Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Steven J. Forbes Norchi Forbes, L.L.C.
ATTORNEYS FOR APPELLEE Laura Lindner Littler Mendelson P.C.
Amy Ryder Wentz Littler Mendelson P.C.
BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Plaintiff-appellant Jacinda Anderson ("Anderson")
appeals from the trial court's January 24, 2016 judgment
that, in part, granted summary judgment in favor of
defendant-appellee, The Ohio Bell Telephone Company, a.k.a.
AT&T ("Ohio Bell"), on Anderson's
disability discrimination claims. For the reasons that
follow, we reverse and remand.
Beginning in August 2005, Anderson worked for Ohio Bell; she
had previously worked for Michigan Bell from 1995 until she
transferred to Ohio Bell. In August 2009, she sought leave of
absence for an alleged medical condition. In November 2009,
the company terminated her employment.
In 2013, Anderson filed this action against Ohio Bell,
alleging that she was terminated because of a disability and
that the company failed to provide her with a reasonable
accommodation for the disability. Ohio Bell answered the
complaint and asserted a fraud counterclaim against Anderson.
Both parties filed motions for summary judgment: Anderson
filed a motion for summary judgment on the company's
fraud counterclaim, and Ohio Bell filed a motion for summary
judgment on both Anderson's complaint and its fraud
counterclaim. The trial court granted Ohio Bell's motion
as it related to Anderson's complaint, but denied both
parties' motions as they related to the company's
fraud counterclaim. After the trial court's ruling, the
telephone company voluntarily dismissed its fraud
counterclaim. Anderson now appeals, and for her sole
assignment of error contends that "the trial court erred
by granting summary judgment in favor of Ohio Bell Company
and finding as a matter of law that The Ohio Bell Telephone
Company did not discriminate against Jacinda Anderson based
on her disability."
judgment standard of review
This court's review of a trial court's decision on
summary judgment is de novo. Bonacorsi v. Wheeling &
Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220,
767 N.E.2d 707, ¶ 24. Summary judgment is appropriate
only when the moving party demonstrates that (1) no genuine
issue of material fact exists, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable
minds could 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 most strongly construed in its favor. Civ.R. 56(C);
State ex rel. Grady v. State Emp. Relations Bd, 78
Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
Bell's summary judgment motion
In support of its motion for summary judgment, Ohio Bell
submitted several affidavits with accompanying documentation
and deposition transcripts, including the transcript from
Anderson's deposition. It was Ohio Bell's position
that Anderson sought disability leave based on "knowing
misrepresentations." Specifically, the telephone company
maintained that it granted her a five-week, short-term
disability leave based on her representations that she was
having surgery for carpal tunnel; the leave was for August 5,
2009 through September 14, 2009. According to the company,
Anderson neither scheduled nor had the surgery.
When the five-week period expired, Anderson sought additional
time, which the company denied. Anderson appealed the denial.
In support of her appeal, Anderson submitted a letter she and
her father drafted, "purportedly bearing the letterhead
and signature of a psychiatrist." However, Ohio Bell
contended that the psychiatrist never treated Anderson during
the relevant time frame, had not even met her at the time the
letter was drafted, and did not write the letter. The
"fraudulent" letter from the psychiatrist was the
ground for Ohio Bell's fraud counterclaim against
The company's resource manager, Lashon Borom
("Borom"), averred that claims for short-term
disability are processed by a third-party administrator,
Sedgwick Claims Management Services, which operates as the
AT&T Integrated Disability Services Center
("IDSC"). After being notified of a claim for
short-term disability,  the IDSC makes a determination, based
on the information provided by the employee's health care
provider, on whether the medical condition qualifies for
benefits. After it makes its determination, the IDSC then
notifies the employee in writing as to whether his or her
claim had been approved or denied, and the reason for the
Borom averred that Anderson had "three chargeable
absences in 2009: July 5 -July 11, July 19 - July 23, and
July 30 - August 3." After the third absence, the
company was eligible under its disciplinary policy to
terminate Anderson, but it "decided to exercise leniency
and * * * give her a final written warning plus 3-day
suspension in lieu of termination."
On August 13, 2009, Borom opened a short-term disability
claim for Anderson because she had been off work for her own
illness for eight consecutive days. On September 15, 2009,
the IDSC determined that Anderson was no longer unable to
work and, therefore, that she was not entitled to benefits.
In a letter from Borom to Anderson dated September 16, 2009,
Borom advised Anderson that her claim for short-term
disability benefits had been denied and that she had
"exhausted [her] FMLA entitlement for the current
12-month period." The letter directed Anderson to report
to work on September 23, 2009, and that if she did not, the
company would "have no choice but to assume you are
abandoning your job" and it would remove her from the
payroll because of her "voluntary resignation."
The letter further advised that if Anderson required a
reasonable accommodation, she should contact the IDSC, and if
she needed help managing a situation in her personal or work
life, she should contact the employee assistance program.
Borom averred that Anderson did not contact her or otherwise
respond to the letter, and did not report to work on
September 23. Further, the IDSC did not contact Borom to
advise that Anderson had requested a reasonable
accommodation. Borom sent another letter to Anderson, dated
October 7, 2009, advising her to return to work by October
14; Anderson did not return. On October 14, Borom sent
another letter to Anderson advising her to report to work by
October 21; again, Anderson did not report. Another letter,
dated October 26 was also sent; the letter stated that
Anderson needed to report to work on November 2, 2009; she
As with the first letter, the October letters advised
Anderson that failure to report to work would be deemed
abandonment of her job and voluntary resignation; that she
should contact the IDSC for a request for a reasonable
accommodation; and that if she needed help managing a work or
personal issue, she should contact the employee assistance
Meanwhile in October 2009, Borom emailed an IDSC
representative to get an update on Anderson's claim.
Borom told the representative that Anderson "continues
to say that her doctor is sending medical information because
she is not able to come back to work." The
representative responded that the IDSC had received updated
information, but the "information did not support
overturning the denial of this claim. To date, the claim
remains denied from 9/15/09 to her return to work."
After Anderson did not return to work, by letter dated
November 5, 2009, Ohio Bell terminated her employment. Borom
averred that before removing Anderson from the payroll, she
contacted the IDSC to determine if Anderson had provided any
additional information and learned that she had not. Borom
further averred that neither the IDSC nor Anderson had ever
communicated any medical information about Anderson to her.
According to Borom, at the time the termination decision was
made, she had no knowledge as to what condition Anderson
claimed was preventing her from returning to work.
Ohio Bell also submitted an affidavit from Susan HagEstad
("HagEstad"), a manager for Sedgwick, the company
that, as mentioned, was the third-party administrator of
disability benefits for Ohio Bell. HagEstad averred that,
although she had access to a claimant's records, because
of privacy laws, medical information acquired by Sedgwick was
not shared with Ohio Bell agents.
According to HagEstad, Anderson called the IDSC on August 18,
2009, and reported that she was scheduled for hand surgery to
treat carpal tunnel syndrome and arthritis on September 9,
2009. But as of September 14, Sedgwick had not received any
medical documentation that a health condition prevented
Anderson from working. Further, Sedgwick had only ...