Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker sexual harassment claims of two women and affirmed the denial of the similar claims of two others. The women were subjected to lewd comments and offensive touching by the same nefarious individual. The Court imposed a higher standard of responsibility on an employer when faced with a serial harasser: “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.”
After the first complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that they would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.
The district court granted the employer summary judgment on the harassment claims, but the Court of Appeals reinstated two of the claims because it found (1) sufficient evidence of a hostile work environment and (2) insufficient action by the employer to stop the harassment.
One of the allegations involved the harasser setting fire to one of the women’s car at her home after work. The Court noted that it had “not decided whether off-premises harassment by a co-worker may be considered as part of the severe or pervasive test under Title VII’s sexual harassment provisions” and deferred that issue to the retaliation claims.
The district court refused to consider evidence of the harasser’s conduct towards other women unless they were also directed to or in the presence of the particular plaintiff. The Court, however, held that the court and jury should have considered “evidence of other acts of harassment of which a plaintiff becomes aware during the period his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.” The Court believed that such evidence was relevant to show that the plaintiff subjectively found the work environment to be hostile. In other words, mere rumors of sexual harassment constitute evidence of harassment if the plaintiff had ever heard about them.
The degree to which these other acts should be relevant depends on a variety of factors, including the act’s proximity in time to the harassment at issue. “The further back in time the prior at occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff’s claim that the workplace is both objectively and subjectively hostile.”
Even if the plaintiff proves the existence of a hostile work environment, the employer is only liable if it knew or should have known of the harassment yet failed to take prompt and appropriate corrective action. The employer is not liable for “mere negligence, but is liable if its response manifest indifference or unreasonableness in light of the facts the employer knew or should have known.”
With that in mind, the Court found that the employer’s response was unreasonable when a female employee asked to be transferred because the harasser was making her life miserable even though she never provided any details or described the harasser’s behavior. The fact that the harasser had harassed in the past was enough to put the employer on notice that it should investigate further.
The Court also refused to absolve the employer for liability when it transferred each of the complaining employees away from the harasser. “Although some courts have indeed found that simply removing a harasser from a victim’s work environment is sufficient to preclude liability, none of these cited cases involved a serial harasser.” “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.” Employers “that take affirmative steps reasonably calculated to prevent and put an end to a pattern of harassment – such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated – are more likely to be deemed to have responded appropriately.” In one case, an employer avoided liability by formulating an observation network to monitor the harasser, checked with the victim daily to ensure that she had not been further bothered by the harasser and warned the harasser after another complaint that he would be fired if there were any further substantiated complaints. In this case, there was evidence that the employer never counseled the serial harasser after his arbitration reinstatement or even put a letter of warning in his personnel file.
As for the employer’s feeling of helplessness after the arbitration reinstatement, the employer’s “inability to permanently discharge [the harasser] the first time that he sexually harassed an employee . . . does not excuse its failure to take appropriate action in response to subsequent incidents. Even if the [employer’s] determination that it had insufficient evidence to sustain a charge of harassment . . . was reasonable, that does not mean that it had no responsibilities to take other remedial steps to ensure [the harasser] did not harass other women. The remedies of Title VII would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser provided unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management,” although a jury may later sympathize.
The claims of the women who complained of harassment shortly before the harasser was fired were dismissed since the termination of the harasser constituted sufficient remedial action by the employer.
Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.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. 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.
Wednesday, February 20, 2008
Tuesday, February 19, 2008
Sixth Circuit Affirms $435K Verdict in Retaliatory Termination Case.
In Imwalle v. Reliance Medical Products, Inc., No. 06-4619 (6th Cir. 2/8/08), the plaintiff argued that he was unlawfully terminated by a Swiss conglomerate as President and corporate Chief Operations Officer only three months after he filed a Charge of Discrimination with the EEOC alleging discrimination on account of his age (62) and national origin (American). The jury awarded $185,000 to the plaintiff on the retaliation claims and the Court added another $250,000 for attorney fees, court costs and pre-judgment interest. The Sixth Circuit affirmed on appeal.
The plaintiff had produced evidence that the Swiss company had proposed several cost-cutting measures, including a corporate-level powerpoint presentation by his boss (a Swiss citizen) which suggested the termination of “elderly” employees. He testified that he had been phased out of the corporate decisionmaking process and his boss also suggested in May 2003 that he hoped to retire and volunteer in the community at plaintiff’s age and then asked for the plaintiff’s resignation. The plaintiff also testified that his Swiss boss had complained to him in 1996 about it being the biggest mistake of his career to hire an American manager (i.e., the plaintiff), said he would never repeat that mistake and, in fact, never hired another American manager thereafter. His boss admitted that age discrimination is not illegal in Switzerland and did not understand U.S. employment laws or how they applied to the plaintiff. Nonetheless, the jury rejected the plaintiff’s discrimination claims.
When the plaintiff refused to retire as requested, he hired an attorney and accused the employer of both illegal discrimination and breaching his employment agreement. The employer then agreed to retain him in his current position, but never brought him back into the corporate decisionmaking process. The plaintiff then filed an EEOC Charge alleging age and national origin discrimination. Three months later, his boss met with him and, as described by both the plaintiff and the employer’s human resources director, fired him in January 2004 after reading the following statement:
“‘Dennis, I know that you know [the defendant employer] never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’ We are not discriminatory, just not.”
The defendant submitted a plausible explanation of poor performance as a non-retaliatory reason why it terminated the plaintiff. For example, the employer contended that it was unhappy with how the plaintiff had managed a particular division and had managed his own division during the brief 2001 recession. The employer also showed that it had pretty much excluded the plaintiff from the corporate decisionmaking process before he made his first allegation of discrimination in May 2003. However, the Court held that the jury could disbelieve the employer’s explanation of poor performance on the grounds that other individuals were more responsible for the corporate failures according to the outside auditors (and yet were not similarly held accountable) and because other managers were not similarly held responsible for the recession. Once a jury rejects the employer’s explanation as false or insufficient, it may infer that discrimination or retaliation was the actual reason or motivation. More importantly, the Court found that the employer’s pre-discharge statement -- denying any unlawful discrimination and wondering how the plaintiff could make such an accusation -- could reasonably be interpreted as evidence that the plaintiff’s EEOC allegations were at the forefront of the employer’s mind when it decided to terminate him.
The Court acknowledged that temporal proximity alone can rarely prove a retaliation claim and the plaintiff lacked direct evidence of retaliation. Indeed, the Court had previously ruled that the passage of four months between protected conduct (i.e., an EEOC Charge) and a discharge created an insufficient inference of retaliation. However, with the passage of only three months, the jury’s disbelief of the employer’s explanation for its conduct and – most importantly -- the employer’s pre-discharge statement, the plaintiff had produced sufficient circumstantial evidence of a retaliatory discharge to support the jury’s verdict. It probably would have been a different result had the employer not protested the discrimination allegations moments before firing the plaintiff.
Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0066p-06.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. 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.
The plaintiff had produced evidence that the Swiss company had proposed several cost-cutting measures, including a corporate-level powerpoint presentation by his boss (a Swiss citizen) which suggested the termination of “elderly” employees. He testified that he had been phased out of the corporate decisionmaking process and his boss also suggested in May 2003 that he hoped to retire and volunteer in the community at plaintiff’s age and then asked for the plaintiff’s resignation. The plaintiff also testified that his Swiss boss had complained to him in 1996 about it being the biggest mistake of his career to hire an American manager (i.e., the plaintiff), said he would never repeat that mistake and, in fact, never hired another American manager thereafter. His boss admitted that age discrimination is not illegal in Switzerland and did not understand U.S. employment laws or how they applied to the plaintiff. Nonetheless, the jury rejected the plaintiff’s discrimination claims.
When the plaintiff refused to retire as requested, he hired an attorney and accused the employer of both illegal discrimination and breaching his employment agreement. The employer then agreed to retain him in his current position, but never brought him back into the corporate decisionmaking process. The plaintiff then filed an EEOC Charge alleging age and national origin discrimination. Three months later, his boss met with him and, as described by both the plaintiff and the employer’s human resources director, fired him in January 2004 after reading the following statement:
“‘Dennis, I know that you know [the defendant employer] never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’ We are not discriminatory, just not.”
The defendant submitted a plausible explanation of poor performance as a non-retaliatory reason why it terminated the plaintiff. For example, the employer contended that it was unhappy with how the plaintiff had managed a particular division and had managed his own division during the brief 2001 recession. The employer also showed that it had pretty much excluded the plaintiff from the corporate decisionmaking process before he made his first allegation of discrimination in May 2003. However, the Court held that the jury could disbelieve the employer’s explanation of poor performance on the grounds that other individuals were more responsible for the corporate failures according to the outside auditors (and yet were not similarly held accountable) and because other managers were not similarly held responsible for the recession. Once a jury rejects the employer’s explanation as false or insufficient, it may infer that discrimination or retaliation was the actual reason or motivation. More importantly, the Court found that the employer’s pre-discharge statement -- denying any unlawful discrimination and wondering how the plaintiff could make such an accusation -- could reasonably be interpreted as evidence that the plaintiff’s EEOC allegations were at the forefront of the employer’s mind when it decided to terminate him.
The Court acknowledged that temporal proximity alone can rarely prove a retaliation claim and the plaintiff lacked direct evidence of retaliation. Indeed, the Court had previously ruled that the passage of four months between protected conduct (i.e., an EEOC Charge) and a discharge created an insufficient inference of retaliation. However, with the passage of only three months, the jury’s disbelief of the employer’s explanation for its conduct and – most importantly -- the employer’s pre-discharge statement, the plaintiff had produced sufficient circumstantial evidence of a retaliatory discharge to support the jury’s verdict. It probably would have been a different result had the employer not protested the discrimination allegations moments before firing the plaintiff.
Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0066p-06.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. 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.
Friday, February 15, 2008
New Ohio Law Makes “Military Status” a Protected Category Under the Ohio Civil Rights Act.
Late last year, Governor Strickland signed the “Ohio’s Veteran Package” (otherwise lovingly known as Substitute House Bill 372), which -- beginning next month on March 24, 2008 -- amends Ohio’s Civil Rights Act at Ohio Revised Code § 4112.02 et seq. to include “military status” as a protected category along with race, sex, age, disability, etc.
Interestingly, “military status” seems to indicate the person’s current status (rather than veteran status) and is defined in the statute as “a person's status in ‘service in the uniformed services’ as defined in section 5903.01 of the Revised Code. Such status is defined at Ohio Revised Code § 5903 as “the performance of duty, on a voluntary or involuntary basis, in a uniformed service, . . . and includes active duty, active duty for training, initial active duty for training, inactive duty for training, full-time national guard duty, and performance of duty or training by a member of the Ohio organized militia pursuant to Chapter 5923 of the Revised Code” and also includes “the period of time for which a person is absent from a position of public or private employment for the purpose of an examination to determine the fitness of the person to perform any duty described in this division.” “The ‘uniformed services’ means the armed forces, the Ohio organized militia when engaged in active duty for training, inactive duty training, or full-time national guard duty, the commissioned corps of the public health service, and any other category of persons designated by the president of the United States in time of war or emergency.”
Ohio’s Veteran Package seems to have created some unintended consequences. Among them, employers may no longer be able to prefer members of the military for employment since Ohio Revised Code § 4112.02(E) prohibits an employer from asking any job applicant -- on an application or in an interview – about his or her military status “[e]xcept where based on a bona fide occupational qualification certified in advance by the [Ohio Civil Rights] [C]omission.” The same is true of making any records of the military status of applicants. Employers are similarly prohibited from expressing a preference for members of the military in help-wanted ads.
New Ohio Revised Code § 4112.023 specifically incorporates the decision of Fisher v. Peters, 249 F.3d 433 (6th Cir. 2001) by the Sixth Circuit Court of Appeals “which held that if a person's civilian job is inherently military, the person must pursue military, rather than civilian, channels when pursuing employment discrimination claims, shall be applied when construing the prohibitions contained in this chapter against discrimination on the basis of a person's military status.”
As of today’s posting, the Ohio Civil Rights Commission had not made a new poster available for employers which includes the new statutory language. (Free posters are generally available online from the Commission at http://crc.ohio.gov/pdf/OCRCFEPPoster04-07.pdf). However, the Commission’s delay should not stop employers from amending their own internal employment policies to reflect the new change in the law.
Insomniacs may read the new legislation in full at : http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_372
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.
Wednesday, February 13, 2008
Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered?
On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 (the “NDAA”). Section 585 of the NDAA amended the Family and Medical Leave Act (FMLA) in two important respects:
1) Exingency Leave. Once the Department of Labor has finalized definitions and implementing regulations, the FMLA’s 12-week leave entitlement will be extended to cover “any qualifying exigency” arising from that fact that an employee’s spouse, son, daughter or parent is on active military duty or has been notified of an impending call or order to active military duty in support of a contingency operation. Because the Department of Labor is taking comments until April 11, 2008, it is unlikely this leave will become effective before summer.
2) Servicemember Leave. Eligible employees who are the spouse, son, daughter, parent or “next of kin” (i.e., nearest blood relative) of a “covered servicemember” shall be entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember. This provision was effective as of January 28, 2008, although many important questions remain unanswered about its implementation.
Most of the terms for Servicemember Leave are contained in the NDAA and merely incorporate many Department of Defense terms already familiar to employers applying USERRA, Servicemembers Civil Relief Act and similar legislation. “Service members” include any “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The term `serious injury or illness' “ means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.” Importantly, this serious injury or illness may not necessarily prevent the servicemember from performing the essential duties of his or her civilian job. In addition, the DOL has indicated that the medical treatment may be rendered by either the Defense Department, Veterans Affairs or civilian medical providers.
Although employers are already required to provide the 26 weeks of Servicemember Leave, the Department of Labor issued proposed regulations on February 11, 2008 which raised many important questions that will undoubtedly face many employers and employees while administering Servicemember Leave, including:
* What kind of temporal proximity is required between the injury/illness and the treatment, recuperation or therapy for which care is required? What if the illness/injury does not manifest itself until long after the cessation of military duties?
* Who is covered by “next of kin?” The Defense Department regulations consider a number of relatives, including grandparents who are not now covered by the FMLA. Should it be limited to only one relative who is the nearest blood relative as provided in the NDAA? How shall it be determined who is next of kin (particularly when there are a number of equally related kin)?
* What kind of certification should be required to show that the servicemember is “medically unfit” to perform his or her military duties?
* The FMLA regulations currently only covers children when they are under the age of 18 unless they are incapable of self-care because of a disability. The military does not permit individuals to serve unless they are over the age of 17. Thus, very few “children” are currently covered. Should the FMLA regulations be amended to permit parents to care for their servicemember adult children? The proposed regulations also imply that adult children would not now be permitted to care for servicemember parents unless the regulations were amended. One must assume that children could still qualify for 12 weeks of FMLA leave when their parents have a “serious medical condition.”
* Unlike the FMLA's typical medical/family leave, the servicemember leave is limited to a “single 12-month period.” Does this mean that it is a one-time entitlement and cannot be repeated in another year (unlike the FMLA where the entitlement is reborn every year)? Is this twelve months a calendar or leave year? Is it per injury? Per employee? Per servicemember? Per relative?
As for what may eventually be covered by Exigency Leave, the Department of Labor has indicated that it may be limited to non-medical exigencies related to deployments and military service, such as arranging for childcare, making financial and legal arrangements to address the servicemenber’s absence, attending counseling relating to the service member’s active duty, attending official ceremonies or programs where the participation of family is requested by the military, attending farewell or arrival arrangements and attending to affairs caused by the missing status or death of a service member. As discussed above, the question is again raised whether parents should qualify for such leave in connection with an adult child and whether the FMLA regulations need to be amended before adult children could qualify for exigency leave in connection with a servicemember parent. As with Servicemember Leave, the Department of Labor has identified a number of issues which must be resolved and which will not be publicly flushed out before the DOL issues final regulations later this year.
The proposed regulations and supporting comments are 127 pages long, also address a variety of issues identified last year by the mammoth DOL Report on the FMLA, and amend a number of FMLA regulations and forms. There will be more on that later.
Insomniacs can read the NDAA at http://www.govtrack.us/congress/billtext.xpd?bill=h110-4986
The DOL’s proposed regulations and supporting commentary which address both the NDAA amendments to the FMLA and other issues related to medical certification forms, intermittent leave, etc. can be found by insomniacs at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The DOL will take comments on the proposed regulations until April 11, 2008.
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.
Wednesday, February 6, 2008
Supreme Court Hears Debate of Whether Wrongful Discharge Claim Is Valid Based on Safety Concerns Shared with Insurance Auditor
Today, the Ohio Supreme Court heard oral argument about whether public policy wrongful discharge claims should be recognized when the employee did not “blow the whistle” to either a government agency or management about safety concerns, but rather, complained to a private sector insurance auditor about his paranoia of being set up to be fired in a document of fire alarm inspections.
As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination for expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.
The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”
The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”
The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”
During oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’
questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.
Insomniacs can watch the oral argument at http://www.sconet.state.oh.us/videostream/archives/2008/
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.
As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination for expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.
The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”
The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”
The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”
During oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’
questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.
Insomniacs can watch the oral argument at http://www.sconet.state.oh.us/videostream/archives/2008/
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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