Anderson v. Bright Horizons Children's Ctrs., L.L.C.

[Cite as Anderson v. Bright Horizons Children's Ctrs., L.L.C., 2022-Ohio-1031.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Haley Anderson, :
Plaintiff-Appellant, :
No. 20AP-291
v. : (C.P.C. No. 18CV-7299)
Bright Horizons Children's Centers, LLC : (REGULAR CALENDAR)
et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on March 29, 2022
On brief: Willis Spangler Starling, Jason E. Starling,
Ashley Rutherford Starling; Law Offices of John C. Camillus,
LLC, and John C. Camillus, for appellant. Argued: John C.
Camillus.
On brief: Littler Mendelson, P.C., and Angelique Paul
Newcomb, for appellees Bright Horizons Children's Centers,
LLC and Carrie Delaney. Argued: Angelique Paul
Newcomb.
On brief: Elfvin, Klingshirn, Royer & Torch, LLC, and
Christina M. Royer, for Amicus Curiae, Ohio Employment
Lawyers Association.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, Haley Anderson, appeals a judgment of the Franklin
County Court of Common Pleas that granted summary judgment to defendants-appellees,
Bright Horizons Children's Centers, LLC, and Carrie Delaney. For the following reasons,
No. 20AP-291 2
we affirm that judgment in part and reverse it in part, and we remand this case to the trial
court.
{¶ 2} Since birth, Anderson has suffered from a heart defect consisting of two
genetic deformities: (1) a coarctation, or narrowing, of her aorta and (2) a bicuspid, rather
than tricuspid, aortic valve. As a newborn, Anderson underwent surgery to repair the
abnormally narrow section of her aorta. Nevertheless, the coarctation of Anderson's aorta
causes Anderson to have high blood pressure.
{¶ 3} Because Anderson has a bicuspid aortic valve, the blood flow through
Anderson's aortic valve is restricted. Also, the abnormality in the valve closure allows blood
to "leak" back into her heart instead of flowing out into her body. Due to these problems
with Anderson's circulatory system, her heart is more susceptible to bacterial infection
spreading from other parts of her body. Because of this susceptibility, Anderson needs to
seek medical treatment for any infection she suffers.
{¶ 4} In March 2017, Bright Horizons hired Anderson to work as an infant room
teacher in its childcare center at Riverside Methodist Hospital ("the Riverside center"). At
various times while working at the Riverside center, Anderson developed symptoms of a
sinus infection and visited a medical provider for treatment. Due to illness, Anderson was
absent from work on April 10, 2017; April 25 and 26, 2017; May 18, 2017; May 24, 2017;
June 20, 2017; and June 28 and 29, 2017. After each absence, Anderson provided her
supervisor, Carrie Delaney, with a note from a medical provider excusing her absence.
{¶ 5} On Monday, July 10, 2017, Anderson called Delaney to report that she had a
respiratory infection and would not be attending work. During that telephone
conversation, Anderson told Delaney, "I do have a congenital heart defect and I found out
today that that may be a reason why my immune system may not be as built up." (Ex. 7,
Pl.'s Memo in Opp. to Summ. Jgmt.) This conversation constituted the first time Anderson
had disclosed her congenital heart defect to Delaney.
{¶ 6} When Anderson returned to work on Wednesday, July 12, 2017, she met with
Delaney, the director of the Riverside center, and Lyndsay Truax, the assistant director of
the Riverside center. During the meeting, Delaney told Anderson that her absenteeism had
become excessive, and consequently, she was not providing the consistency of care critical
for the children attending the center. Delaney suggested that Anderson move to the
No. 20AP-291 3
substitute pool, which would allow Anderson to choose the days she wanted to work.
According to Anderson, Delaney also suggested that Anderson consider resigning from
Bright Horizons.1 The way in which Delaney suggested resignation made Anderson feel like
Delaney was threatening her job.
{¶ 7} In addition to confronting Anderson about her absenteeism, Delaney also
reprimanded her about cell-phone usage in the July 12, 2017 meeting. Earlier in the day,
Truax had observed Anderson talking on her cell phone when she was supposed to be
teaching in the classroom, which was against Bright Horizons' policy. This reprimand
constituted the first time Delaney had disciplined Anderson for a work policy violation.
{¶ 8} On Anderson's next scheduled workday, Friday, July 14, 2017, she arrived at
the Riverside center, but she was suffering from a migraine, nausea, shortness of breath,
and severe anxiety. She waited in Delaney's office for approximately 20 minutes before
telling another employee to let Delaney know that she was ill and leaving to obtain medical
care. Anderson then sought treatment at the emergency room of Riverside Methodist
Hospital.
{¶ 9} Later that day, at Anderson's request, Anderson's mother, Melody Anderson,
telephoned Delaney to provide Delaney with details about Anderson's absence from work.
Melody Anderson told Delaney that Anderson was receiving treatment in the emergency
room for high blood pressure, fluid in her lungs, migraine, and anxiety. Melody Anderson
also discussed with Delaney Anderson's congenital heart defect, and disclosed to Delaney
the surgery that Anderson had undergone as an infant. Melody Anderson informed
Delaney that Anderson's congenital heart defect negatively affected her immune system,
and admonished Delaney that allowing feverish children into the Riverside center
contributed to Anderson's risk of infection. Finally, Melody Anderson asked Delaney not
to hold Anderson's heart defect against her.
{¶ 10} In the late afternoon of Friday, July 14, 2017, Truax emailed the schedule for
the next week, beginning Monday, July 17, 2017, to the Riverside center teachers. Truax
did not include Anderson on the schedule because she did not know if Anderson "was
coming back to work." (Truax Dep. at 70.) When Anderson saw that Truax had removed
her from the schedule, she assumed that Bright Horizons had fired her.
1 Truax denies that this occurred.
No. 20AP-291 4
{¶ 11} Anderson did not go to the Riverside center on Monday, July 17, 2017, or
Tuesday, July 18, 2017. However, Anderson called the Riverside center multiple times to
speak with Delaney or Truax. After repeatedly failing to connect with either Delaney or
Truax, Anderson concluded that they were "dodg[ing]" her phone calls. (Anderson Dep. at
304.)
{¶ 12} In the meantime, Charlotte Lane, a Bright Horizons' human resources
business partner generalist, contacted Anderson by email and informed Anderson that she
would like to discuss Anderson's concerns with her. Lane had previously tried to call
Anderson, but Anderson did not answer the phone and her voicemail box was full.
Anderson responded to Lane's email on July 18, 2017 and asked Lane to provide times she
was available to speak. Lane replied with two different time windows, but Anderson never
called Lane or otherwise responded to Lane's email.
{¶ 13} On July 20, 2017, Delaney sent Anderson a letter informing her that Bright
Horizons had determined that she had voluntarily resigned her job because she had not
reported to work and did not call in to report her absence on July 14, 17, and 18, 2017.2 The
letter further notified Anderson that Bright Horizons accepted her resignation.
{¶ 14} Anderson filed suit against Bright Horizons and Delaney on August 27, 2018.
In her complaint, Anderson asserted claims for disability discrimination in violation of R.C.
4112.02. She maintained that defendants violated Ohio law by discriminating against her
in the termination of her employment, failing to accommodate her alleged disability, and
failing to engage in the interactive process to determine a reasonable accommodation for
her alleged disability. Anderson also brought a claim against Delaney alone for violation of
R.C. 4112.02(J), contending that Delaney aided, abetted, incited, compelled, or coerced the
disability discrimination allegedly perpetuated by Bright Horizons.
{¶ 15} After the completion of discovery, defendants moved for summary judgment.
Anderson opposed that motion. In a judgment dated April 30, 2020, the trial court granted
defendants summary judgment on all claims.
{¶ 16} Anderson now appeals, and she assigns the following errors:
2Bright Horizons later conceded that Anderson had notified Delaney regarding her absence on July 14,
2017, and consequently, it had erred in adding the July 14 date to the letter.
No. 20AP-291 5
1. The trial court committed reversible error by granting
Defendants-Appellees summary judgment on Count I for
disability discrimination in employment.
2. The trial court committed reversible error by granting
Defendants-Appellees summary judgment on Count II for
regarded-as disability discrimination in employment.
3. The trial court committed reversible error by granting
Defendants-Appellees summary judgment on Count III for
failure to accommodate a disabled employee.
4. The trial court committed reversible error by granting
Defendants-Appellees summary judgment on Count IV for
failure to engage in the interactive process with a disabled
employee.
5. The trial court committed reversible error by granting
Defendants-Appellees summary judgment on Count V for
aiding and abetting disability discrimination in employment.
6. The trial court committed reversible error by sanctioning
Plaintiff with the exclusion of evidence because Plaintiff
objected to the production of, and temporarily withheld, an
audio recording of Defendant-Appellee Carrie Delaney until
after she was deposed and had testified inconsistently with the
audio recording.
7. The trial court committed reversible error on e-discovery by
refusing to compel Defendants-Appellees to produce all e-
mails and text messages responsive to the search terms
"Haley," "Anderson," "disability," "congenital," "heart," or
"defect" in a case about Haley Anderson's disability of a
congenital heart defect.
8. The trial court committed reversible error on e-discovery by
denying Plaintiff-Appellant a forensic inspection even though
defense counsel fabricated a "no paper trail" policy that
supposedly accounted for their clients' miniscule nine-page e-
discovery production.
{¶ 17} Anderson's first five assignments of error challenge the trial court's decision
to grant defendants summary judgment. A trial court must grant summary judgment under
Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable
No. 20AP-291 6
minds can come to but one conclusion when viewing the evidence most strongly in favor of
the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v.
Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc.,
116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a
motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate
court conducts an independent review, without deference to the trial court's determination.
Zurz v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.);
White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 18} The party moving for summary judgment 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. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden
under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
there are no genuine issues of material fact and the moving party is entitled to judgment as
a matter of law. Id. If the moving party meets its burden, then the nonmoving party has a
reciprocal burden to set forth specific facts showing that there is a genuine issue for trial.
Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293.
A. Disability Discrimination in Violation of R.C. 4112.02(A)
{¶ 19} We will address Anderson's first and second assignments of error together
because they both relate to Anderson's claim that defendants terminated her employment
because of her disability in violation of R.C. 4112.02(A). Anderson argues that genuine
issues of material fact preclude the grant of summary judgment in defendants' favor on that
claim. We agree.
{¶ 20} Disability discrimination in employment is prohibited by R.C. 4112.02, which
provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice * * * [f]or
any employer, because of the * * * disability * * * of any person, to discharge without just
cause, * * * or otherwise to discriminate against that person with respect to * * * terms,
conditions, or privileges of employment, or any matter directly or indirectly related to
employment." R.C. 4112.02(A). To recover on a claim for disability discrimination under
No. 20AP-291 7
R.C. 4112.02(A), a plaintiff must demonstrate that: (1) he or she was disabled; (2) the
employer took an adverse employment action against the plaintiff, at least in part, because
the plaintiff was disabled; and (3) the plaintiff, though disabled, can safely and substantially
perform the essential functions of the job in question. Columbus Civ. Serv. Comm. v.
McGlone, 82 Ohio St.3d 569, 571 (1998), citing Hazlett v. Martin Chevrolet, Inc., 25 Ohio
St.3d 279, 281 (1986).
1. Is Anderson Disabled?
{¶ 21} R.C. 4112.01 contains three meanings for the term "disability:" (1) "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;" (2) "a record of a physical or mental
impairment;" and (3) "being regarded as having a physical or mental impairment." R.C.
4112.01(A)(13). The definition of "physical or mental impairment" includes "[a]ny
physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting"
the cardiovascular system. R.C. 4112.01(A)(16)(a)(i).
{¶ 22} Here, Anderson initially argues that she presented evidence that she is
disabled under the first definition of "disability," i.e., her congenital heart defect is a
physical impairment that substantially limits one or more major life activities. However,
Anderson does not contend that her congenital heart defect substantially limits any of the
major life activities listed in R.C. 4112.01(A)(13), which "includ[e] the functions of caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working." Anderson, instead, maintains that her congenital heart defect
constitutes a "disability" because it substantially limits a "major life activity" as that phrase
is defined in the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA").
{¶ 23} Since its enactment in 1990, the Americans with Disabilities Act ("ADA") has
defined "disability" to include "a physical or mental impairment that substantially limits
one or more major life activities of such individual." 42 U.S.C. 12102(2)(A) (1990), Pub. L.
No. 101-336, Section 3, 104 Stat. 329 (current version at 42 U.S.C. 12102(1)(A)).
Nevertheless, until its amendment in 2008, the ADA said nothing regarding what kind of
activities constituted "major life activities." Although the ADAAA does not actually define
the phrase "major life activity," it provides some explication. First, the ADAAA includes a
No. 20AP-291 8
non-exhaustive list of major life activities, largely lifted from prior EEOC regulation
interpreting the ADA:
[M]ajor life activities include, but are not limited to, 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). Second, the ADAAA states that, "a major life activity also includes
the operation of a major bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions." 42 U.S.C. 12102(2)(B).
{¶ 24} Anderson asserts that the major life activities at issue in this case are the
operation of major bodily functions. Specifically, Anderson claims she is disabled because
her congenital heart defect substantially limits the operation of her circulatory and
cardiovascular functions. Anderson urges us to interpret R.C. 4112.01(A)(13) as including
the operation of major bodily functions as major life activities.
{¶ 25} According to Anderson, Ohio courts apply the ADAAA to disability
discrimination claims brought under R.C. 4112.02. This is an overstatement. Rather, Ohio
courts considering disability discrimination claims under R.C. 4112.02 look to federal cases
and regulations interpreting the ADA or ADAAA for guidance in interpreting Ohio law.
McGlone, 82 Ohio St.3d at 573; Dalton v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
13AP-827, 2014-Ohio-2658, ¶ 28. Federal case law and regulations have persuasive value
in cases involving comparable federal statutes and R.C. Chapter 4112 provisions. Hauser
v. Dayton Police Dept., 140 Ohio St.3d 268, 2014-Ohio-3636, ¶ 14. But Anderson is not
really asking us to look to federal case law and regulation to interpret R.C. 4112.01(A)(13).
Anderson instead would have us construe the meaning of R.C. 4112.01(A)(13) by relying on
a federal statute with text that varies substantially from the comparable Ohio statute.
{¶ 26} Unlike 42 U.S.C. 12102(2), R.C. 4112.01(A)(13) does not state that the
operation of a major bodily function is a major life activity. R.C. 4112.01(A)(13) contains a
list of major life activities similar to the list in 42 U.S.C. 12102(2)(A). However, R.C.
4112.01(A)(13) does not create a second category of major life activities for major bodily
functions like 42 U.S.C. 12102(2)(B) does.
No. 20AP-291 9
{¶ 27} In interpreting statutes, courts cannot extend a statute beyond what is
written because it is the duty of the court to give effect to the words used in the statute, not
to delete words used or insert words not used. Hall v. Banc One Mgt. Corp., 114 Ohio St.3d
484, 2007-Ohio-4640, ¶ 24; Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-
Ohio-5410, ¶ 29. Courts cannot expand the scope of a statute beyond that which the
General Assembly enacted. Sarmiento at ¶ 29. We, consequently, cannot engraft onto R.C.
4112.01(A)(13) a second category of major life activities for major bodily functions. We
must leave it to the General Assembly to decide whether to so broaden the definition of
"disability."
{¶ 28} Applying Ohio law, we conclude that Anderson has not demonstrated that
her congenital heart defect substantially limits a major life activity. Anderson, therefore, is
not disabled under the first definition of "disability."
{¶ 29} At this point, we can overrule Anderson’s first assignment of error. Under
Anderson’s interpretation of her complaint, she has pled two claims for employment
discrimination under R.C. 4112.02(A): one claim premised on the assertion she is disabled
because she has a physical impairment that substantially limits a major life activity and the
second claim premised on the assertion that she is disabled because defendants regarded
her as having a physical impairment. Anderson’s first assignment of error challenges the
trial court’s grant of summary judgment on the first claim. Because we have rejected
Anderson’s contention that she is actually disabled, we conclude the trial court did not err
in its ruling on her first claim, and we overrule the first assignment of error.
{¶ 30} We resume our analysis by considering whether the evidence establishes that
Anderson is disabled under the third definition of "disability," i.e., defendants regarded her
as having a physical impairment. Under the plain language of R.C. 4112.01(A)(13), a
plaintiff may be disabled if the employer regarded the plaintiff as having a mental or
physical impairment, without regard to whether the employer regarded the plaintiff as
substantially limited in his or her major life activities. Ames v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 14AP-119, 2014-Ohio-4774, ¶ 24; Dalton at ¶ 24. Thus, to show that
an employer regarded the plaintiff as disabled, the plaintiff need only present evidence that
the employer believed the plaintiff had a "physical or mental impairment," as that phrase
is defined in R.C. 4112.01(A)(16). See Babb v. Maryville Anesthesiologists P.C., 942 F.3d
No. 20AP-291 10
308, 319 (6th Cir.2019); accord Mancini v. Providence, 909 F.3d 32, 46 (1st Cir.2018) ("[A]
plaintiff must show * * * that his employer was either aware of or perceived the impairment
at the time of the allegedly discriminatory action."); Adair v. Muskogee, 823 F.3d 1297,
1306 (10th Cir.2016) (holding that the plaintiff must show "the employer was aware of and
therefore perceived the impairment at the time of the alleged discriminatory action").3
{¶ 31} As we stated above, the definition of "physical or mental impairment"
includes "[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting" the cardiovascular system. R.C. 4112.01(A)(16)(a)(i). Anderson presented
evidence that her congenital heart defect is a physiological condition that affects her
cardiovascular system. Defendants do not contest that Anderson's congenital heart defect
qualifies as a physical impairment under R.C. 4112.01(A)(16).
{¶ 32} Anderson also provided evidence that she told Delaney, her supervisor, about
her congenital heart defect about a week prior to the end of her employment. Anderson's
mother discussed Anderson's heart defect with Delaney in a telephone conversation after
Anderson's initial disclosure. Delaney admitted that she knew about Anderson's congenital
heart defect before Anderson's employment with Bright Horizons ended. Anderson,
therefore, has presented evidence creating a question of fact regarding whether defendants
believed Anderson had a physical impairment at the time of the alleged discriminatory
action.
{¶ 33} Defendants contest this conclusion by pointing out that Anderson failed to
give Bright Horizons any documentation to substantiate her condition or show it caused
her absences. However, a question of fact arose regarding whether defendants believed
Anderson had a physical impairment once Anderson informed Delaney about her
congenital heart defect. Jakomas v. Pittsburgh, 342 F.Supp.3d 632, 650 (W.D.Pa.2018)
("[E]mployer knowledge of an individual's impairment is sufficient to create a material
factual dispute as to whether the employer 'regarded' the individual as disabled.").
Anderson did not have to substantiate her medical condition with documentation to create
a question of fact sufficient to survive summary judgment.
3 In 2008, Congress amended the definition of disability for "regarded as" claims so that it now conforms
with the R.C. 4112.01(A)(13) definition. Dalton at ¶ 30. Consequently, we may look to federal precedent
for guidance in determining what a plaintiff must show to prove that an employer regarded him or her as
having a physical (or mental) impairment.
No. 20AP-291 11
{¶ 34} Defendants also argue that they could not regard Anderson as disabled
because when she returned to work after suffering from sinus infections, she produced
medical notes showing she could work without restriction. However, in the cases
defendants rely on, the plaintiffs provided medical notes that returned the plaintiffs to work
without restriction for the alleged disability at issue in the case. In Nichols v. OhioHealth
Corp., S.D.Ohio No. 2:14-cv-2796 (Aug. 17, 2017), the plaintiff was returned to work
without restriction after a knee injury. In Gleason v. Food City 654, E.D.Tenn. No. 3:13-
CV-712-PLR-HBG (Apr. 22, 2015), the plaintiff was returned to work without restriction in
relation to a back strain. When those plaintiffs later claimed their employers regarded them
as disabled due to the employers' knowledge of the plaintiffs' injuries, the courts found the
employers' receipt of notes clearing the plaintiffs to work without restrictions precluded the
plaintiffs' "regarded as" claims.
{¶ 35} Here, unlike in Nichols and Gleason, Anderson is not claiming her sinus
infections, for which she was cleared to return to work without restriction, as a disability.
Anderson, instead, is asserting that defendants regarded her as disabled due to her
congenital heart defect. Defendants did not receive any medical note returning Anderson
to work without restriction after an absence to treat her congenital heart defect.
Consequently, defendants in this case had no reason to believe that the ongoing condition
Anderson suffered from—a congenital heart defect—had resolved itself because she had
produced a note returning her to work without restriction after an acute infection.
Therefore, we do not find Nichols or Gleason applicable to this case.
{¶ 36} In sum, we find that Anderson has presented evidence creating a question of
fact regarding whether defendants regarded her as having a physical impairment.
Consequently, a question of fact remains regarding whether Anderson was disabled.
2. Did Defendants Take an Adverse Employment Action Against
Anderson?
{¶ 37} Next, Anderson argues that defendants took an adverse employment action
against her by terminating her employment. Defendants, to the contrary, assert that no
adverse employment action occurred because Anderson voluntarily resigned her
employment.
No. 20AP-291 12
{¶ 38} In general, an adverse employment action is a materially adverse change in
the terms and conditions of the plaintiff's employment. Paranthaman v. State Auto
Property & Cas. Ins. Co., 10th Dist. No. 14AP-221, 2014-Ohio-4948, ¶ 34. Termination of
employment qualifies as an adverse employment action. Id. at ¶ 43. Voluntary resignation,
however, is not an adverse employment action. Nance v. Goodyear Tire & Rubber Co., 527
F.3d 539, 554-55 (6th Cir.2008).
{¶ 39} Under Ohio common law, there are two kinds of voluntary resignation:
constructive resignation and effective resignation. Hammon v. DHL Airways, Inc., 165
F.3d 441, 448 (6th Cir.1999). Here, we are concerned with constructive resignation. An
employee may constructively resign by failing to comply with her employer's written
request requiring her to take a certain action. State ex rel. Waldman v. Burke, 152 Ohio St.
213, 215-16 (1949). Notably, courts only apply this doctrine where "the employer has given
the employee written notice that his failure to act will be construed as an act of resignation,
in order to ensure that each party has a clear understanding of their obligations and the
repercussions of their actions." (Emphasis sic.) Hammon at 448.
{¶ 40} Here, the written notice to Anderson of action that constituted voluntary
resignation appeared in the Bright Horizons employee handbook and the attendance
policy. In relevant part, the handbook stated:
Bright Horizons considers any one of the following as a
voluntary resignation:
• Absence from work for two consecutive scheduled days
without approval or proper notice to your supervisor
(Ex. 15, Anderson Dep.) The attendance policy provided:
No call/No show: If an employee fails to report to work for
two (2) consecutive workdays, and fails to follow procedure for
notifying his/her supervisor, Bright Horizons will consider that
the employee has voluntarily resigned their position.
(Emphasis sic.) (Ex. 18, Anderson Dep.)
{¶ 41} Undisputedly, Anderson was absent from Bright Horizons without approval
or notice on July 17 and 18, 2017. The parties, however, contest whether July 17 and 18
constituted "scheduled days" of work or "workdays." Anderson contends that neither day
could be a "scheduled day" or "workday" because she did not appear on the schedule for the
No. 20AP-291 13
week of July 17, 2017. Defendants maintain that Monday, July 17, and Tuesday, July 18,
were "scheduled days" or "workdays" because, although Anderson was not on the schedule,
she was normally scheduled to work on Mondays and Tuesdays.
{¶ 42} Given the circumstances of this case, reasonable minds could disagree
regarding whether Anderson voluntarily resigned her employment. A factfinder could
conclude that Anderson reasonably believed that July 17 and 18 were not "scheduled days"
of work or "workdays," in which case, Anderson's actions could not amount to a voluntary
resignation. On the other hand, a factfinder could alternatively conclude that Anderson
should have reasonably understood that July 17 and 18 were "scheduled days" of work or
"workdays," in which case, Anderson's failure to comply with the mandated absentee policy
resulted in her voluntary resignation.
{¶ 43} If Anderson did not voluntarily resign, then Bright Horizons terminated her
employment. Because reasonable minds could disagree regarding whether Anderson
voluntarily resigned, a question of fact exists regarding whether Bright Horizons
terminated her employment. Consequently, a trier of fact must determine if defendants
took an adverse employment action against Anderson.
3. Did Defendants Intentionally Discriminate Against Anderson?
{¶ 44} Anderson must next prove that discriminatory intent motivated defendants
to take the alleged adverse employment action against her. A plaintiff may prove
discriminatory intent by either direct or indirect evidence. Dalton, 10th Dist. No. 13AP-
827, 2014-Ohio-2658, at ¶ 26. Direct evidence is evidence that explains itself. Gohl v.
Livonia Pub. Schools School Dist., 836 F.3d 672, 683 (6th Cir.2016). It is evidence "that, if
believed, requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer's actions." Ray v. Ohio Dept. of Health, 10th Dist. No. 17AP-526,
2018-Ohio-2163, ¶ 27 (internal quotations omitted). Moreover, " 'direct evidence of
discrimination does not require a factfinder to draw any inferences in order to conclude
that the challenged employment action was motivated at least in part by prejudice against
members of the protected group.' " Id., quoting Johnson v. Kroger Co., 319 F.3d 858, 865
(6th Cir.2003); accord Merrill v. E. Porter Mach. Co., 159 Fed.Appx. 676, 679 (6th
Cir.2005), quoting Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th
No. 20AP-291 14
Cir.2004) (" 'Direct evidence is evidence that proves the existence of a fact without
requiring any inferences.' ").
{¶ 45} In the case at bar, Anderson contends she has direct evidence of
discrimination: defendants terminated her employment because of her disability-related
absences.4 Anderson alleges that her pre-July 14, 2017 absences were all due to her
disability because she needed to treat possible infection so it would not spread to her heart.
During her deposition, Delaney testified that those absences factored into the decision to
end Anderson's employment:
Q. Did any of [Anderson's] prior absences * * *, before July
14th, 2017, have anything to do with her separation?
A. Sure. It is all about consistency of care for the children and
families that we serve.
Q. How did those absences before July 14th, 2017, play a role
in her separation?
A. It falls under consistency of care for children and families.
Q. So those are some of the reasons for separating her
employment?
A. Absenteeism is definitely considered consistency of care.
***
A. It's not about absenteeism, it's about the consistency of
work and care and adhering to schedules set forth when you
enter into an agreement of employment.
Q. So that's a, yes, those absences before July 14th, 2017,
played a role in Haley Anderson's separation?
A. Inconsistency of care, yes.
Q. I understand that your position is those absences affected
consistency of care. But what I'm trying to get is a clear answer
4 For purposes of analyzing whether Anderson presented evidence of discriminatory intent, we will
presume, without deciding, that defendants took an adverse employment action against her by terminating
her employment. As we stated above, whether defendants terminated Anderson's employment is a question
of fact. To go any further with our analysis, however, we have to presume that Anderson satisfied the
requirement of proving an adverse employment action.
No. 20AP-291 15
on whether, yes or no, the absences before July 14th, 2017,
played a role in Haley Anderson's separation?
A. Yes.
(Nov. 16, 2018 Delaney Dep. at 148-49.)
{¶ 46} According to Anderson, Delaney's testimony is direct evidence of
discrimination because it establishes defendants terminated Anderson for absences that
resulted from Anderson's alleged disability. But Delaney says nothing about Anderson's
disability in her testimony. Consequently, Delaney's testimony does not directly correlate
with an intent to discriminate on the basis of disability. A factfinder must infer that
Anderson's disability, as opposed to her lack of attendance, motivated the defendants to
terminate Anderson's employment. Because such an inference is necessary, Delaney's
testimony is not direct evidence of discrimination. See EEOC v. Austal USA, LLC, 447
F.Supp.3d 1252, 1265 (S.D.Ala.2020) (holding that being fired for medical-related absences
is not direct evidence of disability discrimination); Hancock v. Greystar Mgt. Servs., L.P.,
W.D.Okla. No. CIV-15-1095-R (Oct. 18, 2016), fn. 4 (no direct evidence of discriminatory
intent where the employer fired the plaintiff for job abandonment, even though the
plaintiff's absences stemmed from her alleged medical condition); Fullerton v. Pottstown
Hosp. Corp., E.D.Pa. No. 15-5329 (July 13, 2016) ("Being fired for being absent, even if the
absences are related to being sick, is not direct proof that an employee was fired for her
disability.").
{¶ 47} We thus turn to whether Anderson presented any indirect evidence of
discriminatory intent under the McDonnell Douglas burden-shifting framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff
must first establish a prima facie case of discrimination. Ray, 10th Dist. No. 17AP-526,
2018-Ohio-2163, at ¶ 24; Dalton, 10th Dist. No. 13AP-827, 2014-Ohio-2658, at ¶ 26. This
requires the plaintiff to show: (1) he or she was disabled; (2) the employer took an adverse
employment action against the plaintiff, at least in part, because the plaintiff was disabled;
and (3) the plaintiff, though disabled, can safely and substantially perform the essential
functions of the job in question. Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 302
(1996), citing Hazlett, 25 Ohio St.3d at 281. Once the plaintiff establishes a prima facie
case, the burden of production shifts to the employer to offer a legitimate,
No. 20AP-291 16
nondiscriminatory reason for the action taken. Id. If the employer does that, then the
plaintiff must demonstrate that the employer's stated reason was a pretext for
discrimination. Id.
{¶ 48} Confusingly, in Hood, the Supreme Court of Ohio adopted the elements a
plaintiff must prove to recover for disability discrimination in violation of R.C. 4112.02 as
the elements necessary for establishing a prima facie case for the purposes of the
McDonnell Douglas framework. This makes little sense because it requires the plaintiff to
produce proof of discriminatory intent in the second element of the prima facie stage, which
conflicts with the purpose and structure of the McDonnell Douglas framework. Whitfield
v. Tennessee, 639 F.3d 253, 259 (6th Cir.2011) (a prima facie test like the one articulated in
Hood "makes little sense, as [it includes an element requiring proof that the employee was
discharged because of a disability, which] requires at the prima facie stage what the
McDonnell Douglas burden-shifting framework seeks to uncover only through two
additional burden shifts, thereby rendering that framework wholly unnecessary"); accord
Ferrari v. Ford Motor Co., 826 F.3d 885, 894 (6th Cir.2016), fn.4 (quoting and following
Whitfield).
{¶ 49} The goal of the McDonnell Douglas inquiry is to progressively sharpen the
inquiry until factfinder at the end reaches the ultimate question: whether the employer
intentionally discriminated against the employee. St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993). The prima facie case is intended to "eliminate[ ] the most common
nondiscriminatory reasons for the" adverse employment action, not require positive proof
that the employer acted with a discriminatory motive. Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 254 (1981). At the prima facie stage, a presumption of
discrimination arises " 'only because we presume these acts, if otherwise unexplained, are
more likely than not based on the consideration of impermissible factors.' " Id., quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Once establishment of the prima
facie case creates the presumption of unlawful discrimination, the employer has the burden
of producing an explanation to rebut the presumption. Hicks at 506-07. If the employer
carries this burden, then the plaintiff must have the opportunity to prove that "the reason
[offered] was false, and that discrimination was the real reason" for the employer's actions.
(Emphasis sic.) Id. at 515. Thus, it is at this last stage of the McDonnell Douglas framework
No. 20AP-291 17
that the plaintiff must produce any evidence directly bearing on whether the employer
intentionally discriminated against the plaintiff.
{¶ 50} However, as an intermediate appellate court, we are bound to follow the
precedent of the Supreme Court of Ohio. State v. Tatom, 10th Dist. No. 17AP-758, 2018-
Ohio-5143, ¶ 24. Consequently, we do so in this case.
{¶ 51} With regard to the first element of the McDonnell Douglas prima facie case,
we have found a question of fact exists regarding whether Anderson is disabled. With
regard to the second element, we have found that a question of fact exists regarding
whether defendants took an adverse employment action against her. Thus, we must
consider if a question of fact exists regarding whether defendants terminated Anderson's
employment, at least in part, because of her alleged disability.
{¶ 52} First, although Delaney's testimony is not direct evidence of discrimination,
it constitutes circumstantial evidence that defendants terminated Anderson's employment
because of her congenital heart defect. Both Anderson and Anderson's mother had
informed Delaney that Anderson’s congenital heart defect adversely affected her immune
system. A reasonable factfinder could determine that Delaney deduced from this
information that Anderson's congenital heart defect was the underlying cause of her
numerous acute infections and concomitant absences from work. Thus, a reasonable
factfinder could infer that when Delaney conceded that Anderson's absences played a role
in her termination, she was really conceding that Anderson's perceived disability played a
role in her termination.
{¶ 53} Second, defendants terminated Anderson's employment on July 20, 2017,
only ten days after Anderson first disclosed her congenital heart defect to Delaney. The
temporal proximity between the disclosure of Anderson's alleged disability and the adverse
employment action is circumstantial evidence of intentional discrimination. Jones v.
Honda of Am. Mfg., Inc., S.D.Ohio No. 3:13-cv-167 (Mar. 9, 2015); Eichler v. Steak N'
Shake Operations, Inc., S.D.Ohio No. 2:12-cv-332 (Aug. 8, 2013).
{¶ 54} Finally, defendants replaced Anderson with a non-disabled person. A
factfinder could infer that defendants discriminated against Anderson by terminating her
employment in order to hire a non-disabled employee.
No. 20AP-291 18
{¶ 55} Anderson also argues that the fact defendants singled her out for discipline
for her cell-phone usage also demonstrates discrimination. The question here, however, is
whether discrimination motivated the termination of Anderson's employment. As the
phone-usage reprimand did not result in the termination of Anderson's employment, we
find it irrelevant.
{¶ 56} In sum, we find that Anderson has produced evidence sufficient to create a
question of fact as to whether defendants terminated her employment, at least in part,
because of her perceived disability.
{¶ 57} The fourth element of the prima facie case requires consideration of whether
Anderson can perform the essential functions of her job. Defendants, however, did not
contest this element in moving for summary judgment, and neither party mentions it on
appeal, so we do not consider it.
{¶ 58} Because defendants did not establish entitlement to summary judgment on
any of the four elements of the prima facie case, we turn to whether defendants offered a
legitimate, nondiscriminatory reason for terminating Anderson's employment. Defendants
contend that they proffered one: Anderson's "voluntary resignation under the ["]no call/no
show["] policy." (Appellees' Brief at 46.) We doubt whether this constitutes an explanation
for taking an adverse employment action, as it denies taking the very adverse action it seeks
to explain. Nevertheless, for purposes of this appeal, we accept it as satisfying defendants'
burden of production.
{¶ 59} At this point, defendants urge us to consider whether Anderson provided
evidence discrediting defendants' legitimate, nondiscriminatory reason. The trial court,
however, did not address the question of pretext. Generally, appellate courts do not address
issues raised in a summary judgment motion, but not decided by the trial court. Riverside
v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 58 (10th Dist.); Young v. Univ. of Akron,
10th Dist. No. 06AP-1022, 2007-Ohio-4663, ¶ 22. "To consider summary judgment
arguments in the first instance on appeal 'effectively depriv[es] the non-prevailing party of
appellate review.' " Lehmier v. W. Reserve Chem. Corp., 9th Dist. No. 28776, 2018-Ohio-
3351, ¶ 49, quoting Guappone v. Enviro-Cote, Inc., 9th Dist. No. 24718, 2009-Ohio-5540,
¶ 13. Consequently, we will not address whether the evidence establishes pretext.
No. 20AP-291 19
{¶ 60} In sum, we find that Anderson failed to present any direct evidence of
discrimination. Questions of fact remain, however, as to whether Anderson can establish
indirect discrimination pursuant to the McDonnell Douglas burden-shifting framework.
{¶ 61} Finally, to recover for disability discrimination under R.C. 4112.02, a plaintiff
must show that she, though disabled, can safely and substantially perform the essential
functions of the job in question. As we explained above, defendants did not challenge this
element on summary judgment, and neither party mentions it on appeal.
{¶ 62} Accordingly, we conclude that questions of fact preclude the grant of
summary judgment in defendants' favor on Anderson's claim for "regarded as" disability
discrimination in violation of R.C. 4112.02. The trial court, therefore, erred in granting
defendants summary judgment on that claim, and we sustain Anderson's second
assignment of error.
B. Failure to Accommodate
{¶ 63} By her third assignment of error, Anderson argues that the trial court erred
in granting defendants summary judgment on her claim for failure to accommodate her
alleged disability. We disagree.
{¶ 64} "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." Ohio
Adm.Code 4112-5-08(E)(1). To establish a prima facie case of discrimination for failure to
accommodate, a plaintiff must prove that: (1) he or she is disabled because of a physical or
mental impairment that substantially limits a major life activity, a record of a physical or
mental impairment, or being regarded as having a physical or mental impairment; (2) the
employer is aware of the disability; (3) he or she is otherwise qualified for the position, with
or without a reasonable accommodation; (4) he or she requested a reasonable
accommodation; and (5) the employer failed to provide the necessary accommodation.
Coomer v. Opportunities for Ohioans with Disabilities, 10th Dist. No. 21AP-158, 2022-
Ohio-387, ¶ 17; Shaver v. Wolske & Blue, 138 Ohio App.3d 653, 663-64 (10th Dist.2000).
The burden is on the plaintiff to propose an accommodation that is objectively reasonable.
Coomer at ¶ 17; DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, 2001-Ohio-3996, ¶ 78
(10th Dist.). Once the plaintiff establishes the prima facie case, the burden shifts to the
No. 20AP-291 20
employer to show that it cannot provide the accommodation because of undue hardship.
Coomer at ¶ 17; DeBolt at ¶ 79.
{¶ 65} In the case at bar, Anderson argues that she first proposed a reasonable
accommodation in her July 10, 2017 telephone call with Delaney. Specifically, Anderson
says that she asked Delaney in that telephone call to accommodate her disability by not
using her medical-related absences against her. Even construing the transcript of that call
in Anderson's favor, we do not see any such request in the transcript.
{¶ 66} Next, Anderson contends that her mother proposed the same reasonable
accommodation when she spoke with Delaney on July 14, 2017. In fact, in her affidavit,
Melody Anderson states that she "asked Delaney not to hold [the] heart defect against my
daughter." (Emphasis added.) (Feb. 4, 2020 Melody Anderson Aff. at ¶ 3.) Consequently,
evidence establishes that Melody Anderson asked for a concession from Delaney. We thus
must consider whether what Melody Anderson asked for constituted a proposal for a
reasonable accommodation.5
{¶ 67} The notice that an employee desires an accommodation does not have to be
in writing; does not have to mention the ADA, ADAAA, or R.C. 4112.02; and does not have
to invoke the words "reasonable accommodation." Shaver at 668. However, "[a] request
for accommodation must be 'sufficiently direct and specific' to give notice to the employer
of the need for an accommodation and the potential reasonable accommodations that
would overcome the employee's limitations." Niles v. Natl. Vendor Servs., 10th Dist. No.
10AP-128, 2010-Ohio-4610, ¶ 30; accord Miceli v. JetBlue Airways Corp., 914 F.3d 73, 83
(1st Cir.2019) (holding that a request for an accommodation "must comprise more than a
cryptic communication to be deciphered by the recipient"). Thus, for example, a request
asking an employer for "understanding" for an employee's gastrointestinal problems was
too vague to invoke the statutory process required by the ADAAA to accommodate a
disability. Gagne v. SAFE Fed. Credit Union, D.S.C. No. 3:18-208-JMC-PJG (Jan. 30,
2020), report and recommendation adopted (Mar. 27, 2020).
{¶ 68} Here, we find the request to refrain from holding Anderson's heart defect
against her is not sufficiently direct and specific enough to qualify as a request for a
5 "[T]hird-parties, such as family members, friends or health professionals, may request an accommodation
on the employee's behalf." Shaver at 668. Thus, Anderson's mother may request a reasonable
accommodation on Anderson's behalf.
No. 20AP-291 21
reasonable accommodation. It is too vague for any employer to recognize it as a proposal
for specific, special action needed to accommodate a disability in the workplace. Melody
Anderson's request is more like general plea for "understanding" than a proposal for a
concrete accommodation.
{¶ 69} When an employee does not propose a reasonable accommodation, his or her
failure-to-accommodate claim must fail. Aldini v. Kroger Co., 628 Fed.Appx. 347, 351 (6th
Cir.2015); Melange v. Center Line, 482 Fed.Appx. 81, 84 (6th Cir.2012); accord Dunn v.
GOJO Industries, 9th Dist. No. 28392, 2017-Ohio-7230, ¶ 27 ("An employer's duty to make
reasonable accommodations for an employee with a disability does not arise until after the
employee makes a request for an accommodation."). Here, because Anderson did not
request a reasonable accommodation, she cannot establish that defendants failed to
accommodate her alleged disability. Accordingly, the trial court did not err in granting
defendants summary judgment on Anderson's failure-to-accommodate claim, and we
overrule the third assignment of error.
C. Failure to Participate in the Interactive Process
{¶ 70} By her fourth assignment of error, Anderson argues that the trial court erred
in granting defendants summary judgment on her claim that defendants failed to
participate in the interactive process to determine the appropriate accommodation for her
alleged disability. We disagree.
{¶ 71} This court has never recognized a separate claim under R.C. 4112.02 or its
implementing regulations for failure to engage in the interactive process. Indeed, neither
R.C. 4112.02 nor the regulations mention an interactive process, much less impose a duty
on employers to engage in one. Nevertheless, the duty to engage in the interactive process
has crept into Ohio caselaw because federal courts have held that "the ADA mandates that
an employer must engage in an 'individualized inquiry' based on an 'interactive process' to
determine whether the employee's disability disqualifies her from a particular position."
O'Donnell v. Univ. Hosps. Cleveland Med. Ctr., 833 Fed.Appx. 605, 617 (6th Cir.2020),
quoting 29 C.F.R. 1630.2(o)(3); accord Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 421
(6th Cir.2020), quoting Hostettler v. College of Wooster, 895 F.3d 844, 857 (6th Cir.2018)
(" 'Once an employee requests an accommodation, the employer has a duty to engage in an
interactive process.' ").
No. 20AP-291 22
{¶ 72} Relying on federal precedent, this court has determined that, "once an
employee requests an accommodation, an employer is obligated to participate in the
interactive process of seeking an accommodation." Shaver, 138 Ohio App.3d at 669, citing
Taylor v. Phoenixville School Dist., 184 F.3d 296, 314 (3d Cir.1998). Importantly, in
Shaver, we only addressed the failure to engage in the interactive process in the context of
a claim for failure to accommodate the plaintiff's disability. We held that when an employer
eschews its duty to participate in the interactive process, a court cannot grant summary
judgment on a plaintiff's failure-to-accommodate claim. Id. at 670-72. Summary judgment
is not appropriate because a court cannot conclude that a reasonable accommodation is not
possible when an employer's bad faith precluded consideration of all possible
accommodations. Id. at 665, 670-72.
{¶ 73} Here, Anderson never requested a reasonable accommodation, so
defendants' obligation to participate in the interactive process never arose. Nevertheless,
even if it had, it would only be relevant in determining whether defendants discriminated
against Anderson by failing to accommodate her alleged disability as required by Ohio
Adm.Code 4112-5-08(E)(1).
{¶ 74} In sum, the trial court did not err in granting defendants summary judgment
on Anderson's claim for failure to participate in the interactive process to determine the
appropriate accommodation for Anderson's alleged disability. Accordingly, we overrule
Anderson's fourth assignment of error.
D. Aiding and Abetting Discrimination
{¶ 75} By her fifth assignment of error, Anderson argues that the trial court erred in
granting Delaney summary judgment on her claim that Delaney violated R.C. 4112.02(J)
by aiding and abetting Bright Horizons in discriminating against her. R.C. 4112.02(J)
makes it unlawful "[f]or any person to aid, abet, incite, compel, or coerce the doing of any
act declared by this section to be an unlawful discriminatory practice." Delaney argues this
claim fails because it is derivative of Anderson's other claims. Because we have concluded
that Anderson's claim for "regarded as" disability discrimination should have survived
summary judgment, this claim should also survive summary judgment. Accordingly, we
sustain Anderson's fifth assignment of error.
No. 20AP-291 23
E. Discovery Violation Sanction
{¶ 76} By her sixth assignment of error, Anderson argues that the trial court erred
in sanctioning her for temporarily withholding an audio recording of the July 10, 2017
telephone conversation between her and Delaney. We disagree.
{¶ 77} On September 21, 2018, Bright Horizons served written discovery on
Anderson. After receiving an extension of time to answer, Anderson filed her responses
with the court on November 9, 2018. For our purposes, the relevant interrogatory and
answer read:
INTERROGATORY NO. 15: Please state whether Plaintiff
recorded, by audiotape, video tape or any other means, any
conversation she had with any current or former employee of
Bright Horizons, and for each such conversation state:
(a) the date of the conversation;
(b) the identity of all those participating in the conversation;
(c) whether Plaintiff disclosed to the other participant(s) that
she was recording the conversation;
(d) whether Plaintiff secured the permission of the other
participant(s) to record the conversation; and
(e) whether Plaintiff recorded all of the conversation, or only a
portion of it.
ANSWER:
In addition to the objections to Defendant's definitions and
instructions, Plaintiff objects to this interrogatory for the
following reasons: (1) this interrogatory exceeds the forty
interrogatories permitted under Civ.R. 33(A); (2) this
interrogatory is compound under Civ.R. 33(A) and constitutes
a separate interrogatory for each item of information
requested, resulting in one initial interrogatory asking Plaintiff
to identify any recordings and additional interrogatories per
conversation identified; (3) this interrogatory seeks
information protected by the attorney-client privilege and
attorney work product doctrine because it seeks the contents of
privileged communications between Plaintiff and Plaintiff's
counsel; (4) this interrogatory violates the attorney work
product doctrine because it seeks the mental impressions of
Plaintiff's counsel; (5) this interrogatory seeks information
No. 20AP-291 24
protected by the attorney work product doctrine because it
seeks information concerning draft or final witness statements
or affidavits secured by Plaintiff's counsel; and (6) this
interrogatory seeks information protected by the attorney work
product doctrine because it seeks information on the
investigation of this case by Plaintiff's counsel.
(Pl.'s Resps. & Objs. To Def.'s First Set of Interrogs. at 18.) The relevant request for
production and answer read:
REQUEST NO. 19: All recordings identified by Plaintiff in
her Answer to Interrogatory No. 15.
ANSWER:
In addition to the objections to Defendant's definitions and
instructions, Plaintiff objects to this document request for the
following reasons: (1) this document request seeks documents
protected by attorney-client privilege and the attorney work
product doctrine because it seeks privileged communications
between Plaintiff and Plaintiff's counsel; (2) this document
request seeks documents protected by the attorney work
product doctrine because it seeks documents concerning the
investigation of this case by Plaintiff's counsel; and (3) this
document request seeks documents protected by the attorney
work product doctrine because it seeks documents concerning
draft or final witness statements or affidavits secured by
Plaintiff's counsel.
(Pl.'s Resps. & Objs. To Def.'s First Set of Reqs. for Produc. at 19.) Although Anderson
objected on the basis of attorney-client privilege and the attorney work product doctrine,
she did not include a privilege log with her discovery responses.
{¶ 78} On Friday, November 16, 2018, Anderson's attorney deposed Delaney.
During that deposition, the attorney elicited the following testimony:
Q. [D]id Haley [Anderson] ever give you any reason to believe
she had a congenital heart defect?
A. No.
***
Q. Are you sure about that?
A. Absolutely.
No. 20AP-291 25
(Nov. 16, 2018 Delaney Dep. at 153.)
{¶ 79} At that point, Anderson's attorney announced he was going to play the audio
recording of the July 10, 2017 telephone conversation. Defendants' attorney objected to the
playing of the recording because Anderson had not disclosed it in response to Bright
Horizons' discovery requests. When Anderson's attorney insisted on playing the recording,
defendants' attorney and Delaney left the deposition. Anderson's attorney then played the
recording and had it recorded on the transcript of Delaney's deposition.
{¶ 80} Immediately after the deposition, defendants' counsel contacted the trial
court's staff attorney, explained the situation, and asked for a telephone conference with
the judge to discuss the matter. Anderson's counsel did not respond until the morning of
Monday, November 19, 2018, when he filed a motion to compel Delaney to sit for the
remainder of her deposition.
{¶ 81} In the motion to compel, Anderson argued that she had objected to the
relevant interrogatory and request for production, and she was not required to produce the
audio recording prior to Delaney's deposition. She pointed out that federal courts have
allowed parties to delay the production of audio recordings until after a deposition of a
recorded witness. These courts reason that postponing production until after depositions
prevents witnesses from tailoring their testimony to their recorded statements and
preserves the impeachment value of the recorded statements.
{¶ 82} After receiving Anderson's motion to compel, the staff attorney scheduled a
telephone conference for the afternoon of November 19, 2018. He asked defendants'
counsel to review the caselaw cited in Anderson's motion and prepare legal argument
responding to Anderson's contention that she could temporarily withhold the audio
recording.
{¶ 83} Although there is no transcript of the November 19, 2018 conference, both
attorneys offered affidavits describing what occurred during the conference. Both attorneys
agree that they argued over whether Anderson could postpone disclosure of the audio
recording until after Delaney's deposition pursuant to the federal caselaw cited in
Anderson's motion to compel.
{¶ 84} In a November 26, 2018 entry, the trial court ordered that: (1) Anderson
must disclose to defendants any and all recordings of statements made by Delaney relevant
No. 20AP-291 26
to the case within seven days, (2) Delaney's deposition must recommence as soon as
practicable after the disclosure of the relevant recordings, and (3) the parties could not use
any portion of Delaney's prior deposition related to the previously undisclosed recordings
at trial. (Nov. 26, 2018 Entry.)
{¶ 85} Anderson then filed a motion to vacate a portion of the November 26, 2018
entry. Anderson argued that the trial court should vacate the part of its order striking
Delaney's deposition testimony because the court lacked the authority to sanction
Anderson. In support of the motion, Anderson again argued that she had a substantial legal
basis to withhold the audio recording until after Delaney's deposition.
{¶ 86} In an entry dated January 8, 2019, the trial court refused to vacate its
November 26, 2018 entry. In so ruling, the trial court indicated it had sanctioned Anderson
under former Loc.R. 39.05(D) for failing to follow the Civil Rules of Procedure when
responding to the discovery request for production of the audio recording. The trial court
further found that use of the deposition testimony at trial to argue that Delaney committed
perjury, as Anderson sought to do, would be unfairly prejudicial to defendants.
{¶ 87} Pursuant to former Loc.R. 39.05(D) of the Franklin County Court of Common
Pleas, General Division, a trial court could sua sponte impose sanctions for failure to
comply with the Civil Rules of Procedure.6 If the trial court found that a party or attorney
had failed to comply with the Civil Rules of Procedure without reasonable excuse or legal
justification, the court could impose sanctions proportional to the extent or frequency of
the violation. Former Loc.R. 39.05(D).
{¶ 88} A trial court has broad discretion when imposing discovery sanctions. Nakoff
v. Fairview Gen. Hosp., 75 Ohio St.3d 254 (1996), syllabus. An appellate court reviews
rulings imposing such sanctions only for an abuse of discretion. Id.; Home Sav. & Loans
Co. v. Eichenberger, 10th Dist. No. 12AP-1, 2012-Ohio-5662, ¶ 29.
{¶ 89} To determine whether the trial court erred in sanctioning Anderson, we must
first address whether Anderson violated the Civil Rules of Procedure in answering Request
No. 19. Interpretation of the Civil Rules of Procedure presents a question of law, which we
6 Effective November 15, 2020, the trial court amended Loc.R. 39.05 and deleted the provision discussed
in this decision.
No. 20AP-291 27
consider de novo. Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-941, 2011-
Ohio-3314, ¶ 11.
{¶ 90} Generally, a party responding to an allegedly improper discovery request has
two options: it "must move for a protective order under Rule 26(C) or use the objection
procedure provided under the discovery method [at issue]." Civ.R. 26, Staff Notes (July 1,
1970 Amendment); accord Civ.R. 34, Staff Notes (1970) ("The party served with the
requests has corollary burdens. Because he is subject to Rule 37 sanctions, he must object,
and he must, if he desires, seek a protective order under Rule 26(C)."). Consequently,
"[a]lthough a party objecting to discovery may seek a protective order or stay, it is under no
obligation to do so." In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 337
(N.D.Ill.2005). "The served party has the option of providing appropriate written
objections and leaving it to the party seeking discovery to file a motion to compel." Id.;
accord 8A Wright & Miller, Federal Practice and Procedure, Section 2035 (3d Ed.2021)
("In any event, a party may not remain completely silent when it regards discovery as
improper. * * * [I]t must object properly or seek a protective order[.]").
{¶ 91} When presented with Request No. 19, Anderson knew she possessed an audio
recording responsive to the request, but she wanted to withhold the recording until after
Delaney's deposition and believed she had legal grounds to do so. Thus, Anderson had a
choice. First, she could object to the production of the audio recording on the basis that she
should not have to produce it until after Delaney's deposition. Second, she could file a
motion pursuant to Civ.R. 26(C)(2) seeking a protective order delaying the production of
the audio recording until after Delaney's deposition. Anderson choose to pursue neither of
these options. Consequently, Anderson violated the Civil Rules of Procedure.
{¶ 92} We recognize that Anderson objected to Request No. 19. Anderson, however,
pursued none of the asserted objections in defending her response to that request for
production. Consequently, we must presume that Anderson did not pose those objections
with relation to the audio recording of the July 10, 2017 telephone call.
{¶ 93} Because Anderson violated the Civil Rules of Procedure, the trial court could
sanction her for this violation under former Loc.R. 39.05(D). The trial court chose to
sanction her by striking the portion of Delaney's first deposition related to the audio
recording. Anderson resists the extent of the trial court's sanction, protesting that it is too
No. 20AP-291 28
harsh because it excludes deposition testimony where Delaney lied. But Anderson has
failed to establish that Delaney lied in her deposition. When Delaney’s deposition resumed,
Delaney testified that she does not remember the July 10, 2017 telephone conversation with
Anderson at all. Delaney, therefore, could not remember Anderson disclosing her
congenital heart defect in the telephone call. As a consequence, when Delaney testified
prior to hearing the audio recording, she testified truthfully according to her stated
recollection. After hearing the audio recording, Delaney admitted that Anderson disclosed
her congenital heart defect during the call, but Delaney still did not remember Anderson
doing so. Given Delaney's explanation, we find no abuse of discretion in the trial court’s
ruling that defendants will unfairly suffer prejudice if the jury is allowed to hear Delaney's
testimony denying Anderson told her about her congenital heart defect. Therefore, we
conclude the trial court did not abuse its discretion in striking that evidence.
{¶ 94} In sum, the trial court did not err in sanctioning Anderson for violating the
Civil Rules of Procedure by not appropriately responding to Bright Horizons' discovery
requests. Accordingly, we overrule the sixth assignment of error.
F. Compelling E-Discovery
{¶ 95} By her seventh assignment of error, Anderson argues that the trial court erred
by denying her motion to compel the production of emails and text messages. We disagree.
{¶ 96} According to Anderson, she only received nine pages of emails and text
messages from defendants in response to a request for production seeking documents
related to her and her employment. Suspicious that more emails and text messages existed,
Anderson filed a motion to compel. After the parties had engaged in court-ordered
negotiations, Anderson insisted that the trial court order a search of the emails and text
messages on the devices of five named individuals for the period of January 1, 2017 to
June 30, 2018. Anderson demanded an extremely broad search, consisting of 14 search
strings, with a total of 79 separate search terms, including such generic terms as "knew!",
"sick!", "talk!", and "message!". Once the search had returned responsive emails and text
messages, Anderson wanted defendants to screen the emails and text messages for privilege
only. Defendants would then provide all non-privileged emails and text messages to
Anderson, who would agree to return any privileged documents inadvertently produced.
No. 20AP-291 29
{¶ 97} After the parties' negotiations, Bright Horizons searched the email of the five
named individuals during the applicable time period using Anderson's and her mother's
names (i.e., "Haley w/3 Anderson" and "Melody w/3 Anderson") and Anderson's and her
mother's email addresses. Bright Horizons then produced 483 pages of emails to
Anderson, which according to Bright Horizons, largely overlapped with Anderson's email
production to Bright Horizons.
{¶ 98} In an entry dated November 15, 2019, the trial court granted Anderson's
motion to compel, but ordered the search completed using the parameters proposed (and
followed) by Bright Horizons.
{¶ 99} Now, on appeal, Anderson argues that the trial court erred by not ordering a
search using 5 out of the 79 search terms Anderson identified. A trial court has broad
discretion to regulate discovery, and an appellate court will not reverse a trial court's
decision to deny or grant a motion to compel absent an abuse of discretion. Ettayem v.
Land of Ararat Invest. Group, Inc., 10th Dist. No. 19AP-427, 2020-Ohio-3006, ¶ 20; Simek
v. Orthopedic & Neurological Consultants, Inc., 10th Dist. No. 17AP-671, 2019-Ohio-3901,
¶ 117. Here, Anderson did not present the trial court with 5 search terms, but 79. Given the
expansive scope of the search Anderson sought, we conclude that the trial court did not
abuse its discretion in refusing to order that search. Accordingly, we overrule the seventh
assignment of error.
G. Forensic Inspection of Computers
{¶ 100} By her eighth assignment of error, Anderson argues that the trial court
erred in not allowing Anderson to forensically inspect Bright Horizons' computers. We
disagree.
{¶ 101} Anderson's attorney asked for the trial court to permit her to
forensically inspect Bright Horizons' computers in an affidavit filed in support of a Civ.R.
56(F) motion on February 4, 2020. Under Civ.R. 56(F), a trial court "may order a
continuance to permit * * * discovery to be had or may make such other order as is just."
As the provisions of Civ.R. 56(F) are discretionary, an appellate court reviews the trial
court's ruling on a Civ.R. 56(F) motion for an abuse of discretion. Libertarian Party of
Ohio v. Husted, 10th Dist. No. 16AP-496, 2017-Ohio-7737, ¶ 76.
No. 20AP-291 30
{¶ 102} Here, Anderson claims that defendants' counsel engaged in
misconduct in discovery that warrants a forensic inspection of Bright Horizons' computers.
In the case Anderson relies on for the relief she seeks, the defendants repeatedly
represented they had disclosed all responsive documents, when they had not. Bennett v.
Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, ¶ 42 (10th Dist.). Additionally, the
defendants adopted a dilatory approach to providing discovery. Id. Given this evidence of
noncompliance, we found the trial court did not abuse its discretion in ordering the
defendants to produce to the plaintiff forensic copies of the hard drives of the defendant's
corporate officers. Id.{¶ 103} Here, however, Anderson has not demonstrated defendants engaged
in any misconduct, much less misconduct on the scale proven in Bennett. Anderson has
not established that any responsive document exists that defendants have not disclosed.
Accordingly, we find no abuse of discretion in the denial of Civ.R. 56(F) relief, and we
overrule Anderson's eighth assignment of error.
{¶ 104} For the foregoing reasons, we sustain Anderson's second and fifth
assignments of error, and we overrule Anderson's first, third, fourth, sixth, seventh, and
eighth assignments of error. We affirm the judgment of the Franklin County Court of
Common Pleas in part and reverse it in part, and we remand this matter to the trial court
for further proceedings consistent with law and this decision.
Judgment affirmed in part and reversed in part;
cause remanded.
LUPER SCHUSTER, P.J., and NELSON, J., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under authority of Ohio Constitution, Article IV,
Section 6(C).