by Ryan LaFlamme | Apr 9, 2021 | General, Labor and Employment, Workers’ Compensation
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.
by Ryan LaFlamme | Aug 14, 2020 | General, Labor and Employment, Unemployment
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
by Ryan LaFlamme | Jun 16, 2020 | General, Labor and Employment, Workers’ Compensation
Workers’ Compensation practitioners and school benefits employees alike know that temporary total disability, and particularly the concept of voluntary abandonment of employment, are difficult areas of Workers’ Compensation law in Ohio. The Tenth Appellate District could not have framed the difficulty more succinctly than it did in a recent decision wherein the Court stated the issue of the case as follows:
“Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers’ Compensation in connection with your (former) job?
The Court’s answer: Maybe.
Temporary total disability (TTD) is a benefit provided by the Bureau of Workers’ Compensation (BWC) to compensate for wage loss due to an injury. Voluntary abandonment is a defense an employer may assert against a claim for TTD. An employee who is terminated for violation of a written work rule may be considered to have abandoned his or her employment. If the employer is successful in raising the defense, the TTD will be denied because the disability due to the workplace injury is not the sole reason the employee is unable to return to the former position of employment. The concept was first used in a case wherein an employee had voluntarily retired. The court held that “If the employee has taken action that would preclude him from returning to his former position of employment, even if medically able to do so, the employee is not entitled to continue to receive temporary total disability compensation, because it was the employee’s own action rather than the industrial injury which prevented him from returning to his former position of employment.” The concept has been applied to employees who are incarcerated as well as those that voluntarily retire.
However, not all separations from employment will constitute voluntary abandonment. Involuntary retirement due to the workplace injury will not preclude payment of TTD nor, to the surprise of many employers, getting a new job. The Ohio Supreme Court has held that the abandonment of employment defense applies only to claimants who voluntarily leave the labor market, not to claimants who quit their former position of employment. Employee discipline situations can fall both ways, which brings us to the importance of this case.
Termination from employment can be considered voluntary abandonment if the employee willingly engaged in acts that lead to the termination. The Supreme Court allowed the defense in a case involving the violation of a policy that prohibited the accumulation of three consecutive unexcused absences. If those absences had been due to the industrial injury that was the basis of the claim, the defense would not have been accepted.
Turning back to the case at hand, here, the employee got into a heated exchange with the employer which lead to a physical altercation. The employee reportedly lunged at the employer, pushing him and causing him to fall back. The employee was terminated and arrested for assault. The employer had a policy against fighting and a policy against criminal convictions other than minor traffic offenses. The employer asserted those policies as the basis for his termination and in turn, attempted to use the termination as grounds to cut off TTD benefits due to voluntary abandonment. At the first hearing, the District Hearing Officer granted TTD for the employee finding that the employer had not set forth sufficient evidence as to when or why the employee was terminated. On appeal, the staff hearing officer agreed and again, found in favor of the employee.
The employee testified that he did not assault the employer. Rather, he acted in self-defense when the employer came towards him. When the employer approached, he put his arms up to stop him and the employer said, “you just assaulted me.” The employee testified that he plead guilty to avoid excessive legal fees and jail time. The staff hearing officer rejected the employer’s position that the employee had willingly engaged in fighting. It appears the employer did not bring any additional witnesses to testify and the hearing officer found the employee to be more credible than the employer. The staff hearing officer also rejected the termination was based on a criminal conviction because it came long after the termination.
The employer appealed the matter to court but by then, it was too late to improve its case. Once on appeal, the court must accept the findings of the hearing officer unless the decision is an abuse of discretion because the hearing officer did not have “some evidence” to reach its conclusion. It is a high bar to overcome. The court noted that the hearing officer is charged with assessing the weight of evidence and the credibility of witnesses and is entitled to deference by the court. The employer lost the appeal.
The moral of the story is to never underestimate the importance of the BWC hearing. These hearings are brief and informal and it can lull an unwary employer into essentially “winging it” when they think they have a strong case. Any and all documentary evidence should be prepared and submitted, and any and all witnesses should be brought to testify. The employer has only one, perhaps two, chances to influence what goes into the record of proceedings (the hearing officer’s decision) and that record sets the basis for a court’s review in the future. Make sure that “maybe” becomes a “yes.” If you have any BWC related questions, please reach out to one of our Workers’ Compensation team members.
State ex rel. Welsh Ents., Inc. v. Indus. Comm., 2020-Ohio-2801
by Ryan LaFlamme | May 27, 2020 | General, School Management
On May 6, 2020, we reported to you that a panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision holding that there is a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. As a follow up to that post, on May 19, 2020 the Sixth Circuit vacated that ruling so that it can be considered by the entire Sixth Circuit bench. The ruling allowed students from five of the lowest-performing schools in Detroit to sue Michigan officials over their inability to read. There was some speculation about whether a rehearing before the entire Sixth Circuit bench (en banc) would be sought by the Attorney general, who had publicly praised the decision. However, the Sixth Circuit did so itself (sua sponte) under rules granting it the power to vacate panel decisions for consideration by the entire bench. This is done so where there is a potential for “a precedent-setting error of exceptional public importance” or direct conflict with Sixth Circuit or Supreme Court precedent. As reported in the blog post, the U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to a basic minimum education. As the dissent noted, the Court held in Plyler v. Doe, that “p]ublic education is not a ‘right’ granted to individuals by the Constitution.” The effect of the ruling is that the opinion of the three-judge panel is vacated and of no force and effect. We will keep you posted on any developments in this important case.
by Ryan LaFlamme | May 6, 2020 | General, School Management
A
panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision
holding that the Fourteenth Amendment’s Due Process Clause protects a
fundamental right to a “basic minimum education” that is potentially
violated when the state fails to provide adequate public schools. The Sixth
Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.
Judge
Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s
case. The Plaintiffs are students at several of Detroit’s worst-performing public
schools. They credit this substandard performance to poor conditions within
their classrooms, including missing or unqualified teachers, physically
dangerous facilities, and inadequate books and materials. Taken together, the
Plaintiffs say these conditions deprive them of basic minimum education,
meaning one that provides a chance at foundational literacy.
In
2016, the Plaintiffs sued several Michigan state officials, who they say are
responsible for these abysmal conditions in their schools. Plaintiffs allege
that state actors are responsible, as opposed to local entities, based on the
state’s general supervision of all public education, and also on the state’s
specific interventions in Detroit’s public schools.
The
Plaintiffs’ claims are all based on the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan
students receive an adequate education, the students in Plaintiffs’ schools do
not, amounting to a violation of their right to equal protection of the laws.
They also argue that the schools they are forced to attend are schools in name
only, and so the state cannot justify the restriction on their liberty imposed
by compulsory attendance. And in their most significant claim, Plaintiffs ask this
Court to recognize a fundamental right to basic minimum education, an issue the
Supreme Court has repeatedly discussed but never decided.
The
District Court found that the Defendants (various state officials including the
Governor, Members of the State Board of Education, the State Interim
Superintendent of Public Instruction, Director of the MI Dept of Technology,
and the State School Reform/Redesign Officer, in their official capacities)
were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint
on the merits.
First,
it found that the Plaintiffs had not alleged a proper comparator for their
equal protection claim, nor had they highlighted any state policy or action
that was not supported by a rational basis. Second, it found that the Plaintiffs
had not sufficiently pleaded their compulsory attendance theory, and so the
court only viewed their due process claim as seeking an affirmative fundamental
right. Third, the court held that basic minimum education is not a fundamental
right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then
appealed.
The
Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory
education claims were not properly pleaded and were therefore rightfully
dismissed by the District Court. However, the panel agreed that the Plaintiffs
had “been denied basic minimum education, and thus have been deprived of access
to literacy.”
Judge
Clay, seeming to understand the gravity of declaring a new fundamental
constitutional right, wrote the following:
“The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its
ubiquitous presence and evolution through our history have led the American
people universally to expect it. And education—at least in the minimum form
discussed here—is essential to nearly every interaction between a citizen and
her government. Education has long been viewed as a great equalizer, giving all
children a chance to meet or outperform society’s expectations, even when faced
with substantial disparities in wealth and with past and ongoing racial
inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.“
The
dissent argued that a holding such as this is beyond the court’s role and is
something best left to the Legislature and the citizens at-large. Judge Murphy
wrote in dissent: “The Due Process Clause has historically been viewed,
consistent with its plain text, as a negative limit on the states’ power to
“deprive” a person of “liberty” or “property.”
U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for
the states to protect liberty or provide property. A state’s decision “not
to subsidize the exercise of a fundamental right” has never been thought
to “infringe the right,” even in areas where the states have long
provided that assistance.”
Judge
Murphy also noted the practical difficulties with attempting to enforce a right
and its impact on the separation of powers issues. “How should those courts
remedy the schools that they conclude are not meeting the constitutionally
required quality benchmarks? May they compel states to raise their taxes to
generate the needed funds? Or order states to give parents vouchers so that
they may choose different schools? How old may textbooks be before they become
constitutionally outdated? What minimum amount of training must teachers
receive? Which HVAC systems must public schools use?”
The
U.S. Supreme Court has not expressly held that the U.S. Constitution provides a
fundamental right to basic minimum education. As the dissent noted, the Court
held in Plyler v. Doe, that [p]ublic education is not a ‘right’ granted to
individuals by the Constitution.” Accordingly, there is good reason to
speculate that this decision would not survive an appeal to the U.S. Supreme
Court. However, it is not certain where the case goes from here. The State
Attorney General could seek a re-hearing before the entire Sixth Circuit bench
(en banc). This may not occur as the Michigan Attorney General has already
praised the decision. It is also possible that the State Legislature may seek
to intervene and ask for a re-hearing. That request may have to go to the same
panel that made this decision. Finally, the Sixth Circuit could decide itself
(sua sponte) to re-hear the matter en banc.
We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.
Gary B., et al. v. Whitmer, et al 2:16-cv-13292
