Sixth Circuit Rejects De Minimis Employment Actions As Insufficient Grounds for Disability and Retaliation Claims

 Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims for disability discrimination and FMLA retaliation.  Erwin v. Honda North America, Inc., No. 22-3823 (6th Cir. 4/21/23).  The Court found that the plaintiff had failed to identify any materially adverse employment actions which she had suffered after taking various medical leaves of absence due to her mental health issues.  She complained about a change in her job duties and reporting relationships, but none of the changes were substantial and merely involved reporting full time to one of her two managers and working full-time for that manager doing the same type of work she had previously been assigned.   The suspension of her ability to work remotely was only temporary while she was being trained.   None of these slight changes affected her compensation, job title, benefits, status, level of responsibilities, shifts, etc.

Having worked for the company for more than two decades, the plaintiff had been a recruiter since 2017.  She took a lot of FMLA leave for mental health issues.  At one point, she recruited only for full-time positions, at other points only for contingent positions.  In 2019, she recruited for both and reported to two different managers (one for full-time positions and one for contingent workers).   When a new FMLA leave request was denied for failing to supply medical documentation, she was given leave under company policy.  When she returned, she was assigned to only recruit for full-time positions and to report to one manager and to relocate her desk to be near that manager.  When she complained about that manager, the manager was disciplined for making unprofessional comments about her, but it was also found that she had poor attendance that was unrelated to her FMLA leave.  She took another FMLA leave and then resigned rather than return.  Although she later applied (and was hired) for a contingent position, she brought suit alleging disability discrimination and FMLA retaliation.

The Court found that she had not suffered an adverse employment action.  The change in her job duties back to recruiting only full-time positions did not affect anything about her job and she didn’t even testify that she preferred recruiting for contingent workers.   A mere alteration of job responsibilities is not an adverse employment action.

A change in management that did not affect her job status likewise was not an adverse employment action.

The requirement that [she] work in person, at her relocated desk, does not qualify in these circumstances either. The record shows that [her] suspension from remote work was only temporary, while she completed training. Because the revocation was temporary and “no economic loss occurred,” [her] loss of remote work capability is “properly characterized as a de minimis employment action that does not rise to the level of a materially adverse employment decision.” Bowman, 220 F.3d at 462. As for her desk being moved, Erwin doesn’t explain the significance; she simply notes that it was moved. And although she complains about increased supervision, even “intense supervision” is not an adverse employment action where, as here, Erwin was not “terminated or demoted,” and did not have her “pay rate reduced, benefits lessened, or responsibilities diminished.” Broska v. Henderson, 70 F. App’x 262, 267 (6th Cir. 2003).

The court also rejected her constructive discharge claim:

. . . Constructive discharge occurs when an employer creates “an objectively intolerable work environment to deliberately force [an] employee to resign.” . . . “[I]ntolerability is a demanding standard.” Id. The conditions must be “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. (citation omitted). “[C]riticism and negative feedback do not suffice.” Id. So [her] fear of returning to work because she might face increased supervision and critical feedback does not show her work environment was intolerable. [She] has failed to show that a “reasonable person” would find the “conditions objectively intolerable.”  . . . . And [she] offers no evidence that Honda acted “deliberately” to “force” her to resign.  . . .. Even when construing the facts in [her] favor, she has not shown she was constructively discharged.

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 EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

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.

What's New?

 There have been a few interesting decisions in the past month involving the retroactivity of the amendments to Ohio's fair employment statute at Ohio Revise Code Chapter 4112, subdivision immunity, first amendment defense of churches accused of discrimination and the hiring claim of a "plainly superior" candidate. 

In Burch v. Ohio Farmers Ins. Co., 2023-Ohio-912, the Delaware County Court of Appeals reversed the dismissal of a complaint of pregnancy discrimination and retaliation under ORC 4112 which had been filed in December 2021 more than two years after the claims accrued, but were based on claims that accrued prior to the April 15, 2021 effective date of the Employment Law Uniformity Act (“ELUA”).  The ELUA had shortened Ohio’s limitations period for ORC 4112 claims to two years and eliminated individual supervisory liability.   The unanimous court found that the EULA was not retroactive and therefore the claims were governed by the prior legal standards, which permitted claims to be filed within 6 years of when they accrued and permitted claims against individual supervisors.    Accordingly, ORC 4112 claims which accrued prior to April 2021 may be brought in Ohio courts until April 14, 2027. 

In Kubala v. Smith, 2023-Ohio-99, the Trumbull County Court of Appeals affirmed the summary judgment denial of statutory individual and political subdivision immunity to the county engineer, who was alleged to have created a hostile work environment in a same sex harassment case by making numerous crude and offensive statements to and about the plaintiff.  The statute denies immunity where the alleged actions are manifestly outside the scope of the defendant’s employment or official responsibilities and where the alleged acts were malicious, in bad faith or in a wanton and reckless manner.  The court agreed that even if some of the crude comments were made during workplace discussions of county projects, none of the county’s business was being furthered or promoted by the alleged comments and thus could be found by a jury to be manifestly outside the engineer’s official responsibilities.  There was also enough evidence to survive summary judgment that the conduct was malicious, in bad faith or reckless because it was inferentially or explicitly sexual in nature. 

In Levine v. DeJoy, No. 22-1388 (6^th Cir. 4-10-23), the Sixth Circuit reversed an employer’s summary judgment on a Title VII claim when it failed to promote as customer services supervisor a black 27-year employee, with greater managerial experience, who had received perfect mystery shopper awards, and held AD, BA and MBA degrees instead of a white employee with less than 8 years of experience and no post-secondary education who was serving as the acting customer service supervisor, but who the plaintiff was then asked to help train for the supervisory position.   The hiring manager explained that the interviews were the deciding factor since the plaintiff seemed too accommodating to employees and the white employee was extremely knowledgeable about the collective bargaining agreement and holding employees accountable and possessed superior knowledge of the particular position.  The Court’s majority found that the plaintiff presented sufficient evidence of pretext to challenge the employer’s explanation for its hiring decision when her qualifications were significantly better than and “plainly superior to” those of the successful candidate:

In the instant case, [the plaintiff] has provided an abundance of evidence substantiating that she is arguably more qualified for the position than Peare. “[W]hen qualifications evidence is all (or nearly all) that a plaintiff proffers to show pretext, the evidence must be of sufficient significance itself to call into question the honesty of the employer’s explanation” for its hiring decision. . . . . In determining whether a plaintiff has provided enough evidence “to raise a genuine issue of fact of discriminatory motive,” the Court recognizes that employers “are generally free to choose among qualified candidates . . . .”  . . . With those principles in mind, a court ruling on a motion for summary judgment must consider that:

[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate—something employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture

In Montgomery v. St. John’s United Church of Christ, 2023-Ohio-1168, the Stark County Court of Appeals affirmed the church’s summary judgment on sexual harassment claims brought by two dismissed ministerial employees.  The employees complained about being terminated after objecting to the comments and lifestyle of a leading parishioner who had sought their advice and listening ears.  They both admitted that he had not sought sex with them, but merely discussed his own sex life, and personal issues.  The Court agreed that the First Amendment precluded courts from evaluating decisions about religious ministers because it would necessarily involve the court evaluating religious issues. 

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 Court Affirms Employer's Right to Fire HR Employee for Enforcing Non-binding CDC and ODH COVID Guidelines.

Last week, the Ohio Court of Appeals affirmed the Civil Rule 12(B)(6) dismissal of a wrongful discharge claim where the plaintiff had allegedly been fired for telling an employee to stay off work for 10 days per the CDC’s COVID guidelines and because the employer believed that she would report him to the CDC for requiring the employee to return to work despite a positive COVID test. Dudley v. Siler Excavation Services, LLC, 2023-Ohio-666 (3/6/23).  The Court found that the plaintiff failed to cite a sufficiently clear statutory or regulatory source to support her wrongful discharge claim.  The Court found that there was no specific OSHA or Ohio standard applying to this situation after the Supreme Court had concluded that concerns with public health (i.e., a virus) were not specific workplace safety risks.   The concurring opinion also emphasized that public health recommendations, suggestions and guidance were not binding or legal requirements, like statutes and regulations. 

According to the Court’s opinion, the plaintiff was hired into an HR role.  When an employee told her that he tested positive for COVID, she advised him to stay off work for 10 days per the CDC guidelines at the time.  The defendant’s owner, however, told him to report back to work the following Monday.  When the plaintiff then told the owner why the employee “’should not come to work, [he] became upset and told [her] that ‘[i]t's my f---ing company and I'll do what I want.’ [He] then told [her] that ‘he could not trust her to go to the CDC’ and that she needed to pack her things and leave.”  She filed suit for wrongful discharge in violation of public policy.  Because she was an at will employee, the trial court found that she could not sue for wrongful discharge when she failed to identify a sufficiently clear source of public policy which the employer had violated by firing her and dismissed her claim.  The Court of Appeals affirmed. 

Under the common law doctrine of at-will employment, [she] could be fired at the will of [the employer]. "However, if an employee is discharged in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules and regulations, or common law, a cause of action for wrongful discharge in violation of public policy may exist as an exception to the general rule."

In order to prove a public policy wrongful discharge claim the employee must allege (and ultimately prove) a number of things, including “That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (known as the clarity element).”  The rule being violated by the employer must be specific; "[a] general reference to workplace safety is insufficient to meet the clarity requirement."  In other words, “an employee cannot simply allege that clear public policy exists because of a "general societal interest," but rather must set forth a specific law evincing public policy.”

In her complaint, the plaintiff referenced to the OSH Act’s general hazard clause and the Ohio Department of Health recommendations that employee quarantine for 10 days.  The Court found that these were insufficient sources of clear public policy or requirements and were more similar to concerns of general, non-specific workplace safety issues found insufficiently clear in prior cases.

the Court emphasized the "crucial distinction" "between occupational risk and risk more generally."  . . .  To be enforceable, workplace safety standards must address occupation-specific risks that employees face at work. The risks must be related in a "causal sense" to the workplace and these risks differ from everyday risks that all people face.  . . . Thus, a rule addressing the risks posed by COVID-19 is a permissible workplace  safety standard under the OSH Act only "[w]here the virus poses a special danger because of the particular features of an employee's job or workplace," such as where the employee is a researcher working with the COVID-19 virus.  . . .

{¶22} In contrast, public health measures addressing universal risks, like "crime, air pollution, or any number of communicable diseases" are not occupational hazards.  . . . Such threats do not have a causal relationship to the workplace but, instead, are "hazards of daily life."  . . . They do not become workplace hazards "simply because most Americans have jobs and face those same risks while on the clock."  . . . Because "permitting OSHA to regulate the hazards of daily life" would "significantly expand OSHA's regulatory authority without clear congressional authorization," the U.S. Supreme Court concluded that the vaccine mandate "extend[ed] beyond the agency's legitimate reach."  . . .

In light of NFIB, we reject [Plaintiff’s] broad interpretation of state and federal law as applying generally to COVID-19 hazards in the workplace. Notably, [she] does not claim that her employment involved an occupational risk more than can be characterized as a hazard of daily life. "COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather."  . . . There is nothing to suggest COVID-19, or any other communicable disease or virus, poses a special danger because of her job or workplace. COVID-19 is simply a hazard of daily life. The mere citation to Pytlinski and Kulch, along with other OSHA provisions and regulations are insufficient to meet the burden of articulating a clear public policy specific to workplace safety in context of COVID-19. As the plaintiff, [she] has the obligation to identify the specific source of law that supports the public policy she relies upon in his claim. . . .

{¶24} In so holding, we find [Plaintiff’s] reliance on recommendations published as "guidance" from the Ohio Department of Health's "Responsible Restart" is an insufficient basis to support a clear public policy for purposes of meeting the clarity requirement. . . .

{¶25} While the guidance provided by the Ohio Department of Health and the CDC may have called for 10 days of isolation from employees with COVID-19, nothing in the guidance cited by [Plaintiff] required businesses to adopt any particular protocol. Rather, the guidance is comprised of "Universal Recommended Best Practices."  In efforts to slow the spread of COVID-19, the Ohio Department of Health also stated that employers could choose to require masking, social distancing, and other COVID-19 mitigation measures, such as testing.  . . . . In other words, "businesses were and are empowered to make their own choices" with respect to COVID-19 mitigation measures.  . . . Nothing that [Plaintiff] cites mandates any COVID-19 response—each workplace is unique and free to respond as deemed appropriate.

                . . .

 . . .For the reasons listed above, [Plaintiff] has not established that the guidance provided by the CDC or the Ohio Department of Health amounted to a sufficient articulation of public policy. [She] was not terminated for reporting Blake's illness, but upon her disagreement with her employer's COVID-19 response. As a result, we find the federal authorities cited by [Plaintiff], namely 29 U.S.C. § 651, 29 U.S.C. § 654, 29 U.S.C. § 660(c), 29 C.F.R. 1904.35, and 29 C.F.R. 1904.36 do not support her claim for meeting the public policy exception to the employment at-will doctrine.

The plaintiff also cited O.R.C. §§4101.11 and O.R.C. 4101.12 to support her public policy claim.  “The first, O.R.C. §4101.11, is titled "Duty of employer to protect employees and frequenters" and the other O.R.C. §4101.12 is titled "Duty of employer to furnish safe place of employment.”  Ohio courts have divided whether these statutes are sufficiently clear sources to support a public policy claim involving workplace safety.  This Court refused to decide the issue “because the facts in this case do not involve even a questionable occupational safety hazard or workplace safety issue. As discussed,  . . . . "[a] general reference to workplace safety is insufficient to meet the clarity requirement."   Instead, the Court determined that this situation involved a general health risk, not a specific workplace safety risk.

 For reasons stated above, providing a safe workplace does not mean the elimination of every outside illness that could potentially enter the workplace.  . . . Creation of such a broad public policy exception would be unworkable and significantly undercut the doctrine of at-will employment. . . . . As such, any claimed public policy exception must be sufficiently clear and narrowly applied. . . . . [Plaintiff] has failed to identify specific, clear, and applicable statutes, rules or constitutional provisions to support her public policy claim and has, therefore, failed to establish the clarity element.

A concurring opinion emphasized that guidance, suggestions and recommendations issued by public health authorities are not equivalent to binding statutes and regulations.  Among other things, they have not undergone public review, debate and comment like statutes and regulations.   

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 Holds Compliance With Federal Law Governing Federal Contractors Does Not Convert Private Entities Into State Actors

Yesterday, the Sixth Circuit unanimously affirmed the Civil Rule 12(b)(6) dismissal of a Free Exercise constitutional claim brought by former employees against a government contractor based on the COVID vaccine mandate.  Ciraci v. J.M. Smucker Co., No. 22-3462 (6^th Cir. 3-14-23).  The plaintiffs were apparently terminated after their request for a religious exemption from the COVID vaccination mandate imposed on federal contractors was denied by the defendant employer, a federal contractor. “So long as a private company’s actions turn on compliance with a state or federal law, that does not by itself make the company a state actor.” In short, an employer does “not become a state actor merely by complying with a generally applicable law.” Because constitutional claims can only be brought against state actors and not private entities, the claims were properly dismissed.

According to the Court’s opinion, after President Biden ordered employees of federal contractors to be vaccinated, the employer requested – but did not require – its employees to get vaccinated.  A month later, it required its employees to be vaccinated pursuant to the Executive Order, subject to religious and health accommodations.  The plaintiffs sought religious accommodations and were denied.  The opinion makes no mention of other litigation stays on the Executive Order by federal courts or whether the plaintiffs were terminated (other than to note that they all sought reinstatement through the lawsuit).   Instead of filing suit against President Biden or the OFCCP, the employees sued their employer under the U.S. Constitution, not Title VII.

Constitutional claims only apply to government entities.  The Court had no difficulty finding that the company failed to become a government actor simply by selling products to the federal government.

[It] does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That [it] acted in compliance with a federal law and that [it] served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.

Constitutions simultaneously empower and constrain. At the same time that they authorize various branches of government to exercise sovereign power, they limit that power in lots of ways, including through election requirements, tenure provisions, process-based requirements for making laws, and, most relevant for today, explicit constraints on the exercise of power. The first eight provisions of the Bill of Rights offer the most prominent example of constraints on government. Whether it is the Bill of Rights in general or the First Amendment in particular, these constraints typically protect citizens from the government, not from each other. . . . . It is the rare federal constitutional guarantee—the prohibition on involuntary servitude counts as a glaring exception, see U.S. Const. amend. XIII—that regulates solely private conduct.

               . . .

By way of contrast, many federal statutes regulate private conduct and some even protect certain values that the Free Exercise Clause protects. The claimants, for example, could have separately filed a claim under Title VII of the 1964 Civil Rights Act, . . . . It bars private employers from discriminating against employees based on their faith, among other protected categories. 42 U.S.C. § 2000e-2(a). The claimants, notably, filed complaints with the EEOC under Title VII.  At the same time, the claimants could have sued the federal government, which created the vaccine mandate for federal contractors. But they did not, requiring us to determine whether Smucker’s counts as a government actor.

The Court discussed a number of factors to consider in whether a private company may be considered to be a government actor subject to constitutional limitations.  First, is “the specific conduct of which [a] plaintiff complains” is “fairly attributable” to the government”?  Second, is the defendant entity’s conduct “entwined with” government decisions or fairly attributable to the government based on a close “nexus” between the state and the challenged conduct?  Third, is the defendant company involved with a “traditionally exclusive government function?” Finally, did the government compel the defendant company’s actions? Compliance with a state or federal law does not, by itself, convert a private entity into a government or state actor. 

Clearly, the defendant was not involved in a traditionally exclusive government function, like conducting elections.  “We have never relied on the government to make jelly, peanut butter, and other products in the Smucker’s lineup. . . . Making jam simply is not a government function, whether by tradition or by the most up-to-date notions of what our governments should do.”

That Smucker’s carried out the government’s vaccine mandate in the course of making jam does not change anything. In the first place, the inquiry focuses on the entity’s underlying service, not the government’s regulatory mandate. Otherwise, the inquiry would collapse into a public function each time a regulation covered the topic. In the second place, claimants cannot satisfy even this friendly re-framing of the issue. A vaccine mandate does not count as “a public function traditionally handled just by the State.” . . . .It is hardly unheard of for private companies to make vaccination a condition of employment.

The Court also rejected any argument that the government and defendant employer had become so entwined as to form collective state action. 

Entwinement may arise when a private entity partners with, directs, or is controlled by government officials. Consider some examples. A merchant becomes entwined with the government when it directs a county sheriff to attach a customer’s property. . . . . An athletic association becomes entwined with the government when public schools govern, operate, and fund it. . . . .  And a private store becomes entwined with the government when it conspires with government officials to segregate its facilities or acts in accordance with unofficial, unlawful, and state-enforced customs of segregation. . . . .

Again, nothing of the sort happened here. Smucker’s has not partnered, conspired, or entered into a “joint venture[]” with federal officials. . . . .  It did not deny the claimants’ request for an exemption using federal officials’ assistance. . . . . Nor has it connected itself to joint action with the government in some other cognizable way. Yes, it has contracted with the federal government. But federal contracts by themselves do not create the requisite entwinement.

The Court also rejected the argument that the company had been compelled to deny the plaintiffs’ religious exemption requests.  

In this case, the federal government never required [the employer] to vaccinate the claimants, for the Executive Order did not tell [it] to deny exemptions to anyone. It told [it] to grant religious exemptions to those legally entitled to them, and let [it] decide on its own who qualified. See Guidance at 10. The claimants contend that [it] has exercised its discretion under the Executive Order stingily, not that [it] has been dragooned by the government into denying an exemption.

Constitutional claims may only be brought against government entities or actors (like officials). “When a private company complies with federal law, that does not by itself make the company a government actor. . . . .  Else, every regulated private company would be a public entity, . . . .”

“Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities.”  . . . . To be regulated does not make one a regulator. To sell to the government does not make one the government. Not even “extensive regulation” of a private company makes it a “state actor” by itself.

                . . . .

 . . . But compliance with federal law, without more, does not make private firms state actors. Just as Smucker’s acts privately when it requires its suppliers to sell it fit rather than unfit berries, see 21 U.S.C. § 342(a)(3), so too when it requires employees to take vaccines that make them fit for work.

In addition, the plaintiffs could not seek relief with a §1983 claim, which addresses constitutional violations of those acting under color of “state” law.  Here, it was as federal rule, not an Ohio rule, which was at issue.   Further, they were not suing any federal official for violating the U.S. constitution.   The court declined to address whether the plaintiffs were entitled to sue under the constitution for affirmative relief, beyond a mere injunction.

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.