OPINION
ROBB, P.J.
{¶ 1} Plaintiff-Appellant Albert Matasy appeals the decision of the Mahoning County Common Pleas Court granting
STATEMENT OF THE CASE
{¶ 2} Appellant was employed at Northside Medical Center from 1974 until his termination on January 16, 2013. He filed a complaint against the employer in 2015, alleging disability discrimination under state and federal law. (He was 57 years old at the time of his discharge and also alleged age discrimination, but he abandoned this claim.) He alleged he was terminated due to a disability, he was denied a requested reasonable accommodation (an extension of his leave of absence), and the employer failed to engage in the interactive process by making a good faith effort to assist him in seeking reasonable accommodation for his disability.
{¶ 3} Appellant's complaint asserted he was disabled due to surgical replacement of his right hip and both knees. He said the hospital was aware of his disability and had a record of his condition, pointing to a series of surgeries beginning in 2009. An affidavit of the employer's human resources employee incorporated a summary of Appellant's history of leaves and light duty since November 2009. (Stone Aff.). His right knee was replaced in March 2010. (Matasy Depo. 13). His right hip was replaced in January 2011. (Matasy Depo. 20, 39).
{¶ 4} On October 5, 2012, Appellant stopped working due to his need for left knee replacement surgery, which was performed on November 7, 2012. He initially asked for a leave of absence until November 7, 2012. The employer granted the request, extending the end date to November 30, 2012, which exhausted Appellant's Family Medical Leave Act ("FMLA") balance (due to prior leaves that year). A collective bargaining agreement with Appellant's union stated: "you may apply for an unpaid General Medical Leave of Absence" if FMLA and paid time off is exhausted; in order to request this leave, medical certification must be provided; medical certification forms are available in human resources and must be turned in before the leave begins; the maximum leave is six months (including prior FMLA or paid time off); and "the company cannot guarantee reinstatement to any position following a General Medical Leave."
{¶ 5} Appellant filed a leave of absence form requesting an extension of his leave of absence based on his physician's note seeking extended leave until December 31, 2012. Appellant requested "General Medical Leave (Non-FMLA)." The request for an extension of leave until December 31, 2012 was granted by the employer.
{¶ 6} Appellant then sought another extension of his leave of absence. He provided a note from his physician dated December 27, 2012, stating he may return to work on February 11, 2013 with no restrictions. Appellant's affidavit states he provided the physician's note to the employer "on or about" December 27, 2012. However, Appеllant signed the leave of absence request form on January 3, 2013. (His physician signed paperwork for long term disability insurance through Sun Life Assurance
{¶ 7} On March 13, 2013, Appellant signed an affidavit attesting his "disability substantially impairs his ability to perform the major life functions of walking, bending, kneeling, and working." He also claimed the hospital's termination letter falsely said it was necessary to terminate him in order to maintain staffing levels. The human resources employee testified the employer did not hire a new patient care associate ("pca") to replace Appellant. (Stone Depo. 55). She did not know how his position was staffed. (Stone Depo. 53). Appellant explained he worked on the heart floor with patients after open heart surgery, covering approximately 20 patients, and there was only one pca on duty at a time. (Matasy Depo. 29-20, 43).
{¶ 8} The human resources employee explained a pca transports patients and assists in patient care, helping patients bathe and get in and out of bed. (Stone Depo. 13-14). During her deposition, the job description for a pca (Exhibit E) was introduced. The job description shows the position involves patient care duties, housekeeping within surgery, and activities involving supply and inventory. The work demands included: lifting 36 to 50 pounds occasionally, 18-25 pounds frequently, and 6-10 pounds constantly; occasional climbing, crawling, reaching, and operation of a foot pedal; and frequent crouching, kneeling, and twisting. Appellant testified he was on his feet the majority of the time at work. (Matasy Depo. 43, 57-58). He said he transported patients, answered call lights, helped patients get in and out of bed (for instance from a wheelchair or chair into the bed or from the bed to the toilet), took vital signs, and ran errands such as retrieving supplies from the supply and pharmacy dеpartments. (Matasy Depo. 31-33). He was given light duty work for a time after his March 2010 right knee replacement and after his January 2011 right hip replacement. (Matasy Depo. 39).
{¶ 9} The employer filed a motion for summary judgment contesting the third element required for a prima facie case of disability discrimination by claiming Appellant could not safely and substantially perform the essential functions of the job by his own admissions. The employer noted Appellant's history of FMLA leaves and its history of permitting non-FMLA leaves and extensions, including the extension granted after the last knee surgery. The employer noted Appellant was unable to return to work on the date of terminаtion and was still unable to perform the job at the time of the January 2016 deposition, where he testified his hip and knees would preclude him from performing the job. (Matasy Depo. 64-65).
{¶ 10} At deposition, Appellant further explained he could not kneel due to his knee surgery, was unable to lift heavy objects because of his hip, and could not walk even short distances due to his hip. (Matasy Depo. 11-13, 19). A few weeks prior to deposition, Appellant filed an application for Social Security Disability due to his hip, knees, and feet. (Matasy Depo. 10). He had a bunion surgery and joint fusion on his little toe in February 2015 and surgery on his great toe in June 2014 (which was still presenting as a bone non-union). (Matasy Depo. 14-16).
{¶ 12} Appellant attached his answers to interrogatories. He also attached a selection of discovery documents he produced in response to the employer's request for production of documents. For instance, there was an ADA questionnaire he signed on March 26, 2013, wherein he answered that he was able to perform his job duties with or without an accommodation and said the accommodation he requested was for additional leave. In addition, he attached his handwritten notes on his job search (utilized for unemployment compensation). He believed the job search and the statement that he volunteered at a hospital beginning in October 2013 was evidence he could have performed his job duties. He noted he returned to his regular duties after his prior surgeries (sometimes after a light duty assignment).
{¶ 13} The employer filed a reply arguing Appellant produced no evidence he could have returned to work with the requested accommodation, i.e., there was no evidence he could have performed his job on February 11, 2013. It was pointed out the December 27, 2012 physician's note was merely a projection and was not proper summary judgment evidence. The employer claimed the issue of whether Appellant could have returned to work on February 11, 2013 required expert testimony. The employer emphasized Appellant admitted he could not return on January 16, 2013 and said, in a March 13, 2013 affidavit, his disability "substantially imрairs" his ability to kneel, walk, bend, and work . It was concluded the information relied on by Appellant in the medical note was at odds with his March 2013 affidavit. The employer acknowledged a leave of absence can be a reasonable accommodation but noted the employer need not wait indefinitely.
{¶ 14} On August 2, 2016, the trial court granted summary judgment in favor of the employer. The court concluded Appellant's affidavit and deposition testimony demonstrated he could not perform the essential functions of the job with the requested accommodation and thus his disability claims failed. The court also found there was no evidence to support Apрellant's age discrimination claims; Appellant did not address the age discrimination arguments in responding to the employer's request for summary judgment. Appellant filed a timely notice of appeal.
SUMMARY JUDGMENT
{¶ 15} Summary judgment can be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can
{¶ 16} Civ.R. 56 must be construed in a manner that balances the right of the non-movant to have a jury try claims and defenses that are adequately based in fact with the right of the movant to demonstrate, prior to trial, that the claims and defenses have no factual basis. Byrd ,
{¶ 17} "The material issues of each case are identified by substantive law." Byrd ,
ASSIGNMENT OF ERROR
{¶ 18} Appellant's sole assignment of error provides:
"The trial court erred in granting summary judgment in favor of the Appellee on Matasy's claims of disability discrimination under State and Federal law as there was credible evidence in the record that he could perform the essential functions of his position as a patient care associate with or without reasonable accommodation, Defendant-Appellee failed and refused to engage in the required interactive process, and Defendant-Appellee failed to provide the requested accommodation but instead discharged him from employment."
{¶ 19} Pursuant to R.C. 4112.02, "It shall be an unlawful discriminatory practice: (A) For any employer, because of the * * * disability * * * of any person, to discharge without just cause * * * or otherwise to discriminate against that person with respect to * * * any matter directly or indireсtly related to employment." A corresponding federal law states it is unlawful for an employer to "discriminate against a qualified individual on the basis of disability."
{¶ 20} To the extent Ohio's disability discrimination law and the federal disability discrimination law coincide, Ohio courts can use federal case law for guidance. Columbus Civ. Serv. Comm. v. McGlone ,
{¶ 21} In moving for summary judgment, the employer contested the third element. Appellant admits he could not perform the essential functions of the job on January 16, 2013, at the time additional extended leave was denied and he was terminated. However, Appellant claims he could have performed the essential functions if his requested accommodation had been granted, citing DeCesare v. Niles City School Dist. Bd. of Edn. ,
{¶ 22} If an employee, who is known by the employer to be disabled, was denied a requested accommodation, the employee's prima facie case includes a requirement that he demonstrate he is otherwise qualified for the position, i.e., with the reasonable accommodation. Barber v. Chestnut Land Co. ,
{¶ 23} The plaintiff has the burden to propose an accommodation that is
{¶ 24} Nevertheless, the dispositive argument below was Appellant lacked evidence to establish a prima facie case that he was qualified for the position with the accommodation of extended leave; this was the issue decided by the trial court. The court concluded: "he could not perform the essential functions of the job, with the requested accommodation. Thus, Matasy was not qualified for the position and Matasy cannot establish an essential element of his claims for disability discrimination." The dispute is whether Appellant could have met the prerequisites of the рosition and performed the essential duties with accommodation.
{¶ 25} Appellant notes there was history of him returning from leave and engaging in light-duty or part-time work. He suggests if he had been granted the extended leave, he could have later sought reduced duties. Appellant alleges the employer failed to engage in the interactive process in good faith in order to assist him in seeking an accommodation, citing DeCesare ,
{¶ 26} The employer states it engaged in the interactive process: Appellant's initial leave request was October 5, 2012 through November 7, 2012; the employer granted the request until November 30, 2012; this exhausted the employee's FMLA balance due to prior leaves that year; the employer granted Appellant's request to extend his leave until December 31, 2012; and the request for another extension was not signed by Appellant until January 3, 2013, after the last extension had expired. Appellant suggests a long term disability form would have provided adequate notice to the employer prior to December 31, 2012 (the expiration of his already extended leave). His response to summary judgment cited Exhibit T to the Stone Deposition. However, this exhibit demonstrated the disability form was signed by Appellant's physician on January 4, 2013. In addition, we note the witness explained, although leave of absence forms are part of her duties, disability paperwork is not. (Stone Depo. at 10, 48). We also note only three pages of a nine-page document were presented to the witness and marked as an exhibit; this was specifically noted by counsel on the record at deposition. (Stone Depo. at 50). See also fn. 2 supra.
{¶ 27} The employer also states further engagement in the interaction process was irrelevant as Appellant was unable to perform the essential functions of his position both before and after his requested return to work date. It may be necessary for an employer of a disabled
{¶ 28} "Even if an employer fails to engage in the required process, that failure need not be considered if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation." Basden v. Professional Transp., Inc. ,
{¶ 29} Appellant states there is a genuine issue of material fact as to the essential functions of his position and whether he could perform those essential functions. However, as to the first contention, Appellant submitted the deposition of the employer's human resources employee, who explained her understanding of the job functions. While questioning this witness, Appellant introduced as an exhibit the official job description provided by the employer, which listed various work demands and duties. Appellant explained the job functions in his depоsition testimony. Appellant did not indicate certain delineated criteria were not essential. For instance, Appellant did not contend patient care (including movement in and out of bed) or transporting supplies and patients were not essential functions of the position. He introduced evidence that lifting 18-25 pounds, crouching, kneeling, and twisting were frequently required of the position. In addition, Appellant testified only one pca was on duty at a time to care for approximately twenty patients in the department. There was no indication Appellant was disputing the essential functions of the job.
{¶ 30} The motion for summary judgment focused on whether Appellant could have safely and substantially fulfilled the essential functions of the position, to which Appellant responded by claiming the evidence showed he could have returned to work on February 11, 2013. The employer contends Appellant failed to provide evidence he could have performed his essential job functions if leave was extended until February 11, 2013, which is the accommodation he requested.
{¶ 31} As for the contents of the medical note, the employer argues a medical note written on December 27, 2012, projecting Appellant could return to work without restrictions on February 11, 2013, was not evidence that once that date arrived, Appellant was in fact able to return to work. (It is noted Appellant sought an extension until December 31 using a medical note, but he was then unable to return to work on that date.) As raised below, the employer also contends the December 27, 2012 medical note (stating Appellant could return to work on February 11, 2013 without restrictions) was not proper summary judgment evidence on the issue of whether he was physically able to return to work.
{¶ 32} Appellant initially counters by arguing no motion to strike was sought or granted. However, this is not a required procedure. Even when there is no objection, the trial court can refuse to consider improper summary judgment evidence. In this case, the trial court did not rely on the medical note. Until Appellant responded to summary judgment, the employer would have been unaware Appellant would not be submitting an affidavit specifically tailored to respond to the motion for summary judgment. The employer's reply in support of summary judgment objected to Appellant's use of the medical note (in his opposition to summary judgment) as evidence his рhysician was of the medical opinion he would have been able to return to work without restrictions on February 11, 2013.
{¶ 33} Appellant then relies on the fact that the medical note was incorporated into various types of summary judgment evidence, such as his own affidavit and the deposition of the employer's human resources employee. This type of incorporation could be used to show what information was provided to the employer as medical certification was required when seeking a leave or an extension of leave. The medical note could have been incorporated into an affidavit from the doctor wherein he could have provided his opinion. However, a party cannot incorporate a doctor's note into his own affidavit as proof of the doctor's factual medical opinion. (And again, the opinion was made at a time when Appellant was unable to return to work and constituted a projection.)
{¶ 34} This is not to say an expert opinion was required (as the employer contends). "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Evid.R. 701. Compare Evid.R. 702(A) (a witness may testify as an expert if the witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons, the witness is qualified, and the testimony is based on reliable specialized information).
{¶ 35} "Unless a matter is within the comprehension of a layperson, expert testimony is necessary." Ramage v. Cent. Ohio Emergency Servs., Inc. ,
{¶ 36} The next question is whether Appellant provided summary judgment evidence, such as his own statement, that he could have returned to work with the accommodation of leave until February 11, 2013. As the employer points out, Appellаnt admitted he could not work at this job in January 2016 due to his hip and knees. Appellant notes he had foot issues contributing
{¶ 37} The employer then emphasizes Appellant's situation a month before and a month after the dispositive date of February 11, 2013. Appellant testified he was unable to work on January 16, 2013. (Matasy Depo. 46). Thereafter, he signed an affidavit on March 13, 2013, stating his disability substantially impairs his ability to perform major life functions of walking, bending, kneeling, and working . At deposition, he testified this was true when he signed the affidavit. (Matasy Depo. 54-55). The employer believes this establishes Appellant was still unable to fulfill the essential functions of his position on March 13, 2013.
{¶ 38} Appellant counters by stating this merely attested to his disability to show he was discriminated against. He urges it was not an admission he was unable to perform the essential functions of his position (with or without reasonable accommodation). He points to his deposition testimony that he was released to go back to work in February and he stopped using a cane sometime in Februаry. (Matasy Depo. 50-51). He notes he was never asked at deposition whether he could have returned to work on February 11, 2013 and contends the employer cannot fail to ask him this question and then use the lack of answer as evidence against him.
{¶ 39} Yet, it was the not the employer's obligation to generate evidence to support Appellant's cause of action. The employer pointed to evidence suggesting Appellant was unable to perform the essential functions of his job with the requested accommodation of extended leave until February 11, 2013. This placed the reciprocal burden on Appellant to show he could have returned to work on that date and to demonstrate there was a genuine issue of material fact on the contested element of his prima facie case of failure to accommodate. The element of his case contested by the employer's motion was that he was not qualified to work. See, e.g., Cehrs v. Northeast Ohio Alzheimer's Research Ctr. ,
{¶ 40} It was not the employer's obligation at deposition to elicit evidence which could have been favorable to the employee's case. Where such evidence could have been but was not elicited, the reciprocal summary judgment burden necessitates the filing of an affidavit signed by the employee or his physician, for instance. In other words, regardless of whether Appellant's March 2013 statement constituted an "admission," it was his obligation to clarify the situation upon being presented with the employer's summary judgment argument. It could be said he was asking the court to speculate he was able to return to work.
{¶ 41} Lastly, Appellant states he applied for similar jobs starting in March 2013 and performed volunteer work at a hospital in October 2013; he suggests this was some evidence of his ability to perform his job in February 2013. As to volunteering, the proximity in dates is not close to the date utilized to prove his claim, and there is no indication the volunteer work had similar requirements. In fact, his answer to an interrogatory explained he "passed water and distributed mail" in his
{¶ 42} This observation applies to certain other documents produced in discovery and attached to Appellant's memorandum in opposition to summary judgment as well. For instance, Appellant attached an Americans with Disabilities Act Questionnaire he signed on March 26, 2013. Appellant relies on this document to show he answered "yes" when asked if he was able to perform his duties with or without an accommodation; he also answerеd that he requested the accommodation of additional leave from his employer. It does not state he could return to work on February 11, 2013 as he suggests. In any event, this document was not notarized and thus was not an affidavit.
{¶ 43} For all of the foregoing reasons, this court affirms the trial court's decision granting summary judgment to the employer.
Waite, J., concurs.
DeGenaro, J., concurs.
Notes
Although this is not a breach of contract action, Appellant uses the agreement to show an extension of leave would have been an available and reasonable accommodation as his left knee replacement issue had not yet involved six months off from work.
The physician listed the return to work date as February 11, 2013 but listed Appellant's next appointment as April 10, 2013 and said Appellant's last appointment was on December 12, 2012.
Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to set forth some legitimate, nondiscriminatory reason for the action taken. Hood ,