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.

Ohio Court Upholds Picketing at Homes and Places of Employment of Public Officials

The Ohio Court of Appeals for the Eleventh Appellate District recently addressed a dispute between the Portage County Educators Association for Developmental Disabilities-Unit B, OEA/NEA and the Portage County Board of Developmental Disabilities.   During a labor dispute, members of the union picketed on sidewalks outside the private residences of six Board members and outside the employer of one Board member.  The State Employment Relations Board (SERB) determined that was an unfair labor practice based on language in R.C. 4117.11(B)(7), which makes picketing related to a labor relations dispute at the residence or place of private employment of any public official an unfair labor practice.  

The union argued that the statute was an unconstitutional restriction on speech because the picketing in question took place on public sidewalks and streets.  Those are quintessential public forums where speech enjoys a great deal of protection.  

The court of appeals needed to first determine if the unfair labor practice statute was “content-based” or “content-neutral.”  Content-neutral restrictions enjoy intermediate scrutiny and are presumed valid.  Content-based restrictions are subject to strict scrutiny review and are presumed invalid.  In this case, the court found that the statutory restriction was content-based because it prohibited picketing in certain locations only when that picketing was related to a labor relations dispute. 

Given the determination that the statute was a content-based restriction on speech, the presumption of unconstitutionality could only be overcome by a showing that the regulation is (a) necessary to serve a compelling state interest; and (b) narrowly tailored to achieve that interest by the least restrictive means.  Ultimately, the court found that SERB failed to show that the statute served a compelling state interest or that it was narrowly tailored.  As a result, the court held that the statutory language was unconstitutional, and the union did not commit an unfair labor practice.

What this means for your District?

Picketing outside the homes or places of employment of school board members is permissible in certain counties in Ohio.  The Eleventh Appellate District has jurisdiction over Ashtabula, Geauga, Lake, Portage and Trumbull Counties.  This decision is binding in those counties.  The Eighth Appellate District, which serves Cuyahoga County, previously reached the same conclusion in 1998.  At least in those counties, an unfair labor practice will not be found if union members picket on public streets or sidewalks in front of board of education members’ homes or places of employment.  

The Seventh Appellate District reached the opposite conclusion in 2016.  Given the conflict among these courts, it is not clear throughout Ohio whether it is an unfair labor practice to picket outside the homes or places of employment of public officials.  It is possible that this decision will be appealed to the Ohio Supreme Court where a definitive answer can be had.  We will certainly update our clients if this case is appealed and decided by the Ohio Supreme Court.

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.

FFCRA leave guidance changes now effective

A lawsuit challenging the Department of Labor (DoL) FFCRA leave guidance was filed in April 2020 by the New York Attorney General. (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020) The decision of the federal district court invalidated four sections of the DoL regulations. The invalidated regulations included:

  • The persons covered as “health care providers” who could be excluded from the leave provisions of the Act,
  • Regulations stating the employer must permit intermittent leave under the EPSLA or EFMLEA,
  • Prior notice of leave provisions, and
  • Availability of leave if the employer does not have work for the employee to do.

DoL recently issued a new temporary rule with explanations of some of the provisions (intermittent leave) and clarification/amendment of others (notice of leave), effective September 16- December 31, 2020. Unless extended through additional legislation, the leave provisions in FFCRA (EPSLA and EFMLEA) expire at the end of December.

Find the notice in the Federal Register here: https://preview.tinyurl.com/yysmuzlg.

DoL clarified and expanded upon its interpretation on intermittent leave. An ongoing question for public schools has been how to administer the use of EFMLEA leave for child care when the employee’s child(ren) are on a hybrid schedule, attending in person and remotely from week to week or day to day. Updated regulations clarify that EFMLEA child care leave for parents whose students are on hybrid programs is not considered intermittent leave.

The rationale: because school buildings are closed to students on days when students attend remotely, remote days are considered a qualifying reason for leave. In contrast, when the child goes to school in person, the school is open. When the school switches back to remote learning, it is a new qualifying reason for leave. This guidance is different from previously-published guidance and is a new interpretation. Intermittent leave was addressed at questions #20-22 of the Dol “FFCRA Questions and Answers”. It is assumed this Q & A will be revised after the effective date.

DoL’s new explanation of the rationale as published in the Federal Register, 85 FR 57677 :
“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.

In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.

This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”

Teleworking employees: DoL clarified that an employee may take intermittent leave while teleworking for any of the FFCRA qualifying reasons if the employer permits it.

Notice and documentation of leave: The DoL also amended one regulation that required notice to the employer of the need for leave prior to taking the leave.

  • EPSLA leave: notice of the need for leave cannot be required prior to the leave. The revision states that notice of leave after the first day should be given “as is practicable.”
  • EFMLEA leave: if the need for the leave is foreseeable, notice should be given in advance. If not foreseeable, the employee must give notice “as is practicable.” Employees may be required to provide documentation including the employee’s name, dates for which leave is requested, qualifying reasons for the leave, and an oral or written statement the employee is unable to work.

What this means for your district:
Administering EPSLA and EFMLEA child care leave has been challenging. DoL’s interpretations and positions continue to evolve. These regulations clarify some of the questions we have been getting, although additional questions remain. Please consult with an EB attorney if you have specific questions about how the newly-effective regulations apply in specific situations.

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

Schwendeman v. Marietta City Schools

The United States District Court for the Southern District of Ohio recently ruled in favor of a school district when an employee brought disability discrimination and retaliation claims after he was terminated for working for the local police department while being out on sick leave. Schwendeman v. Marietta City Schools, S.D. Ohio No. 2:18-CV-588, 2020 WL 519626 (Jan. 31, 2020).

The Plaintiff in this case was a bus driver employed by the Defendant school district, who also worked as a noon duty supervisor throughout the school day. In August of 2016, the Employee was required to have surgery on his foot. Following surgery, the Employee requested sick leave in order to recover. The Employee’s sick leave request was granted and the Employee returned to work on October 27, 2016. 

When the Employee returned to work, the District set up a meeting because an employee’s wife had seen the Employee walking around in a Belpre Police Department uniform while out on sick leave. The District called the Chief of Police and discovered that the Employee was a volunteer for the police department, hired through a local subcontracting company. The Employee acknowledged that he was volunteering with the police department, but was not specific as to what days he was working and whether or not he was getting paid. After holding two subsequent meetings, the District was unable to determine which days the Employee was working with the police department or whether he was receiving compensation. Shortly thereafter, the Employee sent the District an email asking about the status of the investigation. The District replied stating the investigation was closed because of their inability to confirm whether the Employee was paid by the police department or by their subcontractor or the exact dates in which the Employee was working while out on leave. 

Unsatisfied with the District’s response, the Employee filed Charges of Discrimination against the District with the EEOC and OCRC for the events that transpired throughout the investigation. The Employee’s claims were denied along with his appeals. Shortly after the discrimination charges were filed, the District reopened the investigation in order to defend the allegations stated within the charge. At that time, the District received records from the police department indicating that the Employee had been paid for working six days for four hours a day during the time he was on sick leave. 

Upon learning this information, the District sent the Employee a Notice of Suspension and a Notice of Proposed Discharge for working with the police department during his sick leave. The grounds for termination included violation of O.R.C. § 2921.13 “falsification for the purpose of obtaining governmental benefits”, and O.R.C. § 3319.141 “falsification of an application for sick leave from public school employment.” The notices also stated that the Employee was being disciplined for his dishonesty during the school’s investigation. The District ultimately terminated the Employee’s employment for the reasons stated above.

The Employee then filed Charges of Retaliation against the District with the EEOC and OCRC. Again, these charges and the appeals thereof were ultimately denied. The Employee then filed a grievance in accordance with the collective bargaining agreement. The grievance was ultimately withdrawn in order for the Employee to seek legal help. This suit followed.

Lawsuit
The Employee brought an action alleging disability discrimination, FMLA retaliation, Retaliation, and Intentional Infliction of Emotional Distress.

Disability Discrimination under the ADA and Ohio Law
The Court found that the Employee had established a prima facie case of disability discrimination and considered the Employee as “disabled” considering the fact that the Employee had foot surgery and was impaired for three weeks while recovering.

However, the Court agreed that the District had legitimate non-discriminatory reasons for their employment action: falsification of sick leave, falsification of benefits, and dishonesty were legitimate reasons for termination. Further, the Court found that the District had an “honest belief” in the non-discriminatory reason it made in its employment decision and therefore the Employee’s claims were unsupportable. The key inquiry in this regard is to determine whether the employer made a reasonably informed decision before taking action. (Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007).) In this case, the District reopened their investigation into the Employee after receiving charges of discrimination on an honest belief and in pursuit of new information: that the Employee worked with the Belpre PD on six days while on sick leave and had received payment from the subcontractor as a result of working with the Belpre PD while on leave. Upon learning this information, the District sent notices of termination based on these grounds. 

The Court further shut down the Employee’s argument that he did not mislead the District nor did he falsify any documentation regarding his surgery or his need for sick leave. The Court determined that a reasonable jury could not doubt the District’s explanation that they terminated him for falsifying sick leave. The District terminated the Employee because they believed he was dishonest and falsified his sick leave. Additionally, the Court noted that even if the District was mistaken in believing that the Employee had been dishonest of falsified leave, such a mistake is not a sufficient reason to doubt the District’s honest belief. (Clay v. United Parcel Serv., Inc., 501 F.3d at 713-15.) Moreover, the Employee’s assertion that the District wrongly assumed he could perform his duties because he was working during sick leave is insufficient to cast doubt on the District’s honest belief. Furthermore, the Employee also failed to establish any evidence that would establish discrimination as the real reason for the District’s employment decision. Thus, summary judgment on the Employee’s ADA and Ohio law discrimination claims were appropriate. 

Retaliation Under the ADA
The Employee also brought retaliation claims under the ADA. However, the Court found that there was not temporal proximity between the Employee’s protected activity (filing charges with the EEOC and OCRC) and the adverse employment action (termination). When there is some time lapse between the activity and the adverse employment action, the Employee must couple that with some other evidence of retaliatory conduct in order to show causation. (Little v. BP Expl. & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001).) In this case, the Employee was terminated three months after he filed Discrimination Charges with the EEOC and OCRC. Thus, he must point to some other evidence of retaliatory conduct in order to show causation. The Employee attempted to show this retaliatory conduct by the fact that the District reopened the investigation into the Employee because he filed the Discrimination Charges. However, the Court had already previously determined the District properly reopened the investigation in order to respond to the allegations therein and not as a general response to the charges being filed. Thus, the Court ultimately concluded that the Employee failed to establish a causal connection between his protected activity and his termination. Therefore, his ADA retaliation claim failed. 

Ultimately, all of the Employee’s claims failed and were dismissed. This case is support for school districts taking action based on an employee’s dishonest actions while out on leave, even when such action appears in close proximate time to certain protected actions of an employee (e.g. filing charges of discrimination with EEOC and/or OCRC). If a district learns new information it is not prohibited from acting on the new information even though an employee may have sought other legal avenues.