Sixth Circuit Does Not Require Employers to Give Any Explanation for Termination Decision Until EEOC Charge is Filed

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment on an ADEA claim where the plaintiff had been fired by the new executive director without an explanation, but was later justified by the documented mismanagement (by the state controller) of two of her departments and her toxic relationship with subordinates (as reflected by numerous complaints) even though she received no progressive disciplinary action.  Miles v. South Central Human Resources Agency, Inc., No. 19-5202 (6^th Cir. 1-7-2020).  Further, the Court did not require the employer to conduct an investigation to justify its decision and rejected the plaintiff's challenges for failing to administer progressive disciplinary action. 

According to the Court’s opinion, the agency was investigated for financial mismanagement by state and federal agencies, which found significant problems.  The executive director resigned and two financial managers were immediately fired by the Board after being specifically identified in the government report and admitting their culpability.  Two of the mismanaged departments were the responsibility of the plaintiff, who was terminated 10 days later by the new executive director without any explanation. She blamed her subordinates, threatened to retaliate and filed an EEOC Charge.  At that point, the employer explained that she had been terminated for her poor management of the two departments criticized in the government reports and having a toxic relationship with her subordinates (as reflected by numerous complaints received by the new executive director).  The trial court granted summary judgment and the Sixth Circuit affirmed. 

The Court observed that the plaintiff could not show that age discrimination was the “but for” cause of her termination in light of the government reports and the complaints about her.   Further, she could not show that the employer’s explanation was pretexutal.  There are three primary methods to show that an employer’s explanation is pretextual: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that the proffered reasons were insufficient to motivate the employer’s action.”

1)     The plaintiff could not show that there was no basis in fact for her termination in light of the government report or the receipt of the numerous employee complaints.  “For a plaintiff’s challenge to the factual basis of an employer’s proffered termination rationale to establish pretext, the plaintiff must provide evidence that the employer’s allegations never happened.”  The Court rejected the following challenges:

a)      The government report did not specifically identify her by name, unlike the two financial managers. “But this hardly means that the report did not implicate her.”   It did specifically identify wrongdoing in several departments and two of them were her responsibility.  She “cannot argue that the report failed to implicate her simply because it does not mention her name.”

b)     The employer’s failure to investigate the employees’ complaints about her or even to be able to describe them showed the lack of a particularized facts and were hearsay. The employer “did not offer . . . testimony to show that [the plaintiff] in fact treated her subordinates poorly.  It did so to show that her subordinates lodged these complaints  . . .”   While generally an employer should investigate the basis of an employee’s termination prior to making the decision, the Court did not require it here.  “Terminating an employee only because of complaints from her subordinates— without investigating the merits of those complaints—may be unwise, but that’s not the question here.”  None of her challenges disputed that the employee complaints were made and only focused on the merits of the employee complaints.  However, the employer terminated her based on the fact of the complaints, not their merits. 

2)     The plaintiff could not show that the articulated explanation was not the true motivation for her termination.

a)     The Court rejected her argument that the employer’s shifting explanation for her termination – to no explanation in her termination meeting to its articulated reason given only after she filed an EEOC Charge – was suspicious because the eventual explanation did not conflict with the lack of explanation during her termination meeting. “’[P]roviding additional, non-discriminatory reasons that do not conflict with the one stated at the time of discharge does not constitute shifting justifications.’”  Endorsing the practice of refusing to give any explanation at time of an employee’s discharge: the employer’s “proffered rationales do not conflict with the reason stated at the time of discharge because [the employer] provided no reason at the time of discharge.”

b)     Employers are not required by the ADEA to given an employee any explanation when they are terminated: “[N]othing in the ADEA requires an employer to justify a termination to the fired employee, even if she is among the protected class.  So an employer’s explanation for not providing such a rationale cannot alone establish a genuine dispute as to pretext.” It was irrelevant that the employer informed her peers 10 days earlier why they were being terminated because they were not similarly-situated to her (in that they were named specifically in the government report and acknowledged their culpability).

3)     The plaintiff could not show that the reasons given were insufficient to motivate a decision to terminate her employment. 

a)      The plaintiff could not identify similarly-situated comparators by identifying two of her subordinates (of unknown ages) whose culpability  and performance standard was less than her own or by comparing herself to two peers who were fired for cause 10 days earlier after admitting their culpability in the mismanagement.   “It cannot be said that conduct that might be tolerated or treated with progressive discipline at lower ranks must be similarly accepted from the [highest employee’s] advisors, who are held to a higher level of professionalism and who are expected to set the standard of conduct for the [employer].”    Indeed, “[f]iring the most senior employee responsible for mismanagement while maintaining, or even promoting, their subordinates, despite their involvement in the mismanagement, is an employment practice that is not unorthodox and is in fact common in some industries.”  Moreover, the plaintiff’s misconduct was worse because she granted unlawful favoritism in the bidding process to the spouse of a co-worker and was responsible for two programs (instead of one), while the subordinates were passively each responsible for only one program.  At the pretext stage, the comparators must have engaged in substantially similar misconduct.   

The Court also rejected a variety of miscellaneous arguments that the plaintiff raised to question the truth of the employer’s explanation for her termination.  She pointed out that five of the nine program directors and senior staff who were fired or resigned were all over the age of 40, but she failed to identify the ages of the remaining directors and senior staff. “To [be relevant], the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.”  Here, some of the replacements were older than the terminated employees.

In addition, she could not rely on comments 6 months later about trying to recruit young people because they were irrelevant to the termination of her employment. “Even if [the employer] wanted to attract young people, that says nothing about terminating older employees.”  Moreover, even “[i]f these are discriminatory remarks, they can only serve as pretext if “a person in a position to influence the alleged employment decision” made them and they are not “so isolated or ambiguous as to be nonprobative.”

Finally, she could not show pretext from the employer’s failure to utilize the progressive disciplinary policy which for serious misconduct required the suspension of the employee pending investigation because, among other things, the employer did not rely on the policy to justify her termination, did not treat anyone similarly situated was differently and had reserved for itself the right to change the policy when it saw fit.

“an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext.”   . . .  We have held that failure to uniformly apply a progressive discipline policy can be evidence of pretext, especially when the company asserts that policy as a rationale for the employee’s termination.   . . . And SCHRA did not articulate its progressive discipline policy as a rationale for Miles termination.  SCHRA was also not even bound by its own policy.  As stated in the first paragraph, SCHRA “retain[ed] the right to administer discipline in any manner it [saw] fit,” such as “bypass[ing] the disciplinary procedures suggested . . .Thus, even in not complying with the ordinary procedures, SCHRA was still acting within its discretion provided by the policy.

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

Franklin County Court 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.