On its face, the Supreme Court's decision in M&G Polymers USA LLC v. Tackett is routine enough: the very pro-business Roberts Court reverses a lower court ruling that a group of retirees were contractually entitled to health care benefits for life. The majority opinion written by Justice Clarence Thomas is critical of a lower court precedent that it claims leans toward the vesting of retiree health care benefits. What a shame.
The Court's solution is traditional contract principles. Ok, fair enough. Let's start with the traditional contract principle of mutual consideration: the consideration provided by the employee is work, compensation is the consideration provided by the employer. Is there something else to the employer-employee relationship? Is it possible to consider retirement benefits as anything other than deferred compensation?
It is, according to the Supreme Court, although its explanation, shall we say, makes no sense:
In ERISA, Congress specifically defined plans that "result in a deferral of income by employees" as pension plans, and plans that offer medical benefits as welfare plans. Thus, retiree health care benefits are not a form of deferred compensation.
This assertion both misreads ERISA and abuses common sense. But if there are 5 votes for it on the Supreme Court, it just does not matter. The moon, it could be, is made of Green Cheese.
Amir Al-Dabagh apparently did well in medical school in all areas, except what Case Western Reserve University School of Medicine regarded as "professionalism." The last straw for the medical school, it appears, was a drunk-driving incident while Al-Dabagh in North Carolina, quite some distance from the medical school in Cleveland. But no matter. The medical school rescinded its earlier invitation to Al-Dabagh to graduate and receive a diploma.
Al-Dabagh filed suit and District Judge James S. Gwin ordered that he be issued his diploma. Case Western appealed and the Sixth Circuit reversed, holding that assessing "professionalism" was an academic judgment subject to near-total deference. And so Al-Dabagh's medical school diploma was taken away. Al-Dabagh v Case Western University, No 14-3551 (Jan. 28, 2015).
Tilley had worked for the county road department for 15 years when he had to take FMLA leave due to an apparent heart attack. He was provided with the required paperwork for FMLA leave. Then the county fired him. Tilley claimed, among other things, that his firing violated the FMLA.
Although the county had provided FMLA paperwork to Tilley and indicated that he was eligible for FMLA leave, it argued successfully to the district court, Judge Robert Holmes Bell, that Tilley was ineligible for FMLA leave. The Sixth Circuit reversed holding that the doctrine of equitable estoppel precluded the county's argument that Tilley was ineligible for FMLA leave.
An employee can invoke equitable estoppel against an employer's FMLA ineligibility argument where he can show (1) a definite misrepresentation as to a material fact; (2) A reasonable reliance on the misrepresentation; and, (3) a resulting detriment to the party reasonably relying on the misrepresentation. Dobrowski v Jay Dee Contractors, 571 F3d 551, 557 (6th Cir. 2009). Tilley presented this proof by unequivocal language in the county's personnel manual, his reasonable reliance on that representation illustrated by the county twice telling him he was eligible for FMLA leave and suffered the detriment of being fired.
Although the Sixth Circuit reversed and remanded, it invited the district court to consider other grounds for summary judgment against Tilley, declining to address the additional arguments raised by the county and directing the district court to do so. So Tilley has a good chance of a second appeal prior to a trial or, more likely, a settlement on terms that may well by then reflect the economic desperation that might have set in on a 59 year old man out of work for an extended period of time. But we'll see.
Is there temporal proximity between the protected activity and the retaliatory act when fifteen months separates the two? There can be where the evidence shows that the "employer had no opportunity to retaliate sooner" the Sixth Circuit explained in Sharp v Aker Plant Services, No 14-5415 (Jan. 13, 2015).
Tommy Sharp was let go during a force reduction in January 2009. Two months later in March, after recording some statements by his supervisor indicating that Sharp's release was age-motivated, Sharp sent the employer a demand letter protesting the age discrimination he claimed to underlay his termination. Sharp eventually filed an age discrimination suit, got a reversal of a summary judgment in the Sixth Circuit, Sharp v. Aker Plant Services, 726 F3d 789 (6th Cir 2013), before losing a jury trial. Meanwhile, in July 2010, a staffing agency attempted to place Sharp with Aker but Aker rejected Sharp by email the following day. So, some fifteen months separated Sharp's protected activity (the demand letter he sent in March 2009) and the retaliatory action, the rejection in July 2010. Following his rejection Sharp filed suit claiming that his rejection was retaliation for filing the age discrimination suit following his termination.
As with his first suit, the district court granted summary judgment against Sharp finding, among other things, that he had not established a causative link between his protected activity and the retaliation, since some fifteen months separated the two. Sharp appealed and, for the second time, the Sixth Circuit reversed in his favor.
The Sixth Circuit rejected the district court's causation analysis. First, although the district court had ruled that Sharp could not establish causation because of the fifteen month time span, the Sixth Circuit emphatically observed that "our precedent expressly rejects the district court's position that a span of more than six months between protected activity and adverse action categorically precludes finding causation." Second, Aker retaliated against Sharp at its first and earliest opportunity, a reality that supported a finding of temporal proximity:
Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity. See Fischer v. UPS, 390 Fed Appx 465, 469 (6th Cir 2010)(finding that the plaintiff could establish causation after two-and-a-half-year interval based on the "practical reality" that he took an extensive period of medical leave during that time); Dixon v Gonzales, 481 F3d 324, 335 (6th Cir 2007)
Retaliation cases require plaintiffs to establish a causative link between some protected activity and the retaliatory adverse employment action. Temporal proximity is one way to do so, the closer in time of the two the better and persuasive. Post hoc ergo propter hoc. But how much is to much time? Six months? More than six months? The Sixth Circuit's recent decision in Sharp v. Akers Plant Services, where it reversed a summary judgment, again emphasized that more than six months is not too much time:
our precedent expressly rejects the district court's position that a span of more than six months between protected activity and adverse action categorically precludes causation.
The precedents cited by the Sixth Circuit were several years old: Dixon v. Gonzales, 481 F3d 324, 335 (6th Cir 2007); Harrison v. Metro Govt of Nashville & Davidson County, 80 F3d 1107, 1118-19 (6th Cir 1996)(holding that evidence supported a prima facie case of causation where the alleged retaliation occurred one year and three months after the protected activity), overruled on other grounds as recognized by Jackson v Quanex Corp, 191 F3d 647, 667 n 6 (6th Cir 1999).
This was the second time that Tommy Sharp has had the Sixth Circuit reverse a summary judgment granted by the district judge in Louisville. See Sharp v Aker Plant Services, 726 F3d 789 (6th Cir 2013).
