SAMUEL N. CARNAHAN, PLAINTIFF-APPELLANT, v. MORTON BUILDINGS, INC., DEFENDANT-APPELLEE.
CASE NO. 11-14-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY
August 31, 2015
2015-Ohio-3528
Appeal from Paulding County Common Pleas Court, Trial Court No. CI-12-134, Judgment Reversed and Cause Remanded
William J. O’Malley for Appellant
Michelle J. Sheehan and Laurie J. Avery for Appellee
{¶1} Plaintiff-appellant Samuel N. Carnahan (“Carnahan“) brings this appeal from the judgment of the Court of Common Pleas of Paulding County granting summary judgment to defendant-appellee Morton Buildings, Inc. (“Morton“). For the reasons set forth below, the judgment reversed.
{¶2} Carnahan began working for Morton in May of 2008. Doc. 1. In March of 2011, Carnahan was promoted from crew leader to the position of crew foreman. Id. In August of 2011, Carnahan and his crew were working on constructing a pole barn on a farm in Missouri. Id. The manager of the property offered to take the crew on an ATV tour of the farm. Id. During the tour, Carnahan fell from the ATV and suffered severe head trauma. Id. Carnahan was life-flighted to a hospital in St. Louis where a portion of his skull and a portion of his temporal lobe had to be removed due to brain swelling. Id. Carnahan spent two weeks in the ICU and was then transported to the hospital‘s in-patient rehabilitation unit where he remained until September 28, 2011. Id. Carnahan was then released and permitted to return to Ohio. Id.
{¶3} Upon Carnahan‘s return to Ohio, he underwent numerous therapies under the care of his family physician. Id. Carnahan‘s recovery went well and his physician, after consultation with Carnahan‘s neurosurgeon and physical therapist,
{¶4} On July 3, 2012, Carnahan filed a complaint alleging that Morton had terminated his employment based upon his disability or upon a perceived disability pursuant to
{¶5} On February 7, 2014, Morton filed its motion for summary judgment. Doc. 33. Carnahan filed his memorandum in opposition to the motion for
The trial court erred [when] it granted summary judgment to [Morton] on [Carnahan‘s] claim of disability discrimination.
{¶6} The sole assignment of error is that the trial court erred in granting Morton‘s motion for summary judgment.
An appellate court reviews a trial court‘s summary judgment decision de novo, independently and without deference to the trial court‘s decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 8. Summary judgment is appropriate only “when the requirements of
Civ.R. 56(C) are met.” Adkins v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The party moving for summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Id., citingCiv.R. 56(C) ; Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. In ruling on a motion for summary judgment, a court may not “weigh evidence or choose among reasonable inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court must consider the above standard while construing all evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.
The party moving for summary judgment must identify the basis of the motion to allow the non-movant a “meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d 798. In its motion, the moving party “must state specifically which areas of the opponent‘s claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by
Civ.R. 56(C) .” Id. at 115, 526 N.E.2d 798, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 196 N.E.2d 781; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a “reciprocal burden outlined inCiv.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *.” Dresher, at 294, 662 N.E.2d 264.
Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶21-22. The trial court did not provide any basis for its ruling, instead merely stating that Morton‘s motion for summary judgment was granted.
{¶7} Carnahan brought a claim for disability discrimination pursuant to the Ohio Civil Rights Act. Carnahan appears to allege 1) that he suffers from a disability, or in the alternative 2) that Morton believed that he suffered from a disability and that he was fired for one of these reasons.
It shall be an unlawful discrimination practice:
(A) For any employer, because of the * * * disability * * * 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.
To establish a prima facie case of handicap discrimination, the person seeking relief must demonstrate (1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question.
McGlone, supra at 571. A person can gain the protection of the disability discrimination laws even if he or she is not disabled if the employer regards the person as being disabled. Id. at 572.
{¶8} Here, Carnahan does not argue that he was in fact suffering from a disability. In his brief, Carnahan states that he suffered a traumatic injury, but also
{¶9} However, there was evidence presented that indicated that there may be a genuine issue of material fact regarding whether Morton perceived Carnahan as having a physical or mental impairment.
(16)(a) Except as provided in division (A)(16)(b) of this section, “physical or mental impairment” includes any of the following:
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine;
(ii) Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus
infection, mental retardation, emotional illness, drug addiction, and alcoholism.
{¶10} There is no dispute that Morton was concerned that Carnahan may have suffered from a mental impairment as a result of his accident. Jerald Verplaetse (“Verplaetse“) was the regional manager for Morton. Verplaetse Dep., 3. Verplaetse testified that he was told by an employee that several employees had spoken with Carnahan and were concerned because Carnahan‘s demeanor had changed and he was suffering a “little loss of memory when it came to adding numbers.” Id. at 10-12. Verplaetse also testified that the employees were concerned because Carnahan‘s balance seemed off. Id. at 12. However Verplaetse testified that he did not speak to Carnahan himself and did not speak to the employees who were concerned, but was just told about it from a third party.
{¶11} Elizabeth Roberts (“Roberts“) testified that she was the benefits manager for Morton. Roberts Dep., 5. Roberts testified that Morton‘s policy is that they do not allow people to come back to work until they are released to work without restrictions. Id. at 20. However, Roberts testified that if an employee is injured at work, Morton will make accommodations for work restrictions. Id. at 21. Light duty accommodations are only for those who are subject to worker‘s compensation claims. Id. at 22. Roberts testified that she set up the fit for duty examination because Morton was concerned that Carnahan suffered from memory impairment. Id. at 26, Plaintiff‘s Ex. 8. Roberts also identified Plaintiff‘s Exhibit 10 as a series of emails that occurred leading to the termination of Carnahan. Id. at 30. The initial email was from Andrew Johnson (“Johnson“) of Occu-Med, which handled Morton‘s risk management services for worker‘s compensation. Id. at 31-32. On February 22, 2012, at 8:08 p.m., Johnson indicated that based
{¶12} Potter also testified that he knew that Carnahan had been injured and that the injuries were severe. Potter Dep., 7-9. When Carnahan‘s doctor released him for limited work hours, Morton did not bring Carnahan back because the company‘s policy is that there are no part-time positions for full-time crew members unless it was a work-related injury. Id. at 11. Morton‘s policy is that if an employee suffers a personal injury, they cannot return to work until they are released without restrictions. Id. at 13. Potter testified that the fitness evaluation was required because Morton was concerned about Carnahan‘s ability “to do the physical part of the job and, plus, the safety concerns we had on the current
{¶13} Carnahan‘s deposition was also filed with the trial court. Carnahan testified that he was then employed by Campbell‘s as a forklift operator. Carnahan Dep. 8-9. As part of his job, he has to physically lift cases of soup and put them on a pallet. Id. at 9. Additionally, he is required to work at heights 20-30 feet in the air, though not on a ladder. Id. at 10. Carnahan testified that he has no physical restrictions on his job and passed the physical for employment. Id. at
{¶14} Carnahan was set to see Policheria on January 24, 2012. Id. Policheria did not conduct any physical examination, but merely did an EEG, a CT scan and neurological testing where he asked Carnahan questions. Id. at 44-45. Carnahan testified that he passed the neurological testing with a score of 30-30, which was also confirmed by Policheria‘s report. Id. at 45, Defendant‘s Ex. F. Although Carnahan disagreed with Policheria‘s conclusions, he did not argue with
{¶15} The first element Carnahan must show to establish a prima facie case for employment discrimination is that Morton regarded him as having a physical or mental impairment as set forth in
{¶16} Next, Carnahan must establish that an adverse action was taken by Morton. It is an unlawful discriminatory practice for an employer to discharge an employee without just cause because of a disability.
Generally, to demonstrate that an adverse employment action has occurred, a plaintiff must show that the employer‘s conduct caused a “materially adverse change in the terms and conditions of employment.” The federal Sixth Circuit Court of Appeals has determined that a “materially adverse change” means something more than mere inconveniences: “[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”
Brown v. Dover Corp, 1st Dist. Hamilton No. C-060123, 2007-Ohio-2128, ¶27 (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (C.A. 6, 1999)). A termination of employment would qualify as an adverse employment action.
{¶17} There is no dispute that as a result of the report provided by Policheria, Morton terminated Carnahan‘s employment. Potter testified that he decided to terminate Carnahan‘s employment upon reading the report. This is an adverse action. Thus, the second element of the prima facie case has been met.
{¶18} Finally, Carnahan must present evidence that he can still do the job. He submitted a note from his doctor permitting him to return to work without restriction.2 Additionally, Carnahan testified that at his current employment, he is still doing manual labor that requires him to be on his feet and can require working
{¶19} In reviewing a trial court‘s granting of summary judgment, this court must view all evidence in a light most favorable to the non-moving party. A review of the record in this case indicates that there are genuine issues of material fact as to whether Morton perceived Carnahan as being physically or mentally impaired and terminated his employment as a result. Morton claims that Carnahan‘s employment was terminated for safety reasons. Carnahan claims that it was the result of discrimination for a perceived impairment. When the record is viewed in a light most favorable to Carnahan, a reasonable jury could determine that Morton discriminated against Carnahan by terminating his employment for a perceived impairment. As a result, the granting of summary judgment was in error as to the claim that Morton regarded him as having a physical or mental impairment. The assignment of error is sustained.3
{¶20} Having found error prejudicial to Appellant, the judgment of the Court of Common Pleas of Paulding County is reversed and the cause is remanded for further proceedings.
SHAW, J., Concurring in Judgment only.
PRESTON, J., Concurring in Judgment only.
{¶21} While I concur with the plurality‘s decision to reverse in this case, I disagree with the plurality‘s analysis.
{¶22} As the plurality correctly points out, the trial court did not provide any rationale for why it granted Morton‘s motion for summary judgment. In a disability-discrimination case under
{¶23} To establish a prima-facie case of disability discrimination, Carnahan must first show that he has a disability under the statute. “Disability” is defined by the statute as
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.
(Emphasis added.)
{¶25} To prove that he is disabled under the “substantially limits” prong, Carnahan must demonstrate genuine issues of material fact that:
(1) he [is] disabled, (2) [that] an adverse employment action was taken by an employer, at least in part, because the individual [is] disabled, and (3) [that Carnahan], though disabled, can safely and substantially perform the essential functions of the job in question[—in this case, construction foreman].
Pavlick v. Cleveland Hts.-Univ. Hts. Bd. of Edn., 8th Dist. Cuyahoga No. 101570, 2015-Ohio-179, ¶ 9, citing DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, ¶ 39 (10th Dist.2001), citing McGlone, 82 Ohio St.3d at 571.
{¶27} As noted by the plurality, Ohio courts “may look to federal regulations and case law in interpreting the Americans with Disabilities Act (“ADA“).” Hart v. Columbus Dispatch/Dispatch Printing Co., 10th Dist. Franklin No. 02AP-506, 2002-Ohio-6963, ¶ 24, citing McGlone at 573. However, the Supreme Court of Ohio refined this statement, and “federal materials may only be utilized ‘when the terms of the federal statute are consistent with Ohio law or when R.C. Chapter 4112 leaves a term undefined.‘” Dalton v. Ohio Dept. Rehab. & Corr., 10th Dist. Franklin No. 13AP-827, 2014-Ohio-2658, ¶ 28, quoting Scalia v. Aldi, Inc., 9th Dist. Summit No. 25436, 2011-Ohio-6596, ¶ 23, citing Genaro v. Cent. Transport, 84 Ohio St.3d 293, 298 (1999).
{¶28} “Substantially limits” is not defined by
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
Pavlick, 2015-Ohio-179, at ¶ 13, quoting
{¶29} After incorrectly stating that Carnahan does not argue that he is disabled, the plurality concludes that “[t]he undisputed evidence indicates that there was no actual disability.” (plurality Opinion at ¶ 8). I agree that there is no genuine issue of material fact that Carnahan is not disabled under the “substantially limits” prong of the statute, but for different reasons. Carnahan argues that he suffered a “traumatic brain injury, which affected his ability to perform manual tasks, to speak, to hear, and to think4 for many months.” (Footnote added.) (Appellant‘s Brief at 10-11). To demonstrate the existence of a genuine issue of material fact whether his traumatic brain injury is a disability under the “substantially limits” prong of the statute, Carnahan must set forth
The patient‘s speech is appropriate, except for hoarseness. The patient can initiate and hold a conversation. * * * No history of hallucinations, delusions. The patient‘s attention and concentration are appropriate with good motivation. The patient‘s abstraction is within normal limits. * * * The patient‘s attention, calculation, and drawing are appropriate. Mini-Mental Status Examination was also performed. The patient has a score of 30/30. * * * Hearing appears appropriate. * * * Motor Examination: Normal tone and strength. No abnormal movements noted. * * * IMPRESSION: * * * Currently, the patient is neurologically stable. * * * The patient has no memory problems. * * * The patient indicated that he is participating in day-to-day activities without any significant difficulties. OPINION: * * * Currently, the patient‘s stamina, flexibility, strength, coordination, equilibrium, dexterity, vision, hearing, mobility, and effort are fairly within normal range. * * * Based on my evaluation on January 24, 2012, Mr. Samuel
Carnahan‘s cognitive ability, organization, and recall skills are within normal limits. I do not see any cognitive deficiency currently.
(Doc. No. 30, Plaintiff‘s Ex. 7).
{¶30} Moreover, that Dr. Policheria placed restrictions on Carnahan does not render him disabled within the meaning of the
- To avoid working above floor level.
- To avoid any head injuries.
- To avoid any falls.
- Avoid working at heights and climbing ladders.
- To avoid irregular and extended work hours and overtime.
- To avoid sleep deprivation.
- To avoid exposure to extreme temperatures for more than 50% of his work time.
- To avoid climbing ladders to hang trusses and install roofing.
(Id.). Certainly, none of these restrictions show that Carnahan‘s traumatic brain injury substantially limits his ability to perform manual tasks, speak, hear, or think. See
{¶31} Carnahan testified that he shared Dr. Policheria‘s report with his physician and chose not to obtain another examination “because [his] primary care physician checked him out and said [he] was okay, [and] all of [his] therapists felt that [he] was okay.” (Carnahan Depo., Doc. No. 25 at 50). Carnahan further testified that he has not had any seizures or problems with dizziness or balance. (Id. at 60). Likewise, he testified that he is working for Campbell‘s as a forklift operator without restrictions. (Id. at 8, 11). In addition, evidence in the record reflects that Carnahan‘s physician authorized Carnahan to return to work on January 2, 2012 at 20 hours per week and to return to work on January 15, 2012 at 40 hours per week without restrictions. (Doc. No. 30, Plaintiff‘s Ex. 2).
{¶32} Furthermore, Carnahan concedes that he was “affected” by his traumatic brain injury for only “many months.” (See Appellant‘s Brief at 10-11). In analyzing the language of the ADA, the United States Supreme Court
{¶33} Therefore, Carnahan did not support his opposition to Mortion‘s motion for summary judgment with any evidence that his traumatic brain injury substantially limits a major life activity—that is, he failed to demonstrate a genuine issue of material fact that he is “[u]nable to perform a major life activity that the average person in the general population can perform” or that he is “[s]ignificantly restricted as to the condition, manner, or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”
{¶34} In the alternative, Carnahan argues that Morton regarded him as having a “disability.” To establish a prima-facie case of disability discrimination under the “regarded as” prong of
{¶35} I agree with the plurality‘s conclusion that there are genuine issues of material fact whether Morton regarded Carnahan as having a disability. In particular, I conclude that there are genuine issues of material fact whether Morton regarded Carnahan as having a mental or physical impairment, took an adverse employment action against Carnahan based on that perceived mental or physical impairment, and that Carnahan could safely and substantially perform the essential functions of a construction foreman.5
{¶36} As the plurality aptly states, the Supreme Court of Ohio has not addressed the “regarded as” prong of the definition of disability under
{¶37} Carnahan, however, must demonstrate a genuine issue of material fact that Morton regarded him as having a physical or mental impairment as defined by Ohio law. Scalia, 2011-Ohio-6596, at ¶ 25, citing
(iii) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine;
(iv) Any mental or psychological disorder, including, but not limited to, mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;
(v) Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, mental retardation, emotional illness, drug addiction, and alcoholism.
{¶38} The plurality concludes that “[t]here is no dispute that Morton was concerned that Carnahan may have suffered from a mental impairment as a result of his accident.” (Plurality Opinion at ¶ 10). I concur with the plurality‘s ultimate conclusion that there is a genuine issue of material fact whether Morton regarded Carnahan as having a physical or mental impairment. But, not for the reasons Carnahan proposes. In support of his argument, Carnahan points to the fitness-for-duty examination to which Morton sent Carnahan and to an email in which Potter stated, “I can‘t believe he made it back” as evidence that Morton regarded him as having a “disability.” (Appellant‘s Brief at 11).
{¶39} First, Carnahan‘s argument that Morton sending Carnahan for a fitness-for-duty exam is evidence that Morton regarded Carnahan as having a disability is meritless. “Ohio and federal courts have concluded that merely sending an employee to an [Independent Medical Examination] or other type of fitness for duty examination, does not amount to evidence that the employer perceived the employee as [having a physical or mental impairment].” Dalton at ¶ 31, citing Peters v. Ohio Dept. of Natural Resources, 10th Dist. Franklin No. 03AP-350, 2003-Ohio-5895, ¶ 24, Sullivan v. River Valley School Dist., 197 F.3d 804, 808 (6th Cir.1999), James v. Goodyear Tire & Rubber Co., 354 Fed.Appx. 246, 249 (6th Cir.2009), Mickens v. Polk Cty. School Bd., 430 F.Supp.2d 1265, 1274 (M.D.Fla.2006), and Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996). See also Ames v. Ohio Dept. of Rehab & Corr., 10th Dist. Franklin No. 14AP-119, 2014-Ohio-4774, ¶ 29 (sending employee to three medical examinations does not demonstrate that the employer regarded the employee as having a physical or mental impairment). Therefore, requiring an employee to attend a fitness-for-duty examination alone is not evidence that the employer regarded the employee as having a physical or mental impairment.
{¶40} Second, Carnahan‘s proposition, without citation to any authority or supporting argument, that Potter‘s email statement is evidence that Morton regarded him as having a mental or physical impairment is baffling. In context, Potter wrote “I am good with that, I can‘t believe he made it back” in response to an email informing him that Carnahan was permitted to return to work without restrictions. (Plaintiff‘s Ex. 6). While Potter‘s statement reflects that he may have regarded Carnahan as having a physical or mental impairment at one time, Potter‘s statement does not impart that he regarded Carnahan as presently having a mental or physical impairment. Thus, it is unclear how that evidence creates a genuine issue of material fact that Morton regarded Carnahan as having a mental or physical impairment.
{¶41} Nonetheless, there is a genuine issue of material fact whether Morton regarded Carnahan as having a mental or physical impairment because there is a genuine issue of material fact whether Morton terminated Carnahan because of a
{¶42} Most pertinently, there is a genuine issue of material fact whether Carnahan can safely and substantially perform the essential functions of a construction foreman.7 The plurality concludes that because Carnahan‘s physician
{¶43} The record contains conflicting evidence whether Carnahan can safely and substantially perform the essential functions of a construction foreman. Specifically, the “return to work” slip from Carnahan‘s physician, Dr. Barb, indicates that Carnahan could return to work without restrictions on January 15, 2012, while the medical report of Dr. Policheria from the fitness-for-duty examination indicates that Carnahan could return to work with restrictions. (Doc. No. 30, Plaintiff‘s Exs. 2, 7). Some of the essential functions of Carnahan‘s position as a construction foreman included working outside “90% of the day,” working in temperatures of “-10 degrees to 100 degrees plus,” and “frequent”8 climbing. (Carnahan Depo., Doc. No. 25, Defendant‘s Ex. A). Also, the job description notes that the position includes “hazards,” such as falls, heat, cold, ladders, and climbing. (Id.). Therefore, because Dr. Policheria recommended that
{¶44} Also, Carnahan testified that he is working for Campbell‘s, without restrictions, as a forklift operator. (Carnahan Depo., Doc. No. 25 at 8). He testified that the essential functions of that job include operating a forklift to “pick” orders, to lift cases of soup onto the forklift, and to go up 20 to 30 feet in the air in a “cage” attached to the forklift to release products when they become jammed in the racks. (Id. at 9-10). However, Carnahan testified that he had not yet performed the “cage” function because he had not received the proper training to perform that function. (Id. at 11). Based on those facts in the record, I conclude that there is a genuine issue of material fact whether Carnahan can safely and substantially perform the essential functions of a construction foreman.
{¶45} Therefore, I would reverse and remand for the trial court to determine whether Morton regarded Carnahan has having a physical or mental impairment in accordance with Ohio law. Then, if Carnahan is able to demonstrate a prima-facie case under the “regarded as” prong of
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