Carnahan v. Morton Buildings, Inc.

41 N.E.3d 239

32 A.D. Cases 491

Samuel N. CARNAHAN, Plaintiff–Appellant

v.MORTON BUILDINGS, INC., Defendant–Appellee.

No. 11–14–04.

Court of Appeals of Ohio, Third District, Paulding County.

Aug. 31, 2015.

William J. O'Malley, Columbus, for Appellant.

Michelle J. Sheehan, Cleveland, and Laurie J. Avery, Toledo, for Appellee.

OPINION

WILLAMOWSKI, J.

{¶ 1} Plaintiff-appellant Samuel N. Carnahan (“Carnahan”) brings this appeal from the judgment of the Court of Common Pleas of Paulding County granting summary judgment to defendant-appellee Morton Buildings, Inc. (“Morton”). For the reasons set forth below, the judgment reversed.

{¶ 2} Carnahan began working for Morton in May of 2008. Doc. 1. In March of 2011, Carnahan was promoted from crew leader to the position of crew foreman. Id. In August of 2011, Carnahan and his crew were working on constructing a pole barn on a farm in Missouri. Id. The manager of the property offered to take the crew on an ATV tour of the farm. Id. During the tour, Carnahan fell from the ATV and suffered severe head trauma. Id. Carnahan was life-flighted to a hospital in St. Louis where a portion of his skull and a portion of his temporal lobe had to be removed due to brain swelling. Id. Carnahan spent two weeks in the ICU and was then transported to the hospital's in-patient rehabilitation unit where he remained until September 28, 2011. Id. Carnahan was then released and permitted to return to Ohio. Id.

{¶ 3} Upon Carnahan's return to Ohio, he underwent numerous therapies under the care of his family physician. Id. Carnahan's recovery went well and his physician, after consultation with Carnahan's neurosurgeon and physical therapist, authorized him to return to work for reduced hours as of January 2, 2012, with a return to normal after two weeks. Id. Carnahan's doctor placed no restrictions on Carnahan after the initial two weeks of reduced time. Id. Morton refused to allow Carnahan to return to work during the initial two week period of reduced hours. Id. Once the time was up, Morton again refused to allow Carnahan to return to work until he had been reviewed by Morton's neurosurgeon, Dr. Prasad Policheria (“Policheria”) for a fitness for duty examination. Id. Policheria determined that Carnahan could not perform the duties of crew foreman absent certain restrictions. Id. Morton then terminated Carnahan's employment based upon Policheria's report that Carnahan could not fulfill the duties of his job without accommodation. Id.

{¶ 4} On July 3, 2012, Carnahan filed a complaint alleging that Morton had terminated his employment based upon his disability or upon a perceived disability pursuant to R.C. 4112.99. Id. On September 5, 2012, Morton filed a motion to dismiss for failure to state a cause of action. Doc. 15. Carnahan filed his memorandum contra to the motion to dismiss on September 24, 2012. Doc. 17. The trial court overruled the motion to dismiss on December 31, 2012. Doc. 19. Morton then filed its answer to the complaint on January 23, 2013. Doc. 20.

{¶ 5} On February 7, 2014, Morton filed its motion for summary judgment. Doc. 33. Carnahan filed his memorandum in opposition to the motion for summary judgment on March 10, 2014. Doc. 44. Morton then filed a reply brief on March 26, 2014. Doc. 45. On April 23, 2014, the trial court granted Morton's motion for summary judgment. Doc. 48. Carnahan filed his notice of appeal on May 22, 2014. Doc. 54. On appeal, Carnahan raises one assignment of error.

The trial court erred [when] it granted summary judgment to [Morton] on [Carnahan's] claim of disability discrimination.

{¶ 6} The sole assignment of error is that the trial court erred in granting Morton's motion for summary judgment.

An appellate court reviews a trial court's summary judgment decision de novo, independently and without deference to the trial court's decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 8. Summary judgment is appropriate only “when the requirements of Civ.R. 56(C) are met.” Adkins v. Chief Supermarket, 3d Dist. No. 11–06–07, 2007-Ohio-772 [2007 WL 567441], at ¶ 7. The party moving for summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Id., citing Civ.R. 56(C) ; Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. In ruling on a motion for summary judgment, a court may not “weigh evidence or choose among reasonable inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court must consider the above standard while construing all evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.

The party moving for summary judgment must identify the basis of the motion to allow the non-movant a “meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d 798. In its motion, the moving party “must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C).” Id. at 115, 526 N.E.2d 798, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519–520, 196 N.E.2d 781 ; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a “reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *.” Dresher, at 294, 662 N.E.2d 264.

Lillie v. Meachem, 3d Dist. Allen No. 1–09–09, 2009-Ohio-4934, 2009 WL 2987182, ¶ 21–22. The trial court did not provide any basis for its ruling, instead merely stating that Morton's motion for summary judgment was granted.

{¶ 7} Carnahan brought a claim for disability discrimination pursuant to the Ohio Civil Rights Act. Carnahan appears to allege 1) that he suffers from a disability, or in the alternative 2) that Morton believed that he suffered from a disability and that he was fired for one of these reasons. R.C. 4112.02 provides in pertinent part as follows.

It shall be an unlawful discrimination practice:

(A) For any 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.

R.C. 4112.02. The term “disability” is defined as “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.” R.C. 4112.01(A)(13). Since Ohio's disability discrimination statute is similar to the federal Americans with Disabilities Act (“ADA”), we can look to federal cases for guidance in interpreting the Ohio statute. Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 573, 697 N.E.2d 204 (1998) and Barreca v. Travco Behavioral Health, Inc., 11th Dist. Trumbull No. 2013–T–0116, 2014-Ohio-3280, 2014 WL 3734186.

To establish a prima facie case of handicap discrimination, the person seeking relief must demonstrate (1) that 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.

McGlone, supra at 571, 697 N.E.2d 204. A person can gain the protection of the disability discrimination laws even if he or she is not disabled if the employer regards the person as being disabled. Id. at 572, 697 N.E.2d 204.

{¶ 8} Here, Carnahan does not argue that he was in fact suffering from a disability. In his brief, Carnahan states that he suffered a traumatic injury, but also indicated that he had a remarkable recovery. Carnahan does not point to any instance where a physical or mental impairment “substantially limits” a major life activity. On the contrary, the evidence presented by Carnahan indicates that he is not limited in his ability to perform major life activities such as “caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working”. Carnahan's doctor released him to return to work without restriction. Thus, there was no evidence presented to the trial court to indicate that a genuine issue of material fact existed regarding whether Carnahan was actually disabled. The undisputed evidence indicates that there was no actual disability. The trial court therefore did not err in granting summary judgment as to this claim.

{¶ 9} However, there was evidence presented that indicated that there may be a genuine issue of material fact regarding whether Morton perceived Carnahan as having a physical or mental impairment.

(16)(a) Except as provided in division (A)(16)(b) of this section, “physical or mental impairment ” includes any of the following:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive;

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