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July 2011 Archives

Ohio rocker Peter Frampton to divorce

It is very common for celebrity divorce to capture the attention of the media - and today another story has hit the radar. Rockstar Peter Frampton has now filed for divorce from his wife, Tina, after 15 years of marriage. Frampton currently resides in Indian Hills, Ohio.

Pregnancy Discrimination: "You're Pregnant? What Are We Going To Do About That?"

Obviously, this is not the best way to respond to someone's announcement that they are pregnant-whether they are your employee or just a friend. But, when you are the employer, it can lead to a little more than just hurt feelings. For example, a lawsuit.

Ohio mother accused of parental kidnapping

A child should be able to feel safe and secure when he or she is with the members of their family. Unfortunately, many times when a child is abducted, it's by a member of their own family. That is what happened to a little boy from Ohio, who is just 15 months old, and who was the victim of parental kidnapping.

Filing Age Discrimination Complaint within 90-day Rule

Loria Moore v. Department of Rehabilitation and Corrections (Franklin App. March 31, 2011), 2011-Ohio-1607: Moore worked as a correctional officer for Ohio Department Corrections. On January 9, 2007, she was discharged. On January 11, 2007, she filed a discrimination charge based on the Age Discrimination in Employment Act ("ADEA") with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). On November 12, 2008, the EEOC mailed her a right to sue letter informing her that, under the ADEA, she must file a lawsuit either in state or federal court within 90 days of receiving the notice. On February 10, 2009, Moore filed suit based on the ADEA and a Title VII claim alleging race discrimination in the federal district court. On May 26, 2009, Moore voluntarily dismissed her federal suit because the court did not have jurisdiction over her claim. On May 28, 2009, she re-filed the same complaint in the Ohio Court of Claims. On July 20, 2010, the court dismissed Moore's complaint as being untimely because it was not filed within 90 days of her receipt of the EEOC's right to sue notice. Further, the court concluded that the complaint was also barred under the elections of remedies doctrine. On appeal, Moore first argued that she filed her ADEA suit within 90 days of receiving her right to sue letter; therefore, she should not be barred from pursuing this action. The Court of Appeals rejected this argument based on its ruling on the same facts in McNeely v. Ross Correctional Institute, 2006-Ohio-5414. In doing so, the Court rejected Moore's claim that R.C. §2305.19, the savings statute, tolled her dismissal of her federal claim. Since Moore's ADEA claim was governed by its own limitations period, the 90-day rule, the Court reasoned that the Ohio savings statute cannot rescue it. As to the Title VII race discrimination claim, Moore argued that R.C. §2743.16(A) provides for a two year statute of limitations in the Court of Claims. Since she filed her suit in the Court of Claims within two years after dismissing her action in the federal court, Moore argued that the Court of Claims had jurisdiction to hear her race claim. However, the Court of Appeals rejected this argument because it interpreted the statute as requiring that suit must be filed within two years from the date the discriminatory act occurred. In this case, Moore filed her suit in the Court of Claims more than two years after her discharge. For this reason, her suit was filed outside the two-year statute of limitations. The Court of Appeals also rejected Moore's argument that Ohio's saving statute salvaged her race claim. The Court reasoned that the saving statute would not rescue Moore's race claim unless she filed her original complaint timely. Since she did not, the Court ruled that the savings statute did not apply to allow Moore to re-file an untimely lawsuit. Finally, Moore argued that the doctrine of equitable estoppel should apply to render her claims timely. Under such circumstances, Moore needed to prove (a) that she did not have actual notice of the filing requirement, (b) that she did not have constructive notice of the filing requirement, (c) that she exercised diligence in exercising her rights, (4) there would be no prejudice to the defendant, and (e) Moore's reasonableness in remaining ignorant of the filing requirements. However, Moore did not assert this doctrine before the Court of Claims, therefore, the Court of Appeals ruled it was waived.

Ohio county's Child Support Enforcement Agency sets the standard

You have to give them an 'A for Effort'. Butler County, Ohio's Child Support Enforcement Agency (CSEA) is not letting deadbeat parents off the hook. The CSEA is serious about child support obligations being met, and the agency's officers execute their duties with diligence and doggedness.

Ohio mother could face child custody obstruction charges

Emotions can run high when couples decide to separate. Trying to keep a cool head and working with your representation to try and achieve your goals is really the best course of action, but that does not happen in every instance. An Ohio man, for example, fell victim to a poor choice born of passion when his wife took their four-year-old son and fled the area for over a week.

Disability Discrimination - ADA Limitations for "Regarded As"

Dennis Breen v. Infiltrator Systems (6th Cir. March 24, 2011), Case No. 10-5013: With the new regulations to the Americans with Disabilities Act, disability discrimination claims are increasing.  In a recent ADA case, the 6th Circuit reviewed a Plaintiff's claim that his employer regarded him as disabled. Breen was employed as a manager. In January 2005, his supervisor conducted a performance review and noted that Breen needed to show improvement in his relationships with customers, employees, his attitude and do a better job of rotating inventory. In May 2005, Breen notified his supervisor that he had Hepatitis C. Although his supervisor asked if Breen needed to take a leave of absence, Breen declined. Breen noticed that his co-workers talked about his health condition and one co-worker referred to Breen as a "f----."  Over the next several months, Breen's managers talked with Breen about not following its First In First Out policy. He received a written reprimand for refusing to work in the company's customer services department. Management also heard that Breen made open derogatory comments about his co-workers and told one of them that he was a "cancer." After a discussion with his managers, Breen decided to take medical leave to begin treatment for his Hepatitis C. When Breen returned to work, he was discharged. Breen sued his employer in state court under its civil rights act. After the employer removed the case to federal court, it moved for summary judgment which was granted by the district court. On appeal, Breen argued that he demonstrated that his employer "regarded" him as disabled because his co-workers made negative comments that he was gay because of his Hepatitis C. The court of appeals rejected this argument because such comments did not suggest that Breen was regarded as substantially limited in any major life activity as required under the ADA. Further, Breen acknowledged that no one in management made any negative comments about his Hepatitis C. Finally, Breen could not demonstrate that his employer regarded him as disabled by contending that management's awareness of his condition gave rise to the level of awareness or belief that Breen was substantially limited in a major life activity. By: Merl H. Wayman

Sixth Circuit Declines Addressing Reverse Discrimination Pleading Standard

The Sixth Circuit found June 6, 2011 that a Memphis firefighter failed to prove the prima facie case of reverse race discrimination in a § 1981 action against the City. The Court declined to address the "heightened pleading standard" that applies to reverse discrimination cases, saying instead that the plaintiff had failed to show that he was qualified or that similarly situated non-white employees were treated more favorably, which constitutes two of the prima facie elements.

New child custody law good news for Ohio military members

Active-duty military members face a host of difficulties during deployment times. Not only do they often put their lives on the line, but they spend much of their time concerned about family back home. A new child custody law passed in Ohio may help to take some of the pressure off the state's military men and women.

Unemployment Compensation Denied Absent Appropriate Paperwork

Tonya Hartless v. Director, ODJFS (Pickaway App. March 21, 2011), 2011-Ohio-1374: Claimant appeals from the trial court decision affirming the decision by the Unemployment Compensation Review Commission in denying her unemployment compensation application. She worked as a warehouse associate. The employer maintained a no-fault attendance policy that consisted of a warning, a written warning, a three-day suspension and termination after twelve occurrences. Before her discharge, claimant progressed through into a three-day suspension. She was discharged after missing work without notifying the employer that she would be absent.In her appeal, the claimant first argued that her actions were justified because of a rigid, unbending nature of the employer's attendance policy because she questioned whether her employer actually considered her last two absences as a basis for discharging her. The court did find some evidence in the record that the employer did consider these two absences in its decision because the claimant did not call into work to report her absences. The court further concluded that the employer followed each step of its progressive disciplinary policy. Although the claimant argued that she had suffered from various bona fide illnesses to explain some of her absences, she did not produce any doctor's excuses at the administrative hearing, and the employer's file did not contain any. The court rejected claimant's argument that there was an employer's record in evidence that the claimant called off sick. However, without additional documentation, the court could not say that this entry represented anything more than the claimant's preferred reasons for her absence. Although the court found one document in the record to justify an absence due to a bona fide illness, the claimant still accumulated more than the number of occurrences permitted under the progressive disciplinary policy to justify her termination.

Disability Discrimination Claim by State Employee

Jessica Whitfield v. State of Tennessee, (6th Cir., March 25, 2011). Jessica Whitfield sued her state government employer for both equitable relief and damages under Titles I and II of the ADA for disability discrimination. The district court dismissed her claim under Title I based on the Supreme Court's decision in Board of Trustees v. Garrett, 531 U.S. 356 (2001) that held that Title I did not abrogate a state's sovereign immunity from suits for monetary damages. The district court did not address Whitfield's Title II claim before dismissing the entire action.On appeal, the Sixth Circuit agreed with the district court's disposition of the Title I claim as to the recovery of monetary damages against the state. However, the court disagreed with the lower court's dismissal of the Title I claim regarding Whitfield's claim for job reinstatement because that was a form of equitable relief that she should have been allowed to pursue based on the doctrine enunciated in Ex Parte Young, 209 U.S. 123 (1908). The court, however, concluded that Whitfield abandoned her claim under Title II of the ADA because she did not address it in her brief on appeal. The court continued to review Whitfield's appeal on her Title I appeal.First, the court clarified confusion that existed within the circuit as to the proper test for establishing a prima facie case of employment discrimination under the ADA. The court rejected a three-part test used by the district court in granting summary judgment reasoning that it is inconsistent with the Monette formulation expounded in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). The court further confirmed that within the Sixth Circuit, Monette requires that a plaintiff must prove that she was discriminated against solely because of her disability.Finally, the court concluded that there was overwhelming evidence that Whitfield was fired because she did a poor job, and that her performance problems were completely unrelated to her disabilities. Although Whitfield alleged that she could have done a better job if the employer had provided her all the accommodations she requested, the court determined that there were other performance deficiencies that were completely unrelated to her disabilities, and that Whitfield failed to prove that the employer's decision to fire her for these problems was a pretext for discrimination.

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