Same Time Next Year: Different Court Different Result on Disability Discrimination

Last month, the Eighth District Court of Appeals in Cuyahoga County reversed summary judgment in favor of a school district on a disability discrimination and retaliation claim brought by a terminated teacher. Johnson v. Cleveland City School Dist., 2011-Ohio-1917. In that case, the plaintiff teacher brought suit for a failure to accommodate her cervical myelopathy. In fact, she initially brought suit in federal court, which dismissed her federal claims on summary judgment . . . . . .twice . . . . after the Sixth Circuit once reversed. However, the federal court had declined to exercise jurisdiction over the state law claims (disability discrimination, breach of contract and infliction of emotional distress) and she filed those in state court while her federal appeal proceeded. When the district court granted summary judgment again, the school attempted to dismiss the state court action based on res judicata, but the appellate court was not having any of that.

According to the Court's opinion, the teacher's physician recommended certain accommodations of her disability so that she would not get worn out. These medical restrictions were honored by the school for a number of years. Then, according to the teacher, a new administrator decided that they would not be accommodated any longer and she had to return to teaching a regular class, which the teacher said she could not do. When a stalemate ensued, the teacher took a medical leave of absence and filed a Charge of Discrimination. When the Charge was dismissed, the school denied to continue her leave and she returned to work, but still would not perform regular teaching duties. Instead, she requested a fitness for duty examination, which resulted in the same medical limitations as before.

At this point, the parties do not agree on what happened next. The plaintiff asserted that she produced a guidance counselor certificate and said she could perform those duties. The school denied that she ever applied for a counselor position. The school refused to accommodate all of her restrictions, but offered her three teaching positions. The teacher said that she agreed to accept one, but the school said that she denied all three positions. The school then fired her.

The Court of Appeals found that there were disputed issues of material facts as to whether the teacher had a covered disability and been accommodated and whether her termination was in retaliation for exercising protected rights in seeking a reasonable accommodation and filing a Charge of Discrimination. Therefore the case was remanded for a jury trial.

The trial court determined that the physician's conclusory diagnosis that the teacher had a "disability" did not create a disputed issue of fact about substantial limitations of major life activities, but the Court of Appeals disagreed. Moreover, two other physicians agreed that plaintiff was disabled.

The trial court had found that the plaintiff was not qualified because her restrictions on speaking prevented her from maintaining control over a classroom. However, again, the Court of Appeals disagreed because, among other things, she had received "excellent" performance evaluations since the restrictions were put in place years earlier.

Finally, the retaliation claim was revived because there was evidence that the school provided knowingly false information in the termination letter when it claimed that the teacher had declined an offered position, but the human resources' employees notes stated otherwise (as did the plaintiff teacher).

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.

Montgomery County Appellate Court Rejects Perceived Disability Discrimination Claim Based on Prior Accommodations

Last week, the Montgomery County Court of Appeals in Dayton affirmed summary judgment for a public school, although on different grounds than the judgment granted by the trial court. In short, the Court of Appeals ruled that the Political Subdivision and Tort Liability Act (PSTLA) did not apply to bar claims for employment discrimination, but that the plaintiff failed to properly plead or prove a prima facie case for disability discrimination based on her alleged multi-chemical sensitivity allergies. Ogilbee v. Board of Education of Dayton Public Schools, 2010-Ohio-1913, 23432.

According to the Court, the plaintiff clerical assistant alleged that she suffered from multi-chemical sensitivity, which was an allergy to certain perfumes and fragrances which gave her migraine headaches and restricted her ability to breath, sleep, concentrate and walk. Her union refused to assist her when she claimed that her allergies were exacerbated by a new work assignment because it was a "personal problem." She asked HR to be relocated to an empty office or other space or even another building, but these suggestions were rejected as unreasonable. Instead, the school gave her an air purifier and a fan and arranged for a contractor to rearrange her work space. According to the School, she refused to use them without explanation. After she filed a Charge of Discrimination, the School entered into a negotiated settlement agreement and transferred her to another position in another building. The School again attempted to accommodate her by permitting her to annually explain to her co-workers her need for them to not wear perfume, but she believed that after a year that some staff purposely "doused" themselves in perfume and the principal began acting on her complaints less and less. By 2006, the principal would no longer permit her to make her annual announcement. When she arrived at work with a note from her physician indicating that she needed to work in a space free from perfumes and strong odors because they exacerbate her migraine headaches and she had exhausted her paid leave, the School responded shortly thereafter by placing her on a one-year unpaid medical leave of absence because her requested accommodation was unreasonable in that she worked "in a reception area at a public school with over 800 students, 100+ employees, and the public who visit the school on a daily basis. There is no way that a scent-free environment can be guaranteed." When the School refused to reinstate her the following year when there had been no change in her medical condition, she filed a lawsuit in state court alleging disability discrimination and harassment. The trial court found that the School had PSTLA immunity.

Generally, under the PSTLA, "political subdivisions are not liable in damages for injury, death, or loss caused by them in connection with the execution of their functions. See R.C. 2744.02(A)(1). The PSTLA however does not apply to claims by an employee that relate to any matter that "arises out of the employment relationship." R.C. 2744.09(B)." Mysteriously, the trial court concluded that an employment discrimination claim does not arise out of the employment relationship and is more akin to an intentional court. In light of contrary authority to the contrary, the appellate court had no difficulty finding otherwise.

As for her disability discrimination claim, the court construed her argument as applying on to a perceived disability claim and concluded that the plaintiff failed to prove that the School's HR Director perceived her allergy and migraine headaches to substantially limit any major life activities, including working. In particular, the Court rejected her argument that the School must have perceived her as disabled because it made several attempts to accommodate her allergy:

While lay people may think of an allergy as a disability, a "disability" in this context is, as we discussed above, a technical term with a very specific meaning. Also, [Plaintiff] makes much of the fact that [the HR Director], and others, tried, unsuccessfully, to accommodate her allergy, which she argues shows he thought she was disabled. But simply because an employer tries to make an employee's working-environment more comfortable by attempting to accommodate a particular physical characteristic does not mean that he thinks the employee has a "disability." As the statute makes clear, not every physical or mental impairment qualifies as a "disability." From the evidence, it appears that [the HR Director] considered [Plaintiff] to have an allergy, and he did all he thought reasonable to accommodate the allergy. No evidence suggests that [the HR Director] treated the allergy as severely limited her ability to work. [Plaintiff's] naked assertions about [the HR Director's] thoughts and motivations are not sufficient; she "'must do more than simply show that there is some metaphysical doubt as to the material facts.'"

The Court does not explain how the School's placement of the plaintiff on a one-year unpaid medical leave was merely a reaction to a non-disabling allergy or how such action by the School was insufficient evidence that it perceived her as substantially limited by her allergy. It also does not explain why there was not enough of a factual dispute for a jury to consider. Perhaps the plaintiff never made the argument in her brief. In any event, the court granted summary judgment for 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.

Franklin County Court of Appeals Affirms Dismissal of Age and Disability Claims Brought by Fire Fighter

Last week, the Franklin County Court of Appeals affirmed the dismissal of disability and age discrimination claims brought by a fire lieutenant who was passed over for a promotion to captain. Sheridan v. Jackson Twp. Div. Fire, 2009-Ohio-1267. In short, the court agreed that plaintiff’s foot/ankle impairment was not “substantially limiting” when it did not preclude him from performing his firefighting duties. The age discrimination claim was dismissed because the successful candidate was only seven years younger than the plaintiff and the law does not require the employer to promote the oldest candidate.

According to the court’s opinion, the plaintiff claimed to have a disability “based on the fact that he has undergone several foot/ankle surgeries. Although he stated that these medical problems prevent him from running, mowing the lawn, or walking long distances without pain, the fact remains that he can still perform the duties of his job with the fire department. . .. Mere difficulty in standing or walking is not sufficient to establish a substantial limitation on the major life activity of walking . . . Even moderate difficulty in walking may not establish a substantial impairment . . . . Because [the plaintiff] is able to perform his occupational duties—fighting fires—it is difficult to conclude that he has a disability of the substantially limiting variety. This precludes relief under the ADA.”

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-1267.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. 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.