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Anderson v. The Ohio Bell Telephone Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-798525

          ATTORNEY FOR APPELLANT Steven J. Forbes Norchi Forbes, L.L.C.

          ATTORNEYS FOR APPELLEE Laura Lindner Littler Mendelson P.C. Amy Ryder Wentz Littler Mendelson P.C.

          BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.


          LARRY A. JONES, SR., J.

         {¶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.


         {¶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. Anderson now appeals, and for her sole assignment of error contends that "the trial court erred by granting summary judgment in favor of Ohio Bell Company and finding as a matter of law that The Ohio Bell Telephone Company did not discriminate against Jacinda Anderson based on her disability."[1]

         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. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd, 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

         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 company maintained that it granted her a five-week, short-term disability leave based on her representations that she was having surgery for carpal tunnel; the leave was for August 5, 2009 through September 14, 2009. According to the company, Anderson neither scheduled nor had the surgery.

         {¶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 claim had been approved or denied, and the reason for the determination.

         {¶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 Borom to advise that Anderson had requested a reasonable accommodation. Borom sent another letter to Anderson, dated October 7, 2009, advising her to return to work by October 14; Anderson did not return. On October 14, Borom sent another letter to Anderson advising her to report to work by October 21; again, Anderson did not report. Another letter, dated October 26 was also sent; the letter stated that Anderson needed to report to work on November 2, 2009; she did not.

         {¶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 the IDSC nor Anderson had ever communicated any medical information about Anderson to her. According to Borom, at the time the termination decision was made, she had no knowledge as to what condition Anderson claimed was preventing her from returning to work.

         {¶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 ...

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