Markham v. Earle M. Jorgensen Co.

MARKHAM, Appellant, EMJ, Appellee. COMPANY, a.k.a. M. EARLE JORGENSEN Jorgensen 484.] Earle M. Co. Markham v. [Cite Ohio, Appeals Court District, Cuyahoga County. Eighth

No. 76350. Aug. Decided Co., L.P.A, Michael Terrence Conway Michael Terrence & Associates for Conway, appellant. Bittel, L.L.P., Bittel,

Joondeph, & M. P. Timothy Kelly Thomas Shaffer Kevin T. Lyden, appellee. J. Corrigan, Judge.

Michael herein, Markham, Brian Plaintiff-appellant entry from the appeals judgment trial court in defendant-appellee, favor Earle M. Jorgen- Co., EMJ, sen a.k.a. on appellant’s retaliatory claims for unlawful discharge under R.C. 4123.90 illegal handicap discrimination under 4112.02. Because we find uncontroverted before trial court demon- strated that the relating terminated reasons not to his applica- tion for workers’ compensation benefits and appellant’s because the handicap law, discrimination case' deficient as matter of we affirm the trial court’s grant summary judgment in appellee. favor The appellant began work at the appellee’s operations sometime or about March 1994 as a During warehouseman. his tenure working appellee’s job plant, appellant’s title was reclassified warehouseman to welder and operator. then Each change classification saw/machine constituted promotion with a raise in corresponding pay.

According appellant’s to the deposition testimony, own couple” he had filed “a compensation prior workers’ claims claim to the for which he now alleges caused his unlawful retaliatory termination. orOn about June injured his shoulder when he attempted pick one end of an up eighteen-foot-long, one-hundred-eighty-pound bar. The was diagnosed as a shoulder strain. The promptly applied for workers’ benefits as a result this injury.

The appellant was issued a “patient update” by work treating physician his on July which as of stated that that the appellant date was cleared to return to work but was to refrain from with lifting right his arm until his next 20, visit—or August 1997. to light-duty Pursuant work program adopted by the in appellee April the with consent the represented union that appellant, appellant the light-duty assignments offered work consistent with the by limitations issued his during doctor the period rehabilitation.1

The appellant did return to work after being by treating physician cleared his but consistently perform either refused to light duty requested the or would leave The employment relationship terms and conditions parties between the in this case governed by were bargaining agreement the collective appellee entered into between United Steelworkers Local 6037-2. condition.2 his shoulder activity aggravated the complaining after early work therapy appoint- his physical to work after failed return also appellant The from in too much pain he that he was because felt on different occasions ments request- assignments work perform light-duty even the treatments therapy his the included initially proposed by assignments The light-duty ed of him. warehouse, and office, painting in the light in maintenance filing papers writing appellant The stated building. front the spackling the outside but only the duties agree perform filing that would to the he proposal response consulting the duties “after perform whether he could other “advise” as to would doctor.” [his] up pick that he supervisor requested appellant’s the September

On lot, medically was still not appellant as the parking from company the debris twenty-five operator. After position his as machine to return to cleared litter, arm supervisor right his his appellant told picking up minutes of anyone had home and that going him that he was hurting his they lawyer. could contact concerning early departure, his questions early on at least two other occasions deposition in his left stated appellant In his brief appellate lot. being up parking to clean debris after asked and humiliated” court, states that he was “insulted appellant this filed with lot, light- as parking in the well as his other pick up trash request appellant expressed no that the ever assignments. There was duty to the light-duty assignments appellee. sentiments towards these light-duty period for a assignments had been on appellant After weeks, to have appellee arranged appellant four to six approximately operator. as a machine performing him his duties assist “helper” that he still had limited fact the claimed appellant was necessitated helper returned to his right period his arm. During use of helper, complain of a he continued operator a machine assistance to work an entire shift routinely in his arm to be unable pain and continued leaving early. without until of his appellant’s injury date of the the date

At all times relevant rate machine termination, hourly to full-time paid paid in which the operators. during period There was never a time on to reflect duty pay he was that his was decreased light off work while job responsibilities. diminished during Although consistently perform light-duty assignments appellant

2. the refused to even early, complained in repeatedly nonetheless period following his left work the that, although operator during rate this entire paid his machine deposition he was his (and pursuant bargaining during period the to a collective a raise same period even received duty. unfairly light because he was on agreement), he was refused overtime appellant After the repeatedly light duty had either refused assignments or had left work early despite only being requested to do limited work with his one arm, good appellee the retained the of a private services investigator deter- mine the was appellant working job at another during the hours he was supposed to be at appellee’s plant.3 investigation appellant revealed that he had a fairly lengthy criminal record he had failed to on disclose his job application. Specifically, the appellant felony had convictions from theft, two separate forgery, cases uttering, receiving stolen property, and checks, passing bad 1989 for felonious assault aggravated assault arising out of a single indictment. The appellant jail served a six-month sentence on his convictions for assault, felonious assault and aggravated which he also failed to on job application. disclose his

When appellee’s plant manager confronted the appellant with results of the investigation, appellant again once lied and denied that he had criminal record that he had ever prison served a It only sentence. was when he was confronted with the actual physical documentation of his criminal record appellant finally admitted to his past. upon Based fact appellant had a lengthy record of activity behavior, criminal involving dishonest that he had failed to disclose his record on his application despite fact that he was so, clearly obligated to do and that he had continued to deny he had a criminal record when he was questioned point subject blank on the by the plant manager, appellee immediately issued the appellant five-day suspension without pay pending discharge. The appellant was thereafter formally terminat- ed on October 1997. During the entire conversation which appellant questioned by plant manager subsequent to which he received the five- day suspension that led to his discharge, appellant accompanied by representative. union Both appellant and the union representative signed the written notice of suspension.

Appellant initially against filed suit on January alleging illegal retaliatory discharge under R.C. 4123.90. admittedly failed to provide appellee written notice of his intent to bring prior suit to initially filing his complaint. R.C. 4123.90 provides that a lawsuit alleging retaliatory discharge shall be brought within one-hundred-eighty days of the adverse in question, action but that “no may action be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within ninety days immediately following discharge, demotion, reassignment Although private investigator did not document that the working a second job during supposed the hours appellee’s plant, he was to be at later admitted in deposition employed part-time that he apartment as maintenance man at building during period. where he lived the relevant time 490 lawsuit, pursuant initial dismissed the appellant action taken.”4 The punitive 23,1998. 41(A), action on March and then the

to Civ.R. refiled for 28, 1998, Motion to Dismiss Lack appellee the filed “Defendant’s On April alleged it was the Jurisdiction,” again wherein once of Matter Subject R.C. of the violation of 4123.90 to written notice claimed provide failed 8, 1998, court July the trial denied the of his termination. On ninety days within 8, 1998, granted trial court the leave to July On the motion to dismiss. illegal handicap cause of for so as include a action complaint amend his or, alternative, 4112.02, R.C. 4112.99. discrimination, the pursuant R.C. Thereafter, 19, 1999, summary a motion for January appellee filed on facts disputed it was that even where the were judgment alleged which was entitled to strongly appellant, appellee most favor of construed minds conclude that only because could summary judgment reasonable a claim retaliatory filing not as a measure for for appellant was terminated was summary judgment granted motion for compensation benefits. The workers’ read, 29, 1999, in an on March which in its journalized the trial court order entirety, as follows: Summary Judgment as to first and second cause of granted

“Motion for Plaintiff proper, action. basis for termination was failed to Defendant’s pretextual for the See Aloi Ravenna provide discharge. sufficient reason 286130]; 18; Lexis App. page Aluminum Indus. 1997 Ohio WL [1997 Kilbarger Hocking v. Anchor Co. Glass 1080, 1084-1085. FINAL.” from the the trial

Appellant timely appeal filed within order of court and two presents assignments a total of three of error. The first assignments fact, error, concurrently. a common in law and will addressed having basis be assignments first two error state: “1. court erred prejudice plaintiff-appellant The trial to the dismiss- summary for ing pursuant defendant-appellee’s judgment case motion did not theory plaintiff-appellant provide opposition under the sufficient appellant’s for defendant-appellee’s terminating evidence that reason employment pretextual. appellee part Although large devotes a of its brief submitted to this court to issue granted appellee's comply for failure to whether the trial court should have motion to dismiss 4123.90, ninety-day requirement cross-assignment with there no error sponte, presented point. jurisdiction This to raise the sua it on this court declines issue of as appears jurisdiction Additionally, parties dispute the .proper. because the date when permanently discharged, a finder of fact learned had been could fact, did, reasonably conclude that receive written notice of the claimed violation ninety days immediately following discharge. within R.C. 4123.90 The trial prejudice by deciding

“2. court erred of plaintiff-appellant fact, matter of deciding verses whether or there exists sufficient [sic] trial, review of motion for summary judgment and on defendant’s claim, respect to the retaliation to wit: the reason the defendant- ” appellee gave terminating the plaintiff-appellant’s ‘proper.’ 56 provides granted Civ.R. be trial judgment may only after the (1) genuine court determines that no issues as to material fact remain be (2) (3) litigated, moving law, is entitled to as a and party judgment matter of it appears the evidence reasonable minds can come but one conclusion and such evidence in favor viewing against most of the strongly party made, whom the motion for summary judgment is that conclusion is adverse (1982), 1, 1, that party. Norris v. Ohio Std. Oil Co. Ohio 24 70 St.2d O.O.3d 433 615; United, 466, Temple (1977), 317, N.E.2d v. Inc. Ohio Wean 50 St.2d 4 O.O.3d 364 N.E.2d 267. is well

It established that the party seeking summary judgment bears of burden that no issues fact demonstrating of material exist for trial. Celotex (1986), 317, 330, 2548, 265, v. Catrett Corp. 2556, 477 U.S. 106 S.Ct. 91 L.Ed.2d 278; (1988), 115, 112, 38 Wheeler Ohio St.3d 526 Doubts N.E.2d 798. Mitseff v. be must resolved in favor of the nonmoving Murphy v. party. Reynoldsburg (1992), 356, 65 Ohio St.3d 604 N.E.2d 138. (1996),

In Dresher v. 280, 264, Burt 75 Ohio St.3d 662 N.E.2d State Ohio Supreme Court summary modified clarified the judgment standard as and/or Media, (1991), applied Wing 108, v. Anchor Ltd. Texas 59 Ohio 570 St.3d of Dresher, N.E.2d 1095. Under “the moving bears the initial party responsibility of informing motion, the trial court of the basis for identifying and those portions record which genuine demonstrate the absence of a fact or issue of material element of nonmoving party’s 296, Id. at claim.” 662 at 276. N.E.2d nonmoving party reciprocal has a specificity burden of rest on cannot allegations 293, mere or denials in the pleadings. Id. at 662 273-274. N.E.2d at nonmoving party must set forth “specific facts” the means in Civ.R. listed 56(C) showing that a genuine issue for trial Id. exists.

This court reviews the lower granting summary court’s de judgment (1993), 704, novo. Brown v. Cty. Scioto Bd. 87 Commrs. Ohio 622 App.3d N.E.2d 1153. An appellate court reviewing grant must judgment 56(C). follow the standards set forth Civ.R. “The reviewing court evaluates * * * * * the record most light favorable to nonmoving party *. [T]he must motion be overruled reasonable minds could find for party opposing motion.” (1990), 46, 50, 24, Saunders v. McFaul App.3d 71 Ohio 593 N.E.2d 26; Link v. 1140, Leadworks Corp. 607 App.3d 1144 must demon- plaintiff for retaliation wrongful

In a claim to establish order him because he against action taken that adverse strate Act. R.C. Compensation under the Workers’ rights exercise his attempted 4123.90. discharge when retaliatory case for prima facie employee

An establishes (2) (1) compensation filed workers’ injured job, on the he proves (3) Kilbarger 4123.90. claim, discharged contravention 332, 337-338, (1997), 120 697 N.E.2d Hocking Glass Co. Ohio Anchor 8, 6, 1083-1084; 18 OBR Riverside Ohio St.3d Hosp. Wilson v. injured on it is syllabus. While true 479 N.E.2d claim, produce any appellant did filed a workers’ Thus, has failed the claim. that he was fired because filed evidence discharge. retaliatory case establish discharge, retaliatory raises an employee inference Where the, to set forth a employer going forward with shifts burden discharge. Green v. Burton Rubber reason legitimate, nonretaliatory (Dec. 1998), 97-G-2102, Geauga unreported, No. App. Inc. Processing, a reason for nonretaliatory If the sets forth the employer legitimate, WL 964484. by given that the discharge, employee the must establish the reason employee’s for discharge that the reason the the pretextual is and real employer the Act. Id. activity Compensation under Workers’ While employee’s protected may employee shift between the going the burden of forward evidence cases, the always in these the will retain ultimate employer types employee the in an 4123.90. Id. action filed under R.C. proof burden Thus, retaliatory must set a facie case employee the forth nonretaliatory legitimate must set a reason then the forth discharge, employer and, must discharge finally, employee employer for the establish the a pretext employee for for nonretaliatory discharging used that reason Act. burden of by proving the Workers’ activity protected Compensation at all employer retaliatory employee. that had motive remains times on a 1991), 58508, 16, No. (May Cuyahoga App. v. Collinwood Ctr. Bertrand Serv. 1991WL unreported., 81487 nonretaliatory considering employer legitimate an has a reason

When whether fact keep for an must mind the that an discharging employee, court from compensation claim is not insulated dis employee who files workers’ (Dec. 11, Industries, 1991), Crawford App. In Anschutz v. Dresser Inc. charge. 261828, 3-90-8, quoted No. court and followed Brown v. unreported, 1991WL 1987), 9-86-20, 1987 (Sept. App. unreported, Marion No. WL Corp. Whirlpool 16261,which states: termination prohibit discharge just legitimate

“R.C. 4128.90 does not for an rights employer, It of an nor insulate employment. suspend does nature of an employee just discharge. punitive from an otherwise and lawful within its discharge meaning unlawful involves a well defined word and includes retaliatory must recognized legal implications, which under the statute be nature.”

Thus, maybe who have workers’ cases employees compensation filed just only against lawful The statute discharged protects reasons. claim. directly precipitated by filing compensation termination of a workers’ 1311; Plastics, Metheney Sajar App.3d v. Inc. 69 Ohio 590 N.E.2d S-99-013, 30, 1999), Sandusky App. Brown v. Lear No. Operations Corp. (Sept. Appellate 769553. In the Sixth District stated: unreported, Metheney, WL discharge “It within that an certainly possibility employer is the realm of could an of an when the actual employee guise policy company’s under attendance * * * Nevertheless, motivation is to a claim. it is punish filing the worker for apply scope of this court to the law as written. The of the cause action limited, very proof upon created the statute is and the burden of employee specifically response show that the termination was direct to the Plastics, Inc., filing Sajar of a claim.” Metheney supra, at 1314. case, In adopt policy the instant would have this court would prevent employers discharging employee who has filed workers’ claim, claim for compensation adequate grounds independent even where benefits exist for the dismissal. The to a few comments appellant points purportedly made other who of his employees questioned legitimacy injuries as claim filing he was terminated retaliation for employees might workers’ benefits. The mere fact that other have perform light-duty assignments noticed refused to consistent with the restrictions appellant’s physician, they might issued and that have noticed that he was not constantly going early, appellant home sufficient for the to meet his a making prima showing retaliatory discharge. burden facie Rather, the must that was terminated because he appellant demonstrate he filed the workers’ claim. compensation

At his that him deposition, appellant appellee require admitted did not duty. appellant to work until after such time as he was cleared limited that him appellee light-duty assign- further conceded offered a number of ments to from that a provided helper choose he was with full-time once he returned to his as a has never been a claim position operator. machine There paid anything made that was ever less than his full machine appellant his agreement, during bargaining of the collective salary, per the terms operator trial presented to the The uncontroverted evidence period. convalescence entire necessary investigate it to found appellee court demonstrated only at work after the supposed to be whereabouts when he appellant’s fact that he was despite shift failed to work an entire repeatedly appellant job. him with his As the help an to duty given assistant assigned light was, fact, working part- least deposition, in his later admitted appellant not even file where he claimed could during period as a custodian time injured arm. without his paperwork aggravating in such a fashion as to R.C. 4123.90 interpret

This court declines to an employee behavior of investigating suspicious an employer prohibit benefits has been filed. As compensation a for workers’ merely because claim 4123.90 does not Whirlpool Corp., supra, by the court Brown stated employee it employer of an nor does insulate suspend rights operate would employer. To hold otherwise from otherwise lawful actions taken blatant ineffica virtually powerless to combat fraud employers render and/or workers’ pending who to have a part any employee happened ciousness on the claim. compensation very turned substan investigation appellant up

The fact that the past about the his history criminal and that the lied tial undisclosed supervisor, provided legitimate again specifically questioned once when R.C. 4123.90 appellant’s employment. for the to terminate the appellee reason person employ in its appellee keep patently dishonest obligate does to be compensation happened a claim for workers’ benefits simply because underlying that the facts the termination were discovered. pending at the time case for workers’ Because the has failed'to establish forth a retaliatory discharge, and because the has set compensation action taken nonretaliatory reason for the adverse legitimate, appellee’s trial motion for appellant, correctly granted court against obligation present not fulfill his summary judgment. Appellant did no by appellee. Consequently, there is controverting proffered which only fact and reasonable minds could conclude genuine issue of material reasons and not retaliation for good was terminated for business assignments claim. The first two filing appellant’s his workers’ error are overruled. assignment third of error states: appellant’s plaintiff-appellant by deciding prejudice

“3. The trial court erred fact, whether or not there exists sufficient evidence matter of verses [sic] trial, summary judgment respect motion for and on review of defendant’s discrimination, wit, to that the reason the defendant- handicap claim for ” ‘proper.’ appellee gave terminating plaintiff-appellant’s arising out handicap to a claim for discrimination appellant’s attempt bring clearly unlikely arm a stretch. It is consisting right of of a strain of his is his co- by employer, perceived handicapped was ever as 4112.01(A)(13) as “a “handicap” defines workers or even himself. R.C. major or more life substantially or that limits one physical impairment mental self, manual activities, performing for one’s including caring the functions of tasks, learning working; and a record seeing, hearing, speaking, breathing, having physical impair- or or mental physical impairment; being regarded 4112.01(A)(13). contained “handicap” ment.” R.C. The definition 4112.01(A)(13) “everyday cannot routine perform is limited to individuals who vulnerability to working significantly hardship without increased and living everyday what are considered the obstacles and hazards encountered v. nonhandicapped.” Rights Columbus Ohio Civ. Comm. 421, 424-425, 23 OBR 492 N.E.2d 485-486. 4112.02, in employment generally

Pursuant to R.C. discrimination is handicap discriminatory That section states that it shall be an unlawful prohibited. practice: * * * * * * “(A) any handicap any person, For employer, because * * * that

discharge just against without cause or otherwise discriminate hire, tenure, terms, conditions, privileges employ- or person respect ment, directly indirectly employment.” (Emphasis matter or related added.)

In we will examine whether appellant’s argument, order reach the merits that to his supports finding against the evidence he discriminated due “handicap.” 4112.02(A), appel

In to prove handicap order discrimination under R.C. lant must first assert a of discrimination or prima case direct evidence At point, presumption discrimination. of discrimination exists which appellee may legitimate nondiscriminatory then rebut reason for presenting reason, If appellant’s discharge. presumption establishes a valid may only by proof proffered rebutted and be overcome reason Services, pretext Mauzy Kelly termination was a for discrimination. Inc. 75 Ohio St.3d 664 N.E.2d discrimination, Since failed to direct evidence of present (1) so, must To he must he is assert facie case. do show (2) (3) discharged part handicap, he was because of the even handicapped, safely substantially perform he is he can the essential though handicapped, job with v. Martin functions of the reasonable accommodations. Hazlett Chevro- 331, in let, (1986), 279, appellant 496 478. The 25 Ohio St.3d 25 OBR N.E.2d Inc. of these elements. case failed to establish instant error, has already first this court deciding assignments In two fact, Therefore, was, just in cause. appellant that the terminated concluded Furthermore, from R.C. 4112.02. even appellant recovery is under precluded criteria of appellant “handicapped” that the under the R.C. we were to find 4112.01(A)(13) (which do), his claim would still fail expressly we decline prongs two of the Hazlett standard to he is unable meet the other because presented to the trial court that There was no evidence establish discrimination. or perceived handicapped that the as appellant tended to indicate was ever in discharged part perceived handicap. he was because of the 4112.01(A)(13) major “work” as a life Though expressly includes as activity, covering must construe the term within the context of the statute we general, jobs tasks in physical specific the most basic and fundamental of not with support not a specific employers. finding The record does cumulative person effect arm could a reasonable appellant’s right of the strained lead degree impairment was of such appellant’s conclude nature and duration, or of such duration or of such or severity, expected permanent long- routine substantially performing term as to render him limited in labor impact 186, 714 duties. Kemo v. St. Clairsville N.E.2d App.3d See regarded 417-418. is to establish that him Appellant’s burden limited in his such routine substantially ability perform fundamental and tasks life, in appellant as are to exist necessary everyday merely to establish regarded perform him as limited his abilities to tasks specific associated a job. with Id. specific

This court concludes that the did appellant physical impair not have most, substantially major activity. ment that limited a life At appellant’s strained right “transitory injury, arm was a which caused him pain inconvenience for time, but period definite which had no adverse residual effects.” Maloney Hosp. Barberton Citizens Ohio 4112.01(A)(13). handicap

Such an does not constitute under R.C. Id. Additionally, appellant alleged failed to show that despite handi cap safely substantially perform could essential functions with reasonable accommodations. Even after the appellee provided (which with a helper required full-time is more than under “reasonable Hazlett), language accommodations” admits was still consistently having unable to work full shift without work because stop pain his arm. handicap case of discrimi- unable is to establish

As the on this claim. nation, judgment correctly granted the trial court of error overruled. assignment third

Judgment affirmed. Dyke, A.J., concurs.

Kilbane, J., only. in judgment concurs

Kilbane, J., opinion. separate concurring judgment Greene, I in the concur Lillian J. Judge order appeal On this majority. with the conclusion drawn agree because I cannot judgment or demoting, reassigning, discharging, an from prohibits employer R.C. 4123.90 filed employee an employee action “because taking any punitive against proceedings under the workers’ instituted, any in pursued claim or or testified which occurred occupational act for an disease compensation An employee employer.” of that arising course and out his states under R.C. 4123.90 retaliatory discharge establish a claim for who seeks to (1) was “alleges employee ] complaint [ facie when the prima his case (3) (2) and job, compensation, [ ] a claim for workers’ injured ] on the filed [ 123.90.” v. River in contravention Wilson employer that discharged 8, 18 Kilbarger syllabus; OBR N.E.2d side 18 Ohio St.3d Hosp. 332, 337-338, App.3d Co. 120 Ohio Hocking v. Anchor Glass 1080, 1083-1084. injured on that, it is true that majority [Markham]

The concludes “[w]hile claim, produce any not filed workers’ did Thus, has failed he the claim. that he was fired because filed In order discharge.” disagree. I prima retaliatory to establish a case for facie case, facie had to summary prima produce on his Markham judgment to avoid 56(C), evidence, his claim. As support in Civ.R. to type listed indicates, satisfy facts Markham of the “uncontroverted” did majority’s rendition update” that Markham’s work issued Despite “patient this the fact burden. arm, his lifting right he refrain from physician his indicated that should treating to Markham maintenance “light duty” EMJ offered included assignments warehouse, building— spackling the outside front of painting to lift likely right Markham his arm. assignments require most would supplied Markham with fact EMJ his and later pay did decrease Rather, “light duty” negate his does not his claim. “helper” perform tasks engaged punitive behavior these counter Markham’s assertion EMJ facts go weight Because these facts that culminated his dismissal. evidence, EMJ did not sustain its to show genuine burden that there was no issue as to material fact.5 case, out prima

Because Markham made his facie the burden shifted EMJ to show nondiscriminatory reason for discharge. Kilbarger, 697 N.E.2d at 1083-1084. As the majority acknowledges, EMJ satisfied this it burden when that it for discharged showed Markham his failure to disclose requested information about his criminal record his employment applica- on burden, tion. Once EMJ this satisfied burden then shifted to Markham to show that this “reason” discharge merely Markham pretextual. Id. showing; rather, failed to make such a investigation claimed that the EMJ (what be) conducted after he suspicious exhibited found to EMJ behavior violated the spirit of R.C. 4123.90. R.C. 4123.90 should not be used as a to protect shield employee his dishonesty otherwise blatant about his criminal record in his application reason, For employment. this I would overrule first and assignments second of error and affirm the judge’s grant judgment on Markham’s R.C. 4123.90 claim. error,

With regard assignment his third Markham failed establish a prima handicap i.e., case of 4112.02(A), discrimination under R.C. facie without discharged just cause because of a handicap. majority opinion correctly forth sets the elements of prima case: facie

“In order discrimination, to establish a case handicap person (1) seeking (2) relief must demonstrate that he or she handicapped, that an adverse employment action was an by taken at in employer, least part, because (3) the individual was and handicapped, person, that the though handicapped, can safely substantially and perform the essential of question.” functions in Products, (1996), Hood v. Diamond Inc. 298, 74 738, Ohio St.3d 658 N.E.2d syllabus, Chevrolet, following (1986), 279, Hazlett v. Martin Inc. 25 Ohio St.3d 25 331, 478; OBR 496 N.E.2d accord Columbus Civ. Serv. Comm. v. McGlone (1998), 569, 571, 82 Ohio St.3d 697 N.E.2d 205-206. matter,

In the instant Markham’s to present failure tending to show that EMJ’s reason for discharge,'ie., record, undisclosed criminal pretexual also established the discharge good was with cause of purposes his R.C. and, thus, 4112.02 claim precluded recovery for handicap discrimination. In other words, regardless of whether he suffered a “handicap” as defined R.C. 4112.01(A)(13),or EMJ considered him a person” “disabled as defined by Ohio Moreover, mere fact that Markham had filed other workers’ claims does not, insinuates, majority as the automatically decision legitimacy present confute of his injury. of his 4112-5~02(H),6 the second element satisfy Markham failed

Adm. Code his fired, in of part, at least because showing case that he was prima facie on the claim not fail did “handicap.” handicap Even if Markham’s discrimination no evidence element, presented it third failed on the element because second functions essential safely substantially perform that he to show could a helper, offered with the reasonable accommodation any positions of the EMJ reasonable that he additional or other suggested is there to show anything nor (Feb. 24, 2000), Cuyahoga Corp. v. Motors accommodations. Darovich Gen. See No. 2000 WL 217766. App. unreported, shows, his burden on failure sustain foregoing analysis employee’s

theAs claim. handicap his discrimination disposes one of the elements three Markham’s has not here challenge challenged EMJ not below and Because did majority goes adopting too far from a allegation handicap, suffered 178, 186, 128 Ohio App.3d Clairsville holding Kemo St. “a 412, 417-418, injury not constitute concluding that Markham’s did N.E.2d i.e., “work,” major life substantially activity,” limited impairment which physical nature and of such degree impairment [not] because “the of [Markham’s] duration, long- of such or permanent of such or or severity, expected or duration routine labor performing as to him limited impact substantially term render permanency long-term impact or require The law not duties.” does all. fact, handicap at employee In that the suffer a handicap. require it does 4112-02-05(H) out, who points a “disabled is one person” As Ohio Adm. Code (2) (1) 4112.01(A)(13), from a suffered disability suffers from as defined R.C. disability, from the but is treated disability longer one time and no suffers (3) by the regarded from the is as disabled employer suffering disability, his Hosp. See v. Barberton employer. Maloney Citizens result, perceives 226-227. the employer As “handi- handicap, suffering employee as “disabled” or employee 4112.02(A) employee purposes regardless of R.C. whether capped” 4112.01(A)(13). addition, In Markham handicap suffers from as defined work through testimony treating physician’s “patient own his showed his did, fact, substantially ability to impair his update” shoulder impairment tasks.7 The claimed accomplish assigned legitimacy for the question jury. " any disability division person’ person presently has a as defined

6. 'Disabled includes who disability (A)(13) as any person who had a of section of the Revised Code or has 4112.01 Code, any (A)(13) longer has division of section 4112.01 of the Revised who no defined limitation, disability, having respondent treated as such a functional but who is respondent.” regarded by a person who is as disabled claim, i.e., This, course, he could to both the element of his whether 7. then relates third job and could do so safely substantially perform the essential of the whether he functions without accommodation. with or reasonable Because Markham satisfy failed to the second and third elements of claim, handicap discrimination I affirm judge’s grant would judgment. I agree that, do not majority’s law, conclusion aas matter of Markham’s shoulder did not qualify “handicap” for purposes of R.C. 4112.01(A)(13).8 BRISTOW, Relator,

The STATE ex. rel. HUFFMAN, al., Respondents. et [Cite as State ex rel. Bristow v. 500.] Huffman Ohio, Appeals

Court of District, Mahoning Seventh County.

No. 00 C.A. 150. Sept. Decided 2000. disagree pari I also with the dicta contained in footnote expiration because the ninety-day statutory period limitations deprive does not subject the trial court of matter jurisdiction. 6, 2000), Maniglia (Apr. See Neal v. Cuyahoga App. unreported, No. (Kilbane, J., WL dissenting).

Case Details

Case Name: Markham v. Earle M. Jorgensen Co.

Court Name: Ohio Court of Appeals

Date Published: Aug 28, 2000

Citation: 741 N.E.2d 618

Docket Number: No. 76350.

Court Abbreviation: Ohio Ct. App.