[Editor's Note: On August 3, 2023, the Court deleted its original opinion and re-issued it after a request for reconsideration on the issue (noted below) about whether a request for a reasonable accommodation may constitute protected activity for purposes of a retaliation claim. Without resolving that issue, the Court deleted the paragraph discussing that issue (as noted below) and modified the opinion, but not the result: " In light of appellant’s reconsideration motion and the accompanying amicus brief filed with this court, we reissue our June 20, 2023 decision without original paragraph 102 and with a slight modification to original paragraph 103 (now 102). Whether a request for accommodation constitutes protected activity under Ohio law is a question that warrants full briefing before definitive resolution by this court."]
Last month, a unanimous Franklin County Court of Appeals affirmed an employer’s summary judgment where the plaintiff had alleged that he had been terminated on account of his race, disability and in retaliation for engaging in protected conduct. Childs v. Kroger Co., 2023-Ohio-2034. The plaintiff had been hired into a bargaining unit position despite a murder conviction from when he was a juvenile and was ultimately promoted to a salaried assistant manager position before he was fired when management learned about his prior murder conviction. The Court found that he was unqualified for his position because the company policy at the time of his termination precluded the employment of convicted murderers.
According to the Court’s opinion, the plaintiff was
convicted of murder in 1996 from when he was a juvenile. He was hired by Kroger into an hourly
bargaining unit position in 2014. He had
truthfully reported that he had a criminal conviction on his employment
application and claimed to have explained the details to his interviewer. The background check only reviewed the prior 7
years and so did not pick up the earlier murder conviction. His
job history listed his prison employment as well as his current job. It apparently did not occur to the
individuals reviewing his job application that his prison employment was as
a prisoner instead of as a private contractor. In 2015, he applied for and was selected for
a management training position. In 2017,
he began suffering panic attacks after the store was robbed and he was
physically threatened. He was given a
poor performance evaluation a couple of months later and put on a performance
plan. He then accused his manager a few
months later of being racist based on observed favoritism. A month later, he then submitted a medical
statement about his depression and asked to be transferred to another
store. He then complained again in
October 2017 about his manager, who was then transferred. The plaintiff was also transferred from Reynoldsburg
to Sunbury in February 2018 and he received a better performance evaluation.
While in Sunbury, the plaintiff learned in April 2018 that
an employee had been convicted as a sexual offender. He recommended termination and participated
in the union grievance process that resulted in the employee’s termination as a
risk to minor employees. Shortly
thereafter, an employee was searching for information about the plaintiff’s
recent motorcycle accident and discovered his 1996 murder conviction. It was reported to management and he was fired
at the end of May 2018 because company policy provided that it was a
disqualifying offense. More than a year
later, the plaintiff filed suit alleging race and disability discrimination and
retaliation and wrongful discharge in violation of public policy, as well as
unlawful aiding and abetting and defamation. The trial court eventually granted summary
judgment to the defendants on all claims and it was affirmed on appeal. Much of the lengthy appellate decision involves
procedural and discovery issues.
The Court concluded that, despite the fact that the
plaintiff had worked more than three years at Kroger and been promoted, he could
not satisfy his prima facie case and show that he was qualified for his
position before being fired because his 1996 murder conviction rendered him unqualified. The plaintiff “is unable to establish the
third element of his prima facie case, because his murder conviction rendered
him unqualified for employment at Kroger.” Evidence was presented that the
company refused to hire individuals with certain convictions and fired them if a
disqualifying conviction was later discovered. Even if murder was not a disqualifying conviction
at the time he was hired, it was at the time he was terminated.
The Court also rejected his claim for disability
discrimination, which was based on his depression, anxiety and PTSD. The Court found that the plaintiff failed to
show that his depression substantially limited any major life activities
because he admitted that he was able to continue to work and the remaining
limitations were relatively insignificant.
Although the plaintiff
indicated that his depression impacted his ability to sleep and do household chores on some days, he did not claim that his depression affected his ability to sleep or do chores for significant amounts of time. [The plaintiff] presented no evidence indicating that his depression substantially limited his ability to think or otherwise engage in major life activities, and he affirmed that he could hold a job despite his depression. Accordingly, [he] failed to demonstrate that his depression occurred in sufficient duration and with sufficient severity to significantly limit any major life activity.
In any event, even if the plaintiff could show that he were statutorily
disabled, he “also could not establish that he was qualified for his assistant
store manager position either with or without a reasonable accommodation,
because his murder conviction rendered him unqualified for any position of
employment with Kroger.”
As for his retaliation claim, the Court initially rejected his argument
that he was retaliated against for requesting a transfer as a reasonable
accommodation. “A request for reasonable accommodation does not amount to
“participation in any manner in any investigation, proceeding, or hearing” or
“opposition to an unlawful discriminatory practice” under R.C. 4112.02(I).” In
other words, Ohio law does not consider a reasonable accommodation request to
be protected activity for purposes of asserting a retaliation claim. However, the Court withdrew that part of its opinion on August 3, 2023 as noted in the Editor's Note above.
Similarly, the Court concluded that it was not protected
conduct under ORC 4112 to report the sexual offender conviction of a subordinate
to management when he asserted that his termination was motivated by reporting
the sexual offender despite the store manager’s resistance.
Nonetheless, his other retaliation claim had more
merit. He claimed that he was placed on
a performance improvement plan after asking his supervisor if he was racially
biased against him. However, the company
contended that it was based on his earlier, year-end performance
evaluation. Sadly for the plaintiff, his
own comments on his performance evaluation acknowledged that his performance
needed to improve and commented on specific mistakes or shortcomings that he
had shown. He also could not disprove
that the company always placed low-performing employees on performance
plans. Therefore, the Court dismissed
the retaliation claim.
Because all of his ORC 4112 claims were dismissed, the
aiding and abetting allegations against the individual employees and managers
were similarly dismissed.
The Court also dismissed the wrongful discharge claim on the
basis that his murder conviction motivated his termination and not his earlier report
of the sex offender employee. He could
not show that public policy was jeopardized by his reporting of the sex
offender to management. Even if that
report had motivated his termination, he could not identify a public policy
which was violated by his termination:
[His] termination would not have jeopardized the public policy expressed in R.C. 2950.034(A). The statute prohibits sexually oriented offenders from residing in specific locations; it does not prohibit sexually oriented offenders from working at specific locations.
Finally, the Court dismissed the defamation claim based on
the incorrect report that he had failed to previously disclose his murder
conviction. He claimed – without contradiction
– that he had disclosed it in his job interview. However, he could not prove that the HR
employee passed that information along to management or that the individuals who
allegedly defamed him knew that he had previously disclosed it in a 2014 interview. Further, management has a qualified privilege
to discuss other employees.
Furthermore, “ ‘a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege.’ ” . . . “Once the defense of qualified privilege attaches, a plaintiff can only defeat the privilege with clear and convincing evidence that the defendant made the statements at issue with actual malice.”
Ms. Gray and Mr. Shepard were both managers at Kroger, and their communication regarding [the plaintiff’s] failure to disclose his murder conviction was a matter of common business interest between them. As such, Ms. Gray’s statement to Mr. Shepard was subject to a qualified privilege. Because the evidence demonstrates that [he] failed to disclose his murder conviction to Kroger [in writing], Mr. Childs cannot establish that Ms. Gray made her statement to Mr. Shepard with actual malice.
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.
