Procter & Gamble Defeats Worker’s Disability, Leave Bias Claims

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By Patrick Dorrian

A longtime Procter & Gamble employee can’t go to trial on her claim of being discriminated against because she developed depression and took leave for it and for her son’s serious health needs.

The U.S. District Court for the Southern District of Ohio’s ruling in the case highlights two recurring themes in disability discrimination law: a worker’s circumstances or behavior may give an employer notice of a disability, and not every accommodation request is reasonable. The court also examines whether certain job decisions affecting an employee are harmful enough to impose liability on an employer.

Beth Harrison wasn’t entitled to be transferred to another department as an accommodation under Ohio disability bias law because she could still do her job in P&G’s U.S. Customs Compliance department, the court said Nov. 17. Transfer as an accommodation is only reasonable when a worker’s condition leaves her unable to continue performing all of her essential job functions, the court said, citing federal law ( Harrison v. Proctor & Gamble Distrib., LLC , 2017 BL 413509, S.D. Ohio, No. 1:15-cv-514, summary judgment granted 11/17/17 ).

Harrison didn’t show that P&G otherwise mistreated her because of her disability, which caused her to express suicidal thoughts, Judge Timothy S. Black said. Harrison complained the company put her on a performance improvement plan, denied her a raise, revoked her work-from-home privileges, and reassigned a portion of her duties while she was on leave. But none of those job actions—or any of the others she complained about—was a legally actionable “adverse” action because her salary, job title, and work responsibilities were never significantly affected, the judge said.

Telework, Workload, Constructive Notice

Black cited “significant case law” holding that a denial of permission for an employee to work from home isn’t an adverse employment action. Thus, P&G’s limiting Harrison to one work-at-home day per week and then telling her she couldn’t telecommute at all anymore, even though other employees in her department could telework up to 50 percent of the time, wasn’t illegal, the judge ruled.

The court also cited “several cases” interpreting the federal Family and Medical Leave Act in finding that P&G’s decision to reduce Harrison’s workload by 20 percent while she was on leave wasn’t an adverse action under Ohio disability discrimination law. “Defendant had a responsibility to accommodate Plaintiff’s FMLA leave, which included the appropriate reassignment of some responsibilities as necessary to ensure that Plaintiff could perform adequately,” the court said.

Although it dismissed Harrison’s reasonable accommodation claim, the court rejected P&G’s contention that it didn’t know she was disabled for purposes of state employment bias law. Harrison had been observed crying at her desk and otherwise breaking down and losing control while at work. A jury could find the company was on “constructive notice” that she might have a disability, the court said.

Claims by Harrison under the FMLA failed because she couldn’t rebut P&G’s evidence that she was absent too often apart from any protected leave she took for herself or her son and that she repeatedly and unreasonably gave short notice of her FMLA needs, the court said. The federal leave rights law requires workers to notify employers as soon as possible of a need for leave, the court said.

Freking Myers & Reul LLC represented Harrison. Frost Brown Todd LLC represented P&G.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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