BWC Retaliation Case

Creveling v. Lakepark Industries, Inc., 2021-Ohio-764

The Sixth Appellate District Court of Appeals has rendered a decision denying an employee’s claims of workers’ compensation retaliation and disability discrimination, among some other related claims.

The employee at issue was a tool and die maker.  He was injured while using a machine that had rotating parts which caught the glove he was wearing and mangled his right hand, resulting in an amputation of his middle and ring finger. The Employer contacted OSHA to begin an investigation and filed a workers’ compensation claim on the employee’s behalf.  The employee was eventually released to full duty by his doctor and the employer reinstated him as a tool and die maker.  

Employees were trained extensively not to use gloves while using rotating equipment and the employer investigated the employee’s conduct in this regard and imposed a three-day suspension without pay.  The employee admitted that he violated the policy and also executed an employee corrective action warning him that any further violations would result in his dismissal.  The first day back from the suspension, the employee was witnessed wearing gloves while operating a rotating machine.  The employee was reported to management and was terminated for violating the policy and the employee corrective action.  The employee conceded that he had violated the corrective action.

The employee sued the employer for workers’ compensation and disability discrimination as well as wrongful termination, an intentional tort related to maintenance of the equipment, and loss of consortium on behalf of his wife.

Ohio law provides that “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.”

Workers’ compensation retaliation, like other discrimination and retaliation claims are subject to a burden-shifting analysis by the Court. The employee bears the burden to establish a “prima facie” case by showing that (1) the employee filed a workers’ compensation claim, or instituted, pursued, or testified in a workers’ compensation proceeding; (2) the employer discharged, demoted, reassigned, or took punitive action against the employer; and (3) a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer.  

If the employee can establish a prima facie case, the employer must show a legitimate, non-discriminatory reason for its action.  If the employer meets this burden, it goes back to the employee to establish that the reasons provided by the employer are merely a pretext.  To do so, the employee must be able to shoe that the reasons given by the employer (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge.

The Court rejected the employee’s argument that because he was fired within 7 days of returning to work, it was sufficient to establish retaliatory motive.  The Court reasoned that the firing and the employer’s knowledge of the claim were not sufficiently close enough in time to establish that proximity alone constituted evidence of retaliatory intent.  Moreover, the Court found that the act of returning to work is not protected activity.  

The Court also rejected evidence that the employer had a hostile attitude towards the employee based on a couple off-color remarks that were made upon his return such as “I guess you are left-handed now.”  Such isolated comments, however, out of context, and in the absence of other evidence, are insufficient to establish a causal link between termination and the filing of a workers’ compensation claim.  

The Court also rejected the employee’s argument that because the employer had failed to discipline other employees prior to his injury for wearing gloves, that its action to do so after the injury is evidence of a retaliatory motive.  The Court found that the employee himself had not been declined for doing so prior to his injury and that he was unequivocally prohibited from doing so after his injury, before he was terminated for once again violating the policy.

The Court denied the employee’s disability discrimination law, which was made on similar factual allegations as the retaliation claim.  However, here, the Court found that the employee was unable to establish a prima facie case of discrimination because he did not have a disability due to his two fingers being amputated.  The Court found that the employee did not establish that the amputation caused him a substantial limitation of a major life activity.  The Court recognized that he had some difficulty in adjusting to writing and other tasks with his right hand after the amputation, but he was still able to perform his work as a tool and die maker and could not establish that he was substantially limited in the performance of any major life tasks as compared to most people in the general population.  

The Court also found that the employee could not have been regarded as having a disability by the employer because the employee lobbied to return to, and succeeded in securing, his former position of employment. Finally, the Court held that even if the employee could establish that he was disabled, there was insufficient evidence to find that he was terminated on account of his disability.

What this means for your District:

It is possible to terminate an employee for acts which lead to a workers’ compensation claim.  A termination does not end the claim itself, just the employment relationship.  Termination should be supported by an articulable violation of policy or directive or you may risk losing the burden shifting analysis.  Here, the employer did not have a perfect set of facts because there was a history of non-enforcement of the policy until after the injury and there were some snide remarks made to the employee about his injuries.  However, because the employer provided training, complied with its legal requirements, and kept the discipline focused on the employee’s violation of the policy and the corrective action, those little factual hiccups were not sufficient to establish a retaliatory or discriminatory motive behind the discipline action.

Decision in Favor of School District Against a Requester of Records

Bollinger v. River Valley Local School Dist., 2020-Ohio-6637

A Special Master of the Court of Claims of Ohio has issued a decision in favor of a school district against a requester of records.  The requester was a former employee who was terminated after a discipline investigation.  As part of the investigation, the school district’s attorneys collected text messages from two students who were a part of the investigation.  The attorneys reviewed the collected text messages and stored them but did not use all of them as part of the investigation because they had no investigative value.

The requester asked for “All communications (including ALL text message transcripts) collected by Douglas Duckett and/or any employee or representative of the River Valley Local School District from [two students] during the investigation that lead to the termination of Mark Bollinger’s contract and the issues reported to the Ohio Department of Education.”

The requester alleged that the text messages contained information that was contradictory or that would challenge the credibility of the witnesses or the investigation itself. The School Board turned over texts messages in its possession that it used in the investigation, but denied the request as to all of the text messages.  The school district cited attorney-client privilege as well as that the remaining text messages that were not turned over did not constitute records, because they did not document the operations of the school district.  A public record is defined to include any document or information in any form that is kept by a public office which documents the organization, functions, policies, decisions, procedures, operations, or other activities of the public office, here, the School Board.

Unrelated Text Messages Are Not Records

The Court ruled that while the School Board did possess the additional text messages withheld from the requester, and while the investigators acting on behalf of the School Board reviewed the additional text messages, they were not ultimately used to draw any conclusions or take any actions about the matter and therefore were not records subject to disclosure.  “Even where a document is received, reviewed, and integrated into a topical office file, but is not used to document the office’s activities, it may not rise to the definition of a “record.”

As to the requester’s assertions that the texts could contain information that is contradictory or that diminishes the credibility of the report or the witnesses, the Court found that the appropriate place to assert those arguments would have been during his administrative appeal of the termination, where perhaps the additional texts could have been obtained through discovery.  The only issue before the court here was whether the records constituted public records which were subject to disclosure, not whether the records would have helped him mount a defense to his termination.   The court reviewed the additional texts (they were filed under seal so that the requester could not see them) and agreed with the School Board that they were not used in the investigation and therefore did not meet the definition of records.

Past Production Does Not Waive Assertion of Available Defenses

The requester also argued that because the School Board had voluntary disclosed some texts that were not relied on in the investigation, it could not now assert that the texts were not records and withhold them.  The court disagreed, finding that voluntary production of records in the past does not stop a public office from later withholding the same type of records on the basis of a valid defense. 

CAUTION is warranted regarding this particular aspect of the case as there are other court decisions which hold that a public office can waive an exemption for a particular record if it discloses the exempt record, especially to one whose interests are antagonistic to the public office.  Here, the texts at issue were considered non-records, not exempt records, which is an important distinction.

Attorney-Client Privilege

The School Board asserted the withheld texts fall under the privilege because they were gathered in the course of an investigation conducted by its attorneys.  The court disagreed with the board’s position, characterizing it as conclusory.  The board failed to “identify and explain the nature of any legal issue for which the withheld texts were utilized.”  All factual materials gathered in an attorney-led investigation are covered by the attorney-client privilege.  Further, the court found that the School Board’s assertion that the requested documents were unrelated to the investigation report contradicted a necessary element of the attorney-client privilege – that the material pertained to the attorney’s provision of legal advice.  In any case, the court found the texts to be non-records not subject disclosure, which rendered the attorney-client issue moot.

What this means for your District:

Records that are subject to disclosure are particularly defined by law and do not necessarily include all documents or information retained by a public office.  However, records custodians should be careful in determining whether a document constitutes a record before denying a request.  Particular care should be taken in asserting an exemption as these to have specific legal meanings which are narrowly interpreted in favor of disclosing the record.  Successful claims against a school district can result in the payment of fines and attorney fees.  Please consult an Ennis Britton attorney regarding your public records questions.

Court of Appeals: Terminated Teacher Cannot use Mandamus to Overcome a Failure to File an Administrative Appeal

The Third District Court of Appeals of Ohio has affirmed the decision of a trial court granting summary judgment in favor of a board of education against a teacher seeking reinstatement through a mandamus action. Click here to see the case.

The teacher was in the Resident Educator Program. At the time, teachers were required to obtain passing scores on five different tasks.  Teachers were permitted to repeat failed or uncompleted tasks in subsequent years of the program and there was also an ability to obtain an extension for one year, in the event the teacher was unable to complete the tasks in time.  Here, the teacher was granted such an extension. 

During the extended year, the teacher completed the final two tasks and submitted them for scoring.  The scores were to be released on June 30.  This put the school board in a pickle because it needed the scores to determine if it wanted to offer the teacher another contract but also needed to inform the teacher by June 1 that it intended not to renew the teacher’s contract or it would be forced to offer a contract.  The Board chose to offer a one-year contract to the teacher at its meeting in May. 

Subsequently, the teacher found out he failed one of the tasks and would not be issued a license.  The teacher was unable to obtain another extension by law and ODE did not grant the teacher a substitute license.  Accordingly, the teacher was without a teaching license for the coming school year.  The Board of Education held a special meeting on June 7th at which it terminated the teacher’s employment for the teacher’s failure to pass the exam and obtain a professional license.  The Board did not follow any of the teacher termination procedures contained in R.C. 3319.16, including providing written notice of the Board’s action, time for a hearing, etc.

Subsequently, the RESA regulations were revised and ODE deemed that under the new program requirements, the teacher would have been issued a license.  ODE issued a license to the teacher retroactive to July 1, a little less than a month after the Board took its action to terminate. The teacher, through the union, demanded that he be reinstated, and by letter the Board refused. A grievance ensued and proceeded to arbitration which was decided in favor of the Board because it had just cause to terminate.

The teacher then filed the mandamus action that is the subject of this case. A mandamus action is a lawsuit whereby a person requests a court to force a public entity or officer to do an act it has a clear legal duty to perform.  The teacher asked the court to either require termination proceedings in accordance with 3319.16 or to reinstate the teacher with a one-year contract.

As a quick reminder, per R.C. 3319.16, a board of education may terminate a teacher contract for “good and just cause.”  Before terminating the contract, the Board must provide written notice of its intent to do so, it must afford the opportunity for a hearing before the board or a neutral referee, it must then publicly adopt an order of termination setting forth the grounds for termination.  A teacher has 30 days to appeal an order of termination by a Board of Education. Note that you may have collective bargaining agreement provisions that place additional procedural requirements or limitations on this process.

The issue on appeal was whether mandamus was an appropriate action because the teacher could have filed an administrative appeal of the board’s decision to terminate under 3319.16 and thus had an “adequate remedy at law” negating the applicability of a writ in mandamus.  This is not a novel question and the outcome here is not much of a surprise.  The Court ruled that an administrative appeal under 3319.16 is an adequate remedy at law and so mandamus was not appropriate.  The teacher should have filed an administrative appeal to challenge the decision of the Board.

However, there are several insights in the case into how courts may interpret the requirements of R.C. 3319.16 in a termination appeal, particularly where there may be procedural defects:

1.       Actual notice of the Board’s action is all that is required to trigger the 30-day appeal period. 

Even though the Board did not provide official written notice of its actions, there was sufficient evidence in the record, that the teacher knew of his termination well before he filed his mandamus action, and thus could have filed an appeal.  The Court only assumed for purposes of the case but did not decide, that merely hearing from a third party who attended the board meeting that the termination had occurred constituted sufficient notice. In any case, do not rely on others to inform the employee of the Board’s action. You want that appeal period to begin to run as soon as possible so get written notice to the employee as soon as possible.

2.       Even if the Board ignores completely the procedural requirements for termination, the termination is subject to an administrative appeal.

The right to the appeal is based on what the law requires the Board to do, not what it actually does.  So even where there are procedural defects or no procedure at all, the employee still must be vigilant in filing an appeal or the trial court will not have jurisdiction.

3.       A court has the authority to remand a matter back to a board of education for further proceedings.

It is therefore possible that rather than reinstate a teacher, a court could remand back to a board of education to conduct appropriate termination proceedings.

A question that went unanswered was whether ODE backdating the license it granted to the teacher to July 1 would have negated the Board’s just cause for terminating the teacher when it was apparent in June that the teacher would not have a license as of July 1, the first day of the contract.  Had the teacher filed an administrative appeal, this may have been addressed by the court.

What this means for your district:

While it is always a good idea to follow applicable procedural requirements, failure to do so may not delay the employee’s time to appeal.  However, failure to follow procedures in a timely filed appeal may be cause for reinstatement or remand for further proceedings by the Board.

Tenth District Court of Appeals Rules that Employee’s Good Faith Reason for Rejecting Light Duty Offer does not Preclude Termination of Temporary Total Disability Benefits

Temporary total disability (TTD) is a wage replacement benefit provided by the Bureau of Workers’ Compensation (BWC) to employees who are temporarily unable to perform the duties of their job due to a work place injury that has been recognized (“allowed”) by BWC.

TTD benefits increase the costs of the claim for the employer by increasing the reserve taken out to cover potential costs and by the corresponding impact of costs of the claim on the employer’s premiums. Accordingly, it is in the employer’s interest to reduce the period that an employee qualifies for TTD benefits in order to reduce overall BWC costs.

TTD benefits can be terminated for several reasons.  The focus of this most recent Court of Appeals case is refusal of an offer of suitable work.  TTD benefits may be terminated if an employee refuses a good faith offer of suitable alternative employment.  Suitable employment is work that is in the employee’s physical abilities, taking into account any restrictions for lifting, pushing, pulling or other physical activities that may be required for the work. For many employers, this may be a light duty position.  Employers are not under any obligation to provide light duty work, but it may make financial sense to do so in some cases, particularly in the context of a workers’ compensation claim.  

In order for a good faith offer of suitable work to be a basis for terminating TTD, it must be in writing, it must describe the duties that the employee will be required to perform with enough specificity that the employee and his or her treating physician can determine whether or not the job offer meets the employee’s physical limitations. A good faith offer is one that is clearly within the employee’s limitations. At least 48 hours should be granted for the acceptance or rejection of the offer.  It would be best if a job description specifying the duties is provided with the offer for the physician’s review.

The question in this case is whether it matters if the employee has a good faith reason to reject the offer.  In other words, can an employee, with good reason, reject an employer’s job offer and still retain TTD benefits?  The answer, is no.

Here, it was not in dispute that the offer was suitable and was made in good faith by the employer.  It was therefore, a qualifying job offer sufficient to serve as a basis for terminating TTD if rejected.  However, the magistrate to whom the case was assigned found that because the employee likewise had a good faith reason for rejecting the offer, the employee could retain the TTD benefits.

The Court of Appeals reversed.  Whether the employee had a good faith reason to reject an offer would only be relevant to considering whether the employer’s offer was made in good faith. If the Employer makes a suitable offer in good faith, the only relevant inquiry is whether the employee is capable of doing the job.  If the employee is capable, a rejection of the offer can be a basis for terminating TTD benefits.  The Court reasoned that law governing TTD follows the principle that there must be a causal relationship between the work-related injury and the claimant’s inability to return to work to support an award of TTD compensation.  That requirement would not exist if the claimant could reject an offer on grounds other than the inability to perform the work, even for reasons that are understandable and based in good faith.

If you have an employee who qualifies for TTD consider whether there is alternative suitable employment or light duty work available that could be offered to the employee.  If so, you will want to ensure that you make a qualifying offer in writing. Contact one of the Ennis Britton Workers Compensation team members for assistance.  We can help provide a qualifying offer and advise on filing a motion to terminate TTD when appropriate.

State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2020-Ohio-5197

Court Denies Unemployment Benefits to Striking Employees

In somewhat of a novelty decision, the Fifth District Court of Appeals of Ohio has upheld a trial court decision affirming the denial of unemployment benefits to 51 non-teaching employees who went on strike after OAPSE and the Board of Education were unable to reach an agreement on a successor contract.

In Ohio, employees are entitled to unemployment benefits in cases of a lockout. However, employees engaged in a labor dispute during which they can continue working while negotiations proceed are not eligible for benefits. Here, the Unemployment Commission found that the employees were engaged in a labor dispute, other than a lockout when they applied for benefits and were therefore not eligible.

The Ohio Supreme Court has defined a lockout as a “cessation of the furnishing of work to employees or a withholding of work from them in an effort to get for the employer more desirable terms.” A lockout can be actual or constructive. A constructive lockout occurs when “the conditions of further employment announced by the employer are such that the employees could not reasonably be expected to accept them and the terms manifest a purpose on the part of the employer to coerce his employees into accepting them or some other terms.”

In reconciling these disputes, the Unemployment Commission will analyze whether the employer will allow employees to continue working under the status quo of the expiring agreement while negotiations continue and whether the employees agree to continue working. It boils down to whether management or the union changed the status quo. 

The court found that the record established that the Board did not withhold work in an effort to gain a bargaining advantage. The applicable CBA expired in July of 2017. The parties began negotiating in April of 2017 and the Board permitted work to continue under the preexisting agreement all the way into March of 2019 when the strike commenced. The Court further found that the Board had made a last, best, and final offer to the union but did not implement it or threaten to implement it. Therefore, the Court found that it was not the employer who had changed the status quo. The union on the other hand, did not act reasonably under the circumstances because it could have pulled its strike notice, continued to negotiate and continued to work while doing so, and then it could have ultimately refiled the strike notice if need be. Because it was the union that changed the status quo, and doing so was unreasonable under the circumstances, there was credible evidence for the Unemployment Commission to find that the employees were ineligible for benefits because they were not subjected to a lockout.

Ohio Assn. of Pub. School Emps. v. Unemp. Comp. Rev. Comm., 2020-Ohio-4028