Sixth Circuit Finds Excellent Customer Service Requirements Doom ADA Claim

 

Last month, the Sixth Circuit affirmed an employer’s summary judgment on claims for disability discrimination and failure to accommodate when, after several options failed, it transferred the plaintiff delivery driver to an open overnight warehouse non-customer facing position after receiving repeated complaints about the plaintiff’s profane and racists outbursts caused by his disability.  Cooper v. Dolgencorp, LLC, No.  23-5397 (6^th Cir. Feb. 15, 2024).   The Court noted that the plaintiff stipulated that excellent customer service was an essential job function and that the plaintiff’s own physician indicated that he required an accommodation (i.e., a constant co-worker to handle the customer serving functions on his route).  The Court noted that “the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts.” Further, the plaintiff could not identify any open delivery positions which did not require excellent customer service.   Finally, the Court rejected his constructive discharge claim because the employer tried most of his accommodation requests, including medical leave, a seasonal driver-helper and was not deliberately indifferent.  “Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,” . . . that is not the case here.”

According to the Court’s opinion, the plaintiff delivery driver would regularly exhibit ticks and utter profane sexist and racist outbursts while delivery cola and setting up displays inside customer stores.  This lead to complaints about him from the customers and their customers and employees.   His job description required that he provide excellent customer service.   The plaintiff was granted several medical leaves to adjust his medication and to attempt different therapies.  He was also provided with a seasonal helper who could handle the customer-facing roles, but there were still complaints.  His physician indicated that he required a helper in order to perform his customer-facing duties.  Although the plaintiff requested to be transferred to other routes without customer facing duties, there were no vacancies in those routes and one had changed from non-customer facing to customer facing.  As a result, he was offered a vacant overnight warehouse position (with a cut in pay) where he would not have to interact and offend customers.   After working there for a few months, he resigned -- indicating that there were no hard feelings -- because he found another delivery driver job with customer-facing duties where the customers were not offended.    He then filed suit alleging that his warehouse transfer was discriminatory, that he could perform his job without a reasonable accommodation, and that he was constructively discharged. 

The Court agreed that excellent customer service was an essential job function.  First, it was noted in his job description.  Second, the plaintiff stipulated that excellent customer service was an essential job function.

A reasonable jury could not find that [the plaintiff] could provide excellent customer service to [the employer’s] customers in his role as a delivery merchandiser without an accommodation. Of particular importance, [his] own doctor noted that [he] needed an accommodation to perform his job duties. When a plaintiff’s own doctor—not merely the defendant employer— concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation .  . .  [His] disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of [the employer’s] customers. At various times during his employment, [its] customers complained about the language he used while delivering [its]  products. In fact, [he] acknowledges many of the customer complaints made against him in his amended complaint.

His need for a reasonable accommodation was further demonstrated by the medical leaves that he took and his request for a helper to handle the customer-facing aspects of his duties.

The Court rejected his argument that his comments were generally indecipherable because enough of them had been understood by complaining customers.  The Court also rejected his argument that his involuntary sexist and racist comments were not frequent enough to justify the transfer, thus creating

 

a factual dispute remains about the number of complaints customers made against him. It is undisputed, however, that [he] offended [the employer’s] customers at least twice with his use of racist and profane language, and the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts. The specific number of complaints made against [him] is also immaterial because [he] contends that his verbal tics using inappropriate language remained consistent throughout his employment.

The Court also rejected his failure to accommodate claim. The plaintiff failed to identify any open delivery routes without customer facing duties.  While he contended that the Dollywood route had been non-customer facing when he previously drove it, he produced no evidence to dispute that the customer’s system had since changed, making it also a customer-facing route.

“Where the requested accommodation is a job transfer, ‘employers have a duty to locate suitable positions for’ employees with disabilities.”  . . . Still, “this duty does not require employers ‘to create new jobs [or] displace existing employees from their positions . . . to accommodate a disabled individual.’”  . . .  Nor does a reasonable accommodation require employers to eliminate or reallocate an essential job function.  . . . A “reasonable accommodation” under the ADA can include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

                         . . . .

However, “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”  . . .. And as we explained above, [he] could not perform the delivery merchandiser position without an accommodation, and he failed to propose an objectively reasonable accommodation. Thus, [the employer’s] accommodation, via transfer to a warehouse position, was reasonable.

Finally, the Court rejected his constructive discharge claim.

To establish a claim for constructive discharge, a plaintiff must prove: (1) the employer deliberately created working conditions that a reasonable person would perceive as intolerable, (2) the employer did so to force the employee to quit, and (3) the employee quit.  . . . . Constructive[1]discharge claims require courts to examine “both the employer’s intent and the employee’s objective feelings.”  . . .  [His] claim fails at the second element—he cannot show that [his employer] deliberately created intolerable working conditions with the intention of forcing him to quit.

Each time [he] requested an accommodation from [his employer], the company provided one. For example, after the incident at the Dollar General store in early 2018, [it] adjusted [his] route so that he would not have to service Dollar General stores. And after Cooper submitted a request to be put on a truck with another driver in August 2018, [it] temporarily allowed him to work as a driver helper. Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,”  . . . that is not the case here.

In fact, [he] admits [it] provided him with the warehouse position as an accommodation. Of course, he preferred a different accommodation. But the evidence demonstrates that [it] offered [him] a vacant position that was as close as [it] could get to his delivery merchandiser job. What is more, [he] admitted that when he resigned, he told his supervisor that he held nothing against [the employer].

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.

 

Requesting a Reasonable Accommodation is Not a Protected Activity Under Ohio Retaliation Law

The Crawford County Court of Appeals last month affirmed an employer’s summary judgment on claims asserting that the plaintiff had been terminated for requesting a reasonable accommodation.  Hall v. Crawford County Job and Family Services, No., 2022-Ohio-1358.  The Court held that requesting a reasonable accommodation is not a protected activity under Ohio law which can support a retaliation claim.  Rather, denying a reasonable accommodation may be unlawful discrimination, but the request itself is not a protected activity for purposes of a retaliation claim.  Further, the Court found that the plaintiff had voluntarily disclosed her disability to her employer and it was justified in requesting a fitness-for-duty examination when she claimed her disability adversely affected her job performance and submitted an FMLA request. 

According to the Court’s opinion, the plaintiff voluntarily disclosed to her supervisor that she suffered from MS which sometimes made her mind foggy and could impair her job performance.    She brought it up again during a March 20 pre-disciplinary conference and was recommended to apply for FMLA leave.  Although she said she objected and did not require it, she submitted FMLA paperwork on March 26, which did not mention her MS diagnosis.  She was also requested to submit to a fitness-for-duty examination.   She was given a three-day suspension and ultimately terminated.  She filed suit, claiming retaliation and improper medical inquiries.  The trial court found that she had been provided with a reasonable accommodation, could not prove causation, etc.

The plaintiff alleged that the employer’s request for a fitness for duty examination was an improper medical inquiry.  However, the court found that the plaintiff voluntarily disclosed her MS disability and claimed that it could be impairing her job performance.  Moreover, once she had requested FMLA leave and a reasonable accommodation, the employer was entitled to request information about the nature and extent of her alleged disability.

The plaintiff alleged that she was terminated in retaliation for requesting a reasonable accommodation.    The court found that requesting a reasonable accommodation is not a protected activity under Ohio Revised Code Chapter 4112 which could support a retaliation claim.  While terminating an employee for requesting a reasonable accommodation might be unlawful discrimination, it does not fit within the types of activities that constitute protected conduct under Ohio law, such as opposing discrimination, testifying, participating in an investigation, etc.

The plaintiff denied that she had attempted to pursue a failure-to-accommodate claim, and objected the trial court granting summary judgment to the employer as though she had done so.  The appellate court refused to address this argument. 

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. 

Franklin County Court of Appeals Reverses Employer's Summary Judgment on "Regarded As" Disability Discrimination Claim.

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. 

Court Rejects Disability Discrimination Claim and Plaintiff’s Unsupported Allegations

The Summit County Court of Appeals last month affirmed summary judgment for a school district on a disability discrimination claim brought by a former food services manager. Pilato v. Nordonia Hills City Schools Bd. of Edn., 2019-Ohio-3085.  The manager contended that she had been required to work during her medical leave, but the Court ruled that this did not create a jury question because emails that she sent before and during her medical leave reflected that she had voluntarily continued to work without being directed to do so.  Further, the Court concluded that she failed to create a jury question about the reason for her termination when the evidence was so clear and “one-sided” as to her fault despite her self-serving denial that there was nothing for the jury to decide.  In other words, the court refused to let the plaintiff’s self-serving and unsupported allegations contradict otherwise overwhelming evidence in order to avoid summary judgment.  


According to the Court’s opinion, the plaintiff had worked for many years without any disciplinary history.  Because she required knee surgery, she requested and was approved for 10 days off work at the end of the school year.  Before she left, she and her manager began planning for the next school year and indicated that they would touch base again after her surgery.  During her absence, a food order that she had placed was cancelled using her secret username and password from a non-school computer.  Further, employee payroll records were changed from her home computer.  Moreover, employees complained about her bullying them.  When confronted, she denied the allegations opted to resign her employment rather than accept a demotion and transfer or being fired, but then brought sue alleging disability discrimination.  


The Court found that she had not been denied a reasonable accommodation when she continued to work during her medical leave.  She had applied and been approved for medical leave.  Although she complained on appeal that she had been directed to address the food order cancellation issue while on leave, she had waived by issue by not raising it before the trial court.   While she argued in general that she had been expected to work from home while on leave, her supervisor denied this and her own emails indicated that she had not been asked to work.  The Court ultimately would not let her contradict her own emails with her deposition testimony in order to create a disputed issue of fact.  It found that the evidence was “so one-sided” that the employer was entitled to judgment as a matter of law.


The Court rejected her argument that the school fired her because it had required her to work during her medical leave. Instead, GFS had provided records showing that the food order had been cancelled using her secret username and password from a non-school computer and she admitted to having logged onto the GFS website that same evening.  Aside from her self-serving denial, the evidence was so overwhelming and “one-sided” that she was guilty of the offense that there was nothing for the jury to decide.  Indeed, it was undisputed that the school had already been working with her to plan for the next school year before she went on leave and the only intervening event was the misconduct alleged following her surgery.


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.

Sixth Circuit Blames Employee’s Physician For Year Delay In Reinstatement Following Stroke and Dismisses Disability Discrimination Claim

On Tuesday, the Sixth Circuit affirmed the summary judgment dismissal of an Ohio disability discrimination claim brought by a current employee who wanted to return to work following rehabilitation of a severe stroke before the company’s physician agreed.  Stanley v. BP Products North America, Inc., No. 18-3303 (6^th Cir. 12-4-18).   Although the plaintiff had been released to return to work without restrictions by his physician’s office in August 2011, the company’s physician disagreed after conducting his own medical assessment and the plaintiff’s physician provided a signed note in November 2011 agreeing with the company’s physician.  The plaintiff did not provide a contrary note from his personal physician releasing him without restrictions until July 2012 and he was returned to work the following month when the company’s physician conducted another assessment and agreed.  The Court rejected the plaintiff’s argument that the employer could be found to have discriminated against him without knowledge that his own physician’s November 2011 was flawed and not based on any medical assessment.  Employers are generally entitled to accept an employee's doctor’s restrictions at face value.

According to the Court’s opinion, the plaintiff suffered a severe stroke in November 2010 and collected short-term disability.  However, after his STD was exhausted and he completed his rehabilitation, his application for long term disability was denied after his personal physician – the villain in this story --  failed to submit some required documentation.  His physician told him that he would release him to return to work if he passed a driving assessment, which he did.  He was then examined by a Certified Nurse Practitioner which found him to be physically fit as of August 2011, but did not conduct a cognitive assessment.  At that point, the employer’s collective bargaining agreement provided that he had to pass a physical examination by the company’s physician.   The Company’s physician agreed with the CNP that the plaintiff had good strength and reflexes, but had issues with balance, fine motor skills, coordination and some cognitive skills.  For instance, he could not stand long on one leg, had difficulty with heel to toe walking and could not subtract 7 from 93.   Concerned, the company’s physician studied the plaintiff’s medical file and determined that his physician had failed to conduct certain necessary tests or to understand the requirements of the plaintiff’s job.  The company’s physician then restricted the plaintiff to office work, for which there were no open positions.

The bargaining agreement then required the two physicians to consult with each other about their disagreement and, if not resolved, select a specialist to resolve the dispute.   The company’s physician faxed information about the issue to the plaintiff’s physician and called him in October and November without success.   Apparently, the plaintiff’s physician never reviewed faxes, or returned calls and delegated these issues to his office staff.  The union then pursued the issue with HR, who called the plaintiff’s physician office to complain about the lack of response, pointing out that the plaintiff was about to have his utilities shut off when he was earning neither wages nor LTD. At that point, the plaintiff’s physician provided a signed note restricting plaintiff’s return to work and suggesting LTD.  The plaintiff was not provided with a copy.  However, he was awarded LTD, which he rejected because he contended that he was able to return to work in August.

In March 2012, the plaintiff’s physician signed a second note saying that he only signed the first note because of information about the plaintiff’s finances and indicated that the plaintiff could immediately return to work without restrictions.  However, this second note was not provided to the employer until July 2012.  There is no indication in the record whether the plaintiff’s physician conducted any medical assessment in either November 2011 or March 2012 and the physician denied recalling signing either note.  The plaintiff was evaluated again by the company’s physician in August (in the presence of an assistant and union representative) and passed all of the physical and cognitive tests.  He was immediately returned to work and remained there when the lawsuit was filed challenging the year delay in reinstating him to work.

The plaintiff argued that the employer should have realized that his physician’s November 2011 note was flawed and not based on any medical assessment or review of his medical file.  However, the Court found that employers are generally entitled to rely on a doctor’s restrictions at face value.  There was no evidence presented that the employer knew – or should have known -- that the plaintiff’s physician was simply providing a note as requested earlier in the day by HR affirming the restrictions so that the plaintiff could collect LTD.

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. 

Employer That Relied on Work Restrictions Imposed By Its Own Physician Loses Summary Judgment on Employee’s Regarded-as- Disabled Wrongful Discharge Claim

Last week, the Ohio Court of Appeals reversed an employer’s summary judgment on a claim that it fired an injured employee whom it regarded as disabled.  Carnahan v. Morton Bldgs. Inc., 2015-Ohio-3528.  The Court applied the 2008 ADA Amendments Act in construing Ohio law – in that it only required proof that the employer regarded the employee as impaired and did require that the employer regarded the employee as substantially limited by that impairment.  The employer admitted that it refused to reinstate the plaintiff after he was released to return to work without restrictions by his own physician and that it instead relied on its own physician’s speculation of work restrictions that would be prudent in light of possible impairments the plaintiff could suffer from his injury.  In other words, the employer required the plaintiff to submit to a fitness evaluation by its own specialist, who found nothing abnormal about the plaintiff’s mental or physical condition, but felt that certain work restrictions would be prudent.  The employer’s practice was to only reinstate workers released without any restrictions for non-work related injuries.  Therefore, it replaced the plaintiff as foreman and terminated his employment after receiving its physician’s recommended restrictions – thus regarding the plaintiff as disabled.

According to the Court’s opinion, the plaintiff suffered a traumatic brain injury and was off work for a period of months.  His family physician released him to return to work on a transitional part-time schedule for two weeks, following by a complete release to return to work without any restrictions.  The employer’s practice was never to reinstate to an employee with any work restrictions unless he was injured in a work-related accident (i.e., covered by workers compensation).  When the plaintiff spoke with co-workers, a few employees observed that he seemed to have balance issues, a changed demeanor and trouble with his memory in adding numbers.  Therefore, the employer requested that he be examined by a neurosurgeon of its choosing before he could return to work.  That neurologist did not evaluate his physical abilities, but submitted the plaintiff to a CT scan, an EEG and neurological examination, which revealed no abnormalities physically or mentally.  Nonetheless, the neurologist recommended a number of work restrictions, none of which the employer was willing to consider.  The employer claimed to have terminated him out of safety concerns and his inability to perform his job.  It did not consider assigning him to a light duty job, which was available.

The plaintiff denied that his brain injury substantially limited any of his major life activities after his five-month recovery.  In fact, he had obtained another job as a forklift driver and had passed a physical fitness examination by his new employer.  Therefore, he could not proceed on a failure-of-accommodation or other disability discrimination theory.  The court also refused to consider that he was regarded as disabled simply because the employer requested its own fitness-for-duty evaluation by a neurosurgeon.

The court had little difficulty finding that the employer regarded the plaintiff as disabled and that its neurosurgeon’s report could not protect it from a disability discrimination claim:

Based upon the type of injury suffered by [the plaintiff], [the employer’s neurosurgeon] was concerned about possible neurological impairments and listed several limits on Carnahan’s abilities that could occur as a result of the neurological impairment. These limits were based upon possible issues that [the plaintiff] might have as there were no indications of issues at that time and he actually passed all of the tests he was given. (italics added for emphasis).

In particular, the neurosurgeon’s report to the employer provided as follows:

Currently, the patient is neurologically stable. * * * The patient has no memory problems. * * * The patient indicated that he is participating in day-to-day activities without any significant difficulties.

OPINION: * * * Currently, the patient’s stamina, flexibility, strength, coordination, equilibrium, dexterity, vision, hearing, mobility, and effort are fairly within normal range. * * * Based on my evaluation on January 24, 2012, [the patient’s] cognitive ability, organization, and recall skills are within normal limits. I do not see any cognitive deficiency currently.

Nonetheless, he recommended the following restrictions on the plaintiff’s return to work:

a. To avoid working above floor level.

b. To avoid any head injuries.

c. To avoid any falls.

d. Avoid working at heights and climbing ladders.

e. To avoid irregular and extended work hours and overtime.

f. To avoid sleep deprivation.

g. To avoid exposure to extreme temperatures for more than 50% of his work time.

h. To avoid climbing ladders to hang trusses and install roofing.

There was also little dispute that the plaintiff suffered an adverse action from the employer’s incorrect perception about his brain injury.  He was demoted and terminated because of the work restrictions recommended by its own neurosurgeon.

Finally, the plaintiff could prove that he was qualified and could physically and mentally perform his job.  He had been released to return to work without any work restrictions by his own physician.  In addition, he had obtained and was performing similar employment for another company after passing a fitness for duty examination.

In concurring, one judge noted that the neurosurgeon’s report could not create a material issue of fact about the plaintiff having a substantial limiting impairment because it was based on possible or future concerns instead of his actual and current physical and mental state.

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.

Court Reinstates Lawsuit Against Individual Manager for Disability Discrimination

Yesterday, the Ohio Court of Appeals reversed a summary judgment dismissing an employee’s claim for disability discrimination against his former manager.  Price v. Carter Lumber Co., 2015-Ohio-1522.   This case only involved state law claims against the manager because the employer had apparently earlier prevailed on an ADA claim in federal court.  The Court found that there was a disputed issue of fact as to whether the plaintiff could perform the essential functions of his position with a reasonable accommodation.  While the plaintiff admittedly could not satisfy the employer’s lifting requirement, there were disputed issues as to whether that lifting requirement was an essential function of the job, whether the plaintiff could be transferred to a non-lifting position or whether the lifting requirement could be accommodated.  The employer did not utilize written job descriptions or performance evaluations to substantiate its arguments.  The employer denied telling the plaintiff that he was being laid off in January 2003 and would never be rehired because of his physical impairments, therefore, the plaintiff was relieved of requesting any specific accommodation.   Nonetheless, the Court affirmed dismissal of the emotional distress claim.

According to the Court’s lengthy opinion, the plaintiff was hired in 1998 as a yard worker at the lumber company.  When he began experiencing vision difficulties in Spring 2002, his driving duties were eliminated.  When he was then placed on lifting restrictions that Fall, he was transferred to a retail counter position part of the time and yard work (without heavy lifting) part of the time.  The employer claims that he had very poor customer and communication skills and never mastered the cash register, etc.  However, none of these performance issues were documented.  The employer regularly laid off employees during the slow winter months, but had previously recalled the plaintiff without requiring him to re-apply.  The plaintiff suffered kidney failure in December 2002 and was released to return to work in January 2003 with heavy lifting restrictions and a regular dialysis schedule.  He was then informed that he was being laid off because of economic conditions.  After some period of time had passed, the defendant manager finally admitted that he was not being recalled and the plaintiff testified that the manager specifically mentioned his dialysis schedule.

The manager contended that heavy lifting was an essential job function of a yard worker, although there was contrary testimony and no job description.   In addition, the manager failed to list heavy lifting as a job requirement when completing the EEOC’s questionnaire.  While workers may help each other out with heavy items, that was not always possible if they were busy with other customers. He also testified that sales employees sometimes also have to lift heavy items and need to  have an additional customer service skill set, which the plaintiff lacked.  He and another witness testified that the plaintiff needed to be repeatedly coached on his communication skills.  The plaintiff was laid off during the slow season and told him to reapply in the future.  The manager denied telling the plaintiff that he would be recalled to work when the economy improved in 2003.

The Court refused to hold the plaintiff to his SSI application where he claimed to be disabled because of his lifting restrictions because the SSI application does not consider reasonable accommodations that could be provided.  

“[n]either application for nor receipt of social security disability benefits is by itself conclusive evidence that an individual is completely incapable of working.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir.2014). “[O]ne may, in fact, be totally disabled under Social Security Disability Insurance (“SSDI”) application guidelines, but nevertheless be capable of performing the essential functions of one’s job. This is so because the focus of SSDI is distinct and does not consider, for example, the effect of a reasonable accommodation on the ability to do work.”

The plaintiff produced evidence of a number of accommodations – “such as rollers, dollies, sliding boards, flatbed carts, and handheld scanners that allow for pricing items without removing them from a cart or dolly”  that might have helped him perform his job.  Moreover, he showed that he had worked for several months with his duties split between yard work and inside sales while he had a similar lifting restriction. 

The Court also found a factual dispute to exists as to whether repeated heavy lifting was an essential function of a sales position.  Similarly, a factual dispute existed as to whether the plaintiff could perform either the yard worker or sales position with a reasonable accommodation.  There were no job descriptions and was conflicting testimony about the necessity of heavy lifting on those jobs.

In addition, the Court also found that the plaintiff was not required to request an accommodation because he had never been informed that his employment was being terminated on account of his physical limitations.  Instead, his termination was attributed to “seasonal cutbacks.”  When the plaintiff visited the store several times after his termination to see if he could return, he was not told about concerns with his physical limitations.  There was no discussion about any possible accommodations or limitations.  Finally, the plaintiff claimed that he was told that he was told the real issue was his dialysis schedule.

Nonetheless, the Court affirmed the dismissal of his emotional distress claim (i.e., intentional infliction of emotional distress).   The plaintiff felt distressed that his manager mislead him about his eligibility to return to work.

Although Mr. Price argues that Mr. Collins told him “numerous lies * * * about rehiring him in the Spring,” he failed to present evidence of any affirmative statements that Mr. Collins made in which Mr. Collins actually promised to rehire him. At best, Mr. Price set forth evidence that Mr. Collins implied he would have a future with the company. Even viewing that evidence in a light most favorable to Mr. Price, however, we cannot agree that it created a genuine issue of material fact for trial. Any false sense of hope that Mr. Collins might have given to Mr. Price and his wife at a time when they were mentally and financially vulnerable was morally reprehensible. We cannot say, however, that it was legally actionable.

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 Appeals Court Denies Firefighter’s Disability Discrimination Claim

Earlier this month, the Ohio Court of Appeals affirmed a city employer’s summary judgment on a disability discrimination claim brought by a former Battalion Chief with Parkinson’s.  Yost v. Sandusky, 2015-Ohio-805.    Importantly, this case involved only the Ohio Civil Rights Act and not the ADA.   The Court concluded that the progressive nature of Parkinson’s and the opinions of the medical evaluations justified the City requesting multiple medical examinations and eventually removing the plaintiff from duty when medical examinations revealed that he could no longer safely perform his duties.

In 2005, the plaintiff informed the Chief of his Parkinson’s diagnosis and that he did not require any restrictions or accommodations.  Thereafter, his supervisor, the assistant chief, conducted internet research and in 2008 reported concerns about the plaintiff’s abilities to the Chief relating to his gait, fatigue, forgetfulness and increased hand tremors.  The plaintiff was requested to submit to a number of medical examinations to determine his fitness for duty.   His neurologist released him to work without any restrictions, but noted that his abilities might fluctuate.

Six months later, the plaintiff was again requested to be evaluated due to perceptions that his condition had deteriorated.  This time, he was evaluated by a physician chosen by the employer.  This physician put only two restrictions on the plaintiff (to avoid fall hazards and confined spaces), but also recommended further evaluation by a Cleveland Clinic neurologist (who released the plaintiff to work without any restrictions).  Because the prior restrictions were essential job functions, he was confined to light duty or paid sick leave pending his release to return to work.   He could not earn overtime compensation while he was medically restricted.

In the meantime, the City elected to abolish the Battalion Chief position and demote the two incumbents to Captain or give them the option to retire.  The plaintiff accepted the demotion, but unsuccessfully appealed the abolishment of his position.   Ten months after being reinstated to work, he did not pass his annual fitness for duty examination in May 2010 by the employer’s physician.  In particular, the doctor concluded that the plaintiff

was unable to perform the essential functions of performing fire-fighting tasks including wearing a breathing apparatus, climbing six or more flights of stairs, wearing heavy, insulated protective gear, searching, finding and rescue dragging, dragging water-filled hoses, climbing ladders and operating from heights, and unpredictable physical  exertion.

 The Cleveland Clinic neurologist agreed with this conclusion.  Accordingly, the plaintiff utilized his accrued sick leave until his retirement in 2011.

The plaintiff claimed that he suffered adverse employment actions because his employer perceived him as disabled when he was able to perform his job.  In particular, he was placed on light duty and leave twice, denied overtime, and subjected to a number of physical examinations over a two year period.  The City countered that his job required him to demonstrate “the ability to work under pressure or in dangerous situations, to keep physically fit, to use fire-fighting equipment,  . . . “ and other physical demands, such as ““climbing, balancing, stooping, kneeling, crouching, crawling,reaching, handling, seeing, hearing, [and] smelling.”  The Court concluded that the City was justified in relying on the medical professionals it retained in evaluating the plaintiff’s abilities.

In addition, the Court placed great reliance on the discussion of Parkinson’s in the National Fire Protection Association guidelines:

Parkinson’s and other diseases with functionally significant tremor or abnormal gait or balance compromise the member’s ability to safely perform essential job tasks 1, 2, 4, 6, 7, 8, and 9, and the physician shall report the applicable job limitations to the fire department. (Emphasis added.)

The Court concluded that the City’s requests for medical examinations and ultimately removing him from duty was reasonable in light of his condition and the medical evaluations:

Reviewing the chain of events, including his placement on leave and eventual retirement, we cannot find that appellant has created a prima facie showing of “regarded as disabled” disability discrimination. As noted by appellant’s neurologist, Dr. Leslie, in November 2008, “fluctuations in his abilities may fluctuate” and the disorder is  progressive in nature. It was entirely reasonable to find changes in appellant’s abilities within a span of six months to a year. This also supported a close monitoring of appellant’s functioning, including physical examinations. Appellant’s first assignment of error is not well-taken.

The Court also rejected the plaintiff's retaliation claim on the grounds that the City's actions were justified and another court had upheld the abolishment of his position (and that of a non-disabled Battalion Chief) as justified by economic conditions.

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.

The Different World of Public Sector Employment When Plaintiff’s Retirement After His Termination Results in Dismissal of Discrimination Lawsuit

Last week, the Hamilton County Court of Appeals affirmed judgment on the pleadings for a public employer on a disability discrimination claim on the basis that the plaintiff could not prove an adverse employment action or constructive termination when he admittedly retired during the pendency of a civil service commission appeal of his termination in order to preserve his retirement benefits. Daudistel v. Village of Silverton, 2014-Ohio-5731.  In this case, the plaintiff had been employed as the Village Police Chief when he required time off from work to combat cancer and was faced with repeated efforts by the City Manager to reduce and terminate his employment upon his return. (The City Council rejected each of the City Manager’s efforts).  Nonetheless, after the plaintiff was eventually placed on administrative leave and terminated, he appealed to the Civil Service Commission.  The Commission has a local rule which will dismiss any charges of misconduct if the employee resigns his employment before the Commission rules on the propriety of the discharge.    The plaintiff retired during the pendency of his civil service appeal, which was then dismissed by the Commission and affirmed on appeal by the common pleas court. The plaintiff then brought a lawsuit alleging disability discrimination and harassment, which was dismissed without opinion after the employer sought judgment on the pleadings.  The Court of Appeals affirmed on the basis that the plaintiff’s retirement was voluntary and, therefore, could not be an adverse employment action.  The Court rejected his arguments that he was constructively terminated (i.e., forced to retire) by the City Manager’s efforts to terminate his employment and rejected the employer’s argument that the prior civil service appeal constituted either res judicata or collateral estoppel.

The Court concluded that the plaintiff had not been actually terminated because his retirement converted the City Manager’s attempt to discharge him into a resignation.  It similarly rejected his argument that the prior attempts to terminate him qualified as adverse employment actions or harassment because they had been rejected by the City Council.   As for constructive discharge, the Court found that the plaintiff’s decision to retire – while opposing the decision to discharge him before the Civil Service Commission – had been entirely voluntary because he could have chosen to continue his civil service appeal instead of retiring.

 

“The test for constructive discharge “is whether the employer’s actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.” . . . . 

The effect of Rule 14.01, as applied to Daudistel, and as he well knew, was to convert Daudistel’s termination into a resignation and to protect his retirement benefits. Daudistel elected to resign, even though  he had the opportunity to contest his firing, and, thus, he cannot now claim that the Village wrongfully terminated him—actually or constructively.

 

This decision is surprising because a private sector employer would not be able to force an employee to choose between collecting retirement benefits (which the employee was otherwise qualified to receive) and pursuing a claim for constructive discharge or challenging an allegedly discriminatory employment termination.   A court faced with similar facts in the private sector would have considered whether the employer’s actions and the plaintiff’s termination created an intolerable working environment instead of giving precedence to a local civil service rule over a state or federal law.   There also would have been consideration of the amount of time the plaintiff lacked an income due to the employer’s actions.   It is because of this that employers enter into settlement agreements with plaintiffs to convert terminations to resignations in exchange for the dismissal of the litigation.  If private sector employers could avoid discrimination litigation simply by imposing their own rules about converting terminations to resignations when elderly employees collect retirement benefits, there would be far fewer lawsuits.

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.

Ohio Court of Appeals Rejects "Regarded As" Disabled Claim Supported Only by Knowledge of Single Hospitalization

Last week, the Cuyahoga County Court of Appeals affirmed summary judgment in favor of an employer on the plaintiff’s claims that she had been transferred and then terminated because the employer perceived her as an alcoholic.  Field v. MedLab Ohio, Inc., 2012-Ohio-5068.  The Court agreed that the plaintiff had been transferred on account of poor performance – particularly poor communication and organizational skills – prior to the employer learning that she had any medical problems.  

 According to the Court’s opinion, there were several examples of the plaintiff’s failure to timely return calls or visit clients who indicated that they would take their business elsewhere.   Indeed, her position had been offered to and accepted by another employee earlier in the day when the plaintiff was hospitalized.  Further, she had never indicated to anyone that she had a problem with alcohol.  At worse, she had indicated later on the day that her position was given to a co-worker that she was having a “nervous breakdown.”  When she returned to work, the employer informed her that she was being transferred to a smaller and less stressful sales territory without any change in salary.  She admitted that she had never mentioned a problem with alcohol to her employer and had no facts to show any unlawful discrimination.  Instead, she brought the lawsuit because she subjectively felt that she was being treated differently after her hospitalization.  She was fired after losing yet another client.  The Court concluded that “knowledge of a single hospitalization is not knowledge of a disability  . . . . General knowledge about an employee’s condition and medical treatment, without more, is not enough for a “regarded as” claim to survive summary judgment.”

Interestingly, while the Court indicates that it relied in part on the federal ADA (and quotes the ADAA) , it also cited to pre-ADAA law to reject some of the plaintiff’s allegations.  For instance, the Court cited to the newish ADAA definition of being “regarded as” disabled and only requiring that the employee be regarded as having a physical impairment regardless of whether that impairment is perceived to also limit a major life activity. ¶10.  Yet, the court also cited to the Supreme Court’s Sutton decision as requiring that “the employer’s negative perception must encompass a broad class of jobs.” ¶11.  It also rejected the plaintiff’s argument that she was perceived as unable to handle a broad range of jobs. ¶30.   Moreover, the court rejected the plaintiff’s argument that her inability to handle stress was a mental impairment. ¶27.

Stress, however, is not expressly identified as a physical or mental impairment under R.C. 4112.01. Moreover, this isolated statement does not create a genuine issue of material fact that MedLab regarded her as disabled because of a “mental disorder related to alcoholism.”

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.