Divided Sixth Circuit Dismisses Age Discrimination Claim of News Anchor Who Objected to Assignment and Walked Out

This morning, a divided Sixth Circuit affirmed the dismissal of an age discrimination claim brought by a former news reporter who walked out of the station after he said that he planned quit following a suspension for objecting to an assignment. Sander v. Gray Television Group, Inc., No. 10-6120 (6th Cir. 4-19-12). This is yet another case in which the majority of the Court found it to be non-discriminatory to ask older employees about their retirement plans for succession planning purposes. The majority found that the plaintiff could not show that he was terminated on account of his age because he had resigned when he walked out after telling people he planned to quit. They also found the employer had a legitimate non-discriminatory reason to fire him based on his refusal to perform an assignment within his job duties and then telling co-workers he planned to quit over it. Management was justified in concluding that it would undermine his supervisor to permit the anchor to object like this to routine assignments. However, the dissent noted that his resignation had been ambiguous and the management admitted that they knew he did not really intend to quit. Moreover, there was evidence that his direct supervisor had previously made derogatory comments about his age and that other older anchors had potential claims for age discrimination as well. The majority dismissed those comments because the supervisor was not the decisionmaker.

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 Appeals Court Rejects Invasion of Privacy, Retaliation and Age Discrimination Claims

Yesterday, the Franklin County Court of Appeals affirmed the dismissal on summary judgment of an age discrimination claim involving the denial of a promotion, and retaliation and a claim for invasion of privacy for not maintaining the confidentiality of a performance plan document. Dautartas v. Abbott Laboratories, 2012-Ohio-1709. First, the Court had no difficulty rejecting the denial of promotion claim in that the person selected was only two years younger than the plaintiff and the plaintiff testified that one of the decisionmakers stated afterwards that she did not even know the plaintiff's age. Consideration of the plaintiff's age for purposes of succession planning (i.e., determining who might need to be replaced) was by itself insufficient to constitute evidence of direct discrimination. The passage of two months between the plaintiff's complaint of discrimination and the alleged retaliatory action was too remote by itself to create the inference of retaliation, particularly when the plaintiff had requested the Human Resources Manager to not conduct an investigation. Finally, the Court rejected the invasion of privacy claim because the attachment of a performance plan to a calendar entry accessible by plaintiff's peers was shown to be false, was not an intentional action and did not concern purely private matters because the statements concerned her professional and business life.

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.

NLRB Posting Rule Postponed Again

Yesterday, the United States Court of Appeals for the District of Columbia Circuit granted an emergency motion for an injunction pending appeal in the National Association of Manufacturers v. NLRB, No. 12-5068 and the NLRB announced that it will comply with the stay and file a cross-appeal. As reported here last month, the District Court had upheld the NLRB’s new requirement for most private sector employers to post a notice of employee rights under the National Labor Relations Act (NLRA), but simultaneously concluded that the enforcement actions which the NLRB intended to take to enforce the new requirement were outside its authority under the NLRA. The new posting requirement was to begin at the end of this month on April 30, 2012. An appeal was filed by the NAM and it sought to enjoin the new posting requirement pending the appeal. The NRLB objected to staying the posting requirement, while also indicating that it might appeal the portion of the decision denying its enforcement powers. (In the meantime, a federal court in South Carolina rejected the NLRB’s authority to require employers to post the notice). The Court of Appeals ultimately concluded that because the posting requirement had been stayed by the NLRB since August during the pendency of the district court litigation, staying it another six months or so while the appeal progressed was advisable to maintain the status quo.

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.

Supreme Court: School Administrators Entitled to Board Hearing Upon Request Before Dismissal

This morning, a unanimous Ohio Supreme Court reversed two lower courts and held that “after an administrator has been informed that her contract will not be renewed, upon the administrator’s request for a meeting with the school board to discuss the nonrenewal of her contract, R.C. 3319.02(D)(4) requires the board to meet in executive session with the administrator to discuss the reasons for nonrenewal.” State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., No. 2012- Ohio-1484.

According to the Court’s opinion, the principal had been accused of wrongdoing by staff (whom she claimed were merely disgruntled) and placed on paid administrative leave in May 2007. In the meantime, however, based on an internal investigation, the Assistant Superintendent informed the principal in June 2007 that she would remain on administrative leave during the next academic year and he would be recommending that her contract not be renewed for 2008-09. When the principal had been informed in June 2007 of the Assistant Superintendent’s recommendation, she requested her hearing before the Board, but was never informed in advance of when the Board would be voting and was never given the opportunity to meet with the Board before the vote was taken. In her December 2007 and February 2008 performance evaluations, the Assistant Superintendent reiterated that he would be recommending that her contract not be renewed. The Board accepted the Assistant Superintendent’s recommendation in March 2008 without ever giving her notice of the agenda or meeting with the principal as she requested in June 2007. The State Department of Education ultimately found in November 2008 that nothing significant had been proved against the principal.

A mandamus action was filed with the common pleas court where the principal sought reinstatement. It granted summary judgment for the school, which was affirmed on appeal. The appellate court found that her June 2007 request was premature because it was months before her performance evaluations and before the Board was scheduled to meet to discuss and vote on the superintendent’s recommendation. The Supreme Court found that there was nothing in the statute which supported the lower court’s imposition of these burdens on a school administrator.

R.C. 3319.02(D)(4) states:

Before taking action to renew or nonrenew the contract of an assistant superintendent, principal, assistant principal, or other administrator under this section and prior to the last day of March of the year in which such employee’s contract expires, the board shall notify each such employee of the date that the contract expires and that the employee may request a meeting with the board. Upon request by such an employee, the board shall grant the employee a meeting in executive session. In that meeting, the board shall discuss its reasons for considering renewal or nonrenewal of the contract. The employee shall be permitted to have a representative, chosen by employee, present at the meeting.

Thereafter, R.C. 3319.02(D)(5) states:

Nothing in division (D) of this section shall prevent a board from making the final determination regarding the renewal or nonrenewal of the contract of any * * * administrator. However, if a board fails to provide evaluations pursuant to division (D)(2)(c)(i) or (ii) of this section, or if the board fails to provide at the request of the employee a meeting as prescribed in division (D)(4) of this section, the employee automatically shall be reemployed at the same salary plus any increments that may be authorized by the board for a period of one year, except that if the employee has been employed by the district or service center as an assistant superintendent, principal, assistant principal, or other administrator for three years or more, the period of reemployment shall be for two years.
. . . .
[N]othing in the language of the statute, which clearly contemplates the context of contract renewal, requires that the request for a meeting occur after the board makes a final evaluation and informs the administrator that the contract will not be renewed, and after the board gives the administrator notice of her right to request a hearing. Rather, R.C. 3319.02(D)(4) plainly and simply states that notice must be given “[b]efore taking action to renew or nonrenew the contract.” There is no temporal restriction that requires the request for a meeting to occur at any given time, and no proper basis from which to conclude that the request for a meeting may not be made until after final evaluation. Had the General Assembly intended for the request for a meeting to be dependent on any temporal specificity, it would have included that specificity in the statute itself, as it did in other sections of this statute.

The Court rejected the argument that an administrator could play games by always prematurely requesting a hearing the hope the School would forget because “R.C. 3319.02(D)(4) requires the board to meet in executive session with the administrator to discuss the reasons for nonrenewal only after an administrator has been informed that her contract will not be renewed, and only after being so informed may an administrator request a meeting with the school board to discuss the nonrenewal of her contract.”

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 Issues Final Rule on ADEA’s “Reasonable Factor Other than Age”

This morning, the EEOC published in the Federal Register its final rule on the ADEA standard for discriminating based on a “reasonable factor other than age” in 29 CFR 1625.7. “ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age” (RFOA). The Rule addresses issues which arose after the Supreme Court ruled in 2008 “that disparate-impact claims are cognizable under the Age Discrimination in Employment Act (“ADEA”) but that liability is precluded when the impact is attributable to a reasonable factor other than age.” The new Rule takes effect on April 30, 2012.
Among the notable changes:

• The plaintiff bears the burden of isolating and identifying the employment practice that has an unlawful impact on individuals within the protected age group.


• The employer bears the burden of proof on the RFOA defense (i.e., it is an affirmative defense).


• A RFOA “is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances. Whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”


• The Rule provides a number of factors to consider.
  

The new Rule provides as follows:

(b) When an employment practice uses age as a limiting criterion, the defense that the practice is justified by a reasonable factor other than age is unavailable.
(c) Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a “reasonable factor other than age.” An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities.
(d) Whenever the “reasonable factors other than age” defense is raised, the employer bears the burdens of production and persuasion to demonstrate the defense. The “reasonable factors other than age” provision is not available as a defense to a claim of disparate treatment.
(e)(1) A reasonable factor other than age is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances. Whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.
(2) Considerations that are relevant to whether a practice is based on a reasonable factor other than age include, but are not limited to:
(i) The extent to which the factor is related to the employer's stated business purpose;

(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
(iii) The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
(3) No specific consideration or combination of considerations need be present for a differentiation to be based on reasonable factors other than age. Nor does the
presence of one of these considerations automatically establish the defense.

The old rule provided only that:

(a) Section 4(f)(1) of the Act provides that * * * it shall not be unlawful for an employer, employment agency, or labor organization * * * to take any action otherwise prohibited under paragraphs (a), (b), (c), or (e) of this section * * * where the differentiation is based on reasonable factors other than age * * *.
(b) No precise and unequivocal determination can be made as to the scope of the phrase “differentiation based on reasonable factors other than age.” Whether such differentiations exist must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.

(c) When an employment practice uses age as a limiting criterion, the defense that
the practice is justified by a reasonable factor other than age is unavailable.
(d) When an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a “factor other than” age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity. Tests which are asserted as “reasonable factors other than age” will be scrutinized in accordance with the standards set forth at part 1607 of this title.
(e) When the exception of “a reasonable factor other than age” is raised against an individual claim of discriminatory treatment, the employer bears the burden of showing that the “reasonable factor other than age” exists factually.
(f) A differentiation based on the average cost of employing older employees as a group is unlawful except with respect to employee benefit plans which qualify for the section 4(f)(2) exception to the Act.

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.