Litigating the Breach of a Non-Compete Agreement – A View From the Trenches

non-compete agreementOn July 2, 2018, we defended against a motion for a preliminary injunction on behalf of our clients. Our clients were sued for allegedly breaching their non-compete agreements with their former employer and related claims.

As is often the case in non-compete litigation, numerous factual and legal issues were up for grabs when it came to obtaining injunctive relief. See What Happens When a Noncompete Agreement is Violated? A Blueprint for Noncompete Litigation. And how these matters were ultimately resolved provides critical insights for employers and individuals involved in these disputes.

Background of the Lawsuit

The Plaintiff, an insurance agency, tried to enforce its non-compete agreements against two former sales agents. One non-compete agreement prohibited the agent from working for or as a competitor within Michigan; the other banned the agent from the same, but it was limited to a 65-mile radius from Plaintiff’s office. Both non-compete restrictions broadly extended to any insurance products, rather than limited to particular lines (e.g., auto, life, property, casualty, hazard, and business).

There was no serious dispute that if the non-compete agreements were enforced per their express terms that the Defendants’ business would be shut-down; their business marketed and sold insurance products in Michigan, and it was located within miles of their former employer’s office.

Lessons from the Preliminary Injunction Hearing.

So with this backdrop, here are a few insights to consider:

  • The first point, employers must properly draft and take care in handling the circumstances leading up to ending the employment relationship and enforcing a non-compete agreement. Here, among the points we successfully argued was that the state-wide ban was overbroad and, therefore not reasonable. The best evidence for this argument was the Plaintiff’s other, less restrictive non-compete restriction limiting competition within 65 miles of its office. Also, the Plaintiff had classified Defendants as “independent contractors,” not employees, which has significant legal consequences when it comes to enforcing non-compete restrictions under Michigan law.
  • Second, before leaving your employer to start a competing company or to join a competitor, understand what, if any non-compete restrictions or other obligations you may have. Simply put, it makes no sense to invest in starting a new business or joining a new company only to discover such actions are contractually prohibited.
  • Third, while noncompete agreements are enforceable in Michigan and other states if specific threshold requirements are met, judges have broad discretion in determining what that enforcement will ultimately look like. Here, our defense was admittedly aided by an experienced judge (Hon. Christopher P. Yates) who took the time to understand the factual and legal issues, the business interests in the matter, and how the competitive interests affected consumers. Unfortunately, not all judges will take such a reasoned approach or conduct the analysis beyond whether a non-compete agreement was entered into by the parties.

Returning to our case, while the judge entered injunctive relief, it was significantly less restrictive than what the Plaintiff sought or that was required under the non-compete agreements. For instance, Defendants could continue operating their business at its current location, which was just miles from Plaintiff’s office. Further, Defendants could market and sell a broad array of insurance products, except for a single insurance product Plaintiff described as a niche product it specialized in.

But even this restriction was limited to a 65-mile radius from Plaintiff’s office with a “big” lake comprising a large portion of this restricted geography. Thus, Defendants could sell Plaintiff’s niche product as long as it was selling to customers outside of the 65-mile radius.

This suit is not over, but this result makes for a good foundation to build upon. This is because non-compete lawsuits often turn on the success or failure at the preliminary injunction phase. Here, after the litigation dust settled, Plaintiff was left with far less than what the express language of its non-compete agreements provided. And Defendants were left with restrictions they could work with while the litigation continues.

For more information about this article, drafting noncompete agreements or litigating the breach of a non-compete restriction, contact Attorney Jason Shinn.

Since 2001, Jason has worked with companies and individuals in addressing non-compete law. This experience includes representing companies pursuing breaches of their post-employment restrictions and individuals sued for allegedly breaching their noncompete obligations.

Two Metro Detroit Employers Settle with DOL Over FLSA Violations

Independent Contractor Misclassification Two Metro-Detroit employers have recently agreed to settle wage and hour violations under the Fair Labor Standards Act (FLSA) involving overtime compensation and misclassification issues.

Specifically, Belle Tire agreed to pay over $340,000.00 for violations under the FLSA. Payments will be made to employees in approximately hundred stores in Michigan, Indiana, and Ohio.

According to the Department of Labor Department (DOL), this settlement arose out of a DOL investigation, which concluded that Belle Tire “failed to include incentive bonuses and sales commissions” in calculating overtime pay to its employees. According to a DOL statement, because of failure, 1,207 employees were incorrectly paid time-and-a-half of only their base rates, “without considering the amounts by which these bonuses and commissions had boosted employees’ straight-time earnings.”

Timolin Mitchell, the DOL’s wage and hour District director in Detroit noted in the DOL’s April 30, 2018 press release that Belle Tire cooperated throughout the investigation and will implement plans to address compliance with overtime requirements. He further noted in the DOL’s statement,

Wage violations can be avoided when employers understand the requirements under federal labor law. Belle Tire is now training its store managers, supervisors, and payroll personnel to ensure they compute overtime properly and employees receive the wages they have rightfully earned.

Also on April 30, the DOL announced a settlement with Summit Properties & Development Co. Inc., based in Clarkston, Michigan. Under the DOL agreement, Summit Properties will pay $137,237 in back wages and liquidated damages to 17 employees.

DOL investigators determined the general contractor misclassified certain employees as independent contractors and failed to pay them overtime when they worked over 40 hours in a workweek. Summit Properties also agreed to revise its employee handbook and all future subcontractor agreements to help educate those employers about compliance with the FLSA.

What should companies take-away from FLSA Violations?

Our firm was not involved in the DOL investigation and matters leading up to the violation. However, having represented Belle Tire in employment litigation and in getting to know its general counsel, it is definitely a company that prides itself on “doing the right thing.” And it appears the violations found by the DOL are an honest mistake rather than willfulness by the company.

Even so, these settlements illustrate the truism ignorance of the law is no excuse for non-compliance. Yet, mistakes involving wage and hour and misclassification issues our areas where employers most often misunderstand their legal obligations.

For more information about complying with the federal FLSA or other employment laws, contact employment attorney Jason Shinn.

Age Discrimination Suit Because Job Posting Asked for “No More Than ‘X’ Years of Experience”

If your company’s job postings seek applicants with a cap on the years of experience then you may also be advertising for an age discrimination lawsuit. At least that is a take away from a Seventh Circuit Court of Appeals decision involving a suit under the Age Discrimination in Employment Act (ADEA).

The case, Kleber v. CareFusion Corp. involved a 58-year-old attorney who alleged he was denied a chance to interview for a job because he had too much experience. The job posting specifically provided “3 to 7 years (no more than 7 years).”

Generally, the ADEA prohibits employment practices that discriminate intentionally against older workers and prohibits employment practices with a disparate impact on older workers. 29 U.S.C. § 623(a)(1).

The Court framed the central issue in this case as to whether the disparate impact provision of the ADEA protects only current employees or whether it protects current employees and outside job applicants. The Court concluded that because the ADEA was enacted to prohibit job practices that make it more difficult for older workers to find jobs the district court was wrong to grant the employer’s motion (a 12(b)(6) motion for the procedural nerds out there) dismissing the plaintiff’s disparate impact claim.

Age Discrimination and Your Job Postings.

There are legitimate reasons for a company to seek applicants with less experience. For example, CareFusion explained it was worried an attorney with over seven years’ experience wouldn’t stay in the job for long.

But such concerns should not adversely affect applicants over 40. Here the employer’s use of an express cap on an applicant’s experience (i.e., “no more than 7 years”) provided enough evidence that CareFusion’s job requirements had a disparate impact on qualified job seekers over the age of 40.

This decision means employers must critically evaluate whether the job in hiring requirements consider workers 40 or over. Otherwise, failing to do so may expose the company to age discrimination claims under federal or state laws.

Does this Issue Get Taken up by the U.S. Supreme Court?

This decision also creates a divide among other federal circuits over whether the ADEA protects job applicants and not only existing employees from facially neutral employment policies that may have unanticipated but unequal consequences.

Whether this circuit split makes its way up to the U.S. Supreme Court is uncertain. But if I was a betting man, I would say yes. The Supremes has twice addressed issues about disparate impact age discrimination. And it presents a classic statutory interpretation issue.

As to the interpretation issue, the plain language of the ADEA does not expressly extend unintentional hiring bias protections to job applicants. But the majority opinion noted there was no “plausible” policy reason for why Congress would have provided less protection against hiring bias to external applicants than it does to internal job seekers.  While that may be true, using that sort of judicial reasoning to reach a result not found in the express language of the statute is a favorite target for certain Supreme Court Justices.

For more information about complying with federal and Michigan employment laws, contact employment attorney Jason Shinn. Since 2001, Mr. Shinn has worked with clients with their employment law and litigation matters.

Michigan Employer Did not Violate Family Medical Leave Act by Investigating Employee Conduct

Managing risksOften when an employee exercises rights under federal or Michigan laws, any subsequent discipline becomes the first domino in a subsequent retaliation claim. But a recent appeal from a Michigan federal district court shows that does not have to be.

Specifically, in Groening v. Glen Lake Cmty. Schools, the plaintiff, a school superintendent, claimed that she was constructively discharged in relation to taking leave under the Family Medical Leave Act (FMLA).

As we’ve explained in prior blog posts (Understanding Family Medical Leave Act Claims – One Statute, Two Possible Claims), an employer may violate the FMLA in one of two ways: (1) retaliating against an employee for exercising rights under the FMLA; and interfering with FMLA rights. Here, the plaintiff claimed her FMLA rights were violated under both theories.

Plaintiff essentially argued the defendant school district’s board members expressed concerns about her leave, conducted an audit designed to find evidence of wrongdoing, and was critical of her performance.

However, the court easily dispensed with both FMLA claims. The opinion goes through a lengthy explanation on why the evidence did not support plaintiff’s claim she was constructively discharged. In sum, plaintiff did not show her working conditions were objectively intolerable and that the school district deliberately created those conditions hoping she would quit.

On the remaining allegations plaintiff used to support her FMLA claim, here are key quotes for HR and managers to remember for evaluating potential employment law claims:

… this circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents, as it was here.

* * *

… employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave.

Plaintiff also failed to show that the school board required her to work while she was recovering from surgery. The one instance where the board initiated contact with her, to request a breakdown of her time off, was a de minimis request that did “not rise to the level of actionable interference.”

Thus, the Court affirmed the district court’s grant of summary judgment to the school district on plaintiff’s FMLA violation claims.

Employment Law Compliance Does not Require Suspending Workplace Rules

All too often when an employee exercises rights under various federal or Michigan employment laws, employers feel handcuffed in disciplining or taking other adverse action against the employee. This concern – rightly so – stems from later being accused of retaliating or interfering with an employee’s rights.

However, the above case illustrates that employment law rights are not intended to insulate employees from nondiscriminatory workplace rules and operational decisions. Even so, it is important to carefully evaluate how your company treats and discipline employees who have made requests for FMLA leave or exercise rights under other employment laws to successfully defend against subsequent claims of retaliation or interference.

For more information about complying with federal or Michigan employment laws, contact attorney Jason Shinn. Since 2001, Mr. Shinn has worked with clients to comply with and litigate employment law disputes.

Michigan Municipalities Barred from Regulating Salary History Questions in Job Interviews

Wage discriminationMichigan municipalities won’t be able to enact local legislation championed as one way to eliminate the wage gap between men and women under a bill heading to Gov. Rick Snyder.

Specifically, legislation (SB No. 353) restricts municipalities from regulating what information employers must request, require or exclude during job interviews passed the Republican-controlled House on Wednesday. This law includes questions about an applicant’s salary history. It cleared the Michigan GOP-controlled Senate months ago.

The Detroit Free Press reported it was sent to Gov. Rick Snyder on March 8 for his expected signature. However, his office noted as of this morning the Governor had yet to be presented the Bill. Perhaps the optics of signing a bill restricting the enactment of legislation intended to combat gender-based wage gaps on the same day as International Women’s Day contributed to the delay.

Current Michigan Employment Law

State law already prohibits local rules on what information is required or excluded in job applications. But the Bill amends that law to extend those restrictions to the interview process. The current law and proposed amendment (in all caps and bold font) reads:

A local governmental body shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment OR DURING THE INTERVIEW PROCESS from an employee or a potential employee. This section does not prohibit an ordinance, local policy, or local resolution requiring a criminal background check 8 for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body.

While there are no local governments in Michigan are considering ordinances regulating job interviews, the preemptive legislation is an obvious response to limit interview questions about salary history. Critics argue such questions perpetuate gender-based wage gaps.

In this regard, in 2016 Massachusetts was the first state to pass a law preventing employers from asking job candidates about their salary, including Oregon, Delaware, California, and New York City. Numerous states and cities followed by passing similar legislation banning salary history compensation as a means to close the wage gap between men and women and minorities.

What this means for employers and the wage gap

The Michigan Chamber of Commerce and other business organizations supported the legislation.  From an employer’s perspective, asking about someone’s past or current salary is a standard business practice. And (assuming the Bill is signed), local government regulations can’t be enacted to interfere with that practice. It also avoids employers having to navigate a patchwork of local government regulations with the hiring process.

But, prohibiting an employer from asking about salary history could even the playing field for those who have experienced compensation gaps. On this point, a study from the American Association of University Women found the pay gap between men and women begins at college graduation (even for the same degrees). And this discrepancy leads, on average, to women working full time receiving only about 80 cents for every dollar a full-time male worker earns.

What’s your experience or thoughts, whether it is based on hiring or interviewing, with salary history questions?

Jason Shinn is a Michigan employment law attorney. He routinely advises business clients about workplace legal issues. Since 2001, he has focused on companies and HR professionals to comply with federal and Michigan employment laws, and defending against alleged violations of such employment laws.

Learning From a Trade Secret Misappropriation Suit Against Former Employees

A trade sMisappropriationecret misappropriation lawsuit was filed on March 3, 2018 (Bankers Life and Casualty Co. v Knox) against two former employees. The suit, among other issues, raises two points important to individuals looking to start a new business and for business owners interested in protecting their company’s competitive interests.

The plaintiff, Bankers Life, provides seniors with various insurance and financial products. The defendants are two former high-ranking managers (Knox and Prior). They worked in Bankers Life’s Lansing and Ann Arbor offices. It claims while employed, both Knox and Prior were working together to: (a) recruit others in their office to join them in leaving for a competitor and (b) they download policyholder information to use once they joined the competitor.

Bankers Life asserted this downloading of policyholder information violated the individual Defendants’ contractual agreements with it, the Federal Defend Trade Secrets Act, and the Michigan Uniform Trade Secrets Act. However, the lawsuit filed in Michigan federal court is limited to the request for emergency injunctive relief to retrieve misappropriated policyholder information and attorneys’ fees and costs for such retrieval. Bankers Life is pursuing a separate arbitration claim against the defendants for breaches of fiduciary duty and breach of contractual prohibitions against inducing employees and agents to leave Bankers Life.

Starting or Joining a Competing Business – Beware of Digital fingerprints

I’ve represented clients in pursuing or defending against trade secret misappropriation claims since 2001. Based on this experience, one of the first areas of investigation is whether there are any “digital fingerprints” to evaluate in relation to the misappropriation. On this topic, assume any files, databases, emails, client lists, CRMs, etc. that were alleged to have been misappropriated will leave digital evidence. This is true whether the misappropriation involved copying, downloading, thumb drives, file transfers, or forwarded emails.

For instance, in the Bankers Life case, it attached to the complaint various reports. It claimed that the reports showed defendants downloaded policyholder information shortly before they departed. There may be competing explanations for why company information was accessed. But the first step in supporting your narrative should be to understand the digital landscape.

Protecting Your Company’s Competitive Interests – Arbitration, Courts, or Both?

Another point this case raises is the use of arbitration or courts in resolving disputes. Here, Bankers Life had agreements that called for arbitration. However, and this is not uncommon, the arbitration provisions carved out proceedings for injunctive relief. So, as is the case here, you end up pursuing parallel claims that originate from overlapping facts.

First, pursue claims in court and in arbitration multiplies costs, e.g., filing fees, court/arbitration submissions, hearings, etc. There may be compelling reasons to incur dual costs or not. But before doing so, companies should evaluate whether it makes sense.

In this regard, in my professional experience arbitration has lost some advantages over court proceedings. And both sides in typical trade secret dispute are better served with a more precise and tailored resolution procedure than simply throwing the entire dispute into arbitration or relying exclusively on court proceedings.

Second, imprecisely drafted contracts can cause disputes over what is subject to arbitration, e.g., suit for the return of company property versus claim for arbitration of “any and all” disputes between the parties. And a judge may simply kick the entire matter into arbitration for resolution if there are contractual ambiguities. So make there are no surprises lurking in your company’s agreements when it comes to dispute resolutions involving arbitration or court proceedings.

For more information about protecting or defending against trade secret claims, contact attorney Jason Shinn. Since 2001 he has collaborated with business owners to create policies and procedures for protecting company confidential information. He has also litigated in federal and Michigan courts misappropriation claims under Michigan and the Federal Defend Trade Secrets Act. Mr. Shinn also frequently writes about trade secret issues important to business owners.

Failing to Provide Pregnant Employee Option to Telecommute Violated ADA

ADA and telecommuteAfter a recent court opinion, Michigan companies will need to carefully re-evaluate whether allowing an employee the opportunity to telecommute as a reasonable accommodation under the Americans with Disability Act (ADA).

The case, Mosby-Meachem v Memphis Light, Gas & Water Division, involved an in-house attorney for Memphis Light, Gas & Water Division. She was denied a request to work from home for ten weeks while she was on bedrest due to complications from pregnancy.

Telecommuting where attendance was not essential function job function.

Memphis Light had a job description for the attorney position. However, “attendance” was not an essential function of the job. Also, Memphis Light had no formal telecommuting policy. But the evidence showed in practice employees often telecommuted. Prior to her pregnancy, plaintiff had worked from home for two weeks while recovering from neck surgery.

In January 2013 during her 23rd week of pregnancy, plaintiff’s doctors discovered a problem, which required hospitalization and bed rest. On January 7, 2013, plaintiff made a request for an accommodation to work remotely (either at the hospital or at home) for 10 weeks. Her request, however, was denied on January 30, 2013. Memphis Light asserted a “physical presence was an essential function of [plaintiff’s] job, and teleworking created concerns about maintaining confidentiality. But from the time of her request on January 7 until she received the denial letter on January 30, plaintiff continued to perform her work remotely, and no one from Memphis Light ever told her to stop working during this time.

Jury Finds Employer Violated ADA

F0llowing trial, a jury found in favor of plaintiff on her claim for disability discrimination and awarded her compensatory damages. The district court also granted Mosby-Meachem’s motion for equitable relief and awarded her backpay for the period in which Memphis Light did not permit her to telework.

Memphis Light moved for judgment as a matter of law or, in the alternative, a new trial, asserting that the evidence produced at trial and binding Sixth Circuit precedent precluded any reasonable jury from determining plaintiff was a qualified individual while on bedrest because in-person attendance was an essential function of her job. The district court denied the motion and Memphis Light appealed.

But this appeal also failed because plaintiff produced sufficient evidence for a reasonable jury to conclude that physical attendance was not an essential function of her job for the 10-week period in which she requested to telework and the Sixth Circuit precedent relied upon by Memphis Light materially differed from the facts.

As to the first point about evidence, the Court reasoned,

… while [Memphis Light] is correct that there is some evidence showing that inperson attendance was an essential function of Mosby-Meachem’s job, Mosby-Meachem proffered other evidence at trial, including testimony from coworkers, from which a jury could reasonably conclude that she was otherwise qualified to perform her job from home for ten weeks without being physically present in the office.

As to the Sixth Circuit precedent, Memphis Light pinned its hopes on E.E.O.C. v. Ford Motor Co. Our blog discussed this decision when it first came out in 2015 (Is Telecommuting a Reasonable Accommodation Under the Americans with Disabilities Act?). In that case,  the Court of Appeals concluded, “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs ….” In discussing the Ford case, we specifically cautioned that the “opinion did not rule out telecommuting as a reasonable accommodation in all cases.” And here, the Court reached the same assessment in finding against Memphis Light. The Court also found Memphis Light’s reliance on another telecommuting case involving ADA accommodation was misplaced.

ADA, Leave, and Telecommuting as Reasonable Accommodations

This decision significantly complicates leave and accommodation issues for employers. This is especially true as technology makes it increasingly easy to work remotely without sacrificing productivity or security. Accordingly, the decision and its implications should be understood by your HR professionals. Here are a few points to consider:

First, before this opinion, a string of cases relied upon by Memphis Light suggested plaintiffs would find it difficult to win an ADA claim based on telecommuting as an accommodation. But this case makes clear employers can’t dismiss telecommuting as a reasonable accommodation.

Second, your company’s job descriptions will be a critical piece of the puzzle when it comes to whether telecommunicating may be a reasonable accommodation. On this point, Memphis Light’s job description on which it relied upon was based on a 20-year-old questionnaire that did not reflect changes in the job that have resulted from technological advancements since that time.

Third, plaintiff had worked for Memphis Light for about 8 years when she made her request for an accommodation. There was no indication from the opinion that plaintiff’s work was deficient. And she was simply looking for a 10-week accommodation to work remotely due to pregnancy complications. So unless there was more going on behind the scenes, the decision to deny the accommodation and terminate came across as short-sighted.

For more information about complying with the ADA and other employment law questions, contact attorney Jason Shinn. He’s focused on federal and Michigan employment law matters since 2001.

Michigan Hospital Sued for Failing to Accommodate Religious Belief over Flu Vaccine

Sincere Religious BeliefsHow far does an employer have to go to accommodate an employee’s religious beliefs? That is an issue raised in a lawsuit filed by the EEOC against Memorial Healthcare on February 13 (EEOC v Memorial Healthcare).

The suit claims the Michigan hospital failed to reasonably accommodate Yvonne Bair’s religious practices when it rescinded its job offer after Bair claimed her religious beliefs prevented her from getting a flu vaccine.

Faith versus Flu Vaccine

In the suit, the EEOC says Memorial intentionally deprived Bair of equal employment opportunities based on her religious beliefs in violation of Title VII of the 1964 Civil Rights Act. Specifically, Bair applied and received a job offer to work as a medical transcriptionist for Memorial. Memorial informed Bair of its policy that all employees had to receive a flu vaccine. However, Bair claims as a “follower of Jesus Christ,” she has a sincerely held religious belief that prohibits her from ingesting or injecting foreign substances into her body (irrespective of its divine origin, maybe wine ingested at a certain party Jesus hosted is considered “natural.”).

In response, Memorial offered a vaccine via nasal spray, which Bair refused. The complaint alleges Bair also believes she must rely on only “natural methods for health.” Memorial then withdrew its job offer. The EEOC also alleges that Memorial allows persons whose medical conditions don’t permit them to receive vaccines to wear masks. And Bair offered to wear a mask during flu season.

The EEOC’s suit is pending in the U.S. District Court for the Eastern District of Michigan. It seeks monetary damages and injunctive relief prohibit Memorial from engaging in any employment practice that discriminates based on religion.

Workplace policies and exemptions for religious beliefs.

In representing employers, we can say this case highlights one of the challenges employers face in balancing their business objectives with employees’ religious beliefs.

Here, the hospital’s general vaccination policy is rationally related to patient health and safety, i.e., preventing the transmission of and complications from the flu. Whether an individual’s religious belief – nuanced or otherwise – is enough to receive an exemption from a workplace policy remains to be seen. But this case also underscores the importance of carefully responding to an employee’s request for a religious accommodation. We’ll continue to monitor this case.

For more information about complying with federal or Michigan employment law, contact attorney Jason Shinn. Since 2001, Mr. Shinn has focused on representing clients in employment matters in state and federal courts, and before the EEOC.

If Only Losing Pounds Were as easy as Losing a Weight Discrimination Lawsuit

Discrimination against overweight employeesCompanies employing individuals in Michigan are often surprised to learn Michigan law specifically prohibits weight discrimination.

Specifically, Michigan’s anti-discrimination statute, the Elliott-Larsen Civil Rights Act (ELCRA), prohibits an employer from failing or refusing to hire, discharge, or otherwise discriminate against an individual in employment because of weight. MCL 37.2202(1)(a).

But employees still must meet their evidentiary obligations to present a weight discrimination claim. If this burden is not satisfied, the suit will often be decided for the employer by way of motion rather than trial.

Plaintiff claims employer made repeated weight discrimination comments

This scenario recently played out in a suit involving a claim of weight discrimination. A dental hygienist sued (Harris v Hutcheson) claiming she was discriminated against and terminated due to her weight. To support her claim, she testified that the owner of the dental practice and co-defendant (Dr. Hutcheson) “always” commented about weight and health. She contended these comments showed his bias against overweight people:

  • Dr. Hutcheson discussed diet as a means of weight loss, including telling plaintiff she should eat only fruit before noon if she wanted to lose weight;
  • He commented that plaintiff was “waddling down the hall;
  • Dr. Hutcheson commented the weight around plaintiff’s neck caused her to have stripes around her neck when she tanned; and
  • He expressed surprise that plaintiff worked out, which plaintiff inferred was a criticism of her weight.

Employer responds with non-discriminatory reason for termination

However, the Court did not find plaintiff was discriminated against due to her weight. Instead, the Court noted that plaintiff had been employed for 22 years. And in October 2012, a female dentist (Dr. Dyras) began working with defendants. Dr. Dyras repeatedly disagreed with plaintiff over patient care. These disagreements continued into August 2013. Dr. Dyras advised Dr. Hutcheson plaintiff should be terminated for insubordination. Plaintiff was later terminated at the end of August 2013.

With this background, the Court reasoned that even if a jury believed that defendant-Hutcheson made the statements identified by plaintiff, they did “not require the conclusion that unlawful discrimination based on plaintiff’s weight was at least a motivating factor in Hutcheson’s decision” to terminate her. Absent direct evidence of discrimination, plaintiff had to rely on what is referred to as the McDonnell Douglas framework.

McDonnell Douglas is – to simplify – like an evidentiary tennis match; a plaintiff must “serve up” evidence to establish a prima facie case of unlawful discrimination. The defendant then must respond to the evidence by returning a “legitimate, nondiscriminatory reason for their employment decision.” At that point in the volley, a plaintiff must respond to defendant’s evidence and show the reasons are not valid, but merely pretext for discrimination. Here, the plaintiff failed to win the point:

… there is no reasonable basis to infer that, after 22 years, Hutcheson suddenly decided to terminate plaintiff because of her weight or even in part because of her weight. Rather, it is plain that what had changed, and what motivated plaintiff’s termination, was Dyras’s arrival at the practice and her disagreements with plaintiff regarding patient care. While plaintiff maintains that insubordination was a mere pretext, there is nothing but her subjective claim of discrimination to establish that weight-related animus motivated Hutcheson’s termination decision.

Closing Thoughts

This case, like a sex discrimination claim suit we recently covered, illustrates the difficulty plaintiffs have in bringing a successful weight discrimination claim.

It also highlights the role a judge’s common-sense plays in resolving discrimination lawsuits. It was evident from the Court’s opinion that the weight discrimination claim simply did not make sense; Plaintiff presented no evidence her weight changed or fluctuated upwards toward the end of her employment. So the court was left asking why after 22 years of employment would defendant now decide to unlawfully discriminate against plaintiff.

Further, understanding what is prohibited under state and federal anti-discrimination workplace laws is critical to both employment law compliance and a successful defense. Simply put, the closer you get to the fault-line, the more likely it becomes an adverse employment decision or statement will cross the line and become evidence to show bias against an overweight employee.

For more information about complying with federal or Michigan employment discrimination laws, contact employment attorney Jason Shinn. Since 2001 Mr. Shinn has addressed state and federal employment law issues on behalf of clients, responded to discrimination complaints filed with the EEOC and state agencies, and litigated these disputes and federal and Michigan courts.

Plaintiffs Face Many Pitfalls in Employment Discrimination Suits

To be blunt, employment discrimination claims are challenging lawsuits for plaintiffs to win. A recent employment discrimination lawsuit explains this point.

Trial Court and the Appeal – A tale of two discrimination findings

In the case, Patten v City of Ann Arbor, the plaintiff sued her former employer and supervisors for discrimination under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) & Title VII of the Civil Rights Act (CRA). She made two claims:

  • Discrimination against her on the basis of her sex in making several decisions about her employment status; and
  • They retaliated against her for complaining that their “promotion process inherently favored males and discriminated against females.”

The trial court denied the defendants’ motion for summary disposition and they appealed. On appeal, the Court reversed in favor of the defendants.

No discrimination or retaliation on Appeal

In reaching this decision, the Court went through all the reasons why the trial court erred and defendants were entitled to summary disposition on the sex discrimination claim. These reasons included:

  • Assuming plaintiff established a prima facie “case of discrimination, [she] failed to rebut defendants’ evidence of legitimate non-discriminatory” reasons.
  • “The trial court erred by not shifting the burden back to plaintiff to prove that defendants’ legitimate, nondiscriminatory reasons were a mere pretext for sex discrimination.” Further on this point, the Court noted, the plaintiff failed to show that defendants’ “reasons had no basis in fact.”
  • Plaintiff failed to rebut defendants’ legitimate, nondiscriminatory reasons for their adverse employment decisions, and the trial court simply substituted its speculation regarding defendants’ motives to infer that sex discrimination motivated defendants’ decisions.”

The court also found that defendants were entitled to summary disposition on the retaliation claim. The Court concluded there was no evidence linking her protected activity to defendants’ adverse employment actions.

Also, the Court noted that even if she had made out her prima facie “case of retaliation, [her] performance record, which included multiple concerns by several officers regarding plaintiff’s ability to fulfill the duties assigned her in various positions, provides a legitimate, non-discriminatory reason for defendants’ employment decisions, which plaintiff has offered no evidence to rebut.”

Closing thoughts on employment discrimination claims.

As this case illustrates, there are numerous ways in which an employer can successfully defeat an employment discrimination claim. It also illustrates the significant hurdle a plaintiff must overcome. Specifically, the employer’s reasons for the adverse employment decision were not the actual factors motivating the employer’s decisions or that the reasons lacked sufficiency to justify their decisions.

For more information about federal or Michigan employment law, contact attorney Jason Shinn. Since 2001, he has represented businesses and individuals in employment discrimination lawsuits.