Last week, the Franklin County Court of Appeals upheld a summary judgment in favor of a fast food employer concerning a claim for disability discrimination brought by a former employee who had been fired for theft. Turner v. Shahed Enterprises., 2011-Ohio-4654.
The plaintiff was a recovered drug addict and convicted drug offender who was hired by the restaurant after she successfully passed a pre-employment drug screen (which was apparently not administered to any applicants who had not identified prior drug convictions). After an employee identified the plaintiff as being seen placing $50 in her pocket shortly after money went missing from the manager's desk, the plaintiff was confronted with the accusation. She volunteered to undress to disprove the accusation and the assistant manager permitted her to do so in the restroom. The money was later found near the plaintiff's work station in an area where all of the other employees also had access. The plaintiff was interviewed and release by police officers, but was still fired the next day. The plaintiff claimed that she was discriminated against on account of her former addiction when she was required to submit to a drug test when other employees were not, when she was required to undress to disprove the theft accusation, and when she was fired for attempted theft.
First, the Court found that requiring the plaintiff to submit to a pre-employment drug test was not a material adverse job action that could support a claim for discrimination. Further, the Court found it permissible for employers to adopt reasonable drug testing procedures to ensure that recovered addicts did not (or had not) relapsed. The ADA specifically provides that it shall not be a violation of the ADA for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that recovered or recovering individuals are no longer engaging in the illegal use of drugs. 42 U.S.C. §12114(b).
Second, the Court found that the employer lawfully terminated the plaintiff because it believed that she had attempted to steal $50 based on the accusation of a co-worker and the fact the money was eventually found near her work area. While another employee could have placed the money there and it was not found on the plaintiff, that the employer may have been mistaken does not mean that it was not motivated by its belief that she was a thief. The plaintiff could identify no evidence that her status as a recovered addict was the actual reason that she was terminated in light of the theft investigation.
Finally, the Court dismissed her invasion of privacy claim because she had volunteered to undress in front of the assistant manager to prove her innocence even after she was told that it would not be necessary:
Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.
The outcome would probably have been different if she had been threatened with termination if she did not agree to a strip search.
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 change or be 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.
