Barber v. Chestnut Land Co.

[Cite as Barber v. Chestnut Land Co., 2016-Ohio-2926.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DEBRA A. BARBER, ) CASE NO. 15 MA 39
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
CHESTNUT LAND COMPANY, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 13CV2368
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty. Jonathan A. Good
Good & Good LLC
55 Public Square, Suite 2100
Cleveland, Ohio 44113
For Defendant-Appellee: Atty. Kathryn A. Vadas
DiCaudio, Pitchford and Yoder, L.P.A.
209 South Main St., Third Floor
Akron, Ohio 44308
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: April 6, 2016
[Cite as Barber v. Chestnut Land Co., 2016-Ohio-2926.]
ROBB, J.
{¶1} Plaintiff-Appellant Debra A. Barber (“the employee”) appeals the
decision of the Mahoning County Common Pleas Court granting summary judgment
in favor of Defendant-Appellee Chestnut Land Company (“the employer”). She
asserts the trial court erred as there are genuine issues of material fact on her claims
of workers’ compensation retaliation, disability discrimination, and failure to
accommodate. For the following reasons, Appellant’s assignments of error are
overruled. The trial court’s decision is affirmed.
STATEMENT OF THE CASE
{¶2} The employer operates Auntie Anne’s Soft Pretzels. The employee
began working in one of the stores in 1999. She worked her way up to manager,
which is a salaried position required to work fifty hours per week. She generally
worked five days a week from 8:00 a.m. to 6:00 p.m. (or 8-5 if she skipped her lunch).
(Barber Depo. at 20-21). On September 29, 2008, the employee slipped on a wet
spot at work. She caught herself before she fell but injured her back. She went to
her physician, Dr. Black, the next day. The employer certified a workers’
compensation claim for a lumbar sprain. The employee took off work a few days and
then resumed her regular schedule.
{¶3} In early 2009, some changes occurred in the employer’s headquarters
such as a new chief operating officer and a new human resource officer. Payroll was
instructed to be stricter about the fifty-hours per week required of managers; if they
worked too few hours in a week, their paid leave time was deducted to cover the
time. In addition, managers could not skip lunch in order to leave an hour early.
{¶4} The employee’s next doctor visit was on January 21, 2009. Two days
later, her doctor placed her on a work restriction involving a maximum workday of five
hours. On January 30, he continued the restriction “for a couple more weeks.”
Additional treatment, such as physical therapy, was then requested under the
workers’ compensation claim. As the employee worked her regular shift for nearly
four months after the injury and the doctor’s notes mentioned conditions such as
lumbar radiculitis and nerve entrapment, the employer was unsure if the requests
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were related to the work injury. The employer forwarded the workers’ compensation
file to its third-party administrator.
{¶5} On April 1, 2009, Dr. Black ordered the restriction for two weeks, which
was then extended until May 4, 2009. (Barber Depo. at 54). The employer entered a
“wage continuation agreement” with the Bureau of Workers’ Compensation (“BWC”)
so the employee received her full pay from April 3, 2009 through May 5, 2009.
(Barker Depo. at 55-56; Good Aff. at ¶ 23). Thereafter, her salary was decreased in
proportion to the hours worked (after all paid leave was used) as she continued
working at the restricted five hours per day. (Good. Depo. at 196-197; Wheeler
Depo. at 43-44). Dr. Black increased the daily restriction to six hours per day from
June 4, 2009 through August 24, 2009, at which time the five-hour restriction was
reinstituted. The employee exhausted her rights under the Family Medical Leave Act
(“FMLA”) in August 2009.
{¶6} In September 2009, the employee’s attorney filed a motion with the
BWC seeking an additional allowance for lumbar radiculitis. As a result, she was
scheduled for a functional capacity evaluation, which she completed in November
2009. She reported that after five hours of work, she was in severe pain with
weakness in both legs and hips. The resulting functional ability summary estimated
that her walking and standing durational abilities were much lower than the average
worker (and other categories such as reaching, handling, and crouching were higher
than average). Counsel thereafter withdrew the lumbar radiculitis motion.
{¶7} She continued to treat with Dr. Black, who had provided her with a
temporary handicap placard for her vehicle. Dr. Black’s notes in late 2009 and early
2010 spoke of lower back pain, at times described as severe, tenderness in the back,
and numbness extending to the legs. Dr. Black also mentioned a decreased range of
motion. She was prescribed pain medication and an anti-inflammatory. He
mentioned she may need an orthopedist and surgery but should try physical therapy.
{¶8} The employer had a policy under which the company would honor work
restrictions if they were related to a workers’ compensation injury. (Good Aff. at ¶
50). As Dr. Black referred to a condition other than that allowed in the workers’
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compensation claim, the employer initiated a dialogue with the employee under the
American’s with Disability Act (“ADA”) to ascertain if she qualified as disabled.
{¶9} On February 24, 2010, the employer sent the employee a letter and
packet, which included an essential functions analysis and an Interactive Process
Questionnaire for her doctor to complete. A store manager description and an
assistant store manager description were provided; an assistant store manager was
expected to work 35-40 hours per week. The letter explained that when it appears an
employee may have a disability, the employer and employee often enter into a
dialogue to gather information to determine whether the employee’s situation
constitutes a disability under the ADA.
{¶10} The letter also stated that if there is a disability, then dialogue would
help determine whether the employee will fully return to work or if reasonable
accommodations can be provided to allow the employee to fulfill the essential
functions of the job. It was noted the current accommodation of reduced hours was
being made provisionally until a disability could be verified and a final
accommodation may be different than the provisional accommodation.
{¶11} The employee provided the questionnaire to Dr. Black, and he
completed it on March 30, 2010. Dr. Black returned the document to the employee,
but she did not forward it to the employer. (Barber Depo. at 119). In May 2010, the
employer resent the documents to the employee with a cover letter disclosing the
employer had not received any of the information requested in the prior letter. The
employee still did not forward the questionnaire completed by Dr. Black. She stated
that she decided not to forward Dr. Black’s report because she started seeing a new
physician, Dr. Dunne. (Barber Depo. at 124-125).
{¶12} Her first visit to Dr. Dunne was April 15, 2010. His notes stated she
was having difficulty with household activities and driving as she had intense
pressure and pain from prolonged sitting and standing. He stated that five hours of
standing increased her pain. He also mentioned a limited range of motion. Dr.
Dunne filled out the interactive process questionnaire in May 2010. He provided it to
the employee. The employee did not forward it to the employer; the employer did not
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receive the questionnaire. The employee stated she asked the doctor’s office to fax it
to the employer (if it was ready) after the employer called her to inquire why she had
not responded to their second letter. (Barber Depo. at 131-132).
{¶13} On June 9, 2010, the employee filed a motion for an additional
allowance for a herniated disc at L5-S1 due to Dr. Dunne’s conclusion that the fall at
work caused a symptomatic disc herniation. In July 2010, a district hearing officer
denied the motion finding the evidence failed to establish the September 28, 2008
work injury was the direct and proximate cause of the development of the condition.
The employee appealed, and a staff hearing officer upheld the decision in September
2010. She appealed to the Industrial Commission.
{¶14} On October 9, 2010, the employee exhausted her FMLA rights for the
year. The human resources manager and others at headquarters agreed to
terminate the employee. They reasoned the employee’s half-time hours should no
longer continue as a manager is required to work fifty hours per week, the
employee’s restrictions were unrelated to a work injury, and her FMLA was
exhausted. They decided to wait for the Industrial Commission’s decision in case the
hearing officer’s decision was reversed.
{¶15} On October 21, 2010, the Industrial Commission affirmed the decision
denying an additional allowance. Upon learning of the decision, the human
resources manager scheduled a meeting with the employee for the next day. The
employee was terminated at the October 22, 2010 meeting and was provided a
termination letter. The letter explained the store manager position is a salaried fifty-
hour per week position and the success of the business depends on the manager
being present at the store. The letter continued:
Due to the reason that you are not fulfilling the 50-hour week
requirement of the position, you are relieved of your duties, effective
today, Friday, October 22, 2010. As you aware, your Workers
Compensation appeals have been denied and you have exhausted
your Family and Medical Leave Act (“FMLA”) benefit. Furthermore,
there has been no response from you or your doctor as to our requests
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for information, pursuant to the Americans with Disabilities Act, that we
provided to you March 6, 2010 and again on May 15, 2010. This
unfortunately leads us to this very difficult decision.
{¶16} After her termination, she filed a November 2010 motion for an
additional allowance for a disc protrusion at L5-S1. This request was granted, and
the additional condition was allowed by a district hearing officer and then a staff
hearing officer. (Barber Aff. & Exhibit).
{¶17} In February 2011, the employee filed a charge of disability
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
alleging the employer failed to provide a reasonable accommodation. The employer
responded with its position statement. The EEOC asked the employee to file rebuttal
evidence, but it is unknown if she complied.
{¶18} On April 20, 2011, the employee filed suit against the employer alleging
wrongful termination under R.C. 4123.90 by retaliating for a workers’ compensation
claim. (She had provided the employer with written notice of a claimed violation of
the statute within ninety days of her termination as required by R.C. 4123.90.) She
voluntarily dismissed the suit on August 23, 2012. She refiled the action on August
23, 2013. She amended the complaint on March 18, 2014 to add claims for disability
discrimination and failure to accommodate.
{¶19} On August 1, 2014, the employer filed a motion for summary judgment.
As to the workers’ compensation retaliation claim, the employer argued there was no
evidence or inference of a retaliatory motive. The employer urged that even if there
was a prima facie case, they had a legitimate non-retaliatory reason and the
employee cannot show that the reason was pretextual.
{¶20} Concerning the disability claims, the employer first argued there was no
evidence the employee was disabled as a mere medical diagnosis does not equate
with evidence of a substantial impairment. The employer also claimed that even if
she were disabled, they did not know or have reason to know of her disability.
Emphasis was placed on the employee’s failure to forward the interactive process
questionnaires to the employer after her physicians completed them; they repeatedly
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voiced a desire to learn whether her condition rose to the level of a disability under
the law, but she failed to assist in this endeavor. The employer urged that if the
employer is not responsible for the breakdown in the interactive process dialogue,
there can be no liability for failure to accommodate.
{¶21} The employee responded to the motion for summary judgment urging
that a reasonable juror could conclude: the employer retaliated against her for
pursuing her workers’ compensation right since they used her workers’ compensation
claim as a factor in the termination decision; the employer discriminated against her
because of her disability; and the employer failed to reasonably accommodate her by
letting her remain store manager at five hours per day (or offering her another
position such as assistant manager).
{¶22} The employee noted she was terminated the day after her appeal to the
Industrial Commission failed. She pointed to the contents of the termination letter,
signed by the chief operations officer, stating she was terminated and referring to the
denial of her workers’ compensation appeals. She emphasized the employer’s
human resource manager admitted that the BWC’s denial of the workers’
compensation claim seeking an additional condition was a factor in the termination.
(Good Depo. at 166-170). The employee stated that besides creating a reasonable
inference, this constitutes direct evidence of the retaliatory state of mind.
{¶23} The employee urged that the fifty-hour work week was a pretext for her
termination. In her February 2010 review, she was rated as exceeding expectations
in the categories of: quality of work; quantity of work; dependability; attendance and
punctuality; job knowledge; and safe work practice. Under quantity of work, it was
noted that she does a good job of getting her work done efficiently given the hours
she is able to work. (She was rated as meeting expectation in some categories
including overall store management, individual effectiveness, and initiative; she was
rated as needing improvement in leadership, employee development, and service
focus.)
{¶24} The employee also noted the termination letter incorrectly suggested
her appeal rights were over at the time of her termination (as she had 60 days to
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appeal the Industrial Commission’s decision to the trial court). She also pointed out
that (after her termination) a new motion for additional allowance for her L5-S1 disc
protrusion was filed and allowed by a district hearing officer and then a staff hearing
officer. (Barber Aff. & Exhibit).
{¶25} The employee pointed to testimony indicating other managers were not
fired for failing to work fifty-hour weeks. (Good Depo. at 174) (stating she did not
think anyone else was fired for failing to work 50 hours); (Sammartino Depo. at 112-
113) (stating that he could not recall a store manager being terminated for falling
short of fifty hours in a week). However, those managers did not continually work a
half-time schedule. Rather, when a manager would occasionally fall short, they
would receive a call and their accumulated leave would be used for any lacking
hours. (Sammartino Depo. at 112-113; Wheeler Depo. at 42-43). There was also
testimony that there were managers who managed two stores (meaning they were
only at an individual store half of the time). (Henry Depo. at 60).
{¶26} Regarding her disability discrimination claim, the employee urged that
she had a physical impairment in the form of an L5-S1 disc bulge that substantially
limited major life activities such as working. Since she was limited to five hours per
day and maintained that limit for approximately 21 months, she argued the employer
had reason to know of her disability. She argued that although the employer did not
receive the questionnaires (one of which she thought a doctor faxed), the employer
had knowledge of her disability in various other ways. For instance, medical forms
and reports were filed in her workers’ compensation claim related to the May 2010
request for an additional allowance for a herniated disc at L5-S1 (which was denied).
{¶27} She said she did not act in bad faith in the interactive process for
determining a disability. She complained the employer should have re-advised her
that they failed to receive the information. She characterized her modified schedule
for nearly two years as a reasonable accommodation that was not a burden on the
employer.
{¶28} The magistrate denied the employer’s request for summary judgment.
In a December 8, 2014 decision, the magistrate explained that construing the
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evidence most strongly in favor of the employee, a reasonable trier of fact could find
evidence of retaliatory motive in violation of R.C. 4123.90, adverse action as a result
of the employee’s disability, and a failure to reasonably accommodate her.
{¶29} On December 17, 2014, the employer filed objections to the
magistrate’s decision urging the magistrate erred in concluding there were factual
questions on which a jury could rule in favor of the employee on the three claims.
The employer stated that the magistrate failed to set forth all of the pertinent facts
and relied on insignificant facts in its ruling.
{¶30} On February 13, 2015, the trial court sustained the objections and
granted summary judgment in favor of the employer. As to the retaliation claim, the
court stated the employer provided a legitimate non-discriminatory reason and the
facts relied upon by the employee did not support a conclusion that the reason was
pretextual. The court ruled the employer’s admission (the loss of the workers’
compensation appeal was a factor in her termination) does not lead to an inference
that the filing and pursuit of the workers’ compensation claim was a factor in the
termination. The court found testimony did not show that other managers were not
fired for falling short of 50 hours per week. The court also concluded the employee
did not show a prima facie case of workers’ compensation retaliation.
{¶31} On the disability discrimination claim, the court found no genuine issue
as to whether the employee was disabled or as to whether the employer knew or had
reason to know of her disability. The court said there was no evidence that a major
life activity was significantly restricted in manner and duration. The court also stated
the employee failed to complete the interactive questionnaire that would have
potentially put the employer on notice of her disability.
{¶32} Regarding the failure to accommodate claim, the trial court reiterated
there was no evidence the employee was disabled and thus no need to
accommodate her. The court added that her own actions (or those of her doctor)
prevented the employer from gathering information to determine whether she was
substantially limited in her activities. The court found no evidence the breakdown in
the interactive process was traceable to the employer.
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{¶33} The employee filed a timely appeal to this court. Appellant lists multiple
assignments of error; however she breaks her analysis into sections corresponding to
her claims of workers’ compensation retaliation, disability discrimination, and failure
to accommodate. We begin with the general law applicable to our review of
summary judgments.
SUMMARY JUDGMENT
{¶34} Summary judgment can be granted only when there remains no
genuine issue of material fact and, when construing the evidence most strongly in
favor of the nonmoving party, reasonable minds can only conclude that the moving
party is entitled to judgment as a matter of law. Civ.R. 56(C). The movant has the
initial burden to show that no genuine issue of material fact exists. Byrd v. Smith,
110 Ohio St. 3d 24, 26-27, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Dresher v.
Burt (1996), 75 Ohio St. 3d 280, 294, 662 N.E.2d 264 (1996).
{¶35} The non-moving party then has a reciprocal burden. Id. The non-
movant’s response, by affidavit or as otherwise provided in Civ.R. 56, must set forth
specific facts showing that there is a genuine issue for trial and may not rest upon
mere allegations or denials in the pleadings. Civ.R. 56(E). Civ.R. 56 must be
construed in a manner that balances the right of the non-movant to have a jury try
claims and defenses that are adequately based in fact with the right of the movant to
demonstrate, prior to trial, that the claims and defenses have no factual basis. Byrd,
110 Ohio St. 3d 24 at ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106
S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
{¶36} 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. Leibreich v.
A.J. Refrig., Inc., 67 Ohio St. 3d 266, 269, 617 N.E.2d 1068 (1993) (doubts are to be
resolved in favor of the non-movant). A court “may not weigh the proof or choose
among reasonable inferences.” Dupler v. Mansfield Journal Co., 64 Ohio St. 2d 116,
121, 18 O.O.3d 354, 413 N.E.2d 1187 (1980).
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{¶37} “The material issues of each case are identified by substantive law.”
Byrd, 110 Ohio St. 3d 24 at ¶ 12. “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id., quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). We consider the propriety of granting
summary judgment under a de novo standard of review. Comer v. Risko, 106 Ohio
St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
WORKERS’ COMPENSATION RETALIATION
{¶38} Workers’ compensation retaliation is a statutory cause of action. R.C.
4123.90 provides in pertinent part:
No employer shall discharge, demote, reassign, or take any punitive
action against any employee because the employee filed a claim or
instituted, pursued or testified in any proceedings under the workers'
compensation act for an injury or occupational disease which occurred
in the course of and arising out of his employment with that employer.
{¶39} The Ohio Supreme Court ruled a complaint sufficiently alleges this
cause of action when it stated the employee was injured on the job, filed a workers’
compensation claim, and was discharged in violation in R.C. 4123.90. Wilson v.
Riverside Hosp., 18 Ohio St. 3d 8, 479 N.E.2d 275 (1985), syllabus (where defendant
argued the complaint had to specifically allege plaintiff was discharged in retaliation
for filing the claim). Over the years, various appellate cases have used this holding in
outlining three elements for a prima facie case of retaliation under R.C. 4123.90.
See, e.g., Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., 175
Ohio App. 3d 627, 2008-Ohio-1172, 888 N.E.2d 499, ¶ 56 (7th Dist.); Kilbarger v.
Anchor Hocking Glass Co., 120 Ohio App. 3d 332, 337-338, 697 N.E.2d 1080 (5th
Dist.1997).
{¶40} The Wilson Court was answering the question of whether a particular
complaint specifically alleging these three items could withstand a motion to dismiss
or whether the complaint had to specifically allege the plaintiff was discharged in
retaliation for filing the workers’ compensation claim. As a result, the case has been
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read as merely validating one particular complaint’s claims rather than establishing
the necessary elements for a prima facie case under the statute.
{¶41} Therefore, some courts outline the test for a prima facie case of
retaliation differently, with more precision in the final element. Instead of merely
stating the discharge was in violation of R.C. 4123.90, the modified statement of the
test requires a showing of a causal connection between the activity and the discharge
(or other adverse employment action as the case may be). See, e.g., Ferguson v.
SanMar Corp., 12th Dist. No. CA2008-11-283, 2009-Ohio-4132, ¶ 15-17;
Sidenstricker v. Miller Pavement Maintenance, Inc., 10th Dist. Nos. 00AP-1146,
00AP-1460, 2001-Ohio-4111.
{¶42} This test is based on the federal test used in retaliation cases, which
was adopted by the Ohio Supreme Court in applying a different retaliation statute,
R.C. 4112.02(I). That statute defines an unlawful discriminatory practice as
discriminating in any manner against another for opposing any unlawful
discriminatory practice defined in that section or because that person has made a
charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing under R.C. 4112.01 to 4112.07. R.C. 4112.02(I).
{¶43} The Supreme Court explained that in order to establish a prima facie
case of retaliatory discharge under that statute, the employee must show: (1) the
employee engaged in protected conduct; (2) the employer knew about the protected
conduct; (3) the employer took adverse employment action; and (4) a causal
connection between the activity and the adverse employment action. Greer-Burger v.
Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, 879 N.E.2d 274, ¶ 13 (noting that the
Ohio statute is similar to the federal ADA and applying the federal test).
{¶44} The Ferguson and Sidenstricker cases set forth a prima facie case of
retaliation under R.C. 4123.90 using the following consolidated Greer-Burger formula:
(1) the employee engaged in protected activity; (2) the employer took adverse
employment action; and (3) there is a causal connection between the protected
activity and the discharge. See also Buehler v. AmPam Commercial Midwest, 1st
Dist. No. C-060475, 2007-Ohio-4708, ¶ 23 (using injury on the job as the first
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element).1 The element regarding knowledge of the protected conduct would be part
of the causal element because the activity could not cause the adverse employment
action if the employer did not know about it.
{¶45} In any event, the parties agree that a causal connection is part of the
prima facie case even when utilizing Wilson for the framework. The courts applying
Wilson consistently explain that a causal connection must be established between
the filing or pursuit of the workers’ compensation claim and the adverse employment
action and that a retaliatory state of mind is part of showing the causal connection.
Lawrence v. City of Youngstown, 7th Dist. No. 09MA189, 2012-Ohio-6237, ¶ 23;
Cunningham, 175 Ohio App. 3d 627 at ¶ 72.
{¶46} Under the language of the statute itself, being discharged in violation of
R.C. 4123.90 (the third allegation in Wilson) requires a showing of a causal
connection between the activity protected by the statute and the adverse employment
action, which necessarily entails a retaliatory state of mind. See R.C. 4123.90
(certain adverse employment action taken “because the employee” filed or pursued a
workers’ compensation claim). This coincides with the Greer-Burger factors ranging
from knowledge of protected activity through the casual connection between that
activity and the adverse employment action. Here, the parties take issue with the
third Wilson allegation, which is essentially encompassed in the Greer-Burger test.
See Lawrence, 7th Dist. No. 09MA189 at ¶ 22, citing Greer–Burger, 116 Ohio St. 3d
324 at ¶ 13–14.
1 A current issue in the Ohio Supreme Court is whether the language of R.C. 4123.90 (and the
Wilson case) requires an injury on the job or just the filing or pursuit of a workers’ compensation claim
in establishing a prima facie case. See Onderko v. Sierra Lobo, 141 Ohio St. 3d 1451, 2015-Ohio-239,
23 N.E.3d 1194. It could be asked whether the protected activity in the Greer-Burger test is simply the
pursuit of a workers’ compensation claim or the pursuit of a workers’ compensation claim when the
injury can be shown as having occurred on the job. We note that in providing reasons for termination
other than the pursuit of a worker’s compensation claim, the Supreme Court listed an employer’s
reasonable suspicion an injury is not job-related as a valid reason. Sutton v. Tomco Machining, Inc.,
129 Ohio St. 3d 153, 157, 2011-Ohio-2723, 950 N.E.2d 938, 943, ¶ 10.
However, the employer expressly does not dispute that the employee suffered an injury on the
job here. The employee’s initial workers’ compensation claim for a workplace injury was certified by
the employer (for lumbar strain/sprain). In addition, although they contested her request for an
additional allowance (which was then denied administratively), her subsequent request for a different
additional allowance was successful.
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{¶47} The disputed issue is whether the employee provided evidence of
retaliatory discharge by showing a causal connection between her pursuit of her
workers’ compensation claim and her discharge. A retaliatory discharge claim can be
supported by direct or indirect evidence. Lawrence, 7th Dist. No. 09MA189 at ¶ 14.
{¶48} The shifting of burdens is different depending upon whether there is
direct or indirect evidence of the causal connection. See Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985). See also
Lawrence, 7th Dist. No. 09MA189 at ¶ 14, 19-22. Direct evidence would include an
actual statement by the employer admitting the motive to terminate the employee for
filing a workers’ compensation claim or for filing an appeal in the workers’
compensation case. Where there is direct evidence, the burden shifts to the
employer to show the same decision would have been made in the absence of the
impermissible motive. See Ceglia v. Youngstown State Univ., 10th Dist. No. 14AP-
864, 2015-Ohio-2125, ¶ 16 (in a discrimination case).
{¶49} If an inference is required to show the causal connection, the evidence
is considered indirect. Where indirect evidence establishes the causal connection by
inference, a presumption of retaliatory discharge arises and the McDonnell-Douglas
burden-shifting formula is applied. Greer-Burger, 116 Ohio St. 3d 324 at ¶ 14,
applying McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). If
a rational inference of retaliation arises, the burden shifts to the employer to set forth
a legitimate non-retaliatory reason for the discharge. Id.; Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 255-256, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)
(this is the burden to rebut the presumption that arose and to frame the factual issue
with sufficient clarity so the plaintiff will have a fair opportunity to show pretext).
{¶50} If the employer offers a legitimate non-retaliatory reason, the burden
then shifts back to the employee to show the reason proffered by the employer is
pretextual and the real reason for the discharge was retaliation for pursuit of the
workers’ compensation claim. Id., citing Burdine, 450 U.S. at 256. This involves the
prima facie case again, but “the factual inquiry proceeds to a new level of specificity.”
Burdine, 450 U.S. at 255.
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{¶51} The employee first contends she presented direct evidence of the
employer’s retaliatory state of mind. She points to the termination letter and the
testimony of the human resource manager. The termination letter stated: “Due to
the reason that you are not fulfilling the 50-hour week requirement of the position,
you are relieved of your duties, effective today, Friday, October 22, 2010. As you are
aware, your Workers Compensation appeals have been denied and you have
exhausted your Family and Medical Leave Act (‘FMLA’) benefit.”
{¶52} The human resource manager testified she and others at headquarters
decided to terminate the employee because her FMLA was exhausted, her
restrictions appeared to be unrelated to a work injury, and her half-time hours should
no longer continue since a manager is required to work fifty hours. She stated that
they decided to wait for the Industrial Commission’s decision to make sure the
hearing officer’s decision was affirmed. She admitted the administrative decisions
were part of the motivation for the employee’s discharge (as their policy is to assist
those whose work restrictions are the result of a work injury).
{¶53} This court concludes that such testimony was not direct evidence of
retaliatory discharge. A statement is not direct evidence if it requires the fact-finder to
draw further inferences to support the retaliatory animus. See Ceglia, 10th Dist. No.
14AP-864 at ¶ 23. The intent to retaliate for filing or pursuing the claim must be
evident on the face of the statement. The employer did not state the employee was
being fired for filing a workers’ compensation claim or for further pursuing her claim
by seeking treatment or requesting an additional allowance. Rather, the direct
evidence showed she was discharged for being unable to work fifty hours per week
where the cause of the work restriction did not appear to be work-related. The
administrative decisions merely answered the question of whether the work
restriction was the result of a work-related injury. In fact, it could be said the direct
evidence demonstrated the employee was actually retained because she filed and
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pursued her claim and she would have been discharged much sooner if not for the
uncertainty as to whether her restricted hours were the result of the workplace injury.2
{¶54} We now turn to evaluating the indirect evidence utilized by the
employee to demonstrate motive in constructing a prima facie case of retaliatory
discharge and in showing pretext. It has been stated that the burden to establish the
prima facie case by indirect evidence is not onerous. See, e.g., Russell v. University
of Toledo, 537 F.3d 596, 609 (6th Cir.2008) (retaliation case); Dover v. Carmeuse
Natural Chems., 5th Dist. No. 10-CA-8, 2010-Ohio-5657, ¶ 43 (workers’
compensation retaliation case). See also Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (disparate
treatment case). A “smoking gun” is not required. Lawrence, 7th Dist. No. 09MA189
at ¶ 23, quoting Kent v. Chester Labs, Inc., 144 Ohio App. 3d 587, 592, 761 N.E.2d
60 (1st. Dist.2001).
{¶55} Some relevant factors in considering whether an inference of causal
connection arises include punitive actions (such as bad performance reports or a
change in salary level) occurring immediately after a claim is filed, the time period
between the filing of the claim and the discharge, recent hostile attitudes, and
whether a legitimate reason existed for the discharge. See, e.g., Kaufman v.
Youngstown Tube Co., 7th Dist. No. 09MA8, 2010-Ohio-1095, ¶ 42. As the latter
factor involves the employer’s burden after a prima facie case is demonstrated, that
factor (consideration of the proffered reasons) is more related to the “new level of
specificity” encompassed by the pretext inquiry. For instance, the employer set forth
a legitimate, non-retaliatory reason for the termination: the inability to work the fifty
hours per week expected of a store manager. Whether this was the real reason for
2It is noted here that an employer is not prohibited from terminating an employee for being
unable to work the position even where the reason is a work-related injury (and even when the
employee is collecting temporary total disability benefits at the time). See Bickers v. W. & S. Life Ins.
Co., 116 Ohio St. 3d 351, 2007-Ohio-6751, 879 N.E.2d 201 (providing that R.C. 4123.90 is the
exclusive remedy which cannot be overridden by common law public policy discharge to include the
firing of those collecting benefits). Still, the employer had a policy against terminating those with
restrictions that were the result of a workplace injury. Prior to the Bickers decision, the law on the
matter was unclear if a worker was receiving benefits such as temporary total disability (which may
have been the reason for the employer’s policy here). See id. at ¶ 1-2, 9-16, limiting and clarifying
Coolidge v. Riverdale Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357, 797 N.E.2d 61.
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the discharge entails the employee’s burden to show the reason was pretextual.
Before reaching this stage, we return to the temporal proximity arguments.
{¶56} The employee emphasized the temporal proximity of the termination to
receipt of the Industrial Commission’s decision: the employer called the employee
the same day, and the termination meeting was held the next day. There is dispute
over whether temporal proximity alone can permit the inference of a causal
connection to arise.3 However, we need not analyze that issue as the employee
does not rely on the temporal proximity concept alone and/or the event from which
the employee is measuring “very close” temporal proximity is not the pertinent event.
{¶57} The temporal proximity of the termination was not very close in time to
the filing of the claim, the filing of the first motion for an additional allowance, or the
filing of the second motion for an additional allowance. To recap, she filed for
workers’ compensation due to a work injury in September 2008, and the employer
certified her back sprain claim. Her twenty-five-hour work restriction began in late
January of 2009. A wage agreement was in place until May 2009.
{¶58} In September 2009, the employee sought an additional allowance,
which she then withdrew. She sought a different additional allowance in May 2010,
3 The Sixth Circuit reconciled two lines of retaliation cases by stating: (1) if the adverse
employment action is “very close” in time to when the employer learned of the protected activity, then
temporal proximity alone can satisfy a prima facie case; but (2) if time elapses, then temporary
proximity must be coupled with other relevant conduct to establish causality. Mickey v. Zeidler Tool &
Die Co., 516 F.3d 516, 525 (6th Cir.2008). The federal court found the United States Supreme Court
may have accepted that temporal proximity is sufficient in a narrow set of cases. Id. at 524-525, citing
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (“The
cases that accept mere temporal proximity between an employer's knowledge of protected activity and
an adverse employment action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close’.”). We thereafter stated that close
temporal proximity alone may be significant enough to constitute evidence of a causal connection.
Bahar v. Youngstown, 7th Dist. No. 09MA55, 2011-Ohio-1000, ¶ 7-8. These are general retaliation
rather than workers’ compensation retaliation cases.
The Ohio Supreme Court ruled: “Because a discharge could be for reasons other than those
related to workers' compensation, such as a reasonable suspicion that the injury was not job related, a
disregard by the employee for the employer's safety rules, or an immediate need for a replacement
employee, no presumption of retaliation arises from the fact that an employee is discharged soon after
an injury.” Sutton, 129 Ohio St. 3d 153 at ¶ 10 (emphasis added). This may support our prior holding:
“While the timing of the termination can contribute to an inference of retaliation, temporal proximity
alone is insufficient to support a finding of a causal connection.” Cunningham, 175 Ohio App. 3d 627
at ¶ 73, quoting Buehler v. AmPam Commercial Midwest, 1st Dist. No. C-060475, 2007-Ohio-4708, ¶
24–25.
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which was denied in July 2010. She lost her appeal to a staff hearing officer on
September 28, 2010. She lost her appeal to the Industrial Commission on October
21, 2010 and was terminated the next day. The event cited by the employee to show
close temporal proximity is not the pursuit of the claim but the final administrative
resolution of the claim.
{¶59} Besides the temporal proximity of the termination to the loss of the
appeal to the Industrial Commission, the employee also suggests an inference of
retaliatory motive arises from the employer’s statement that the loss of the
employee’s appeals factored into the employee’s termination (because this meant the
injury was not work-related). Notably, this is not a case where the employee was
terminated merely for losing worker’s compensation appeals. Rather, it is the loss of
the appeals combined with the inability to return to work full-time.
{¶60} The question becomes whether the employer’s claim she was
terminated for being unable to work fifty hours per week where her injury was
believed to be unrelated to work would allow a reasonable juror to find that she was
actually terminated for pursuing workers’ compensation benefits. The employee’s
position as store manager was uniformly a fifty-hour salaried position. The employee
was permitted to work a reduced twenty-five hour per week schedule for nearly
twenty-one months. During that time, it was contested whether the injury was work-
related.
{¶61} As aforementioned, there is no requirement that an employer keep an
employee merely because they suffered a work-related injury. This employer had a
policy that refrained from terminating those whose restrictions were work-related.
Once the administrative appeals were concluded and the employee could not return
to work more than half-time, the employer implemented its decision to terminate the
employee. The pursuit of further workers’ compensation benefits could be seen as
extending the employee’s employment under the employer’s policy. That is, if the
employee had not pursued the worker’s compensation claim, her continued
employment at half-time may have been terminated much earlier.
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{¶62} We conclude: (1) being discharged after losing the final level of
administrative workers’ compensation appeals is not sufficient to establish a prima
facie case of retaliation for pursuing workers’ compensation benefits where the
managerial employee remains unable to work more than half of the schedule
required for managers; and/or, (2) regardless of whether a prima facie case of
retaliation was sufficiently demonstrated, there was nothing besides speculation to
show that the legitimate non-retaliatory reasons provided by the employer were
pretextual.
{¶63} Pretext can be demonstrated by showing the reason has no basis in
fact, did not actually motivate the employer, or was insufficient to motivate the
discharge. See also Lawrence, 7th Dist. No. 09MA189 at ¶ 35. The fact the
employee was required to work fifty hours but cannot work fifty hours is not disputed.
(Barber Depo. 20). The employee contested claims of a neutral absenteeism policy
and stated she did not have an attendance problem. However, there was no claim
she missed the days she was scheduled to work (or rather the days that she
scheduled herself to work). Instead, the uncontested premise is she was hired to
work fifty hours per week as a store manager and, even after twenty-one months of
working twenty-five hours per week, she was unable to return to her full-time
schedule.
{¶64} The employee points to a statement regarding some managers
occasionally falling short of the fifty-hours per week. Yet, she testified she was
expected to work 50 hours per week. It was explained that the requirement was
more strictly enforced after the new management team began at the end of 2008. In
addition, there was no evidence that any of the managers who fell short were more
than a few hours short on occasion; and, the evidence established that the payroll
clerk would deduct their accrued leave to attain the fifty hours on those occasions.
Therefore, those managers who happened to fall short were still on the payroll at fifty
hours.
{¶65} Furthermore, there was no evidence other managers were working half-
time schedules. The employee points to testimony that there are some managers
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who oversee two stores, suggesting that her store does not require a fifty-hour per
week manager. Yet, there was no evidence those stores are equivalent in sales as
this employee’s store. And, those situations involved a manager who was a full-time
employee and who worked fifty hours per week as required by the job description.
{¶66} The employee also claimed her 2010 performance review and an award
for her store’s use of butter showed the store was being run fine even with her
working half-time. This evidence does not mean an employer cannot prefer to
maintain its policy that managers work a full-time schedule of fifty-hours per week.
{¶67} In summary, the temporal proximity involved in this case combined with
the other evidence used to raise an inference does not sufficiently establish pretext.
The employee’s initial workers’ compensation claim was filed in September 2008 and
certified by the employer. The testimony established the employee’s FMLA benefits
were exhausted on October 9, 2010 and she could not return to her full-time
schedule. This prompted the decision to terminate her. Implementation of that
decision was delayed as the employer awaited the Industrial Commission’s final
decision on the cause of injury. There was no evidence that hostile attitudes were
directed at the employee, and no punitive actions were taken prior to the discharge.
{¶68} We have upheld the granting of summary judgment where an employee
suffered a permanent-partial work-related injury, was initially given light duty, and
(when there was no light duty work left some months later) was terminated when he
could not get a full doctor’s release. Kaufman, 7th Dist. No. 09MA8 at ¶ 44 (finding
no causal connection besides the plaintiff’s speculation). See also Lawrence, 7th
Dist. No. 09MA189 at ¶ 43 (after finding lack of prima facie case, we alternatively
stated that the plaintiff failed to show the employer’s reason was pretextual). This
court finds it is mere speculation to argue that the legitimate reason proffered for the
discharge (the combination of a half-time schedule and a non-work related injury)
was pretextual and mere speculation to assert that the actual motive for her firing
was retaliation for pursuing further workers’ compensation benefits two years after
the initial claim was filed. This court concludes that, even if the employee met the
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less onerous burden of producing a prima facie case, the speculation proffered to
show pretext allows the upholding of summary judgment on this claim.
DISABILITY DISCRIMINATION
{¶69} Pursuant to R.C. 4112.02(A), it is an unlawful discriminatory practice for
an 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.” This statute is similar to the federal ADA, and Ohio
courts are permitted to use the federal regulations and cases interpreting the federal
statute. See Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St. 3d 569, 573, 697
N.E.2d 204 (1998). The employee set forth a claim of disability discrimination based
upon her termination and a claim of failure to accommodate under R.C. 4112.02(A).
See, e.g., Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir.1997) (plaintiff must prove
that he has a disability, he is “otherwise qualified” for the job, and the employer either
refused to make a reasonable accommodation for his disability or made an adverse
employment decision regarding him because of his disability).
{¶70} As to the employee’s claim she was fired because she was disabled, a
prima facie case is made by showing: (1) she was disabled; (2) an adverse
employment action was taken by an employer, at least in part, because she was
disabled; and (3) she can safely and substantially perform the essential functions of
the job in question even though disabled. Hood v. Diamond Products, Inc., 74 Ohio
St.3d 298, 302, 658 N.E.2d 738 (1996). See also Whitfield v. Tennessee, 639 F.3d
253, 259 (6th Cir.2011) (plaintiff makes prima facie by showing: she was disabled,
she was otherwise qualified for the position with or without reasonable
accommodation, an adverse employment action was taken, the employer knew or
had reason to know of the disability, and the position remained open while the
employer sought other applicants or she was replaced).
{¶71} Once the plaintiff establishes a prima facie case of discrimination, the
burden shifts to the employer to set forth some legitimate, nondiscriminatory reason
for the action taken. Hood, 74 Ohio St. 3d at 302. A legitimate, nondiscriminatory
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reason includes the inability of the employee to safely and substantially perform, with
reasonable accommodations, the essential functions of the job in question. Id., citing
Ohio Adm.Code 4112-5-08(D)(4),(E). If a nondiscriminatory reason is proffered, the
burden shifts back to the employee to show that the employer’s stated reason was a
pretext for impermissible discrimination. Id. The Supreme Court affirmed a summary
judgment entered in favor of the employer where the reason for the employee’s
termination was taking extra unauthorized breaks; the Court found this reason was
not evidence the employee was fired for a certain physical condition that required the
breaks. See Allen v. totes/Isotoner Corp., 123 Ohio St. 3d 216, 2009-Ohio-4231, 915
N.E.2d 622, ¶ 6, 8 (three-justice plurality), ¶ 42, 43, 45 (two justices concurring)
{¶72} As to the employee’s failure to accommodate claim, a prima facie case
involves a showing that: (1) she is disabled within the meaning of the Act; (2) she is
otherwise qualified for the position (with or without reasonable accommodation); (3)
her employer knew or had reason to know about her disability; (4) she requested an
accommodation; and (5) the employer failed to provide the necessary
accommodation. DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir.2004). The burden is
placed on the plaintiff to propose an accommodation that is objectively reasonable.
Keith v. County of Oakland, 703 F.3d 918, 927 (6th Cir.2013). If the prima facie case
is made, the employer has the burden to demonstrate such an accommodation would
impose an undue hardship on the conduct of the employer's business. Id. See also
Ohio Adm.Code 4112-5-08(E)(1); Crosier v. Mfg. Co., 9th Dist. No. 19863 (Feb. 28,
2001) (“While employers are required to make reasonable accommodations for an
injured worker, at a certain point, holding a job open becomes unreasonable.”).4
4 The employer is to initiate an informal, interactive process with the employee before denying a
reasonable accommodation to a disabled employee. See, e.g., DeCesare v. Niles City School Dist. Bd. of Edn.,
154 Ohio App. 3d 644, 2003-Ohio-5349, 798 N.E.2d 655, ¶ 25-26 (11th Dist.); Shaver v. Wolske & Blue, 138 Ohio
App.3d 653, 664, 669, 742 N.E.2d 164 (10th Dist.2000) (employer need only show good faith effort to engage
with the employee about the reasonable accommodation). See also Eisman v. Clark Cty. Dept. of Human Servs.,
2d Dist. No. 02CA0031, 2002-Ohio-6781, ¶ 22. Further principles include: both parties have a duty to participate
in good faith in the mandatory interactive process; where participation is lacking, the cause of the breakdown
should be isolated in order to assign responsibility for it; and if an employee refuses to participate in good faith or
withholds essential information, the employer is not liable under the ADA for failure to accommodate. See,
e.g485 F.3d 862, 871 (6th Cir.2007). See also Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir.1999);
Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633–34 (7th Cir.1998); Taylor v. Principal Fin. Group,, Nance v.
Goodyear Tire & Rubber Co., 527 F.3d 539, 556 (6th Cir.2008); Kleiber v. Honda of America Mfg., Inc., Inc., 93
F.3d 155, 165 (5th Cir.1996); Kovac v. Superior Dairy, Inc., 998 F. Supp. 2d 609, 619-20 (N.D.Ohio 2014).
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{¶73} The threshold issue regarding the employee’s claims asserted under
R.C. 4112.02(A) is whether the employee was disabled. Disability is statutorily
of a physical or mental impairment; or being regarded as having a physical or mental
impairment.” R.C. 4112.01(A)(13).
{¶74} The employee states she has physical impairment that substantially
limits a major life activity. There is no dispute that she suffered a physical
impairment. See R.C. 4112.01(A)(16)(i) (any physiological disorder or condition
affecting the neurological or musculoskeletal systems), (iii) (diseases and conditions
including orthopedic impairments). There is also no dispute (for purposes of
summary judgment) that her impairment limited the major life activity of working. The
dispute is whether her impairment “substantially” limited her work activity.
{¶75} The parties agree that we can look to federal interpretations of the ADA
in regulations and case law for guidance in interpreting terms used in Ohio law in this
field. See McGlone, 82 Ohio St. 3d at 573, applying former 29 C.F.R. § 1630.2(j)(3)(i)
(an EEOC regulation used to determine if an employee was substantially limited in
his work). The parties rely on the regulatory definition existing at the time of the
employee’s October 2010 termination.
{¶76} That regulation provided that an impairment could substantially limit a
major life activity only if the individual was “[u]nable to perform a major life activity
that the average person in the general population can perform” or if the individual is
“[s]ignificantly restricted as to the condition, manner or duration under which an
individual can perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general population can
perform that same major life activity.” Sutton v. United Air Lines, Inc., 527 U.S. 471,
480, 491, 119 S. Ct. 2139, 2145, 144 L. Ed. 2d 450 (1999), quoting former 29 C.F.R. §
1630.2(j)(1)(i)-(ii).
{¶77} The employee’s brief focuses on the latter option and states the manner
or duration that she could work was significantly restricted compared to that of the
average person. The employer replies that the manner of work was not significantly
restricted as the employee did not state she could not perform the various tasks
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involved in her job but only asserted a restriction as to the number of hours worked
per day. Still, the duration was limited, leaving us with the question of whether it was
“substantially” limited compared to the average person in the general population.
{¶78} When referring to the major life activity of working, the regulation used a
“specialized definition” of the term substantial limitation as being “significantly
restricted in the ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having comparable training,
skills and abilities.” Sutton, 527 U.S. at 491, quoting former 29 C.F.R. §
1630.2(j)(3)(i); McGlone, 82 Ohio St. 3d at 573, quoting 29 C.F.R. § 1630.2(j)(3)(i).
“The inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.” Id.
{¶79} The employer suggests any inability relates to only a particular job as
opposed to a class of jobs or a broad range of jobs in various classes. However, a
work restriction of five hours per day due to back issues where the employee worked
at a job entailing continual standing would entail a class of jobs or a broad range of
jobs in various classes. This brings us back to whether the employee was
substantially limited in working.
{¶80} Effective January 1, 2009, Congress amended the ADA. The Sixth
Circuit observed Congress expressly rejected regulations that define the term
“substantially limits” as meaning “significantly restricted” which Congress expressed
was “too high a standard” and was “inconsistent with congressional intent.” Verhoff
v. Time Warner Cable, Inc., 299 Fed. Appx. 488 (6th Cir.2008) fn. 2, citing ADA
Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553, § 2(a)(9).
{¶81} The new statute set forth rules of construction, one of which states the
definition of disability shall be construed in favor of broad coverage to the maximum
extent permitted by the terms of that statute. 42 U.S.C. § 12102(4)(A). Another rule
of construction set forth in the statute directs: “The term ‘substantially limits’ shall be
interpreted consistently with the findings and purposes of the ADA Amendments Act
of 2008.” 42 U.S.C. § 12102(4)(B). The codified findings and purposes are not
specific as to interpreting the term “substantially limits.”
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{¶82} Yet, the uncodified findings and purposes of the ADA Amendments Act
of 2008 say the United States Supreme Court holdings in Sutton and its progeny
narrowed the broad scope of protection intended by Congress and interpreted the
term “substantially limits” to impose too great a degree of limitation on the individual.
Pub.L. No. 110-325, § 2(a)(4)-(7), (b)(2)-(5). Those findings mention that the
regulation defining the term “substantially limits” was “inconsistent with congressional
intent, by expressing too high a standard.” Id. at § 2(a)(9). One of the purposes of
the act was to express Congress’ expectation that the regulation defining
“substantially limits” as “significantly restricted” would be revised to be consistent with
the amended act. Id. at § 2(b)(6). (This was what the Sixth Circuit was referring to in
Verhoff.)
{¶83} It was not until March 25, 2011 that a corresponding regulation was
enacted. This regulation reiterates that the term “substantially limits” shall be
construed broadly in favor of expansive coverage, to the maximum extent permitted
by the terms of the ADA. 29 C.F.R. § 1630.2(j)(1)(i). The new regulation states the
term “substantially limits” is not meant to be a demanding standard. Id. See also 29
C.F.R. § 1630.2(j)(1)(iv) (“substantially limits” shall be interpreted and applied to
require a degree of functional limitation that is lower than the standard applied prior to
the amended ADA). Currently, the regulation provides that an impairment is a
disability if it substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population. 29 C.F.R. §
1630.2(j)(1)(ii). “An impairment need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in order to be considered
substantially limiting.” Id.
{¶84} “Nonetheless, not every impairment will constitute a disability within the
meaning of this section.” Id. The new regulation recognizes that the determination of
whether an impairment substantially limits a major life activity requires an
individualized assessment. In making the determination, it may be useful to consider
facts such as condition, manner, or duration (compared to most people in the general
population), and this can include consideration of the pain experienced when
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performing a major life activity and the length of time a major life activity can be
performed. 29 C.F.R. § 1630.2(j)(4)(i)-(ii).
{¶85} The statutory changes became effective before the employee’s
termination. However, the regulation was not passed until after the employee was
terminated. In any event, the parties do not mention the statutory amendments to the
ADA. Ohio courts can, but need not, apply federal cases and regulations interpreting
terms used in Ohio law. Most notable, the Ohio statute was not changed to instruct
on a lesser standard. Even where federal material is viewed, the positions espouses
therein is only adopted where the statutes are similar. See, e.g., Genaro v. Cent.
Transport, 84 Ohio St. 3d 293, 703 N.E.2d 782 (1999). The Ohio Supreme Court
used prior federal regulations and cases interpreting the term “substantially limits” as
requiring a significant restriction. See McGlone, 82 Ohio St. 3d at 573.
{¶86} The fact that a federal statute changed prior to the termination directing
the federal regulations to be modified to a lesser standard than “significantly
restricted” does not mandate state courts to change their own interpretation of a
certain term, especially in cases involving discharges that occurred prior to the
enactment of the new regulations. This is especially true where the parties do not
ask for the application of the new federal statutory standards. See Toyota Motor
Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194, 122 S. Ct. 681, 151 L. Ed. 2d 615
(2002) (although the Supreme Court found that “the persuasive authority of the
EEOC regulations” to interpret the ADA was not clear, the Court applied those
regulations because they were accepted as such by both parties).
{¶87} This court applies the prior regulatory interpretation of the phrase as
requiring the employee’s work to be “significantly restricted.” We agree with the trial
court’s conclusion that the five-hour-per-day restriction does not rise to the level of a
significant restriction on her work life. In fact, although she was restricted to five
hours per day, the physician’s note made no restriction as to the number of days
worked per week. There was no explanation as to why the employee did not work
five hours per day, seven days per week as opposed to her five hours per day, five
days per week. (Although this would not have provided her with the required fifty
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hours per week, it would have put her closer to the required hours for an assistant
store manager.)
{¶88} We uphold the trial court’s decision finding the employee has not
established she fits the definition of disabled. Therefore, the employee’s disability
claims (discrimination in termination and failure to accommodate) fail.
{¶89} In conclusion, the employee’s assignments of error are overruled, and
the trial court’s decision is upheld.
Donofrio, P.J., dissents; see dissenting opinion.
DeGenaro, J., concurs.
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DONOFRIO, P.J. dissenting.
{¶90} Because I would find there are genuine issues of material fact that
preclude summary judgment on each of the employee’s claims, I respectfully dissent
from the majority opinion.
{¶91} The employee began working for the employer in 1999. She worked
five days a week, 50 hours per week, apparently without incident, until her work injury
on September 29, 2008. During that period, she was promoted to manager. She was
terminated on October 22, 2010.
{¶92} First, regarding the workers’ compensation retaliation claim, the focus is
on whether the employee provided evidence of a causal connection between her
pursuit of her workers’ compensation claim and her discharge. Construing the
evidence in the light most favorable to the employee, as we are required to do on
summary judgment, it could be concluded that the employee was terminated for
pursuing the additional allowance by appealing the denial of that allowance. “The
prima facie case in claims under R.C. 4123.90 does not present an onerous burden
for plaintiffs; it is, indeed, ‘easily met.’ (Internal citations omitted.)” Scalia v. Aldi, Inc.,
9th Dist. No. 25436, 2011-Ohio-6596, ¶14, quoting Dover v. Carmeuse Natural
Chems., 5th Dist. No. 10-CA-8, 2010-Ohio-5657, ¶43.
{¶93} In this case, as the magistrate pointed out, the employee’s termination
letter specifically referenced her workers’ compensation claim. (Good Dep. Ex. 26).
Additionally, the employer contended that the employee’s workers’ compensation
claim was over and her appeals had ended. (Good Dep. 170). But this was not the
case. While the employee’s allowance was denied, she still had appeal rights to the
trial court. (Good Dep. Ex. 30). And, as illustrated by the eventual allowance of a still
different diagnosis, the claim and issues in the claim continued. Moreover, although
the employer cited its “neutral attendance” policy as a reason for the employee’s
termination, the employee’s review revealed attendance was not an issue. In the
employee’s February 23, 2010 review, the employer stated that her attendance
“exceeded” company expectations. (Good Dep. Ex. 5). And while the employer
asserted the employee could not meet the 50-hour work week required of managers,
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it is a question of fact for a jury whether the 50-hour requirement was an essential job
function.
{¶94} Second, regarding the disability discrimination claim, genuine issues of
material fact exist as to whether the employee was “disabled” and as to whether she
was terminated, at least in part, because of her disability. The employee’s workers
compensation claim was allowed for lumbar sprain and a bulging disc at L5-S1. Dr.
Black’s notes reflect numerous restrictions over a period of time. (Good Dep. Exs. 9-
14). He indicated that the employee had severe lower back pain with a lot of
pressure, pressure in her midback, numbness in her right thigh, and complaints of
pain in her right leg and buttocks. Dr. Black provided the employee with a temporary
handicap placard for her vehicle. (Good Dep. Ex. 16). Dr. Dunne reported that the
employee sought his assistance with regard to her workers’ compensation claim
because she had debilitating low back pain and she did not feel she was getting
better. After examining the employee, Dr. Dunne reported she was in obvious
distress and discomfort, had difficulty moving, had a flattened lumbar lordosis, pain to
palpation, and restriction of movement. Dr. Dunne noted that there was no indication
of any back injury before or after her work injury. He said there “was certainly an
injury at the L5-S1 disc.” (Good Dep. Ex. 16). Dr. Dunne recommended a MRI. Ohio
Diagnostic Services performed a functional capacity evaluation and reported multiple
restrictions in movement relating to the lumbar spine, that the employee was
functioning at the sedentary to light physical demand category, and that any return to
work program should not exceed the light physical demand category. (Good Dep. Ex.
23).
{¶95} Despite her limitations, as the magistrate documented and as is
discussed below, the quality of the employee’s work in some areas exceeded
expectations. Leo Henry, the director of the employer’s operations, reported that she
did a good job for him. (Henry Dep. 58). Christopher Sammartino, the employer’s
chief operating officer, admitted her store was clean and organized. (Sammartino
Dep. 62),
{¶96} The employer was aware of all of this evidence. Through the
employee’s worker’s compensation claim, the employer had access to all of the
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employee’s medical records relating to her back. Indeed, it is undisputed that, for an
extended period of time, the employer recognized these medical/physical restrictions
to the extent that it provided the employee with modified work hours. The reduced
work hours did not end until her termination. Despite these facts, the trial court
concluded that there was no genuine issue of material fact as to whether the
employee was disabled and whether or not the employer knew or had reason to
know of her disability. The majority affirms that decision. Whether or not this evidence
supports a finding that the employee was disabled, that she was otherwise qualified
to perform her job with or without reasonable accommodations, and whether as a
result, at least in part, she was terminated because of her disability, are questions of
fact to be determined by the fact finder.
{¶97} Finally, regarding the failure to accommodate claim, genuine issues of
material fact exist as to whether the employer’s failure to continue the five-hour work
days constituted a failure to accommodate and as to whether there was a breakdown
in the interactive process.
{¶98} The employee presented evidence that despite her five-hour work days,
her review reflected that she was exceeding expectations in the categories of: quality
of work; quantity of work; dependability; attendance and punctuality; job knowledge;
and safe work practice. (Good Dep. Ex. 5). She was meeting expectations in the
categories of: communication, judgment and decision making, overall store
management; individual effectiveness; and initiative. (Good Dep. Ex. 5). And, her
operations director testified that she did a good job. (Henry Dep. 58). Given this
evidence, a genuine issue of material fact exists as to whether the employer’s failure
to accommodate the employee with a five-hour work day was unreasonable under
the disability laws.
{¶99} Moreover, as to the interactive process, the employer argued the
employee was at fault for failing to return the interactive questionnaires. But the
employee presented evidence that she instructed Dr. Dunne to complete the
questionnaire and fax it to the employer. (Barber Dep. 131-136). She did not learn
that he failed to fax the questionnaire to the employer until she was terminated.
(Barber Dep. 180-181). Additionally, the employee presented evidence that the
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employer was aware of her ongoing medical issues. The employer was aware of the
ongoing workers’ compensation claim. The employer had access to all related
medical records of the employee. R.C. 4123.651. As the magistrate concluded, there
are genuine issues of material fact as to who was at fault, if anyone, in this interactive
process. Construing the evidence in a light most favorable to the employee, one
could conclude that there was no breakdown, or that either party was at fault.
{¶100} For these reasons, I would reverse the trial court’s grant of
summary judgment to the employer and would remand the matter to the trial court for
further proceedings.