802 N.E.2d 1141 | Ohio Ct. App. | 2003
Lead Opinion
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{¶ 2} In 1991, appellant, Patricia Ferguson, began work for appellee, Lear Corporation, at appellee's Huron, Ohio injection molding plant.
{¶ 3} According to appellant, in 1993, while working in appellee's molding department, she came into contact with a chemical which caused blisters to form inside and outside her mouth. On a physician's instructions, appellee moved appellant to a job which did not require contact with the chemical that caused her reaction.
{¶ 4} In 1996, appellant again reported an adverse reaction to substances in the workplace. Appellant asserted that her exposure to aerosol chemicals at work caused her to experience shortness of breath and irritation to her skin, throat and chest.
{¶ 5} On May 30, 1998, shortly after starting her workday, appellant reported feeling hot and becoming nauseous. She then noticed a rash developing on her arm. Appellant was taken to a nearby hospital emergency room where an examination revealed scattered hives on her face, trunk and extremities. She *681 was diagnosed as having an allergic reaction, possibly to mold degreaser to which she had been exposed at work. Antihistamines were administered and appellant was advised to see her family physician.
{¶ 6} Shortly after her emergency room treatment, appellant saw her family physician, Dr. Susan Gallagher. Dr. Gallagher advised appellee that appellant could return to work provided that her tasks be restricted to "dry work only — no use of — no exposure to liquid aerosolized cleaning materials, solvents, paints, adhesives, liquid chemical sprays."
{¶ 7} Upon her return to work, appellee temporarily assigned appellant to breaking down corrugated boxes, a job which did not expose her to chemicals. Nevertheless, on June 19, 1998, appellant reported an allergic reaction to an aerosol cleaning spray to which she was exposed in a workplace restroom.
{¶ 8} In July 1998, during a plant shutdown which appellant maintains she was scheduled to work, she was laid off. Appellee insists that this was because appellant's medical work restrictions made appellee unable to place her in a job during this time. Appellant contends that the layoff was in retaliation for an OSHA complaint she filed about work conditions.
{¶ 9} After the summer shutdown, appellant bid on a "kitting" job, placing parts in a package. Appellee denied appellant that post, however, because working in the kitting department would expose her to propane and diesel fumes and an all-purpose spray cleaner known as "Mean Green." Such conditions would violate appellant's medical restrictions, according to appellee.
{¶ 10} In August 1998, appellant was awarded a position as a "shipping/receiving clerk." There is a dispute as to what this job entailed. According to appellee, an integral part of this position is that the employee spend a small part of her time near the loading docks where there are trucks and the necessarily accompanying fumes. Appellant insists that this is historically not true and that the job was previously limited to an office. Appellant insists that she was temporarily assigned to the loading dock to assist in a company audit. In any event, appellant was on a loading dock on August 12, 1998, when she reported experiencing yet another allergic reaction.
{¶ 11} Appellant's physician, Dr. Gallagher, concluded that the most recent episode was the result of appellee assigning appellant in an area that violated her medical work restrictions. On August 15, 1998, Dr. Gallagher sent appellee a letter advising it of her conclusions. The result of this letter, according to the deposition testimony of appellant's supervisor, was a company determination that there was nothing more appellee could do to accommodate appellant's restrictions and that, indeed, there was no existing position in the plant in which appellant could function. Appellee notified appellant that it was going to place her on *682 layoff until such time as the medical condition requiring the imposition of work restrictions was alleviated.
{¶ 12} Appellant never returned to appellee's employ. Instead, on May 25, 2001, she brought suit against appellee, alleging employment discrimination based on race and disability and retaliatory discharge. Appellee denied the allegations and the matter proceeded to discovery. Following discovery, appellee moved for and was granted summary judgment on all counts. From this judgment, appellant now brings this appeal, setting forth the following single assignment of error:
{¶ 13} "The trial court erred when it granted Lear's motion for summary judgment on Ms. Ferguson's claims of A) race discrimination, B) disability discrimination, and C) retaliatory discharge."
{¶ 14} On review, appellate courts employ the same standard for summary judgment as trial courts. Lorain Natl. Bank v. Saratoga Apts.
(1989),
{¶ 15} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler
(1988),
{¶ 16} The parties concur on the elements upon which a plaintiff must produce evidence to establish a prima facie case in each of the three claims appellant advances.
Racial Discrimination
{¶ 17} To make out a claim of race discrimination in employment, a plaintiff must prove that the employer acted with discriminatory intent.Mauzy v. Kelly Services, Inc. (1996),
{¶ 18} Appellee concedes that appellant, as an African-American, is a member of a racial minority and that she suffered an adverse employment action. The parties' dispute centers on the remaining two elements of the claim. Appellant insists that she was qualified for both the kitting job and the shipping clerk position and that comparable white employees were awarded these jobs and/or allowed to continue working on layoff. Appellee maintains that appellant's medical restrictions made her unqualified for the kitting and shipping jobs and that, in any event, the comparable nonprotected persons who appellant contends were treated more favorably than her were not, in fact, comparably situated.
{¶ 19} With respect to the kitting job, notwithstanding appellant's assertion that the "Mean Green" aerosol cleaner used in that job is benign, appellant's own physician testified that working with such a product violated the medical work restrictions that the physician had issued.
{¶ 20} Concerning the shipping position, the parties disagree as to whether the position did or did not require that such a clerk work among the fumes on the loading dock.
{¶ 21} The pivotal question is whether appellant has shown that more favorably treated nonprotected employees were, indeed, comparable.
{¶ 22} "[T]he plaintiff must show that the `comparables' are similarly-situated in all respects. Thus, to be deemed `similarly-situated,' the individuals with whom the plaintiff seeks to compare [her] treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. (Citation omitted and emphasis sic.)" Kroh v. Continental Gen. Tire,Inc.,
{¶ 23} Appellant advances seven employees as "comparables." Two of these had weight restrictions on lifting and were accommodated by appellee by being assigned to light duty jobs. Four of these apparently had no medical restrictions, but were Caucasian shipping clerks who were not laid off. The seventh "comparable" is a woman that appellant claims was on medical restriction for an allergic reaction to PVC fumes who was reassigned in accommodation to that restriction.
{¶ 24} In our view, the scope of appellant's medical restrictions is material as to whether other nonprotected employees were similarly situated and, therefore, valid comparables. Those employees who had weight restrictions or no restrictions are not similarly situated to appellant.
{¶ 25} The facts advanced by appellant with respect to the remaining employee are simply not supported by the record. In her memorandum in opposition to summary judgment, appellant cites to her own deposition testimony and appellant's response to interrogatories and requests for admission. Yet, the only evidence provided by appellant in her own deposition was that, "yes, some girl was on restrictions to my knowledge." The interrogatories and admissions to which appellant cites contain only an admission that such a woman worked at Lear. The remaining questions, as to this employee's medical restrictions, were objected to on the ground of medical confidentiality and were not answered, pending a court ruling on the objection or an appropriate protective order. We find nothing in the record showing that such a ruling was made or such a protection order issued. As a result, this employee may not be used as a "comparable." Accordingly, appellant has failed to meet her burden to come forth with evidence that comparable nonprotected employees were treated more favorably and the trial court's award of summary judgment on this claim is sustained.
Retaliatory Discharge
{¶ 26} For the elements of wrongful discharge, the parties rely on identical oft quoted standards articulated in Painter v.Graley (1994),
{¶ 27} "* * * Ohio courts may find useful the analysis of Villanova Law Professor H. Perritt, who, based on review of cases throughout the country, has described the elements of the tort as follows:
{¶ 28} "`1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
{¶ 29} "`2. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element). *685
{¶ 30} "`3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
{¶ 31} "`4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).' (Emphasis sic.) H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-399." See, also, Collins v. Rizkana (1995),
{¶ 32} The inclusion of this claim is somewhat perplexing. All of the cases cited relate to circumstances in which employees-at-will were discharged for reasons in violation of public policy. Employees-at-will may be terminated by an employer for any reason or for no reason. Phungv. Waste Management, Inc. (1986),
{¶ 33} Retaliatory discharge for an employee who has reported a workplace violation to OSHA is in violation of public policy. Kulch, supra, at 151-152. Appellant insists that her layoff was in retaliation for her OSHA report.
{¶ 34} Appellee denies this connection and points out that it was not even notified of an OSHA investigation until substantially after appellant was laid off. Appellant responds that appellee could have known because several days before she was laid off appellant told her Local UAW union president about the OSHA complaint. Since the union and management maintained regular communication, appellant insists that appellee could have discovered the OSHA complaint though that means.
{¶ 35} Appellant's assertion is problematic in two respects. First, her reference to her union president, as well as other references throughout the record, suggested appellant is a union member and presumably the beneficiary of a collective bargaining agreement. In other words, she is not an employee-at-will and, therefore, may not pursue aGreeley action. Haynes v. Zoological Soc. of Cincinnati (1995),
Disability Discrimination
{¶ 36} Both the Americans with Disabilities Act (ADA), 42 U.S. Code 12112 and R.C.
{¶ 37} The standards for establishing a prima facie case under either law is "virtually identical." Sadinsky v. EBCO Mfg. Co. (1999),
{¶ 38} "To state a claim of disability discrimination under the ADA, a party must establish that:
{¶ 39} "` * * * (1) He [or she] is an individual with a disability; (2) he [or she] is "other-wise qualified" to perform the job requirements, with or with-out reasonable accommodation; and (3) he [or she] was discharged solely by reason of his [or her] handicap. * * *'Monette v. Electronic Data Systems Corp. (C.A. 6, 1996),
{¶ 40} "` * * * (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. * * *' Columbus Civ. Serv. Comm. v. McGlone
(1998),
{¶ 41} The argument with respect to disability discrimination centers upon whether appellant is "disabled" within the context of the ADA or R.C.
{¶ 42} Appellee, citing Maulding v. Sullivan (C.A. 8, 1992),
{¶ 43} The cases appellee cites are either procedurally distinguishable or do not support the proposition appellant advances on their authority. Maulding is an appeal from a district court decision affirming a U.S. Merit System Protection Board factual finding that Maulding, a pharmacologist in the U.S. Department of Health and Human Services, failed to present adequate proof that her chemical allergy precluded her from laboratory work. As an alternate ground for affirmance, the appellate court approved the district court's observation that a major life activity is not substantially limited when an impairment interferes with the performance of only one particular job.Maulding at 698.
{¶ 44} This conclusion is echoed in Wooten, supra, quoting Heilweilv. Mount Sinai Hosp. (C.A. 2, 1994),
{¶ 45} The present matter is distinguished from Maulding because that case was a review of a finding of fact following a hearing whereas this case is before us on summary judgment. In summary judgment, the existence of a material question of fact precludes affirmance. Whether a plaintiff is substantially limited in a major life activity is generally a question of fact. Hines v. Chrysler Corp. (2002),
{¶ 46} We also find it somewhat incongruous that appellee argues that the impairment of appellant's capacity to work is insufficient to qualify her as "disabled" when appellee concedes that the restrictions arising from this impairment preclude her from any job in their factory. This strikes us as a material question which should be resolved by a trier of fact.
{¶ 47} Appellee advances a similar convoluted argument as to whether appellant was qualified for any position in the plant. Appellee is unqualified for a *688 "kitting" position or a clerk's position because both of those jobs would place her in contact with conditions which would violate her medical restrictions. Appellee seems to suggest that appellant is not disabled, but if she is, her disability disqualifies her from any job she might be otherwise qualified for in the plant. Again, this is the sort of assertion which should be tested by a trier of fact.
{¶ 48} Consequently, we conclude that a question of fact exists at to whether appellant is legally "disabled" and qualified for a position and that question is material to whether appellee engaged in employment discrimination based on disability with respect to her. Accordingly, appellant's assignment of error with respect to disability discrimination is well-taken.
{¶ 49} On consideration whereof, the judgment of the Erie County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to said court for further consideration consistent with this decision. Costs to appellee.
Judgment reversed.
Peter M. Handwork, P.J. and Arlene Singer, J., concur.
Dissenting Opinion
{¶ 50} I respectfully dissent on the majority's conclusion that there are material issues of fact on appellant's claim under R.C.
{¶ 51} Because I believe that the record shows Ferguson's medical restrictions render her unqualified for any position at Lear's plant and that no material issues remain, I would affirm the trial court's decision to grant summary judgment on all causes of action. *689
