Sixth Circuit Affirms Dismissal of All But Two Claims of Religious Discrimination Based on COVID-19 Vaccine Mandate

Last month, the Sixth Circuit affirmed the dismissal of all but two claims filed by employees who claimed that the hospital employer’s initial blanket denial of their religious objections to the COVID-19 vaccine constituted religious discrimination in violation of Title VII and the Ohio Civil Rights Act.   Saval v. MetroHealth System, No. 23-3672 (6^th Cir. 3/20/24).   The employer had reversed its decision and ultimately granted all of the religious exemption requests.  Thus, the employees who remained employed never suffered any concrete injury to justify litigation from “conclusory” allegations of the emotional distress caused over 36 days while they were forced choose between their jobs and their religious convictions or from the employer’s ability to reverse course again in the future.  Several of the employees had resigned before the employer denied the exemption requests, and thus, also lacked any injury from the employer’s initial denial decision.  However, two employees could sue for disparate treatment and failure to accommodate when they resigned more than 18 days after their requests were denied even though the employer had granted some medical exemption requests. 

According to the Court’s opinion, in August 2021, the hospital announced that all employees needed to obtain the vaccine by the end of October unless they requested a valid medical or religious exemption.  The employer received hundreds of exemption requests and stayed the compliance deadline for those employees while it worked through each of the requests.  While the employer granted some medical exemption requests, it denied all of the religious exemption requests in February on the grounds that the employees could not perform their jobs remotely, no reasonable accommodation was available and it would be an undue hardship to the employer.   It gave the employees 45 days to comply, but 36 days later, abruptly changed course on March 15 and granted all of the exemption requests.   Nine employees resigned before that 36^th day and filed suit.  They were joined by 36 other employees who remained employed by the hospital.  The trial court granted the employer’s motion to dismiss for lack of standing (i.e., were still employed and suffered no injury from the temporary denial) and failure to state a claim.  The Court affirmed the dismissal for all but the first two plaintiffs who had resigned after their exemptions had been denied but before the hospital reversed its decision. 

The Court affirmed dismissal for lack of standing because 36 employees did not suffer any injury from the temporary denial of the exemption requests.  It rejected their claims of mental anguish from having to chose between their jobs and their religious beliefs and threat that the employer could reverse its decision again in the future.  The Court found their allegations of past distress to be too conclusory to be actionable and “fears about a future denial were ‘contingent on future events that may never come to pass, which is a much ‘too speculative’ state of affairs ‘to satisfy the well-established requirement that threatened injury must be ‘certainly impending.’”

The Court analyzed the allegations of the first nine employees to determine whether they stated valid claims for constructive discharge -- i.e., whether they were forced to resign.  Six of these nine could not establish constructive discharge because they had resigned before their exemption requests had been denied in February.  An additional employee’s claim was denied because she had never filed a formal exemption request.

The Court’s majority agreed that the first two plaintiffs stated valid claims for constructive discharge because they requested exemptions, those exemptions were denied, they were denied the right to appeal and they were given a date to comply or be fired.   The trial court had determined that they resigned prematurely (albeit more than halfway through the 45 day period), but the Court disagreed.

The Court also reversed the trial court that these plaintiffs failed to state a claim for religious discrimination: “Plaintiffs 1 and 2 allege [the employer] failed to accommodate their religious beliefs by blanket-denying their vaccine exemption requests. They also assert that [it] treated them differently because of their religion.”  The first two employees “just need to plausibly allege that they were denied a religious accommodation and treated differently because of their religion.”

Further, these two employees alleged a plausible claim of failure to accommodate.  “The heart of the failure-to-accommodate claim is that an employer discharges (or otherwise discriminates against) an employee for failing a job-related requirement instead of abiding by its “statutory obligation to make reasonable accommodation for the religious observances” of its employees.”

The Court also found that these two employees plausibly plead a disparate treatment case.  They “alleged that [the employer] categorically denied all religious exemption requests while granting some nonreligious exemption requests—that is, that [it] treated them differently with respect to a condition of employment because of their religion.”

In concurring, one judge questioned whether this was really a constructive discharge case when the employees had been told when they would be terminated and could have sought a preliminary injunction to prevent an unlawful job termination. 

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 Enforcement of Technically Deficient Investigatory Subpoena on Affiliate Employer Over Objections to Relevance and Burden

Last month, the Sixth Circuit affirmed enforcement of an EEOC investigatory subpoena served on an affiliate company of the Charging Party’s alleged employer.   EEOC v. Ferrellgas, LP, No. 23-1719 (6^th Cir. 3/26/24).  After addressing and rejecting a number of technical objections to service of the subpoena and alleged waiver of objections, the Court observed that the employer had not shown that the subpoena was unduly burdensome by merely describing the amount of time and effort to comply.  Proving undue burden is a comparative exercise and the employer failed to also explain how limited (or not) its resources were in light of the burden imposed.   The subpoena was also not overly broad because the Charging Party’s allegations touched on similar issues and the EEOC is given broad powers to investigate most employment-related issues. 

According to the Court’s opinion, the operating partnership, holding company and affiliate corporation all had similar names.  The Charge named the holding company as the employer, but the EEOC served its Request for Information (RFI) on the affiliate corporation.  HR and outside counsel responded to the RFI, provided some requested documents, objected to the RFI’s scope (but not to the addressee)  and did not identify which of the entities employed either of them.  The investigation continued for almost two years.  The EEOC then mailed a subpoena to outside counsel, who provided some responsive documents and objected to the scope of the subpoena, but did not challenge the addressee or manner of service.  The EEOC then sent another RFI to HR, but the only response was an objection that it should have been sent instead to outside counsel.   The EEOC then mailed a subpoena addressed to the corporate affiliate but sent to outside counsel, which objected not to the corporate addressee, but to the fact that it was overly broad, was unduly burdensome, was not sent by certified mail and was not signed.   The EEOC then sent the identical, but signed, subpoena by certified mail.  Without filing a formal objection with the EEOC, outside counsel reiterated its objection to the scope of the subpoena.  The EEOC then obtained enforcement of the subpoena from federal court against the operating partnership (not the named employer or corporate affiliate named in the subpoena) and this appeal ensued. 

The Court rejected the respondents’ objection to manner of service because it had already directed the EEOC several times to communicate only with outside counsel. “To hold otherwise would reward duplicity and allow potential defendants to easily avoid the Commission’s subpoenas. What is more, it would ‘create a rule that would allow a lawyer with actual notice of a subpoena to take no action, in hope that the [Commission] will not seek enforcement, and to make objections only if enforcement proceedings ensue.’”  In addition, “when ‘[a]ctual notice reached counsel promptly and counsel responded on the merits,’ service not in strict conformity with the  . . .  regulations does not preclude a district court’s enforcement of a  . . . subpoena.”

The Court agreed that the respondent raised a valid objection that the EEOC had served it with a subpoena whose response date pre-dated the service date (making compliance an impossibility) and identified an entity other than the employer identified in the Charge or even the entity named in the federal court enforcement action.  “[A]t a surface level, the Commission issued a subpoena with an invalid response date and now seeks court enforcement of that subpoena against an entity that was not, strictly speaking, the target of the subpoena itself.  These technical oversights are blameworthy, and the Commission should have rectified them well before this juncture.”   Nonetheless, the Court refused to “exalt form over substance” because the respondents had failed to raise any of these objections to the EEOC.   Moreover, one purpose of the EEOC’s investigatory process involves identifying the correct defendant employer.  Finally, the EEOC’s errors did not prevent the respondents from raising substantive objections to the subpoena to the EEOC, federal court or appellate court.

Similarly, while the Court agreed that EEOC regulations only gave the respondent 5 days to object to a subpoena, it refused to enforce that deadline here because service of the subpoena was not technically correct. “It is self-evident, [respondents] argues, that an employer’s obligation to exhaust its administrative remedies under § 161(1) and 29 C.F.R. § 1601.16(b)(1), if it exists at all, is contingent upon proper service of a subpoena that complies with the statute and its implementing regulations. This argument carries considerable logical force, and we find support for it in our caselaw.”

The Court rejected the employer’s argument that the subpoena was overly broad in seeking information about its hiring practices when the Charge was focused only on compensation and termination issues.    Courts do not strictly construe relevance against the EEOC “and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer.”  Moreover, in this case, the Charging Party had also made allegations about discriminatory statements made to her during her job interview and her initial job assignment, making inquiries into those matters relevant.  In addition,

The application and hiring information that the Commission seeks could cast light on whether [respondents] discriminated against other job applicants — in the same region and during the same timeframe as [Charging Party’s] employment — based on sex or race. In turn, that information might illuminate whether [it] discriminated against [her] on those same bases but in other employment contexts — i.e., in her pay and termination.

The Court also rejected the employer’s arguments that the subpoena was unduly burdensome.   

“[W]hether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them.”  . . .  Given its “fact-intensive” nature, the burdensomeness inquiry is “generally not amenable to broad per se rules.”  . . . . The employer bears the obligation to show that compliance would impose an undue burden.

First, the respondent only provided an unsigned and undated declaration, which is not valid evidence in any legal proceeding.   In any event, the argument was unpersuasive because it only described the amount of effort that would be required to respond and did not also describe the respondent’s available resources.  The respondent

“fails to explain why they represent an undue burden. Assessing whether the burden of compliance is undue is a comparative exercise; what is unduly burdensome to a small business with a handful of employees may not be unduly burdensome to a Fortune 500 company. . . . While [its] figures provide an estimate of the burden it might face, [it] offers up no baseline against which we can compare its estimates to decide whether the burden it faces is undue. Merely pointing out that compliance with the subpoena will divert employee attention from ordinary tasks is insufficient — if that were enough, then nearly every EEOC subpoena would fail. We are not blind to the fact that compliance with the Commission’s subpoena will require significant time and effort, but without some metric of how significant that time and effort is, we cannot find that an employer has met its burden to show that compliance would be unduly burdensome.

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.

FCRA Preempts Employee's Defamation and Tortious Interference Claims Against Employer Who Gave Negative Reference to Consumer Reporting Agency

On Tuesday, the Sixth Circuit affirmed an employer’s summary judgment on a defamation and tortious interference claim brought by a former employee who claimed that he had been defamed and prevented from obtaining new employment based on a negative job reference that the defendant employer provided to a consumer reporting agency.   McKenna v. Dillon Transp. LLC, No. 23-5568 (6^th Cir. 4/2/24).  The Court agreed that the plaintiff’s state law claims were pre-empted by the Fair Credit Reporting Act.   The Court rejected the plaintiff’s argument that a similar federal statute governing employment/safety references of commercial drivers provided liability for his claims because it did not specifically pre-empt the FCRA and was compatible with it. 

According to the Court’s opinion, the defendant employer provided information to a consumer reporting agency about the plaintiff after he was fired following an accident in which his tractor trailer overturned.  The agency provides information about drivers to employers who inquire about hiring that driver, but there was no evidence that anyone had ever inquired about the plaintiff.  The plaintiff then sued the employer for defamation and tortious interference, blaming its report for his inability to find another job.  The trial court granted summary judgment to the employer on the grounds that state law claims were preempted by the FCRA.

The Court observed that it had previously held that § 1681t(b)(1)(F)of the FCRA “preempts state common law claims involving a furnisher’s reporting of information to consumer reporting agencies.”  The plaintiff argued that a different federal statute applied.  The DOT requires employers to investigate a driver’s safety record before hiring and the governing statute likewise pre-empts state laws that impose liability upon employers for providing such information.  However, unlike the FCRA, the transportation statute does not exempt employers who knowingly provide false information about a driver’s safety record.

The Court rejected the plaintiff’s argument on a number of grounds.  First, there was no evidence that any employer had requested information about his safety record, which would be necessary to implicate this statute.  Second, it was questionable whether the defendant employer’s statements were “knowingly” false, rather than merely negligently false.   Finally, the Court did not find the transportation statute to necessarily repeal or be inconsistent with the FCRA.  “The two preemption statutes here complement each other, so they can coexist.”

15 U.S.C. § 1681t stops states from regulating false reports to consumer reporting agencies, including agencies that provide background checks. 49 U.S.C. § 508 blocks specific causes of action against those who answer a motor carrier’s request for employment information. One regulates the consumer reporting industry. Another regulates the hiring of commercial drivers. The statutes have different textual purposes and scopes, and neither swallows the other. Communications between motor carriers about driver applicants would only fall under § 508. And only 15 U.S.C. § 1681t would cover cases without a request for records or an individual under consideration for employment. That the FCRA is a more general law that covers more conduct than 49 U.S.C. § 508 doesn’t change this. Greater specificity only matters if two complementary acts cannot be implemented at the same time. . . .  And the statutes do not conflict—one simply provides more protection for companies in Dillon’s position. So we give both statutes full effect rather than resorting to the specific-general canon. Dillon can invoke one preemption clause even if it cannot invoke the other.

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 of Appeal Refused Enforcement of Arbitration Clauses

Last month, two Ohio Courts of Appeal ruled against employers attempting to enforce arbitration clauses.   In the first, the Court affirmed the denial of a motion to compel arbitration and held that the trial court was not required to hold a jury trial on the enforceability of the clause.  Costin v. Midwest Vision Partners LLC, 2024-Ohio-463.  The parties had amended the plaintiff’s employment agreement upon his termination of employment and specified which clauses of his former agreement would survive termination of his employment.  The arbitration clause was not one of the provisions that the amended agreement listed as surviving his employment termination. Accordingly, the trial court could grant summary judgment on that issue.   In the second case, the Court reversed and remanded the dispute where the plaintiff’s age discrimination claim had been stayed pending arbitration because the trial court had failed to consider the plaintiff’s argument that the "loser pays" provision of the arbitration clause was unconscionable, contrary to public policy and unenforceable.   Grimm v. Professional Dental Alliance, LLC, 2024-Ohio-637. 

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 Finds Excellent Customer Service Requirements Doom ADA Claim

 

Last month, the Sixth Circuit affirmed an employer’s summary judgment on claims for disability discrimination and failure to accommodate when, after several options failed, it transferred the plaintiff delivery driver to an open overnight warehouse non-customer facing position after receiving repeated complaints about the plaintiff’s profane and racists outbursts caused by his disability.  Cooper v. Dolgencorp, LLC, No.  23-5397 (6^th Cir. Feb. 15, 2024).   The Court noted that the plaintiff stipulated that excellent customer service was an essential job function and that the plaintiff’s own physician indicated that he required an accommodation (i.e., a constant co-worker to handle the customer serving functions on his route).  The Court noted that “the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts.” Further, the plaintiff could not identify any open delivery positions which did not require excellent customer service.   Finally, the Court rejected his constructive discharge claim because the employer tried most of his accommodation requests, including medical leave, a seasonal driver-helper and was not deliberately indifferent.  “Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,” . . . that is not the case here.”

According to the Court’s opinion, the plaintiff delivery driver would regularly exhibit ticks and utter profane sexist and racist outbursts while delivery cola and setting up displays inside customer stores.  This lead to complaints about him from the customers and their customers and employees.   His job description required that he provide excellent customer service.   The plaintiff was granted several medical leaves to adjust his medication and to attempt different therapies.  He was also provided with a seasonal helper who could handle the customer-facing roles, but there were still complaints.  His physician indicated that he required a helper in order to perform his customer-facing duties.  Although the plaintiff requested to be transferred to other routes without customer facing duties, there were no vacancies in those routes and one had changed from non-customer facing to customer facing.  As a result, he was offered a vacant overnight warehouse position (with a cut in pay) where he would not have to interact and offend customers.   After working there for a few months, he resigned -- indicating that there were no hard feelings -- because he found another delivery driver job with customer-facing duties where the customers were not offended.    He then filed suit alleging that his warehouse transfer was discriminatory, that he could perform his job without a reasonable accommodation, and that he was constructively discharged. 

The Court agreed that excellent customer service was an essential job function.  First, it was noted in his job description.  Second, the plaintiff stipulated that excellent customer service was an essential job function.

A reasonable jury could not find that [the plaintiff] could provide excellent customer service to [the employer’s] customers in his role as a delivery merchandiser without an accommodation. Of particular importance, [his] own doctor noted that [he] needed an accommodation to perform his job duties. When a plaintiff’s own doctor—not merely the defendant employer— concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation .  . .  [His] disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of [the employer’s] customers. At various times during his employment, [its] customers complained about the language he used while delivering [its]  products. In fact, [he] acknowledges many of the customer complaints made against him in his amended complaint.

His need for a reasonable accommodation was further demonstrated by the medical leaves that he took and his request for a helper to handle the customer-facing aspects of his duties.

The Court rejected his argument that his comments were generally indecipherable because enough of them had been understood by complaining customers.  The Court also rejected his argument that his involuntary sexist and racist comments were not frequent enough to justify the transfer, thus creating

 

a factual dispute remains about the number of complaints customers made against him. It is undisputed, however, that [he] offended [the employer’s] customers at least twice with his use of racist and profane language, and the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts. The specific number of complaints made against [him] is also immaterial because [he] contends that his verbal tics using inappropriate language remained consistent throughout his employment.

The Court also rejected his failure to accommodate claim. The plaintiff failed to identify any open delivery routes without customer facing duties.  While he contended that the Dollywood route had been non-customer facing when he previously drove it, he produced no evidence to dispute that the customer’s system had since changed, making it also a customer-facing route.

“Where the requested accommodation is a job transfer, ‘employers have a duty to locate suitable positions for’ employees with disabilities.”  . . . Still, “this duty does not require employers ‘to create new jobs [or] displace existing employees from their positions . . . to accommodate a disabled individual.’”  . . .  Nor does a reasonable accommodation require employers to eliminate or reallocate an essential job function.  . . . A “reasonable accommodation” under the ADA can include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

                         . . . .

However, “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”  . . .. And as we explained above, [he] could not perform the delivery merchandiser position without an accommodation, and he failed to propose an objectively reasonable accommodation. Thus, [the employer’s] accommodation, via transfer to a warehouse position, was reasonable.

Finally, the Court rejected his constructive discharge claim.

To establish a claim for constructive discharge, a plaintiff must prove: (1) the employer deliberately created working conditions that a reasonable person would perceive as intolerable, (2) the employer did so to force the employee to quit, and (3) the employee quit.  . . . . Constructive[1]discharge claims require courts to examine “both the employer’s intent and the employee’s objective feelings.”  . . .  [His] claim fails at the second element—he cannot show that [his employer] deliberately created intolerable working conditions with the intention of forcing him to quit.

Each time [he] requested an accommodation from [his employer], the company provided one. For example, after the incident at the Dollar General store in early 2018, [it] adjusted [his] route so that he would not have to service Dollar General stores. And after Cooper submitted a request to be put on a truck with another driver in August 2018, [it] temporarily allowed him to work as a driver helper. Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,”  . . . that is not the case here.

In fact, [he] admits [it] provided him with the warehouse position as an accommodation. Of course, he preferred a different accommodation. But the evidence demonstrates that [it] offered [him] a vacant position that was as close as [it] could get to his delivery merchandiser job. What is more, [he] admitted that when he resigned, he told his supervisor that he held nothing against [the employer].

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.