Hood v. Diamond Products, Inc.

• Decision Date: 17 January 1996
• Docket Number: No. 94-1217,94-1217
• Citation: 74 Ohio St.3d 298,658 N.E.2d 738
• Parties: , 7 NDLR P 291 HOOD, Appellant, v. DIAMOND PRODUCTS, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 298

74 Ohio St.3d 298

658 N.E.2d 738, 7 NDLR P 291

HOOD, Appellant, v. DIAMOND PRODUCTS, INC. et al., Appellees.

No. 94-1217.

Supreme Court of Ohio.

Submitted Sept. 26, 1995.

Decided Jan. 17, 1996.

SYLLABUS BY THE COURT

1. In order 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. (Hazlett v. Martin Chevrolet, Inc. [1986], 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478, followed.)

2. Cancer may be a "handicap" as that term is defined in former R.C. 4112.01(A)(13).

In 1988, appellant, Christine S. Hood, was hired as a sales secretary by Diamond Products, Inc. ("Diamond"), appellee. Appellant was eventually given the title of executive secretary. She performed all facets of secretarial duties for various company personnel, including, among others, Karl H. Moller, Diamond's chief executive officer and president, James N. Warren, the company's sales and marketing manager, and Thomas C. Ferrara, a former marketing director at Diamond. Appellant was fired from her employment with Diamond effective December 9, 1991.

On June 3, 1992, appellant filed a complaint in the Court of Common Pleas of Lorain County against appellees, Diamond and TDP Joint Venture. In her complaint, appellant alleged, inter alia, that appellees fired her without just cause and discriminated against her in violation of R.C. 4112.02(A). Appellant claimed that during her employment with Diamond she was diagnosed with and was treated for cancer of the bladder, that she was fired because of the cancer, and that her condition was a "handicap" as that term is defined in former R.C. 4112.01(A)(13).

The following relevant matters were elicited upon discovery and by way of sworn affidavit.

Appellant testified, by way of affidavit and deposition, that in October 1989, she observed blood in her urine and, following a biopsy and the removal of two tumors, she was diagnosed with bladder cancer. According to appellant, she informed Warren about the results of the biopsy and she informed both Warren and Moller that she would need to take time off from work for surgery. Following the surgery, appellant was told by her doctors that the cancer had been eradicated with the initial removal of the two tumors. However, in March 1990, the cancer reappeared, necessitating chemotherapy treatments. Appellant stated that she informed Warren and Moller of her status and the need for chemotherapy treatments.

Appellant indicated that she had undergone numerous chemotherapy treatments. The individual treatments lasted a few hours and could only be administered during weekday business hours. As a result, appellant was required to be absent, at various times, from work. Appellant indicated that she usually made up the time she missed from work and that she scheduled and/or rescheduled treatments for Friday afternoons in order to minimize interfering with work. Appellant also explained that the third series of chemotherapy treatments she received caused her extreme pain, that they affected her sleep, and that on the day immediately following the treatments it was necessary "to visit the bathroom every fifteen or twenty minutes."

During her deposition, appellant testified that as a consequence of her cancer, she was asked to keep a log of the hours she worked and that her supervisor, Warren, began to abuse her "verbally." Additionally, appellant indicated that her June 1991 job evaluation review was downgraded unjustifiably by Warren. According to appellant, when she approached and questioned Warren about certain low scores she had received on the review, Warren would not discuss the matter with her. Appellant also testified that on one occasion when she had rescheduled a chemotherapy treatment from a Friday to a Monday so that she could visit her ailing mother during a Thanksgiving Day holiday, she was told by Warren that "Well, then what you're telling me is that last week, your mother was more important than your health, but this week, your health is more important than your job."

The record also contains the depositions of Ferrara, Moller and Warren. Ferrara testified that he and Warren had discussed appellant's condition (cancer and chemotherapy treatments). Ferrara stated that Warren was aware that appellant had cancer and that he (Warren) was extremely "agitated relative to her absenteeism and tardiness * * *." Ferrara stated that appellant was overworked, that she was a competent and good secretary, and that she routinely worked extra hours to compensate for the time that she had missed from work due to the cancer.

Moller and Warren testified that they were not aware that appellant had cancer. However, Warren did indicate that he was aware that appellant had received chemotherapy treatments. According to Moller and Warren, they believed that appellant's absences from work were due to "female problems." Warren testified that appellant was a good secretary and that she made up time lost from work.

At their depositions, Moller and Warren claimed that the reason appellant was fired was because of her dishonesty surrounding the compilation of a "Christmas list" consisting of company employee addresses. According to Moller, appellant had falsely used his name as authorization for compiling the addresses and when questioned about the incident appellant denied using his (Moller's) name.

On March 31, 1993, appellees filed a motion for summary judgment. In their brief, appellees asserted, essentially, that appellant failed to establish a prima facie case of handicap discrimination, and that appellant failed to show that the reason for her discharge was a pretext for unlawful discrimination.

Appellant responded to the motion for summary judgment and attached, among other things, her personal affidavit and portions of her deposition testimony. In her affidavit, appellant set forth the nature and extent of her alleged handicap.

On May 26, 1993, the trial court granted summary judgment in favor of appellees. The trial court, however, did not provide a specific basis for its decision.

On appeal, the court of appeals affirmed the judgment of the trial court. The court of appeals held that appellant failed to establish that appellees had violated R.C. 4112.02(A). Specifically, the court of appeals held that, because appellant did not provide expert medical testimony outlining the nature and effect of her condition, appellant failed to demonstrate that she was handicapped.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

Spangenberg, Shibley, Traci, Lancione & Liber, Ellen Simon Sacks and Michael T. Pearson, Cleveland, for appellant.

Seeley, Savidge & Aussem Co., L.P.A., Carter R. Dodge and Keith A. Savidge, Cleveland, for appellees.

Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes, Columbus, urging reversal for amicus curiae, Ohio Employment Lawyers Association.

Vorys, Sater, Seymour & Pease, G. Ross Bridgman, Robert A. Minor and Richard T. Miller, Columbus, urging affirmance for amici curiae, Ohio Manufacturers' Association and Ohio Chamber of Commerce.

DOUGLAS, Justice.

The primary issue before this court is whether the court of appeals properly concluded that summary judgment in favor of appellees was appropriate. For the reasons that follow, we answer this question in the negative and, accordingly, reverse the judgment of the court of appeals.

Handicap discrimination in employment situations is prohibited by R.C. 4112.02(A). ¹ This statutory ² provision provides that:

"It shall be an unlawful discriminatory practice:

"(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 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." (Emphasis added.)

This court has held that in order 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. Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281, 25 OBR 331, 333, 496 N.E.2d 478, 480. Once the plaintiff establishes a prima facie case of handicap discrimination, the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reason for the action taken. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 197, 20 O.O.3d 200, 203, 421 N.E.2d 128, 132. Legitimate, nondiscriminatory reasons for the action taken by the employer may include, but are not limited to, insubordination on the part of the employee claiming discrimination, or the inability of the employee or prospective employee to safely and substantially perform, with reasonable accommodations, the essential functions of the job in question. See, e.g., Ohio Adm.Code 4112-5-08(D)(4) and (E). Finally, if the employer establishes a nondiscriminatory reason for the action taken, then the employee or prospective employee must demonstrate that the employer's stated reason was a pretext for impermissible discrimination. Plumbers & Steamfitters Joint Apprenticeship Commt., supra, 66 Ohio St.2d at 198, 20 O.O.3d at 203, 421 N.E.2d at 132.

The case we now have before us concerns only whether appel...