Recent Developments for Employers in Kentucky, Michigan, Ohio and Tennessee

Already in 2017, a number of decisions have been handed down in the Sixth Circuit that could have notable implications for employers in Kentucky, Michigan, Ohio and Tennessee. First, in Verble v. Morgan Stanley Smith Barney LLC (6th Cir. Jan. 13, 2017), the Sixth Circuit held that plaintiffs need to be specific when pleading whistleblower claims. Plaintiff Verble worked as a financial advisor at a branch office in Knoxville, Tennessee. Soon after beginning his employment, he became suspicious of alleged criminal activities. In his complaint, Verble alleged that a coworker spotted him getting into a car with federal agents and was later confronted about it. Following this, Morgan Stanley management asked him if he was working with the FBI, and one manager reportedly told him he would "whip [his] ass." He was put on temporary leave and terminated the next month. Verble filed suit, and in 2015, Judge Varlan held that Verble was not entitled to classification as a SEC whistleblower under the Dodd-Frank Act because he reported his insider trading allegations to the FBI, not to the SEC. The Sixth Circuit panel affirmed, but unlike the district court, found that Verble's account of working with "law enforcement" was too vague to support his whistleblower status.

In Green v. BakeMark USA (6th Cir. Mar. 27, 2017), the Sixth Circuit reaffirmed earlier rulings that an employer need not speculate about an accommodation request. Plaintiff Green, who was an operations manager, went out on leave for thyroid surgery and returned to work without restrictions. A few weeks later and over the next several months, Green presented many varying restrictions involving part-time work, which BakeMark had either accommodated or placed Green back on a job-protected leave. Finally, Green requested that he be placed on an indefinite leave of absence. BakeMark could not accommodate this request and terminated his employment. The Sixth Circuit first concluded that while a part-time work schedule may be a reasonable accommodation in some cases, it is unreasonable in situations where the essential functions of the job require full-time attendance. Second, the Court held that BakeMark did not fail to accommodate Green, as the employer was not required to speculate as to Green's need for an additional accommodation beyond what Green specifically requested.

In Lee v. Cleveland Clinic, (6th Cir. Jan. 20, 2017), the plaintiff's supervisor allegedly commented on her long tenure, asked her when she planned to retire, and told her, "things had changed." Another nurse allegedly made racist comments which Lee reported to her supervisor. The supervisor told Lee that she was just being sensitive. Lee was written up shortly thereafter and eventually complained to HR that she was being subjected to a hostile work environment. HR did not investigate. After another disciplinary issue, Lee resigned before being suspended. Lee claimed that she was discriminated and retaliated against when issued the suspension but the Sixth Circuit disagreed. It held that service of a suspension is a requirement for an adverse employment action, clarifying the issue for the first time. However, the Court further determined that a jury could conclude that Cleveland Clinic intended to fire Plaintiff or constructively discharged her - either of which could be an adverse employment action. The takeaway? Human Resources must investigate any hostile work environment allegations, even if the discipline is warranted.