JACINDA ANDERSON v. THE OHIO BELL TELEPHONE COMPANY
No. 104858
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 24, 2017
2017-Ohio-7318
BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-13-798525
JUDGMENT: REVERSED AND REMANDED
Steven J. Forbes
Norchi Forbes, L.L.C.
23240 Chagrin Blvd., Suite 210
Cleveland, Ohio 44122
ATTORNEYS FOR APPELLEE
Laura Lindner
Littler Mendelson P.C.
111 East Kilbourn Avenue, Suite 1000
Milwaukee, WI 53202
Amy Ryder Wentz
Littler Mendelson P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
{¶1} Plaintiff-appellant Jacinda Anderson (“Anderson“) appeals from the trial court‘s January 24, 2016 judgment that, in part, granted summary judgment in favor of defendant-appellee, The Ohio Bell Telephone Company, a.k.a. AT&T (“Ohio Bell“), on Anderson‘s disability discrimination claims. For the reasons that follow, we reverse and remand.
Background
{¶2} Beginning in August 2005, Anderson worked for Ohio Bell; she had previously worked for Michigan Bell from 1995 until she transferred to Ohio Bell. In August 2009, she sought leave of absence for an alleged medical condition. In November 2009, the company terminated her employment.
{¶3} In 2013, Anderson filed this action against Ohio Bell, alleging that she was terminated because of a disability and that the company failed to provide her with a reasonable accommodation for the disability. Ohio Bell answered the complaint and asserted a fraud counterclaim against Anderson.
{¶4} Both parties filed motions for summary judgment: Anderson filed a motion for summary judgment on the company‘s fraud counterclaim, and Ohio Bell filed a motion for summary judgment on both Anderson‘s complaint and its fraud counterclaim. The trial court granted Ohio Bell‘s motion as it related to Anderson‘s complaint, but denied both parties’ motions as they related to the company‘s fraud counterclaim. After the trial court‘s ruling, the telephone company voluntarily dismissed its fraud counterclaim.
Summary judgment standard of review
{¶5} This court‘s review of a trial court‘s decision on summary judgment is de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24. Summary judgment is appropriate only when the moving party demonstrates that (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor.
Ohio Bell‘s summary judgment motion
{¶6} In support of its motion for summary judgment, Ohio Bell submitted several affidavits with accompanying documentation and deposition transcripts, including the transcript from Anderson‘s deposition. It was Ohio Bell‘s position that Anderson sought disability leave based on “knowing misrepresentations.” Specifically, the telephone
{¶7} When the five-week period expired, Anderson sought additional time, which the company denied. Anderson appealed the denial. In support of her appeal, Anderson submitted a letter she and her father drafted, “purportedly bearing the letterhead and signature of a psychiatrist.” However, Ohio Bell contended that the psychiatrist never treated Anderson during the relevant time frame, had not even met her at the time the letter was drafted, and did not write the letter. The “fraudulent” letter from the psychiatrist was the ground for Ohio Bell‘s fraud counterclaim against Anderson.
Anderson‘s leave
{¶8} The company‘s resource manager, Lashon Borom (“Borom“), averred that claims for short-term disability are processed by a third-party administrator, Sedgwick Claims Management Services, which operates as the AT&T Integrated Disability Services Center (“IDSC“). After being notified of a claim for short-term disability,2 the IDSC makes a determination, based on the information provided by the employee‘s health care provider, on whether the medical condition qualifies for benefits. After it makes its determination, the IDSC then notifies the employee in writing as to whether his or her
{¶9} Borom averred that Anderson had “three chargeable absences in 2009: July 5 - July 11, July 19 - July 23, and July 30 - August 3.” After the third absence, the company was eligible under its disciplinary policy to terminate Anderson, but it “decided to exercise leniency and * * * give her a final written warning plus 3-day suspension in lieu of termination.”
{¶10} On August 13, 2009, Borom opened a short-term disability claim for Anderson because she had been off work for her own illness for eight consecutive days. On September 15, 2009, the IDSC determined that Anderson was no longer unable to work and, therefore, that she was not entitled to benefits. In a letter from Borom to Anderson dated September 16, 2009, Borom advised Anderson that her claim for short-term disability benefits had been denied and that she had “exhausted [her] FMLA entitlement for the current 12-month period.” The letter directed Anderson to report to work on September 23, 2009, and that if she did not, the company would “have no choice but to assume you are abandoning your job” and it would remove her from the payroll because of her “voluntary resignation.”
{¶11} The letter further advised that if Anderson required a reasonable accommodation, she should contact the IDSC, and if she needed help managing a situation in her personal or work life, she should contact the employee assistance program.
{¶12} Borom averred that Anderson did not contact her or otherwise respond to the letter, and did not report to work on September 23. Further, the IDSC did not contact
{¶13} As with the first letter, the October letters advised Anderson that failure to report to work would be deemed abandonment of her job and voluntary resignation; that she should contact the IDSC for a request for a reasonable accommodation; and that if she needed help managing a work or personal issue, she should contact the employee assistance program.
{¶14} Meanwhile in October 2009, Borom emailed an IDSC representative to get an update on Anderson‘s claim. Borom told the representative that Anderson “continues to say that her doctor is sending medical information because she is not able to come back to work.” The representative responded that the IDSC had received updated information, but the “information did not support overturning the denial of this claim. To date, the claim remains denied from 9/15/09 to her return to work.”
{¶15} After Anderson did not return to work, by letter dated November 5, 2009, Ohio Bell terminated her employment. Borom averred that before removing Anderson from the payroll, she contacted the IDSC to determine if Anderson had provided any additional information and learned that she had not. Borom further averred that neither
{¶16} Ohio Bell also submitted an affidavit from Susan HagEstad (“HagEstad“), a manager for Sedgwick, the company that, as mentioned, was the third-party administrator of disability benefits for Ohio Bell. HagEstad averred that, although she had access to a claimant‘s records, because of privacy laws, medical information acquired by Sedgwick was not shared with Ohio Bell agents.
{¶17} According to HagEstad, Anderson called the IDSC on August 18, 2009, and reported that she was scheduled for hand surgery to treat carpal tunnel syndrome and arthritis on September 9, 2009. But as of September 14, Sedgwick had not received any medical documentation that a health condition prevented Anderson from working. Further, Sedgwick had only received a request from Anderson for time off work; it had not received a request for a job accommodation.
{¶18} On September 15, 2009, an IDSC claim representative contacted Anderson by phone and explained that her request for continued benefits beyond September 14 was denied because there were was no medical documentation substantiating the request. Anderson was further advised that she could submit medical documentation for additional review or file an appeal of the denial of benefits.
{¶19} HagEstad averred that on September 23, 2009, Anderson‘s supervisor
{¶20} On September 25, 2009, the IDSC reviewed Anderson‘s medical records from a September 8, 2009 appointment with Dr. Nina Njus, an orthopedic surgeon specializing in the hand. HagEstad averred that the review did not provide a basis to overturn the denial of benefits, so a claim representative contacted Dr. Njus‘s office to see if it had any additional records for Anderson. The office informed the representative that it would forward additional records from a September 22, 2009 appointment. The claims examiner contacted Anderson to explain that, as of that time, the claim for continued benefits was still denied, but that the IDSC would review additional records from Dr. Njus to determine if an approval of benefits was warranted.
{¶21} HagEstad averred that Borom contacted the IDSC in early October 2009 and was advised that additional documentation had been received, but that it did not support Anderson‘s claimed inability to work. Borom again contacted the IDSC later in October and on November 5, the day Anderson was terminated, and learned that no additional medical documentation on Anderson had been received.
{¶22} Anderson appealed the IDSC‘s decision denying benefits, and submitted various letters and medical records in support of her appeal. Only one of the documents — a letter from a psychiatrist, Dr. Kameswara Tatineni — stated that Anderson was unable to work for the period after September 14, 2009. The IDSC took Dr. Tatineni‘s
{¶23} Ohio Bell also submitted an affidavit of Kacendra Offord (“Offord“), a Sedgwick case manager who was assigned to Anderson‘s case. Offord averred that Anderson reported to the IDSC that she was scheduled for hand surgery for carpal tunnel syndrome and arthritis on September 9, 2009, and based on that representation, Offord approved Anderson‘s claim for short-term disability benefits from early August 2009 through September 14, 2009.
{¶24} Offord averred that she made three requests from Anderson for the name of her surgeon on the following dates: August 19, August 31 and September 10, 2009. Anderson did not respond to the first two requests. Anderson responded to the third request on September 14, 2009 and provided Dr. Njus‘s name and number.
{¶25} Offord further averred that Anderson failed to inform the IDSC that she did not have surgery on September 9. Moreover, as of September 14, Sedgwick had not received any medical documentation from Anderson that supported her claimed inability to work, nor had it received a request for a job accommodation; the only request it had received from Anderson was for time off work.
Anderson‘s medical treatment
{¶26} The record demonstrates that on July 14, 2009, Anderson first consulted with a primary care physician, Dr. Kerwyn Flowers. She told the doctor that she had been
{¶27} On August 7, 2009, Anderson had a follow-up appointment with Dr. Flowers. The doctor and Anderson did not discuss whether Anderson was working at that time. The doctor noted that Anderson had some tingling in her fingertips and testified that she “kind of” diagnosed her with carpal tunnel syndrome because Anderson “did test positive for [a sign of the syndrome] and did have some symptoms of carpal tunnel.” Dr. Flowers recommended that Anderson continue to treat with an anti-inflammatory and a splint and, further, because she did not seem to be improving, that she schedule an appointment with Dr. Nina Njus, an orthopedic surgeon who specialized in the hand. She also referred her for physical therapy.
{¶28} Anderson first visited with Dr. Njus on September 8, 2009; her chief complaint was carpal tunnel syndrome on both sides. After her examination of Anderson, Dr. Njus wrote a letter to Dr. Flowers, and told her that she believed Anderson had a “low grade autoimmune reaction to strep.” Dr. Njus ordered various tests and blood work, and told Anderson that she wanted to see her for a follow-up appointment once the blood work and tests and results were completed. The doctor did not place
{¶29} Anderson saw Dr. Njus twice after her initial visit — on September 22, and October 7, 2009. The doctor was unable to find what was causing Anderson‘s pain and, therefore, she testified about her impressions after the October visit as follows: “I could not tell her if she would be able to return to her current employment because I [did] not have a definite diagnosis as to what was causing her upper extremity pain.” The doctor advised Anderson to try physical therapy, and if that was not successful, she could then consider an epidural steroid or surgery.
{¶30} In late August 2009, Anderson sought a second opinion from Dr. George Balis, an orthopedic surgeon at the Cleveland Clinic. After his examination of Anderson, Dr. Balis concluded that she “probably had mild carpal tunnel syndrome,” and there “may be some underlying carpal tunnel syndrome.” He also noted that she had a mass on her left wrist, which he believed was possibly a ganglion cyst. Dr. Balis testified that sometimes the cysts can get large and be painful, but that generally there is no treatment for them other than aspirating them to drain the fluid or surgically removing them. The doctor switched Anderson‘s anti-inflammatory medicine, ordered lab tests, blood work and an MRI of her wrist.
{¶31} In late October 2009, Anderson had a follow-up appointment with Dr. Balis. Her test results were “not completely” within normal range, “but close.” The doctor
{¶32} As mentioned, Dr. Tatineni was a psychiatrist who saw Anderson. Anderson‘s first appointment with him was on January 18, 2010, after she had been terminated from Ohio Bell. Anderson went to the doctor for recommendations for coping with her severe pain and to seek a plan for rehabilitation. Dr. Tatineni provisionally diagnosed Anderson with severe major depression and post-traumatic stress disorder. Anderson saw Tatineni a second time and was admitted to the hospital in late January 2010; she sought to be voluntarily admitted on an emergency basis. She told the doctor that she was overwhelmed as a result of losing her job and was having suicidal thoughts.
{¶33} Dr. Tatineni admitted that Anderson wrote the letter (that was the basis of Ohio Bell‘s fraud counterclaim) and he signed off on it, but testified that the letter accurately reflected his medical opinion. The letter stated, in part, that Anderson had been “ill and incapacitated since July 2009.” Dr. Tatineni admitted that Anderson had not been a patient of his in July 2009, but testified that the conclusion was based on the information Anderson described to him.
Anderson‘s Opposition to Ohio Bell‘s Motion
{¶35} Anderson testified that she began experiencing chronic and severe pain in her hands and wrists, and after she got a carpal tunnel syndrome diagnosis from Dr. Flowers, Anderson applied for disability leave, and submitted her medical records to Sedgwick. Ohio Bell then approved her leave through September 14, 2009. According to Anderson, the pain greatly affected her life — she was unable to sleep, unable to care for her child, and was depressed.
{¶36} On September 8, 2009, Anderson saw Dr. Njus, as recommended by Dr. Flowers. Dr. Njus, however, did not believe that carpal tunnel syndrome explained the pain Anderson was experiencing and, therefore, did not recommend surgery. On September 11, 2009, Anderson signed a release relative to her medical records from her visit with Dr. Njus so that they could be provided to Ohio Bell. Before Ohio Bell received the records from Dr. Njus, Anderson received a letter from the company, dated September 16, 2009, stating that it would assume that she had abandoned her job if she did not return to work by September 23, 2009. According to Anderson, Ohio Bell issued the letter before speaking with Dr. Njus or reviewing her records.
{¶37} Dr. Njus‘s records were submitted to Ohio Bell on September 21, 2009, and they stated that Anderson was experiencing severe pain in her wrists and had difficulty sleeping because of the pain. Dr. Njus could not explain the cause of the pain, however.
{¶38} According to Anderson, she called Ohio Bell five times during the time spanning October 12 to October 22, 2009, to request an expedited review of her records. On October 14, 2009, Anderson wrote to her union to inform it that she was not abandoning her job. Borom, the telephone company‘s resource manager, received a copy of the letter.
{¶39} Further, on October 22, she wrote to Borom. In the letter, Anderson told Borom that she had a 15-year career with the telephone company, she was committed to her job, but because of her medical condition, she was unable to function at that time. She stated that she “needed a reasonable accommodation, which is a request for a time extension to recover.” Anderson further stated in the letter that if granted an extension of time, she would continue treatment with a physical therapist to “further analyze and assist [her] with further accommodations to be able to perform [her] essential job functions.” Anderson concluded the letter by saying that she was neither abandoning her job nor voluntarily resigning.
Analysis
{¶41}
It shall be an unlawful discriminatory practice:
(A) For any employer, because of * * * disability * * * to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
{¶42} The Ohio Supreme Court has explained, “we have determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164 (1991); see also Martin v. Barnesville Exempted Village School Dist. Bd. of Edn., 209 F.3d 931, 934, fn.2 (6th Cir.2000) (“Both federal and Ohio disability discrimination actions require the same analysis.“).
{¶43} In pursuing an employment discrimination claim, a plaintiff must first establish a prima facie case of discrimination. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff does, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. Once the employer does, the burden again shifts to the plaintiff to show “that the proffered reason was not the true reason” for the adverse employment action. Id., quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
{¶44} A prima facie case of discriminatory disability discharge requires a plaintiff to show (1) he or she is disabled, (2) he or she was otherwise qualified for the position, with or without reasonable accommodation, (3) he or she suffered an adverse action, (4) the employer knew or had reason to know of his or her disability, and (5) he or she was replaced or the job remained open. Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th Cir.2012), citing Plant v. Morton Interntl. Inc., 212 F.3d 929, 936 (6th Cir.2000).
{¶45} Regarding Anderson‘s claim that Ohio Bell discriminated against her by failing to reasonably accommodate her alleged disability, under Ohio law
(1) An employer must make reasonable accommodation to the disability of an employee or applicant, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of the employer‘s business.
(2) Accommodations may take the form, for example, of providing access to the job, job restructuring, acquisition or modification of equipment or devices or a combination of any of these. Job restructuring may consist, among other things, of realignment of duties, revision of job descriptions or modified and part-time work schedules.
{¶46} Thus, both of Anderson‘s claims — discriminatory disability discharge and
{¶47} “Ohio disability discrimination law is similar to the Federal Americans with Disabilities Act (‘ADA‘), and therefore Ohio courts may seek guidance in the interpretation of the Ohio discrimination law from regulations and cases that interpret the ADA.” Ames v. Ohio Dept. of Rehab. & Corr., 23 N.E.3d 162, 2014-Ohio-4774, ¶ 26 (10th Dist.). A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual, [and includes] being regarded as having such an impairment.”
{¶48} The trial court, citing Rhoads v. Bd. of Edn., 103 Fed. Appx. 888, 893 (6th Cir.2000), held that a plaintiff must provide medical evidence to prove a disability and that Anderson failed to do so. Upon review, we find Rhoads distinguishable from this case.
{¶49} In Rhoads, the plaintiff had been a bus driver for a school district, and as
{¶50} In addressing whether the plaintiff was disabled, the Sixth Circuit acknowledged that disability discrimination can be proved with either direct or indirect evidence. Id. at 891. Thus, “[a]scertaining whether a plaintiff is disabled requires an individualized inquiry into her particular condition and its affect on her ability to perform a major life activity.” Id. at 892. “The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.” (Citation omitted.) Id.
{¶51} The Sixth Circuit recognized that drug addiction is a “physical or mental impairment,” but stated that “[a] plaintiff cannot prove that her drug use amounts to a disabling addiction merely by providing self-serving, conclusory statements that her drug use substantially limits her ability to perform a major life activity.” Id. at 893, citing Cervella v. Lake Cty. Bd. of Commrs., 11th Dist. Lake No. 95-L-094, 1996 Ohio App. LEXIS 2449, 3 (June 14, 1996). “Rather, ‘at a minium, medical evidence must be offered to substantiate the claimed [disability].‘” Rhoads at id., quoting Cervella at id.
{¶53} The Sixth Circuit found that “even assuming [the plaintiff] could show that she once suffered from a drug addiction, she presents no evidence indicating to what extent the addiction affected her ability to perform a major life function.” Id. She, therefore, “failed to bring forth evidence adequate to prove that she was actually disabled when the District refused to hire her or that she had a record of a disability at that time * * * [or] that shows the District regarded her drug use as a disability.” Id.
{¶54} The court reasoned that
[a]lthough the random drug test certainly put the District on notice that she used controlled substances, there is no indication that the District regarded [her] as a drug addict or that it was aware of the extent of her use of marijuana. Nor does any evidence suggest that the District believed her drug use substantially limited her ability to perform a major life activity.
{¶56} The record establishes that at the time of her leave from Ohio Bell, Anderson was experiencing severe pain in her hands and wrists. She treated with several doctors who were unable to definitively find the cause of her pain. But Anderson testified that the pain left her depressed, unable to care for her child, unable to sleep and, often times, bedridden. Dr. Tatineni‘s testimony aside (Anderson did not treat with him until after she was terminated), there is medical evidence in the record from the time she was granted medical leave from her job and was trying to find out what condition she had that Anderson had a history of depression. There was also medical testimony that depression can cause physical symptoms and pain. This evidence created a genuine issue of material fact as to whether Anderson was disabled.
{¶57} We note Ohio Bell‘s contention throughout this litigation that Anderson misrepresented to the company that she was scheduled for hand surgery. The record does support the company‘s contention of her misrepresentation — Anderson was not scheduled for surgery at the time she sought short-term disability leave or at any other relevant time. Even if there was a misrepresentation, that misrepresentation does not
{¶58} In light of the above, the trial court erred by granting summary judgment in favor of Ohio Bell on Anderson‘s disability discrimination claims.
{¶59} Judgment reversed; case remanded for further proceedings.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR