Barber v. Chestnut Land Co.

63 N.E.3d 609

Debra A. BARBER, Plaintiff–Appellant,

v.CHESTNUT LAND COMPANY, Defendant–Appellee.

No. 15 MA 39.

Court of Appeals of Ohio, Seventh District, Mahoning County.

April 6, 2016.

Jonathan A. Good, Good & Good LLC, Cleveland, OH, for plaintiff-appellant.

Kathryn A. Vadas, DiCaudio, Pitchford and Yoder, L.P.A., Akron, OH, for defendant-appellee.

JUDGES:, GENE DONOFRIO, P.J., CAROL ANN ROBB, MARY DEGENARO, JJ.

OPINION

ROBB, J.

{¶ 1} Plaintiff–Appellant Debra A. Barber (“the employee”) appeals the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendant–Appellee Chestnut Land Company (“the employer”). She asserts the trial court erred as there are genuine issues of material fact on her claims of workers' compensation retaliation, disability discrimination, and failure to accommodate. For the following reasons, Appellant's assignments of error are overruled. The trial court's decision is affirmed.

STATEMENT OF THE CASE

{¶ 2} The employer operates Auntie Anne's Soft Pretzels. The employee began working in one of the stores in 1999. She worked her way up to manager, which is a salaried position required to work fifty hours per week. She generally worked five days a week from 8:00 a.m. to 6:00 p.m. (or 8–5 if she skipped her lunch). (Barber Depo. at 20–21). On September 29, 2008, the employee slipped on a wet spot at work. She caught herself before she fell but injured her back. She went to her physician, Dr. Black, the next day. The employer certified a workers' compensation claim for a lumbar sprain. The employee took off work a few days and then resumed her regular schedule.

{¶ 3} In early 2009, some changes occurred in the employer's headquarters such as a new chief operating officer and a new human resource officer. Payroll was instructed to be stricter about the fifty-hours per week required of managers; if they worked too few hours in a week, their paid leave time was deducted to cover the time. In addition, managers could not skip lunch in order to leave an hour early.

{¶ 4} The employee's next doctor visit was on January 21, 2009. Two days later, her doctor placed her on a work restriction involving a maximum workday of five hours. On January 30, he continued the restriction “for a couple more weeks.” Additional treatment, such as physical therapy, was then requested under the workers' compensation claim. As the employee worked her regular shift for nearly four months after the injury and the doctor's notes mentioned conditions such as lumbar radiculitis and nerve entrapment, the employer was unsure if the requests were related to the work injury. The employer forwarded the workers' compensation file to its third-party administrator.

{¶ 5} On April 1, 2009, Dr. Black ordered the restriction for two weeks, which was then extended until May 4, 2009. (Barber Depo. at 54). The employer entered a “wage continuation agreement” with the Bureau of Workers' Compensation (“BWC”) so the employee received her full pay from April 3, 2009 through May 5, 2009. (Barker Depo. at 55–56; Good Aff. at ¶ 23). Thereafter, her salary was decreased in proportion to the hours worked (after all paid leave was used) as she continued working at the restricted five hours per day. (Good. Depo. at 196–197; Wheeler Depo. at 43–44). Dr. Black increased the daily restriction to six hours per day from June 4, 2009 through August 24, 2009, at which time the five-hour restriction was reinstituted. The employee exhausted her rights under the Family Medical Leave Act (“FMLA”) in August 2009.

{¶ 6} In September 2009, the employee's attorney filed a motion with the BWC seeking an additional allowance for lumbar radiculitis. As a result, she was scheduled for a functional capacity evaluation, which she completed in November 2009. She reported that after five hours of work, she was in severe pain with weakness in both legs and hips. The resulting functional ability summary estimated that her walking and standing durational abilities were much lower than the average worker (and other categories such as reaching, handling, and crouching were higher than average). Counsel thereafter withdrew the lumbar radiculitis motion.

{¶ 7} She continued to treat with Dr. Black, who had provided her with a temporary handicap placard for her vehicle. Dr. Black's notes in late 2009 and early 2010 spoke of lower back pain, at times described as severe, tenderness in the back, and numbness extending to the legs. Dr. Black also mentioned a decreased range of motion. She was prescribed pain medication and an anti-inflammatory. He mentioned she may need an orthopedist and surgery but should try physical therapy.

{¶ 8} The employer had a policy under which the company would honor work restrictions if they were related to a workers' compensation injury. (Good Aff. at ¶ 50). As Dr. Black referred to a condition other than that allowed in the workers' compensation claim, the employer initiated a dialogue with the employee under the American's with Disability Act (“ADA”) to ascertain if she qualified as disabled.

{¶ 9} On February 24, 2010, the employer sent the employee a letter and packet, which included an essential functions analysis and an Interactive Process Questionnaire for her doctor to complete. A store manager description and an assistant store manager description were provided; an assistant store manager was expected to work 35–40 hours per week. The letter explained that when it appears an employee may have a disability, the employer and employee often enter into a dialogue to gather information to determine whether the employee's situation constitutes a disability under the ADA.

{¶ 10} The letter also stated that if there is a disability, then dialogue would help determine whether the employee will fully return to work or if reasonable accommodations can be provided to allow the employee to fulfill the essential functions of the job. It was noted the current accommodation of reduced hours was being made provisionally until a disability could be verified and a final accommodation may be different than the provisional accommodation.

{¶ 11} The employee provided the questionnaire to Dr. Black, and he completed it on March 30, 2010. Dr. Black returned the document to the employee, but she did not forward it to the employer. (Barber Depo. at 119). In May 2010, the employer resent the documents to the employee with a cover letter disclosing the employer had not received any of the information requested in the prior letter. The employee still did not forward the questionnaire completed by Dr. Black. She stated that she decided not to forward Dr. Black's report because she started seeing a new physician, Dr. Dunne. (Barber Depo. at 124–125).

{¶ 12} Her first visit to Dr. Dunne was April 15, 2010. His notes stated she was having difficulty with household activities and driving as she had intense pressure and pain from prolonged sitting and standing. He stated that five hours of standing increased her pain. He also mentioned a limited range of motion. Dr. Dunne filled out the interactive process questionnaire in May 2010. He provided it to the employee. The employee did not forward it to the employer; the employer did not receive the questionnaire. The employee stated she asked the doctor's office to fax it to the employer (if it was ready) after the employer called her to inquire why she had not responded to their second letter. (Barber Depo. at 131–132).

{¶ 13} On June 9, 2010, the employee filed a motion for an additional allowance for a herniated disc at L5–S1 due to Dr. Dunne's conclusion that the fall at work caused a symptomatic disc herniation. In July 2010, a district hearing officer denied the motion finding the evidence failed to establish the September 28, 2008 work injury was the direct and proximate cause of the development of the condition. The employee appealed, and a staff hearing officer upheld the decision in September 2010. She appealed to the Industrial Commission.

{¶ 14} On October 9, 2010, the employee exhausted her FMLA rights for the year. The human resources manager and others at headquarters agreed to terminate the employee. They reasoned the employee's half-time hours should no longer continue as a manager is required to work fifty hours per week, the employee's restrictions were unrelated to a work injury, and her FMLA was exhausted. They decided to wait for the Industrial Commission's decision in case the hearing officer's decision was reversed.

{¶ 15} On October 21, 2010, the Industrial Commission affirmed the decision denying an additional allowance. Upon learning of the decision, the human resources manager scheduled a meeting with the employee for the next day. The employee was terminated at the October 22, 2010 meeting and was provided a termination letter. The letter explained the store manager position is a salaried fifty-hour per week position and the success of the business depends on the manager being present at the store. The letter continued:

Due to the reason that you are not fulfilling the 50–hour week requirement of the position, you are relieved of your duties, effective today, Friday, October 22, 2010. As you aware, your Workers Compensation appeals have been denied and you have exhausted your Family and Medical Leave Act (“FMLA”) benefit. Furthermore, there has been no response from you or your doctor as to our requests for information, pursuant to the Americans with Disabilities Act, that we provided to you March 6, 2010 and again on May 15, 2010. This unfortunately leads us to this very difficult decision.

{¶ 16} After her termination, she filed a November 2010 motion for an additional allowance for a disc protrusion at L5–S1. This request was granted, and the additional condition was allowed by a district hearing officer and then a staff hearing officer. (Barber Aff. & Exhibit).

{¶ 17} In February 2011, the employee filed a charge of disability discrimination with the Equal Employment...