Plaintiff's Belated Inaction Results in Affirmance of Summary Judgment on ADA Claim

Last week, the Sixth Circuit Court of Appeals affirmed the dismissal of an ADA claim where the plaintiff had been terminated because his use of Percocet was inconsistent with his job driving heavy equipment with a commercial drivers’ license.  Woodruff v. Ohio Dep’t of Transportation, No. 22-3316 (6^th Cir. 11-8-22).  The plaintiff had the opportunity to present countervailing evidence and had two years to seek reinstatement, but failed to do so until after the litigation commenced. 

According to the Court’s opinion, the plaintiff began taking Percocet after a motorcycle accident and failed shoulder surgery. When his employer learned of it, they realized that it was inconsistent with his duties as a heavy vehicle operator as required by his commercia driving license.  Federal regulations provide:

No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non–Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.

The plaintiff was requested to bring a note from his physician describing whether he could safely perform his job while taking Percocet.  Instead, the plaintiff returned with a letter from a CNP indicating that the plaintiff denied that Percocet impaired his cognitive functions and that he promised her in writing to not take any medication when operating heavy machinery.   Needless to say, the employer was underwhelmed and so arranged for an IME, which indicated that it was not safe for the plaintiff to drive while taking Percocet.   The plaintiff never submitted contrary information during his pre-termination hearing and never sought reinstatement during the two years after his disability separation (which is possible at the employer).   After his termination and commencing litigation, he obtained an affidavit from the IME physician indicating that he could safely perform his job duties.  The trial court granted the employer summary judgment.

The parties disputed whether the plaintiff was “otherwise qualified” to perform his duties in light of his Percocet prescription and the governing federal regulation.  The plaintiff argued that the CNP note should have satisfied the regulation. 

But this statement stops short of advising [the parties] that his Percocet use would not adversely affect his ability to safely operate a commercial motor vehicle. Rather, it tacitly concedes that [his] Percocet use could become a problem, but that he should be safe to continue working as long as he appropriately managed his medication.

The plaintiff then argued that the employer should have followed up with the IME physician, indicating that he would have provided the same information that he later provided to the plaintiff.  However, the Court found it was the plaintiff’s burden to show that he was qualified, not the employer’s.  Further, the physician did not provide the additional information until after he was fired, which is too late.   Employers are not liable for discriminatory decisions based on information that was not provided to them until after the termination decision.

The plaintiff then argued that the employer failed to make an individualized inquiry about his situation.  However, the Court concluded that the plaintiff was at fault for any breakdown in the interactive process.  The employer had requested him to provide information from his physician and the information provided was unsatisfactory.   The employer then arranged for an IME and the information provided did

not suggest that further inquiry would lead to a different conclusion. The Department also allowed [the plaintiff] to provide additional information before his termination. [The Plaintiff] did not take advantage of that opportunity, nor did he take advantage of the opportunity to seek reinstatement, even though he obtained Dr. Vogelstein’s affidavit within the two-year period in which he could seek reinstatement. Based on the record before us, the [employer] repeatedly sought to help [the plaintiff] fulfill subsection (b)’s requirements. In contrast, [the Plaintiff] took no action on his own until after filing this lawsuit.

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 Updates Mandatory Poster for Employee Breakrooms and Remote Distribution

 Just when you thought it was safe to walk back into an employee break room, the EEOC has updated its EEO is the Law poster for the first time in decades, retitling it Know Your Rights.  Its rollout of the poster was not without its hiccups because the link to the new poster did not work for the first 24 hours.  Because all employers with more than 15 employees are required to conspicuously post (or, remotely distribute, if applicable) the EEOC's poster, this will keep a lot of Human Resources professionals busy for a few hours. Employers who fail to post the mandatory poster can be fined. 

The new poster has revised the language used to discuss employees' rights under Title VII, the ADA and the ADEA to be free from discrimination and harassment and to file Charges of Discrimination.  It specifically notes that harassment is a prohibitted form of discrimination and that sex discrimination includes discrimination on the basis of pregnancy, sexual orientation and gender identity.  It also adds a QR code for digital access to the EEOC's webpage on how to file a Charge of Discrimination.  

The EEOC directs employers:

These posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post the notice digitally on their web sites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement. In some situations (for example, for employers without a physical location or for employees who telework or work remotely and do not visit the employer's workplace on a regular basis), it may be the only posting.

The EEOC also explains how to make them available to the visually impaired: 

Printed notices should also be made available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read. Notices can be recorded on an audio file, provided in an electronic format that can be utilized by screen-reading technology or read to applicants or employees with disabilities that limit seeing or reading ability. A screen-readable electronic format is available below.

EEOC Prevails With Jury In ADA Perceived Disability Case

 On Tuesday, the EEOC announced that it had obtained a jury verdict in an ADA perceived disability discrimination case where the Sixth Circuit last year reversed the employer's summary judgment (as reported here).    According to the EEOC, the jury awarded the employee $6,000 in compensatory damages and the parties stipulated to a similar amount for back pay.  (The legal fees would clearly have dwarfed the verdict).      The employee had requested intermittent FMLA leave to deal with anxiety and there had been factual disputes about the existence, content and legitimacy of supporting medical documentation (all of which created issues for the parties' credibility).  The employee was terminated despite having no disciplinary history during her eight months of employment.  The employer contended that it had not regarded her as disabled because she had admitted being able to immediately return to work, but the legal standard is merely whether it perceived her as having a mental impairment. 

Ohio Court Rejects Age Discrimination When Plaintiff Was Not Replaced, Could Not Identify Similarly-Situated Comparator and Employer Had Honest Belief.

Last month, the Lucas County Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim because the plaintiff employee could not show that he had been replaced, was treated less favorably or that his termination was pretextual when the employer had an honest belief supporting the reason for his termination.  Hardy v. The Anderson's, Inc., 2022-Ohio-3357.   The Court agreed that the plaintiff could show that he was minimally qualified for his position based on his prior experience and promotion even though he had a recent negative evaluation.  However, the plaintiff could not show that he had been replaced when existing employees assumed his prior job duties in addition to their existing responsibilities.  He also could not show that he was treated less favorably than a substantially younger employee when that employee was not similarly situated because he only lived a few hours/miles outside his sale district and had fully informed the manager of his living arrangements and had not tried to hide them, unlike the plaintiff who moved thousands of miles from Michigan to the Caribbean to be with his second wife.   Finally, there was no dispute that the plaintiff had not been candid about his living arrangements with his manager and that the manager blamed his relocation for his poor job performance.  Whether he lied or was merely evasive, whether or not it was necessary to spend a certain amount of time in the sales district meeting with customers, and whether or not he was required to have reported this time as vacation instead of collecting his regular salary, the Court had no trouble finding that no one else had engaged in similar behavior and it justified his termination.  The  Court also rejected the argument that the manager’s prior comment referring to him as a dinosaur could constitute direct evidence of or pretext for discrimination.

According to the Court’s opinion, to save his second marriage, the plaintiff had relocated to his wife’s home country in the Caribbean for extended periods of time without telling his new manager. While the plaintiff’s initial performance evaluation in his new management position had been favorable (while he had been living full-time in his sales district), his second evaluation had been negative even before his new manager found out that he had been spending most weeks in the Caribbean.   The plaintiff admitted that he had not submitted certain weekly report or learned a new computer system.  The plaintiff alleged that his new manager once referred to him as a dinosaur.  When his job performance suffered, the manager found out about his relocation, confronted him and immediately terminated him.    Following the termination, the manager assumed his duties for a few months before restructuring the position and hiring a new employee to perform parts of the duties in one region.    

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 Supreme Court Upholds First Amendment Rights of Unions to Picket Residences and Business of Elected and Appointed Government Officials

Earlier this month, the Ohio Supreme Court ruled that the First Amendment protects the right of unions to picket the homes and places of private employment of public and elected officials during labor disputes.  Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.  “R.C. 4117.11(B)(7)’s prohibition against inducing or encouraging any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer violates the First Amendment to the United States Constitution as a content-based restriction of expressive activity.” 

According to the Court’s opinion, after “negotiations over a successor collective-bargaining agreement reached an impasse,” the union “members began picketing on or about October 4, 2017. On seven dates” union members also picketed “outside the residences” of some of the agency’s board members. Once, the union members “picketed outside the private business and place of employment of one of the board members . . . . entirely on public streets or sidewalks. There is no evidence that any labor picketing involved obstructive or disruptive behavior.”  The employer filed unfair labor practice charges with SERB, which agreed that the union had violated Ohio Revised Code 4117.11(B)(7) and ordered the union to cease picketing private residences and businesses.  The union appealed to the common pleas court, which ruled in favor of the employer.  The  Court of Appeals reversed and the Supreme Court affirmed.

Peaceful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an unfair labor practice for an employee organization, its agents, or representatives, or public employees to * * * [i]nduce or encourage any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” The issue in this case is whether R.C. 4117.11(B)(7) violates the First Amendment.  . . .  we conclude that the statute does violate the First Amendment . . .

As the Court explained, peaceful picketing on public sidewalks enjoys considerable First Amendment protection as public forums.  Nonetheless, the government can regulate such speech – i.e., time and volume -- if the regulations are content neutral.

“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” . . . .

On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. . . . . If a statute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least restrictive means readily available to serve that interest. . . . .

Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected . . . .

The Court rejected the employer’s argument because the restriction cannot “be based upon either the content or subject matter of speech. . . . . “Governmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ””

According to SERB and the board, R.C. 4117.11(B)(7) is content neutral because it does not prohibit speech or prevent anyone from communicating any particular message. They further contend that the statute does not create a speech-free buffer zone around public officials’ residences or places of private employment, because all forms of communication other than targeted picketing are permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and manner restriction that is operative during a narrow period of time (picketing in connection with a labor-relations dispute), at a particular place (public officials’ residences and places of private employment), for a particular manner of expression (“targeted picketing”).

Justice Donnelly’s opinion observed that ““[g]overnmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ”   While the Supreme Court has upheld restrictions on “all” picketing “before or about” a residence, that ordinance was not limited to certain types of picketing based on the subject matter of the picketing, and, thus, was content neutral. 

R.C. 4117.11(B)(7) additionally regulates expressive activity based on the identity of the messenger. More specifically, it forbids “an employee organization, its agents, or representatives, or public employees” from inducing or encouraging anyone to picket a public official’s residence or place of private employment in connection with a labor-relations dispute.

Because the statute was not content neutral, it is subject to strict scrutiny under the First Amendment and must serve a compelling government interest. The statute’s goal of “protecting the privacy rights of public officials, thereby encouraging citizens to run for or serve in public office and preserving labor peace in Ohio” while laudable, was found to not be compelling enough to save the statute.  As the Justice Donnelly observed, “preserving residential peace and privacy is a significant but not a compelling government interest.”

Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point that no less-restrictive means was available to serve the stated interests. Local ordinances and state criminal codes exist to preserve law and order in the event of disruptive conduct that disturbs residential privacy and are justified without reference to the content of the expression. Nor has there been any showing that banning residential and private-employer labor picketing is the only way to encourage citizens to serve as officials of public employers or to preserve the peace during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) is not narrowly tailored to the proclaimed illness and indeed far exceeds the interests that it purports to serve

Justice Donnelly also mysteriously rejected the argument that the statute lawfully prohibited secondary picketing against a private sector employer which is not involved in the labor dispute.

picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relations dispute only because it does business with the primary employer. Indeed, in this case there is no indication that the private employer that was picketed by the association members had any business relations whatsoever with the board outside of the fact that one of the board members is both the owner and employee of the private employer. There is no indication that the private employer was threatened, coerced, or restrained from engaging in business with the board. Nor is there any evidence that that was the association’s objective in picketing the private employer. Assuming further that the private employer engaged in commerce or an industry affecting commerce, any expressive activity that caused incidental injury to the private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and thus would remain protected by the First Amendment.

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.