There cheers from the Sixth Circuit — reversing summary judgment in a section 1981 and state law case about a hotel failing to rent a ballroom for an African-American couple’s nuptials; reversing summary judgment in an unpublished decision under the ADA and FMLA; and filing as “published” a previously non-precedential decision, reversing an adverse trial outcome for the plaintiff in a Title VII case.
Keck v. Graham Hotel Systems Inc., No. 08-2024 (6th Cir. May 20, 2009): Did the defendant refuse to rent a ballroom to the Kecks because of racial prejudice or a corporate snafu? Although the district court believed that there was no genuine issue of disputed fact, and ruled for the hotel, the Sixth Circuit reverses and remands for a jury trial. It notes the following evidence favoring an inference of discrimination —
1. The hotel refused to turn over documentation of white couples who did book the room during the same period: “Such documents are crucial to the plaintiffs’ case. The refusal may lead to an adverse inference about the nature of such evidence. . . . Answering this question requires only that the Hotel provide a list of people (if any) who signed wedding contracts between June 2004, and September 21, 2004, from which the plaintiffs could then determine if any were Caucasian. The Hotel refused to turn over the relevant documents and information. Indeed, when pressed on the subject at oral argument, counsel for the Hotel was unable to state whether such documents existed.”
2. The “markedly hostile” manner in which the couple was treated, despite a veneer of respectability: “The Hotel urges that this test cannot be met because its staff always treated the plaintiffs courteously and respectfully. But the present record would support a jury finding that, over a Three-month period in 2004, the plaintiffs made numerous attempts to enter into a contract with the Hotel to host their wedding reception. To this end, the plaintiffs made numerous walk-in visits and telephone calls, filled out Inquiry Forms, put two separate ten-day holds on their desired reception date, and Three times offered in-person to pay the $1,200 deposit and sign the contract, which would have required them to spend a minimum of $12,000 in food and beverages through the Hotel for the reception.”
3. The defendant’s non-discriminatory rationale — that it was ongoing a period of transformation and did not have a Wedding Specialist employed at that time — was in dispute:
“The record below establishes that the termination of the franchise agreement did not result in any turnover in the Hotel’s ownership, management, or lower-level staffing – a fact freely conceded by the Hotel during oral argument. The facts on this issue create a material issue of fact as to the reason for the Hotel’s conduct.
“The fact of the vacations and temporary lack of a Wedding Specialist also create a material issue for the jury because they account for but a small portion of the roughly Three months that the plaintiffs claim they spent actively pursuing a contract. The same is true of the fact that the plaintiffs’ visits were unscheduled given the allegation that this was prompted by the Hotel’s repeated failure to schedule a meeting with the Wedding Specialist, despite Mrs. Keck’s numerous requests to that effect. The Hotel’s justification based on the busyness of the new Wedding Specialist may account for some of the Hotel’s conduct, but a jury could find that it does not explain away its lack of communication during the month of September. This was a month in which Mrs. Keck visited the hotel Three times (twice when the Wedding Specialist was present), repeated her request to pay the deposit and sign a contract, and placed a ten-day hold on her desired wedding date.”
4. Subsequent testing by matched-pair couples sponsored by the Fair Housing Center of Southeastern Michigan, Three of which resulted in discrimination against the black couple: “The Hotel challenges the
relevance of these visits in that they occurred after the plaintiffs had ceased contact with the Hotel, but the jury may find that this point hurts the Hotel’s case. That Three of four tests may reveal evidence of discriminatory treatment after the ‘period of unique business upheaval’ had passed may suggest to the jury that the alleged ‘business upheaval’ was not the real reason for the plaintiffs’ “poor service” and inability to secure a contract.”
Lafata v. Church of Christ Home, No. 07-2314 (6th Cir. May 20, 2009): A nurse supervisor who — following a workplace injury — had severe restrictions on pushing, pulling and lifting was forced to take leave after she also injured her foot. “At the time she took leave, Plaintiff served as Health Services Coordinator. On May 16,
2003, Plaintiff received a letter from Defendant informing her that it had filled her position. The letter prompted Plaintiff to file a complaint with the United States Department of Labor (‘DOL’) to determine whether Defendant could replace her while she remained on leave. After investigating Plaintiff’s claim, the DOL found that Defendant failed to comply with applicable notice requirements under the FMLA and related regulations. The investigation also established that Defendant was unaware that the FMLA permitted it to count the time an employee takes under an employer’s leave policies against the employee’s twelve-week entitlement to leave under the FMLA.”
After she was cleared to return to work, she learned that the only available work was beyond her physical limitations or a pure demotion: “On October 17, 2003, the last weekday before Plaintiff was scheduled to return to work, a conversation took place between Plaintiff and Barber. The conversation concerned Plaintiff’s new job title and duties upon her anticipated return to work the following Monday, during which Defendant offered Plaintiff the position of Restorative License Nurse. Plaintiff claims that she informed Barber that she did not view the position as equivalent to her former role as Health Services Coordinator, and was also concerned because the job description required her to engage in physical activities, such as turning and positioning patients, which her shoulder injury prevented her from performing. According to Plaintiff, Barber ultimately told Plaintiff that the job was ‘what’s being offered’ and that Plaintiff could ‘take it or leave it.’ (J.A. 193.) In a letter dated October 21, 2003, Plaintiff wrote to Barber and stated that she was concerned that Barber had told her that she was required to accept the Restorative Licensed Nurse position, or no position at all. In addition, Plaintiff offered in the letter to accept a non-supervisory nursing position that Defendant then was advertising in the local paper.”
While the district court granted summary judgment on both the nurses FMLA and ADA claims, the Sixth Circuit reverses. Under the FMLA, 29 U.S.C. § 2614(a)(1)(A), the plaintiff claimed that she was denied restoration to the same or equivalent job. Although the employer responded that there was no FMLA coverage because the plaintiff, the panel disagrees:
“In examining the specific facts surrounding Plaintiff’s leave related to her foot injury, it is
clear that Plaintiff was protected by the FMLA in October of 2003. At the outset of Plaintiff’s leave for her foot injury, Defendant applied its individual leave policy, under which Defendant did not count leave taken pursuant to the alternative leave policy of providing one year of paid disability leave against the employee’s FMLA entitlement. Accordingly, Defendant approved Plaintiff’s leave beginning in March of 2003 solely under its paid disability leave policy, which did not require Defendant to restore Plaintiff to an “equivalent position” at any time during that leave or upon her return from disability leave.
“Further, Defendant actively avoided designating Plaintiff’s leave as FMLA leave. Despite plaintiff’s repeated requests for FMLA forms throughout April of 2003, Defendant refused to
provide the required FMLA forms to Plaintiff for her disability leave. Defendant failed to notify
Plaintiff of her rights and obligations with respect to FMLA leave. In addition, Defendant affirmatively designated a later period-a twelve-week period ending October 20, 2003-as FMLA
leave. Although Plaintiff ultimately received more than twelve weeks of leave, nothing in the statute or applicable regulations precludes an employer from providing an employee with more than twelve weeks of leave where only twelve weeks are categorized as FMLA leave; in fact, the FMLA encourages employers to do so. See 29 U.S.C. § 2653 (‘Nothing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act . . . .’).”
The panel also finds that the nurse’s request to transfer to a different position was an effective request for a “reasonable accommodation” under the ADA that the employer did not answer:
“Plaintiff remained protected by the FMLA through October 20, 2003, and therefore remained an ’employee’ for purposes of the ADA. Further, the district court’s finding that Plaintiff did not inform Defendant of the need for an accommodation until October 21, 2003 is not supported by the record. Viewing the facts in the light most favorable to Plaintiff, Plaintiff informed Barber on October 17, 2003, while she was on FMLA leave, of her concerns that her shoulder injury would prevent her from performing certain of the required duties listed in the Restorative License Nurse job description. Accordingly, contrary to the district court’s conclusion, Defendant was required to offer Plaintiff a reasonable accommodation for her shoulder injury and to engage in the mandatory interactive process to determine the appropriate accommodation.”
The panel also faults the employer’s failure to engage in the interactive process with the plaintiff. The case is remanded for trial.
Cobbins v. Tennessee Dept. of Transp., No. 07-6491 (6th Cir. Apr. 2, 2009): This decision was reported in my blog entry April 3, 2009, although at the time the opinion was filed as “Not Recommended for Publication.” Yesterday, the panel published the decision, so now it is fully precedential. As a good decision about the admissibility of public records over an employer’s hearsay objection, it is well worth a read.