EEOC Prevails With Jury In ADA Perceived Disability Case

 On Tuesday, the EEOC announced that it had obtained a jury verdict in an ADA perceived disability discrimination case where the Sixth Circuit last year reversed the employer's summary judgment (as reported here).    According to the EEOC, the jury awarded the employee $6,000 in compensatory damages and the parties stipulated to a similar amount for back pay.  (The legal fees would clearly have dwarfed the verdict).      The employee had requested intermittent FMLA leave to deal with anxiety and there had been factual disputes about the existence, content and legitimacy of supporting medical documentation (all of which created issues for the parties' credibility).  The employee was terminated despite having no disciplinary history during her eight months of employment.  The employer contended that it had not regarded her as disabled because she had admitted being able to immediately return to work, but the legal standard is merely whether it perceived her as having a mental impairment. 

Ohio Court Rejects Age Discrimination When Plaintiff Was Not Replaced, Could Not Identify Similarly-Situated Comparator and Employer Had Honest Belief.

Last month, the Lucas County Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim because the plaintiff employee could not show that he had been replaced, was treated less favorably or that his termination was pretextual when the employer had an honest belief supporting the reason for his termination.  Hardy v. The Anderson's, Inc., 2022-Ohio-3357.   The Court agreed that the plaintiff could show that he was minimally qualified for his position based on his prior experience and promotion even though he had a recent negative evaluation.  However, the plaintiff could not show that he had been replaced when existing employees assumed his prior job duties in addition to their existing responsibilities.  He also could not show that he was treated less favorably than a substantially younger employee when that employee was not similarly situated because he only lived a few hours/miles outside his sale district and had fully informed the manager of his living arrangements and had not tried to hide them, unlike the plaintiff who moved thousands of miles from Michigan to the Caribbean to be with his second wife.   Finally, there was no dispute that the plaintiff had not been candid about his living arrangements with his manager and that the manager blamed his relocation for his poor job performance.  Whether he lied or was merely evasive, whether or not it was necessary to spend a certain amount of time in the sales district meeting with customers, and whether or not he was required to have reported this time as vacation instead of collecting his regular salary, the Court had no trouble finding that no one else had engaged in similar behavior and it justified his termination.  The  Court also rejected the argument that the manager’s prior comment referring to him as a dinosaur could constitute direct evidence of or pretext for discrimination.

According to the Court’s opinion, to save his second marriage, the plaintiff had relocated to his wife’s home country in the Caribbean for extended periods of time without telling his new manager. While the plaintiff’s initial performance evaluation in his new management position had been favorable (while he had been living full-time in his sales district), his second evaluation had been negative even before his new manager found out that he had been spending most weeks in the Caribbean.   The plaintiff admitted that he had not submitted certain weekly report or learned a new computer system.  The plaintiff alleged that his new manager once referred to him as a dinosaur.  When his job performance suffered, the manager found out about his relocation, confronted him and immediately terminated him.    Following the termination, the manager assumed his duties for a few months before restructuring the position and hiring a new employee to perform parts of the duties in one region.    

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 Upholds First Amendment Rights of Unions to Picket Residences and Business of Elected and Appointed Government Officials

Earlier this month, the Ohio Supreme Court ruled that the First Amendment protects the right of unions to picket the homes and places of private employment of public and elected officials during labor disputes.  Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.  “R.C. 4117.11(B)(7)’s prohibition against inducing or encouraging any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer violates the First Amendment to the United States Constitution as a content-based restriction of expressive activity.” 

According to the Court’s opinion, after “negotiations over a successor collective-bargaining agreement reached an impasse,” the union “members began picketing on or about October 4, 2017. On seven dates” union members also picketed “outside the residences” of some of the agency’s board members. Once, the union members “picketed outside the private business and place of employment of one of the board members . . . . entirely on public streets or sidewalks. There is no evidence that any labor picketing involved obstructive or disruptive behavior.”  The employer filed unfair labor practice charges with SERB, which agreed that the union had violated Ohio Revised Code 4117.11(B)(7) and ordered the union to cease picketing private residences and businesses.  The union appealed to the common pleas court, which ruled in favor of the employer.  The  Court of Appeals reversed and the Supreme Court affirmed.

Peaceful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an unfair labor practice for an employee organization, its agents, or representatives, or public employees to * * * [i]nduce or encourage any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” The issue in this case is whether R.C. 4117.11(B)(7) violates the First Amendment.  . . .  we conclude that the statute does violate the First Amendment . . .

As the Court explained, peaceful picketing on public sidewalks enjoys considerable First Amendment protection as public forums.  Nonetheless, the government can regulate such speech – i.e., time and volume -- if the regulations are content neutral.

“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” . . . .

On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. . . . . If a statute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least restrictive means readily available to serve that interest. . . . .

Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected . . . .

The Court rejected the employer’s argument because the restriction cannot “be based upon either the content or subject matter of speech. . . . . “Governmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ””

According to SERB and the board, R.C. 4117.11(B)(7) is content neutral because it does not prohibit speech or prevent anyone from communicating any particular message. They further contend that the statute does not create a speech-free buffer zone around public officials’ residences or places of private employment, because all forms of communication other than targeted picketing are permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and manner restriction that is operative during a narrow period of time (picketing in connection with a labor-relations dispute), at a particular place (public officials’ residences and places of private employment), for a particular manner of expression (“targeted picketing”).

Justice Donnelly’s opinion observed that ““[g]overnmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ”   While the Supreme Court has upheld restrictions on “all” picketing “before or about” a residence, that ordinance was not limited to certain types of picketing based on the subject matter of the picketing, and, thus, was content neutral. 

R.C. 4117.11(B)(7) additionally regulates expressive activity based on the identity of the messenger. More specifically, it forbids “an employee organization, its agents, or representatives, or public employees” from inducing or encouraging anyone to picket a public official’s residence or place of private employment in connection with a labor-relations dispute.

Because the statute was not content neutral, it is subject to strict scrutiny under the First Amendment and must serve a compelling government interest. The statute’s goal of “protecting the privacy rights of public officials, thereby encouraging citizens to run for or serve in public office and preserving labor peace in Ohio” while laudable, was found to not be compelling enough to save the statute.  As the Justice Donnelly observed, “preserving residential peace and privacy is a significant but not a compelling government interest.”

Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point that no less-restrictive means was available to serve the stated interests. Local ordinances and state criminal codes exist to preserve law and order in the event of disruptive conduct that disturbs residential privacy and are justified without reference to the content of the expression. Nor has there been any showing that banning residential and private-employer labor picketing is the only way to encourage citizens to serve as officials of public employers or to preserve the peace during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) is not narrowly tailored to the proclaimed illness and indeed far exceeds the interests that it purports to serve

Justice Donnelly also mysteriously rejected the argument that the statute lawfully prohibited secondary picketing against a private sector employer which is not involved in the labor dispute.

picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relations dispute only because it does business with the primary employer. Indeed, in this case there is no indication that the private employer that was picketed by the association members had any business relations whatsoever with the board outside of the fact that one of the board members is both the owner and employee of the private employer. There is no indication that the private employer was threatened, coerced, or restrained from engaging in business with the board. Nor is there any evidence that that was the association’s objective in picketing the private employer. Assuming further that the private employer engaged in commerce or an industry affecting commerce, any expressive activity that caused incidental injury to the private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and thus would remain protected by the First Amendment.

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.

Employee Emails Relating to Data Breach and Payroll Problems Justifies Public Records Request

Last month, the Cuyahoga County Court of Appeals affirmed $1,000 in damages and $4,762.50 in attorneys’ fees for the plaintiff union which sought a month’s worth of emails involving three employees under Ohio’s public records law.  State ex rel. Cleveland Assn. of Rescue Emps. v. Cleveland, 2022-Ohio-3043.  The requested records involved how a data breach affected employee payroll records and the union sought information about this issue by seeking all emails between two employees and all of the emails to and from another employee.  Although the employer objected that the request was overly broad and unduly burdensome and insisted that the union narrow its request, it eventually produced approximately 300 pages to the union’s satisfaction.  The Court ruled that the union’s initial request was entirely proper and limited in scope (i.e. a month and three employees).  The Court also found that the employer acted with bad faith in refusing service of process which was addressed to predecessor employees.  Therefore, it awarded the union the statutory maximum damages and their attorneys’ fees in enforcing the public records request. 

In Ohio, public records are the people’s records. To that end, the public records act is to be construed liberally in favor of broad access and disclosure. The courts are to resolve any doubt in favor of disclosure. State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 20. Exemptions to disclosure under the public records act must be strictly construed against the public records custodian, and the government bears the burden of establishing the applicability of an exception. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 47.

Applying these principles, the court finds that the initial request was reasonable. It stated with clarity what records were requested, and the scope was limited to three specific Cleveland employees for a period of less than a month. A records requester is not necessarily required to limit its request by adding search terms. The failure to honor reasonable requests and the rapid closing of requests undermine the purpose of the public records 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.

Sixth Circuit Rejects Plaintiff's Discrimination Claims Because Honest Belief Rule, Employee Handbook Rules and Vague Allegations Prevented Showing of Pretext

Yesterday, as I was participating in a webinar on the Honest Belief Rule, the Sixth Circuit affirmed an employer’s summary judgment in part because of – you guessed it – the Honest Belief Rule.  Okakpu-Mbah v. Postmaster, No. 21-2811 (6^th Cir. 2022).  The plaintiff had been fired at the conclusion of her 90-day probationary period for not working fast enough in sorting the mail.   The Court agreed that she could not show that the employer’s explanation was pretextual in light of documents showing that her efficiency had previously been rated as unacceptable, that she did not improve and, according to all of the other supervisors, was still working too slow by the time of her 80-day evaluation.  The Court also refused to find pretext from the use of a subjective standard for efficiency because there was no evidence that the employer had manipulated or abused the standard to single her out. It also refused to compare her to co-workers whose performance deficiencies were different and improved over time.  

According to the Court’s opinion, mail sorters receive 30, 60 and 80 day evaluations during their 90-day probationary period.  The Employee Handbook states that they will be separated during orientation as soon as it becomes evident that they are unable to meet the requirements of the position.  The plaintiff received a satisfactory 30-day probationary evaluation, except that her productivity was rated unacceptable. She denied receiving a 60-day evaluation (which was disputed).  However, as her 80-day evaluation approached, her supervisor reached out to other supervisors for their opinion.  One emailed that the plaintiff was very slow, did not grasp the concept, demonstrated no sense of urgency and sometimes had to be reassigned to a different task.  The local postmaster recommended that she be terminated.  She was terminated following her 80-day evaluation for inefficiency and brought suit alleging age, race and national origin discrimination and retaliation.  The district court granted the employer summary judgment.

The Court rejected the plaintiff’s argument that the employer’s explanation was pretextual because the rationale was insufficient to motivate the employer’s action.  She pointed to the fact that no other employee had ever been fired for working too slowly.  However, the Court summarily rejected her argument on the grounds that the Employee Handbook:

says that employees “should be separated as soon as it becomes evident that they are unable to meet the requirements of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.

The Court also rejected the plaintiff’s argument that her termination lacked a basis in fact based largely on the Honest Belief Rule.   The employer produced her 30-day evaluation showing that her productivity had been rated “unacceptable” and indicated that she never improved.  The employer also produced an email from one of her supervisors indicating that she worked very slowly and could not keep up with her co-workers.   Although the employer did not use objective metrics to measure productivity, the plaintiff’s own subjective view of her performance was insufficient to create a disputed issue of fact about whether the employer’s explanation was reasonably based on facts.   Her supervisor’s “belief about [the plaintiff’s] performance was reasonable. Not only was the belief based on [her] own observation, but also on the observations of other supervisors who all agreed she was working slowly.”  Because the supervisor’s conclusion was reasonable, the plaintiff “cannot show pretext by showing it was wrong.”

            [A]n employer’s use of subjective reasons in terminating an employee, without more, “does not raise an inference” of discrimination. . . . And [plaintiff] “has offered no evidence from which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that criteria to affect” her chances of being retained at the end of the probationary period. . . . . So even when an employer uses an “evaluation process [that] was haphazard” that alone cannot create a “reasonable inference” of discrimination.  . . . . And an employer’s “unwise business judgments” or “faulty evaluation system” does not establish an inference of discrimination either.

The plaintiff’s efforts to show that her inefficiency did not actually motivate her terminations failed largely from lack of specificity.  She did not show how other events were “’logically or reasonably tied’ to the adverse action against her, that the same “bad actors” were involved, or that the conduct was in close temporal proximity, among other factors.”   Among other things, she incorrectly claimed that four employees had been fired and could not show that her supervisor was involved in the termination of the fifth.    Her attempt to show better treatment of white coworkers failed because their negative evaluations related to their attendance and not to their productivity.  Thus, “[s]uperficial similarities between a disciplined employee and his colleagues” are not enough to make them comparators.”  Further, some of her alleged comparators improved their performance while the plaintiff did not.  The third comparator had a valid excuse for her absences. 

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.