Sixth Circuit Rejects Employer's Honest Belief Defense Where It Did Not Investigate Until After Termination

Yesterday, the Sixth Circuit unanimously reversed an employer’s summary judgment on an Ohio disability discrimination claim and rejected its honest belief defense on the grounds that it did not make a reasonably informed and considered decision.  Fisher v. Airgas USA LLC, No. 23-3286 (6^th Cir. 1/31/24).  The plaintiff had been taking legal hemp to help with pain and nausea from his cancer treatment.  However, although he told his employer that this might have caused a false positive test for marijuana (and there was evidence that he tested positive for THCA and not TCH), it did not investigate or discuss this with the testing laboratory until after it fired him.  Because it did not investigate the matter or tell the lab about his hemp use until after his termination, it did not make a reasonably informed and considered decision, which is necessary to rely on the honest belief doctrine.   Moreover, because it did not even discuss the issue with the lab until after his termination, they could not rely on that conversation to support their honest belief defense.  It only matters what they knew before he was fired.

According to the court’s opinion, the plaintiff was diagnosed with liver cancer a month after he was hired.  After working successfully for about a year, he was granted a medical leave for surgery and treatment.  Upon returning to work, he experienced pain and extreme nausea and began taking small amounts of hemp, without informing his employer, whose policy did not ban its use.  He was then randomly selected for a drug test, which indicated that he tested positive for marijuana.   He requested a repeat test, explaining for the first time that his hemp may have caused a false positive.  The employer obtained a re-test of the same sample, but did not tell the lab about his use of hemp.  The employer also did not ask the lab if hemp would cause a false positive.  In the meantime, the plaintiff contacted the lab’s MRO, who said he had tested positive for THCA, not THC.  The employer fired him anyway.  It later contended that when it contacted the lab’s CMO (after the plaintiff’s discharge) that it was told that he tested positive for THC.  However, the CMO’s affidavit says otherwise -- that he only tested positive for THC.  Nonetheless, the employer refused to reinstate him.

The plaintiff filed suit for disability discrimination.  The trial court granted the employer’s summary judgment motion based on the honest belief rule, but the Court of Appeals reversed.

[The plaintiff] expressly raised with [the employer]—specifically for purposes of his retest— the question whether his hemp usage had caused his sample to test positive for marijuana. Yet [the employer] did nothing to investigate that possibility—even though doing so would have been as easy as sending an email to [the lab] flagging that possibility. [The employer] therefore has not established— as a matter of law, as necessary for summary judgment—that it made a “reasonably informed and considered decision.”

In addition, for purposes of the honest belief rule, the employer could not rely on alleged conversations with the lab -- disputing that hemp could have caused a positive THC test -- because those conversations were not held until after the plaintiff’s employment had been terminated.

[The employer] counters that [the lab’s] Chief Medical Officer . .. . told [it] that hemp could not have caused [the plaintiff’s] positive tests. But that confirmation came after [it] fired [him], not before. And the only facts that matter for purposes of the honest-belief rule are those that were before the employer “at the time” it fired its employee.

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 Employer's Summary Judgment in Discrimination and Retaliation Case Where Plaintiff Had No Evidence of Pretext

 Two weeks ago, the Sixth Circuit affirmed an employer’s summary judgment on a supervisor’s claim that he had been demoted and his position had been eliminated on account of his European race and prior complaints of discrimination.  Browning v. Franklin Precision Industry, Inc. No., 23-5406 (6th Cir. Dec. 5, 2023).   The Court found that he could not prove that the employer’s explanation was pretextual because he had admitted that his was not the only position eliminated, that he had failed to comply with certain policies, that he had been counselled about prior conduct and had been demoted prior to his position being eliminated.  It also did not help that he had no documentation to prove that he had engaged in protected protestations of unlawful discrimination before he filed a Charge of Discrimination following his demotion. 

According to the Court, the plaintiff alleged that the Japanese employees of his employer made inappropriate jokes about his weight and European heritage and racist comments about African-American employees.  He also alleged that he had reported to HR multiple times about the refusal of management to permit him to promote African-American employees.  However, there was no documentation of any such complaints.   Prior to his alleged mistreatment, a female temporary worker complained that he made her uncomfortable when, for instance, he invited her to dinner alone to thank her for her work.  Although he denied he had acted inappropriately and he claimed that HR found no merit in her complaints, he was suspended for three days.  He was also counseled for leaving work prior to when a manufacturing defect had been remedied for a major customer.  He also admittedly refused to clock in an out pursuant to a new policy.  He was offered a demotion, which he ultimately accepted, but filed a Charge of Discrimination a few weeks later.  A few months after that, most employees were furloughed with the COVID pandemic.  Although the company eventually began to recall employees to work, it was determined that it would be more cost effective to outsource some positions, including that of the plaintiff.  He filed suit alleging discrimination and retaliation.    The trial court dismissed the claims on summary judgment. 

The court agreed that he could not show a prima facie case of retaliation or discrimination.  Although he engaged in protected activity by complaining about discriminatory comments, he could not show that his complaints motivated his demotion, furlough or ultimate termination because there was no evidence that any of the decisionmakers knew about his protected conduct:

However, as the district court found, [he] failed to present credible evidence that decisionmakers at FPI were aware of his complaints, or that his protected activities led to his demotion and termination.  . . .  Stated differently, [he] failed to establish that the protected activity and adverse employment action were causally connected.

Even if the plaintiff had complained to the decisionmakers, he could not show that their justification for the employment actions was pretext for unlawful discrimination or retaliation: “FPI provided legitimate reasons for its adverse employment decisions. The company maintains that it demoted [him] because he behaved inappropriately toward a temporary worker, failed to comply with timekeeping policies, and exhibited poor leadership skills.”

He does not dispute that he routinely failed to comply with company timekeeping policies and, on one occasion, left members of his team to handle a production crisis. Instead, [he] contends that his less-than-exemplary record did not justify the company’s decision to demote him. But as the district court correctly held, [he] cannot prove pretext by arguing that he thinks FPI made the wrong choice. . . . Instead, [he] was required to show that FPI’s “reasons [were] false [and] that retaliation was the real reason for the adverse action.” . . .

Moreover, [he] presented no evidence at the summary judgment stage or on appeal to rebut FPI’s stated reasons for his furlough and termination. To the contrary, [he] concedes that he was not the only person in his department who was furloughed, or whose position was eliminated to save costs in the aftermath of the COVID-19 pandemic.

                . . ..

[He] failed to establish that unlawful discrimination motivated FPI’s decision to demote, furlough, and fire him.  . . .  As explained above, it is undisputed that [he] regularly failed to clock in and out, and that he left his team after a major production issue. His argument that those errors did not warrant demoting him are insufficient to establish pretext. And [he] did not provide any evidence suggesting that FPI used the COVID-19 pandemic as a cover-up for discrimination when it furloughed and fired him.

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.

Unemployment Compensation Claims Can Be Tricky

Last month, two Ohio Courts of Appeals affirmed the denial of unemployment compensation.  In one, the Court agreed that the claimant had been fired without just cause on her part due to a physical impairment and failure of the employer to discuss or explore possible reasonable accommodations.  However, she was denied compensation because she had improperly restricted her job search to work-from-home positions, thus making herself unavailable for suitable work, including from employers who might have accommodated her temporary impairment.  Hines v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-4066.    In the second, claimant was fired for refusing the COVID vaccine on religious grounds and the hearing officer found her pro-life views – articulated for the first time in the hearing – were not sincere.  Cyriaque v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-4203.

According to the court's opinion, in the first case, the claimant had been working in her clerical position from home for 14 months when the employer announced that it wanted her to return to the office.  She did so for several months until she was diagnosed with a temporary medical condition (which required surgery) and her physician provided a note requesting that she work from home until a treatment plan was developed.  She proceeded to work from home after providing the note to her employer, but was fired for being absent after only one day of working from home.  The employer apparently made no effort to discuss or explore accommodations with her.  She applied for unemployment compensation, but restricted her job search to remote positions because of her medical restriction.  The ODJFS found that she had been terminated without just cause, but denied compensation because she was not able and available for suitable work by restricting her job search to remote positions.

During the hearing, the Claimant explained that she suffered from a temporary condition that will be corrected by surgery.  She was only applying for remote positions and was physically capable of working full-time.   After the denial of benefits was affirmed on appeal, she finally retained an attorney to appeal the decision to court.

The Court explained that to be entitled to unemployment compensation, the claimant must be both physically able and readily available for suitable work:

R.C. 4141.29 governs an individual’s eligibility and qualifications for unemployment benefits due to involuntary employment. Relevant to the appeal, no individual is entitled to benefits for any week unless the individual “[i]s able to work and available for suitable work.” R.C. 4141.29(A)(4)(a)(i).

“One can be able to work but unavailable” . . . .  By definition, the phrase “able to work” means “physical capability to work,” while “available for work” means “readiness to work.”  . . .  “To be available for work within the meaning of the statute, one must be ready, willing, and waiting to accept suitable employment, and must be exposed to the labor market.”

                . . .

[Her] restriction that she only works from home due to her medical condition is too prohibitive and an undue barrier which prevents her from working in all forms of suitable employment. That barrier has not been lifted as [she] is still under the restriction that she works from home until she has surgery. Under the circumstances, this Hearing Officer finds [she] is not available for work and is ineligible for benefits [for] the period beginning September 18, 2022. [She] remains ineligible for benefits until she can show she is available for work without restriction and otherwise eligible for benefits . . .

The Claimant argued that the Commission had improperly created a rule against limiting job searches to remote positions in violation of the statute “because it did not consider the factors listed in R.C. 4141.29(F) in determining whether work-from-home positions were the only suitable work for her based on her medical condition.”  The Court disagreed:

R.C. 4141.29(F) provides in pertinent part:

[I]n determining whether any work is suitable for a claimant in the administration of this chapter, the director * * * shall consider the degree of risk to the claimant’s health, safety, and morals, the individual’s physical fitness for the work, the individual’s prior training and experience, the length of the individual’s unemployment, the distance of the available work from the individual’s residence, and the individual’s prospects for obtaining local work.

The Court found that “the section only requires the Commission to consider these factors in deciding whether “work is suitable for the claimant”; it does not require that the Commission affirmatively identify the factors or make specific findings regarding these factors.”  The Court also found that the hearing officer had considered and asked the claimant questions relevant to these factors:

The hearing officer asked [her] about her medical condition and what limitations it placed on her ability to work. She testified that her condition did not prevent her from physically being able to work because she was still able to move and type and perform her duties. (Record at p. 82.) She also explained that nothing would interfere with her ability to work full time during normal business hours, nor would her condition render her physically incapacitated for any specific day or time. Id. at p. 82, 85. In fact, she stated that if her condition “flared-up,” it was a “quick fix.” Id. at p. 85. [She] also stated that she is “not restricted” in her capability, but “temporarily unable to go into a physical facility with the proper bathroom facility” for her — “I am able to work. I’m not restricted as far as that goes.”

The Court refused to re-weigh the facts of the case and found the ODJFS had identified sufficient evidence to support its decision:  she “was obligated to be available for all jobs that might be suitable opportunities, including office jobs that could accommodate her considering her medical condition.”   “The fact that reasonable minds might reach different conclusions is not a basis for the reversal of the [Commission’s] decision.”

Her physician’s statement only indicated a need for a temporary accommodation, not a need to work from home indefinitely.  “These statements do not support [her] belief that she had to apply for only remote jobs; rather they support that [she] would need an accommodation.”   In limiting her job search to remote positions, she had improperly limited her job search.  The court agreed with similar prior decisions that “a claimant cannot unilaterally determine what work is suitable or not suitable, or self-impose limitations or conditions on suitable work when a claimant conducts her job search.”

[Her] temporary medical condition that requires an accommodation is separate from her availability for suitable work. Granted, it seems futile to have a claimant search for all areas of suitable employment and then seek an accommodation once employment is offered. However, it is possible that some employers may not advertise the possibility of remote or hybrid employment. . . . Limiting a job search to only work-from-home employment would exclude those precise opportunities or employers who offer accommodations to those individuals who require them.

Finally, this court further finds that the Commission’s decision did not create “a blanket rule” that anyone seeking only work-from-home jobs is not eligible for unemployment compensation benefits. Whether someone is available and seeking suitable work depends on the facts and circumstances of each case. . . . Accordingly, there can never be a bright-line test for when a person is determined to be “available” and what work will be deemed “suitable.” . . .  Accordingly, this court’s decision is limited to the specific facts, circumstances, and procedural posture of this particular case. This decision does not foreclosure the possibility that a claimant would be eligible for unemployment benefits when the claimant seeks and requires only work-from-home positions when the facts and situation warrant.

According to the court's opinion, in the second case, the claimant was terminated after refusing to be vaccinated on religious grounds (from Psalm 91).  When she appealed the denial of unemployment compensation, she and her pastor then articulated that the vaccines had been developed using aborted fetus cells, in violation of their pro-life beliefs.  The hearing officer affirmed the denial on the grounds that her religious objections were not sincere.    The claimant appealed. 

Beliefs grounded in religion are protected by the Free Exercise Clause to the United States Constitution, which grants special protection to the exercise of religion. Because of this protection, unemployment benefits cannot be denied from a terminated employee when the termination – whether initiated by the employer or the employee – is the result of the employee’s sincere religious beliefs that prevent her from complying with a condition of employment. In such a circumstance, the termination violates the Free Exercise Clause and is without just cause.

Whether an employee’s belief is sincere is a factual question.  In this case, the Court observed that the claimant and her pastor never mentioned their pro-life beliefs to the employer before she was fired.  She only refused the vaccination on the grounds that she was a Christian:

[Her] exemption request form  . . . did not include any reference to the use of cell lines obtained from aborted fetuses in the creation or testing of the Covid-19 vaccines. Likewise, neither of the two  . . . documents executed by her pastor and submitted to her employer along with her request form set forth any specific reference to the use of fetal cell lines in relation to the vaccines. Indeed, it was not until after her exemption request was denied, and shortly before the telephone hearing, that her pastor wrote the . . .  letter directly articulating the relationship between the vaccines and fetal cell lines and asserting that this relationship implicated the church’s opposition to abortion.

The hearing officer was entitled to assess the claimant’s credibility:  “This contrast between [her] statement provided to [her employer] and her hearing testimony provided support for the hearing officer’s finding that [her] exemption request was not premised upon her sincere religious opposition to the COVID-19 vaccines.”  The Court found that the hearing officer was not required to accept the sincerity of her beliefs simply because they were unrebutted. “In other words, merely reciting a claim of a religious belief does not establish the sincerity of that belief.”

The Court upheld the hearing officer’s exclusion of her pastor’s testimony because her attorney conceded that the pastor would not say anything beyond what was in the letter already admitted into evidence.  Although invited to do so, the attorney did not object and thus waived the objection.  It was not plain error to exclude testimony that would be duplicative of other evidence.

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.

Ohio Courts Rejected Wrongful Discharge Claims

Last week, two Ohio appellate courts rejected public policy discharge claims on the basis that sufficient criminal and other statutory penalties existed which rendered unnecessary any common law employment claims for retaliation.  Last week, a Paulding County appellate court affirmed the dismissal of the retaliation complaint of a discharged employee who had reported alleged illegal bribery of a government official because the statutes which were allegedly violated by the bribes contained sufficient criminal penalties which made it unnecessary to create or recognize a new common law wrongful discharge or retaliation claim in order to protect enforcement of the public policy.   On the same date, the Geauga County appellate court affirmed an employer’s summary judgment on the public policy claim because the plaintiff had not been employed at will and could only be terminated for cause or at the expiration of this contractual term.  Further, the plaintiff’s alleged report of scrap metal theft lacked merit when there was evidence that he had failed to follow up with the police when so directed and eventually retracted his allegation.  Finally, his claim failed because there were sufficient criminal and statutory penalties in place to deter theft without creating or recognizing a new common law claim for unlawful retaliatory discharge.

In the first case, the plaintiff alleged that he was fired in January 2020 in retaliation for reporting to his employer’s legal department in June 2019 and the HR department in November and again in December 2019 that a manager had bribed a township government official (with cases of beer and by paying $125K for work on the farm of that official’s parents) in order to obtain the official’s approval for a company construction project which that official had previously opposed.  Werkowski v. EDP Renewables N. Am., L.L.C., 2023-Ohio-4178.  The plaintiff apparently did not comply with Ohio’s whistleblower statute and, instead, brought a common law wrongful discharge claim.  The trial court dismissed the claim based solely on the complaint’s allegations on the grounds that no actionable public policy was jeopardized by the termination of the plaintiff’s employment.    Not every public policy is threatened or jeopardized by the retaliatory actions of an employer; sometimes there are other types of government remedies in place – including criminal penalties – which are sufficient to deter violations of that policy or statute without creating a new employment cause of action.

{¶7} “The jeopardy-element analysis generally involves inquiring into the existence of any alternative means of promoting the particular public policy to be vindicated by a wrongful-termination-in-violation-of-public-policy claim.” . . . “When the sole source of the public policy is a statutory scheme that provides rights and remedies for its breach * * *, we must consider whether those remedies are adequate to protect society’s interest as to the public policy.” Id. “It is less likely that a wrongful-termination-in-violation-of-public-policy claim is necessary” where the statutory scheme includes remedies for violations. Id.

{¶8} In this analysis, a distinction exists between public policies that “protect a particular government interest” and “public policies that protect substantial rights of the employee.” . . . . Where a governmental interest is at stake, “[t]he lack of a personal remedy in the statutory scheme does not jeopardize the policy because the remedies contained in the statute sufficiently protect society’s interest and discourage employers from engaging in the prohibited behavior.” Id. at ¶ 20. Thus, in deciding the jeopardy element, courts “must determine (1) whether the public policy underlying * * * [the statute] promotes society’s interests, protects substantive rights of employees or both, and (2) whether the remedies outlined in * * * [that statute] adequately protect such interests and/or rights.” . . .

             . . . . In this case, [the plaintiff] points to several statutes that prohibit bribery or racketeering in R.C. 2921.02, 18 U.S.C. 201, and 18 U.S.C. 1962 as establishing a clear public policy against official corruption. Assuming for the sake of analysis that these statutes satisfy the clarity element, the identified public policy would ultimately promote a governmental or societal interest and would not directly address the substantive rights of employees.  . . .

On appeal, [the plaintiff] argues that, in the absence of a personal remedy for employees who are terminated after reporting bribery schemes, the penalties in the identified statutes are “inadequate to protect the employees’ substantive rights.” . . .  However, the Ohio Supreme Court has concluded that the “lack of a personal remedy” does not, by itself, jeopardize a public policy where a governmental or societal interest is at stake. . . . . Under House, the issue is whether the existing “statutory remedies, which do not include a personal remedy for a dismissed employee, adequately discourage the employer’s wrongful conduct and are sufficient to protect society’s interests * * *.”

{¶11} In determining whether the public policy is adequately protected, the Ohio Supreme Court has considered the penalties imposed for violations of the statutory scheme and the existence of other statutory protections for employees. House, supra, at ¶ 17, 22. Turning to the case presently before us, the statutes identified by [the plaintiff] contain significant criminal penalties to deter the bribery of public officials. Further, the General Assembly has enacted other provisions to protect whistleblowers, but [the plaintiff] did not avail himself of these protections in this case.  .  . . . Assuming for the sake of this analysis that the provisions identified by [the plaintiff] satisfy the clarity element, we do not conclude that the existing statutory remedies would be inadequate to protect a public policy against official corruption pursuant to the reasoning in House,  . . . .

{¶12} While [the plaintiff’s] arguments are intriguing, the Ohio Supreme Court has held that the “lack of a personal remedy” does not jeopardize a public policy if the statutory scheme provides remedies that would be sufficient to protect the identified governmental or societal interest.

In the second case, the plaintiff had been terminated following a whistleblower complaint by a subordinate and investigation which revealed that he had obtained an interest free $50K personal loan from a contractor of the employer and had work performed on his vacation home by a different contractor of the employer.   Underwood v. Cuyahoga Community College, 2023-Ohio-4180.   He had apparently stopped using one of the contractors after repaying the loan and that contractor provided evidence against him.  He was in charge of managing both of those contractors and this presented an obvious conflict of interest in violation of various employer policies and state ethics laws.  He was not prosecuted because of the passage of the applicable statutes of limitations.  He was nonetheless fired and then filed suit. 

The plaintiff alleged that he was actually fired for reporting a subordinate for stealing scrap metal a few years earlier, but the evidence showed that he had failed to follow up with the police about the alleged theft and later retracted his allegation.  The court found that there was no clear public policy implicated by a retracted allegation.  The plaintiff attempted to argue that he had let it drop because the employer had dismissed his concerns.  He presented evidence about a lack of investigation into that situation or into free work by that employee on the home of the employer’s security chief.  Nonetheless, despite his allegations, the employer had renewed his annual employment contract after he retracted the allegations.    Interestingly, this subordinate was the same individual who had reported the plaintiff’s ethics violations.

Finally, as in the prior case, the Court found that the public policy against theft was sufficiently protected by criminal laws and there was no need to create or recognize a common law retaliation claim for reporting alleged theft.

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.

New and Shorter I-9 Form Must Be Used As of November 1

The U.S. Citizenship and Immigration Services office (CIS) of the Department of Homeland Security (DHS) announced over the summer revisions to the I-9 form which all employers must complete within three days after hiring any new employee. The CIS instructs that all employers begin using the new form for all new employees hired after November 1, 2023.

According the CIS, [a]mong the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS).” In order “[t]o participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.” The details for utilizing the alternative procedure are set out in the Federal Register.

The CIS also reports that in addition, ‘[t]he revised Form I-9: 

· Reduces Sections 1 and 2 to a single-sided sheet;

· Is designed to be a fillable form on tablets and mobile devices;

· Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;

· Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;

· Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;

· Reduces Form instructions from 15 pages to 8 pages; and

· Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.

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.