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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 the termination was due to consideration of his wife’s disability, which he alleged impacted his work performance and caused him to be inattentive at work.Continue Reading Sixth Circuit Rules for Employer in First Published Decision on “Associational” Disability Discrimination Claim

Posted in EEO

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. 

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

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 exhausted, his supervisor told him that he needed to provide the requested documentation or return to work within 48 hours. Rather than doing either, Farhner faxed a request for FMLA leave. After conducting an investigation (which included an actual hearing), KCSR terminated Farhner for insubordination.Continue Reading Sixth Circuit Upholds Denial of ERISA-Based Income Protection Benefits; Plan Administrator Need Not Investigate Whether the Employer Violated FMLA

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 ‘motivating factor’ (or ‘substantial cause’) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action.

However, the current law in the Sixth Circuit is that a plaintiff must show that his or her disability was the ‘sole reason’ for the adverse employment action; this is sometimes referred to as the ‘solely’ standard.”Continue Reading Cat’s Paw Declawed In Sixth Circuit ADA Cases?

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 disability with “knowledge and understanding.”  In other words, Jakubowski believed that he could successfully continue his residency if the hospital employees were made aware of his condition and its symptoms and triggers.  He acknowledged that he would still need to improve his patient communication skills, but insisted he could do that on his own.

The hospital met with Jakubowski about the proposed accommodation, but advised him that it did not have sufficient resources to comply.  The hospital, however, offered to assist Jakubowski in finding a residency in pathology, a field that requires little or no patient interaction.  When the parties could not agree on an accommodation, Jakubowski was terminated and later filed a lawsuit.  During the course of discovery, Jakubowski presented expert testimony identifying many ways in which the hospital could have accommodated his Asperger’s that apparently had not been considered by either Jakubowski or the hospital.  In response, the hospital presented expert witnesses who offered opinions suggesting that Jakubowski’s inability to communicate with other hospital employees and patients endangered the patients’ safety.  The U.S. District Court for the Southern District of Ohio granted the hospital’s motion for summary judgment, finding that Jakubowski was not “an otherwise qualified individual” entitled to the protections of the ADA and Ohio disability discrimination laws.

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

Posted in EEO

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.
Continue Reading Sixth Circuit Reverses Third Party Retaliation Decision

Posted in EEO

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

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