Sixth Circuit Puts Burden on Employer to Assure that Harassment Stops After Employee’s First Complaint.

Today, the federal Sixth Circuit of Appeals released an unanimous opinion affirming the award of $1,039,504 in compensatory and punitive damages, back pay, and front pay (but which does not yet include court costs or attorney fees) to a female plaintiff who quit her job paying less than $10/hour after only five weeks on the job because she was sexually harassed by co-workers. West v. Tyson Foods, Inc., No. 08-6516 (6^th Cir. 4/16/10). While the amount of the verdict is enough by itself to get an employer's attention, this case is particularly instructive in watching how many times management dropped the ball despite having good policies and procedures in place because apparently no one was enforcing those policies or administering those procedures when it came to this plaintiff. Moreover, the Court found that the employer was on notice of the continuation of the sexual harassment following the employee's first complaint even though she did not complain to her supervisor again before walking off the job permanently. Therefore, this is a particularly instructive case for human resources professionals.

According to the Court's opinion, the plaintiff worked on an assembly line. She attended an employee orientation which covered the employer's sexual harassment policy twice, and was informed that all sexual harassment complaints would be investigated within two weeks and that the investigation would be kept confidential. Nonetheless, in that same first week, she was harassed verbally by a number of co-workers and within two more weeks the harassment escalated to inappropriate touching which put her in tears. When she reported the harassment to the lead lineperson and her supervisor – giving names and examples of the offending the conduct, she was advised not to take it personally because they're like that to all women and it was because she was "hot." When they saw she was not amused, they said they would look into it, asked her not to report this to HR and then later offered her a transfer to a different location. While the plaintiff thought that her supervisor would report this to HR, instead he just watched out for her for a few days. Nonetheless, the harassment continued for the next two weeks, escalated to groping and she stopped going to work after being followed out to the parking lot by the alleged harassers because she feared getting raped. The employer notified her that it was treating her absence as job abandonment and fired her.

The employer refused to give her the last paycheck until she completed an exit interview. At that point, she met with her first HR employee for 45 minutes and recounted in detail how she had been harassed, how she had reported it to her supervisor and how it had continued even after he transferred her to another location. He promised that an investigation would be conducted within two weeks in accordance with company policy. However, instead of specifically alerting someone or investigating it himself, the HR employee passed on his notes (on the exit interview form) to the inbox of an HR clerk and the form was never seen again. Yet another employee quit because of sexual harassment shortly thereafter and, again, no investigation was conducted.

More than a month later, the plaintiff filed a Charge with the EEOC and the employer received it a few weeks later. At that point, an investigation commenced and a search of over 2300 files was made to find the missing exit interview form. When the form could not be found, a cursory investigation was conducted, but it did not include the HR employee who conducted plaintiff's exit interview, or the offending employees. The employer told the EEOC that it had conducted an investigation after the plaintiff's exit interview, that her complaints to her supervisor had been nonspecific and that she asked him not to report it to HR. Apparently, however, the employer disciplined a number of employees for not reporting the plaintiff's concerns to HR, but not the HR employee who conducted her exit interview.

Most of these facts did not come out, however, until litigation commenced at the end of the year and the employees and supervisors testified under oath. The Court refused to exclude evidence of the employer's post-termination investigation on the grounds that it showed how the employer failed to take prompt remedial action and had shown manifest indifference to her concerns (which was relevant to punitive damages). It also instructed the jury that it was permitted to conclude that the employer "lost" the exit interview notes because the information was favorable to the plaintiff. The jury found in favor of the plaintiff and the trial court agreed during post-trial motions.

The Supervisor's Response to the Plaintiff's Complaint Was Ineffective and He Was at Fault for Not Confirming with Her that the Harassment Had Stopped.

The Court of Appeals affirmed because "[v]iewing the evidence in the light most favorable to [the plaintiff], the jury reasonably could have found that [the employer] knew or should have known of the harassment and that [the employer's] response reflected an attitude of permissiveness." In addition,

a reasonable jury could have concluded from the evidence that [her supervisor] failed to take a number of steps that would clearly be necessary to establish a base level of reasonably appropriate corrective action under the circumstances, such as speaking with the specific individuals identified by [the plaintiff], following up with [the plaintiff] regarding whether the harassment was continuing, and reporting the harassment to others in management. [The supervisor's] failure to do these things at any time supports the conclusion that his response was neither prompt nor appropriate.

The Court had little sympathy for the supervisor when he testified that he thought the harassment had stopped because the plaintiff never complained to him again because she could have relied on his promise to "take care of it." This finding alone should trouble employers because other court decisions have protected employers from continuing harassment claims when the plaintiff failed to notify the employer that the initial remedial actions were insufficient. This case puts the burden on the employer to check back with the complaining employee to ensure that the remedial actions were effective.

The Court also rejected the employer's contention that it could not be held liable for the harassment because it did not have knowledge of it. As the court noted: "In the context of sexual harassment claims, actual notice is established by proof that management knew of the harassment." Thus, when the plaintiff told her supervisor, who had authority to receive sexual harassment complaints and to conduct an investigation, the employer was put on notice as well. To the extent that the employer's ignorance was based on the plaintiff's failure to complain a second time to her supervisor about the continuation of the harassment, "management's ignorance was the result of [the employer's] failure to respond appropriately to the original complaint by, for example, investigating the complaint, speaking to the harassers, or checking back with [the plaintiff], and such failure cannot be used as a shield against a claim of sexual harassment."

The Loss of a Key Piece of Evidence Can Be Held Against an Employer.

The Court also found that it was appropriate to instruct the jury that if it:

believe[s] that the [exit interview] notes are missing as the result of the unjustified or careless actions or inactions of [the employer], or any of its agents, then you may, but are not required to, draw an inference that the missing evidence would be favorable to the Plaintiff and adverse to the Defendant.

The Court also rejected the employer's argument that it was an abuse of trial court discretion to permit evidence about the plaintiff's complaint during her exit interview and the employer's post-termination investigation because it was not relevant to her constructive discharge claim and would confuse the jury about when liability attached for the sexual harassment. However, such evidence was relevant to the plaintiff's claim for punitive damages because the employer's post-termination conduct was relevant to its good faith in responding to her complaint. Moreover, considering the significant amount of other evidence about the employer's indifference and the existence of sexual harassment, the prejudicial affect on the jury was found to be minimal.

The Plaintiff's Constructive Discharge Was Foreseeable and Caused by the Employer's Indifference.

The Court also rejected the employer's attack on the plaintiff's constructive discharge claim:

A claim of constructive discharge requires a determination that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982). "To determine if there is a constructive discharge, both the employer's intent and the employee's objective feelings must be examined." Logan v. Denny's Inc., 259 F.3d 558, 569 (6th Cir. 2001). An employer's intent can be shown if the employee quitting is a foreseeable consequence of the employer's actions. An employee who quits has "an obligation not to assume the worst, and not to jump to conclusions too fast."

In this case, because there was evidence that the employer tolerated "badgering, harassment, or humiliation" in that at least the plaintiff's supervisor was aware of the alleged harassment and failed to adequately address them. "The jury could have reasonably found that this evidenced a deliberate choice to allow intolerable working conditions." Moreover, the Court found it was foreseeable – even likely that the plaintiff would resign under the circumstances.

It is foreseeable that, after weeks of continuous physical and verbal harassment that goes unaddressed, an employee in [the plaintiff's] position would choose to resign. Further, it cannot be said that [she] "assumed the worst" or "jumped to conclusions." She waited beyond the two-week period from her initial complaint to [her supervisor] within which [the employer's] policy assured her an investigation would be completed, and an employee subject to continuous verbal and physical harassment is not "jumping to conclusions" when she resigns under those conditions.

Punitive Damages Were Appropriate.

Finally, the Court found that punitive damages were appropriate in light of the employer's reckless disregard for the plaintiff's civil rights. She could show that her supervisor and the HR manager who conducted her exit interview acted in the risk of violating her civil rights by not reporting her harassment complaint to HR and not conducting an actual investigation because management training had included anti-harassment training. In addition, the jury could believe that the employer attempted to mislead the EEOC by claiming that it had promptly conducted an investigation after her exit interview instead of waiting several weeks until it received her EEOC Charge. Finally, considering the different versions of events given at trial, the jury could also find that the employer was untruthful.

Although the employer could have avoided punitive damages by showing that it acted in good faith, this requires more than proof that a policy has been adopted. Instead, an employer must prove an effective implementation of its antiharassment policy. In this case,

[A]lthough there was evidence that [the employer] communicated its policy to its employees with some frequency, there was also substantial evidence that the policy was disregarded in its implementation and enforcement. There was evidence of widespread disregard of the policy by employees in engaging in harassment, by supervisors in not reporting to HR incidents of harassment or failing to conduct follow-up investigations, by co-workers in not reporting incidents of harassment, and by HR managers in not investigating reports of harassment. Further, the investigation, when it did take place, was, as the district court stated, "notably flawed." [The employer's] complete failure to follow through, twice, on complaints of harassment by [the plaintiff], followed by a deficient investigation in response to the EEOC's inquiry, does not fulfill "Title VII's objective of motivating employers to detect and deter Title VII violations."

Employers can learn from this decision by reminding its own staff – as well as front line management – of the importance of reporting sexual harassment concerns to HR and then promptly investigating them instead of hoping that they will just go away on their own. When even a new employee making just above minimum wage can win in excess of a million dollars after working just five weeks, it is time for production and HR supervisors to understand how important it is to report and fully investigate sexual harassment complaints.

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.

Unpaid Breastfeeding Breaks Now Mandated by FLSA Per the Patient Protection and Affordable Care Act

As some of you may recall from my August 27, 2009 post at Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore, the Ohio Supreme Court ruled that employers were not required to provide breaks to new lactating mothers. However, the Patient Protection and Affordable Care Act signed last week by President Obama changed that for Ohio and other employers subject to the FLSA. Among other things, the PPACA amends the FLSA to provide that employers must provide an unpaid break for mothers to express breast milk for one year after the birth of the child in a location (other than a restroom) that is shielded from view and intrusion by the public or coworkers. There is an exception for small employers (with fewer than 50 employees) who can show an undue hardship by the significant difficulty or expense of providing such beaks considering the employer’s size, financial resources, nature or structure.

There is no “official” website for the text of the PPACA yet, but the text of Section 4207 of the PPACA (as reflected by the Senate bill later passed by the House and signed by the President) provides as follows:

Section 4207. Reasonable Break Time for Nursing Mothers.

Section 7 of the Fair Labor Standards Act of 19389 (29 U.S.C. § 207) is amended by adding at the end of the following: “(r)
(1) An employer shall provide –
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

A summary of the Public Law 111-148 is available on the Library of Congress website.

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.

Obama DOL Eliminates FLSA Opinion Letters

As some of you may recall from my 3/9/09 post -- DOL Releases New FLSA Opinions from Bush Era Including Letters Addressing Mandatory Use of Vacation or PTO During Temporary Shutdowns -- on the last day of the Bush Administration, the Department of Labor attempted to issue 36 FLSA Administrator Opinion Letters, but only about half them were properly post-marked before the change in administrations. As a result, the Obama Administration published all of the letters on the DOL website, but indicated that it was withdrawing and was reserving the right to review, clarify and even reverse the 18 letters which had not been mailed before the Obama inauguration. (These letters were marked on the website with an asterix). However, the Obama Administration has not issued any FLSA Opinion Letters since that time and last week announced that it would not be issuing any more FLSA Opinion Letters for the foreseeable future (or revising any of the 19 Opinion Letters it previously withdrew pending review). Rather, it will instead be issuing Administrator Interpretations -- general statements of policy applicable to particular industries or involving particular rules:

In order to provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees, the Wage and Hour Administrator will issue Administrator Interpretations when determined, in the Administrator's discretion, that further clarity regarding the proper interpretation of a statutory or regulatory issue is appropriate. Administrator Interpretations will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue. Guidance in this form will be useful in clarifying the law as it relates to an entire industry, a category of employees, or to all employees. The Administrator believes that this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the assumed facts may result in a different outcome. Requests for opinion letters generally will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented. In addition, requests for opinion letters will be retained for purposes of the Administrator's ongoing assessment of what issues might need further interpretive guidance.

In the past, FLSA Opinion letters involved the FLSA Administrator's detailed legal analysis of real questions by real employers and these letters could be relied upon as a reasoned legal position of the DOL in an employer was later investigated by the DOL or sued in court. General statements of policy are typically entitled to less judicial deference.

All that being said, the first Administrative Interpretation concerns the exempt status of Mortgage Loan Officers. In doing so, the Obama DOL has withdrawn prior Opinion Letters finding mortgage loan officers to be exempt from overtime wages.

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: Employer’s Summary Judgment Reversed Where Plaintiff Was Denied Deposition of Kmart Chairman and SVP of Finance

This morning, a divided Sixth Circuit Court of Appeals reversed summary judgment entered in favor of Sears Holding Corporation f/k/a Kmart Holding Corporation on an age discrimination claim brought by the former Senior Vice President of Sales/Division President because he had been denied the opportunity to depose the Chairman of the Board and Senior Vice President of Finance of the company about potentially ageist comments after establishing a prima facie case of age discrimination. Marsico v. Sears Holding Corporation, No. 07-2231 (6^th Cir. 3/26/10). The Court's majority found the denial of the plaintiff's motion to compel discovery to be an abuse of discretion by the trial judge because the alleged comments were equivocal and the plaintiff had shown that he had been replaced by someone who was considerably younger than him. He had been employed by Kmart for 30 years.

In particular, the Court's decision reflects that there had been deposition testimony that the new post-bankruptcy Chairman (who was 41) mentioned to the plaintiff that he had "been around here a long time" and there were some non-specified things that he did not like about store operations. He was also alleged to have said that what was "wrong with these Kmart people, that old way of thinking." Plaintiff was then demoted to a Vice President position for Super Kmart in September 2003, was replaced as SVP by and began reporting to someone who was substantially younger, and, after he make that Super Kmart more profitable than Kmart, his salary was cut. After his demotion, the president offered in November 2004 to help find him another job elsewhere. When plaintiff protested and argued that he could still help the company, the president explained that the Chairman did not "think that someone's that's been around for 30 years can fix Kmart." At the end of that month, Plaintiff was informed that his VP position was being eliminated, but the SVP felt that he could be transferred to Sears after the merger of Kmart and Sears (although the VP of HR told plaintiff he disagreed). The new SVP suggested that he look for another job because no one cared about the sacrifices and contributions he had made for the company in the past. The SVP also allegedly told him that the SVP of Finance also wanted him gone from the company. Plaintiff resigned in February 2005 because of the age discrimination he had suffered and the hostile work environment.

While agreeing that the alleged comments made by the Chairman were not necessarily indicative of discrimination, they were ambiguous enough to justify asking him to clarify and explain them in a deposition because they could indicate discriminatory intent. (The dissent noted that it was inconceivable that comments post-bankruptcy comments about the business savvy of Kmart's former officers could be construed as discriminatory as opposed to describing failed business strategies). In short:

It was through the discovery already conducted that Plaintiff obtained the evidence represented by
witnesses' comments, and given the substance of the comments, there is enough evidence of discriminatory intent such that additional discovery should have been permitted. No one but Lampert and Crowley can testify as to whether the comments cited by Marsico were motivated by age discrimination as indicated by the context and circumstances in which the comments were made. Plaintiff should have been allowed to elicit such testimony and use it in responding to Defendant's motion for summary judgment. Accordingly, we conclude that the district court abused its discretion in denying Plaintiff's motion to compel the depositions and hold that Marsico may depose both Lampert and Crowley.

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.

Deadline for Federal COBRA Subsidy Again Extended

Early in March, Congress passed the Temporary Extension Act of 2010, which among other things, extended unemployment benefits through April 5, 2010 and again extended the federal COBRA subsidy until March 31, 2010. However, the length of time (15 months) for which an individual may receive the COBRA subsidy has not been extended. In addition, the TEA added another provision which provides that individual who experience a COBRA qualifying event of a reduction in working hours (which renders them ineligible for medical insurance even though they remain employed part-time) before March 1, 2010, but are laid off after March 1, 2010 are now eligible for the COBRA subsidy. The Department of Labor has amended the COBRA notifications which employers must send to eligible employees (even though the explanation section of its website still refers to the February 28 date).

The Ohio Department of Insurance has reported that on February 25, 2010, Govenor Strickland also signed a bill to authorize the temporary extension of the period of time which the laid-off employees of small employers (i.e., with less than 20 employees who are not subject to the federal COBRA statute) from 12 months to 15 months for as long as a federal COBRA subsidy is available. The ODOI website also mentions the new March 31, 2010 deadline.

More information about the COBRA subsidy and the notices employers are required to send is available at Employers Must Send Amended COBRA Notices and DOL Publishes Model Notices for COBRA Subsidy Under Stimulus Act to Be Sent by Employers Before April 18.

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: ADA Applies to Teachers in Church Sponsored Schools.

[Editor's Note: The Supreme Court heard oral arguments on this case on October 5, 2011].

This morning, the Sixth Circuit reversed a judgment which had been entered in favor of a Lutheran church and its elementary school on an ADA discrimination claim brought by a former teacher. EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, No. 09-1134 (6th Cir. 3/10/10). The District Court had granted the School summary judgment on the retaliation claim on the grounds that the teacher fell within the ministerial exception to the ADA and he would not inquire into why she had been fired. The Sixth Circuit reversed on the grounds that the primary duties of teacher showed that she was not a ministerial employee.

According to the Court’s opinion, the teacher spent about 45 minutes of each class day in religious activities with her students. After she developed narcolepsy and took an approximately 7-month leave of absence, the School refused to reinstate her in part because of a concern for the safety of her students and because it had already made arrangements with a substitute teacher. Indeed, it decided on its own that she was physically unable to return and offered to pay a portion of her medical insurance for the next ten months if she resigned even though her doctor had released her to return to work without restrictions. Because she appeared for work the day after her physician released her and made clear that she would sue the School after she was told that she would likely be fired, the School indicated that she would be terminated for being disruptive and insubordinate and that she had damaged her relationship beyond repair by threatening to sue the School. When her attorney explained how the School’s actions violated the ADA and that she would file a Charge with the EEOC if the matter were not resolved, the School fired her. Two years later, the EEOC filed suit on her behalf against the School.

The ministerial exception permits “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenants of such organization.” 42 U.S.C. § 12113(d). However, although based on the First Amendment, this exception is very narrow and is not meant to obviate the ADA. According to legislative history, “However, a religious organization may not discriminate against an individual who satisfies the permitted religious criteria because that individual is disabled. The religious entity, in other words, is required to consider qualified individuals with disabilities who satisfy the permitted religious criteria on an equal basis with qualified individuals without disabilities who similarly satisfy the religious criteria.”

“The question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court. However, the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.” In general, “an employee is considered a minister if “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” In this case, the teacher’s “employment duties were identical when she was a contract teacher and a “called” teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks.” Her duties were also virtually identical to those of the teachers who were not entitled ministers. That she teaches at a religious school does not necessarily convert a teacher to a ministerial employee. That the School “has a generally religious character–as do all religious schools by definition–and characterizes its staff members as “fine Christian role models” does not transform [her] primary responsibilities in the classroom into religious activities.”

Similarly, it did not matter that she had specialized religious training and a religious title. “The governing primary duties analysis requires a court to objectively examine an employee’s actual job function, not her title, in determining whether she is properly classified as a minister. In this case, it is clear from the record that Perich’s primary duties were secular, not only because she spent the overwhelming majority of her day teaching secular subjects using secular textbooks, but also because nothing in the record indicates that the Lutheran church relied on Perich as the primary means to indoctrinate its faithful into its theology.”

While the Court did not want to intrude on church theology, it noted that the School’s employee manual included an EEO policy and that the focus of the court would be on the plaintiff’s disability and whether the School violated the ADA, not church theology (except as whether church theology was a genuine defense). In this case, however, the School did not identify church doctrine as a reason for firing the teacher in her termination letter.

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

Ohio Supreme Court Dismisses Criminal Indictment Based on Prosecutorial Misuse of Information From Garrity Statement.

This morning the Ohio Supreme Court issued a decision dismissing a criminal indictment against a police officer because the prosecutors reviewed the information gathered from a Garrity statement obtained during an internal investigation even though no information from the statement was presented to the grand jury or during any trial. State v. Jackson, Slip Opinion No. 2010-Ohio-621. In short, the Court held that no one involved in an internal investigation (which involves obtaining a Garrity statement) may testify before the grand jury and neither the grand jury prosecutor nor the trial prosecutor may review the Garrity statement in preparation for trial even if no evidence or witnesses obtained from the Garrity statement is presented to a jury.

According the Court’s opinion, a police officer had been placed on administrative leave and then was involved in a bar fight, where one of the patrons informed the responding patrol officer that the suspended/fighting officer had possessed a firearm inside the tavern (in violation of Ohio law). The suspended/fighting officer was then investigated by Internal Affairs. Under Garrity v. New Jersey (1967), 385 U.S. 493, as a public employee, he could not be compelled to cooperate with the internal investigation in violation of his Fifth Amendment right against self-incrimination by being told to choose between his maintaining his employment and incriminating himself. Rather, he was given a “Garrity” warning: nothing he said during the internal investigation would be used in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action. After receiving the warning, he answered the questions of the Internal Affairs investigating officer and identified a witness who was otherwise unknown to the police.

The Prosecutor’s Office then presented evidence to the grand jury about the officer’s unlawful possession of a firearm in a tavern. This evidence did not include any admissions or other information from the accused officer, including any evidence about the new witness. It did, however, include testimony from the Internal Affairs investigating officer limited to whether an officer should carry a firearm while on administrative leave and to the fact that he had interviewed the officer as part of an internal investigation. He did not disclose any information obtained from the officer during the Internal Affairs investigation (although the grand jury could conceivably presume the content of the statement from the fact that the officer was being prosecuted following the interview).

A new prosecutor was assigned to handle the trial and somehow both the grand jury and trial prosecutors came into possession of the officer’s Garrity statement before the commencement of a criminal trial. In fact, it was unclear whether the grand jury prosecutor came into possession of the statement before the grand jury returned the indictment. When the officer learned this, he moved to dismiss the indictment on the grounds that the government had improperly used his Garrity statement to assist his criminal prosecution. The trial court agreed, but the Court of Appeals reversed. The appellate court determined that the trial preparation of the prosecuting attorney should not benefit from a review of the Garrity statement, but that the indictment had not been tainted because the Internal Affairs officer did not reveal any information from the Garrity statement to the grand jury. Thus, the proper remedy was to purse the prosecutor’s file of the Garrity statement, reassign the case and recommence the process from the time of the indictment. The Supreme Court reversed and held:

In a criminal proceeding against a public employee, the state may not make direct or derivative use of the employee’s statement that was compelled under
threat of the employee’s removal from office (“Garrity statement”) — The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to a Garrity statement — The state makes derivative use of a Garrity statement when the prosecutor reviews a Garrity statement in preparation for trial — When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.

Rather, the Court concluded that the prosecution must be able to prove that its evidence was independently derived of the Garrity statement:

[T]he Kastigar court established a two-prong test that the
prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony.” (Emphasis sic.) State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214.

Thus, in this case, the prosecution violated Garrity by utilizing a witness from the internal investigation: ”The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement.” No harm which results from a broken Garrity promise can be harmless. Thus, the only proper remedy is dismissal of the indictment. “When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.” On the other hand, if the misuse had only occurred after the indictment had been obtained, the proper remedy would be limited to suppressing the improper evidence during the criminal trial (even if the trial prosecutor had knowledge of the Garrity statement).

Although Court recognized that this will create a hardship for small departments and entities (which might not have enough qualified personnel to both conduct the internal investigation and the criminal investigation), it suggested delaying the internal investigation until after the conclusion of the criminal investigation (which would then permit the accused employee to continue working and drawing a public salary following a legal breach). The Court did not suggest, but should be consider, retaining another entity or department to conduct the internal investigation.

The Court further explained:

Although the issue of liability for turning over a compelled statement is not before us, we note that a public employer can ensure that it does not violate the defendant’s right against self-incrimination only by refraining from providing a compelled statement to the prosecutor when a criminal proceeding ensues. A bright-line prohibition against providing a compelled statement to a prosecutor is both workable and practical. First, because a prosecutor is not permitted to make any use of a compelled statement, denying the prosecutor the opportunity to view the statement will not hinder the prosecutor’s ability to prepare for trial. Second, when a defendant cannot allege that the prosecutor has made use of the statement, there is no need to conduct a time-consuming Kastigar hearing. Finally, when there is no threat that a prosecutor will eventually see the contents of a compelled statement, public employees will be more willing to comply with internal investigations.

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.

EEOC Proposes New ADEA Rule to Address “Reasonable Factor Other Than Age”

Last week, the EEOC began soliciting comments on a proposed rule defining the “reasonable factor other than age” defense available to employers under the Age Discrimination in Employment Act. Both the ADEA and Title VII contain a “business necessity” defense, but only the ADEA also has a defense for RFOA. Interestingly, the Equal Pay Act also has a defense for “factor other than sex,” but does not limit the defense to “reasonable” factors. In addition, even though Congress narrowed the “business necessity” defense in Title VII in 1991 following the Wards Cove Packing v. Atonia, 490 U.S. 692 (1989) decision, it did not similarly amend the ADEA (probably because there had been an open question whether disparate impact liability even existed before 2005). The EEOC concluded that a new rule was necessary following the Supreme Court decision in Smith v. City of Jackson, 544 U.S. 228 (2005), which found that the scope of an employer’s potential “disparate-impact liability under the ADEA is narrower than under Title VII'' because of the additional RFOA defense. In particular, the Court found that the employer could legitimately adopt a pay plan which did not benefit older employees to the same extent as younger employees if the employer had a reasonable basis – such as recruitment and retention of employees -- for doing so which was not based on the age of the employees. Moreover, the Supreme Court also held that employers bear both the burden of production and persuasion under the RFOA affirmative defense. Meacham v. Knolls Atomic Power Lab, 128 S. Ct. 2395 (2008).

The new rule will be located at 29 CFR §1625.7(b) and will provide as follows:

Whether a differentiation is based on reasonable factors other than age (``RFOA'') must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.
(1) Reasonable. A reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. Factors relevant to determining whether an employment practice is reasonable include but are not limited to, the following:
(i) Whether the employment practice and the manner of its implementation are common business practices;
(ii) The extent to which the factor is related to the employer's stated business goal;
(iii) The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
(iv) The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
(v) The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
(vi) Whether other options were available and the reasons the employer selected the option it did.\1\
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\1\ This does not mean that an employer must adopt an employment practice that has the least severe impact on members of the protected age group. ``Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class,
the reasonableness inquiry includes no such requirement.'' Smith v. City of Jackson, 544 U.S. 228, 243 (2005). Instead, this simply means that the availability of other options is one of the factors relevant to whether the practice was a reasonable one. ``If the actor can advance or protect his interest as adequately by other conduct which involves less risk of harm to others, the risk contained in his conduct is clearly unreasonable.'' Restatement (Second) of Torts 292, cmt. c (1965).
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(2) Factors Other Than Age. When an employment practice has a significant disparate impact on older individuals, the RFOA defense applies only if the practice is not based on age. In the typical disparate impact case, the practice is based on an objective non-age factor and the only question is whether the practice is reasonable. When disparate impact results from giving supervisors unchecked discretion to engage in subjective decision making, however, the impact may, in fact, be based on age because the supervisors to whom decision making was delegated may have acted on the bases of conscious or unconscious age-based stereotypes. Factors relevant to determining whether a factor is ``other than age'' include, but are not limited to, the following:
(i) The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
(ii) The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
(iii) The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

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.

Employers Must Send Amended COBRA Notices

In December, President Obama signed the Department of Defense Appropriations Act for 2010 (the “DDAA”). In addition to prohibiting mandatory arbitration agreements which cover Title VII claims brought by employees of defense contractors, it also extended and expanded the COBRA premium subsidy established last year as part of the American Recovery and Reinvestment Act of 2009 (and reported last year here). The DDAA extends the duration of the COBRA subsidy had been scheduled to expire on December 31, 2009. Now, individual will be eligible for the COBRA subsidy if they are experienced a qualifying event (like termination) between September 1, 2008 and February 28, 2010 and the duration of the subsidy has been extended from 9 months to 15 months. Last month, the Department of Labor issued new model COBRA notices which employers are required to send out to newly eligible individuals, individuals who were receiving the subsidy and individuals whose eligibility period expired prior to December 19, 2009. Likewise, the Ohio Department of Insurance issued updated notices for small employers who are not covered by COBRA so that they are consistent with the new federal law. Employers should send out the notices within 60 days of when the individual became eligible for COBRA and no later than February 17, 2010.

There are three new notices (two federal and one state notice). The

Sixth Circuit: A Tale of Two RIFS With Different Endings

This week, the Sixth Circuit released two opinions in two days addressing claims that the plaintiff was selected for a reduction in force in violation of federal employment laws. In one, the Sixth Circuit affirmed summary judgment for the employer and in the other it reversed it and sent the case back for trial. In one case the plaintiff claimed she was selected for the RIF because of her age; in the other the plaintiff claimed that she was selected because of medical leave. In one case, the managers may have violated the employer’s RIF policy which they claimed they were following; in the other the managers likely violated the employer’s RIF policy, which they blamed on ignorance. This comparison highlights how even the slightest difference in facts can lead to much different results.

In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.

The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.

In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:

The jury could also conclude that [Plaintiff’s] termination was based on her FMLA leave, because none of Kmart’s asserted reasons for her lower RIF appraisal scores were documented, and Kmart admitted that nothing in her performance changed during the twenty-day period between her last annual appraisal and the RIF appraisal. Although Kmart contends that variations between annual appraisal scores and the RIF appraisal scores were common, that [Plaintiff’s direct supervisor] inflated the annual appraisal scores, and that [Plaintiff’s] performance had been declining, a reasonable jury could reject Kmart’s contentions. Given [Plaintiff’s] prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that [Plaintiff’s] performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

. . ..

[Plaintiff] also argues—and the jury could conclude—that the same circumstantial evidence supporting the causal connection between her FMLA leave and her termination demonstrates that Kmart’s proffered non-discriminatory reason was pretextual. Specifically, the following facts could show pretext: the temporal proximity between her leave and termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisals and her RIF appraisal, and the “LOA” notation next to [Plaintiff’s] name on the Impacted Associates Form.

In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.

The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:

Business circumstances may result in a temporary or permanent reduction in the size of the work force. Making such decisions is not easy. However, the Company will attempt to identify employees who are the most qualified to perform the work available based on qualifications, productivity, attendance, general performance record and other factors the Company considers relevant in each case. When the Company considers these factors to be relatively equal, decisions will be guided by relative length of service.

Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s burden of proof.


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.

EEOC Releases Statistics Showing Busy FY 2009 Which Favored Employers

Earlier this month, the EEOC released its Fiscal Year 2009 statistics which showed a slight decrease in the number of discrimination charges filed with the agency compared to the prior fiscal year. In terms of the type of allegations, 36% alleged race discrimination, 36% retaliation, 30% sex discrimination, 24% age discrimination and 23% disability discrimination.(Obviously, some Charges alleged more than one factor). Interesting, the EEOC disclosed that it dismissed over 60% of all charges filed after an investigation as lacking reasonable cause of discrimination. Almost 20% of Charges are closed administratively because the Charging Party ceases cooperating or could not be located, etc. Ten percent of cases were closed with settlement and almost 6% of cases resulted in a withdrawal of the Charge with benefits to the Charging Party. Only 4.5% of all charges filed were found to show probable cause of discrimination following an investigation. Nonetheless, the EEOC obtained almost $300M in benefits through settlement, mediation, and litigation for successful Charging Parties, an increase over FY 2008.

Insomniacs can read more about the statistics at http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.

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: Summary Judgment Reversed When Peer Review Privilege Might Not Apply to Protect Hospital

Last month, the Franklin County Court of Appeals reversed summary judgment in favor of Mount Carmel Hospital on a wrongful discharge claim brought by an Emergency Room physician on the grounds that the trial court improperly assumed that relevant evidence which the hospital refused to produce during discovery was protected by Ohio’s peer review privilege.

Thus, documents created by a peer review committee or exclusively for a peer review committee would be protected by the privilege. However, the Court concluded that a hospital could not shield documents it created itself by simply circulating them among the peer review committee.

If a health care entity itself is the original source, it cannot shield documents from disclosure just by circulating them during peer review proceedings. In other words, a health care entity must produce documents responsive to a document request if it created the document, the document was not generated by and/or exclusively for a peer review committee, and the document is available outside of any peer review committees' records (i.e., employees, affiliates, officers, or directors of the health care entity can access the document for non-peer review purposes).

Ultimately, the Court concluded that the trial court had failed to analyze whether the withheld documents were created by the hospital or the peer review committee and whether they would be covered by the privilege. “Absent evidence that the requested documents were created by and/or exclusively for a peer review committee, or generated by an original source and produced or presented to a peer review committee, the party asserting the R.C. 2305.252 privilege has not met its burden.” Therefore, the case was remanded to the trial court to evaluate the hospital’s privilege claim and to permit the plaintiff physician to complete discovery and revise his response to the hospital’s summary judgment motion if the hospital ultimately produced additional relevant evidence.


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

Ohio Supreme Court Hears Arguments On Mandatory Maternity Leave

This morning, the Ohio Supreme Court heard oral argument on whether the Ohio Civil Rights Commission exceeded its authority by requiring Ohio employers to provide a reasonable amount of maternity leave to new employees even when similar leaves are not provided to new male employees. In particular, an employee was fired by an Ohio nursing home when she required maternity leave before she had been employed at least one year as required by the employer's uniformly applied leave policy. No employees are given a leave of absence under the policy until they have been employed at least one year.

Certain provisions of the Ohio Civil Rights Act mirrors the federal Pregnancy Discrimination Act, which prohibits discriminating against women on account of pregnancy. There is no provision under the federal or state statute explicitly requiring a leave of absence for female employees that is not also provided to male employees; it merely prohibits discrimination. Some courts have ruled that the PDA does not require maternity leave unless males are given similar leaves of absence; thus the FMLA was created. The OCRC determined, however, that women would never be able to keep jobs if they got pregnant under such policies and has required Ohio employers to provide a reasonable amount of maternity leave even if they did not otherwise provide any leaves to other employees. In doing so, the OCRC relies on a single federal court decision.

An argument was made that the OCRC exceeded the Ohio constitution by creating a rule which lacks explicit statutory support. To the extent that the OCRC is attempting to create public policy, the argument goes, that should be left to the Ohio General Assembly. Citation was made to three other states which have enacted such laws.

The Attorney General's office also tried to draw an analogy to the reasonable accommodation provisions of the ADA and Title VII's religious discrimination clause. However, unlike the PDA, those statutes explicitly require employers to provide a reasonable accommodation. Thus, merely because an employer is required by statute to provide a leave as a reasonable religious or disability accommodation does not mean that the PDA (or corresponding Ohio statute) requires the same in the absence of similar statutory language.

The Ohio Supreme Court was provided with an earlier opportunity this year to address whether the Ohio statute requires reasonable accommodation of lactating mothers in Allen v. Totes/Isotoner Corp, but it declined to address this issue at that time.

Insomniacs can watch the oral argument in Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, No. 2009-0756 here or on the PBS Ohio Channel.

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 Helps Pro Se Plaintiff with FMLA Claim.

Last week, the Franklin County Court of Appeals partially reversed summary judgment against an employee on his FMLA claim. Randolph v. Grange Mutual Casualty Co., 2009-Ohio-6782 (12/22/09). The pro se plaintiff had been summarily fired after failing to report to or timely call off work on the last day of an attendance probation. He claimed that he had blacked out during an episode of depression, which he claimed was aggravated when he learned he had been fired after he finally woke up and started to drive to his doctor and call his supervisor. In his lawsuit, he claimed that the employer interfered with his right to take FMLA leave. The trial court found that he failed to notify the employer of his need for FMLA leave as soon as practicable and his absence was not encompassed by his earlier FMLA request for intermittent leave for “treatment.” However, the appellate court found that the employee’s depressive episode could arguably constitute a serious medical condition which would support new, unforeseeable FMLA leave and that a jury could conclude that he had notified the employer in sufficient time.

According to the Court’s opinion, the employer’s policy:

requires an employee to report any absence and the reason for it within a half-hour of the employee's scheduled start time and states that failure to report an absence may result in disciplinary action up to and including termination. Under the absenteeism policy, an employee with seven absences in a 12- month period is placed on "absence probation," during which the employee may have only one absence. More than one absence during the absence probation subjects an employee to termination.

The plaintiff had been placed on attendance probation on June 24 until December 5 for reasons unrelated to an FMLA leave he had taken the prior year. Nonetheless, the employer did not count against his probation his absences as excused by his physician for his depression or for an asthma attack which he admitted was not covered by FMLA.

On the last day of his probation, the plaintiff failed to report to or call off work within 30 minutes of the beginning of his shift. His supervisor claimed that she left him a voice mail near the end of the day terminating his employment for violating the terms of his probation. According to the plaintiff, he awoke from a blackout in the late afternoon, realized he needed immediate medical attention and when he began to call his supervisor while driving to the doctor, he checked his voice mail and learned he had already been fired. At this point, he claimed that he began to have a nervous breakdown and drove to his mother’s home instead of his physician. His mother then telephoned the supervisor that evening and attempted to explain the situation and how her son would probably be hospitalized. The plaintiff himself called his supervisor and human resources first thing in the morning and explained the same. Nonetheless, the employer refused to reconsider his termination.

While the Court agreed that the plaintiff’s FMLA rights had not been interfered with before December 5, it found a factual dispute as to whether he was entitled to new, unforeseeable FMLA leave beginning on December 5 even though he failed to call off work during his shift that day. The Court agreed that the plaintiff’s earlier FMLA certification only covered “treatment” and “recovery from treatment” and did not encompass the December 5 absence because he had not received any treatment that day. However, to the extent that his need for leave on December 5 was unforeseeable, the plaintiff was only required by both the earlier and current FMLA regulations to give notice of his need for leave “as soon as practicable.” This could be two days, or less, or more depending on the particular factual circumstances of the situation.

The employer argued that the plaintiff had admitted that the depressive episode began on November 30 and thus, plaintiff was on notice days earlier that he might need FMLA leave. However, the court found a reasonable jury could conclude that the plaintiff did not require time off work until he blacked out during the evening of December 4, and thus, he notified his employer as soon as practicable under the circumstances. In reaching this decision, the Court found it relevant that the employer summarily terminated the employee by voice mail and how this notice of his termination adversely affected his mental health, preventing him from calling his employer any earlier in the day under the circumstances.

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.

Supreme Court: Discovery Order Requiring Employer to Disclose Attorney’s Conversation with Employee Is Not Immediately Appealable.

‘Tis the season for discovery and evidentiary rulings involving employers. This week, a pretty unanimous United States Supreme Court affirmed the dismissal of an appeal filed by an employer after the district court ordered it to disclose information about a conversation between its litigation attorney and an employee who later brought a wrongful termination lawsuit claiming he was fired because of that conversation. Although the employer claimed that the conversation was protected by attorney-client privilege and it would be irreparable harmed by disclosing the information, the Court held that it could not appeal the ruling until suffered a sanction for disobeying the court’s order. Mohawk Industries, Inc. v. Carptenter, No. 08-678 (12/8/09).

According to the Court’s opinion, the employer was defending class action litigation which alleged that it was driving down the wages of its legal employees by employing undocumented immigrant workers (or illegal aliens). Unaware of this, the plaintiff emailed the employer’s human resources department that it was employing undocumented workers. Accordingly, he was asked to meet with the employer’s attorney who was defending the class action litigation. The plaintiff claims that he was unlawfully fired after he refused to recant his statement when pressured by the attorney. The district court ordered the employer to produce information about the plaintiff’s meeting with the attorney and the termination decision. Although the court agreed with the employer that the information was privileged, it found that the privileged had been implicitly waived through disclosures in the class action. In particular, when the class action plaintiffs sought information about the plaintiff’s termination, the employer claimed that he had been fired for recommending the hiring of undocumented workers and had been interviewed by the attorney to substantiate the investigation. By revealing the content of the communication and its relation to the plaintiff’s termination in the class action, the court found the employer waived attorney client privilege in the wrongful termination litigation as well. The district court stayed its order, but refused to certify the issue for immediate appeal. The Court of Appeals dismissed the appeal as well. On appeal, all of the Justices affirmed the dismissal, although Justice Thomas wrote his own concurring opinion.

On appeal, the employer conceded that the discovery order was not a final appealable order, but argued that jurisdiction existed nonetheless because it was an appealable collateral order.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.

The Court concluded that the employer could protect its privileged communications in a number of ways:

First, a party may ask the district court to certify, and the court of appeals to accept, a ninterlocutory appeal pursuant to 28 U. S. C. §1292(b). The preconditions for §1292(b) review—“a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation”—are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases. Second, in extraordinary circumstances—i.e., when a disclosure order “amount[s] to a judicial usurpation of power or a clear abuse of discretion,” or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. . . [Third, a]nother long-recognized option is for a party to defy a disclosure order and incur court-imposed sanctions. District courts have a range of sanctions from which to choose, including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses,” or “striking pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2)(i)–(iii). Such sanctions allow a party to obtain post judgment review without having to reveal its privileged information. [Finally], when the circumstances warrant it, a district court may hold a noncomplying party in contempt. The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment.

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 Gets Tough with Unemployment Claimants

The Franklin County Court of Appeals issued two decisions yesterday denying unemployment compensation. In the first case, the employee was fired after not showing up for an investigatory interview that had been scheduled less than 24 hours earlier and even though he had been told by a Human Resources employee that she knew nothing about any such interview and there was a question whether the conduct underlying the investigation would have justified his termination. Williams v. Ohio Dept. of Jobs & Family Servs., 2009-Ohio-6328. In the second, an employee was fired for tardiness even though she admittedly only received one prior warning that her employer was dissatisfied with her timeliness and none about her general work performance. White v. DKS Group Inc., Proteam Staffing, 2009-Ohio-6329.

In Williams, the employee managed a group home for youths. After serving a two-week suspension for work issues, he was suspended again pending an investigation into additional allegations about his failure to take corrective action against a subordinate (which ultimately may have proved to be unfounded). He then filed a grievance against his two superiors and was placed on paid administrative leave pending an investigation of his grievance. Although the employer’s policy provided for resolving such grievances for two weeks, he heard nothing further from the employer for six weeks. The employer had attempted to contact him by mail, but the letters were returned by the Post Office. The employer also claimed to have left several voice mail messages, but the employee denied that. At that point, he received a telephone call that he was to meet with the employer’s attorney the following day, but was given no further details – such as a telephone number or location. He then called Human Resources, where an employee told him that no decision had been rendered on his grievance and she knew nothing about any meeting with the attorney. Therefore, he failed to attend the scheduled interview. Accordingly, the employer then terminated him for abandoning his job and he received notice the following month.

His unemployment compensation application was denied by the ALJ, the UCBR and the common pleas court. A divided Court of Appeals affirmed.

First, it was concluded that the employee failed to make reasonable efforts to maintain contact with his employer and ascertain the status of his grievance. He argued that he had been informed in writing and verbally to have no contact with his employer while on administrative leave, but the employer explained that this meant only his peers and subordinates – not HR or management. The Court found the employee’s testimony to be confusing on this point because he denied receiving the written instruction to not contact the employer and never claimed that he had been told not to contact HR. In fact, he contacted HR after receiving the telephone call and again three weeks later (when he learned he had been fired).

Second, it was concluded that the employee unreasonably failed to appear at the interview scheduled with the attorney. For reasons that were not explained in any detail, the Court concluded that it was unreasonable for the employee to rely on what he was told by HR and that, instead, he should have requested her to investigate further or to have requested more information – such as the attorney’s telephone number and email address so that he could independently confirm her information. It also found that if he found the short notice to be unreasonable, he should have requested the interview to be rescheduled instead of ignoring it altogether.

Third, the Court was unconcerned with the employee’s argument that the employer violated its own policy by not resolving his grievance within two weeks as called for in its policy because, among other things, the employee failed to introduce a copy of the policy into evidence. However, the dissent noted that the employee attempted to introduce the policy into the record, but the ALJ refused to accept it on the mistaken belief that it had been earlier admitted. The dissent also had difficulty affirming the denial of unemployment compensation to an employee who was terminated while on administrative leave pending a tardy resolution of his own grievance when there were no other grounds to support the termination and he had relied on incorrect information given to him by the employer’s HR employee and a direction to not contact any employee at the employer.

In White, the employee worked for a temporary staffing company, which claimed that she had been removed from 50% of her prior assignments for complaints about her poor work performance and from her last assignment because of tardiness. The employer “testified that [its] policy provided that, if an employee was tardy three or more times in a 30-day period, then discipline, including termination, could result. Upon learning from [the client] that [the employee] had attendance issues, and after reviewing [the employee’s client] timesheets, [the employer] concluded that [the employee] had violated the [company’s] attendance policy.”

In turn, the employee testified that no one had ever mentioned that her performance had been in any way unsatisfactory and that her temporary assignments had just ended as scheduled. However, the company did not produce the purchase orders she had subpoenaed to support her argument and her attorney failed to object to this to preserve the error. Instead, she testified that her last assignment had been scheduled to last another three months before she was fired. She also denied that her timeliness violated the client’s flex-time policy and that after it was first mentioned to her, she stopped using flex time. However, when confronted with copies of her time sheets, she admitted that she arrived after her scheduled start time on several occasions (because of, among other things, transportation issues) and sometimes failed to work 40 hours in a week.

The hearing officer reversed her grant of unemployment benefits, which was not reviewed by the Unemployment Compensation Board of Review and was affirmed by the common pleas court. On appeal, the Court found no error because of the evidence that the employee had been late on numerous occasions and sometimes failed to work 40 hours/week in violation of the policies of both her employer and its client. Further, it found insufficient evidence that missing evidence would have changed the result.

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 Appeals Court Affirms Discovery Sanction Against Employer to Produce Copies of Computer Hard Drives.

Discovery sanctions are in the news a lot these days. There were two notable discovery abuse decisions last week. In both, the appellate court affirmed the trial court’s sanction against the uncooperative defendants who failed to comply with their obligations to produce information requested by plaintiffs before trial. First, the Washington Supreme Court affirmed entry of an $8M default judgment plus attorney fees against Hyundai Motor Company for its “willful efforts to frustrate and undermine truthful pretrial discovery.”
The parties continued to argue about their discovery obligations, including the location and timing of depositions and whether the defendants had produced all responsive documents which had been requested. Although defendants had asserted that it has responded fully to the discovery requests, it did not respond to the Plaintiff’s second motion to compel discovery and did not seek a protective order to protect confidential information encompassed by the Plaintiff’s discovery requests. Not surprisingly, the trial court granted the second motion to compel, suggested that defendants submit a protective order for consideration and directed defendants to produce the requested documents or face sanctions. However, defendants again insisted that they had already fully complied with the discovery requests and produced no further documents. Therefore, in November 2007, Plaintiff moved for a default judgment as a discovery sanction. In response, the defendants, “[t]o the extent that they might have withheld any documents, defendants blamed their failure to produce on Plaintiff’s refusal to explain what documents were missing from defendants' response.”

The trial court referred the discovery dispute to a magistrate. Defendants submitted an affidavit in support of their position, but then the information was contradicted by the testimony of their witness, who admitted that the defendants had not produced relevant documents in discovery because of, among other things, confidentiality concerns and the breadth of the discovery requests. Unfortunately, the defendants had never sought a protective order to protect the confidentiality of the information or submitted any objections based on the overbreadth of the discovery requests. Thus, the magistrate found the defendant’s failure to comply with the prior court orders to be willful.

Nonetheless, the magistrate did not order a default judgment for the defendants’ willful disregard of court orders. Instead, he ordered the defendants to produce the documents within 20 days, to pay the Plaintiff’s discovery expenses (i.e., attorney fees) and to “provide, at their own cost: (1) a forensic copy of the computer hard drives of Martin, Citynet's Chief Financial Officer ("CFO"); and Citynet's Chief Operating Officer ("COO"); and (2) any schedule, calendar, .pst file, Outlook application, or PDP application utilized by Martin.” The parties then agreed upon a mutually satisfactory protective order. The trial court then affirmed most of the magistrate’s recommendations over the defendant’s objections:

In sum, the trial court approved and adopted the magistrate's decision with a few relevant caveats. First, the trial court allowed defendants to redact from the forensic copies of the hard drives any privileged material. Second, the trial court permitted defendants to designate personal information contained on the forensic copies for "attorneys' eyes only." Finally, the trial court required Bennett to execute an affidavit confirming that, to the best of his knowledge, he is engaged in no professional activity that is in any way competitive to the business activity of the Citynet entities, that he does not encounter any of the Citynet entities competively in the course of his professional life, and that he otherwise does not engage in competition with any of the Citynet entities. Apparently, the trial court ordered such an affidavit to ensure that Bennett would not use the confidential business information contained in the forensic copies to achieve a competitive advantage over defendants.

The defendants immediately appealed and the Court of Appeals found the discovery order to be a final and appealable order. “[A]ppellate courts have reasoned that as long as an appellant presents a "colorable claim" that the documents subject to a discovery order are privileged and/or confidential, the proceeding that resulted in that order qualifies as a "provisional remedy." Moreover, “[b]ecause information is no longer confidential after dissemination, defendants would not have an effective remedy if forced to delay appeal until after final judgment.”

The Court affirmed the trial court’s sanction in part because of the defendants’ deliberate flaunting of its discovery obligations and of the court’s discovery orders.

A forensic image, or "mirror image," of a hard drive " 'replicates bit for bit, sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.' " . . . Generally, courts are reluctant to compel forensic imaging, largely due to the risk that the imaging will improperly expose privileged and confidential material contained on the hard drive. Because allowing direct access to a responding party's electronic information system raises issues of privacy and confidentiality, courts must guard against undue intrusiveness. . . .

In the case at bar, [Plaintiff] has demonstrated that defendants repeatedly represented that they had disclosed all responsive documents, when, in fact, they had not. As the magistrate found, such obfuscation displays a willful disregard of the discovery rules and the trial court's orders. Moreover, defendants' last-minute discovery of certain responsive documents indicates that when not outright defying the trial court's orders, defendants adopted a lackadaisical and dilatory approach to providing discovery. Given this background of noncompliance, we cannot conclude that the trial court abused its discretion in ordering defendants to produce forensic copies of the hard drives of Citynet's CEO, CFO, and COO.

In arguing to the contrary, defendants first contend that trial court's order impermissibly allows [Plaintiff] to discover vast amounts of irrelevant information which cannot possibly relate to [Plaintiff’s] age discrimination, retaliation, and breach of contract claims. While defendants may be correct, they fail to appreciate that their own intransigence in the course of discovery justifies the scope of the trial court's order.

Nonetheless, even though the trial court permitted the defendants to redact privileged matters and to designation confidential information “for attorneys’ eyes only,” the Court was still sympathetic about producing confidential and trade secret information directly to Plaintiff, who now worked for one of defendants’ direct competitors. In such cases, sometimes

courts adopt a protocol whereby an independent computer expert, subject to a confidentiality order, creates a forensic image of the computer system. The expert then retrieves any responsive files (including deleted files) from the forensic image, normally using search terms submitted by the plaintiff. The defendant's counsel reviews the responsive files for privilege, creates a privilege log, and turns over the non-privileged files and privilege log to the plaintiff. . . . .

[Plaintiff] deserves a remedy for the prejudice caused by defendants' misconduct, but that remedy should not require defendants to sacrifice highly-sensitive, confidential information that has no bearing on [Plaintiff’s] claims. Additionally, private information of the computers' users—such as personal financial information and communications with friends and family—should not be subject to disclosure. Therefore, we conclude that the trial court abused its discretion in devising the procedure for the forensic imaging. We urge the trial court to adopt a protocol similar to the one described above. We believe that such a protocol would allow [Plaintiff] sufficient access to the computer systems to recover useful information, while also providing defendants with an opportunity to identify and protect privileged and confidential matter.

The discovery sanction and forensic imaging was otherwise affirmed.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-6195.pdf

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 Appeals Court: Death and Taxes May Be Certain, but the Timing Alone is Too Indefinite to Form a Binding Promise.

Last month, the Franklin County Court of Appeals affirmed summary judgment against a former corporate officer who had been promised employment for the life by the majority shareholder. Steele v. Mara Enterprises, Inc., No. 2009-Ohio-5716. In that case, the plaintiff worked his way up to become president of the corporation. When the founder died, his widow inherited his majority interest and eventually transferred her ownership to a trust. She promised him that he would keep his job as long as she was alive and in reliance on this promise, he turned down two offers of employment. Nonetheless, the Court found her promise to be too indefinite to support a promissory estoppel claim.

According to the Court’s opinion, after many years of employment, membership on the Board of Directors and the purchase of one share in the corporation, the plaintiff was fired after the Board all voted to resign and the new Board was elected. The Court found the verbal promises of employment for the lifetime of the majority shareholder to be too indefinite to be legally binding:

Death, although inevitable, is unpredictable. A future event that, by its very nature, could occur in ten minutes or ten years is too indefinite to constitute a "specific term" for purposes of promissory estoppel. Such statements are, at best, discussions of "possible future career developments and opportunities." . . . . Similarly, here, Laverne Hill's statements were tied to her own death and, as a result, suffered the same deficiency as those "promises" made in Callander: they fail to unambiguously promise continued employment for a specific period of time. Indeed, the statements lacked specificity in other aspects. The statements never included a discussion of job title, job responsibilities, compensation, or contingencies in the event the business closed or Laverne Hill decided to part with her ownership interest before her death. The complete lack of details suggests Laverne Hill's statements were anything but clear and unambiguous promises of continued employment. . . . .

In any event, even if the promise were sufficiently unambiguous, the Court questioned whether a majority shareholder could bind the corporation since she was not an officer, did not make these promises in a meeting of the Board members, was never ratified by the Board and never reduced to writing. On the contrary, the Employee Handbook (created by the plaintiff) provided that all employees were employed at will unless given a written contract.

Finally, the Court rejected the breach of fiduciary duty claim by a minority shareholder because the duty is owed by the majority shareholder (who was not named as a defendant) and not the corporation (who was the only named defendant).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5716.pdf.

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 Appeals Court: Nothing is Reasonably Reliable In a RIF or Public Litigation.

Last month, the Franklin County Court of Appeals affirmed the dismissal of a defamation and wrongful discharge suit brought by the former head of security for Capital University whose job was eliminated in 2006 during a budget crisis. Woods v. Capital Univ., No. 2009-Ohio-5672. Although the 54-year old plaintiff had been told in writing during his exit interview that his performance played no role in the elimination of his position (and he had received nothing but promotions prior to his termination), the university’s attorney was quoted in two local newspapers as attributing part of the termination decision to “job performance issues.” His responsibilities were divided and his public safety management responsibilities were given to a 28-year old safety officer. Nonetheless, the Court affirmed dismissal because the allegedly defamatory statements related to a matter of public concern, which required proof of actual damages or actual malice, and the redistribution of duties to existing employees cannot support an inference of age discrimination. Finally, his promissory estoppel claims were dismissed because the three verbal promises of continued employment were contracted by the terms of his written contract with the university.

According to the Court’s opinion, the plaintiff was eight years away from retiring from another college when he was hired by Capital to reorganize its public safety department. When he expressed reluctance to leave a secure position so close to his retirement age – particularly with friction that was likely to develop during the planned reorganization, he was assured by the VP/Treasurer that he would be employed at least eight years to retire at Capital. However, his offer letter only promised one year of employment. He was promoted the following year and given two more one-year appointments. When rumors surfaced about a possible budget deficit, he again sought reassurance about his job security and was again assured by the VP/Treasurer that his job was safe. When the VP/Treasurer was then fired, he sought and obtained similar assurance from the President, who then shortly thereafter left.

When an impending $12.5M deficit was revealed, a committee examined all positions and recommended the elimination of 72 positions, including that of the plaintiff. His termination letter informed him that his job was eliminated because of the budget difficulties and not because of his job performance. His public safety duties were reassigned to a 28-year old officer and his auxiliary duties to other employees. He then filed a lawsuit for $4.6M against Capital for age discrimination and promissory estoppel. The lawsuit received publicity in the local media and Capital’s attorney was quoted in two newspapers as stating that the plaintiff had been let go because of the budget difficulties and “job performance issues.” The plaintiff amended his claims to include the allegedly defamatory statements by the attorney. The trial court granted summary judgment to the defendants and the plaintiff appealed.

Defamation Claim

The Court of Appeals addressed the defamation claim first and found the attorney’s statement about the plaintiff being fired in part because of his job performance to be defamatory on its face (or defamation per se) since it had the tendency to hurt plaintiff’s career and ability to find another job. The Court rejected the defense attempt to

characterize this statement as vague and contend that if it is defamatory at all, it is only defamatory per quod. We disagree. No employer fires an employee for good job performance. The only reasonable reading of [the attorney’s] statement is that Capital terminated [the plaintiff’s] employment for two reasons, and one of those reasons was [the plaintiff’s] poor job performance. Thus, the statement in and of itself tends to injure [the plaintiff] in his occupation as any employer would hesitate before hiring a potential employee who underperformed in his previous job. Such a statement is defamatory per se.

Typically, damages in such situations are presumed without proof or pleading. However, in this case, the Court found the statement to also have limited protection from the First Amendment. Because the plaintiff worked for a private college, he was not a general public figure. Moreover, the fact that he filed a lawsuit – by itself – did not render him a limited purpose public figure. However, the fact that he sought $4.6M in damages from a significant private institution which was having very public budget difficulties rendered the issue of the reduction in force and his lawsuit a matter of public concern – as evidenced by the significant media coverage. Therefore, the claim was governed by the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345-46, which concluded that:

in such cases, the states could define for themselves an appropriate standard of liability, so long as they did not impose liability without fault. Gertz, 418 U.S. at 347. Subsequently, Ohio adopted the ordinary negligence standard as the standard of liability for actions involving a private individual defamed in a statement about a matter of public concern. Landsdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio.St.3d 176, 180. In addition to requiring an element of fault, the Gertz court also limited the type of damages recoverable in defamation cases involving private individuals and statements regarding a matter of public concern. Given the constitutional command of the First Amendment, . . . the states could no longer permit recovery of presumed or punitive damages, at least when liability was not based upon a showing of actual malice. Gertz, 418 U.S. at 349, . . . Thus, in Ohio, a plaintiff must prove either: (1) ordinary negligence and actual injury, in which case he can receive damages for the actual harm inflicted; or (2) actual malice, in which case he is entitled to presumed damages.

Thus, the plaintiff was required to show actual malice or actual injury (i.e., “out-of-pocket loss, impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”). However, the plaintiff’s testimony that he felt that his job hunt was impaired by “google searches” of the attorney’s statement was too speculative to support proof of actual injury. Moreover, he failed to introduce any evidence that the attorney knew that his statement was false at the time it was made. Therefore, summary judgment on his defamation claim was upheld.

Retaliation

The plaintiff also claimed that the attorney’s defamatory statement was made in retaliation for the plaintiff’s consultation with an attorney following his termination. However, the Court refused to infer causation (i.e., the defamatory statement from the consultation with counsel) based on the passage of two months between the demand letter from the plaintiff’s attorney and the newspaper accounts repeating the defamatory statement. Because there was no other evidence of causation or proving a link between the two events, the Court affirmed summary judgment.

Age Discrimination

Typically, a discrimination claim requires that the plaintiff show that he was replaced by someone outside the protected class. The Court noted that this is extremely difficult, if not impossible, to show when the plaintiff was fired in a reduction in force:

When a discharge results from a work force reduction, an employee is not replaced, instead his position is eliminated. Barnes v. GenCorp Inc. (C.A.6, 1990), 896 F.2d 1457, 1465. Logically, then, a plaintiff discharged as part of a work force reduction cannot offer evidence that he was replaced by a substantially younger person to satisfy the fourth element of the prima facie case. Moreover, even if such a plaintiff demonstrates that his discharge permitted the retention of substantially younger persons, no inference of discriminatory intent can be drawn. Id. In the context of a work force reduction, the discharge of the plaintiff and retention of a substantially younger employee is not "inherently suspicious" because a work force reduction invariably entails the discharge of some older employees and the retention of some younger employees. Brocklehurst v. PPG Industries, Inc. (C.A.6, 1997), 123 F.3d 890, 896. Permitting an inference of intentional discrimination to arise from the retention of younger employees "would allow every person age 40-and-over to establish a prima facie case of age discrimination if he or she was discharged as part of a work force reduction." Barnes at 1465.

{¶57} Consequently, when a plaintiff's position is eliminated as part of a work force reduction, courts modify the fourth element of the prima facie case to require the plaintiff to " 'com[e] forward with additional evidence, be it direct, circumstantial, or statistical, to establish that age was a factor in the termination.' " Kundtz v. AT & T Solutions, Inc., 10th Dist. No. 05AP-1045, 2007-Ohio-1462, ¶21 . . . The purpose of this modified requirement is to ensure that, in work force reduction cases, the plaintiff has presented evidence to show that there is a chance that the work force reduction is not the reason for the termination. Asmo v. Keane, Inc. (C.A.6, 2006), 471 F.3d 588, 593 . . .

Nonetheless, the plaintiff can also show discrimination if he was in fact replaced instead his duties being eliminated, consolidated or distributed among a number of different people:

An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.

In this case, the plaintiff’s 2004 promotion involved him assuming certain duties outside the public safety department. When his position was eliminated in 2006, those duties were reassigned and only his public safety duties were given to the 28-year old officer. The reassignment of his auxiliary duties were more than cosmetic or superficial duties. Thus, there was sufficient evidence to show that his position was eliminated and his duties distributed in a genuine reduction in force. Therefore, without additional evidence or direct evidence of age discrimination, summary judgment on this claim was affirmed.

Promissory Estoppel.

Plaintiff brought this claim based on the three separate promises of job security which he received both before and after he was hired by Capital. As explained by the Court:

Promissory estoppel provides an equitable remedy for a breach of an oral promise, absent a signed agreement. Olympic Holding Co. v. ACE Ltd., 122 Ohio.St.3d 89, 2009-Ohio-2057, ¶40. In order to succeed on a claim for promissory estoppel: "The party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading." . . . The elements necessary to prove a claim for promissory estoppel are: (1) a clear, unambiguous promise, (2) the person to whom the promise is made relies on the promise, (3) reliance on the promise is reasonable and foreseeable, and (4) the person claiming reliance is injured as a result of reliance on the promise.

The fatal flaw in his argument, however, is that he signed written contracts which promised him only employment for a year at a time. Therefore, his reliance on the oral promises was not reasonable under the circumstances:

[C]ourts cannot enforce an oral promise in preference to a signed writing that pertains to exactly the same subject matter, but has different terms. Ed Schory & Sons at 440. Thus, "[p]romissory estoppel does not apply to oral statements made prior to the written contract, where the contract covers the same subject matter.

The Court rejected the plaintiff’s argument that his employment letters were not binding contracts, but only acknowledgment of certain terms. The Court also rejected the argument that the plaintiff’s reliance on promises made during the budget crises were reasonable under the circumstances. In any event, the plaintiff did not provide any evidence that he relied on the promises to his detriment since there was not evidence that he rejected a job offer in reliance on the promises. On the contrary, despite the promises being made to him during the budget crises, he promptly began searching for another job and submitting his resume to other employers.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5672.pdf.

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.