Ohio Appellate Court Affirms $250K Jury Verdict for Plaintiff Terminated on Account of Perceived Disability

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.

  

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.

Xenia Employer Settles ADA Failure to Hire Lawsuit With EEOC for $30K

Yesterday, the EEOC  announced that a Xenia, Ohio employer had settled a lawsuit alleging that it had violated the ADA by rescinding a job offer in October 2012 on account of lawfully prescribed medication taken by an applicant to control a seizure disorder.    The EEOC filed suit in the federal court in Dayton (at  Case Number 3:14-cv-0211)  in June 2014 against Save Edge, Inc. (f/k/a File Sharpening Company, Inc.) asserting that its job offer had been withdrawn because it regarded the applicant as disabled and incapable of safely performing the duties of the operator position.  According to the EEOC’s Complaint, the applicant’s medication had been revealed during a pre-employment drug test.  The applicant never sought any accommodation or suffered any work restrictions on account of his medical condition or medication.   In the lawsuit, the EEOC sought back pay, front pay, lost health insurance benefits, punitive damages and injunctive relief.

In addition to paying $30,000 to the rejected job applicant (for back pay, interest, and compensatory and punitive damages), the employer is required by the consent decree to:

·        Prohibit future discrimination by its officers, managers and employees against disabled employees or applicants,

·        Prohibit future retaliation by its officers, managers and employees against applicants or employees who exercise their rights to complain about discrimination or assist in an investigation or discrimination-related proceeding,

·        Implement within 60 days a written disability policy and procedures to ensure equal employment opportunities are afforded to employees and applicants with disabilities,

·        Post within 5 days a notice of non-discrimination at its facility,

·        Train its managers, supervisors and human resources personnel every year for three years about the ADA and employment discrimination; and

·        Report annually for three years to the EEOC its compliance with the consent decree, including attendance at the mandatory training, the agenda of the training, the continued posting of the notice, and information about any requests for reasonable accommodations and internal complaints of disability discrimination, etc.

There was nothing in the EEOC press release about the employer being required to offer employment to the rejected job applicant.

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.

Franklin County Court of Appeals Finds Description of Employee’s Impairment in Request for Mental Examination is Not Evidence of Perceived Impairment

Yesterday, the Franklin County Court of Appeals affirmed summary judgment for the government employer on a perceived disability claim brought under the Ohio Civil Rights Act. Dalton v. Ohio Dept. Rehab. & Corr., 2014-Ohio-2658.   Both the facts and the opinion are a little odd.  According to the Court’s opinion, the plaintiff made some paranoid statements after he was terminated and reinstated following an arbitration award.  As a result of his odd statements, he was directed to submit to an independent medical examination to evaluate his mental ability to perform his job duties and potential promotion (which he was attempting to decline).  After he refused to submit to portions of the examination, he was terminated for insubordination and brought suit on the basis that he was referred to the IME on the basis of a perceived disability.  Although the Court found that the employer acted appropriately in requesting the examination on the basis of a potential impairment, it simultaneously concluded that the plaintiff had not been discriminated against on the basis of a perceived disability simply by being requested to submit to a medical examination.

Unlike the ADA, the OCRA does not contain a prohibition against employers requesting medical examinations in 4112.02.   Even under the ADA, employers are entitled to request employees to submit to medical examinations when job related and consistent with business necessity.  Yet, there is no discussion in the Court’s opinion about whether the request in this case was either job related or consistent with business necessity.  The Court concluded that the employer was permitted to request the medical examination by Ohio Administrative Code § 123:1-30-03 (concerning disability separations when an employee is unable to perform the essential functions of his position).  This regulation requires the employer to supply information about “the perceived disabling illness, injury or condition.”

Under ORC § 4112..01(A)(13), a plaintiff may be disabled if their employer regarded them as having a mental or physical impairment, without regard to whether the employer regarded them as substantially limited in their daily life activities as a result.”  Nonetheless, the Court concluded that requesting a fitness for duty exam or an independent medical examination  -- where the employer was required to supply information about the employee’s disabling illness, injury or condition – was not evidence that the employee was perceived as physically or mentally impaired.  While it would be understandable if the Court merely found that the requested IME was not an adverse employment action or that the employer was justified in requesting it, it seems confusing – odd even-- that the Court would in one paragraph note that the employer acted properly in describing the employee’s disabling illness but in an earlier paragraph state that this action was not evidence that the employer perceived the employee as impaired.

But there it is . . . . until and unless the Ohio Supreme Court clarifies.

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.

Sixth Circuit: Requiring 100% Fit for Duty Precludes Judgment as a Matter of Law for Employer on Perceived Disability Claim

This morning, the Sixth Circuit Court of Appeals in Cincinnati reversed a judgment entered as a matter of law on a perceived disability claim brought under the ADA by a female UPS driver on the grounds that the employer's insistence that she be 100% fit for duty within 30 days of returning to work reflected its judgment that she was physically incapable of performing a wide range of jobs under its light duty program and because it questioned the sincerity of the employer's explanation about the 30-day requirement. Watts v. UPS, No. 08-3779 (6^th Cir. 2010). However, the Court affirmed the dismissal of the plaintiff's sex discrimination claim when the trial court ordered a new trial (where the jury found in favor of the employer) after the jury in the first trial awarded the plaintiff over $200,000 in damages on the sex discrimination claim, but its answers to special interrogatories were contradictory.

According to the Court's opinion, the plaintiff was the only female driver in that county between 1999 and 2004. However, after a work-related injury in 2000, she was off work until 2003. Although there was contradictory evidence, the plaintiff asserted that she was released to return to work with restrictions in Fall 2002, but the employer refused to permit her to return until she was 100% fit for duty within 30 days of reinstatement. It also suggested that she pursue a reasonable accommodation on account of a disability. The employer contended that the seniority provisions of its collective bargaining agreement only permitted light duty assignments of up to 30 days before the assignment became permanent and, thus, employees could only work light duty for 30 days. The plaintiff produced evidence that this 30 day requirement had not been imposed on certain male employees and was not described in the employer's written descriptions of the light duty program. The plaintiff filed a grievance, but it was denied. When the employer refused to reinstate her, she filed Charges with the EEOC that she was being discriminated against on account of her sex and disability. She ultimately filed a lawsuit in federal court, but the trial court entered judgment as a matter of law in favor of the employer on the perceived disability discrimination claim and the jury was not permitted to consider it because the trial court concluded that the plaintiff only proved that the employer considered her temporarily impaired. The jury awarded over $200K in damages to the plaintiff on her sex discrimination claim and answered a special jury interrogatory that she was treated differently than male employees in the light duty program, but denied in other special jury interrogatories that she had proven sex discrimination or pretext in how she was treated. The trial court then ordered a new trial and the second jury ruled in favor of the employer on the plaintiff's sex discrimination claim. The plaintiff then appealed to the Sixth Circuit.

The Sixth Circuit had no difficulty finding sufficient evidence to support the plaintiff's perceived disability discrimination claim under the ADA even though her claim pre-dated the ADA Amendments Act which broadened the scope of the ADA and made alleging such claims easier:

When a defendant flatly bars a plaintiff from working at any job at the defendant's company, that is generally sufficient proof that the employer regards the plaintiff as disabled in the major life activity of working so as to preclude the defendant being awarded judgment as a matter of law.

The Court relied on its prior decisions in Wysong v. Dow Chemical Co., 503 F.3d 441 (6th Cir. 2007) and Henderson v. Ardco, Inc., 247 F.3d 645 (6th Cir. 2001) (where the plant manager told the plaintiff: " You know what company policy is . . . you have to be 100 percent to work here") where the employer refused to permit the plaintiffs to return to work in any capacity or position with any physical or medical restrictions because they were not 100% fit following an injury or illness. Because the employer's light duty program encompassed a wide variety of jobs ("including answering phones, filing, gassing up and washing vehicles,"), its refusal to permit the plaintiff to participate reflected a judgment that she was physically incapable of performing a wide variety of jobs.

In Henderson, this court interpreted an injured employee being told that she had to be "100%" to work there as tending to indicate that the defendant regarded her as disabled in a wide spectrum of jobs sufficient to defeat the defendant's motion for summary judgment. See Henderson, 247 F.3d at 654. Similarly, in Wysong this court interpreted an employer's statement that the plaintiff could not return to work until she had received "a [medical] release to work without restrictions" as evidence that the defendant "perceived Wysong as being unable to work anywhere at the plant, and thus, unable to perform the same broad class of work anywhere else." See Wysong, 503 F.3d at 453. The Kaufmann/Germann statements here – that there was no work for Watts unless she could present a full medical release – present a situation similar to the full-medical-release requirement in Wysong and the 100% rule in Henderson. The jury could have concluded that the statement indicated that UPS perceived Watts as being unable to perform the broad class of jobs available at the UPS Hamilton facility.

Moreover, the Court questioned the legitimacy of the employer's explanation that an employee had to be 100% fit because of the bargaining agreement's seniority provisions because the 30-day rule did not flow from the CBA, was not applied to certain male employees and was not described in the employer's written descriptions of the light duty program. Thus, it concluded that there was evidence that the employer's explanation for not placing the plaintiff in the light duty program was pretexual and a mere disguise for unlawful discrimination.

[Editor's Note: In January 2011, the EEOC announced a $3.2M settlement with Supervalu arising out of the termination of employees following medical leaves of absence under a policy that employees could only return to work if they were medically certified to be 100% fit for duty].

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.