The 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—recently heard a claim from a former Waste Management employee. The former employee claims he was discriminated against under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). How did the 6th Circuit rule?
Facts
“Justin” was hired by Waste Management in 2007 to work as a residential route driver in Montgomery County. Until 2012, he operated a 40-ton truck along a daily route, picking up curbside residential trash. His job was physically demanding and dangerous.
Because of the risks posed to employees and the general public, Waste Management publishes safety rules in its employee handbook and holds regular and ad hoc safety training sessions. The handbook requires that employees “report all work-related injuries, accidents, near misses, and any health or safety hazards . . . immediately to their supervisor.” Compliance with that rule requires employees to complete a one-page injury report whenever they suffer a work-related injury. The handbook provides that “failure to report will result in corrective action[,] up to and including termination.”
Justin was no stranger to injuries or to Waste Management’s injury-reporting process. He experienced three injuries during his 5 years of employment at the company. The first injury occurred when he developed work-related tendinitis in his elbow in 2010. He completed an injury report. However, he claimed that his manager told him he would be fired if he filed a workers’ compensation claim.
In January 2012, Justin fell from his truck and twisted his leg. He once again filed an injury report and gave it to his new manager, “Robert.” (Justin’s former manager had been fired for failing to report a subordinate’s workplace injury.)
The incident that gave rise to the case before the 6th Circuit occurred on March 27, 2012. Justin claimed that while he was on his route, he came upon two large tree stumps sitting curbside for pickup. He called “Dillon,” the supervisor who was filling in for Robert, and asked him what he should do. Dillon told him the stumps had to be taken away. Justin felt an “explosion of pain” in his back after he lifted the first stump. Despite the pain, he lifted the second stump into the truck and continued to work for about 6 hours.
Justin didn’t file an injury report after the incident. He claimed that when he returned to the office, Dillon had already left for the day, and when he approached him to discuss the injury the next day, Dillon brushed him off. Robert returned to the office on March 29, 2 days after Justin’s injury. Justin said that when he approached Robert to discuss his injury, Robert told him that he “didn’t want anything to do with it.” Justin continued to work until April 18, when he went to the emergency room, complaining of back pain.
Waste Management approved Justin’s fourth FMLA leave in 5 years, although it didn’t know that his injury was work-related. He had surgery on his back in May 2012. Justin and his wife claimed that they called Robert and other high-level Waste Management employees numerous times between April and July 2012 to discuss the matter. Justin also claimed that he remained unsure about whether to file a workers’ compensation claim.
Justin returned to work in August 2012 with restrictions from his doctor. Waste Management accommodated his restrictions and placed him in a “work hardening” program, which permitted him to gradually return to his normal work duties. Nobody at Waste Management made any negative comments to him about his leave.
Justin filed a workers’ compensation claim for his March 27 injury on August 15. Waste Management learned of the claim on October 17. On October 22, the company discovered that it didn’t have an injury report on file. HR asked Robert to address the matter with Justin, and several meetings ensued.
When Robert and Justin met on October 23, Justin acknowledged filing the workers’ compensation claim and said he had been afraid to report the incident to Waste Management. Robert directed him to return to his route while he conferred with HR and his manager, “Michael.”
After Justin returned to the office later on October 23, he again met with Robert. Justin claimed that Robert ranted and raved at him about the workers’ compensation claim. Robert handed him an injury report form during the meeting and asked him to complete it. Justin claimed that he thought the form was related to his workers’ compensation claim or was a termination notice. Instead of reviewing the form, he demanded that he be permitted to take it home so he could consult with his attorney. When he refused to complete the form, Robert directed him to leave the office and not return the following day.
Justin consulted his attorney, who wrote a letter to Waste Management asserting that it had constructively discharged Justin and violated four state and federal laws. Justin delivered the letter to Robert on October 26. After reviewing the letter and discussing it with Michael, Robert again asked Justin to complete the injury report. Justin stated that he would only do so in the presence of his attorney. He was told to leave.
Robert and Michael conferred with HR and ultimately decided on October 29 to terminate Justin for failing to report a work-related injury and failing to complete an injury report form. He was notified of his termination on November 2.
Former Employee Wastes No Time in Filing Suit
Justin sued Waste Management, Michael, and Robert, alleging retaliation in violation of Ohio workers’ compensation law, wrongful discharge in violation of public policy, disability discrimination and retaliation in violation of the ADA, and retaliation in violation of the FMLA. The parties filed cross-motions for summary judgment, and the district court granted Waste Management’s motion. Justin appealed to the 6th Circuit.
Applying the McDonnell Douglas burden-shifting framework, the 6th Circuit determined that each of Justin’s discrimination and retaliation claims shared a single fundamental flaw: He failed to show there was a genuine dispute about whether Waste Management’s stated reasons for terminating him were pretextual. The court concluded that he violated—willfully and on multiple occasions—a company policy that provided for termination as a possible consequence of any violations.
The 6th Circuit also agreed with the district court in rejecting Justin’s public-policy claim, concluding that he failed to demonstrate both causation and that Waste Management lacked an overriding business justification for terminating his employment.
Not all of the 6th Circuit judges who heard the case agreed. Judge Karen Nelson Moore wrote a dissenting opinion in which she asserted that Justin had presented enough issues of fact that the case should have been tried before a jury. Sharp v. Profitt, Case No. 14-3959 (6th Circuit, Dec. 28, 2016).
Takeaway
An employee who claims discrimination and retaliation under the ADA and the FMLA must demonstrate that his employer’s stated reason for his termination is pretextual to prevail. Consistent enforcement of carefully drafted company policies can significantly bolster your defense when such claims arise.
You may reach James C. Manual at 614-227-2118 or jmanuel@porterwright.com.