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Ford v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

September 25, 2017


          Sent to S.C. Reporter 10/23/17

          Holly True Shaver Magistrate Judge.



         {¶1} On August 18, 2017, defendant filed a motion for summary judgment pursuant to Civ.R 56(B). Plaintiff did not file a response. The motion is now before the court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.

         {¶2} Civ.R. 56(C) states, in part, as follows:

         {¶3} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only 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." See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977).

         {¶4} In her complaint, plaintiff asserts that she suffers from Keratoconus, a disease of the eye that causes sensitivity to light. In 2010, plaintiff was employed by defendant as a transportation officer. In August 2014, plaintiff underwent surgery, during which time she took short-term disability leave. In September 2014, plaintiff requested to be placed into a non-inmate contact position upon her return from disability leave. On November 3, 2014, plaintiff was hired at Pickaway Correctional Institution (PCI) as an Administrative Professional 1. That same day, plaintiff submitted an accommodation application, in which she requested either a large computer screen or multiple screens, and a low-light working area. Plaintiff also requested an evaluation of her workspace by her Low Vision Therapist to determine whether other accommodations were necessary. On April 14, 2015, plaintiff met with the warden at PCI to discuss her accommodation requests and was granted leave pursuant to the Family and Medical Leave Act (FMLA) so that the accommodations to her workspace could be performed. On August 25, 2015, defendant recommended that plaintiff be medically separated from PCI.

         {¶5} Plaintiff asserts claims of disability discrimination and failure to accommodate her disability in violation of both the Americans with Disabilities Act of 1990 (ADA), 42 USC 12101 et. seq., and R.C. 4112; and retaliation in violation of both federal and state law because of her requests for accommodations. Defendant asserts that plaintiff cannot prevail on any of her claims.


         {¶6} Defendant first argues that plaintiffs federal claims fail because they were not timely filed. To seek relief under the ADA, a plaintiff must file suit within 90 days of receipt of a right to sue letter from the EEOC. See Section 12117(a), Title 42 U.S. Code; Peete v. American Standard Graphic, 885 F.2d 331 (6th Cir.1989). Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on June 17, 2015. The EEOC issued her a Notice of Right to Sue dated December 9, 2015. (Plaintiffs Exhibit 1.) Although plaintiff filed her original complaint in this court on March 8, 2016, she dismissed that claim without prejudice on June 10, 2016. Plaintiff filed the instant complaint on September 9, 2016. Although R.C. 2305.19, the savings statute, permits plaintiff to refile her action within one year of filing a notice of voluntary dismissal, R.C. 2305.19 "cannot save a federal claim that contains a specific limitations period." McNeely v. Ross Correctional Inst, 10th Dist. Franklin No. 06AP-280, 2006-Ohio-5414, ¶ 9; Stevens v. Ohio Dept of Mental Health, 10th Dist. Franklin No. 12AP-1015, 2013-Ohio-3014, ¶ 15. Plaintiffs federal claims of discrimination and retaliation under the ADA were therefore filed more than 90 days after December 9, 2015. Construing the facts most strongly in plaintiffs favor, the only reasonable conclusion is that plaintiffs federal claims were not timely filed in this court. Therefore, defendant is entitled to summary judgment as a matter of law on plaintiffs federal claims.



         {¶7} R.C. 4112.02 provides, in pertinent part, that: "It shall be an unlawful discriminatory 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, or any matter directly or indirectly related to employment." In Ohio, "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981). To prevail in an employment discrimination case, a plaintiff must prove discriminatory intent and may establish such intent through either direct or indirect methods of proof. Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996). To establish a prima facie case of discriminatory discharge, a plaintiff must show that: "(1) [s]he is disabled, (2) [s]he was otherwise qualified for the position, with or without reasonable accommodation, (3) [s]he suffered an adverse action, (4) the employer knew or had reason to know of [her] disability, and (5) [s]he was replaced or the job remained open." Hartman v. Ohio DOT, 10th Dist. Franklin No. 16AP-222, 2016-Ohio-5208, ¶ 18, citing Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th Cir.2012). As stated in Hartman, supra, the elements of a prima facie case can vary based on the circumstances of the case. See Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 433 (6th Cir.2014) (stating the elements as (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability).

         {¶8} If plaintiff establishes a prima facie case of discrimination, under McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973), the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id., at 802. Once the employer does, the burden shifts back to plaintiff to show that the proffered reason was not the true reason, but was a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine,450 U.S. 248, 253 (1981). Plaintiff must present evidence to show that the employer's stated reason for terminating her employment has no basis in fact, was not the actual reason for her termination, or the reason was insufficient to explain the employer's action. Smith v. Ohio Dept. of Public Safety, 10th Dist. Franklin No. 12AP-1073, 2013-Ohio-4210, ¶ 77, citing Manzer v. Diamond Shamrock Chems. Co.,29 F.3d 1078, 1084 (6th Cir.1994). Regardless of which option is chosen, plaintiff must produce sufficient evidence from which the trier of fact could reasonably reject the employer's explanation and infer that the employer intentionally discriminated against her. Johnson v. Kroger Co.,319 F.3d 858, 866 (6th Cir.2003). A reason cannot be proved to be a pretext for discrimination unless it is shown ...

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