By Dave Strausfeld, J.D. Although it was a close call, an accounting supervisor with a hearing impairment sufficiently showed he suffered an adverse employment action when his supervisory responsibilities were eliminated and he was reassigned to work solely on invoices, even though his job title and pay did not change, held a federal district court in Ohio, denying summary judgment on his disability discrimination claims under the ADA and state law. His boss’s handwritten notes indicated he was being “transitioned out of supervisor role.” But there was insufficient evidence to support his claim of constructive discharge (Sessin v. Thistledown Racetrack, LLC, May 4, 2016, Gwin, J.). Supervisory responsibilities removed. Although the accounting supervisor never told anyone at the company—a race track/casino—that he had Meniere’s disease (an inner ear disorder), he wore visible hearing aids on both ears. And shortly after he began employment someone pointed out his hearings aids to his boss, who then allegedly yelled at him at a staff meeting, “I can never tell if you are hearing me.” About four months into his employment, his boss effectively demoted him, assigning one of his peers to become the primary supervisor. The boss’s handwritten notes stated that the accounting supervisor was being “transitioned out of supervisor role. Focus is now solely invoices.” The accounting supervisor resigned a month or so later. Change in duties as adverse action. In moving for summary judgment on the accounting supervisor’s disability discrimination claims, the company argued primarily that he did not suffer an adverse employment action. The company argued first that the “mere shifting of such job responsibilities is insufficient to rise to the level of an adverse employment action,” quoting from the Sixth Circuit’s decision in Broska v. Henderson. But Broska was distinguishable because, for one thing, the plaintiff there presented no evidence of any change in job responsibilities other than a “terse statement in his affidavit.” Here, in contrast, the accounting supervisor supplied not only his own affidavit but also the handwritten notes of his boss indicating he was “transitioned out of supervisor role,” plus his fellow supervisor’s deposition acknowledging she had been assigned to become the primary supervisor of the team. The company next argued that an “employee’s subjective impressions as to the desirability of one position over another are not relevant” in determining whether the employee suffered an adverse employment action, quoting from the Sixth Circuit’s holding in Momah v. Dominguez. But this citation was not on point, the court found, because the accounting supervisor had presented evidence of more than just his own “subjective impression” that his new duties represented a demotion—namely, he also provided his boss’s handwritten note and his fellow supervisor’s deposition. Close call. “Although a close call,” the court found there was a genuine factual dispute as to whether the accounting supervisor suffered an adverse employment action by having his responsibilities within the accounting department significantly diminished. The company maintained that all employees had their roles and responsibilities modified as the business went through its start-up phase and began operating. But it was “best left for a jury to decide” whether the accounting supervisor would have been demoted in the absence of his disability, the court stated. Constructive discharge claim. On the other hand, the accounting supervisor could not proceed with his state and federal claims of constructive discharge based on disability discrimination, because he could not show that his working conditions had become intolerable and that the company deliberately created such working conditions with the intention of forcing him to quit. For instance, he did not suffer a reduction in salary and there was no evidence he was assigned to menial or degrading work. The court also dismissed his retaliation, IIED, and hostile work environment claims.
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