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Moscato v. Ohio State University

Court of Claims of Ohio

March 27, 2013


To S.C. Reporter August 22, 2013



(¶ 1} Plaintiff brought this action alleging claims of both age and disability discrimination, and violation of her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2611 et seq. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.[1]

(¶ 2} In August 2002, plaintiff began her employment as a teacher at the Nisonger Center at The Ohio State University (OSU). The Nisonger Center's Early Childhood Education program (ECE) serves students with developmental disabilities. In January 2010, Sara Thiessen (nka Sara Thomson) became plaintiffs supervisor when she was appointed as Interim Coordinator at the Nisonger Center. Prior to her appointment, Thiessen had worked as a teacher at the Nisonger Center.

(¶ 3} In the summer of 2010[2], plaintiff was diagnosed with a thyroid condition and her treating physician recommended surgical removal of the organ. Plaintiff testified that she delayed the surgery so that she could teach during the first two weeks of the school year while her new students adjusted to school. The thyroid surgery was performed on September 14, and plaintiff returned to work on September 24, earlier than her doctor had recommended. Plaintiffs physician subsequently informed her that a biopsy showed evidence of cancer and that additional medical care was necessary, including blood tests and radiation treatment.

(¶ 4} On or about October 10, plaintiff informed Thiessen of the cancer diagnosis and she notified Thiessen that she would need time off for occasional medical appointments, including an extended absence in December to receive radiation treatments. Both plaintiff and Thiessen acknowledged that Thiessen was responsible for scheduling substitute teachers. Michael Moscato, plaintiffs husband, testified that he communicated with Kim Oyer, the human resources (HR) representative for the Nisonger Center, regarding plaintiffs medical treatment and sick leave required to attend medical appointments. (Plaintiffs Exhibit 10.) Plaintiff testified that her physician scheduled periodic appointments to conduct blood tests and that, on occasion, Thiessen questioned the need for such appointments and inquired whether they were "an emergency." On October 18, after plaintiff responded that her medical treatment was indeed an emergency, Thiessen sought advice from Maureen Meck, an HR administrator, regarding plaintiffs requests for leave. Thiessen informed Meck that she didn't "know what to do with this situation." (Plaintiffs Exhibit 21.) Meck advised Thiessen that she "should allow [plaintiff] to go" and that Thiessen should "develop a policy and procedure for emergencies." (Plaintiffs Exhibit 22.)

(¶ 5} On October 21, Thiessen informed Oyer that plaintiff had talked to certain coworkers "in a negative way" and that plaintiff had "threatened to file a complaint" against her. (Plaintiffs Exhibit 23.) On October 29, Thiessen issued two written reprimands and placed plaintiff on a performance improvement plan (PIP). According to documents related to the first reprimand, plaintiff had engaged in "discourteous treatment of ECE property and children" by being "rough" with a wagon and "grabbing" and "pulling" children by their arms. (Defendants' Exhibit H.) Specifically, Thiessen stated that she had observed plaintiff lift a child by holding both of the child's hands up over the child's head. In the second written reprimand, Thiessen states that plaintiff exhibited mistreatment towards coworkers, such as yelling on occasion and commenting to a paraprofessional, "I can change diapers faster than you." (Defendants' Exhibit I.) Both reprimands noted that "continued neglect of duty may result in progressive corrective action up to and including termination." On November 1, plaintiff wrote a response to the reprimands in which she denied both mistreating coworkers and "grabbing" a child. (Plaintiffs Exhibit 11.) Plaintiffs response included a letter from Rachel Kemper, RN, an employee of defendants' James Cancer Hospital, who requested that the decision to reprimand plaintiff for yelling be reconsidered based upon her opinion that as a complication of plaintiffs thyroid (throat) surgery, plaintiff had "difficulty controlling the tone and volume of her voice." Thiessen wrote a reply to Kemper's request for reconsideration wherein she stated that the reprimand was prompted not only by yelling and tone of voice, but also by plaintiffs attitude and body language. According to Thiessen, there had "been a pattern of this type of behavior for the past 9 months." (Plaintiffs Exhibit 11, page 434.) In the PIP, Thiessen noted that another incident of discourteous treatment of children would result in immediate termination.

(¶ 6} On November 17, Marc Tasse, Ph.D., Director of the Nisonger Center, presented plaintiff with a letter notifying her that she had been placed on administrative leave "pending a fact-finding investigation" as a result of being observed on November 10, "mishandling a child in her care." (Plaintiffs Exhibit 11.) According to an email from Janine Oden-Thomas, an OSU HR consultant, a decision to terminate plaintiffs employment had been made by 9:18 a.m. on November 17. (Plaintiffs Exhibit 38, page 15.) On November 29, Dr. Tasse signed a letter notifying plaintiff that her employment had been terminated, wherein he noted the issues addressed in the written reprimands and PIP, including mistreatment of a paraprofessional, supervisor, and discourteous treatment of property and children. (Plaintiffs Exhibit 8.)


A. Reasonable accommodation

(¶ 7} Plaintiff alleges that defendants denied her "a reasonable accommodation" of leave to attend her medical appointments, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12112 et seq. and Ohio's anti-discrimination statute, R.C. 4112. "Courts are to conduct an individualized inquiry and under appropriate circumstances, a medical leave of absence can constitute a reasonable accommodation." Cehrs v. Ne. Ohio Alzheimer's Research Ctr, 155 F.3d 775, 782-83 (6th Cir. 1998). Federal and state disability discrimination claims are subject to the same evidentiary standards and may be evaluated concurrently. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010).

(¶ 8} The ADA defines "reasonable accommodation" to include:

(¶ 9} "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(¶ 10} "(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. 12111(9); Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 868 (6th Cir. Ohio 2007).

(¶ 11} Unlike claims based upon an adverse employment action, claims premised upon an employer's failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination. Therefore, if the court accepts the employee's version of the facts, no inference is required to conclude that the employee has discriminated against plaintiff. Kleiber, supra at 868. To succeed on her disability discrimination claim, plaintiff must show the following: (1) that she was disabled; (2) that defendant was aware of the disability; and (3) that she was an otherwise qualified individual with a disability in that she satisfied the prerequisites for the position and could perform the essential functions of the job with or without accommodation. Pflanz v. Cincinnati (2002), 149 Ohio App.3d 743, 2002-Ohio-5492, ¶ 13; Johnson v. Cleveland City Sch. Dist., 443 F.App'x 974, 982-83 (6th Cir. 2011). Ohio's statute is modeled after the ADA, and Ohio courts will "look to the ADA and its interpretation by federal courts for guidance in interpreting the Ohio statute." Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 573, 1998-Ohio-410.

(¶ 12} The ADA defines "discrimination" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. 12112(b)(5)(A). The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities of such individual[.]" 42 U.S.C. 12102(1).

(¶ 13} It is undisputed that plaintiff suffered from cancer and that she experienced physical limitations as a result of the disease and her thyroid surgery. Plaintiff testified that she experienced difficulty regulating the tone and volume of her voice and that as a result of her cancer and medical treatment, she experienced symptoms including extreme fatigue, emotional swings, and constant pain from an aggravation of her preexisting fibromyalgia condition. Plaintiff testified that, beginning at the time of her surgery, she required help from her teaching assistant to perform physically demanding aspects of her job, including lifting children.

(¶ 14} Defendants contend that plaintiff failed to prove that she suffered a disability under the ADA. In order to establish a claim for disability discrimination, the plaintiff must first establish that she is "disabled" within the meaning of the ADA. McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997). The Americans With Disabilities Act Amendments Act of 2008 (ADAAA) applies in cases where the alleged discriminatory acts occurred ...

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