Court Rejects Claims for Unpaid Commissions When Details Were Never Agreed

Last month, the Montgomery County Court of Appeals affirmed an employer’s summary judgment on a claim for unpaid sales commissions.  Brown v. Fukuvi USA Inc., 2022-Ohio-1608.  The plaintiff alleged that he had been verbally promised sales commissions before accepting the job in 2006.  His offer letter – which he signed -- said that a commission structure would be discussed later,  and it was.  However, they could never come to an agreement on a salary and commission structure.  Instead, the employer kept his salary in place and eventually raised it several times before he finally sued in 2019.  The courts found that there was never a meeting of the minds or agreement on the details of a commission structure and, therefore, the employer was not obligated to pay any commissions. 

To be enforceable, contracts must be definite and certain.  An agreement to agree is only enforceable if it is sufficiently definite to be enforced. “When the terms of a contract are not sufficiently definite, the contract is unenforceable.  . . . ‘The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.’ ””  The plaintiff’s offer letter offered a salary until 2007 and then a reduced salary with a commission – the details of which were to be discussed.  The details were never mutually agreed to and his salary remained unchanged.   “[N]o specific amount of commission or bonus was outlined. Furthermore, details were to be discussed at some future date, with no indication of what those details would be.”

The plaintiff

contends that he was told when he signed the Offer Letter that “his commission structure would operate in the same manner as the prior sale representative, which was a percentage on sales over an initial threshold or goal.”  . . . However, taking this statement at face value, it was made by a [HR] person who lacked authority to authorize payment of commissions; it was also inconsistent with the letter, which said that details would be discussed later. When “later” came, [the company president] elected not to pay commissions due to the severe financial position of the company, and this was communicated to [him]. At that point, if [he] were dissatisfied with the situation, he could have left the company. Instead, he chose to stay. Notably, his salary was not decreased to the considerably lower level mentioned in the Offer Letter.

“Here, the parties may have envisioned a commission and bonus structure, but the details were left to future discussion. Consequently, there was no enforceable promise.”

The court refused to find enforceable details from a commission policy document which the plaintiff had found in his predecessor’s files and which he claims had been referenced during his employment discussions.  The court refused to incorporate them into the offer letter without more evidence.  There was no evidence that the company had provided the policy to the plaintiff during their negotiations or were part of or intended to be part of his offer letter.  The document did not even indicate who prepared it.

The Court also rejected his claims for promissory estoppel, negligent and fraudulent misrepresentations and unjust enrichment on the grounds that they were time barred by the then six-year (and now four-year) statute of limitations.  It rejected his argument that the failure to pay commissions constituted a continuing violation because (1) the Supreme Court of Ohio had taken the position that courts are reluctant to apply this doctrine outside the civil rights context; (2) “continuing violations are distinguished from ‘continuing effects of prior violations’; in this context, ‘ “ ‘ “[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation” ’ ” ’ ”; and (3) the lack of authority in Ohio extending this doctrine to breach of contract cases.

The  Court also rejected his equitable estoppel claim because none of his allegations were sufficient to show that the company prevented him from filing suit earlier.   Indeed, a person of reasonable intelligence would have been on notice years earlier of his need to file suit. 

Finally, the plaintiff could not show that he had not been paid his wages under Ohio’s prompt payment act because there was no underlying obligation to pay him commissions.

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: Possible ADA Liability When Employer Revoked Job Offer to Deaf Lifeguard For Relying on Experts and Failing to Engage in Interactive Process on Possible Reasonable Accommodation

Earlier this month, the Sixth Circuit Court of Appeals reversed summary judgment in favor of an employer who had revoked a job offer to a deaf lifeguard because of his inability to “effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons.”  Keith v. County of Oakland, No. 11-2276 (6^th Cir. 1-10-13).  While the Court agreed that communicating was an essential job function, it found that the plaintiff produced enough evidence for a jury to find that he could safely perform the job duties with a reasonable accommodation and that the employer’s subjective, “valid concerns” did not constitute an undue hardship.  Of note to employers, however, were two other conclusions of the Court.  First, the Court found that the employer could be liable for revoking the plaintiff’s job offer even though it conducted an individualized assessment of the plaintiff’s ability to perform the job because in revoking the job offer it relied on the opinions of a physician and aquatic safety consulting firm which had not conducted an individualized assessment.  Second, the Court implied that it could be an independent violation of the ADA for the employer to have failed to engage in the interactive process with the plaintiff before revoking his job offer.  Finally, like other decisions before it, the Court reiterated that the employer may not hold a disabled individual to an impossibly higher – 100% certainty – performance standard than it holds nondisabled individuals.

According to the Court’s opinion, the plaintiff had been deaf since birth. Although he could hear many sounds – including his name – with a cochlear implant, he could speak and communicated through American Sign Language.   During his lifeguard training courses, he required an interpreter to be present to relay verbal instructions, but performed his own lifesaving tasks and successfully completed the course.   He then applied for a lifeguard position, which required only that he pass the course, be above a certain age and pass a medical examination.   The only accommodation he requested to perform the job was that an interpreter be present for staff meetings and continuing education.   He was offered a lifeguard position, contingent on him passing the medical examination.

The evidence showed that the doctor hired to evaluate the plaintiff refused to unconditionally pass him solely because he was deaf and because the doctor might be sued if someone was harmed by the plaintiff’s hearing impairment.  The medical report indicated that the plaintiff could only safely perform the lifeguard duty if he was constantly accommodated (and not just at staff meetings).  The defendant employer then contacted the aquatic safety and risk management consulting firm it utilized to suggest accommodations.  The consulting firm – which had an extensive background in aquatic safety, but no experience or education in hearing impairments – suggested that a task analysis be performed, that research be conducted about the implant and that the implant be assessed for utility in actual conditions (i.e., with  lots of noisy and screaming kids in the background).  It explained that it could not provide a definitive answer without better familiarity with the plaintiff or the particular swimming facility.  The employer created a list of possible accommodations (which noted that hearing distressed swimmers was not an essential function because they typically do not make noise and which permitted the plaintiff to communicate with swimmers with his whistle, nods and laminated note cards).   Nonetheless, the consulting firm did not think that the accommodations could guarantee with 100% certainty that the plaintiff would always be effective as a lifeguard.  Thereafter, the defendant employer revoked the job offer.

The plaintiff filed suit under the ADA and Rehabilitation Act on the grounds that he was not hired because of unfounded fear and speculation.  He also objected to the defendant’s failure to conduct an individualized assessment of his ability to safely perform the job or to engage in the interactive process to determine the best reasonable accommodation.   The employer asserted that he was not hired because “he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons” and that “hiring an additional lifeguard as an interpreter is an unreasonable accommodation.”

The case boiled down to the type of experts which each party utilized.  The plaintiff submitted a deaf lifeguard certified by the American Red Cross.  He also used experts with hearing disabilities and aquatic safety.  For instance:

Anita Marchitelli has worked with deaf people in the area of lifeguarding and aquatics for more than thirty years. She is a certified lifeguard training instructor with the American Red Cross in the areas of lifeguarding, water safety, and CPR. She is also an associate professor in the physical education and recreation department at Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals. She has certified more than 1,000 deaf lifeguards through the American Red Cross programs. According to Marchitelli, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible. It is her professional opinion that the ability to hear is unnecessary to enable a person to perform the essential functions of a   lifeguard. In her affidavit, Marchitelli notes that the world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career.

The district court excused the employer’s failure to engage in the interactive process because such a failure does not constitute an independent violation of the ADA and because the plaintiff failed to show that he could safety perform the essential job functions with or without a reasonable accommodation.  While the district court concluded that the physician failed to conduct an individualized assessment of the plaintiff’s abilities, the court concluded that the employer had made its own individualized assessment.  

On appeal, the Sixth Circuit first addressed the issue of whether the employer conducted the mandatory individualized assessment.  While it ultimately agreed with the district court that the employer had done so, it remanded the case back to the trial court to consider whether the employer’s individualized assessment was sufficient when it revoked the job offer in reliance on the opinions of a physician and aquatic safety experts who had not conducted the required individualized assessment.

As a threshold matter, “[t]he ADA mandates an individualized inquiry in determining whether an [applicant’s] disability or other condition disqualifies him from a particular position.” Holiday, 206 F.3d at 643. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question.  . . .  The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual’s ability to perform the job.

The Court agreed that the physician failed to conduct an individualized assessment. He made no attempt to evaluate whether the plaintiff could perform the job duties with his disability.  He also had no training or experience in assessing the ability of deaf individuals to work as lifeguards.  His “cursory medical examination is precisely the type that the ADA was designed to prohibit.”

The Sixth Circuit also expressed concern with the assessment of the consulting firm.  While it had acknowledged that it could not provide an opinion without an individualized assessment, its “suggestions” that the employer needed 100% certainty about the plaintiff’s ability to safely perform the job was “an impossible standard to expect of any lifeguard. Individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals.”

 Nonetheless, the Sixth Circuit agreed that the employer had made an appropriate individualized assessment of the plaintiff’s abilities.  The employer had observed the plaintiff’s abilities “during lifeguard training, accommodations were proposed to integrate [the plaintiff] into the lifeguard team, and both staff and management were on board with the plan to hire” the plaintiff.  The problem was, however, that the employer disregarded its own individualized assessment and deferred instead to the two outside “experts” which had failed to conduct an individualized assessment.

 The Court then turned to whether hearing was an essential job requirement of a lifeguard.   After reviewing evidence, including job descriptions, testimony and postings, the Court agreed that communicating was an essential function (for enforcing rules and teaching lessons).  Nonetheless, the Court found there to be sufficient evidence to present to a jury as to whether the plaintiff could adequately perform the essential job duties with a reasonable accommodation.   The duty to detect distressed swimmers is almost entirely visual.  Although the plaintiff admitted could not hear another lifeguard blow a whistle before saving a swimmer, “as a modest modification, he could briefly look at the other lifeguards when scanning his zone.”  Although the plaintiff could not speak (let alone yell) at swimmers, the Court found his ability to communicate was sufficient:  

Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head “no” for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for “one person per tube.” [The plaintiff] can use these same methods of enforcement.

             . . .

Further, [the plaintiff] has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point.

The Court concluded that these could be reasonable accommodations because they were effective and cost proportionally little.  In evaluating whether an accommodation is (objectively) reasonable or poses a (subjective) undue hardship, courts conduct the following analysis:

When accommodation is necessary to enable a plaintiff to perform the essential functions of the position in question, it is the plaintiff’s burden to propose an accommodation that is “objectively reasonable.”  . . . . In defining what is reasonable, this court “has described the employee’s initial burden on this issue as showing ‘that the accommodation is reasonable in the sense both of efficacious and of proportional to costs.’”  . . .  The employer can then “escape liability if he can carry the burden of proving that a disability accommodation reasonable for a normal employer would break him.”  . . .  As stated by other circuits, the reasonable accommodation inquiry asks whether an accommodation “is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff’s preferred accommodation in the context of the particular [employer’s] operations.” (citations omitted).

While the Court acknowledged the employer’s “valid concern” with the reallocation of responsibilities to other lifeguards, this alone could not justify granting summary judgment on an undue hardship defense because the ADA requires job restructuring as a reasonable accommodation.  While the ADA does not require the reallocation of essential job duties, marginal job duties must be restructured when necessary.  In this case, the potential shifting of some duties was possibly minimal enough that a jury could determine that they were not essential job functions.  In addition, the plaintiff’s need for an interpreter during staff meetings and continuing education is a typical reasonable accommodation which the employer failed to show posed an undue hardship.

[T]he ADA provides that “reasonable accommodation” may include “the provision of qualified readers or interpreters.” 42 U.S.C. § 12111(9). The inclusion of interpreters among the list of enumerated reasonable accommodations suggests to us that the provision of an interpreter will often be reasonable, particularly when the interpreter is needed only on occasion, in this instance, just for staff meetings and training. In fact, there are numerous cases in which courts have found that the provision of an interpreter during staff meetings and training sessions presented a question of fact for the jury on the issue of reasonableness.

Finally, the Sixth Circuit remanded the case back to the trial court to consider the employer’s failure to engage in the interactive process with the plaintiff before revoking his job offer.   Had the employer engaged in the interactive process, it might had learned information about the plaintiff’s disability and implant (as summarized above) which would have alleviated the concerns of its “experts” (who had failed to conduct an individualized assessment and lacked education or training in hearing impairments).   In so remanding the case, the Sixth Circuit implicitly rejected the trial court’s conclusion that an employer cannot be held liable for failing to engage in the interactive process. 

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

Ohio Court of Appeals Expands Right to Sue for Discriminatory Constructive Discharge and Demotion.

Last month, a unanimous Franklin County Court of Appeals reversed summary judgment previously entered in favor of an employer in an age discrimination case. Coryell v. Bank One Trust Co., 2008-Ohio-2698 (6/5/08). The Court made several significant holdings. First, the Court held that a plaintiff could show under certain circumstances that s/he had been discharged even if the employee voluntarily chose a severance pay option instead of remaining employed for an indefinite period of time. Second, the Court concluded that a plaintiff could pursue a claim for discriminatory job conditions -- such as a lesser job title and/or decreased responsibilities -- which fell short of a constructive discharge, even without a commiserate decrease in pay. Finally, the Court found sufficient evidence which the jury could use both to disbelieve the Bank’s non-discriminatory explanation for its conduct and to base a finding of discriminatory intent.

The Background

Plaintiff had been the Senior Vice President for the group “which handled the administration and servicing of institutional accounts involving assets subject to trust or other custody requirements. During his tenure, [the plaintiff] was active in direct client relationships and assumed full responsibility for all relationships that were threatening litigation due to problems predating [his] hire. In 2000, despite his experience handling direct client relationships, his supervisor directed him to no longer “maintain direct, selective account responsibilities” and he ”transitioned his accounts to individuals within his organization.” Following a reorganization and change in group leadership, the plaintiff became responsible for managing 28 employees. When discussions began about moving Plaintiff’s team to another group shortly thereafter, Plaintiff supported the move, outlined his suggestions for his role in the new group, and suggested that his management role be eliminated and he transition to a player-coach. However, because Plaintiff had no clients of his own and had been performing only as a manager for a few years, the new group declined to offer him a position after the move. Instead, Plaintiff’s duties were distributed between three other managers (one of whom assumed his former job title, received an increase in compensation and received a 300% increase in his bonus the following year).

Plaintiff continued on the payroll of his former supervisor at the Bank and was rejected for two open positions for which he applied. He was then offered severance and the option of remaining on payroll for an unspecified period of time or risking a six-month reduction in severance payments under the Bank’s new severance plan if he did not act quickly. After suffering a heart attack, Plaintiff accepted the severance option with a one-year salary continuation period and continued to search for another job within and outside the Bank. After finding a position outside the Bank, he filed suit and claimed he had been discriminated against on account of his age.
The common pleas court found factual dispute existed as to whether Plaintiff was qualified for the management position with the new group (which existed after his position was allegedly eliminated) and whether he was replaced by someone substantially younger than himself. Nonetheless, the common pleas court found, as a matter of law, that Plaintiff “was neither directly nor constructively discharged because he chose between meaningful options when he accepted the severance package” and, therefore, Plaintiff was unable to establish that he suffered from an adverse employment action as required to carry his prima facie case.

Existence of Constructive Discharge

In prior Supreme Court cases, the court has held that the prima facie case cannot be satisfied when the plaintiff chose severance instead of other options which would have preserved the plaintiff’s employment. For instance, in Barker v. v. Scovill, Inc., 6 Ohio St.3d 146, 147 (1983). the plaintiff had been “offered both termination with severance pay and layoff options, but was also given the opportunity to transfer to another plant.” She also “confessed that her refusal to accept the transfer was not based on the inherent undesirability of the offered employ; it was predicated on her belief that she " * * * could duplicate * * * [her] salary some place else." As a result, because she “made a conscious, well-informed, uncoerced decision, [s]he should not now be allowed to cry foul” later.

“When a plaintiff chooses termination in lieu of other options, courts will not construe his decision as an actual discharge. Rather, the plaintiff must show that he was constructively discharged, i.e., that his or her choice of termination was involuntary or coerced. . . . . Courts generally apply an objective test to determine whether a plaintiff was constructively discharged, asking "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign."

The Supreme Court has explained that “In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the "discharge" label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of coemployees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group. Nor does the inquiry change solely because an option to transfer is thrown into the mix, lateral though it may be. A transfer accompanied by measurable compensation at a comparable level does not necessarily preclude a finding of constructive discharge. * * * A sophisticated discriminating employer should not be permitted to circumvent the statute by transferring an older employee to a sham position as a prelude to discharge.”

The Court of Appeals concluded that Plaintiff produced sufficient evidence to create a question for the jury about whether his discharge was imminent. The Bank “stripped him of his title, position, responsibilities, functions, supervisory role, and involvement in day-to-day operations and management, leaving him with no real position. [The new group leader] informed [Plaintiff] that he would not retain him as Managing Director of the National Accounts Group and informed the National Accounts Group that Kozak would immediately assume management responsibilities. [The new group leader] also told [Plaintiff] that he would not provide him another position in the National Accounts Group. Additionally, [the former supervisor] told [Plalintiff] that [the new group leader] was not amenable to [Plaintiff] obtaining any internal position related to institutional investment management. [Plaintiff] applied for two internal positions prior to accepting the severance package, but he was rejected for both positions. [the former supervisor] "highly recommended" that [Plaintiff] accept a severance package because [he] "did not have a position" and because [the supervisor] believed that [Plaintiff] would not be able to secure another position within” the bank. Plailntiff “understood that [his former supervisor] saw his own future with Bank One as "uncertain" and that he did not know how long he would be able to maintain [him] on the payroll. . . . Moreover, the severance package specifically provided that [plaintiff] could continue to seek a new internal position and, thus, simply guaranteed [Plaintiff] a continued salary and benefits while searching for a new position within the organization.”

Even though the Bank did not transfer Plaintiff, it “stripped him of all attributes of his former position, essentially leaving him in a non-existent position.” While Plaintiff remained on the payroll of his former supervisor’s group, Plaintiff “had no title, responsibilities or duties.” In that Plaintiff’s understood the tenuous nature of his former supervisor’s “own continued employment and Natsis's recommendation that [Plaintiff] accept the severance package, [Plaintiff] could reasonably have believed that termination was imminent should he reject the severance package. The record contains ample evidence that [he] desired to continue working for the Trust Group and made attempts to find another position within the organization both before and after accepting the severance package, but, in light of comments” by the leaders of the new and former groups, Plaintiff “could have reasonably believed that he would not be successful in obtaining a new internal position. ‘[T]here is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label.’ Ultimately, viewing the evidence in the light most favorable to Coryell, we find that genuine issues of material fact remain as to whether Coryell was constructively discharged.”

Age Discrimination Without Discharge from Employment

In addition, the Court acknowledged that an age discrimination claim is not limited to wrongful discharge claims. Even where the employee is unable to show that s/he was constructively discharged, employees may pursue claims for age discrimination whenever they have suffered an adverse employment action in connection with discharge, hire or other terms and conditions of employment. “Whether a specific action constitutes an adverse employment action is determined on a case-by-case basis. . . . Generally, an adverse employment action is defined as a material adverse change in the terms and conditions of employment. . . . . Employment actions that result only in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.”

“[A] job transfer resulting in a less distinguished title or significantly diminished responsibilities can constitute an adverse employment action. * * * As well, an employer's decision to transfer an employee to a different department, remove her from her management position, place her under the supervision of the person who took her former management position, assign her less job responsibilities that do not comport with her qualifications and give her negative comments on surprise performance evaluations can be classified as adverse employment actions despite no loss of wages or benefits.” For instance, in Bhat v. Univ. of Cincinnati, Ohio Ct. of Cl. No. 2000-04723, 2003-Ohio-5623, “the Court of Claims determined that the plaintiff demonstrated an adverse employment action where the University of Cincinnati removed her titles of director of cardiac transplantation and director of the heart failure program, despite maintaining her as a full professor with no loss of pay or benefits. The court found that the loss of the "director" titles had a significant effect on the plaintiff's status; "[s]he lost not only the prestige associated with the director's title, but also the level of responsibility and the perception of her professional capabilities associated with those roles." Likewise in Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App. No. 98AP-1278, actionable discrimination was found “where the employer abolished the plaintiff's job-share arrangement, stripped the plaintiff from her position and title, reassigned her job duties to younger male employees, and initiated a salary audit that resulted in her position being reclassified to a lower pay band.”

In this case, the Court concluded that Plaintiff could pursue an age discrimination claim even if he had not arguably been discharged. The decision to not “retain [Plaintiff] as Managing Director of the National Accounts Group, to reassign [his] management and supervisory responsibilities” to a significantly younger manager who formerly reported to him, and “to not provide [him with] another position within the National Accounts Group had a materially adverse effect on the terms and conditions of [his] employment. Although [Plaintiff] technically remained employed, with no loss of salary or benefits, after Abunassar removed him from his position as Managing Director, Abunassar's actions left [Plaintiff] with no title, no authority, no responsibilities, and limited prospects of continued employment. At a minimum, [the Bank] contends that [it] eliminated [Plaintiff’s] position. Such an action had an adverse effect on the terms of Coryell's employment.”

Evidence of Pretext

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . . . A fact finder's disbelief of the employer's articulated reason does not compel judgment for the plaintiff. Before a plaintiff is entitled to judgment, the fact finder must not only disbelieve the employer, but must also believe the plaintiff's explanation of discrimination. Reeves at 147, citing Hicks at 519. However, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer's] explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves at 147. Thus, a plaintiff need not always introduce independent evidence of discrimination to show pretext where there is sufficient evidence to reject the employer's explanation.”

The Court found there was sufficient evidence for the jury to disbelieve the Bank’s explanation for Plaintiff’s treatment and to infer the existence of age discrimination. ”First, only months before Abunassar removed [Plaintiff] from his position, [he] was selected to create and lead the National Accounts Group, based on his relevant experience and knowledge. All evidence suggests that [he] was successfully performing his role of Managing Director, and Abunassar admitted that he had no issues with Coryell's performance.” In his own affidavit, Plaintiff stated that his former supervisor stated that he “should manage the [National Accounts Group under Abunassar], as I was the most qualified." Plaintiff’s former supervisor ”testified that [Plaintiff] had been successful at Bank One, demonstrated technical knowledge, and was liked and supported by his subordinates. Second, while Abunassar desired the National Accounts Group manager to maintain a book of business, there is no dispute that Coryell's experience qualified him to resume direct client relationships. Until shortly before embarking on the creation of the National Accounts Group, Coryell successfully maintained a book of business, which he gave up at the direction of his former supervisor who, in direct contrast to Abunassar's business model, prohibited managers from maintaining books of business. Moreover, Coryell was willing and qualified to resume direct client relationships and suggested to Abunassar that he resume direct relationships and serve as a "player-coach," the very term Abunassar uses to describe his vision of the Managing Director role. The record contains evidence that certain accounts had not yet been transitioned to National Accounts Group employees, and the National Accounts Group organizational chart shows open Institutional Client Advisor positions, suggesting the availability of accounts for which Coryell could have assumed direct responsibility. Abunassar also admitted that, if he had wanted to assign Coryell accounts, he could have done so through the open investment relationship manager position for which Coryell interviewed, but was rejected. Such evidence discredits Abunassar's refusal to assign Coryell a book of business based on his reluctance to transition clients where unnecessary. Viewing the evidence in the light most favorable to Coryell, we find that a fact finder could reasonably disbelieve appellees' purported non-discriminatory reason for their actions relating to Coryell's position and employment.”

“Because the fact finder's disbelief of [the Bank’s] proffered non-discriminatory reason, coupled with evidence satisfying Coryell's prima facie case, would permit (although not compel) the fact finder to infer the ultimate fact of intentional discrimination, we find that [the Bank is] not entitled to judgment as a matter of law on Coryell's age discrimination claim. We do not suggest that Coryell will or should ultimately prevail on his age discrimination claim, but conclude only that the evidence, viewed in the light most favorable to Coryell, creates genuine issues of material fact, which preclude summary judgment. Accordingly, we find that the trial court erred in granting summary judgment in favor of [the Bank] , and we sustain Coryell's first assignment of error.

Insomniacs can read the decision in full at 2698 http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-2698.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 Holds Community Support Specialist Is Not Exempt from Overtime as An Administrator or Professional

Last week, the Court of Appeals for Cuyahoga County reversed summary judgment in favor of a non-profit community mental health center employer on a claim for unpaid overtime brought by a Community Support Specialist (CSS) formerly employed by the center. White v. Murtis M. Taylor Multi-Serv. Ctr., 2010-Ohio-2602. The trial court had found that the plaintiff was exempt from overtime under both the Fair Labor Standards Act and Ohio Revised Code § 4111.03 law as an administrative and/or learned professional employee. Both courts agreed that Ohio law follows the same standards as the FLSA in evaluating an employee's exempt status and that the burden was on the employer to justify by clear and affirmative evidence that the employee was exempt from overtime pay when working more than 40 hours in a week. However, the appellate court concluded that his job duties did not fit within the administrative exemption; he did not exercise enough independent judgment or discretion to fit within either exemption; and his job did not require a specialized academic degree as required to fit within the learned professional exemption.

According to the Court's opinion, the plaintiff filed suit in January 2008 -- just over three years after he left the non-profit employer -- seeking compensatory and punitive damages. While the employer contended that the plaintiff's job required him to perform managerial duties, the Court found that the employer failed to present any evidence to support its argument. The plaintiff denied that he possessed any authority over other employees. The Court then examined the regulatory examples of duties at 29 CFR §541.201(b) which typically would be performed by an administratively exempt employee and concluded that they indicated policy-making responsibilities which were not reflected in the plaintiff's job. Moreover, the employer failed to present evidence showing that the plaintiff's job required the exercise of judgment and independent discretion over matters of significance.

The exercise of independent judgment requires "the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. . . .[The plaintiff] simply assisted his clients in learning and completing everyday tasks, such as grocery shopping and locating community resources. Clearly, these are not matters of significance as contemplated by the FLSA. [The plaintiff] did not exercise independent judgment in the general business operations of [the non-profit employer]. He did not supervise anyone, nor did he perform any administrative functions such as human resources procurement or management decisions.

The Court rejected evidence that he was not required to routinely seek his supervisor's approval and that he sometimes worked unsupervised because " he was still required to submit all of his notes and case plans to [his supervisor] for approval." While most of his case plans were approved, his supervisor still impliedly rejected "some" of them.

Similarly, the Court concluded that the plaintiff did not fit within the learned professional exemption:

The first element [the employer] must satisfy to establish that [the plaintiff] is a learned professional, is that [the plaintiff] performs work that requires advanced knowledge. The work must either require advanced knowledge, or be of an artistic or creative nature. Specifically, the work is as follows:

"[P]redominately intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical, or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret, or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level." . . .

29 CFR § 301(b). "While a degree is not always required, a degree is the best prima facie evidence that an employee is a learned professional." However, the plaintiff's job description did not require any advanced knowledge or education. Rather, it only required:

some course work in social work, counseling, psychology,or related disciplines beyond high school. Bachelor's degree in Social Work, Counseling, Psychology, or related field preferred. At least one year of experience in a mental health organization with a background in substance abuse[,] abuse treatment and/or prevention essential.

"Thus, the evidence showed that the employer did not require a specialized academic degree or experience. " Indeed, the job did not require the applicant to possess any degree.

The Court found that the trial court had erred by placing "significant weight on the actual education [a bachelors degree in research biology and theology] and training [that the plaintiff] has obtained, when the proper inquiry is the education that is actually required of the position." Although the plaintiff possessed experience and training "in chemical dependency and addiction counseling, he was instructed not to provide clients with counseling; therefore, such training was similarly irrelevant to his position as a CSS 1. Courts have concluded that highly trained individuals [ like pilots] who do not possess an academic degree are not learned professionals."

Moreover, the plaintiff testified that "his work included accompanying clients to appointments and referring them to community resources" and "he did not provide treatment to his clients." His duties also

consisted of teaching daily living skills to his clients. He accompanied them on legal and medical appointments, and assisted them in completing everyday tasks such as managing their finances and grocery shopping. Such duties clearly do not fall into the category of science and learning, as these duties do not require any specialized knowledge.

His employment offer letter also "clearly indicated that [his] position as a CSS 1 was a level 1, primary support position." The Court concluded that "[s]uch a vague description does not merit the type of specialized knowledge required of a learned professional."

Finally, the Court examined an opinion letter from the Department of Labor which indicated that social worker positions which require a master's degree in social work are exempt while case workers who were not required to have a specific degree were not. "The Ohio Supreme Court has previously recognized that opinion letters are persuasive authority in interpreting federal statutes and regulations."

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

Sixth Circuit Rejects ADA Claim Where Deposition Testimony of Plaintiff’s Physician Showed He Was Unqualified and Employer Could Reasonably Conclude that Plaintiff Would Continue to Seek Additional Extensions of Medical Leave.

Last week, the Sixth Circuit affirmed summary judgment on a disability discrimination claim asserted against an employer which took the high risk action --  of terminating a disabled employee who had been released to return to work with some lifting restrictions and who requested a reasonable accommodation -- without any evidence that the lifting restriction prohibited him from performing any of the essential functions of his job or consulting their own medical expert.  Aston v. Tapco Int’l Corp., No. 14-2476 (6^th Cir. 11-23-15).  The employer discharged the plaintiff after conducting its own internet research about the employee’s upcoming surgery and drawing its own medical conclusions about his actual ability to safely perform his job duties.  Even so, 18 months later, the employer reconsidered its position and offered the employee unconditional reinstatement to his position and agreed to honor his lifting restrictions.  Luckily for the employer, the employee’s own physician later contradicted the medical release he had provided to the employer before the plaintiff’s termination and testified in his deposition that he had not been physically able to perform his essential job functions at the time he was terminated or for some months thereafter. Accordingly, the plaintiff was not “otherwise qualified” for his job at the time of his termination.  In addition, after “an employer has already provided a substantial leave,” the request for “an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”  Finally, the court held that even if the plaintiff’s claim had proceeded to trial, he would have been precluded from recovering any back pay after he rejected the employer’s offer of unconditional reinstatement because he had a duty to mitigate his damages.

According to the Court’s opinion, the plaintiff had worked for the defendant employer for almost 20 years.  In 2006, he suffered his first heart attack and was off work for more than 26 weeks.  He suffered a second heart attack in May 2010 and in early November was released to return to work on January 1 with a 30-pound lifting restriction following impending surgery to implant an ICD.  HR surfed the internet to investigate the ICD surgery and found information that it was intended to prevent sudden death.   Even with a set return-to-work date, the employer notified the plaintiff that it did not believe that he would be able to perform his job duties, recommended that he should apply for LTD and indicated that he would be terminated by the end of the month.  The plaintiff returned to his physician with news of his impending termination and obtained an immediate return to work release with a 30-pound lifting restriction.  Nonetheless, the employer terminated his employment on the grounds that they did not believe that he could really perform his job duties and would not reinstate him unless he was released to full duty.  The plaintiff submitted a reasonable accommodation request the following month, which was ignored for 18 months.  At that point, the employer unconditionally offered to reinstate the plaintiff to his former job and to honor his lifting restriction.  Finding this to be too little, too late, the plaintiff instead pursued an EEOC Charge and filed suit later that same year.

There was no dispute that the plaintiff was discharged because of his disability.  His termination notice said as much and had stated that he would not be reinstated without a release to return to full duty.  However, the plaintiff was still required to show that he was “otherwise qualified’ for his position with or without a reasonable accommodation.  If he had been able to do so, the employer would have needed evidence beyond its own evaluation of his physical abilities and likely would have had to defend its requirement of 100% fitness.

Luckily for the employer, the testimony of the plaintiff’s own physician did not help his claims.  He testified that he had reviewed the plaintiff’s job description and had notified the employer that he could perform all of those tasks, with the exception of certain lifting.  However, he had not asked the plaintiff how much time he spent performing each task.  More importantly, the physician conceded that the plaintiff likely would not have been able to perform the essential functions of his job when he was released to return to work in November and would not have been able to do so until sometime after January.   Therefore, even if the employer had reinstated the employee in November or early January as requested, the plaintiff still would not have been able to perform about half of his job duties.  Accordingly, at the time of his discharge in November, he was not qualified to perform his job with or without a reasonable accommodation.

As for the plaintiff’s reasonable accommodation claim, the court still found that the plaintiff could not show that he was otherwise qualified because he would not have been able to perform his essential job functions in January.  It also would have constituted an undue hardship for the employer to continually extend his medical leave of absence: “when an employee’s return date is not so certain, an employer is not required to keep open a job for an employee indefinitely.”  

This situation goes beyond what constitutes a reasonable accommodation. At the time of [the plaintiff’s] termination, [the employer] reasonably questioned whether [he] would be able to return to work, not only in November, or in January, but if ever. Just a few weeks before terminating [him], [his physician] informed [the employer] of another impending major medical procedure that [he] needed to undergo. This would doubtlessly require additional time for recuperation. [The plaintiff] had already been on an extended 26- week leave once before, in 2006, and, at the time of his termination, [he] was on his second leave of unknown duration, despite the request for return on January 1, 2011. With no certain or credibly proven end in sight, we therefore maintain as we did in Walsh that when, as here, “an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”

Moreover, the court affirmed that the employee’s duty to mitigate meant that, even if he had prevailed on his ADA claims, he would not have been able to recover any back pay for the period after he rejected the employer’s reinstatement offer.  The Court rejected the plaintiff’s argument that the employer’s offer was not made in good faith (in that he had already been replaced, etc. and had been made merely to call the plaintiff’s “bluff” that he was physically capable of working).  “As the district court noted, the Sixth Circuit has not adopted the good faith exception as a special circumstance warranting the continued tolling of a plaintiff’s backpay, even after an employee rejects an employer’s unconditional offer for reinstatement.” 

Finally, the court rejected the employer’s request for sanctions on the grounds that the employee’s claims were not frivolous.  

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 be changed or 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: Physical Attendance at Work No Longer Generally an Essential Job Function

[Editor's Note:   On August 29, 2014, a majority of the active judges of the Sixth Circuit Court of Appeals voted to vacate this decision by two of a panel of three judges and set it for an en banc re-hearing before all of the Sixth Circuit Court of Appeals judges.]

Yesterday, a divided federal Sixth Circuit Court of Appeals issued a decision of importance to most employers concerning the ADA and an employer’s ability to require an employee to report to a particular work location as an essential function of the job.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).    In this case, the employer rejected an employee’s request to work from home several days each week during normal business hours as an accommodation of her IBS disability because the employer considered it to be an essential job duty to interact face-to-face with colleagues when engaging in problem solving and because her earlier attempts to work from home after normal business hours had been unsuccessful.  The Court rejected the employer’s evidence that telecommuting (i.e., working from home) was an unreasonable accommodation because the employer’s evidence consisted of problems created by the employee’s working during non-business hours (i.e., flex time).  Instead, the Court concluded that the EEOC produced sufficient evidence to create a factual dispute about whether reporting to the office was an essential job function and whether telecommuting was a reasonable accommodation.  The Court still acknowledges that flex time arrangements may still be presumptively unreasonable, that predictable attendance is still an essential function of most jobs and that “many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.”    The Court also rejected the employer’s proposed accommodation of transferring the employee to a different position from which she could reasonably telecommute because “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”  Finally, the Court found sufficient evidence of retaliation for the employee to survive the employer’s summary judgment motion because she was placed on a performance enhancement plan and ultimately terminated for long-standing performance issues which were not escalated until shortly after she filed her EEOC Charge.

According to the Court’s opinion, the employee at issue held a position as a resale buyer.  The role of resale buyers was to:  

respond to emergency supply issues to ensure that there is no gap in steel supply to the parts manufacturers.  . .  The position involved some individual tasks, such as updating spreadsheets and periodic site visits to observe the production process.  . . .  However, “the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.”  . .  Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Another resale buyer on [the] team believed that she “could not work from home more than one day a week and be able to effectively perform the duties of the resale buyer position.”

The plaintiff had received positive performance evaluations, but was viewed as in the bottom quartile of her peers based on her job performance. “She also received low rankings on most of her job related skills assessment areas in 2007 and 2008.” 

The employee’s IBS disability required her to frequently utilize FMLA leave.  In the first seven months of 2009, she “was absent more often than she was present during core business hours.”  She was permitted to flex her working hours on a trial basis, but the experiment was deemed to be a failure. She “was unable to establish regular and consistent work hours” and could not “engage in team problem-solving or access suppliers to obtain information during off-hours.” When she “worked nights and weekends, she made mistakes and missed deadlines because she lacked access to suppliers.” 

The employee formally requested in February 2009 that she be permitted to telecommute on an as-needed basis as an accommodation for her disability.  Ford permitted some employees to telecommute, but no one in her resale buyer position.  After discussing some issues surrounding her accommodation request, Ford proposed instead moving her cubicle to be closer to a restroom or transferring her into another position that could accommodate her request to telecommute.   She then filed an EEOC Charge in April.  Thereafter, her supervisor held a group meeting to discuss how her workload should be reallocated among the team when she was absent and held one-on-one meetings with her where she felt he yelled at her.  She was then placed on a 30 performance enhancement plan with concrete objectives. When she failed to meet the objectives, she was terminated in September 2009.    

The EEOC ultimately filed suit against Ford, alleging discrimination and retaliation in violation of the ADA.  The District Court granted summary judgment to the employer, but the Sixth Circuit reversed on both claims. 

The Court found that the EEOC presented sufficient evidence to avoid summary judgment on the grounds that that the employee was qualified for her position both if the requirement was eliminated that she be physically present at Ford facilities and if she was provided with the telecommuting accommodation.   The EEOC argued that if Ford’s objections to her attendance were removed, she was qualified for her position.   The Court placed on Ford the burden of proving that the employee’s physical presence was an essential function of the resale buyer position. “For many positions, regular attendance at the work place is undoubtedly essential.” 

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. . . .

Ford argues that physical attendance at the Ford workplace was critical to the group dynamic of the resale-buyer team. Our sister circuits have recognized that physical presence at an employer’s facility may be an essential function for some positions specifically because they require extensive teamwork.  . . . However, as we have discussed, advancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. . . . Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.

Moreover, our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable. Courts routinely defer to the business judgment of employers because courts are not equipped with the institutional knowledge to sit as “super personnel department[s].”,. . . However, we should not abdicate our responsibility as a court to company personnel boards: While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, id., neither should we allow employers to redefine the essential functions of an employee’s position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer’s business judgment is only one.

The Court ultimately rejected the employer’s evidence that physical presence was an essential function as an undisputed fact because the EEOC presented evidence to the contrary which could be credited by a jury.  For instance, the employee testified that even when she was physically present at Ford, she still communicated mostly by telephone and email (both of which she could do from home).   More importantly, her position was not one that required face-to-face interaction with clients.  Although she occasionally needed to meet with clients, “Ford has offered no evidence to prove that Harris would be less able to perform these site visits if she worked partially, or even primarily, from her home rather than Ford’s facilities. . . . . A site visit requires the resale buyer to leave the location where she ordinarily works, whether it be a Ford facility or the employee’s home.”  

The Court also concluded that the EEOC produced sufficient evidence to show that telecommuting could be a reasonable accommodation in this case. “We have previously concluded that telecommuting is not a reasonable accommodation for most jobs, but that there may be “unusual case[s]” when telecommuting is reasonable because the “employee can effectively perform all work related duties at home.”  The Court rejected the employer’s counter-arguments because they focused on problems created by flex time (i.e., working a different schedule) than in reporting to the same office location.  

Requests for flex-time schedules may be unreasonable because businesses cannot “operate effectively when [their] employees are essentially permitted to set their own work hours . . . . Indeed, leave on a sporadic or unplanned basis may be an unreasonable accommodation. . . .  However, telecommuting does not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours. Harris did not request to “simply miss work whenever she felt she needed to and apparently so long as she felt she needed to.”  . . . Instead she requested that she be able to work from home when she felt she needed to during normal business hours.

The Court rejected the argument that the telecommuting created additional work for the employee’s co-workers because the identified issues arose from her flex-time arrangement and not her telecommuting:

A proposed accommodation that burdens other employees may be unreasonable,  . . .but the resale- buyer position is not one that requires most of an absent employee’s work to be transferred to a coworker. For many jobs, an employee must be physically present at work to perform specific tasks; when the employee is not present, those duties must necessarily shift to the absent employee’s coworkers.

The Court also surprisingly rejected the employer’s objection to the telecommuting arrangement based on her prior poor attendance and disregarded its proposed alternative accommodations:

If Ford objected to Harris’s request to telecommute for “up to four days per week,” it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives.  . . . Harris was willing to discuss alternative accommodations, including a telecommuting arrangement for as few as one to two days per week. Ford’s failure to engage in that discussion is not evidence that a telecommuting arrangement in any form was unreasonable . . .

The Court also rejected the employer’s concern with the employee’s attendance record as a reason for rejecting telecommuting because her absences were related to her disability.  One Ninth Circuit opinion concluded that  “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” While the Court acknowledged that “[w]hen an employer “offers a reasonable counter accommodation, the employee cannot demand a different accommodation,” it did not find the employer’s proposed alternatives to be reasonable: 

The EEOC has provided evidence that casts doubt on whether these alternatives address the problems Harris experienced with her IBS. . . . Clearly, moving Harris to a cubicle closer to the restroom does not address her needs if she has no control over her bowels for the time it would take to reach the restroom. Nor do we consider it reasonable, as the dissent suggests, to expect an employee to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact. Likewise, Ford’s offer to assist Harris in finding an alternative position within Ford,  . . . was not a reasonable accommodation because there was no guarantee that such a position would be forthcoming. Furthermore, “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”

The Court then required the employer to prove that telecommuting would pose an undue hardship. “[U]ndue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.” The Court concluded that the employer could not prove undue hardship in this case. “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.” 

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. . . . We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”

The Court also found that the EEOC produced sufficient evidence of unlawful retaliation by the employer after the employee filed her EEOC Charge.  While there was a documented history of performance issues, she was not placed on a PEP until shortly after she filed her EEOC Charge.   Her supervisor also began holding “intimidating” weekly meetings with her after she filed her Charge and she was ultimately fired four months after filing her Charge.   The Court concluded that the EEOC produced sufficient evidence of pretext because:

When viewed in a light favorable to Harris, the evidence suggests that Harris’s performance failings did not actually motivate Ford’s decisions to discipline her and terminate her employment. Although many of Harris’s performance deficiencies were ongoing problems, they prompted a negative review only after Harris filed her EEOC charge. . . . In addition, a reasonable jury could infer that the PEP was designed to set Harris up to fail: One of Harris’s PEP goals was to eliminate a backlog of paperwork,  . . . but Harris testified that the paperwork was pending only because she needed to wait on responses from suppliers and coworkers.

Granted, “the paperwork tasks designated in the PEP “were important duties of the resale buyer position.” “[B]ut the question is not whether the duties identified in the PEP were integral to the position; rather, the question is whether the duties were achievable within the 30-day window provided for in the PEP.”

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: Title VII Retaliation Claim Requires Proof of But-For Causation

Yesterday, the Supreme Court issued another 5-4 decision in a Title VII case. Univ. of Texas Southwest Medical Center v. Nassar, No. 12-484 (6-23-13). The plaintiff doctor alleged that his job offer from a hospital had been revoked in retaliation for his internal complaint of national origin and religious discrimination at the affiliated medical school. The lower courts found that he need only show that his protected complaint of discrimination was merely a motivating factor (i.e., one of several factors) in the revocation of his job offer. However, the Supreme Court observed that Title VII's anti-retaliation provision is located in a different statutory section from the anti-discrimination section. Therefore, the anti-retaliation provision is not subject to the same motivating-factor causation standard that governs the anti-discrimination prohibitions. In the absence of a lower statutory causation standard, the default causation standard is but-for. In other words, the plaintiff must show that his job offer would not have been revoked but for his exercise of protected rights to complain about discrimination.
According to the Court's opinion, the hospital agreed with the defendant university to employ its medical faculty in empty staff physician positions. The plaintiff doctor had been employed at various times by the hospital and university. More recently, he alleged that the new Chair of his sub-department was biased against him and subjected him to undeserved scrutiny of his billing and productivity. He complained to the Chair of the Department about this perceived bias. He also made arrangements with the hospital to continue to employ him even if he resigned his position with the university. Upon resigning from the University, he described in writing to the Department Chair that his resignation was caused by the national origin and religious harassment he was suffering from the Sub-department chair. Upset that the sub-department chair had been humiliated by the plaintiff's allegations, the Department Chair protested to the hospital about hiring the plaintiff as a staff physician and claimed that it violated the affiliation agreement to only employ non-faculty physicians. The hospital then withdrew its job offer to the plaintiff, who filed suit alleging constructive discharge from the harassment and retaliation in causing the hospital to withdraw its job offer. A jury found in his favor on both claims. The court of appeals reversed the constructive discharge finding, but affirmed the retaliation finding using a motivating factor analysis.
Title VII's anti-retaliation provision at 42 U.S.C. §2000e-3 prohibit discrimination (aka retaliation) as an "unlawful employment practice" "because" the employee opposed a practice that is unlawful under Title VII or because the employee participated in an investigation. Similarly, the anti-discrimination provision at 42 U.S.C. §2000e-2 prohibits discrimination "because of" the individual's race, color, religion, national origin or sex. In 1991, §2000e-2 was amended to include the following:

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. (emphasis added).

Notably, this amendment does not address retaliation under the opposition/participation section in §2000e-3, but specifally only addresses discrimination on the basis of race, color, religion, sex or national origin. In 2009, the Supreme Court held that the "because of" language in the ADEA required a "but for" causation analysis. Based on the plain language of Title VII, the Court determined that the retaliation provision similarly requires proof of "but for" causation.
The Court also noted the increasing frequency with which retaliation claims are now brought. Race discrimination is the only allegation filed more frequently with the EEOC.

[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. . . . It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.

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

Sixth Circuit Rejects First Amendment Retaliation Claim Based On Employee's Firing for Single Use of Racial Slur on Facebook

 Earlier this month, the Sixth Circuit Court of Appeals reversed a trial verdict of $25K which found that a Trump-supporting employee was unlawfully retaliated against in violation of the First Amendment when she had been fired for using racist slang a single time on a Facebook post on election night 2016 even though she had deleted the entire post the next day.   Bennett v. Metro. Gov’t of Nashville, No. 19-5818 (Oct. 6, 2020).  The Court found that the plaintiff’s use of the racist term in responding to the exact same language posted by a stranger was not constitutionally protected and justified her termination.  While her comment did reflect on a matter of public concern, it was not entitled to the highest level of protection as other comments might have been and was outweighed by the disruption created by her comment within her workplace and in the public’s trust of her department.  It was particularly problematic that her Facebook posts were public, that she identified her employer and department, that she failed to disclaim that her personal opinions were her own and not that of her employer, that she had direct contact with the public in her job, that she failed to consistently express remorse or accountability, and that many of her co-workers were deeply offended and upset by her use of the word.  The Court also rejected the plaintiff’s defense asserting that the City had caved to a single heckler’s veto.  While the decision was unanimous and there was a majority court opinion, each judge wrote a separate opinion explaining the outcome.

According to the Court’s opinion, the plaintiff employee stayed up until 3 a.m. on election night and posted an image of the electoral map when Trump had been declared the winner.  A stranger quickly posted a comment on her public page indicating that Trump had been elected by “rednecks” while “niggaz and latinos states vot[ed] for hillary.”  She responded using his same language, ““Thank god we have more America loving rednecks.  . . . Even niggaz and latinos voted for trump too!”  Several friends notified her the next morning that they were offended by her language and she deleted the entire post that afternoon.   In the meantime, the City’s HR Department, the union and the Mayor’s office received a few complaints about her Facebook comments.  One person  (allegedly a disgruntled former employee) who had viewed her post had then made screen shots of it and may have been sharing it on his Facebook page while accusing the City of being racist.   The City became especially concerned because the plaintiff had identified herself as both an employee of the City and its police department.   However, by the time they telephoned her to request that she remove the post, she had already done so.

When she met with the City before her shift the following morning, she initially showed no remorse or understanding of how inappropriate her comment had been.  She felt that she had simply made a sarcastic response to the initial comment and that objectors were not really all that offended.  When she realized that this was becoming a disciplinary issue, she offered to apologize to the offended employees, but objected to apologizing to the entire staff at roll call.  Accordingly, she was sent home on administrative leave pending further investigation.  The union reported increasing tension within the department where the plaintiff worked as a result of her Facebook comment.  The City also decided that diversity training in that department would be appropriate and to have a counsellor come in and speak with employees who were offended.

Following the investigation, the City

determined that [the plaintiff’s] conduct violated three policies of the Metropolitan Government Civil Service Commission: (1) her behavior “reflect[ed] discredit upon [her]self, the department, and/or the Metropolitan Government,” (2) her conduct was “unbecoming of an employee of the Metropolitan Government,” and (3) her Facebook profile disclosed that she was a Metro employee but failed to include a disclaimer that her “expressed views are [hers] alone and do not reflect the views of the Metropolitan Government.”

A letter was sent to the plaintiff explaining

that “[t]o advance the mission [of ECC], it is vitally important that all department employees conduct themselves in a manner free of bias, demonstrate unquestionable integrity, reliability and honesty,” and that “[t]he success of [the] agency can be measured by the perception and confidence the public has in the employees representing the agency.”

The City felt that

the charges were appropriate, first, because she felt that inclusion of a particularly offensive racial slur in a public social-media post was objectionable because it did not reflect Metro policy or the beliefs of people who worked there. Further, she thought such racially charged language would bring discredit to the office and testified that “the public that we serve is very diverse, and it’s my expectation that when someone calls[,] regardless of who they are or where they’re from, that they’re going to receive the appropriate service.” Donegan also concluded that Bennett’s behavior warranted discipline because of the disruption it caused: employees were upset at work, counselors needed to be involved, and stress levels increased for the agency as a whole.

At some point, the plaintiff took FMLA leave and was notified of her pre-disciplinary hearing upon her return and was placed back on administrative leave pending the hearing.  In the meantime, she had written a letter of apology expressing her embarrassment and humility, but she did not express any of those sentiments at the hearing, where she instead defended and explained her conduct. 

[S]he did not exhibit concern for her colleagues’ feelings, called them hypocrites, and indicated that she would not apologize because someone else took something the wrong way—indeed, she believed her colleagues should instead apologize to her.

Concerned with the lack of remorse, accountability or acknowledgement of poor judgment, the decision was made to terminate her employment in order to avoid a repeat of the incident and promote healing within her department.

The plaintiff sued under §1983 and the First Amendment retaliation claim was tried to a jury, which indicated in the jury interrogatories that it found that her Facebook post “was not reasonably likely to impair discipline by superiors at ECC, to interfere with the orderly operation of ECC, or to impede performance of” her duties.  However, the jury also found that her Facebook post was “reasonably likely to have a detrimental impact on close working relationships [within her department] and undermine the agency’s mission, that [the City] terminated Plaintiff ‘[f]or using the term ‘niggaz’ when expressing her views regarding the outcome of a national election on Facebook,’ and that doing so violated the three charges outlined in Bennett’s termination letter.”  Upon receiving these jury interrogatory responses, the trial court ruled that the balancing factors weighed in the plaintiff’s favor and the jury awarded her $25K in damages.

In reversing, the Court of Appeals concluded that the trial court erred in balancing the factors in determining whether the plaintiff’s speech was constitutionally protected.

To establish a claim for First Amendment retaliation, a public employee must show that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct.

In order to find that a government employee’s speech is constitutionally protected, a court must first determine whether the employee was speaking as a private citizen or public employee in the course of employment (which was not an issue in this case) and then,

determine whether the statement in question constitutes speech on a matter of public concern.   . . .  Then, if it does, we apply the Pickering balancing test to determine whether the Plaintiff’s “interest in commenting upon matters of public concern . . . outweigh[s] the interest of [Metro], as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Court began its analysis by determining the degree of protection to give the plaintiff’s comments based on “the level of importance the speech has in the community” and its context.  The City conceded that the plaintiff’s comments were political in nature, but argued that her comments were not “purely political” and thus, not entitled to a heightened level of constitutional protection.  While the plaintiff asserted that her comments had been purely political, the Court rejected the plaintiff’s argument that she had been terminated in response for supporting Trump.  She had admittedly posted prior comments supporting Trump and suffered no adverse employment action.    Further, the jury had been given multiple choice options for answering the jury interrogatories and had not selected the option that she was terminated for expressing her opinion about the results of the election.  It also rejected the options about workplace disruptions or lack of accountability.   Instead, it selected the only option which quoted the language that she used on Facebook.

The Court reasoned that the First Amendment does not merely focus on the speaker’s interest, “but also with the public’s interest in receiving information.”  Her comments on a matter of public interest on which she had no special insight was not entitled to the same level of protection of, for instance, discussing the lawful operation of the city government.  Clearly, the public would be more interested in the latter than the former.

It is true that the speech in question was couched in terms of political debate, made in response to and repeating back the words of another person, and used a more casual version of an offensive slur.  Still, Bennett’s speech does not garner the high level of protection that the district court assigned to it, and the balancing test requires less of a showing of disruption and other factors than the district court would require.  . . . In any event, the evidence of disruption caused by the language in Bennett’s Facebook post was substantial.

We apply the Pickering test “‘to determine [whether] the employee’s free speech interests outweigh the efficiency interests of the government as employer.’”  . . . . The test considers “the manner, time, and place of the employee’s expression.” . . . . The “pertinent considerations” for the balancing test are “whether the statement [(a)] impairs discipline by superiors or harmony among co-workers, [(b)] has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, [(c)] impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise,” id., or (d) undermines the mission of the employer.  . . . The consideration of the employee’s performance, impaired discipline by superiors, harmony among co-workers, and undermining of the office’s mission is “focuse[d] on the effective functioning of the public employer’s enterprise.”  . . .

Consideration of the first factor of the Pickering test, whether the speech impaired discipline by superiors or harmony among co-workers, weighs heavily in favor of Metro. The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC. Employees testified that Bennett’s post prompted a “nonstop conversation” in the office that lasted for days, and for as much as three weeks to a month after Bennett’s comment, there was a need for a counselor to address the office.

While nothing about the plaintiff’s comment impaired discipline among management, “it is possible that any inaction on [management’s] part in the face of Bennett’s derogatory speech could have been seen as an endorsement of the speech and impaired future discipline of similar derogatory statements.”

The Court also found that the second Pickering factor weighed heavily in favor of the City because the jury had found that the speech had a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary.  Employees had expressed concern about whether they could work again harmoniously with the plaintiff in an already stressful environment.

“The third factor, whether Bennett’s speech “impede[d] the performance of the speaker’s duties or interfere[d] with the regular operation of the enterprise,” is a close call.”  The jury found that there was no evidence that the plaintiff’s ability to perform her duties would be impacted, but the Court noted that it was also possible that her damaged relationships with her colleagues could adversely affect her work and job performance.

“Finally, Bennett’s comment detracted from the mission of ECC, weighing again in favor of” the City. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”  The jury concluded that her comments had undermined her department’s mission, but the trial court had discounted this finding in error.

Had Bennett’s profile been private, or had it not indicated that she worked for Metro, Metro’s argument for terminating Bennett would not be as strong. But the relevant Civil Service Rules support the idea that public perception is central to ECC’s mission. Bennett’s public comments discredited ECC because they displayed racial bias without a disclaimer that the views were hers alone. This court and several others “have recognized the interest of a governmental entity in preserving the appearance of impartiality.”

In rejecting the trial court’s weighting of this factor, the Court stated that “we consider the role and responsibilities of the employee and, when the role is public-facing, whether the danger to successful functioning of the office may increase.”

In Rankin, the employee was not in a public contact role, and thus, concerns about public perception were too attenuated to limit the free speech rights of the employee.  . . .. Here, however, Bennett was in a public-facing role and used the slur in a public forum from a profile that implicated not only Metro Government but also the Metro Police Department. This situation is exactly the type that Rankin warned could warrant a higher level of caution for public employees’ choice of words. Id. at 390 (stating that if the employee is in a “confidential, policymaking, or public contact role,” the danger to the agency’s successful functioning may be greater).

Second, the district court determined that because the record contained evidence of only one member of the public expressing concern, the fear of the post “going viral” was not a sufficiently substantial justification. But, although we have not addressed the issue directly, other circuits have held that a reasonable prediction that the public perception will impact the government’s operations is sufficient. . . . Grutzmacher acknowledges that speech on social media “amplifies the distribution of the speaker’s message.”  . . . . Although this situation, in some respects, “favors the employee’s free speech interests,” it also “increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.”

Third, the district court “view[ed] it as highly speculative that even if an African American were familiar with Plaintiff’s Facebook comment and was offended by it, such African American would be deterred from calling in an emergency.” The concern, however, was not that African Americans will no longer call for emergency service, but rather—as Metro explains— that “damaged public perception can lead to many ills” for an agency that serves the public directly. The Second Circuit has effectively captured the importance of public trust in such relationships:

The effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. If the police department treats a segment of the population . . . with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department’s ability to recruit and train personnel from that community will be damaged. . . . .

The district court’s reference to Bennett’s use of “niggaz” as “the mere use of a single word” demonstrates its failure to acknowledge the centuries of history that make the use of the term more than just “a single word.” The use of the term “evok[es] a history of racial violence, brutality, and subordination.” . . . . It “may appear innocent or only mildly offensive to one who is not a member of the targeted group, but be intolerably abusive or threatening when understood from the perspective of a [person] who is a member of the targeted group.” Id. “The use of this word, even in jest, could be evidence of racial apathy.”

The Court also rejected the plaintiff’s argument about a “heckler’s veto” by giving a hostile mob control over determining what political speech is protected when, up to the time that she had been terminated, only one member of the public had complained about her Facebook post.   

A heckler’s veto involves burdening or punishing speech “simply because it might offend a hostile mob.”  . . . We have not addressed a heckler’s veto in this context, but the Ninth Circuit has held that those concerns are not applicable to the “wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and thereby, affect the agency’s mission.”  . . . The Second Circuit has taken a similar view, finding that “members of the African American . . . communities whose reaction . . . the defendants legitimately took into account . . . cannot properly be characterized as ‘outsiders seeking to heckle [the plaintiffs] into silence.’”  . . . Because effective emergency service “presupposes respect for the members of those communities,” such agencies are permitted to account for the possible reaction of the public when disciplining their employees. Id. The public—as the consumers of ECC’s services—and Bennett’s colleagues with whom she must work collaboratively can hardly be said to be “a hostile mob.”

Finally, the Court rejected the plaintiff’s argument that the employer’s workplace investigation was superficial because she had the opportunity to present additional evidence and witnesses at her pre-disciplinary hearing.  “The question in this case is not whether members of the judiciary would have made the decision to terminate Bennett for using a racial slur in this instance. The question is whether Bennett’s language was sufficiently protected for the court to interfere in our proclivity for ‘affording government employers sufficient discretion to manage their operations.’”

Because Bennett’s speech does not occupy “the highest rung” of public concern, less of a showing of disruption is required.  Several factors weigh heavily in favor of Metro. Although there are factors weighing in favor of Bennett, sufficient disruption was shown to tip the Pickering balance towards Metro. Based on the above analysis and in light of the discretion we must grant leadership at Metro, its interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.

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.