Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


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 ADA Claims For Failure to Show a Disability or Failure to Accommodate

Last week, the Sixth Circuit Court of Appeals affirmed the summary judgment dismissal of an ADA claim on the grounds that the plaintiff failed to show that he was disabled, that the employer failed to provide him with a reasonable accommodation and that he had timely filed one of his claims within the 300 day limitations period.  Booth v. Nissan North America, Inc., No. 18-5985 (6^th Cir. 6-7-19).  The plaintiff’s physician indicated that he had some lifting and bending restrictions which, at worse, may have impacted his ability to perform a particular job.  “[J]ust because a plaintiff has work restrictions does not mean that he is disabled.”


According to the Court’s opinion, the plaintiff worked for more than a decade after his doctor gave him permanent medical restrictions on bending and reaching.  In 2015, he applied for a transfer, which was denied on account of those medical restrictions.  He sought reconsideration several times, but was again denied.  Shortly thereafter, the employer modified his assembly line position to require all of the employees to be able to perform four job functions instead of merely two.  When he informed the employer that the additional two job functions would violate his medical restrictions, he was temporarily kept in his two-function position.  In 2016, he was requested to update his medical restrictions with his physician because they were inconsistent with his current position.  He did so in 2017 and the physician modified the restrictions which would have prevented him from performing the additional job functions.  The plaintiff agreed with the restrictions and, once they had been modified, was able to perform the new job and continued to do so even throughout the litigation.


In November 2016, the plaintiff filed an EEOC Charge, which was dismissed for failure to show that he had a disability.  He filed a lawsuit challenging the failure to transfer him to the material handler position, and failing to accommodate his alleged disability.  The trial court granted the employer’s motion for summary judgment.


The plaintiff was informed in November 2015 that he would not be transferred into the material handler position because of his medical restrictions. Although he attempted to get that decision reversed, the supervisors and human resources explained to him that the decision would not change unless his medical restrictions changed.  He did not file his EEOC Charge until more than 365 days later even though the ADA requires Charges to be filed within 300 days.  His requests for reconsideration did not re-start the limitations period.


Even if his claim had been timely, the Court also found that he had failed to prove that he had a disability. Prior to the amendment of the ADA, the Court had made clear that “simply having a work restriction does not automatically render one disabled,  . . . .  nor does being unable to perform a discrete task or a specific job.”  After the ADA was amended, “an impairment that “substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

Even so, Congress did not modify the definition of the major life activity of working, and a plaintiff who alleges a work-related disability “is still required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”   . . . . EEOC regulations explain that a plaintiff cannot claim a disability by simply “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job.”  29 C.F.R. § 1630, App. (2016).  That Booth’s neck injury and related work restrictions kept him from working in the material handling role does not resolve whether Booth is disabled under the ADA.  Rather than point to one job that he cannot perform, a plaintiff alleging a work-related disability must show that his condition precludes him from working in a class or broad range of jobs, “such as . . . assembly line jobs.”  Id.  Booth has not made that showing.  To the contrary, Booth concedes that he has worked without interruption on the assembly line since injuring his neck in 2004—and has continued to work there since this litigation began.  

The Court also rejected his timely failure to accommodate claim, which was based on the employer’s “pressure” to have his medical restrictions modified under threat of termination if he failed to do so.  

 However, the Court rejected this claim for the same reason as his refusal-to-transfer claim:  he could not show that he was disabled.   Moreover, he could not show that the employer failed to accommodate him because he continued to work uninterrupted even though the litigation. “Nor does Booth suggest that he misreported his symptoms or otherwise encouraged his doctor to modify the restrictions in order to preserve his job.  To the contrary, Booth testified that he does not disagree with his doctor’s revisions to his work restrictions.”


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: No ADA Duty to Immediately Grant Requested Accommodation

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment dismissing an ADA failure-to-accommodate claim brought by a current employee.  Brumley v. UPS, No. 18-5453 (6^th Cir. Nov. 30, 2018).   The plaintiff could not show that her employer had failed to engage in the ADA accommodation process when she had voluntarily abandoned the interactive process and instead convinced her physician to lift her medical restrictions so that she could return to her former position.  The plaintiff could not satisfy her burden of proof by pointing to her supervisor’s refusal to immediately reinstate her when she submitted permanent medical restrictions because the “ ADA does not obligate employers to make on-the-spot accommodations of the employee’s choosing . . . . An employer’s refusal to provide an accommodation to the position of the employee’s choice immediately upon the employee’s request is not, in and of itself, a failure to accommodate under the ADA.” The plaintiff also could not prove that she had been coerced to abandon the process by her supervisor’s initial refusal because (1) she had later admitted during workers compensation proceedings that the supervisor had told her that the employer attempted to accommodate permanent restrictions and  (2) she been contacted about the interactive process within two weeks  and told that her employer would attempt to find her another position within her medical restrictions.

According to the Court’s opinion, the plaintiff employee suffered a work-related injury and on July 29 her doctor medically restricted her from lifting over 30 pounds, which was apparently an essential job requirement for a sorter.  Her supervisor refused to reinstate her with these permanent medical restrictions and the employer commenced the interactive process in mid-August by requesting additional medical information after she filed a grievance with her union.  After she delayed a month in providing the requested information and the employer delayed a month in scheduling a face-to-face meeting, she ultimately withdrew her accommodation request in mid-October when the employer indicated that it would try to transfer into another position.   Instead, she convinced her physician at the end of October to remove her medical restrictions and she returned to her former position as a sorter by November.   

Even though she had been reinstated, she filed the lawsuit challenging the employer’s refusal to reinstate her to her former position while she had permanent lifting restrictions imposed by her physician.

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 Rejects Full-Time Work Schedule as Presumptive Essential Job Requirement Under the ADA

Last month, the Sixth Circuit reversed an employer’s summary judgment on a claim brought under the ADA, FMLA, and Pregnancy Discrimination Act on the grounds that the employer failed to prove that full time employment was an essential function of the position that precluded the plaintiff from working half-time for six more weeks while she recovered from post-partum depression.   Hostettler v. College of Wooster, No. 17-3406 ((6^th  Cir. 7-17-18).  The employer made a few hair-brained decisions:  denying a temporary extension of a requested medical leave (i.e., part-time schedule) right after giving the plaintiff a glowing performance evaluation.   It also failed to engage in the interactive process once it realized that her modified work schedule was more trouble than it was worth and that it questioned her need for leave.   Accordingly, as with another recent Sixth Circuit decision, the Court concluded that an employer’s rescission of a reasonable accommodation constitutes direct evidence of disability discrimination, making the McDonald-Douglas burden shifting analysis inappropriate.  “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.” 

According to the Court’s opinion, the plaintiff was hired when she was four months pregnant and worked full time until she delivered.  She requested and was given more than twelve weeks of maternity leave, even though she did not qualify under the FMLA.  When her separation anxiety and post-partum depression precluded her from returning to work full-time, she was granted a reasonable accommodation of returning to a half-time schedule for approximately ten weeks.   She received a glowing performance evaluation in June.  In July, she submitted another certification indicating that she required approximately another six weeks of half-time work before she could return full-time. The next day, she offered to stay a couple hours later each day.  The day after that she was fired.   Although there was evidence that she had timely completed all of her assignments and had even been working a little from home, her boss was very stressed from picking up the slack and was concerned about work that was not getting done at all, like recruiting, lunch trainings, etc.  The plaintiff was not the only employee on medical leave and her boss was often the only person remaining in their small office.  The department was also starting a new online benefits enrollment system that month, which was taking the supervisor’s time as well.  However, a replacement was not hired until October – a month after the plaintiff likely would have returned to full-time work.

The employer argued that the employee only wanted to work part-time for the summer and that the only limitations she experienced with transitory and brief panic attacks.  However, the Court noted that she had been prescribed anti-depressants and had witnesses describe symptoms that went beyond the occasional brief panic attacks.

The “crux” of the case was whether the plaintiff was qualified for her position with or without a reasonable accommodation.

A job function is essential if its removal would fundamentally alter the position. . . . Put another way, essential functions are the core job duties, not the marginal ones . . . .

This analysis does not lend itself to categorical rules—it is “highly fact specific. . . . Although this court has stated that “[r]egular, in-person attendance is an essential function” of most jobs, EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015) (en banc), it is not unconditionally so; courts must perform a fact-intensive analysis.  In determining what functions are essential, courts may consider as evidence—among other things—the amount of time spent on a particular function; the employer’s judgment; “written job descriptions prepared before advertising or interviewing” for the position; and the consequences of not requiring the employee to perform the particular function.  29 C.F.R. § 1630.2(n)(3).  Although the employer’s judgment receives some weight in this analysis, see Williams v. AT&T Mobility Servs., 847 F.3d 384, 391–92 (6th Cir. 2017), it is not the end-all—especially when an employee puts forth competing evidence.

The Court found that the plaintiff had created a factual dispute about whether full-time work was an essential function of her position.  A co-worker supplied an affidavit that there was no work within the department which was not being accomplished.  The plaintiff had just weeks earlier received a positive performance evaluation which confirmed that she was performing her job. Indeed, the plaintiff had never been criticized about her work.   (The Court seemed oblivious to the fact that no rational employer is going to criticize an employee for not performing work while on medical leave).  When asked, her boss could not identify a particular task which was not getting performed.

On its own, however, full-time presence at work is not an essential function.  An employer must tie time-and-presence requirements to some other job requirement.  To be sure, [the employer] cites language from this court’s cases that, when viewed independently from the facts of the cases, supports the college’s position.  But those cases nevertheless carried out a fact intensive analysis of actual job requirements.

The Court continued:

In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is.  If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.  That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work.  Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework.  29 C.F.R. § 1630.2(o)(2)(ii).   

[The employer] may have preferred that [the plaintiff] be in the office 40 hours a week.  And it may have been more efficient and easier on the department if she were.  But those are not the concerns of the ADA:  Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency.  To that end, the ADA requires that employers  reasonably accommodate employees with disabilities, including allowing modified work schedules.  An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.  

The Court put limits on his holding:

[The plaintiff] never claimed, nor do we hold, that she had a right to perform her job on a part-time basis indefinitely.  If she had, we might be reviewing a closer case; one in which Wooster at least would have had the opportunity to show that such an accommodation was unreasonable.   . . . But that is not the case here.  Here, [the plaintiff] introduced sufficient evidence to create a dispute of fact over whether her moderate, time-limited accommodation allowed her to perform the essential functions of her position.

The Court also found a disputed issue of fact as to whether the employer had properly engaged in the interactive process. The trial court found it had by having four separate conversations with the plaintiff about the need for her to return to a full-time schedule, but the plaintiff asserted that it had only been discussed once and the employer never responded to her offer to work 6 hours/day.

The Court also reversed summary judgment on the plaintiff’s PDA claim because the trial court had concluded that the plaintiff’s refusal to work full-time was a legitimate and nondiscriminatory reason to discharge her that was not disproven as pretext.  However, the Court had already rejected the full-time work argument and found that the plaintiff had produced sufficient evidence of pretext by questioning whether that was the actual reason for her termination and showing disparate treatment by the longer medical leaves taken by two other employees for non-pregnancy reasons.

Notwithstanding the fact that no reasonable human resources employee could have believe that she was covered by the FMLA, the Court resurrected her FMLA claim by permitting her to pursue an equitable estoppel theory on the grounds that that the employer treated her leave as through she was covered by the FMLA even though she had only worked four months before she began her leave and had been given well more than 12 weeks off work before returning on a part-time basis.

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. 

A Tale of Two ADA Claims Or The Role of an Employer’s Legitimate Expectations Under the ADA

Within the past week, the Sixth Circuit has decided two ADA cases.  In both cases, the employer argued that it terminated the plaintiff because the employee was not meeting its legitimate expectations. In both cases, the plaintiffs raised claims that the employer failed to accommodate their disabilities.  In one case, the Court found that the employer’s failure to approve the employee’s requested accommodation or explore any alternatives constituted direct evidence of discrimination and, therefore, her termination for violating a standard rule in violation of its legitimate expectations was also discriminatory without regard to how it treated other employees for violating the same rule.  In contrast, in the other case, the Court refused to consider the plaintiff’s accommodation claim because he was not meeting the employer’s legitimate performance expectations and the employer had spent a month discussing the requested accommodations with the employee.  In one case, the plaintiff prevailed, receiving over $275K in back pay and compensatory damages and over $445K in fees for her successful attorneys, but the other plaintiff’s claim was dismissed without an expensive trial.  More problematic for employers, however, is that the Court held that when an employer denies a reasonable accommodation, the employer’s termination of the employee for not complying with the neutral policy that should have been modified as an accommodation constitutes direct evidence of discrimination and the employer may not defend itself by arguing it had a legitimate reason or treated other employees the same. “Failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.”

This morning, the Court affirmed the dismissal of the ADA claims brought by an employee who had been terminated for never mastering his job duties eight weeks after he had been hired.   Most v. BWXT Nuclear Operations Group, Inc. , No. 18-3059 (6^th Cir. 8-15-18).  The plaintiff suffered from social anxiety disorder (which caused panic attacks, etc.)  and had been treated for several years.  Based on his job experience, he applied for a job and was trained at the same time as another new hire, who like most new hires, mastered their job duties within a couple of weeks.  The plaintiff, however, had not mastered them after 8 weeks.   He was the only programmer hired in the prior 8 years who had not mastered his duties within a month of being hired. 

He took a few days off to consider whether to proceed with this job.  When he returned, he disclosed his disability and requested accommodation of certain job requirements which had not been identified in the online job listing when he applied.   At least one of those accommodations was granted, but the Court’s opinion is unclear about others even though there had been discussions over several weeks.  The Court also noted that the HR Manager was exceedingly rude to the plaintiff during the first month after the plaintiff sought accommodation of his disorder.  After two months of not improving sufficiently to perform billable work, the employer requested documentation to prove his claimed social anxiety disorder and gave the plaintiff six days in which to produce such evidence (i.e., before May 31).  On May 31, the plaintiff reported that the clinic had closed, but he produced two years of prescriptions and made an appointment with his primary care physician to receive an updated diagnosis.  He was fired six days later for not meeting job expectations nine weeks after being hired, requesting and requiring an unreasonable accommodation (which his supervisor had already told him was granted) and failing to provide medical documentation to prove the existence or extent of his disability.

The Court affirmed summary judgment on the grounds that the plaintiff was not qualified for his position because he did not meet the legitimate performance expectations of his employer:

[He] puts forth no evidence of positive performance that conflicts with [the employer’s] negative evaluations of his performance.  He also does not submit evidence that he was qualified to do the job, other than his on-paper qualifications.  Rather, [his] deficient performance supports that he was unqualified to do the job.  [His] claim for disability discrimination thus fails as a matter of law.

The Court refused to consider his failure-to-accommodate claim because he had not shown “that he was qualified for the position with or without reasonable accommodation” in light of his poor job performance.

The Court rejected the retaliation claim because concerns of his deficient performance had been expressed before he disclosed his disability and requested accommodation and he had not, as discussed above, refuted that his performance was not meeting his employer’s expectations or showed that he was treated differently than a similarly-situated employee.  As for the mistreatment by the HR Director, “these statements, although imprudent when viewed standing alone, are insufficient to show that [the plaintiff’s] poor performance did not actually motivate [the employer’s] decision to terminate him” in light of his poor performance and the period of almost a month while the employer engaged in the interactive process.

In contrast, a week earlier, the Court affirmed a jury verdict in favor of a former cashier who was fired for violating the employer’s rule against consuming merchandise in front of customers during her shift because she wanted to self-treat her low blood sugar.  EEOC v. DolGenCorp, LLC, No. 17-6278 (6^th Cir. 8-7-18).  The employer’s summary rejection of the plaintiff’s requested accommodation and failure to explore alternatives effectively precluded it from convincing a jury that equally effective alternatives existed.

According to the Court’s opinion, the plaintiff was a type-II diabetic who had twice been previously hospitalized and was required to monitor her blood sugar, take insulin daily and monitor her diet to keep from shaking, seizing or passing out.  When she has an episode, her doctors recommended that she immediately take 100 calories of glucose.  Although other options were available, the plaintiff preferred to drink orange juice because it was easy to measure and took effect quickly.  She had worked for the employer since 2009 and had been promoted several times, to the point of being trusted to staff the store alone.  Prior to her most recent promotion, she would take quick breaks in the back when she required orange juice, but in her new role, she could not leave the front of the store unattended.  Accordingly, she requested permission to keep OJ at the cash register and was told that it was against company policy.

Nonetheless, while there were customers in the store when she was the only employee on duty, she suffered two hypoglycemic episodes.  Because she could not leave the front of the store unattended, she purchased OJ from the store cooler and drank it.   Both times, she later informed her General Manager without consequences.   During a later audit by the District Manager and Regional Loss Prevention Manager of merchandise shrinkage issues (i.e., shoplifting), she was told that she had been seen eating Little Debbie snack cakes at the register.  She denied that accusation but admitted to buying and drinking OJ during two medical emergencies.   This was found to violate the franchise “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it, and she was immediately fired.

The employer argued that it had not been required to provide the requested accommodation – OJ at the cash register – when other accommodations were possible according to the plaintiff’s own nurse: “glucose tablets, or gels, honey, candy, and peanut butter crackers.”  However, by summarily rejecting the requested accommodation and failing to explore alternatives, there was no discussion of the well-established rule that employers are not required to grant the specific accommodation requested as long as the employee is provided with an effective accommodation.  There was also no discussion about these accommodations being ineffective (although the plaintiff argued that they were not as convenient as OJ).  Rather, the Court found that a jury could find these alternatives to violate the same rule that had been cited to deny the plaintiff permission to keep OJ at the cash register, even though that policy provided an explicit exception for disabilities depending on the circumstances.

The Court also rejected the employer’s argument that it had a valid reason for terminating her employment: that she violated the anti-grazing policy that applied to all employees (even though it provided exceptions for disabilities that were not granted to the plaintiff).

But a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him.  Imagine a school that lacked an elevator to accommodate a teacher with mobility problems.  It could not refuse to assign him to classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods.  In the same way, Atkins never would have had a reason to buy the store’s orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.

                 . .. A defendant may use a legitimate, nondiscriminatory rationale as a shield against indirect or circumstantial evidence of discrimination.   . . . But a neutral policy is of no moment when an employee presents direct evidence of discrimination.   . . .  And failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination.   . . . .  Hence “failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.”

The failure-to-accommodate was all of the direct evidence required to prove the plaintiff’s case.  She was not required to show any disability-animus by the employer.  By way of example, if an employer refused to retain a blind employee because of the added expense of special software, the employer’s cost-justification for her termination would not preclude a finding that its failure to provide a reasonable accommodation (the software) was direct evidence of discrimination on account of her disability.

Accordingly, the Court refused to consider whether the non-grazing policy had been equally applied to other, non-disabled employees because those employees would not be similarly-situated and more importantly, such a comparison is only required when the plaintiff relies on an indirect or circumstantial burden of proof.  In this case, the employer’s failure to accommodate (or consider other accommodations) was direct evidence of discrimination.

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 Affirms Employee Jury Verdict When Employer Denied Temporary Telecommuting Request During Employment Attorney’s Pregnancy

Yesterday, a unanimous Sixth Circuit affirmed a jury award of $92,000 to an inside employment law attorney who sued under the ADA and PDA after she was required to take paid medical leave during a ten week period of modified bed rest relating to a difficult pregnancy.   Mosby-Meachem v. Memphis, Light, Gas & Water Div., No. 17-5483.  The biggest take away is that employers should not argue with their inhouse employment attorneys.   Based on the conflicting evidence presented at trial, the jury was entitled to conclude that ten weeks of telecommuting was a reasonable accommodation under the ADA.  Further, by not raising it before the trial court, the employer waived its argument that the paid leave of absence it provided the plaintiff was a suitable and effective accommodation (when the employer typically gets to select which reasonable accommodation to provide). In any event, there was evidence that the employer had made its decision to deny telecommuting before engaging in the interactive process with the plaintiff because the decisionmakers were constrained by the prior directive from the company president to never allow telecommuting as a reasonable accommodation.  Therefore, when there is evidence that temporary telecommuting may be a reasonable accommodation, employers are required to consider that option even if regular, physical attendance is an essential job function.

According to the Court’s opinion, the employer’s new General Counsel had re-affirmed in writing shortly after she began working that inhouse attorneys were expected to be in the office during business hours.  Nonetheless, the plaintiff attorney (who was responsible for employment law compliance) was permitted to work from home during a two week medical leave following neck surgery.  Other attorneys were also permitted to telecommute on occasion.  During a difficult period of her pregnancy, the plaintiff attorney was instructed by her physicians to stay in bed (or close to it) for 10 weeks.  She then requested to telecommute for those ten weeks and did so for the next month while her request was being considered by the employer’s ADA accommodations committee.   However, her request was ultimately denied because her physical presence was an essential function of her position and there were concerns about her ability to maintain confidentiality while working from home.  Her appeals were denied.  Nonetheless, she was placed on paid FMLA leave and when that was exhausted, was placed on short term disability (STD).   In the meantime, she lost her law license for failing to pay an annual registration fee and she fixed that as soon as she was notified a few months after returning to work (at full pay) shortly after giving birth.  Dissatisfied at being required to take reduced STD pay and exhaust her FMLA leave before the birth of her child (and presumably unable to take leave following the birth of her child), she brought suit for violations of the ADA and Pregnancy Discrimination Act.  The jury ruled in favor of the employer on the pregnancy discrimination claim, but ruled in her favor on her ADA claim and awarded her $92,000.  The trial court also awarded her $18,000 in equitable relief based on lost pay and exhaustion of paid medical leave.  It rejected the employer’s request to reduce her recovery for the period of time when she was not licensed to practice law.  The employer appealed.

The employer argued that physical presence was an essential function of the job per the job description, admissions and witness testimony.  As faithful readers may recall, the en banc Sixth Circuit previously ruled that physical presence is an essential function of most jobs, meaning that employers cannot be required to eliminate that function and permit telecommuting.   The employer specifically identified her job duties to supervise staff, be available for emergency “call outs” to meet in the field, interview and depose witnesses, attend court, etc.  (Oddly, there was no discussion in the opinion about any concerns with her maintaining client confidentiality from home).   However, the Court noted that the plaintiff had introduced conflicting evidence – which the jury was entitled to believe – that she was “otherwise qualified.”   Remarkably, at least two of the employer’s outside attorneys testified that they could do some of these tasks for her (for an hourly fee, I’m sure).   In addition, the plaintiff testified that she had never tried a court case or taken a witness deposition.  Moreover, the job description was 20 years old and had not been updated as she had recommended a few years earlier.  In light of this evidence, a rational jury could conclude that the plaintiff was qualified to perform the essential functions of her position from home for ten weeks.

The Court distinguishes the Ford case on the basis that the plaintiff there was a poor performer with poor attendance and this plaintiff was not (as though any of those issues bear on the essential job function analysis).   More importantly, the telecommuting accommodations sought in Ford and Williams v. AT&T Mobility were for an indefinite time, while the accommodation request in this case was only for ten weeks. “Because the Ford and Williams cases leave open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time, a jury could have reasonably concluded from the evidence presented at trial that [the plaintiff] could perform all the essential functions of her job remotely for ten weeks.”

By now, many readers are wondering why the paid leave provided to the plaintiff was not a sufficient reasonable accommodation.  The employer finally raised that issue on appeal, but the Court rejected it because the employer apparently failed to raise it before the trial court and parties cannot raise arguments – even good ones – for the first time on appeal.  In any event, the Court observed that the plaintiff had introduced evidence that the employer had failed to engage in the interactive process in good faith (at the conclusion of which, the employer would be permitted to select an effective accommodation, even if not the one most preferred by the employee).  Specifically, the plaintiff was told before any discussion about her accommodation request that the company president had made clear that no one would be permitted to telecommute and that the ADA Committee resolved her request with that directive in mind.  Thus, even considering the employer’s right to provide any effective accommodation, the Court seemed to imply that the jury would be entitled to reject the employer’s choice if there had not first been good faith discussions during the interactive process.

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 Upholds Maximum Leave of Absence Rule Against ADA Challenge

Last month, the Sixth Circuit Court of Appeals affirmed summary judgment for the Columbus City Schools on a disability discrimination claim brought by a janitorial employee who did not request to return to work until more than two years after beginning a disability leave.  Wheat v. Columbus Board of Education, No. 15-3824 (6^th Cir. 2016).  The School’s bargaining agreement contained a provision limiting all leaves of absences to two years and the plaintiff was reminded of that several times.   She sought to return to work with a reasonable accommodation several months after the expiration of the two-year period and was terminated.  The Court found the rule to be reasonable and a non-discriminatory reason to terminate employment.  The reasonable accommodation claim failed because she did not seek it before the expiration of the two-year period.

According to the Court’s opinion, the plaintiff began a medical leave on August 9, 2009 for a shoulder injury she incurred on the job after she had already exhausted her vacation and sick leave days.  Each time she sought an extension of her medical leave, the Board reminded her about the two-year limit.  When the plaintiff learned that the School viewed her as ineligible to return to work, she sent a letter in March 2012 indicating that she planned to return to work on March 26, but required a reasonable accommodation. Four days later, the School notified her that she was being terminated according to the two-year rule.  Both the EEOC and OCRC found no probable cause of discrimination.

The Court found the rule to be reasonable and more generous than the one-year policy utilized by many employers. It even cited a case noting that few medical leaves longer than 18 months would be reasonable.  The plaintiff claimed that the rule was pretextual because the School had approved two of her extensions after the expiration of the two year period and had done so for 18 other employees as well.   The  School explained that those extensions had been a mistake based on a misunderstanding of Ohio workers compensation and that all of those employees were similarly terminated when the School’s misunderstanding was corrected.

The plaintiff also argued that the lack of advance notice of her termination reflected pretext.  However, the Court found that she was not entitled to prior notice of her termination and, in any event, had received it when she was reminded about the rule with each extension she received.

Importantly, the Court rejected her failure-to-accommodate claim because she did not seek any reasonable accommodations within the two-year period.  The School was not required to exempt her from the two-year rule in order to grant a reasonable accommodation or as an accommodation.

The Court also rejected her challenge the School’s no-restrictions return-to-work policy because she never attempted to return with restrictions during the two-year period and because the School’s letters to her indicated that they would consider permitting her to return with restrictions.  

Finally, the Court rejected the plaintiff’s attack on the School’s light duty program.  Employees with temporary injuries were assigned light duty with the aim of returning to full duty within 90 days.  Employees with permanent injuries were required to work with the Employee Relations Department.  The Court concluded that this did not violate the ADA.

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 Rejects ADA Claim Where Deposition Testimony of Plaintiff’s Physician Showed He Was Unqualified and Employer Could Reasonably Conclude that Plaintiff Would Continue to Seek Additional Extensions of Medical Leave.

Last week, the Sixth Circuit affirmed summary judgment on a disability discrimination claim asserted against an employer which took the high risk action --  of terminating a disabled employee who had been released to return to work with some lifting restrictions and who requested a reasonable accommodation -- without any evidence that the lifting restriction prohibited him from performing any of the essential functions of his job or consulting their own medical expert.  Aston v. Tapco Int’l Corp., No. 14-2476 (6^th Cir. 11-23-15).  The employer discharged the plaintiff after conducting its own internet research about the employee’s upcoming surgery and drawing its own medical conclusions about his actual ability to safely perform his job duties.  Even so, 18 months later, the employer reconsidered its position and offered the employee unconditional reinstatement to his position and agreed to honor his lifting restrictions.  Luckily for the employer, the employee’s own physician later contradicted the medical release he had provided to the employer before the plaintiff’s termination and testified in his deposition that he had not been physically able to perform his essential job functions at the time he was terminated or for some months thereafter. Accordingly, the plaintiff was not “otherwise qualified” for his job at the time of his termination.  In addition, after “an employer has already provided a substantial leave,” the request for “an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”  Finally, the court held that even if the plaintiff’s claim had proceeded to trial, he would have been precluded from recovering any back pay after he rejected the employer’s offer of unconditional reinstatement because he had a duty to mitigate his damages.

According to the Court’s opinion, the plaintiff had worked for the defendant employer for almost 20 years.  In 2006, he suffered his first heart attack and was off work for more than 26 weeks.  He suffered a second heart attack in May 2010 and in early November was released to return to work on January 1 with a 30-pound lifting restriction following impending surgery to implant an ICD.  HR surfed the internet to investigate the ICD surgery and found information that it was intended to prevent sudden death.   Even with a set return-to-work date, the employer notified the plaintiff that it did not believe that he would be able to perform his job duties, recommended that he should apply for LTD and indicated that he would be terminated by the end of the month.  The plaintiff returned to his physician with news of his impending termination and obtained an immediate return to work release with a 30-pound lifting restriction.  Nonetheless, the employer terminated his employment on the grounds that they did not believe that he could really perform his job duties and would not reinstate him unless he was released to full duty.  The plaintiff submitted a reasonable accommodation request the following month, which was ignored for 18 months.  At that point, the employer unconditionally offered to reinstate the plaintiff to his former job and to honor his lifting restriction.  Finding this to be too little, too late, the plaintiff instead pursued an EEOC Charge and filed suit later that same year.

There was no dispute that the plaintiff was discharged because of his disability.  His termination notice said as much and had stated that he would not be reinstated without a release to return to full duty.  However, the plaintiff was still required to show that he was “otherwise qualified’ for his position with or without a reasonable accommodation.  If he had been able to do so, the employer would have needed evidence beyond its own evaluation of his physical abilities and likely would have had to defend its requirement of 100% fitness.

Luckily for the employer, the testimony of the plaintiff’s own physician did not help his claims.  He testified that he had reviewed the plaintiff’s job description and had notified the employer that he could perform all of those tasks, with the exception of certain lifting.  However, he had not asked the plaintiff how much time he spent performing each task.  More importantly, the physician conceded that the plaintiff likely would not have been able to perform the essential functions of his job when he was released to return to work in November and would not have been able to do so until sometime after January.   Therefore, even if the employer had reinstated the employee in November or early January as requested, the plaintiff still would not have been able to perform about half of his job duties.  Accordingly, at the time of his discharge in November, he was not qualified to perform his job with or without a reasonable accommodation.

As for the plaintiff’s reasonable accommodation claim, the court still found that the plaintiff could not show that he was otherwise qualified because he would not have been able to perform his essential job functions in January.  It also would have constituted an undue hardship for the employer to continually extend his medical leave of absence: “when an employee’s return date is not so certain, an employer is not required to keep open a job for an employee indefinitely.”  

This situation goes beyond what constitutes a reasonable accommodation. At the time of [the plaintiff’s] termination, [the employer] reasonably questioned whether [he] would be able to return to work, not only in November, or in January, but if ever. Just a few weeks before terminating [him], [his physician] informed [the employer] of another impending major medical procedure that [he] needed to undergo. This would doubtlessly require additional time for recuperation. [The plaintiff] had already been on an extended 26- week leave once before, in 2006, and, at the time of his termination, [he] was on his second leave of unknown duration, despite the request for return on January 1, 2011. With no certain or credibly proven end in sight, we therefore maintain as we did in Walsh that when, as here, “an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”

Moreover, the court affirmed that the employee’s duty to mitigate meant that, even if he had prevailed on his ADA claims, he would not have been able to recover any back pay for the period after he rejected the employer’s reinstatement offer.  The Court rejected the plaintiff’s argument that the employer’s offer was not made in good faith (in that he had already been replaced, etc. and had been made merely to call the plaintiff’s “bluff” that he was physically capable of working).  “As the district court noted, the Sixth Circuit has not adopted the good faith exception as a special circumstance warranting the continued tolling of a plaintiff’s backpay, even after an employee rejects an employer’s unconditional offer for reinstatement.” 

Finally, the court rejected the employer’s request for sanctions on the grounds that the employee’s claims were not frivolous.  

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 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.