Sixth Circuit Blames Employee for Failure of Interactive Process When Employer Could Reasonably Infer Request to Change Supervision

Yesterday, the Sixth Circuit issued an interesting decision affirming the employer’s summary judgment on an ADA claim involving PTSD.  Tomlinson v. Krauss -Maffei Corp., No. 21-6245 (6^th Cir. 2/6/23).  The Court unanimously agreed that the plaintiff had not engaged in good faith in the interactive process by resigning after repeatedly failing to respond to emails about his allegedly discriminatory performance evaluation and, thus, could not establish a failure to accommodate, constructive discharge or retaliation.  They disagreed, however, with whether the plaintiff had requested, and whether it was reasonable to request, a change in supervision, with the majority finding that such a request was made and could be found to be reasonable.    The majority opinion goes so far as to find that the employer should have realized from the employee’s unhappiness with his performance evaluation that he was requesting a change in supervision even if he never used those words.  Of course, the extended discussion becomes dicta – and not legal binding -- when it was unnecessary to the Court’s judgment affirming dismissal of all of the employee’s claims on the grounds that “the evidence shows that [the employer] was persistent in trying to reach a resolution with [the employee] but he terminated the interactive process through his resignation.” 

According to the majority opinion,  the plaintiff informed Human Resources almost a year after he was hired that he had PTSD and wanted to never be scheduled again with a particular co-worker who he alleged was harassing him.  HR and his supervisor (with whom he only spoke approximately twice a year) granted his request.   However, the following year, he received a negative performance evaluation from his supervisor based on customer and co-worker complaints.   When the supervisor refused to change the evaluation following a conversation, the plaintiff reported to HR that he found the supervisor’s tone to be threatening and aggressive.  No threats were made to the plaintiff’s employment.   The plaintiff then complained to the General  Counsel, but did not respond to two of her emails. The plaintiff then took FMLA and STD and complained to the employer’s president about the evaluation.  It took weeks to for him to respond to HR’s inquiries.  He explained that he was having difficulty communicating because of his PTSD. 

The Company’s General Counsel investigated his concerns, but refused to modify his performance evaluation.  However, he was encouraged to return to work and asked how they could be more sensitive to his PTSD.  It also kept him apprised during the investigation, which considered transferring him, but no similar positions were available.   The company also refused on August 20 to have him report to the coordinator because she was not a manager/supervisor.   Nonetheless, although it allegedly informed the plaintiff that it was considering changing the performance evaluation process, it did not tell him the changes that it ultimately decided to make (after he had resigned on August 24) so that the coordinators would draft the performance evaluations for review by the supervisor.    The investigation concluded that the supervisor had been spread too thin and made lots of mistakes to seven of the performance evaluations that he completed that year.   The employee brought suit almost a year later, which was dismissed on summary judgment on the grounds that the request for a new supervisor was unreasonable and he had failed to engage in good faith in the interactive process.

In evaluating an employee’s burden of proving the denial of a reasonable accommodation, “[e]ncompassed in the reasonableness prong of the above framework is a requirement that both parties communicate in good faith to reach an agreement on a reasonable accommodation.”  In other words, one cannot show that a request is reasonable without also showing mandatory participation in the interactive process.  The majority opinion observed that “[w]hile it may be true that such a request [for a new supervisor] is generally unreasonable, our precedent informs that presumptions regarding the reasonableness of an accommodation “eviscerate[] the individualized attention that the Supreme Court has deemed ‘essential’ in each disability claim.”

A fresh look at the record evinces that a reasonable juror could conclude that [the employee’s] request was reasonable. After all, the [General Counsel] testified that the reason [the company] denied the request was because it did not “seem” like an option that would fit within the company’s structure. Critically, however, [the HR Director] testified that, during [the General Counsel’s] investigation of [the employee’s] complaints regarding [the manager’s] delivery of his performance review, [the company’s] leadership actually discussed revamping the evaluation process in a way that would have satisfied [his] request. Indeed, [the company] planned to explore the idea of having the service coordinators (Bouza’s position) conduct the performance reviews for FSEs ([his] position), instead of service managers (Wiley’s position). All things considered, a reasonable jury could discern that that [he] requested even before [the General Counsel] denied his request, but [the company] further made and implemented that change the following year.

The concurring judge, however, disagreed.  Among other things, the plaintiff had apparently admitted that he could continue to work with his supervisor because they only spoke about twice each year.   She denied that the record reflected him ever making a request to report instead to the coordinator and the investigation report never mentions such a request. “[A] change in supervision is not generally considered a reasonable request but must be individually considered in each case.”  Nonetheless, because the coordinator is not a supervisor or manager and was not being considered for a promotion, “[a] company does not have to change its reporting structure to accommodate an employee’s disability.”

Not letting the point go, the majority opinion then made clear that the employee need not specifically request a change in supervision if it should have been clear from the circumstances that this would have resolved the issue:

To begin, our precedent does not require employees to recite any particular buzz words for us to find that an accommodation was requested. . . . . The record supports that [the employee] made clear that he wished to be accommodated based on his disability even before he made the specific request for a change in supervision. Starting with his first call to [HR] after receiving his written performance review, until the moment that he resigned, [he] made clear that he had an issue with [his supervisor] and wanted [the company] to take some sort of action. For instance, in his first communication to the company’s general counsel, Beene-Skuban, [he] indicated that [his supervisor] made threatening and harassing comments which [he] felt were an attack on his PTSD. He later followed up with the president of the company stating that the only request he had made thus far was to not “deal with bullying or harassment.” Though he did not state specifically that he wanted to report to [the coordinator] instead of [his supervisor], [the company] should have reasonably inferred that he had an issue working with [the supervisor] such that it was appropriate to initiate an interactive process to reach a resolution, which is exactly what it did. [The Company] repeatedly attempted to initiate a discussion with [the employee] to hear more about his concerns and [the General Counsel] explicitly stated in one of the emails that she wanted to be “sensitive to” [his] PTSD.

In any event, a unanimous court agreed that the plaintiff’s failure to participate meaningfully in the discussions surrounding his allegations about the discriminatory performance evaluation and then resigning despite the company’s efforts to work with him to reach a satisfactory solution prevented him from prevailing on any discrimination or constructive discharge claim.

The ADA does not oblige “employers to make on-the-spot accommodations of the employee’s choosing.” . . . Rather, the regulations acknowledge that determining the appropriate accommodation may require the employer “to initiate an informal, interactive process.” 29 C.F.R. § 1630.2. This process functions to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. And “[e]ven though the interactive process is not described in the statute’s text, [it] is mandatory, and both parties have a duty to participate in good faith.” . . . . . Causing unnecessary delays, obstructing the process, and/or failing to adequately communicate or provide information during the process may evidence a party’s bad faith. . . . Where a party fails to participate in good faith, “courts should attempt to isolate the cause of the breakdown and then assign responsibility.”

In this case, the Court rejected the plaintiff’s assertion that his PTSD prevented him from meaningful participation in the interactive process through either email or telephone calls as repeatedly offered by the employer over several months:

But after [he] took medical leave, he became largely unresponsive, demanding that [the company] give him advanced notice before contacting him, yet neglecting to provide the company his availability. In this vein, [his] argument that he could not participate in the process on account of his PTSD is unpersuasive.

Despite his repeated failure to communicate, the employer explored several possibilities internally, showing that it was attempting in good faith to resolve his concerns.   Thus, the failure of the interactive process was his fault, not the employer’s:

a reasonable juror cannot conclude that he engaged in the mandatory interactive process in good faith. [He] argues that [the company] “completely sidestep[ped]” the process by failing to explore alternatives to his request. The record tells a different story. [He] terminated the interactive process by resigning when [the company] rejected his specific accommodation, even after the company made clear from the start of [his discrimination] complaint that it wanted to work with him to identify a reasonable accommodation. And after [the company] rejected [his] request [for a new supervisor], [it] advised him in writing that it intended to have a “face-to-face meeting” upon his return to further discuss next steps.

                . . . .

            it appears that [the employee] argues that he requested a pre-return phone call as an accommodation to support his failure-to-accommodate claim. This claim fails as well. [The Company] attempted several times throughout the course of [his] medical leave to schedule a call and ultimately offered to set up an in-person meeting upon his return from medical leave. Assuming [he] made this request, he is not entitled to cherry-pick the accommodation of his liking among reasonable alternatives.

The Court also rejected his retaliation claim on the basis that he could not identify an adverse employment action:  his discrimination and failure to accommodate claims had already been rejected.   The Court rejected his argument that he was constructively discharged, which could be an adverse employment action. 

“the employer must have created an objectively intolerable work environment to deliberately force a disabled employee to resign.” Id. Employees who leave “in apprehension that conditions may deteriorate later” will not prevail. . . . That is, if other forms of relief are available to employees, they are expected to try to resolve the issue instead of resigning.

For instance, in Goening , we held that the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable. . . . .  We reasoned in part that “this circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.” Id. We reached the same conclusion in Savage v. Gee , where the record showed that the faculty members of a university were critical of the plaintiff librarian’s book suggestions, were uncomfortable with his research skills and publicly challenged his professionalism. . . . We reached this conclusion again in Arndt, where we acknowledged that the plaintiff may have felt that the employer badgered and disrespected him about his PTSD, but the employer considered both of his requests for accommodation and placed him on medical leave while the second request was being considered.

In this case, the Court refused “to conclude that an employee can establish constructive discharge by proving that his manager made careless mistakes or included inaccurate information on one of his performance reviews.”  That his supervisor made some mistakes on his and seven other employee performance evaluations is not sufficient to justify a resignation.

 . . . A plaintiff’s testimony that an employer used a threatening tone, without more, is not enough under the circumstances of this case. See Brister v. Mich. Bell Tel. Co., 705 F. App’x 356, 360 (6th Cir. 2017) (evidence of “humiliation and criticism,” and evidence that the plaintiff was called “stupid” and told that she should “seek psychological help,” was not enough absent evidence that the harassment “manifested in a demotion, reduction in salary, or reduction in job responsibilities”); Goening , 884 F.3d at 631 (holding the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable). Even assuming [the supervisor] did use a threatening tone during the review, [he] testified that he only interacted with [the employee] about twice a year and [the employee] corroborated this testimony in his briefing. See id. (“[T]his circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.”). Further, [the plaintiff employee] was on medical leave at the time he resigned, lessening his chance of encountering [his supervisor] at the time of his resignation even more. And the record supports that [the company] offered to set up a meeting with [him] upon his return to ensure that [he] felt heard, evidencing [its[ efforts to make the working conditions tolerable for everyone.

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

Franklin County Court of Appeals Rejects Discrimination and Hostile Work Environment Claims Despite a Toxic Work Culture

At the end of last year, the unanimous Franklin County Court of Appeals found that the existence of a “toxic work culture” (as described by a concurring opinion) does not necessarily mean a legally hostile work environment or unlawful discrimination.  Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783.  The plaintiffs were assigned by one state agency to work alongside the employees of another state agency, which had its own rules and disciplinary procedures.  Even though all of the employees (including the plaintiffs) reported to the same supervisor, the Court concluded that the plaintiffs could not compare themselves to the other agency’s employees without evidence that they had been subject to and violated similar rules or evidence that such rules had been violated by anyone outside their protected class.  They also could not show pretext when they admitted violated DYS rules.  Finally, they could not base hostile work environment claims on overhearing a relatively few number of vague conversations about politically charged and potentially race-based issues (like gun control, police shootings, abortion, unidentified movies, lynching, homophobia, etc.) which were not directed at them personally, and were not physically threatening or humiliating.  The plaintiffs’ subjective reaction to the alleged conduct could show that it interfered with their work, but it could not prove that the workplace was objectively hostile or abusive to a reasonable person. The Court also rejected the retaliation claim for being filed outside the two-year statute of limitations under the Court of Claims Act. 

According to the Court’s opinion, the plaintiffs worked at an IT Help Desk staffed by both ODRC and DYS employees, which were subject to the rules of their respective agencies.  All of the ODRC employees were white and the DYS employees were black.  There was one mixed race contractor.   The plaintiffs admittedly violated rules of their employing agency and apparently were unaware of the rules governing the employees of the other agency, merely assuming that they were the same, and whether the other employees had obtained prior authorization for their actions.  One plaintiff worked a tiny amount of unauthorized overtime.   One plaintiff corrected his own timesheet on the computer without prior authorization.  They both learned from the contractor that the ODRC employees had been called into a meeting with their supervisor and told if they had complaints about the plaintiffs, they had to complete written incident reports.  The plaintiffs similarly submitted written complaints about the ODRC employees, became upset by the situation, eventually visited EAP and then left work for mental health reasons before filing their lawsuit, which was dismissed on summary judgment.

The appeals court found that they could not prevail on discrimination claims for a number of reasons.  First, they could not show that the ODRC employees had violated similar rules because the ODRC employees were subject to ODRC rules, not DYS rules, and there was apparently no evidence what those rules were or whether their conduct had been previously authorized.  Second, the plaintiffs admittedly violated DYS rules and could not show that their disciplinary action and coaching was pretextual for discrimination.   The Court also found that it was speculative that the meeting held with the ODRC employees was racially motivated merely because the employees were all white because it is a legitimate business reason to meet with employees to explain the complaint procedures and the contractor was not at her desk when the meeting was called. 

The Court also rejected the hostile work environment claims.  First, the plaintiffs could not rely on the alleged discriminatory conduct which had already been rejected.  Second, it found that the relatively few overheard conversations – i.e., no more than six in a four-to-six month period – were too infrequent to be “pervasive” or support a hostile work environment claim.    They were also not severe enough: 

Considering all the circumstances, we agree with the Court of Claims that appellants have not demonstrated circumstances severe enough to constitute harassment within the meaning of a hostile work environment claim. The conversations appellants overheard, while offensive utterances and in poor taste, were infrequent and did not occur regularly. [Plaintiffs] alleged they overheard these conversations only a few times and could not provide specific details about when they occurred or the contents of the conversations beyond their general topics. Additionally, the conversations were not directed at appellants, and the "second-hand" nature of the comments is relevant to determination of their severity.

While the plaintiffs could show that the alleged conduct subjectively affected them and forced them to leave their jobs, a subjective feeling or belief is not evidence of an objectively hostile or abusive work environment:

Though appellants alleged the working conditions were so hostile as to force them to separate from their employment, this argument only reflects appellants' subjective perceptions of the conduct. However, in order for the conduct to be actionable under a hostile work environment claim, appellants must also demonstrate the conduct is severe and/or pervasive enough to create an objectively hostile or abusive work environment. . . . The work environment is objectively hostile or abusive where it is "an environment that a reasonable person would find hostile or abusive." (Internal quotations and citations omitted.) Id. "Mere utterance of an * * * epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment" to create a hostile work environment. (Internal quotations and citations omitted.)

Here, appellants put forth evidence that they did not get along with their ODRC counterparts at the help desk. However, mindful of the stringent standard applicable to hostile work environment claims, appellants simply do not allege sufficient harassment based on race such that there is a genuine issue of material fact on this claim. Based on the Civ.R. 56 evidence presented, the conversations [Plaintiffs] overheard were infrequent, isolated incidents, and the conversations were not directed at appellants. The comments were not physically threatening or sufficiently humiliating to create a hostile work environment claim. Appellants failed to demonstrate a genuine issue of fact that the alleged conduct was so severe or pervasive as to create an objectively hostile work environment. . . . Accordingly, we agree with the Court of Claims that appellees are entitled to summary judgment on the hostile work environment claim.

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 Inference of Retaliation From Passage of Time Whether it Be Six Years, Fifteen Months or Even Possibly Four Months.

Last month, a unanimous Sixth Circuit affirmed an employer’s summary judgment on a retaliatory failure to promote claim on the grounds that the passage of more than 15 months -- since the dismissal of the plaintiff’s prior lawsuit were affirmed on appeal -- prevented an inference of retaliatory motive.  Wheeler v. Miami Valley Career Technology Center, No. 22-3315 (6^th Cir. 1/10/23).    When the only retaliatory action the plaintiff could identify was being passed over for a promotion, the Court agreed that the passage of six years since her prior lawsuit had been filed, and 15 months since her appeal had been dismissed, could not support an inference of retaliatory causation.  The Court suggested that the passage of as little as four months could be insufficient by itself to show causation. 

 According to the Court’s opinion, the plaintiff teacher had been employed for approximately 30 years and applied, was minimally qualified and was interviewed for three open administrative positions in 2018, but was not selected for any of them.  She initially filed Charges of Discrimination alleging that she was passed over on account of her age and in retaliation for an EEOC Charge and lawsuit which she had filed in 2012 (but which had concluded in January 2017 when the Sixth Circuit affirmed the trial court’s 2016 summary judgment in favor of the employer).  The trial court dismissed her lawsuit on the grounds that the six years which had passed since she filed her initial Charges of Discrimination and lawsuit prevented any inference of retaliation for failing to promote her in 2018.  After appealing only the dismissal of her retaliation claim, the Court of Appeals affirmed because she:

 complains of actions that occurred years before the alleged wrongful actions by [the employer], with her prior complaint being filed in 2012. This proximity is woefully insufficient by itself—the Supreme Court has held that events not even two years apart are nowhere near close enough. See Clark Cnty. Sch. Dist ., 532 U.S. at 274 (“Action taken . . . 20 months later suggests, by itself, no causality at all.”). [She] responds that we should consider that her litigation lasted until January 2017, about 15 months before [the employer] hired someone other than [her] for the first administrative position. But this is still insufficient—we have held that far shorter time periods do not establish the required causation. See Imwalle, 515 F.3d at 550 (“In this circuit, a period of more than four months was found to be too long to support an inference of causation.”). The temporal proximity in the present case is simply not enough.

The plaintiff also attempted to challenge the employer’s explanation (of more qualified external candidates) on the grounds that the employer typically promoted internal candidates for administrative positions and that her interviews were “poisoned” by being interviewed by individuals who had been involved in her prior litigation.  However, the Court did not find her argument to be supported by the evidence.  In short, her only evidence of retaliation was not being promoted:

But given the amount of time that has elapsed since the prior lawsuit, this, by itself, is far from enough evidence needed to create a genuine dispute of material fact as to causation. . . . . She has not produced sufficient evidence establishing that the 2012 complaint was a “but-for” cause of her failed 2018 promotion, nor can she prove that she would have been promoted if not for the 2012 complaint.

 

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.

2022 Buget Bill Also Enacts Fair Hiring In Banking Provisions for Credit Unions and Banks

In addition to the PUMP Act and Pregnant Worker Fairness Act, the budget bill signed by President Biden at the end of last year also amended the statutes which governing hiring by banks and credit unions.   The Fair Hiring In Banking provisions amended the provisions of the FDIA and Federal Credit Union Act which barred institutions from hiring “any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense.”  The Act creates slight exceptions for financial institutions for when:

               ‘‘(i) it has been 7 years or more since the offense occurred;”

      ‘‘(ii) the individual was incarcerated with respect to the offense and it has been 5 years or more since the individual was released from incarceration,” or

        (iii)” it has been more than 30 months since the sentencing occurred”  . . “[f]or individuals who committed an offense when they were 21 years of age or younger.”  

The slight limitation on the new exceptions apply to certain federal offenses enumerated in the statute which require the passage of 10 years since the conviction.   In other words, these new exceptions do NOT apply to those specific federal statutes which require the passage of 10 years. 

The FDIC and NCUA Board are also tasked with creating rules (aka regulations) in 2023 creating “de minimis” exceptions for bad checks, fake ids, shoplifting, trespass and driving with expired tags, etc. and creating a system for “Consent Agreements” so that financial institutions can hire those with certain offenses after approval from the FDIC or Board.

The full slightly edited text of the new legislation is included below in case you’re bored and want to read it in full.

SEC. 5705. FAIR HIRING IN BANKING.

(a) FEDERAL DEPOSIT INSURANCE ACT.—Section 19 of the Federal Deposit Insurance Act (12 U.S.C. 1829) is amended—

(1) by inserting after subsection (b) the following: ‘‘(c) EXCEPTIONS.

— ‘‘(1) CERTAIN OLDER OFFENSES.—

    ‘‘(A) IN GENERAL.—With respect to an individual, subsection (a) [which bars involvement in insured depository institutions of “any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense”] shall not apply to an offense if— ‘‘(i) it has been 7 years or more since the offense occurred; or ‘‘(ii) the individual was incarcerated with respect to the offense and it has been 5 years or more since the individual was released from incarceration.

    ‘‘(B) OFFENSES COMMITTED BY INDIVIDUALS 21 OR YOUNGER.—For individuals who committed an offense when they were 21 years of age or younger, subsection (a) shall not apply to the offense if it has been more than 30 months since the sentencing occurred.

    ‘‘(C) LIMITATION.—This paragraph shall not apply to an offense described under subsection (a)(2) [which applies to certain enumerated federal offenses for 10 years after conviction].

‘‘(2) EXPUNGEMENT AND SEALING.—

        With respect to an

‘‘(A) there is an order of expungement, sealing, or dismissal that has been issued in regard to the conviction in connection with such offense; and

‘‘(B) it is intended by the language in the order itself, or in the legislative provisions under which the order was issued, that the conviction shall be destroyed or sealed from the individual’s State, Tribal, or Federal record, even if exceptions allow the record to be considered for certain character and fitness evaluation purposes.

‘‘(3) DE MINIMIS EXEMPTION.—

‘‘(A) IN GENERAL.—Subsection (a) shall not apply to such de minimis offenses as the Corporation determines, by rule.

‘‘(B) CONFINEMENT CRITERIA.—In issuing rules under subparagraph (A), the Corporation shall include a requirement that the offense was punishable by a term of three years or less confined in a correctional facility, where such confinement—

‘‘(i) is calculated based on the time an individual spent incarcerated as a punishment or a sanction, not as pretrial detention; and

‘‘(ii) does not include probation or parole where an individual was restricted to a particular jurisdiction or was required to report occasionally to an individual or a specific location.

‘‘(C) BAD CHECK CRITERIA.—In setting the criteria for de minimis offenses under subparagraph (A), if the Corporation establishes criteria with respect to insufficient funds checks, the Corporation shall require that the aggregate total face value of all insufficient funds checks across all convictions or program entries related to insufficient funds checks is $2,000 or less.

‘‘(D) DESIGNATED LESSER OFFENSES.—Subsection (a) shall not apply to certain lesser offenses (including the use of a fake ID, shoplifting, trespass, fare evasion, driving with an expired license or tag, and such other low-risk offenses as the Corporation may designate) if 1 year or more has passed since the applicable conviction or program entry.’’; and (2) by adding at the end the following:

‘‘(f) CONSENT APPLICATIONS.—

‘‘(1) IN GENERAL.—The Corporation shall accept consent applications from an individual and from an insured depository institution or depository institution holding company on behalf of an individual that are filed separately or contemporaneously with a regional office of the Corporation.

‘‘(2) SPONSORED APPLICATIONS FILED WITH REGIONAL OFFICES.—Consent applications filed at a regional office of the Corporation by an insured depository institution or depository institution holding company on behalf of an individual—

‘‘(A) shall be reviewed by such office;

‘‘(B) may be approved or denied by such office, if such authority has been delegated to such office by the Corporation; and

‘‘(C) may only be denied by such office if the general counsel of the Corporation (or a designee) certifies that the denial is consistent with this section. 

‘‘(3) INDIVIDUAL APPLICATIONS FILED WITH REGIONAL OFFICES.—Consent applications filed at a regional office by an individual—

‘‘(A) shall be reviewed by such office; and

‘‘(B) may be approved or denied by such office, if such authority has been delegated to such office by the Corpora[1]tion, except with respect to—

‘‘(i) cases involving an offense described under sub[1]section (a)(2); and

‘‘(ii) such other high-level security cases as may be designated by the Corporation.

‘‘(4) NATIONAL OFFICE REVIEW.—The national office of the Corporation shall—

‘‘(A) review any consent application with respect to which a regional office is not authorized to approve or deny the application; and

‘‘(B) review any consent application that is denied by a regional office, if the individual requests a review by the national office.

‘‘(5) FORMS AND INSTRUCTIONS.—

‘‘(A) AVAILABILITY.—The Corporation shall make all forms and instructions related to consent applications available to the public, including on the website of the Corporation.

‘‘(B) CONTENTS.—The forms and instructions described under subparagraph (A) shall provide a sample cover letter and a comprehensive list of items that may accompany the application, including clear guidance on evidence that may support a finding of rehabilitation.

‘‘(6) CONSIDERATION OF CRIMINAL HISTORY.—

‘‘(A) REGIONAL OFFICE CONSIDERATION.—In reviewing a consent application, a regional office shall—

‘‘(i) primarily rely on the criminal history record of the Federal Bureau of Investigation; and

‘‘(ii) provide such record to the applicant to review for accuracy.

‘‘(B) CERTIFIED COPIES.—The Corporation may not require an applicant to provide certified copies of criminal history records unless the Corporation determines that there is a clear and compelling justification to require additional information to verify the accuracy of the criminal history record of the Federal Bureau of Investigation.

‘‘(7) CONSIDERATION OF REHABILITATION.—Consistent with title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Corporation shall—

‘‘(A) conduct an individualized assessment when evaluating consent applications that takes into account evidence of rehabilitation, the applicant’s age at the time of the conviction or program entry, the time that has elapsed since conviction or program entry, and the relationship of individual’s offense to the responsibilities of the applicable position; ‘

‘(B) consider the individual’s employment history, let[1]ters of recommendation, certificates documenting participation in substance abuse programs, successful participating in job preparation and educational programs, and other relevant mitigating evidence; and

‘‘(C) consider any additional information the Corporation determines necessary for safety and soundness.

‘‘(8) SCOPE OF EMPLOYMENT.—With respect to an approved consent application filed by an insured depository institution or depository institution holding company on behalf of an individual, if the Corporation determines it appropriate, such approved consent application shall allow the individual to work for the same employer (without restrictions on the location) and across positions, except that the prior consent of the Corporation (which may require a new application) shall be required for any proposed significant changes in the individual’s security-related duties or responsibilities, such as promotion to an officer or other positions that the employer determines will require higher security screening credentials.

‘‘(9) COORDINATION WITH THE NCUA.—In carrying out this section, the Corporation shall consult and coordinate with the National Credit Union Administration as needed to promote consistent implementation where appropriate.

‘‘(g) DEFINITIONS.—In this section:

‘‘(1) CONSENT APPLICATION.—The term ‘consent application’ means an application filed with Corporation by an individual (or by an insured depository institution or depository institution holding company on behalf of an individual) seeking the written consent of the Corporation under subsection (a)(1).

‘‘(2) CRIMINAL OFFENSE INVOLVING DISHONESTY.—The term ‘criminal offense involving dishonesty’— ‘‘(A) means an offense under which an individual, directly or indirectly— ‘‘(i) cheats or defrauds; or ‘‘(ii) wrongfully takes property belonging to another in violation of a criminal statute; ‘‘(B) includes an offense that Federal, State, or local law defines as dishonest, or for which dishonesty is an element of the offense; and ‘‘(C) does not include— ‘‘(i) a misdemeanor criminal offense committed more than one year before the date on which an individual files a consent application, excluding any period of incarceration; or ‘‘(ii) an offense involving the possession of controlled substances.

‘‘(3) PRETRIAL DIVERSION OR SIMILAR PROGRAM.—The term ‘pretrial diversion or similar program’ means a program characterized by a suspension or eventual dismissal or reversal of charges or criminal prosecution upon agreement by the accused to restitution, drug or alcohol rehabilitation, anger management, or community service.’’.

(b) FEDERAL CREDIT UNION ACT.—Section 205(d) of the Federal Credit Union Act (12 U.S.C. 1785(d)) is amended by adding at the end the following:

‘‘(4) EXCEPTIONS.—

‘‘(A) CERTAIN OLDER OFFENSES.—

‘‘(i) IN GENERAL.—With respect to an individual, paragraph (1) shall not apply to an offense if—

‘‘(I) it has been 7 years or more since the offense occurred; or

‘‘(II) the individual was incarcerated with respect to the offense and it has been 5 years or more since the individual was released from incarceration.

‘‘(ii) OFFENSES COMMITTED BY INDIVIDUALS 21 OR YOUNGER.—For individuals who committed an offense when they were 21 years of age or younger, paragraph (1) shall not apply to the offense if it has been more than 30 months since the sentencing occurred.

‘‘(iii) LIMITATION.—This subparagraph shall not apply to an offense described under paragraph (1)(B).

‘‘(B) EXPUNGEMENT AND SEALING.—With respect to an individual, paragraph (1) shall not apply to an offense if— ‘‘(i) there is an order of expungement, sealing, or dismissal that has been issued in regard to the conviction in connection with such offense; and ‘‘(ii) it is intended by the language in the order itself, or in the legislative provisions under which the order was issued, that the conviction shall be destroyed or sealed from the individual’s State, Tribal, or Federal record, even if exceptions allow the record to be considered for certain character and fitness evaluation purposes.

‘‘(C) DE MINIMIS EXEMPTION.— ‘

‘(i) IN GENERAL.—Paragraph (1) shall not apply to such de minimis offenses as the Board determines, by rule.

‘‘(ii) CONFINEMENT CRITERIA.—In issuing rules under clause (i), the Board shall include a requirement that the offense was punishable by a term of three years or less confined in a correctional facility, where such confinement— ‘‘(I) is calculated based on the time an individual spent incarcerated as a punishment or a sanction, not as pretrial detention; and ‘‘(II) does not include probation or parole where an individual was restricted to a particular jurisdiction or was required to report occasionally to an individual or a specific location.

‘‘(iii) BAD CHECK CRITERIA.—In setting the criteria for de minimis offenses under clause (i), if the Board establishes criteria with respect to insufficient funds checks, the Board shall require that the aggregate total face value of all insufficient funds checks across all convictions or program entries related to insufficient funds checks is $2,000 or less.

‘‘(iv) DESIGNATED LESSER OFFENSES.—Paragraph (1) shall not apply to certain lesser offenses (including the use of a fake ID, shoplifting, trespass, fare evasion, driving with an expired license or tag, and such other low-risk offenses as the Board may designate) if 1 year or more has passed since the applicable conviction or program entry.

‘‘(5) CONSENT APPLICATIONS.—

‘‘(A) IN GENERAL.—The Board shall accept consent applications from an individual and from an insured credit union on behalf of an individual that are filed separately or contemporaneously with a regional office of the Board.

‘‘(B) SPONSORED APPLICATIONS FILED WITH REGIONAL OFFICES.—Consent applications filed at a regional office of the Board by an insured credit union on behalf of an individual— ‘‘(i) shall be reviewed by such office; ‘‘(ii) may be approved or denied by such office, if such authority has been delegated to such office by the Board; and ‘‘(iii) may only be denied by such office if the general counsel of the Board (or a designee) certifies that the denial is consistent with this section.

‘‘(C) INDIVIDUAL APPLICATIONS FILED WITH REGIONAL OFFICES.—Consent applications filed at a regional office by an individual— ‘‘(i) shall be reviewed by such office; and ‘‘(ii) may be approved or denied by such office, if such authority has been delegated to such office by the Board, except with respect to— ‘‘(I) cases involving an offense described under paragraph (1)(B); and ‘‘(II) such other high-level security cases as may be designated by the Board.

‘‘(D) NATIONAL OFFICE REVIEW.—The national office of the Board shall— ‘‘(i) review any consent application with respect to which a regional office is not authorized to approve or deny the application; and ‘‘(ii) review any consent application that is denied by a regional office, if the individual requests a review by the national office.

‘‘(E) FORMS AND INSTRUCTIONS.— ‘‘(i) AVAILABILITY.—The Board shall make all forms and instructions related to consent applications avail[1]able to the public, including on the website of the Board. ‘‘(ii) CONTENTS.—The forms and instructions described under clause (i) shall provide a sample cover letter and a comprehensive list of items that may accompany the application, including clear guidance on evidence that may support a finding of rehabilita[1]tion.

‘‘(F) CONSIDERATION OF CRIMINAL HISTORY.— ‘‘(i) REGIONAL OFFICE CONSIDERATION.—In reviewing a consent application, a regional office shall— ‘‘(I) primarily rely on the criminal history record of the Federal Bureau of Investigation; and ‘‘(II) provide such record to the applicant to review for accuracy. ‘‘(ii) CERTIFIED COPIES.—The Board may not require an applicant to provide certified copies of criminal history records unless the Board determines that there is a clear and compelling justification to require additional information to verify the accuracy of the criminal history record of the Federal Bureau of Investigation.

‘‘(G) CONSIDERATION OF REHABILITATION.—Consistent with title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Board shall— ‘‘(i) conduct an individualized assessment when evaluating consent applications that takes into account evidence of rehabilitation, the applicant’s age at the time of the conviction or program entry, the time that has elapsed since conviction or program entry, and the relationship of individual’s offense to the responsibilities of the applicable position; ‘‘(ii) consider the individual’s employment history, letters of recommendation, certificates documenting participation in substance abuse programs, successful participating in job preparation and educational pro[1]grams, and other relevant mitigating evidence; and ‘‘(iii) consider any additional information the Board determines necessary for safety and soundness.

‘‘(H) SCOPE OF EMPLOYMENT.—With respect to an approved consent application filed by an insured credit union on behalf of an individual, if the Board determines it appropriate, such approved consent application shall allow the individual to work for the same employer (without restrictions on the location) and across positions, except that the prior consent of the Board (which may require a new application) shall be required for any proposed significant changes in the individual’s security-related duties or responsibilities, such as promotion to an officer or other positions that the employer determines will require higher security screening credentials.

‘‘(I) COORDINATION WITH FDIC.—In carrying out this subsection, the Board shall consult and coordinate with the Federal Deposit Insurance Corporation as needed to promote consistent implementation where appropriate.

‘‘(6) DEFINITIONS.—In this subsection:

‘‘(A) CONSENT APPLICATION.—The term ‘consent application’ means an application filed with Board by an individual (or by an insured credit union on behalf of an individual) seeking the written consent of the Board under paragraph (1)(A).

‘‘(B) CRIMINAL OFFENSE INVOLVING DISHONESTY.—The term ‘criminal offense involving dishonesty’— ‘‘(i) means an offense under which an individual, directly or indirectly— ‘‘(I) cheats or defrauds; or ‘‘(II) wrongfully takes property belonging to another in violation of a criminal statute; ‘‘(ii) includes an offense that Federal, State, or local law defines as dishonest, or for which dishonesty is an element of the offense; and ‘‘(iii) does not include— ‘‘(I) a misdemeanor criminal offense committed more than one year before the date on which an individual files a consent application, excluding any period of incarceration; or ‘‘(II) an offense involving the possession of con[1]trolled substances.

‘‘(C) PRETRIAL DIVERSION OR SIMILAR PROGRAM.—The term ‘pretrial diversion or similar program’ means a pro[1]gram characterized by a suspension or eventual dismissal or reversal of charges or criminal prosecution upon agreement by the accused to restitution, drug or alcohol rehabilitation, anger management, or community service.’’.

(c) REVIEW AND REPORT TO CONGRESS.—Not later than the end of the 2-year period beginning on the date of enactment of this Act, the Federal Deposit Insurance Corporation and the National Credit Union Administration shall— (1) review the rules issued to carry out this Act and the amendments made by this Act on— (A) the application of section 19 of the Federal Deposit Insurance Act (12 U.S.C. 1829) and section 205(d) of the Federal Credit Union Act (12 U.S.C. 1785(d)); (B) the number of applications for consent applications under such sections; and (C) the rates of approval and denial for consent applications under such sections; (2) make the results of the review required under para[1]graph (1) available to the public; and (3) issue a report to Congress containing any legislative or regulatory recommendations for expanding employment opportunities for those with a previous minor criminal offense.

 

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.

FMLA Bars Retaliation Against Employee for Requesting FMLA Leave Even if Unqualified or Ineligible

On Wednesday, a unanimous Sixth Circuit reversed an employer’s 12(b)(6) judgment on an FMLA retaliation claim where the employee was terminated shortly after requesting an unpaid leave due to her infant son’s health even though she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.  Millman v. Fieger and Fieger, PC¸ No. 21-2685 (6^th Cir. 1/25/23).  The Court ultimately determined that “the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave.”

According to the Court’s opinion, shortly after the commencement of the COVID pandemic on March 13, the employer law firm directed its staff to work from home one day each week.  The plaintiff lawyer’s two-year old son recently been hospitalized with RSV, a respiratory illness, was still using a nebulizer and his day care remained closed.  The plaintiff had five vacation and 3 PTO days left in her time off bank.  The firm owner denied her March 14 request to work from home on March 16 and 17, but HR approved her request to use her PTO.  When her direct supervisor asked if she planned to return on March 19, she indicated that she planned to return, but was concerned that her son’s day care was still closed and he had developed COVID symptoms.  On  Thursday, her son’s condition worsened and she contacted HR and offered to take unpaid leave to avoid returning to the office.  HR did not respond to her offer to take unpaid leave or send her an eligibility notice or request for a medical statement and instead authorized her to work from home for the remainder of the week.  She forwarded the email to her supervisor and worked with him from home for the rest of the day.  At the end of the day, HR sent her a letter signed by the firm’s owner terminating her employment after she reported that her son had a cold and she had not returned to work as promised.  A week later, she requested her personnel file and was sent another letter indicating that her actions showed that she had no intention of returning to work, that she refused to work because her son had a cold and they believed that she had quit.  When she filed suit in August, the court granted the employer’s motion to dismiss on the grounds that she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.

The Court first concluded that FMLA retaliation claims may be brought both under the interfere, restrain and deny statutory section and the retaliation statutory section, but that the burden of proof for retaliation claims did not change depending on which statutory section was cited.  (The concurring opinion clarified that only the interfere, restrain and deny section should support this type of retaliation claim).   

The plaintiff’s “core claim is that she was fired for inquiring about and making a request to take FMLA leave, which she argues is protected activity under the FMLA.”  For purposes of ruling on a motion to dismiss (when all factual allegations are deemed to be valid), the Court presumed that she had alleged sufficient causation and an adverse action.  The only question was whether she had engaged in a protected activity and that her employer knew she had engaged in a protected activity when there were no factual allegations indicating that she was entitled to or qualified for FMLA leave.

It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain circumstances. In the more common circumstance, if an employee actually takes leave without being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to which the employee was not entitled unambiguously falls outside the FMLA’s protections. . . .

This case presents an entirely different circumstance. [Plaintiff] never actually took leave; she only made a request for leave. . . . the question is whether the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave. . . .

 . . . the steps of the process created by the FMLA—including the first step, i.e., the employee’s initial request for leave—must be protected activity under the Act. FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.

                . . .

Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA’s process. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits. We are not to impose nonsensical readings of a statute “if alternative interpretations consistent with the legislative purpose are available.”

                . . .

                . . . Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”

                . . . .

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected. In this case, when her son began exhibiting symptoms associated with COVID-19, [Plaintiff] made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The Firm, through Human Resources, then offered, and [she] accepted, a work-from-home arrangement for those two days and never responded to her request. [Her] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.

Although the employer argued that the plaintiff had failed to provide notice that she was exercising her rights under the FMLA, the Court pointed out that the FMLA regulations make clear that employees do not need to use the words, FMLA, to request leave under the FMLA.   Rather, “the employee must provide enough information for the employer to know that the leave she has requested reasonably might fall under the FMLA. In addition, where leave is needed to care for a family member, the employee must so indicate.”

“In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her FMLA leave, moreover, “the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.”

In addition, the employer was clearly on notice because it initially permitted her to work from home and its subsequent documentation cited her request to not return to the office.

The Firm indicated that it was aware of  [her] request based on its response: it offered an alternative accommodation to work from home for two days. The Firm had notice that [she] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. The Firm neither sought to clarify [her] request nor did it attempt to obtain “a certification issued by a healthcare provider of . . . [her] son” to determine whether her request fell outside the scope of the Act. 29 U.S.C. § 2612(a). Instead, the Firm offered a work-from-home arrangement—which [she] accepted—and then terminated her after the first day for failing to “come into work,” indicating that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in responding to [her] request. On these allegations, [she] provided proper notice to her employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed procedures. The Firm was on notice of her protected activity.

Therefore, the dismissal was reversed and the case was remanded to the trial court to proceed with discovery.

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.