2018 Ohio 4072
Ohio Ct. App.2018Background
- Clifford Rivenbark worked for Discount Drug Mart (Drug Mart) since 1999; he suffered serious leg injuries in 2007 and was diagnosed with bipolar disorder in 2002. He sought workplace accommodations for leg-related limitations (e.g., reduced walking, extra warm-up time, pulling orders for fewer stores).
- Drug Mart initially provided some temporary accommodations (light duty, limited two-store pulling) but requested more detailed medical documentation of physical limitations from Rivenbark’s physicians.
- In July–August 2012 Rivenbark was transferred to a staging position; his behavior during meetings with HR allegedly changed and grew more agitated.
- On August 9, 2012, Rivenbark met with HR director Leigh Ring, read a letter complaining about accommodations and retaliation; Ring testified she felt intimidated and frightened by his demeanor (tearing paper, trembling, flexing, pulling something from his pocket), and reported fear afterwards.
- Drug Mart terminated Rivenbark for intimidation under its handbook policy. Rivenbark sued alleging disability discrimination, failure to accommodate, and retaliation; only the R.C. 4112.02(I) retaliation claim reached the jury, which found for Drug Mart.
- On appeal Rivenbark (pro se) raised six assignments of error contesting evidentiary rulings, jury instructions, and that the verdict was against the manifest weight of the evidence; the Ninth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of bipolar evidence and jury instruction to ignore bipolar diagnosis | Court improperly barred bipolar evidence in second half of trial and told jury not to consider it | Bipolar was not shown to be relevant to the claimed accommodation/retaliation for leg injury; admission would be more prejudicial than probative; plaintiff’s counsel acquiesced | Forfeited by failure to timely object; no reversible error shown; instruction appropriate given scope of case |
| Admission of vocational expert (Janet Kilbane) | Expert testimony invaded jury province and covered topics within lay knowledge; bolstered defendant and attacked plaintiff’s credibility | Kilbane has specialized training and experience evaluating employability and transferable skills; testimony admissible under Evid.R.702 | No abuse of discretion in admitting testimony; any error harmless because jury found no liability |
| Evidence that Drug Mart regularly accommodated other employees | Testimony about accommodations for others was improper character evidence (Evid.R.404(B)/406) and irrelevant to Rivenbark’s treatment | Testimony showed company policy/practice and was elicited in context of how HR handled Rivenbark’s situation; much similar testimony was admitted without objection | Admission did not prejudice Rivenbark given unchallenged testimony to same effect; no reversible error |
| Admission of evidence about games attendance, settlement conference, deposition behavior | Testimony/ exhibits improperly suggested financial comfort or portrayed plaintiff as odd/prejudicial | Defendant: testimony/documents were relevant and/or plaintiff had testified about attending games; deposition conduct was proper subject matter | Objections largely forfeited or harmless in light of plaintiff’s own testimony and record; no prejudicial error shown |
| Failure to give a separate pretext jury instruction | Court committed plain error by omitting a specific pretext instruction, misleading jury on burden/shifting | Plaintiff’s counsel did not object to instructions at trial; no controlling authority requiring a separate pretext instruction in R.C.4112.02(I) cases | Forfeiture of the objection; plain error not shown — appellant failed to meet the high standard |
| Verdict against manifest weight of evidence | Evidence did not support nondiscriminatory reason; jury should not have credited HR director’s fear and defendant’s account | Jury saw conflicting testimony; company decision based on perceived intimidation and handbook violation; credibility determinations favor defendant | Not against manifest weight. Jury credibility findings reasonable; no new trial warranted |
Key Cases Cited
- Greer-Burger v. Temesi, 116 Ohio St.3d 324 (Ohio 2007) (elements and burden-shifting framework for retaliation claims under Ohio law)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for reviewing manifest-weight challenges in civil cases)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (doctrine and narrow application of plain-error review in civil cases)