Last month, the Franklin County Court of Appeals reversed in major part a disability discrimination claim brought by a terminated day care worker with a genetic heart condition which made her susceptible to infections. Anderson v. Bright Horizons Children's Ctrs., L.L.C., 2022-Ohio-1031. The Court agreed that the plaintiff could not show that she was “disabled” under Ohio law because O.R.C. §4112.02 – unlike federal law -- does not include “operation of a major bodily function” as a disability. The Court also rejected her argument that she had requested a reasonable accommodation with vague statements. However, the Court found sufficient evidence for trial about whether the plaintiff was “regarded as” disabled and had suffered an adverse employment action on account of her heart condition when she had within the prior week disclosed that she suffered from a heart defect which was causing her attendance issues and there was a factual dispute as to whether she was even required to call off after being taken off the work schedule. The Court also revived a claim against the plaintiff's former supervisor for aiding and abetting the employer's alleged discrimination.
According to the Court’s opinion, the plaintiff suffered
from a genetic heart valve defect which rendered her more susceptible to
bacterial infections. She was hired in
March 2017 to work in the infant room of her employer’s daycare center. Over the next 3.5 months, she missed 8 non-consecutive
days due to various infections. When she
called off for another infection on July 10, she disclosed her genetic heart
defect as the underlying cause. When she
returned to work on July 12, she was counselled for excessive absenteeism,
informed that she was not providing the necessary consistency of care for the
infants and it was suggested that she transfer to the substitute pool or
resign. She was also reprimanded for
inappropriate use of her cell phone when she was supposed to be teaching
earlier that day. She suffered an anxiety
attack when she next reported to work on July 14, called off and went to the
ER. Her mother called in to explain her
genetic condition, her treatment in the ER for anxiety, migraine and blood
pressure, etc. and admonished her supervisor for permitting feverish infants to
be admitted to the day care when they posed a risk to her daughter. While
the mother requested that the employer not hold the heart defect against her,
neither the mother nor daughter ever informed the employer that she had been
released to return to work after leaving the ER.
The plaintiff was not put on the following week’s schedule,
purportedly because she had not yet reported that she had been released to
return to work. The plaintiff claims
that she assumed that she had been fired and did not report to work, but instead,
attempted repeatedly to call her supervisor and manager and assumed that they
were avoiding her. The HR Department
attempted repeatedly to call the plaintiff and, because her voice mailbox was
full, emailed her with times they were available to talk with her. The plaintiff did not call or email them as
requested. The employer’s policy
provided that an employee would be considered to have resigned if they failed
to report or call off from work for two consecutive “scheduled days.” The
plaintiff was informed on July 20 that she was deemed to have resigned because
she had not reported to or off from work on July 14 (when she had) or on July
17 or 18 (when she was not on the schedule).
The plaintiff sued the following month for disability
discrimination. The trial court granted
the employer summary judgment, but the appellate court reversed.
The Court of Appeals first noted that while Ohio courts rely
on federal ADA and ADAA decision for persuasive authority and guidance, federal
court decisions are not controlling because the ADAA and its regulations differ
substantially from federal law. In
particular, unlike federal law, Ohio law does not provide “that the operation
of a major bodily function is a major life activity.” Courts will not amend a statute where the
General Assembly has not done so. Accordingly, the plaintiff “has not
demonstrated that her congenital heart defect substantially limits a major life
activity” and cannot show that she is “disabled” under Ohio law under the first
prong of the definition.
Yet, the third prong of the definition encompasses “regarded
as disabled” claims. “Under the plain
language of R.C. 4112.01(A)(13), a plaintiff may be disabled if the employer
regarded the plaintiff as having a mental or physical impairment, without
regard to whether the employer regarded the plaintiff as substantially limited
in his or her major life activities.”
There was no dispute that the plaintiff suffered from a physical
impairment due to her heart defect. There was also no dispute that the plaintiff
and her mother had disclosed the heart defect in the week before she was terminated. The
court rejected the employer’s argument that the disclosure of the defect was
insufficient because they had no medical confirmation that it was actually
causing her absences:
However, a question of fact arose regarding whether defendants believed [she] had a physical impairment once [she] informed [her supervisor] about her congenital heart defect. [She] did not have to substantiate her medical condition with documentation to create a question of fact sufficient to survive summary judgment.
The court also rejected the employer’s arguments that the
plaintiff’s prior medical releases to return to work without restrictions (for
her prior sinus infections) precluded her from providing a disability because
she was not claiming that her sinus infection was her disability. Rather, the plaintiff had alleged
that defendants regarded her as disabled due to her congenital heart defect. Defendants did not receive any medical note returning [her] to work without restriction after an absence to treat her congenital heart defect. Consequently, defendants in this case had no reason to believe that the ongoing condition [she] suffered from—a congenital heart defect—had resolved itself because she had produced a note returning her to work without restriction after an acute infection.
The Court also rejected that the employer’s argument that
the plaintiff had necessarily voluntarily resigned by not reporting to work
after she had been taken off the schedule. The employer argued that Mondays and Tuesdays
were her regular work days and she was required to show up or call off. The Court concluded that a reasonable jury
could disagree about whether the plaintiff had voluntarily resigned by not
properly calling off work on her normal work days (because she assumed that her
supervisor was not answering the phone to deliberately avoid her) or responding
to the HR Department when she had not been put on the schedule. If she
had voluntarily resigned under the policy, then she had not suffered an adverse
employment action.
The Court rejected the plaintiff’s argument that she had
provided direct evidence of discrimination from the employer’s testimony that
her prior sporadic absences played a role in the decision to terminate her
employment. Rather, that testimony
required an inference from her disability-related absences were really about
the disability and not the absences. Nonetheless, that testimony was relevant to
proving indirectly or circumstantially that she had been terminated on account
of her disability.
A reasonable factfinder could determine that [the supervisor] deduced from this information that [the plaintiff’s] congenital heart defect was the underlying cause of her numerous acute infections and concomitant absences from work. Thus, a reasonable factfinder could infer that when [the supervisor] conceded that [her] absences played a role in her termination, she was really conceding that [her] perceived disability played a role in her termination.
Not surprisingly, the temporal proximity between the date
when the plaintiff disclosed her heart defect and the date of her termination
also constituted evidence that her disability motivated her termination:
[D]efendants terminated [her] employment on July 20, 2017, only ten days after [she] first disclosed her congenital heart defect to [her supervisor]. The temporal proximity between the disclosure of [her] alleged disability and the adverse employment action is circumstantial evidence of intentional discrimination.
Plaintiff was also replaced with an employee who did not
have a disability.
The Court found irrelevant that the plaintiff was
reprimanded for her inappropriate usage of her cell phone because that
reprimand played no role in the decision to terminate her employment.
The Court noted that the parties did not seem to address or
dispute whether the plaintiff was qualified for her position. It also refused to consider the issue of
pretext because the trial court had not addressed it below. Nonetheless, it found the trial court had
erred in granting summary judgment based on the circumstantial evidence the
plaintiff had presented that she had been discriminated against on account of
being regarded as disabled.
The Court rejected the plaintiff’s claim that the employer
failed to provide her with a reasonable accommodation. “When an employee does not propose a
reasonable accommodation, his or her failure-to-accommodate claim must fail.” The
plaintiff claimed that she had requested on July 10 that the employer not count
her disability-related absences against her, but the court found she had not
sustained her burden of proving that she had requested a reasonable
accommodation. It similarly rejected the
affidavit of the plaintiff’s mother she had requested on July 12 that the
employer not hold the heart defect against her daughter because the statement was
“not sufficiently direct and specific enough to qualify as a request for a
reasonable accommodation.”
It is too vague for any employer to recognize it as a proposal for specific, special action needed to accommodate a disability in the workplace. Melody Anderson's request is more like general plea for "understanding" than a proposal for a concrete accommodation.
The Court refused to
recognize a separate claim for the employer’s alleged failure to engage in the
interactive process because such a duty only arises under federal law when the
plaintiff requests a reasonable accommodation – which did not occur here. The Court noted that O.R.C. §4112.02 never
mentions the interactive process obligation.
The Court also reinstated the plaintiff’s claim that her
supervisor had aided and abetted the employer in discriminating against
her. Because the “regarded as” disabled
claim had been revived, this claim would be revived as well.
The Court then affirmed a number of discovery rulings and sanctions
involving emails and recorded telephone conversations.
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.
