Caryl J. Pfost v. Ohio State Attorney General

• Decision Date: 20 April 1999
• Docket Number: 99-LW-1452,98AP-690
• Parties: Caryl J. Pfost, Appellant-Appellant v. Ohio State Attorney General, Appellee-Appellee.
• Court: Ohio Court of Appeals

Caryl J. Pfost, Appellant-Appellant v. Ohio State Attorney General Appellee-Appellee.

No. 98AP-690

99-LW-1452 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 20, 1999

APPEAL from the Franklin County Court of Common Pleas.

Daniel H. Klos, for appellant.

Betty D. Montgomery, Attorney General, and Donald M. Collins, for appellee.

OPINION

BRYANT J.

Appellant-appellant, Caryl J. Pfost, appeals from a judgment of the Franklin County Court of Common Pleas affirming the order of the State Personnel Board of Review ("SPBR"), which affirmed appellant's removal from her position with appellee-appellee, the Ohio Attorney General.

Appellant worked as a crime victims claims investigator/economic loss investigator with the Attorney General's Office of Crime Victims Services ("AG") for approximately sixteen years prior to her removal in 1996. In 1992, the AG initiated corrective counseling for appellant on at least two occasions and issued appellant a verbal reprimand due to unsatisfactory work performance and attendance. In 1993, appellant received additional corrective counseling and a one-day suspension without pay for unacceptable work performance. Appellant's performance problems continued in 1994, resulting in additional corrective counseling for failure to complete assigned work and failure to maintain accountability for case files, a three-day suspension without pay due to "ongoing attendance and performance problems," and a five-day suspension without pay due to inefficiency, neglect of duty, and failure of good behavior.

In July 1995, the AG conducted a thirty-day performance review; during that time appellant was not assigned new cases so that she could process existing claims and improve her work performance. During that review period, appellant's supervisor notified her that her work performance continued to decline and required improvement. In August 1995, appellant provided her supervisor with a letter from her physician indicating that appellant was undergoing treatment for depression, and that appellant's symptoms were the cause of her unsatisfactory work productivity. Appellant also informed her supervisor in 1995 that she was taking medication to control her diabetes and high blood pressure. Neither appellant nor her physician requested specific accommodation for appellant's conditions. Later in 1995, appellant received a twenty-day suspension without pay due to inefficiency and incompetence.

In the early part of 1996, appellant's supervisors further documented appellant's continued lack of improvement, resulting in reassignment of some of appellant's cases to other investigators and in ongoing managerial scrutiny of appellant's work. On March 1, 1996, the AG removed appellant for inefficiency and incompetence.

Appellant appealed her removal to SPBR. Following a hearing, an administrative officer recommended that SPBR affirm the removal. SPBR adopted the hearing officer's report and recommendation and affirmed the AG's action. Appellant appealed SPBR's decision to the Franklin County Court of Common Pleas. The common pleas court determined pursuant to R.C. 119.12 that SPBR's order was supported by reliable, probative, and substantial evidence, and affirmed the order. Appellant appeals, assigning the following errors:

ASSIGNMENT OF ERROR NO. I: THE TRIAL COURT'S DECISION THAT PLAINTIFF-APPELLANT DID NOT DISCLOSE HER MEDICAL CONDITION TO HER EMPLOYER AND THAT EMPLOYER DID NOT FAIL TO ACCOMMODATE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. II: THE TRIAL COURT'S DECISION THAT PLAINTIFF-APPELLANT WAS NOT SUBJECTED TO DISPARATE TREATMENT BETWEEN APPELLANT PFOST AND CO-WORKER PEARL SOWELL IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. III: THE TRIAL COURT'S DECISION UPHOLDING PLAINTIFF-APPELLANT'S TERMINATION BY THE STATE PERSONNEL BOARD OF REVIEW ERRED, AS A MATTER OF LAW, AND IS CONTRARY TO THE HOLDING IN FULTZ v. CHILLICOTHE CORRECTIONAL INSTITUTION.

R.C. 119.12, which generally governs appeals from administrative adjudications, authorizes the common pleas court to affirm an order of an administrative agency "if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law." On appeal to this court, our standard of review is whether the common pleas court abused its discretion in finding the administrative decision to be supported by reliable, probative, and substantial evidence. Gen. Motors Corp. v. Joe O'Brien Chevrolet, Inc. (1997), 118 Ohio App.3d 470, 483, appeal not allowed, (1997), 79 Ohio St.3d 1445. Our review of whether the agency's order is in accordance with law is plenary. Id.

Appellant's first and third assignments of error are interrelated, and we address them together. Appellant's first assignment of error contends the common pleas court erred in determining appellant failed to communicate her disability to the AG or to request an accommodation under the Americans with Disabilities Act ("ADA"). Essentially, appellant asserts that her depression caused the decline in productivity and efficiency for which she was removed, and that the AG therefore had an affirmative duty under the ADA to provide her with a reasonable accommodation after she notified employer that she was undergoing treatment for the alleged disability. Appellant further contends that because the purported disability caused the unacceptable work product on which her removal was based, the AG's alleged failure to provide a reasonable accommodation affected the lawfulness of the removal.

Initially, SPBR's statutory jurisdiction to resolve an employment discrimination claim is questionable. See Cincinnati v. Dixon (1992), 78 Ohio App.3d 164; cf. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 122 (distinguishing between administrative civil rights claims and appeals to SPBR). Assuming, without deciding, that SPBR and the common pleas court properly considered appellant's discrimination argument, appellant's contentions nevertheless lack merit.

The federal ADA, Section 12101 et seq., Title 42, U.S.Code, prohibits an employer from discriminating against a qualified individual with a disability, because of the disability, in regard to discharge. See Section 12112(a), Title 42, U.S.Code. Appellant offered little evidence on the issue of whether she is a "qualified individual with a disability." See, generally, Siemon v. AT& T Corp. (C.A.10 1997), 117 F.3d 1173 and Olson v. General Electric Astrospace (C.A.3 1996), 101 F.3d 947. However, even if we assume appellant is a qualified individual with a disability, appellant's invoking the ADA ultimately fails because appellant did not request an accommodation from the AG.

Under the ADA, "discriminate" includes a failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an *** employee ***." Section 12112(b)(5)(A), Title 42, U.S.Code. Although appellant notified the AG that her depression contributed to her diminished productivity, appellant cites no evidence that she affirmatively requested an accommodation for that, or any other condition. Rather, appellant contends that mere notice of her alleged disability triggered employer's duty to accommodate her limitation, resulting in low productivity.

In seeming support of appellant's contentions, the ADA's corresponding regulations suggest that "[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [disabled employee] *** [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." See Section 1630.2 (o)(3), Title 29, C.F.R. However, those regulations also indicate that "[i]n general *** it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed." Section 1630.9, Title 29, C.F.R. In light of the foregoing language, federal courts have concluded that the employee's initial request for an accommodation triggers the employer's obligation to participate in the above-mentioned interactive process. Taylor v. Principal Financial Group, Inc. (C.A.5 1996), 93 F.3d 155, certiorari denied (1996), 117 S.Ct. 586; Kocsis v. Multi-Care Management, Inc. (C.A.6 1996) 97 F.3d 876; Scheer v. City of Cedar Rapids (N.D. Iowa 1997), 956 F.Supp. 1496. "If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one." Taylor, supra, at 165.

Here, appellant did not communicate to the AG a need for a specific accommodation. Accordingly, appellant "cannot expect the employer to read her mind and know she secretly wanted a particular accommodation and [blame] the employer for not providing it." Scheer, supra at 1500 (quoting Morton v. GTE North, Inc., 922 F.Supp. 1169, 1180 (N.D.Tex.1996) (additional citations omitted). Given the foregoing, even if we conclude that appellant is a "qualified individual with a disability" under the ADA, appellant's argument is not well-taken.

Appellant also contends in her first assignment of error that the common pleas court erred in rejecting her contention that the AG was required to place her on family medical...