Blashak v. Ohio Department of Youth Services, 010319 OHCOC, 2017-00695JD

Docket Nº:2017-00695JD
Judge Panel:Robert Van Schoyck Magistrate Judge
Case Date:January 03, 2019
Court:Court of Claims of Ohio





No. 2017-00695JD

Court of Claims of Ohio

January 3, 2019

Sent to S.C. Reporter 2/13/19

Robert Van Schoyck Magistrate Judge



{¶1} On November 9, 2018, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff filed a response on November 26, 2018. On December 6, 2018, defendant filed a motion for leave to file a reply brief pursuant to L.C.C.R. 4(C), which is GRANTED instanter. The motion for summary judgment is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).

{¶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, 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

{¶4} Plaintiff brings this action asserting claims of disability discrimination and retaliation in violation of R.C. 4112.02. There is no dispute that plaintiff has been employed with defendant since 1993 and has worked as a juvenile probation officer (JPO) assigned to defendant's regional office in Akron since 1999. (Blashak Depo., pp. 20, 25.) According to plaintiff, at some point in 2012 or earlier she was diagnosed with and began treatment for attention deficit disorder. (Blashak Depo., pp. 106-107.) Plaintiffs disability discrimination claim was predicated, in part, upon allegations that in December 2012 defendant placed her on administrative leave and had her undergo an independent medical examination (IME) before she returned to work in February 2013. Defendant previously moved, without opposition, to dismiss as untimely any claim for disability discrimination based upon those events, and the court issued an entry dismissing any such claim on October 17, 2017.

{¶5} It is undisputed that plaintiff, citing her IME and placement on administrative leave, filed a charge of disability, age, and sex discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) in October 2013. (Blashak Depo., Ex. F.) The claims that remain for adjudication essentially provide that defendant subsequently retaliated against plaintiff for filing the EEOC charge and discriminated against her on the basis of a disability or perceived disability in various ways.

{¶6} The parties are in agreement that on May 15, 2015, plaintiff was issued a written reprimand for being late to a training session, although through the grievance process a settlement was reached on May 21, 2015, whereby the written reprimand was removed from her personnel file. (Blashak Depo., pp. 57-58.) According to plaintiff, on May 22, 2015, she broke a toe and consequently went on short term disability leave. (Blashak Depo., pp. 62, 64.) Plaintiff testified that she remained on short term disability when, sometime in August 2015, she received a notice to the effect that defendant intended to have a hearing on whether to effect an involuntarily disability separation from employment. (Blashak Depo, p. 65.) Plaintiff stated that she then contacted her podiatrist and obtained a release to return to work, and, as a result, there was no hearing and she returned to work on August 17, 2015. (Blashak Depo., pp. 65-66.)

{¶7} Upon returning to work, plaintiff stated, Regional Administrator Joseph Marsilio informed her that, due to a pending investigation, she would not be assigned any parole cases and she was essentially placed on desk duty, checking email and answering the phone at the office she maintained at the Akron regional office. (Blashak Depo., pp. 37-38, 66-67.) Marsilio explained in deposition testimony that the investigation related to a complaint from a Mahoning County Juvenile Court judge who asked that plaintiff not be assigned to her courtroom. (Marsilio Depo., pp. 53-54, 57-59.) Plaintiff recounts that two days after returning to work, on August 19, 2015, she was injured in an automobile accident and consequently requested vacation leave because she had exhausted her sick leave, but the request was denied and she wound up taking two days of leave without pay. It is undisputed that on August 26, 2015, the EEOC issued a right-to-sue notice after determining there was no evidence to suggest plaintiff had been discriminated against. Defendant concluded its investigation in September 2015 without disciplining plaintiff, who was taken off desk duty and reassigned to parole cases to resume her normal work duties. (Blashak, p. 112; Response, p. 8.)


{¶8} "Under Ohio law, an employer may not discharge without just cause, refuse to hire or otherwise discriminate against an individual with respect to hire, tenure, terms, conditions or privileges of employment 'because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry' of that person." Burns v. Ohio State Univ. College of Veterinary Med., 10th Dist. Franklin No. 13AP-633, 2014-Ohio-1190, ¶ 6, quoting R.C. 4112.02(A). The Supreme Court of Ohio has also "determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164 (1991).

{¶9} "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." Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012-Ohio-1709, ¶ 25, quoting Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766, 729 N.E.2d 1202 (10th Dist.1998). Here, plaintiffs theory is that discriminatory intent may be established through the indirect method, which is subject to the burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Nist v. Nexeo Solutions, LLC, 10th Dist. Franklin No. 14AP-854, 2015-Ohio-3363, ¶ 31.

{¶10} "Under McDonnell Douglas, a plaintiff must first present evidence from which a reasonable jury could conclude that there exists a prima facie case of discrimination." Turner v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011-Ohio-4654, ¶ 11-12. "To establish a prima facie case of disability discrimination under R.C. 4112.02, a plaintiff must show that: (1) the employee was disabled, (2) that the employer took adverse employment action against the employee, which was caused, at least in part, by the employee's disability; and that (3) despite the disability, the employee can safely and substantially perform the essential functions of the job, with or without a reasonable accommodation." Sheridan v. Jackson Twp. Div. of Fire, 10th Dist. Franklin No. 08AP-771, 2009-Ohio-1267, ¶ 5.

{¶11} "If the plaintiff meets her initial burden, the burden then shifts to the defendant to offer 'evidence of a legitimate, nondiscriminatory reason for' the adverse action. * * * If the defendant meets its burden, the burden then shifts back to the plaintiff to demonstrate that the defendant's proffered reason was actually a pretext for unlawful discrimination." Turner at ¶ 14. "The ultimate burden of persuasion always remains with the plaintiff. * * * In order to show pretext, a plaintiff must show both that the reason was false, and that discrimination was the real reason." Ames v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-4774, 23 N.E.3d 162, ¶ 27 (10th Dist.).

{¶12} Defendant argues that plaintiff cannot establish a prima facie case of disability discrimination because there was no materially adverse employment action. Since defendant's motion does not challenge the...

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