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Sixth Circuit

Updated to November 5, 2018

Sixth Circuit

Gunter v. Bemis Co., Inc., 900 F.3d 297 (6th Cir. 2018). Panel: SUTTON, Gibbons, McKeague. Claim on Appeal: ADA termination. Disposition Below: Judgment after a jury trial ($181,522.61 in back pay, $315,000 front pay, $92,000 in compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed, but front pay vacated and remanded [plaintiff]. Grounds: Employer argued was that it should have won, as a matter of law, because plaintiff's restrictions prevented him from performing essential functions of his job, which required lifting and reaching. But the panel holds that the issue was one of fact for the jury. Despite that job description included "lifting 45 pounds and reaching 24 inches," counsel introduced sufficient evidence (that a jury could credit) showing that these were not essential functions. These included (1) "that Bemis encourages employees not to lift anything over 40 pounds"; (2) "that Bemis has lifting equipment that employees can use to lift many objects, even if an object weighs as little as 20 pounds"; (3) that co-workers often assisted each other in lifting heavier objects; and (4) "that press assistants do not need to do overhead work, and Gunter learned to use his left arm to complete other duties." The rest of the opinion is devoted to remedies. First, the panel hold that the jury could have held that plaintiff used reasonable diligence in seeking other work, thus mitigating his damages. plaintiff "quit school after eighth grade and has never learned to read more than a few words or short phrases," and thus was drastically limited in his opportunities. He could not even "read the newspaper or search the internet" for work. He nevertheless inquired at a number of retailers, and looked into government employment, but at best found part-time, minimum wage work. On front pay, the panel agrees that the jury should have been instructed that reinstatement was a preferred alternative to front pay, and thus the front-pay verdict had to be vacated. Nevertheless, because the Bemis plant where plaintiff once worked closed after the trial ended, the case is remanded to the district court to award "from the time of trial until the plant closed." Finally, on plaintiff's cross-appeal, the panel affirms the district court's reduction the jury's award for lost benefits. It holds that plaintiff offered no evidence "showing how much [he] paid to join his wife's plan" or how much he "spent money on medical or dental care that his Bemis insurance would have covered." Thus, "[i]n the end, Gunter provided no evidence from which a jury could reasonably find the actual expenses he incurred in joining his wife's insurance."

Bullington v. Bedford Cnty., 905 F.3d 467 (6th Cir. 2018). Panel: MOORE, Clay[KETHLEDGE, concurring in the judgment]. Claim on Appeal: 1. ADA discrimination. 2. § 1983 discrimination (disability). Disposition Below: 1. Judgment on the pleadings [defendant]. 2. Judgment on the pleadings [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Reliance on counsel to file charge is not a basis for equitable tolling. 2. Plaintiff could bring Equal Protection disability claim under this section.

McClellan v. Midwest Machining, Inc., 900 F.3d 297 (6th Cir. 2018). Panel: CLAY, Cole [THAPAR, dissenting in part]. Claim on Appeal: Title VII and Equal Pay Act compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: There is no tender back requirement to challenge a release under Title VII or the EPA. Alternatively, the employee's offer to repay the consideration shortly after filing the case satisfied the tender-back requirement.

EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018). Panel: SUTTON, Cole, Larson. Claim on Appeal: ADA termination. Disposition Below: Judgment entered after a jury trial ($27,565 in back pay, $250,000 in compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Although Tennessee is supposedly not a deferral state with respect to claims of reasonable accommodation of disabilities, and so a complainant has only 180 instead of 300 days to get on file, this was a straight disabilities discrimination claim, which the Tennessee civil-rights agency had unquestioned power to investigate. "The relevant question is whether the state agency has the power to entertain the claimant's disability discrimination claim, not whether state law recognizes the same theories of discrimination as federal law." Defendant argued that it had no duty to accommodate diabetic employee (by allowing juice at the store counter) because her nurse "testified that [she] could treat hypoglycemia in other ways" besides juice, including glucose tablets or candies. But the record in this case, the jury could have found, showed that even those measures would have barred under the company's rules. "The store manager categorically denied Atkins' [orange juice] request, failed to explore any alternatives, and never relayed the matter to a superior. That was Dollar General's problem, not Atkins'-or at least a reasonable jury could so conclude." Atkins also testified that the supposed alternatives were not as quick and effective as juice, which was easily administered and measured. Although the store argued that "it had a legitimate, nondiscriminatory reason for firing Atkins, namely the company anti-grazing policy," this argument misapprehends the EEOC's legal theory, that "failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination," and thus the EEOC and Atkins were not required to rebut other, possible legitimate reasons for the discharge. The store pointed to a supposed lack of evidence of animus against Atkins or her disability. The panel holds that this is immaterial. "An employer violates the Act whenever it discharges an employee 'on the basis of disability' (a necessary requirement for liability), not only when it harbors ill will (a sufficient way of establishing liability). 42 U.S.C. § 12112(a). Imagine a company that fired a visually impaired employee to save itself the minimal expense of buying special software for her. Without more, that would constitute termination 'on the basis of disability,' even if all of the evidence showed that cost-savings, not animus towards the blind, motivated the company." Finally, the panel affirms the fee award, holding that the Magistrate appropriately determined private counsels' lodestar (considering the success and complexity of the case) and did not improperly "double-count" by granting an enhancement.

Rogers v. Henry Ford Health Syst., 897 F.3d 763 (6th Cir. 2018). Panel: MOORE, Stranch [KETHLEDGE, dissenting in part]. Claim on Appeal: 1. Title VII (race) and Mich. state law (race, age) promotion. 2. Title VII 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. Plaintiff failed to present a prima facie case. She lacked the advanced educational credentials for the position she sought, and none of the comparable employees identified by the plaintiff were treated any differently. "Rogers is claiming that HFHS discriminated against her by not reclassifying her into a position that requires a master's degree when she has only a high school diploma, but points to no other employee--inside or outside the protected group--who was afforded a two-level educational 'jump.'" 2. District court erred holding that the plaintiff failed to prove a materially adverse action. "Rogers was referred to a fitness-for-duty exam, placed on leave, escorted out of the office, had her badge removed, and her email set to send out an automated reply that she was no longer with HFHS." Upon her return, she was ordered transferred to an arguably inferior position. "The cumulative effect of these actions is sufficient such that a jury could find that they would have dissuaded a reasonable employee from making a charge of discrimination." Record also had sufficient evidence of causation, the temporal proximity of between the filing of the first EEOC charge on July 3, 2013 and being referred to a fitness-for-duty exam on September 11, 2013. There was also a genuine dispute of material fact about pretext. While the employer argued that the transfer was motivated by "Rogers's unsettling behavior," which took place after she'd already been cleared for return to work: "although HFHS legitimately investigated concerns about Rogers's alleged erratic behavior to ensure the safety of both Rogers and her co-workers--after these concerns were addressed, they could not support the decision to offer Rogers only a transfer to HAP or severance." Moreover, the decisionmaker Adams referenced the EEOC charge in justifying the transfer, i.e., "we knew that at that point that she had an outstanding EEOC complaint and we just thought that that would give her kind of some space from all of that."

Hostettler v. College of Wooster, 895 F.3d 844, 130 FEP 1693 (6th Cir 2018). Panel: DAUGHTREY, Gibbons, White. Claim on Appeal: 1. ADA termination. 2. Title VII termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. On the gateway issue of whether plaintiff's "mix of postpartum depression and separation anxiety" constituted a disability under the ADA, panel holds that "there is no shortage of record evidence supporting Hostettler's argument that she is an individual with a disability under the ADA. For example, Hostettler's OB/GYN, Dr. Seals, believed that Hostettler 'had one of the worst cases of separation anxiety' that he had ever seen. She cried almost every time that she was in his office, did not seem like herself, and required prescription antidepressants. Her former coworker, [Ms.] Richardson, stated that Hostettler's conditions 'limited her physically, mentally, and emotionally' and 'caused her to suffer from panic attacks, difficulty breathing, and limited ability to communicate, focus, and make decisions." Rejects the argument that intermittent or episodic attacks are not a "disability." Genuine dispute of material fact on core issue of whether the plaintiff was otherwise qualified, with or without accommodation, to perform her HR Generalist position. Employer asserted that full-time, in-office attendance was an essential function of the job. But plaintiff and her colleague testified that she carried out her duties, while the employer's witness could not point to specific unfinished work. The panel also rejected the suggestion that full-time attendance standing by itself is an essential function: "An employer must tie time-and-presence requirements to some other job requirement." "In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is. If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week. That could mean denying leave for doctor's appointments, dialysis, therapy, or anything else that requires time away from work. Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework. 29 C.F.R. § 1630.2(o)(2)(ii)." Finally, the panel holds that there was a dispute about whether the college engaged in an interactive process to accommodate the plaintiff before firing her. The testimony about the several meetings between Ms. Hostettler and her supervisor around this time were in sharp dispute about whether the college offered an accommodation. While the college claimed that the supervisor "discussed with Hostettler her concerns regarding Hostettler's failure to work full-time on at least four occasions," the record shows that the supervisor "told Hostettler that she needed to return to full-time work during only one of those meetings." 2. Because the panel knocked out premise that employer fired plaintiff for being able to perform essential functions of the job, there was a genuine dispute of material fact on pretext.

Barry v. O'Grady, 891 F.3d 622, 130 FEP 1556 (6th Cir. 2018). Panel: DAUGHTREY, Moore [SUTTON, dissenting]. Claim on Appeal: § 1983 harassment and constructive discharge (sex). First Amendment retaliation (not discussed here). Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Appeal dismissed [plaintiff]. Grounds: To determine whether the record evidence establishes a genuine dispute of material fact about a "clearly established" right - i.e., the right to be free from severe or pervasive harassment, was beyond the court's appellate jurisdiction.

Peeples v. City of Detroit, 891 F.3d 622, 130 FEP 1556 (6th Cir. 2018). Panel: DONALD, Cole, Guy. Claim on Appeal: 1. Title VII termination (race). 2. Title VII duty of fair representation against union. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. National origin claims are not "substantially similar" to those of racial discrimination claims of a different group, and thus there can be no piggybacking on EEOC charges for such claims. Alternatively, plaintiffs presented no genuine dispute of material fact about the motivation for the layoff. Although one union witness stated that the union wanted to "save" the white firefighters, wanted to "protect the white boys," and the union did not want to "lay those white boys off," statements constituted inadmissible hearsay and, in any case, were inadmissible against the city. Although plaintiffs presented raw totals of Blacks and whites terminated and saved to raise inference of discrimination, plaintiffs here provide no similar type of analysis regarding the statistical significance of the disparities between the two layoff lists. 2. Standards governing a duty of fair representation claim do not govern Title VII discrimination claims against a union (following Seventh and Ninth Circuit).

Mys v. Mich. Dep't of State Police, 886 F.3d 591, 130 FEP 1429 (6th Cir. 2018). Panel: GILMAN, Rogers, Stranch. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($140,000 in back and front pay, $210,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury had sufficient evidence to find that the board (TRB), though it manifested no specific animus against the plaintiff, was influenced by an officer who manifested an intent to retaliate. "The jury's finding that the TRB would never have been convened had it not been for Sgt. Mys's complaints was neither unreasonable nor 'clearly against the weight of the evidence' ... And although the TRB, not Cpt. Gorski, wielded the ultimate power to decide where to relocate Sgt. Mys, Cpt. Gorski's desire to have her transferred to one of the Department's preferred and more distant posts was hardly 'remote' from the TRB's proceedings." Board relied on captain's testimony of aggravating factors, while giving no weight to employee's seniority as factor for honoring transfer location request. Upholds the $350,000 award, which the department argued was excessive. It finds that $140,000 of the award could be sustained by back and front pay, despite that employee had testified at trial that her pension "equal[led] her $72,000 annual base salary at the time of her retirement." The panel notes that Sgt. Mys otherwise testified without contradiction "that the difference between her salary at the time of her retirement and the pension that she receives is $12,000 annually," and "the district court did not abuse its discretion by crediting Sgt. Mys's clear statement of her annual losses." The panel also affirms the remaining $210,000 as compensatory damages for pain and suffering. "Sgt. Mys's trial testimony is replete with references to the emotional distress that she suffered from the Department's response to her sexual-harassment complaints, the insensitive way in which it notified her of her temporary assignment to the Rockford post, and the TRB's indifference to the circumstances that motivated her fight to remain in the Sixth District. She also testified that retiring early prevented her from achieving her dream of becoming the longest-tenured female employee of the Department." Also, "[s]upport for the award can also be found from the fact that Cpt. Gorski contacted the departmental psychologist to give him a 'heads-up' before Sgt. Mys's temporary assignment to Rockford was formally announced, raising the inference that he anticipated the emotional distress that it would cause Sgt. Mys." Finally, the court notes that a $210,000 award for pain and suffering was not out of range with other, similar awards affirmed by the court.

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 130 FEP 1317 (6th Cir. 2018). Panel: MOORE, White, Donald. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Termination was directly motivated by sex stereotyping, a widely-recognized theory of liability of sex discrimination under Title VII. Discrimination on the basis of transgender and transitioning status violates Title VII. Religiously-motivated business owner was not privileged either under the ministerial exception or under the federal Religious Freedom Restoration Act (RFRA) to avoid a Title VII claim, because he maintained a religious objection to employing a transgender woman in a public-facing position. First addressing the ministerial exception, the panel notes that the defendant had already stipulated that it was not a religious institution, and thus not eligible for the defense. In any case, even if it had not so stipulated, the defendant "has virtually no 'religious characteristics' ... the Funeral Home does not purport or seek to 'establish and advance' Christian values" and "is not affiliated with any church; its articles of incorporation do not avow any religious purpose; its employees are not required to hold any particular religious views; and it employs and serves individuals of all religions." Neither was Stephens a "ministerial employee" under the exception, because she performed entirely secular functions, was not trained or involved in ministry, and was not engaged in any religious practices in her job. Regarding the RFRA defense, the panel accepts on face value the sincerity of the owner's profession of faith, and proceeds to the question of "whether the Funeral Home has identified any way in which continuing to employ Stephens would substantially burden Rost's ability to serve mourners." It rejects outright the argument that mourners might be offended by Stephens' appearance. "[W]e hold as a matter of law that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA."It also rejects the contention that the proprietor's faith was burdened by having to accept a transgender employee's decision to wear women's clothing while at work. Panel goes on to grant summary judgment to the EEOC on the additional ground that the government has a compelling interest in "eradicating employment discrimination." Notes the panel, "the EEOC's compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex." The employer sought to frame the issue more narrowly as whether it had a right "to enforce an appropriate [gendered] workplace uniform," but the panel holds that "the Funeral Home has not identified any cases where the government's compelling interest was framed as its interest in disturbing a company's workplace policies."

Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018). Panel: GIBBONS, Guy, Cook. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Judgment following a jury trial ($92,000.00 in compensatory damages and $18,184.32 in backpay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff presented sufficient evidence that she was a qualified person with a disability. Employer argued that physical attendance was an essential function of the job of in-house lawyer. But despite there being evidence that supported this argument (a written job description, testimony of former employees in the office, and even plaintiff's own testimony), the jury could have held in favor of the plaintiff. Other evidence included "testimony from coworkers, from which a jury could reasonably conclude that she was otherwise qualified to perform her job from home for ten weeks without being physically present in the office .... For example, several MLG&W employees as well as outside counsel who worked with Mosby-Meachem testified that they felt she could perform all essential functions during the 10-week period working from home." She also presidented testimony of two outside counsel who testified that they believed she could perform her work temporarily from home. And she presented evidence that poked holes in the company's presentation, such as testifying that the job description was based on a 20-year-old survey, "did not reflect changes in the job that have resulted from technological advancements since that time," and included tasks (such as trying cases and deposing witnesses) that she hadn't performed in eight years. Panel distinguished recent precedent EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc), and Williams v. AT&T Mobility Services LLC, 847 F.3d 384 (6th Cir. 2017), as cases involving requests for open-ended (instead of finite) telecommuting. Finally, "Mosby-Meachem presented evidence that MLG&W did not in fact engage in an interactive process, but rather had already determined what accommodation it was willing to offer [sick leave and short-term disability] before ever speaking with Mosby-Meachem." Executives on the ADA Committee had stated that they would never grant a telecommuting request regardless of the circumstances. Panel also affirms denial of a new trial, finding that (1) the verdict was not against the great weight of evidence; (2) it was not error for the plaintiff (by way of background) to testify about her personal knowledge and expertise in disability-discrimination law; (3) the verdict form was not erroneous; and (4) the district court properly excluded evidence about the lack of financial hardship to the plaintiff (such evidence would have been irrelevant to the accommodation). Finally, panel holds that there was no error in refusing to discount backpay for the short period when the plaintiff was administratively suspended from practice for failure to pay her bar renewal fee. "[I]t is undisputed that neither party was aware that Mosby-Meachem's law license was suspended during the relevant time frame and that-had MLG&W not denied her requested accommodation-Mosby-Meachem would have received her full pay for work performed during this time."

Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, 880 F.3d 791, 130 FEP 1141 (6th Cir. 2018). Panel: MOORE, Daughtrey (SUTTON, dissenting). Claim on Appeal: Title VII retaliation. Disposition Below: Judgment following a jury trial ($10,000 back pay) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: "[S]uccessful Title VII plaintiffs are presumptively entitled to back pay ... to make them whole," and plaintiff proved his losses during his extended period of unemployment. District court erred by placing the burden of proof on plaintiff on mitigation during roughly August/September 2013 to October 2015. "The district court faulted Pittington for failing (1) to 'provide specific testimony regarding the periods of time he was unemployed or his efforts to find employment during those periods other than to state that he 'looked for work''; (2) to submit 'documentation to substantiate his testimony as to his employment or the amounts he earned while employed'; and (3) 'to provide any documentation to support the calculation of his claim for back pay' ... Such critiques were unfounded, as Pittington did not bear the burden of producing evidence as to his efforts at mitigation." While defendant averred that the jury could have "inferred" a lack of mitigation during that period, based on the plaintiff's admission "that it is not hard to get a job in Pigeon Forge," the panel majority holds that the record could not support such an inference: "'Theater employees' ability to retain jobs tells the jury next to nothing about unemployed persons' ability to secure jobs, and Lumberjack provided no evidence from which the jury could infer that jobs comparable to Pittington's position at Lumberjack were readily accessible in Pigeon Forge." Record established that plaintiff's "starting salary at Lumberjack was approximately $8 per hour, ... he did not disagree with opposing counsel's statement that his salary was subsequently raised to $10.50 per hour," and he "worked an average of forty hours per week at Lumberjack." "Such evidence satisfied Pittington's burden of production regarding the gross amount of back pay that he was owed." The employer also argued that "Pittington failed to prove sufficiently his interim earnings" for set-off purposes, but the panel majority holds that "Lumberjack, not Pittington, bore the burden of proving the amount of Pittington's interim earnings between discharge and judgment." While the plaintiff himself "offer[ed] some evidence of his post-termination and pre-mitigation wages," even construing that evidence in favor of the verdict, Pittington was still "entitled to something in the range of $35,000 in damages." Jury could not have simply found Pittington's testimony not credible. But the court holds that "[t]he jury could not simply disbelieve Pittington's testimony as to his earnings between April 2013 and October 2015 and, on that basis, decide that Pittington was not entitled to any back pay for those thirty months." While a jury is permitted to make credibility determinations, they cannot weigh something against nothing: "the defendant here did not controvert or undermine Pittington's testimony with regard to damages. If anything, Lumberjack introduced evidence that would indicate that Pittington was owed even more in back pay than the amount he claimed." Remand for the district court to either "secure both parties' consent to" a reasonable estimate of damages, or else "hold a new trial on damages and ensure that, this time, Pittington's back pay award aligns with the proofs." It also remands the 0.66% prejudgment interest rate, holding that the district court erred by not considering the relevant factors to ensure the rate is "fair." "[E]ven though a court may conclude that certain factors are more pertinent than others under certain circumstances, a court may not apply § 1961 without considering any relevant case-specific factors. Here, the district court's analysis was too terse to satisfy even a narrow reading of [circuit law] requirements."

Anwar v. Dow Chem. Co., 876 F.3d 841, 130 FEP 1012 (6th Cir. 2017). Panel: DONALD, Sutton, Thapar. Claim on Appeal: Title VII and Mich. state law discrimination (sex, marital status). State law claims (not discussed here). Disposition Below: Dismissal for lack of personal jurisdiction, Rule 12(b)(2) and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to show that MEGlobal International, headquartered in the United Arab Emirates, is the alter ego of Michigan resident MEGlobal Americas. Under federal law, plaintiff must demonstrate "unity of interest and ownership" that goes beyond mere ownership and shared management personnel. State law affirmatively requires a parent-subsidiary relationship in order to impose a claim of tort liability based on that relationship (which was not alleged). Against Dow, she alleges that the company controlled her employment through MEG International managers, but she and managers worked for different Dow subsidiaries and plaintiff did not show that the subsidiaries were an integrated enterprise. District court did not abuse discretion in granting protective order against two plaintiff depositions of former President and CEO of MEG International, and former Fraud Investigator for Dow, where discovery requests were of former employees, removed from their employment by multiple years.

Watford v. Jefferson County Bd. of Educ., 870 F.3d 448, 130 FEP 655 (6th Cir. 2017). Panel: MOORE, Daughtrey [GIBBONS, dissenting]. Claim on Appeal: Title VII and ADEA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employer and union retaliated against plaintiff by holding her arbitration proceedings under the collective bargaining agreement relating to her termination in abeyance while her EEOC charge was pending. Refusing to process arbitration was adverse employment action. Noting circuit split.

EEOC v. United Parcel Service, Inc., 859 F.3d 375, 33 A.D. Cases 801 (6th Cir. 2017). Panel: MOORE, Norris, Stranch. Claim on Appeal: ADA EEOC subpoena enforcement, 42 U.S.C. § 2000e-9. Disposition Below: Subpoena enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: On charge of unlawful disclosure of medical information, employer databases that stored and allegedly disclosed employee medical information are directly relevant to charge. Charge alleges that employee violated the ADA's confidentiality provision by publishing charging party's request for medical leave on "on the company's Health and Safety intranet site." Request not overbroad: breach of confidentiality charged is not limited to himself; claimant claims that "all other employees subject to Health and Safety incident action/reports have had their confidentiality breached in the same manner as me." Even if the amended charge were invalid, databases that unlawfully disclose medical information of other employees would reflect a pattern of discrimination that "may well justify an inference that the practices complained of here were motivated by . . . factors [in violation of the ADA]." District court also did not abuse its discretion in finding that UPS's "privacy case" criteria were relevant to charge. Disclosure may reveal an acknowledgment on the part of UPS that some information in the databases was "confidential information that shouldn't be shared with all managerial employees throughout the country." Objection to undue burden unsupported; data can be transmitted electronically.

Marshall v. Rawlings Co., 854 F.3d 368 (6th Cir. 2017). Panel: MOORE, White (SUTTON, dissenting). Claim on Appeal: ADA demotion and termination. FMLA and state law tort (not discussed here). Disposition Below: Summary judgment [defendant] Outcome on Appeal: Reversed [plaintiff]. Grounds: Under cat's paw liability, genuine dispute of material fact whether lower-level supervisors caused termination on basis disability. Plaintiff could present theory that lower-level supervisors (here, Bradshaw and Elsner) influenced an intermediate decision maker (Plumley) who in turn, either oblivious to or adopting the subordinate's bias, influenced the ultimate decision maker (Rawlings). Notes that a supervisor who conducts an in-depth and truly independent investigation is not being manipulated by biased lower-level supervisors, but rather making a decision based on an independent evaluation of the situation. While employer asserted that plaintiff was fired for performance, record contains conflicting evidence surrounding her performance both before and after her demotion, showing that she performed well in some areas and poorly in others, while record does not elucidate the relative importance of these different areas or how plaintiff's overall performance compares with her co-workers' performance. First-level supervisors also made comments derogating her need for leave. Also, respecting cat's paw, there is a genuine dispute of material fact as to whether first-level supervisors. Final decision on demotion equivocal about reliance on first-line supervisors' reports or whether any further investigation was done. decision maker also had first-line supervisors inform plaintiff that she was being demoted, which may indicate that she viewed their advice as integral to her decision making process. Likewise, genuine dispute of material fact about termination where decision maker's only information about the asserted false claim of harassment came from a meeting with Plumley, a conversation with Elsner, and a brief, five- to ten-minute meeting with plaintiff, at which he fired her.

Phillips v. UAW Int'l, 854 F.3d 323, 130 FEP 55 (6th Cir. 2017). Panel: McKEAGUE, Cook [MERRITT, dissenting]. Claim on Appeal: Title VII and Mich. state law harassment against union (race). Disposition Below: Summary judgment [defendant] Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court possibly erred in holding that a union could not be found liable for harassment, summary judgment affirmed on alternative ground that plaintiff did not present a genuine dispute about whether conduct was severe or pervasive, where alleged racial comments were only a few in two years: racially offensive statements made over a period of two years: (1) listing of Black union reps he would fire; (2) rep saying that they needed "another black on staff"; (3) rep's big-black bodyguard comment; and (4) rep's "too many blacks" in the union comment.

Williams v. AT&T Mobility Servs., LLC, 847 F.3d 384, 33 A.D. Cases 385 (6th Cir. 2017). Panel: GILMAN, Griffin, Stranch. Claim on Appeal: 1. ADA reasonable accommodation. 2. ADA interactive process. 3. ADA discrimination. 4. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Accommodation requested in the form of leave from work for treatment, flexible scheduling, and addition al breaks during her shifts. But there is no genuine dispute of material facts that regular attendance is an essential function of the job. Regular attendance is an essential function of most jobs, and exceptions will be relatively rare. Here, employer - a call center - maintains strict Attendance Guidelines, under which absences and tardiness of as little as five minutes result in attendance points. Moreover, employee had not proposed a reasonable accommodation that would allow her to perform the essential functions of her job. Scheduled breaks did not resolve plaintiff's inability to perform her job duties during anxiety attacks. Medical evidence reveals that Williams could not work at all for significant periods of time. Indefinite leave, or leave after already received significant amounts of time off and has demonstrated "no clear prospects for recovery," not reasonable. Plaintiff already had STD time for many months. 2. Employer's failure to engage in the interactive process is actionable only if the employee can demonstrate that she was qualified for the position. 3. Failed to produce sufficient evidence to create a genuine dispute of material fact as to whether she was qualified for her position, with or without a reasonable accommodation. 4. Plaintiff cannot create a genuine dispute of material fact on her retaliation claim by simply asserting that she was terminated soon after asking for addition al leave. And plaintiff has produced no other evidence of pretext. There is ample evidence in the record that employer was poised to terminate plaintiff for legitimate business reasons-her poor attendance record-well before late June of 2014. No shifting rationales. Plaintiff failed to authenticate attendance records of co-workers, and even if she had, attendance and disciplinary records in themselves did not provide any context about the types of absences at issue or the coworkers' circumstances.

Hale v. Johnson, 845 F.3d 224, 33 A.D. Cases 233 (6th Cir. 2016). Panel: DONALD, Boggs, Gilman. Claim on Appeal: ADA and Rehabilitation Act discrimination and reasonable accommodation. Disposition Below: Motion to dismiss for lack of subject matter jurisdiction, FRCP12(b)(1) denied [plaintiff] Outcome on Appeal: Affirmed [plaintiff]. Grounds: Decision to terminate employee for failing a pulmonary function test not exempt from judicial review. 29 U.S.C. § 794a(a)(1) did not incorporate national-security exemption from Title VII, 42 U.S.C. § 2000e-2(g). Department of the Navy v. Egan, 484 U.S. 518 (1988), does not include employment decisions outside of the context of security clearances.

Tennial v. United Parcel Service, Inc., 840 F.3d 292 (6th Cir. 2016). Panel: GILMAN, Gibbons, Stranch. Claim on Appeal: 1. Title VII and Tenn. state law demotion. 2. ADEA and Tenn. state law demotion. 3. ADA and Tenn. state law discrimination and reasonable accommodation. FMLA 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. Alleged use of the n-word and "boy" about other employees, not in connection with adverse action, not direct proof of discrimination. Although plaintiff met prima facie case, he did not create a genuine dispute of material fact about pretext. Plaintiff failed to show that he was similarly situated to any of four white comparators who also supposedly had on-going performance deficiencies and failed to meet reasonable expectations. Comparable (1) was far less experienced than plaintiff; comparable (2) improved his performance with counselling; comparable (3) was not shown to fall below standards and was temporary in the position; comparable (4) did not engage in performance failures of comparable seriousness to plaintiff. 2. Sole fact that he was replaced by a younger person is insufficient as a matter of law to raise a genuine dispute of material fact as to whether employer nondiscriminatory reason for demoting him was pretextual. 3. Record shows that supervisors, including the primary decision maker, were unaware of plaintiff's stress-related disability. Fleeting reference to plaintiff's "ADA deal" did not put them on notice of request for accommodation.

O'Donnell v. City of Cleveland, 838 F.3d 718, 129 FEP 957 (6th Cir. 2016). Panel: DONALD, Sutton, Griffin. Claim on Appeal: Title VII, § 1981, and Ohio state law discipline (reverse race). State contract and Due Process claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: White officers claimed they were treated more harshly (removed from duty for a longer period of time) for their involvement in shooting of two Black men than Black officers. District court did not err in finding no genuine dispute that the two men were unarmed and that the officers heard an engine backfiring, not a gun; fact issue not material, in any case. Evidence of prior litigation by white officers against city not direct evidence of intent, where they involved entirely different sets of traumatic events, officers, supervisors, and decision-makers. Alleged statistical information about disparate treatment of officers had serious infirmities that greatly undermine its credibility: does not address all of the "relevant" aspects of the employment situation, averages are skewed by the inclusion of dates for which plaintiffs were detailed to transitional duty assignments. Even if plaintiffs made out prima facie case, there is no genuine dispute about reason for city's action. No admissible evidence that segregation was motivated by media inquiries. Without any contrary evidence to commanding officer's assertions, plaintiffs have not demonstrated that his decision to keep the plaintiffs or transitional duty until the outcome of the prosecutor's investigation was a pretext for discrimination against them based on their race.

Richardson v. Wal-Mart Stores, Inc., 836 F.3d 698, 129 FEP 899 (6th Cir. 2016). Panel: DAUGHTREY, Cook, White. Claim on Appeal: ADEA and Mich. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Age-biased statements by former manager not direct evidence where termination decision was made by someone else. Evidence of rude treatment by other manager also not direct evidence because there was no evidence to show it was motivated by age. No genuine dispute of material fact that employer fired plaintiff for legitimate, non-discriminatory reason (repeated safety violations). Coaching documents admissible under FRE901 because they were authenticated with declarations by managers with personal knowledge, and plaintiff testified that she read and electronically signed them. Although state law requires that an employer permit and employee to inspect their personnel file, the law does not require that the file be maintained on paper, and in any case employee did not invoke this law. No genuine dispute that plaintiff was coached on multiple occasions, and There managers supported the third coaching. Termination also support by honest-belief rule; manager reasonably relied on the fact that plaintiff had There prior coachings in her record.

Schleicher v. Preferred Solutions, Inc., 831 F.3d 746, 129 FEP 6496 (6th Cir. 2016). Panel: MOORE, Daughtrey, Stranch. Claim on Appeal: Equal Pay Act. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Disparity in pay attributable to factor other than sex, i.e., male employee's willingness to accept greater risk by seeking a higher percentage of income in profits. No evidence of pretext. Attempt to correct disparity by putting employees on same pay basis (thus reducing plaintiff's commissions) did not violate EPA, because original disparity itself did not violate law.

Rembisz v. Lew, 830 F.3d 681, 129 FEP 673 (6th Cir. 2016). Panel: SUTTON, Boggs, Clay. Claim on Appeal: Title VII promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: 42 U.S.C. § 2000e-16(c) ninety-day period measured by when claimant, not attorney, receives notice of final action.

Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 129 FEP 536 (6th Cir. 2016). Panel: CLAY, Daugherty, Stranch. Claim on Appeal: Ohio state law retaliation. Disposition Below: Judgment after a jury trial ($70,250 in compensatory damages, $100,000 punitive) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employer's sufficiency of the evidence likely not preserved for failure to renew under FRCP50, but argument was not briefed and arguments fail on the merits yesterday. Jury could have found that (1) plaintiff's multiple complaints about mistreatment by co-workers because of sex were specific enough to constitute a protected activity ("This discrimination. This harassment. [Rossi and Wells] are only doing this because they do not like to fly with women."), and co-workers conduct can constitute hostile work environment; (2) complaints were made to executive who testified that he "[a]bsolutely" provided input on the decision to terminate plaintiff; (3) plaintiff was terminated roughly There weeks after she sent her email; and (4) the reasons for termination were pretextual (many alleged wrongdoings lacked a basis in fact, shifting explanations, men not punished for same violations). While defendant probably waived challenge to punitive damages, plaintiff succeeds on the merits: "Plaintiff adduced sufficient evidence of actual malice at trial because her evidence suggested that "UJC relied upon acceptable or routinely tolerated behavior to support its decision to terminate plaintiff's employment, and . . . this decision came within weeks of plaintiff's written report of alleged sexual harassment." Amendment of judgment to add correct name of organization was not abuse of discretion.

Ferrari v. Ford Motor Co., 826 F.3d 885, 32 A.D. Cases 1518 (6th Cir. 2016). Panel: STRANCH, Clay, Gibbons. Claim on Appeal: ADA and Mich. state law training. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material dispute, under direct method that employer regarded plaintiff as disabled because of his opioid use. Only major life activity that was advanced was "working," and employer accommodated plaintiff by restricting from working jobs that required ladder climbing or working at heights. Barring employee from single job does not show that employer regarded plaintiff's opioid use as a substantial impairment. Under indirect method, district court erred in applying There-element test instead of five-element prima facie test ((1) employee is disabled, (2) employee was otherwise qualified for position, with or without reasonable accommodation, (3) employee suffered an adverse employment decision, (4) employer knew or had reason to know of his disability, and (5) position remained open while employer sought other applicants). Assuming a prima facie case under the correct test, court affirms because employee has not raised a genuine dispute of material fact as to pretext. Employer's stated reason for imposing restrictions on plaintiff was his opioid use. Employer's doctor conducted two examinations of plaintiff, reviewed his medical history, obtained his most up-to-date medical records, ordered new tests, ordered an independent medical examination to resolve discrepancies in his medical record, and revised his restrictions based on this new information.

Szeinbach v. The Ohio State Univ., 820 F.3d 814, 129 FEP 47 (6th Cir. 2016). Panel: GILMAN, Merritt, Batchelder. Claim on Appeal: Title VII discrimination (sex) and retaliation. Disposition Below: Judgment after a jury trial for plaintiff, but with back-pay vacated [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. "Even though the culpable employer itself must indeed pay the appropriate amount of back pay, nothing in the statute forecloses the possibility that the amount might depend on what the plaintiff could have earned while working for a different employer." Nonetheless, in this case court holds that plaintiff failed to prove such losses at trial. Because "a plaintiff must establish the amount of back pay with reasonable certainty," court may not award amounts based on speculation that the plaintiff might have obtained a higher-paying job. Here, plaintiff testified that she considered pursuing jobs at the University of Arkansas in 2006 and at the University of Kentucky in 2011, yet she not apply or interview to work at either school. The other institutions enjoyed "discretion in their hiring decisions, and nothing in the record indicates that [plaintiff] had any legitimate basis to believe that she would likely be employed by either of them." And the expert testimony did not advance her claim, because it too was based on "conjecture and speculation about [plaintiff's] future job opportunities."

Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 128 FEP 1425 (6th Cir. 2016). Panel: CLAY, Siler, Kethledge. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Female mental health technician ("MHT") fired for alleged negligence in discharging patient. Genuine dispute of material fact about why two male MHTs who also arguably committed "major incidents" were not terminated. Evidence that two men's actions were of "comparable seriousness" (failure to check wristband, engaging in improper search) to the conduct for which plaintiff was discharged to establish a prima facie case, and neither was fired. At prima facie stage, finer distinctions between conduct not relevant. At pretext stage, despite more rigorous comparison conducted, genuine dispute of material fact remains. Relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy, but may take into account actual and potential consequences of the employee's actions. Here, employees violated the same rule, the results of that violation were the same, and the harm that ultimately befell the patients because of that violation was the same; any difference was solely related to employer's speculation on future consequences, best left to jury. Argument that plaintiff's mistake took place on the same day as a meeting emphasizing the importance of checking ID bands, where meeting appears merely to have been a refresher about a policy that was already in effect. Moreover, plaintiff was a well-reviewed veteran employee with no disciplinary record, was terminated for making the same mistake as one male MHT with aggravating circumstances (prior write-ups, on last-chance-agreement). Plaintiff and comparable also had similar alibis. With second male MHT, while violations were not identical, employer treated them as substantially identical (both have similar classification in procedures, and were well-established rules. Also severity of their actual consequences: neither employees' violation resulted in harm to patients or staff. That plaintiff was the only female out of fourteen MHTs supports her contention that employer preferred males for that particular position. That women were decision-makers does not render unreasonable inference of discrimination, where women may have deemed other women less capable of handling unruly patients

Smith v. Rock-Tenn Services, Inc., 813 F.3d 298, 128 FEP 1233 (6th Cir. 2016). Panel: CLAY, Roger, Thapar. Claim on Appeal: Title VII harassment (same-sex). Disposition Below: Judgment after a jury trial ($307,000 in compensatory damages, capped at $300,000) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Male plaintiff could prove that harassment was "because of sex" by "persuad[ing] the jury that Defendant operated a mixed-sex workplace in which [harasser] exposed men and only men to unwelcome touching." Because plaintiff's testimony that the workplace was 30% female was "uncontroverted," the panel holds that "we cannot adopt Defendant's characterization of its plant as a gender-segregated workplace." And because plaintiff testified that touched at least seven colleagues, all of them male, the jury could infer a sex-based motivation. Jury could also have found the conduct to be severe or pervasive. Although the employer on appeal continued to characterize the repeated sexual contacts as horseplay, "the jury apparently found that pinching and slapping someone on the buttocks or grinding one's pelvis into another's behind goes far beyond horseplay," a finding supported by the record. Moreover, "all of the incidents Plaintiff experienced or of which he was aware that took place over the roughly six months that he and [harasser] both worked in the plant involved the element of physical invasion" and "the There incidents between him and [harasser] took place over the course of a few months," indeed just a week separating the first and second incidents. The panel holds that there was sufficient evidence that the company failed to respond appropriately: "In this case, a reasonable jury could have concluded that Defendant's total inaction for ten days, where Defendant knew that [harasser] had touched Plaintiff, and had told [harasser] that further complaints would result in termination, was unreasonable. Defendant did not separate the two men, suspend [harasser] pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard's prior misconduct." Affirms denial of a new trial based on evidentiary issues. It holds that the admission of testimony by other victims of other harassment was relevant to establishing that harasser's conduct was directed only at men. It also holds that evidence of Plaintiff's post-employment mental health difficulties was relevant to establishing a basis for compensatory damages. Finally, while the plaintiff's attorney should not have characterized plaintiff's separation from the company as "los[ing] his job" in closing argument, the statement was not reversible error.

Howe v. City of Akron, 801 F.3d 718, 127 FEP 1805 (6th Cir. 2015). Panel: MOORE, Cook, Cohn. Claim on Appeal: ADEA and Title VII disparate impact promotion (race). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed except back pay [plaintiff]. Grounds: Affirms liability, relying on law-of-the-case from Howe I. Akron failed to demonstrate "extraordinary circumstances" to depart from the court's earlier ruling. Akron forfeited its legal challenges to the liability verdict, such as sufficiency of the evidence and challenges to the jury instructions, by not presenting them in Howe I appeal. District court erred in calculating all Title VII back-pay awards from the date when the eligibility list expired in April 2007. Correct date of injury was instead when the promotions occurred in 2005; also "should have calculated each Plaintiff's back pay from the date no more than two years before he or she filed a charge of discrimination with the EEOC" (citing 42 U.S.C. § 2000e-5(g)(1)). District court also erred in not awarding the plaintiffs step increases - awards that compensate for lost raises and promotional opportunities. Exclusion of evidence of stepwise raises as a sanction was abuse of discretion. Clearly erroneous finding that the plaintiffs were primarily responsible for the non-disclosure and that it was supposedly a deliberate "bait-and-switch" to avoid discovery. Plaintiff ought to have been awarded prejudgment interest, in particular that the plaintiffs never waived such relief. The Seventh Circuit's "lost-chance" theory to reduce the awards, on the ground that not all of the plaintiffs would have been promoted, not applied. Affirms the injunctive relief and appointment of a monitor. Akron argued that it had already abandoned the challenged process, but the panel holds that this does not moot prospective relief. District court did not clearly err in finding an injunction to be necessary make-whole relief. It also rejects challenges to the scope of the injunction. The only change it orders is to limit the monitor's term to one promotion cycle. Case reassigned to a new judge; judge's stubbornness and dilatory rulings made this "an extraordinary case that warrants reassignment." While acknowledging that the parties' litigation tactics contributed to the delay, "the discord appears to be, at least in part, the result of the protracted nature of this litigation to which the district judge has contributed greatly."

Yazdian v. ConMed Endoscopic Tech., Inc., 793 F.3d 634, 127 FEP 1057 (6th Cir. 2015). Panel: MOORE, Cole, Clay. Claim on Appeal: 1. Title VII termination (national origin, religion). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. No genuine dispute of material facts about pretext. Although there was some evidence of insensitivity to Iranian Muslim (giving out gift cards for ham, showing him National Geographic story about ancient Persia) and alleged preference for non-Iranian, non-Muslim employees, none of these incidents cast doubt on legitimate, non-discriminatory reason for terminating employee (insubordination and bad behavior). 2. Jury could find that plaintiff was engaged in protected activity by raising his complaints about national origin and religious discrimination with his supervisor: He complained about a "[h]ostile work environment" based on allegedly offensive comments, record shows that employer understood plaintiff's complaints as opposition to allegedly harassing conduct because the legal department told HR to investigate claim after learning that plaintiff had accused manager of creating a hostile work environment and "not liking his 'race.'" Irrelevant that plaintiff did not channel his complaints formally to HR: "protected activity includes complaints to co-workers, reporters, and managers, and therefore to whom [plaintiff] made statements opposing discrimination is immaterial to the viability of his retaliation claim." Also genuine dispute of material fact about retaliatory motive. There was direct evidence that "[when Sweatt provided ConMed with examples of Yazdian's communication problems and 'unwillingness to accept and apply constructive coaching,' Sweatt cited Yazdian's hostile-work-environment and discrimination comments as examples." Also, "Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges." Panel notes that "summary judgment is not proper when an employer cites an employee's tone of voice or manner of speaking as the cause of termination-particularly in the context of a Title VII claim of retaliation." Also evidence of "temporal proximity": manager was aware of plaintiff's complaints no later than June 1, 2010; plaintiff was terminated July 26, 2010; and in between came the warning letter and other communications "in which Sweatt called Yazdian's protected activity inappropriate." Finally, there was evidence that the employer's reason for terminating Yazdian was pretextual. The company cited the plaintiff's insubordination, but the panel holds that "at the summary-judgment stage, we cannot accept an employer's conclusory claim that an employee was insubordinate when the alleged 'insubordination consists of refusing to cease what a jury could find to be reasonable [Title VII]-protected activity'" Sixth Circuit's "honest belief" rule required at least a modicum of good-faith investigation into the facts, yet "[t]he record suggests that ConMed chose to terminate Yazdian based solely on Sweatt's account of events. Hebbard did not interview Yazdian, his co-workers, or past managers to determine the basis of Sweatt's allegations before drafting the warning letter."

Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637, 127 FEP 945 (6th Cir. 2015). Panel: STRANCH, Merritt [COOK, dissenting in part]. Claim on Appeal: Title VII pattern or practice pay and promotion (sex). Disposition Below: Dismissal of class allegations for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiffs have standing to appeal striking of class allegations because denial of class means plaintiffs do not have access to pattern-or-practice framework of proof. Unnamed class members may use American Pipe tolling to refile their own actions after the Supreme Court ordered decertification of California national class action in Dukes. Plaintiffs may bring a new 23(b)(3) class action because California court had no opportunity to consider such a class before Dukes. Plaintiffs could also seek Rule 23(b)(2) certification, where (1) action was timely filed and (2) it is limited to one region and seeks not monetary relief.

Wheat v. Fifth Third Bank, 785 F.3d 230, 126 FEP 1668 (5th Cir. 2015). Panel: KEITH, Cole, Batchelder. Claim on Appeal: Title VII and Ohio state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact on prima facie case regarding whether plaintiff identified a comparable employee, i.e., the one who he fought with at work. Even though the two employees held different jobs, a jury could find that they "simply may have been performing different aspects of the same functional job." Moreover, there was a genuine dispute - "even on the most cursory of examinations" - about whether the employer could have found that plaintiff was the aggressor, where deposition testimony establishes that it was white employee, not plaintiff, who pursued the altercation after the two men had separated initially and gone to their respective "corners." District court erroneously resolved facts in favor of the movant on another issue: how the two men behaved during the interviews. Though the employer said that it regarded Wheat's behavior as belligerent, the record - viewed in favor of the non-movant - was ambiguous at best about whether company management was genuinely troubled by Wheat's conduct and statements. Also a genuine dispute about pretext. Employer contended that plaintiff was fired for "refusal to cooperate during the interview" and supposedly making Thereats such that "[plaintiff] would resort to physical violence if he were to return to work." The record contained evidence that plaintiff's conduct might have been prompted by manager asking irrelevant questions and never offering plaintiff "an opportunity to give his side of the story, an opportunity that she did extend to ... Hatfield during the subsequent interview." Regarding any alleged Thereats of violence, the record showed that the concern was misplaced: "the other active participant in the argument who did use physical violence, was not terminated for almost There months after [plaintiff] was fired."

EEOC v. New Breed Logistics, 783 F.3d 1057, 126 FEP 1403 (6th Cir. 2015). Panel: KEITH, Cole, Batchelder. Claim on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Judgment after a jury trial ($1.5 million in compensatory and punitive damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: EEOC alleged that supervisor sexually harassed There women and retaliated against them after they resisted his sexual advances. Supervisor also retaliated against a male employee, Partee, "who verbally opposed [his] sexual harassment and supported the women's complaints." Eighty percent of the workforce at New Breed (a supply-chain logistics company) were hired as "temporaries." They were not trained in the details of the company's anti-harassment policy, and the local supervisor was given unilateral power to terminate their service. District court did not err in denying the employer's post-judgment motions. On the retaliation claims, the panel holds that oral complaints to the harasser him- or herself to stop harassment is a protected activity - opposition - under Title VII, 42 U.S.C. § 2000e-3(a). Though the Sixth Circuit had never ruled on the issue before, it weighed as persuasive extra-circuit case law and the EEOC's guidance on this issue: "[We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an 'unlawful employment practice.' If an employee demands that his/her supervisor stop engaging in this unlawful practice-i.e., resists or confronts the supervisor's unlawful harassment-the opposition clause's broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed." Supervisor was, perforce, aware of the protected activity - and caused the terminations either directly (exercising his power to fire temporary employees) or under a "cat's-paw" theory (by allegedly lying about and disparaging the employees up the management pipeline). The panel also holds that the record of pretext supported a finding of but-for causation: "The district court further found that the EEOC submitted evidence sufficient for the jury to reject New Breed's legitimate, nonretaliatory reasons for the claimants' terminations-Hines (attendance reasons), Pete and Pearson (performance reasons), and Partee (time-clock improprieties)-as pretextual. Thus, in other words, the district court concluded that the jury had before it evidence sufficient to conclude that Calhoun's retaliation was the but-for cause of the claimants' adverse employment actions." On the harassment claims, the panel holds that the employer lost the benefit of the Faragher/Ellerth affirmative defense against vicarious liability for supervisor harassment because the hostile work environment in each case culminated in a "tangible employment action," i.e., termination. Finally, regarding the award of punitive damages and the Kolstad defense, the panel holds that the jury could have found (among other things) that the employer did not engage in good-faith efforts to prevent and correct sexual harassment and retaliation: "[T]he EEOC presented evidence that New Breed did not distribute its anti-harassment policies to temporary employees like Pete, Pearson, and Hines. The EEOC also presented evidence that Woods failed to investigate Pete's first call to the compliance hotline; instead, she merely asked Calhoun if the charges were true.... The evidence showed that, although 80% of New Breed's workers at the Avaya facility were temporary employees, New Breed only distributed its anti-harassment and anti-discrimination policies to permanent employees. A jury could have reasonably found that this was not 'effective publication.'" Finally, the panel upholds the jury instructions on punitive damages and retaliation.

EEOC v. Ford Motor Co., 782 F.3d 753, 31 A.D. Cases 749 (6th Cir 2015) (en banc). Panel:MCKEAGUE, Boggs, Batchelder, Gibbons, Rogers, Sutton, Griffin, Kethledge (MOORE, Cole, Clay, White, Stranch, dissenting). Claim on Appeal: 1. ADA termination and reasonable accommodation. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that establishing regular and consistent, on-site attendance was an essential function of the job, and telecommuting was not a reasonable accommodation where employee (with irritable bowel syndrome) repeatedly failed to abide by its requirements. As resale buyer, employee had to regularly engage in face-to-face contact with stampers and suppliers. EEOC's evidence - plaintiff's own declaration, other employees' telecommuting, access to technology - demonstrated only that a resale buyer could perform functions remotely, but did not establish that it could be done on the up-to-four-day-a-week schedule proposed by plaintiff. 2. No genuine dispute of material fact on pretext that employee was fired for performance (failed to update documentation, complete paperwork, schedule training, finish work on time), rather than protected activity. Attempts to counsel employee on performance (by a nondecision maker) not evidence of pretext, where complaints were consistent before and after charge. Also, no evidence of causation; employer motivated by performance/attendance issues.

Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 126 FEP 7 (6th Cir. 2015). Panel: BATCHELDER, Beckwith [ROGERS, concurring]. Claim on Appeal: Title VII and Mich. state law termination (sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff employed by Christian organization on campus as a spiritual director ("Spiritual Formation Specialist"), involved in providing religious counsel and prayer, fell within First Amendment ministerial exception and employer was thus immune from claims. While only two of the four Hosanna-Tabor factors were present (her formal title and the important religious function she serves), these factors by themselves point to ministry and exception applies. Ministerial exception, because it is a structural limitation imposed on the government by the First Amendment, is a limitation that can never be waived by the litigants. First Amendment's ministerial exception can be asserted as a defense against state law claims. Individual supervisors share the same immunity.

Yeager v. First Energy Generation Corp., 777 F.3d 362, 125 FEP 1685 (6th Cir. 2015). Panel: Per curiam (Batchelder, Moore, Sutton). Claim on Appeal: Title VII and Ohio state law hiring, termination (religion). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer not required to accommodate an employee's religious beliefs if such accommodation would violate a federal statute, so plaintiff does not state claim for demanding that employee not request Social Security number.

Tilley v. Kalamazoo Ct'y Rd. Comm'n, 777 F.3d 303, 125 FEP 1696 (6th Cir. 2015). Panel: LEITMAN, Suhrheinrich, Griffin. Claim on Appeal: Mich state law termination (age). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that employee was not replaced with younger employer, thus failing to present prima facie case. Employee's purported alternative proof - a "pattern" of age discrimination - insufficient where evidence includes individuals whose ages employee does not know and merely estimates; individuals who voluntarily retired without ever facing any identified adverse employment actions; and individuals who were criticized but not fired. Employee also failed to property preserve such a record by merely "incorporating" by reference briefing filed by the plaintiff's lawyer in an unrelated age-discrimination matter.

Marie v. American Red Cross, 771 F.3d 344 (6th Cir. 2014). Panel: VAN TATENHOVE, Rogers, Griffin. Claim on Appeal: Title VII and Ohio state law termination, retaliation and harassment (religion). First Amendment and tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:Volunteers not covered by Title VII. Plaintiffs received no remuneration or traditional employee benefits. Possibility of obtaining future employment, access to service opportunities, etc. too speculative. No W-2s, W-4s or I-9s. Plaintiffs were not on a schedule, and one plaintiff was absent for a year before she was terminated. Plaintiffs were not economically dependent on their relationship with enterprise. Duration of relationship not probative.

Johnson v. City of Memphis, 770 F.3d 464, 124 FEP 1741 (6th Cir. 2014). Panel: COOK, Suhrheinrich, Gibbons. Claim on Appeal: Title VII disparate impact. State tort claim (not discussed here). Disposition Below: Judgment after a bench trial (invalidated sergeant promotional process) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: District court erred in application of less-discriminatory-alternative standard at trial to 2002 process. Such alternatives must be proven to serve employer's legitimate interests, produce "substantially equally valid" results, yet with less discriminatory results. Plaintiffs pointed to 1996 process, which used a "high-fidelity role-playing exercise." Court adopted this without proof of how the 2002 process would be improved by incorporating 1996 test, or addressing test security issues (there were documented instances of cheating on the 1996 and 2000 tests). Court also credited other alternatives (a Chicago-plan and integrity/conscientiousness tests) without considering their merits. Moreover, high-fidelity test was expensive, labor-intensive and difficult to grade. No evidence that simulations are equally valid and less discriminatory, no explanation for how subjective test could be scored to reduce disparate impact. Past success of process does not suffice - it predicts, but does not establish, success in different, future applications. Two other alternatives were minimally briefed and likewise are unsupported by sufficient evidence that a subjective review would have a less-discriminatory impact. In sum, third-stage proof fails as a matter of law. Alternative basis for affirmance - that district court's findings on employer's phase-two proof was clearly erroneous - also fails. District court credited evidence that supported job validity. Regarding reliability and rank ordering, court finds that (1) district court did not clearly err in determining that plaintiff's expert witness incorporated seniority into his composite reliability score (and in any case such a finding would be harmless error); (2) city demonstrated job relatedness, sufficient score variance, and reliability; and (3) city could weight a seniority factor provided that it was bona fide and not a pretext for disparate treatment. Fee award vacated.

Frieder v. Morehead State Univ., 770 F.3d 428 (6th Cir. 2014). Panel: SUTTON, Boggs, Stranch. Claim on Appeal: Ky. state law denial of tenure (disability). First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that anyone on tenure committee was aware of plaintiff's diagnosis.

McKelvey v. Secretary of U.S. Army, 768 F.3d 491, 30 A.D. Cases 1142 (6th Cir. 2014). Panel: SUTTON, Norris, Griffin. Claim on Appeal: Rehabilitation Act constructive discharge. Disposition Below: Fee award ($244,000, reduced in half) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reduction of fee award for failing to accept prior settlement agreement not an abuse of discretion. While rejected settlement may be evidence of reasonableness that could be one factor in decision, it is not properly an exclusive factor. (Nonetheless, panel holds that Rule 68 does not set the exclusive standard for spurned offers, so reduction may be appropriate.) Rejecting $300,000 offer and receiving $60,000/reinstatement was significantly lesser recovery, and court did not abuse discretion in considering it.

Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 124 FEP 513 (6th Cir. 2014). Panel: GILMAN, Boggs [CLAY, dissenting]. Claim on Appeal: 1. Title VII and Mich state law termination (race, sex). 2.ADEA and Mich. state law termination State tort law (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No abuse of discretion in denying motion to compel against withholding (as privileged) a hospital-peer-review report under state law. No sanctions warranted for not preserving surveillance tape. No prima facie case because employee was replaced by African-American woman. 2. District court erred in holding that employee did not make out prima facie case because employer considered her unqualified; at prima facie stage, district court does not consider employer's legitimate, non-discriminatory reason. Judgment affirmed on alternative ground that there is no genuine dispute of material fact about pretext. Employer had two reports of insubordination that support honest-belief, along with facts that employee was on final-warning status and committed important directive about allowing medical personnel sole responsibility to evaluate medical admissions (employee was security guard).

Scheick v. Tecumseh Public schools, 766 F.3d 523, 124 FEP 322 (6th Cir. 2014). Panel: GUY, Gibbons, Griffith. Claim on Appeal: ADEA and Mich. state law non-renewal. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While asking employee about retirement plans does not constitute direct evidence of discrimination, two comments by decision-maker about wanting "someone younger" in the job, referring to plaintiff's position, satisfies that standard. Direct evidence does not compel a trial, but in this case would be sufficient to support a judgment in plaintiff's behalf.

Bates v. Dura Automotive Systems, Inc., 767 F.3d 566, 30 A.D. Cases 821 (6th Cir. 2014). Panel: COOK, Boggs [GIBBONS, dissenting]. Claim on Appeal: ADA medical examination, 42 U.S.C. § 12112(d)(4)Disposition Below: Judgment as a matter of law [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employer entitled to judgment as a matter of law. Plaintiffs' attack on drug-testing program using urine samples properly brought under § 12112(d)(4) rather than (b)(6) (use of qualification standards); latter claim can only be brought by qualified individual with a disability. There were disputed facts about whether the drug-testing program constitutes a "medical examination" in light of the exemption for screening for "illegal use of drugs," which can include abuse of prescription drugs. Applying the EEOC guidance, a seven-factor test, four factors tip the scale in favor of medical examination (administered by medical professionals, interpreted by medical professionals, normally given in a medical setting, and medical equipment is used). Two other factors - whether it tests employee's performance of work-related tasks and is invasive - are neutral. Third factor, arguably the most important - whether test is designed to reveal and impairment of physical or mental health - favors company. Test reveals only presence of chemicals, not health condition. While inconsistencies in employer's explanation (written vs. actual drug-testing policies) may weigh against it at trial, court could not resolve dispute as a matter of law. Prohibition into "disability-related inquiries" under § 12112(d)(4)(A) also presents issue of fact. While test reveals presence of prescription drugs, this not the same as inquiry into disability itself, thus avoiding improper inquiry. "A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to a third party, need not reveal information about a disability." Jury should be instructed on EEOC guidance factors. Agency jury instruction was erroneous; employer may have used third-party test company to screen employer from sensitive medical information, so jury should be instructed to assume that because testing agency obtained addition al information during the testing protocol, that the employer also received it. New trial denied on jury verdict that employer did not meet burden of justification (job-related, business necessity) under § 12112(d)(4)(A). District court correctly held that statutory damages were available. Punitive damage award vacated because jury must have opportunity to consider "medical examination" issue.

Kroll v. White Lake Ambulance Authority, 763 F.3d 619, 30 A.D. Cases 699 (6th Cir. 2014). Panel: MOORE, Sutton, Donald. Claim on Appeal: ADA medical examination, 42 U.S.C. § 12112(d)(4). Disposition Below: Summary judgment [defendant]Outcome on Appeal: Reversed [plaintiff]Grounds: Under 42 U.S.C. § 12112(d)(4)(A), employer required Ms. Kroll - an Emergency Medical Technician ("EMT") specialist - to attend counselling, after she was observed having several angry outbursts at her workplace. Prior panel (Kroll v. White Lake Ambulance, 691 F.3d 809 (6th Cir. 2012)) applied EEOC enforcement guidance, "Disability-Related Inquiries and Medical Examinations of Employees," and held that the proposed counselling could qualify as a "medical examination" under this provision. On remand, the district court granted summary judgment again, this time holding that the proposed examination met the job-relatedness and business-necessity standards. "The business-necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merely convenient or expedient. Rather, the individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee's behavior Threatens a vital function of the business." (Citation omitted.) Decision-maker had limited information that employee's emotional state was affecting her work. There was a genuine dispute of material fact whether decision-maker was aware of other concerns at the time he ordered counselling, such as her alleged violations of cell-phone rules while on ambulance duties. Because employee herself was not seeking counselling as an accommodation for work, the employer bore the burden of establishing decision-maker had a reasonable basis for believing that employee "was unable to perform the essential functions of her job, or that she posed a direct Thereat to her own safety or the safety of others." (Citations omitted.) "A reasonable jury could find that Kroll's emotional outbursts outside of work hours and not in the presence of patients did not impair her ability to perform essential job functions." All that decision-maker undisputedly knew at the time was that employee reportedly committed a couple of work rule infractions. Insufficient evidence of a direct Thereat to support summary judgment on this point. Record did not support that decision-maker made the decision to impose counselling "based on a reasonable medical judgment." 29 C.F.R. § 1630.2(r). Court declines to define precisely what this regulation demands of employers, but holds at a minimum that "an employer must do more than follow its own lay intuition regarding the Thereat posed by an employee's potential medical condition."

McCarthy v. Ameritech Pub., Inc., 763 F.3d 469, 124 FEP 6 (6th Cir. 2014). Panel: GIBBONS, Boggs, Siler. Claim on Appeal: ADEA and Title VII termination. Various federal and state claims (not discussed here). Disposition Below: Summary judgment [defendant]Outcome on Appeal: Affirmed [defendant]Grounds: Person whose position was saved in RIF was younger and male, but had greater seniority.

Montell v. Diversified Clinical Services, Inc., 757 F.3d 497, 123 FEP 786 (6th Cir. 2014). Panel: MOORE, White [SUHRHEINRICH, concurring]. Claim on Appeal: Ky. state law retaliation. State law claims (not discussed here). Disposition Below: Summary judgment [defendant]Outcome on Appeal: Reversed [plaintiff]Grounds: Employee presented genuine dispute of material fact about good-faith belief that she was sexually harassed; boss said that he was "turned on by a woman in a red dress and heels, while Montell was wearing a red dress and heels" and "prefaced the comments by acknowledging that she could get him in trouble with HR for making the comments." Temporal proximity is one day (from complaint of harassment until ultimatum to resign or be fired, and work liaison had been told plaintiff had resigned before she did so. There is also a genuine dispute of material fact whether decision to terminate employee occurred shortly before or after protected activity. Pretext could be established by evidence that employer had not made up its mind to terminate until after protected activity, undermining performance rationale, and evidence that supervisor attempted to force resignation by communicating with liaison.

Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 122 FEP 802 (6th Cir. 2014). Panel: MOORE, Merritt, Clay. Claim on Appeal: ADEA and Tenn. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Sixty-two year old terminated in RIF and replaced by 47-year-old presented genuine dispute of material fact over reason for termination. Despite employer's contention that Pierson's job was eliminated, the record revealed that younger employee's day-to-day schedule and responsibilities changed after plaintiff's termination, where he began spending the majority of his time - often five days per week - at the plaintiff's former plant, and he eventually moved his office there permanently. There was also a dispute about who made the decision to terminate plaintiff, where employer claimed that two executives independently reached same decision, while plaintiff presented evidence that one executive made decision, that second executive merely approved through his communications with corporate human resources. Finally, the employer's latter-day substitution of rationale - from job-elimination to plaintiff allegedly not being a "team player" - presented shifting reasons: "Although it is possible that Lentz had Pierson's allegedly poor teamwork in mind when he initially selected him for termination, and that both reasons played a role in Pierson's discharge, a reasonable jury could conclude that Lentz shifted the reasons for his decision over time."

EEOC v. Kaplan Higher Education Corp., 748 F.3d 749, 122 FEP 509 (6th Cir. 2014). Panel: KETHLEDGE, Keith, Cook. Claim on Appeal: Title VII disparate impact hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in excluding expert report of Kevin Murphy regarding race-impact of credit checks. Court could have found that report lacked reliability, where "anecdotal corroboration" cross-check of racial identity of applicants uncovered only an 80% match, the expert's technique had not been subject to peer review or enjoyed general acceptance, and there was no indication that expert selected a properly random, representative group to study.

Demyanovich v. Cadon Plating & Coating, LLC, 747 F.3d 419 (6th Cir. 2014). Panel: MOORE, Griffin, Korman. Claim on Appeal: ADA and Mich. state law termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact about whether employee was a "qualified individual," that he could perform the "essential functions" of the line-operator job at the time he was terminated (supervisor admitted that plaintiff was performing satisfactorily when he was fired). Evidence that reasons given for plaintiff's termination were false and thus pretextual. Employer contended that plaintiff was terminated because he dropped to a "zero-point attendance balance," but there was evidence casting doubt on that reason: "Although Demyanovich's termination letter states that his termination was effective February 24, after an addition al absence that would have left him with a negative point balance, Demyanovich has presented evidence from which a jury could conclude that he was actually fired on February 23" (citation omitted). Further, although employer contended that plaintiff was also fired because he "would have been unable to return to work at the end of his leave period," the panel holds that [the decision maker] could not have been motivated by that reason, because he did not have access to the information regarding the plaintiff's medical limitations on the day of his termination.

Laster v. City of Kalamazoo, 746 F.3d 714, 121 FEP 1734 (6th Cir. 2014). Panel: CLAY, Siler (BATCHELDER, concurring). Claim on Appeal: 1. Title VII, § 1983 and Mich. state law constructive discharge (race). 2. Title VII retaliation. First Amendment claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff failed to establish grounds for constructive discharge based on workplace slights (temporary evaluation downgrade, request to attend outside training, request to use meeting room denied, excluded from office meeting, revoked suspension, required to take down children's playset, reprimands, heightened scrutiny, anti-Obama desktop picture, Thereat about bringing further EEOC complaints). Events collectively did not compel employee to quit, (and no evidence established that they were intended to prompt employee to quit), nor did they communicate to the employee that he was about to be terminated. 2. Same events collectively, even if not considered sufficiently adverse to amount to discrimination, present genuine dispute of material fact about retaliation. Threshold of materiality lower for harassment claims under Burlington Northern. Harassing activity by co-workers, which employee reported to HR function, also attributable to employer where it fails to take corrective action.

Shazor v. Prof'l Transit Mgmt., 744 F.3d 948, 121 FEP 1173 (6th Cir. 2014). Panel: CLAY, Cole, Bertelsman. Claim on Appeal: Title VII and § 1981 termination (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Fired CEO, accused of angling to get hired directly by client agency, raised genuine dispute of material fact about whether she was terminated because of race and sex. One-time president of employer wrote email to co-founders complaining that plaintiff was "a 'prima donna' and not a team-player, and I suspect that she will eventually fail in a big way." Later referred to as "one hellava bitch." Panel expresses doubt that the above is "direct evidence" of discrimination, but holds instead that plaintiff established triable claim by McDonnell Douglas method. Although supposedly fired over whether she was truthful with the client about executive's availability to advise them on a union-organizing drive among the driving instructors, plaintiff testified that same executive told her in a phone call that he was too busy to help client. Emails appeared to back-up plaintiff's account. There was also a credibility dispute about whether plaintiff recommended that client hire a particular consultant (MPI) to advise on union matters, a firm deemed to be anti-labor (plaintiff denied recommending that firm). The panel also questions whether the emails unambiguously revealed sexist animus, or whether these year-old emails in any respect caused the plaintiff's termination. Panel notes particularly that the plaintiff's theory is that she suffered discrimination because she is an African American woman: "In the case now before us, both classifications-race and sex-are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds." [Citation omitted.] Employer cannot rely on its alleged "honest belief" that plaintiff had not been truthful. "investigation into Plaintiff's two purported lies consisted of speaking with one person ... about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired Plaintiff for overt misconduct. But Hock fired Plaintiff for lying-not just uttering a falsehood, but doing so "with intent to deceive." Webster's Third New Int'l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind Plaintiff's statements, let alone her motive. Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply." [Citation omitted.]

Rorrer v. City of Stow, 743 F.3d 1025, 29 FEP 447 (6th Cir. 2014). Panel: DONALD, Clay, Mays. Claim on Appeal: 1. ADA and Ohio state law termination. 2. ADA and Ohio state law reasonable accommodation. 3. ADA and Ohio state law retaliation. First Amendment claim (not discussed here) Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant] Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact whether a monocular firefighter could perform the essential functions of his job. Plaintiff blinded in one eye in accident. While his personal doctor and the city's physician cleared him to return to work without restrictions, plaintiff's chief directed city doctor to reverse the medical release, preventing plaintiff's return to duty. Later requests by plaintiff to be relieved of driving duty, or to be transferred to fire inspector duties, were denied. Plaintiff disputed Chief's argument that termination was supported by National Fire Protection Association ('NFPA') guideline 1582-9.1.3(10): 'Operating fire apparatus or other vehicles in an emergency mode with emergency lights and sirens' ('Job Task 10')." Several witnesses testified that the city had never adopted NFPA 1582. During city doctor's testimony, he was unable to identify the NFPA regulation until after the defense lawyer took the deposition "off the record." A Department document, appeared to identify the ability to drive as discretionary, not essential. District court erred in "giv[ing] deference to Stow's judgment regarding what the essential functions of the position were." Under the relevant EEOC regulations interpreting "essential function," the panel holds that "[t]he employer's determination about what functions are essential is certainly given weight, but it is one of seven factors the court should consider, including '[t]he amount of time spent on the job performing the function' and '[t]he consequences of not requiring the [employee] to perform the function.'" 29 C.F.R. § 1630.2(n)(3)(iii), (iv). "The district court appears not only to have given deference to the City's position, but to have considered only the City's position, failing to consider all of the § 1630.2 factors while drawing all reasonable inferences in Rorrer's favor as required at the summary judgment stage." District court placed too much weight on plaintiff's supposed admission that the Department could order him to drive an emergency vehicle as evidence that the driving task was "essential." "An 'essential' task, however, is not any task that an employee would feel compelled to perform if ordered to perform it by his or her employer." 2. Record establishes that City apparently never considered accommodating Rorrer. After plaintiff was initially cleared to return to work, Chief intervened to change the decision, at which point city doctor reversed decision without first examining plaintiff. Moreover, "even if operating an apparatus during an emergency were an essential function of a Stow firefighter, the district court erred in finding that Rorrer's proposed accommodation of transfer to the FPB [Fire Prevention Board, as an inspector] was unreasonable. "There was a dispute about whether there was a vacancy in the department at the time. Moreover, because fire inspectors do not make emergency calls, the city's suggestion that the ability to drive emergency equipment was an essential function for all "firefighters" lacked merit. Panel reassigns case on remand. The panel cites several instances of appearance-of-partiality: trial judge ordered the plaintiff to identify the "five witnesses" from his witness list "most likely to be utilized at trial," on pain of forfeiting their testimony at trial (without explanation or basis); did not impose the same numerical limit on defendants; struck witness declarations submitted by the plaintiff in opposition to summary judgment, even though these did not violate the five-witness rule; and preemptively stated that even if the Sixth Circuit reversed him, it would make no difference, i.e., "The Court would note that to the extent a reviewing court would conclude that a genuine issue of material fact is generated by those precise declarations, the Court would find them to be properly stricken ...." 3.Testifying at coworker's arbitration not a "protected activity" under ADA.

DeLeon v. Kalamazoo Cnty. Rd. Comm'n, 739 F.3d 914, 121 FEP 497 (6th Cir. 2014). Panel: KEITH, Black (SUTTON, dissenting). Claim on Appeal: Title VII, the ADEA and § 1983 transfer (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Job transfer originally requested by an employee constitutes "adverse employment action"; transfer may be "adverse" to the employee when the terms and conditions of the transfer are inferior to what the employee originally sought. Here, the record revealed a genuine dispute of material fact about whether the transfer was "objective intolerability." There was evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis, that he had to wipe soot out of his office on a weekly basis, and that he contracted bronchitis. Another employee compared the workplace environment to "sticking your head in an exhaust pipe" and sitting "behind a city bus." Plaintiff's prior application for the same position did not necessarily mitigate a finding of "objective intolerability": "The record reflects that Deleon applied for the position with the intention of commanding a substantial raise and under the impression that employment benefits would inure to the benefit of his career. Such a request for 'hazard pay,' which was never provided, tilts the issue as to whether Deleon really requested or wanted the position in his favor. Nor are we persuaded by the fact that Deleon technically never withdrew his request, and did not complain at the time he received the transfer." While employee never complained specifically about the job assignment, that did not render it voluntary or non-discriminatory. Because the standard is objective, "an employee's opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as 'adverse.'"

Henschel v. Clare Cnty. Road Comm'n, 737 F.3d 1017, 28 A.D. Cases 1617 (6th Cir. 2013). Panel: STRANCH, Cook, Carr. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Disputed issue of fact about whether it was the role of the Truck/Tractor drivers to haul equipment, rather than the operators themselves. Applying the five-factor test developed by the EEOC for assessing "essential function" (29 C.F.R. § 1630.2(n)(3)), it holds that the county's litigation position (that hauling was an essential function) was contradicted by the job description that assigned the hauling task to the drivers. Moreover, the actual hauling of equipment was only a small part of the operator's job, in any event: "Henschel testified that 90 percent of the time, the excavator stayed at the job site. The record does not address how much time Henschel actually spent hauling the excavator to different work sites, but this obviously varies depending on the number and location of work sites. Viewed in the light most favorable to Henschel, there is sufficient evidence that hauling the excavator did not take much of the excavator operator's time and was a relatively marginal function." Also a disputed issue of fact about whether the county had enough drivers to haul the equipment for employee. District court held correctly that it was not reasonable accommodation to assign blade truck duty to plaintiff for one-year term. The court remands the case back to the district court to consider, in the first instance, whether Henschel could operate the excavator safely.

Tillman v. Macy's, Inc., 735 F.3d 453, 120 FEP 998 (6th Cir. 2013). Panel: ROGERS, White, Alarcon. Claim on Appeal: Title VII termination (race). Disposition Below: Arbitration clause not enforced [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Waiver was knowing and voluntary where employee received information about dispute resolution program, informed of option to opt-out within a year, and acceptance was manifested by continued employment.

Rachells v. Cingular Wireless Employee Servs. LLC, 732 F.3d 652, 120 FEP 681 (6th Cir.  2013). Panel: MARBLEY, Cole, Donald. Claim on Appeal: Title VII and Ohio state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact about whether the employee was singled out on the basis of race. Proper employees for comparison, were Cingular employees, not AT&T employees: "Although the AT&T candidates were subject to the same RIF interview as the Cingular candidates, they were not subject to the same 2004 performance review criteria." Candidates were not subject to evaluation by the same decision makers. Isolating only the four Cingular employees, employee was the only minority in that group; combination of factors could support an inference of discriminatory singling-out: (1) the plaintiff was the only one not informed about what the RIF interview would cover; (2) his 1999-03 sales record was markedly higher than the other candidates; (3) the 2004 decline in Rachells' performance scores occurred precisely when the manager knew that the rankings would be used in the RIF, and was suspicious in light of his prior superior performance; and (4) the manager Fine's track record with other minority employees - even those in a different office - is probative of racial hostility. "[T]he record contains plausible circumstantial evidence that [manager] engaged in racial discrimination in promoting [white co-worker]." Record of employee's superior qualifications and evidence of other discrimination was sufficient for a jury to find that the employer's performance-based explanation for its termination decision was pretextual.

EEOC v. Peoplemark, Inc., 732 F.3d 584, 120 FEP 181 (6th Cir. 2013). Panel: MCKEAGUE, Boggs [CARR, dissenting]. Claim on Appeal: Title VII disparate impact hiring (race). Disposition Below: Award of attorneys' fees to employer ($751,942.48) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC relied in good faith on company's pre-filing representation that the company applied a blanket bar to hiring ex-felons, but when more evidence was produced establishing this not to be the case, agency should have reevaluated. Court did not abuse discretion in award of fees. It properly considered as evidence the agency's failure to file an expert report, EEOC's concession that employer was prevailing party, and failure to timely amend complaint. Did not abuse discretion awarding employer full cost of its expert report. Also rejects challenge to expert fees on ground of insufficient documentation and excessiveness.

Adamov v. U.S. Bank Nat'l Assoc., 726 F.3d 851, 119 FEP 1121 (6th Cir. 2013). Panel: ROGERS, Keith, Moore. Claim on Appeal: 1. Title VII termination (national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1.Employer did not have burden of establishing the details of its ethics policy to make out a legitimate, non-discriminatory reason for terminating the plaintiff (making a prohibited loan), and plaintiff did not meet his burden to create a genuine dispute of material fact on this point. Plaintiff fails to establish that direct manager with nationality bias was a figure in the decision-making chain of command. 2. Failure to cite retaliation in EEOC charge is not jurisdictional, so sua sponte dismissal of claim was error.

Sharp v. Aker Plant Services Group Inc., 726 F.3d 789, 119 FEP 906 (6th Cir. 2013). Panel: LAWSON, Cook, Stanch. Claim on Appeal: Ky. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff established genuine dispute of material fact on causation, where manager with avowed age bias was first part of "discriminatory information flow" during reduction in force. Multi-step, supposedly independent review of layoff decisions did not fully rebut inference that manager's recommendations were cause of termination where employer conducted no independent investigation. Direct evidence includes comments that manager made during process that "it is the fact that he is younger," referring to layoff survivor, and references to need for succession planning ("bring the next generation in") to favor employees who will stay longer, which referred directly to managers rationale about which employees to fire or retain. While succession planning can constitute a legitimate and non-discriminatory basis, jury could find that age was the determining factor where the plaintiff's age was specifically referenced. There is also a genuine dispute of material fact about a same-decision defense, where there was evidence (a reference and remarks during a taped conversation) that the employer did not consider plaintiff to be an inferior candidate.

Boaz v. FedEx Customer Information Services Inc., 725 F.3d 603, 119 FEP 880 (6th Cir. 2013). Panel: KETHLEDGE, Batchelder, Merritt. Claim on Appeal: EPA claim. FLSA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff] FLSA/EPA limitations period not subject to waiver or shortening by contract. There was also a genuine dispute of material fact about whether male employee - plaintiff's predecessor - was paid more for substantially similar work, and affirmative defense of factor other than sex (where there was dispute about whether employer actually investigated predecessor's duties and then recalibrated salary downward).

Howe v. City of Akron, 723 F.3d 651, 119 FEP 165 (6th Cir. 2013). Panel: COLE, Donald, Russell. Claim on Appeal: Title VII (race), ADEA and Ohio state law disparate impact promotions. Disposition Below: Preliminary injunction ordering promotions [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: No abuse of discretion in issuing preliminary injunction. Where candidates are promoted strictly by rank order, plaintiffs not required to separate the impact of the different elements (interview and exam) for analysis. Entire promotion process could be treated as single "specific employment practice." No error in applying four-fifths rule to promotion rates. Exam pass rates not correct metric, where qualifying score was not treated as pass/fail, but was also used to rank individual within passing range. While city used "Rule of There" to exercise discretion (select one of the top There on the list for each promotion) where result was that candidates were promoted in exact rank order. White candidate age 40 and over were protected group - city waived argument that city was not "unusual employer" that discriminated against majority, and in any event rule would most likely not apply to disparate impact case. All plaintiffs demonstrated that they had a reasonable likelihood of promotion. Promotion delays constitute irreparable injury for firefighters; without promotions, firefighters lack experience in position that will enable them to seek future promotions. Possible denial of promotion to other African-Americans lower on the list did not constitute substantial harm, as it was city's delay not to engage in new promotions that was principally responsible for problem. No harm to public by supposedly filling unfunded slots - current vacancies were the result of city's choices, some vacancies did exist, and budget had benefitted in the interim by appointment of "acting" officers.

Sadie v. City of Cleveland, 718 F.3d 596, 118 FEP 1104 (6th Cir. 2013). Panel: MARTIN, Griffin, Beckwith.. Claim on Appeal: ADEA, Ohio state law and Equal Protection mandatory retirement. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Section 623(j) of the ADEA allows public safety officers to be retired at age 55 or older if pursuant to a plan that is not a subterfuge to evade the purposes of the act. Cit established that plan in this case was supported by fire department efficiency. Decision not to extend service dates for fire-fighters at or over agr 65 was also rationally related to budget concerns.

Louzon v. Ford Motor Co., 718 F.3d 556, 118 FEP 1108 (6th Cir. 2013). Panel: MOORE, Stranch, Hood. Claim on Appeal: ADEA, Title VII (national origin) and Mich, state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: "Motions in limine" that essentially operate as back-up summary judgment motions - to kill the case before trial - short-circuit the protections provided by summary judgment, allowing the judge alone to weigh the evidence before trial. District court erred in deciding that the comparable employees had to be managed by the same executive to be considered "substantially similar." Use of motions in limine to resolve non-evidentiary matters unwarranted in civil cases: "a mechanism already exists in civil actions to resolve non-evidentiary matters prior to trial-the summary-judgment motion." While employer couched the motion in terms of the comparator evidence being "irrelevant" and inadmissible under FRE401, 402, the veneer of evidentiary argument does not disguise the substance of the argument. Indeed, "if these tactics were sufficient, a litigant could raise any matter in limine, as long as he included the duplicative argument that the evidence relating to the matter at issue is irrelevant." On the merits, district court erred in holding that employees managed by different supervisors as a matter of law could not be comparators. The panel in particular cites the record evidence that Ford Motor had 300 managers in the plaintiff's department alone. "In other words, the employee-to-manager ratio among engineers in Product Development is approximately 16:1, and the employee-to-supervisor ratio much lower. If we were to accept Ford's suggestion that the same supervisor is required in this case, the pool of potential comparators for Louzon would amount to no more than a few individuals. Such a requirement would render any plaintiff's burden virtually impossible, even at the prima facie stage." Record presents genuine disputes of material fact over whether the employer in fact maintained an "automatic termination" policy for overstaying leave and who the decision-maker in the case actually was.

Davis v. Cintas Corp., 717 F.3d 476, 118 FEP 903 (6th Cir. 2013). Panel: BOGGS, Rogers, Sutton. Claim on Appeal: 1. Title VII disparate treatment hiring (sex) for 2004. 2. Title VII disparate treatment hiring (sex) for 2003. 3. Title VII disparate impact hiring (sex). Disposition Below: 1. Summary judgment and class certification denied [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. No abuse of discretion in holding that class lacked commonality under FRCP23. Evidence that women were statistically underrepresented in service-sales representative positions created no commonality were hiring across company varied by location, with different areas over- and under-hiring women. District court could find that propounded anecdotal evidence - hiring managers telling women that the job involved heavy lifting, entering men's locker rooms and dirty work - was ambiguous, as it could also be understood to be full disclosure of the unpleasant aspects of the job. District court also did not err in holding that use of "shortfall" model of damages - figuring out how many women should have been hired, then distributing back pay attributable to shortfall pro rata to class, violates Wal-Mart v. Dukes injunction against trial-by-formula. This damage formula prevented employer from defending against individual claims. On individual claim, plaintiff failed to rebut legitimate, non-discriminatory reason for failure to hire (poor performance on a test run). 2. Genuine dispute of material fact about pretext where employer proffered that it did not hire applicant because she expressed disapproval of "up-selling" and was not prepared to quit current, part-time employment. Plaintiff presented evidence that men were overwhelmingly favored at the particular location, and that There men were hired around the same time that plaintiff was turned down who had lesser experience in management and sales than plaintiff. 3. Section 2000e-2(k)(1) (A) term "employment practice" requires employee to identify the individual step or steps of the hiring process that cause a disparity. Plaintiff could not simply to point to all of the subjective elements in the hiring process as a single employment practice.

Dodd v. Donahoe, 715 F.3d 151, 118 FEP 16 (6th Cir. 2013). Panel: MARTIN, Griffith, Beckwith. Claim on Appeal: Title VII termination (race). FTCA claim (not addressed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff did not meet prima facie standard because he failed to allege that there were any mail carriers outside of the protected class who were treated relatively better.

Warf v. U.S. Dept. of Veterans Affairs, 713 F.3d 874, 117 FEP 1705 (6th Cir. 2013). Panel: MARTIN, Griffith, Beckwith. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII promotion (sex). 3. Title VII retaliation. 4. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Harassment of other women employees by other doctors not evidence of harassment against employee. Only two other incidents specifically related to employee were raised, neither of which could be construed as harassing (being called after missing social event, being told to back off of investigation of another employee's sexual harassment allegations). 2. Employee lacked educational credentials for job (associate's degree, while other candidates had masters). 3. No proof of causation where majority of selection committee (4 out of 5) had no knowledge of protected activity. Other applicants still had superior credentials. Brief disconnection of phone/computer not retaliatory, but part of general office reorganization. 4. No evidence that she and male employee performed substantially similar jobs, and in any event male employee had superior educational and professional credentials.

Fuhr v. Hazel Park school Dist, 710 F.3d 668, 117 FEP 1058 (6th Cir. 2013). Panel: KEITH, Martin, Rogers. Claim on Appeal: Title VII, Title IX and Mich. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Comment

rf v. U.S. Dept. of Veterans Affairs

Fuhr v. Hazel Park school Dist, 710 F.3d 668, 117 FEP 1058 (6th Cir. 2013). Panel: KEITH, Martin, Rogers. Claim on Appeal: Title VII, Title IX and Mich. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Comment about "good old boys network" that existed at school was not direct evidence of retaliation where comment left vague which individuals was part of network or what acts commenter felt were retaliatory. No temporal evidence that retaliation for filing prior lawsuit motivated 2006 removal as basketball coach, where trial was in 2001and last appeal was completed in 2004. Assuming that there was an adverse action (employee alleged hostile work environment), employer advanced legitimate, non-discriminatory reasons for removal from coaching (it would have been impractical for one coach to head both teams simultaneously if both the girls and boys seasons would indeed be played in the winter). Other actions applied to whole program equally (moving ice machine, failure to pay trainer, late ordering of uniforms).

Smith v. Perkins Board of Education, 708 F.3d 821, 117 FEP 658 (6th Cir. 2013). Panel: CLAY, Cook, Roth. Claim on Appeal: 1. Ohio state law termination (age). 2. ADA reasonable accommodation and retaliation. State law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [defendant]. Grounds: 1. Because employee received full administrative procedure authorized by state law for due process in teacher terminations, and state law precludes relitigation after determination that termination was supported by just cause, state law age discrimination claim properly dismissed. 2. ADA claim not precluded by state law, and under federal law collateral estoppel does not apply to unreviewed state administrative findings. Although district court purported to grant summary judgment on the merits (that requested accommodation was unreasonable), the employer did not advance this argument, and employee lacked notice that court would dismiss on these grounds and was prejudiced by not be allowed to get discovery or make record on these arguments.

Keith v. City of Oakland, 703 F.3d 918, 27 A.D. Cases 551 (6th Cir. 2013). Panel: GRIFFIN, Sutton, White. Claim on Appeal: ADA and Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: Deaf plaintiff presented sufficient evidence to raise a genuine issue of his fitness to serve as a lifeguard. Expert witnesses testified that deaf lifeguards are far from rare and that, "in a noisy swimming area, recognizing a potential problem is almost completely visually based. Further, she said that individuals who become deaf before age There have better peripheral vision than hearing individuals. "County's consultant failed to perform an individualized determination of plaintiff's fitness to work as a lifeguard, whether with or without accommodations. Occupational consultant hired by employer never spoke with examining doctor or plaintiff; if anything, the county might have been guilty of applying a higher standard of performance to plaintiff because of his deafness. Even though county itself performed an individual inquiry, going so far as to draw up an accommodation plan, it ultimately followed the recommendations of the doctor and consultant, who allegedly made no individualized inquiry. Moreover, assuming that communication is an essential function of the job of being a lifeguard, there is a genuine issue of fact whether plaintiff could perform this task with accommodations. "In addition to communicating with distressed swimmers, there is evidence that Keith can effectively communicate with other lifeguards during lifesaving. Because he cannot hear another lifeguard's whistle blow before going in for a save, as a modest modification, he could briefly look at the other lifeguards when scanning his zone. Every expert to testify in the matter concluded that "the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. "Court also remands the question of whether the county engaged in an "interactive process."

Martinez v. Cracker Barrel Old Country Store, 703 F.3d 911 (6th Cir. 2013). Panel: WELLS, Sutton, Griffin. Claim on Appeal: § 1981 and Mich. state law termination (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff terminated, allegedly for repeated use of racially abrasive and intemperate remarks. Deposition answer that "race was an issue" in her termination was not direct evidence where testimony was ambiguous and most likely referred to the racially-offensive nature of her comments. Defendant's manager comment about how "this was Flint and you know the history of this store" also ambiguous with respect to race. Using inferential method of proof, plaintiff was unable to establish that reason for termination was a pretext. African-American employee who use same derogatory expression ("ghetto card" to refer to welfare benefit), where the two employees occupied different levels of management in the store and plaintiff's behavior was more persistent and serious.

Taylor v. Geithner, 703 F.3d 328, 116 FEP 1586 (6th Cir. 2013). Panel: MOORE, Merritt [MCKEAGUE, concurring]. Claim on Appeal: 1. Enforcement of Title VII settlement. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [defendant]. Grounds: 1. District court lacked subject-matter jurisdiction over enforcement of settlement by 42 U.S.C. § 2000e-16(c). Government did not waive jurisdiction per 29 U.S.C. § 1614.504. 2. Some claims of materially adverse action unsubstantiated or insignificant (e.g., denial of recommendation to participate in program, unauthenticated testimony about negative references, reprimands). Belatedly presented actions also properly disregarded But testimony that employee, in 52 instances, made unsuccessful applications for positions within agency, was an adverse action, and a negative reference would have been given shortly after plaintiff made complaint of discrimination, with facts establishing temporal proximity. This made out prima facie case under McDonnell Douglas.

Watts v. UPS, Inc., 701 F.3d 188 (6th Cir. 2012). Panel: WHITE, Sutton, Griffin. Claim on Appeal: ADA light-duty assignment. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: LMRA § 301 does not supersede ADA. Right to be free of disability discrimination arises from federal law, not collective bargaining agreement. Distinguishes cases involving RLA preemption, which prescribes mandatory arbitration.

Paul v. Kaiser Foundation Health Plan of Ohio, 701 F.3d 514 (6th Cir. 2012). Panel: MERRITT , McKeague, Stranch. Claim on Appeal: Ohio state law disability and retaliation. Disposition Below: Denial of remand to state court [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: No LMRA preemption of state civil-rights law claim, where complaint did not refer to CBA (only invoked by employer). Request for accommodation - that she receive help moving/carrying patients receiving x-rays - did not implicate CBA rights.

EEOC v. Cintas Corp., 699 F.3d 884, 116 FEP 801 (6th Cir. 2012). Panel: MOORE, Alarcon [GIBBONS, concurring in part]. Claim on Appeal: EEOC Title VII pattern-or-practice case. Disposition Below: Summary judgment and attorneys' fees [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that the complaint did not support a systemic claim of Title VII pattern-or-practice liability. While the agency plead its claim under § 706 of Title VII, instead of the express "pattern-or-practice" provisions of § 707, the EEOC did not thereby plead itself out of court. "[T]he exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it suggests that the inclusion of the language in § 707 simply means that the scope of the EEOC's authority to bring suit is more limited when it acts pursuant to § 707." It is unnecessary for the EEOC to expressly invoke the Teamsters pattern-or-practice method of proof in the complaint to preserve it for litigation. Swierkiewicz decision remains good law after Twombly and Iqbal. In light of decision on pattern-or-practice, panel vacates the summary judgment decisions on the individual claims, for reconsideration under a "pattern-or-practice" framework. The panel notes, in particular, that Cintas's defense of "after-acquired" evidence as to each individual would not prevent the entry of liability against the employer, but only limit their remedies. Court remands for reconsideration (1) an order denying the EEOC's request for extension of discovery; (2) an order denying the EEOC's motion to compel Cintas to produce unredacted employment applications by Cintas; and (3) a protective order barring the deposition of Cintas executive Scott Farmer. Panel rejects application of the "apex doctrine" to protect a senior executive from testifying about relevant matters, where there was not record that it would be especially inconvenient for him to do so. EEOC met its precondition to conciliate with Cintas before filing: "Although the EEOC did not explicitly use the 'females as a class' language in the proposed conciliation agreement, the agreement indicated that the EEOC sought class-based remedies by requesting relief for 'other similarly situated qualified female applicants who sought employment with [Cintas].' R. 836-41 (Proposed Conciliation Agreement at 3, 4). Given that these documents were provided to Cintas on the same day, there is no basis for concluding that Cintas was unaware that the EEOC had investigated and was seeking to conciliate class-wide claims." Finally, Award of attorney fees and costs for employer also reversed. "Because we reverse the district court's determination that the EEOC did not comply with Title VII's administrative prerequisites to suit-the primary basis for the district court's award of attorney fees-we vacate the order granting attorney fees as well. This result is also mandated in recognition that, in view of our rulings, Cintas is no longer a prevailing party." The panel goes on to hold that even if it had not reversed the judgment, it would have found that the fee award was an abuse of discretion.

Blizzard v. Marion Technical College, 698 F.3d 275, 116 FEP 392 (6th Cir. 2012). Panel: REEVES, Siler, White. Claim on Appeal: 1. ADEA and Ohio state law termination. 2. ADEA and Ohio state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].  Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Replacement by employee who was six-and-one-half years younger than plaintiff created a weak inference of discrimination, but employee presented no genuine issue of material fact as to pretext. She was terminated allegedly for implementation errors in adopting software, absence from work area, unwillingness to cooperate with other employees and inflexibility. Positive testimony of colleagues based on only sporadic contact, or contact made prior to the various incidents cited for her discharge. Co-worker who also made coding error in same software was not a culpable, because his error merely resulted in the company's checks being returned to its accounting office, while plaintiffs' error caused double payments to vendors. Comments on plaintiff's length of service ("been there too long") did not refer to age. 2. Complaint to manager about being "treated differently than younger employees" was a protected activity. But employee does not establish causation, where termination occurred over a year from last complaint.

Back v. Nestlé, USA, 694 F.3d 571, 116 FEP 9 (6th Cir. 2012). Panel: STRANCH, Kethledge [GWIN, concurring]. Claim on Appeal: Ky. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Alleged statement introduced in affidavit that HR executive had been told by higher management to fire There oldest employees was inadmissible double-hearsay statement, FRE801(d)(2)(D), where circumstances of statement did not provide support for existence or scope of employee relationship. No evidence of pretext where employer documented five documented deficiencies in maintenance of production line.

Kroll v. White Lake Ambulance, 691 F.3d 809, 26 A.D. Cases 1313 (6th Cir.  2012). Panel:  MOORE, Donald [SUTTON, dissenting]. Claim on Appeal: ADA medical testing, 42 U.S.C. §12112(d). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Plaintiff not required to submit to the request to have standing to challenge it. While employer contends plaintiff cannot identify harm because she never underwent counseling and was opposed to counseling only insofar as she was required to pay for it out-of-pocket, she was terminated arguably as proximate cause of refusing to cooperate. Because the statute does not define "require" and "medical examination," these terms and no legislative history sheds light on them, panel uses to a year 2000 EEOC Enforcement Guidance, "Disability-Related Inquiries and Medical Examinations of Employees," which sets a seven-factor test for evaluating whether a test or procedure qualifies as a "medical examination." Applying that standard to the facts of the case, the panel finds that a jury could determine that the demand for psychological counseling was a "medical examination." "It is clear that both factors one and two-administration and interpretation by a health-care professional-weigh in favor of the 'psychological counseling[.]' Kroll was instructed to attend being a "medical examination" . . . [and] was instructed to attend counseling administered by a psychologist. Regardless of whether the psychologist would have acted in a passive, facilitating role, or a test-oriented, diagnostic role a reasonable jury could conclude that the psychologist would have, at minimum, done some interpretation of the content of the counseling in order to assist Kroll with her problems; indeed, this was the reason why WLAA insisted that Kroll attend the counseling. . . ." A reasonable jury could also conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect. WLAA does not dispute that it was concerned about Kroll suffering from depression, to the point of suicidal ideation, and instructed Kroll to go to the counseling "to discuss issues related to her mental health." Notes employer has possible defense that such counseling was "job related" and consistent with "business necessity."

Griffin v. Finkbeiner, 689 F.3d 584, 115 FEP 1422 (6th Cir. 2012). Panel: MOORE, Suhrheinrich, Clay. Claim on Appeal: 1. Title VII and Ohio state law discrimination. 2. Title VII and Ohio state law harassment. 3. Title VII and Ohio state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Employee alleged that he, as an African-American, was paid less than his white predecessor and even his white subordinate, and city evaluated his work more harshly than the work of white employees, and that he was not placed in charge when Commissioner was absent despite being second-in-command. Evidence that then-mayor regularly made racial remarks, e.g., blacks lack parenting skills, black men cannot hold jobs or take care of their families, black women just want to have babies and collect welfare, black ministers are pimps, black employees lack drive and professionalism, "thank God I was not raised poor and black," referred to then-Fire Chief (who is black) as "King Kong," told black employee "get out of the lazy mode" and, comparing him to white female employees, said "is that a black stain on the glass ceiling?," ordered black employee to sit down when he attempted to leave to go to the restroom while several white attendees had left without comment, "the good old boys on the 22nd floor [mayor's office] would not want two black employees running the department." Employee was terminated ostensibly owing to a reduction in force, but six to eight months later (he alleged) his duties were assumed by a white employee. Court holds employee should have been permitted to go to trial on his discrimination claims, whether measured under the single- or mixed-motive rubric. "[A]fter finding that [plaintiff] had made out a prima facie case of race discrimination and . . . shown that the City's proffered reasons for the termination may have been pretextual," the district court held employee erroneously to a burden that he must also "offer some evidence that the real reason for his termination was discrimination." Alternatively, employee could prove the same claim under a so-called "mixed-motive" theory, 42 U.S.C. § 2000e-2(m). Mayor's comments were relevant in light of the mayor's testimony that he signed off on all termination decisions. "In certain circumstances, even statements by a non-decision maker can be probative evidence of discrimination, such as when the speaker holds a management position, the statements are commonplace or made in a relevant context (such as a meeting in which personnel decisions are made), or where other evidence of animus exist. 2. Because the district court never ruled on Daugherty's addition al race harassment claim, that claim too must be remanded to the district court for evaluation. 3. Orders a new trial on Title VII retaliation, holding that motion in limine about two other former employees who alleged that they aware also the victims of retaliation should not have been granted. Under Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), whether the same actors are involved in each decision is a factor, but makes clear that it cannot be the only factor in the decision whether to admit "other acts" evidence.

Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 115 FEP 1300 (6th Cir.  2012). Panel: STRANCH, Kennedy, Martin. Claim on Appeal: Title VII and Mich. state law termination (race, sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Plaintiff fired from her casino job for allegedly failing to follow the house rules about managing the games as Floor Supervisor, i.e., allowing a dealer to continue play at the blackjack table for 90 seconds while the casino examined a possibly malfunctioning shuffle machine (in casino parlance, the plaintiff permitted a "bad deal"). In discovery, the plaintiff learned that four other employees - all male - had been given only suspensions for comparable violations. When decision-maker was advised that another Floor Supervisor (black female) had complained of race discrimination, he allegedly said, "do you think I wanted to fire Kim [plaintiff], I didn't want to fire Kim, how could I keep the white girl." Manager's "white girl" comment by itself raised at least an inference of race and gender discrimination, supporting a "mixed-motive" theory under Title VII. Thus, the burden of disproving a racial motive under Title VII fell on the casino, and the panel finds that a jury could disbelieve the employer's explanation that it had treated employees equally based on the severity of their violations.

Rosebrough v. Buckeye Valley High school, 690 F.3d 427 (6th Cir. 2012). Panel: STRANCH, Kennedy, Martin. Claim on Appeal: ADA and Ohio state law hiring. Tort claim (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact regarding employee being qualified individual with a disability. Employer argued that employee was not "qualified" to drive a bus because she lacked a commercial drivers license, but she was in training program at the time for which there is not CDL requirement. Job training a separately protected category under ADA (42 U.S.C. § 12112(a)).

Emswiller v. CSX Transp., Inc., 691 F.3d 782 (6th Cir. 2012). Panel:  MCKEAGUE, Sutton, Ripple. Claim on Appeal: ADA adjustment to seniority. Labor law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA claim superceded by Railway Labor Act, because resolving competing claims of seniority is governed by collective bargaining agreement and dispute resolution mechanism of RLA.

Chattman v. Toho Tenax America, Inc., 686 F.3d 339, 115 FEP 845 (6th Cir.  2012). Panel: STRANCH, White, Cohn. Claim on Appeal: Title VII and Tenn. law promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Twenty-year employee alleges that the human resources director who recommended his termination for physical horseplay was racially biased, e.g., There incidents in which director made racial comments as evidence of his animosity toward African Americans. Plaintiff accidently injured a white co-worker employee (Johnson) during a bear-hugging incident, and HR director or allegedly targeted plaintiff for termination, misinforming upper management of the details of the event, stating (for instance) that he had two eyewitness accounts - which later turned out to be a fabrication. Plaintiff alleges that he was denied a promotion because of the warning. While admitting that the case law of the circuit is somewhat inconsistent on the point, the court holds that the repeated racist comments by the HR director alone constituted direct evidence of his discriminatory intent: "The statements are particularly troubling because they include both racist language and the Thereat or suggestion of violence or death based on race. No inference is required to gleam from those statements that Tullock harbored racial animus towards African Americans. Alternatively, court holds that under the circumstantial path of McDonnell Douglas, the plaintiff still presented a triable case. The district court erred in holding that the employee failed to present evidence of similarly situated white employees who were treated less harshly because of horseplay. The company contested that other, less-severe incidents by whites ought to count, because Johnson's injury was great enough to place him on workers' compensation. But the evidence on this point was contested On pretext, the employer averred that it gave plaintiff the warning letter because of the horseplay incident. Panel holds that the management's awareness of commonplace, un-disciplined misbehavior by whites raised an inference of discrimination. Court addition ally holds, under Staub, that the plaintiff established the requisites for imputing a biased motive to the decision-makers, via the "cat's-paw" theory. The further investigation by upper-management did not necessarily dispel liability.

Doe v. The Salvation Army, 685 F.3d 564, 26 A.D. Cases 769 (6th Cir. 2012). Panel:  MOORE, Gibbons, Alarcón. Claim on Appeal: Rehabilitation Act hiring. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: There is no "religious organization" exception to coverage under § 504 of the Rehabilitation Act, even if activity is regarded as mission-driven.

Keys v. Humana, Inc., 684 F.3d 605, 115 FEP 588 (6th Cir. 2012). Panel:  STRANCH, Cook, Lawson. Claim on Appeal:  § 1981 and Title VII pattern-or-practice claim (race). Disposition Below:  Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Complaint was sufficiently factually detailed to avoid dismissal under Iqbal/Twombly - including pattern-or-practice allegations, and specific allegations of events (with names/titles). Supreme Court decision in Swierkiewicz remains good law.

Gecewicz v. Henry Ford Macomb Hospital Corp., 683 F.3d 316, 26 AD Cases 643 (6th Cir. 2012). Panel: BOGGS, Suhrheinrich, Cook. Claim on Appeal: ADA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not "regarded as" disabled where only comments by manager related to employees excessive absenteeism, not a physical or mental impairment.

Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 115 FEP 384 (6th Cir. 2012). Panel: THAPAR, Griffin, Kethledge. Claim on Appeal: 1. Title VII and Mich. state law harassment (sex). 2. Title VII and Mich. state law retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Male-on-male harassment was not because of gender; employee failed to establish gender preference of harasser, same-sex workplace afforded no evidence of comparative employees, and no evidence of generalized hostility to men. 2. Although complaints about simulated sodomy constituted reasonable, good faith belief in violation, and ban of employee from Pennsylvania was materially adverse action, there was no evidence of causation (ban was imposed because plaintiff left worksite - employee did not argue that leaving worksite to complain of harassment was itself a protected activity.

Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 26 AD Cases 389 (6th Cir. 2012) (en banc). Panel:  SUTTON, Batchelder, Boggs, Gibbons, Rogers, Cook, McKeague, Griffin, Kethledge [CLAY, Martin, concurring and dissenting] [STRANCH, Moore, Cole, White, concurring and dissenting] [DONALD, concurring and dissenting]. Claim on Appeal: ADA termination. Disposition Below:  Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Prior circuit ADA case law required employee to prove that disability was the "sole" basis for an adverse decision, borrowing from Rehabilitation Act of 1973. In this case, fully tried to a jury under a "sole reason" instruction, en banc court unanimously drops this rule and remands for a new trial. " Court splits 9-7 on the proper causation standard, majority holding that the ADA discrimination provisions are governed by the "but for" standard of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), instead of the lower-Threshold "motivating factor" standard of Title VII. Thus, under ADA, a plaintiff must prove disability was "but for" cause of his or her termination or other adverse action.

Herrera v. Churchill McGee, LLC, 680 F.3d 539, 114 FEP 1636 (6th Cir. 2012). Panel: MOORE, Kethledge, Marbley. Claim on Appeal: 1. § 1981 and Ky. state law discrimination (race and national origin). 2. § 1981 retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Order of Dismissal issued local Human Rights Commission based on lack of probable cause would have claim-preclusive effect under state law. Preclusion applies to parallel federal claim, where facts of discrimination claim were actually litigated 2. Employer did not waive defense of claim preclusion by raising for first time in summary judgment paper filed after close of discovery. Nevertheless, local HRC did not adjudicate retaliation claim. Even if his excessive absences were enough to support termination under Kentucky issue preclusion principles, that does not bar proving retaliation was a motive by other means.

Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 114 FEP 1560 (6th Cir. 2012). Panel: DONALD, Gibbons, Griffin. Claim on Appeal: Title VII and Mich. state law harassment (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Male-on-male allegations of harassment not shown to be "because of" sex; annoying and offensive name calling might have been based on anti-gay animus, but neither federal nor state law defines sexual orientation as a protected class. Only comment of "sexual" nature was statement that plaintiff was a "necrophiliac," not enough to constitute severe behavior. Finally, liability for behavior could not be imputed to employer because, when plaintiff finally complained, employer investigated and correct harassment.

Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475, 114 FEP 1651 (6th Cir. 2012). Panel:  MARTIN, Cook, Kethledge. Claim on Appeal: 1. ADA and Mich. state law reasonable accommodation. 2. Title VII and Mich. state law shift change (sex). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Refusal to allow a modified work schedule and work through lunch is not an "adverse employment action," nor did denial modification constitute a constructive discharge. 2. ADA does not require employer to accommodate narcolepsy by abiding by request that employee be able to commute during hours with lighter traffic.

Bondurant v. ALPA, Int'l, 679 F.3d 386 (6th Cir. 2012). Panel: MERRITT, Cole, Varlan. Claim on Appeal:  ADEA and Mich state law benefits. Duty of fair representation claim (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Distribution of $888 million claim (to be disbursed as stock) in bankruptcy awarded lesser benefits to pilots who reached age-60 cutoff and retired before July 31, 2006. Only evidence of age tendered of animus was actually statements by executives who were trying to pay addition al benefits to that group, but stated that they need to comply with ADEA. Reasonable for union to distinction based on amount of time pilots worked during the concessionary period. Under disparate impact theory, any pilots at same age who retired after July 31, 2006 got full benefit; distribution formula was reasonable if imperfect.

Whitney v. City of Milan, 677 F.3d 292, 114 FEP 1347 (6th Cir. 2012). Panel:  COLE, Stranch, Carr. Claim on Appeal: § 1983 First Amendment. Disposition Below:  Qualified immunity denied on summary judgment [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Mayor alleged to violate clearly established law when he forbade client to communicate with former employee who had brought sex discrimination lawsuit. Because sex discrimination is a matter of public concern, indefinite gag order could only be supported by strong showing that it would interfere with workplace functioning, and here there was nothing but speculation.

Yeschick v. Mineta, 675 F.3d 622, 114 FEP 1202 (6th Cir. 2012). Panel:  GIBBONS, Suhrheinrich, McKeague. Claim on Appeal: ADEA failure to rehire . Disposition Below: Summary judgment and denial of Rule 60(b) relief [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff not entitled to relief from default on summary judgment on grounds that attorney failed to receive electronic notice of filings. Attorney was obliged to follow electronic docket and to keep federal court current with his e-mail address. Defendant would also suffer prejudice from delay. Thus, not an abuse of discretion for district court to find no excusable neglect. On the merits, agency's preference for air traffic controllers who graduated from MARC or VRA programs was a legitimate, non-discriminatory reason that employee did not demonstrate was a pretext. Law of the case did not require district court to deny second motion for summary judgment, where defendant presented a fuller record on the successor motion.

Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 114 FEP 808 (6th Cir. 2012). Panel:  MCKEAGUE, Siler [STRANCH, dissenting]. Claim on Appeal: Title VII harassment (race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Group of plaintiffs may not aggregate all experiences of racial harassment to defeat summary judgment; each must establish a genuine issue of material fact that they witnessed the events (including an effigy of an African-American supervisor hung from the ceiling and racist graffiti).

Romans v. Mich. Dep't of Human Servs., 668 F.3d 826 (6th Cir. 2012). Panel: MCKEAGUE, Suhrheinrich, Gibbons. Claim on Appeal: Title VII termination (reverse race).  FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant] Summary of workplace investigation stating in part that supervisor's action "may have been racially motivated" not direct evidence of discriminatory motive, because there was a higher-level decision maker involved and ther was no evidence that his decision was influenced by input by biased supervisor. Plaintiff fails to locate non-white employee who was treated comparably (two minority employees who were penalized for cursing had not actually been overheard by anyone other than plaintiff himself). Alternatively, employer established legitimate, non-discriminatory reason for termination because plaintiff accumulated sixth active discipline, supported by an investigation.

Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 114 FEP 385 (6th Cir. 2012). Panel: MARTIN, Suhrheinrich, Cole. Claim on Appeal: ADEA termination. . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Questions about retirement plans by themselves not direct evidence of age discrimination. Reference to a presidential candidate being "old," long before employment decision, not probative of motive. Employee failed to present evidence sufficient to rebut proffered reason for termination (economic need for reduction in force and performance). Employees was not "replaced," but another employee merely replaced him in his duties, while continuing to perform old job. Many older employees in same unit retrained.

Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 114 FEP 398 (6th Cir. 2012). Panel: KETHLEDGE, McKeague [KEITH, dissenting]. Claim on Appeal: Title VII hiring consent decree. Disposition Below: Refusing to extend consent decree [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Remand for parties to brief, and district court to make findings on, continued necessity of 1977 affirmative-action consent decree.

Donald v. Sybre, Inc., 667 F.3d 721,114 FEP 385 (6th Cir. 2012). Panel: COLE, Martin, Suhrheinrich. Claim on Appeal: ADA and Mich. state law termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that employer, under pre-ADAAA law, regarded employee as substantially limited in any major life activity.

Bobo v. United Parcel Service, Inc., 665 F.3d 741 (6th Cir. 2012). Panel: STRANCH, Daughtrey, Moore. Claim on Appeal: 1. § 1981, Title VII, and Tenn. state law termination. 2. § 1981, Title VII, and Tenn. state law retaliation. USERRA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant].  Grounds: 1. District court erred in restricting inquiry and discovery to a single employee who employer claimed was the only one suitably comparable to plaintiff under the McDonnell Douglas test, declining to rule on the employee's discovery motions prior to granting summary judgment (and also erred in denying post-judgment relief on the same issue under Fed. R. Civ. P. 59(e)). Employee is not required to demonstrate an exact correlation between himself and others similarly situated; rather, all employee need show is that he and his proposed comparators were similar in all relevant respects. and that he and his proposed comparators engaged in acts of comparable seriousness. Employee should have been allowed discovery concerning as many as seven employees at There facilities who were not fired in spite of violations of the company's integrity policy. District court erroneously denied plaintiff's motion under then Fed. R. Civ. P. 56(f) [now Rule 56(d)] to defer ruling on summary judgment to allow discovery. Panel also holds that even on the truncated record before it, the district court erred on the merits with respect to the discrimination claim. A reasonable jury could logically infer that Bobo's race was a motivating factor in the discharge decision. None of the Caucasian supervisors who violated or were accused of violating the integrity policy suffered employment termination, save one which occurred five months after plaintiff was fired. 2. No proof of causal relationship between employee refusing to disqualify a driver (African-American woman) and termination.

Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 114 FEP 90 (6th Cir. 2011). Panel: STRANCH, Keith, Griffin. Claim on Appeal: ADEA and Mich. state law promotion/constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred by imposing a stiff burden on the employee at the prima facie stage to disprove the employer's proffered reason for its decision (that the younger person who was promoted had a stronger performance record). While employee must point to another person outside the protected group who had similar qualifications, they need not be identical. Summary judgment affirmed on the alternative ground that the plaintiff cannot prove pretext; employer proffered the successful candidate's superior performance record. The younger employee's lack of high school diploma (a posted qualification) and shorter tenure did not establish that the employer should have found that candidate less qualified. Plaintiff had several warnings in her file about significant rule violations. Statistics of alleged pattern of terminating older employees did not pan out when compared to relevant group - majority of promotions went to employees age 40 and over. Although company literature internally suggested that company was striving to reach median-age 35 customers, there was no suggestion that the same standard was being applied to employees. No other circumstantial evidence of age-bias.

Bryson v. Middlefield Volunteer Fire Dep't, 656 F.3d 348, 113 FEP 97 (6th Cir. 2011). Panel: MOORE, Borman [GIBBONS, dissenting in part]. Claim on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Volunteer firefighters may be deemed "employees" under Title VII, 42 U.S.C. § 2000e(f); not required to establish, as a precondition, that such firefighters received remuneration, because remuneration is only one factor in Darden test. Here, there was evidence that firefighters received workers compensation coverage, insurance coverage, gift cards, personal use of the department's facilities, training and access to an emergency fund.

Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411, 25 A.D. Cases 97 (6th Cir. 2011). Panel: MOORE, Daughtrey, Stranch. Claim on Appeal: ADA termination. Disposition Below: Order staying case and compelling arbitration [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Michigan law, which governed enforceability of the alleged arbitration contract, employee who merely received personnel manual that contained alternative dispute resolution process, but was not made of its terms or that continued employment manifested acceptance of its terms did not enter into arbitration agreement with the employer.

Williams v. CSX Transportation Co., Inc., 651 F.3d 482, 24 A.D. Cases 1544 (6th Cir. 2011). Panel:  MERRITT [ROGERS, concurring in part, dissenting in part] [WHITE, concurring in part, dissenting in part]. Claim on Appeal:  1. Title VII harassment (sex). 2. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds 1. Court below erred in holding that claim was not exhausted. Employee had filed two papers with the EEOC: a signed but unverified "Charge Information Form," which contained specific allegations of sex harassment, and the official "Charge" form, which the employee did verify but which did not include the same details. These filings constituted a "charge" under the recent decision Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), because the documents met all There prerequisites of a "charge." First, form was verified, and even though the first document was not signed under perjury, "[f]or the technical purpose of verification, we conclude that Williams's second [charge] filing amended - and verified - her first filing. Second, the documents contained "sufficiently precise" information about the sex harassment allegations. Finally, the papers clearly made out a request for enforcement rather than an informational inquiry. 2. The few racially-motivated statements made to the employee over a two-day period were insufficiently severe or pervasive to constitute actionable Title VII harassment.

Whitfield v. State of Tennessee, 639 F.3d 253, 24 A.D. Cases 641 (6th Cir. 2011). Panel: BOGGS, Suhrheinrich [STRANCH, concurring]. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Although state defendant cannot be held liable for damages under Title I of the ADA, plaintiff could seek reinstatement. Claim under Title II - even if applicable to employment - waived by complaint, which cited statute but did not tie particular allegations to that section. Employee was, under current circuit authority, required to demonstrate in prima facie case that disability was "sole," rather than "motivating," factor (Monette v. EDS Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). Where there was evidence that the employee was terminated, at least in part, because of poor work performance, employee cannot establish that disability was the "sole" reason. Whether this properly considered part of the employee's prima facie proof or her final burden of establishing pretext, the result is the same.

Whitfield v. State of Tennessee, 639 F.3d 253, 24 A.D. Cases 641 (6th Cir. 2011). Panel: BOGGS, Suhrheinrich [STRANCH, concurring]. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Although state defendant cannot be held liable for damages under Title I of the ADA, plaintiff could seek reinstatement. Claim under Title II - even if applicable to employment - waived by complaint, which cited statute but did not tie particular allegations to that section. Employee was, under current circuit authority, required to demonstrate in prima facie case that disability was "sole," rather than "motivating," factor (Monette v. EDS Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). Where there was evidence that the employee was terminated, at least in part, because of poor work performance, employee cannot establish that disability was the "sole" reason. Whether this properly considered part of the employee's prima facie proof or her final burden of establishing pretext, the result is the same.  

Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 24 A.D. Cases 517 (6th Cir. 2011). Panel: MERRITT, Clay [GRIFFIN, concurring]. Claim on Appeal: ADA termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Panel cannot overrule prior decision requiring ADA plaintiff to prove at trial that disability was "sole," rather than "motivating," factor (Monette v. EDS Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)).

Lee v. The City of Columbus, 636 F.3d 245, 24 A.D. Cases 257 (6th Cir. 2011). Panel: GRIFFIN Suhrheinrich, McKeague. Claim on Appeal: Rehabilitation Act inquiry. § 1983 privacy claims (not discussed here). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Requiring employee upon return to work from sick leave to turn over physician's note to immediate supervisor describing "nature of the illness" and fitness to return to work does not violate Rehabilitation Act. Although ADA's limitations on disclosure of medical information in 42 U.S.C. § 12112(d) is incorporated into Rehabilitation Act, request for a general diagnosis that may tend to lead to disclosure of a disability falls short of the required proof under the Rehabilitation Act that discrimination was solely of the basis of disability. Even the ADA, under an EEOC Enforcement Guidance, an employer can generally require employees to produce medical proof to verify a sick day, as long as it applies to all employees across the board.636 F.3d 245, 24 A.D. Cases 257

Pucci v. Nineteenth District Court, 628 F.3d 752, 110 FEP 1766 (6th Cir. 2010). Panel: GIBBONS, Batchelder, Maloney. Claim on Appeal: 1. § 1983 and Mich. state law retaliation against state court. 2. § 1983 and Mich. state law retaliation against chief judge. Disposition Below: 1. Eleventh Amendment immunity denied on summary judgment [plaintiff]. 2. Qualified immunity denied on summary judgment [plaintiff] . Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Michigan state district court was "an arm of the state" for purposes of the Eleventh Amendment. 2. Plaintiff claimed a clearly-established constitutional violation against chief judge based on the record, where she allegedly lost her job as administrator because she complained to court agency about the defendant's constant invocation of religious beliefs during the course of carrying out his official duties.

Jakubowski v. The Christ Hospital, 627 F.3d 195, 23 A.D. Cases 1713 (6th Cir. 2010). Panel: MARTIN, Clay [COLE, concurring in the judgment]. Claim on Appeal: ADA, Rehabilitation Act and Ohio state law termination and failure to accommodate. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Accepting for purposes of case (as district court found) that Asperger's syndrome is a disability, plaintiff failed to demonstrate as a matter of law that he was a qualified individual. To function as a family practice physician, plaintiff was required to communicate with professional colleagues and patients. Plaintiff failed to present a workable accommodation that would allow him to perform those essential functions. Insisting on "knowledge and understanding" of hospital physicians and staff was insufficient. Hospital offered reasonable accommodation by proposing its assistance in placing him in a new pathology residency that required less contact with other staff.

Bates v. Dura Automotive Systems Inc., 625 F.3d 283, 23 A.D. Cases 1377 (6th Cir. 2010). Panel: MARTIN, McKeague, Ludington . Claim on Appeal: ADA testing. Disposition Below: Summary judgment denied [plaintiff] . Outcome on Appeal: Reversed [defendant]. Grounds: Employee must be disabled within meaning of ADA to challenge testing under 42 U.S.C. § 12112(b)(6).

White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 109 FEP 1731 (6th Cir. 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., 617 F.3d 380, 109 FEP 1748 (6th Cir. 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. Reversed [plaintiff]. 2. Affirmed [defendant]. 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, 615 F.3d 481, 109 FEP 1526 (6th Cir. 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, 615 F.3d 455, 109 FEP 1387, 23 A.D. Cases 716 (6th Cir. 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]. Grounds: Ashcroft 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 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 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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