Employer Law Report

Tag Archives: sixth circuit

Sixth Circuit: Employer can’t enforce shorter contractual statute of limitations period to bar Title VII action

A federal lawsuit alleging discrimination under Title VII must be filed within ninety days after the EEOC has completed its handling of the related discrimination charge and issued its Notice of Right To Sue. Some employers attempt to shorten the time for filing discrimination charges by getting employee or applicants to sign agreements to that effect. On Sept. 25, 2019, in Logan v. MGM Grand Detroit Casino, the 6th Circuit Court of Appeals ruled that efforts to shorten the statute of limitations for Title VII cases are not enforceable.

The Circuit Court overturned a district court decision that …

Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination …

Sixth Circuit holds that employer was not required to extend lunch breaks for exercise as reasonable accommodation

Many people exercise daily, and for Shannan McDonald, her exercise was prescribed by her physician for her genetic disorder.  McDonald, employed as a receptionist for UAW-GM Center for Human Resources (CHR), regularly exercised in her employer’s on-site gym during her lunch break.  Per the collective bargaining agreement that covered her employment, each year CHR permitted employees to elect annually whether to take a 60 minute lunch break or a 30 minute lunch break with two other 15 minute breaks. The election remained in place for the entire year following election. McDonald chose the 30 minute lunch break.…

FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.


Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as …

Does the Use of Subjective Criteria in a RIF Show Discrimination? The Sixth Circuit Says Not Necessarily

Charlotte Beck had been employed with Buckeye Pipeline Services Company ("Buckeye") for over 16 years as a 12-hour operator. In 2009, however, Buckeye underwent a company-wide reduction in force. Buckeye created a "design team" to reform the organizational structure of the Company and implement a team-based leadership model that would be used going forward. The design team created a new performance evaluation system, which required at least two people with first-hand knowledge of the employee to rate the employee and cite specific examples of behaviors that supported the grade. Any employee who did not receive a rating of 60 points or higher …

The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit

In Frye v. Baptist Memorial Hospital, Inc., the United States District Court for the Sixth Circuit handed down not one, but two favorable rulings for employers in an FLSA collective action. First, in considering an automatic pay deduction policy for unpaid meal breaks in a collective action for the first time, the Court held that such a policy does not automatically, or per se, violate the FLSA. Second, a class representative plaintiff must formally opt-in to their own case to "commence" suit and stop the running of the statute of limitations.

1.  The Sixth Circuit Holds that Automatic Pay

Sixth Circuit Applies “But For” Test in Disability Discrimination Case

The Sixth Circuit Court of Appeals, sitting en banc, has decided that a worker suing under the Americans with Disabilities Act ("ADA") no longer must prove she was fired solely because of her disability, but instead need only show that her employer would have kept her "but for" her disability. Lewis v. Humboldt Acquisition Corporation, Inc.

Susan Lewis was employed as a registered nursed at Humboldt Acquisition Corporation, Inc., ("Humboldt") from July 2004 until March 20, 2006, at which time she was allegedly terminated for a profanity-laced outburst directed at her supervisors. Lewis filed a suit in federal …

The Sixth Circuit Settles It: FMLA Interference Claims Should Be Evaluated Under the McDonnell Douglas Framework

Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012) the Sixth Circuit held that the McDonnell Douglas burden-shifting framework applies to FMLA interference cases.

The case concerned an Arby’s franchise that terminated Gwendolyn Donald’s employment after it determined that she had been improperly discounting drive-in window orders and pocketing the difference. Among other allegations, she claimed that her employer terminated her employment in retaliation for …

Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.

James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey …

Clearing the Backlog – September

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my …

Sixth Circuit Rules for Employer in First Published Decision on “Associational” Disability Discrimination Claim

In a decision issued in July, the Sixth Circuit addressed the standard for a claim under the "associational" provisions of the Americans with Disabilities Act and affirmed summary judgment on plaintiff’s claim that his employment was terminated due to his wife’s disability.

The plaintiff was the highest ranking manager for Air Wisconsin at the Kalamazoo Airport. His wife suffered from various conditions, including a rare and debilitating auto immune disorder that required expensive treatment.

Plaintiff was terminated for poor performance based on failure to report security violations, supervise employees properly and stay within budget. In filing suit, he claimed that …

Sixth Circuit Decision in Pulte Homes Leaves Employers With Few Options In Response To Union High Tech Tactics

A Sixth Circuit decision issued on August 2, 2011, puts the spotlight on union high tech tactics in the midst of an organizing campaign and potentially puts employers in precarious positions in attempting to respond.  


In September 2009, Pulte Homes, Inc. fired a construction crew member for misconduct and poor performance. Claiming that the crew member really was terminated for wearing a pro-union t-shirt, the Laborers’ International Union of North America (LIUNA) filed an unfair labor charge with the NLRB and unleashed a denial of service campaign that paralyzed Pulte’s phone and email systems. 


Sixth Circuit Upholds Denial of ERISA-Based Income Protection Benefits; Plan Administrator Need Not Investigate Whether the Employer Violated FMLA

As demonstrated by the Sixth Circuit’s recent decision in Farhner v. United Transportation Union Discipline Income Protection Program, a well-drafted ERISA income protection or severance pay plan should enable the plan administrator to rely on the employer’s stated reason for termination of an employee, rather than conducting an independent review of the facts regarding the termination.

In May 2004, Mark Farhner, a trackman and conductor for the Kansas City Southern Railroad sought a three-month leave of absence for "medical reasons." KCSR’s human resources manager requested additional information from Farhner to justify his request. When Farhner’s vacation leave had been …

Sixth Circuit Applies “Primary Benefit” Test To Uphold Unpaid Internship Program

In a decision issued on April 28, 2011, the Sixth Circuit Court of Appeals offers employers some clarity on the test to determine whether using unpaid interns or other student trainees violates the Fair Labor Standards Act (FLSA). In this case, Solis, Secretary of Labor v. Laurelbrook Sanitarium and School Inc., 6th Cir. No. 09-6128, the Court threw out a U.S. Department of Labor lawsuit against a Tennessee religious school’s student work experience program.

The Department of Labor brought an action against the Laurelbrook school alleging that its students were "employees" and had to be paid under the FLSA. …

Cat’s Paw Declawed In Sixth Circuit ADA Cases?

Yesterday, a panel of the Sixth Circuit announced its decision in Lewis v. Humboldt Acquisition Corp, an ADA case in which the court upheld the position of prior panels requiring an ADA plaintiff to establish that his or her disability was the “sole reason” motivating an adverse employment action. As Mark J. Chumley of the excellent Management Rights Blog noted yesterday, this puts the Sixth Circuit in the distinct minority of the appellate courts to consider the standard of proof on causation in an ADA case:

“Of the ten circuits to consider the causation issue, eight apply a …

Sixth Circuit Decision in Jakubowski Highlights Importance of Interactive Process In Reasonable Accommodation Efforts

Yesterday, the Sixth Circuit announced its decision in Jakubowski v. The Christ Hospital, Inc. which very well demonstrates the attention that employers need to pay to the interactive process when an employee approaches it for a reasonable accommodation for a disability.   

Jakubowski was a family medicine resident at Christ Hospital, which noted a number of deficiencies in his performance due to cognitive issues that were later diagnosed as Asperger’s.  Specifically, Jakubowski was having difficulty communicating his thoughts to people and processing what people communicated to him.  Upon receiving the Asperger’s diagnosis, Jakubowski’s attorney contacted the hospital proposing that it accommodate Jakubowski’s …

Employers: When it Comes to the FMLA, Leave Common Sense Behind

In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee’s health care provider in denying a request for FMLA leave. 

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the …

Sixth Circuit Reverses Third Party Retaliation Decision

In Thompson v. North American Stainless LP, in a rehearing by the Sixth Circuit en banc, the full Sixth Circuit held that, in order for a third-party to claim retaliation based on the protected activity of another, the third party must have actually engaged in protected activity of his own. In doing so, the Sixth Circuit joined the Third, Fifth, and Eighth Circuits in so ruling.

In Thompson, a woman filed a sex discrimination charge with the EEOC.  Three weeks later, the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC …

Lessons Learned for Performance Appraisals and RIFs from the Sixth Circuit in Cutcher v. Kmart

Even in the face of an undisputed national workforce reduction, in a recent decision (Cutcher v. Kmart), the Sixth Circuit found an issue of disputed fact existed as to whether Kmart’s termination of an hourly associate as part of a reduction in force interfered with and was in retaliation for that associate’s recent exercise of her FMLA rights.

Cutcher had been employed by Kmart for about 20 years. In the four years she had been evaluated by her then current supervisor, Cutcher had received either the highest or second-highest rating in Kmart’s appraisal system. While her supervisor did comment in certain …

More Case Law Regarding Documentation Required to Revise or Terminate Negotiated Retiree Healthcare Benefits

The Sixth Circuit has decided two new cases regarding ERISA lifetime retiree healthcare benefits under a collective bargaining agreement, continuing to put a thumb on the scale in favor of vested benefits, but recognizing that an employer may have the right to make “reasonable modifications” to those benefits. In an earlier post, we discussed the hurdles in place for employers attempting to reduce or eliminate these benefits.

In Reese v. CNH Am. LLC, No. 08-1234/1302/1912 (July 27, 2009), a group of retirees sought a declaration that they were entitled to lifetime healthcare benefits under a 1998 collective bargaining …

Sixth Circuit Applies Balancing Test In Retaliation Case Involving an Employee’s Disclosure of Confidential Documents

A recent Sixth Circuit decision addressed the issue of whether the disclosure of confidential, proprietary documents by an employee to her attorneys constitutes a protected activity for which the employee cannot be terminated or otherwise disciplined. In 2000, numerous individuals filed a class action against the Cincinnati Insurance Company (CIC), alleging that CIC had discriminated against women in violation of the Equal Pay Act (EPA). Kathy Niswander, a claims manager at CIC, was one of the plaintiffs in the class action. 

In order to respond to CIC’s discovery requests, the plaintiffs’ attorneys asked each of the plaintiffs, including Ms. Niswander, to send …