Opinion
Case No. 2019-00086JD
02-01-2021
LAURA COOMER Plaintiff v. OPPORTUNITIES FOR OHIOANS WITH DISABILITIES Defendant
INTERIM DECISION
{¶1} Plaintiff, a former employee of Defendant, asserts claims for failure to accommodate and disability discrimination in violation of the Americans with Disabilities Act (ADA) and R.C. 4112. A trial was conducted before the Court on both of Plaintiff's claims. For the reasons discussed below, the Court finds that Plaintiff has proven her claims by a preponderance of the evidence.
Facts
{¶2} Plaintiff was employed by Defendant as a Disability Claims Adjudicator. Plaintiff was responsible for processing various claims for Defendant. Plaintiff suffers from anxiety, bipolar disorder, mood disorder, and narcolepsy, for which she received treatment from her medical providers during her employment with Defendant. Defendant approved Plaintiff to take intermittent leave under the Family Medical Leave Act (FMLA) for episodes related to her medical conditions and to attend doctors' appointments.
{¶3} In August 2017, Plaintiff's work schedule was changed, by one hour, from 7:00 a.m. to 3:30 p.m. to 8:00 a.m. to 4:30 p.m. This change was implemented at the request of Plaintiff, so that she was able to get her daughter on the school bus. Shortly after Plaintiff's schedule change, she began suffering from increased symptoms of anxiety which generally occurred after 3:30 p.m. Plaintiff testified that, after switching to the later schedule, her work performance suffered due to having to take increased FMLA to cope with her increased symptoms of anxiety. Plaintiff testified that she had no performance issues prior to switching to the later schedule. According to Plaintiff and her medical providers, Plaintiff's anxiety increases and "snowballs" after 3:30 p.m.
{¶4} On February 20, 2018, Plaintiff's supervisor, Paul Spencer, approved a temporary one-week schedule change for Plaintiff from 8:00 a.m. to 4:30 p.m. to 7:00 a.m. to 3:30 p.m. Plaintiff testified that the temporary schedule change worked for her and she then requested a permanent schedule change to 7:00 a.m. to 3:30 p.m. Spencer testified that he initially granted the request because he saw no issue with it. However, the request was then forwarded to Plaintiff's manager, Heather Graham, who denied it because of Plaintiff's difficulty completing her work on time. According to Graham, at that time, there was an unwritten policy that schedule changes for employees with performance issues would not be approved because Defendant wanted those employees working "core business hours". Graham testified that Disability Claims Adjudicators, such as Plaintiff, worked a variety of work schedules between the hours of 6:00 a.m. and 6:00 p.m. Graham admitted that granting Plaintiff's request to change her schedule by one hour would not create an undue hardship on Defendant.
{¶5} After Graham denied Plaintiff's schedule change, Plaintiff contacted Defendant's ADA Coordinator, James Clinkscale, to discuss the schedule change as an accommodation for her disability. Plaintiff testified that she had worked with Clinkscale in the past in receiving a different accommodation for her disability. Plaintiff met with Clinkscale on March 12, 2018, at which time she explained that she was suffering from increased anxiety after 3:30 p.m. and requested that her schedule be permanently changed to 7:00 a.m. to 3:30 p.m. as an accommodation under the ADA. Plaintiff provided Clinkscale with a note from her medical provider, Karen Clum, that stated the schedule change was requested due to Plaintiff's anxiety. (Joint Exhibit 10.) In response, Clinkscale requested that Plaintiff's doctors provide more information, and he provided Plaintiff with paperwork for her doctors to complete. Plaintiff's doctors completed the paperwork and submitted them to Clinkscale on March 28, 2018. The completed paperwork stated that Plaintiff needed to change her schedule due to sleepiness and anxiety later in the day, and so she could attend doctors' appointments. (Joint Exhibit 3.) The paperwork granted Clinkscale a release allowing him to contact Plaintiff's doctors regarding the reasonable accommodation request.
It is undisputed that Plaintiff's anxiety qualified as a disability under the ADA. --------
{¶6} In April of 2018, Plaintiff and Clinkscale discussed Plaintiff's request via telephone. During that phone call, Clinkscale denied Plaintiff's request for a schedule change and stated that if Plaintiff needed to leave work early she had FMLA leave she could use. However, Plaintiff testified that she told Clinkscale this was not a viable option for her since using intermittent FMLA leave would take her out of the office and cause her to fall behind in her work.
{¶7} Clinkscale and Plaintiff met again on May 10, 2018 to discuss Plaintiff's request for a schedule change, and Clinkscale explained that he was unlikely to grant her request. According to Clinkscale, he requested more information from Plaintiff regarding what was causing her anxiety, but Plaintiff never provided the information. Clinkscale asked Plaintiff whether altering her lunch break and allowing her to listen to music would help her anxiety. Plaintiff rejected Clinkscale's alternatives as she did not believe they would assist in getting her anxiety under control and requested an official denial letter. Plaintiff testified that she did not know of any other accommodations that would help her anxiety aside from a schedule change. On May 18, 2018, Clinkscale denied Plaintiff's request for a schedule change. (Joint Exhibit 7.)
{¶8} Clinkscale testified that the reason he denied Plaintiff's request was because he did not believe the paperwork submitted by Plaintiff's medical providers or her explanation for why she needed the schedule change was sufficient to support the request. Clinkscale also testified that he believed he was more qualified to determine what reasonable accommodation would help Plaintiff at work. Clinkscale never contacted Plaintiff's medical providers regarding the request even though he did not understand the reason for the requested schedule change. Furthermore, it was Clinkscale's opinion that Plaintiff was unwilling to discuss any options other than a schedule change. However, Clinkscale admitted the only alternatives he discussed with Plaintiff were listening to music and altering Plaintiff's break schedule. Clinkscale further testified that he did not believe granting Plaintiff the schedule change would have created an undue burden on Defendant.
{¶9} Plaintiff appealed the denial to Janine Ashanin, Defendant's Deputy Director of Human Resources. (Joint Exhibit 8.) Ashanin denied Plaintiff's appeal and echoed Clinkscale's opinion that the medical information was insufficient, and Plaintiff was not willing to discuss options other than a permanent schedule change. Ashanin admitted that she never spoke with Plaintiff or her medical providers regarding Plaintiff's request. Ashanin explained that one of the reasons for denying Plaintiff's request was because she believed Plaintiff could use her FMLA leave to attend her doctors' appointments and leave work early due to her increased anxiety. Ashanin also admitted that she believed Plaintiff was unwilling to discuss alternative options to accommodate her other than a permanent schedule change. However, Ashanin admitted that she did not reach out to Plaintiff regarding alternative options to her schedule change and relied solely on what Clinkscale had concluded in denying the request. Ashanin admitted that a one-hour schedule change would not create an undue burden on Defendant and that the only way to accommodate Plaintiff's disability was an altered work schedule.
{¶10} After Plaintiff's appeal was denied by Ashanin, Plaintiff continued to work the later schedule and her anxiety continued to spike into the Spring of 2018. Plaintiff described her condition at that time as, "I was not managing well. I was extremely anxious and depressed at that time, and I was suffering from frequent suicidal ideations and self-harm behaviors." In May 2018, Plaintiff met with her medical providers and determined that she was unable to perform her job duties without an earlier schedule. As a result, Plaintiff requested short-term disability from the Ohio Department of Administrative Services (DAS) and eventually, once her short-term disability expired, took disability retirement from the Ohio Employee Retirement System (OPERS). (Joint Exhibit 12, Joint Exhibit 13.) When an employee chooses a voluntary disability retirement through DAS, the employee can seek reinstatement within two years by providing competent medical evidence that the employee can perform the job with or without an accommodation. Similarly, when an employee chooses a voluntary disability retirement through OPERS, the employee can seek reinstatement within five years. Plaintiff, to date, has not requested reinstatement.
{¶11} Plaintiff's last day of work was May 25, 2018. After voluntarily separating from Defendant, Plaintiff testified that she felt embarrassed and anxious. Plaintiff felt embarrassed that she was no longer the main breadwinner for her family and was embarrassed that she was so depressed and anxious at that time. Plaintiff felt increased anxiety over having to find another job. Plaintiff also engaged in self-harm behaviors and suffered from depression and suicidal ideations. Plaintiff applied for other jobs during this time but failed to find full-time employment.
{¶12} Karen Clum, a psychiatric nurse practitioner, began treating Plaintiff in 2016 when Clum was working for the Saribalas Clinic. Thereafter, Clum left the Saribalas Clinic and opened her own practice, Well Within LLC, and continues to treat Plaintiff. Clum treated Plaintiff for her depression and anxiety in and around the Spring of 2018, the date upon which Plaintiff switched to a later schedule of 8:00 a.m. to 4:00 p.m. Clum testified that during that time, Plaintiff was experiencing heightened anxiety and depression. Clum saw Plaintiff on March 6, 2018, and noted that Plaintiff reported difficulty concentrating and heightened depression and anxiety. (Plaintiff's Exhibit 17.) Clum testified that Plaintiff's heightened anxiety impeded her ability to concentrate while at work. According to Clum, Plaintiff's anxiety would increase as her workday progressed later in the day, which was a common occurrence for Plaintiff. During that March 6, 2018 meeting, Clum and Plaintiff discussed an earlier work schedule as an accommodation for Plaintiff's anxiety. Clum testified that it is common for patients suffering from anxiety to have peak anxiety at certain times of day. In Plaintiff's case, her anxiety was at its peak later in the workday. Clum also recounted that when Plaintiff worked the earlier schedule of 7:00 a.m. to 3:30 p.m., she had more success controlling her anxiety. Clum testified that once Plaintiff switched to the later schedule, her anxiety spiked and caused Plaintiff to get into a pattern of leaving work early to deal with her anxiety which resulted in her being behind in her work, which caused more anxieties. Based upon these factors, Clum determined Plaintiff could not work past 3:30 p.m. and wrote Plaintiff a note requesting that she work an earlier schedule of 7:00 a.m. to 3:30 p.m. to help control her anxiety and to attend doctors' appointments. After submitting the note, Clum was never contacted by Defendant to clarify anything regarding the reasonable accommodation request. Clum also opined that the alternatives Clinkscale offered of listening to music and changing Plaintiff's break schedule would not aid Plaintiff in reducing the anxiety she experienced later in the workday given that the anxiety spiraled out of control after 3:30 p.m.
{¶13} Clum testified that after Plaintiff's request was denied, Clum met with Plaintiff in May 2018 and determined that Plaintiff was unable to work without the earlier schedule; therefore, she requested short-term disability on behalf of Plaintiff. According to Clum, in Spring 2018, Plaintiff's medical condition was so severe that Plaintiff was unable to work beyond 3:30 p.m. Clum testified that if Plaintiff had been granted her request for an earlier work schedule, Plaintiff would be able to perform her job. After Plaintiff left Defendant and took voluntary disability, Clum testified that Plaintiff's anxiety,
* * * didn't get any better. It changed. It shifted. The stress of being there and dealing with, again, overstimulation was gone, but then, you know, obviously, new problem, because now we don't have the structure. We
have the economic uncertainty, all of the new things that happen when we lose a job. And, certainly, helpless, hopeless, depressive thoughts for her. Again, not new for her, but it helped and not hurt, I think, is what I'm trying to say. * * * (Trial Transcript, p.293.)
{¶14} Doctor Michael Saribalas specializes in psychiatry and sleep disorders and has operated his own practice, the Saribalas Clinic in Columbus, Ohio, since 2008. Doctor Saribalas has treated Plaintiff for her narcolepsy, depression, and generalized anxiety disorder since 2009. Saribalas testified that Plaintiff struggles a lot with anxiety and when she is in a high anxiety state, she experiences an increased heart rate, feelings of impending doom, and difficulty concentrating. Saribalas testified that these symptoms of anxiety are heightened in the afternoon and make it difficult for Plaintiff to concentrate on work. Saribalas testified that it is common for anxiety to occur at certain times of day.
{¶15} On March 21, 2018, Saribalas met with Plaintiff to discuss issues she was having at work. After speaking with Plaintiff about her symptoms, he concluded that Plaintiff's mood disorders caused her to become more anxious and sleepier after 3:30 p.m. resulting in her struggling to complete her work on time. (Plaintiff's Exhibit 34.) Saribalas submitted paperwork to Defendant requesting that Plaintiff work an earlier work schedule. Saribalas testified that he believed that Plaintiff could perform her job with the earlier work schedule. Saribalas reached that conclusion based upon what Plaintiff told him and the symptoms she was presenting to him. According to Saribalas, he bases his determination of proper treatment and what accommodations are appropriate based upon a patient's own self reporting. There is no objective way to measure when a patient is experiencing anxiety but rather it is subjective in that it is based solely on self-reporting of the patient. Based upon Saribalas' professional opinion, he found there was subjective medical evidence that Plaintiff was suffering heightened anxiety after 3:30 p.m. in the afternoon making it difficult for her to concentrate and think at work. Saribalas ultimately concluded that Plaintiff's anxiety and mood disorders prevented her from working beyond 3:30 p.m.
Failure to Accommodate
{¶16} In Ohio, "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981). To establish a prima facie case of failure to accommodate an employee must show that: (1) she is disabled within the meaning of the ADA; (2) she is otherwise qualified for the position, such that she can perform the essential functions of the job with or without a reasonable accommodation; (3) the employer knew or had reason to know of her disability; (4) the employee requested an accommodation; and (5) the employer failed to provide a reasonable accommodation thereafter. Johnson v. Cleveland City Sch. Dist., 443 F. Appx. 974, 982-83 (6th Cir. 2011). The reasonableness of a requested accommodation is generally a question of fact. Keith v. County of Oakland, 703 F.3d 918, 927 (6th Cir. 2013). Once an employee establishes a prima facie case, "the burden shifts to the employer to demonstrate that any particular accommodation would impose an undue hardship on the employer." Id. at 983.
{¶17} At the end of trial, the undersigned ruled in favor of Plaintiff on her failure to accommodate claim. It is undisputed that Plaintiff meets elements 1, 2, 3, and 4 of her failure to accommodate claim. Plaintiff has shown that she was a disabled person under the Act. Plaintiff has shown that she was otherwise qualified for the position without the reasonable accommodation. Defendant admits that it knew about Plaintiff's disability, and that Plaintiff requested an accommodation. Furthermore, as the Court previously discussed at trial, Plaintiff has proven by a preponderance of the evidence that Defendant failed to provide a reasonable accommodation. Plaintiff's doctors determined, based upon medically sound evidence, that Plaintiff could not work beyond 3:30 p.m. due to her increased anxiety. Plaintiff's doctors submitted paperwork to Clinkscale requesting that Plaintiff's work schedule be changed so that she could leave at 3:30 p.m. due to her anxiety. Clinkscale ignored Plaintiff's doctors and instead denied the request because he felt he was in a better position to determine how to accommodate Plaintiff at work. However, mental illness is a very subjective medical science, and it depends upon patients' reflective histories and medical experts and exact opinions based on thousands, and in many cases, millions of patients. It is written that in excess of 40 million people in the US suffer from some form of mental illness. The Court does not profess to understand any form of mental illness other than to know it exists - and the Court knows Plaintiff suffers from it. Clinkscale, having no medical training on mental illness, is not in a better position than Plaintiff's doctors to determine what accommodation would work for Plaintiff's mental illness. Furthermore, Defendant has produced no medical witnesses or testimony to dispute Plaintiff's doctors' assertions that she cannot work past 3:30 p.m. Although Clinkscale asserts that the reason he denied the request was because Plaintiff was unwilling to discuss alternative accommodations, the Court finds that there are no other alternatives that can accommodate Plaintiff given that her doctors have unequivocally concluded that she cannot work past 3:30 p.m. Lastly, both Clinkscale and Ashanin testified that altering Plaintiff's work schedule by one hour would not cause an undue hardship on Defendant. Accordingly, the Court finds that Plaintiff has proven her claim of failure to accommodate by a preponderance of the evidence.
Disability Discrimination
{¶18} R.C. 4112.02 provides, in pertinent part, that: "It shall be an unlawful discriminatory practice: (A) For any employer, because of the * * * disability * * * of any person, 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." "'To prevail in an employment discrimination case, a plaintiff must prove discriminatory intent' and may establish such intent through either direct or indirect methods of proof." Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012-Ohio-1709, ¶ 25, quoting Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998).
{¶19} In this case, Plaintiff seeks to establish discriminatory intent through the indirect method, which is subject to the burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Nist v. Nexeo Solutions, LLC, 10th Dist. Franklin No. 14AP-854, 2015-Ohio-3363, ¶ 31. "Under McDonnell Douglas, a plaintiff must first present evidence from which a reasonable [trier of fact] could conclude that there exists a prima facie case of discrimination." Turner v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011-Ohio-4654, ¶11-12.
{¶20} To establish a prima facie case of discriminatory discharge, a plaintiff must show that: "(1) she is disabled, (2) she was otherwise qualified for the position, with or without reasonable accommodation, (3) she suffered an adverse action, (4) the employer knew or had reason to know of her disability, and (5) she was replaced or the job remained open." Hartman v. Ohio DOT, 10th Dist. Franklin No. 16AP-222, 2016-Ohio-5208, ¶ 18, citing Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th Cir.2012). As stated in Hartman, supra, the elements of a prima facie case can vary based on the circumstances of the case. See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir.2014) (stating the elements as (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability). Adverse employment actions generally entail a "'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 798 (6th Cir.2004), quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Failing to accommodate an employee's disability can be an adverse employment action. Clark v. Whirlpool Corp., 109 Fed.Appx.750, 755 (6th Cir. 2004).
{¶21} There is no dispute that Plaintiff has proven that she is disabled and that she is otherwise qualified to perform the essential functions of her job, with or without an accommodation. The question the Court must answer is whether Plaintiff has proven that she suffered an adverse employment action. On this point, Plaintiff argues that she was forced to take disability retirement early due to Defendant's failure to accommodate her disability, resulting in a constructive discharge. Defendant argues that Plaintiff has failed to show that she was constructively discharged because she voluntarily left her position and had the option to seek reinstatement if her doctors deemed her eligible to work.
{¶22} As the Court noted at trial, failing to grant a reasonable accommodation does not automatically result in a finding that the employee was constructively discharged. Rather, whether an employee was constructively discharged depends upon the facts of each case and requires an inquiry into the reasonably foreseeable impact of the employer's conduct upon the employee. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008) quoting Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004)). "The employee alleging constructive discharge need not prove that his or her employer undertook actions with the subjective intention of forcing the employee to quit. Rather, the * * * intent requirement can be satisfied so long as the employee's resignation was a reasonably foreseeable consequence of the employer's actions." King v. Cincinnati Pub. Schs, 2019 U.S. Dist. LEXIS 40522, *11-12 (S.D. Ohio March 13, 2019) (citing Smith v. LHC Grp., Inc., 727 F. App'x 100, 106 (6th Cir. 2018)).
{¶23} This analysis requires that Plaintiff demonstrate that her working condition "would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Talley, 542 F.3d at 1107. When determining whether an employee was constructively discharged, the Court may consider several factors, including: "(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status." Logan v. Denny's, Inc., 259 F.3d 558, 569 (6th Cir.2001). However, as the undersigned noted at trial and Plaintiff concedes, none of these apply to Plaintiff's situation.
{¶24} In the ADA context, when "an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered, [the trier of fact] may conclude that the employee's resignation was both intended and foreseeable." Id. at 1109; see also Benaugh v. Ohio Civ. Rights Comm'n, 278 Fed. Appx. 501 (6th Cir. 2008) (after the jury found constructive discharge for failure to accommodate, the court noted: "While failure to give an employee an exterior office would not normally be sufficient as a matter of law to establish constructive discharge, this is not a typical constructive discharge case because plaintiff's claim was that the defendant's actions denied plaintiff reasonable accommodation and forced her to take disability retirement early."); Russ v. Memphis Light, Gas, & Water Div., 2016 U.S. Dist. LEXIS 199129, *32 (W.D. Tenn. 2016) ("Denial of an accommodation request together with failure to offer alternatives may suffice to support a constructive discharge claim."); Robbins v. WXIX Raycom Media, 2008 U.S. Dist. LEXIS 17028, *29 (S.D. Ohio 2008) ("[U]nder certain circumstances, an employer's refusal to provide a reasonable accommodation may convert an employee's resignation into a constructive discharge.").
{¶25} When determining whether an employer's failure to provide a reasonable accommodation results in constructive discharge when Plaintiff takes disability, the Court should consider whether the employer's failure to accommodate the employee would make her working conditions so intolerable that a reasonable person in her shoes would have felt compelled to go on disability. See Benaugh at 506, 512, 514 ("The issue for the jury was whether plaintiff went on disability voluntarily, or was forced into taking disability retirement earlier than she would have by the failure to reasonably accommodate her disability."). For example, a highly skilled employee, who suffered from asthma and sarcoidosis, was considered to be constructively discharged after she went on disability leave and eventually separated from the employer because the employer failed to accommodate her illness by refusing to move her to a temperature controlled, exterior office despite her repeated requests and the availability of such an office, which exacerbated the symptoms of her illness over several years. Id.
{¶26} Comparatively, Plaintiff made repeated requests for a schedule change and supported those requests with documentation from her doctors. Plaintiff spoke with Clinkscale on three separate occasions regarding her reasonable accommodation request. After discussing the accommodation with Clinkscale and providing the required paperwork from her doctors, Plaintiff's request was ultimately denied without any justification other than Clinkscale's belief that Plaintiff and her doctors were wrong. Plaintiff appealed Clinkscale's decision to Ashanin, who summarily upheld Clinkscale's denial, without any further investigation or request for clarification, because she believed that there were other options other than a schedule change to accommodate Plaintiff's disability. However, Plaintiff and her doctors testified, and Ashanin ultimately admitted, that no alternative accommodation exists that would allow Plaintiff to work other than a schedule change.
{¶27} As discussed above, this Court has already determined that the schedule change was reasonable, would not create an undue burden on Defendant, and is the only accommodation that would allow Plaintiff to work. After reviewing the medical evidence and testimony, the Court finds that, based upon the facts and circumstances of this case, Plaintiff has proven that Defendant's failure to grant her reasonable accommodation of a schedule change resulted in Plaintiff's constructive discharge. The uncontested testimony of Plaintiff's doctors is that Plaintiff is unable to work beyond 3:30 p.m. Furthermore, Plaintiff and her doctors testified that if she was allowed to work the modified 7:00 a.m. to 3:30 p.m. schedule, Plaintiff could perform her job. Once the appeal to Ashanin was denied, it was Plaintiff's understanding that there was no further appeal process and that she would be forced to work beyond 3:30 p.m., a work schedule that Plaintiff and her doctors determined was not medically feasible. The Court finds that in this scenario, it was reasonably foreseeable by Defendant that Plaintiff would feel compelled to take disability retirement given that her doctors determined she was medically unable to work beyond 3:30 p.m. Accordingly, the Court finds that Plaintiff has proven her disability discrimination claim by a preponderance of the evidence.
Backpay
{¶28} Prior to trial, the parties filed a joint stipulation as to Plaintiff's lost wage calculation. (See Joint Trial Stipulation filed October 22, 2020.) At the time when Plaintiff's employment with Defendant ended, she was paid an hourly rate of $29.16 and was expected to work 40 hours per week. (Joint Trial Stipulation, ¶ 2.) Plaintiff received several other sources of income, including: 1) disability leave benefits from the Ohio Department of Administrative Services; 2) disability retirement benefits from the Ohio Public Employees Retirement System (OPERS); and, 3) compensation from a part-time position she held for several months in Summer of 2020. (See Joint Trial Stipulation, ¶ 6-12.) Based upon the parties' joint calculation, the parties stipulated that, from May 27 through October 24, 2020, the total difference between the income Plaintiff received from other sources and the income she would have received from Defendant if she had worked 40 hours a week at $29.16 per hour during the aforementioned period of time is $95,440.38. Accordingly, the Court finds that Plaintiff has proven that she is entitled to $95,440.38 in backpay.
Lost Benefits
{¶29} Plaintiff testified that during her employment with Defendant, she and her family received medical insurance through Defendant's group health insurance plan. After leaving Defendant, Plaintiff was approved for Medicaid. (Plaintiff's Exhibit 28.) As a result of her loss of medical insurance with Defendant, Plaintiff testified that she incurred out-of-pocket medical expenses for her prescription medication, which were not covered by her benefits through Medicaid. Plaintiff calculated her total out-of-pocket expenses she incurred since leaving Defendant to be $598.54. (Plaintiff's Exhibit 36). Additionally, Plaintiff testified that, as a result of the loss of her medical insurance with Defendant, she also incurred out-of-pocket costs for treatment with her medical providers in the amount of $1,823.58. (Plaintiff's Exhibit 37.) Accordingly, the Court finds that Plaintiff has proven she is entitled to $2,422.12 for lost benefits.
Reinstatement
{¶30} Plaintiff requests that she be reinstated to her position of Disability Claims Adjudicator with a work schedule of 7:00 a.m. to 3:30 p.m. Reinstatement is an equitable remedy within a trial court's discretion to provide. Garza v. Brownsville Independent School Dist., 700 F.2d 253, 255 (5th Cir.1983), citing Franks v. Bowman Transportation Co., 424 U.S. 747, 770-80 (1976). A court may award the remedy of reinstatement to a plaintiff who succeeds on her ADA claims at trial. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(g)(1). Reinstatement is the presumptively favored equitable remedy. Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th Cir.1988); Henry v. Lennox Indus., 768 F.2d 746, 752-53 (6th Cir.1985). However, reinstatement may not be appropriate in some cases "such as where the plaintiff has found other work, where reinstatement would require displacement of a non-culpable employee, or where hostility would result." Id.
{¶31} There is no evidence to suggest that Plaintiff's reinstatement would require displacement of a non-culpable employee or that any hostility would result. Furthermore, Plaintiff testified that she has not been able to secure other employment. However, the Court notes that, by Plaintiff accepting disability retirement with OPERS, her reinstatement is conditioned upon her medical providers determining that she is no longer disabled in accordance with R.C. 145.362. Therefore, the Court will order Defendant to reinstate Plaintiff to her previous position of Disability Claims Adjudicator with a work schedule of 7:00 a.m. to 3:30 p.m., conditioned upon Plaintiff's doctors providing medical evidence that Plaintiff is no longer disabled and can work the 7:00 a.m. to 3:30 p.m. schedule in accordance with R.C. 145.362.
Emotional Distress
{¶32} Under Title VII, prevailing plaintiffs may recover, in addition to compensatory damages for economic loss, compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." 42 U.S.C. § 1981a (b)(3); Landgraf v. USI Film Prods., 511 U.S. 244, 253, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Emotional distress damages must be proven with competent evidence. Moorer v. Baptist Mem'l Health Care Sys., 398 F.3d 469, 485 (6th Cir.2005). Medical evidence is not required to prove emotional injury. Id. Rather, a "plaintiff's own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff's burden in this regard." Id.
{¶33} At the outset, the Court notes that this is a unique case in that the nature of Plaintiff's disability is that she suffers from a plethora of mental illnesses that cause Plaintiff to experience, at all times, some form of emotional distress. After leaving her employment with Defendant, Plaintiff testified that she felt embarrassed, depressed, anxious, suicidal, and engaged in self-harm. Clum testified that during that time, Plaintiff was experiencing increased symptoms of depression and anxiety, but Clum also testified that none of this was "new" for Plaintiff. The actions of Defendant may have brought some preexisting emotional issues to the surface but there is no evidence that its actions created any new emotional issues. Based upon the testimony of Plaintiff and her doctors, the Court finds that, at most, Plaintiff's preexisting emotional issues were exacerbated. Although medical testimony is not necessary, the medical testimony presented at trial does not support a significant exacerbation of Plaintiff's medical condition. It is Plaintiff's burden to prove her emotional harm within a reasonable degree of certainty and the Court cannot speculate as to the amount of emotional harm Plaintiff suffered. Nevertheless, the Court finds that Plaintiff has proven that she suffered an exacerbation of her emotional harm in the amount of $10,000.
Attorney's Fees
{¶34} Given that the Court has found in favor of Plaintiff on her failure to accommodate claim and her disability discrimination claim, Plaintiff is entitled to recoup her reasonable attorney's fees, including litigation expenses and costs. Accordingly, the Court will conduct a hearing via Zoom videoconference regarding the issue of attorney's fees on February 16, 2021, at 10:00 a.m. The parties should get together and see if they can stipulate the matters (hours and reasonable hourly rate) for purposes of a lodestar determination. Instructions on how to join the Zoom hearing are attached to this decision.
Conclusion
{¶35} Based upon the foregoing, the Court finds that Plaintiff has proven, by a preponderance of the evidence, her claims for failure to accommodate and disability discrimination. As a result, the Court finds that Plaintiff is entitled to backpay in the amount of $95,440.38, lost benefits in the amount of $2,422.12, and emotional distress damages in the amount of $10,000. The Court also finds that Plaintiff is entitled to reinstatement to her position as Disability Claims Adjudicator with a work schedule of 7:00 a.m. to 3:30 p.m., conditioned upon Plaintiff's doctors providing competent medical evidence that Plaintiff is no longer disabled and can work the schedule ordered by the Court in accordance with R.C. 145.362. Lastly, as discussed above, the Court will calculate Plaintiff's attorney's fees at a later date.
/s/_________
DALE A. CRAWFORD
Judge
JUDGMENT ENTRY
{¶36} The Court has considered the evidence and, for the reasons set forth in the decision filed concurrently herewith, the Court finds that Plaintiff has proven her claims of failure to accommodate and disability discrimination by a preponderance of the evidence and is entitled to damages as discussed in the interim decision. The Court will conduct a hearing via Zoom videoconference regarding the issue of attorney's fees, including litigation expenses and costs, on February 16, 2021, at 10:00 a.m. Instructions on how to join the Zoom hearing are attached to this decision.
/s/_________
DALE A. CRAWFORD
Judge Filed February 1, 2021
Sent to S.C. Reporter 4/5/21