House v. Kirtland Capital Partners

• Decision Date: 09 July 2004
• Docket Number: No. 2003-L-011.,2003-L-011.
• Citation: 814 NE 2d 65,158 Ohio App.3d 68
• Parties: HOUSE, Appellant, v. KIRTLAND CAPITAL PARTNERS et al., Appellees.
• Court: Ohio Court of Appeals

158 Ohio App.3d 68

2004-Ohio-3688

814 NE 2d 65

2004-Ohio-3688

HOUSE, Appellant, v. KIRTLAND CAPITAL PARTNERS et al., Appellees.

No. 2003-L-011.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided July 9, 2004.

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Richard N. Selby II, Painesville, for appellant.

James I. Hackenberg and Joseph P. Szeman, Painesville, for appellees.

JUDITH A. CHRISTLEY, Judge.

{¶ 1} Appellant, Gloria House, appeals from a judgment of the Lake County Court of Common Pleas granting summary judgment in favor of appellees, Turben Developmental Services Foundation, Inc. and Kirtland Capital Partners. Based upon the following, we affirm the judgment of the trial court.

{¶ 2} The following facts were disclosed through the parties' discovery. In August 1994, appellant was hired by Dr. Susan Turben to work as a part-time secretary for appellee, Turben Developmental Services Foundation, Inc. ("the Turben Foundation"). ¹ At the time of appellant's employment, the Turben Foundation was sharing office space with appellee, Kirtland Capital Partners.

{¶ 3} In November 1995, appellant was involved in an automobile accident and injured her back. Despite her back injury, appellant continued to work full-time for the Turben Foundation. Appellant testified during her deposition that her back injury caused some discomfort while at work and she often needed assistance to lift objects.

{¶ 4} In January 1997, appellant was hired by Debbie Baughman to work as a secretary for Kirtland Capital Partners. Appellant began to divide her available work hours between the Turben Foundation and Kirtland Capital Partners.

{¶ 5} At the end of May 2000, appellant elected to undergo spinal-fusion surgery in an attempt to alleviate her back pain. Appellant was advised by her doctor that the surgery would require at least a four-month leave of absence from her duties with appellees. The estimated time of her return to work was the middle of October 2000. Appellant informed appellees that after her surgery she would need four months to rehabilitate her back prior to returning to work.

{¶ 6} Sometime in August 2000, Ms. Baughman sent appellant an e-mail inquiring whether she would be available to work from home. Appellant responded that she would be unable to work from home as her back had not yet healed.

{¶ 7} By November 2000, appellant had still not returned to work and was advised by her doctor that she could not begin part-time employment until December 15, 2000. On November 16, 2000, Dr. Turben informed appellant via telephone that she was being terminated from her employment with appellees. Later that day, appellant received a letter from appellees verifying her employment termination. The letter explained that her positions had previously been held open for the estimated four months of rehabilitation. However, appellant's inability to return to work within that period of time and her inability to provide a definite return date required appellees to permanently fill her positions, as a "serious backlog" of work had occurred since her departure.

{¶ 8} On October 12, 2001, appellant filed a complaint with the Lake County Court of Common Pleas, naming appellees as the defendant parties. The complaint prayed for relief in excess of $25,000, based upon appellees' alleged failure to reasonably accommodate appellant's disability and wrongful discharge of appellant in violation of the Americans with Disabilities Act ("ADA"), Ohio Civil Rights Act ("OCRA"), and Ohio public policy. The complaint also prayed for compensatory and punitive damages in excess of $25,000 for intentional infliction of emotional distress.

{¶ 9} Appellees filed individual answers to appellant's complaint, and all parties engaged in discovery. Following discovery, appellees filed a joint motion for summary judgment. The joint motion for summary judgment argued that the ADA and the OCRA were not applicable, as appellees were not "employers" as defined by either the ADA or the OCRA. Appellees further contended that appellant's claim for relief under Ohio public policy failed as she was not disabled and that appellant had failed to present any evidence to support her claim for intentional infliction of emotional distress.

{¶ 10} Appellant filed a brief in opposition to appellees' joint motion for summary judgment that included supporting evidentiary material. The brief in opposition asserted that appellees were her employers and that she was disabled as defined by the ADA and the OCRA.

{¶ 11} After reviewing the parties' submissions, the trial court granted summary judgment in favor of appellees. In doing so, the trial court determined that appellees were not employers subject to the mandates of either the ADA or the OCRA. Furthermore, the court stated that appellant was not disabled and, therefore, her claim under Ohio public policy failed. Finally, the court concluded that appellant failed to present any evidence that would establish a claim for intentional inflection of emotional distress.

{¶ 12} From this judgment, appellant filed a timely notice of appeal and sets forth the following two assignments of error for our consideration:

{¶ 13} "1. The trial court erred in granting summary judgment to Defendant Kirtland Capital on the grounds that Kirtland Capital was not House's employer.

{¶ 14} "2. The trial court erred in determining that House did not have a disability for purposes of her statutory and common law claims for disability discrimination."

{¶ 15} Prior to addressing appellant's assignments of error, we note that she has failed to provide any contentions or argumentation regarding the court's grant of summary judgment with respect to her intentional infliction of emotional distress claim. App.R. 16(A)(7) provides that an appellant shall include in her brief "an argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." See, also, Loc.R. 12(C)(4). This court "may disregard an assignment of error presented for review" if the party raising it fails to comply with the above requirements. App.R. 12(A)(2). Because appellant has failed to set forth any contentions with respect to the court's grant of summary judgment against her claim for intentional infliction of emotional distress, we will forgo any further analysis regarding such claim.

{¶ 16} That being said, we will now set forth the appropriate standard of review. An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come but to 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 construed most strongly in his favor. Civ.R. 56(C); Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 268, 617 N.E.2d 1068.

{¶ 17} Material facts are those facts that might affect the outcome of the suit under the governing law of the case. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, 617 N.E.2d 1123, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. To determine what constitutes a genuine issue, the court must decide whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Turner at 340, 617 N.E.2d 1123.

{¶ 18} The party seeking summary judgment on the ground that the nonmoving party cannot prove its case bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party must be able to point specifically to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claim. Id. at 293, 662 N.E.2d 264.

{¶ 19} If the moving party fails to satisfy this initial burden, summary judgment should be denied. Id. However, if this initial burden is met, the nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise provided in the rule, in an effort to demonstrate that there is a genuine issue of fact suitable for trial. Id.

{¶ 20} We will first examine appellant's second assignment of error as it is dispositive of the matter before us. Appellant's second assignment of error contends that the trial court erred by concluding that appellant did not have a "disability" to establish her claim for disability discrimination. Specifically, appellant asserts that she presented evidence demonstrating a physical impairment that acted to substantially limit one or more major life activities. Thus, appellant concludes that there was a genuine issue of material fact as to whether she had a "disability."

{¶ 21} Both the ADA and OCRA prohibit employers from discriminating against employees who are disabled. Specifically, under the ADA, "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to * * * discharge of employees." Section 12112(a), Title 42, U.S.Code.

{¶ 22} Likewise, pursuant to R.C. 4112.02(A), the OCRA provides that it shall be an unlawful discriminatory practice "for any employer, because of * * * disability * * * to discharge without just cause * * * or...