Dealing with former employees after they have sued their employers for discrimination can be challenging. A Kentucky employer, which successfully defeated an
age-discrimination lawsuit, now faces a trial over whether its rejection of the former employee’s application for rehire was retaliatory. The Sixth Circuit Court of Appeals (covering Michigan) just reinstated the former employee’s retaliation claim. Sharp v. Aker Plant Services Group Inc., Case No. 14-5415 (unpublished, 1/14/2015).
Tommy Sharp worked as an electrical and instrumentation designer at Aker Plant Services
Group Inc. (APSG). In 2009, Sharp was permanently laid off in a reduction-in-force. Sharp asked his supervisor why APSG selected him for termination, rather than less experienced, less senior co-workers. Using an MP3 player, Sharp secretly tape-recorded his supervisor’s response that the reason was that the supervisor, Sharp’s team leader, and
Sharp, all were around the same age and all would retire around the same time. APSG
decided to retain and groom a younger coworker to ensure continuity in team operations.
Two months after his termination, Sharp sent a demand letter to APSG seeking reinstatement. He enclosed a copy of the tape-recording of his supervisor’s statements. APSG did not change its decision, so Sharp sued, claiming age discrimination.
The district court dismissed Sharp’s age-discrimination case. It agreed with the employer
that the supervisor’s statements were merely an inartful way of expressing a legitimate, nondiscriminatory business reason, namely, succession planning. Sharp appealed and the Sixth Circuit reversed. It ruled the supervisor’s statements were direct evidence that Sharp’s age was a factor in his termination. Sharp v. Aker Plant Services Group Inc., 726
F3d 789 (CA 6 2013).
The age-discrimination case proceeded to trial and the jury agreed with APSG – Sharp’s age was not a determining factor in the decision to lay him off.
Fifteen months after Sharp had sent the initial demand letter seeking reinstatement, a
temporary staffing agency sought to place Sharp back with APSG. APSG rejected the application because of Sharp’s use of the MP3 player to tape record his supervisor violated a plant rule. Electronic recording devices were not permitted in the plant because of the presence of combustible materials which potentially could be ignited by use of such devices.
Sharp brought a second lawsuit, claiming his rejection for rehire was in retaliation for his
age-discrimination lawsuit. The district court dismissed Sharp’s retaliation lawsuit. It ruled there was no causal connection between Sharp’s age-discrimination claim and the rejection of his application for rehire, in part, because too much time – 15 months – had elapsed after his demand letter and before his rejection for rehire.
Sharp appealed and the Sixth Circuit reversed again. The Court of Appeals ruled that 15 months was not too long a time period for there to be no connection between the two events. There is no fixed time period (e.g., 6 months, following protected activity), after which there no longer is a connection to subsequent adverse employment action. Rather, the courts must look at all the circumstances, especially “in the context of a reinstatement case, in which the time lapse between the protected activity and the denial of reinstatement is likely to be lengthier than in a typical employment-discrimination case.”
The Sixth Circuit also found error in the district court’s rejection of Sharp’s attempt to compare his circumstances to those of a current APSG employee who used a smart phone to take photos at work and was not even disciplined. The district court found the two individuals’ circumstances were not comparable because the current employee had not filed a discrimination lawsuit against APSG, as Sharp had. The Sixth Circuit said the proper basis for comparison was each individual’s misconduct, not whether both had filed an age-discrimination lawsuit. The Sixth Circuit also rejected the district court’s determination that the two individuals were not comparable because the other individual was a current employee, not a former employee seeking rehire, as was Sharp.
The Sixth Circuit also noted that: 1) Sharp’s application for rehire was rejected on the same day it was received; 2) the employee who rejected the application had become personally
involved in defending the litigation only two months before Sharp’s application; and 3) the fact that APSG had never disciplined any employee who brought, or used, an electronic recording device to work. In short, Sharp presented sufficient evidence of retaliation to preclude dismissal of his retaliation case before trial.
Employers defending a lawsuit by a former employee must respond cautiously to the employee’s application for rehire or any other overture. A retaliation claim often is easier to establish than a discrimination claim. Had this employer uniformly enforced its rule
concerning electronic recording devices in the workplace, it would have had a better chance of defending the retaliation claim. In these circumstances, it is always wise to consult with an experienced employment attorney, such as the author.
This article was written by Karen L. Piper who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or
Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee. January 2015.