Sixth Circuit Affirms Jury’s ADA Verdict Rejecting Job Description, but Denies Front Pay and Insurance Damages

On Tuesday, the Sixth Circuit mostly affirmed a jury’s $588K award in an ADA case (not including attorneys’ fees), but agreed that the plaintiff should have been reinstated instead of awarded front pay under the circumstances and agreed that he had failed to carry his burden of showing lost medical insurance benefits. Gunther v. Bemis Company, Inc., No. 17-6144/6185 (6th Cir. 10-16-18).   Based on testimony from plaintiff and his co-workers, the jury was entitled to conclude that overhead lifting was not an essential job function even though it was in his job description.  The testimony showed that employees typically helped each other with such lifting.  The Court rejected the employer’s argument about mitigation of damages because the older and functionally illiterate plaintiff was not able to find replacement employment that did not require him to read.  

According to the Court’s opinion, the plaintiff employee suffered a shoulder injury while working and had been placed on temporary light duty.  The employer accommodated his temporary lifting restrictions and kept him on light duty for 18 months, when they met with him for an hour, placed on leave and then fired him four months later on the grounds that he could not safely perform the essential functions of his position as reflected in his carefully drafted job description.

Several employees testified that the plaintiff could perform the essential functions of his position with reasonable accommodations because they typically helped each other with lifting and had equipment to help lift as well.

Although an employer’s job description provides evidence of a job’s essential functions, 42 U.S.C. § 12111(8), it is “not dispositive,” Rorrer v. City of Stow, 743 F.3d 1025, 1039 (6th Cir. 2014).  Yes, [the employer] presented evidence that it carefully composed the press assistant job description.  But the jury also heard evidence that these requirements were not essential, and the company and other employees did not treat them as essential.  

[The employer] adds that [Plaintiff] cannot establish his qualifications for the job based on the option that other employees could help lift heavy equipment.  Employers, it is no doubt true, need not “accommodate individuals by shifting an essential job function onto others.”  Hoskins v. Oakland Cty. Sheriff’s Dep’t, 227 F.3d 719, 729 (6th Cir. 2000).  But the argument assumes that these tasks amount to essential functions that a single employee must be able to handle.  The jury heard evidence to the contrary—that press workers often ask for and receive help with certain tasks—permitting it to find that this was not an indispensable task for individual employees.  See Camp v. BI-LO, LLC, 662 F. App’x 357, 362–63 (6th Cir. 2016).  In the last analysis, [Plaintiff] presented sufficient evidence to create a triable issue of fact over the essential job requirements of a press operator, making the final resolution one for the jury, not for us.

The Court rejected the employer’s argument that $181K in back pay should be reduced because the plaintiff did not sufficiently mitigate his damages.  The Plaintiff quit school in the 8^th grade and claimed that he could not read the help ads.  He applied for a few jobs, but they did not offer many hours, or comparable pay.   In fact, he would not have qualified for his prior position, which required reading.  The jury could find that the plaintiff had been reasonably diligent in searching for new employment.

The Court agreed that the plaintiff should have been reinstated instead of being awarded $315K front pay.  The employer had indicated that it would agree to reinstatement if the jury ruled in his favor and the plaintiff requested reinstatement, but the trial court had refused to permit the jury to order reinstatement on the grounds that it was not safe for the plaintiff to return to work (a conclusion that the jury implicitly rejected in its verdict).  There was no evidence of hostility between the employer and plaintiff.  Although the employer had argued on the merits that the plaintiff could not safely perform his job, it was permitted to concede that if the jury found otherwise then he could be reinstated.  Although the front pay award was vacated, the matter was remanded to the trial court to re-determine the pay award because the plant had closed after the trial.  The plaintiff would be awarded pay from the time of trial until when the plant closed, as well as any other potential remedy given to laid off employees, such as severance pay or transfer to another plant.

The Court agreed that the Plaintiff did not show his entitlement to $92K in compensatory damages for lost insurance benefits.  At most he testified that he joined his wife’s insurance plan after his termination, but he did not offer any evidence of how much more expensive it was and whether he incurred any medical expenses that were previously covered by the defendant employer’s medical plan.

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: Employers Should Sometimes Leave Competing Former Employees Well Enough Alone.

In early July, the Ohio Court of Appeals in Stark County not only affirmed the trial court’s refusal to enforce the plaintiff-employer’s non-competition agreement against a competing, former employee, but the court also affirmed a significant damage award of $180,000 against the employer and in favor of the former employee on the employee’s unfair competition claim. United Studios of America v. Laman, No. 2007CA00277, 2008-Ohio-3497 (7/7/08). The basis for the employee’s successful counter-claim was that the employer only brought the non-competition lawsuit to cause the employee to incur legal fees.

In Laman, the employer operated a mobile photography studio which provided portraits at grocery stores and shopping malls, etc. in several states. Since at least 2000, the employer required all employees to sign an employment agreement which contained the following non-competition clause:

“Employee acknowledges that Company will expend considerable time, effort and expense in the training of employee and the methods used by Company; that Employee will acquire confidential and valuable knowledge and information as to Company's accounts, customers and business patrons, as well as confidential and valuable knowledge and information concerning the methods and forms developed and used by Company; and that Employee will acquire such knowledge and experience that upon leaving Company's employment for any reason, his engaging directly or indirectly, either alone or in association with any other person or firm, in the family portrait photography business will cause unfair disclosure of such valuable knowledge and information, irreparable harm and financial loss to Company."

The defendant employee signed such a clause when he was hired and he was later promoted to Vice President of the Company. Nonetheless, he eventually resigned from the plaintiff employer and formed his own photography business in Colorado. He then obtained a contract to provide portraits to customers of Safeway of Colorado. There is no discussion in the court’s opinion whether the plaintiff employer operated in Colorado or whether the employee competed against the employer in other states.

The court explains that the plaintiff employer filed suit against the former employee for breach of his non-competition agreement. The lawsuit apparently only sought monetary damages and did not seek equitable relief. When the employee failed to respond to the complaint, the employer moved for default judgment. However, on the same date, the employee requested and later obtained permission to not only file an answer to the complaint, but to file counter claims against the plaintiff employer for, among other things, unfair competition. The trial court granted summary judgment to the employee on the non-competition claims and on his counterclaims. Following a damages hearing, the court awarded damages to the employee in the amount of $180,260.39, including $116,468 in punitive damages and $58,234 in attorney fees.

The employer argued on appeal that the trial court erred in dismissing its non-competition claim on the grounds that the employer failed to prove that it suffered any damage from the breach of the non-competition clause. After all, according to the employer, the contract itself acknowledged that the employer would suffer harm from any breach of the non-competition provision. The court was unmoved:

“A contractual provision acknowledging harm will occur in the event of a breach, without more, is insufficient to withstand summary judgment. Where, as here, a party makes a claim for money damages, the party must demonstrate actual damages. [The employer] filed the within action alleging claims for breach of contract, breach of fiduciary duty, breach of Ohio Trade Secrets Act and intentional interference with contractual relationships. [The employee] moved the trial court for summary judgment on all of the above claims alleged in the complaint, and for summary judgment as to its counterclaim for unfair competition. [The employee’s] motion for summary judgment raises the issue that [the employer’s] claims must fail because Appellant has no evidence demonstrating damage or injury resulting from [the employee’s] actions. In response, [the employer] merely cites the contract provision stipulating damage to[the employer]. The contract did not include a provision for liquidated damages. While the contract provision stipulating to damages and irreparable harm may well provide grounds for an equitable injunction, we find [the employer’s] claims require proof of actual damages, and [the employer] failed to meet the burden.”

In contrast, the court affirmed the employee’s damage award because the employee “presented admissible evidence establishing [the employer’s] motives in filing the instant action were to cause [the employee] to incur legal fees and costs. Accordingly, the trial court properly granted summary judgment in favor of” the employee on his counterclaim for unfair competition against the plaintiff employer.

Insomniacs can read the court’s decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/5/2008/2008-ohio-3497.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. 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.