Sixth Circuit Rejects Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6^th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

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. 

Supreme Court Finds Implied Right of Action Under Rehab Act Does Not Include Recovery of Emotional Distress Damages

 

This morning, the Supreme Court ruled 6-3 that private actions brought against private entities under the Rehabilitation Act of 1973 and the Affordable Care Act are limited to recovering damages which are available generally in breach of contract actions between private parties.  Cummings v. Premier Rehab Keller PLLC, No. 20-219 (4-28-22).  In that case, a legally blind and deaf patient requested that a physical therapy practice provide an ASL interpreter for her sessions.  The practice refused and offered alternative accommodations.  The patient sought treatment elsewhere and brought suit against the practice -- not under the ADA’s public accommodation provisions -- but under the Rehab Act and ACA, which apply to the defendant practice because it receives reimbursement from the federal government through Medicare and Medicaid.  The Supreme Court had previously held such actions are governed by the Constitution’s Spending Clause and can only support damages that are generally available for breach of contract actions, which do not include punitive damages.  In this case, the plaintiff only sought recovery for emotional distress, which is also not generally available in breach of contract actions.

As Justice Roberts explained:

Congress has broad power under the Spending Clause of the Constitution to set the terms on which it disburses federal funds. “[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”  . . . .. Exercising this authority, Congress has passed a number of statutes prohibiting recipients of federal financial assistance from discriminating based on certain protected characteristics. We have held that these statutes may be enforced through implied rights of action, and that private plaintiffs may secure injunctive or monetary relief in such suits. . . . Punitive damages, on the other hand, are not available.  . . . . The question presented in this case is whether another special form of damages—damages for emotional  distress—may be recovered.

                . . .

Unlike ordinary legislation, which “imposes congressional policy” on regulated parties “involuntarily,” Spending Clause legislation operates based on consent: “in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”  . . . For that reason, the “legitimacy of Congress’ power” to enact Spending Clause legislation rests not on its sovereign authority to enact binding laws, but on “whether the [recipient] voluntarily and knowingly accepts the terms of th[at] ‘contract.’”

             . . . Recipients cannot “knowingly accept” the deal with the Federal Government unless they “would clearly understand . . . the obligations” that would come along with doing so. . . .

  . .. After all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table. . . . A particular remedy is thus “appropriate relief ” in a private Spending Clause action “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.” . . . Only then can we be confident that the recipient “exercise[d its] choice knowingly, cognizant of the consequences of [its] participation” in the federal program. . . .

                .  . .

            Because the statutes at issue are silent as to available remedies, it is not obvious how to decide whether funding recipients would have had the requisite “clear notice regarding the liability at issue in this case.”
 . . .. 

As one commentator concluded after “[s]urveying all of the cases dealing with emotional distress recovery in contract actions” over a decade after the Restatement’s publication, “a majority rule does not exist” on the question. D. Whaley, Paying for the Agony: The Recovery of Emotional Distress Damages in Contract Actions, 26 Suffolk U. L. Rev. 935, 946 (1992)  . . . . [Editor’s Note:  happy to see the Supreme Court cite to an article by one of my favorite OSU law professors].

The Court concluded that emotional distress damages may not be recovered for the same reasons it had ruled that punitive damages are not available.  

Affirmative Action employers would be interested in this decision because they are subject to affirmative action obligations through the Rehabilitation Act.

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

Franklin County Court of Appeals Reverses Employer's Summary Judgment on "Regarded As" Disability Discrimination Claim.

Last month, the Franklin County Court of Appeals reversed in major part a disability discrimination claim brought by a terminated day care worker with a genetic heart condition which made her susceptible to infections.  Anderson v. Bright Horizons Children's Ctrs., L.L.C., 2022-Ohio-1031.  The Court agreed that the plaintiff could not show that she was “disabled” under Ohio law because O.R.C. §4112.02 – unlike federal law -- does not include “operation of a major bodily function” as a disability.   The Court also rejected her argument that she had requested a reasonable accommodation with vague statements.   However, the Court found sufficient evidence for trial about whether the plaintiff was “regarded as” disabled and had suffered an adverse employment action on account of her heart condition when she had within the prior week disclosed that she suffered from a heart defect which was causing her attendance issues and there was a factual dispute as to whether she was even required to call off after being taken off the work schedule.    The Court also revived a claim against the plaintiff's former supervisor for aiding and abetting the employer's alleged discrimination.  

According to the Court’s opinion, the plaintiff suffered from a genetic heart valve defect which rendered her more susceptible to bacterial infections.    She was hired in March 2017 to work in the infant room of her employer’s daycare center.  Over the next 3.5 months, she missed 8 non-consecutive days due to various infections.  When she called off for another infection on July 10, she disclosed her genetic heart defect as the underlying cause.  When she returned to work on July 12, she was counselled for excessive absenteeism, informed that she was not providing the necessary consistency of care for the infants and it was suggested that she transfer to the substitute pool or resign.  She was also reprimanded for inappropriate use of her cell phone when she was supposed to be teaching earlier that day.   She suffered an anxiety attack when she next reported to work on July 14, called off and went to the ER.   Her mother called in to explain her genetic condition, her treatment in the ER for anxiety, migraine and blood pressure, etc. and admonished her supervisor for permitting feverish infants to be admitted to the day care when they posed a risk to her daughter.   While the mother requested that the employer not hold the heart defect against her, neither the mother nor daughter ever informed the employer that she had been released to return to work after leaving the ER.

The plaintiff was not put on the following week’s schedule, purportedly because she had not yet reported that she had been released to return to work.  The plaintiff claims that she assumed that she had been fired and did not report to work, but instead, attempted repeatedly to call her supervisor and manager and assumed that they were avoiding her.  The HR Department attempted repeatedly to call the plaintiff and, because her voice mailbox was full, emailed her with times they were available to talk with her.  The plaintiff did not call or email them as requested.  The employer’s policy provided that an employee would be considered to have resigned if they failed to report or call off from work for two consecutive “scheduled days.”   The plaintiff was informed on July 20 that she was deemed to have resigned because she had not reported to or off from work on July 14 (when she had) or on July 17 or 18 (when she was not on the schedule).  

The plaintiff sued the following month for disability discrimination.  The trial court granted the employer summary judgment, but the appellate court reversed.

The Court of Appeals first noted that while Ohio courts rely on federal ADA and ADAA decision for persuasive authority and guidance, federal court decisions are not controlling because the ADAA and its regulations differ substantially from federal law.  In particular, unlike federal law, Ohio law does not provide “that the operation of a major bodily function is a major life activity.”  Courts will not amend a statute where the General Assembly has not done so.   Accordingly, the plaintiff “has not demonstrated that her congenital heart defect substantially limits a major life activity” and cannot show that she is “disabled” under Ohio law under the first prong of the definition. 

Yet, the third prong of the definition encompasses “regarded as disabled” claims.  “Under the plain language of R.C. 4112.01(A)(13), a plaintiff may be disabled if the employer regarded the plaintiff as having a mental or physical impairment, without regard to whether the employer regarded the plaintiff as substantially limited in his or her major life activities.”  There was no dispute that the plaintiff suffered from a physical impairment due to her heart defect.   There was also no dispute that the plaintiff and her mother had disclosed the heart defect in the week before she was terminated.    The court rejected the employer’s argument that the disclosure of the defect was insufficient because they had no medical confirmation that it was actually causing her absences:

However, a question of fact arose regarding whether defendants believed [she] had a physical impairment once [she] informed [her supervisor] about her congenital heart defect.   [She] did not have to substantiate her medical condition with documentation to create a question of fact sufficient to survive summary judgment.

The court also rejected the employer’s arguments that the plaintiff’s prior medical releases to return to work without restrictions (for her prior sinus infections) precluded her from providing a disability because she was not claiming that her sinus infection was her disability.  Rather, the plaintiff had alleged

that defendants regarded her as disabled due to her congenital heart defect. Defendants did not receive any medical note returning [her] to work without restriction after an absence to treat her congenital heart defect. Consequently, defendants in this case had no reason to believe that the ongoing condition [she] suffered from—a congenital heart defect—had resolved itself because she had produced a note returning her to work without restriction after an acute infection.

The Court also rejected that the employer’s argument that the plaintiff had necessarily voluntarily resigned by not reporting to work after she had been taken off the schedule.  The employer argued that Mondays and Tuesdays were her regular work days and she was required to show up or call off.  The Court concluded that a reasonable jury could disagree about whether the plaintiff had voluntarily resigned by not properly calling off work on her normal work days (because she assumed that her supervisor was not answering the phone to deliberately avoid her) or responding to the HR Department when she had not been put on the schedule.   If she had voluntarily resigned under the policy, then she had not suffered an adverse employment action.  

The Court rejected the plaintiff’s argument that she had provided direct evidence of discrimination from the employer’s testimony that her prior sporadic absences played a role in the decision to terminate her employment.   Rather, that testimony required an inference from her disability-related absences were really about the disability and not the absences.    Nonetheless, that testimony was relevant to proving indirectly or circumstantially that she had been terminated on account of her disability.

A reasonable factfinder could determine that [the supervisor] deduced from this information that [the plaintiff’s] congenital heart defect was the underlying cause of her numerous acute infections and concomitant absences from work. Thus, a reasonable factfinder could infer that when [the supervisor] conceded that [her] absences played a role in her termination, she was really conceding that [her] perceived disability played a role in her termination.

Not surprisingly, the temporal proximity between the date when the plaintiff disclosed her heart defect and the date of her termination also constituted evidence that her disability motivated her termination:

[D]efendants terminated [her] employment on July 20, 2017, only ten days after [she] first disclosed her congenital heart defect to [her supervisor]. The temporal proximity between the disclosure of [her] alleged disability and the adverse employment action is circumstantial evidence of intentional discrimination.

Plaintiff was also replaced with an employee who did not have a disability.

The Court found irrelevant that the plaintiff was reprimanded for her inappropriate usage of her cell phone because that reprimand played no role in the decision to terminate her employment.

The Court noted that the parties did not seem to address or dispute whether the plaintiff was qualified for her position.  It also refused to consider the issue of pretext because the trial court had not addressed it below.   Nonetheless, it found the trial court had erred in granting summary judgment based on the circumstantial evidence the plaintiff had presented that she had been discriminated against on account of being regarded as disabled.

The Court rejected the plaintiff’s claim that the employer failed to provide her with a reasonable accommodation.  “When an employee does not propose a reasonable accommodation, his or her failure-to-accommodate claim must fail.”   The plaintiff claimed that she had requested on July 10 that the employer not count her disability-related absences against her, but the court found she had not sustained her burden of proving that she had requested a reasonable accommodation.  It similarly rejected the affidavit of the plaintiff’s mother she had requested on July 12 that the employer not hold the heart defect against her daughter because the statement was “not sufficiently direct and specific enough to qualify as a request for a reasonable accommodation.”

It is too vague for any employer to recognize it as a proposal for specific, special action needed to accommodate a disability in the workplace. Melody Anderson's request is more like general plea for "understanding" than a proposal for a concrete accommodation.

The  Court refused to recognize a separate claim for the employer’s alleged failure to engage in the interactive process because such a duty only arises under federal law when the plaintiff requests a reasonable accommodation – which did not occur here.  The Court noted that O.R.C. §4112.02 never mentions the interactive process obligation.  

The Court also reinstated the plaintiff’s claim that her supervisor had aided and abetted the employer in discriminating against her.   Because the “regarded as” disabled claim had been revived, this claim would be revived as well.

The Court then affirmed a number of discovery rulings and sanctions involving emails and recorded telephone conversations.

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 Reverses Employer's Summary Judgment on Failure to Accommodate Claim for Retroactive, Temporary Medical Leave

 

Last week, a divided Sixth Circuit Court of Appeals reversed an employer’s summary judgment on the failure-to-accommodate claim of an ER nurse.  King v. Steward Trumball Memorial Hospital, No. 21-3445 (6^th Cir. 4-7-22).   After calling off each shift for two weeks because of her asthma, the plaintiff allegedly formally requested medical leave on May 19, only to be told that she was ineligible under the FMLA.  While she tried to have the employer’s erroneous payroll calculation corrected, she was terminated on June 2 for failing to timely seek medical leave.  Even after the payroll records were corrected, she was still not eligible for FMLA leave.   Nonetheless, she was then retroactively given only two weeks of non-FMLA medical leave, but was not reinstated.  The Court concluded that a request for a temporary medical leave was reasonable and could be retroactively applied.  The employer had a history of retroactive application of leave requests and could not deem her request to be indefinite when it was disputed whether she was given the chance to express the duration of her alleged May 19 request.  The employer failed to engage in the interactive process after being put on notice of her leave request and failed to accommodate her when it terminated her employment despite her eligibility for a temporary non-FMLA leave of absence.  Finally, the employer could not suffer an undue hardship when the duration of her leave request was within the scope of its own policies.  Notably, the Court agreed that her calling off work every shift for two weeks was not a request for a medical leave of absence.  

According to the Court’s opinion, the plaintiff ER nurse suffered from seasonal asthma. She was familiar with the employer’s FMLA policy requirement to call the outside administrator to request FMLA leave, but, when she started having daily asthma attacks on April 28, did not attempt to use it until May 19.   Instead, she timely reported her asthma attacks and inability to breathe before each shift or after she reported to work as otherwise required by the attendance policy.  Her supervisor does not recall having to cover for her 14 consecutive absences or them creating a problem.  When she finally applied for FMLA leave on May 19, in a typical non-comedy of errors for large and merging employers, the plaintiff’s payroll hours were significantly miscalculated for the past year and she was deemed ineligible for FMLA leave.  While she spent two weeks getting this resolved, and continued to timely report off from work each day due to her asthma, she was terminated on June 2 for failing to timely request a leave of absence (coincidentally the date her physician four days later said she could return to work). Ultimately, it was concluded that she had only worked 1,170 hours in the past year, short of the 1,250 required by the FMLA.  On June 22, she was then retroactively granted non-FMLA leave for only two weeks, but her termination was not rescinded.

She filed suit a few months later under the FMLA, ADA and Ohio law.  She apparently did not file an EEOC Charge.  The trial court dismissed all claims on summary judgment and she only appealed the discrimination/failure to accommodate claims under Ohio law (which generally follows federal law). 

Although reliable and predictable attendance is generally an essential job function, the Court’s majority rejected the argument that the plaintiff’s inability to report to work automatically rendered her “unqualified.”

Therefore, the “general rule” espoused in Ford Motor —that “regularly attending work on-site is essential to most jobs,” . . .—cannot automatically apply where medical leave would enable the employee to return to work and perform the essential job duties. Indeed, “[a]pproved medical leave may be a reasonable accommodation and an inability to work while on such leave does not mean that an individual is automatically unqualified.”

Instead, the Court recognized that temporary medical leave is generally a reasonable accommodation which must be evaluated for reasonableness:

When assessing reasonableness, this Court considers: (1) the amount of leave sought; (2) whether the requested leave generally complies with the employer’s leave policies; and (3) the nature of the employee’s prognosis, treatment, and likelihood of recovery. . . .

While the courts have generally refused to set a maximum duration for the reasonableness of a leave request, “we have noted that requests for indefinite leave are likely unreasonable.”   While the Court’s majority recognized that the plaintiff had failed to request a particular duration of leave prior to being terminated, it still found a disputed issue of fact because the administrator had cut the May 19 conversation short by deeming her ineligible for FMLA leave.  The Hospital’s policy permitted up to 12 weeks of FMLA leave, and one-year of non-FMLA leave (under the bargaining agreement) and on June 5, she ultimately only requested five weeks of medical leave (from April 28 through June 1).

The Court distinguished cases which sought unreasonable requests for extended leave of over a year or beyond the employer’s policies or which involved employees who would still not be able to perform essential job functions after returning from medical leave.

The Court also held that it was reasonable for the plaintiff on May 19 to seek medical leave retroactively.  The plaintiff had received disciplinary actions in the past which were rescinded because of FMLA leave, etc.     “Requests for retroactive leave are not per se unreasonable, and we have recognized employers’ practices of granting retroactive leave in unforeseeable situations like this.”  In light of the non-comedy of errors in miscalculating her eligibility for FMLA leave – which took the employer two weeks to resolve – the Court found “emergency retroactive leave would have been reasonable.”  This was particularly true when the employer ultimately found that she was eligible for two weeks of retroactive non-FMLA leave.

Notably, the Court did not construe the plaintiff’s repeated call-offs as a notice of a need for medical leave:

Initially, when [the plaintiff] called in, she did not say that she needed medical leave.  The district court rightfully concluded that these daily call-ins were not requests for an accommodation. However, beginning on May 19, [she] started calling in and telling the on-call supervisor (Bungard and others) that she “was trying to get a leave but [she] hadn’t gotten it yet so [she] was reporting off again for the next day.” . . . . A jury could find that the calls beginning on May 19 were requests for an accommodation because [she] explicitly told [the] supervisors that she wanted medical leave to handle her asthma flare-up . . . .

The Court also observed the existence of “some disagreement over whether an employee can properly request an accommodation after her employer terminates her,” but refused “to wade into this debate because the record shows that she was trying to apply for medical leave well before her termination on June 2.”

The Court also rejected the employer’s argument that its knowledge of her attendance issues being caused by her asthma was not the same as having knowledge of her having a disability because the plaintiff produced evidence that created a disputed issue of fact precluding summary judgment.    In particular, the plaintiff explained each time she called off or left work that it was because she could not breathe due to her asthma.  “While an employer may not have knowledge of an employee’s disability merely because they took leave in the past and the employer is aware that they have some medical issues,” she had notified them repeatedly of the problem, putting them on notice of a potential disability.

Because the plaintiff had put her employer on notice of her need for an accommodation – a temporary medical leave, -- on May 19 and subsequent conversations about trying to get the payroll error corrected, the employer had the burden of engaging in the interactive process.    The trial court had found the May 19 request was not a request for an accommodation because the administrator claimed that she had only inquired about her eligibility for FMLA leave and did not formally request a medical leave.  The plaintiff, of course, denied this – making that issue a disputed issue of fact precluding summary judgment.

Despite having the duty to engage in the interactive process after May 19, the Court found the employer failed to discuss the potential accommodation in good faith.   The administrator failed to consider her eligibility for non-FMLA medical leave (even if she was not eligible for FMLA leave) and allegedly refused to consider her request.  In addition, the administrator and payroll department failed to timely address or fix its own errors over her past year’s working hours and, instead, inappropriately put the burden on the plaintiff to get the error corrected.   Moreover, the employer prematurely halted the interactive process by terminating her employment while her leave request was still pending. 

An employer may not stymie the interactive process of identifying a reasonable accommodation for an employee’s disability by preemptively terminating the employee before an accommodation can be considered or recommended.” . . . . And if the employer terminated the employee before fully considering the request for an accommodation, then the employer may need to “reconsider the decision to terminate” the employee.  . . . . [Her supervisor] knew that [she] was trying to apply for leave and that she needed FMLASource to fix her hours. Despite this knowledge, [he] terminated her for failing to timely seek leave, even though he knew that [she] was trying to do just that. Thus, [the plaintiff] sufficiently requested an accommodation, but the Hospital failed to engage in the interactive process in the wake of her requests.

The Court also found the employer failed to provide a reasonable accommodation when – despite retroactively granting her non-FMLA request on June 22 retroactively to May 14, it did not reinstate her.   The partial retroactive grant of the medical leave did not give her the full benefit of a medical leave because she was never reinstated. “Thus, the post hoc approval of her request did not provide all of the protections that medical leave is designed give.”

The Court also rejected the employer’s argument of undue hardship:

When an employer believes that granting medical leave would cause undue hardship, courts first look to the employer’s leave policies. . . . . If the employer’s policies provided for the kind of leave that the plaintiff sought, courts will presume that granting the plaintiff’s request would not cause undue hardship. . . . For the same reasons as discussed above, . . .[her] request for five weeks of non-FMLA leave was well within the Hospital’s policies. It also fell below the prolonged leaves that this Court has found unduly burdensome.  . . .Moreover, the Hospital allowed employees to seek emergency medical leave without advance notice, and even had policies in place for handling retroactive leave requests. . . . Anti-discrimination laws sometimes require employers to accommodate unexpected circumstances. Sudden illnesses and episodic flare-ups are, by nature, difficult to plan for and can be quite disruptive to those who fall ill and those around them. But that does not mean that accommodating a sudden flare-up will cause undue hardship merely because handling these situations requires more flexibility.

Additionally, the record shows that the Hospital did not actually suffer any undue hardship because of King’s five-week absence. The Hospital did not have any significant staffing disruptions, and Bungard does not remember having to pick up any of King’s missed shifts. Nor did King’s absence amount to excessive absenteeism under the Hospital’s disciplinary policies. King’s consecutive absences only counted as a single “occasion” and did not warrant any disciplinary action.

Finally, at the very least, the Hospital has not shown that keeping [her] job open while she applied for leave would have caused undue hardship. While keeping an employee’s job open indefinitely may cause undue hardship, . . . . keeping the job open long enough to allow the employee to apply for leave does not.  Accepting [the plaintiff’s] version of events, the Hospital terminated [her] after she first sought leave from FMLASource and while she was trying to sort out her hours so that she could formally apply for leave. Thus, a jury could find that the Hospital did not meet its burden to show that granting King retroactive leave while keeping her job open would have caused undue hardship.

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

Franklin County Court Affirms Claim of Denial of Reasonable Accommodation and Constructive Discharge

 Last month, the Franklin County Court of Appeals affirmed a trial court judgment in favor of a plaintiff who alleged disability discrimination and failure to accommodate.  Coomer v. Opportunities for Ohioans with Disabilities, 2022-Ohio-387.    The plaintiff had requested to return to her former work schedule in order to control her late afternoon anxiety.  Although the employer conceded that this was not a burdensome request, it denied it on the grounds that it was unpersuaded that the schedule change was necessary prior to exploring alternatives and because of her recent inadequate productivity.   The trial and appellate courts found that changing her work schedule was necessary to control her anxiety and that the employer had constructively discharged her by denying the accommodation.

According to the Court’s opinion, the plaintiff suffered from an anxiety disorder, but worked successfully for approximately seven years before requesting to delay her work schedule by an hour due to childcare obligations.  However, her anxiety worsened in the afternoons, slowing her productivity, so she took FMLA leave and requested to return to her former work schedule so that she could finish by 3:30.  While her supervisor approved the request, his manager denied it due to her recent performance issues.  The employer’s “core” work hours were 8 to 5, but management had discretion to change shifts by an hour earlier or later.   The following month, the plaintiff submitted a supportive note from her nurse and her physician answered the questions of the employer’s ADA coordinator.  The Coordinator and the Assistant HR Director denied the plaintiff’s request to return to her former schedule so that she could finish an hour earlier on the grounds that the information provided did not demonstrate a need to leave work earlier. While there was no dispute that she had a disability, leaving early was not deemed necessary and other actions were suggested to lessen her anxiety.  While these alternatives were discussed with (and rejected by) the plaintiff, no alternatives were submitted to her physician.    She ultimately received STD and then LTD. 

The employer argued that the plaintiff was responsible for a breakdown in the interactive process by refusing to discuss or explore the proposed alternatives – changing her lunchtime or listening to music --  with her physician or providing additional evidence.  The trial court “implicitly” rejected this argument by finding that the plaintiff was incapable of working past 3:30 p.m., making her proposed accommodation necessary.   Without acknowledging the weight of authority that an employee is only entitled to a necessary accommodation, not necessarily a preferred accommodation, the court of appeals concluded that “further discussions between Coomer and OOD concerning the request reasonably could be viewed as either unnecessary or futile after the denial.”

The court also rejected the employer’s argument that it had not constructively discharge her. Contending that only a “complete failure” to accommodate or offer reasonable alternatives can constitute a constructive discharge, the employer asserted that it was still engaging in the interactive process when the plaintiff left work, but the court found that the plaintiff could still prove a constructive discharge from the denial of a necessary accommodation.

The court also rejected the employer’s argument that the verdict was against the manifest weight of the evidence.  The employer offered no expert testimony to refute the plaintiff’s physician about her need to leave work at 3:30 (without utilizing FMLA leave) or her ability to return to a full-time schedule if accommodated.   The Court found it irrelevant that the plaintiff conceded that she was capable of working past 3:30 on some days because she typically became too anxious to work productively after 3:30.   The Court also refused to discredit the treating professionals opinions merely because they relied on the plaintiff’s self-reporting of symptoms.

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.