Coco v. Beyesly's Restaurant ( 2021 )

[Cite as Coco v. Beyesly's Restaurant, 2021-Ohio-4201.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JASON COCO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellant : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
:
BEYESLY'S RESTAURANT, : Case No. 2021CA00059
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2020
CV 00950
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 30, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SEAN H. SOBEL ROBERT J. TSCHOLL
Sobel, Wade & Mapley, LLC JENNIFER L. ARNOLD
55 Erieview Plaza, Suite 370 400 South Main Street
Cleveland, Ohio 44114 North Canton, Ohio 44720
Stark County, Case No. 2021CA00059 2
Baldwin, P.J.
{¶1} Plaintiff-appellant Jason Coco appeals from the April 29, 2021 Judgment
Entry of the Stark County Court of Common Pleas granting the Motion for Summary
Judgment filed by defendant-appellee Beyesly’s Restaurant.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee Beyesly’s Restaurant is a small family run business with 5 to 7
employees. The owners of Beyesly’s are Bill and Chris Maronitis and Maria Beyes. The
employees are split amongst grill cooks, servers and kitchen help. Because it is a small
business, each employee is important to the operation of the restaurant.
{¶3} Bill Maronitis, who was in his 70’s at the time, does the food preparation in
the kitchen and worked closely with appellant Jason Coco who was hired by appellee in
March of 2017. He was hired as a dishwasher and kitchen employee as well as to perform
other tasks assigned by the owners. Appellant suffers from multiple sclerosis (MS), a
nervous system disease that affects the brain and spinal cord.
{¶4} In November of 2017, appellant, who experienced a flare up of his MS on
November 29, 2017, fell and experienced temporary paralysis. Appellant notified appellee
that he would not be able to work and told appellee that he would be able to work in a few
days. In late December of 2017, appellant contacted appellee and indicated that he was
able to return to work. Appellant, however, was informed that he had been replaced.
{¶5} On June 30, 2020, appellant filed a complaint against appellee alleging that
he had been discriminated against due to his disability. Appellee filed an answer to the
complaint on July 20, 2020. On March 3, 2021, appellee filed a Motion for Summary
Stark County, Case No. 2021CA00059 3
Judgment. Appellant filed a brief in opposition to the same on March 31, 2021 and
appellee filed a reply on April 5, 2021.
{¶6} The trial court, as memorialized in a Judgment Entry filed on April 29, 2021,
granted appellee’s Motion for Summary Judgment.
{¶7} Appellant now appeals, raising the following assignment of error on appeal:
{¶8} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
IN FAVOR OF BEYESLY’S RESTAURANT AND FINDING AS A MATTER OF LAW
THAT BEYESLY’S RESTAURANT DID NOT DISCRIMINATE AGAINST JASON COCO
BASED ON HIS DISABILITY.”
I
{¶9} Appellant, in his sole assignment of error, argues that the trial court erred in
granting summary judgment in favor of appellee. We disagree.
{¶10} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 448, 663 N.E.2d 639:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. State ex rel.
Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
Stark County, Case No. 2021CA00059 4
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d
466, 472, 364 N.E.2d 267, 274.
{¶11} As an appellate court reviewing summary judgment motions, we must stand
in the shoes of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506
N.E.2d 212 (1987). As explained by this court in Leech v. Schumaker, 5th Dist. Richland
No. 15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex
Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The standard for granting summary judgment is delineated in
Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: “* * * a party seeking
summary judgment, on the ground that the nonmoving party cannot prove
its case, bears the initial burden of informing the trial court of the basis for
the motion, and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact on the essential element(s) of
the nonmoving party's claims. The moving party cannot discharge its initial
burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of the type listed
in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has
no evidence to support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary judgment must be
Stark County, Case No. 2021CA00059 5
denied. However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if appropriate, shall
be entered against the nonmoving party. The record on summary judgment
must be viewed in the light most favorable to the opposing party. Williams
v. First United Church of Christ (1974), 37 Ohio St.2d 150.
{¶12} As is stated above, appellant contends that the trial court erred in granting
summary judgment in favor of appellee on appellant’s disability discrimination claim.
{¶13} R.C. 4112.02(A) states that it is an unlawful discriminatory practice “[f]or
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.” 4112.01(A)(13) defines a disability as meaning “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.”
{¶14} In order to survive a summary judgment on a statutory claim for disability-
discrimination pursuant to R.C. 4112.02(A), the appellant must set forth a prima facia
case of disability discrimination by showing (1) that appellant was disabled, (2) that his
employer took adverse employment action motivated at least in part by his disability, and
Stark County, Case No. 2021CA00059 6
(3) that appellant, even with his disability, can safely and substantially perform the
essential functions of his job with or without reasonable accommodation. See Columbus
Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204 (1998). Where a
plaintiff “establishes a prima facie case of disability discrimination, the burden shifts to the
employer to set forth some legitimate, nondiscriminatory reason for the action taken.”
Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 2006-Ohio-6137, 863 N.E.2d 677, ¶
97, citing Hood v. Diamond Prods, Inc. , 74 Ohio St.3d 298, 302, 1996-Ohio-259, 658
N.E.2d 738. “[I]f the employer establishes a nondiscriminatory reason for the action taken,
then the employee must demonstrate that the employer's stated reason was a pretext for
impermissible discrimination.” Id.{¶15} We analyze appellant’s disability discrimination claim under Ohio law in the
same manner as disability discrimination claims under the federal Americans with
Disabilities Act (hereinafter “ADA”). Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio
St.3d 569, 570 797 N.E.2d 204 (1998). Stated differently, because the federal and Ohio
laws are similar, we look to the federal cases interpreting the ADA in our interpretation of
Ohio law. Id. at 573.
{¶16} Federal courts hold that “[a]n employee who cannot meet the attendance
requirements of the job at issue cannot be considered a ‘qualified’ individual protected by
the ADA.” Gantt v. Wilson Sporting Goods Co. ,143 F.3d 1042, 1047 (6th Cir., 1998),
citing Tyndall v. National Educ. Ctrs.Inc., 31 F.3d 209 (4th Cir., 1994).
{¶17} In the case sub judice, appellant claimed, although he never produced
documentation of this condition, that he had multiple sclerosis. Multiple sclerosis meets
Stark County, Case No. 2021CA00059 7
the definition of “disability” since it is a physical impairment that substantially limits one or
more major life activities.
{¶18} However, we find that appellant failed to set forth a prima facia case of
disability discrimination because appellant was not able to adequately perform the
essential functions of his employment with appellee. Regular attendance and ability to
perform the work are an essential function of any position. Larkins v. Ciba Vision Corp.,
858 F.Supp. 1572 (N.D.Ga.1994),. Pfleger v. BP Am., Inc., 8th Dist. No. 68874, 1996 WL
355290, at 6 (June 27, 1996).
{¶19} In the case sub judice, there was evidence before the trial court that
appellant was absent from work a substantial amount of time. Maria Beyes, in her affidavit
that was attached to appellee’s Motion for Summary Judgment, stated, in relevant part,
as follows:
{¶20} 1. My name is Maria Beyes and I am one of the family members who is
employed at Beyesly’s Restaurant.
{¶21} 2. I am making this affidavit of my personal knowledge from my employment
at Beyesly’s and my involvement with Jason Coco during his employment at Beyesly’s
during 2017. I maintain employment and attendance records in the normal course of
business and have created an attendance matrix for Coco, which is attached as Exhibit
A to my affidavit.
{¶22} 3. I made the attendance matrix by reviewing Coco’s time records, which
are attached as Exhibit B to this affidavit.
{¶23} 4. These time records are kept in the normal course of business by
Beyesly’s and maintained as a business record.
Stark County, Case No. 2021CA00059 8
{¶24} 5. A summary review of Coco’s attendance and ability to do the job when
he did show up for work can be summarized as follows:
a) Form March through December 2017, he was scheduled to work two-
hundred and three (203) days.
b) He worked as scheduled on one hundred sixty-three (163) of those days.
c) He was late on twenty-two (22) of the days that he did show up for work.
d) He reported off on fifty-four (54) of the days that he was scheduled to
work.
e) He reported off on 26.6% of the days that he was scheduled to work.
That does not include the days that he reported late to work.
f) By not showing up to work for 26.6% of the days that he was scheduled
to work, he created a great hardship for Beyesly’s.
g) He was hired to be a dishwasher. When he didn’t show up for work, my
79-year-old father, who normally prepares the food, had to on numerous
occasions fill in for him and wash the dishes.
h) At other times, when he gave us notice of his report off, I had to attempt
to replace him. In any event, his failing to work as scheduled was a major
problem for Beyesly’s operations.
i) When he did come to work, on sixty (60) or seventy (70) occasions out
of a hundred sixty-three (163) days that he did comes to work, he claimed
that he could not do his job because of his medical condition, which he
claimed was multiple sclerosis.
Stark County, Case No. 2021CA00059 9
{¶25} As noted by the trial court in its decision, appellant “was absent for about
26% of his scheduled days and on approximately half of the days he did appear for work,
he claimed that he was unable to perform his job requirements.” Moreover, washing and
putting away dishes are essential functions of appellant’s job as a dishwasher and must
be performed in person. Appellant’s absences and his inability to perform such functions
caused a hardship to appellee as a small business. There was evidence that Bill Maronitis
was often forced to perform these functions. Maronitis, in his affidavit, stated that
appellant’s attendance was terrible and that he frequently had to interrupt his food
preparation to wash dishes.
{¶26} Appellant, in his brief, argues that he presented direct evidence of
discrimination in the form of a recorded meeting between appellant, Beyes and Maronitis
that took place during January of 2018. Appellant notes that during the conversation,
which was transcribed and is part of the record in this case, Maronitis and Maria Beyes
voiced concerns about potential liability if appellant were to fall at work, especially during
the winter when the parking lot was salted and slippery. However, during the same
conversation, Maronitis indicated that they never knew when appellant was going to be
off of work. During the conversation, Larry Beyes, Maria’s husband, stated at page 9 that
“[t]he job requires somebody’s going to be here every single time and when you are not
confident that that job is going to be filled every single day, how can you run your
business? You can’t that’s the bottom line.” Maria Beyes also indicated that she and her
father could not physically perform appellant’s job functions along with their own since
they were not “spring chickens anymore.”
Stark County, Case No. 2021CA00059 10
{¶27} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of appellee since appellant failed to set forth a prima facia
case of disability discrimination.
{¶28} Appellant’s sole assignment of error is, therefore, overruled.
{¶29} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, P.J.
Gwin, J. and
Hoffman, J. concur.