Scalia v. Aldi, Inc.
2011 Ohio 6596
Ohio Ct. App.2011Background
- Ms. Scalia injured her elbow while performing lifting duties at Aldi, a job requiring frequent lifting up to fifty pounds.
- She began receiving temporary total disability benefits in January 2005 after the injury.
- Aldi obtained an independent medical examination (IME) from Dr. Richard Kepple; he first found ongoing restrictions, later in January 2006 opined that she had reached maximum medical improvement with no restrictions, conflicting with her treating physician’s restrictions.
- Aldi offered to return Scalia to work based on the IME but did not clarify whether restrictions would apply; Scalia queried without receiving a clear reply.
- Aldi moved to terminate TTD benefits; after a hearing, BW Workers’ Compensation found she had reached MMI and terminated TTD; Aldi did not permit her to return to work.
- Aldi terminated Scalia’s employment April 20, 2006 under its attendance policy for twelve months of non-work in the prior year, while Scalia remained under her physician’s restrictions through February 2007.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attendance policy termination is retaliation per se | Scalia argues policy results in per se retaliation under R.C. 4123.90. | Aldi contends policy application is not per se retaliation. | Not per se retaliation; but the claim warrants broader framework review. |
| Whether there are genuine issues of material fact on retaliation claim | Timing and context show retaliatory motive. | No genuine issues; policy applied neutrally. | Summary judgment reversed on scope; issues remain to be analyzed under proper framework. |
| Whether Scalia states a R.C. 4112.02 disability discrimination claim based on perceived disability | Aldi perceived her as disabled and terminated on that basis. | No guaranteed perceived-disability liability under the record. | Sustained; the trial court failed to apply proper McGlone/Genaro framework; Scalia may prove perceived disability under Ohio law. |
| Whether the wrongful-discharge public-policy claim under R.C. 4123.90 and 4123.56 survives | Public policy supports wrongful-discharge claim. | Bickers forecloses public-policy exception to at-will discharge here. | Overruled; Bickers controls but this assignment is deemed unpersuasive here; remand consistent with opinion. |
| Whether the disability-discrimination claim under R.C. 4112.02 was misanalyzed | Defendant misapplied McGlone; focus on perceived impairment, not substantial limitation. | McGlone dictates analyzing perceived disability through substantial limitation. | Sustained; improper defect in requiring substantial limitation; holds that ‘regarded as’ disability is analyzed differently under Ohio law. |
Key Cases Cited
- Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141 (2003-Ohio-5357) ( TT benefits and public policy protect absence related to allowed conditions)
- Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351 (2007-Ohio-6751) (limits public policy exemption to at-will discharge; treats retaliation framework)
- Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153 (2011-Ohio-2723) (retaliation requires proof of causal relation and motive; no presumption of retaliation from injury timing)
- Genaro v. Cent. Transport, 84 Ohio St.3d 293 (1999) (limits use of federal ADA interpretations in Ohio 4112.02 except where consistent with Ohio law)
- McGlone v. Columbus Civ. Serv. Comm., 82 Ohio St.3d 569 (1998) (interprets ‘regarded as disability’ under Ohio law; informs perception-based claims)
- Cunningham v. Kroger Co., 1st Dist. No. C-050990 (2006-Ohio-5900) (burden-shifting framework for R.C. 4123.90 retaliation claims)
- Ferguson v. SanMar Corp., 2009-Ohio-4132 (12th Dist. No. CA2008-11-283) (retaliation framework and circumstantial evidence considerations)
- Dover v. Carmeuse Natural Chems., 2010-Ohio-5657 (5th Dist. No. 10-CA-8) (evidence-based approach to causation in retaliation claims)
- Goersmeyer v. Gen. Parts, Inc., 2006-Ohio-6674 (9th Dist. No. 06CA00045-M) (retaliation burden-shift model)
- Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (Supreme Court on ‘regarded as’ disability and discrimination scope)