Last month, the Franklin County Court of Appeals affirmed a trial court judgment in favor of a plaintiff who alleged disability discrimination and failure to accommodate. Coomer v. Opportunities for Ohioans with Disabilities, 2022-Ohio-387. The plaintiff had requested to return to her former work schedule in order to control her late afternoon anxiety. Although the employer conceded that this was not a burdensome request, it denied it on the grounds that it was unpersuaded that the schedule change was necessary prior to exploring alternatives and because of her recent inadequate productivity. The trial and appellate courts found that changing her work schedule was necessary to control her anxiety and that the employer had constructively discharged her by denying the accommodation.
According to the Court’s opinion, the plaintiff suffered
from an anxiety disorder, but worked successfully for approximately seven years
before requesting to delay her work schedule by an hour due to childcare
obligations. However, her anxiety
worsened in the afternoons, slowing her productivity, so she took FMLA leave
and requested to return to her former work schedule so that she could finish by
3:30. While her supervisor approved the
request, his manager denied it due to her recent performance issues. The employer’s “core” work hours were 8 to 5,
but management had discretion to change shifts by an hour earlier or later. The
following month, the plaintiff submitted a supportive note from her nurse and
her physician answered the questions of the employer’s ADA coordinator. The Coordinator and the Assistant HR Director
denied the plaintiff’s request to return to her former schedule so that she
could finish an hour earlier on the grounds that the information provided did
not demonstrate a need to leave work earlier. While there was no dispute that
she had a disability, leaving early was not deemed necessary and other actions were
suggested to lessen her anxiety. While
these alternatives were discussed with (and rejected by) the plaintiff, no
alternatives were submitted to her physician. She ultimately
received STD and then LTD.
The employer argued that the plaintiff was responsible for a
breakdown in the interactive process by refusing to discuss or explore the
proposed alternatives – changing her lunchtime or listening to music -- with her physician or providing additional
evidence. The trial court “implicitly” rejected
this argument by finding that the plaintiff was incapable of working past 3:30
p.m., making her proposed accommodation necessary. Without acknowledging the weight of
authority that an employee is only entitled to a necessary accommodation, not
necessarily a preferred accommodation, the court of appeals concluded that “further
discussions between Coomer and OOD concerning the request reasonably could be viewed
as either unnecessary or futile after the denial.”
The court also rejected the employer’s argument that it had
not constructively discharge her. Contending that only a “complete failure” to accommodate or offer reasonable
alternatives can constitute a constructive discharge, the employer asserted
that it was still engaging in the interactive process when the plaintiff left
work, but the court found that the plaintiff could still prove a constructive
discharge from the denial of a necessary accommodation.
The court also rejected the employer’s argument that the
verdict was against the manifest weight of the evidence. The employer offered no expert testimony to
refute the plaintiff’s physician about her need to leave work at 3:30 (without
utilizing FMLA leave) or her ability to return to a full-time schedule if
accommodated. The Court found it irrelevant
that the plaintiff conceded that she was capable of working past 3:30 on some
days because she typically became too anxious to work productively after
3:30. The Court also refused to discredit
the treating professionals opinions merely because they relied on the plaintiff’s
self-reporting of symptoms.
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.
