Rush to Termination and Sloppy Documentation Cost Employer a Summary Judgment in an ADA Case

 

Earlier this month, the Sixth Circuit reversed a summary judgment granted to an employer in an ADA lawsuit brought by the EEOC.  EEOC v. West Meade Place LLP, No. 19-6469 (6^th Cir. 2-8-21).  The employee suffered from anxiety attacks six months after being hired when new co-workers were rude to her and she requested intermittent FMLA leave.  After informing the plaintiff that she was not eligible for FMLA leave and that any leave would be unpaid, her manager told her that she would be terminated if she was unable to work, but that she could not return to work without a medical release.  The Court found that there were disputed facts and credibility issues as to whether the employee’s termination two days later was based on the manager’s perception that the plaintiff was disabled.  “[T]he ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity.”

According to the Court’s opinion, the Nashville employer requested a voluntary medical history related to her ability to work from the plaintiff three days after she started work (instead of between her conditional job offer and start date).  She reported taking prescription drugs for anxiety.  When her new co-workers became rude to her, she reported their misconduct and called off work or leave early because of panic attacks.  She then sought FMLA leave.  The doctor’s statement indicated that she would need it for a few days a few times each year because of the panic attacks, but her managers reported that she insisted that she was entitled to twelve consecutive weeks with pay.   After being denied paid FMLA leave, the plaintiff sought to return to work immediately, but was told that she would need a medical release.

There are then three different versions of what transpired.  The plaintiff alleged that she told her doctor that she required a medical release or she would be terminated the next day.  The medical office called the employer and indicated that it was told the next day that she needed to be reassessed and then released to return without any medical restrictions or emotional distress.   In particular, the manager could not understand why she could require FMLA one day and then the next was ok to return to work.  The plaintiff was fired later that day for not being able to perform her job duties.

According to the manager, the plaintiff had initially shown her a note indicating that she needed to be off work for 12 weeks.  After FMLA leave was denied and she was told that she required a medical release to return to work, the plaintiff brought such a release the next day (which then disappeared from her personnel file).  When the employer called the physician to confirm, it learned that the doctor had not released the plaintiff to return to work and did not intend to do so.   The doctor also claimed to be operating a pain clinic.   The manager completed paperwork indicating that the plaintiff was terminated for being unable to work (so that she would get unemployment), but claims that she told other managers about the falsification of the medical release.  Nothing about the document falsification was relayed to the EEOC when the plaintiff filed her Charge of Discrimination.

The termination documents indicated that the plaintiff was unable to perform her job duties.  However, they also indicated that the plaintiff had relied on a physician in Indiana where her sister worked (which the plaintiff disputed).   The notes indicated that the physician’s office had refused to release the plaintiff to return to work without a reassessment.  When the manager relayed this to the plaintiff, she claimed to have called her physician’s office and obtained their consent for her to return to work.  She asked her manager to call a particular telephone number and ask for a particular person, who turned out to be the plaintiff’s sister.  (The plaintiff apparently admitted that she brought her sister into the discussion in order to better explain the plaintiff’s FMLA rights.). The manager then called the physician again to re-confirm that he would not release the plaintiff to return without a new evaluation.  After that, the manager lectured the plaintiff about falsifying medical releases.   When no release was provided, the employee was terminated. 

Remarkably, despite the FMLA request and reason for her termination, the employer argued that there was no evidence to show that it knew or perceived the plaintiff as disabled.   In particular, they point to the fact that the plaintiff stated that she wanted to immediately return to work as soon as she was informed that any leave of absence would be unpaid.  The Court had no difficulty finding that there was sufficient evidence to conclude that plaintiff may suffer a disability even if it was transitory.  (The employer apparently never raised the affirmative defense that any impairment was minor and transitory).   Notably, the medical office records reflect that the manager had specifically said that the medical release must state: “no emotional distress can happen.”  Also, it was disputed whether the plaintiff was motivated to return by the unpaid leave or by the undisputed denial of FMLA leave.  Thus, it was factually possible that the employer perceived her as disabled.   

Although—as West Meade argues—Jarvis may not have considered an anxiety disorder to constitute a disability, a “regarded as” claim under the ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity. . . .

Additionally, as documented, Jarvis terminated Kean because Kean was “unable to do her job,” with no evidence that she was inhibited from doing her job by anything but her anxiety disorder. “To be sure . . . [the employer’s] knowledge of [Kean’s] medical issues—alone—is insufficient to carry the day,” . . . . but this perspective supports the EEOC’s argument not only that Jarvis was aware of Kean’s impairment, but also that Jarvis believed it would inhibit Kean from fully performing her job duties. This contradiction in Jarvis’s testimony creates a genuine issue of material fact.

The EEOC argued that the evidence showed that “but for” the employee’s admission of having an anxiety disorder and requesting an accommodation (i.e., a medical leave of absence), the employer would not have terminated her.  The employer relied on the evidence about the falsification of the medical release (i.e., either the missing note or the sneaky request to speak with the plaintiff’s sister). 

The Court indicated that the jury could interpret the conflicting evidence any number of ways and, therefore, only the jury could ultimately resolve whether the employer was motivated by the plaintiff’s anxiety or by the unusual events surrounding the plaintiff’s attempt to obtain a medical release in order to return to work.   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Honest Belief Defense in Regarded As ADA Claim Based on Circumstantial Evidence That Questioned Employer’s Credibility.

On Wednesday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an ADA “regarded as” discrimination case and rejected the employer’s honest belief defense based on evidence produced by the plaintiff to create a jury question about pretext.   Babb v. Maryville Anesthesiologists PC, No. 19-5148 (6^th Cir. 11-6-19). First, the plaintiff produced expert witness evidence about the reasonableness of the plaintiff’s professional conduct, which made debatable the reasonableness of the employer’s decision, particularly when no investigation had been conducted before her termination.  In other words, there were no particularized facts supporting the employer’s decision beyond the initial report of allegations.  Second, the plaintiff relied on an email sent by a co-worker claiming that she had been fired because of concerns with her vision.  This was arguably not a stray remark when the co-worker had been requested to send the email by one of the decision-making physicians who failed to deny in his affidavit that he told her what to say.


According to the Court’s opinion, about a month after the experienced plaintiff CNRA was hired in June 2015, a physician noticed that she had poor eyesight (because of how close she had her face to a monitor in order to read it). She admitted that she had “degenerative retinal condition” that made it hard for her to read certain screens and medical records,” but assured him that it did not affect her ability to perform her job.  That physician told another and claimed that the plaintiff would be blind within 10 years, which the plaintiff disputes.   After a few other physicians expressed similar concerns, a meeting was held with the plaintiff on October 30 where she had explained that she had been diagnosed a decade earlier and was requested to obtain medical clearance that she could safely perform her job duties and to consider LTD insurance.  However, one of the physicians indicated that they may need to consult with counsel because her ophthalmologist was unlikely to give them the necessary assurance.   Otherwise, she was told that she was a “good fit” with the practice.


The plaintiff consulted with her ophthalmologist, but the Court noted that there was nothing in the record about what the plaintiff was told or, importantly, what – if anything -- she told her employer.  Apparently at the suggestion of two of the physicians to ensure that she was not misreading data, the plaintiff began having her co-workers read hospital monitors to her and this simply aggravated concerns about her eyesight and these concerns were noted in her performance evaluation.   The employer was then informed of two apparent clinical judgment errors that the plaintiff made in patient care which were unrelated to her eyesight.  No investigation was conducted concerning the errors, but at a partnership meeting the following week, her eyesight and the errors were discussed and the decision was made to terminate her for the alleged errors.   She was informed in mid-January that she was terminated solely because of the supposed errors, which shocked her because no one had questioned her about the issues beforehand.

A new co-worker, after discussing the termination with one of the physicians (who did not have responsibility for HR), then emailed the other CNRAs (at the physician’s direction).  She explained in her email that the plaintiff had been terminated because of concerns with her eyesight and “a few other issues” and that the plaintiff had failed to produce documentation that she could safely perform her job.  The undisputed evidence was that this new employee had never been told why the plaintiff had been fired and instead that she had based her explanation on staff gossip.  The particular physician was never questioned about it during the litigation and his affidavit was strangely silent about what information he told the new employee about why the plaintiff had been terminated.   


The plaintiff found another job as a CNRA and no issues were raised about her eyesight or professional judgment.  She filed an EEOC Charge and sued on the basis that she was illegally terminated because she was regarded as disabled when, in fact, she was not.   During the litigation, she supplied an expert affidavit that the alleged mistakes she had made were not in fact judgment errors, but were normal incidents during which she performed reasonably.   The trial court excluded the expert affidavit, and granted the employer’s motion for summary judgment, relying primarily on the honest belief defense.  On appeal, the Court ruled that portions of the expert affidavit were still admissible and could be used to show that the employer’s explanation for her discharge was pretextual.


To prevail on a “regarded as” discrimination claim, the Court held that the plaintiff must show

 that their employer believed they had a “physical or mental impairment,” as that term is defined in federal regulations.  The employer may then rebut this showing by pointing to objective evidence “that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.”

“[E]ven if an employee establishes that their employer “regarded” them as disabled under the aforementioned standard, the employee must still show that their employer discharged them (or took some other form of adverse employment action against them) because of, or “but-for,” their actual or perceived physical or mental impairment.”  This can be shown with either direct evidence or using the circumstantial burden of proof.   Under the latter method, if the employer articulates a non-discriminatory reason for its action, “an employee can show that an employer’s explanation was pretextual in “three interrelated ways”: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.”  Further, the plaintiff “may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.” At the summary judgment stage, the employee is only required to identify a disputed issue of material fact and is not required to prove her case.


The Court found sufficient evidence for the jury to find that the plaintiff was perceived as disabled:

Viewed in the light most favorable to Babb, the record shows, not only that Maryville physician-owners and employees openly expressed concern about Babb’s “degenerative retinal condition,” including on Babb’s job evaluation and during the meeting at which Maryville decided to fire Babb, but that Maryville’s head of personnel (Dr. Robertson) met with Babb specifically to discuss Babb’s vision, and, during that meeting, asked Babb if she had disability insurance.  See Babb, 361 F. Supp. 3d at 775 (emphasizing this latter fact).  More still, after that meeting, Dr. Robertson advised her colleagues that Babb’s vision issues might require them to consult an attorney.  This is more than enough evidence from which a reasonable juror could find that, in January 2016, Maryville genuinely believed Babb had a “physiological . . . condition” affecting one of her “body systems,” namely, her vision. 

While the Court agreed that requesting a fitness-for-duty examination (as happened here on October 30) cannot be used against the employer, this case was distinguishable from those cases where the employer ONLY requested a fitness-for-duty examination and did not also mention the concerns on a performance evaluation or discuss the medical condition while deciding to terminate the employee, etc.


The Court then found that there was sufficient evidence for the jury to consider whether the employer’s explanation was pretextual.  First, there was a question about whether the plaintiff’s two errors were in fact errors reflecting terrible clinical judgment which would justify her termination or, based on the expert affidavit, reflected that she performed reasonably under the circumstances.  “This dispute matters because the less serious Babb’s clinical mistakes, the more likely they were not the “real” motivation behind Babb’s termination.” The Court rejected the employer’s honest belief defense because it “failed to make a reasonably informed and considered decision before taking its adverse employment action.” The expert’s affidavit challenged “the likelihood that a reasonable anesthesiology practice would have actually relied on those facts to fire an experienced nurse practitioner like Babb.”


Second, the Court found sufficient disputed evidence as to whether the alleged clinical errors actually motivated the employer’s decision.  The employer insisted that she was fired solely because of the clinical errors and never contended during litigation that her vision posed a safety hazard.  But, hours after the plaintiff had been terminated, a co-worker sent an email immediately after speaking with one of the decision-making physician partners that the plaintiff had been terminated primarily because of questions about her vision.  Finally, her vision was a significant issue of discussion during the meeting when the decision was made to terminate her employment and was even discussed in her performance evaluation.   “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”


The Court refused to draw any favorable inferences in favor of the employer based on undisputed evidence that the co-worker’s email had contained information which had never been relayed to her by any of the physicians.  Rather, the Court found that the other undisputed facts made the co-worker’s explanation about her source of information a disputed issue of fact that only a jury could resolve.    In particular, ruling in the employer’s favor would require a finding that she “is a credible witness, which, of course, we cannot do at this stage.”


The Court also refused to disregard the co-worker’s email as an irrelevant “stray comment” because, among other things, the particular physician never submitted any evidence about what he told the co-worker in his affidavit and apparently was not deposed about the information either:

Aycocke’s e-mail, however, was not the kind of “stray discriminatory remark,” offered by a “non-decisionmaker,” disconnected to the decisional process,  . . . Rather, Aycocke’s e-mail was a quasi-official communication, written at the behest of one of the key players in Babb’s termination (Dr. Proffitt), almost immediately after Babb’s termination, following an in-person conversation with Dr. Proffitt.  It was not a speculative claim shared privately among colleagues; it does not read like gossip.  Indeed, despite submitting a declaration in discovery,  . . .  Dr. Proffitt has never testified to the contrary.  In light of this rather unique context, then, a jury should decide whether Aycocke based the content of her e-mail on “rumor and innuendo,” as she and Dr. Robertson testified at their depositions, or whether she based it on the word of Dr. Proffitt, as the circumstantial evidence would seem to suggest.  And, if a jury could find that Aycocke based her e-mail on the word of Dr. Proffitt, a jury could also find that Maryville acted pretextually when it fired Babb for “clinical errors.”

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.

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.

Sixth Circuit: EAP Referral for Fitness for Duty is Not Evidence of Perceived Disability

Last week, the Sixth Circuit in Cincinnati affirmed the dismissal of a perceived disability and retaliation claim brought against an Ohio employer under the ADA and Ohio law.   Johnson v. University Hospitals Physician Services, No. 14-4026 (6^th Cir. 7-7-15).  In that case, the plaintiff was referred to EAP for a fitness evaluation after she was repeatedly found sleeping at her desk and admitted that her new medication made her drowsy.   After she requested and was recommended for medical leave, she failed to return to work when released by her medical provider and refused to provide a fitness for duty statement.  After being fired for refusing to perform a job duty, she sued that her fitness evaluation had violated the ADA.  However, the Court rejected the argument that perceiving an employee as impaired is “tantamount” to perceiving the employee as disabled since the impairment may not be substantially limiting even though it interferes with job performance.

According to the Court’s opinion, the plaintiff had concerns about the proper completion of forms being submitted to the Centers for Medicare and Medicaid (CMS).   Concerned that she was participating in fraud, she contacted the employer’s compliance hotline.  A compliance officer investigated her concerns and assured her that she was properly completing the forms in compliance with CMS protocols.   The plaintiff conducted her own research and contacted the CMS subcontractor, an employee of which reinforced her concerns.  She forwarded these emails to her supervisors and was again contacted by the compliance officer who said that the subcontractor supervisors agreed that the employer’s practice was appropriate.  

Meanwhile, the plaintiff was occasionally napping at her desk and reported that she would be late one day because her new medication was making her drowsy.  After a number of sleeping incidents (none of which violated employer policy), she was referred to EAP for a fitness for duty evaluation based on her impaired functioning.  She requested FMLA and STD, was referred to a psychiatrist and time off work by EAP and released to return to work by her new psychiatrist.  In the meantime, the employer requested a new FMLA certification.  The employee did provide the new certification or return to work.

The employer ordered her to return to work by October 1 or be fired.  The plaintiff responded by filing a Charge of Discrimination and providing a list of conditions about her return to work, including how the CMS forms would be completed.  When she refused to complete the forms as instructed, she was terminated for refusing to perform her duties.  This litigation ensued focused only on the fitness for duty evaluation by EAP and the delay in reinstating her to work.  Surprisingly, she did not bring a whistleblower claim or wrongful termination claim.

The Court applied a “but-for” causation standard under the ADA and Ohio law.  It did not apply the ADAA definition of perceived disability.  Instead, it found that she had to prove that the employer regarded her “actual, nonlimiting impairment substantially limits one or more major life activities.”  In any event, it rejected her argument that her referral for an EAP evaluation was evidence of that the employer perceived her as disabled under the ADA: 

“[A] defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  . . . An employer’s request that an employee undergo a medical exam “may signal that an employee’s job performance is suffering, but that cannot itself prove a perception of a disability because it [alone] does not prove that the employer perceives the employee to have an impairment that  substantially limits one or more of the employee’s major life activities.” . . . .. “Deteriorating [employee] performance may be linked to motivation or other reasons unrelated to disability.” . . . (citations omitted).

Defendant stated on the referral form that “impaired functioning” was the basis for [her] referral. The report of the doctor who examined [her] stated that she was referred for evaluation because she was “falling asleep at work,” and generally had a “difficult” relationship with her manager. These reasons for referral are directly related to [her] ability to do her job.

In addition, the plaintiff failed to show that the employer was at fault for her delay in returning to work.  The plaintiff refused to cooperate with providing either medical certifications or a fitness for duty from her own psychiatrist  and was still invited back to work.   While there may have been a miscommunication about her return to work, the delay was not attributable to any perception of a disability.  Moreover, her submission of a list of conditions to her return reflected the fact that she was in no hurry to return to work.  Finally, the employer’s alleged irritation with her concerns about the CMS form were not attributable to any perception of disability. 

The retaliation claim was easily dismissed because the plaintiff could not show that the employer’s reason for her termination – her refusal to complete the CMS forms as instructed – was merely a disguise for unlawful retaliation.  Indeed, she admitted that she would probably still be employed if she had completed the form as instructed. 

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.

Ohio Court of Appeals Reverses Directed Verdict on Perceived Disability

Late last month – just a few days after the Franklin County Court of Appeals rejected a perceived disability claim – the Ohio Court for Harrison County reversed an employer’s directed verdict on a perceived disability claim and found a reasonable jury could conclude that the employer’s perception might have motivated the employee’s termination, but rejected the employee’s argument that the employer’s offered reasonable accommodation could – by itself -- constitute evidence that it perceived him as disabled.  Roghelia v. Hopedale Mining, L.L.C., 2014-Ohio-2935.  The Court found that the trial court improperly elevated the plaintiff’s burden of proof in a perceived disability case by requiring him to show that the employer perceived his impairment – an amputated thumb -- to be substantially limiting of a major life activity.  Moreover, an email sent by a manager about “be[ing] careful”  with “his background injury wise” created a question of fact as to whether the employer was motivated by the impairment or was trying to conscientiously follow the law in terminating the employee for poor attendance.  Finally, the Court concluded that the jury was entitled to decide whether the attendance issue was a pretext for unlawful discrimination.

According to the Court’s opinion, the employee was terminated for poor attendance even though he had submitted a medical excuse prior to taking the time off.  He did not, however, call in to speak with his supervisor before taking off work and his supervisor had decided to assign him to light duty after receiving the medical statement.  He had prior attendance problems.  Once, he submitted a medical statement, which gave no medical reason for his absence, and got married during his two week absence.  He had been placed on probation for poor attendance before his termination. 

Under the Ohio Revised Code and the current ADAA, “a plaintiff must show that the employer regarded her as having a mental or physical impairment, but without regard to whether the employer regarded her as substantially limited in her daily life activities as a result.” 

Shortly after the plaintiff lost his thumb, the employer transferred the employee to a position which would not cause as much pain in his injured hand.  Nonetheless, it believed that he could perform all of his job duties.  The Court noted that Ohio Courts have refused to consider reasonable accommodations as evidence of a perceived disability.   

To find otherwise would mean that any time any sort of work place accommodation is made for the employee this automatically results in a conclusion that is perceived as disabled for purposes of disability discrimination. Therefore, merely showing that an employee was accommodated is not sufficient to prove that the employer regarded the employee as disabled.

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.

EEOC Obtains $90K Consent Judgment in Federal Court In Columbus Over ADA Violations When Employer Required Employees to be 100% Fit.

Last week, the EEOC announced that “AVI Foodsystems, Inc. (AVI) will pay more than $90,000 and offer jobs to discrimination victims to settle a class disability discrimination suit brought” by the EEOC in federal court in Columbus, Ohio. “The EEOC charged in its suit (Case no. 2:09-cv-00656-JDH-MRA . . . . that AVI violated federal law by failing to allow employees with disabilities to return to work without a full-duty, no-restriction doctor’s release. The EEOC asserted that this policy violated the Americans With Disabilities Act (ADA). The agency said disabled employees who had been on leave and are able to return to work with some physical restrictions, but are still able to perform their jobs, should be allowed to do so. The policy adversely affected more than 80 AVI employees in several states, including Ohio, New York, Pennsylvania, Michigan, Illinois, Kentucky, and West Virginia.”

According to the EEOC, “[t]he consent decree settling the suit provides that AVI will offer jobs to discrimination victims named in the decree, make payments to individuals who are not provided jobs, comply with the ADA, and train managers on the provisions of the ADA. According to company information, Warren, Ohio-based AVI, the largest independently owned and operated food service in the United States, maintains vending and dining services in commercial locations such as factories, universities, and health-care facilities.”

Insomniacs can read the full EEOC press release at http://