Sixth Circuit

| Mar 18, 2008 | Firm News |

White v. Wyndham Vacation Ownership, Inc., No. 09-5626 (6th Cir. Aug. 11, 2010). Panel: McKEAGUE, Polster [CLAY, dissenting]. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee judicially estopped from pursuing claim where she failed to list it in her Chapter 13 bankruptcy, knew about the claim and had filed Title VII EEOC charge before filing the bankruptcy petition, she and her attorney had not previously attempted to correct the petition and only sought to do so when the defendant filed a motion to dismiss the Title VII action, and attorney’s alleged mistake in failing to include it in the original petition does not excuse omission.

Spees v. James Marin, Inc., No. 09-5839 (6th Cir. Aug. 10, 2010). Panel: COLE, Gilman [SUHRHEINRICH, concurring in the judgment]. Claim on Appeal: 1. Title VII (pregnancy) and ADA termination. 2. Title VII (pregnancy) and ADA reassignment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. affirmed [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. Employee transferred from welding duties to tool room when employer discovered she was pregnant, with managers expressing “concerns” and saying the transfer made “common sense.”. District court erred by analyzing case as a “determining factor”/single-motive case, instead of a “motivating factor”/mixed-motive case; it was enough for plaintiff to show that she suffered an adverse employment action and that the action was at least partly motivated by the pregnancy. Genuine issue of material fact about “adverse employment action”: tool-room transfer can be seen as a demotion (no evidence that a tool-room position required any specific training or skill, plaintiff was unchallenged by her tool-room position, testifying that she found it to be ‘more boring’ than welding, assigned to the night shift that adversely affected her ability to raise her daughter as a single mother). Also genuine issue about whether tool-room position was a more pleasant working environment. Also, evidence of employer’s motive: “evidence is sufficient to raise a genuine issue of material fact as to whether JMI management, rather than undertaking an objective evaluation to determine whether Spees could perform her welding job while pregnant, instead subjectively viewed Spees’s pregnancy as rendering her unable to weld.” Asserted safety considerations run afoul of International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991). Same claim also presented genuine issue of material fact about “regarded as” liability under ADA. Manager testified that because Spees had experienced “complications with other pregnancies before,” i.e., miscarriage, he thought that she should not be working, and he had “concerns about her being around the chemicals, the welding smoke, [and] climbing around on some of the jobs”; testimony constitutes evidence that manger perceived Spees as having an impairment. Evidence supports the conclusion that company thought employee was limited in “a class of jobs.” She was viewed as being unable to weld in any capacity, thereby precluding her from employing the skills that she had acquired, and also that she was limited to only light-duty work. 2. Termination was based on letter from plaintiff’s doctor placing her on bedrest from any work (including light duty), and the expiration of her medical leave. l

Spengler v. Worthington Cylinders, __ F.3d ___, 109 FEP 1526 (6th Cir. July 27, 2010). Panel: CLAY,
Siler, Moore. Claim on Appeal: ADEA and Ohio state law retaliation. Disposition Below: Judgment after a jury trial ($43,888 lost wages and liquidated damages) [plaintiff]]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Failure to check “retaliation” box did not mean that employee failed to conduct administrative pre-condition to suit. Narrative set forth facts that he was being punished supposedly for complaining about age discrimination. Failure to specifically mention retaliation on complaint did not forfeit claim; complaint set forth sufficient facts to make out prims facie case and stated that defendant “willfully discriminated against [him] due to his age and his complaints regarding age discrimination.” There was sufficient evidence of pretext to support judgment, e.g., evidence that proffered reason (12 month up-or-out rule for seasonal employees) was discretionary and unevenly applied, and there was no slowdown of work otherwise, plus evidence that manager’s attitude toward employee darkened immediately when he learned that plaintiff complained about age discrimination, and he was fired a few weeks later. There was also evidence that the employee previously had a good record and was regarded as one of the best seasonal workers. Award of back pay affirmed; jury not required to credit argument that employee would have been terminated anyway as a result of 12-month rule. Liquidated damages supported by testimony that the decision maker knew that it was unlawful to retaliate against an employee for making an age discrimination complaint.

Bowers v. Wynne, — F.3d —-, 109 FEP 1387, 23 A.D. Cases 716 (6th Cir. July 21, 2010). Panel: BELL, Siler [ROGERS, concurring]. Claim on Appeal: Title VII (sex) ADA disability discrimination and retaliation. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Air Reserve Technician claims barred by doctrine of Feres v. United States, by which military personnel are barred from pursuing claims against the government under the Federal Tort Claims Act for injuries that arose out of activity incident to service.

Lowe v. Hamilton County Dep’t of Job & Family Services, 610 F.3d 321, 23 A.D. Cases 609 (6th Cir. 2010). Panel: COLE, Gilman [SUHRHEINRICH, concurring in the judgment]. Claim on Appeal: ADA disability discrimination and retaliation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Panel affirms that Eleventh Amendment immunity did not apply simply because the state might ultimately indemnify the department. County agency concedes that it will pay directly any judgment awarded to plaintiff. Although it contends that the state will reimburse it for any such damages because plaintiff’s primary job duties were to help administer state and federal benefits programs and her wages were funded largely through a system of state and federal reimbursement. But it misconstrues the relevant inquiry, which is whether the state is potentially legally liable for a judgment against the entity seeking immunity, not whether the state or another party is obligated to reimburse or indemnify the entity for damages incurred. Panel rejects defendant’s argument that two provisions of state law (Ohio Rev. Code §§ 5101.16 and 5101.161) required the state to cover any damage award because plaintiff was engaged in work subsidized through the state treasury. Panel concludes that the other factors that might support a finding of immunity were also lacking: the relevant state statutes designated the department as a local entity, controlled by the county board of commissioner; the leadership of the department was appointed by the county board of commissioners, and the entity’s functions (to issue federal benefits) were carried out locally.

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 109 FEP 1204 (6th Cir. 2010). Panel: DAUGHTREY, Gilman, Sutton. Claim on Appeal:  1. Title VII harassment (religion and national origin). 2. Title VII retaliation. 3. Title VII termination (religion and national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Harassment claim – based on various comments made by co-workers, including calling him “boy” – had not been “administratively exhausted” by a timely charge with the EEOC. EEOC charge did not assert a claim of hostile work environment, and he cited only discrete acts of alleged discrimination, limited to There or four isolated comments by his peers that occurred over a There-year period. In order to establish a claim of hostile work environment, however, a plaintiff must present evidence of harassment that “unreasonably interfer[es] with [his] work performance and creat[es] an objectively intimidating, hostile, or offensive work environment.” Such evidence, cited in an EEOC charge to support a claim of disparate treatment, will not also support a subsequent, uncharged claim of hostile work environment “unless the allegations in the complaint can be reasonably inferred from the facts alleged in the charge.” 2. Failure to check the “retaliation” box or to allege a retaliatory motive failed to administratively preserve claim. 3. Decision to terminate not shown to be related to disparaging remarks made by flight instructor and first officer. No evidence that other pilots who held the rank of captain were treated more favorably than plaintiff.

EEOC v. Hosanna-Tabor Evangelical Lutheran Church and school, 597 F.3d 769, 22 A.D. Cases 1697 (6th Cir. 2010). Panel: CLAY, Guy [WHITE, concurring]. Claim on Appeal: ADA termination and retaliation. Disposition Below: Dismissed on subject matter jurisdiction grounds, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Church school allegedly fired teacher with narcolepsy because she Threatened to take legal action. ADA religious exemption, 42 U.S.C. § 12113(d), did not apply to the present case because the claim did not involve a partiality for employees of the same faith. First Amendment implies a safe harbor for places of worship to make employment decisions about staff free from judicial intrusion. “For the ministerial exception to bar an employment discrimination claim, two factors must be present: (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee.” The panel finds that the defendant failed to make out a case for factor (2). Staff who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception. District court erred in taking too literally the church’s bestowal of a “ministry” on its teachers. Title of commissioned minister does not transform the primary duties of these teachers from secular in nature to religious in nature. Record also establishes minimal intrusion on the church governance. Although church claimed teacher was fired because she violating church teaching by not engaging in internal dispute resolution, teacher’s claim “would not require the court to analyze any church doctrine; rather a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”.

Harris v. Metropolitan Government of Nashville and Davidson Co., TN, 594 F.3d 476, 108 FEP 925 (6th Cir. 2010). Panel: GUY, Ryan, Griffin. Claim on Appeal: ADEA appointment and retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee could not raise genuine issue of material fact about pretext, where employer stated in a letter multiple reasons for not reappointing plaintiff to coach high school basketball (having inappropriate personal conversations with players, cutting a player with superior performance, too many losses). Despite that plaintiff disputes the substance of these complaints, there is no evidence that employer did not honestly believe them. Adding a fourth reason after the letter (public display of disrespect during track meet) was not an instance of “shifting explanations.”.

schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 108 FEP 695 (6th Cir. 2010). Panel: SUHRHEINRICH, Sutton, Cook. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present prima facie case. In a RIF, under circuit law, because work force reduction is a given, the employee must proffer addition al direct, circumstantial or statistical evidence of a discriminatory motive. Skalka v. Fernald Envtl. Restoration Mgt. Co., 178 F.3d 414 (6th Cir. 1999), which suggested that proof that younger people were retrained in RIF meets fourth element of prima facie case, rejected as dicta. Plaintiff was not replaced, and cannot show that she had superior qualifications to younger employees who were retrained. Panel also rejects very small sample for statistical evidence, supposed evidence that manager deviated from layoff criteria, and supposed pretext evidence. In the alternative, summary judgment may be affirmed because there was no evidence that low productivity in inability to get along with co-workers was not the legitimate reason for her selection for RIF. Alleged inconsistencies in explanation for termination not probative, where other explanations offered by defense witnesses were non-decision makers. Subjective reasons for termination may still be valid if not shown to be a mask for illegal reasons.

Risch v. Royal Oak Police Dept., 581 F.3d 383, 107 FEP 449 (6th Cir. 2009). Panel: MOORE, Siler [GRIFFIN, dissenting]. Claim on Appeal: Title VII promotion (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Female police officer was the second or third-ranked for promotion, but passed over on multiple occasions by men ranked below her. The department offered, as its non-discriminatory reasons, that it promoted by “service and performance as demonstrated by [candidates’] performance evaluations, test scores, initiative and leadership qualities” and that plaintiff was not among those he promoted “because the other officers in the eligibility list had better test scores, better performance evaluations and demonstrated more initiative and leadership qualities than [plaintiff].” On the final year failure to promote, in 2005, the only timely claim she had, plaintiff presented genuine issue of material fact about pretext. In addition to superior ranking and pattern of being passed over by men, record indicates that male officers frequently made degrading comments regarding the capabilities of female officers, expressed the view that female officers would never be promoted to command positions, and made generally degrading remarks about women, including (1) “the chief [will] never have a female on the command staff”; (2)”[n]one of you [female officers] will ever go anywhere . . . .”; and (3) a “majority” of male officers told Risch that women do not belong in the police force.

Chen v. Dow Chemical Co., 580 F.3d 394, 107 FEP 272 (6th Cir. 2009). Panel: MARTIN, Kethledge, Watson. Claim on Appeal: Title VII termination (race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: No genuine issue of material fact on pretext, where evidence company had about plaintiff’s sub-par performance and failure to get along with co-workers was not subject to doubt, even if decision to fire employee may have been in germinal stage months before it was revealed to the plaintiff.

Geiger v. Tower Automotive, 579 F.3d 614, 107 FEP 285 (6th Cir. 2009). Panel: GIBBONS, Kennedy [ROGERS, concurring in the judgment]. Claim on Appeal:  ADEA and Mich. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Plaintiff failed to make out prima facie case. No evidence that remark (that company thought employee was retiring and position should be filled by a younger man) not made by decision-maker or reasonably close in time to termination, hence not direct evidence. Using indirect method, employee was required in RIF case to present other evidence of indicating he was singled out because of age. Comment by manager that firing plaintiff might stir up age discrimination lawsuit, manager memo that employer was “doomed,” duties shifted to younger employees, possible error in assessing employee as lay-off candidate did not tend to show that age was a factor. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), did not abolish use of McDonnell Douglas inferences.

Pedreira v. Kentucky Baptist Homes for Children, Inc., 579 F.3d 722, 107 FEP 12 (6th Cir 2009). Panel: GIBBONS, Clay, Greer. Claim on Appeal:  Title VII and Ky. state law termination and hiring (religion). First Amendment claim (not discussed here). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Home for abused children avowedly refused to employ gays and lesbians. One plaintiff who did not apply to work for defendant suffered no injury as a mere by-stander to the policy. Second plaintiff’s claim (brought under the Kentucky statute alone) fails as “[im]plausible” under the Bell Atlantic v. Twombly, 550 U.S. 544 (2007), standard; plaintiff did not allege any particulars about her religion that would allow inference that she was discriminated against on account of her religion, or more particularly, her religious differences with employer. Furthermore, she did not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, this was not alleged in this case.

Courie v. Alcoa Wheel & Forged Prod., 577 F.3d 625, 107 FEP 20 (6th Cir. 2009). Panel: MARTIN, Suhrheinrich, Gibbons. Claim on Appeal:  Ohio state law breach of CBA/DFR (reverse discrimination). LMRA and state law claims (not discussed here). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal:  Affirmed [defendant]. GroundsAshcroft v. Iqbal, 129 S. Ct. 1955 (2009), applies to civil rights cases. No “adverse action” in settling grievance involving plaintiff allegedly referring to a co-worker as “jew boy,” where resolution had effect of removing disciplinary action from the plaintiff’s employment record.

Upshaw v. Ford Motor Co.,576 F.3d 576, 106 FEP 1697 (6th Cir. 2009). Panel: COLE, Sutton[BATCHELDER, dissenting in part]. Claim on Appeal:  1. Title VII and Ohio law termination (sex, race). 2. Title VII and Ohio law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff successfully established prima facie case, showing that (1) although she did not meet “excellent plus” rating requirement, company allowed male candidate with lower ratings to get promotions; and (2) two similarly situated men were promoted ahead of her. But employer provided valid, non-discriminatory reason (it was an oversight, i.e., manager misread the mens’ ratings when promotions were made), and employee failed as a matter of law to show men were intentionally recommended for an “outside guidelines” promotion.2. Plaintiff filed seriatim EEOC charges over a multi-year period, and company over the same period investigated her performance with increased scrutiny. Plaintiff made out prima facie case; while termination occurred 19 months after first charge, temporal proximity shown by record that her managers began developing a timeline of her employment in fall 2003, at the beginning of the process, and that they requested that other employees submit information about plaintiff’s complaints to HR. Heightened scrutiny evidenced by December 6, 2004 email between employees stating: “I would like to talk to you about this. I would assume that this is the type of documentation that you are interested in with regards to Upshaw. It seems to me that everyone has problems dealing with Upshaw. Something needs to be done with her, or we will have good people leaving, and we will still be dealing with her.” Plaintiff raised a genuine issue of material fact as to whether employer’s proffered reasons for her termination were contrived following her many EEOC charges and the filing of this lawsuit. She established that two of the four proffered reasons for terminating her – safety violations and her failure to timely resolve union health and safety complaint s- do not typically warrant any formal discipline, let alone termination. Plaintiff painstakingly established for violations that employer’s evidence was scanty and tainted. Exclusion of employee’s entire affidavit, though erroneous, was harmless error because it was cumulative of plaintiff’s deposition testimony.

Alexander v. CareSource,576 F.3d 551, 106 FEP 1710 (6th Cir. 2009). Panel: LAWSON, Batchelder, Cole. Claim on Appeal:  Title VII and Ohio state law hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: District court did not err in striking exhibits from opposition to summary judgment. Plaintiff’s EEOC charge was inadmissible as evidence that the plaintiff had superior qualifications, as the charge lacked supporting facts and was conclusory. Deposition excerpts not authenticated without the reporter’s signature page attached (although defendant did not object to this omission). The unauthenticated documents (letters, e-mails, resume) are, likewise, held properly excluded by the district court. The Ohio Civil Rights Commission’s “probable cause” finding, although admissible under Fed. R. Evid. 803(8) (as a report of a public agency), deserves no weight according to the panel because the agency had no addition al evidence before it. Without evidence in the record that plaintiff’s qualifications were equal to or better than the white candidates, or that she was treated more harshly in her interview, she not make out prima facie case.

Milholland v. Sumner County Bd. of Educ.,569 F.3d 562, 22 A.D. Cases 6 (6th Cir. 2009). Panel: ROGERS, Guy, Griffin. Claim on Appeal:  ADA transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: ADAAA not retroactive. Under pre-amended ADA, despite employer’s awareness that employee had arthritis, employee had not discussed details of illness and there was no evidence that the employer believed her to impaired or substantially limited in a major life activity (i.e., broad class of jobs).

Reed v. Int’l Union, UAW, 569 F.3d 576 (6th Cir. 2009). Panel: BATCHELDER [GUY, concurring in the result] [MCKEAGUE, dissenting]. Claims on Appeal: Title VII religious accommodation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who, as a result of religious objections, paid union fee into charitable fund did not establish prima facie case of reasonable accommodation. He did not suffer discharge, discipline or other materially adverse action as a result of the alternative payment. Employee expressly waived any reliance on disparate treatment theory.

Thompson v. No.. American Stainless, LP, 567 F.3d 804, 106 FEP 639 (6th Cir. 2009). Panel: GRIFFIN, Boggs, Batchelder, Gilman, Gibbons, Sutton, Cook, McKeague, Kethledge [ROGERS, concurring in the judgment] [MARTIN, Daughtrey, Cole, Clay, White, dissenting] [WHITE, Daughtrey, dissenting]. Claims on Appeal: Title VII retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who suffers adverse action because of association with person who engages in protected activity under 42 U.S.C. § 2000e-3(a) does not have direct cause of action against employer for retaliation.

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 106 FEP 422 (6th Cir. 2009). Panel: MCKEAGUE, Gibbons, Shadur. Claims on Appeal: Title VII and Ohio state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee presented genuine issues of material fact on each element of her claim. Most of complained-of verbal harassment was explicitly sexual and patently degrading of women. Some was directed at employee (e.g., “heifer” with “milking udders”) but most was directed at women in general (epithets like bitches, whores, sluts, dykes, cunts; distribution and display of pornography, explicit sexual conversations). Even though men and women were equally exposed to conduct, women would suffer disproportionately in that environment. Given direction of misconduct, behavior could not be considered “equal opportunity.” District court erred in focusing on motives of employees rather than effect on victim. Concerning “severe or pervasive,” although it is relevant to determination whether behavior was directed at employee, here record shows that it was “practically impossible” for employee to avoid exposure. District court erred in holding that employee had to find harassment was both objectively and subjectively severe or pervasive; correct standard is whether harassment is objectively hostile and subjectively severe or pervasive. Totality of record established that behavior was objectively hostile. Employee presented genuine issue of material fact whether she was subjectively offended: although she was able to perform job, she testified that she was horrified by behavior and left crying every day…. Regarding imputation of liability to employer, district court might have been justified in granting summary judgment on supervisory harassment theory, because under Faragher/Ellerth, employee conceded existence of anti-harassment policy and she failed to avail herself of several avenues to complain about harassment, supposedly for fear of repercussions. But employee presented genuine issue on co-worker harassment, where employee had lodged several complaints with supervisor who had also observed incidents first-hand. Employee presented conflicting testimony about whether supervisor took meaningful steps to terminate harassment.

Cobbins v. Tennessee Dep’t of Transp., 566 F.3d 582 (6th Cir. 2009). Panel: MERRITT, Moore, Cole. Claims on Appeal: Title VII promotion (race). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion by excluding at trial the promotion application of the successful white candidate. Application was likely not hearsay at all, because it was not offered for the truth of the matter asserted (indeed, the plaintiff claimed that the applicant lied about his educational achievements), but in any event the document ought to have been admitted under FRE803(6) or (8). District court also erred in excluding all evidence of prior litigation under FRE401 and 403, which had ended in summary judgment. Prior lawsuit had been dismissed for employee’s failure to respond to the motion and was not entitled to collateral estoppel effect.

Mazera v. Varsity Ford Mgt. Services, LLC, 565 F.3d 997, 106 FEP 438 (6th Cir. 2009). Panel: GILMAN, Guy, Cook. Claims on Appeal: Title VII (race) and ADA termination. Disposition Below: Order compelling arbitration [defendant]. Outcome on Appeal: Affirmed in part [defendant]. Grounds: Employee did not present issue for jury on validity of arbitration agreement, where employee’s affidavit was either irrelevant to that issue (lack of bargaining power, absence of attorney, language problems, failure to understand contract) or legal issues for court (lack of consideration, that agreement was not condition of employment). As a matter of law, agreement recited that employment was conditioned on arbitration. Court holds that fee-splitting provision that required low-wage ($20,000/year) employee to pay up to $500 may be invalid, but because agreement allowed employer to waive the fee, on remand employee would have ten days under agreement to request waiver.

Hunter v. Sec’y of the U.S. Army, 565 F.3d 986, 106 FEP 431 (6th Cir. 2009). Panel: GILMAN, Guy, Cook. Claims on Appeal: 1. Title VII (reverse sex and race) and ADEA promotion and training. 2. Title VII and ADEA retaliation. Disposition Below: 1. Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Repeated failures to promote and train were each discrete events that the employee was obliged to present to an EEO counselor within 45 days. Individual employee may not aggregate claims as a single pattern or practice, which is a class claim. 2. No evidence that supervisors were aware of the employees EEO complaints. Alternatively, no materially adverse actions took place (delay of one assignment, transfer, neutral and uniform application of policy requiring permission to leave desk, single insulting remark).

Bragg v. Flint Bd. of Educ., 106 FEP 311 (6th Cir. 2009). Panel: KENNEDY, Gibbons, Rogers. Claims on Appeal: Title VII and Mich. state law suspension and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Fed. R. Civ. P. 41(b) dismissal of prior suit was judgment on the merits for claim preclusion purposes.

Morgan v. New York Life Ins. Co., 559 F.3d 425, 105 FEP 1217 (6th Cir. 2009). Panel: MILLS, Cole, Gilman. Claims on Appeal: Ohio state law termination (age). Disposition Below: Judgment after a jury verdict ($6M compensatory, $10M punitive) [plaintiff]. Outcome on Appeal: Affirmed except for punitive award, remanded to judge to enter remittitur [plaintiff]. Grounds: Employee terminated from his job when, according to employer, he failed to meet his goals under a Performance Improvement Plan (PIP). The PIP required Morgan to increase his sales staff to 99. Though on the books he made that goal, “four of the agents reported as part of the manpower increase (Zeno, Abbott, Kumahor, and Chorak) met the $500 commission revenue requirement only by splitting commissions with other agents already in the office manpower count. . . . [T]he corporate vice-president for agency standards, Christopher Tebeau, determined that four of the manpower triggers were based on splits that ‘were not consistent with NYL’s rules.’ Tebeau stated that There of the splits appeared to be gifts and the explanation as to the fourth was a lie.” Panel affirms admission of discriminatory statements: company seeking “a new generation of managerial talent”; “‘time has passed him by”; “we need to bring young people like this through our system”; “balance of agesz’ for its employees. No jury instruction was required to direct jurors how to evaluate this evidence. “New York Life was free to argue its theory of the case-that the remarks were vague or were not related to the employment decision. Thus, the proposed instruction was substantially covered by the other instructions and the failure to give it did not seriously impair New York Life’s theory of the case.” No error in the district court’s denial of JOML. The court points to the evidence of procedural irregularities and inconsistent treatment of younger managing partners. There was also disputed evidence that employee’s firing was discussed well ahead of the actual reason given for his discharge. “The promotability index prepared by New York Life entitled ‘Managing Partner Selection Process’ listed candidates for Morgan’s position and was dated September 2, 2005, which was before the company determined that he had missed the manpower count. Although New York Life alleged that the date was on the document because it was a continuously updated list, the jury was entitled to believe otherwise…. As to punitive award, panel agrees that the jury had sufficient evidence to award state-law punitive damages, which requires proof of actual malice by clear and convincing evidence. “”The record includes evidence that New York Life consciously disregarded Morgan’s right to be free from age discrimination. While New York Life correctly argues that courts should not second guess a company’s business decisions, the record establishes quite clearly that the company found extenuating circumstances in certain instances when a younger managing partner had performance issues. This was not the case with Morgan (or other older managing partners).” The court also agrees that under Ohio state-law standards, a $10 million award was otherwise permissible. But as for federal constitutional due process challenge, the employer prevails (in part). Applying There guide posts – “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the harm to the plaintiff and the award; and (3) the comparison between the award and civil penalties in comparable cases” – here employee was not financially vulnerable, behavior was not pervasive at employer, and 1.67:1 ratio was out of proportion to prior awards. Panel remands to district court for an order of remittitur that will set the punitive damages in an amount that it determines is compatible with due process, not to exceed the amount of compensatory damages.

Betts v. Costco Wholesale Corp., 558 F.3d 461, 105 FEP 1228 (6th Cir. 2009). Panel: GILMAN, Kennedy[COLE, dissenting in part]. Claims on Appeal: Michigan Elliott-Larsen Act harassment (race). Disposition Below: Judgment following a jury trial ($18,467 back pay, $25,000 emotional distress total) [plaintiff]. Outcome on Appeal: Affirmed as to liability, damages vacated [plaintiff]. Grounds: There out of six plaintiff prevail on hostile work environment claims. Full panel affirms finding of liability, rejects defendant’s argument that under Michigan law only the harassment expressly directed at each employee could be considered in determining whether the harassment was severe or pervasive as to each. The court also affirms the finding that the harassment could be imputed to employer, because at least one executive (a VP) had been informed of the harassment allegations. Majority of the panel vacates emotional distress damages for the two plaintiffs. Insufficient evidence of distress caused by the harassment at warehouse. No material evidence in the record regarding any emotional distress that one employee suffered as a result of hostile work environment. Distress flowed instead from the financial difficulties she faced after her nondiscriminatory discharge. Second employee provided generalized testimony about the distress that she suffered before she was terminated. She said that she was “upset” because she “felt something wasn’t right,” and that her treatment at Costco was a “smack in the face.” Court ho0lds this evidence insufficient as a matter of law. “The closest Thomas comes to providing ‘specific and definite evidence’ of her emotional distress is the assertion that she moved to another position within Warehouse 390 to escape the hostile work environment that she had experienced as a front-end cashier. . . .This evidence, however, is severely undermined by Thomas’s concession that she did not feel harassed. At best, Thomas’s decision to change positions demonstrated a high level of concern about the racially hostile environment that she experienced as a front-end cashier.” Full panel affirms that under Michigan law (which tracks federal Title VII law), there can be no award of lost-wages associated with harassment alone. The Sixth Circuit thus joins Third and Tenth Circuits in holding “the nonavailability of lost wages as damages in the context of a meritorious hostile-work-environment claim without a finding of wrongful termination.”

Barrett v. Whirlpool Corp., 556 F.3d 502, 105 FEP 1097 (6th Cir. 2009). Panel: COLE, Cook, Edmunds. Claims on Appeal: 1. Title VII and § 1981 harassment (racial association) [plaintiff #1]. 2. Title VII and § 1981 harassment and retaliation (racial association) [plaintiff #2]. 3. Title VII and § 1981 harassment and retaliation (racial association) [plaintiff #3]. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. All There plaintiffs claim harassment/retaliation of white employees who associate with or oppose discrimination against African-American employees. Panel holds that no particular degree of association need be pled or proven by the plaintiff in such cases (district court erred in requiring more-than-casual work relationship to constitute “association”), and that active opposition to harassment or other protected activity is not required to state a claim. District court also erred in requiring “severe AND pervasive” conduct. Incidents of harassment directed at the African-American employees, nonetheless, are not part of the harassment due to association/advocacy. First plaintiff presented little evidence to prove she was denied work because of her friendship with black employees. Being called a “bitch,” told to “mind her own business,” and being ostracized not sufficiently severe or pervasive. 2. Second employee complained of use of term “nigger-lover,” though she did not clearly testify that it was directed at her. Ostracism not severe or pervasive. No causal connection between advocacy and any asserted act of retaliation. 3. Third employee presented genuine issue of material fact about whether she was subjected to a hostile work environment on association grounds: she received a Thereat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. She reported nearly all of the relevant incidents involving co-worker harassment to one of two supervisors, and they failed to take corrective action. She also alleged that both of these supervisors harassed her directly. Claim of retaliation fails, though, because only one comment can be traced to advocacy conduct.

Hamilton v. General Elec. Co., 556 F.3d 428, 105 FEP 737 (6th Cir. 2009). Panel: MOORE, Bright [GRIFFIN, dissenting]. Claims on Appeal: Ky. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Last Chance Agreement (LCA) does not immunize employer from liability when employee is ostensible fired for violating agreement. Temporal proximity of less than There months combined with the assertion that employer increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are sufficient to establish the causation element of a prima facie case of retaliatory termination. “We have held that when an ’employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,’ the employer’s actions constitute ‘the very definition of pretext.'” Employer allegedly increased its surveillance of his work after he filed an age discrimination complaint with the EEOC and then waited for an opportunity to fire him. Also genuine issue of material fact about the factual basis for his termination. Employee’s supervisors testified that they gave him minutes to put his lunch away before they returned to the lunchroom and fired him for refusing to follow orders, and assert that when they returned to lunchroom, plaintiff used profanity as they escorted him out. Plaintiff stated that he was preparing to return to work as requested but that only seconds passed before his supervisors returned to the lunchroom and fired him, and denies using profanity.

Garner v. Cuyahoga County Juvenile Court, 554 F.3d 624, 105 FEP 507 (6th Cir. 2009). Panel: GILMAN, Clay, Rogers. Claims on Appeal: Various constitutional, Ohio state law and tort claims (race). Disposition Below: Award of fees against lawyer and plaintiffs for frivolous litigation under § 1988 and § 1927 ($660,103 joint and several liability) [defendant]. Outcome on Appeal: Affirmed in part, remanded in part [defendant]. Grounds: District court correctly found that various claims of discrimination, disparate impact and retaliation were frivolous. That employees were able to establish some elements of the prima facie case for disparate treatment claims does not establish that claims were not frivolous; conversely, failure to lay out prima facie case does not prove frivolousness. Although there could be reasonable disagreement as to some claims, abuse-of-discretion review compels deference to judge’s findings. Existence of adverse judgment against defendant by same lawyer not evidence that these plaintiffs had valid claim. Disparate impact claim was essentially abandoned by plaintiffs in district court. Retaliation claims lacked evidence of causation or of an adverse employment action. In award of fees, district court erred in holding each plaintiff jointly and severally liable.; on remand, separate determinations need to be made for each plaintiff, who among themselves had unique claims. Also district court failed to explain finding that each plaintiff had financial ability to pay their share of the fees. District court also failed to assess at what point in the history of the litigation that the claims became frivolous; accrual dates need to be set for each party. Award against attorney affirmed as well, but amount, relative responsibility and joint and several liability between plaintiffs and lawyer need to be determined on remand. Court notes that any sanction against lawyer and client for same claim presents risk of conflict of interest and breach of professional responsibilities.

Ladd v. Grand Trunk Western R.R., Inc., 552 F.3d 495, 105 FEP 373 (6th Cir. 2009). Panel: KENNEDY, Sutton, McKeague. Claims on Appeal: 1. Title VII harassment (sex, race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. One specific sex/race epithet, with otherwise unspecific reference to “daily” abuse, insufficiently severe or pervasive. 2. Assuming that plaintiff made out prima facie case, employer had legitimate and non-discriminatory reason for her termination (filing false report). Employee unable to establish that reason was false or that other employees committed equally serious rule violations.

McKnight v. General Motors Corp., 550 F.3d 519, 21 A.D. Cases 481 (6th Cir. 2008). Panel: GIBBONS, Guy, Suhrheinrich. Claims on Appeal: ADA benefits. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs (retired employees) challenge provision in the plan that paid out reduced benefits for employees who qualified for Social Security Disability Insurance Benefits (SSDIB). The panel, though noting split in circuits, holds that to have standing under Title I, the plaintiff must be a “qualified individual with a disability” (42 U.S.C. § 12112(a)) and that retired employees adjudged disabled by SSA do not meet that Threshold. Though standing might exist is “disabled former employees . . . still ‘desire’ their former employment positions,” in this case the plaintiffs disavowed any interest in reinstatement. (Alternatively, panel holds that plaintiffs would have lost the claim on the merits anyway.)

Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 104 FEP 1473 (6th Cir. 2008). Panel: MOORE, Griffin, Bright. Claims on Appeal: Title VII and Tenn. state law termination (race). Disposition Below: Judgment after a bench trial ($36,935.50 back pay, $30,300 compensatory damages, two and 1/2 years front pay for $52,765) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Affirming judgment in case where African-American crew worker gets fired for shooting off firecrackers at work, while the city tolerates white employees who pull the same stunt. Argument that employee did not make out prima facie case ill-placed after trial was concluded. Sufficient evidence for judge to find that reason for termination (firing off firecrackers) was, in context of record, insufficient to support the decision; other, white employees who committed same violation were simply told to “knock it off.” Indeed, infractions by white employees (involving possibly more powerful fireworks) were conceivably even more serious. Use of firecrackers was found to have been commonplace. Although senior managers who made decision were not necessarily aware of other incidents, record showed that they acted on biased information by supervisor (who did not turn in white employees). Although employer claims that it made an unconditional offer of reinstatement to stop the clock running on back pay, Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982), district court judge could find that offer was conditional on dropping lawsuit. Although the district court erred in awarding $52,765 in front pay — two and a half years — without discounting the award to present value, the panel affirms the award on the alternative ground that the judge’s failure to reduce to present value was offset by the failure to consider cost-of-living and other raises that would have come to plaintiff.

Smith v. Jefferson County school Bd. of Com’rs, 549 F.3d 641 (6th Cir. 2008). Panel: MOORE, Clay (ROGERS, dissenting). Claims on Appeal: Establishment Clause termination. Due process claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Teachers sued for loss of jobs when school board closed public alternative school and contracted with Christian school (Kingwood) to perform same function. District court erred in finding that teachers lacked standing. “When the Board abolished the public alternative school during the summer of 2003, the teachers suffered an injury because they lost their positions at the school and were not transferred to other positions. Their injuries are directly linked to the Board’s decision to abolish the alternative school that it once operated in order to contract-out for the services of Kingswood’s staff.” Panel also holds that the injuries are redressable by an award of back pay and benefits. Alternatively, panel holds that along with direct individual standing under the First and Fourteenth Amendments, two of the plaintiffs also have taxpayer standing. On the merits, panel holds that the plaintiffs make out a claim for religious discrimination, despite that their personal religious beliefs were not at issue in the decision. “Under Tenn. Code Ann. § 49-6-3402, the Board is required to establish at least one alternative school for grades seven through twelve. Although the stated secular purpose of the Board-affording an education to alternative school students in the public-school system by sending them to the private Kingswood school in order to help resolve a budget crisis-arguably predominates over any inclination of the Board to advance religion, if the day program was infused with the same focus on Christianity as the residential program, a reasonable person could conclude that the Board was endorsing religion by delegating all of its duties to Kingswood.” Moreover, the panel majority holds that “there is a genuine issue of material fact as to whether Kingswood separates its residential program from its day program such that the Christian religious focus of the residential program does not affect day students.” Panel affirms legislative immunity of the individual board members.

Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 104 FEP 1482 (6th Cir. 2008). Panel: JORDAN, Martin (BATCHELDER, dissenting). Claims on Appeal: 1. ADEA termination. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred in holding that employee failed to make out a prima facie case. Employee allegedly had run afoul of new management, gets several write ups (such as about not showing up at a co-worker’s bridal shower) and — in the most damning incident — is believed to have uttered a racial slur about a patient. Genuine issue of material fact whether employee was guilty of infraction. She had 37-year long, spotless record with employer; witness confirmed that she did not remark she was accused of uttering and employee was coerced into signing admission of responsibility. District court also (1) drew inferences in favor or movant, and (2) demanded too exacting standard for “similarly situated”; employee not required to produce younger employee identical in all respects. 2. Substantial dispute over the facts of investigating the alleged racial slur: “to the extent the racial slur was a factor in plaintiff’s firing, there is a material issue whether a reasonable and informed decision was made. Although time had passed since that incident, there is a question how reasonable and thorough the inquiry had been.” For instance, direct witness to alleged incident, though known to employer, was not interviewed. Again, district court found to have weighed evidence in favor of the movant. Genuine issue of material of fact about circumstances of termination (e.g. whether employee said that she already had second job and had sought advice of counsel. “Honest belief rule” no aid to employer where there is substantial doubt about fairness of investigation.

Allen v. Highlands Hosp. Corp., 545 F.3d 387, 104 FEP 934 (6th Cir. 2008). Panel: GILMAN, Kethledge, Alarcón. Claims on Appeal: 1. ADEA and Ky. state law termination (disparate treatment). 2. ADEA and Ky. state law termination (disparate impact). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant].  Grounds: 1. Comment by manager to another employee that company was targeting employees for seniority in reduction was not direct evidence of age discrimination; seniority correlates with age but is not synonymous. Using indirect method of proof, employer established legitimate reason for firing employees (their invasion of a client’s records and belief that they violated HIPAA). Employees argued that this explanation was invalid because supervisor authorized orally the release of the record (i.e. an x-ray), but company policy admittedly required a written release. At any rate, the relevant issue is whether the hospital believed that employees breached privacy. HR did a thorough investigation and concluded that they committed offense. No evidence that older employees were statistically more likely to be terminated by hospital cost-cutting. 2. Charge-filing as precondition to suit is not jurisdictional, overruling prior case authority on this issue in light of Arbaugh. Although it is close question whether the charge actually included language preserving a disparate impact theory, panel affirms summary judgment on the merits. Plaintiffs point to alleged generalized policy of cost cutting that focuses on older employees, but court holds that this is not a specific practice that causes disproportionate impact on older employees. Also, statistical evidence did not reveal statistically significant difference in age of terminated and saved employees. Although district court erred by putting burden on plaintiffs to rebut RFOA (in light of Meacham) that error was harmless. Plaintiffs waived argument regarding failure to produce fuller data in discovery by filing to appeal the magistrate’s ruling. Failure of plaintiffs to use all of the data provided not a reason for the district court to strike defense report.

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 21 A.D. Cases 200 (6th Cir.2008). Panel: GRIFFIN, Moore, Graham. Claims on Appeal: ADA and Ohio state law “regarded as” disability. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Asserting that employer regarded him disabled in the major life activity of working because of back injury and use of painkillers, employee did not create genuine issue of material fact about whether employee thought he was significantly restricted in a class or broad range of jobs. At most, employer would not place employee in position of operating heavy machinery.

Talley v. Family Dollar Store, 542 F.3d 1099, 20 A.D. Cases 1697 (6th Cir. 2008). Panel: MERRITT, Moore, Rogers. Claims on Appeal: ADA and Ohio state law constructive discharge. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff with degenerative osteoarthritis failed as a matter of law to establish that employer regarded her as disabled, because there was no evidence that it believed that she could not perform the essential functions of her job without an accommodation. But there was genuine issue of material fact whether she was actually disabled, as there was record evidence that she was substantially limited in the major life activities of walking, standing and lifting. Plaintiff was originally offered a stool to work from during her shifts, but other employees complained and it was withdrawn. Reasonable jury could have found that (1) employee was offered no reasonable accommodation (either the stool or an alternative such as taking periodic breaks). Employee also presented genuine issue in regard to constructive discharge; complete failure to provide an accommodation (in spite of doctor’s note on issue) may itself be grounds to find that the working conditions were intolerable. Genuine issue also about which party bore responsibility for breakdown in interactive process (29 C.F.R. § 1630.2(o)(3)).

Russell v. University of Toledo, 537 F.3d 596, 103 FEP 1797 (6th Cir. 2008). Panel: DAUGHTREY, Moore, Duggan. Claims on Appeal: 1. Title VII and Ohio state law termination (race). 2. Title VII and Ohio state law harassment (race). 3. Title VII and Ohio state law retaliation. § 1983 claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court erred in holding that employee failed to make out prima facie case; it was sufficient that the employee establish that she was replaced by someone outside the protected group. Summary judgment affirmed on alternative ground that reason for termination (failure to follow orders, insubordination) were not shown to be pretextual. Employee was unable to establish that employer did not reasonably rely on particularized facts that it knew as a result of an investigation of the incidents. Evidence of other motivations did not point to a specifically racial motivation for the incidents (issue about whether there were assigned desks; comments by co-workers 13 years earlier that plaintiff was an affirmative-action hire, testimony that plaintiff was an inconsiderate co-worker; denials of leave time to attend diversity events, complaints about trash left in her work area). Other white employees to whom plaintiff sought to compare herself did not have the long-running history of conflicts that she had. 2. No evidence that hostile behavior (unfriendliness, isolation, discipline, adverse evaluations) was motivated by race. Stale comments about plaintiff being affirmative-action hire were too far in past and isolated. 3. Assuming plaintiff made out prima facie case, employee neverthless failed to establish a genuine issue of material fact about pretext (as with her discrimination claim).

White v. Baxter Healthcare Corp., 533 F.3d 381, 103 FEP 1121 (6th Cir. 2008). Panel: CLAY, Keith [GILMAN, dissenting in part]. Claims on Appeal: 1. Title VII and Mich. state law promotion (race). 2. Title VII and Mich. state law performance evaluation (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff lost out on a regional manager promotion to a white, female candidate in an interview process where plaintiff was ranked at the bottom by each of the There panelists. The employer conceded the existence of a prima facie case, but proffered as its legitimate, non-discriminatory reason that successful candidate had significant management experience, while plaintiff “lacked this managerial experience and did not interview well: in the view of the interviewers, he was ‘in-your-face’ aggressive, demonstrated an inflexible management style, and did not present a persuasive plan for turning around the region.” Plaintiff presented a genuine issue of material fact about pretext. Regarding the managerial experience, plaintiff possessed some qualifications for managerial work which other candidate did not. As for the interview process, “any evaluation of White’s interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume . . . that their own subjective perceptions of White were accurate. Moreover, we find [the interviewers’] statements indicating that White came across as aggressive and lacking in management vision to be self-serving and conclusory.” Panel reiterates circuit’s standing law on “business judgment,” the “question of whether the employer’s judgment was reasonable or was instead motivated by improper considerations is for the jury to consider. Our role is merely to assess whether the plaintiff has presented enough evidence for a reasonable jury to accept the plaintiff’s claim that the employer made an unlawful business decision.” 2. Employee presented genuine issue of material fact about whether race was a motivating factor in downgraded performance evaluation (to “Meets Minus”) under the mixed-motive section, 42 U.S.C. § 2000e-2(m). Court recognizes split with other circuits, holds that McDonnell Douglas analysis does not apply in evaluating such claims. Plaintiffs must only show that they suffered an adverse employment action and that their protected classification was a motivating factor. Here, where there was record that manager often said demeaning things about blacks and black employees (including plaintiff), plaintiff set forth triable case.

Doe v. The Salvation Army, 531 F.3d 355, 20 A.D. Cases 1288 (6th Cir. 2008). Panel:  RYAN, Siler, Cole. Claims on Appeal:  Rehabilitation Act hiring. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court had misanalyzed the case as concerning “a physical or mental impairment” rather than “a record of such an impairment” under 29 U.S.C. § 705(20)(B). Plaintiff presented genuine issue of material on “record of” disability: he submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working. There was also a genuine issue of material fact about whether the employer was motivated by safety rather than bias, based on the tenor of the interview question about the prescription medication (i.e., interviewer asked “what kind of medication” he took, and plaintiff responded, “psychotropic medicine,” then company “topped the interview and said that his insurance would not cover me”).

Thorton v. Federal Express Corp., 530 F.3d 451, 103 FEP 1035, 20 A.D. Cases 1308, (6th Cir. 2008). Panel: McKEAGUE, Daughtrey, Clay. Claims on Appeal: 1. ADA discrimination. 2. Title VII retaliation. 3. Title VII harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: : 1. No evidence that she suffered from disability. Disability determination by the Social Security Administration, even if substantiated, not controlling.2. No evidence of causal link between filing of EEOC charge and termination3. No error in holding that plaintiff’s quid pro quo sexual harassment claim under Title VII failed for lack of a tangible job detriment due to her rejection of supervisor’s sexual advances. Courier route change, though personally inconvenient one day of the week, did not entail increase in responsibilities or a demotion or loss of pay or benefits. Regarding hostile work environment claim, district court erred in finding there was insufficient evidence that activity was severe or pervasive. “[C]ontinuous preoccupation with sex talk and persistent unwelcome advances, often targeted at plaintiff, were degrading, offensive, increasingly intimidating and inexcusable.” Summary judgment affirmed on alternative ground that employer established Faragher defense as a matter of law. Plaintiff did not deny that employer adopted anti-harassment policy, and employee waited two months into her leave of absence from work to make first harassment complaint. Subjective fear of retaliation not adequate excuse for not availing self of policy. Though plaintiff accused the employer of conducting superficial investigation that ended inconclusively, “plaintiff was offered the opportunity to return to work under supervision of a different manager involving courier routes within her schedule preferences. In other words, plaintiff’s eventual use of the harassment policy complaint procedure yielded the offer of a remedy that would have potentially cured both stress-producing conditions, i.e., her subordinate relationship to [supervisor] and her schedule difficulties.”

Niswander v. Cinncinnati Ins. Co., 529 F.3d 714, 103 FEP 1257 (6th Cir. 2008). Panel: GILMAN, Rogers [McKEAGUE, concurring][GILMAN, concurring]. Claims on Appeal: Title VII and Equal Pay Act retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee provided company claims documents from home office in response to class-action lawyer’s letter about employer’s request for production of documents, which employee admitted were not relevant to the equal pay allegations of the class suit, but might be relevant to potential retaliation claim. “[C]ompany believed that Niswander’s conduct in delivering the documents violated CIC’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all of which expressly prohibit the disclosure of confidential information, including personal information about policyholders.” Employee fired for violation of policy. Employee’s admission that production of documents was irrelevant to equal pay issue in class action lawsuit defeats argument that activity was protected by participation clause of Title VII (the activity was neither related to a claim of discrimination or reasonably believed to be by employee). Under opposition clause, the court uses a balancing test to determine whether delivery of the confidential documents in question was reasonable: “(1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.” In this case, the court holds that the production was unreasonable: “Producing confidential documents for the sole purpose of jogging one’s memory, when there are readily available alternatives to accomplish the same goal, does not constitute the kind of reasonable opposition activity that justifies violating a company’s privacy policy.” Alternatively, even if the decision to terminate for producing the documents ultimately proved to be flawed, plaintiff has failed to show the presence of a genuine issue of material fact regarding supervisor’s honest belief that she had violated the company’s privacy policy.

Nance v. Goodyear Tire Co., 527 F.3d 539, 20 A.D. Cases 1110 (6th Cir. 2008). Panel: COLE, Moore [BATCHELDER, dissenting]. Claim on Appeal: ADA and Tenn. state law termination and reasonable accommodation. FMLA, state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that prior labor arbitration was issue preclusive of reason why employee was terminated (abandonment of job), finding that Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), remains good law on this point. Summary judgment affirmed on alternative ground that employee would lose on the merits. Employee failed to prove adverse action because undisputed evidence establishes that she left of her own accord (absent without leave under CBA) by not reporting in medical absences or following procedures to report her absence. Progressive discipline policy did not apply to voluntary resignation. No evidence that others who took leave were similarly situated. Arbitration award for employer was addition al evidence of reason for termination. Constructive discharge claim (owing to allegedly dangerous work conditions) fails; she quit after only four days’ work, did not grieve conditions and no other employee complained; plus, job assignment was not shown to have been intended to make employee quit. Also, employee could not make out the rest of her reasonable accommodation claim, because equipment that she used was recommended for her lifting restrictions by physical therapist, company and union made efforts to place her in the correct job.

Bailey v. USF Holland, Inc., 526 F.3d 880, 103 FEP 362 (6th Cir. 2008). Panel: GRIFFIN, Cole, Forester. Claim on Appeal: Title VII and Tenn. state law harassment (race). Disposition Below: Judgment after a jury trial; $350,000 per plaintiff compensatory damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: two employees subject to “wide variety” of harassment, some of it avowedly racial (variations “boy”), over six years. One use of word “nigger” by co-worker overheard by plaintiff lends context to other ambiguous statements. Findings about intent were not clearly erroneous. Employee failed to take prompt, reasonable and appropriate corrective action. Defendant conducted employee meetings, but plaintiffs’ coworkers stated that they did not consider their use of ‘boy’ to be offensive and insisted that they would continue to use it. Defendant discharged one employee once it discovered that he created racist graffiti, but he was reinstated soon thereafter. It stopped graffiti by installing security cameras – not done until plaintiffs commenced action. Affirmative defense for supervisor harassment failed because corrective measures did not finally work until lawsuit was filed. Award of $300,000 compensatories under Title VII and extra $50,000 under state law not grossly excessive.

Yeschick v. Mineta, 521 F.3d 498, 102 FEP 1729 (6th Cir. 2008). Panel: COLE, Moore [BATCHELDER, dissenting]. Claim on Appeal: ADEA failure to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether adverse action occurred within 45 days of plaintiff reporting to agency EEO counselor. While several younger applicants for Controller had been hired instead of plaintiff in 2002, agency claimed that he was inactive as of 2000 and ineligible for hiring and therefore not an applicant in 2002. Agency lacked official policy about when HR office considered application inactive, so FAA could have used inactivation policy selectively to discriminate against older applicants. Plaintiff submitted application with in period in recruitment notice. Agency contended that employee had outdated address information on list, but other Controllers hired also had outdated information; evidence was mixed about what criteria was used to inactivate candidates. On remand, employee should obtain discovery and district court should rule on equitable tolling, continuing violation, and employee’s prima facie case.

Cline v. BWXT Y-12, LLC, 521 F.3d 507, 102 FEP 1859 (6th Cir. 2008). Panel: SUTTON, Daughtrey, Polster. Claim on Appeal: 1. Tenn. state law failure to hire (age). 2. Tenn. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff failed to rebut employer’s legitimate, non-discriminatory reason, i.e., that he lacked credentials for job (security clearance, professional certifications), while successful candidates had one or more of these qualifications; and that he was external candidate competing with internal candidates. For other claim, employee was time-barred because failure to hire occurred more than one year ago (employee had actual notice that he had been turned down). 2. Failure to retain plaintiff to do training, combined with admission by decision-maker that plaintiff and company “were in litigation” presents genuine issue of material fact. Company cannot rely on uniform policy to not hire anyone with litigation with employer, regardless of content, because it would allow employer to dodge retaliation.

Thompson v. North American Stainless, LP, 520 F.3d 644, 102 FEP 1633 (6th Cir. 2008). Panel: TARNOW, Moore [GRIFFIN, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court recognizes direct cause of action for individual who suffers adverse action as a result of association with person who undertakes protected activity.

Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008). Panel: MERRITT, Gilman Cook . Claim on Appeal: 1. Title VII and Mich. state law termination (sex). 2. Title VII and Mich. state law harassment (sex). FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed but state claims remanded [defendant]. 2. Affirmed but state claims remanded [defendant]. Grounds: 1. Although employee presented prima facie case, employer produced legitimate, non-discriminatory reason for termination, i.e., employer’s decision to restructure its business and to outsource its IT positions. Although employee was able to show that job restructuring was pretext to avoid returning employee to position (for FMLA) claim, and that she was replaced by male, employee was unable to show that reason was gender-related. Record establishes that employer merely requested a replacement employee, regardless of gender. 2. Activity alleged was insufficiently severe or pervasive: (1) according to a colleague, employee referred to as a “dancing girl” or a “call girl”; (2) supervisor ignored Grace, except to comment on her appearance; (3) that executive, upon hearing complaints, stated “Let’s just try to make it through the next few months [until supervisor’s known end date at USCAR].”

Dunlap v. Tennessee Valley Authority, 519 F.3d 626, 102 FEP 1538 (6th Cir. 2008). Panel: MARTIN, Sutton, Oberdorfer . Claim on Appeal: 1. Title VII disparate impact hiring. 2. Title VII disparate treatment hiring. Disposition Below: 1. Judgment following a bench trial [plaintiff]. 2. Judgment following a bench trial (back pay, transportation expenses compensatory damages, fees) [plaintiff]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Disparate impact claim properly dismissed as there was no company-wide analysis or statistical proof about hiring, so district court erred in holding that employee made out prima facie case of disparate impact. 2. Evidence that hiring process was manipulated in a fashion the benefitted whites supported finding of discrimination (interview counted for 70% of score, was subjectively evaluated, including for politeness – 0.5 pts for answering “yes, ma’am” to first question; even objective factors such as attendance and safety record were skewed in favor of white candidates, score balancing meant that sheets could be changed repeatedly), and credibility determination was for judge. Trial judge found ample evidence of pretext (contravention of rules for hiring procedure, manipulation of matrix scores).

Arendale v. City of Memphis, 519 F.3d 587, 103 FEP 40 (6th Cir. 2008). Panel: CLAY, Siler [COOK, concurring in the judgment]. Claim on Appeal: 1. §§ 1981,1983, Title VII and Tenn. Human Rights Act discipline (reverse race). 2. §§1981,1983, Title VII and Tenn. Human Rights Act harassment (reverse race). 3. §1981,1983, Title VII and Tenn. Human Rights Act retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. White officer suspended for insubordination and failure to wear pistol belt by African-American lieutenant. § 1981(c) did not create a cause of action against municipal governments for racial discrimination, and did not abrogate Jett v. Dallas Indep. Sch. Dist.,491 U.S. 701 (1989). Noting split in circuits on this issue. Under § 1983, officer established basis for municipal liability; although he could not prevail on municipal custom of inaction concerning superior officer’s allegedly racially motivated behavior (which requires conscious disregard of egregious misconduct), at least as to suspension for ten days superior officer’s decision was ratified by city board. On the merits, officer failed to make out prima facie case of discrimination because he did not demonstrate that he was treated differently than similarly situated non-white employees (i.e. no examples of minority officers who engaged in conduct potentially warranting discipline, but who received a lesser sanction than the one officer himself received). That no African-American officers were ever subject to disciplinary suspension was insufficient. 2. Although record established incidents of rude and aggressive behavior by lieutenant, it did not establish (other than by plaintiff’s own opinion) that the behavior was racially motivated. 3. Two-month gap between protected activity (filing EEOC charge) and adverse action (altercation leading to officer’s suspension) without more did not establish causation.

Jackson v. FedEx Corp. Services, Inc., 518 F.3d 388, 102 FEP 1543 (6th Cir. 2008). Panel: HOOD, Martin [ROGERS, dissenting]. Claim on Appeal: § 1981 and Title VII termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying too narrow a standard to establish which other employees are “similarly situated” for purposes of prima facie case involving reorganization of department. Even though employee had different title (system administrator) from comparable employees, employer measured staff by other criteria not dependant on job title (leadership, knowledge of business, initiative, technical knowledge). District court should have postponed analysis of narrow job functions until final stage of analysis.

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 102 FEP 1165 (6th Cir. 2008). Panel: GILMAN, Daughtrey, Edmunds . Claim on Appeal: 1. Title VII harassment (sex) [two plaintiffs]. 2. Title VII harassment (sex) [one plaintiff]. 3. Title VII retaliation [one plaintiff]. 4. Title VII retaliation [one plaintiff]. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. 4. Affirmed [defendant]. Grounds: 1. Evidence that two employees consistently testified that they experienced harassment “on and on, “all the tine,” and “every time,” including physical contact, was enough to establish harassment was severe or pervasive. Prior acts of harassment not specifically directed at plaintiff may still be evidence of a harassment if it was directed at others in same protected group, even if plaintiff only learned about them after the fact. Assigning weight to such other acts based on time, how often harasser committed same acts and employer’s awareness of prior problems. In this case, evidence that employer was aware of prior harassment by same man but took no remedial action (e.g., discipline) makes prior acts more likely relevant. Record revealed that supervisors initially refused to listen to plaintiffs’ complaints about harassment and, in any event, may have had constructive knowledge of harassment in light of harasser’s history with other women. Existence of anti-harassment policy doe not absolve employer of responsibility where it already knows about history of serial harasser and takes only belated steps to curb behavior. Failure to take steps to train, discipline or monitor known harasser’s behavior also relevant to co-worker harassment liability. Separating harasser and victim does not absolve employer of liability by itself. Employer should also have investigated situation more aggressively in light of harasser’s history of lying about his behavior. Collective bargaining agreement does not provide defense against taking steps to restrain harasser; even if employer failed to have employee terminated the first time, it ought to have kept trying. 2. Employer took appropriate steps by terminating the harasser at once after prompt investigation. 3. Employer can be held liable for co-worker retaliation. Noting split in circuits, court holds that liability m,ay be imputed to employer for co-worker retaliatory harassment if it manifests indifference or unreasonableness in light of facts employee knew or should have known. Evidence in record was that harasser had set fire to employee’s car, employer did not investigate or respond to employee’s complaint and management knew about anonymous letter alleging that harasser confessed to setting fire and Threatened to kill employee who turned him in if he lost his job. Evidence also showed that awareness that harasser had committed the arson was widely known in plant, but management declined to investigate. 4. Employee’s cooperation in internal investigation not actionable under Sixth Circuit law.

Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 102 FEP 1184 (6th Cir. 2008). Panel: GILMAN, Daughtrey, Edmunds. Claim on Appeal: Title VII, ADEA, and Ohio state law retaliation. Disposition Below: Judgment after a jury trial; $185,000 compensatory damages, $250,000 attorney fees, costs, and prejudgment interest[plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: After case has been fully tried, court of appeals does not review whether employee met prima facie case. But because strength of prima facie case is part of equation whether employee sufficiently rebutted the employer’s proffered legitimate, non-discriminatory reason, court evaluated fourth prong of his prima facie case (establishing a causal connection). Jury was entitled to conclude that employer’s explanation for termination (poor performance) was a pretext for retaliation, where — as president of division — his performance was praised by senior executives, accounting and inventory problems could not reasonably been attributed to plaintiff, independent auditor (in letter and testimony) placed responsibility on other causes unrelated to president’s tenure, and president had actually been active in trying to repair systems that caused losses. Evidence that motive was retaliation included testimony that between May 2003 and January 2004, he “was more or less divorced from the activities at Moeller Microsurgical [and] Haag-Streit USA….,” and that he was excluded from key decisions, including the decision to finally close division in July or August 2003. Also, executive who terminated him said at the same meeting “Dennis, I know that you know that Haag-Streit (HS) never committed discrimination in the past, at present, and will not in the future. I therefore cannot [sic] understand why you raise such a claim. We are not discriminatory, just not.” In context of this record, that termination occurred There months after charge was filed was addition a evidence (temporal proximity). District court did not abuse discretion in awarding fees for flying paralegal overseas to assist with the depositions. Although billing entries were occasionally vague (“Conference with,” “Research,” “Review file,” “Review documents”), in context of entire two years of entries it was overall complete enough to support fee. Employee brought nine claims, lost two on summary judgment and won There at trial. District court did not abuse discretion in not imposing a discount for lost claims, where common facts were “at the heart of all of Imwalle’s claims, both successful and unsuccessful.” Also, $185,000 was not nominal or lack of success, even though employee sought $800,000.

Amadusa v. The Christ Hospital, 514 F.3d 504, 102 FEP 887 (6th Cir. 2008). Panel: MARTIN, Sutton, Oberdorfer. Claim on Appeal: Title VII, ADEA, ADA, §§ 1981, 1985, 1986. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Most claims were dismissed on claim preclusion ground, due to filing and dismissal of prior employment case. Section 1985 claim for conspiracy rejected as a matter of law because complaint failed to allege sufficient factual basis for “meeting of the minds” to sonspire, and actors (all of whom were agents of the employer) were protected by intracorporate conspiracy doctrine.

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 102 FEP 889 (6th Cir. 2008). Panel: COLE,Moore,[BATCHELDER, concurring]. Claim on Appeal: 1. ADEA and Mich. state law termination. 2. ADEA and Mich. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed[plaintiff]. Grounds: 1. Employee using indirect method of proof failed to establish prima facie case where his duties were dispersed to employees and not assigned to a younger employee, and evidence that a younger employees was treated more favorably with respect to compensation was immaterial, where younger employee was not similarly situated (e.g., performed different roles in company).2. Where employee established that he was fired by manager the same morning that the manager learned about the EEOC charge, such temporal proximity is sufficient to support prima facie inference of causation without addition al evidence. Proffered reasons for termination (condition of business, performance and lack of work) presented genuine issues of material fact, where (1) employee was fired after 33 years and company just began to show a profit, (2) performance issues were rebutted by regular raises and lack of negative evaluations, and (3) employer kept advertising positions that employee was eligible to fill even after he was fired. Moreover, evidence that manager equivocated about when he received charge during his deposition, and evidence showed that company responded to charge in signed, dated letter the very day he was fired.

Lulaj v. The Wackenhut Corp., 512 F.3d 760, 102 FEP 626 (6th Cir. 2008). Panel: MARTIN, Gibbons, Sutton. Claims on Appeal: Mich. state law promotion (pregnancy). Disposition Below: Judgment following a jury trial; $11,160 medical expenses, $5,712, non-economic damages; $49,500 fees and costs ($75,788 back pay ; $67,340 front pay; remitted to total $960)[plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Evidence was sufficient to support the verdict on denial of promotion. Employee informed the company of her pregnancy only four days before the promotion decisions were completed, jury could have found that company managers were aware of her pregnancy long before she officially informed them, the timing of the events suggests discrimination, and the way her superior glanced at her stomach suggested that pregnancy was a factor in denying her promotion. That employee offered a different promotion to the employee at the same time did not ameliorate the discrimination, where the promotion was to a lesser position. Jury award of back and front pay properly vacated on judgment as a matter of law, on ground that jury found a failure to promote, but no constructive discharge. The $960 reflects the difference in pay between the job plaintiff would have filled and job she retrained until she left employment. Lodestar rate of $165/hr. affirmed.

Staunch v. Continental Airlines, Inc., 511 F.3d 625, 102 FEP 820 (6th Cir. 2008). Panel: KENNEDY, Martin, Clay. Claims on Appeal: Ohio state law termination (pregnancy). FMLA and Ohio tort (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not present genuine issue of material fact in opposition to legitimate, non-discriminatory reason for termination (non-pregnancy related absences). Argument that the six days of absence between May 6-12, 2003 should not count as separate instances belied by (1) admission that employee called them in separately; and (2) previous written warning coupled with Thereat of termination.

Gruener v. Ohio Casualty Co., 510 F.3d 661, 20 A.D. Cases 97 (6th Cir. 2008). Panel: COOK, Siler, Griffin. Claims on Appeal: ADA termination . Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by refusing to submit employee’s “regarded as” theory to the jury (that the employer improperly “regarded” her as disabled within the meaning of the ADA), where she presented no evidence to support that theory. The record revealed that any apprehension that the company had of the plaintiff’s disability was not a “misperception” of her condition, but based on her actual impairments (in manual tasks and work) such that she “did not meet the physical requirements for her job.” District court’s denial motion for a new trial (based on clear weight of the evidence) not on review, as employee failed to amend the notice of appeal after the new-trial motion was denied.

Vincent v. Brewer Co., No. 06-4138 (6th Cir. Dec.19, 2007). Panel: ROGERS, Guy, McKeague. Claims On Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact presented where (1) there was dispute about whether employee abandoned job after lay-off (where employer’s practice was to return laid-off employees, and employee was only permanent employee laid off); the plaintiff was a gas company crew leader; (2) district court erroneously believed employee’s prima facie burden was to prove that a similarly-situated and similarly-qualified man replaced her in her former; (3) employee presented the following record, as evidence of pretext: “Among the remarks alleged to have been made by Brewer management are the following: (1) [her supervisor] Ken Parker stated that he believed that women do not belong at Brewer and that he would not hire them. (2) Kevin Parker told a crew leader, Ronald Ayres, that he did not permit his female laborers to do any work aside from directing traffic and that Ken Parker would fire Ayres if he discovered Ayres allowing female laborers to perform any other task. (3) Ken Parker told a female employee, Tina Updike, that the only jobs available to women at Brewer were those involving traffic direction. (4) Kevin Parker told Vincent and another female employee, Tammy Ayres, that Ken Parker instructed him to only permit female laborers to direct traffic. (5) Kevin Parker told Tammy Ayres that she could not be in charge of a project because women are ‘not leaders’ at Brewer. (6) Ken Parker told Tammy Ayres that ‘the problem with you is you’re a f***ing woman.’ (7) Kevin Parker stated that Dilillo disliked women even more than Ken Parker, and that Dilillo wanted to remove all of the Utility Division’s female employees because they made it look bad. (8) Fetters frequently referred to Tammy Ayres using nicknames such as ‘sweetheart’ and ‘cupcake,’ and often asked female employees graphic sexual questions. (9) Ken Parker told Updike that if she wanted to earn a man’s pay then she would have to work like a man or she would be replaced by a man.”

Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 102 FEP 374 (6th Cir. 2007). Panel: GILMER, Daughtrey, Edmunds. Claims On Appeal: ADEA and Ohio law termination. Other federal and state statutory, tort and contract claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Where 100% of employees were terminated in plant closure, whether younger than 40 or age 40 or over, and replaced in their duties by contract employees hired by a third-party, no inference of age discrimination was presented.

Fox v. Eagle Distributing Co., Inc., 510 F.3d 587, 102 FEP 384 (6th Cir. 2007). Panel: GRIFFIN, Siler, Cook . Claims On Appeal: ADEA and Tenn. law retaliation. Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Salesman’s complaints to customer (discussing his lawsuit), which were then communicated back to employer, not a “protected activity” for purposes of the anti-retaliation section. Complaints were not related to opposing age discrimination.

Seawright v. American Gen Fin Servs., 507 F.3d 967, 101 FEP 1818 (6th Cir. 2007). Panel: BOGGS, Sutton [MARTIN, dissenting]. Claims On Appeal: Tenn. state law discrimination. FMLA (not discussed here). Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome On Appeal: Reversed [defendant]. Grounds: Tennessee law would recognize assent to an arbitration policy received by the workforce through the mail in a brochure, accepted by continued employment, where policy expressly provided for unilateral acceptance by performance and employee did not expressly disaffirm the policy with management. There was mutuality because both side were bound to arbitrate disputes. Promise was no illusory, even though employer could change terms at a later date, there had to be 90 days notice. Contract was not genuine contract of adhesion because employee had alternative not to accept offer (could have gotten another job). No evidence of unequal bargaining power. FAA does not require that a written agreement must be signed to become enforceable.

Blair v. Henry Filters, Inc., 505 F.3d 517, 101 FEP 1345 (6th Cir. 2007). Panel: MOORE, Batchelder, Mills. Claims On Appeal: ADEA and Mich. state law termination and harassment . Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether employee showed pretext for decision to terminate him. Fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee. Comments not hearsay because not uttered to prove truth of matter asserted. “Too old” comment is not direct evidence of intent, because it concerns having an account removed, rather than employee’s termination. Noting split within circuit, court suggests that age-slurs themselves might be direct evidence, even if not specifically related in time to termination decision. Comment about needing to set up younger sales force admissible under FRE104(a) as evidence that manager who made statement had authority to hire and fire employees. Not direct evidence, though, because comment was not specifically about or targeted at plaintiff. Under indirect method, employee set out prima facie case; in RIF case, does not have demonstrate he was replaced. Both parties’ selective statement of statistics not considered; there were no statistical analyses, unlike people were grouped together, retirees being lumped together with terminees. Above There comments were admissible as circumstantial evidence at third stage of employee’s age animus. Statement of manager was party-admission, FRE801(d)(2)(D), because evidence (including manager’s own statement) indicated that manager had authority to make key decisions. Jury instruction on direct/indirect method not necessary. Introduction of evidence beyond prima facie case not necessary to raise inference of discrimination. Hostile comments not sufficiently pervasive to support harassment theory.

Tepper v. Potter, 505 F.3d 508, 101 FEP 1366 (6th Cir. 2007). Panel: COLE, Cook, Mills . Claims On Appeal: 1. Title VII and Ohio state law religious accommodation. 2. Title VII and Ohio state law religious discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome On Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee (a Messianic Jew) asserts that he was forced to take days off from work without pay in order to avoid Saturday work, and that these days off reduce his annual pay and eventual pension. Court holds that for a reasonable accommodation claim, more than loss of pay is required to establish a prima facie claim (i.e., discipline or discharge). Employee is simply not being paid for the time he does not work; he has not been disciplined or dis crone to discriminate against men, he failed to establish that female candidate (who met all six conditions listed in written, minimum qualifications for job) was similarly situated to him. Claim that conditions were “tailored” to fit female candidate unsubstantiated. Alternatively, university’s legitimate, non-discriminatory reasons for decision were unrebutted by plaintiff’s challenges to some of the female candidate’s credentials. 2. Because promotion was under racial affirmative action decree, plaintiff presented sufficient “background circumstances,” but failed to make out prima facie case because plaintiff neither applied for position (or expressed more than a general interest in it), nor demonstrated that such application would be futile.

Weary v. Cochran , 377 F.3d 522, 94 FEP 390 (6th Cir. 2004). Panel: MARTIN, Mills [CLAY, dissenting]. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Insurance agent not an “employee” of company where contract provided that he was an “independent contractor,” he admitted in deposition that he intended to operate as independent contractor, was paid by commission only, sold for other companies, set his own schedule, provided his own office space and kept his own records. Factors favoring employee status (employer’s administrative guidelines, payment of FICA and benefits) insufficient to counterbalance other evidence of independence.

Smith v. Henderson, 376 F.3d 529, 15 A.D. Cases 1328 (6th Cir. 2004). Panel: CLAY, Suhrheinrich, Sutton. Claim on Appeal: Title VII, ADEA and Rehabilitation Act constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact as to whether the two accommodations Smith sought (restricted hours and/or delegated accounting duties) would have constituted “reasonable” accommodations under the Rehabilitation Act, or would have posed an undue hardship to the U.S. Postal Service. Accordingly, where employer refused such accommodations, and employee was forced to accept a disability retirement, record presented genuine issue of material fact whether plaintiff was constructively discharged.

Knox v. Neaton Auto Products Mfg., Inc., 375 F.3d 451, 94 FEP 19 (6th Cir. 2004). Panel: BARZILAY, Guy, Gilman. Claim on Appeal: 1. Title VII and Ohio state law demotion and discipline (sex). 2. Title VII and Ohio state law harassment. State law tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Comments made by supervisor ten years prior to events alleged in case not probative of bias. No evidence that supervisor’s assignment of tasks plaintiff couldn’t perform, removal of plaintiff from team leader position or discipline for failing to report a fallen fire extinguisher was motivated by sex. No evidence that males who allegedly received lighter treatment were comparable to plaintiff in relevant aspects.2. Use of common expletives and occasional sexual references in workplace, not directed at plaintiff, was not severe or pervasive.

Timm v. Wright State University, 375 F.3d 418, 15 A.D. Cases 1366 (6th Cir. 2004). Panel: MARTIN, Sutton, Williams. Claim on Appeal: Rehabilitation Act and Equal Protection termination. First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that alleged mental and social disorders substantially limited plaintiff in any major life activity.

Gragg v. Somerset Technical College, 373 F.3d 763, 93 FEP 1771 (6th Cir. June 22, 2004). Panel: MARTIN, Clay, Mills. Claim on Appeal: ADEA, Title VII and Ky. state law termination claim. First Amendment. Due Process and Ky. state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that younger males who were retrained during a reduction in force were comparable to plaintiff in relevant aspects. Even if plaintiff made out prima facie case, plaintiff did not rebut legitimate, non-discriminatory reason for termination (elimination of redundant position).

Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 93 FEP 1796 (6th Cir. June 1, 2004). Panel: BELL, Batchelder, Sutton. Claim on Appeal: ADEA benefits. ERISA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming plaintiff made out prima facie case, plaintiff did not rebut legitimate, non-discriminatory reason for barring him from withdrawing retirement benefits in lump sum, where comparable younger employee had far less in account and needed it to complete medical education, whereas plaintiff offered no special circumstances to justify his request.

Smith v. City of Salem, Ohio, 369 F.3d 912, 93 FEP 1854 (6th Cir. 2004), amended, 378 F.3d 566 (6th Cir. 2004). Panel: COLE, Gilman, Schwartzer. Claim on Appeal: Title VII/§1983 suspension (sex). Disposition Below: Rule 12(c) judgment on the pleadings [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Male lieutenant in fire department diagnosed with Gender Identity Disorder began to behave more femininely at work and informed his superior that he intended to have medical procedures to complete transformation from male to female. City officials, in alleged violation of state law, met to devise procedure for terminating plaintiff. Plaintiff was suspended, but eventually reinstated by state court. plaintiff created genuine issue of material fact about whether he was singled out for sex stereotyping under Price Waterhouse (defendants allegedly schemed to force plaintiff to submit to psychological evaluations). Noting split in circuits, court holds that court of appeals precedents barring transsexuals from seeking relief under Title VII had been superceded by Price Waterhouse, to the extent that an employer singles out an employee for not conforming to perceived gender norms, motivated by (as in this case) plaintiff’s feminized appearance and mannerisms. Even if the claim was discrimination on the basis of transsexualism, this would also state a claim under Title VII, as it per se implicates sex stereotypes. Moreover, plaintiff states an “adverse employment action” for his 24-hour suspension, where court (rather than employer itself) later reversed the punishment. Failure of plaintiff to recite “equal protection” in complaint was not fatal to § 1983 claim.

Bacon v. Honda of America Mfg., Inc., 370 F.3d 565 (6th Cir. 2004). Panel: BOGGS, Guy, Edmunds. Claim on Appeal: Title VII and Ohio state law promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Class certification under Rule 23 properly denied. While finding that class met numerosity (and court does not evaluate adequacy), court affirms that district court did not abuse discretion in finding that plaintiff class did not meet commonality and typicality standards. Putative class purported to represent (1) workers and supervisors, (2) production-line and management, (3) workers in four plants with different production capabilities, and (4) 30 different job categories. Moreover, the two putative class representatives could not show that alleged subjective decision-making stretched over entire workforce of 20 year period. Regarding typicality, employer presented unique reasons for not promoting the putative lead plaintiffs (they avoided becoming team leaders, which inhibited promotional opportunities). Individual disparate treatment claims by plaintiffs properly dismissed on summary judgment, owing to lack of prima facie case (failed to apply for promotions). Court concurs with other circuits that individual plaintiffs may not use the pattern-or-practice method of proof to shift burden to employer. Disparate impact claims fail because plaintiffs lacked standing to challenge policies (requirements for attendance, testing, overtime) that had no effect on them. District court did not abuse discretion in denying Rule 56(f) motion for further discovery, where (1) plaintiffs erroneously assumed that discovery was only related to class certification issues and refrained from individual merits discovery, and (2) plaintiff presented ample record on individual claims, which overlapped with class discovery.

Cooper v. MRM Investment Co., 367 F.3d 493, 93 FEP 1290 (6th Cir. 2004). Panel: ALDRICH, Kennedy, Gibbons. Claim on Appeal: Title VII harassment and constructive discharge claim (sex). Disposition Below: Denial of motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Under Tennessee contract law, contract was not unconscionable. Although form arbitration agreement was presented at time of hiring as “take-it-or-leave-it,” plaintiff did not show that she could not locate comparable employment elsewhere. Contract was bilateral (committed both sides to arbitrate disputes). Absence of express waiver of jury trial not fatal to enforcement, where such waiver was implicit in agreement. Matter remanded to allow plaintiff to show that costs to plaintiff for arbitration are likely to be so high as to deter her and others similarly situated to proceed. Defendant could not retrospectively breech defect of excessive costs by offering (during litigation) to pay claimant’s arbitration costs.

Brenneman v. MedCentral Health System, 366 F.3d 412, 15 A.D. Cases 769 (6th Cir. 2004). Panel: KENNEDY, Rogers, Cook. Claim on Appeal: ADA and Ohio state law termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff fails to make out prima facie case of disability discrimination, because her excessive absenteeism owing to her diabetes rendered her not qualified for job, due to her inability to perform essential function of regular attendance.

White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789, 93 FEP 1011 (6th Cir. 2004) (en banc). Panel: GIBBONS. Pt. II (adverse employment action): Boggs, Krupansky, Batchelder, Gilman, Rogers, Sutton, Cook. Pt. IV (punitive damages): Martin, Daughtrey, Moore, Cole, Clay, Gilman, Cook, [CLAY, Martin, Daughtrey, Moore, Cole, concurring], [SUTTON, Boggs, Krupansky, Batchelder, Rogers, concurring and dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial; $43,500 compensatory damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff], except for punitive damages. Grounds: Court reaffirms that in both the retaliation and discrimination context, an “adverse employment action” requires proof of a “significant change in employment status” (noting spit with more liberal standard in Ninth and Seventh Circuits, and more restrictive standard avowed in the Fifth and Eighth). Plaintiff suffered two adverse employment actions: suspension without pay for 37 days and transfer from forklift to standard truck laborer job (more arduous, dirtier work that was viewed as a demotion). Standard of proof for punitive damages is preponderance of evidence, not clear and convincing. Case remanded for trial on punitive damages only.

Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 93 FEP 545 (6th Cir. 2004). Panel: MERRITT, Sutton [FEIKENS, concurring]. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs fail to show that management’s general statements about aging workforce directly motivated their termination in reduction in force; worry was not stereotyping of older workers, but need to replace them (after Congressional report projected critical shortage of nuclear engineers). Ten-year-old comment by management that older workers ought to make way for younger ones too remote in time to constitute direct evidence. Employer’s explanations for their termination of plaintiffs not rebutted by evidence that company should have considered the employees’ other qualifications. Immediate supervisor’s use of term “old farts” not probative where supervisor did not influence the termination decision.

Kiely v. Heartland Rehabilitation Services, 359 F.3d 389, 15 A.D. Cases 417 (6th Cir. 2004). Panel: NELSON, Rogers, [GILMAN, concurring and dissenting]. Claim on Appeal: Mich. state law disabilities discrimination claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff not estopped by application for SSA benefits, where plaintiff was statutorily blind for purposes of obtaining benefits, but qualified to work as physical therapy assistant.

DiCarlo v. Potter, 358 F.3d 408, 93 FEP 456 (6th Cir. 2004). Panel: MOORE, Martin [KENNEDY, concurring and dissenting]. Claim on Appeal: 1. Title VII termination (national origin); 2. ADA/Rehabilitation Act termination; 3. ADEA termination; 4. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]; 4. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]; 2. Affirmed [defendant]; 3. Reversed [plaintiff]; 4. Reversed [plaintiff]. Grounds: 1. Plaintiff’s immediate supervisor with decision-making authority regarding plaintiff’s termination regularly called Italian-American “dirty wop” and complained there were too many “dirty wops” in facility in the There weeks leading up to firing. This constituted direct evidence of discrimination; 2. No evidence that plaintiff’s knee injury significantly limits plaintiff in and major life activity; 3. Same supervisor described plaintiff within weeks of termination as “no spring chicken” and stated that plaintiff would never be a supervisor at the postal facility because of his age; also direct evidence; 4. Causation shown where supervisor admitted that he was aware of EEO charge and within two weeks, he recommended plaintiff’s termination.

McMullen v. Meijer, Inc., 355 F.3d 485, 93 FEP 236 (6th Cir. 2004). Panel: Per Curiam [Gilman, Gibbons, Econmus]. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Termination Appeal Form executed by employee to commence arbitration process was not itself a second arbitration agreement, because it contains no promise not to sue and it was not supported by consideration. Plaintiff may challenge first arbitration agreement despite absence of fraud, duress or mistake, where challenge to “effective vindication” of statutory rights is prescribed by U.S. Supreme Court. Procedure was procedurally unfair, where employer exercises exclusive control over panel of 5-7 arbitrators who decide disputes. Case remanded to district court to decide whether agreement can be enforced without arbitrator-selection clause (severability) and, if so, how to select arbitrators.

Shah v. Deaconess Hosp., 355 F.3d 496, 93 FEP 164 (6th Cir. 2004). Panel: RYAN, Boggs, Rosen. Claim on Appeal: Title VII, ADEA and Ohio state law loss of surgical privileges. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Surgeon not employee of hospital, where hospital did not pay doctor, did not withhold taxes and did not control performance. Surgeon admitted in deposition that he had a contractual arrangement with the employer and was not an employee.

Hedrick v. Western Reserve Care System, 355 F.3d 444, 93 FEP 167, 15 A.D. Cases 1 (6th Cir. 2004). Panel: MILLS, Martin, Sutton. Claim on Appeal: 1. ADA and Ohio state law failure to rehire. 2. ADEA failure to rehire. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Reaffirming circuit law that ADA plaintiff must establish that disability was sole determining factor, not merely a motivating factor (noting split in circuits). In addition, statement by employer that plaintiff nurse may not be able to return to duties after recovering from fractured femur because of walking and lifting requirements does not prove bias but simply expresses legitimate concern about medical limits. Plaintiff not “qualified individual with a disability,” where she refused to accept reasonable accommodation (reassignment to vacant scheduler position), citing 29 C.F.R. § 1630.9(d). 2. Plaintiff presented prima facie case, but employer established that candidates hired into other vacant positions were superior candidates (employee’s own impressions of subjective standards applied by employer are not relevant).for plaintiff’s termination.

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