Anderson v. Ohio Bell Tel. Co. , 2017 Ohio 7318 ( 2017 )

[Cite as Anderson v. Ohio Bell Tel. Co., 2017-Ohio-7318.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104858
JACINDA ANDERSON
PLAINTIFF-APPELLANT
vs.
THE OHIO BELL TELEPHONE COMPANY
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-798525
BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEY FOR APPELLANT
Steven J. Forbes
Norchi Forbes, L.L.C.
23240 Chagrin Blvd., Suite 210
Cleveland, Ohio 44122
ATTORNEYS FOR APPELLEE
Laura Lindner
Littler Mendelson P.C.
111 East Kilbourn Avenue, Suite 1000
Milwaukee, WI 53202
Amy Ryder Wentz
Littler Mendelson P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:
{¶1} Plaintiff-appellant Jacinda Anderson (“Anderson”) appeals from the trial
court’s January 24, 2016 judgment that, in part, granted summary judgment in favor of
defendant-appellee, The Ohio Bell Telephone Company, a.k.a. AT&T (“Ohio Bell”), on
Anderson’s disability discrimination claims. For the reasons that follow, we reverse and
remand.
Background
{¶2} Beginning in August 2005, Anderson worked for Ohio Bell; she had
previously worked for Michigan Bell from 1995 until she transferred to Ohio Bell. In
August 2009, she sought leave of absence for an alleged medical condition. In
November 2009, the company terminated her employment.
{¶3} In 2013, Anderson filed this action against Ohio Bell, alleging that she was
terminated because of a disability and that the company failed to provide her with a
reasonable accommodation for the disability. Ohio Bell answered the complaint and
asserted a fraud counterclaim against Anderson.
{¶4} Both parties filed motions for summary judgment: Anderson filed a motion
for summary judgment on the company’s fraud counterclaim, and Ohio Bell filed a motion
for summary judgment on both Anderson’s complaint and its fraud counterclaim. The
trial court granted Ohio Bell’s motion as it related to Anderson’s complaint, but denied
both parties’ motions as they related to the company’s fraud counterclaim. After the trial
court’s ruling, the telephone company voluntarily dismissed its fraud counterclaim.
Anderson now appeals, and for her sole assignment of error contends that “the trial court
erred by granting summary judgment in favor of Ohio Bell Company and finding as a
matter of law that The Ohio Bell Telephone Company did not discriminate against Jacinda
Anderson based on her disability.”1
Summary judgment standard of review
{¶5} This court’s review of a trial court’s decision on summary judgment is de
novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St. 3d 314, 2002-Ohio-2220,
767 N.E.2d 707, ¶ 24. Summary judgment is appropriate only when the moving party
demonstrates that (1) no genuine issue of material fact exists, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds could come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence most strongly
construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78
Ohio St. 3d 181, 183, 677 N.E.2d 343 (1997).
Ohio Bell’s summary judgment motion
{¶6} In support of its motion for summary judgment, Ohio Bell submitted several
affidavits with accompanying documentation and deposition transcripts, including the
transcript from Anderson’s deposition. It was Ohio Bell’s position that Anderson sought
disability leave based on “knowing misrepresentations.” Specifically, the telephone
1
Because the telephone company dismissed its fraud counterclaim against Anderson, the claim
is not part of this appeal. Therefore, it will only be discussed as is necessary to explain the setting of
the case.
company maintained that it granted her a five-week, short-term disability leave based on
her representations that she was having surgery for carpal tunnel; the leave was for August
5, 2009 through September 14, 2009. According to the company, Anderson neither
scheduled nor had the surgery.
{¶7} When the five-week period expired, Anderson sought additional time, which
the company denied. Anderson appealed the denial. In support of her appeal, Anderson
submitted a letter she and her father drafted, “purportedly bearing the letterhead and
signature of a psychiatrist.” However, Ohio Bell contended that the psychiatrist never
treated Anderson during the relevant time frame, had not even met her at the time the letter
was drafted, and did not write the letter. The “fraudulent” letter from the psychiatrist was
the ground for Ohio Bell’s fraud counterclaim against Anderson.
Anderson’s leave
{¶8} The company’s resource manager, Lashon Borom (“Borom”), averred that
claims for short-term disability are processed by a third-party administrator, Sedgwick
Claims Management Services, which operates as the AT&T Integrated Disability Services
Center (“IDSC”). After being notified of a claim for short-term disability,2 the IDSC
makes a determination, based on the information provided by the employee’s health care
provider, on whether the medical condition qualifies for benefits. After it makes its
determination, the IDSC then notifies the employee in writing as to whether his or her
2
Under the company’s benefits plan, an employee whose absence for his or her own illness for
greater than seven days is eligible for short-term disability benefits.
claim had been approved or denied, and the reason for the determination.
{¶9} Borom averred that Anderson had “three chargeable absences in 2009: July 5 -
July 11, July 19 - July 23, and July 30 - August 3.” After the third absence, the company
was eligible under its disciplinary policy to terminate Anderson, but it “decided to exercise
leniency and * * * give her a final written warning plus 3-day suspension in lieu of
termination.”
{¶10} On August 13, 2009, Borom opened a short-term disability claim for
Anderson because she had been off work for her own illness for eight consecutive days.
On September 15, 2009, the IDSC determined that Anderson was no longer unable to
work and, therefore, that she was not entitled to benefits. In a letter from Borom to
Anderson dated September 16, 2009, Borom advised Anderson that her claim for
short-term disability benefits had been denied and that she had “exhausted [her] FMLA
entitlement for the current 12-month period.” The letter directed Anderson to report to
work on September 23, 2009, and that if she did not, the company would “have no choice
but to assume you are abandoning your job” and it would remove her from the payroll
because of her “voluntary resignation.”
{¶11} The letter further advised that if Anderson required a reasonable
accommodation, she should contact the IDSC, and if she needed help managing a situation
in her personal or work life, she should contact the employee assistance program.
{¶12} Borom averred that Anderson did not contact her or otherwise respond to the
letter, and did not report to work on September 23. Further, the IDSC did not contact
Borom to advise that Anderson had requested a reasonable accommodation. Borom sent
another letter to Anderson, dated October 7, 2009, advising her to return to work by
October 14; Anderson did not return. On October 14, Borom sent another letter to
Anderson advising her to report to work by October 21; again, Anderson did not report.
Another letter, dated October 26 was also sent; the letter stated that Anderson needed to
report to work on November 2, 2009; she did not.
{¶13} As with the first letter, the October letters advised Anderson that failure to
report to work would be deemed abandonment of her job and voluntary resignation; that
she should contact the IDSC for a request for a reasonable accommodation; and that if she
needed help managing a work or personal issue, she should contact the employee
assistance program.
{¶14} Meanwhile in October 2009, Borom emailed an IDSC representative to get
an update on Anderson’s claim. Borom told the representative that Anderson “continues
to say that her doctor is sending medical information because she is not able to come back
to work.” The representative responded that the IDSC had received updated information,
but the “information did not support overturning the denial of this claim. To date, the
claim remains denied from 9/15/09 to her return to work.”
{¶15} After Anderson did not return to work, by letter dated November 5, 2009,
Ohio Bell terminated her employment. Borom averred that before removing Anderson
from the payroll, she contacted the IDSC to determine if Anderson had provided any
additional information and learned that she had not. Borom further averred that neither
the IDSC nor Anderson had ever communicated any medical information about Anderson
to her. According to Borom, at the time the termination decision was made, she had no
knowledge as to what condition Anderson claimed was preventing her from returning to
work.
{¶16} Ohio Bell also submitted an affidavit from Susan HagEstad (“HagEstad”), a
manager for Sedgwick, the company that, as mentioned, was the third-party administrator
of disability benefits for Ohio Bell. HagEstad averred that, although she had access to a
claimant’s records, because of privacy laws, medical information acquired by Sedgwick
was not shared with Ohio Bell agents.
{¶17} According to HagEstad, Anderson called the IDSC on August 18, 2009, and
reported that she was scheduled for hand surgery to treat carpal tunnel syndrome and
arthritis on September 9, 2009. But as of September 14, Sedgwick had not received any
medical documentation that a health condition prevented Anderson from working.
Further, Sedgwick had only received a request from Anderson for time off work; it had not
received a request for a job accommodation.
{¶18} On September 15, 2009, an IDSC claim representative contacted Anderson
by phone and explained that her request for continued benefits beyond September 14 was
denied because there were was no medical documentation substantiating the request.
Anderson was further advised that she could submit medical documentation for additional
review or file an appeal of the denial of benefits.
{¶19} HagEstad averred that on September 23, 2009, Anderson’s supervisor
contacted the IDSC to inquire about whether additional medical records had been received
from any of Anderson’s medical providers. The supervisor was advised that additional
medical information had been received and was pending review.
{¶20} On September 25, 2009, the IDSC reviewed Anderson’s medical records
from a September 8, 2009 appointment with Dr. Nina Njus, an orthopedic surgeon
specializing in the hand. HagEstad averred that the review did not provide a basis to
overturn the denial of benefits, so a claim representative contacted Dr. Njus’s office to see
if it had any additional records for Anderson. The office informed the representative that
it would forward additional records from a September 22, 2009 appointment. The claims
examiner contacted Anderson to explain that, as of that time, the claim for continued
benefits was still denied, but that the IDSC would review additional records from Dr. Njus
to determine if an approval of benefits was warranted.
{¶21} HagEstad averred that Borom contacted the IDSC in early October 2009 and
was advised that additional documentation had been received, but that it did not support
Anderson’s claimed inability to work. Borom again contacted the IDSC later in October
and on November 5, the day Anderson was terminated, and learned that no additional
medical documentation on Anderson had been received.
{¶22} Anderson appealed the IDSC’s decision denying benefits, and submitted
various letters and medical records in support of her appeal. Only one of the documents
— a letter from a psychiatrist, Dr. Kameswara Tatineni — stated that Anderson was
unable to work for the period after September 14, 2009. The IDSC took Dr. Tatineni’s
letter to state a medical opinion that Anderson had been incapacitated since July 2009, and
based on that belief, hired an independent psychiatric medical advisor to review the letter
and interview Dr. Tatineni.
{¶23} Ohio Bell also submitted an affidavit of Kacendra Offord (“Offord”), a
Sedgwick case manager who was assigned to Anderson’s case. Offord averred that
Anderson reported to the IDSC that she was scheduled for hand surgery for carpal tunnel
syndrome and arthritis on September 9, 2009, and based on that representation, Offord
approved Anderson’s claim for short-term disability benefits from early August 2009
through September 14, 2009.
{¶24} Offord averred that she made three requests from Anderson for the name of
her surgeon on the following dates: August 19, August 31 and September 10, 2009.
Anderson did not respond to the first two requests. Anderson responded to the third
request on September 14, 2009 and provided Dr. Njus’s name and number.
{¶25} Offord further averred that Anderson failed to inform the IDSC that she did
not have surgery on September 9. Moreover, as of September 14, Sedgwick had not
received any medical documentation from Anderson that supported her claimed inability to
work, nor had it received a request for a job accommodation; the only request it had
received from Anderson was for time off work.
Anderson’s medical treatment
{¶26} The record demonstrates that on July 14, 2009, Anderson first consulted with
a primary care physician, Dr. Kerwyn Flowers. She told the doctor that she had been
diagnosed with carpal tunnel syndrome approximately seven years prior, and she believed
it had returned. Anderson told Dr. Flowers that she typed as part of her job
responsibilities and that when she did so it caused her pain. The doctor testified that
Anderson did not ask for a work restriction note from her, and that she did not advise
Anderson that she was unable to work. Dr. Flowers recommended that Anderson treat
with an anti-inflammatory and wear a splint.
{¶27} On August 7, 2009, Anderson had a follow-up appointment with Dr.
Flowers. The doctor and Anderson did not discuss whether Anderson was working at
that time. The doctor noted that Anderson had some tingling in her fingertips and
testified that she “kind of” diagnosed her with carpal tunnel syndrome because Anderson
“did test positive for [a sign of the syndrome] and did have some symptoms of carpal
tunnel.” Dr. Flowers recommended that Anderson continue to treat with an
anti-inflammatory and a splint and, further, because she did not seem to be improving, that
she schedule an appointment with Dr. Nina Njus, an orthopedic surgeon who specialized
in the hand. She also referred her for physical therapy.
{¶28} Anderson first visited with Dr. Njus on September 8, 2009; her chief
complaint was carpal tunnel syndrome on both sides. After her examination of
Anderson, Dr. Njus wrote a letter to Dr. Flowers, and told her that she believed Anderson
had a “low grade autoimmune reaction to strep.” Dr. Njus ordered various tests and
blood work, and told Anderson that she wanted to see her for a follow-up appointment
once the blood work and tests and results were completed. The doctor did not place
Anderson on any restrictions, work or otherwise. She did not recommend surgery for
Anderson; rather, her recommendation was “skillful neglect,” which meant just leaving the
areas Anderson complained about alone for the time being.
{¶29} Anderson saw Dr. Njus twice after her initial visit — on September 22, and
October 7, 2009. The doctor was unable to find what was causing Anderson’s pain and,
therefore, she testified about her impressions after the October visit as follows: “I could
not tell her if she would be able to return to her current employment because I [did] not
have a definite diagnosis as to what was causing her upper extremity pain.” The doctor
advised Anderson to try physical therapy, and if that was not successful, she could then
consider an epidural steroid or surgery.
{¶30} In late August 2009, Anderson sought a second opinion from Dr. George
Balis, an orthopedic surgeon at the Cleveland Clinic. After his examination of Anderson,
Dr. Balis concluded that she “probably had mild carpal tunnel syndrome,” and there “may
be some underlying carpal tunnel syndrome.” He also noted that she had a mass on her
left wrist, which he believed was possibly a ganglion cyst. Dr. Balis testified that
sometimes the cysts can get large and be painful, but that generally there is no treatment
for them other than aspirating them to drain the fluid or surgically removing them. The
doctor switched Anderson’s anti-inflammatory medicine, ordered lab tests, blood work and
an MRI of her wrist.
{¶31} In late October 2009, Anderson had a follow-up appointment with Dr. Balis.
Her test results were “not completely” within normal range, “but close.” The doctor
testified that one test — which was not administered as a diagnostic test, but rather was
administered as a general test — indicated that Anderson had inflammation in her body.
Dr. Balis further testified that, based on the tests, Anderson did not have significant carpal
tunnel syndrome, but he did not rule out that she may have had mild carpal tunnel
syndrome. He recommended that she see a rheumatologist, who could explore whether
she had fibromyalgia. He did not place Anderson on any restrictions, work or otherwise.
{¶32} As mentioned, Dr. Tatineni was a psychiatrist who saw Anderson.
Anderson’s first appointment with him was on January 18, 2010, after she had been
terminated from Ohio Bell. Anderson went to the doctor for recommendations for coping
with her severe pain and to seek a plan for rehabilitation. Dr. Tatineni provisionally
diagnosed Anderson with severe major depression and post-traumatic stress disorder.
Anderson saw Tatineni a second time and was admitted to the hospital in late January
2010; she sought to be voluntarily admitted on an emergency basis. She told the doctor
that she was overwhelmed as a result of losing her job and was having suicidal thoughts.
{¶33} Dr. Tatineni admitted that Anderson wrote the letter (that was the basis of
Ohio Bell’s fraud counterclaim) and he signed off on it, but testified that the letter
accurately reflected his medical opinion. The letter stated, in part, that Anderson had
been “ill and incapacitated since July 2009.” Dr. Tatineni admitted that Anderson had
not been a patient of his in July 2009, but testified that the conclusion was based on the
information Anderson described to him.
Anderson’s Opposition to Ohio Bell’s Motion
{¶34} In opposition to the telephone company’s summary judgment motion,
Anderson relied on her own deposition testimony and the deposition testimonies of the
doctors with whom she treated.
{¶35} Anderson testified that she began experiencing chronic and severe pain in her
hands and wrists, and after she got a carpal tunnel syndrome diagnosis from Dr. Flowers,
Anderson applied for disability leave, and submitted her medical records to Sedgwick.
Ohio Bell then approved her leave through September 14, 2009. According to Anderson,
the pain greatly affected her life — she was unable to sleep, unable to care for her child,
and was depressed.
{¶36} On September 8, 2009, Anderson saw Dr. Njus, as recommended by Dr.
Flowers. Dr. Njus, however, did not believe that carpal tunnel syndrome explained the
pain Anderson was experiencing and, therefore, did not recommend surgery. On
September 11, 2009, Anderson signed a release relative to her medical records from her
visit with Dr. Njus so that they could be provided to Ohio Bell. Before Ohio Bell
received the records from Dr. Njus, Anderson received a letter from the company, dated
September 16, 2009, stating that it would assume that she had abandoned her job if she did
not return to work by September 23, 2009. According to Anderson, Ohio Bell issued the
letter before speaking with Dr. Njus or reviewing her records.
{¶37} Dr. Njus’s records were submitted to Ohio Bell on September 21, 2009, and
they stated that Anderson was experiencing severe pain in her wrists and had difficulty
sleeping because of the pain. Dr. Njus could not explain the cause of the pain, however.
The doctor wrote in an October 7, 2009 letter that she informed Anderson that she “could
not tell her if she would be able to return to her current employment because [she did] not
have a definitive diagnosis as to what [was] causing her upper extremity pain.” The
doctor continued that “[i]f therapy does not quiet her down, we will get a cervical MRI to
see if she has a broad-based disc of something of that sort that is surgically amenable to
treatment or consider possibly trying an epidural steroid.”
{¶38} According to Anderson, she called Ohio Bell five times during the time
spanning October 12 to October 22, 2009, to request an expedited review of her records.
On October 14, 2009, Anderson wrote to her union to inform it that she was not
abandoning her job. Borom, the telephone company’s resource manager, received a copy
of the letter.
{¶39} Further, on October 22, she wrote to Borom. In the letter, Anderson told
Borom that she had a 15-year career with the telephone company, she was committed to
her job, but because of her medical condition, she was unable to function at that time.
She stated that she “needed a reasonable accommodation, which is a request for a time
extension to recover.” Anderson further stated in the letter that if granted an extension of
time, she would continue treatment with a physical therapist to “further analyze and assist
[her] with further accommodations to be able to perform [her] essential job functions.”
Anderson concluded the letter by saying that she was neither abandoning her job nor
voluntarily resigning.
Analysis
{¶40} In this appeal, we consider whether the trial court erred by granting summary
judgment in favor of Ohio Bell on Anderson’s disability discrimination claims.
{¶41} R.C. 4112.02(A) prohibits discrimination based on disabilities as follows:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of * * * disability * * * 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.
{¶42} The Ohio Supreme Court has explained, “we have determined that federal
case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title
42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter
4112.” Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St. 3d 607, 609-610,
575 N.E.2d 1164 (1991); see also Martin v. Barnesville Exempted Village School Dist. Bd.
of Edn., 209 F.3d 931, 934, fn.2 (6th Cir.2000) (“Both federal and Ohio disability
discrimination actions require the same analysis.”).
{¶43} In pursuing an employment discrimination claim, a plaintiff must first
establish a prima facie case of discrimination. Greer-Burger v. Temesi, 116 Ohio St. 3d
324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14, citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the plaintiff does, the burden
then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the
adverse employment action. Id. Once the employer does, the burden again shifts to the
plaintiff to show “that the proffered reason was not the true reason” for the adverse
employment action. Id., quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
{¶44} A prima facie case of discriminatory disability discharge requires a plaintiff
to show (1) he or she is disabled, (2) he or she was otherwise qualified for the position,
with or without reasonable accommodation, (3) he or she suffered an adverse action, (4)
the employer knew or had reason to know of his or her disability, and (5) he or she was
replaced or the job remained open. Rosebrough v. Buckeye Valley High School, 690 F.3d
427, 431 (6th Cir.2012), citing Plant v. Morton Interntl. Inc., 212 F.3d 929, 936 (6th
Cir.2000).
{¶45} Regarding Anderson’s claim that Ohio Bell discriminated against her by
failing to reasonably accommodate her alleged disability, under Ohio law
(1) An employer must make reasonable accommodation to the disability of
an employee or applicant, unless the employer can demonstrate that such an
accommodation would impose an undue hardship on the conduct of the
employer’s business.
(2) Accommodations may take the form, for example, of providing access to
the job, job restructuring, acquisition or modification of equipment or
devices or a combination of any of these. Job restructuring may consist,
among other things, of realignment of duties, revision of job descriptions or
modified and part-time work schedules.
Ohio Adm.Code 4112-5-08(E).
{¶46} Thus, both of Anderson’s claims — discriminatory disability discharge and
failure to reasonably accommodate her alleged disability — first require that Anderson
demonstrate she was disabled. The trial court found that she “did not produce evidence
that created a factual dispute on the critical issue [of] whether at the time her employer
was responding to her absences she had a disability within the meaning of Ohio law.”
We disagree.
{¶47} “Ohio disability discrimination law is similar to the Federal Americans with
Disabilities Act (‘ADA’), and therefore Ohio courts may seek guidance in the
interpretation of the Ohio discrimination law from regulations and cases that interpret the
ADA.” Ames v. Ohio Dept. of Rehab. & Corr., 23 N.E.3d 162, 2014-Ohio-4774, ¶ 26
(10th Dist.). A disability is defined as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual, [and includes] being regarded as
having such an impairment.” 42 U.S.C. 12102(1)(A),(C). “Major life activities” include
“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. 12102(2)(A). A plaintiff may prove
disability discrimination with either direct or indirect evidence. Markham v. Earle M.
Jorgensen Co., 138 Ohio App. 3d 484, 495, 741 N.E.2d 618 (8th Dist.2000).
{¶48} The trial court, citing Rhoads v. Bd. of Edn., 103 Fed. Appx. 888, 893 (6th
Cir.2000), held that a plaintiff must provide medical evidence to prove a disability and that
Anderson failed to do so. Upon review, we find Rhoads distinguishable from this case.
{¶49} In Rhoads, the plaintiff had been a bus driver for a school district, and as
required to by law, had submitted to a random drug test; she failed the test. After
learning that she was going to be terminated, she resigned from her position. Thereafter,
she attempted numerous times to get her job back, to no avail. She filed an action against
the board of education claiming, among other things, that it had discriminated against her
because of a disability, that is, substance abuse. The district court granted summary
judgment in favor of the board and the plaintiff appealed.
{¶50} In addressing whether the plaintiff was disabled, the Sixth Circuit
acknowledged that disability discrimination can be proved with either direct or indirect
evidence. Id. at 891. Thus, “[a]scertaining whether a plaintiff is disabled requires an
individualized inquiry into her particular condition and its affect on her ability to perform a
major life activity.” Id. at 892. “The determination of whether an individual has a
disability is not necessarily based on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on the life of the individual.” (Citation
omitted.) Id.
{¶51} The Sixth Circuit recognized that drug addiction is a “physical or mental
impairment,” but stated that “[a] plaintiff cannot prove that her drug use amounts to a
disabling addiction merely by providing self-serving, conclusory statements that her drug
use substantially limits her ability to perform a major life activity.” Id. at 893, citing
Cervella v. Lake Cty. Bd. of Commrs., 11th Dist. Lake No. 95-L-094, 1996 Ohio App.
LEXIS 2449, 3 (June 14, 1996). “Rather, ‘at a minium, medical evidence must be
offered to substantiate the claimed [disability].’” Rhoads at id., quoting Cervella at id.
{¶52} In Rhoads, the plaintiff “produced scant medical evidence that she suffered
from a drug addiction.” Id. Rather, she relied on her own assertions that she began
using drugs at age 16, that she sometimes smoked marijuana all day long, and that she
believed that she was a drug addict.
{¶53} The Sixth Circuit found that “even assuming [the plaintiff] could show that
she once suffered from a drug addiction, she presents no evidence indicating to what
extent the addiction affected her ability to perform a major life function.” Id. She,
therefore, “failed to bring forth evidence adequate to prove that she was actually disabled
when the District refused to hire her or that she had a record of a disability at that time * *
* [or] that shows the District regarded her drug use as a disability.” Id.
{¶54} The court reasoned that
[a]lthough the random drug test certainly put the District on notice that she
used controlled substances, there is no indication that the District regarded
[her] as a drug addict or that it was aware of the extent of her use of
marijuana. Nor does any evidence suggest that the District believed her
drug use substantially limited her ability to perform a major life activity.
Id.3
3
Medical evidence is not the only way a plaintiff can prove a disability. Specifically, being
disabled for purposes of a disability discrimination claim includes being regarded as having a
disability. “An individual is regarded as having a disability if the individual: ‘(1) has a physical or
mental impairment that does not substantially limit major life activities but is treated by a covered
entity as constituting such limitation; (2) has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward such impairment; or (3) has [no
physical or mental impairment] but is treated by a covered entity as having a substantially limiting
impairment.’” Fitzmaurice v. Great Lakes Computer Corp., 155 Ohio App. 3d 724, 2004-Ohio-235,
803 N.E.2d 854, ¶ 20 (8th Dist.), quoting Bush v. Dictaphone Corp., 10th Dist. Franklin No.
00AP-1117, 2003-Ohio-883, ¶ 40-43.
{¶55} Here, in contrast to the plaintiff in Rhoads, Anderson did present medical
evidence; we find the medical evidence in the record created a genuine issue of material
fact as to whether she was disabled. It is inconsequential that she never received a
definitive diagnosis. As mentioned, “[t]he determination of whether an individual has a
disability is not necessarily based on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on the life of the individual.” Id. at 892.
{¶56} The record establishes that at the time of her leave from Ohio Bell, Anderson
was experiencing severe pain in her hands and wrists. She treated with several doctors
who were unable to definitively find the cause of her pain. But Anderson testified that
the pain left her depressed, unable to care for her child, unable to sleep and, often times,
bedridden. Dr. Tatineni’s testimony aside (Anderson did not treat with him until after she
was terminated), there is medical evidence in the record from the time she was granted
medical leave from her job and was trying to find out what condition she had that
Anderson had a history of depression. There was also medical testimony that depression
can cause physical symptoms and pain. This evidence created a genuine issue of material
fact as to whether Anderson was disabled.
{¶57} We note Ohio Bell’s contention throughout this litigation that Anderson
misrepresented to the company that she was scheduled for hand surgery. The record does
support the company’s contention of her misrepresentation — Anderson was not
scheduled for surgery at the time she sought short-term disability leave or at any other
relevant time. Even if there was a misrepresentation, that misrepresentation does not
diminish other evidence in the record, as detailed above, which creates a genuine issue of
material fact as to whether Anderson was disabled.
{¶58} In light of the above, the trial court erred by granting summary judgment in
favor of Ohio Bell on Anderson’s disability discrimination claims.
{¶59} Judgment reversed; case remanded for further proceedings.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR