Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


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 Affirms Dismissal of Religious Discrimination and Harassment Claims

On Friday, a divided Sixth Circuit affirmed an employer’s summary judgment on a religious discrimination and harassment claim, but reversed the 12(b)(6) dismissal of a similar First Amendment retaliation claim where the employee had alleged that his supervisor held him to a higher standard than his co-workers and had previously indicated that he was tired of the plaintiff’s complaints. Hudson v. City of Highland Park, No. 19-1036 (6^th Cir. 2019).  The Court’s majority found that the comments made by his co-workers which disparaged his faith were insufficiently severe or pervasive and did not interfere with his job performance.


According to the Court’s opinion, the plaintiff regularly criticized over a five-year period the perceived immorality of his co-workers and the administration of his department and in 2014 filed an OSHA complaint about neglected safety issues.  His co-worker responded with disrespectful comments about his faith and his supervisor allegedly stated that he was tired of the plaintiff’s complaints.   In 2015, his supervisor reported that the plaintiff had overreported his working hours and the plaintiff claimed that it had been an honest mistake, but he was suspended pending investigation.  In meeting with the union during the investigation, the city also added an allegation that the plaintiff had claimed to work for two different employers during the same hours.  Taking the union’s advice to assert his Fifth Amendment rights, the employer immediately terminated the plaintiff for refusing to respond to the new allegation.   At that point, a union dispute led to new union officers who decided to not proceed with the plaintiff’s grievances.  The EEOC dismissed his charge and this litigation ensued.


The trial court dismissed the First Amendment retaliation claim on the pleadings on the basis that they were conclusory and failed to alleged specific facts to support such a claim.  The Court found sufficient factual allegations in the complaint to support a retaliation claim despite the passage of a year between the OSHA complaint had been filed and the plaintiff’s firing and the plaintiff had been complaining for five years without retaliation.

While a short passage of time between the protected speech and the adverse action sometimes helps a retaliation claim, the opposite is not necessarily true.  Our conventional view is to be skeptical that timelines alone prove anything.  [The supervisor] does not point to any case in which the mere passage of time dooms a retaliation claim.  More to the point, [the plaintiff] has more than a timeline, short or long, to show causation.  He alleges that [the supervisor] expressed frustration with his complaints—“he was tired of [the plaintiff’s] complaints”—and knew that [the plaintiff] reported the firefighters to a government agency for their misbehavior.

When the employer pointed out that similar claims were dismissed on summary judgment based on the actual evidence (and plaintiff’s lack of knowledge to prove his case), the Court refused to consider evidence produced during discovery to evaluate the dismissal of a claim at the pleading stage (even though it seems obvious that summary judgment will be granted to the employer on this claim as it was for the other claims).  It also rejected an implied procedural wavier argument.

The Court affirmed summary judgment on the remaining claims.  His due process claims were rejected because he had several state-provided post-termination proceedings available to him with state agencies and courts that he never pursued concerning the irregularity and perceived mishandling of his union grievances.


Similarly, his religious retaliation claims were dismissed on the grounds that he failed to produce evidence of pretext that another firefighter had similarly falsified his time sheet without being fired. There was nothing in the

record that establishes anyone ever reported [the co-worker] for double-dipping or that any city employee even believed [the co-worker] had overreported his hours.  The closest [the plaintiff] comes to offering something concrete on the second point is testimony from a payroll director who had to determine whether [the co-worker] should be paid for time he spent on military leave.  The payroll director admitted that [the co-worker] should not have been paid while on leave, but the director never stated [the co-worker] had done anything wrong.  

The Court rejected the plaintiff’s allegations that the co-worker was never similarly investigated because the supervisor conspired with the co-worker to inflate his time sheets.  The plaintiff testified that the co-worker had full time-sheets for days when he was on military leave and the supervisor reviewed all of the time sheets.  The Court found it dispositive that the plaintiff never saw the co-worker complete those time sheets and did not know how the logs were processed and never asked questions about it.


Nonetheless, the Court rejected some of the employer’s arguments about how the plaintiff “started it” by openly criticizing his co-workers morality (regarding, among other things, pornography and extra-marital affairs, etc.).

Employees are free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat.   . . . Employees are no less free to root legitimate criticisms about the workplace in their faith than in any other aspects of their worldview.  For many people of faith, their religion is not an abstraction.  It has consequences for how they behave and may require them to be witnesses and examples for their faith.  That reality does not permit differential treatment of them because they criticize behavior on moral grounds stemming from religious convictions as opposed to moral grounds stemming from secular convictions.

The Court also affirmed dismissal of the hostile work environment claim on the grounds that the co-worker comments were not severe or pervasive enough.

“[T]easing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”   . . . .  All [the plaintiff] can show are periodic rude comments from his co-workers, which generally do not suffice. . . . . the reality remains that Title VII does not serve as a “general civility code for the American workplace.”

[The plaintiff] has not presented sufficient evidence that these remarks unreasonably interfered with his work performance.  [He] admits that he never received fewer assignments or worse assignments because of his religious beliefs.  Nor did he ever stop going on fire runs because of the way his colleagues treated him.  [He] never complained to [his supervisor], his supervisor, about the harassment, even though he was plenty willing to tell the leaders of the station about other conduct of the firefighters—namely their intimate affairs.  [His] confidante at the station, Eric Hollowell, also a religious man, heard similar comments directed at him but interpreted them as a joke.  Hollowell noted, too, that the firefighters had a practice of saying grace together before meals, a practice that hardly conveys hostility based on faith.  While Hudson’s colleagues at times did not extend to him the civility and respect that should be the norm in the workplace, that doesn’t mean their conduct violated Title VII.

The other judges did not agree with everything. One would have affirmed dismissal of the First Amendment retaliation claim.  Another took issue with dismissal of the hostile work environment claim on the grounds that the evidence showed the comments were sufficiently severe and pervasive to create a jury question.


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 Appellate Court Rejects Most of Employee’s Incentive Compensation Claims

Last month, the Ohio Court of Appeals mostly affirmed an employer’s summary judgment in a case where a former employee challenged the amount and payment of his incentive compensation.   Bollman v. Lavery Automotive Sales, 2019-Ohio-3879.  The employee never signed an incentive compensation agreement and, instead, relied on a chart that the employer distributed each year summarizing its compensation plan. The court found that the employer was free to change that chart and incentive plan at will.  Further, the court found that sales commissions do not constitute wages under Ohio’s prompt payment statute.  However, the court agreed with the employee that the employer had been unjustly enriched when it deducted $20/per car more from the bonus pool than it was being charged by GM for its incentive compensation system.


According to the Court’s opinion, the employee was employed at will as a sales consultant.  He was paid a salary plus a commission for every car he sold over 10 each month based on a bonus chart provided by the employer when he was hired.  After 6 years, the employee began participating in a GM incentive program that paid $100/car sold and required the employer to pay $25/car into the bonus pool.   This GM program was in addition to the commissions he received from his employer.  The employer informed its sales staff that it would deduct the GM $25/car charge from their bonus pool.  When GM increased the charge to $30/car, the employer began deducting $50/car from the bonus pool.  When the employees objected, the employer told them that they could resign.   The employee resigned a few years later and brought suit.

The Court rejected the employee’s breach of contract claim based on its deduction of the GM charge from the bonus pool.  The chart did not contain any explicit terms and he conceded that other incentive compensation plans were not documented either.  Further, employee admitted that the employer orally informed him that it would be deducting the GM charge from the bonus pool and that the employer continued to pay his base salary.  The employee objected, but continued to cash his paychecks.   The employer was free to change the compensation plans at will.

The Court also rejected the employee’s claim that the bonus deduction violated Ohio’s prompt wage payment statute: “The per vehicle dealer contribution charges Appellee withheld were deducted from Appellant’s commission. This Court has held the definition of the word “wage” as used in R.C. 4113.15 does not include commissions, which are not guaranteed pay or reimbursement for expenses.”


The Court, however, agreed with the employee that the employer may have been unjustly enriched by deducting $50/car from the bonus pool when GM was only charging it $30/car.

The doctrine of unjust enrichment “applies when a benefit is conferred and it would be inequitable to permit the benefitting party to retain the benefit without compensating the conferring party.” Garb–Ko, Inc. v. Benderson, 10th Dist. No. 12AP–430, 2013–Ohio–1249, ¶ 25 (Citation omitted). The elements of an unjust enrichment claim are: (1) the plaintiff conferred a benefit on the defendant, (2) the defendant knew of the benefit, and (3) it would be unjust to allow the defendant to retain the benefit without payment to the plaintiff.

While the Court had no problem with the employer offsetting the amount it was charged by GM from the employee’s sales commissions/bonus pool, it concluded that the employer “was unjustly enriched by deducting amounts which exceeded the per vehicle dealer contribution charge it paid to General Motors . . . “


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 Rejects Honest Belief Defense in Regarded As ADA Claim Based on Circumstantial Evidence That Questioned Employer’s Credibility.

On Wednesday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an ADA “regarded as” discrimination case and rejected the employer’s honest belief defense based on evidence produced by the plaintiff to create a jury question about pretext.   Babb v. Maryville Anesthesiologists PC, No. 19-5148 (6^th Cir. 11-6-19). First, the plaintiff produced expert witness evidence about the reasonableness of the plaintiff’s professional conduct, which made debatable the reasonableness of the employer’s decision, particularly when no investigation had been conducted before her termination.  In other words, there were no particularized facts supporting the employer’s decision beyond the initial report of allegations.  Second, the plaintiff relied on an email sent by a co-worker claiming that she had been fired because of concerns with her vision.  This was arguably not a stray remark when the co-worker had been requested to send the email by one of the decision-making physicians who failed to deny in his affidavit that he told her what to say.


According to the Court’s opinion, about a month after the experienced plaintiff CNRA was hired in June 2015, a physician noticed that she had poor eyesight (because of how close she had her face to a monitor in order to read it). She admitted that she had “degenerative retinal condition” that made it hard for her to read certain screens and medical records,” but assured him that it did not affect her ability to perform her job.  That physician told another and claimed that the plaintiff would be blind within 10 years, which the plaintiff disputes.   After a few other physicians expressed similar concerns, a meeting was held with the plaintiff on October 30 where she had explained that she had been diagnosed a decade earlier and was requested to obtain medical clearance that she could safely perform her job duties and to consider LTD insurance.  However, one of the physicians indicated that they may need to consult with counsel because her ophthalmologist was unlikely to give them the necessary assurance.   Otherwise, she was told that she was a “good fit” with the practice.


The plaintiff consulted with her ophthalmologist, but the Court noted that there was nothing in the record about what the plaintiff was told or, importantly, what – if anything -- she told her employer.  Apparently at the suggestion of two of the physicians to ensure that she was not misreading data, the plaintiff began having her co-workers read hospital monitors to her and this simply aggravated concerns about her eyesight and these concerns were noted in her performance evaluation.   The employer was then informed of two apparent clinical judgment errors that the plaintiff made in patient care which were unrelated to her eyesight.  No investigation was conducted concerning the errors, but at a partnership meeting the following week, her eyesight and the errors were discussed and the decision was made to terminate her for the alleged errors.   She was informed in mid-January that she was terminated solely because of the supposed errors, which shocked her because no one had questioned her about the issues beforehand.

A new co-worker, after discussing the termination with one of the physicians (who did not have responsibility for HR), then emailed the other CNRAs (at the physician’s direction).  She explained in her email that the plaintiff had been terminated because of concerns with her eyesight and “a few other issues” and that the plaintiff had failed to produce documentation that she could safely perform her job.  The undisputed evidence was that this new employee had never been told why the plaintiff had been fired and instead that she had based her explanation on staff gossip.  The particular physician was never questioned about it during the litigation and his affidavit was strangely silent about what information he told the new employee about why the plaintiff had been terminated.   


The plaintiff found another job as a CNRA and no issues were raised about her eyesight or professional judgment.  She filed an EEOC Charge and sued on the basis that she was illegally terminated because she was regarded as disabled when, in fact, she was not.   During the litigation, she supplied an expert affidavit that the alleged mistakes she had made were not in fact judgment errors, but were normal incidents during which she performed reasonably.   The trial court excluded the expert affidavit, and granted the employer’s motion for summary judgment, relying primarily on the honest belief defense.  On appeal, the Court ruled that portions of the expert affidavit were still admissible and could be used to show that the employer’s explanation for her discharge was pretextual.


To prevail on a “regarded as” discrimination claim, the Court held that the plaintiff must show

 that their employer believed they had a “physical or mental impairment,” as that term is defined in federal regulations.  The employer may then rebut this showing by pointing to objective evidence “that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.”

“[E]ven if an employee establishes that their employer “regarded” them as disabled under the aforementioned standard, the employee must still show that their employer discharged them (or took some other form of adverse employment action against them) because of, or “but-for,” their actual or perceived physical or mental impairment.”  This can be shown with either direct evidence or using the circumstantial burden of proof.   Under the latter method, if the employer articulates a non-discriminatory reason for its action, “an employee can show that an employer’s explanation was pretextual in “three interrelated ways”: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.”  Further, the plaintiff “may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.” At the summary judgment stage, the employee is only required to identify a disputed issue of material fact and is not required to prove her case.


The Court found sufficient evidence for the jury to find that the plaintiff was perceived as disabled:

Viewed in the light most favorable to Babb, the record shows, not only that Maryville physician-owners and employees openly expressed concern about Babb’s “degenerative retinal condition,” including on Babb’s job evaluation and during the meeting at which Maryville decided to fire Babb, but that Maryville’s head of personnel (Dr. Robertson) met with Babb specifically to discuss Babb’s vision, and, during that meeting, asked Babb if she had disability insurance.  See Babb, 361 F. Supp. 3d at 775 (emphasizing this latter fact).  More still, after that meeting, Dr. Robertson advised her colleagues that Babb’s vision issues might require them to consult an attorney.  This is more than enough evidence from which a reasonable juror could find that, in January 2016, Maryville genuinely believed Babb had a “physiological . . . condition” affecting one of her “body systems,” namely, her vision. 

While the Court agreed that requesting a fitness-for-duty examination (as happened here on October 30) cannot be used against the employer, this case was distinguishable from those cases where the employer ONLY requested a fitness-for-duty examination and did not also mention the concerns on a performance evaluation or discuss the medical condition while deciding to terminate the employee, etc.


The Court then found that there was sufficient evidence for the jury to consider whether the employer’s explanation was pretextual.  First, there was a question about whether the plaintiff’s two errors were in fact errors reflecting terrible clinical judgment which would justify her termination or, based on the expert affidavit, reflected that she performed reasonably under the circumstances.  “This dispute matters because the less serious Babb’s clinical mistakes, the more likely they were not the “real” motivation behind Babb’s termination.” The Court rejected the employer’s honest belief defense because it “failed to make a reasonably informed and considered decision before taking its adverse employment action.” The expert’s affidavit challenged “the likelihood that a reasonable anesthesiology practice would have actually relied on those facts to fire an experienced nurse practitioner like Babb.”


Second, the Court found sufficient disputed evidence as to whether the alleged clinical errors actually motivated the employer’s decision.  The employer insisted that she was fired solely because of the clinical errors and never contended during litigation that her vision posed a safety hazard.  But, hours after the plaintiff had been terminated, a co-worker sent an email immediately after speaking with one of the decision-making physician partners that the plaintiff had been terminated primarily because of questions about her vision.  Finally, her vision was a significant issue of discussion during the meeting when the decision was made to terminate her employment and was even discussed in her performance evaluation.   “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”


The Court refused to draw any favorable inferences in favor of the employer based on undisputed evidence that the co-worker’s email had contained information which had never been relayed to her by any of the physicians.  Rather, the Court found that the other undisputed facts made the co-worker’s explanation about her source of information a disputed issue of fact that only a jury could resolve.    In particular, ruling in the employer’s favor would require a finding that she “is a credible witness, which, of course, we cannot do at this stage.”


The Court also refused to disregard the co-worker’s email as an irrelevant “stray comment” because, among other things, the particular physician never submitted any evidence about what he told the co-worker in his affidavit and apparently was not deposed about the information either:

Aycocke’s e-mail, however, was not the kind of “stray discriminatory remark,” offered by a “non-decisionmaker,” disconnected to the decisional process,  . . . Rather, Aycocke’s e-mail was a quasi-official communication, written at the behest of one of the key players in Babb’s termination (Dr. Proffitt), almost immediately after Babb’s termination, following an in-person conversation with Dr. Proffitt.  It was not a speculative claim shared privately among colleagues; it does not read like gossip.  Indeed, despite submitting a declaration in discovery,  . . .  Dr. Proffitt has never testified to the contrary.  In light of this rather unique context, then, a jury should decide whether Aycocke based the content of her e-mail on “rumor and innuendo,” as she and Dr. Robertson testified at their depositions, or whether she based it on the word of Dr. Proffitt, as the circumstantial evidence would seem to suggest.  And, if a jury could find that Aycocke based her e-mail on the word of Dr. Proffitt, a jury could also find that Maryville acted pretextually when it fired Babb for “clinical errors.”

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.

Single Paragraph General Release Upheld By Sixth Circuit

On Friday, the Sixth Circuit Court of Appeals affirmed the dismissal of retaliation and discrimination claims filed by a former employee who had signed a complete general release of all claims.  Hank v. Great Lakes Const. Co., No. 19-3118 (6^th Cir. 10-18-19).   While the holding is not unusual under the circumstances, the Court engaged in an extensive analysis of each argument challenging the validity of the release, and so, is a good refresher.  

The plaintiff and his former employer apparently began having problems after he injured himself at work and required knee surgery.  He was required to return to work sooner than he preferred and threatened to file another claim.  Instead, a few months later, he was confronted with video evidence that he had falsified his time card by claiming to have reported to work sooner than he had actually done.  He was offered the opportunity to be laid off permanently with no opportunity for rehire (instead of being terminated for willful misconduct that would disqualify him from receiving unemployment benefits) if he signed a complete release of all claims against the employer and his union.  The release did not comply with the OWBPA and he was not given 21 days to consider it or the opportunity to consult with an attorney.  He signed it and then breached it the following week by filing a grievance with his union and then later filing a lawsuit against his union and the employer alleging state law claims of retaliation, disability and age discrimination and a hybrid 301 claim.  He did not assert an ADEA claim.

The Court rejected the first argument – that the general release was void because it did not specifically exempt non-waivable rights to unemployment and workers compensation and future discrimination claims.  Problem is, the plaintiff was not asserting those claims in this action and the release was valid to his other claims: retaliation, §301 and state law discrimination claims.  Personal rights can be waived as long as they do not violate public policy.  Merely “because the release could conceivably be applied in a way that would be illegal,” does not make it unenforceable against the pending claims.  His release of “any sort of claim” as well as releases of “any and all claims” are generally enforceable under Ohio law to bar most claims, but will not be applied to bar unwaivable claims. “[A] generally worded release can bar claims that are waivable, but it cannot bar claims that aren’t waivable. A general release is not void on its face; rather, its enforceability depends on the claim that is to be released.”

Second, the Court rejected the plaintiff’s challenge to the consideration provided for the release.  The plaintiff asserted that he was statutorily entitled to file an unemployment compensation claim, so that could not constitute valid consideration.  However, the consideration provided by the employer was that it would convert his termination for cause into a layoff, meaning that he would be entitled to unemployment compensation if he were laid off, but would not be entitled to it if he were discharged for time card theft.   Putting aside the Ohio law requires employers to truthfully report why an employee was separated from employment, “promises to help facilitate a former employee’s unemployment-benefits application are sufficient consideration.”  The employer’s forebearance of its right to discharge him for cause and challenging his entitlement to unemployment compensation constitutes sufficient consideration for a release of claims.  That the employer previously intended to lay him off did not change the analysis because it had grounds to discharge him for cause at the time the release was signed.

In addition, contracts are not required to specifically mention the consideration provided. ““[C]onsideration for a contract need not necessarily be recited or expressed in writing; instead, the consideration may be proved by parol evidence or may be inferred from the terms and obvious import of the contract.”

Third, the plaintiff could not prove that he signed the release under economic duress because that requires proof that the employer engaged in an unlawful or otherwise wrongful act to deprive him of his unfettered will.  In this case, the employer was entitled to discharge him, so there was not unlawful or wrongful act. “It is not generally a “wrongful or unlawful act” if the defendant threatens to do something that it is legally entitled to do.”

He also challenged whether the release was knowing and voluntary, but it was only one paragraph, so he could not prove that it was too complicated for him to understand.  The Court also found it irrelevant that the release did not comply with the OWBPA because the plaintiff failed to assert any claims under the ADEA. “Plaintiff has not alleged any violation of the ADEA, and he does not argue that Ohio Rev. Code § 4112 incorporates the OWBPA’s protections.”

Finally, the Court affirmed dismissal of the claims against the union as well.

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.