Franklin County Court Finds Poor Performance Justified Termination

Just before Christmas, the Franklin County Court of Appeals affirmed the dismissal of an age discrimination claim where the 61-year-old plaintiff was fired after one year of employment and replaced by a 34-year-old because he did not show that the employer’s dissatisfaction with his job performance was pretextual.  Brehm v. MacIntosh Co., 2019-Ohio-5322.   Not only did he fail to show that the employer’s evidence and explanation was false, but he failed to show that his younger and better treated peers engaged in substantially identical conduct, that statistical evidence showed a pattern and practice of replacing older managers with younger ones,  or that the employer’s ambiguous explanation in his termination meeting masked its true motivation. 

According to the Court’s opinion, the plaintiff was hired at the age of 60 as a nursing facility administrator, responsible for fiscal responsibility, operating efficiency, and supervising management.  In the first year of his management, the office supply expenses consistently exceeded their budget, revenue decreased, income decreased by 37%, his financial reports were not sufficiently detailed and he could not appropriately document meetings with his subordinates with agendas, notes, and advance notice of meetings, etc.  His employment was terminated 13 months after he had been hired and he was replaced by a 34-year-old administrator.  The lawsuit followed.

The Court found that he satisfied his prima facie case and that he was objectively qualified for his position even though his actual performance did not meet the employer’s expectations. 

The Court found that the plaintiff failed to show that the employer’s explanation for his termination – his poor performance – was pretextual.   The undisputed evidence showed that the facility’s income declined 37% in the year after the plaintiff was hired, that he failed to control the excess spending on office supplies and he failed to properly document and manage his staff, etc.  While the plaintiff attempted to justify his management and argue that the expectations had been unrealistic, he failed to produce evidence disputing the accuracy of the employer’s evidence.  In other words, he failed to show that the poor performance simply did not happen.  

While the plaintiff attempted to show that the employer’s articulated explanation did not actually motivate his termination due to slightly differing (i.e., shifting) and more ambiguous explanations he was given in his termination meeting for not being a “good fit,” and the unhappiness of the investors, the Court found “"[i]solated and ambiguous comments 'are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.' "  

[T]he fact that [the employer’s] articulated reasons for the termination decision were not all revealed to [the plaintiff] at his termination interview  . . .  does not lead to the conclusion that [its] decision was motivated by age, particularly where, as here, the record supports the factual accuracy of [its] proffered reason for termination.   [The plaintiff’s] contention that he has demonstrated "after-the-fact" pretext because what he was told at the time of his termination is different from what [the employer] has articulated now lacks merit.     

He also failed show to show the employer’s articulated explanation was not the true motivation by arguing that he was not afforded prior warnings though the progressive disciplinary process prior to his termination. “But where there is no requirement that an employer use progressive discipline prior to the termination of one of its employees, the failure to subject an employee to progressive discipline does not establish pretext of age discrimination.”  The plaintiff failed to show that he was entitled to progressive discipline before his termination and the undisputed evidence showed that such progressive discipline was never given to similarly situated administrators.  In any event, the employer contended that the financial issues were discussed with plaintiff at each monthly financial meeting.


The plaintiff also failed to show that age discrimination was the actual motivation by pointing to the terminations and replacements by substantially younger employees of two other protected-age administrators.  While statistical evidence of a practice and pattern of age discrimination could show pretext, proper statistical evidence had never been presented and could not be satisfied by anecdotal evidence of two isolated terminations.

[W]e have previously found that "in the absence of evidence as to the circumstances surrounding those decisions (i.e. evidence of discriminatory action against other employees discharged by [the employer]), the fact that workers of a particular age left the company is insufficient to support a finding of age discrimination."   . . .  Here, the record simply does not reveal any evidence regarding the circumstances surrounding the decisions to terminate either [of the two other administrators].

Finally, the plaintiff failed to show pretext with evidence that similarly-situated younger administrators received better treatment under similar circumstances.  The Court found that the alleged comparators were both in their 40’s, not 30’s as alleged.  More importantly, there was no evidence that either had engaged in “substantially identical conduct.”   One had been reassigned after a poor Department of Health survey, not because of financial and supervisory mismanagement.   The other had been reassigned from reassigning a long-time challenged facility, unlike the facility which the Plaintiff managed.  “This explanation provides "differentiating or mitigating circumstances" that distinguishes both the conduct of the alleged comparator and [the employer’s] response to it so as to prevent [her] from being an employee who was "similarly-situated" to [the plaintiff].”


At the end of the day, the plaintiff

provided no deposition testimony or even affidavits from any of the other employees whom he insists were either treated the same as him (terminated because of their age) or better than him despite their own alleged poor job performance. He has provided no deposition testimony or affidavits from any of his former subordinates who may have been able to corroborate his contentions that he was effectively leading his team, having meetings as required, and generally performing his job functions well, as he attests in his own affidavit.  He has provided no statistical evidence or expert testimony in support of his theory of "pattern and practice" discrimination.  Instead, the only evidence submitted by [him] in rebuttal to [the employer’s] motion for summary judgment and the evidence upon which it is properly supported is his own affidavit, which largely consists of conclusory and self-serving allegations.

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 Affirms Dismissal When Co-Worker's Misconduct was Radically Different

In November, a divided Sixth Circuit affirmed the employer’s summary judgment on a race discrimination claim because the plaintiff failed to identify a co-worker who was similar in all relevant respects.   Johnson v. Ohio Department of Public Safety, 942 F.3d 329 (6^th Cir. 2019).  The Court found that the plaintiff’s misconduct was more egregious than and not sufficiently comparable to his co-worker’s misconduct when he asked out intoxicated women whom he had arrested while in uniform and had actually driven one of the women home, while the co-worker had only sent two off-duty Facebook friend requests.  Further, the plaintiff had been placed on a Last Chance Agreement after he pulled over a woman without probable cause in order to ask her out when the other had not.  Moreover, the first allegation against the co-worker had never been verified.  In addition, they had different supervisors.  Finally, they were disciplined for slightly different offenses and subjected to different standards because of the Last Chance Agreement. 

According to the Court’s opinion, the plaintiff had been placed on a Last Chance Agreement warning that he could be fired for any misconduct in the following two years after he asked out an intoxicated woman whom he had arrested for DUI and then later pulled her over without probable cause in order to ask her out and giver her his cell phone number.   However, he later arrested and handcuffed another intoxicated woman for DUI, asked her out, texted her, drove her home, failed to turn on the cameras in his cruisers, etc.   He was then fired.  He brought suit and claimed that he had been treated more harshly on account of his race than a white co-worker who had allegedly sent off-duty Facebook friend requests to two women he had previously pulled over and cited, only one of which had been verified.  The trial court granted summary judgment to the employer, finding  that "the quantum of misbehavior is radically different, so one would naturally expect a radically different disciplinary outcome.”

The Court affirmed the employer’s summary judgment on the grounds that the plaintiff had failed to identify anyone who was similarly-situated in all relevant respects who had been treated less harshly. 

“The Department disciplined the two troopers differently because their situations were different.”

When it comes to comparable seriousness, it is the particular conduct of the officers, not broad generalizations, that counts.  Drawn at too high a level of generality, the “comparable seriousness” test becomes meaningless.  True, stitches and open-heart surgery are both medical procedures.  But that does not mean they are of “comparable seriousness.”  Same here. 

The employees also had different supervisors, which is a factor in determining whether they are sufficiently comparable.

And they were subject to different standards.  [The plaintiff] signed a Last Chance Agreement after his first incident.  He was on notice that the Department would fire him if he committed another violation.  [The co-worker] received a warning that the Department may discipline him if he didn’t clean up his act.  The district court described this as a “crucial distinction.”’

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.

Defense Act Sneaks Ban-The-Box Legislation onto Federal Contractors

Just before its holiday break, Congress surprisingly passed the Fair Chance Act with the National Defense Authorization Act on December 20, 2019, and it will become effective on December 20, 2021 [two years after its effective date].  Section 1123 of the NDAA created new 41 U.S.C. §4714, which will prohibit federal contractors from seeking criminal background histories until after a conditional job offer has been extended, except where the applicant will have access to classified, law enforcement or national security information,  when "consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law," or when the job is exempted by regulations to be issued by the GSA prior April 21, 2021.  However, the FCA only applies to jobs which perform work related to the federal contract at issue (as opposed to the contractor’s other employees).   This is becoming a common occurrence to use the Defense Authorization Act to sneak in controversial employment laws.  

In particular, under §4714(a)(1)(B), the contracting executive federal agency:

shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.

At present, this legislation raises more questions than it answers.  When is a criminal background check required “by law”?  Federal law?  State law (which the EEOC has never recognized as relevant in a discrimination analysis)? By common law (i.e., the law of negligent hiring)?  Why is access to cash, financial information, children or disabled adults not similarly protected when a run-of-the-mile criminal is more likely to seek cash or deviance than national security information?  Granted, the FCA directs the GSA in preparing the governing regulations to "giv[e] due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions."    How will this interact with the ADA’s similar requirement that medical information cannot be requested until a conditional job offer has been extended?  What jobs will be considered as “related to the work” of the federal contract?   Hopefully, these and other questions will be addressed with the implementing regulations or remedied by subsequent legislation.    

The complete §4714 will read as follows:

SEC. 1123. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY CONTRACTORS PRIOR TO CONDITIONAL OFFER. (a) CIVILIAN AGENCY CONTRACTS.— (1) IN GENERAL.—Chapter 47 of title 41, United States Code, is amended by adding at the end the following new section: ‘‘§4714. Prohibition on criminal history inquiries by contractors prior to conditional offer 

(a) LIMITATION ON CRIMINAL HISTORY INQUIRIES.— ‘‘(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), an executive agency— 

(A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and

(B) shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant. 

(2) OTHERWISE REQUIRED BY LAW.—The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. 

(3) EXCEPTION FOR CERTAIN POSITIONS.— 

(A) IN GENERAL.—The prohibition under paragraph (1) does not apply with respect to— ‘‘(i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or ‘‘(ii) a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B). 

(B) REGULATIONS.— 

(i) ISSUANCE.—Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Administrator of General Services, in consultation with the Secretary of Defense, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions. 

(ii) COMPLIANCE WITH CIVIL RIGHTS LAWS.—The regulations issued under clause (i) shall— ‘‘(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and ‘‘(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. 

(b) COMPLAINT PROCEDURES.—The Administrator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may submit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). 

(c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.— ‘‘(1) FIRST VIOLATION.—If the head of an executive agency determines that a contractor has violated subsection (a)(1)(B), such head shall— ‘‘(A) notify the contractor; ‘‘(B) provide 30 days after such notification for the contractor to appeal the determination; and ‘‘(C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.

‘‘(2) SUBSEQUENT VIOLATION.—If the head of an executive agency determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), such head shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including— ‘‘(A) providing written guidance to the contractor that the contractor’s eligibility for contracts requires compliance with this section; ‘‘(B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and ‘‘(C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section. 

(d) DEFINITIONS.—In this section: 

(1) CONDITIONAL OFFER.—The term ‘conditional offer’ means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry. 

(2) CRIMINAL HISTORY RECORD INFORMATION.—The term ‘criminal history record information’ has the meaning given that term in section 9201 of title 5.

(2) CLERICAL AMENDMENT.—The table of sections for chapter 47 of title 41, United States Code, is amended by adding at the end the following new item: ‘‘4714. Prohibition on criminal history inquiries by contractors prior to conditional offer.’’

(3) EFFECTIVE DATE.—Section 4714 of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle.  [That section, in turn, provided:

 (2) EFFECTIVE DATE.—Section 9202 of title 5, United States Code (as added by this subtitle), shall take effect on the date that is 2 years after the date of enactment of this subtitle. 

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.

DOL Clarifies FLSA Regular Rate Calculation With New Regulation

Last week, the federal Department of Labor issued a new regulation updating how employers may calculate the “regular rate” for purposes of paying overtime compensation.  The regulation makes explicit that certain types of compensation may be excluded from the regular rate, including paying out unused paid time off and sick time, paid meal breaks (with certain exceptions), certain longevity bonuses, tuition reimbursement, and other perks, etc.  The new regulation will become effective on January 15, 2020.   There is a lot going on in employee compensation in the next month because, as previously reported here, the minimum salary for exempt employees will also rise on January 1 to $35,568/year (or $684/week) and the Ohio minimum wage increases on January 1 to $8.70/hour.  


As explained by the DOL, the new regulation will simplify the calculation of the regular rate by excluding perks that many employers provide to employees so that employers can avoid confusion and litigation, such as:

·       the cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;

·       payments for unused paid leave, including paid sick leave or paid time off;

·       payments of certain penalties required under state and local scheduling laws;

·       reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred "solely" for the employer's benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se "reasonable payments";

·        certain signing bonuses and longevity bonuses;

·       the cost of office coffee and snacks to employees as gifts;

·       discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples and;

·       contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.

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.

OCRC Issues Guidance on Service Animals in Employment

In August, the Ohio Civil Rights Commission issued an updated Technical Policy to provide guidance concerning the use of service animals by employees with disabilities.  In it, the OCRC reflects that employers could be required to permit service animals, such as dogs and monkeys to enable an employee to perform the essential functions of his or her position.  The employer is permitted to ask questions about the nature and extent of the employee's disability and animal's assistance.  Employers can also prohibit service animals when they are not housebroken or are out of control, are threatening, hostile, aggressive,  unusually disruptive, etc. and cannot be restrained, etc.   It is up to the employee to control his or her animal and the parties should engage in the interactive process to establish parameters, etc. 

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.