744 N.E.2d 1198 | Ohio Ct. App. | 2000
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *527
On February 14, 1992, Dillard hired Smith for the position of manager of the Chanel cosmetics counter in its Westgate Mall store in Rocky River, Ohio. Her duties included greeting and soliciting potential customers, demonstrating and selling cosmetics, scheduling makeover appointments for Chanel makeup artists, and completing the necessary inventory and paper work associated with the Chanel products. On June 3, 1992, as she returned from her dinner break, Smith caught her leg on the corner of a display counter and fell, but she continued to work the remainder of that evening. What appeared to be a simple ankle injury worsened, and the following day, she visited the emergency room of a local hospital where a cast was placed on her leg. Because she was required to keep her leg elevated, it prevented her from working.
Subsequently, Smith was diagnosed with reflex sympathetic dystrophy, a condition that limits the ability of her leg to undergo constant stress, such as standing, because the stress causes muscle spasms which will cause her hip to rotate inward. This condition required Smith to undergo several surgeries on her ankle, and eventually she developed a progressive deformity and dysfunction of her lower leg, known as dystonia. As a result of this condition, Smith has developed an unusual gait and is unable to walk on the heel of her foot. Any *528 attempt to force her heel to the ground causes her leg to rotate at the hip and her right kneecap to face her left leg. She also cannot simultaneously straighten both of her legs. Smith's treating physician, Dr. Wilber, opined that the dystonia was a direct result of her original injury. With the exception of working a few days after the injury, Smith has not returned to Dillard or any employment.
Smith filed for workers' compensation benefits and was awarded bi-monthly payments of $552.70 for Temporary Total Disability (TTD) retroactive to June 3, 1992.1 On the Bureau of Workers' Compensation (BWC) filings through October 1997, Dr. Wilber indicated that Smith was unable to return to her former position or other employment.
Dillard permitted a six-month unpaid medical leave of absence and allowed for termination of employment if the employee did not return after the expiration of his or her leave. Paperwork processed through the Westgate Dillard store terminated Smith October 7, 1993, because she "failed to return from LOA." Smith claims she received no notice that Dillard fired her until her attorney received an August 13, 1996 letter from a claims representative in Dillard's Arizona corporate office which terminated her TTD and mentioned the earlier 1993 termination.
The record reflects correspondence from December 1992 through January 1995 from Dillard's claims representatives regarding available "light work" for Smith and requesting from Dr. Wilber information about her current limitations on her ability to return to work. In a letter dated January 30, 1995, he stated to Dillard's claims representative that Smith was to avoid "prolonged standing, walking, climbing, lifting or carrying. She could potentially return to a job which requires predominately sitting with minimal walking." Through affidavit, Smith averred the only job offer she ever received from the Westgate Dillard store was in March 1995, for a loading dock position which Smith declined due to her physical limitations.
In April 1996, Dr. Wilber provided the Dillard claims representative with Smith's "return to work" slip which indicated she could return to sedentary work with certain restrictions: no prolonged walking or standing, no climbing, no uneven surfaces, no heavy carrying or lifting, and no bending, kneeling or stooping. Thereafter, Smith was not offered any job at a Dillard store.
By letter dated August 13, 1996, Dillard notified Smith's lawyer that, based on Dr. Wilber's release, they terminated her TTD benefits. It also contained the following language: "Ms. Smith is no longer employed with Dillard Department Stores and thus the self-insured employee recognizes the fact that she is entitled *529 to 200 weeks of wage loss provided she files documented job searches for those benefit periods being claimed." The letter also indicates that it hired a placement service to help her find another position.
On December 13, 1996, Dr. Wilber prepared a BWC request for TTD compensation. The benefits were eventually restored following Dr. Wilber's completion of this request and Dillard paid her benefits retroactive to August 1996.2 It does not appear that Dr. Wilber ever advised the BWC that Smith was ever able to return to her job or any other employment.
On January 24, 1997, Smith filed a complaint alleging handicap discrimination, in violation of R.C.
In its motion for summary judgment, Dillard asserted the following: (1) Smith was judicially estopped from asserting a handicap discrimination claim because she and her physician have continuously asserted in workers' compensation filings that she is totally disabled; (2) Smith is unable to perform the essential functions of her position; (3) the act of transferring Smith to another position is not a reasonable accommodation; and (4) Smith cannot prove she suffered any emotional distress resulting from Dillard's conduct.
In her response, Smith asserted that she suffers from a disability, that she is qualified to and can perform the functions of a cosmetic sales position with reasonable accommodation, like a stool upon which to rest, that Dillard did not offer her reasonable accommodation for her handicap, and that her compensation for TTD benefits does not preclude a handicap discrimination claim. She also claimed that she satisfied her burden of producing evidence to show that Dillard's actions amounted to an intentional infliction of emotional distress, but she acknowledged that her negligent infliction of emotional distress claim was "not viable" and withdrew it.
On June 2, 1998, the judge granted Dillard's motion for summary judgment but declined to apply the doctrine of judicial estoppel. Instead, the judge found that allowing Smith an extended leave of absence was a reasonable accommodation by Dillard, that Smith never asked Dillard to give her a position with duties where she could work with the aid of a stool, and that, because neither Smith nor Dr. Wilber ever stated she was able to return to other light, alternative, modified or transitional work, Dillard had no reason to know an accommodation was needed. *530 Therefore, the judge concluded, because no genuine issues of material fact existed, Dillard was entitled to summary judgment in its favor. From this order, Smith filed a timely appeal.
Smith's sole assignment of error reads:
DEFENDANT-APPELLEE DILLARD'S [SIC] DEPARTMENT STORE WAS NOT ENTITLED TO SUMMARY JUDGMENT.
Smith argues that the judge erred in granting summary judgment because a genuine issue of material fact remains as to whether Dillard ever attempted to reasonably accommodate her disabilities in her work environment so that she could return to work. She maintains that because Dillard did not attempt to reasonably accommodate her injuries, it is liable for handicap discrimination.
Dillard counters that Smith is judicially estopped from bringing her claim of handicap discrimination due to the representations she made on her application for TTD, where her physician claimed she was totally disabled and unable to return to work. Dillard also asserts that if she were unable to return to work, then, by definition, it need not have offered reasonable accommodation because of her total disability.
This court reviews the grant of summary judgment de novo, applying the same standard as that applied by the trial judge.Druso v. Bank One of Columbus (1997),
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc. (1977),
R.C.
Once the plaintiff establishes a prima facie case of handicap discrimination, the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reasons for the action taken. * * * Legitimate, nondiscriminatory reasons for the action taken by the employer may include * * * the inability of the employee or prospective employee to safely and substantially perform, with reasonable accommodations, the essential function of the job in question. * * * Finally, if the employer establishes a nondiscriminatory reason for the action taken, then the employee or prospective employee must demonstrate that the employer's stated reason was a pretext for impermissible discrimination. [Hood,
74 Ohio St. 3d at 302 .]
Dillard does not dispute that Smith has a "handicap" as defined by R.C.
Dillard also has not challenged the second element. Smith has produced evidence to show that Dillard took an "adverse employment action" in August 1996 when it terminated her TTD based upon Dr. Wilber's "return to work slip" which indicated that she could return to work under severe restrictions. According to Smith, this was the first time she learned that she had been fired three years earlier.
As to the third element, however, Dillard takes issue. Dillard claims that Smith is not a qualified handicapped person because she cannot perform the essential functions of the job with reasonable accommodation. It also claims that she is judicially estopped from claiming that she can perform the job with reasonable accommodation.
The administrative code uses the term "qualified disabled person" to define "a disabled person who can safely and substantially perform the essential functions of the job in question, with or without reasonable accommodation." *532
Ohio Adm. Code
Smith asserts that she can perform the essential functions of the cosmetics manager "position if she is allowed to rest periodically on a stool. She claims that Dillard asserts that Smith cannot perform the "essential functions" of a cosmetics manager because the position necessarily requires stooping, standing, and walking, i.e., it is a position which predominately requires her to be on her feet, and because it does not allow sales associates to sit behind the counter during the eight-hour shift.
Dillard's argument assumes that it cannot accommodate Smith's disability and that providing a stool upon which Smith can rest is an "unreasonable" accommodation. Dillard has not explained, however, how providing her with a stool, as she suggests, will cause it an "undue hardship." Therefore, such an assertion is conclusory and does not satisfy its burden of proving that it cannot accommodate her in that particular position. Wooten,
Dillard also takes another approach to this third element. According to Dillard, Smith should be judicially estopped from asserting that she is a "qualified disabled person" because she previously claimed total disability in order to receive workers' compensation benefits. Smith, however, argues that the doctrine of judicial estoppel should not apply under these circumstances given the differences between a worker's compensation claim and a handicap discrimination claim. Both parties find support for their positions in a recent United States Supreme Court decision.
The doctrine of judicial estoppel forbids a party "from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding." Teledyne Indus., Inc. v. Nat'l Labor Relations Bd. (6th Cir. 1990),
911 F.2d 1214 ,1217 . Judicial estoppel is applied by the courts in order to "preserve the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment." Teledyne,911 F.2d at 1218 . The doctrine applies only when a party shows that his opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3) the prior position was accepted by the court. Id. [Griffith v. Wal-Mart Stores, Inc. (C.A.6, 1998),135 F.3d 376 ,380 .]
With the above rule in mind, it is clear that judicial estoppel does not apply under the circumstances presented by Dillard. Assuming, for a moment, that Smith asserted a "contrary position" in pursuing her worker's compensation claim, Dillard has not shown that such position was taken "under oath." Having failed to satisfy the second element of Teledyne, Dillard may not invoke the doctrine of judicial estoppel to defeat Smith's prima facie handicap discrimination case. Therefore, the judge did not err when she declined to apply the doctrine of judicial estoppel to the facts of this case.
Even in cases where an employee has asserted in a sworn statement, as required to receive Social Security Disability Insurance (SSDI) benefits, that she was "totally disabled," the employee is not automatically precluded from showing that she could "perform the essential functions" of her job with "reasonable accommodation" to support a discrimination in employment claim based upon the Americans with Disabilities Act of 1990 (ADA),
This does not end our query. The judge granted summary judgment in Dillard's favor after making the following determinations: (1) Dillard allowed Smith to take an extended leave of absence which constituted a "reasonable accommodation"; and (2) she did not ask for accommodation at the time of her injury and, therefore, she could not expect Dillard to know that she wanted "accommodation."
In support of the first proposition, the judge quoted the following passage from Schmidt v. Safeway, Inc. (D. Or., 1994),
With regard to the second proposition, Smith's failure to ask for accommodation at the time of her injury, the judge again quotes the following passage from Schmidt v. Safeway, Inc.,
In any event, the handicap discrimination law does not require an employee to request "reasonable accommodations" at the time he or she sustains a work-related injury so that the employee will preserve the right to later seek damages against the employer on the chance that the employer may violate the law. To do so would require the employee to read an employer's mind and know, in advance, that the employer will later unlawfully discriminate against him. To reach such a conclusion serves neither logic nor the spirit of the law. Based upon the foregoing, the judge erred in concluding that no genuine issues of material fact remained to be litigated on Smith's handicap discrimination claim.
Finally, Smith also asserts that Dillard's actions constitute the intentional infliction of emotional distress. A claim of intentional infliction of emotional distress occurs when "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another. Yeager v. LocalUnion 20 (1983),
In accordance with the foregoing discussion, Smith's single assignment of error is well taken in part.
Judgment affirmed in part, reversed in part, and remanded.
It is ordered that the parties bear their own costs herein taxed.
This 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 Common Pleas Court 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.
PATRICIA ANN BLACKMON, J. CONCUR. TERRENCE O'DONNELL. P.J. CONCURRING IN PART AND DISSENTING INPART._______________________ ANNE L. KILBANE, JUDGE
Dissenting Opinion
I concur with the majority regarding Smith's claim for intentional infliction of emotional distress, but I respectfully dissent from the conclusions reached in the majority opinion regarding her handicap discrimination claim. *536
In my view, the trial court correctly granted summary judgment in favor of Dillard Department Stores, Inc. on the handicap discrimination claim for two reasons: one, Smith is judicially estopped from prosecuting this claim for handicap discrimination against Dillard's on the basis that she could perform her job duties if given a reasonable accommodation, because in seeking her workers' compensation benefits, her sworn statements are that she could not work, which resulted in a favorable ruling and an award of disability benefits; and two, she never asked for any accommodation to perform her work. Instead, she maintained she could not work.
In Cleveland v. Policy Mgt. Sys., Corp. (1999),
We believe that, in context, these two seemingly divergent statutory contentions are often consistent, each with the other. Thus, pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient's success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could "perform the essential functions" of her previous job, at least with "reasonable accommodation." (Emphasis added.)
The Court further clarified the plaintiff's evidentiary burden in order to withstand a motion for summary judgment in such a case:
* * * When faced with a plaintiff's previous sworn statement asserting "total disability" or the like., the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job, with or without "reasonable accommodation." (Emphasis added.)
In Mitchell v. Washingtonville Central School District (1999),
The Supreme Court emphasized that the case before it did not "involve directly conflicting statement about purely factual matters, such as * * * I can/cannot raise my arm above my head,'" and indeed that the decision "leaves the law related to * * * purely factual * * * conflicts where the Court found *537 it."
In its analysis of Mitchell's claim against the school district for terminating him in violation of the Americans with Disabilities Act, the court utilized the estoppel theory and affirmed the trial court's grant of summary judgment. It stated:
* * * Since Mitchell's earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position.
* * *
We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian with a reasonable accommodation. * * *.
See, also, Budd v. ADT Security Sys. (1996),
In accordance with Cleveland v. Policy Mgt. Sys., Corp., Smith had the burden to explain why her workers' compensation claim and her handicap discrimination claim are consistent. Based on Smith's failure to provide evidence reconciling these positions, a reasonable juror could not conclude her ability to perform the essential functions of her job.
In addition, the estoppel analysis in Mitchell applies here: since Smith's earlier assertions regarding her inability to work and the repeated representations of her physicians to the Bureau of Workers' Compensation that she was unable to work in any capacity had been accepted by the Bureau of Workers' Compensation resulting in an award of temporary total disability benefits based on her diagnosed reflex sympathetic dystrophy condition, judicial estoppel prevents her form advancing a contrary position in this litigation. After repeatedly denying her ability to work in any capacity and stating she could not even accept light duty, modified, or transitional work, she now suddenly claims in this litigation that she could have performed her duties with the use of a stool. However, the record does not reflect she asked Dillard's to provide her with a stool or evidenced any position other than her inability to work in any capacity. Thus, in my view, the trial court after thoroughly analyzing the law, correctly granted summary judgment to Dillard's on this claim.
Accordingly, I dissent from this portion of the majority opinion. *538