Cases of Interest

1. “Cat’s Paw Theory” - Bobo v. United Parcel Service, Inc., 2012 U.S. App. LEXIS 394 (6th Cir., 2012) - Plaintiff Walleon Bobo appealed a district court’s adverse grant of summary judgment on his discrimination and retaliation claims brought pursuant to USERRA and Title VII.   Plaintiff served as a supervisor at defendant UPS.  Plaintiff also served in the Army Reserve, which required him to miss numerous days of work for annual training.  Upon submitting military orders for his annual training in late 2004,  one of the Plaintiff’s managers told him that he needed to choose between the UPS and the Army; Plaintiff complained about his manager’s comments to Bob Wagner, Transportation Services Division Manager.  Then, Plaintiff began reporting to Norman Morton, who in turn reported to Wagner. Plaintiff presented evidence of several alleged statements that indicate both Wagner and Morton possessed an anti-military animus. For instance, in 2005, Morton wrote to Wagner that he “did not want Walleon [Plaintiff] volunteering for additional military duty when he was needed at UPS.”  In 2007, Plaintiff was terminated for falsifying safety forms—two weeks before his scheduled military training.

                  The Court described the cat’s paw theory as follows: “this phrase refers to a situation in which ‘a biased subordinate, who lacks decision-making power, influences the unbiased decision-maker to make an adverse [employment] decision, thereby hiding the subordinate’s discriminatory intent.’”  In the present case, Bob Cowan was Wagner’s supervisor and second-in-command of the Plaintiff’s service district.  Cowan, in agreeing to terminate Plaintiff, relied in part on information that he received from Wagner and Morton.  The 6th circuit held that the evidence suggested Wagner influenced Cowan—the unbiased decision-maker—to terminate Plaintiff, thereby hiding Wagner’s and Morton’s discriminatory animus against the Plaintiff. Therefore, the Court reversed the defendant UPS’s grant of summary judgment on the Plaintiff’s USERRA claims.

2. Temporal Proximity – Retaliation Cases
   1. Fraker v. Marysville Exempted Village Schools, 696 F. Supp.2d 887 (S.D. Ohio 2009) —Plaintiff was a former employee of Defendant school district. He was allegedly terminated from his employment in retaliation for giving testimony in his co-worker’s race discrimination suit against the defendant school district.  The 6th Circuit explained temporal proximity as follows: where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of causal connection in demonstrating a prima facie case for retaliation.  Here, Plaintiff was placed on administrative leave only three weeks after he provided an affidavit in the racial discrimination case.  Further, he was terminated three and a half months after providing testimony in that same case. The Court in Fraker concluded that the adverse employment action occurred sufficiently close in time after the decision-makers learned of the Plaintiff’s protected activity.
   2. Simmons v. M&M International, Inc., 2009 U.S. Dist. LEXIS 96080 (S.D. Ohio 2009)—Plaintiff brought claims of age discrimination and retaliation in violation of the ADEA. Plaintiff received a lower pay bonus than some of his younger co-workers and thus, he filed a charge with the EEOC .  After the filing with the EEOC, Plaintiff received a written warning for a work-related incident, which he claimed was in retaliation for his EEOC charge. Based upon this incident, the Plaintiff filed a second charge with the EEOC.  Plaintiff was later terminated from his employment. The Court held that temporal proximity was sufficient to establish causality as Plaintiff was terminated approximately three months after filing his first charge and less than two weeks after filing his second charge.

3. Progressive Discipline

1. Parries v. Makino, Inc., 2005 U.S. App. LEXIS 15068 (6th Cir. 2005) (not recommended for publication)--The 6th Circuit held that the employer met its burden of articulating a legitimate, non-discriminatory reason for an adverse employment action by establishing that the employee was terminated due to his history of disciplinary problems and his unacceptable insubordination. Here, Plaintiff passed through four stages of disciplinary action prior to his termination and could not produce any additional evidence to indicate that the employer’s non-discriminatory reason was pretextual.
2. Vise v. Graphic Packaging, 2011 U.S. Dist. LEXIS 64909 (S.D. Mich. 2011)—Defendant successfully articulated a legitimate, non-discriminatory reason for Plaintiff’s termination by producing evidence of the plaintiff’s seven written warnings/citations in a twelve-month period prior to termination.  See also Canitia v. Yellow Freight System, Inc., 903 F.2d 1064 (6th Cir. 1990).

4. Notice of FMLA Calculation Method - Thom v. American Standard, Inc., Case No. 07-00294 (6th Cir., 2012) – Defendant appealed  the District Court’s adverse grant of partial summary judgment on Plaintiff’s FMLA interference claim.  Plaintiff was a 36-year employee who requested, and was granted FMLA leave from April 27, 2005 to June 27, 2005 for shoulder surgery.  Plaintiff’s doctor cleared Plaintiff to return to work on June 13, but Plaintiff began experiencing pain in the surgically-repaired shoulder around that time.  He requested that he be allowed to return to work on June 27, the end of his approved leave.  On June 17, before Plaintiff could get a doctor’s note requesting an extension of his leave, he was terminated for excessive unexcused absences.

  
In affirming the District Court’s grant of summary judgment to Plaintiff, the 6th Circuit stated that Defendant had failed to notify Plaintiff, in writing, the method it used to determine the 12-month period in which Plaintiff’s 12 weeks of leave entitlement occurred.  Defendant argued that it used the “rolling” method to calculate FMLA leave, and that Plaintiff had constructive notice of this method due to his union membership.  The Court rejected this argument, stating that Plaintiff was never given actual notice of the “rolling” method policy, and was never told that his official leave date would expire earlier than June 27, the date Defendant had approved in writing.

Importantly, the 6th Circuit awarded Plaintiff liquidated damages in addition to his back pay and pension benefits.  The Court found that Defendant’s justification for Plaintiff’s termination (i.e., its use of the “rolling” method) was pretextual and not consistent with good faith, as the June 27 return date agreed to, in writing, by Defendant was inconsistent with the rolling method. 

Employers must not only be aware of the FMLA calculation method they use, but must also make sure that they notify their FMLA-eligible employees of this method.  Therefore, employers should make sure that this method is explained in either their employee handbooks, or on the FMLA leave forms.  Furthermore, employers should verify that their calculation method is being used properly and is consistent with the amount of leave being provided to their employees in order to avoid a potential “bad faith” judgment and the possibility of paying liquidated damages to litigants.

Employment Law Section Publications

1. Callahan, Rory, Supreme Court Upholds “Cat’s Paw” Theory Labor and Employment News, Spring 2011, Ohio State Bar Association 

    

2. Fekete, Robert, Employers Should Not Concede Defeat To Facebook Just Yet Labor and Employment News, Spring 2011, Ohio State Bar Association