Last month, the Cuyahoga County Court of Appeals reversed an
employer’s summary judgment on a disability discrimination claim when it had
fired the plaintiff less than a month after hiring her prior to completing her
90-day probation. Anderson
v. AccuScripts Pharmacy, L.L.C., 2022-Ohio-1663. First,
the Court applied the definition of disability from the ADAA, rather than the
more restrictive definition from the ADA, to find that the plaintiff suffered
from a disability. Second, it found a material
factual dispute as to whether the plaintiff had actually engaged in misconduct –
by leaving work without authorization before the completing her shift.
According to the Court’s decision, the plaintiff claimed
that she had informed her employer during her job interview that she suffered
from epilepsy (which it denies) and gave them a list of the medication she
regularly took (which it admits) to ensure that she did not fail any drug
tests. The employer admits that it asked
her if she could drive and claimed to ask that of all applicants. The employee handbook only referred to a
90-day introductory/probationary period twice. She claims that she had had no performance issues
after beginning work on May 8, but it contends that in just a few weeks she had
been missed work on May 15 (because of a spider bite), was hours late to work
on May 16, violated a few rules and then left work on May 19 without
authorization after she had explained that she did not feel well. None of the performance issues were
documented. She claims that she told the
shift supervisor on that Saturday that she had epilepsy and wanted to bring her
service dog into the pharmacy with her to alert her to oncoming seizures. The supervisor claims that she only said that
she was not feeling well after taking too much menstrual medication and was
authorized to take a short break. The
supervisor denied authorizing the service dog because it would have to be
cleared with the State Pharmacy Board and was not her decision to make. The
supervisor says that she went looking for her after 15 minutes, could not find
her and reported the absence (but not the service dog) to the manager on Monday,
when he decided to terminate her. When
informed of the termination, the plaintiff objected on the grounds that she had
volunteered to work on Saturday, which was not her scheduled shift. “Please tell me where in the handbook it says
you cannot go home on days you aren’t scheduled.” She also claimed that the supervisor had told
her that she could leave after lunch if she was not feeling any better. The employer claimed that it generally fired
employees for poor attendance after only one verbal warning. Once litigation commenced, the plaintiff claimed
that her supervisor encouraged her to leave work early because they were not
busy, denied asking to leave early, but also claimed that the supervisor had
been unsympathetic and condescending.
She later filed suit claiming that she had been fired for
requesting to bring her service dog and because of her epilepsy. The trial court granted the employer judgment
on the grounds that she did not suffer from a disability because she failed to
submit evidence that her epilepsy substantially limited any major life
activities. She had testified as to the
various types of seizures that she suffered and how they affected her. She takes medications to control her
seizures and has not had a significant seizure between six and eight months. However, she often had tonic-clonic type seizures
around her menstrual cycle and wanted to bring her service dog with her during
that time because it would alert her to an oncoming seizure and, thus, prevent
her from becoming injured during a seizure.
The trial court found that the plaintiff had failed to show
that her epilepsy “substantially limited” a major life activity. O.R.C. §4112.02
does not define “substantially limits” and in 1998, the Ohio Supreme Court had
directed courts to rely on the federal ADA for the appropriate definition. However, in 2008, the ADA was amended (i.e.,
the ADAA) to broaden the definition of “substantially limits.” The Ohio Revised Code was not then amended to
incorporate the changes from the ADAA.
The employer argued (and the trial court agreed) to apply the original
ADA definition of “substantially limits,” but the Court disagreed and applied
the federal definition in place at the time of her termination. The Court then found that she suffered a
disability as a matter of law:
Specifically, under 29 C.F.R. 1630.2(j)(1)(vii), “[a]n impairment that is episodic * * * is a disability if it would substantially limit a major life activity when active.” It is undisputed that when Anderson is experiencing a seizure, she cannot work, see, speak, hear, and sometimes breathe.
The Court then found that there was a genuine dispute of
material fact as to why the plaintiff had been terminated:
Anderson averred that during her May 19, 2018 shift, she experienced an “aura” and told Bauman she was not feeling well. Anderson further testified that Bauman told her to go home. Bauman, on the other hand, testified that Anderson stated she was not feeling well, and Bauman told her to “go into the break room and sit down for a while and see.” Bauman testified that she did not tell Anderson to go home. In other words, there is at least a question of fact whether Anderson left her shift with or without permission.
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.
