Photo of Racquel B. Martin

With a passion for legal writing, problem solving, conflict resolution and employment law, Racquel Martin joined the firm as member of the Labor and Employment Practice Group. View articles by Racquel

The Elements Make All the Difference—Sixth Circuit Affirms Summary Judgment in Favor of Coal Brokerage Company in Age and Disability CaseWhen evaluating a discrimination case, one can never forget to go back to the basics and start with the elements of the cause of action. For example, if you are facing an age discrimination claim, is the employee in the protected class, i.e., over 40 years old? Were they replaced by someone outside of that class? A lawsuit cannot move forward if a plaintiff fails to provide evidence to support each element required by law. For that reason, the first line of defense for an employer accused of discrimination should be to attack the foundation of an employee’s claims. In Stearman v. Ferro Coals, Inc., the Sixth Circuit reminds us that an employee’s misguided theories about an adverse employment decision are insufficient to survive summary judgment in an age and disability case.

Background

Joseph Stearman was the vice president of sales at Ferro Coals, Inc. for five years. Because Stearman’s job required travel, he used a company credit card to cover costs. However, Ferro required all of its employees to seek approval for business travel, and in 2012, suspended all business travel “due to declining market conditions in the coal industry.” Although employees still traveled, they only did so when they received specific permission.

In 2013, Stearman followed the policy when he requested and received approval to attend a seminar in Myrtle Beach. When Stearman asked to attend the conference again in 2014, he did not receive a response, but went anyway, using the corporate credit card to cover his expenses. When Ferro discovered what Stearman had done, it terminated him for improper use of a company credit card in the broader context of the declining coal industry and a need to downsize. Stearman was 67 years old. After Stearman’s termination, Ferro did not hire a new vice president of sales, instead allowing another employee to absorb his duties in addition to the employee’s existing duties.

Stearman filed a complaint alleging age and disability discrimination under the Kentucky Civil Rights Act, among other claims. Because the Kentucky statute mirrors its federal counterparts, the ADEA and ADA, the district court analyzed Stearman’s claims in the same manner as it would federal claims. Ultimately, the district court granted summary judgment to Ferro on all claims, and he appealed.

Sixth Circuit Affirms Summary Judgment Ruling

On appeal, the Sixth Circuit explained that to prove age discrimination, Stearman had to show that he was replaced by someone outside of the protected class. Given that Ferro had a current employee absorb Stearman’s duties, Stearman had no such evidence. The Sixth Circuit held that Stearman had not been replaced because a replacement only occurred when a company hired a new person or reassigned an employee to take over the plaintiff’s job: “Spreading the former duties of a terminated employee among the remaining employees [did] not constitute a replacement.”

In an attempt to save his age claim, Stearman contended that the replacement test only applied in reduction-in-force cases. While the Sixth Circuit dismissed that argument, it concluded that Ferro was engaged in a reduction in force because it had cut its workforce from 18 to 12 by the time Stearman left. The Court added: “Workforce reduction is a prerequisite to wrapping up business, and it can occur even when some of the employees let go engage in unwise conduct—like taking business trips without authorization.”

Because Stearman could not show that he was replaced, his claim of age discrimination failed. With regard to his disability claim, the court held that because Stearman failed to demonstrate that he was disabled or suffered any restriction in his ability to perform his job, his disability discrimination claim also failed.

Stick to the Basics

This decision highlights what employers should initially consider when terminating an employee, particularly one in a protected class, and/or preparing to litigate a discrimination claim.

  1. When providing a reason for an employee’s termination, make sure that it is the actual reason for termination. It is especially helpful to be able to refer to a policy that has been violated. Also, tell the whole truth—if it is part of a reduction in force, document that reason even if the decision is also disciplinary.
  2. If an employee that is being considered for termination is in a protected class, discuss the circumstances with human resources. If there are red flags and you need to discuss potential risks and the elements of a potential discrimination claim, make sure counsel is involved and your conversation is privileged.
  3. Think about next steps after the employee is terminated. Will the employee be replaced? If so, by who? If not, will other employees assume their duties? Will the person assuming duties get a raise or a change in job title? Is the position being eliminated?

 

By keeping these fundamental concerns in mind, you will hopefully avoid battling an aggrieved former employee or at least be in a better position to defend the decision in court.

“I Got the Juice” – Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA DiscriminationEngaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to employees who request reasonable accommodations that may conflict with such policies.

Background

Linda Atkins was a lead sales associate at Dollar General who suffered from type II diabetes and occasionally experienced low blood sugar. If and when she had a diabetic episode, Atkins had to quickly consume glucose to avoid fainting or having a seizure. Because of her condition, Atkins asked her store manager if she could keep orange juice at her register in case of an emergency. The manager told Atkins that Dollar General’s policy prohibited having food at a register. In fact, the “Personal Appearance” policy stated that employees “should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).”

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes while she was working alone. Because there were multiple customers in the store both times, Atkins could not go to the break room where she kept orange juice in a cooler. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, Atkins paid for the orange juice and told the store manager what happened. Nevertheless, when Dollar General’s district manager and regional loss prevention manager conducted an audit and learned about what Atkins had done, they terminated her for violating the company’s grazing policy, which forbids employees from consuming merchandise in the store before paying for it.

Atkins filed a disability discrimination charge with the EEOC, and the EEOC filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA. After Atkins intervened in the lawsuit as a plaintiff, litigation proceeded to trial where a jury found in favor of Atkins on both claims, awarding her over $27,500 in back pay and $250,000 in compensatory damages. The district court awarded Atkins’ lawyers over $445,000 in attorney’s fees and almost $1,700 in expenses. Dollar General appealed.

Sixth Circuit Upholds Jury Verdict Regarding ADA Claims

On appeal, Dollar General first argued that it did not have a duty to accommodate Atkins because she could treat hypoglycemia in other ways, e.g., glucose tablets, honey, candy, or peanut butter crackers. Siding with the jury, the Sixth Circuit stated that the jury could have found that Dollar General’s “Personal Appearance” policy also prohibited employees from consuming Dollar General’s suggested treatment alternatives. More importantly, the Sixth Circuit highlighted that the policy included a disclaimer that permitted disability-related exceptions depending on the circumstances. Despite this disclaimer and Atkins’ request for an exception because of her diabetic condition, her store manager “categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.” Such a response was not consistent with Dollar General’s duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what type of accommodations could be made. Consequently, the jury had a legally sufficient basis to conclude that Dollar General failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding Atkins’ discriminatory discharge claim, Dollar General argued that it had a legitimate, non-discriminatory reason for firing Atkins, its anti-grazing policy. The Sixth Circuit swiftly discounted this argument, stating that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Furthermore, the Sixth Circuit emphasized that a neutral policy was irrelevant because Atkins had presented direct evidence of discrimination, i.e., failing to provide a reasonable accommodation.

The Sixth Circuit concluded its analysis by refuting Dollar General’s final argument that Atkins did not present evidence of animus toward the disabled. The Court held that proving animus was not necessary and an employer violated the ADA whenever it terminated an employee on the basis of disability. Ultimately, the Sixth Circuit upheld the jury verdict regarding both of the ADA claims, and Atkins prevailed.

Takeaways

This decision does not mean that you cannot apply neutral policies such as personal appearance or anti-grazing to disabled employees. However, employers who apply policies without regard to an employee’s disclosed disability do so at their own risk. Remember that you and your employee are a team that can only succeed when everyone can perform their jobs in a supportive and efficient environment. When faced with an employee who requests a reasonable accommodation, think about the following:

  • Would the requested accommodation violate a policy? Don’t ignore your policies that may prevent you from granting an employee’s request, but think about whether you need to make an exception to enable the employee to keep doing his or her job. If the employee’s request violates a policy, think about alternatives that would not violate the policy.
  • Solicit the employee’s doctor’s input when necessary. If you need a second opinion, get it.
  • Don’t forget that if you cannot provide a reasonable accommodation in an employee’s current position, you should determine if there are vacant positions for which the employee is qualified in which you could provide the accommodation.
  • If you simply cannot grant a requested accommodation, consult with senior management, human resources, and your attorney to assess whether not providing the accommodation would be an undue hardship or whether you can otherwise defend this decision.
  • Finally, document your discussion with the employee, and be sure it is clear that you did all you could to make it work.

Courts and juries like employers who try to figure out ways for disabled employees to keep working. Make sure you fit that mold before you end up in court.

Employee Handbook Leads to Dismissal of FMLA Claims against Tennessee EmployerMost, if not all, employers provide their employees with handbooks that explain the policies and procedures that govern the employment relationship. Because this practice is standard, many employers likely forget how critical it is to have clear, well-known policies that are consistently followed. The recent decision in Everson v. SCI Tennessee Funeral Services, LLC reminds employers of the significance of employee handbooks and how they can prevent extensive litigation.

Background

Ommer Everson worked as a funeral director for SCI Tennessee Funeral Services (SCI). Although Everson was diagnosed with Meniere’s disease during his employment, it did not affect his work until he needed some time off for outpatient ear procedures. Before his procedure in 2010, Everson requested a week to 10 days off, which his supervisor granted. In 2014, Everson requested an afternoon off for another procedure and his supervisor again granted the request. On January 9, 2015, he requested a week off for a third procedure and his supervisor responded that it was fine—“whatever time you need.”

However, Everson never took that week off because he was terminated two days later for violating SCI’s refrigeration policy. Specifically, SCI determined that Everson left an unembalmed body overnight without refrigeration.

Everson sued SCI alleging violations of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Regarding the FMLA, Everson specifically alleged that SCI had retaliated against him for requesting FMLA leave and interfered with the exercise of his rights.

Middle District of Tennessee Grants Summary Judgment to SCI on FMLA Claims

SCI moved for summary judgment, arguing that it did not interfere with Everson’s FMLA rights because Everson failed to follow SCI’s notice requirements in requesting leave. SCI’s employee handbook outlined the procedure—employees needing leave were to contact the SCI Leave and Disability Center. In response, Everson asserted that the FMLA did not require him to invoke the FMLA by name. Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection.

Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave. He also did not identify any unusual circumstances that would have prevented him from complying with SCI’s notice requirement. Because Everson failed to comply with SCI’s policy for requesting FMLA leave, the court ruled that he could not establish a prima facie case for FMLA interference. Additionally, the court ruled that Everson’s claim of FMLA retaliation failed because his anticipated leave was not a protected activity under the FMLA. Since SCI did not have proper notice of Everson’s intent to take FMLA leave, Everson never actually engaged in an activity protected by the FMLA.

The court went on to deny summary judgment to SCI regarding Everson’s ADA claim, but that is a much longer story for a different post.

Takeaways

Never forget the power of the employee handbook and other well-crafted policies. In this case, the employer set out a clear path to request FMLA leave, and the court determined that the plaintiff did not use it. To get the most from those policies, you need to be sure that you can prove that your employees know about them. Here are some ideas:

  • Make sure that every employee receives a copy of your employee handbook and acknowledges in writing that they have both read the handbook and addressed any questions or concerns that they may have.
  • For policies regarding employment laws that may be more complex (g., requesting FMLA leave, requesting reasonable accommodations, requesting or reporting overtime, etc.), consider having employees read, acknowledge, and sign a separate document in addition to the handbook acknowledgement to ensure that they understand their responsibilities, as well as your responsibilities as their employer.
  • Send periodic messages or post reminders about more complicated policies—such as requesting FMLA leave or reporting harassment. This will give you another way to prove that employees understand how the policies work.