Ohio Court of Appeals Dismisses Supervisor’s Defamation Claims Against Union Officer.

The Trumball County Court of Appeals affirmed the dismissal of a libel suit brought by a beleaguered night-shift supervisor against a local union officer arising out of statements made about the manager in the union newsletter more than ten years ago. Jacobs v. Budak, No. 2007-T-0033 (6/9/08). In the article, the supervisor was referred to as the “midnight cowgirl” and was accused of not following the collective bargaining agreement in assigning overtime opportunities. The Court ultimately affirmed dismissal of the lawsuit because the supervisor could not show with clear and convincing evidence that she suffered actual harm from the article or that the union officer acted with actual malice (i.e., actual knowledge of the falsity, or reckless disregard for the truth, of the statements).

Following the publication of the union newsletter, the supervisor “was subjected to callow harassment by her employees and fellow co-workers. [She] testified that the harassment lasted for a period of two to three months following the publication of the article and that she was subjected to numerous cat-calls and “mooing” sounds as she walked or drove her scooter through the plant. She received prank phone calls where unidentified persons would yell such quips as “yippy-ti-yi-o,” “moo-ooo”, and “got your spurs on.” In addition, cow horns and a cowboy hat were placed on her work scooter subjecting her to further ridicule as she drove through the plant.”

Because the dispute arose out of a “labor dispute” (i.e., a dispute between management and a union over the bargaining agreement and other terms and conditions of employment), the supervisor was required to prove her claim by clear and convincing evidence (which is a higher standard of proof than the regular preponderance of the evidence or more likely than not standard used in most civil cases). She was also required to prove that the allegedly false and defamatory statements were made with actual malice without privilege to a third party and that she suffered actual damage from the statements. “A statement is published with actual malice when it is made with the ‘the knowledge that it was false or with reckless disregard of whether it was false or not.” The Ohio Supreme Court has previously noted that “[a]ctual malice ‘cannot be implied from the character and content of a publication. *** It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity.’”

Therefore, “[m]ere negligence is not enough to establish actual malice . . . Thus, ‘reckless conduct is not measured by whether a reasonably prudent man *** would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’” In fact, courts have been clear that the failure to investigate has been found to constitute malice only “where the defendant has serious doubts that the statement is true.”

In this case, the union officer was able to show that he conducted an investigation and there was some factual basis for his allegations against the supervisor. Although the supervisor alleged that the union officer conducted his investigation negligently, even if that were true, the court found “no evidence that [the union officer] had any serious doubts as to the veracity of the statements.”

“It is clear that access to equalization records was an ongoing debate as the issue was discussed in union-management meetings before, during, and after the article was released. Indeed, [the defendant union officer] was not even familiar with Ms. Jacobs until he was ordered to investigate [an employee’s] complaints in early May of 1997 by his supervisor. Although the statements were certainly negligently made, we cannot say that they were made with such reckless disregard or knowledge as to their falsity.”

The Court also concluded that the supervisor was required to prove actual damages from the allegedly defamatory statement because it arose out of a union dispute and that she failed to do so. “As evidenced by the numerous medical records that were entered into the record, [the supervisor] has a long history of physical and mental distress that may or may not have been exacerbated by this incident. According to her employment evaluations and her own testimony, her employment was unaffected. Indeed, following the release of the article she was given a six percent raise and has been consistently rated in her job performance as “satisfactory” or above. The testimony and medical records [the supervisor] did submit failed to evidence that the article was the proximate cause for the stress she was facing at that time. Indeed, [her] own physician, Dr. Meyers, could not differentiate between the stress that was caused by the article and the stress that resulted from the ensuing legal battle.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-2756.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

JCAHO To Require Healthcare Organizations to Stop Workplace Bullying

On July 9, 2008, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued a Sentinel Event Alert amending its Leadership Standards and requiring accredited healthcare organizations beginning on January 1, 2009 to (1) create codes of conduct which define acceptable and disruptive and inappropriate workplace behaviors and (2) create and implement a process for managing disruptive and inappropriate behaviors. The JCAHO also amended the Medical Staff standards to incorporate six core competencies to be addressed in “the credentialing process including interpersonal skills and professionalism.”

The JCAHO explained that it was taking this action because “intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse consequences, increase the cost of care and cause qualified clinicians, administrators and mangers to seek new positions in more professional environments. Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment.”

While recognizing that workplace bullies have contributed much to this endemic problem, not all “such behaviors [are] confined to the small number of individuals who habitually exhibit them . . . It is important that organizations recognize that it is the behaviors that threaten patient safety, irrespective of who engages in them.”

“Organizations that fail to address unprofessional behavior through formal systems are indirectly promoting” a culture “of tolerance and indifference to intimidating and disruptive behaviors in health care.” Granted, the recurrence of dealing with highly emotional and stressful situations “can contribute to occasional intimidating or disruptive behavior, particularly in the presence of factors, such as fatigue. Individual care providers who exhibit characteristics such as self-centeredness, immaturity or defensiveness can be more prone to unprofessional behavior” and lack interpersonal, coping or conflict management skills.

In addition to the mandatory standards for addressing this problem, the JCAHO recommends that organizations take an additional thirteen steps, including:

* Educate all staff on appropriate professional behavior defined by the organization’s code of conduct with an emphasis on mutual respect. The training should include basic business etiquette, telephone skills, customer service and other basic people skills.
* Hold all staff accountable for modeling desirable behaviors and enforce the code consistently and fairly among all staff, regardless of seniority or clinical discipline. This should include both positive and negative reinforcement where appropriate.
* Develop and implement policies and procedures which address zero tolerance for egregious instances of disruptive behavior (such as assault, threats and other criminal acts). These standards should be incorporated into bylaws and employment agreements as well. Physicians and staff should be held to the complementary standards. Staff should be encouraged to report and cooperate in investigations of disruptive behavior by including non-retaliation statements into all policy statements.
* “Provide skills-based training and coaching for all leaders and managers in relationship-building and collaborative practice, including skills for giving feedback on unprofessional behavior and conflict resolution. Cultural assessment tools can also be used to measure whether or not attitudes change over time.”
* “Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombuds services and patient advocates.”
* “Support surveillance with tiered, non-confrontational interventional strategies, starting with informal “cup of coffee” conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety. Make use of mediators, and conflict coaches when professional dispute resolution skills are needed.”

Insomniacs can read the Alert in full at http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm. The Alert does not address what will happen to Dr. Greg House when these standards become effective.:)

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 of Appeals Expands Right to Sue for Discriminatory Constructive Discharge and Demotion.

Last month, a unanimous Franklin County Court of Appeals reversed summary judgment previously entered in favor of an employer in an age discrimination case. Coryell v. Bank One Trust Co., 2008-Ohio-2698 (6/5/08). The Court made several significant holdings. First, the Court held that a plaintiff could show under certain circumstances that s/he had been discharged even if the employee voluntarily chose a severance pay option instead of remaining employed for an indefinite period of time. Second, the Court concluded that a plaintiff could pursue a claim for discriminatory job conditions -- such as a lesser job title and/or decreased responsibilities -- which fell short of a constructive discharge, even without a commiserate decrease in pay. Finally, the Court found sufficient evidence which the jury could use both to disbelieve the Bank’s non-discriminatory explanation for its conduct and to base a finding of discriminatory intent.

The Background

Plaintiff had been the Senior Vice President for the group “which handled the administration and servicing of institutional accounts involving assets subject to trust or other custody requirements. During his tenure, [the plaintiff] was active in direct client relationships and assumed full responsibility for all relationships that were threatening litigation due to problems predating [his] hire. In 2000, despite his experience handling direct client relationships, his supervisor directed him to no longer “maintain direct, selective account responsibilities” and he ”transitioned his accounts to individuals within his organization.” Following a reorganization and change in group leadership, the plaintiff became responsible for managing 28 employees. When discussions began about moving Plaintiff’s team to another group shortly thereafter, Plaintiff supported the move, outlined his suggestions for his role in the new group, and suggested that his management role be eliminated and he transition to a player-coach. However, because Plaintiff had no clients of his own and had been performing only as a manager for a few years, the new group declined to offer him a position after the move. Instead, Plaintiff’s duties were distributed between three other managers (one of whom assumed his former job title, received an increase in compensation and received a 300% increase in his bonus the following year).

Plaintiff continued on the payroll of his former supervisor at the Bank and was rejected for two open positions for which he applied. He was then offered severance and the option of remaining on payroll for an unspecified period of time or risking a six-month reduction in severance payments under the Bank’s new severance plan if he did not act quickly. After suffering a heart attack, Plaintiff accepted the severance option with a one-year salary continuation period and continued to search for another job within and outside the Bank. After finding a position outside the Bank, he filed suit and claimed he had been discriminated against on account of his age.
The common pleas court found factual dispute existed as to whether Plaintiff was qualified for the management position with the new group (which existed after his position was allegedly eliminated) and whether he was replaced by someone substantially younger than himself. Nonetheless, the common pleas court found, as a matter of law, that Plaintiff “was neither directly nor constructively discharged because he chose between meaningful options when he accepted the severance package” and, therefore, Plaintiff was unable to establish that he suffered from an adverse employment action as required to carry his prima facie case.

Existence of Constructive Discharge

In prior Supreme Court cases, the court has held that the prima facie case cannot be satisfied when the plaintiff chose severance instead of other options which would have preserved the plaintiff’s employment. For instance, in Barker v. v. Scovill, Inc., 6 Ohio St.3d 146, 147 (1983). the plaintiff had been “offered both termination with severance pay and layoff options, but was also given the opportunity to transfer to another plant.” She also “confessed that her refusal to accept the transfer was not based on the inherent undesirability of the offered employ; it was predicated on her belief that she " * * * could duplicate * * * [her] salary some place else." As a result, because she “made a conscious, well-informed, uncoerced decision, [s]he should not now be allowed to cry foul” later.

“When a plaintiff chooses termination in lieu of other options, courts will not construe his decision as an actual discharge. Rather, the plaintiff must show that he was constructively discharged, i.e., that his or her choice of termination was involuntary or coerced. . . . . Courts generally apply an objective test to determine whether a plaintiff was constructively discharged, asking "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign."

The Supreme Court has explained that “In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the "discharge" label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of coemployees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group. Nor does the inquiry change solely because an option to transfer is thrown into the mix, lateral though it may be. A transfer accompanied by measurable compensation at a comparable level does not necessarily preclude a finding of constructive discharge. * * * A sophisticated discriminating employer should not be permitted to circumvent the statute by transferring an older employee to a sham position as a prelude to discharge.”

The Court of Appeals concluded that Plaintiff produced sufficient evidence to create a question for the jury about whether his discharge was imminent. The Bank “stripped him of his title, position, responsibilities, functions, supervisory role, and involvement in day-to-day operations and management, leaving him with no real position. [The new group leader] informed [Plaintiff] that he would not retain him as Managing Director of the National Accounts Group and informed the National Accounts Group that Kozak would immediately assume management responsibilities. [The new group leader] also told [Plaintiff] that he would not provide him another position in the National Accounts Group. Additionally, [the former supervisor] told [Plalintiff] that [the new group leader] was not amenable to [Plaintiff] obtaining any internal position related to institutional investment management. [Plaintiff] applied for two internal positions prior to accepting the severance package, but he was rejected for both positions. [the former supervisor] "highly recommended" that [Plaintiff] accept a severance package because [he] "did not have a position" and because [the supervisor] believed that [Plaintiff] would not be able to secure another position within” the bank. Plailntiff “understood that [his former supervisor] saw his own future with Bank One as "uncertain" and that he did not know how long he would be able to maintain [him] on the payroll. . . . Moreover, the severance package specifically provided that [plaintiff] could continue to seek a new internal position and, thus, simply guaranteed [Plaintiff] a continued salary and benefits while searching for a new position within the organization.”

Even though the Bank did not transfer Plaintiff, it “stripped him of all attributes of his former position, essentially leaving him in a non-existent position.” While Plaintiff remained on the payroll of his former supervisor’s group, Plaintiff “had no title, responsibilities or duties.” In that Plaintiff’s understood the tenuous nature of his former supervisor’s “own continued employment and Natsis's recommendation that [Plaintiff] accept the severance package, [Plaintiff] could reasonably have believed that termination was imminent should he reject the severance package. The record contains ample evidence that [he] desired to continue working for the Trust Group and made attempts to find another position within the organization both before and after accepting the severance package, but, in light of comments” by the leaders of the new and former groups, Plaintiff “could have reasonably believed that he would not be successful in obtaining a new internal position. ‘[T]here is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label.’ Ultimately, viewing the evidence in the light most favorable to Coryell, we find that genuine issues of material fact remain as to whether Coryell was constructively discharged.”

Age Discrimination Without Discharge from Employment

In addition, the Court acknowledged that an age discrimination claim is not limited to wrongful discharge claims. Even where the employee is unable to show that s/he was constructively discharged, employees may pursue claims for age discrimination whenever they have suffered an adverse employment action in connection with discharge, hire or other terms and conditions of employment. “Whether a specific action constitutes an adverse employment action is determined on a case-by-case basis. . . . Generally, an adverse employment action is defined as a material adverse change in the terms and conditions of employment. . . . . Employment actions that result only in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.”

“[A] job transfer resulting in a less distinguished title or significantly diminished responsibilities can constitute an adverse employment action. * * * As well, an employer's decision to transfer an employee to a different department, remove her from her management position, place her under the supervision of the person who took her former management position, assign her less job responsibilities that do not comport with her qualifications and give her negative comments on surprise performance evaluations can be classified as adverse employment actions despite no loss of wages or benefits.” For instance, in Bhat v. Univ. of Cincinnati, Ohio Ct. of Cl. No. 2000-04723, 2003-Ohio-5623, “the Court of Claims determined that the plaintiff demonstrated an adverse employment action where the University of Cincinnati removed her titles of director of cardiac transplantation and director of the heart failure program, despite maintaining her as a full professor with no loss of pay or benefits. The court found that the loss of the "director" titles had a significant effect on the plaintiff's status; "[s]he lost not only the prestige associated with the director's title, but also the level of responsibility and the perception of her professional capabilities associated with those roles." Likewise in Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App. No. 98AP-1278, actionable discrimination was found “where the employer abolished the plaintiff's job-share arrangement, stripped the plaintiff from her position and title, reassigned her job duties to younger male employees, and initiated a salary audit that resulted in her position being reclassified to a lower pay band.”

In this case, the Court concluded that Plaintiff could pursue an age discrimination claim even if he had not arguably been discharged. The decision to not “retain [Plaintiff] as Managing Director of the National Accounts Group, to reassign [his] management and supervisory responsibilities” to a significantly younger manager who formerly reported to him, and “to not provide [him with] another position within the National Accounts Group had a materially adverse effect on the terms and conditions of [his] employment. Although [Plaintiff] technically remained employed, with no loss of salary or benefits, after Abunassar removed him from his position as Managing Director, Abunassar's actions left [Plaintiff] with no title, no authority, no responsibilities, and limited prospects of continued employment. At a minimum, [the Bank] contends that [it] eliminated [Plaintiff’s] position. Such an action had an adverse effect on the terms of Coryell's employment.”

Evidence of Pretext

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . . . A fact finder's disbelief of the employer's articulated reason does not compel judgment for the plaintiff. Before a plaintiff is entitled to judgment, the fact finder must not only disbelieve the employer, but must also believe the plaintiff's explanation of discrimination. Reeves at 147, citing Hicks at 519. However, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer's] explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves at 147. Thus, a plaintiff need not always introduce independent evidence of discrimination to show pretext where there is sufficient evidence to reject the employer's explanation.”

The Court found there was sufficient evidence for the jury to disbelieve the Bank’s explanation for Plaintiff’s treatment and to infer the existence of age discrimination. ”First, only months before Abunassar removed [Plaintiff] from his position, [he] was selected to create and lead the National Accounts Group, based on his relevant experience and knowledge. All evidence suggests that [he] was successfully performing his role of Managing Director, and Abunassar admitted that he had no issues with Coryell's performance.” In his own affidavit, Plaintiff stated that his former supervisor stated that he “should manage the [National Accounts Group under Abunassar], as I was the most qualified." Plaintiff’s former supervisor ”testified that [Plaintiff] had been successful at Bank One, demonstrated technical knowledge, and was liked and supported by his subordinates. Second, while Abunassar desired the National Accounts Group manager to maintain a book of business, there is no dispute that Coryell's experience qualified him to resume direct client relationships. Until shortly before embarking on the creation of the National Accounts Group, Coryell successfully maintained a book of business, which he gave up at the direction of his former supervisor who, in direct contrast to Abunassar's business model, prohibited managers from maintaining books of business. Moreover, Coryell was willing and qualified to resume direct client relationships and suggested to Abunassar that he resume direct relationships and serve as a "player-coach," the very term Abunassar uses to describe his vision of the Managing Director role. The record contains evidence that certain accounts had not yet been transitioned to National Accounts Group employees, and the National Accounts Group organizational chart shows open Institutional Client Advisor positions, suggesting the availability of accounts for which Coryell could have assumed direct responsibility. Abunassar also admitted that, if he had wanted to assign Coryell accounts, he could have done so through the open investment relationship manager position for which Coryell interviewed, but was rejected. Such evidence discredits Abunassar's refusal to assign Coryell a book of business based on his reluctance to transition clients where unnecessary. Viewing the evidence in the light most favorable to Coryell, we find that a fact finder could reasonably disbelieve appellees' purported non-discriminatory reason for their actions relating to Coryell's position and employment.”

“Because the fact finder's disbelief of [the Bank’s] proffered non-discriminatory reason, coupled with evidence satisfying Coryell's prima facie case, would permit (although not compel) the fact finder to infer the ultimate fact of intentional discrimination, we find that [the Bank is] not entitled to judgment as a matter of law on Coryell's age discrimination claim. We do not suggest that Coryell will or should ultimately prevail on his age discrimination claim, but conclude only that the evidence, viewed in the light most favorable to Coryell, creates genuine issues of material fact, which preclude summary judgment. Accordingly, we find that the trial court erred in granting summary judgment in favor of [the Bank] , and we sustain Coryell's first assignment of error.

Insomniacs can read the decision in full at 2698 http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-2698.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.

Applicant’s Record of Impairment and Illegal Interview Questions Send Charitable Employer Back to Court for Alleged Violations of Rehab

Last week, the Sixth Circuit Court of Appeals reversed summary judgment in favor of The Salvation Army by the District Court in Columbus where the plaintiff job applicant alleged that he was denied a job after he responded to a question his job interview about whether he was taking any medications by describing the psychotropic medications he was taking. Doe v. Salvation Army, No. 07-3822 (7/1/08). The Court found that there was a factual dispute for the jury to resolve about whether the plaintiff was “disabled” under the Rehabilitation Act and whether he was rejected for employment based solely on that disability.

According to the Court’s opinion, the plaintiff “suffers from paranoid schizophrenia disorder. From 1995 through 2005, because of his condition, he was hospitalized or lived in various group homes. In 2005, still under medical supervision, Doe began working with job developer Cordell DeGraw at the Center of Vocational Alternatives (COVA) in Columbus, Ohio. Sometime in May 2005, DeGraw contacted Charles Snider, the supervisor of the Salvation Army’s Adult Rehabilitation Center (ARC) warehouse and arranged for Doe to be interviewed for a truck driver position with the Salvation Army.” When the plaintiff “arrived for the interview, Snider instructed Doe to fill out an application and . . . Doe responded that he could not work on Fridays because, “[he] had to see [his] doctor, and . . . pick up [his] medicine.” Snider asked Doe “what kind of medication” he took, and Doe responded, “psychotropic medicine.” According to Doe, at that point, Snider “stopped the interview and said that his insurance would not cover me.” Doe offered to obtain a letter from his doctor, but Snider refused to reconsider.” According to the Salvation Army, “Snider testified that he ended the interview saying, “[w]hat I’ll have to do is have this checked out,” meaning apparently, that he wanted to determine whether the ARC’s insurance policy would cover a driver using psychotropic medication. However, Snider never pursued an investigation into the insurance coverage and later hired nine other drivers.”

The plaintiff argued that he was covered by the Rehabilitation Act because he was a person with a record of an impairment which limits a major life activity. “Doe submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working.” While a person with only a record of a disability (in contrast to a present disability) would not require a reasonable accommodation, the Court determined that they were still protected from discrimination by the Rehabilitation Act.

The District Court determined that there was insufficient evidence that the Salvation Army was aware that Doe had a disability. However, the Court of Appeals noted that there was evidence that COVA informed the Salvation Army that “[w]e are an agency that works with people that have disabilities.” There was also evidence that the Salvation Army “was aware that COVA’s mission is to help individuals with disabilities and other challenges.

Nonetheless, the Rehabilitation Act only prohibits discrimination “solely” on the basis of the disability. “The Salvation Army argued, and the district court agreed, that Snider rejected Doe for safety concerns, not for reasons solely based on Doe’s disability. However, it was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, ‘I did not say flat out no,’ but rather, ‘I’ll have to check [the insurance] out.” As we now know, he did not do so.”

“An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. See Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000). The district court stated that “[c]ourts have unanimously held that an individual with a disability ‘cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.’” But in May 2005, Snider ended Doe’s interview not because he concluded that Doe’s employment as a driver would pose a risk to others, but because Snider “wasn’t going to take a chance” on Doe. The Rehabilitation Act’s implementing regulations state rather remarkably, to be sure, that potential employers may not ask questions “to determine whether the applicant is an individual with handicaps or the nature or severity of a handicap.” 24 C.F.R. § 8.13(a). Snider testified that he inquired as to what types of medications Doe was taking. . . . We think it supports, although it does not necessarily prove, Doe’s claim that the Salvation Army violated the Rehabilitation Act.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/073822p.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.

Sixth Circuit Finds Production of Irrelevant Confidential Documents During Discovery Is Not Protected Participation or Opposition Under Title VII

On Tuesday, the Sixth Circuit decided “the scope of protection that should be afforded to employees who disseminate confidential documents in violation of their employer’s privacy policy in the context of employment-related litigation.” In that case, the plaintiff had been fired after providing documents with confidential client information to the attorneys who were prosecuting a class action pay discrimination lawsuit on the behalf of her and other female employees. The Sixth Circuit held that her conduct was not protected by federal law and, therefore, the employer was permitted to discharge her for violating its confidentiality policy. Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08).

In Niswander, the plaintiff joined a class action pay discrimination lawsuit against her employer in 2003. She was a claims adjuster who worked from her home. She later came to believe that her employer retaliated against her for participating in that lawsuit, informed the human resources department in 2004 and filed an EEOC Charge the following year. She also informed the class action attorneys of her perceived retaliation and they indicated that they were interested in pursuing a claim on her behalf. When, in connection with the pre-trial discovery process, her attorneys asked her to provide copies of any documents “related to her employment” and “any documents you think might be even remotely helpful to our case,” she complied with their request so that they would not suffer sanctions from the court for failing to comply with the discovery process. Importantly, no lawsuit had been filed on her behalf allegation unlawful retaliation against her.

The plaintiff “admitted in her deposition that she had “no documents to support an equal pay [claim].” Instead, she sent documents that she believed were relevant to” the employer’s “alleged acts of retaliation against her. Some of the documents that Niswander sent were copies of e-mails back and forth with her supervisors related to her job performance. Other documents, however, were claim-file documents that allegedly would jog her memory regarding instances of retaliation, but that did not in and of themselves contain evidence of retaliation. In sending the documents to her lawyers, some of which included information about” her employer’s clients, the plaintiff “thought everything was confidential” and that “anything [she] produced was all between” her and the company’s attorneys. However, when her employer received copies of the confidential documents which she had given to her attorneys (to give back to her employer), it terminated her for violating its confidentiality policy.

Title VII prohibits employers from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title VII] [the so-called “opposition clause”], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] [the so-called “participation clause”]. 42 U.S.C. § 2000e-3(a).” In order to state a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity (i.e., opposition or participation), (2) the employer knew of the employee’s protected activity, (3) the employee later suffered from an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). In Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court held that “the scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination provision.”

In Niswander, the court was required to decide whether the plaintiff’s provision of the confidential records to her attorneys constituted protected participation or opposition. “’The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). With respect to the participation clause, we have recognized that the clause’s ‘exceptionally broad protections . . . extend[] to persons who have participated in any manner in Title VII proceedings. ‘Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (citation and internal quotation marks omitted). “[O]nce the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.”

“’The opposition clause, on the other hand, covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers.’ Johnson, 215 F.3d at 579. We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.”

The court then held that the production of the confidential documents to her attorneys did not constitute protected participation because the documents were admittedly not relevant in any way to the pay discrimination claims being asserted in the pending lawsuit. “An individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (explaining that the purpose of the participation clause ‘is to protect the employee who utilizes the tools provided by Congress to protect his rights’).” However, to find that the plaintiff’s actions in this case constituted protected participation in the pay discrimination lawsuit, “would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.”

Whether the plaintiff’s conduct constitutes protected opposition conduct depends upon a balancing of her interests with that of her employer. “A balance must be achieved between the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions. Allowing too much protection to employees for disclosing confidential information may perversely incentivize behavior that ought not be tolerated in the workplace—namely, the surreptitious theft of confidential documents as potential future ammunition should the employee eventually feel wronged by her employer. On the other hand, inadequate protection to employees might provide employers with a legally sanctioned reason to terminate an employee in retaliation for engaging in activity that Title VII and related statutes are designed to protect.”

Prior decisions had indicated that employees did not have the right to search their employer’s confidential personnel and other files in order to obtain documents in support of their discrimination claims. In another case, the court permitted an employee to provide his attorney with documents which he “innocently” obtained because they were on the hard drive of computer assigned to him by his employer.

“Based on the analysis applied by the courts in the cases discussed above, we believe that the following factors are relevant in determining whether Niswander’s delivery of the confidential documents in question was reasonable: (1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy. These factors are designed to take into account the employer’s ‘legitimate and substantial interest in keeping its personnel records and agency documents confidential’ and yet protect the employee’s alleged ‘need for surreptitious copying and dissemination of the documents.’”

In this case, the plaintiff “could have preserved the alleged evidence of retaliation in other ways; in particular, she could have taken notes of the incidents that she believed demonstrated retaliation instead of delivering documents that contained confidential policyholder information. Producing confidential documents for the sole purpose of jogging one’s memory, when there are readily available alternatives to accomplish the same goal, does not constitute the kind of reasonable opposition activity that justifies violating a company’s privacy policy.”

“Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, ‘we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.’ O’Day, 79 F.3d at 763. To hold in favor of Niswander would turn the opposition clause into ‘a license to flaunt [sic] company rules or an invitation to dishonest behavior.’ Id. at 764. So even after viewing the evidence in the light most favorable to Niswander, we conclude that her production of the documents was not reasonable under the six factor test set forth above.”

“The only factors that arguably weigh in Niswander’s favor are factors one and two, but even those do not weigh heavily in her favor. Although she had access to the documents through her employment, Niswander did not innocently acquire the documents in the same manner as the plaintiff in Kempcke, who came across evidence of potential age discrimination in a company computer that had been issued to him. See Kempcke, 132 F.3d at 445. Rather than innocently stumbling upon evidence of illegal employment practices, Niswander specifically searched through the CIC documents that she had at her home office for the purpose of uncovering evidence of retaliation. Such behavior cannot be classified as truly innocent acquisition.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-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.