Sixth Circuit Rejects ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the decision. 

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 Excludes Workers Compensation Coverage from Most Injuries While Working From Home

 In the better late than never category, the General Assembly amended the workers compensation statute, Ohio Revised Code §4123.01(C), to specifically exclude injuries suffered by employees who are working from home unless three factors are met, including a “special hazard.”   Effective, September 22, 2022, the new language from House Bill 447 provides in relevant part that:

(C) "Injury" includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment. "Injury" does not include:

 . . .

(4) Injury or disability sustained by an employee who performs the employee's duties in a work area that is located within the employee's home and that is separate and distinct from the location of the employer, unless all of the following apply:

(a) The employee's injury or disability arises out of the employee's employment.

(b) The employee's injury or disability was caused by a special hazard of the employee's employment activity.

(c) The employee's injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

(emphasis added).  

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.