Disability Discrimination Case out of Sandusky, Ohio

Yost v. Sandusky, 2015-Ohio-805

Disability discrimination case brought under the Ohio Civil Rights Act, where a battalion chief with the fire department was diagnosed with Parkinson's disease. Medical examinations found him unfit for duty. The court found that the City of Sandusky's reliance on the recommendations of the physicians prevented the claim that they engaged in an unlawful discriminatory practice.

Ohio Revised Code 4112.02, the Ohio Civil Rights Act, prohibits disability discrimination and provides that it is an unlawful discriminatory practice:

"For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, 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. R.C. 4112.02(A)."

An employee is considered “disabled” where he or she has

"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; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment." R.C. 4112.01(A)(13).

In order to establish a prima facie case of disability discrimination, a plaintiff must establish:

"(1) that he was [disabled or regarded as disabled], (2) that an adverse employment action was taken by an employer, at least in part, because the individual was [disabled], and (3) that the person, though disabled], can safely and substantially perform the essential functions of the job in question." DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, 2001-Ohio-3996, 766 N.E.2d 1040, ¶ 39 (10th Dist.), citing Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204 (1998).

Labor Representation - UAW and VW

Multiple Tiered Bargaining Representatives

Volkswagen has a new policy that allows labor organizations that can prove they represent at least 15% of the workers at a plant to represent those workers in workplace discussions. This is a very interesting concept. The policy goes onto state that if any union does in fact desire to become the exclusive bargaining representative of the workers, that they must do so in the normal method by going to the National Labor Relations Board and petitioning.

NFL Concussion Lawsuits

NFL Concussion Lawsuits

The lead attorney in this lawsuit recently spoke at a seminar that I attended here in Toledo, Ohio. He made some very interesting points regarding preemption arguments raised by the NFL and how that issue, which was never decided by the Court, played into their decision to settle the lawsuits.

Public Sector Agency Fees

Public Sector Agency Fees

Harris v. Quinn, 573 U. S. ____ (2014)

The U.S. Supreme Court's decision in Harris v. Quinn, 573 U. S. ____ (2014) creates a situation where only full-fledged public employees must pay agency fees, thereby exacerbating the problem of free riders obtaining rights bargained for by their labor representatives without having to pay towards any of the costs. In this case, the Court found that Illinois' Public Labor Relations Act which permitted union security agreements violated the First Amendment. The case involved personal assistants who had voted to have a labor organization represent them as their exclusive bargaining representative. Both the State and the individuals receiving care from the personal assistants had a role in the employment relationship. The recipients of the services defined the personal assistants’ duties and controlled their hiring, firing, training, supervising, and disciplining. However the State paid the personal assistants through medicaid. The Court found that because of this, the personal assistants were not full-fledged employees of the State and could not be required to pay public sector agency fees for the bargaining activities performed on their behalf.

As a result of this decision, organized labor can expect that the assault on public sector labor unions will continue.

Indiana's Right to Work Law is Unconstitutional

Gregory Zoeller, et al. v. James Sweeney, et al., No. 45S00-1309-PL-596

Union Argues that Indiana's Right to Work Law is Unconstitutional

In an interesting case related to traditional labor law and filed in the Lake Superior Court, and appealed to the Indiana Supreme Court, the Union argues that Indiana’s right to work law works an unconstitutional taking upon labor organizations because the union is forced to represent non-members and are not compensated for it. The State Court case was filed against the Attorney General and the Labor Department Commissioner (hereinafter referred to as the “State”) seeking a declaratory judgment that Indiana's "right-to-work law” violated several provisions of the state constitution.  The State moved to dismiss the complaint for failure to state a cause of action.  The trial court ruled that two provisions, Indiana Code sections 22-6-6-8 and -10, violate Article 1, Section 21 of the Indiana Constitution because they demand particular services from unions without just compensation, and entered a declaratory judgment.  The trial court granted the State's motion as to the remaining counts and dismissed them. The Supreme Court has jurisdiction over this direct appeal (civil) because the trial court declared a state statute unconstitutional. The Supreme Court has heard oral arguments and the decision should be issued in the next few months.

Labor is the Superior of Capital

President Abraham Lincoln made a speech over 150 years ago focusing on the Civil War, but which cogently set forth the epitome of what Labor Day is all about. This is what President Lincoln said to Congress, to the United States, and to us:

“It is not needed, nor fitting here [in discussing the Civil War] that a general argument should be made in favor of popular institutions; but there is one point, with its connections, not so hackneyed as most others, to which I ask a brief attention. It is the effect to place capital on an equal footing with, if not above, labor, in the structure of government. It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor. This assumed, it is next considered whether it is best that capital shall hire laborers, and thus induce them to work by their own consent, or buy them, and drive them to it without their consent. Having proceeded thus far, it is naturally concluded that all laborers are either hired laborers or what we call slaves. And further, it is assumed that whoever is once a hired laborer is fixed in that condition for life. Now, there is no such relation between capital and labor as assumed, nor is there any such thing as a free man being fixed for life in the condition of a hired laborer. Both these assumptions are false, and all inferences from them are groundless. Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration. Capital has its rights, which are as worthy of protection as any other rights."

Pete Rose Should Be in the Major League Baseball Hall of Fame in Cooperstown

The fact that Pete Rose is not in Major League Baseball’s Hall of Fame is an absolute absurdity. I’ve been watching the Derek Jeter tour and his movement up the all-time hits leaderboard with amazement just like everybody else. Derek Jeter is a phenomenal baseball player and a hitting machine.

But let's just put Jeter's accomplishments in perspective. Jeter just passed Honus Wagner for sixth place on the all-time hits list. The players above him on the list are Tris Speaker (5th all time); Stan Musial (4th all time); Hank Aaron (3rd all time); Ty Cobb (2nd all time); and - yes, you guessed it, Pete Rose (1st all time).

Fireworks went off when Jeter passed Honus Wagner and there was not a media outlet in the United States that was not leading with the story (except for a few that were talking about Johnny Manziel). Jeter is everyone's sweetheart and there has been a lot of talk recently that he may be a unanimous selection to the baseball hall of fame when he is eligible. That, despite the fact that he has no chance of moving into fifth place on the all time hit lists. But, Pete Rose, who is in first place all time is still not it and that's a damn shame.

Considering the things that modern day athletes get in trouble for, it seems like a minor infraction for a baseball player or manager to bet on games. Would it be unfair for a race horse owner to bet on his horse to win or on another horse race? Maybe it's just that I don't see gambling as such a bad thing. Apparently, neither do the City of Toledo, Ohio; Columbus, Ohio; or Cleveland, Ohio. Or Detroit, Michigan for that matter. All of these cities have thriving casinos. The only reason that they don't allow sports gambling is because of the federal government. For an in depth look at the interplay between state and federal gambling laws look here.

So what really happened with Pete Rose and the commissioner and why does the commissioner of Major League Baseball have such broad power to limit Rose's ability to make a living in the game of baseball? What gives the commissioner this power and why does he choose to use it on Rose for gambling and not to limit all of these modern day players who cheat to win by using steroids and sniffing cocaine in the dug out (remember the 1985 Mets?).

It's been so long that many people do not remember that in Pete Rose's case the court ruled against the commissioner's best interest power. In 1989, after receiving information about Rose's alleged gambling—including on Major League Baseball games, the commissioner at that time (Bart Giamatti) heavy handedly instructed his employee (his chief investigator) to investigate and report on the allegations regarding Rose (Craig F. Arcella, Major League Baseball's Disempowered Commissioner: Judicial Ramifications of the 1994 Restructuring, 97 CoLum. L. REV. 2420, 2430 (1997); Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922). Ted Curtis, In the Best Interests of the Game: The Authority of the Commissioner of Major League Baseball, 5 SETON HALL J. SPORT L. 5, 6 (1995)).

Based on this investigation, which Rose was unrepresented during, the investigator produced a report. The report indicated that Rose had bet on Major League Baseball games and the commissioner told Rose that he would conduct an investigation himself into the allegations based on his best interest authority.

The commissioner then scheduled a hearing to discuss the investigation, but Rose then did the unthinkable. Rose demanded that he receive due process and that the commissioner not act as the judge in his case because the commissioner had already prejudged his guilt. Why should someone have to have his case heard by a biased decision-maker? Now you see the politics involved in this deal. The commissioner refused to recuse himself and Rose filed suit seeking an injunction against the commissioner from having the hearing as scheduled. The court granted Rose a temporary injunction on the basis that the commissioner had prejudged Rose. The dispute was settled between the commissioner and Rose. As part of that agreed upon resolution, the commissioner suspended Rose for life but allowed him to be eligible to apply for reinstatement after one year, and in turn, Rose dropped his lawsuits against the commissioner. The end result for the commissioner was that the lawsuit ended against the commissioner for the authoritarian manner in which he went about investigating Rose. However, the rub that Rose did not foresee was that his part of the settlement would involve the retaliatory acts of continued banishment almost thirty (30) years later.

What is to stop Rose from petitioning the commissioner for reinstatement again and then filing a court action based off of the commissioner's refusal to reinstate him. What causes of action would Rose have based on the denial of reinstatement this many years later? Regardless, it is a travesty of justice that Rose, the all time hits leader, is not treated in the same manner that Jeter is treated - with the respect that is due him. To hell with the commissioner and his best interest power! Pete Rose should be in the Major League Baseball Hall of Fame in Cooperstown.