Sixth Circuit Affirms Dismissal of Age Discrimination Claim

This morning, the Sixth Circuit affirmed the dismissal of an age discrimination of a supervisor whose position has been eliminated in a reduction in force. Metz v. Titanium Metals Corp., No. 11- 3117 (6th Cir. 3-29-12). The Court concluded that employees laid off in a reduction in force have a higher standard of proof and cannot show that they were replaced by a younger individual when their duties were merely absorbed by the remaining employees. The Court also rejected the argument that references to the tenure and planned retirement of an older employee and the “new ideas” of the younger employee constituted direct evidence of age discrimination. Finally, the Court found nothing discriminatory in using a different standard to evaluate and compare employees for purposes of a RIF than is used in their annual performance evaluations.

According to the Court’s opinion, the plaintiff was a shipping supervisor who agreed to the promotion of a much younger supervisor to help him and an older supervisor when the company was experiencing record sales volume. At the time, the HR Manager indicated that the new employee would bring new ideas and might be able to replace the oldest supervisor when he retired in the near future (having already worked there for 42 years at that point). When the recession hit and sales volumes decreased dramatically, the company reduced costs by, among other things, reducing the number of shipping supervisors by one position. The company then evaluated all of the salaried employees and ranked them to determine which employees would be retained in the existing positions. The plaintiff ranked lower than his co-workers on this survey and was ultimately laid off.

The Court rejected the argument that the HR Manager’s comments constituted direct evidence of age discrimination. Tenure is not the same as age. References to the younger employee’s “new ideas” was ambiguous. Finally, mention of the planned retirement of the oldest employee did not constitute discrimination.

The Court also rejected the argument that the younger employee replaced the plaintiff because he had initially been promoted – with the plaintiff’s agreement – to help him. In addition, there was a reduction in the number of shipping supervisor position. Finally, the younger employee absorbed the plaintiff’s duties into his existing duties; they were not new duties.

Finally, the Court rejected the argument that management manipulated the RIF evaluation ratings to retain the younger employee over the plaintiff when they had traditionally received the same performance evaluation ratings. First, the employer retained the oldest shipping supervisor. There was also evidence that the plaintiff’s RIF rating was based in part because he “had occasionally been disrespectful toward management, had failed to be forthcoming about problems, and had failed to resolve conflicts among employees in [his] department.” Management had been unanimous in ranking the younger employee higher than him. The fact that their performance review ratings had been similar and the RIF evaluation was different was like comparing apples and oranges. One rated the employees against the same standard; one compared them to each other.

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.

OSHA Discourages Financial Incentives for Low Reports of Workplace Injuries

Earlier this month, OSHA released a brief enforcement memorandum to its regional offices and whistleblower program managers that placed a bulls-eye on common employer programs which reward employees and managers for reducing workplace injuries. OSHA seems to assume that a decrease in reportable injuries is a fiction that is created to receive a financial incentive and is masking the higher rate of workplace injuries and risks to employee safety. The basis for the memorandum is §11(c) of OSHA which prohibits employers from discriminating against employees who exercise their rights under the Act. 29 C.F.R. § 1904.36.

According to OSHA, “[t]here are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA's recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. 29 C.F.R. 1904.35(b)(1).” For example, “if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries that it is required to record under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made.” Moreover, “OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates. While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” (italics added).

Some of the “common potentially discriminatory policies” OSHA directs the regional offices and whistleblower program managers to scrutinize include:

1. A policy or practice of disciplining all employees involved in a workplace accident regardless of the circumstances. “OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) . . . . In other words, an employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury.”

2. A policy or practice of disciplining employees for the time or manner for reporting workplace injuries or illnesses. “OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee's right and ability to report. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination. In investigating such cases, factors such as the following may be considered: whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee had a reasonable basis for acting as he or she did, whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest.”

3. A practice of disciplining employees involved in accidents for violating safety rules when there is no evidence that the employer otherwise monitors for safety compliance, disciplines employees for violating the same rules in the absence of a reported accident, etc.

OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed. Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be considered. Vague rules, such as a requirement that employees "maintain situational awareness" or "work carefully" may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee.

4. Programs that reward employees for not reporting a workplace accident or illness. Disappointingly, OSHA believes that incentive programs for attending safety training are as effective as rewarding safe behavior. “For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or "near misses".

While OSHA has not banned these common safety incentive programs which reward employees for avoiding recordable cases or lost work time due to injuries, these practice will clearly receive more scrutiny during investigations and reviews of VPP applications and re-certifications. These issues will also likely be raised during any union disputes. In addition, another byproduct of this analysis is that these employer practices may now become the basis for wrongful discharge claims under Ohio’s public policy tort law.

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.

Franklin County Court of Appeals Holds Employee Responsible for “Possible Hit” in Background Check

Last week, a unanimous Franklin County Court of Appeals affirmed the denial of unemployment compensation to an employee who was removed from his new job pending clarification of “a possible hit” on his criminal background check. Roberts Elec. Constr. Co., Inc. v. Quinichett, 2012-Ohio-1156. The employee was hired for and began working at a temporary job on the condition that he pass a required background check. Unfortunately, something that came up in the BCII database and he was removed from the job pending clarification. He wasn’t cleared for four weeks, but by then, the temporary job had been completed and he was not rehired. The Court compared his situation to that of a social worker who failed to obtain her LISW within fifteen months as required as a condition of the promotion.

The ODJFS found that the employee had been discharged for just cause for violating a rule of the employer that required a clear background check within a reasonable time after being hired. The UCBR reversed on the grounds that “a possible hit” on his BCII report which was eventually found not to be an impediment to his employment was not the fault of the employee. Unfortunately, there is nothing in the decision indicating what the “possible hit” was. Was it a mistake by BCII? Was it merely an arrest, which does not indicate any guilt or fault by the employee? Was it a conviction (which the employee should have anticipated would come up) and he was cleared because the particular crime (or age of offense) did not disqualify him from his particular job? We cannot tell this from the opinion.

The Common Pleas Court reversed on the grounds that clearing a background check within a reasonable period of time was analogous to obtaining a professional license within a certain period of time. Since the Supreme Court had previously held that it constituted just cause to terminate a social worker for failing to obtain a required LISW within fifteen months, the trial court concluded that the employee in this case was similarly at fault for failing to obtain the clear background check within a reasonable period of time for the temporary job.

I have to admit that I am confused because the social worker in Williams had failed to pass the required exam in the required time, whereas in the case, there is no indication that the employee could have anticipated that “a possible hit” which did not ultimately disqualify him from employment could be his fault – in that he has no control over how the records are reported by BCII. One can only wonder if he was given the opportunity to provide information to clear his record within a few days or demonstrate a mistake and he simply failed to do so. However, from the sparse facts provided in the opinion, it appears that the court instead concluded that it was not the employer’s fault (for hiring an employee before s/he passed a background check) and therefore, it should not have to pay unemployment in this case.

In any event, the Court of Appeals affirmed the common pleas court that the employee was not entitled to unemployment compensation for his failure to pass the background check for a month. Thus, employees who are hired before passing their background checks (a very bad idea in my humble opinion) are not entitled to unemployment compensation when they are removed for “possible hits” in the BCII report – even if the BCII report is incorrect or the “hit” turns out to be an offense which does not disqualify them from employment.

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.

Franklin County Court of Appeals Affirms Dismissal of Sexual Harassment Claim Against Supervisor

Last week, the Franklin County Court of Appeals affirmed the dismissal of a sexual harassment and discrimination claim involving harassment by the supervisor of the area next to the plaintiff's work area. McGraw v. Pilot Travel Ctrs., L.L.C., 2012-Ohio-1076. The Court concluded that the employer was not liable for any sexual harassment that may have occurred on Boxing Day 2009 because the supervisor did not directly manage the plaintiff and the employer took reasonable steps to prevent further harassment. The fact that the plaintiff resigned a month later (which she attributed at the time to insufficient work hours) precluded her from showing that the employer's steps were not reasonable. The Court further found that the supervisor's regular references to her as "sweetie" and "baby" were insufficiently severe or frequent to create a hostile work environment. Finally, the Court dismissed the discrimination claims on the grounds that she did not identify any males who were treated better or were hired to replace her.

According to the Court's unanimous opinion, the plaintiff worked the night shift in the restaurant section of the employer's store. One of the supervisors for the store (who did not have significant authority over the plaintiff except when she occasionally filled in as a cashier in the store) worked the second shift and generally only overlapped with plaintiff's shift for about two hours/day. Soon after he began working at the store, the plaintiff complained to the general manager of the store and restaurant that the supervisor often smelled of alcohol and referred to her as "baby." She did not feel that the manager took any action on her complaint and she complained several more times about the supervisor referring to her as "sweetie," "baby," and "hun."

On December 26, 2009, the supervisor filled in on the night shift for another employee. During the course of the night, he rubbed up against the plaintiff, suggested that they engage in sexual acts in the back hallway, and kept asking her to hug him or hold his hand. The plaintiff reported the incident to her supervisor a few days later and to the manager a few days after that. She said that she never wanted to work with him again. She never did.

The plaintiff never knew what disciplinary action, if any, was taken against the supervisor. She began looking for another job after a week and resigned about two weeks after the incident. Her resignation letter attributed her departure to the few number of hours she had been scheduled and poor management. She did not mention the Boxing Day incident with the supervisor.

The Court declined to hold the employer vicariously liable for the supervisor's Boxing Day actions because he was not her direct supervisor or manager.

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. . . . The 6th Circuit has held a supervisor is "an individual who 'serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment.' "

The Court found that the supervisor did not have any authority to hire or fire her and only was responsible for her for a few minutes on occasion when she would cover the cash register at the store if the restaurant was slow. This was insufficient to make him her supervisor and did not constitute significant control over the terms and conditions of her employment. "While [he] was on a higher level of authority than [her], he did not have any direct control over [her] and only indirect control in limited instances."

As to the seemingly inconsistent statements between [her] deposition and [her] affidavit, we find the deposition testimony to be more on point and directly answers the question as to whether [he] was actually [her] supervisor. Further the conclusory statements made in the affidavit do not establish [him] as her supervisor without corresponding evidence as to how [he] controlled her conditions of employment. We find that, while [he] was a manager, he was not [her] designated supervisor. While he could direct actions when [she] was helping out on the travel center side he could not significantly change her conditions of employment, . . .

Having concluded that the supervisor was really a co-worker for purposes of evaluating the employer's liability, the Court then found that the employer's actions were reasonable under the circumstances to prevent further harassment. Prior to the Boxing Day incident, the supervisor's references to her as "baby" or "sweetie" for at most two hours of her shift were insufficiently severe or pervasive to constitute a hostile work environment. Moreover, even if the Boxing Day behavior were unacceptable, it was never repeated because management took steps to ensure that they were never scheduled to work at the same time again and spoke to the supervisor about his unacceptable behavior.

A company may be held liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. A response is generally adequate if it is reasonably calculated to end the harassment. And whether a response is effective is measured not by the extent to which the employer disciplines or punishes the alleged harasser, but rather if the steps taken by the defendant halt the harassment. Evaluation of the response is a fact-specific inquiry and must be done on a case-by-case basis.

While it cannot be certain that the employer would have continued this work schedule, the plaintiff's subsequent resignation rendered that issue irrelevant.

The Court rejected the plaintiff's claim that she was constructively discharged on account of her sex since she could not identify any males who were treated better or hired to replace her.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Supreme Court Rules Eleventh Amendment Bars Federal Court Claims for Damages Based on Self-Care Provisions of FMLA

Earlier today, a divided United States Supreme Court affirmed the dismissal of an FMLA claim brought in federal court by an employee of the Maryland state court system. Coleman v. Court of Appeals of Maryland, No. 10-1016 (3/20/12). Four of the Court justices held that the self-care provisions of the FMLA (in contrast with the family care provisions) do not implicate the Fourteenth Amendment, and thus, do not abrogate a state’s Eleventh Amendment immunity for damages in federal court. In other words, the Eleventh Amendment bars claims for damages brought in federal court against states based on the FMLA’s provisions permitting employees to take medical leave for their own serious health conditions. Justice Scalia concurred in judgment only. The male plaintiff – who brought suit after he was threatened with termination for taking sick leave -- attempted to argue that Congress enacted the FMLA in part because of a concern with sex discrimination. However, according to the Court’s plurality opinion, there is no evidence that Congress enacted the self-care provisions of the FMLA based on a concern with sex discrimination. Therefore, even though the self-care provisions also encompass women taking medical leave for prenatal care and even though most single parents needing self-care FMLA leave are women, they will not be able to bring claims for damages in federal court if they are denied FMLA leave because of their own serious health condition.

The Court had previously held in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003) that the Eleventh Amendment was abrogated for the FMLA’s family-care provisions. “In enacting the FMLA, Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies. States had facially discriminatory leave policies that granted longer periods of leave to wom­en than to men.” However, “[t]he same cannot be said for requiring the States to give all employees the opportunity to take self-care leave.” Moreover, “what the family-care provi­sions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional viola­tions accompanied by a remedy drawn in narrow terms to address or prevent those violations.”

When the FMLA was enacted, “ninety-five percent of full-time state- and local- government employees were covered by paid sick leave plans and ninety-six percent of such employees likewise enjoyed short-term disability protection. . . . The evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutral self-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take self ­care leave more often than men. Congress considered evidence that “men and women are out on medical leave approximately equally.” H. R. Rep. No. 101–28, pt. 1, p.15 (1989) (hereinafter H. R. Rep.). Nothing in the record shows employers formulated self-care leave policies based on a contrary view. Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs.

The Court also rejected the argument that it would have a disparate impact on women to deny them FMLA protection in federal court. “Although disparate impact may be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”

Justice Scalia joined in judgment only because he felt the Court’s test under § 5 of the Fourteenth Amendment is too subjective to be useful and could be applied by either the plurality or the dissent to obtain different results. Instead, he advocated that Congressional power under § 5 should be limited to remedy conduct that itself violates the Fourteenth Amendment. “Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.”

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.