Ohio Disability Discrimination Best Attorney Answer: Can my employer use something that happened two years ago to fire me? Can I be disciplined after I started limping? Is it wrongful termination if I was fired because of a neurological condition?
Walking upright is a very basic, yet fundamental human trait. One of the first milestones in life involves a baby taking his or her first steps. People walk for exercise, enjoyment, leisure, and health. The way people walk has fascinated many musicians and artists, including a famous scene from the classic comedy, “Young Frankenstein“ where Igor tells the young Dr. Frankenstein to, “walk this way,” while hunched over with a small walking stick. This funny scene helped to inspire the lyrics to Aerosmith’s classic rock anthem, “Walk this way“ which is also known for the cover version re-released in the 80’s by Run DMC and for being a top ten hit twice in two different decades.
In recent years, several rap artists have even released songs containing lyrics about walking with a limp like LMFAO, and 50 Cent. Although younger artists may think they look good and other will think they are pretty hip while walking with a limp, employees in the workforce may not be treated in the same way. For instance, Howard Goldstein, a former employee of Carlino Development Group (“CDG”) in Pennsylvania alleged he was fired in part because of his limp.
Goldstein was hired by CDG in July 2006 after performing seven months of contract work with the company. Over the next two years, Goldstein worked for CDG without incident and on good terms. In April 2009, Goldstein developed an advanced degenerative disc disease requiring surgery. Goldstein had the surgery, however, it failed to correct his condition and also caused him to walk with a pronounced limp.
In June 2009, Goldstein met with a new physician who advised that he should have a second corrective surgery. Goldstein advised his employer of this diagnosis, and within a few weeks, was terminated. At the meeting where Goldstein was informed of the termination, his boss told him that he was being fired because he was an at-will employee and because of a derogatory remark made over two years ago. Goldstein alleged that he did not make the comment, and that the president of the company actually made the remark.
After Goldstein filed suit against CDG, CDG claimed that it was exempt from the requirements of the Americans with Disabilities Act (“ADA“). In order to be subject to the law, an employer must have had 15 employees. In the analysis of whether CDG qualified as an employer under the ADA, the United States District Court for the Eastern District of Pennsylvania noted that:
The ADA’s prohibitions of discrimination and retaliation apply only to “covered entities.” 42 U.S.C. § 12112(a). The ADA defines a “covered entity” to include an “employer.” 42 U.S.C. § 12111(2). An “employer” is defined as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agents of such person[.]” Id. at § 12111(5). The relevant contested portion of the ADA requirement here is whether CDG maintained “15 or more employees.”
The court considered both arguments including the positions taken by Plaintiff Goldstein and Defendants CDG:
Plaintiff argues that for purposes of assessing the number of employees, a separate corporate entity, CDG-NMM, should be substantively consolidated with CDG. According to CDG, CDG-NMM was formed in November 2003 to perform property management and maintenance services in and around New Morgan Borough for a separate entity, New Morgan Properties, L.P. … Peter W. Carlino, the President of CDG, and several other Carlino family members collectively held a minority ownership interest in New Morgan Properties, L.P. …CDG asserts that Stephen Najarian was the 100% owner and President of CDG-NMM. …
CDG-NMM had a number of employees from 2008 through 2009, including President Stephen Najarian, James Papola, Robert Williams, William Bailey, and Franklin Eisenhauer. However, it is unclear whether James Papola worked for CDG-NMM at all times in 2008 and 2009. … Accordingly, as the evidence indicates that James Papola may not have been an employee for twenty or more weeks during the relevant time period, I will assume that CDG-NMM only maintained four employees from 2008-2009. Thus, if Plaintiff’s argument for substantive consolidation of CDG and CDG-NMM is successful, the total number of employees would rise from eleven to fifteen, the amount required for ADA liability.
The court reasoned that based on the facts in dispute between Goldstein and CDG that a jury was the proper entity to decide whether CDG was an employer for the purposes of the ADA. Goldstein alleged the following to support that the two entities were consolidated:
- Peter W. Carlino and David Binder, Goldstein’s fellow employees at CDG, spent a significant amount of time working on a shared project. At times, the project consumed many days of the working week at CDG;
- The presidents of both entities had regular meetings in 2008 and 2009 about property issues;
- Each president was a part owner of the other entity;
- Carlino family members invested significant amounts of time and money into the shared project, and Goldstein never observed any officer or owner of CDG-NMM dictate strategy to the owners at CDG or assert authority over the significant amounts of capital that were necessary to prevent the shared project from failing;
- Goldstein alleged a unity of hiring and personnel matters between the two entities by noting that James Papola, a CDG-NMM employee, was fired by Peter W. Carlino, the President of CDG;
- the CDG-NMM employees also participated in CDG’s group insurance policy.
In response, CDG alleged that these were two separate entities:
- CDG claimed that it was simply hired by CDG-NMM to perform bookkeeping and accounting functions;
- No CDG employees performed any additional work on behalf of CDG-NMM during 2008 and 2009
- CDG agreed that CDG-NMM employees were included in CDG’s group insurance policy, but explained it was only for the purposes of “economics and convenience.” CDG also claimed that CDG-NMM fully reimbursed CDG for 100% of the monthly insurance premiums related to its employees’ participation in the CDG group policies
- During 2008 and 2009, neither CDG nor any employee of CDG had the authority to hire or fire [the CDG-NMM employees], to direct, control, or review their work, or to supervise them. Moreover, they did not report to CDG or to any of its employees during that period, and nobody at CDG ever understood them to be, or treated them as, CDG employees.
The Court held that, “[g]iven the evidence discussed above, I find that there is a genuine dispute of material fact as to whether CDG had management power of CDG-NMM employees and projects, and whether this, combined with the shared insurance, constitutes a unity of ownership and operations sufficient to warrant substantive consolidation.
Even though Goldstein’s case occurred in Pennsylvania, Ohio employees are protected from being fired simply because of a disability based on federal and state laws. As our employment discrimination attorneys have blogged about before, ADA as amended by the American with Disabilities Act Amendments Act of 2008 (“ADAAA“), and Ohio Revised Code § 4112.02 are designed to protect employees from being treated differently or terminated based on disability. Ohio laws make it an unlawful discriminatory practice for any employer 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” based on several protected classes, including disability.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at (216) 291-4744. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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