Franklin County Appellate Court Rejects Discrimination Claims Based on Criminal Conviction and Non-Substantially Limiting Impairments

[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.

Sixth Circuit: Being Unable to Work for Mean Supervisor Is Not a Substantial Limitation in the Ability to Work

Last month, the Sixth Circuit affirmed the summary judgment dismissal of an ADA claim that the defendant employer failed to accommodate the plaintiff’s PTSD by transferring her away from her supervisor, which was apparently her only trigger.  Tinsley v. Caterpillar Financial Svs. Corp., No. 18-5303 (6^th Cir. 3/20/19).  The plaintiff claimed to only be disabled in the ability to work with that particular supervisor and did not claim to be impaired outside of the workplace or in her job duties.  However, the Court concluded that being disabled from working requires being unable to work in a broad class or range of jobs, not just with one job, in one workplace or for one particular supervisor.  Because she was not “disabled” under the ADA, the employer was not required to provide her with any accommodation and did not constructively discharge her.  Because the employer failed to address her FMLA retaliation claim on appeal, the case was remanded for that issue.


According to the Court’s opinion, the plaintiff reported in mid-April that her changed family and work responsibilities were stressing her out and requested to be removed from a team assignment. She then took three days of FMLA medical leave.  Some of her assignments were reassigned and she indicated that this improved her mental health.  Two months later, her work performance was criticized as well as her leaving early without approval and four months later she was placed on a performance improvement plan.  She claimed that the PIP was in retaliation because she complained about co-workers bouncing stress balls at work.  She then protested the PIP, claimed a hostile work environment created by co-worker horseplay, and said the unreasonable deadlines from a new assignment created too much stress, although other steps taken since her first complaint had improved her stress level.  An investigation of her concerns did not substantiate them.  She took another month of medical leave and was returned to work without restrictions with the recommendation that she be transferred to a different manager.   Instead, the employer granted her another 8 weeks of medical leave – putting her at 18 weeks of time off.  By January, the plaintiff was informed that she would not be transferred and would not be approved for more medical leave.  The plaintiff then retired and filed suit.

This Court has previously held that to be substantially limited from working––and thus eligible for ADA protection––an individual must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average  person having comparable training, skills and abilities.”  Swanson, 268 F.3d at 317 (citation  omitted).  Following this Court’s decision in Swanson, Congress enacted the ADA Amendments  Act of 2008, which relaxed the definition of “substantially limited” and noted that establishing a  qualifying disability is not meant to be a demanding standard. . . . Additionally, due to the broader definition of “substantially limited” under the Amendments, the interpretative guide produced by the Equal Employment Opportunity Commission (“EEOC”) notes that the major life activity of working “will be used in only very targeted situations” to determine whether an individual is disabled.

In such “targeted situations,” however, the EEOC has largely endorsed the pre-Amendments analysis for determining whether a person’s claimed impairment sufficiently impacts the major life activity of “working.”  Specifically, the EEOC’s interpretive guide explains that an individual who asserts that she is disabled because she is unable to perform the major life activity of “working” must still show that “the impairment substantially limits . . . her ability to perform a class of jobs or broad range of jobs in various classes.”  Id.  The EEOC further states that “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.”  Id.  Thus, to the extent the Amendments have altered the scope of the ADA’s protections, a plaintiff who asserts that her impairment substantially limits the major life activity of “working” is still required to show that her impairment limits her ability to “perform a class of jobs or broad range of jobs.”           

      . . . .

                the record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs.  The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed . . . with all the ball bouncing.”   . . .  For instance, on August 19, when Tinsley emailed Human Resources to request a new position, she explained that “the work itself was not the primary issue.”  And in the Charge of Discrimination, Tinsley wrote that the company could have accommodated her disability by switching her supervisor.  Last, her doctor cleared her to return to work at one point “at full capacity,” suggesting only that the company switch her supervisor to alleviate any medical concerns.  Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager.  Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The Court rejected her argument that her PTSD precluded her from working in a broad range of high-stress jobs because she consistently related her stress to her particular manager’s style and not to the type of work being performed.

Importantly, Tinsley’s physician cleared Tinsley to return to work without restrictions.  The only recommendation that Tinsley’s physician made––to have Tinsley transfer to a different supervisor––related to her stress level under Kaikaris specifically.  This is further illustrated by the fact that, when offered the same position under a different supervisor, Tinsley agreed that she would be able to perform the job duties.  Thus, Tinsley’s limitations were more accurately a product of the “unique aspect” of her “single specific job,” i.e., working as an analyst under Kaikaris’ particular management style.  Id.  Although we can certainly theorize a case in which an employee’s disability actually limited her from engaging in a broad range of similarly high-stress positions, Tinsley has not pointed to any record evidence permitting us to make that necessary inference.

Finally, the Court noted that she had sufficiently alleged a prima facie case of FMLA retaliation when she received her negative performance evaluation within two months of taking three days of FMLA leave.  Because that issue had not been addressed on appeal, it was remanded for further consideration.


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 be changed or 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.

Ohio Court and Jury Reject Plaintiff’s Disability Discrimination Claim When She Was Not Diagnosed Until Months After Her Termination

Late last month, the Cuyahoga County Court of Appeals affirmed an employer’s jury verdict in a disability discrimination lawsuit filed by a former employee.  Anderson v. Ohio Bell Tel. Co., 2018-Ohio-5237.    In that case, the employer terminated the plaintiff after she had taken three months of medical leave on account of undiagnosed wrist and hand pain and sought an indefinite leave of absence which was not supported by medical documentation.   Several months following her termination, she was diagnosed with major depression, but the trial court refused to permit her treating psychiatrist to testify as an expert (when he had not been previously identified as an expert witness as required by the civil rules) or to matters that existed before he began treating her two months after she had been fired.  None of her other treating medical professionals could opine to a reasonable degree of medical certainty that she was unable to work in the months prior to her termination of employment.  The jury returned a verdict for the employer, finding that the plaintiff did not prove that she suffered from a disability on the date that she was terminated.  The Court found that the plaintiff’s treating physicians were reasonably limited to testifying only to what they actually perceived in their treatment of her. 

According to the Court’s opinion, the plaintiff had complained of various hand, wrist and back pain and claimed that she was unable to work.   She began a medical leave of absence on August 5 and it was converted to short term disability.  The employer extended her medical leave without requiring any medical documentation. After she was warned that she could be terminated without supporting medical documentation, her physician provided medical documentation reflecting her complaints of pain, but providing no diagnoses or indication that she was unable to work.  Her medical leave was extended another month, at which point she requested on October 22 an indefinite leave of absence as a reasonable accommodation without providing any supporting medical documentation or even a diagnosis.  She was terminated on November 5.   In January, she was diagnosed with major depression and her psychiatrist found her unexplained pain was consistent with depression.

The Court also rejected the plaintiff’s argument that the employer could be held liable – even if she were not in fact disabled on the date she was terminated – solely because the employer’s witnesses could not explain the legal definition of “disability.”  Whether the employer applied the correct definition of disability in practice is irrelevant when the plaintiff did not prove that she suffered from a disability when she was terminated.

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 be changed or 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.

Franklin County Court of Appeals Finds Possible Hostile Work Environment Drove Plaintiff From Workplace, But Denies Disability Wrongful Discharge Claim Based on Subsequent Medical Leave of Absence

Yesterday, the Franklin County Court of Appeals reversed an employer’s summary judgment on a sexual harassment claim, but affirmed dismissal of the wrongful discharge claim. Camp v. Star Leasing Co., 2012-Ohio-3650. In that case, the plaintiff presented sufficient evidence that her male boss regularly demeaned her, but was not similarly hostile to male employees. Only one of his comments was sex-specific and none of it was related to any arguable sexual attraction. The Court also rejected the employer’s affirmative defense. However, the Court upheld her termination after she requested four additional months of medical leave for depression and anxiety following the completion of her FMLA leave on the grounds that her episodic flare-up of mental symptoms did not qualify as a disability or entitle her to additional leave as a reasonable accommodation.

The Court’s opinion contained a number examples of the condescending and degrading treatment which the plaintiff alleged she endured over a five-year period. One of them was described:

[He] treated her in a degrading and humiliating manner throughout the time he acted as her supervisor. [She] testified to multiple examples of this treatment. First, [she] stated that [he] required her to stop whatever she was doing, turn her chair around to face him, put her hands in her lap, and look him in the eye whenever he spoke to her. One time, when [she] did not respond fast enough to [his] presence, [he] twirled her chair around and yelled, "I want eye contact. I want eye contact. Right here. Right here. Look me in the eyes." . . . . While yelling, [he] pointed at [her] face and then at his eyes. [He] did not require male employees to stop what they were doing, put their hands in their laps, and look him in the eye when he spoke with them.

He allegedly also used offensive language when he spoke with her, unlike the male employees. He would only meet with male sales representatives, but not female ones (although he would occasionally make comments about being sexually attracted to them). He permitted male employees to bring Playboy magazines to work, where she would be required to see them.

The plaintiff complained to upper management that she felt discriminated against on account of her sex, but no formal investigation was ever conducted. After a number of years, the plaintiff’s mental health suffered and she took a leave of absence upon her doctor’s advice. After exhausting her FMLA leave, she requested four additional months, but was denied and terminated on account of the nature of her position and inability to temporarily replace her. The trial court granted summary judgment to the employer on all of her claims.

The Court of Appeals found that she had provided enough evidence (from her own experience and that of other female employees) to demonstrate a hostile work environment. She experienced the hostile conduct on daily basis, making it sufficiently pervasive. While the employer attempted to defend her manager on the grounds that he was equally rude to everyone, her denial of ever seeing him similarly denigrate male employees was sufficient to create an issue of fact for the jury to resolve. She was able to show that it affected her ability to work in making her increasingly anxious and depressed, finally requiring significant medical treatment.

The employer attempted to argue that it was entitled to an affirmative defense because she failed to sufficiently utilized internal procedures concerning workplace harassment. It first argued that she could not show that she suffered a material job action in that she had always received raises and favorable performance evaluations. However, the Court pointed out that she was not required to prove the existence of a tangible job action to recover for a hostile work environment; that was an element of the employer’s affirmative defense. Moreover, the plaintiff had utilized the employer’s policy and complained about discriminatory treatment. While she did not utilized the word “harassment,” she sufficiently described his demeaning treatment of her. The employer did not conduct any investigation and concluded based on cursory inquiries that she simply had a personality conflict with her boss. When the employer argued that she had failed to submit any written complaints about her boss, the Court pointed out that the employer’s policy did not contain any such requirement.

Finally, the Court affirmed dismissal of her wrongful discharge claim. She claimed that she was fired on account of her mental disability when the employer refused to provide an accommodation of four months of additional medical leave. The Court determined that a four month episode of depression and anxiety was insufficiently severe or enduring to substantially limit a major life activity or constitute a disability. Therefore, she was not entitled to any reasonable accommodation or additional leave of absence following the conclusion of her FMLA leave.

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.

EEOC Proposes New Regulations Under ADAA.

Last week, the EEOC proposed new ADA regulations to implement the Americans With Disabilities Amendment Act (ADAA) which took affect on January 1, 2009. The new regulations were published this morning in the Federal Register. The EEOC published a Q&A brochure about the new regulations on its website last week. Among other things, the new regulations indicate the existence of per se disabilities and per se non-disabilities.

Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.

Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”

That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”

While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.

Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”

Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”

Regarded As Disabled. An individuals will have a covered disability

if the individual is subjected to an action prohibited by this part, including . .denial of any other term, condition, or privilege of employment based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. Proof that the individual was subjected to a prohibited employment action e.g., excluded from one job, because of an impairment other than an impairment that is transitory and minor . . . ) is sufficient to establish coverage. . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

(emphasis added).

“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”

Proof that the individual was subjected to a prohibited employment action . . . is sufficient to establish coverage under the ‘regarded as’ definition . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.

Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.

The EEOC will accept written comments on the proposed rules until November 23, 2009.

Insomniacs can read the proposed regulations at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the EEOC’s Questions and Answer brochure at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

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.

Applicant’s Record of Impairment and Illegal Interview Questions Send Charitable Employer Back to Court for Alleged Violations of Rehab

Last week, the Sixth Circuit Court of Appeals reversed summary judgment in favor of The Salvation Army by the District Court in Columbus where the plaintiff job applicant alleged that he was denied a job after he responded to a question his job interview about whether he was taking any medications by describing the psychotropic medications he was taking. Doe v. Salvation Army, No. 07-3822 (7/1/08). The Court found that there was a factual dispute for the jury to resolve about whether the plaintiff was “disabled” under the Rehabilitation Act and whether he was rejected for employment based solely on that disability.

According to the Court’s opinion, the plaintiff “suffers from paranoid schizophrenia disorder. From 1995 through 2005, because of his condition, he was hospitalized or lived in various group homes. In 2005, still under medical supervision, Doe began working with job developer Cordell DeGraw at the Center of Vocational Alternatives (COVA) in Columbus, Ohio. Sometime in May 2005, DeGraw contacted Charles Snider, the supervisor of the Salvation Army’s Adult Rehabilitation Center (ARC) warehouse and arranged for Doe to be interviewed for a truck driver position with the Salvation Army.” When the plaintiff “arrived for the interview, Snider instructed Doe to fill out an application and . . . Doe responded that he could not work on Fridays because, “[he] had to see [his] doctor, and . . . pick up [his] medicine.” Snider asked Doe “what kind of medication” he took, and Doe responded, “psychotropic medicine.” According to Doe, at that point, Snider “stopped the interview and said that his insurance would not cover me.” Doe offered to obtain a letter from his doctor, but Snider refused to reconsider.” According to the Salvation Army, “Snider testified that he ended the interview saying, “[w]hat I’ll have to do is have this checked out,” meaning apparently, that he wanted to determine whether the ARC’s insurance policy would cover a driver using psychotropic medication. However, Snider never pursued an investigation into the insurance coverage and later hired nine other drivers.”

The plaintiff argued that he was covered by the Rehabilitation Act because he was a person with a record of an impairment which limits a major life activity. “Doe submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working.” While a person with only a record of a disability (in contrast to a present disability) would not require a reasonable accommodation, the Court determined that they were still protected from discrimination by the Rehabilitation Act.

The District Court determined that there was insufficient evidence that the Salvation Army was aware that Doe had a disability. However, the Court of Appeals noted that there was evidence that COVA informed the Salvation Army that “[w]e are an agency that works with people that have disabilities.” There was also evidence that the Salvation Army “was aware that COVA’s mission is to help individuals with disabilities and other challenges.

Nonetheless, the Rehabilitation Act only prohibits discrimination “solely” on the basis of the disability. “The Salvation Army argued, and the district court agreed, that Snider rejected Doe for safety concerns, not for reasons solely based on Doe’s disability. However, it was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, ‘I did not say flat out no,’ but rather, ‘I’ll have to check [the insurance] out.” As we now know, he did not do so.”

“An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. See Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000). The district court stated that “[c]ourts have unanimously held that an individual with a disability ‘cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.’” But in May 2005, Snider ended Doe’s interview not because he concluded that Doe’s employment as a driver would pose a risk to others, but because Snider “wasn’t going to take a chance” on Doe. The Rehabilitation Act’s implementing regulations state rather remarkably, to be sure, that potential employers may not ask questions “to determine whether the applicant is an individual with handicaps or the nature or severity of a handicap.” 24 C.F.R. § 8.13(a). Snider testified that he inquired as to what types of medications Doe was taking. . . . We think it supports, although it does not necessarily prove, Doe’s claim that the Salvation Army violated the Rehabilitation Act.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/073822p.pdf.

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.

Sixth Circuit: FMLA Does Not Cover Care For Adult Child With Temporary Impairment and Does Not Require Employers to Obtain Second Medical Opinion

On September 28, 2007, the federal Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer and dismissal of the FMLA claims of a former employee. Novak v. MetroHealth Medical Center, No. 06-3036 (6th Cir. 9/28/07). First, the Court noted that the employee could not prove that she suffered from a “serious health condition” covered by the FMLA because the medical certifications she had submitted to her employer were insufficient. Among other things, the physician who purportedly provided the incomplete certifications of the chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The court also held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. While the FMLA permits employers to obtain second medical opinions, it does not require them to do so.

The Court also rejected the plaintiff’s argument that she was entitled to FMLA leave to care for her 18-year daughter while she suffered from temporary post-partum depression. First, the court noted that the plaintiff had failed to provide any medical certification that her daughter was even temporarily disabled from taking care of herself:

“The FMLA authorizes leave to care for a child 18 years of age or older only if the child is suffering from a serious health condition and “incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12)(B). Notably, [Plaintiff] did not provide any evidence or medical certification that [her daughter] was in fact unable to care for herself; rather, the certification and [her daughter’s] testimony all related to [her daughter’s] difficulty in caring for her newborn child (i.e., [Plaintiff’s] grandchild). But the FMLA does not entitle an employee to leave in order to care for a grandchild.”

Second, the Court found that the FMLA only permitted leave when the adult child was “disabled” as governed by the ADA. However, the evidence showed that the daughter’s post-partum depression was neither severe nor long term, as required by the ADA to qualify as a covered disability:

“We conclude, based on our evaluation of all the relevant factors, that [Plaintiff’s] daughter, . . . was not substantially limited in any major life activities — such as the activity of caring for oneself — and therefore was not disabled for purposes of the FMLA. First, [Plaintiff] has not presented sufficient evidence for a jury to conclude that [her daughter’s] impairment was severe. . . . Second, the undisputed facts clearly show that [her daughter’s] condition lasted only a week or two. . . . Such a short-term restriction on a major life activity generally does not constitute a disability. See Hein, 232 F.3d at 487. Third, [Plaintiff] has not produced any evidence indicating that [her daughter’s] postpartum depression inflicted any permanent or long-term impact on her health. In fact, the record evidence is to the contrary, demonstrating that [her daughter] recovered in a short period of time, and giving no indication that she endured any long-term adverse effects. Because [Plaintiff] has not established that her adult daughter suffered from a disability, the FMLA does not authorize [Plaintiff’s] leave to care for her.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomiacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/07a0398p-06.pdf.