Ohio Appeals Court Rejects Sexual Harassment and Retaliation Claims Based on Speculation and Gender-Neutral Policy

Last week, the Ohio Court of Appeals in Summit County affirmed an employer’s summary judgment on a former employee’s claims for sexual harassment and retaliation.   Messer v. Summa Health Sys., 2018-Ohio-372.  In particular, the plaintiff claimed that she had been subjected to a hostile work environment when the employer expected her (and all other radiology employees) to change in a unisex locker room (or the locker room bathroom) and that she was terminated after only one month of employment for objecting.  The court found that she could not identify how she was treated differently or harassed on account of her sex when the policy was gender neutral and the locker room and bathroom could be locked.  Further, it refused to impute knowledge of her discussion about the locker room issue with one supervisor to the manager who decided to terminate her for poor performance, finding the plaintiff’s retaliation argument to be nothing more than speculation.

According to the Court’s opinion, both the locker room and bathroom could be locked. The plaintiff did not comply with the policy and either wore her scrubs home or changed in a public restroom.   The plaintiff claimed to have suffered two incidents in the locker room: One when she inadvertently walked in on a male who was changing and once when someone almost walked in on her (although she never knew the gender of that person).   Although she claimed to have reported these incidents to the same supervisor and explained why she was uncomfortable, she never submitted a written complaint about them.  After being counselled about her job performance and gaps of knowledge, she was then counseled by her supervisor about not complying with the policy requiring her to change in the locker room.

On the day before her termination, she requested to leave early and was asked whether she had completed her completed online courses.  She responded that she only had two courses left to complete.  In fact, she still had five left to complete because she had not completed the quizzes for three of the courses (even though she claimed that she had listened to the lectures for those three modules).  She completed the quizzes the next morning.  That same day, a patient suffered a hematoma, which her manager indicated was the plaintiff’s fault while the plaintiff indicated it was because she had not been provided with the proper equipment.  Finally, there was a discrepancy with her resume because the plaintiff omitted a relevant medical employer, while including non-medical positions.  While she mentioned in her interview that she had worked a temporary job, she did not disclose the employer’s name.  When confronted, she indicated that she did not think that the position had been relevant (even though she had listed prior accounting jobs).  At the end of her shift, the manager terminated her employment. 

To prevail on a sexual harassment or discrimination claim, “[a] female plaintiff must show that she was treated differently or with greater hostility because she is  a woman.”  While the plaintiff argued that the mandatory use of a unisex locker room constituted a hostile work environment to women because women have a greater expectation of privacy, the court disagreed.   For one thing, the unisex locker room and its bathroom could be locked when privacy was desired.   The plaintiff also could not cite any precedent where gender-neutral rules were found to be discriminatory.  Accordingly, the plaintiff could not show that she was treated differently on account of her gender.

As for her retaliation claim, ““[t]he decision[]maker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.”    . . . An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made.”   While a plaintiff can prove the requisite knowledge with circumstantial evidence, such “evidence can support a reasonable inference if it is comprised of  ‘specific facts’ and not merely ‘conspiratorial theories,’ ‘flights of fancy, speculations, hunches, intuitions, or rumors.’”  In this case, while the plaintiff contended that she had told her supervisor about her locker room objections at least twice, she never asserted that she had ever shared those concerns with the manager who made the decision to terminate her.  Further, she proffered no evidence that this manager had ever learned of her concerns elsewhere, although she had been told about the plaintiff’s violation of the policy.   Finally, even though the plaintiff told the manager in her termination meeting that she was not comfortable changing in the unisex locker room, she never explained why so that her concern might have been arguably protected conduct.

The court refused to consider the cat’s paw theory which was asserted for the first time on appeal.

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.

EEOC Releases 2017 Fiscal Year Enforcement Statistics

Last week, the EEOC released its annual enforcement statistics for the fiscal year that ended on September 30, 2017.  As I explained earlier this month in my recent presentation to the Human Resources Council of South Central Ohio, there is unlikely to be any radical changes at the EEOC in the near future because of budget cuts and vacancies which still remain in key positions, such as Chair, Commissioners and the General Counsel.   Nonetheless, the EEOC reported that it had reduced its extensive backlog of open charges to the lowest level in 10 years.  Retaliation remains the most common form of allegation made in Charges of Discrimination, being asserted in almost half of all charges filed.  This is followed by race discrimination in over a third of Charges filed, and then by disability and sex discrimination and/or harassment in approximately 30% of filed Charges.  Age discrimination was asserted in only 22% of Charges and the remaining issues were only in the single digits.   (Obviously, Charges may contain more than one type of allegation).   The EEOC more than doubled the number of substantive lawsuits it filed last fiscal year, but dismissed over 70% of Charges for lacking merit – the highest percentage since at least 1997.

The EEOC reported that 84,254 charges were filed, and 99,109 charges were resolved. Almost 2400 of Title VII Charges had been filed in Ohio and the proportion of the types of Charges filed in Ohio was consistent with the national trend: retaliation, followed by race and then sex discrimination. There were approximately 200 fewer Title VII  Charges filed in Ohio in the last fiscal year than in the prior fiscal year.

As for the resolution of Charges, 6.4% were resolved through settlement and 5.4% were withdrawn by the Charging Party (without a formal settlement) with benefits.  Fifteen percent were administratively closed (which likely means that the Charging Party could not be located or had stopped returning calls). Over 70% of Charges were dismissed for lacking probable cause (i.e., lacked merit).   While this is the highest percentage of no-merit dismissals since at least 1997, it is not a substantial increase over recent years.  Only 2.9% of Charges (approximately 2900 of the Charges) were found after an investigation to assert probable cause of discrimination.  Again, while this is the lowest percentage since at least 1997 and is substantially lower than in some past years, it is not a substantial decrease over the prior three years.   Slightly more than half of these Charges were successfully conciliated prior to litigation.  The EEOC’s resolution of Charges in the last fiscal year (prior to litigation) resulted in the recovery of $355.6M for Charging Parties, which is consistent with recoveries in five of the last six years.

The EEOC also reported that it had filed 184 substantive lawsuits, including 124 individual suits and 30 suits involving multiple victims or discriminatory policies and 30 systemic discrimination cases.  This was a significantly higher number of enforcement lawsuits commenced than since 2011, when 261 lawsuits were commenced. In contrast, only 86 lawsuits had been commenced in fiscal year 2016.  By the end of its last fiscal year, it had 242 cases on its active docket and claimed a successful outcome in 90.8 percent. It recovered $42.4M on behalf of Charging Parties through litigation, which is less than the prior two fiscal years, but almost twice as much as in 2014.

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.

When Saying #MeToo Isn’t Enough: Dayton Appellate Court Affirms Dismissal of Sexual Harassment Lawsuit

Last month, the Ohio Court of Appeals in Montgomery County affirmed the dismissal of sexual harassment and retaliation claims in a lengthy opinion.  Diller v. Miami Valley Hospital, 2017-Ohio-9051  (12-15-17). The Court concluded that while the plaintiff had established that her manager’s conduct was unwelcome, she had not proven that it was based on her sex or was severe or pervasive.   Isolated offensive utterances that are not threatening, frequent or intimidating and do not interfere with the plaintiff’s work performance are legally insufficient to establish a hostile work environment claim.   Finally, her self-directed investigation into her boss wasting time was not protected activity because it was neither discriminatory nor unlawful.  Similarly, complaining about his pompous behavior was not protected by sexual discrimination laws.   Therefore, terminating her in connection with her conduct during her self-directed investigation was not unlawful.

According to the Court’s opinion, the plaintiff security officer alleged in her complaint that the “true” reason she had been fired was in retaliation for complaining about sexual harassment from her new manager. Among other things, the plaintiff had alleged that her boss had made comments about pulling up her “big girl panties,” raised his eyebrows when greeting her, had once commented while she was helping him with his computer that there is always a good woman behind a good man, and had been demeaning to her and her male co-workers.  In addition to his general disrespectful comments to the entire department, his comment about good women being behind good men had made her uncomfortable.  While she had initially made the “panties” comment, she did not expect him to repeat it back to her so often afterwards and eventually told him that it made her uncomfortable.   She had been directed by HR to report back if there were any other problems.   However, the court found that she agreed that her boss was demeaning to everyone, not just women or her.  Further, the “panties” comment was merely him repeating her description of her need to grow up.  Finally, the “googly” eyes was too ambiguous to construe as sexual.    

The employer pointed out that she had been fired after moving security cameras so that she could spy on her boss and that this had placed staff at risk.  When she was initially confronted and again in her deposition, she denied that she had been investigating possible sexual harassment by her boss, but then then changed her explanation in her complaint after being fired.   She also claimed that she had received an anonymous message – that she did not report to anyone else --  that her boss was spending too much time at the lobby information desk, so she moved the cameras from the lobby entrance to focus instead on the desk even though the employer had trained the cameras on the entrance to protect staff from vagrants in the area.   Much of the opinion is spent on the discrepancies between the different versions of her allegations.  At the end of the day, however, the Court found that her allegations of sexual harassment were not sufficiently severe or pervasive to be actionable. 

In evaluating hostile work environment claims, “the severity and pervasiveness are to be looked at together so that ‘deficiencies in the strength of one factor may be made up by the strength in the other.’  . . .  [T]he harassing conduct ‘must be severe or pervasive enough to create both an objectively hostile or abusive work environment – one that a reasonable person would find hostile or abusive – and a subjectively hostile work environment – one that the victim perceived to be hostile or abusive.’” 

As for her retaliation claim, the plaintiff claimed that she had frequently moved other cameras as part of her job duties and not been fired or even counselled.  The opinion does not dispute this.   Nonetheless, she also admitted to providing incorrect information to Human Resources during its subsequent investigation about her role in moving the cameras and why it was done.   The court concluded that the plaintiff had not engaged in any protected conduct because the issues that she had reported to Human Resources had not related to sexual harassment, but, as discussed, involved her manager’s generally “pompous” attitude and the one “good woman” comment.   Further, her conduct in investigating the anonymous complaint about her boss spending too much time at the information desk was not protected either since she had specifically denied that she was investigating possible sexual harassment.   The court noted that the employer had argued that a “supervisor’s wasting time at work is neither discriminatory nor unlawful.”

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 Recognizes Valid FLSA Claims for Unlawful Policy that Was Never Enforced

In case you missed it, last quarter a divided Sixth Circuit reversed an employer’s judgment on collective FLSA minimum and overtime wage claims based on a draw and sales commission compensation system.   Stein v. HHGregg, Inc. 873 F.3d 523 (6^th Cir. 2017).  In that case, the employer provided the employees with a variable draw against future sales commissions during weeks when they failed to earn enough sales commissions to cover the employer’s minimum and overtime wage obligations.  In weeks when the employees’ commissions exceeded their minimum wage entitlement, the excess was withheld as necessary to reimburse the employer for past draws.  The Court agreed that this system was lawful, did not constitute an unlawful kickback to the employer and did not violate the FLSA’s free and clear rules.  However, to the extent that the employer retained the right in its employment policies to require repayment of any such draws upon termination of employment, the policy by itself violated the FLSA even though there were no allegations that the employer had ever enforced it and not a single employee or plaintiff specifically alleged that they had ever repaid any draws upon termination of employment.   Further, the Court found that the employer violated the FLSA by permitting such sales employees to attend mandatory training meetings and conferences off the clock even though the complaint’s allegations never specifically alleged that any employee had failed to be paid under such circumstances.  In other words, the complaint had failed to specifically allege that any of the employees had been paid a draw (rather than a sales commission which exceeded the minimum wage) in weeks when they worked off the clock and intentionally underreported their working hours.  That the employees were able to keep future sales commission by not getting paid a draw for attending such sales/staff meetings did not reflect compliance with the FLSA, which requires that employees be paid minimum and overtime wages in the week that they were earned.

The procedural posture was that the plaintiffs had filed a complaint with the federal court in Cincinnati and the employer had moved to dismiss under Civil Rule 12(b)(6).  The District Court had relied solely on the allegations in the complaint, FLSA regulations and letter rulings, and the DOL’s Field Manual to find that the alleged compensation system was lawful.  The case has now been remanded for discovery and, probably, settlement. 

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.

Supreme Court Freezes State Statutes of Limitations During Pendency of Federal Lawsuits and Thaws Them on Dismissal

It seems fitting during this January thaw that the Supreme Court focuses on the freezing and thawing of statutes of limitations.  This morning, and despite the government shut-down,  a divided Supreme Court significantly extended the limitations periods for state law claims first brought in federal court and wrecked havoc on document retention policies and witness memories worldwide. Artis v. District of Columbia, No. 16-460 (1/22/18).     In doing so, it adopted the position taken by the Sixth Circuit in 2013:  when state law claims (such as whistleblower claims) are brought in a federal question lawsuit (alleging, for instance, a violation of Title VII), the state statute of limitations stops running and the clock is frozen until the federal lawsuit is resolved or dismissed.  Then, the clock thaws and starts running so that the plaintiff can re-file in state court based on how many days were remaining on the state statute of limitations when she filed in federal court, or 30 days after dismissal if that period is longer.   Accordingly, because Artis still had two years remaining on her state law claims’ statutes of limitations when she filed her federal lawsuit, she had two years to re-file those claims in state court after her federal lawsuit was dismissed.  The Court was apparently not concerned with those situations when the lawsuits remain pending for ten or more years as they work through discovery and appeals.   Rather, it focused on the plain meaning of “tolled” to mean “frozen,” compared it to situations where a federal limitations period is tolled while the agency exhausts its administrative process,  and contrasted it with savings statutes in other contexts that simply give the plaintiff a certain grace period to re-file a claim after it has been dismissed without prejudice.

For my non-lawyer readers, in order to bring a lawsuit in federal court, the underlying claim must be based on a federal statute (i.e., raise a federal question) or implicate diversity (i.e., citizens of different states with an expensive dispute).  Once the federal court has jurisdiction, it may also adjudicate state law claims arising out of the same underlying event or facts, or, as the busy judges often do, dismiss the state claims to be re-filed in state court.   However, by the time the federal court dismisses the lawsuit, the state statute of limitations has typically expired, so a federal statute – 28 U.S.C. § 1367(d) --provides for the tolling of the limitations period while the lawsuit is pending in federal court and for 30 additional days after the lawsuit has been dismissed (presumably to give the plaintiff time to consider whether he, she or it wants to try again in state court).    Often, the lawsuit was filed the day, week or month before the limitations period was about to expire, but in Artis, the plaintiff filed her federal Title VII employment discrimination lawsuit two years before her state law claims (for false claims and whistleblowing) were about to expire.  It took the federal court 2.5 years to rule on her lawsuit and dismiss her state law claims.   She then re-filed her state law claims in state court 59 days later, causing that court to dismiss her claims because she waited more than 30 days (and creating a malpractice nightmare for the plaintiff’s attorney).    Her dismissal was affirmed on appeal, but a 5-4 Supreme Court reversed and revived her claim.

The Court focused on the language of the statute:

“The period of limitations for any [state] claim [joined with a claim within federal-court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Justice Ginsburg posed the question presented by this situation as:

Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case?

Because “tolling” implies “freezing”, the Court’s majority concluded that the two years left on her state law claim stopped the “clock” from running once she filed her lawsuit in federal court, so she had two years after her case was dismissed to re-file – even if her federal court case had been pending for ten years or more before it was finally dismissed.  (That could easily happen if there were appeals, etc.). 

When the Sixth Circuit addressed this situation in connection with a case consolidating multi-district class actions in 2013, the Court addressed the three options before it as follows and adopted the final/suspension approach:

There are three possible interpretations of this statute. See, Turner v. Kight, 406 Md. 167, 957 A.2d 984 (2008); Goodman v. Best Buy, 755 N.W.2d 354 (Minn. Ct. App. 2008). As set forth in Turner and Goodman, the statute could arguably be interpreted as "annulling" the state statute of limitations. In this manner, the state statute of limitations period is completely replaced " by a fixed period: the thirty-day period after federal dismissal." This interpretation is known as the "substitution approach." The second, and related interpretation, is that Section 1367(d) only tolls the expiration of the statute of limitations,

This interpretation treats that period in the statute— the federal claim period plus thirty days— as a single span of time. If the state limitations period runs out during that span, the thirtieth day after dismissal becomes the new filing deadline. Under these circumstances, the outcome is the same as under the ‘annul and replace’ interpretations. If, however, the state limitations period does not run out during that span of time, the state limitations period is unaffected and terminates without regard to any federal court filings.

Goodman, 755 N.W.2d at 357. The second interpretation is known as the "extension approach." The third possible interpretation is that Section 1367(d) suspends the running of the statute of limitations, i.e., "the clock is stopped and the time is not counted— while the federal court is considering the claim and for thirty days after the claim is dismissed." Id. This is referred to as the "suspension approach."

The Court also rejected the argument that Congress exceeded its authority by tolling state statutes of limitations while cases are pending in federal court.

Like me, the dissent preferred the extension - grace period approach, but no one asked my opinion and they were unable to sway Justice Roberts.

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.