Sixth Circuit Rejects Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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 Supreme Court Rejects Immunity From Allegedly False Light Statements About Plaintiff's Termination

In late June, a divided Ohio Supreme Court affirmed the rejection of Cuyahoga County’s political subdivision immunity defense on a false light claim brought by a former employee.  The Court found that former employees fit within the immunity statute’s exception when the claims arose out of the employment relationship and plaintiffs were not required to still be employed when filing the claim.  Further, the Court found that the public statements made about her termination were sufficiently related to her employment to be covered by the statutory exception to subdivision’s tort immunity.  Piazza v. Cuyahoga Cty., No. 2019-Ohio-2499.  “There is no temporal limitation in R.C. 2744.09(B) that requires an ongoing employment relationship, either at the time a plaintiff’s claim against a political-subdivision employer accrued or at the time the plaintiff filed the claim against her political-subdivision employer.  There must, however, be a causal connection between the claim and the plaintiff’s employment relationship, whether ongoing or terminated, with the political-subdivision employer.”

According to the Court’s opinion, the media had reported on alleged mismanagement and corruption in the department where the plaintiff had once worked. She was transferred two months later and then, along with two other former co-workers, was terminated seven months after that.   The County announced that their termination was related to a reorganization of her prior department.  The County later explained that it could not justify keeping the terminated employees in their new jobs in order to protect their job security and claimed that the former administration had reassigned rather than fired them.   The plaintiff filed suit against the County on the grounds that the reckless statements created the false inference that she was involved in the alleged corruption.  The County moved for summary judgment on the grounds of, among other things, that it was immune from her claims, which arose after her employment had been terminated.

The Court did not address the merits of the plaintiff’s substantive claims.  False light claims are actionable, even if the statements are not defamatory, when:

[O]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The County’s motion for summary judgment on immunity grounds was denied and affirmed by the Supreme Court on the grounds that the false light claims arose in connection with the plaintiff’s employment and, thus, fit within a statutory exception to the County’s subdivision immunity.

As explained by the Court, the Political Subdivision Tort Liability Act at R.C. 2744

initially sets out a broad, general rule that a political subdivision is not liable in damages in civil actions for injury, death or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.

But it also contains a number of statutory exceptions, including one for claims arising out of employment at R.C. 2744.09(B), which provides that the Act

does not apply to, and shall not be construed to apply to * * * [c]ivil actions by an employee * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.

The Court agreed to address the following questions: 

whether R.C. 2744.09(B) requires an ongoing employment relationship between the plaintiff and the political-subdivision employer, either at the time the plaintiff’s claim accrued or at the time the plaintiff filed her complaint—and a factual question—whether Piazza’s false-light claim is relative to a matter that arises out of her employment relationship with the county.  

The County argued that “because the alleged tortious conduct—the statement by FitzGerald—occurred after the county terminated Piazza’s employment, her claim does not arise out of her employment relationship with the county.”  The Court rejected the County’s argument because the statute does not limit the exception to claims that arose during the course of the employee’s employment and thus, could apply to “any claim” of a former employee that “arises out of the employment relationship.” 

A claim “ ‘arises out of the employment relationship’ ” between an employee and a political-subdivision employer “ ‘if there is a causal connection or a causal relationship between the claims raised by the employee and the employment relationship.’ . . . The test under R.C. 2744.09(B) is one of causal connection, not of timing. 

. . . . because the phrase “arises out of” refers to the existence of a causal connection, the phrase, read in the context of the entire statute, requires only that there have been a causal connection between the claim and the employment relationship, whether or not the employment relationship was continuing or had terminated.  We conclude that R.C. 2744.09(B) does not require that the alleged tortious conduct underlying a claim against a political subdivision have occurred during the plaintiff’s employment by the political subdivision.

The Court found more plausible the County’s argument that the lawsuit must be filed by a current employee, but ultimately found the statute to be ambiguous on that point.  No court had ever construed the statute to require the employee to still be employed before filing suit.  Moreover, again, the General Assembly’s failed to explicitly require the lawsuit to be filed while the employees was still employed.  The County’s argument would lead to inequitable results when the General Assembly had commanded that the Act be construed to lead to “just and reasonable” results.

Reading the word “employee” in R.C. 2744.09(B) as requiring an ongoing employment relationship at the time a plaintiff files an employment-related claim against her political-subdivision employer would give rise to an unreasonable result.  As the Eleventh District has astutely noted, such a reading “would encourage employers to terminate employees to avoid potential liability when an incident has occurred.”  Fleming at ¶ 31.  It is unreasonable to presume that the General Assembly intended to incentivize an employer to terminate an employee who may have an employment-related claim to preserve its entitlement to political subdivision immunity.

Accordingly, the Court held “that R.C. 2744.09(B) does not require that a plaintiff have been employed by the political subdivision employer at the time she filed her lawsuit.” 

The plaintiff’s claims related to statements about the termination of her employment and connected her to a scandal relating to her former employment.  “Termination of employment is a matter that arises out of the employment relationship.”  Indeed, the only relationship between her and the speaker was an employment relationship.

The statement attributed to FitzGerald was directly related to Piazza’s performance, her employment with the county, and the county’s termination of her employment.  Neither Piazza’s termination nor FitzGerald’s statement explaining why she was terminated could have occurred absent an employment relationship between Piazza and the county.   . . .  Piazza’s claim is relative to a matter that arises out of her employment relationship with the county.

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 Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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 be changed or 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.

Start Your Engines: DOL Amends White Collar Salary Levels

Yesterday, the federal Department of Labor finally announced the issuance of a final regulation on the “white collar” overtime exemptions, raising the minimum required salary from approximately $23,400/year to $35,568/year (or $684/week).   For employees exempt under the “highly compensated” exemption, the minimum total annual compensation increases from $100k/year to $107,432/year (and the minimum salary increases as with the other exempt employees).   The new rule also permits employers to satisfy up to 10% of the minimum salary from nondiscretionary bonuses, incentive pay and commissions that are paid at least annually.  The new rule will take effect on January 1, giving employers three months to adjust their payrolls and examine whether to continue the exempt status of certain employees, or convert them to non-exempt status.  The new regulation replaces the Obama-era regulation that was to take effect on December 1, 2016 before it was stayed by a federal court and which had included annual increases in a higher minimum salary.


The salary basis test has been amended to include a variation of the Obama-era regulation provision permitting the 10% credit for non-discretionary bonuses, incentive compensation and commissions towards the minimum salary in §541.602(a)(3):

Up to ten percent of the salary amount required by § 541.600(a) may be satisfied by the payment of nondiscretionary bonuses, incentives and commissions, that are paid annually or more frequently. The employer may utilize any 52-week period as the year, such as a calendar year, a fiscal year, or an anniversary of hire year. If the employer does not identify some other year period in advance, the calendar year will apply. This provision does not apply to highly compensated employees under § 541.601.

The Obama-era rule required the variable compensation to be paid quarterly, instead of annually, but still only permitted a 10% credit.  


The regulation also almost doubles the minimum exempt salary for exempt employees in the motion picture industry, from $695/week to $1,043/week.

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 be changed or 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.

DOL Clarifies that FMLA Leave is Available to Care for Children and Parents Outside Medical Setting, Including to Attend School ISP Meetings.

Last month, the federal Department of Labor issued an Administrative Opinion letter that employees are eligible to take FMLA leave to attend meetings at their child’s school to discuss their Individualized Educational Program (IEP) required by the Individuals with Disabilities Education Act (IDEA).   FMLA Op Ltr No. 2019-2-A.  The DOL explained that the “analysis and conclusion in this opinion letter apply to any meetings held pursuant to the IDEA, and any applicable state or local law, regardless of the term used for such meetings.” The DOL had previously approved FMLA leave at attendance at meetings to discuss a parent’s care as well. The employee’s need to attend “IEP meetings addressing the educational and special medical needs” of the children —who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.”


As explained by the DOL,

The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a son or daughter who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

In the particular fact situation, the employee had already been approved for intermittent leave to care for her children, but the employer would not permit her to use FMLA leave to attend mandatory ISP meetings at the school. The “children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress.”  The DOL found that the employee’s

attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition.”  29 C.F.R. § 825.100(a); see also 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3).  As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b).  This includes taking leave to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable childcare for a child with a disability.

The DOL had previously approved FMLA leave for attendance at “[c]are [c]onferences related to her mother’s health condition,” because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.  WHD Opinion Letter FMLA-94 . . . “


In this situation, the employee attends

these meetings to help participants make medical decisions concerning [the] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [the] children’s wellbeing and progress with the providers of such services; and to ensure that [the] children’s school environment is suitable to their medical, social, and academic needs.  [The] child’s doctor need not be present at CSE/IEP meetings in order for [the employee’s] leave to qualify for intermittent FMLA leave. 

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 be changed or 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.