Franklin County Appellate Court Rejects Discrimination Claims Based on Criminal Conviction and Non-Substantially Limiting Impairments

[Editor's Note:  On August 3, 2023, the Court deleted its original opinion and re-issued it after a request for reconsideration on the issue (noted below) about whether a request for a reasonable accommodation may constitute protected activity for purposes of a retaliation claim.  Without resolving that issue, the Court deleted the paragraph discussing that issue (as noted below) and modified the opinion, but not the result: " In light of appellant’s reconsideration motion and the accompanying amicus brief filed with this court, we reissue our June 20, 2023 decision without original paragraph 102 and with a slight modification to original paragraph 103 (now 102). Whether a request for accommodation constitutes protected activity under Ohio law is a question that warrants full briefing before definitive resolution by this court."]

Last month, a unanimous Franklin County Court of Appeals affirmed an employer’s summary judgment where the plaintiff had alleged that he had been terminated on account of his race, disability and in retaliation for engaging in protected conduct.  Childs v. Kroger Co., 2023-Ohio-2034.  The plaintiff had been hired into a bargaining unit position despite a murder conviction from when he was a juvenile and was ultimately promoted to a salaried assistant manager position before he was fired when management learned about his prior murder conviction.  The Court found that he was unqualified for his position because the company policy at the time of his termination precluded the employment of convicted murderers.

According to the Court’s opinion, the plaintiff was convicted of murder in 1996 from when he was a juvenile.  He was hired by Kroger into an hourly bargaining unit position in 2014.  He had truthfully reported that he had a criminal conviction on his employment application and claimed to have explained the details to his interviewer.  The background check only reviewed the prior 7 years and so did not pick up the earlier murder conviction.   His job history listed his prison employment as well as his current job.  It apparently did not occur to the individuals reviewing his job application that his prison employment was as a prisoner instead of as a private contractor.  In 2015, he applied for and was selected for a management training position.  In 2017, he began suffering panic attacks after the store was robbed and he was physically threatened.  He was given a poor performance evaluation a couple of months later and put on a performance plan.  He then accused his manager a few months later of being racist based on observed favoritism.  A month later, he then submitted a medical statement about his depression and asked to be transferred to another store.  He then complained again in October 2017 about his manager, who was then transferred.  The plaintiff was also transferred from Reynoldsburg to Sunbury in February 2018 and he received a better performance evaluation.

While in Sunbury, the plaintiff learned in April 2018 that an employee had been convicted as a sexual offender.  He recommended termination and participated in the union grievance process that resulted in the employee’s termination as a risk to minor employees.  Shortly thereafter, an employee was searching for information about the plaintiff’s recent motorcycle accident and discovered his 1996 murder conviction.  It was reported to management and he was fired at the end of May 2018 because company policy provided that it was a disqualifying offense.  More than a year later, the plaintiff filed suit alleging race and disability discrimination and retaliation and wrongful discharge in violation of public policy, as well as unlawful aiding and abetting and defamation.  The trial court eventually granted summary judgment to the defendants on all claims and it was affirmed on appeal.  Much of the lengthy appellate decision involves procedural and discovery issues.

The Court concluded that, despite the fact that the plaintiff had worked more than three years at Kroger and been promoted, he could not satisfy his prima facie case and show that he was qualified for his position before being fired because his 1996 murder conviction rendered him unqualified.  The plaintiff “is unable to establish the third element of his prima facie case, because his murder conviction rendered him unqualified for employment at Kroger.” Evidence was presented that the company refused to hire individuals with certain convictions and fired them if a disqualifying conviction was later discovered.   Even if murder was not a disqualifying conviction at the time he was hired, it was at the time he was terminated.

The Court also rejected his claim for disability discrimination, which was based on his depression, anxiety and PTSD.  The Court found that the plaintiff failed to show that his depression substantially limited any major life activities because he admitted that he was able to continue to work and the remaining limitations were relatively insignificant.  Although the plaintiff

 indicated that his depression impacted his ability to sleep and do household chores on some days, he did not claim that his depression affected his ability to sleep or do chores for significant amounts of time. [The plaintiff] presented no evidence indicating that his depression substantially limited his ability to think or otherwise engage in major life activities, and he affirmed that he could hold a job despite his depression. Accordingly, [he] failed to demonstrate that his depression occurred in sufficient duration and with sufficient severity to significantly limit any major life activity.

In any event, even if the plaintiff could show that he were statutorily disabled, he “also could not establish that he was qualified for his assistant store manager position either with or without a reasonable accommodation, because his murder conviction rendered him unqualified for any position of employment with Kroger.”

As for his retaliation claim, the Court initially rejected his argument that he was retaliated against for requesting a transfer as a reasonable accommodation. “A request for reasonable accommodation does not amount to “participation in any manner in any investigation, proceeding, or hearing” or “opposition to an unlawful discriminatory practice” under R.C. 4112.02(I).” In other words, Ohio law does not consider a reasonable accommodation request to be protected activity for purposes of asserting a retaliation claim.  However, the Court withdrew that part of its opinion on August 3, 2023 as noted in the Editor's Note above. 

Similarly, the Court concluded that it was not protected conduct under ORC 4112 to report the sexual offender conviction of a subordinate to management when he asserted that his termination was motivated by reporting the sexual offender despite the store manager’s resistance.

Nonetheless, his other retaliation claim had more merit.  He claimed that he was placed on a performance improvement plan after asking his supervisor if he was racially biased against him.  However, the company contended that it was based on his earlier, year-end performance evaluation.  Sadly for the plaintiff, his own comments on his performance evaluation acknowledged that his performance needed to improve and commented on specific mistakes or shortcomings that he had shown.  He also could not disprove that the company always placed low-performing employees on performance plans.  Therefore, the Court dismissed the retaliation claim.

Because all of his ORC 4112 claims were dismissed, the aiding and abetting allegations against the individual employees and managers were similarly dismissed.

The Court also dismissed the wrongful discharge claim on the basis that his murder conviction motivated his termination and not his earlier report of the sex offender employee.  He could not show that public policy was jeopardized by his reporting of the sex offender to management.  Even if that report had motivated his termination, he could not identify a public policy which was violated by his termination:

[His] termination would not have jeopardized the public policy expressed in R.C. 2950.034(A). The statute prohibits sexually oriented offenders from residing in specific locations; it does not prohibit sexually oriented offenders from working at specific locations.

Finally, the Court dismissed the defamation claim based on the incorrect report that he had failed to previously disclose his murder conviction.  He claimed – without contradiction – that he had disclosed it in his job interview.  However, he could not prove that the HR employee passed that information along to management or that the individuals who allegedly defamed him knew that he had previously disclosed it in a 2014 interview.   Further, management has a qualified privilege to discuss other employees.

Furthermore, “ ‘a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege.’ ” . . . “Once the defense of qualified privilege attaches, a plaintiff can only defeat the privilege with clear and convincing evidence that the defendant made the statements at issue with actual malice.”

Ms. Gray and Mr. Shepard were both managers at Kroger, and their communication regarding [the plaintiff’s] failure to disclose his murder conviction was a matter of common business interest between them. As such, Ms. Gray’s statement to Mr. Shepard was subject to a qualified privilege. Because the evidence demonstrates that [he] failed to disclose his murder conviction to Kroger [in writing], Mr. Childs cannot establish that Ms. Gray made her statement to Mr. Shepard with actual malice.

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: Being Unable to Work for Mean Supervisor Is Not a Substantial Limitation in the Ability to Work

Last month, the Sixth Circuit affirmed the summary judgment dismissal of an ADA claim that the defendant employer failed to accommodate the plaintiff’s PTSD by transferring her away from her supervisor, which was apparently her only trigger.  Tinsley v. Caterpillar Financial Svs. Corp., No. 18-5303 (6^th Cir. 3/20/19).  The plaintiff claimed to only be disabled in the ability to work with that particular supervisor and did not claim to be impaired outside of the workplace or in her job duties.  However, the Court concluded that being disabled from working requires being unable to work in a broad class or range of jobs, not just with one job, in one workplace or for one particular supervisor.  Because she was not “disabled” under the ADA, the employer was not required to provide her with any accommodation and did not constructively discharge her.  Because the employer failed to address her FMLA retaliation claim on appeal, the case was remanded for that issue.


According to the Court’s opinion, the plaintiff reported in mid-April that her changed family and work responsibilities were stressing her out and requested to be removed from a team assignment. She then took three days of FMLA medical leave.  Some of her assignments were reassigned and she indicated that this improved her mental health.  Two months later, her work performance was criticized as well as her leaving early without approval and four months later she was placed on a performance improvement plan.  She claimed that the PIP was in retaliation because she complained about co-workers bouncing stress balls at work.  She then protested the PIP, claimed a hostile work environment created by co-worker horseplay, and said the unreasonable deadlines from a new assignment created too much stress, although other steps taken since her first complaint had improved her stress level.  An investigation of her concerns did not substantiate them.  She took another month of medical leave and was returned to work without restrictions with the recommendation that she be transferred to a different manager.   Instead, the employer granted her another 8 weeks of medical leave – putting her at 18 weeks of time off.  By January, the plaintiff was informed that she would not be transferred and would not be approved for more medical leave.  The plaintiff then retired and filed suit.

This Court has previously held that to be substantially limited from working––and thus eligible for ADA protection––an individual must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average  person having comparable training, skills and abilities.”  Swanson, 268 F.3d at 317 (citation  omitted).  Following this Court’s decision in Swanson, Congress enacted the ADA Amendments  Act of 2008, which relaxed the definition of “substantially limited” and noted that establishing a  qualifying disability is not meant to be a demanding standard. . . . Additionally, due to the broader definition of “substantially limited” under the Amendments, the interpretative guide produced by the Equal Employment Opportunity Commission (“EEOC”) notes that the major life activity of working “will be used in only very targeted situations” to determine whether an individual is disabled.

In such “targeted situations,” however, the EEOC has largely endorsed the pre-Amendments analysis for determining whether a person’s claimed impairment sufficiently impacts the major life activity of “working.”  Specifically, the EEOC’s interpretive guide explains that an individual who asserts that she is disabled because she is unable to perform the major life activity of “working” must still show that “the impairment substantially limits . . . her ability to perform a class of jobs or broad range of jobs in various classes.”  Id.  The EEOC further states that “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.”  Id.  Thus, to the extent the Amendments have altered the scope of the ADA’s protections, a plaintiff who asserts that her impairment substantially limits the major life activity of “working” is still required to show that her impairment limits her ability to “perform a class of jobs or broad range of jobs.”           

      . . . .

                the record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs.  The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed . . . with all the ball bouncing.”   . . .  For instance, on August 19, when Tinsley emailed Human Resources to request a new position, she explained that “the work itself was not the primary issue.”  And in the Charge of Discrimination, Tinsley wrote that the company could have accommodated her disability by switching her supervisor.  Last, her doctor cleared her to return to work at one point “at full capacity,” suggesting only that the company switch her supervisor to alleviate any medical concerns.  Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager.  Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The Court rejected her argument that her PTSD precluded her from working in a broad range of high-stress jobs because she consistently related her stress to her particular manager’s style and not to the type of work being performed.

Importantly, Tinsley’s physician cleared Tinsley to return to work without restrictions.  The only recommendation that Tinsley’s physician made––to have Tinsley transfer to a different supervisor––related to her stress level under Kaikaris specifically.  This is further illustrated by the fact that, when offered the same position under a different supervisor, Tinsley agreed that she would be able to perform the job duties.  Thus, Tinsley’s limitations were more accurately a product of the “unique aspect” of her “single specific job,” i.e., working as an analyst under Kaikaris’ particular management style.  Id.  Although we can certainly theorize a case in which an employee’s disability actually limited her from engaging in a broad range of similarly high-stress positions, Tinsley has not pointed to any record evidence permitting us to make that necessary inference.

Finally, the Court noted that she had sufficiently alleged a prima facie case of FMLA retaliation when she received her negative performance evaluation within two months of taking three days of FMLA leave.  Because that issue had not been addressed on appeal, it was remanded for further consideration.


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 Self-Diagnosed ADA Claims

Last week, the Sixth Circuit Court of Appeals issued a decision confirming in writing an intuitive, but never explicit, aspect of the ADA:  That self-diagnosed medical conditions do not generally qualify as medical or mental impairments for purposes of proving the existence of a disability.   Neely v. Benchmark Family Services, No. 15-3550 (6^th Cir. 1-26-16).   It is hardly uncommon for an employee to complain about an undiagnosed medical condition and then later sue for failure to accommodate after an adverse employment action.   In this case, the plaintiff complained about his inability to sleep and fatigue, and sought medical treatment.   However, his specialist never made a diagnosis, speculated that his insomnia could be medically-related or due to poor life habits, and recommended further testing, which the plaintiff never obtained.   When he blamed his performance problems on his undiagnosed sleeping disorder, he was told to hurry up and take care of that.   When his performance did not improve, he was demoted and then later fired after his attitude deteriorated.    The Court found that the plaintiff could not prove that he had a disability because he had never been diagnosed with a medical or mental impairment.  Further, the Court rejected his “regarded as” claim because an employer’s knowledge that he had certain symptoms was not the same as regarding him as having a serious and non-transitory medical impairment and because the plaintiff admitted his problem did not affect his ability to work.  Finally, the Court rejected his retaliation claim on the grounds that simply discussing medical symptoms with an employer is not protected conduct when the plaintiff lacked a diagnosis, failed to ever request an accommodation and never filed an EEOC charge before being terminated.

According to the Court’s opinion, the plaintiff claimed that he was unable to sleep and sought medical treatment.  The specialist speculated that it could be sleep apnea, but also observed that he suffered from “poor sleep hygiene,” (i.e., went to bed only when he felt like it, ate at odd hours, etc.).  The specialist said that further tests would be necessary before he could make a diagnosis, but the plaintiff never pursued those tests.  In the meantime, the plaintiff self-medicated (i.e., caffeine and sleep supplements).  When he was repeatedly counseled about poor job performance and sleeping at work, he blamed it on a sleeping disorder and said that he was trying to treat it himself.  His supervisor told him to “try to hurry up with that.”    When the plaintiff’s performance failed to improve, he was verbally reprimanded and demoted.   He complained that it was unfair to hold his sleeping disorder against him (which caused the manager to roll his eyes).  When co-workers complained about his poor attitude in the week following his demotion, he was terminated, filed an EEOC Charge and ultimately commenced this lawsuit.

The Court found that the plaintiff could not prove that he suffered from a medical or mental impairment, as necessarily to establish the existence of a disability.  The fact that medical professionals made note of his claimed symptoms does not change the fact that he was never diagnosed with a sleep disorder. The plaintiff’s “bare assertions of sleep apnea, without any supporting medical evidence, cannot establish a “physical or mental impairment” within the meaning of the ADA.”  The Court rejected the plaintiff’s argument that his own experience should be sufficient evidence to establish a disability because the plaintiff’s “own experience” is relevant only to establishing whether the diagnosed impairment substantially limits a major life activity and not to whether the plaintiff suffers from an impairment.

Interestingly, the Court also concluded that even if the plaintiff actually suffered from sleep apnea and only got about 2-3 hours of sleep each night, that would still not constitute a disability because prior precedent indicates that poor sleeping and breathing are not substantially limiting or severe impairments.  The Court refused to relax those precedents in light of the 2008 amendments to the ADA:

Though the 2008 Amendments undoubtedly eased the burden required for plaintiffs to establish disability, we note that Congress expressly chose to retain the “substantially limits” modifier for “one or more major life activities.” See 42 U.S.C. § 12102(1)(A); ADA Amendments Act of 2008, PL 110–325, September 25, 2008, 122 Stat 3553. A lesser burden is a burden nonetheless, and one that [the plaintiff] has failed to carry. We agree with the district court that, “[w]hile a diagnosis might not be absolutely necessary [to establish a record of impairment], in this situation, some diagnosis must explain the duration or severity of the impairment.”  . . . We therefore hold that [the plaintiff’s] self-described symptoms to his physicians, without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity.

The Court also rejected the plaintiff’s claim that he had a “record of impairment.”  He had no diagnosis and the recommendation for further testing by his sleeping specialist did not constitute a record of impairment.

The Court also rejected the plaintiff’s claim that he was “regarded as” having an impairment.  While the Court acknowledged that the 2008 ADAA had relaxed the “regarded as” definition from being regarded as having a substantially limiting impairment to simply having an impairment, the plaintiff still could not satisfy the lesser burden.  “[I]t is not enough that the employer is simply aware of a plaintiff’s symptoms; rather the plaintiff must show that the employer regarded the individual as “impaired” within the meaning of the ADA.”    In this case, the plaintiff undermined his own allegations when he admitted that his sleeping disorder did not affect his ability to work because the ADAA’s definition of impairment under the “regarded as” prong did not include minor and transitory conditions. “We agree with the district court that Neely paints an inconsistent picture by “both asserting that his employer was dismissive of his alleged disability and that he was so affected by it that his employer regarded him as disabled.”  That his employer was aware of the plaintiff’s self-diagnosed symptoms was insufficient evidence to show that it perceived him as suffering from a medical or mental impairment.   

Finally, we note that the “regarded as” prong “is intended to allow individuals to be judged according to their actual capacities, rather than through a scrim of ‘myths, fears, and stereotypes’ accruing around a perceived impairment.” Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002). Benchmark’s comments about Neely’s purported sleep disability do not reflect the myths or stereotypes regarding disabilities that the ADA is designed to combat, nor do they suggest discrimination or bias arising from a perceived disability.

The Court also rejected the plaintiff’s retaliation claim because he never engaged in any protected activity before his demotion or termination.  The Court concluded that simply informing an employer about the possible existence of a medical impairment – without requesting a reasonable accommodation – is not – by itself – protected conduct:

The parties do not dispute that Neely never requested an accommodation nor filed a formal [EEOC] charge against his supervisor before he was terminated. Instead, Neely’s purported protected activity was “complaining to Hanrahan [his supervisor] that it was unfair to use his sleeping disorder against him.” Neely Br. at 24. Nonetheless, Neely asks us to extend Bryson to cover his circumstances—that is, permit an individual who is not disabled under the ADA, who never requested an accommodation, and who never filed a formal charge while employed to be deemed to have engaged in a “protected activity” simply for discussing his sleep issues with his employer. We decline to do so here.

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.

Franklin County Court of Appeals Affirms Dismissal of Age and Disability Claims Brought by Fire Fighter

Last week, the Franklin County Court of Appeals affirmed the dismissal of disability and age discrimination claims brought by a fire lieutenant who was passed over for a promotion to captain. Sheridan v. Jackson Twp. Div. Fire, 2009-Ohio-1267. In short, the court agreed that plaintiff’s foot/ankle impairment was not “substantially limiting” when it did not preclude him from performing his firefighting duties. The age discrimination claim was dismissed because the successful candidate was only seven years younger than the plaintiff and the law does not require the employer to promote the oldest candidate.

According to the court’s opinion, the plaintiff claimed to have a disability “based on the fact that he has undergone several foot/ankle surgeries. Although he stated that these medical problems prevent him from running, mowing the lawn, or walking long distances without pain, the fact remains that he can still perform the duties of his job with the fire department. . .. Mere difficulty in standing or walking is not sufficient to establish a substantial limitation on the major life activity of walking . . . Even moderate difficulty in walking may not establish a substantial impairment . . . . Because [the plaintiff] is able to perform his occupational duties—fighting fires—it is difficult to conclude that he has a disability of the substantially limiting variety. This precludes relief under the ADA.”

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-1267.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.