Seyfarth Synopsis: The Sixth Circuit recently sided with employer Fresh Products, LLC and its HR Manager, Dawn Shaferly, in an age, race, and disability discrimination lawsuit. In doing so, the Court helpfully clarified when an employer can contractually shorten the limitations periods with respect to certain discrimination claims. In addition, the Court provided a helpful discrimination analysis that employers in the Sixth Circuit may want to rely on in any future litigation.
Factual Background
Plaintiff Cassandra Thompson, a 52 year old African American, worked for Defendant Fresh Products, LLC at its production facility in Ohio. Plaintiff suffered from arthritis, which affected her ability to lift heavy objects. When hired by Fresh, Thompson signed a "Handbook Acknowledgment," which in relevant part provided that Thompson would file "any claim or lawsuit arising out of [her] employment ... no more than six (6) months after the date of the employment action that is subject [sic] of the claim or lawsuit."
After she began working for Fresh, Thompson asked Fresh if she could move to a part-time role based on her medical condition. This never happened. Instead, towards the end of 2016, Fresh suffered from reduced sales and sought to move from three eight-hour shifts to two ten-hour shifts to reduce the number of workers it employed. To facilitate the transition and determine which employees to retain, Fresh asked each of its employees to complete a survey and note whether they could work the ten-hour shift and, if so, which shift they preferred. Thompson responded to the survey and indicated that she could not work the ten-hour shift, but did not provide a reason. She later testified that the reason she could not perform the shift was due to her obligations to look after her grandchildren and was not related to her medical condition.
While Fresh determined how it would implement the new shift schedule and which employees it would retain, Thompson reiterated her desire to work part-time and never indicated she could work a ten-hour shift, nor did she indicate which ten-hour shift she preferred. Fresh subsequently terminated Thompson's employment because she only wanted to work part-time and Fresh did not have any part-time work for employees in Thompson's position, though it did have one part-time employee in another group. Fresh also terminated Thompson because she never said she could perform the ten-hour shift and never chose a shift preference, unlike any of the other employees that it retained.
Despite this, there were four other employees who, like Thompson, initially indicated that they could not work the ten-hour shift did not choose a shift preference in response to the survey. However, unlike Thompson, those employees subsequently chose a shift preference. Ultimately, two of these four employees were not fired and did not quit before the transition to ten-hour shifts. Thompson was the only employee who never indicated she could work the ten-hour shift and never selected a shift preference.
In all, Fresh terminated four other employees besides Thompson, all of whom were above the age of 45 years.
Based on this record, the District Court granted Fresh summary judgment as to all of Thompson's claim and Thompson appealed.
Shortening of the Limitations Period
The Sixth Circuit held that the limitations period cannot be shortened for an ADA or ADEA claim. In doing so, the Court noted its recent decision in Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019), which held that the statutory limitations period to a Title VII claim could not be shortened. The Court found that when a statute, such as Title VII, has an explicit limitations period or extensive pre-suit procedure, the limitations period cannot be shortened by contract. Thus, because the ADA incorporates Title VII and the ADEA contains a self-prescribed limitations period and pre-suit procedures, the Court held "that the limitations periods in the ADA and ADEA give rise to substantive, non-waivable rights," such as the limitations period.
In contrast to Title VII, the ADA, and ADEA, the Ohio Civil Rights Act does not have a self-contained limitations period. Instead, it relies on Ohio's general limitations statute. Thus, the Court reasoned that the limitations period could be contractually shortened and, in Thompson's case, was shortened.
Discrimination Analysis
While the Court found that Thompson demonstrated at least a fact issue as to whether she had a disability and whether she was qualified for her position (despite never claiming she could work the ten-hour shift), it found she could not present a prima facie case of disability discrimination because she had not shown that Fresh singled her out for impermissible reasons. In reaching this conclusion, the Court emphasized that the reason Fresh terminated Thompson was due to the way she responded to the survey asking if she could work the ten-hour shifts and, if so, asking her shift preference. While the Court found "[i]t is possible the process was completed sloppily ... it is not enough to 'tend to indicate that [Fresh Products] singled out [Thompson] for discharge for impermissible reasons.'" Indeed, the Court highlighted that "Thompson 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." Thus, the Court found that Thompson could not meet her prima facie case.
As to Thompson's failure-to-accommodate claim, the Court found that Thompson's claim failed because her accommodation request was unreasonable in that it required Fresh to eliminate an essential function of the job—working the ten-hour shift. In reaching this conclusion, the Court noted that there were no other employees in Thompson's position who were permitted to work part-time. Fresh's representatives also testified that part-time work for those positions would be unmanageable. Moreover, the fact that Fresh allowed an employee in another position to work part time was immaterial because part-time work was more manageable in that position. Accordingly, Thompson's requested accommodation was unreasonable.
Thompson supported her age discrimination claim with statistical evidence, noting that "1) all employees laid off as part of the RIF were over 40, and their average age was 50; 2) the average age of those considered for termination was 45.76; and 3) the average age of those retained was 35.66." The Sixth Circuit made short work of these statistics, noting that the sample size of five people was insufficient to serve as competent evidence. Moreover, the fact that Fresh retained a younger employee who had also asked for part-time work, but had not received it, was alone insufficient evidence of discrimination. Thompson was required to show that she was more qualified than the younger employee or present evidence of discriminatory animus, such as discriminatory comments, but she could not meet this burden.
Lastly, as to Thompson's race discrimination claim, the Court similarly found that Thompson's statistical evidence was insufficiently predicated on the same small sample size. Her statistics also did not account for Fresh's demographics, which had a high percentage of minority employees. Moreover, as with her disability discrimination claim, the retention of the same younger employee, who was also white, was alone insufficient to demonstrate discriminatory intent.
Dissenting Opinion
Circuit Judge Helen White lodged a concurring opinion, in part, and dissenting opinion, in part. She joined the majority regarding its opinion in full with the exception of Thompson's disability discrimination claim. Judge White disagreed that Thompson had failed to present a prima facie case of discrimination. She also found that Thompson met her obligations to demonstrate pretext. Thompson had shown that another employee had asked to work part time but retained her position with Fresh. In addition, there were four other employees, like Thompson, who stated on the survey that they would be unable to work the new schedule and did not state a shift preference and two of the employees were not laid off and did not quit. Thus, Judge White would find that Thompson's disability discrimination claim survived summary judgment.
Learning Points
The Sixth Circuit's clarification on instances when an employer may contractually reduce the statute of limitations is a beneficial guidepost for employers. Employers in the Sixth Circuit should be cognizant of whether the states in which they operate have a statute that specifies a specific limitations period or, like Ohio, is silent on the issue and relies on the state's general limitations statute. Employers in states like Ohio should contemplate implementing a handbook that reduces the statute of limitations for state-based claims. However, before doing so, employers should contact an employment attorney to discuss the pros and potential cons of such a policy. As always, Seyfarth Shaw attorneys are available to assist.
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