632 N.E.2d 605 | Ohio Ct. App. | 1993
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *328 Plaintiff, Roger Wooten, appeals from a decision of the Franklin County Court of Common Pleas granting summary judgment to defendant, city of Columbus, Division of Water. Plaintiff raises three assignments of error, as follows:
"I. The trial court erred in granting defendant's motion for summary judgment on plaintiff's first cause of action (Section 504) since a genuine issue of material fact existed as to whether plaintiff was `handicapped' as that term is used in Section 504 of the rehabilitation act.
"II. The trial court erred when it granted defendant's motion for summary judgment on plaintiff's second cause of action (state law claim) since a genuine issue of material fact existed as to whether defendant took any action because plaintiff was handicapped.
"III. The trial court erred as a matter of law when it limited the operation of the Ohio civil rights statute to exclude reassignment to a vacant position as a reasonable accommodation for a handicapped employee."
The evidence construed most strongly in plaintiff's favor indicates the following: Plaintiff was employed on August 4, 1986, by the city of Columbus, Department of Public Utilities and Aviation, Division of Water, as a "provisional plant maintenance mechanic." This position requires the performance of corrective and preventative maintenance on a variety of mechanical equipment. Physically, the position requires the ability to exert up to one hundred pounds of force occasionally, fifty pounds of force frequently, and up to twenty pounds of force constantly. The position is in the competitive class under the civil service, which requires that all provisional employees take and pass a competitive examination administered by the Civil Service Commission prior to receiving a permanent appointment.
Prior to his employment with the city, plaintiff suffered substantial hearing loss as a result of exposure to high noise levels while employed at Buckeye Steel. The city was aware of his hearing loss at the time he was hired. On October 12, 1989, during his employment with the city, plaintiff suffered another significant work-related injury, a right inguinal hernia. Plaintiff was granted approximately five months' injury leave, during which he was operated on twice in an attempt to repair his hernia. Plaintiff returned to work in March 1990 when, in a matter of days, he sustained a reinjury and again suffered a hernia. A third operation ensued, after which his physician, Dr. Hostetter, placed a permanent twenty-pound lifting restriction on plaintiff's activities. Plaintiff returned to work under the lifting restrictions on April 16, 1990. *330
Soon after plaintiff's return, defendant concluded that plaintiff's inability to lift more than twenty pounds prevented him from performing all the duties of a plant maintenance mechanic. Defendant contends that the Division of Water has no "light duty" positions which plaintiff can perform; therefore, plaintiff was placed on disability leave.
While plaintiff was on disability leave, the civil service commission administered a competitive examination for all provisional plant maintenance mechanics. Because he was not notified, plaintiff did not take the examination. On March 2, 1991, plaintiff was terminated from his employment allegedly based on his not taking the civil service examination, causing his name not to appear on the civil service eligibility list for plant maintenance mechanics.
On April 30, 1992, plaintiff filed his complaint, alleging handicap discrimination in violation of Section 504 of the Rehabilitation Act of 1973, Section 794, Title 29, U.S. Code. The complaint was amended on May 12, 1992, to include a claim under R.C.
Summary judgment is governed by Civ.R. 56(C), which provides as follows:
"* * * Summary judgment shall be rendered forthwith if the pleading, depositions, [and] answers to interrogatories * * * 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. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *"
As held in the second paragraph of the syllabus of AAAAEnterprises, Inc. v. River Place Urban Redevelopment Corp.
(1990),
"Regardless of who may have the burden of proof at trial, the burden is upon the party moving for summary judgment to establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The evidentiary material submitted by the movant may be relied upon by the respondent in support of the latter's argument that there is a genuine issue of material fact."
There is no default summary judgment in Ohio; therefore, the burden of establishing that no genuine issue of material fact exists and that judgment should be granted in its favor as a matter of law falls squarely on defendant, the moving party. A review of the record reveals that defendant did not carry its burden and, therefore, summary judgment was improper.
Plaintiff assigns as error the trial court's determination that he was not handicapped as defined by Section 504 of the Rehabilitation Act of 1973, Section 794, Title 29, U.S.Code.
A handicapped individual is defined for purposes of the Rehabilitation Act of 1973, in Section 706(8)(B), Title 29, U.S. Code, as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment."
Plaintiff's hearing loss clearly qualifies him as handicapped as defined by the statute. Furthermore, the evidence presented reveals plaintiff's hernia prevents him from lifting weights in excess of twenty pounds. This disability has not only interfered with plaintiff's ability to work, but also interferes with his major life activities. Plaintiff testified in his deposition, which was included in the record for purposes of summary judgment, "I don't carry groceries in, I wouldn't push the lawn mower. I won't bathe the dog, or lift him. * * * I won't change a tire." The evidence reveals that plaintiff's disability has imposed significant restrictions on his day-to-day activities. It has not merely limited his ability "to perform only one job" as stated by the trial court. The evidence reveals that plaintiff's disability has limited one or more of his major life activities, and also he has a record1 of such disability; therefore, as a matter of law plaintiff is handicapped as defined in Section 706(8)(B), Title 29, U.S.Code. Plaintiff's first assignment of error is well taken.
Plaintiff's remaining assignments of error pertain to the trial court's dismissal of his state discrimination claim. Handicap discrimination in employment is prohibited by R.C.
"It shall be an unlawful discriminatory practice: *332
"(A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person,to discharge without just cause, to refuse to hire, or otherwiseto discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." (Emphasis added.)
To support a claim for violation of R.C.
"`Handicap' means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment."
The evidence in the record construed in plaintiff's favor as required by Civ.R. 56 supports a finding that plaintiff's disabilities substantially limit his ability to hear and to perform manual tasks and work. Such impairments render plaintiff "handicapped" as defined by R.C.
Second, there must be a genuine issue of fact as to whether the city's actions were a result of plaintiff's handicaps. Moreover, that they were is essentially undisputed. The city contends there is a legitimate business reason for terminating plaintiff unrelated to his handicap, which plaintiff fails to acknowledge. This alleged reason is his failure to take the test to qualify for the civil service eligibility list for his position, which he admittedly is unable to perform fully because of his handicap. However, the evidence, viewed most favorably to plaintiff as required by Civ.R. 56, reveals a genuine issue of material fact as to whether the city's actions were taken for a nondiscriminatory reason. No accommodation was offered to plaintiff in connection with the position he held or any other position he could perform. *333
Evidence in the record includes the following: plaintiff worked several weeks under lifting restrictions prior to being involuntarily placed on disability leave. Plaintiff's supervisor, upon relieving plaintiff of his duties as a plant maintenance mechanic, allegedly said: "With all your problems, if you were a horse I'd take you out back and shoot you."2 The city did not notify plaintiff of the civil service examinations. Plaintiff was employed by the Division of Water, which is part of the Department of Public Utilities and Aviation. Plaintiff applied for other jobs, for which he was qualified, also within the Department of Public Utilities and Aviation3 but was not considered for these positions. Eventually, plaintiff was told by the Assistant Administrator of Public Utilities, Division of Water, to stop inquiring about open positions. Plaintiff was terminated for not appearing on the civil service eligibility list, even though the city failed to notify him the tests were being administered, and no job accommodation was offered.
Construing the evidence most favorably to plaintiff, for purposes of the summary judgment motion, reasonable minds could differ as to whether plaintiff was the subject of handicap discrimination, that is, whether the city's actions in dismissing plaintiff were solely for nondiscriminatory reasons or were taken, in large part, because of plaintiff's handicap. For purposes of summary judgment, defendant has not carried its burden of demonstrating there to be no genuine issue of material fact or that it is entitled to judgment in its favor as a matter of law since reasonable minds could reach different conclusions when the evidence is construed most strongly in plaintiff's favor. The trial court was in error in stating there to be no evidence in the record that the city's actions were predicated upon plaintiff's handicap. There is substantial evidence to that effect, even though a finding for the city might be appropriate if the evidence be construed or weighed in its favor.
Finally, to recover, plaintiff must be a qualified handicapped individual, a person who, even though handicapped, can safely and substantially perform the essential functions of an available job or his former position with reasonable accommodation. A "qualified handicapped person" is defined in Ohio Adm. Code
Plaintiff concedes that his inability to lift weights in excess of twenty pounds precludes him from performing one essential function of a plant maintenance mechanic. Plaintiff contends, however, the reasonable accommodation due him includes reassignment to a vacant position for which he is qualified and can perform. Plaintiff's contention is correct.
That "reasonable accommodation" includes reassignment to an available, related vacant position is almost axiomatic. R.C.
R.C. Chapter 4112 is a remedial statute enacted for the purpose of preventing, inter alia, handicap discrimination in employment. R.C.
The Rehabilitation Act of 1973, Section 794, Title 29, U.S. Code, and the Americans with Disabilities Act, Section 12101, Title 42, U.S. Code, define reasonable accommodation to include reassignment to a vacant position. See Section 12111(9)(B), Title 42, U.S.Code. While the question of whether reasonable accommodation includes reassignment was an open one under the Rehabilitation Act of 1973, the Act was amended in 1992, as follows:
"(d) Standards used in determining violation of section. *335
"The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (
Clearly, under federal law reasonable accommodation of a handicapped employee includes reassignment to an appropriate vacant position which must be offered. It is not necessary that a new, unneeded position be created, but, rather, if a new disability prevents an employee from performing his present job, an effort to place him in an existing position which is vacant and for which he is qualified and can perform must be made.
R.C. Chapter 4112 was in 1990, and still is, as broad as if not broader than the present federal laws prohibiting handicap discrimination. Additionally, R.C.
"(2) Divisions (A) to (E) of this section do not prohibit an employer * * * from doing any of the following:
"* * *
"(f) Exercising other authority recognized in `The Americans with Disabilities Act of 1990.'
Furthermore, Section 3 of Am.Sub.H.B. No. 321, eff. June 30, 1992, which was the bill enacting the above-noted amendment to R.C.
"It is the intent of this section to prevent the amendment of section
This provision evidences the understanding of the General Assembly that R.C. Chapter 4112 is and has been at least as broad, if not broader, in scope than even the New Americans with Disabilities Act, which has been held to have created new substantive rights, thus preventing its retroactive application. See Raya v. Maryatt Industries (N.D.Cal. 1993),
In liberally construing R.C. Chapter 4112, the minimum standards were in 1990 and are now at least those outlined in the Americans with Disabilities Act, Section 12101, Title 42, U.S.Code. Under R.C. Chapter 4112, as under Section 12101, Title 42, U.S. Code, reasonable accommodation includes reassignment to vacant positions for which the handicapped employee is qualified and can perform.
Defendant has not established that there are no genuine issues as to any material facts on the issue of whether reasonable accommodation was afforded plaintiff. Summary judgment was, therefore, contrary to law. The second and third assignments of error are well taken.
For the foregoing reasons, all three of plaintiff's assignments of error are sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law, consistent with this opinion.
Judgment reversedand cause remanded.
JOHN C. YOUNG and REILLY, JJ., concur.
ARCHER E. REILLY, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section