730 N.E.2d 395 | Ohio Ct. App. | 1999
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *56 Plaintiff-appellant, John Sadinsky, appeals from a decision of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, EBCO Manufacturing Company.
Appellant, a former employee of appellee, filed a complaint alleging that the termination of his employment by appellee was the result of handicap or disability discrimination in violation of the Americans with Disabilities Act ("ADA"), R.C.
The trial court granted appellee's summary judgment motion, finding that appellant was not disabled under either the ADA or the Ohio statute, that appellant failed to present a prima facie case of handicap/disability discrimination under either statute because he failed to establish that he was able to perform the essential functions of the job with or without reasonable *57 accommodation, that appellant failed to establish that his discharge was in violation of public policy, and that his claim under Section 1981, Title 42, U.S. Code, failed because the statute does not apply to disability discrimination. Appellant filed a timely appeal.
On appeal, appellant asserts a single assignment of error:
The Trial Court erred as a matter of law in holding that John Sadinsky is not disabled.
Appellee is an Ohio corporation engaged in the business of manufacturing dehumidifiers, drinking fountains and bottled water coolers. Appellant began working for appellee in 1983. Appellant previously injured his back in 1990, but he experienced no continuing pain or other lasting effects from that injury after he completed treatment.
On April 12, 1995, appellant was working as a material handler in the receiving department. While unloading steel from a forklift, appellant injured his back. Appellant was treated by Dr. Vargo, his family physician, for the injury for a five-week period. He then returned to work on May 22, 1995, to his previous material handler position under thirty-day work restrictions, including not lifting more than thirty pounds above the waist, not working more than eight-hour days, and not working more than five days a week. After the restrictions ended, appellant was able to perform the functions of his position, including lifting seventy-five pounds at times, driving a forklift for fifty to sixty percent of the day, and performing office work that did not require sitting for long periods of time. During the summer of 1995, appellant continued to work as a material handler for appellee. Appellant indicated that he was in constant pain during this period and that his condition worsened. However, he continued working in his towing business, which he had started at the end of 1994, lifting weights three times a week, and engaging in physical activities, including water skiing and knee-boarding.
Due to appellant's continuing pain, Dr. Vargo referred appellant to Dr. Martz, an orthopedic surgeon, whom appellant saw on October 13, 1995. Dr. Martz diagnosed appellant as having a strain and a sprain of the lumbrosacral area and also the sacroiliac joints on the left side. An MRI performed on appellant in December 1995, indicated that he had a herniated disk. Dr. Martz removed appellant from work and enrolled him in physical therapy. Appellant was released to return to work on November 6, 1995, on light-duty status with the restrictions of no lifting, pushing or pulling and no standing for any length of time.
Appellee placed appellant in the position of cycle counter, which entailed counting inventory and entering data into a computer. The cycle counter position was new and evolving. Although appellant bid on a permanent cycle counter *58 position, he did not get the job. Thomas Hommrich, a manager at EBCO, informed appellant that there were no jobs available that he could perform under his physical restrictions. Appellee terminated appellant's employment on December 5, 1995.
In appellant's single assignment of error, he argues that the trial court erred as a matter of law in holding that appellant is not disabled. We disagree.
An appellate court reviews a trial court's grant of summary judgment independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. Of Commrs.
(1993),
* * * (1) [N]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. * * *
State ex rel. Parsons v. Fleming (1994),
Appellant asserted claims for disability discrimination under the ADA and handicap discrimination under R.C.
* * * (1) [H]e is an individual with a disability; (2) he is "otherwise qualified" to perform the job requirements, with or without reasonable accommodation; and (3) he was discharged solely by reason of his handicap. * * *
Monette v. Electronic Data Systems Corp. (C.A.6, 1996),
* * * (1) [T]hat 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),
The first step of the inquiry under both statutes is whether or not the individual was disabled/handicapped. The ADA defines "disability" with regard to an individual as:
(A) [A] physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) [A] record of such an impairment; or
(C) [B]eing regarded as having such an impairment.
Section 12102(2), Title 42, U.S. Code. The Code of Federal Regulations provides guidance for the meanings of the terms "substantially limits" and "major life activities" in Section 12102(2)(A), Title 42, U.S. Code. Section 1630.2, Title 29, C.F.R. "Major life activities" are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Section 1630.2(i), Title 29, C.F.R. "Substantially limits" is defined in Section 1630.2(j)(1), Title 29, C.F.R. as:
(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.
In addition, Section 1630.2(j)(2), Title 29, C.F.R. provides several factors to consider in ascertaining whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Under R.C.
The trial court concluded that appellant failed to establish that he was disabled within the meaning of the ADA or R.C.
Upon a review of the evidence viewed most favorably for appellant as required by Civ.R. 56(C), we agree with the trial court that appellant's back injury does not meet the definition of a disability under the ADA or a handicap under R.C.
Appellant's back injury is a source of intermittent pain, but it is not severe enough to require surgery. Dr. Vargo indicated that many people have this type of back condition. However, appellant is capable of performing work that does not involve lifting over thirty pounds or twisting his back. Thus, considering the evidence presented and the factors under the C.F.R., appellant's impairment does not rise to the level of a substantial limitation on a major life activity.
Federal courts considering impairments similar to appellant's have concluded that such restrictions do not constitute a substantial limitation of a major life activity. InKirkendall v. United Parcel Service, Inc. (W.D.N.Y. 1997),
Similarly, in Coker v. Tampa Port Authority (M.D.Fla. 1997),
In Horth v. General Dynamics Land Systems, Inc. (M.D.Pa. 1997),
Although appellant relies on this court's decision inWooten, as the basis of his argument that he is substantially limited in a major life activity, the situation of the plaintiff in Wooten is distinguishable. In Wooten, the plaintiff's impairments were a hearing loss and a hernia, and he could not lift more than twenty pounds, carry a bag of groceries, or even push a lawn mower. Id. at 331. This court noted that "plaintiff's disability has imposed significant restrictions on his day-to-day activities." Id. However, the evidence *62 indicates that appellant's impairment is relatively minor compared to the plaintiff in Wooten in that he still is able to carry on his day-to-day activities, including his towing business, though he is limited in the length of time he is able to sit or stand and in the amount he can lift. Thus, appellant's impairment more closely resembles that of the plaintiffs in Kirkendall, Coker, and Horth, than the plaintiff in Wooten.
Appellant failed to establish that he is substantially limited in a major life activity. Appellant made no argument before the trial court or on appeal that he has a record of an impairment under the definition of "disability" in the ADA, Section 12102(2)(B), Title 42, U.S. Code, or under the definition of "handicap" in R.C.
Moreover, our review of the evidence support's appellee's contention that appellee did not regard appellant as having an impairment. Consequently, appellant does not meet the definition of disabled under the ADA or handicapped under R.C.
Based upon the foregoing reasons, appellant's single assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
DESHLER and PETREE, JJ., concur. *63