A former construction company foreman can challenge his termination because the company considered him disabled after he had a portion of his brain removed following an accident, an Ohio appeals court ruled.

The Third District Court of Appeals ruled last week that Samuel Carnahan can move forward with the wrongful termination claim under the Ohio Civil Rights Act by arguing that he was fired not for being disabled, but rather because his company perceived him to be disabled. The appellate court found this to be one of the few legal challenges to the portion of the act that bars employers from terminating workers they believe to be disabled whether they actually are or not.

Carnahan rose to the rank of foreman for Morton Buildings Inc., and in August 2011 he and his crew were constructing a pole barn in Missouri. Carnahan fell off an all terrain vehicle during a tour of the farm, and he suffered severe head trauma. A St. Louis hospital removed a portion of his skull and temporal lobe because of brain swelling. Carnahan spent months undergoing follow-up therapy. In January 2012, his physician, a neurosurgeon, and physical therapist authorized him to return to work with limitations during the first two weeks, but no limitations after that.

Morton refused to allow him to return to work until he was reviewed by the company’s neurosurgeon Dr. Prasad Policheria, who found Carnahan could not perform foreman duties without certain restrictions. Determining they could not make adequate accommodations for Carnahan, Morton fired him. He filed a lawsuit in July 2012 challenging his determination claiming violations of Ohio’s laws against firing on the basis of both disability and perceived disability. Morton opposed the lawsuit and in February 2014 filed a motion for summary judgment, which was granted by Paulding County Common Pleas Court in April 2014. The trial court did not provide a written ruling providing the basis for the decision, but only stated that it was granting Morton’s motion, and Carnahan appealed to the Third District.

Writing for the Third District, Judge John R. Willamowski wrote that Ohio’s disability discrimination law R.C. 4112 defines disability as “a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” The definition also includes “a record of physical or mental impairment; or being regarded as having a physical or mental impairment.”

“A person can gain the protection of the disability discrimination laws even if he or she is not disabled if the employer regards the person as being disabled,” he wrote. “Here, Carnahan does not argue that he was suffering from a disability. In his brief, Carnahan states he suffered a traumatic injury, but also indicated that he had a remarkable recovery.”

Carnahan argued that his injury did not leave him with any physical or mental impairment that would “substantially limit” his ability to perform major life activities, and he could return to work without restriction. The appellate court found that if Carnahan was offering proof that he was not disabled, then the trial court was correct in siding with Morton and dismissing his wrongful termination based on disability.

But Judge Willamowski wrote that while the disability argument had no merit, it was still open to dispute as to whether Morton “perceived” Carnahan to be disabled. He wrote the Ohio Supreme Court has not addressed the “regarded as” having an impairment part of the state law and the Third District looked for guidance from cases dealing with the federal Americans with Disabilities Act, which has a similar “regard as” rule. He noted that Morton was concerned that Carnahan suffered from a mental impairment based on emails from the regional manager, directives from the human resources manager and safety personnel, and the report by Policheria.

The foreman job required lifting, climbing ladders, being outside in cold and hot weather for long periods of time and constant standing and walking. Policheria did not conduct a physical exam of Carnahan, only neurological testing that Carnahan passed with a perfect score, Judge Willamowski noted. Yet Policheria recommended physical restrictions that Morton viewed as not enabling Carnahan to complete the physical tasks required of a foreman and terminated him.

Judge Willamowski concluded that even though Carnahan passed the neurological tests, he had a right to present to a jury the argument that Morton perceived he had an impairment based on Policheria’s report and perceived him to be disabled.

“There is no dispute that as a result of the report provided by Policheria, Morton terminated Carnahan’s employment,” Judge Willamowski said.

To win his case, the appellate court wrote that Carnahan must not only show that he was fired because he was perceived to be disabled, but also that he can do the job, and that Morton had no other legitimate reason for terminating him.

Judge Stephen R. Shaw concurred in the decision.

Judge Vernon L. Preston concurred separately arguing that Carnahan has to prove more than if he can do the job, but rather he “can safely and substantially perform the essential functions of a construction foreman.”

The case was remanded to the trial court for further proceedings.

Carnahan v. Morton Bldgs. Inc., 2015-Ohio-3528
http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2015/2015-Ohio-3528.pdf
Appeal from: Paulding County Common Pleas Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: August 31, 2015

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