Thursday, April 23, 2015

Court Reinstates Lawsuit Against Individual Manager for Disability Discrimination

Yesterday, the Ohio Court of Appeals reversed a summary judgment dismissing an employee’s claim for disability discrimination against his former manager.  Price v. Carter Lumber Co., 2015-Ohio-1522.   This case only involved state law claims against the manager because the employer had apparently earlier prevailed on an ADA claim in federal court.  The Court found that there was a disputed issue of fact as to whether the plaintiff could perform the essential functions of his position with a reasonable accommodation.  While the plaintiff admittedly could not satisfy the employer’s lifting requirement, there were disputed issues as to whether that lifting requirement was an essential function of the job, whether the plaintiff could be transferred to a non-lifting position or whether the lifting requirement could be accommodated.  The employer did not utilize written job descriptions or performance evaluations to substantiate its arguments.  The employer denied telling the plaintiff that he was being laid off in January 2003 and would never be rehired because of his physical impairments, therefore, the plaintiff was relieved of requesting any specific accommodation.   Nonetheless, the Court affirmed dismissal of the emotional distress claim.

According to the Court’s lengthy opinion, the plaintiff was hired in 1998 as a yard worker at the lumber company.  When he began experiencing vision difficulties in Spring 2002, his driving duties were eliminated.  When he was then placed on lifting restrictions that Fall, he was transferred to a retail counter position part of the time and yard work (without heavy lifting) part of the time.  The employer claims that he had very poor customer and communication skills and never mastered the cash register, etc.  However, none of these performance issues were documented.  The employer regularly laid off employees during the slow winter months, but had previously recalled the plaintiff without requiring him to re-apply.  The plaintiff suffered kidney failure in December 2002 and was released to return to work in January 2003 with heavy lifting restrictions and a regular dialysis schedule.  He was then informed that he was being laid off because of economic conditions.  After some period of time had passed, the defendant manager finally admitted that he was not being recalled and the plaintiff testified that the manager specifically mentioned his dialysis schedule.

The manager contended that heavy lifting was an essential job function of a yard worker, although there was contrary testimony and no job description.   In addition, the manager failed to list heavy lifting as a job requirement when completing the EEOC’s questionnaire.  While workers may help each other out with heavy items, that was not always possible if they were busy with other customers. He also testified that sales employees sometimes also have to lift heavy items and need to  have an additional customer service skill set, which the plaintiff lacked.  He and another witness testified that the plaintiff needed to be repeatedly coached on his communication skills.  The plaintiff was laid off during the slow season and told him to reapply in the future.  The manager denied telling the plaintiff that he would be recalled to work when the economy improved in 2003.

The Court refused to hold the plaintiff to his SSI application where he claimed to be disabled because of his lifting restrictions because the SSI application does not consider reasonable accommodations that could be provided.  

“[n]either application for nor receipt of social security disability benefits is by itself conclusive evidence that an individual is completely incapable of working.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir.2014). “[O]ne may, in fact, be totally disabled under Social Security Disability Insurance (“SSDI”) application guidelines, but nevertheless be capable of performing the essential functions of one’s job. This is so because the focus of SSDI is distinct and does not consider, for example, the effect of a reasonable accommodation on the ability to do work.”

The plaintiff produced evidence of a number of accommodations – “such as rollers, dollies, sliding boards, flatbed carts, and handheld scanners that allow for pricing items without removing them from a cart or dolly”  that might have helped him perform his job.  Moreover, he showed that he had worked for several months with his duties split between yard work and inside sales while he had a similar lifting restriction. 

The Court also found a factual dispute to exists as to whether repeated heavy lifting was an essential function of a sales position.  Similarly, a factual dispute existed as to whether the plaintiff could perform either the yard worker or sales position with a reasonable accommodation.  There were no job descriptions and was conflicting testimony about the necessity of heavy lifting on those jobs.
In addition, the Court also found that the plaintiff was not required to request an accommodation because he had never been informed that his employment was being terminated on account of his physical limitations.  Instead, his termination was attributed to “seasonal cutbacks.”  When the plaintiff visited the store several times after his termination to see if he could return, he was not told about concerns with his physical limitations.  There was no discussion about any possible accommodations or limitations.  Finally, the plaintiff claimed that he was told that he was told the real issue was his dialysis schedule.

Nonetheless, the Court affirmed the dismissal of his emotional distress claim (i.e., intentional infliction of emotional distress).   The plaintiff felt distressed that his manager mislead him about his eligibility to return to work.

Although Mr. Price argues that Mr. Collins told him “numerous lies * * * about rehiring him in the Spring,” he failed to present evidence of any affirmative statements that Mr. Collins made in which Mr. Collins actually promised to rehire him. At best, Mr. Price set forth evidence that Mr. Collins implied he would have a future with the company. Even viewing that evidence in a light most favorable to Mr. Price, however, we cannot agree that it created a genuine issue of material fact for trial. Any false sense of hope that Mr. Collins might have given to Mr. Price and his wife at a time when they were mentally and financially vulnerable was morally reprehensible. We cannot say, however, that it was legally actionable.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney