Caldwell v. Niles City Schools , 2021 Ohio 1543 ( 2021 )

[Cite as Caldwell v. Niles City Schools, 2021-Ohio-1543.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
TAMI CALDWELL, : OPINION
Plaintiff-Appellant, :
CASE NO. 2020-T-0074
- vs - :
NILES CITY SCHOOLS, et al., :
Defendants-Appellees. :
Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2019 CV 01004.
Judgment: Reversed and remanded.
John F. Burke, III, BurkesLaw, LLC, 55 Public Square, 21st Floor, Cleveland, OH 44113
(For Plaintiff-Appellant).
Giselle S. Spencer and Robert J. McBride, Sr., Ennis Britton Co., LPA, 6000 Lombardo
Center, Suite 120, Cleveland, OH 44131 (For Defendants-Appellees).
MARY JANE TRAPP, P.J.
{¶1} Plaintiff-appellant, Tami Caldwell (“Ms. Caldwell”), appeals the judgment of
the Trumbull County Court of Common Pleas granting summary judgment to defendants-
appellees, Niles City Schools (the “district”), Ann Marie Thigpen (“Ms. Thigpen”), and
Tracy Parry (“Ms. Parry”) (collectively, the “defendants”), on Ms. Caldwell’s disability
discrimination claims.
{¶2} In her sole assignment of error, Ms. Caldwell contends that the trial court
erred by granting summary judgment to the defendants because genuine issues of
material fact exist.
{¶3} After a careful review of the record and pertinent law, we find that the record
contains sufficient evidence to create genuine issues of material fact as to whether (1)
the defendants took an adverse employment action against Ms. Caldwell based on her
disability in the form of a constructive discharge, and (2) the defendants made a good
faith effort to reasonably accommodate her. Therefore, the trial court erred in granting
summary judgment to the defendants.
{¶4} Thus, we reverse the judgment of the Trumbull County Court of Common
Pleas and remand for proceedings consistent with this opinion.
Substantive and Procedural History
{¶5} The district hired Ms. Caldwell as a limited-contract teacher beginning in the
1999-2000 school year. In the latter part of her employment, Ms. Caldwell worked as a
special education teacher at Niles McKinley High School. During the relevant time period,
Ms. Thigpen was the superintendent of schools, and Ms. Parry was the high school
principal.
{¶6} During her employment, Ms. Caldwell was diagnosed with fibromyalgia,
multiple disc issues in her back, plantar fasciitis, chronic ankle tendonitis, back pain,
anxiety, and depression. Ms. Caldwell’s physical conditions eventually began to affect
her ability to work.
2
Leaves and Accommodations
{¶7} During the 2016-2017 school year, Ms. Caldwell exhausted her available
sick leave by November 2016 and received donated sick leave from fellow teachers. Ms.
Caldwell submitted a letter to Ms. Thigpen requesting leave under the Family and Medical
Leave Act (“FMLA”) for the stated purpose of applying for disability benefits, which the
district approved. In February 2017, Ms. Caldwell submitted a letter to Ms. Thigpen
requesting a one-year leave of absence for medical reasons to begin March 1, which the
district also approved.
{¶8} In late August 2017, Ms. Caldwell submitted a letter to Ms. Thigpen
requesting to return to work early for the 2017-2018 school year, attaching a temporary
release to work form, which Ms. Thigpen permitted. Upon her return, Ms. Caldwell
submitted a letter from Jacob Bair, D.O. (“Dr. Bair”) requesting several workplace
accommodations, including the use of her personal motorized scooter to travel from
classroom to classroom.
{¶9} The district ultimately provided Ms. Caldwell with several of the
accommodations, including the use of her motorized scooter in the hallways. According
to Ms. Caldwell, however, she continued to have difficulty with mobility and prolonged
standing and walking while working in the classroom.
Meeting on November 3, 2017
{¶10} In late October 2017, the district’s then-treasurer, Linda Molinaro (“Ms.
Molinaro”), notified Ms. Caldwell via email that she had exhausted all available leave and
that it was “imperative that [she] address what [her] future employment will be with the
district.” According to Ms. Molinaro’s email, Ms. Caldwell needed to submit a written
3
request for unpaid leave to Ms. Thigpen or request sick days from the union’s sick leave
bank. If Ms. Caldwell’s absences continued through October with no future return to work,
the district would remove her from its health care effective November 1. If Ms. Caldwell
planned to return to work, she needed to provide Ms. Thigpen with “a doctor’s excuse
showing no restrictions” prior to her return.
{¶11} On November 3, 2017, Ms. Caldwell and the teacher’s union president met
with Ms. Thigpen to discuss her employment.1 Ms. Caldwell and Ms. Thigpen dispute the
substance of the discussion.
{¶12} Ms. Caldwell testified during her deposition that she told Ms. Thigpen she
was spending too much time on her feet even in the classroom. She asked Ms. Thigpen
if there were other available options, such a self-contained classroom or a different
position. She also asked Ms. Thigpen about using her scooter or a power wheelchair in
the classroom because, due to her extreme foot and ankle pain, she needed some type
of mobility device to use while teaching in the classroom. Ms. Thigpen rejected the idea,
responding that it would “cause a space and safety issue.”
{¶13} By contrast, Ms. Thigpen testified during her deposition that there was a
brief discussion about a motorized wheelchair, involving how much wider it was than the
scooter and whether they would need to rearrange the desks. However, the majority of
the conversation involved Ms. Caldwell taking additional leave. Ms. Thigpen denied
telling Ms. Caldwell that she could not take the scooter into the classroom or that she
could not use the motorized wheelchair.
1. Ms. Caldwell and Ms. Thigpen dispute whether there were other attendees to the meeting. According
to Ms. Caldwell, the additional attendees were Ms. Molinaro and Mary Kay Nicholas, who worked in the
district’s payroll department. Ms. Thigpen denied that these individuals attended the meeting.
4
{¶14} Ms. Caldwell submitted a letter to Ms. Thigpen dated the same day
requesting an unpaid leave of absence for November and December 2017 “[o]n the
recommendation of [her] health care providers” and “in anticipation of [her] STRS
disability determination.” The letter indicated that medical documentation was included.
The district subsequently approved Ms. Caldwell’s unpaid leave of absence.
Doctor Letters
{¶15} The record contains two letters from Ms. Caldwell’s doctors addressing her
medical conditions.
{¶16} One letter, from Jeffrey Molinaro, DPM (“Dr. Molinaro”), is dated October
12, 2017, and is addressed to “whom it may concern”:
{¶17} “Tami Caldwell who is currently under my care, has an open disability case
with your agency. She has attempted to return to work out of financial need. She has
been using a mobility scooter to travel from class to class in the school building. Due to
the amount of time she is required to stand/walk in the classroom, she has experienced
a severe worsening of her plantar fasciitis, chronic ankle tendonitis and increased arthritis
pain in her foot which has made mobility, swelling and pain control problematic. Her
current foot/ankle issues are also negatively impacting her back problems and chronic
pain condition due to difficulty walking and over compensation. Mrs. Caldwell was
recently seen with complaints of new pain in the ball area of both feet as well as painfully
burning sensation which she describes as ‘walking on hot glass’. I have recommended
additional testing with diagnosis to follow. I believe Mrs. Caldwell’s current podiatric
problems are hindering her ability to continue working in her current position. If you need
additional information feel free to contact me at [phone number].”
5
{¶18} A second letter, from Dr. Bair, is dated November 2, 2017 - the day prior to
Ms. Caldwell’s November 3 meeting with Ms. Thigpen - and is also addressed to “whom
it may concern”:
{¶19} “Tami Caldwell is a patient of mine with an open disability case. After an
extended period off from work due to her chronic health conditions, she attempted to
return to work due to financial need. We established a list of accommodations which
included the use of a mobility scooter, talk to text software, a chair to sit periodically etc.
Due to the time she must spend on her feet in the classroom, she has developed
neuromas (as per podiatrist diagnosis) as well as a worsening of her chronic pain
conditions. She is currently having limited success at controlling her pain to a level that
allows her to continue to work. She is receiving pain management services. It is my
recommendation that Tami return to an unpaid leave in anticipation of a disability
determination. If you have any questions or concerns, feel free to contract me at [phone
number].”
{¶20} Ms. Caldwell testified during her deposition that both letters related to her
pending disability claim. She did not remember if they were attached to her November 3
letter requesting unpaid leave.
{¶21} Ms. Thigpen testified during her deposition that she did not recall receiving
Dr. Bair’s letter during the November 3 meeting. While she had seen Dr. Molinaro’s letter
prior to her deposition, she did not recall when. She noted that neither letter contained a
date stamp from her office, while Ms. Caldwell’s November 3 letter did.
6
Ms. Caldwell’s Resignation
{¶22} In late December 2017, Ms. Caldwell was notified that her disability claim
was denied. The next day, Ms. Caldwell sent an email to Ms. Thigpen to inform her of
the denial, and they had a phone conference.
{¶23} According to Ms. Thigpen, she invited the entire treasurer staff to participate
in the call, which included the district’s new treasurer, Lori Hudzik (“Ms. Hudzik”). Ms.
Thigpen testified during her deposition that it was “a very cordial, nice conversation”
relating to payroll, insurance, retirement eligibility, and the status of Ms. Caldwell’s leave.
Ms. Caldwell also inquired whether she would be permitted to return to work. Ms.
Caldwell indicated that she wanted to speak to her financial advisor about paying off her
house and then would make a decision.
{¶24} Ms. Caldwell testified in her deposition that she had very little recollection
of the conversation because “that’s when [her] whole world came crashing down.”
However, she recalled some discussion about her returning to work and contacting her
financial advisor about paying off her house.
{¶25} Ms. Hudzik later submitted an affidavit regarding the phone conversation.
According to Ms. Hudzik’s affidavit, Ms. Thigpen told Ms. Caldwell that “she must either
resign or return to work” and that she would not be allowed to use her scooter in the
classroom. Ms. Caldwell indicated that she would have to consider her options and speak
with her financial advisor. Following the call, Ms. Thigpen stated, “Yeah, like I am going
to let her use a scooter in the classroom.”
{¶26} On January 3, 2018, Ms. Caldwell submitted a letter to Ms. Thigpen stating
that she resigned her position “effective immediately.” Upon Ms. Thigpen’s request, Ms.
7
Caldwell revised the letter to state that her resignation was effective January 1 since her
approved unpaid leave had expired on December 31. The letter also stated, “I appreciate
the opportunities I have been given at Niles City Schools and appreciate your professional
guidance and support. I wish you and the district all the best in the future.”
Charge of Discrimination
{¶27} Ms. Caldwell filed a charge of discrimination with the Ohio Civil Rights
Commission alleging that the district engaged in disability discrimination. The
commission issued a letter of determination finding no probable cause that the district
engaged in an unlawful discrimination practice in violation of R.C. Chapter 4112 and
dismissing the matter. Ms. Caldwell applied for reconsideration, which the commission
granted. The commission subsequently issued a letter of determination upon
reconsideration again finding no probable cause and dismissing the matter.
The Lawsuit
{¶28} Following the commission’s dismissal of her charge, Ms. Caldwell filed a
complaint in the Trumbull County Court of Common Pleas naming the district, Ms.
Thigpen, and Ms. Parry as defendants.
{¶29} Ms. Caldwell alleged that she was disabled or was regarded or perceived
as being disabled by the defendants under Ohio law; she was allowed to use a motorized
scooter to travel between classrooms as a reasonable accommodation; and during the
November 3 meeting, the defendants denied her request to use a power wheelchair or
motorized scooter in the classroom as an additional disability accommodation.
{¶30} In count one, Ms. Caldwell alleged the defendants engaged in disability
discrimination in violation of R.C. 4112.02(A) and R.C. 4112.99 by failing to properly
8
engage in the interactive process; failing to provide her with a reasonable
accommodation; and using her disability as a basis to take an adverse employment action
against her in the form of forced resignation. In count two, Ms. Caldwell alleged that the
defendants’ actions caused an intolerable work environment and amounted to a
constructive discharge.
{¶31} The defendants filed a joint answer denying the material allegations of Ms.
Caldwell’s complaint, and the parties exchanged written discovery. The defendants took
Ms. Caldwell’s deposition, and Ms. Caldwell took the depositions of Ms. Thigpen and Ms.
Parry.
{¶32} The defendants filed a motion for summary judgment. First, they argued
that Ms. Caldwell was unable to establish a prima facie case of disability discrimination
under R.C. 4112.02. While they conceded that Ms. Caldwell is disabled, they argued that
she cannot show the defendants took an adverse employment action against her because
of her disability or that she could safely and substantially perform the essential functions
of her job. Second, they argued there was no evidence of a constructive discharge. In
support, they cited Ms. Caldwell’s deposition transcript and its related exhibits.
{¶33} Ms. Caldwell filed a brief in opposition. She argued that she established
both a prima facie claim of disability discrimination and that the defendants failed to
properly participate in the interactive accommodation process. In support, she cited her
deposition transcript, Ms. Thigpen’s deposition transcript and a related exhibit, and Ms.
Parry’s deposition transcript. Ms. Caldwell also submitted an affidavit from herself and
the affidavit from Ms. Hudzik described above.
9
The Trial Court’s Judgment
{¶34} The trial court subsequently issued a judgment entry granting the
defendants’ motion for summary judgment.
{¶35} The trial court construed Ms. Caldwell’s allegations as involving a “prima
facie” disability discrimination claim and a failure-to-accommodate claim, but it found that
the analysis for a failure-to-accommodate claim seemed more appropriate in this case.
{¶36} The trial court determined that Ms. Caldwell was unable to show the
defendants took an adverse employment action against her because she voluntarily
resigned her position and because the denial of one accommodation, i.e., the use of the
scooter in the classroom setting, cannot be considered an adverse employment action
under these circumstances.
{¶37} The trial court also determined that Ms. Caldwell ultimately terminated the
interactive accommodation process when she voluntarily resigned from her position.
According to the court, an employee’s failure to cooperate in the process precludes an
employer’s liability for failing to provide reasonable accommodations.
{¶38} Ms. Caldwell appealed and presents the following assignment of error:
{¶39} “The Trial Court erred in granting Niles City School District, Ann Marie
Thigpen and Tracie Parry’s Motion for Summary Judgment.”
Standard of Review
{¶40} We review de novo a trial court’s order granting summary judgment. Sabo
v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9.
{¶41} Pursuant to Civ.R. 56(C), summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter
10
of law. Welch v. Ziccarelli, 11th Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶ 36. In
addition, it must appear from the evidence and stipulations that reasonable minds can
come to only one conclusion, which is adverse to the nonmoving party. Id.{¶42} “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial’. The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt [75 Ohio St.3d 280, 662 N.E.2d 264 (1996)], the Supreme Court of
Ohio held that the moving party seeking summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record before the trial court that demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim. The evidence must be in the record or
the motion cannot succeed. The moving party cannot discharge its initial burden under
Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no
evidence to prove its case but must be able to specifically point to some evidence of the
type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has
no evidence to support the nonmoving party’s claims.” Id. at ¶ 40.
{¶43} “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. If the moving party has satisfied its initial burden, the
nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial. If the nonmoving party
fails to do so, summary judgment, if appropriate shall be entered against the nonmoving
party based on the principles that have been firmly established in Ohio for quite some
time in Mitseff v. Wheeler [38 Ohio St.3d 112, 526 N.E.2d 789 (1988)].” Id.11
{¶44} A “material fact” is one that might affect the outcome of the suit under the
governing law. Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993). A
“genuine issue” exists when the evidence presents a sufficient disagreement to require
submission to a jury. Id.{¶45} In determining whether there exists a genuine issue of material fact to be
resolved, the court is to consider the evidence and all reasonable inferences to be drawn
from that evidence in the light most favorable to the non-movant. Jackson v. Columbus,
117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11. A court “may not weigh
the proof or choose among reasonable inferences.” Dupler v. Mansfield Journal Co., 64
Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980).
Disability Discrimination
{¶46} Ms. Caldwell’s complaint alleges that the defendants engaged in disability
discrimination under R.C. 4112.02(A) and R.C. 4112.99.
{¶47} R.C. 4112.02(A) provides, in relevant part, that “[i]t shall be an unlawful
discriminatory practice * * * [f]or any employer, because of the * * * disability * * * of any
person, to discharge without just cause, to refuse to hire, or otherwise to discriminate
against that person with respect to hire tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment.” R.C. 4112.99
provides that “[w]hoever violates this chapter is subject to a civil action for damages,
injunctive relief, or any other appropriate relief.”
{¶48} This court has held that disability discrimination under R.C. 4112.02(A) may
include both an employer’s taking an adverse employment action based on an
employee’s disability and an employer’s failure to make a reasonable accommodation.
12
DeCesare v. Niles City School Dist. Bd. of Edn., 154 Ohio App.3d 644, 2003-Ohio-5349,
798 N.E.2d 655, ¶ 21 (11th Dist.).
{¶49} For an adverse-employment-action claim, the person must establish a
prima facie case by demonstrating (1) he or she was disabled, (2) the employer took an
adverse employment action, at least in part, because the individual was disabled, and (3)
the person, though disabled, can safely and substantially perform the essential functions
of the job in question. Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 658 N.E.2d 738(1996), paragraph one of the syllabus; DeCesare at ¶ 19. An employee may satisfy the
third element by showing that he or she could have performed the essential functions of
the job with a reasonable accommodation, if necessary. Bowers v. Swagelok Co., 8th
Dist. Cuyahoga No. 87192, 2006-Ohio-3605, ¶ 46.
{¶50} Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to provide a legitimate, nondiscriminatory reason for the action. Hood at 302;
DeCesare at ¶ 20. If the defendant can establish a legitimate, nondiscriminatory reason
for the action, the plaintiff must show that the defendant’s stated reason was a pretext for
impermissible discrimination. Hood at 302; DeCesare at ¶ 20.
{¶51} A failure-to-accommodate claim is based on Ohio Adm.Code 4112-5-
08(E)(1), which provides that “[a]n employer must make reasonable accommodation to
the disability of an employee or applicant, unless the employer can demonstrate that such
an accommodation would impose an undue hardship on the conduct of the employer’s
business.” See DeCesare at ¶ 21-22.
{¶52} The plaintiff must demonstrate (1) he or she was disabled, (2) the employer
was aware of the disability, and (3) he or she was an otherwise qualified individual with a
13
disability, i.e., he or she satisfied the prerequisites for the position and could perform the
essential functions of the job with or without reasonable accommodation. Id. at ¶ 23;
Shaver v. Wolske & Blue, 138 Ohio App.3d 653, 663-664, 742 N.E.2d 164 (10th
Dist.2000).
{¶53} In addition, an employee’s request for an accommodation triggers an
employer’s obligation to participate in the interactive process of seeking an
accommodation. DeCesare at ¶ 24-25; Shaver at 664. To show that an employer failed
to participate in the interactive process, a disabled employee must demonstrate (1) the
employer knew about the employee’s disability; (2) the employee requested
accommodations or assistance for his or her disability; (3) the employer did not make a
good faith effort to assist the employee in seeking accommodations; and (4) the employee
could have been reasonably accommodated but for the employer’s lack of good faith.
DeCesare at ¶ 26.
{¶54} As indicated, the trial court determined that (1) Ms. Caldwell was unable to
show that the defendants took an adverse employment action against her, and (2) Ms.
Caldwell ultimately terminated the interactive accommodation process when she
voluntarily resigned, which precludes the defendants’ liability for failing to provide a
reasonable accommodation. Our inquiry is whether the record presents genuine issues
of material fact regarding these elements.
Adverse Employment Action
{¶55} The trial court determined that Ms. Caldwell is unable to show the
defendants took an adverse employment action against her.
14
{¶56} According to the trial court, an adverse employment action involves an
employment action that “significantly diminished material responsibilities.” In support, the
court cited the Sixth District Court of Appeals’ decision in Farris v. Port Clinton City School
Dist., 6th Dist. Ottawa No. OT-05-041, 2006-Ohio-1864.
{¶57} This statement is not applicable to all employment discrimination cases,
including the present case. The Farris court relied on the Sixth Circuit Court of Appeals’
decision in Kocsis v. Multi-Care Mgt., Inc., 97 F.3d 876 (6th Cir.1996), where the court
listed “significantly diminished material responsibilities” as one of several examples of a
“materially adverse change in the terms or conditions of [an employee’s] employment
because of her employer’s conduct,” which is also known as “a ‘materially adverse’
employment action.” Id. at 885-886, quoting Spring v. Sheboygan Area School Dist., 865
F.2d 883, 885 (7th Cir.1989).
{¶58} The Farris court also made this statement in the context of considering
“other potential adverse employment actions” after determining “there was no
constructive discharge in this case.” Id. at ¶ 67.
{¶59} Ms. Caldwell’s claims are not based on an alleged diminishment in
responsibilities. Rather, she alleges that she suffered an adverse employment action
based on her disability in the form of a constructive discharge. Specifically, Ms. Caldwell
alleges she was constructively discharged when the defendants denied her request for
an additional accommodation of using a power wheelchair or motorized scooter within the
classroom. Ohio courts have held that constructive discharge qualifies as an adverse
employment action. See, e.g., Hann v. Perkins Twp., 6th Dist. Erie No. E-03-025, 2004-
15
Ohio-3445, ¶ 19; Hoon v. Superior Tool Co., 8th Dist. Cuyahoga No. 79821, 2002 WL
93422, *6 (Jan. 24, 2002).
{¶60} The trial court also appears to have made its adverse-employment-action
determination in the context of both types of disability discrimination claims. For example,
the trial court stated that “an employer’s failure to immediately accommodate a request
by a disabled employee is not in and of itself an adverse employment action,” citing the
Tenth Circuit’s decision in Exby-Stolley v. Bd. of Cty. Commrs., 906 F.3d 900, 918 (10th
Cir.2018).
{¶61} The panel in Exby-Stolley made this statement in the context of a plaintiff’s
failure-to-accommodate claim after determining that such a claim also requires proof of
an adverse employment action. Id. at 917. The panel declined to consider whether the
plaintiff had established a constructive discharge because she had never asserted such
a claim in her complaint. Id. at 918.
{¶62} The entire Tenth Circuit, sitting en banc, subsequently vacated the panel’s
decision and rejected its underlying legal conclusion, holding that “an adverse
employment action is not a requisite element of an ADA failure-to-accommodate claim.”
See Exby-Stolley v. Bd. of Cty. Commrs., 979 F.3d 784, 788 (10th Cir.2020).
{¶63} Similarly, this court in DeCesare held that an adverse employment action is
not required to establish a failure-to-accommodate claim under R.C. Chapter 4112. See
id. at ¶ 21. Therefore, the trial court’s adverse-employment-action determination cannot
preclude Ms. Caldwell’s failure-to-accommodate claim.
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Constructive Discharge
{¶64} The Supreme Court of Ohio has held that “[t]he test for determining whether
an employee was constructively discharged is whether the employer’s actions made
working conditions so intolerable that a reasonable person under the circumstances
would have felt compelled to resign.” Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578,
664 N.E.2d 1272 (1996), paragraph four of the syllabus. In the context of disability
discrimination, a “claim of constructive discharge is premised upon a finding that [the
employee’s] working conditions were made intolerable, and it was foreseeable she would
resign when she was denied a reasonable accommodation.” Tally v. Family Dollar Stores
Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir.2008).
{¶65} The Sixth Circuit has held that “[a] constructive discharge claim ‘depends
upon the facts of each case and requires an inquiry into the intent of the employer and
the reasonably foreseeable impact of the employer’s conduct upon the employee.’” Id.,quoting Smith v. Henderson, 376 F.3d 529, 533 (6th Cir.2004). While an employee may
not “assert a claim for constructive discharge every time an employer fails to
accommodate her disability[,]* * * when an employee makes a repeated request for an
accommodation and that request is both denied and no other reasonable alternative is
offered, a jury may conclude that the employee’s resignation was both intended and
foreseeable.” Id. at 1109.
{¶66} The trial court found that Ms. Caldwell “voluntarily resigned her position.”
According to the trial court, Ms. Caldwell “made one request for an accommodation of the
scooter in the classroom” during the November 3 meeting “before taking her leave of
absence, and eventually resigning.” The court also stated that “the denial of one
17
accommodation under these circumstances cannot be considered an adverse
employment action.”
{¶67} The evidentiary record does not compel these findings.
{¶68} For instance, Ms. Molinaro, the district’s then-treasurer, notified Ms.
Caldwell via email in October 2017 that the district would remove her from its health care,
effective November 1, unless she submitted a written request for unpaid leave; requested
sick days from the union’s sick leave bank; or, if she planned to return to work, providing
a “a doctor’s excuse showing no restrictions” prior to her return. (Emphasis added.)
{¶69} Ms. Caldwell testified that during the November 3 meeting, she asked Ms.
Thigpen if there were other available options for her to continue to work, such a self-
contained classroom, a different position, or whether she could use her scooter or a power
wheelchair in the classroom. Ms. Thigpen allegedly rejected these options.
{¶70} In addition, Ms. Hudzik averred that during the January 2018 phone
conversation, Ms. Thigpen told Ms. Caldwell that “she must either resign or return to work”
and that she would not be allowed to use her scooter in the classroom.
{¶71} Thus, there is evidence in the record suggesting that Ms. Caldwell made
more than one request to use her scooter in the classroom as an additional
accommodation; that the defendants denied these requests; and that the defendants
made no alternative accommodation that would allow her to continue working. One could
reasonably infer that the defendants’ denial of the additional accommodation made Ms.
Caldwell’s working conditions intolerable to a person with her physical disabilities and that
Ms. Caldwell was compelled to resign as a result.
18
{¶72} The trial court also found that at the time Ms. Caldwell made her request for
an additional accommodation, her doctors “had already opined that she could not
continue to work, rendering the November leave immediately necessary.” This suggests
that Ms. Caldwell’s resignation was motivated by her doctors’ opinions rather than the
defendants’ actions.
{¶73} The evidentiary record also does not compel this finding.
{¶74} Both doctors’ letters are dated before the November 3 meeting. Dr.
Molinaro’s letter acknowledged Ms. Caldwell’s prior use of “a mobility scooter to travel
from class to class in the school building.” However, he wrote that Ms. Caldwell’s
conditions were worsening “[d]ue to the amount of time she is required to stand/walk in
the classroom.”
{¶75} Similarly, Dr. Bair wrote that Ms. Caldwell had developed “neuromas” and
“a worsening of her chronic pain conditions,” which were “[d]ue to the time she must spend
on her feet in the classroom.”
{¶76} Thus, neither doctor opined that Ms. Caldwell would remain unable to work
if the defendants had granted her request for an additional accommodation.
{¶77} Further, Ms. Caldwell testified that she took unpaid leave after the
November 3 meeting because she was “out of options” following the defendants’ denial
of her request. She ultimately resigned because her unpaid leave had expired, and her
working conditions had not changed.
{¶78} Accordingly, the record contains evidence presenting a genuine issue of
material fact as to whether the defendants took an adverse employment action against
Ms. Caldwell based on her disability in the form of a constructive discharge.
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Interactive Process
{¶79} The trial court also determined that the defendants could not be liable for
failing to provide a reasonable accommodation because Ms. Caldwell terminated the
interactive accommodation process by voluntarily resigning.
{¶80} As indicated, an employee’s request for an accommodation triggers an
employer’s obligation to participate in the interactive process of seeking an
accommodation. DeCesare at ¶ 24-25; Shaver at 664. To show that an employer failed
to participate in the interactive process, a disabled employee must demonstrate, among
other things, that the employer did not make a good faith effort to assist the employee in
seeking accommodations. DeCesare at ¶ 26.
{¶81} The Sixth Circuit has held that an employee who quits before the
accommodation request’s resolution is at fault for any breakdown in the interactive
process, not the employer. McDonald v. UAW-GM Ctr. for Human Resources, 738
Fed.Appx. 848, 855 (6th Cir.2018).
{¶82} As demonstrated above, there is a genuine issue of material fact as to
whether Ms. Caldwell voluntarily resigned or was constructively discharged. Thus, there
is necessarily a genuine issue of material fact as to whether Ms. Caldwell terminated the
interactive process by voluntarily resigning.
{¶83} Accordingly, the record contains evidence presenting a genuine issue of
material fact as to whether the defendants made a good faith effort to assist Ms. Caldwell
in seeking an additional accommodation.
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{¶84} In sum, we find that the trial court erred in granting summary judgment to
the defendants. In doing so, we express no views about the ultimate merits of Ms.
Caldwell’s disability discrimination claims.
{¶85} Ms. Caldwell’s sole assignment of error has merit.
{¶86} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is reversed, and this matter is remanded for further proceedings
consistent with this opinion.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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