In Blosser, the
plaintiff employee was hired in 2007 as an at-will engineer and received negative
performance feedback:
[The manager] informed [plaintiff] that his performance was
not meeting expectations and told him that he would need to improve. On one occasion,
[the manager] indicated that the cost and time associated with one of [plaintiff’s]
projects was “getting out of hand” and that [his] projects were not progressing
as expected. Nevertheless, [plaintiff] continued having problems and failing to
meet the expectations of [the manager] and other supervisors at AK Steel.
In September 2008, the plaintiff took FMLA leave to remove a
brain tumor and was released to return to work without any medical restrictions
in November 2008. He returned to work
on December 1 without any medical restrictions and admitted that he was not
suffering from any disability. His work performance did not improve after his
medical leave. While he accomplished
assigned tasks, his manager felt that he did not show enough initiative or
independent judgment.
[The manager] rated [plaintiff] as “below satisfactory” in
seven of ten performance sections, including “job knowledge, planning, control,
management of resources, decision-making, communications (oral and written),
and current performance.” [The manager] explained his ratings by writing, “Al
is slow to assume the responsibilities of the Infrastructure work for
Middletown Works. . . . [He is] not aggressive enough. . . . The quantity and
difficulty of the projects that Al has been assigned is lower due to the length
of time he has taken to work on them. . . . [He] has not achieved the desired improvement
in response time.” When [the manager] and [plaintiff] met to discuss the
evaluation, [he] blamed any substandard performance on his recent medical
problems.
In the meantime, the recession adversely affected the
company’s business and layoffs were made based on seniority, job performance and
uniqueness of skills. Because the
plaintiff had low seniority, a non-unique job and documented poor performance,
he was selected for layoff. Before he
had been notified of the layoff, the plaintiff emailed the HR department – in an
attempt to avoid being laid off – that his medical condition had not been
properly considered in his prior performance evaluation. He filed suit following his layoff.
The Court found that
the plaintiff could not show that he was laid off because of his FMLA leave merely
because the layoff occurred six weeks following his return to work. First, the Court focused not on the date of
his return to work, but on the date several months earlier when he requested
FMLA leave in September. The passage of
four months between his FMLA request and his layoff was found insufficient to
support, by itself, the implication of retaliation. “[A] plaintiff must couple temporal
proximity with other evidence to show causation.” In this case, the “other evidence” submitted
by the plaintiff was insufficient. The
offer by his supervisor to help him move was irrelevant. A comment that his work performance had not
improved or changed since his medical leave was also irrelevant. Comments by the company CEO in general against
a state law form of FMLA leave was also insufficient to show retaliation. In addition, the plaintiff could not show
pretext in that there had been dissatisfaction with his job performance before
he requested medical leave and those comments were consistent with his subsequent
performance evaluation following his medical leave. He also could not dispute the company’s
economic need for layoffs during the recession.
Finally, he could not show his layoff was retaliation for emailing HR
because the decision had already been made before his email was sent.
The Court also rejected his disability discrimination claim
under Ohio law on the grounds that he could not show that he was disabled when
he returned from a brief medical leave with no medical restrictions. The Court found that his surgery and the
potential of a need for future medical treatments did not render him disabled
as having a record of a disability. Instead, his brain tumor – while serious –
was of temporary duration and was resolved without any further medical
restrictions. Therefore, the Court
rejected any argument that it constituted a record of a substantial impairment.
The Court found that the plaintiff had failed to produce any
evidence that he had been regarded as disabled and could not show that his
layoff was pretext for discrimination.
In the Hogan case,
the plaintiff visited her primary care physician in September 2008 complaining
of anxiety, difficulties concentrating, panic attacks, disliking her job and
back pain. He diagnosed her with depression,
prescribed medication and she stopped working two days later on the grounds of
depression, anxiety and panic attacks.
She visited her physician a week later complaining of anxiety and
work-related stress and he agreed that she required a medical leave to adjust
to her new medications. A month later,
she explained to her physician that she was still too stressed to return to
work and he referred her to a psychiatrist.
She visited her EAP, which noted no restrictions on her work or daily
activities, but referred her to another psychiatrist in order to rule out
Alzheimers or dementia. There was no
evidence that she had ever consulted with any psychiatrist.
The plaintiff’s claims for STD and LTD were denied because
she failed to provide satisfactory proof of disability. While her primary physician noted that "significant stressors at work exacerbate [her] condition . . . but did not connect any specific work activity to her condition, nor did he provide any evidence of objective testing or fruther evaluation. And while he noted restrictions on her work activities, he did not initially place any restrictions on any other activities of [her] daily life." In rejecting her claim, the defendant company explained the:
lack of clinical evidence of functional deficiencies and
added “we cannot conclude from the records we received a physical or mental
inability to function at work other than your current dislike for your position.
. . . .
Disability is determined by medically supported functional
limitations and restrictions which preclude ability in performing your
occupation. We do not dispute you may have been somewhat limited or restricted
due to your diagnosis, however an explanation of your functionality and how
your functional capacity prevented you from performing the requirements of a
Leave Processor was not clinically supported as we were not provided with
physical exam findings, physical limitations, and severity of symptoms.
The Court affirmed the denial of the claim:
In evaluating Hogan’s claim, LINA received only three brief
visit notes from Hogan’s treating physician—an internist lacking any sort of
mental-health specialization. These notes indicated that the idea to take time
off from work originated with Hogan and was not a restriction imposed by her
physician (although Dr. Schurfranz agreed with her decision to stop working
until her medications better controlled her self-reported symptoms). The record
lacked any sort of clinical verification, and despite requests and
opportunities to do so, Hogan failed to provide the type of information about
her specific limitations that could be used by LINA to determine that she met
the plan’s definition of disability.
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.
