Lead Opinion
{¶ 1} Dan Wallace has appealed the trial court’s entry of summary judgment in favor of Mantych Metalworking on his claims of disability discrimination, disability harassment, retaliation, and wrongful discharge in violation of public policy. We conclude that based on the evidence presented, no fair-minded jury could return a verdict for Wallace on any of these claims, so summary judgment in favor of Mantych is proper. We therefore affirm the trial court’s judgment.
{¶ 2} In May 1998, Mantych Metalworking hired Dan Wallace, then 48 years old, to work as a model maker in its Kettering facility. (Mantych also has a facility in Xenia.) "When Wallace was hired, Michael Mantych was president of the company. Michael died in December of the following year, 1999, and Colleen Mantych, his daughter, succeeded him. For full-time employees, Mantych has a standard 48-hour workweek. At the time of his hire, Wallace was undergoing rehabilitation from recent back surgery, so he could not work Mantych’s standard workweek of 48 hours. Indeed, a few months after he was hired, in August, Mantych received from one of Wallace’s doctors a note saying that Wallace “should continue to be limited [to] 45 hours per week for health reasons.” Two years after he was hired, in April 2000, Wallace had a heart attack and consequently underwent bypass surgery.
{¶ 3} April is bonus month for Mantych employees, but in April 2000 Mantych could not afford to give bonuses or raises to anyone. According to a statement of earnings, which Colleen posted for all to see, medical-insurance costs, heightened by Wallace’s and other workers’ health problems, were a key reason that money was tight. In August 2000, Colleen called Wallace a “retarded idiot” when she learned that, despite having had a heart attack and surgery a few months ago, Wallace was still smoking. The following March, Mantych received from one of Wallace’s doctors another note. This one limited Wallace to working only 30 to 35 hours each week.
{¶ 4} Sometime in 2001, Mantych discharged 60-year-old Dale Frederick because he was unable to work every day, owing to his physical limitations. Wallace heard that Frederick was fired because he was old. In 2002, Wallace learned that Colleen was not meeting with older workers, Wallace included, about raises because she believed that the company’s future was not with them. Wallace also heard Colleen say that old employees were costing Mantych too much money and were not worth the investment because they cannot keep up, get sick, are slower, and cannot work all the hours. Wallace believed that Colleen treated him and older workers unfairly by refusing to evaluate them and by refusing to give them bonuses or raises. In December 2002, Mantych received from one of Wallace’s doctors another note. This one limited Wallace, because of his medical condition, to a 40-hour workweek until further notice.
{¶ 5} From 2003 until late 2004, Mantych sent Wallace to work at its Xenia facility, troubleshooting production problems. There, Wallace came up with a work schedule that allowed him to do his weekly work in 36 hours. But his supervisor objected to the schedule, indicating that Colleen was not favorably disposed to schedule changes.
{¶ 7} During his final year with Mantych, Wallace worked on average only 25.85 hours each week. While a sizeable majority of full-time employees did not work the standard 48-hour week, Wallace had one of the lowest averages. Throughout the year, because of his medical conditions, Mantych did not know if Wallace would be able to work the next day. (Wallace called Mantych on the mornings he did not feel up to it.) To keep production rolling, Mantych needed someone it could count on each day to work the hours that Wallace’s medical condition no longer allowed him to work. So, on January 6, 2006, Colleen called Wallace into her office and, expressing her concern about slow production, let him go.
{¶ 8} Following his discharge, Wallace filed several claims. He first filed a claim with the Equal Employment Opportunity Commission (“EEOC”) for age discrimination. In February 2006, the EEOC dismissed the claim. Then, in June 2006, Wallace filed a complaint in the Montgomery County Court of Common Pleas, claiming age discrimination and age harassment. The trial court dismissed the complaint for lack of subject-matter jurisdiction. Two years later, in May 2008, Wallace filed a second complaint, the genesis of this case, that contained claims for retaliation, disability discrimination, disability harassment, and wrongful discharge in violation of public policy. In July 2009, Mantych moved for summary judgment on all claims, and, on October 7, 2009, the trial court sustained the motion. Wallace timely appealed.
II
{¶ 9} According to the standard, summary judgment should be rendered if the evidence and stipulations “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Civ.R. 56(C). But summary judgment should not be rendered “unless it appears from the evidence or stipulation * * * that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” Civ.R. 56(C). A court
{¶ 10} The first issue concerns the evidence we will consider. We have said that “[i]n an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more.” State v. Smith (June 18, 1999), Montgomery App. No. 17350,
{¶ 11} Also, Civ.R. 56(C) allows a court to consider only “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action.” (Emphasis added.) Some evidentiary material before us was not considered by the trial court, likely because it was not timely filed or not filed at all. Wallace’s responses to Mantyeh’s first set of requests for admission, first set of interrogatories, and first set of document requests, all of which are attached to his merit brief, were not filed with the trial court or attached to his opposition brief. Also, Wallace’s deposition, though filed, was not filed until more than two weeks after he filed the notice of appeal. We see nothing in the record that indicates that the trial court considered any of this evidence. We therefore will not consider any of this evidence, which anyway is not heavily relied on by the parties.
{¶ 12} The second issue concerns the evidence we will credit. Wallace contends that courts may not credit evidence favoring a moving party that the jury is not required to believe, which is what the United States Supreme Court seems to say in Reeves v. Sanderson Plumbing Prods., Inc. (2000),
{¶ 13} This issue is not always material in 'the summary-judgment context because the movant is not required to support its motion with its own evidence. Wallace seems to misunderstand this point. He says that a moving party does not meet its summary-judgment burden unless it presents evidence that demonstrates the nonmoving party has no evidence to support that party’s claims. Mantych, argues Wallace, has not put on the record evidence to support its motion for summary judgment. But the Ohio Supreme Court said in Dresher v. Burt that “there is no requirement in Civ.R. 56 that the moving party support its motion for summary judgment with any affirmative evidence, i.e., affidavits or similar materials produced by the movant.” (Emphasis sic.) (1996),
{¶ 14} We turn now to the assignments of error.
Ill
{¶ 15} Wallace assigns four errors to the trial court, one for each claim on which the court entered summary judgment — disability discrimination, disability harassment, retaliation, and wrongful discharge.
{¶ 16} “The trial court erred in granting summary judgment to the defendant based upon its conclusion that plaintiff was not disabled despite plaintiff having placed on the record Rule 56 evidence sufficient to create factual issues regarding each element of plaintiffs charge of disability discrimination against the defendant.”
{¶ 17} Wallace’s claim for disability discrimination (disparate treatment) alleges that Mantych violated R.C. 4112.02(A). Division (A) makes it unlawful for an 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, or any matter directly or indirectly related to employment.” To prove that an employer violated division (A), the plaintiff has the initial burden to establish a prima-facie case. A prima-facie case of disparate-treatment discrimination consists of three essential elements: (1) the claimant had a disability, (2) the defendant took an adverse employment action, at least in part, because the plaintiff had the disability, and (3) the claimant, while having a disability, could safely and substantially perform the essential functions of the job in question. Tibbs v. Ernst Ents., Inc., Montgomery App. No. 22850,
{¶ 18} “Disability,” as used in division (A), is a term of art. The term is defined by statute to mean “a physical or mental impairment that substantially limits one or more major life activities * * *; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.” R.C. 4112.01(A)(13). This definition contains three more terms of art — the first two are defined by statute. “Physical or mental impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body’s major systems, including the musculoskelatal system, R.C. 4112.01(A)(16)(a)(i); any mental or psychological disorder, R.C. 4112.01(A)(16)(a)(ii); or a disease or condition, including heart disease, R.C. 4112.01(A)(16)(a)(iii). “Major life activities” include “the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” R.C. 4112.01(A)(13).
{¶ 19} For the meaning of “substantially limits,” we look to the federal regulations that interpret the Americans with Disabilities Act (“ADA”). See Columbus Civ. Serv. Comm. v. McGlone (1998),
{¶ 20} Having reviewed the relevant law, we turn now to the evidence.
{¶ 21} First, we have little difficulty finding that the evidence establishes a qualifying physical impairment. Wallace presented sufficient evidence of back trouble — surgery and rehabilitation — to establish that he had a physiological condition affecting his musculoskelatal system. Also, the evidence shows that Wallace had a heart attack and heart-bypass surgery, evidence that is adequate to establish that he had heart disease. But whether these physical impairments substantially limited one of his major life activities is less clear.
{¶ 22} The evidence of the major life activities that Wallace’s impairments affected is composed only of conclusory statements. Wallace’s affidavit states that “[a]s a result of my heart attack * * * I suffered from shortness of breath,” and that he had an “impaired ability to work long hours because of shortness of breath, dizziness (standing), [and] muscle cramps (walking).” While these are major life activities, the evidence does not establish that Wallace was unable to or significantly restricted in his ability to perform these activities. With respect to breathing, standing, and walking, the statements quoted above are the extent of the limitation evidence. With respect to working, the evidence undoubtedly shows that Wallace is limited in the number of hours he can work. But the evidence does not show that this inability disqualified him from an entire class of jobs or a wide range of jobs; it shows only that the inability disqualified him from
{¶ 28} Wallace also contends that Mantych, in the person of its president, Colleen Mantych, regarded him as having a physical impairment. For Wallace successfully to prove that Colleen regarded him as having a disability, she must have believed that his impairments prevented him from holding a class of jobs or a wide range of jobs. See Columbus Civ. Serv. Comm. v. McGlone (1998),
{¶ 24} Based on the evidence presented, no reasonable juror could find that Wallace had a “disability.” Therefore, such a jury could not return a verdict in favor of Wallace on his claim for disability discrimination. Summary judgment on this claim in favor of Mantych is proper.
{¶ 25} The first assignment of error is overruled.
Second Assignment of Error
{¶ 26} “The trial court erred in granting summary judgment to the defendant based upon its conclusion that plaintiff was not disabled despite plaintiff having placed on the record rule 56 evidence sufficient to create factual issues regarding each element of plaintiffs charge of disability harassment against the defendant.”
{¶27} Wallace’s claim for disability harassment also alleges that Mantych violated R.C. 4112.02(A). Of course, as we saw above, to prove a violation of division (A), a plaintiff must prove that he had a “disability.” See R.C. 4112.02(A); see also Hampel v. Food Ingredients Specialties, Inc. (2000),
{¶ 28} The second assignment of error is overruled.
Third Assignment of Error
{¶29} “The trial court erred in granting summary judgment to the defendant based upon its conclusion that plaintiff was not disabled despite plaintiff having placed on the record Rule 56 evidence sufficient to create factual issues regarding each element of plaintiffs charge of retaliation against the defendant.”
{¶ 31} Wallace says that the protected activity in which he engaged was opposing what he saw as Mantych’s unfair treatment of its older workers. He says that he was an “outspoken champion[] of the rights of older workers.” Specifically, Wallace asserts, “I openly opposed Defendant’s unfair treatment of its older workers based on age discrimination, including but not limited to:
{¶ 32} “a. Defendant’s refusal to evaluate older workers.
{¶ 33} “b. Defendant’s refusal of bonuses to older worker(s).
{¶ 34} “c. Defendant’s firing of Dale Frederick because of his age.
{¶ 35} “d. Defendant’s refusal of raises to older workers.”
{¶ 36} But no evidence supports these conclusory assertions. Nor is there any evidence that Mantych was aware that Wallace engaged in any of these activities. Indeed, because no evidence describes what Wallace did to oppose Mantych’s actions or champion older-workers’ rights, no inference can even be made that Mantych must have been aware. Regarding adverse action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” ’ ” Burlington N. & Santa Fe Ry. Co. v. White (2006),
{¶ 37} Based on the evidence presented, no fair-minded jury could return a verdict for Wallace on the retaliation claim. Therefore, summary judgment on this claim in favor of Mantych is proper.
{¶ 38} The third assignment of error is overruled.
Fourth Assignment of Error
{¶ 39} “The trial court erred in granting summary judgment to the defendant based upon its conclusion that defendant is not a covered entity under HIPAA law despite plaintiff having placed on the record evidence sufficient to create factual issues regarding plaintiffs charge that defendant fired him because he unearthed the fact that defendant had snooped in plaintiffs medical record.”
{¶ 40} Wallace claims that his discharge violated clear Ohio public policy. Such a claim represents an exception to Ohio’s common-law doctrine of employment at will. See Painter v. Graley (1994),
{¶ 41} Wallace alleges that Colleen, by impersonating him, surreptitiously obtained from his insurance company his private medical information. He alleges that when he found out about this and then raised questions about her actions, Colleen fired him. Wallace contends that a dismissal in such circumstances violates clear public policy favoring the confidentiality and privacy of medical records manifest in the federal Health Insurance Portability and Accountability
{¶ 42} The Ohio Supreme Court has expressly recognized this public policy. “In general,” the court has said, “a person’s medical records are confidential. Numerous state and federal laws recognize and protect an individual’s interest in ensuring that his or her medical information remains so.” Hageman v. Southwest Gen. Health Ctr.,
{¶ 43} We discern, therefore, a clear public policy favoring the confidentiality of medical information.
{¶ 44} The next question is whether a dismissal motivated by an employee’s discovery of an employer’s violation of this clear public policy, the circumstances under which Wallace alleges he was dismissed, jeopardizes the policy. We think that such a dismissal would jeopardize it. Discussing an individual’s right to medical confidentiality, the Ohio Supreme Court said that “such a right ‘is not so much one of total secrecy as it is of the right to define one’s circle of intimacy — to choose who shall see beneath the quotidian mask.’ ” Hageman at ¶ 13, quoting Hill v. Natl. Collegiate Athletic Assn. (1994),
{¶ 46} Whatever actually happened, based on the (lack of) evidence presented, we must conclude that no fair-minded jury could return a verdict for Wallace on his wrongful-discharge claim. Therefore summary judgment on this claim in favor of Mantych is also proper.
{¶ 47} The fourth assignment of error is overruled.
{¶ 48} We have overruled all the assignments of error presented in this case. Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
Notes
. Wallace rejects the idea that to be substantially limited in the activity of working, an individual's impairment must disqualify him from a wide range of jobs, but this meaning has been adopted by the Ohio Supreme Court. See Columbus Civ. Serv. Comm. v. McGlone (1998),
. That Wallace might be able to obtain relief with a claim for breach of confidentiality related to medical records does not per se preclude his ability to obtain relief here with a wrongful-discharge claim. Speaking of statutory claims, the Ohio Supreme Court said in Kulch v. Structural Fibers, Inc., “[t]he Greeley public-policy exception to the doctrine of employment at will was not intended to apply only where a statute provides no civil remedies. Rather, Greeley and its progeny are intended to bolster the public policy of this state and to advance
Concurrence Opinion
concurring separately:
{¶ 49} Even if Wallace’s adverse health conditions were to constitute a disability, Wallace would also have to prove that he could safely and substantially perform the essential functions of the job in question in order to prove his disability claim against Mantych. Tibbs v. Ernst Ents., Inc., Montgomery App. No. 22850,
{¶ 50} The hours of work an employer requires of an employee, unless otherwise limited by law or by contract, are functions of the job that are as essential to its performance as is the employee’s ability to perform the particular tasks the job involves. It is undisputed that Wallace is unable, due to his adverse health conditions, to work the number of hours per week that Mantych requires.