Ministerial Exception Applies With Force in Michigan

On January 26, 2010, the Michigan Court of Appeals, in Weishuhn v. Catholic Diocese of Lansing, sent a clear message that the ministerial exception applies, in Michigan, to a broad set of employees and a broad set of claims.

First, the Court of Appeals held that a mathematics teacher, albeit one with significant non-secular responsibilities, is a ministerial employee. Importantly, the Court stated, mindful of the overlap between secular and non-secular teaching responsibilities, that " teaching 'secular' classes is not necessarily 'purely secular' in the context of religious schools," because teachers in religious schools often incorporate religion into their teachings. (As an aside, would Courts allow parties to contract this? "While teaching at X, you will be considered a ministerial employee as understood by _____ v _____.")

Second, the Court applied the exception to whistleblower claims. Michigan now joins Florida as the only state doing so. The Court emphatically closed by saying "[t]ermination by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so." The Court did acknowledge that the ministerial exception does not foreclose non-termination causes of action (e.g. independent tort claims and contract actions)

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

Cross Your Fingers

On January 19, 2010, the Michigan Court of Appeals issued Foote v. Dow Chemical in which it reaffirmed the importance of including disclaimer language in employee handbooks. In Dow, no employment contract was created, and hence no breach could occur, because Dow's handbook said "[n]othing in this document constitutes a contract of employment with any individual," and "I understand that I will have the right to terminate my employment with Dow at any time without notice and for any reason. I understand that Dow has the same right."

Employers should always include similar language in order to prevent accidental contract formation.

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.

Should Parties Limit an Arbitrator's Authority

On February 9, the Michigan Court of Appeals issued City of Center Line v. Police Officers Association of Michigan and Angela Post in which it affirmed a trial court's decision to affirm an arbitration award. In that award, an arbitrator determined the employer had "unreasonably" relied on medical evidence when finding that an employee was unable to return to work and, as such, had violated the CBA. The arbitrator then ordered the employer to seek another medical opinion to determine, for damage reasons, when the employee was fit to return to work. Based on this evidence, the arbitrator ordered backpay.

The employer challenged this order on the grounds that granting this relief was not within the arbitrator's authority. After noting that the "arbitrator's chose of remedy is . . . generally broad," the Court of Appeals explicitly noted that the CBA in question "does not limit the arbitrator's authority to order a particular remedy."

This raises an important question for employers. When negotiating CBAs, should you insist on a provision that limits an arbitrator's remedial powers? CBAs traditionally contain provisions prohibiting arbitrators from adding to or subtracting from CBAs, but a remedial limitation is different and, in a more targeted fashion, addresses the authority of the arbitrator to grant certain remedies.

Click here for a copy of the Michigan Court of Appeals decision.

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.