productive; and (5) there was little temporal proximity between her layoff and the prior instances of misconduct. Therefore, there was enough of a factual dispute in the evidence for a jury to decide whether the plaintiff had been laid off on account of her sex as she claimed.
Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/064138p.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
Thursday, December 27, 2007
Ohio Supreme Court: Although Employers Still Cannot Retaliate, They Can Terminate Employees Receiving Workers’ Compensation for Other Reasons
On December 20, 2007, the Ohio Supreme Court “clarified” (although some may say partially reversed) its 2003 decision in Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357. The Court now holds that that “an employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act” and limits the Coolidge decision to teachers who are both receiving workers compensation and are covered by O.R.C. § 3319.16. Bickers v. W. & S. Life Ins. Co., Slip Opinion No. 2007-Ohio-6751.
In Bickers, the at-will plaintiff had not been provided with a light duty assignment and, instead, had been terminated while receiving temporary total disability payments as a result of a workers’ compensation injury. She did not file a claim for workers’ compensation retaliation under O.R.C. § 4123.90 (which has a short limitations period), but instead, filed a public policy wrongful discharge claim. In essence, she argued that even if she wasn’t fired in retaliation for seeking workers’ compensation, it violated the public policy of the state of Ohio to fire an employee while receiving workers’ compensation benefits. The trial court dismissed her claim, but the appellate court reversed. After all, the Ohio Supreme Court had previously held in the Coolidge syllabus that “[a]n employee who is receiving temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition.”
After acknowledging the receipt of much criticism for Coolidge, the Ohio Supreme Court now holds that the Coolidge decision involved only the narrow issue of just cause for terminating teachers (receiving workers compensation) under O.R.C. § 3319.16. Moreover, the workers’ compensation retaliation statute precludes the need for a common law remedy involving the termination of employees while receiving workers compensation. Therefore,”R.C. 4123.90 . . . provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” Because O.R.C. § 4123.90 prohibits only retaliatory discharges, it is no longer unlawful for an employer to terminate a non-teaching employee for non-retaliatory reasons (such as inability to work or indefinite absence) even if the employee is receiving workers’ compensation benefits.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-6751.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
Friday, December 14, 2007
Sixth Circuit: Another Employer Victory in Limiting Retaliation Claims.
Employers often feel powerless to defend themselves against employees who grouse about the employer to anyone who will listen, particularly after the employee files a lawsuit alleging illegal employment discrimination. However, today, a unanimous Sixth Circuit reminded employers that not all complaints made by an employee are protected by the federal employment laws. Fox v. Eagle Distributing Co., No. 07-5203 (6th Cir. 12/14/07).
In Fox, the plaintiff filed an age discrimination lawsuit against the employer and then bragged to a customer that upper management had been “out to get him” and that he had filed a $10M lawsuit that “would get their attention.” The customer reported the plaintiff’s statement back to his immediate supervisor and, after a more thorough investigation, the plaintiff was eventually fired. Not surprisingly, the plaintiff then alleged that his termination was illegal retaliation for engaging in protected conduct by protesting the employer’s unlawful treatment of him in his conversation with the customer. However, the Sixth Circuit agreed with the trial judge that the plaintiff’s misconduct in complaining to a customer about his employer was not protected by federal employment laws.
The court found that the plaintiff’s “statements to [the customer] are not protected because they did not amount to opposition to an unlawful employment practice by [the defendant employer]. In order to receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation of the ADEA.” The plaintiff’s complaints to the customer were too vague to constitute opposition to an unlawful employment practice. In fact, there was no evidence that the plaintiff had ever referred to age discrimination implicitly or explicitly. A “vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.” While the plaintiff had referred to a “$10M lawsuit,” he never mentioned that the basis of his lawsuit was age discrimination. The plaintiff’s “vague charge that [the employer’s] management was ‘out to get him’ is insufficient to constitute opposition to an unlawful employment practice and does not merit ADEA protection.”
Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/075203p.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
In Fox, the plaintiff filed an age discrimination lawsuit against the employer and then bragged to a customer that upper management had been “out to get him” and that he had filed a $10M lawsuit that “would get their attention.” The customer reported the plaintiff’s statement back to his immediate supervisor and, after a more thorough investigation, the plaintiff was eventually fired. Not surprisingly, the plaintiff then alleged that his termination was illegal retaliation for engaging in protected conduct by protesting the employer’s unlawful treatment of him in his conversation with the customer. However, the Sixth Circuit agreed with the trial judge that the plaintiff’s misconduct in complaining to a customer about his employer was not protected by federal employment laws.
The court found that the plaintiff’s “statements to [the customer] are not protected because they did not amount to opposition to an unlawful employment practice by [the defendant employer]. In order to receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation of the ADEA.” The plaintiff’s complaints to the customer were too vague to constitute opposition to an unlawful employment practice. In fact, there was no evidence that the plaintiff had ever referred to age discrimination implicitly or explicitly. A “vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.” While the plaintiff had referred to a “$10M lawsuit,” he never mentioned that the basis of his lawsuit was age discrimination. The plaintiff’s “vague charge that [the employer’s] management was ‘out to get him’ is insufficient to constitute opposition to an unlawful employment practice and does not merit ADEA protection.”
Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/075203p.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
Wednesday, December 12, 2007
Ohio Supreme Court Permits Employers to Sue Employees for Maliciously Prosecuting Discrimination Claims.
Today, a divided Supreme Court held that that it does not constitute retaliation per se for an employer to file a lawsuit for malicious prosecution and abuse of process (seeking reimbursement for attorney fees as well as damages) and to seek punitive damages against an employee who had previously engaged in statutorily protected conduct by suing the employer for illegal discrimination. Greer-Burger v. Temesi, Slip Opinion No. 2007-Ohio-6442. However, the employer’s lawsuit must have an objective and good faith basis and cannot be filed simply to harass the employee. Similar to earlier federal cases involving an employer’s right to sue a union (See FYI entry for October 17, 2007), the Court was faced with balancing the employer’s right to seek redress in court under the First Amendment with the employee’s statutory right to seek redress for employment discrimination. The United States Supreme Court has generally held that an employer’s constitutional right to petition the courts cannot be limited by the statutory right of an employer or union. See BE & K Constr. Co. v. Natl. Labor Relations Bd., 536 U.S. 516, 538 (2002). The Ohio Supreme Court ruled that an employer’s lawsuit and claim for punitive damages are objectively based if the employer can show that it would survive a summary judgment motion on its claims.
In this case, the employee had filed suit and lost at trial. After the employer filed suit seeking reimbursement for his attorney fees, etc., and the employee filed for bankruptcy, the employee filed a Charge of Discrimination with the Ohio Civil Rights Commission. The OCRC found probable cause of retaliation and ordered the employer to dismiss the lawsuit and to reimburse the employee for the legal fees which she incurred in defending against the lawsuit (which had already been discharged in bankruptcy). The OCRC’s order was affirmed on appeal, where the appellate court found that employees have an absolute privilege to file suit against their employers for discrimination.
The Ohio Supreme Court reversed. However, its ruling reflects that the OCRC will still have the authority to review an employer’s lawsuit and determine for itself whether the case is likely to survive summary judgment.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-6442.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
In this case, the employee had filed suit and lost at trial. After the employer filed suit seeking reimbursement for his attorney fees, etc., and the employee filed for bankruptcy, the employee filed a Charge of Discrimination with the Ohio Civil Rights Commission. The OCRC found probable cause of retaliation and ordered the employer to dismiss the lawsuit and to reimburse the employee for the legal fees which she incurred in defending against the lawsuit (which had already been discharged in bankruptcy). The OCRC’s order was affirmed on appeal, where the appellate court found that employees have an absolute privilege to file suit against their employers for discrimination.
The Ohio Supreme Court reversed. However, its ruling reflects that the OCRC will still have the authority to review an employer’s lawsuit and determine for itself whether the case is likely to survive summary judgment.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-6442.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.
CVS agrees to pay $226K in penalties and $38K in back wages for FLSA Violations.
The Department of Labor announced today that CVS Pharmacies agreed to pay “civil money penalties totaling $226,598 and to pay 51 employees back wages totaling $38,151 following an investigation by the department of 63 retail locations in the Northeast that revealed violations of the wage and youth employment provisions of the federal Fair Labor Standards Act (FLSA). The youth violations involved exposing the teen employees to hazardous conditions and working too many hours. The back wages were due as a result of store managers improperly editing the time cards of various employees.
Insomniacs may read the full press release at http://www.dol.gov/opa/media/press/esa/ESA20071543.htm.
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 may read the full press release at http://www.dol.gov/opa/media/press/esa/ESA20071543.htm.
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.
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