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Rogers v. Henry Ford Health Sys., No. 17-1998 (6th Cir. July 31, 2018), and Batson v. The Salvation Army, No. 16-11788 (11th Cir. July 31, 2018)

Two opinions this week highlight the power of retaliation claims: in each case, the principal discrimination claim failed on summary judgment, yet the retaliation claim was remanded for trial.

Rogers v. Henry Ford Health Sys., No. 17-1998 (6th Cir. July 31, 2018): "In late 2012, Rogers was working as a consultant in HFHS's Organizational Human Resources Development ("OHRD") Department. After she was denied reclassification as a Senior OHRD Consultant, Rogers made an internal complaint of racial and age discrimination. When the resulting internal investigation found no evidence of discrimination, Rogers filed an EEOC charge."

At this point, co-workers began to express concern about Rogers's behavior, referring to her "acting very euphoric and very out of sorts[,] laughing really loud, kind of swaying back and forth" and "strange." Worse yet, chat around the office speculated that Rogers might "go postal" and was known to have busted out a rival's car windshield with a baseball bat. Although the record was contested on this point, at least one co-worker was said to have expressed concerns to management about his personal safety around Rogers.

On September 11, 2013, Mr. Adams (the Vice President of Human Resources) placed Rogers on paid leave and ordered to submit to a "fitness for duty" examination. She did so and passed; "According to Rogers, Dr. Bodnar said to her: 'I don't know why they sent you down here' and apologized." Rogers filed a second EEOC charge at this point. Upon her return, Adams told Rogers that she could either accept a transfer to another office or resign. (Adams testified that he also offered Rogers the option of staying put, but Rogers contested that.) She accepted the transfer, though she contended that "it is an inferior position within the structure of HFHS."

Rogers filed a lawsuit alleging "racial discrimination, age discrimination, and retaliation in violation of 42 U.S.C. § 1981, Title VII, and Michigan's Elliott-Larsen Civil Rights Act." On appeal, the panel unanimously affirmed summary judgment on the discrimination claims, but two judges reversed on the retaliation claims.

On the discrimination claim, the panel holds that Rogers 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.'"

On the other hand, the panel majority held that the retaliation case should go forward. First, the district court erred in finding 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." The majority also found 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."

Dissenting from the resolution of the retaliation claim, Judge Kethledge would hold that the decisionmaker lacked the requisite state-of-mind as a matter of law, and the evidence at most shows that he was being "overly cautious," not retaliatory.

Batson v. The Salvation Army, No. 16-11788 (11th Cir. July 31, 2018): Batson was an Audit Manager diagnosed with Multiple Sclerosis. Through an ADA questionnaire completed by her doctor, Batson requested accommodations "to adjust her travel schedule and allow her to telecommute occasionally." When she returned from FMLA leave, "she was told that her position had been eliminated, and she was terminated shortly afterward." During this period, she applied and interviewed for position that she'd already once held (Senior Auditor), but was not hired. "During the interview, Batson was questioned repeatedly about her appointments with doctors and ability to travel. TSA decided against hiring Batson for her former position, citing her conduct in the interview and poor job performance."

Batson filed a lawsuit claiming ADA failure to accommodate, FMLA interference, and retaliation under both federal laws. The district court granted summary judgment on all of these claims. The panel affirms on the accommodation claim, but returns the rest of the claims for trial. On the former claim, the panel holds that there was no evidence that Batson required the travel and telecommuting accommodations at any point before she was fired. "We agree with Batson that the record establishes TSA's intent to deny her accommodation, but without evidence of a specific instance in which she needed an accommodation and was denied one, she cannot establish a failure to accommodate."

On the retaliation/interference claims, the panel holds that the plaintiff did not forfeit the ADA retaliation claim by failing to check the "retaliation" box on the EEOC charge. "Batson argues that her ADA failure to accommodate claim is inextricably linked to her ADA retaliation claim, because her accommodation request was the basis for TSA's retaliation against her, and her termination, mentioned in the Charge, was the specific form the retaliation took. Given this link, an EEOC investigation of Batson's failure to accommodate claim would have 'at least in some fashion' uncovered Batson's retaliation claim."

On the merits, the panel holds that there is a genuine dispute of material fact about pretext. "Boalt, the decisionmaker, offered two reasons for rejecting Batson for the Senior Auditor position. First, she identified as 'the primary reason' for her decision that Batson performed poorly in the interview ... Her second reason was concern about Batson's 'recent performance issues' as the Audit Manager, 'as reported by Duracher,'" the Audit Manager who was Batson's direct supervisor. The first of these reasons was contradicted by evidence that Boalt herself had already decided not to hire Batson before the interview, writing in an email that "[i]t appears we have painted ourselves into a corner" in the process, wanted other candidates to examine and pleading "[s]o we have to hire her?" Boalt also asked multiple questions about Batson's health and fitness.  (Observers contradicted each other about Boalt's demeanor at the interview, which some saw as hostile.) As to the second reason, there was a decided split between the performance issues (some missed deadlines) and the consistently excellent reviews she received throughout her tenure from two levels of management. "Lastly, undermining both of Boalt's explanations, following the interview, Boalt sent ... an email stating that Batson had been 'pretty combative' and that Boalt was inclined to recommend against hiring her, but 'need[ed] to think through the rationale.'" A reasonable jury confronted with these contradictions could hold that the failure to transfer may have been illegally motivated.

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