By: Claudia D. Orr
Two recent Sixth Circuit cases are a good news/bad news story for employers. Do you want the good news or bad news first?
Starting with the bad news (so we can land on a happy note), the Sixth Circuit reversed, in part, the district court’s dismissal of a hostile work environment claim. Yazdian v Conmed Endoscopic Technologies, Inc. There, the employee complained to his direct supervisor that there was a “hostile work environment” and that “he would respond with counsel…and charges”. The Sixth Circuit found that these statements, without mention of any protected status, discrimination, or civil rights laws, were sufficient to put the employer on notice that the employee was complaining about unlawful discrimination. Once on notice, the employer’s duty to investigate and take prompt and appropriate action is triggered. So, it is a good practice to always investigate whenever an employee complains about a “hostile work environment”. And, yes, employees sprinkle those terms around like salt on popcorn, but failure to investigate will result in the employer losing a major affirmative defense.
The news got even worse for the employer. The Sixth Circuit also found that the supervisor provided direct evidence of a retaliatory motive by pointing to the employee’s complaint of a hostile work environment as evidence of the employee’s unwillingness to accept constructive criticism. The court noted that summary dismissal is not proper when the employer cites the employee’s “tone of voice or manner of speaking” (or attitude) as the cause of termination, especially in the context of a Title VII claim of retaliation. The lesson is – always consult with an experienced employment attorney (like the author) when making the termination decision and preparing the discharge documents.
The employer fared far better in our second case after it terminated a pregnant employee for job abandonment. Huffman v Speedway LLC. There, the employee’s physician requested that the employee not perform numerous job duties during her pregnancy and the employee conceded that those tasks simply would not be completed when she worked alone at the Speedway gas station/convenience store. The employer determined that it could not accommodate the request because those duties had to be completed for the convenience of its customers (e.g. making tea, cleaning the restroom, emptying the trash, etc.). Therefore, the employer offered the employee leave under the Family and Medical Leave Act (“FMLA”). The employee objected, claiming she was not ready to start her leave, and she refused to return the FMLA paperwork. Instead, she began to use vacation days. Eventually, Speedway sent her a letter stating that if she did not return the leave paperwork, she would be fired for job abandonment and that is exactly what occurred.
In her lawsuit, the employee argued she was fired in violation of her FMLA rights after she refused to take leave under the Act. The Sixth Circuit analyzed her claim under the interference theory since that is how she pled her claim. The interference claim failed since an involuntary FMLA leave only interferes with the employee’s right to take FMLA if, later during that same year, the employee becomes incapacitated, requests leave under FMLA, and has none left to take because of the prior involuntary leave. But, this did not have a chance to occur because her employment had ended.
The court noted that, had the employee pleaded a retaliation claim under FMLA, it too would have failed. Involuntary leave, by itself, does not violate FMLA. Therefore, opposing involuntary leave is not protected conduct under the act and termination for refusing involuntary leave cannot be retaliation for exercising rights under FMLA.
Finally, in case you are wondering, the employee also asserted a claim for pregnancy discrimination, but it failed since there was evidence that Speedway treated all workers with significant work restrictions the same.
Remember an employer is not required to provide light duty to any employee (except as an accommodation under the ADA, but that is not truly light duty). Employers, however, typically provide light duty to employees who are injured on the job in order to keep their worker’s disability compensation premiums down. If an employer does that, then it must also do so for the pregnant worker with the same or similar ability or inability to perform their job. While this case is good news for employers, it is an unpublished decision. Before you make the gutsy decision to force an employee to take FMLA leave, or if you need assistance developing a “light duty program”, you should consult with an experienced employment attorney.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of the law firm Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2015.