Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Wednesday, March 11, 2009

LaNisa Allen v. Totes/Isotoner Corp., Case no. 2008-0845
12th District Court of Appeals (Butler County)

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Nancy Rogers], in his Official Capacity, Case nos. 2008-0991 and 2008-0992
12th District Court of Appeals (Warren County)

State of Ohio v. Richard E. Joseph, Case nos. 2008-0711 and 2008-1005
3rd District Court of Appeals (Allen County)


Did Firing for Extended Break to Use Breast Pump Violate State Law that Bars Discrimination Based on Pregnancy?

LaNisa Allen v. Totes/Isotoner Corp., Case no. 2008-0845
12th District Court of Appeals (Butler County)

ISSUE:  Does a state civil rights statute that prohibits workplace discrimination “because of or on the basis of pregnancy” or “any illness arising out of and occurring during the course of pregnancy, childbirth or related medical conditions” require an employer to allow a woman who is breastfeeding to take unscheduled breaks to use a breast pump to express milk at a time when it is necessary for her to do so to relieve physical pain?

In this case, LaNisa Allen was hired by a contract employment agency to work as a general laborer at a Totes/Isotoner Corporation warehouse  in West Chester. The position was advertised as temporary, with the possibility of becoming permanent after 90 days. At the end of a new employee orientation session, Allen told the agency supervisor that she was still breastfeeding her five month old child, and would need to pump her breasts to empty them of milk during the work day. Allen asked that the company identify a private area at the warehouse with an electrical outlet where she could perform this activity. The supervisor contacted Allen at home later that day and told her that she had been assigned a 6 a.m. to 2:30 p.m. shift and could pump her breasts in the women’s restroom during her lunch break, which was scheduled for 11 a.m.

After starting work at the plant, Allen, whose practice was to breastfeed her baby just before leaving for work at 5:30 a.m. and whose breasts subsequently re-filled with milk in 3-4 hours, found that her 10-minute break at 8 a.m. was too short to allow her to use the pump, but that waiting until her 11 a.m. lunch period caused her to become engorged with milk to the point of physical pain and leakage.  After several days of this experience, Allen began taking an unscheduled restroom break at approximately 10 a.m. each day to use the breast pump. 

Approximately two weeks after she began taking these breaks, the agency supervisor she had spoken to at orientation came into the restroom and told Allen she was violating work rules by not waiting until her 11 a.m. lunch break to use the breast pump. Later that day Allen met with the Totes/Isotoner supervisor for her work area and asked if her 8 a.m. break could be extended from 10 to 15 minutes to allow her to use the breast pump at that time.  After checking with higher management that afternoon, the Totes supervisor called Allen into her office at the end of her shift and told her that the company no longer needed her services.  Allen asked if her firing was based on her use of the breast pump, but received no reply.

Allen filed suit in the Butler County Court of Common Pleas, alleging that Totes had fired her because she was lactating, and that action constituted illegal discrimination under provisions of Ohio’s civil rights laws that bar discrimination based on gender and discrimination based on any medical condition arising from pregnancy or childbirth. The trial court granted summary judgment in favor of Totes, holding that Allen’s extra break time was not a necessary result of pregnancy or childbirth, because women who give birth but choose not to breastfeed their child are no longer lactating five months after giving birth. The court then cited the U.S. Sixth Circuit Court of Appeals’ 2004 decision in DeRungs v. Walmart Stores Inc., which it interpreted as holding that “discrimination based on breastfeeding does not constitute gender discrimination.”

Allen appealed the dismissal of her claims to the 12th District Court of Appeals. The 12th District affirmed the action of the trial court, holding that the issue of whether Allen’s lactation was or wasn’t a medical condition arising from pregnancy or childbirth was irrelevant, because the evidence showed that her firing was not based on her need to pump her breasts, but on the fact that she violated workplace rules by taking unauthorized breaks during her work shift. Allen sought and was granted Supreme Court review of the trial and appellate court rulings.

Attorneys for Allen argue that the DeRungs case cited by the trial court dealt with alleged discrimination against three non-employee customers who were barred from breastfeeding their babies in a public accommodation  such as a store or restaurant. They go on to cite language in the DeRungs decision stating the Sixth Circuit’s opinion that similar discrimination based on breastfeeding would constitute illegal gender discrimination if it took place in the context of an employer-employee workplace relationship.  They point out that other Totes employees were not required to seek advance permission to take one or more “extra” restroom breaks during a workday when they felt it necessary to relieve bodily discomforts including menstrual symptoms or a need for frequent urination. Accordingly, they say, Allen was treated differently than other employees when she was fired for leaving her work station to relieve significant physical discomfort arising from her lactation, a medical condition that is exclusively caused by pregnancy and is only experienced by pregnant and post-partum women.

Attorneys for Totes/Isotoner cite multiple court decisions that they say have held that an employer’s failure to extend additional leave or otherwise change workplace policies to accommodate women to facilitate the  breastfeeding of infants was not discriminatory because breastfeeding does not fall within the definitions of an “illness” or  “medical condition” arising from pregnancy or childbirth. 

Contacts
John H. Forg III, 513.424.1823, for LaNisa Allen.

Timothy P. Reilly 513.381.2838, for Totes/Isotoner Corp.

Return to top

Is Denial of Appointed Counsel for Sex Offender’s Reclassification Hearing a ‘Final, Appealable Order?’

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Nancy Rogers], in his Official Capacity, Case nos. 2008-0991 and 2008-0992
12th District Court of Appeals (Warren County)

ISSUE: Is a trial court’s denial of a request for appointed legal counsel by an indigent sex offender who is appealing his reclassification under S.B. 10 a “final, appealable order” subject to immediate review by a court of appeals?

BACKGROUND:  In this case, Roman Chojnacki was convicted in 2006 on three counts of unlawful sexual activity with a minor.  He was sentenced to 12 years in prison, and is currently incarcerated at the Warren Correctional Institution in Warren County. Based on the facts of his case and psychiatric evaluations, Chojnacki was assessed to present a relatively low risk for future offenses and was therefore classified as a “sexually oriented offender,” the category which imposed the least restrictive post-release reporting and registration requirements under the state laws in effect at the time of his conviction.

Under S.B. 10, enacted by the General Assembly in 2007 and effective Jan. 1, 2008, persons previously convicted of sexually related crimes and placed in various categories of sex offenders became subject to reclassification under a new set of offender categories. As a result of these changes, Chojnacki and other persons previously classified as sexually oriented offenders were reclassified as “Tier II” offenders who are subject to significantly more restrictive post-release requirements, including mandatory registration with local police authorities every six months for 25 years.

After receiving a letter notifying him of his reclassification, Chojnacki filed a petition in the Warren County Court of Common Pleas contesting the reclassification, and a motion asking the court to appoint legal counsel to represent him in that action.  The trial court denied the request for appointed counsel.  Chojnacki attempted to appeal that ruling to the 12th District Court of Appeals, however the 12th District held that it did not have jurisdiction to review his claim because the trial court’s ruling denying appointed counsel did not qualify as  a “final appealable order.”  The court of appeals subsequently certified that its denial of jurisdiction was in conflict with a ruling by the 2nd District, which had accepted jurisdiction and reviewed the issue of appointed counsel in a similar case.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts. 

Attorneys for Chojnacki argue that the trial court’s denial of his petition for appointed counsel meets the statutory requirements of a final appealable order because the appeal of a sex-offender reclassification 1) “affects a substantial right” of the offender (i.e. his right to be free of retroactive changes to his post-release registration and reporting requirements); and 2) the appeal process provided for in S.B. 10 meets the definition of a “special proceeding” in which an offender seeks a “provisional remedy,” and is therefore subject to immediate appellate review.

Attorneys for the state respond that the classification or reclassification of sex offenders, and any appeal arising from that process, does not invoke an offender’s substantive constitutional right to legal counsel because such proceedings are civil rather than criminal in nature.  They point out that the issue Chojnacki has raised on appeal is not whether his reclassification was constitutional, but rather the narrow issue of whether the denial of appointed counsel in a S.B. 10 appeal proceeding is immediately appealable, or must wait for appellate review until the trial court has ruled on the underlying appeal of the reclassification.

Contacts
Sarah M. Schregardus, 614.466.5394, for Roman Chojnacki.

Christopher P. Conomy, 614.728.9474, for the state and Warren County prosecutor’s office.

Return to top

May Court Impose Costs in Sentencing Entry When Costs Not Mentioned at Time Sentence Pronounced?

State of Ohio v. Richard E. Joseph, Case nos. 2008-0711 and 2008-1005
3rd District Court of Appeals (Allen County)

ISSUE: When a trial court judge fails to include an assessment of court costs against a defendant at the time sentence is pronounced with the defendant in the courtroom, may the court later validly impose costs by including them in its entry journalizing the defendant’s sentence?

BACKGROUND: Richard Joseph was convicted of aggravated murder and sentenced to death in 1991.  Following extended state and federal appeal proceedings, his conviction was affirmed but his death sentence was set aside by a federal district court in 2004. The district court ordered that he be resentenced to a term of life imprisonment with eligibility for parole after 20 years. That ruling was subsequently affirmed by the U.S. Sixth Circuit Court of Appeals.

In 2007, the Allen County Court of Common Pleas conducted a new sentencing hearing and resentenced Joseph to life with parole eligibility after 20 years. At the time sentence was pronounced with Joseph in the courtroom, the judge did not state that he would also be subject to an assessment of court costs.  In its journal entry recording Joseph’s sentence, the court included an assessment of court costs.

Joseph subsequently appealed the trial court’s sentence to the 3rd District Court of Appeals.  Among other allegations of error, he argued that because the court’s sentencing entry included a punishment that had not been imposed while he was physically present in court (i.e., court costs), his sentence as recorded was unconstitutional and therefore void, and he must be granted a new resentencing hearing.  The court of appeals overruled all of Joseph’s assignments of error, but certified that its ruling upholding the validity of his sentence was in conflict with decisions on the same issue from several other appellate districts. The Supreme Court has agreed to review the case to resolve that conflict.

Attorneys for Joseph assert that a criminal defendant has a constitutional right to be present at every stage of his trial, including sentencing, and that the trial court’s imposition of costs outside of Joseph’s presence violated his right to be present. They point out that, while Ohio courts are required by law to impose court costs against every defendant found guilty in a criminal case, another section state law gives the defendant a right to request at his sentencing hearing that costs against him be waived on the basis that he is indigent and unable to pay them.  Because the trial court in Joseph’s case made no mention of court costs when it pronounced sentence, they argue, Joseph was deprived of his right to seek a waiver of those costs at the only time he is permitted to enter such a request, which is at the sentencing hearing.  They argue further that, because state law requires court costs to be imposed as part of every criminal sentence, and the sentence pronounced on him did not include costs, the trial court’s sentence in his case was contrary to law, and therefore void, requiring that he be granted an entire new sentencing hearing.

Attorneys for the state acknowledge that the trial court’s failure to assess costs against Joseph while he was present in court for sentencing was contrary to the requirement in Ohio CrimR. 43(A) that every criminal sentence must be imposed in open court with the defendant present. They argue that the Court can and should hold either: 1) the trial court in Joseph’s case “substantially complied” with the rule by pronouncing his prison term while Joseph was present and adding costs in its journal entry; or 2)  that failure to mention costs was “harmless error” that does not require voiding a defendant’s sentence and conducting an entire new sentencing hearing.  In light of the fact that imposition of costs is mandatory, they contend that the court’s technical error in not mentioning costs while Joseph was physically present was not in any way prejudicial to Joseph, and should therefore be waived as harmless.

Contacts
Randall L. Porter, 614.466.5394, for Richard Joseph.

Jana E. Emerick, 419.222.2462, for the state and Allen County prosecutor’s office.

Return to top

These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.