Court Rejects FMLA Objection to Demotion During Probation Because of Temporary Injury

Earlier this month, the Montgomery County Court of Appeals denied the FMLA objection of a firefighter recruit who was unable to complete his training during his six-month probationary period because of a work-related injury during that training. Geisel v. Dayton, 2018-Ohio-512.  The Court found that the firefighter never requested or sought a FMLA leave of absence; opting instead to take restricted duty with pay.  It also rejected a workers compensation retaliate claim.  Rather, the Court found that the Civil Service Commission was entitled to demote the firefighter to his EMT position even though he was unable to physically perform those duties because of the same injury. 

According to the Court’s opinion, the firefighter took and passed the civil service examination for the firefighter eligibility list.  Thereafter, he was hired as an EMT and presumably passed the probationary period for the EMT position.  About two months after starting his firefighter training, he injured his knee during training and was unable to complete the training before his class graduated in June (following the expiration of the eligibility list).   The decision does not indicate how long he was incapacitated.  He apparently was placed on restricted (i.e., light) duty.  A month after the firefighter had been injured, the Director recommended that he be demoted back to his EMT position (even though he was temporarily unable to perform those duties because of the same injury) and that decision took affect a few weeks later.  Concerned that he would not be rehired as a firefighters before he was age-restricted even if he took and passed the next firefighter examination, he appealed the civil service decision.

As mentions, the Court rejected his argument that the demotion violated the FMLA because he never sought nor took FMLA leave.  Instead, he took restricted (light) duty.  Second, the Court rejected his workers compensation retaliation claim.  Not only did he fail to allege a retaliatory motive, he never sought nor obtained temporary total disability nor was demoted because of absenteeism under Coolidge v. Riverdale Local School District.   Finally, the civil service rules permitted the demotion of an employee who is unable to successfully complete a probationary period due to injury.

While the Court implied that the age restriction might not apply since he had been hired once as a firefighter and noted that he was not restricted from reapplying for a firefighter position, it observed that he:

had six months from the date of his appointment to Firefighter Recruit in which to “qualify,” or in other words, to complete his recruit training.  The rule does not invest an employee who fails to qualify during this six month period with the right to make subsequent attempts without interruption, meaning that Geisel’s appointment to Firefighter Recruit was, in plain language, a one-shot opportunity.

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.

Confidentiality and Sexual Harassment Settlements

Last month, while speaking before the HRCSCO, I mentioned a few provisions from the new tax law.  The Tax Cut and Jobs Act signed just before Christmas affects the deductibility as business expenses of sexual harassment settlements which are also subject to confidentiality clauses:

§ 13307. No deduction shall be allowed under this chapter [§ 162 of the IRC relating to business expenses] for

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or

(2) attorney’s fees related to such a settlement or payment.

Effective Date.  The amendments made by this section shall apply to amounts paid or incurred after the date of the enactment of this Act.

 On its face, it was initially argued by some giant law firms that this applies to both deductions by an employer and by the employee.  Questions remain about whether this could also affect the ability of the employer to deduct legal fees paid to their own defense attorneys or just to the employee's attorney.   Could it be construed to require employees to pay taxes on the substantial fees paid to their attorney (which were formerly deductible under a different provision that has not been repealed).  However, despite the language of the statute, it was arguably not the intent to penalize the employee because it is located in the provision governing business expenses.   Maybe the IRS will not go so far as to penalize paying an employer's attorney either.  It will be interesting to see what guidance the IRS offers when it issues regulations.

 The unintended consequence of this knee-jerk reaction to the #metoo movement  may lead to creative drafting of claims and settlement agreements.  How will settlement payments be allocated between abuse/harassment and non-abuse claims?  Currently, some emotional distress claims are commonly allocated settlement amounts to minimize  wage withholding.  Employers will not pay “real” settlements if the amount will be public because it will encourage frivolous claims.  

Many victims will not want the amount of their settlement to be public either because they do not want to be the subject of gossip, etc.  for the rest of their careers.     As it is, the EEOC has always required employees to keep sexual harassment investigations as confidential as possible to protect the privacy of victims (and, hopefully, innocent accused employees).   Yet, this provision seems to turn the privacy concerns of many victims on its head even though not all of them -- or even many of them --  will receive settlements that will leave them independently wealthy.   Will victims be required to choose between privacy and their pocketbook?   

Thus, it is likely that more such cases will go to trial, making these situations more expensive, distracting, exhausting and demoralizing for both employers and victims.  When many victims would prefer to get on with their lives and put a bad situation behind them, they will now be forced to litigate cases because an employer will not pay any settlement that is more than a cost of defense, if that.  Neither side really enjoys a jury trial because it is often like flipping a coin.  

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.

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.