This morning, the Sixth Circuit issued a few employment
decisions that may be of interest to employers and employees. In the first case, the Court rejected the
plaintiff’s age discrimination claim where she had been fired for
insubordination. Pelcha
v. MW Bancorp, Inc., No. 20-3511 (6th
Cir. 1-12-21, amended 2-19-21). The Court reiterated that
the Supreme Court has held the ADEA does not permit mixed-motive cases, unlike
Title VII. Further, her evidence of
stray remarks by the Bank’s president about an employee who was 40 years older
than her were too vague and unrelated to her situation to constitute direct
evidence that she had been fired because of her age. In
the second case, the plaintiff physician was denied prevailing party attorney
fees in his FMLA claim by the arbitrator because he had failed to educate the
arbitrator that the statute prevailed over contrary language in the arbitration
clause and because he failed to submit any definitive evidence of the fees he
was claiming.
In the first case, the plaintiff teller was fired by her
long time banking employer for insubordination for refusing to submit a written
request for time off until the day before her day off even though such requests
were due a month in advance. She argued
that this was pretext for age discrimination. The district court granted summary judgment to
the employer and she appealed.
The plaintiff attempted to argue that she had proved age
discrimination with direct evidence based on a few inflammatory statements that
the Bank’s president made about another employee who was 40 years older than
the plaintiff and that he wanted to hire younger tellers. The Court disagreed. “In reviewing direct evidence, we look for
“evidence from the lips of the defendant proclaiming his or her . . . animus.” . . .Inferences are not permitted.”
“Direct evidence is evidence that proves the
existence of a fact without requiring any inferences” to be drawn. . . . In other words, direct evidence is
“smoking gun” evidence that “explains itself.”
. . .
In determining the materiality of allegedly
discriminatory statements, we consider four factors, none of which are
dispositive: “(1) whether the statements were made by a decisionmaker . . . ;
(2) whether the statements were related to the decision-making process; (3)
whether the statements were more than merely vague, ambiguous or isolated
remarks; and (4) whether they were made proximate in time to the act of
termination.”
. . . None of the statements were related to [the
plaintiff]’s termination. In fact, they were not made in relation to any
termination decision and were about an entirely different employee.
Additionally, nothing in the record suggests that the statements were more than
isolated remarks. Here, it appears as though these statements were only made
once or twice to certain higher-level management employees.
. . . Hiring younger tellers does not require
the termination of older employees.
. . .,
in terms of timing, the comments in question come from late 2015 or early 2016,
more than six months before her termination. We have previously suggested that
time spans of six or seven months can be temporally distant.
That being said, such statements could be considered as
circumstantial evidence to argue pretext if the plaintiff attempted to prove
her case through burden shifting and to raise a “plausible inference of
discrimination.” Nonetheless, the Court found that the
plaintiff failed to prove that the employer’s explanation for her termination –
that she was insubordinate – was pretext for age discrimination.
First, the plaintiff could not prove that the explanation
had no basis in fact. She argued that
she was not insubordinate because she had submitted a written request one day
in advance and had obtained verbal approval a month in advance. However, the Court pointed out that she had
been required by her manager’s policy to submit the written request a month in
advance and she had admittedly told her manager that she refused to do so because she disagreed with the policy. She did not ultimately submit her written
request until the day before her took time off. Her “late completion of the form could not
cure her original refusal to follow Sonderman’s directive.”
She also could not prove pretext with the isolated and sparse
comments that the Bank president had made about another situation. Those
comments “were not directed towards Pelcha, not directed towards anyone near
Pelcha’s age, and not made in connection with any termination decision at all.”
She also could not show that her employer changed its
explanation for her termination by also later documenting issues with her
negative attitude and contribution to a negative work environment. Prior decisions have held that “providing
“additional, non-discriminatory reasons that do not conflict with the one
stated at the time of discharge does not constitute shifting justifications”.
In addition, she could not show pretext by arguing that the
employer failed to comply with its own progressive disciplinary policy. The policy was clear of the typical steps in
the process and clarified that some offenses would justify skipping some or all
of the steps. In conclusion, “an
‘employer may fire an employee for a good reason, a bad reason, a reason based
on erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason.’”
Ultimately, she also could not satisfy the prima facie case
because she could not prove that she was treated more harshly than another,
younger employee because the fact that a younger co-worker may have neglected to turn in the form is not the
same as insubordination in refusing
to turn in the form. “Neglecting to complete a time off form and defiantly
refusing to do so upon being asked by a superior are significantly different
actions.”
In the second case, the Court denied the appeal of a
physician who was denied in arbitration attorney’s fees as the prevailing party
on his FMLA claim. Gunasekera
v. War Memorial Hospital, No. 20-1340 (6th Cir. 1-12-21). The
physician asserted (correctly) that attorneys’ fees are awarded under the FMLA
statute to prevailing plaintiffs.
However, the arbitrator reasoned that the arbitration agreement provided
that each party would pay its own fees and, in any event, his attorney had
failed to submit evidence of the attorneys’ fees accrued to that point during
the hearing. The Sixth Circuit found that a mere error of
law by the arbitrator does not constitute the necessary manifest disregard of
the law (if that standard even still applied) as required to overturn an
arbitration award. This was particularly
true when the arbitration briefs failed to argue that the FMLA provision
overrode the terms of the parties’ agreement. More
importantly, the physician failed to submit any evidence to the arbitrator of
the amount of his fees. “In that brief, Dr. Gunasekera merely asserted that he
was entitled to receive ‘all of his legal fees,’ which exceeded $35,000.” Without concrete evidence upon which to base
an award of a specific sum, the arbitration could not have erred in failing to
award fees to a prevailing party under the FMLA.
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.
