Gross Isn't Too Gross

In Eunice v. Valley View Local Schools, the Sixth Circuit Court of Appeals (Gibbons, J.) held that Gross's preclusion of mixed-motive claims does not apply to FMLA retaliation claims. Specifically, because the FMLA does not contain the ADA's "because of," but instead, in regulation 29 CFR s. 825.220(c) (promulgated by the Department of Labor), uses less stringent words like "negative factor," the Court held that "the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors." (It may be problematic that the Court relied upon regulations, and not the text of the statute. This may explain why the Court went out of its way to note that it had already found the regulation in question to be "reasonable" and "entitled to deferential judicial review.") As such, "if Hunter has presented evidence to establish that Valley View discriminated against her because of her FMLA leave, then the burden shifts to Valley View to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." The Court ultimately reversed the trial court's grant of summary judgment for Defendant. An extension of Gross to FMLA retaliation claims would have favored employers because it would have required employees to demonstrate that the impermissible motive was the "but for" cause of the employment action.

Click here for a copy of the Court's decision.
Click here for a copy of the FMLA.
Click here for a copy of the regulation.

What Are FMLA'ers Entitled To & How Far Does Gross Go?

In Harris v. Metro Gov't of Nashville, Judge Guy, writing for the Sixth Circuit Court of Appeals provides helpful precedent for employers regarding FMLA interference claims. Specifically, Harris draws the helpful distinction regarding exactly what benefits employees are entitled to upon return from FMLA leave. (In Harris's case, he claimed he was entitled to a supplemental stipend for coaching the high school basketball team which he did not qualify for because of his leave.) According to the Court, "[i]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct. "

The Court also clarified that, despite FBL v. Gross, plaintiffs can still utilize the McDonnell Douglass framework to establish disparate treatment claims under ADEA based on circumstantial evidence. Nonetheless, as compelled by Gross, "[t]he plaintiff retains the ultimate burden of proving that 'age was the but-for cause of the employer's adverse action.'"

Click here for a copy of the Court's opinion.

Click here for a copy of Gross.

Termination and Employer Missteps

Brenna Lewis worked in a front desk position at Heartland Inns. In that capacity, Lewis received good performance reviews and at least one positive customer comment. Lewis was eventually promoted to the "A Shift," a premium shift from 7:00 am to 3:00 pm. Shortly after starting the A Shift, Barb Cullinan, Defendant's Director of Operations, saw Ms. Lewis and wasn't pleased. In fact, she called Lewis's manager and said Lewis was not a "good fit," that Lewis lacked the "Midwestern girl look," and that the front desk staff should be "pretty." Cullinan subsequently ordered a second interview of Lewis. Cullinan also installed video equipment to view interviewees. To her surprise, Lewis knew about Cullinan's comments and, at the interview, mentioned that she felt the new second interview requirement was illegal. In the interview, Lewis, in addition to questioning the legality of the second interview, made some suggestions to Cullinan regarding Defendant's business practices. Three days later, Lewis was fired.

On January 21, 2010, the Eighth Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant on Lewis's retaliation and gender stereotyping claims. According to the Eighth Circuit, the district court improperly required Lewis to produce evidence that she was treated differently than similarly situated males in order to satisfy the fourth prong of the McDonnell Douglas test. Instead, Lewis was permitted to rely on evidence of pretext or evidence of discriminatory comments (both of which Lewis was able to establish.)

The Court also reaffirmed the validity of gender stereotype claims quoting Smith v. City of Salem, Ohio, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex." The takes aim at gender stereotyping claims, while noting that Price Waterhouse was a mere plurality, "[a]pparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification." As this demonstrates, the fight over gender stereotyping claims rages on.

The Court also reinstated Lewis's retaliation claim reiterating that "[i]n making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct 'as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination." According to the Court, Lewis's knowledge that she was possibly the only one subject to the second interview, that Cullinan had made sexually-charged comments, and her statement that such conduct was illegal meant she had engaged in "protected conduct, including opposition to an action prohibited by Title VII."

The facts of Lewis reveal two important missteps taken by the employer: it failed to follow its normal termination procedures and its reason for termination was based on interview at which only Lewis and Cullinan were present. To wit, when analyzing whether Lewis had established that Defendant's reason for terminating Lewis was pretextual, the Court noted that "Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however.

In short, don't engage in gender stereotyping. The words "he's not masculine enough" or "she's not feminine enough" should not be in employers' vocabularies. Additionally, don't base a termination on an interview at which only the employer and the employee are present. This is almost certain to generate a question of fact. Finally, follow procedures. If you don't, you are asking for unfavorable inferences.

Click here for a copy of the Court's opinion.

TWO Days Later??!! -- SJ Affirmed

On January 12, 2010, the Michigan Court of Appeals issued Upton v. Phoenix Composite Solutions in which it affirmed a trial court's decision granting an employer's motion to summarily dispose of a former-employee's whistleblower claim. Specifically, the Court agreed with the trial court's finding that plaintiff failed to establish that "there existed a causal connection between the protected activity and the discharge," despite her demonstration that she was fired a mere two days after the Department of Labor issued a ruling on her behalf regarding unpaid overtime. In doing so, the Court reiterated that "a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action . . . a plaintiff must show something more than merely a coincidence in time between protected activity and adverse employment action."

Click here for a copy of the Court's decision.

Click here for a copy of the Whistleblowers' Protection Act.

ADEA -- Prima Facie Hurdle Heightened -- SJ Affirmed

In Schoonmaker v. Spartan Graphics Leasing, LLC (No. 09-1732)(decided February 3, 2010)(ADEA), the Sixth Circuit Court of Appeals reiterated that in workforce reduction situations the fourth element of the McDonnell Douglas test is modified. Specifically, in workforce reduction situations, Plaintiffs must provide additional evidence tending to demonstrate that the employer impermissibly singled him/her out for discharge. (This is instead of the traditional fourth element which is that the employe was replaced by someone outside the protected class.) In doing so, the Court made it more difficult for employees who are terminated in workforce reductions to state a prima facie case of age discrimination.

Plaintiff proffered three sets of additional evidence to satisfy the fourth element of the McDonnell Douglas test. The Sixth Circuit rejected Plaintiff's additional evidence. First, retaining a younger employer is irrelevant unless Plaintiff can she he or she was more qualified than that younger employee. Second, a sample including two other terminated employees is too small to be probative. Third, failure to follow layoff criteria in handbook does not demonstrate discrimination.

Click here for a copy of the Sixth Circuit's decision.