Ohio Appeals Court Reverses Employer’s Summary Judgment on Retaliation Claim Based on Workplace Investigation

 

Earlier this week, a unanimous Franklin County Court of Appeals affirmed summary judgment on a discrimination claim, but reversed summary judgment on a retaliation claim, finding sufficient evidence for a trial on whether the plaintiff was subjected to a workplace investigation and potential termination in retaliation for a Charge of Discrimination he had filed two months earlier.   Moody v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected to discrimination when he was given a paid three-day suspension for being hours late to work due to a misunderstanding about the work schedule.   During a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated patients, but he had never filed formal incident reports about any of those incidents.  He was then investigated for failing to file incident reports and threatened with a five-day suspension or termination.  He resigned and filed suit.  The Court found that a paid three-day disciplinary suspension which did not affect the plaintiff’s compensation, status, or other terms and conditions of employment could not constitute a material adverse employment action for purposes of employment discrimination.   However, subjecting the plaintiff to a workplace investigation two months later could constitute an actionable retaliatory action and was sufficiently close in time to his protected conduct of filing a Charge of Discrimination.  The Court also found sufficient evidence of pretext when the employer’s explanation was challenged by an independent witness who agreed with the plaintiff that there was no mandatory duty to file a formal incident report for relatively minor infractions which could be adequately resolved by reporting them to the Charge Nurse.

According to the Court’s opinion, the plaintiff received disciplinary action after engaging in horseplay at work.  He was directed to read some materials and prepare a performance improvement plan within a week, which he failed to do.  He was then given a written reprimand for failing to complete the assignment.    A few months later, he was given a one-day paid suspension for creating a workplace disturbance.  He then transferred to a new supervisor and had no further issues for almost three years.  However, he was then more than two hours late to work after relying on an earlier draft of the work schedule.  The next step in the progressive disciplinary policy was a paid three-day suspension.  Incorrectly believing that the bargaining agreement provided that his prior disciplinary actions dropped off after two years (instead of three years), he filed a Charge of Discrimination with the Ohio Civil Rights Commission, which was dismissed for lack of probable cause.  Two months later, he was interviewed as part of unrelated investigations of two co-workers.  He alleged during those investigations that the co-workers had been abusive towards patients.  Because he had never filed incident reports concerning any of those situations, he was then investigated and subjected to disciplinary action, including termination.  He resigned and filed suit.  The Court of Claims granted summary judgment to the employer.

A unanimous Court of Appeals affirmed in part and reversed in part.   The plaintiff failed to produce evidence of different treatment concerning most of the challenged employment actions.  His bare assertions that other employees, for instance, engaged in horseplay without disciplinary action was insufficient to create a material dispute of fact necessary to avoid summary judgment.   However, he did produce documentary evidence and a witness affidavit that a few other co-workers were late to work under similar circumstances and only received informal counseling, instead of formal disciplinary action.  Nonetheless, the Court concluded that the plaintiff could not prevail on a discriminatory treatment claim because his paid suspension had not altered his compensation, employment status or other terms or conditions of his employment.

"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis.  . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation."  . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “  . . . .  [citations omitted]

While terminations, failure to renew a contract, and unpaid suspensions can constate material adverse employment actions, “the Sixth Circuit has held that a paid suspension generally does not constitute an adverse employment action.”

We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .

In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.

However, the Court found sufficient evidence to support the plaintiff’s claim of retaliation.

In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").

We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim.  . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .

[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.

The Court found that the plaintiff also presented sufficient evidence to show that his protected conduct (in filing the Charge) was the cause of the workplace investigation because the investigation was conducted less than three months after his protected activity. 

We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation."  . . .  Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation.  . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection.  . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.

While the employer articulated a legitimate and non-discriminatory reason for investigating the plaintiff, the Court also found that he had presented sufficient evidence to question whether that explanation was pretextual for retaliation.   The plaintiff contended that filing incident reports was not mandatory for minor infractions and was able to cite to a statement made by a Registered Nurse during the investigation confirming his understanding.

[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs."  . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices  . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.

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

EEOC “Clarifies” COVID as ADA Disability Guidance

Yesterday, the EEOC updated its COVID-19 Technical Assistance Guidance to “clarify” when COVID-19 can constitute a disability under the ADA.  Very little of this breaks new ground.   An ADA disability is a disability regardless of whether it was caused by COVID and the same analysis applies regardless of the medical diagnosis or condition.    Moreover, “[a]pplicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.”  Interestingly, the TAG provides that an employee would be “regarded as” having a disability if the employee were, for instance, fired for having COVID or its symptoms unless the employer believed that the illness was BOTH transitory AND minor or unless the employer had a defense (about the employee being, for instance, unqualified or a direct threat to others because of the symptoms).  The direct threat defense, however, would no longer apply if the employee were no longer infectious.   There was no discussion about whether being unvaccinated alone could implicate a direct threat defense.

COVID can cause an impairment to be a disability regardless of whether the COVID itself constitutes a disability.   The impairment need not be permanent to constitute a “substantially limiting” factor, a few months can be sufficient, but a few weeks typically will not be enough to pass the test.  Severe recurring or intermittent episodes can constitute a disability as well.   Not every COVID diagnoses or illness will constitute a disability entitling the person to a reasonable accommodation because many people experience only mild symptoms that resolve within a few weeks.  

The new TAG section provides in relevant part:

N.1. How does the ADA define disability, and how does the definition apply to COVID-19? (12/14/21)

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);

“Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or

“Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19 and the ADA

“Actual” Disability

N.2. When is COVID-19 an actual disability under the ADA? (12/14/21)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 is a physiological condition affecting one or more body systems. As a result, it is a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures–i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.

Episodic Conditions: Even if the symptoms related to COVID-19 come and go, COVID-19 is an actual disability if it substantially limits a major life activity when active.

N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)

No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? (12/14/21)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA. For other examples of when “long COVID” can be a substantially limiting impairment, see the DOJ/HHS Guidance.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

“Record of” Disability

N.5. Can a person who has or had COVID-19 be an individual with a “record of” a disability? (12/14/21)

Yes, depending on the facts. A person who has or had COVID-19 can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or the person’s employer mistakenly believes the person has COVID-19? (12/14/21)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

N.7. What are some examples of an employer regarding a person with COVID-19 as an individual with a disability? (12/14/21)

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.

An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

N.8. If an employer regards a person as having a disability, for example by taking an adverse action because the person has COVID-19 that is not both transitory and minor, does that automatically mean the employer has discriminated for purposes of the ADA? (12/14/21)

No. It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others. See WYSK Question A.8. Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Other Conditions Caused or Worsened by COVID-19 and the ADA

N.9. Can a condition caused or worsened by COVID-19 be a disability under the ADA? (12/14/21)

Yes. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.

During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.

After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function. See Diabetes in the Workplace and the ADA for more information.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

Definition of Disability and Requests for Reasonable Accommodation

N.10. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation? (12/14/21)

Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation.

Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. Individuals are not entitled to an accommodation unless their disability requires it, and an employer is not obligated to provide an accommodation that would pose an undue hardship. See WYSK Section D, and Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA for more information.

N.11. When an employee requests a reasonable accommodation related to COVID-19 under the ADA, may the employer request supporting medical documentation before granting the request? (12/14/21)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA? (12/14/21)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

Applicability of Definition of Disability

N.13. If an employer subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, does that mean the employer violated the ADA? (12/14/21)

No. Having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.

For example, the fact that an applicant or employee has a current disability, or a record of disability, does not mean that an employer violated the ADA by not providing an individual with a reasonable accommodation. As discussed in Section D., there are several considerations in making reasonable accommodation determinations, including the employee’s need for the accommodation due to a disability and whether there is an accommodation that does not pose an undue hardship to the employer.

Similarly, the fact that an employer regarded an applicant or employee as an individual with a disability does not necessarily mean that the employer engaged in unlawful discrimination. For example, the ADA does not require an employer to hire anyone who is not qualified for the job. Moreover, in some instances, an employer may have a defense to an employment action taken based on an actual impairment, such as where the individual poses a direct threat to the health or safety of themselves or others in the workplace.

N.14. Do any ADA protections apply to applicants or employees who do not meet an ADA definition of disability? (12/14/21)

Yes. The ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability. By contrast, an individual must have a “disability” to challenge employment decisions based on disability, denial of reasonable accommodation, or disability-based harassment.

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.

Belmont County Appellate Court Affirms Employer’s Summary Judgment on Age Discrimination Claim

Last month, the Belmont County Court of Appeals affirmed an employer’s summary judgment when a former employee challenged the elimination of her Marketing Director position on the basis of age discrimination.  Cunningham v. Perry & Assocs., 2021-Ohio-4295.  The trial court determined that the plaintiff had not been replaced as required to carry her burden of proof because her duties were divided, some were outsourced and the rest spread among the remaining employees.  That the employer considered assigning some of her job duties to a younger male if he were ever rehired does not constitute replacement.  “An intent by an employer for another employee to assume only some duties does not constitute replacement.” Further, the plaintiff failed to produce evidence that the employer’s explanation was pretext for age discrimination.  It was undisputed that the employer had explained that the cost of the Marketing Director position outweighed the benefits, particularly when the Cambridge office was losing money.

According to the Court’s opinion, the plaintiff had initially been hired on a contract basis and then was hired as the company’s Marketing Director when she was 60 years old.   After challenging her initial 90-day performance evaluation, she alleged that she was given a $5k raise in lieu of a $5k bonus.  However, a few months after she brought up that the “raise” was not reflected on the following year’s pay stub, the employer decided to eliminate her “position because it determined that the cost of the Marketing Director’s salary and benefits outweighed the marketing results [it] realized during [her] employment. During this time-frame, [its] Cambridge, Ohio office was losing money. [It] ended up outsourcing its digital and social media marketing and redistributing the remainder of [her] job functions among its existing employees.”  Admittedly, no younger employees were hired to assume any of her duties, although she alleged that the employer considered re-hiring a younger male employee to assume some of her duties.

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

Ohio Appellate Court Remands Physician Non-Compete Case To Evaluate Whether Continuing Education Investment Was Sufficient Protectible Interest

In October, the Hamilton County Court of Appeals reversed a hospital employer’s summary judgment in a declaratory judgment action brought by a former employee-physician on the grounds that the trial court had incorrectly increased the employee’s burden of proof.   Wigton v. University of Cincinnati Physicians, Inc., No. 2021-Ohio-3576.  There was no issue of stealing patients or confidential information.  The employer justified the non-compete clause on the basis of the investment which it had made in the physician’s continuing education.  Neither party moved for injunctive relief and both moved for summary judgment.  Nonetheless, the trial court ruled that the physician failed to carry his burden of clear and convincing evidence (as required for injunctive relief).   The court of appeals ruled that the burden of proof should have been the simple no dispute of material fact and judgment as a matter of law standard and remanded the case to decide whether the employer’s investment in continuing education was significant enough to restrict otherwise fair competition.  In particular, the trial court was instructed to evaluate “whether the doctor’s “expertise was increased * * * more than would have been through experience as [a physician] in solo practice,” . . . and/or whether the training provided by the hospital facilitates some type of unfair competition.”

According to the Court, the plaintiff physician signed a non-compete clause which prohibited him from practicing medicine for 18 months within 10 miles of any location where he had previously worked in the prior 12 months.  After four years of employment , he accepted another position and sought a declaratory judgment on the enforceability of the non-compete clause, but did not move for injunctive relief (which requires clear and convincing evidence).  Instead, he sought a summary judgment (which only requires no disputes of material fact and judgment as a matter of law).  In opposing the summary judgment motion and moving for its own summary judgment, the employer’s attorneys argued the injunctive relief standard of proof (i.e., clear and convincing evidence).  There was no dispute about the physician attempting to steal patients or possessing any trade secrets or confidential information.  The employer was relying simply on the amount of training it claimed to have provided the physician to justify the restriction.

The appellate court observed that while reasonable restrictions are enforceable, physician non-complete clauses are disfavored:

Noncompete restraints on physicians are, therefore, “strictly construed in favor of professional mobility and access to medical care and facilities.” Id. Nevertheless, “covenants not to compete in the medical profession are not per se unenforceable, and will be upheld if they are reasonable.” Id. That said, we only enforce noncompete restraints on physicians “to the extent necessary to protect an employer’s legitimate interests; if there is no legitimate interest to be protected, the noncompete is unreasonable.”

             . . . Generally, noncompete restraints are only enforceable when the employee possesses protected business information (such as trade secrets or customer lists) that she can use against her former employer. . . . . Indeed, this is why noncompete caselaw focuses on preventing unfair competition, not simply ordinary competition.

Without ruling on whether the employer’s investment in the physician’s training was a sufficiently strong interest to justify a restriction on competition, the Court observed:

It concluded that UCP’s position as a nonprofit academic hospital provided a legitimate business interest in deterring defections like Dr. Wigton’s and that UCP invested in Dr. Wigton’s training. We take no position on the merits of these conclusions because they were assessed under an incorrect standard, but we do point out that in considering a physician’s training, a court should not simply evaluate whether a doctor received training (as all doctors do) but whether the doctor’s “expertise was increased * * * more than would have been through experience as [a physician] in solo practice,” id. at ¶ 28, and/or whether the training provided by the hospital facilitates some type of unfair competition.

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.

OFCCP Moves Closer to Requiring Annual AAP Certification by June 30

As the OFCCP moves closer to requiring annual compliance certification from service and supply contractors and subcontractors, last week it unveiled its compliance portal where contractors can submit their affirmative action plans (during a compliance review) and annually certify compliance with their affirmative action obligations.  “The Contractor Portal is a new OFCCP platform where covered contractors must certify whether they are meeting their requirement to develop and maintain annual AAPs.”  The portal will open on February 1, 2022.  The OFCCP has also announced that the certification details (like the content of the certification and public availability of the information) will be available in the portal by March 31, 2022.  “By June 30, 2022, existing contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.”

In its User Guide, the OFCCP explains:

Currently, federal contractors submit their AAPs via mail or email. The AAP-VI system will be the primary source for entering, tracking and submitting your Affirmative Action Programs for review by OFCCP. AAP-VI will provide federal contractors a system to submit their Programs in a more efficient manner and provide visibility and reporting capabilities of the data submitted by the Programs.

The impetus for the new program presumably comes from a 2016 GAO report finding that the OFCCP does not effectively track compliance with the affirmative action obligations of the vast number of contractors and subcontractors.

While the specific details of the required contractor certification have not been revealed, there was a sample of a question and certification page for companies seeking to receive a federal contract through the System for Award Management:

Select the checkbox pertaining to the correct SAM statement that best describes your AAP requirements.

o It has developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.

o It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.

o It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

New federal contractors have 120 days in which to develop an affirmative action program and 90 days after that in which to certify their compliance.

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.