Franklin County Appellate Court Reverses Summary Judgment for State in Reverse Discrimination Case

Last week, a divided Franklin County Court of Appeals reversed summary judgment entered by the Ohio Court of Claims in favor of the State on a reverse discrimination and retaliation lawsuit. Whatley v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-944. In that case, the white plaintiff alleged an ongoing pattern of discrimination and retaliation by black supervisors on account of her relationships and marriage to black men. The Court dismissed most of the claims on account of the two-year statute of limitations and a release she signed in connection with a return-to-work agreement. However, the majority of the Court found that she had identified a material factual dispute concerning her vague allegations that she had been discriminated and retaliated against following her reinstatement in how she was disciplined for poor attendance.

Notwithstanding the valid statute of limitations defense, Judge Tyack still rejected portions of the employer's supporting affidavit when the conclusory allegations did not appear to be based on personal knowledge concerning time-barred events and conflicted with the plaintiff's affidavit about physical assaults. Id. at ¶¶12-13. Her affidavit contended that the harassment continued after she returned to work and that she had been disciplined throughout her employment for attendance violations when similarly situated black corrections officers were not so disciplined. The majority did not discuss any heightened burden of proof in a reverse discrimination case, but did note that the alleged harassment was by members of a different race than the plaintiff.

The dissent noted that the plaintiff could not carry her burden of proving harassment following her reinstatement in light of her admission in her Answers to Interrogatories that she no longer had to work with the harassing supervisors after her reinstatement. Thus, her affidavit conflicted with her prior interrogatory responses and should have been disregarded. Moreover her affidavit was so vague about any allegedly harassing or retaliatory incidents following her reinstatement that it should not have been considered sufficient evidence to create a material disputed fact.

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: No Hostile Work Environment When Plaintiff Cannot Recall Specific Words or Frequency

This morning, in a remarkably brief and concise eight-page opinion, the federal Sixth Circuit Court of Appeals affirmed summary judgment against a former massage therapist who had alleged that she had been fired for complaining about a hostile work environment. Keane v. IT-Works, Inc., No. 10-2512 (6th Cir. 3/7/12). The Court found that she could not satisfy her burden of proving a hostile work environment when she could not remember the specific words which the allegedly harassing co-worker had said or how often he was allegedly offensive. Without that evidence, she could not prove that his conduct was severe or pervasive. In addition, she could not show that the employer failed to take reasonable steps to stop the harassment when it had acted on her complaints to stop her co-worker’s offensive comments and there was no evidence that anyone complained about him after that point in time. Finally, she could not prove retaliation when she wasn’t fired until more than two months after she had complained about his offensive comments, and she had received both a favorable performance evaluation and a 7% raise between the time of her complaint and the time she was fired (for gossiping about the employer’s financial condition with her co-workers). “Intervening favorable actions of an employer may not be a complete bar to recovery, cf. Clay v. United Parcel Service, Inc., 501 F.3d 695, 711 (6th Cir. 2007), but they assuredly weigh against a claim of retaliation.”

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.

Unemployment Compensation: Employer’s Extended Delay Does Not Erase Just Cause for Termination

Two unemployment decisions were issued by the Ohio Court of Appeals in the last week which underscore hostility towards unemployment claimants in this economy. In the first, the Montgomery County Court of Appeals found that the claimant did not have a valid reason to resign her employment when she claimed that she was working 15 hours/day and she did not submit any evidence to substantiate that her physician had recommended that she resign for health reasons. Shaffer v. Dir., Dept. of Job & Family Servs., 2012-Ohio-844. In the second decision issued yesterday, the Ashtabula County Court of Appeals found that a city employer had just cause to terminate in 2009 the employment of a maintenance employee it hired in 2001 because he falsified his criminal history on his 2001 job application even though the City had been aware of the falsification since 2006 and failed to act on it until 2009. Ashtabula v. Rivas, 2012-Ohio-865.

In the first case, the employee contended that she had been assigned an unreasonable amount of work, had been denied assistance and resigned only after her physician insisted. However, her former manager testified that she had only been assigned half of the work that she claimed, and insisted that she had been provided assistance when she requested it. Indeed, she had been given a two-week vacation during the busiest time of the year. Moreover, the claimant had failed to bring a statement from her physician (or her physician) to confirm the medical reason for her resignation. The Unemployment Compensation Board of Review rejected her argument: "If Appellant ultimately required a less-stressful position, she had a duty to inquire about other reasonable solutions before voluntarily resigning her position with only two weeks left of the "busy season." The trial and appellate court found that there was evidence introduced at the hearing to support the UCBR's findings and the denial of her unemployment compensation application was not unreasonable under the circumstances.

 

In the second case, the maintenance worker had been hired in 2001 after he falsely denied having a criminal conviction in his past. In 2006, after he plead guilty to, among other things, telephone harassment, the pre-sentence report revealed that he had two felony convictions in New Jersey which pre-dated his employment with the City. The probation officer notified the City Solicitor about the felony convictions and spoke with the City Administrator about the effect the guilty plea would have on his employment. The City Attorney contended that he had forwarded information about the felony conviction to the City Administrator, but no investigation was conducted. In 2009, the employee sought a transfer to another position which required a criminal background check. At that point, the Police Chief notified the City Administrator of the employee's unsuitability for the position and the City Administrator then terminated the employee for falsifying his 2001 job application. The City Administrator contended that 2009 was the first he learned about the employee's falsification. The UCBR and trial court agreed that there was not just cause to terminate an employee for falsifying a job application when the City had possessed the knowledge for approximately three years before terminating the employee. The unreasonable delay in terminating the employee meant that he could receive unemployment compensation. However, the Court of Appeals reversed. The Court found that the two plus year delay in terminating the employee was not unreasonable "because the record demonstrated appellant willingly and voluntarily falsified the application in direct violation of a known city policy," and thus was at fault for his termination.

He was not a casualty of a random economic downturn or the victim of a coincidental staffing cut. To the contrary, the record is clear: Mr. Rivas was the engine of his own termination. Because he voluntarily falsified information on his application knowing such an act could result in his discharge, he was at fault for his own circumstances.

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.

 

Federal Court Upholds NLRB Posting Requirement, But Not Presumption of ULP

[Editor's Note: The posting requirement has again been stayed pending appeal of this decision to the Court of Appeals.]

This morning, the United States District Court for the District of Columbia upheld in a 46-page opinion most of the NLRB’s regulation requiring employers to post a notice of employees’ rights under the NLRB. However, the Court ruled that an employer’s failure to post the notice, by itself, could not constitute an independent unfair labor practice and, surprisingly, that an employer’s failure to post the mandatory notice could not operate to toll the six-month statute of limitations to file an unfair labor practice charge. National Association of Manufacturers v. NLRB, Case No. 11-629 (D.D.C. 3-2-12):

The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to cost to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The Court found that the notice posting requirement was permissible under Section 156 of the NLRA, which provides in relevant part that ““The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by [this subchapter], such rules and regulations as may be necessary to carry out the provisions of this subchapter.” The Obama Administration argued that “employees cannot exercise their rights without knowledge of what those rights are, and they submit that the rule simply mandates that employers inform employees of those rights, which furthers the purposes of the Act.”

The Court found the portion of the new NLRB regulation which made it an unfair labor practice for an employer to fail to post the mandatory notice violated sections 158(a) and 160(a) of the NLRA, “in which Congress specifically defined and limited the conduct that could constitute an unfair labor practice.” While the NLRA does not attempt to enumerate every conceivable action which could constitute an unfair labor practice, the NLRA did place some limits on what the NLRB could declare as an ULP:

Section 160(a) empowers the Board “to prevent any person from engaging in any unfair labor practice (listed in section 158 of [title 29]) affecting commerce.” 29 U.S.C. § 160(a). This section has been interpreted as limiting the unfair labor practices that the Board may prohibit to only those enumerated under section 158. Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 676 (1961) (“Where, as here, Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme.”); see 76 Fed. Reg. at 54,032 (concession by the Board that section 160(a) “specifically limits the NLRB’s powers to preventing only the unfair labor practices listed in [section 158] of the Act.”).

Failure to post the mandatory notice cannot reasonably be found to interfere with, obstruct or hamper employees’ NLRA rights as “interfere” is commonly understood.

Second, section 158(c), which prohibits the Board from construing “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form” as an unfair labor practice or as evidence of an unfair labor practice “if such expression contains no threat of reprisal or force or promise of benefit,” also suggests that Congress had a narrow reading of the word “interfere” in mind. . . . Since Congress prohibited the Board from considering an employer’s express statement of its views to be an unfair labor
practice, it follows that it did not intend that an employer’s mere failure to supply information would be designated as one.

Importantly, the Court found that an employer’s failure to post the mandatory notice is not irrelevant to whether there has been an unfair labor practice:

The Court points out that nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights. The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.

The Court also rejected the new regulation’s provision tolling the six-month statute of limitations to file an ULP Charge:

This provision not only extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, it applies to all unfair labor practice actions against employers where the notice was not posted. The Court concludes, as in the case of the unfair labor practices provision, that Congress did not leave a gap for the agency to fill with respect to the statute of limitations. Instead, in section 160(b), Congress plainly mandated a short time period during which an aggrieved person must file a charge. 29 U.S.C. § 160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . . .”). The challenged provision of the rule upends that requirement.

While the Court noticed the applicability of equitable tolling, it refused to apply legal precedent under Title VII and the ADEA to the NLRA because, unlike the NLRA, those statutes specifically contained a notice-posting requirement and, in Title VII cases, the tolling is only applied on a case-by-case basis. In contrast, the NLRB’s regulation does not apply to consideration of individual circumstances in automatically tolling the statute of limitations and does not put the burden of proving equitable tolling on the plaintiff/government.

Finally, the Court rejected the First Amendment argument in that the employer was not being forced to state anything by posting a government-embossed poster.

As previously reported herre, the NLRB’s requirement that employers post the notice of NLRA rights becomes effective on April 30, 2012.

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.

EEOC Receives and Resolves Record Number of Discrimination Charges in FY 2011

In January, the EEOC reported that it received a record 99,947 Charges of Discrimination and resolved 112,499 pending claims (reducing its backlog for the first time since 2002). Although many Charges cite multiple legal violations, retaliation remains the most frequent cited basis (at 37.4%) followed by race (at 35.4%). The number of sex and race discrimination allegations declined over FY 2010, but the number of age and disability discrimination allegations increased.

"Through its combined enforcement, mediation and litigation programs, the EEOC . . . obtain[ed] a record $455.6 million in relief for private sector, state, and local employees and applicants, a more than $51 million increase from the past fiscal year." The EEOC also filed 300 lawsuits (almost 6/week on average).

Monetary relief for violations of the ADA increased the most over the prior fiscal year, with the EEOC collecting $103.4 million. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.

This was the first full year for the Genetic Information Nondiscrimination Act (GINA) and the EEOC received 245 charges under this new statute.

More detailed statistics are available from the EEOC's website.