At the end of last month, a unanimous Montgomery County
Court of Appeals affirmed a $250,000 jury verdict in favor of a home health
care nurse who had been terminated in July 2011 because she had been prescribed
and was wearing a fentanyl patch to cope with pain. Cavins
v. S&B Health Care, Inc., 2015-Ohio-4119. The court
rejected the employer’s challenge to the trial court’s failure to bi-furcate
the trial on punitive damages because that alleged error had been waived and
was harmless when the jury did not award punitive damages. It also found that the jury’s decision was
supported by sufficient evidence. The
Court found that there was clear evidence that the employer viewed her as being
disabled by a drug addiction because it disciplined and suspended her for
wearing the patch pending a release from her physician, told her that they
perceived her wearing a pain patch as a liability and two executives mentioned
it in connection with her termination decision.
With such direct evidence of discrimination, she was not required to
prove pretext, but had done so. The employer
could not rely on an “honest belief” defense when it conducted no investigation
of the supposed HIPAA violation leading to her termination. Similarly, the jury could disbelieve the
employer based on its disparate treatment of the plaintiff in disciplinary
warnings which were also not supported by its written policies. The employer also failed to prove an
accommodation constituted an undue hardship or a direct threat. The court refused to find judicial estoppel
from the plaintiff’s pursuit of a workers’ compensation claim and similarly
refused to deduct her workers’ compensation recovery from her back or front pay
award based on an application of the collateral source rule to deter
discriminatory employers. Finally, the
court found the plaintiff could recover emotional distress damages without
expert testimony or evidence of a physical injury.
Background. According to the court’s lengthy opinion
(which necessarily construed the facts in the prevailing plaintiff’s favor),
the plaintiff had received above average performance evaluations in the two
years prior to her termination. Her
evaluations and the company’s policy manual required that she turn in reports
on a weekly basis. However, the evaluation had a handwritten “daily” inserted,
which the plaintiff implied was done after her termination. Her lowest scores in her performance
evaluations concerned the inconsistent timeliness of her documentation. In late 2010, she filed a workers
compensation claim based on a deterioration of her arms and wrists from patient
charting and the company ultimately arranged for a voice-activated computer to
assist with her documentation. Her
supervisor sent her a holiday card to get some rest and not burn out. While normal full-time employment was 20-25
patients/week, she generally had a much heavier workload, covering for other
employees and working every holiday since she was hired. For example, she saw 13 patients on July 4
shortly before she was fired. In early
January, her car was hit from behind while she was travelling to see a patient. Although she was in pain, she continued to
work because she could not afford to take time off. In late May, she was given a written warning
for untimely documentation and was reminded in writing that her documentation
was due at 8 a.m. on Monday mornings (i.e., weekly). She responded that she would try harder, but
was in pain. On June 2, she was involved in another car accident while her
daughter was driving. After seeing to
her daughter’s broken arm, she went to a different hospital the next day and
claimed to have notified her employer (which denied knowing about this second
accident).
On July 1, the plaintiff was prescribed a fentanyl patch for
her pain. There were no complaints about
her performance after she began wearing the patch. She requested and received approval to take
July 8 off work for her birthday. She
subsequently emailed her supervisor that she had found others to cover for her
on July 9 and 10 as well. In the
interim, a co-worker notified a supervisor that the plaintiff sounded impaired
on the telephone and admitted to wearing a morphine patch. This inaccurate information was relayed to a
vice president, Human Resources, and the company’s lawyer. The following day, another employee also
claimed that she had slurred speech, and the plaintiff later explained that she
had been up all night trying to catch up with her patient documentation and had
not been wearing the patch at the time.
(Her all-nighter was confirmed in an email she sent at 6:33 a.m. to her
manager).
When the plaintiff reported to work on July 11, she was
given three written warnings and suspended.
The first written warning was dated on July 7 and was for failing to
notify management about her pain patch, even though the cited policy only
prohibited the use of illegal drugs, alcohol or control substances which could
affect employee performance or safety.
She was not permitted to return to work until her physician confirmed in
writing that she could safely drive and perform her job. The second warning was also dated July 7 and
concerned the tardy submission of reports, which she had been submitting on
Sunday night or early Monday morning instead of daily. It reflected a performance plan and
threatened to terminate her if she did not improve. She refused to sign it since her most recent
warning had only required her to submit weekly reports and she was not yet late
with the reports from the prior week as alleged. The third written warning was for failing to
use the proper form to request time off for July 8. However, the plaintiff denied knowing about
such a policy or forms and the company never produced a copy of any such policy
or forms at trial (which strongly suggests that they do not exist). There was evidence that other employees had
requested and received time off without such forms and never been
disciplined. The plaintiff returned to
work on July 18 after her physician released her without restrictions. Nonetheless, she was told that she was a
liability while she wore her pain patch.
She subsequently offered to stop wearing it if the company and its
attorney remained concerned, but her email received no response. The next day, the company claimed that an
anonymous employee told it that the plaintiff had secretly contacted a former
patient. Without any investigation, the
decision was made to terminate the plaintiff.
At trial, the employer was unable to identify any employees or patients
with knowledge that the plaintiff had improperly contacted them. They
arrived at her home (because she had called off sick) but she did not answer
the door. When the plaintiff emailed her
supervisor that she thought that she would be off sick for less than two weeks,
she was notified that she had been terminated and an employee was sent to pick
up her equipment. The company executives
testified to different reasons for her termination, but two of them referred to
her fentanyl patch.
The plaintiff ultimately produced a physician note that should
return to work on August 1, but in light of her termination did not work for
two years. During workers compensation
litigation, the plaintiff received her termination documentation for the first
time and it listed only a HIPAA violation (for contacting a former patient) and
nothing about the fentanyl patch. She
returned to work on modified duty in 2014 for another employer. In the meantime, she filed suit concerning
her termination. After trial, a jury
awarded her $125,000 in back pay, $75,000 for front pay and $50,000 in
compensatory damages, but denied punitive damages. The employer appealed.
Failure to bifurcate
was harmless error. The appellate
court rejected the employer’s argument that the trial should have been
bifurcated because it was waived at trial (when the attorneys failed to have
the jury instruction conference transcribed and included in the record) and any
error was harmless in that the jury did not award punitive damages.
Direct Evidence that
Perceived Disability Motivated Termination Decision. The Court found substantial evidence that
the plaintiff had been perceived as disabled on account of wearing her fentanyl
patch and that the jury was in the best position to evaluate the credibility of
the witnesses. It noted that Ohio law
and the ADAA only require evidence that the employer views an employee as
impaired and does not require evidence that the employer perceived that
impairment as substantially limiting a major life activity. Accordingly, when the employer took adverse
action against the plaintiff on account of the fact that she sometimes wore a
fentanyl patch to treat the pain she suffered from two automobile accidents, it
constituted direct evidence that the employer perceived her as disabled under
Ohio law:
[The plaintiff] was taking measures (prescription medication)
to correct or mitigate an underlying physical condition – injuries caused by one
or more auto accidents. Accordingly, there was sufficient evidence to allow the
jury to conclude that Cavins was perceived as disabled within the meaning of
R.C. 4112.02(A)(1) and R.C. 4112.01(A)(13).
Indeed, the jury was not even required to infer that the
plaintiff’s impairment played a part in the decision to terminate her because
two of the company’s executives admitted as much.
No judicial estoppel
from pursuing workers’ compensation claim.
In a rather confusing discussion, the court addressed the issue of
whether the plaintiff had been qualified to perform her duties immediately
prior to her termination, particularly in light of the fact that she did not
work for two years following her termination and had submitted documentation
that she had been unable to work because of her workers’ compensation
injury. First, the court noted that she
had produced return-to-work notes on July 18 (and actually worked a few days
thereafter before getting sick again) and had been released to return to work on
August 1 (after her termination).
Second, the plaintiff also testified that her duties did not require her
to lift patients. Third, the court
rejected the concept of judicial estoppel to preclude the plaintiff from
contending that she could work (in order to recover back and front pay) while
she was contending in different proceedings that she was entitled to workers’
compensation because she was unable to work.
The court did so because she had never made any representations to the
BWC under oath (as required for
judicial estoppel to apply). Moreover,
the court found that she was qualified to perform her job at the time she was
terminated (in light of two medical releases) and could have continued to do perform
her duties with a reasonable accommodation (of wearing her fentanyl patch).
Reasonableness of
accommodation. The court found that
permitting the plaintiff to wear the patch was a reasonable accommodation
because the employer had indicated that she could do so if her physician
confirmed that she could safely drive and perform her duties while wearing it.
Pretext Evidence Not
Required. The court also rejected
the employer’s argument that the plaintiff failed to show that the documented
reason for terminating her – an alleged HIPAA violation and prior disciplinary
history – was pretextual. The Court
found that the plaintiff was not required to prove pretext because she had
produced sufficient direct evidence of discrimination when two executives
admitted that her fentanyl patch was a motivating factor in her termination. When direct evidence exists, the
burden-shifting framework in cases of indirect evidence does not apply. At
that point, the employer could only prevail if it could prove undue hardship or
a direct threat. It could do
neither. In particular, its July 11
suspension of the plaintiff – until she could produce medical documentation
that she could safely perform her job duties and drive – demonstrated the
reasonableness of that reasonable accommodation. The employer could not challenge the
reasonableness of that accommodation upon her return to work without further
investigation, which it failed to do before terminating her a few days after
she returned to work.
Pretext Proven. In any event, the court found sufficient
evidence of pretext on the record. The
plaintiff denied that she had violated HIPAA or contacted a former patient as
alleged. In contrast, the employer’s
only evidence was that an anonymous employee supposedly told it of the
violation. This was not corroborated by
the employee or the patient.
Accordingly, the jury was free to disregard the employer’s
testimony. Moreover, the employer could
not rely on an honest belief defense because it conducted no investigation
whatsoever of the anonymous tip; it did not contact any former patients or even
confront the plaintiff with the allegation. In addition, the management employees
contradicted each other as to whether the fentanyl patch was a factor in the
termination decision. Finally, the fact that the plaintiff was
terminated just a few days after she had been told that her wearing the fentanyl
patch was a liability further undermined the legitimacy of the purported HIPAA
explanation.
With respect to the consideration of her prior disciplinary
history, there was evidence to show that her disciplinary warnings were not
supported by any written company policies and that she had been treated differently
than other employees on those issues:
Moreover, even if one assumes that the basis for the
termination included the prior disciplinary actions, there was evidence that
these alleged violations were not actual violations of Black Stone policy, or
that other employees were not similarly disciplined. In short, the record
contains evidence that Black Stone’s actions were poorly documented, and that
its policies were inaccurately and inconsistently applied. For example,
although Black Stone disciplined Cavins for failing to request a day off in
writing, the company failed to submit evidence of a written policy or form to
this effect, and there was evidence from an employee other than Cavins that she
had been allowed to submit an oral vacation request without being disciplined.
Cavins also testified that she had never been required to submit a written
request. Again, the jury was permitted to believe Cavins’ evidence.
The court also found the jury was entitled to disbelieve the
employer about the documentation requirements.
The employer contended that she had for years been required to submit it
daily, not weekly as the plaintiff contended.
She testified that July 11 was the first time she had been told it was
due daily. She was corroborated by the
fact that the policy manual said weekly and her May 2011 written warning also
said weekly. The employer contended that
the May 2011 warning had been a mistake and pointed to handwritten notes on her
last performance evaluation referring to daily documentation. However, the plaintiff denied that “daily”
had been written on the evaluation when she received it.
The court also found that the jury was entitled to
disbelieve the employer about whether the plaintiff had violated any policy by
failing to report her prescribed fentanyl patch since the policy only referred
to a prohibition against using illegal drugs, alcohol and controlled substances
that would interfere with job performance.
There was no reporting requirement mentioned in the policy.
‘An employer's changing rationale for making an adverse
employment decision can be evidence of pretext’ to establish discrimination.” Sells
v. Holiday Mgt. Ltd., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-5974, ¶
27, quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167
(6th Cir.1996), amended on other grounds, 97 F.3d 833 (6th Cir.1996).
“The factfinder is entitled to infer from any ‘weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions’ in the employer's proffered
reasons for its action that the employer did not act pursuant to those reasons
* * * . If the factfinder concludes that one of the employer's reasons is
disingenuous, it is reasonable for it to consider this in assessing the
credibility of the employer's other proffered reasons.”
Mitigation. The court also rejected the employer’s
argument that the plaintiff was not entitled to so much back pay because she
failed to mitigate damages and had recovered workers’ compensation during the
same period because she was purportedly unable to work. Again, the court rejected a judicial estoppel
argument because she might have been able to work with a reasonable
accommodation. The court also found the
mitigation affirmative defense was waived because there no was argument about
it in closing statements and it failed to object to the exclusion of its
proposed jury instruction. As with the
bifurcation issue, it was an error to not transcribe the jury instruction
conference and include on appeal. Failing
to include a mitigation jury instruction could not be a plain error because the
collateral source rule precludes consideration on the receipt of unemployment
or workers’ compensation in a discrimination case, in part to further deter discriminatory
employer misconduct. In any event, the
employer bore the burden on this affirmative defense and it failed to introduce
any evidence about jobs which had been available that the plaintiff could have
performed. Finally, the amount of back and front pay
awarded by the jury was well below the plaintiff’s estimates of what she would
have earned if she had not been terminated.
Compensatory Damages for Emotional Distress. The
court rejected the employer’s argument that the plaintiff could not recover for
emotional distress without expert testimony or a contemporaneous physical
injury. “Under Ohio law, even without proof of contemporaneous physical injury, one
may recover for mental anguish, humiliation or embarrassment.”
At trial, Cavins testified that she had been forced to file
for bankruptcy as a result of the termination and her resulting loss of income.
Cavins further testified that in addition to incurring filing fees for the
bankruptcy, her relationships with creditors and others had been affected. She
also stated that she was humiliated. In addition, Cavins testified about stress
and stomach issues while she worked at Black Stone, due to her employers’
attitude.
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.
