On Tuesday, the unanimous Stark County Court of Appeal rejected the disability discrimination claim under Ohio Revised Code 4112 of a former restaurant dishwasher who claimed that he had been terminated on account of his alleged MS. Coco v. Beysely’s Restaurant, No. 2021-Ohio-4201. The plaintiff alleged that he was replaced after missing work for a few days in November 2017 following a fall at work caused by his MS. However, the undisputed evidence reflected that since being hired in March 2017, he had called off work over 26% of the days he was scheduled and on almost half of the days he was scheduled, he explained that he was physically unable to perform his duties. He was also late to work 22 days when he did show up. Considering that the restaurant had no more than 7 employees and the plaintiff’s poor attendance required the 79-year-old co-owner/cook to fill in for him (sometimes delaying food orders while he washed dishes), the Court found that the plaintiff’s poor attendance rendered him unqualified for his position (and thus not entitled to a reasonable accommodation). The Court did not find the employer’s additional stated concern with potential liability if plaintiff were injured at work to affect the outcome. Following federal ADA precedent, the Court indicated: “[a]n employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.” This is because “[r]egular attendance and ability to perform the work are an essential function of any position.” In short, the employee had been terminated – not because he required a temporary leave of absence following his fall – but because he had not reliably and predictably reported to work and performed his essential job duties.
The trial court granted summary judgment to the employer:
As noted by the trial court in its decision, appellant “was absent for about 26% of his scheduled days and on approximately half of the days he did appear for work, he claimed that he was unable to perform his job requirements.” Moreover, washing and putting away dishes are essential functions of appellant’s job as a dishwasher and must be performed in person. Appellant’s absences and his inability to perform such functions caused a hardship to appellee as a small business. There was evidence that Bill Maronitis was often forced to perform these functions. Maronitis, in his affidavit, stated that appellant’s attendance was terrible and that he frequently had to interrupt his food preparation to wash dishes.
The Court rejected the plaintiff’s argument that it was
direct evidence of discrimination for the employer to also express concern with
its potential liability for his potential self-injury from falling at work
because the same discussion including an emphasis of the plaintiff’s poor
attendance and inability to perform the essential functions of his position. The employer
voiced concerns about potential liability if appellant were to fall at work, especially during the winter when the parking lot was salted and slippery. However, during the same conversation, Maronitis indicated that they never knew when appellant was going to be off of work. During the conversation, Larry Beyes, Maria’s husband, stated at page 9 that “[t]he job requires somebody’s going to be here every single time and when you are not confident that that job is going to be filled every single day, how can you run your business? You can’t that’s the bottom line.” Maria Beyes also indicated that she and her father could not physically perform appellant’s job functions along with their own since they were not “spring chickens anymore.”
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.
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