By Tulay Turan, J.D.
The limitations periods in the ADA and ADEA give rise to substantive non-waivable rights because, like Title VII, they include self-contained limitations periods.
The age, race and disability discrimination claims of a 52-year-old female, African-American production worker, who was laid off during a RIF, were not untimely based on a six month limitations period contained in an employer’s handbook, ruled the Sixth Circuit. Nevertheless, the appeals court affirmed a district court’s grant of summary judgment in the employer’s favor on her claims, where she was the only employee who said she could not work revised ten-hour shifts. The appeals court observed that half of the employees who had lower production numbers or higher absenteeism than she did, but were retained, were members of the protected class, and the statistical evidence she offered did not show she was singled out because of her age or race. Judge White filed a separate opinion concurring part and dissenting in part (Thompson v. Fresh Products, LLC, January 15, 2021, Boggs, J.).
No work restrictions. Fresh Products hired the employee, a 52-year-old female, African American with arthritis, as a production worker in 2016. She did not mention her arthritis diagnosis to the human resources manager during her interview. She had no restrictions on her ability to work and was able to perform without accommodations. As a new hire, she signed a handbook acknowledgement that stated, among other things, that any lawsuit arising out of her employment must be filed no more than six months after the date of the employment action that is the subject of the suit. In October 2016, the employee alleged she told her supervisor she was having some issues with her medical condition and mentioned possibly working part time. She also claimed she asked an HR representative about part-time due to needing some work on her back. The employee continued to work full time.
Reduction in force. In December 2016, the company experienced a reduction in sales. It decided to change from three eight-hour shifts to two ten-hour shifts. The company asked the employees to fill out a survey as to whether they could work four ten-hour shifts a week, and, if not, why, and which of the shifts they preferred. The employee indicated on the survey she could not work the new schedule but did not provide an explanation. She later testified the schedule interfered with the hours she had committed to taking care of her grandchildren.
The employer then asked its shift supervisors to create a list of employees recommended for layoff. Although the employee was on the list, HR said to take her off temporarily because she had high productivity and low absenteeism. After management decided the hours for the new shifts would differ from what they had initially discussed with employees, it conducted a second survey asking about shift preferences. The employee said she wanted to work part time and did not indicate a shift preference. In January, the new shifts were announced, and the employee was laid off along with four other employees, including a white woman in her fifties who informed management she was going to be incarcerated in February, two black women in their fifties, and a 45-year-old Hispanic man who volunteered to be laid off.
Summary judgment granted to employer. In February 2017, the employee filed a discrimination charge with the Ohio Civil Rights Commission (OCRC), alleging disability, age and race claims. In September 2017, the OCRC issued a letter of determination dismissing her charges based on a finding of no probable cause. In March 2018, the EEOC issued her a dismissal and right-to-sue letter stating it had adopted OCRC’s findings. She filed this suit, alleging age, race and disability discrimination claims in violation of the ADEA, Title VII and the ADA. She also brought disability and race discrimination claims under Ohio state law.
The district court granted summary judgment to the employer on all claims, finding the employee’s ADEA and ADA claims were untimely because the handbook acknowledgement obligated her to bring those claims within six months of her termination. The court also determined she failed to establish a prima facie case. She filed this appeal.
Reduction in limitations period. The court first found the employee’s Title VII, ADA and ADEA claims were timely because she brought a charge of discrimination within five days of her termination and filed this lawsuit within ninety days of receiving her right-to-sue letter. While the employer’s motion for summary judgment was pending, the court issued its decision in Logan v. MGM Grand Detroit Casino, which held that the limitations period created by Title VII is a substantive right that may not be prospectively waived.
The district court held that Logan rendered the handbook acknowledgement’s shortened time period inapplicable to the employee’s Title VII claim, but Logan’s reasoning did not extend to her ADA and ADEA claims. As such, the district court found those claims were time-barred by the handbook’s valid contract provision. However, the appeals court disagreed, finding the limitations periods in the ADA and ADEA give rise to substantive non-waivable rights because, like Title VII, they include self-contained limitations periods.
OCRA claims untimely. Next, the court found the employee’s state law claims were untimely because she was bound by the contractual six-month limitation in the handbook acknowledgement with respect to those claims. That period expired on July 27, 2017, and she did not bring this action until May 2018. Federal courts have upheld contractual limitations periods on employment discrimination claims brought under Ohio law, and the court found no reason not to do so here.
Disability claim. Turning to the employee’s disability discrimination claim, the appeals court found she failed to produce evidence indicating she was singled out for discharge due to her disability. The employee argued that five other employees who were worse workers were retained. The court, however, found this was not an appropriate comparison because the undisputed evidence showed she was not fired for productivity problems or absenteeism. Rather, she was let go after a survey process asking who could or would work the new shifts, which the retained employees actually did. She did not allege she ever told management she would work the 10-hour shifts. She was the only employee who stated she could not work either shift, never selected a preference for one of the shifts, and did not voluntarily quit.
Although the survey process might have been sloppily completed, it was not enough to indicate the employer singled her out for discharge for impermissible reasons especially since there was miscommunication by both parties. Accordingly, the appeals court affirmed the district court’s grant of summary judgment to the employer on the ADA discrimination claim.
The appeals court also affirmed the district court’s grant of summary judgment to the employer on the employee’s failure-to-accommodate claim. The evidence showed that working a full shift was an essential function of the job, and she did not show she requested a reasonable accommodation. Thus, she did not establish a prima facie case of failure to accommodate.
Age claim. Turning to the employee’s ADEA claim, the appeals court found the employee did not provide statistical or circumstantial evidence showing that the employer targeted her for discharge because of her age. She did not provide any analysis explaining the statistical data she offered, and the sample size of five terminated employees was too small to provide reliable data. Her statistics could not overcome the most obvious explanations for the layoffs, which, for the other terminated employees, were low productivity and poor attendance.
The court also rejected her circumstantial evidence that a 21-year-old was retained during the RIF despite having lower productivity and higher absenteeism than she did. The probative value of this evidence was undermined by the fact that, according to the final list of those considered for layoff, half of the other employees who had lower production numbers or higher absenteeism than the employee and were retained were members of the protected class and two were older than her. Thus, the court affirmed the district court’s grant of summary judgment to Fresh Products on the ADEA claim.
Race claim. Finally, the appeals court affirmed the district court’s grant of summary judgment to the employer on the employee’s race discrimination claim, finding the statistics she presented to show she was singled out because of her race suffered from the same shortcomings as those provided in support of her age claim. The five employees terminated were all black, Hispanic or biracial, and of the 18 people considered for layoff, 78 percent were black. The court found the sample sizes were too small to be reliable, and the employee failed to provide any analysis of the statistics’ significance. They also did not address a comparison to the relevant pool: roughly 70 percent of the employees are black, Hispanic, or biracial.
In addition, the appeals court again found that the employer’s retention of a 21-year-old white employee who had lower productivity and higher absenteeism than her did not indicate she was laid off because of her race. Of the 10 employees with lower productivity or higher absenteeism than the employee who were considered for layoff but retained, only the 21-year-old and one other employee were white. Six were black, and one was biracial.
Partial concurrence and partial dissent. In a separate opinion, Judge White disagreed with that portion of the opinion regarding the employee’s disability discrimination claim. She wrote the employee should have been permitted to proceed to trial to allow the trier of facts to consider and determine whether it was the employee’s survey responses that motivated the employer’s conduct, or, rather, her disability. According to the dissent, the employee presented a sufficient showing that she was disabled under the ADA, the employer had reason to know that of her disability, that she was a qualified for her position, and that she was subject to an adverse employment action. Thus, Judge White would find that she presented sufficient evidence to establish a factual dispute as to whether she was singled out for termination based on her disability.
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