Mowery Youell & Galeano, Ltd.
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June 2011 Archives


In Luri v. Republic Services, Inc., the jury awarded "the largest retaliatory discharge jury award in Ohio history-over $46 million." In this retaliation case, the plaintiff was part of a protected class only by virtue of his refusal to follow a directive from his supervisor to fire three employees on the basis of their age. Shortly after pointing out that two of these individuals had strong performance evaluations and refusing to fire them without cause might lead to a lawsuit, his supervisor downgraded his performance evaluations. Luri was then placed on a performance improvement plan that led to his termination.

Vextious Litigators in Divorce Court

The Sixth Circuit recently issued a rare domestic relations decision. Evans v. Cordray, Case No. 09-3998 (May 27, 011), originating from a Southern District of Ohio case, was actually a ruling on the Rooker-Feldman doctrine, which is a jurisdictional rule precluding lower district courts from "exercising appellate jurisdiction over final state-court judgments."

Sole Cause v. A Motivating Factor Causation

Susan Lewis v. Humboldt Acquisition Corporation (6th Cir. March 17, 2011). Plaintiff appealed a jury verdict against her on her disability discrimination case. Following a jury trial, the jury concluded that plaintiff was "regarded as" disabled and she was a "qualified individual" under the Americans with Disabilities Act. The jury, however, concluded that plaintiff's disability was not the "sole" reason for her termination from employment, and granted its verdict in favor of her employer. On appeal, Ms. Lewis argued that the trial court erroneously instructed the jury that she must prove that her disability was the "sole factor" resulting in her discharge, instead of a "motivating factor" as the majority of appellate courts within the United States.The Sixth Circuit Court of Appeals rejected plaintiff's appeal because the circuit previously held in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) that, to recover on a claim for discrimination under the ADA, a plaintiff must show that he was discharged solely by reason of his handicap. Under the law of the case doctrine, the panel stated that its hands were tied and that it could not overrule Monette without intervention from the United States Supreme Court or an en banc ruling from the Sixth Circuit.In a concurring opinion, Judge Griffin observed that the panel was bound by its previous panel decision in Monette. However, Judge Griffin noted that Monette was improperly decided because the panel in that decision applied its interpretation of the Rehabilitation Act that a plaintiff must prove the disability was the "sole" reason for the employment action. The concurring opinion stated that the supermajority of other circuits have held that the plain language of the ADA did not support application of the Rehabilitation Act's "sole reason" standard, and if he were allowed, would hold that this standard was contrary to the plain language of the ADA.By: Merl H. Wayman

La dodger's divorce settlement voided

When two people in Ohio or anywhere in the U.S. decide to divorce, it can be very stressful for both parties. In cases where a couple shares valuable assets, divorce can result in a costly legal battle to divide their collective wealth. The Los Angeles Dodgers owner could be heading back to court after a TV deal that was set to be a major factor in his divorce settlement fell through.

New ADA Regulations Provide Opportunity and Challenge

May 23, 2011 marked the first day the new Americans with Disability Act regulations were effective. The new rules will be a challenge for employers because of adoption of the expansive definition of "disabled." On the other hand, the law is a serious win for employees. The previously restrictive definition of what constitutes a "disability" is done away with and almost no prior case law on the subject can help with interpretation. As for employment attorneys, it is pretty exciting-regardless of which side of the fence you land on.

Video Surveillance of Employee Not Race Discrimination

Timothy Blake v. Beachwood City Schools (Cuy. App. March 10, 2011), 2011-Ohio-1099: Plaintiff appealed from the grant of summary judgment against him on this race discrimination case. Plaintiff was employed as the head custodian of an elementary school. He worked the day shift and supervised two other custodians, Jay Schachtel and Tara Ming. Custodial duties were originally divided equally between Schachtel and Ming. However, in 2008, Schachtel complained to plaintiff that he thought his cleaning duties were divided up unequally. Although plaintiff indicated that he would look into the complaint, he never did. A month later, Schachtel complained to plaintiff's supervisor about the uneven cleaning duties and was told to speak with plaintiff again. Although plaintiff had decided to rotate the building assignments for both custodians, he never informed Schachtel of his decision. A month later, Schachtel went back to plaintiff's supervisor and complained that Ming was abusing her break time. There was evidence in the record that Ming spent over four hours a day taking breaks when she was limited to two fifteen minute breaks and one lunch break. Ultimately, the school administration installed cameras to record how much time Ming spent on her break. When the camera footage confirmed Schachtel's complaint, the administration decided to demote plaintiff to a being a custodian, and fired Ming. Plaintiff commenced this race discrimination case by claiming that his demotion violated the Ohio Civil Rights Act. He claimed in response to defendant's summary judgment motion that he and Ming were African-American and were the only employees subject to video surveillance. He further argued that Schachtel, a Caucasian, should also have been subject to surveillance because Ming had complained that he took extended breaks as well. Plaintiff argued that defendant should have placed a camera to monitor the doorway where Schachtel frequently left to go home on his lunch break. The Court of Appeals rejected plaintiff's arguments and affirmed the trial court's grant of summary judgment. In doing so, the court initially concluded that plaintiff did not present evidence that he was replaced by a similarly-situated person for the head custodian position. The defendant did not fill plaintiff's position. Instead, the defendant divided up plaintiff's supervisory duties by assigning them to his supervisor. The position was not filled until a year later after plaintiff had appealed his demotion to the Civil Service Commission. When the Commission found against him, the defendant hired a new head custodian. The Court of Appeals also concluded that plaintiff was not subject to disparate treatment with regards to the video surveillance. Plaintiff argued that the defendant gave more favorable treatment to Schachtel by not disciplining him for leaving the building and taking excessive breaks. However, the court did not consider this evidence as comparable because plaintiff was Schachtel's supervisor and unlike Schachtel, was in a position of trust and authority. The Court also determined that Schachtel and plaintiff were not comparable because plaintiff was not the subject of the surveillance. Finally, the Court found that plaintiff failed to demonstrate a genuine issue of material fact regarding defendant's decision to place cameras in an area where employees take their breaks to investigate allegations of break policy abuses. By: Merl H. Wayman

Lesbian child custody case escalates

The definition of what makes a family is constantly evolving. As step families and same-sex parents become increasingly commonplace, child custody cases are becoming more complex. But custody is not guaranteed for non-biological parents, as one woman in Ohio has found out recently. Because gay marriage is banned in the state, a judge has refused to grant a visitation order for a woman who helped to raise a 7-year-old girl who she considers her child.

Fair Labor Standards Act (FLSA) Retaliation

Recently, the Supreme Court interpreted the complaint provision of the Fair Labor Standards Act (FLSA), which deals with minimum wage and overtime. 29 U.S.C. § 201 et seq. In Kasten v. Saint-Gobain Perf. Plastics Corp., the Court addressed the phrase "filed any complaint" and determined that this included oral, as well as written, complaints.

Fair Labor Standards Act/Ohio Minimum Fair Wage Standards Act

Robert Hendricks v. Total Quality Logistics LLC, Case No. 1:10-cv-649 (S.D. Ohio, March 11, 2011): Plaintiffs consisted of a group of former employees who claim they were not paid overtime wages as required by the Fair Labor Standards Act (FLSA) and the Ohio wage law. The plaintiffs asserted class action status under the Ohio wage law and a collective action under the FLSA. The defendant moved to dismiss the state class action claim because it would work an "end-around" the FLSA's opt-in requirement. As explained by the defendant, the FLSA expressly prohibits a plaintiff from asserting a FLSA claim for overtime compensation on behalf of a class of similarly-situated employees who fail to opt into the claim. On the other hand, the Ohio class action claim includes similarly-situated persons who fail to opt out of the Ohio class but refuse to opt into the FLSA claim. Defendants contend that permitting plaintiffs to assert both types of claims thwarts the Congressional intent in creating the opt-in requirement for the FLSA. Plaintiffs, however, cite to multiple decisions where federal courts permitted both Fair Labor Standards Act opt-in claims and state law wage opt-out claims to proceed in the same action.

Twitter and divorce: does online infidelity count?

Social media websites are under scrutiny recently for their part in marital breakdowns. After the high profile case involving Representative Anthony Weiner, many people are asking if using the internet to connect with another person sexually or emotionally is grounds for divorce. Ohio legal and relationship experts do not think that it is.

Ohio accused of over-collecting child support

Non-custodial parents who are required to pay child support work very hard to give their children the financial support they need to live happily and healthily. Child support payments usually take up a large portion of the parent's paycheck, so it is imperative that the money be going directly to the child. However, a lawsuit filed recently accuses the state of Ohio of purposely over-collecting child support payments from unsuspecting parents in order to benefit from incentives from the federal government.

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