[Cite as Wagner v. Community Regional Med. Ctr. of Ohio, 194 Ohio App.3d 589, 2011-Ohio-2991.]




STATE OF OHIO                   )                       IN THE COURT OF APPEALS
                                )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )



WAGNER,                                                       Appellees
                                                        C.A. No. 10CA009815
        Appellant,

        v.
                                                        APPEAL FROM JUDGMENT
REGIONAL MEDICAL CENTER OF                              ENTERED IN THE
OHIO et al.,                                            COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellees.                                      CASE No.   09CV162956



                               DECISION AND JOURNAL ENTRY


Matthew G. Bruce, for appellant.

Thomas J. Wiencek, for appellees.

Dated: June 20, 2011



        WHITMORE, Judge.

        {¶1}    Plaintiff-appellant, Debra Wagner, appeals from the judgment of the Lorain

County Court of Common Pleas, granting summary judgment in favor of defendants-appellees,

Community Regional Medical Center (“Community Regional”) and Allen Community Hospital

(“Allen Community”) (collectively, “defendants”). This court affirms.

                                                    I

        {¶2}    Wagner worked at Allen Community as a critical-care agency nurse, a temporary

position, for approximately ten months before she decided to apply for a full-time position with
                                                2


Community Regional, Allen Community’s owner.             Wagner indicated on her employment

application that she was not currently taking any medications. In fact, Wagner was taking

prescription methadone as part of a treatment program for her chemical dependency. According

to Wagner, she told several individuals at Allen Community about her drug addiction during the

interview process, but did not disclose her methadone use on her application. Wagner also

falsely completed the section of her employment application that inquired about any prior

convictions. Specifically, she indicated that she did not have any prior convictions when, in fact,

she did.

       {¶3}    Community Regional extended Wagner an offer of employment, and Wagner

began working there as an intensive-care nurse on August 27, 2008. As a condition of her

employment, Wagner completed a drug screen. Community Regional did not receive the results

of the screen for a longer period of time than usual, a situation that generally arises when a

screen returns a positive result, and a medical review officer has to verify any prescriptions.

When Community Regional asked Wagner about the delay, Wagner disclosed that she was

taking prescription medication.    After her September 10, 2008 shift, Community Regional

terminated Wagner because she had been untruthful on her employment application.

       {¶4}    On July 8, 2009, Wagner brought suit against defendants for wrongful

termination, intentional infliction of emotional distress, and breach of confidentiality. On March

12, 2010, defendants filed a motion for summary judgment. Wagner filed a memorandum in

opposition, and defendants filed a reply. On April 16, 2010, the trial court granted summary

judgment in defendants’ favor.

       {¶5}    Wagner now appeals from the trial court’s judgment and raises one assignment of

error for our review.
                                                3


                                                II

                                      Assignment of Error

               Summary judgment was improper in this case, as there remains a genuine
         issue of material fact as to the reason for appellant’s termination[.]

       {¶6}     In her sole assignment of error, Wagner argues that the trial court erred by

granting summary judgment in favor of defendants. Specifically, she argues that a genuine issue

of material fact remains as to whether she was wrongfully terminated due to disability

discrimination. We disagree.

       {¶7}     This court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court,

viewing the facts of the case in the light most favorable to the nonmoving party and resolving

any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio

App.3d 7, 12.

       {¶8}     Pursuant to Civ.R. 56(C), summary judgment is proper if “(1) [n]o genuine issue

as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the party against whom the

motion for summary judgment is made, that conclusion is adverse to that party.” Temple v.

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for the motion and pointing to

parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt

(1996), 75 Ohio St.3d 280, 292-293. Specifically, the moving party must support the motion by

pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once this burden

is satisfied, the nonmoving party bears the burden of offering specific facts to show a genuine
                                                    4


issue for trial. Id. at 293. The nonmoving party may not rest upon the mere allegations and

denials in the pleadings but instead must point to or submit some evidentiary material that

demonstrates a genuine dispute over a material fact. Henkle v. Henkle (1991), 75 Ohio App.3d

732, 735.

        {¶9}       This court previously has stated the following:

                 One who claims employment discrimination on the basis of disability in
        violation of R.C. 4112.02(A) must show (1) that the plaintiff meets the definition
        of a disabled person under R.C. 4112.01(A)(13); (2) that the plaintiff can safely
        and substantially perform the essential functions of the job; and (3) that the
        discriminatory action was taken at least in part because of the plaintiff’s
        disability. * * * When a prima facie showing of disability discrimination or
        retaliation is made, the burden shifts to the employer to show a nondiscriminatory
        reason for the action. If the employer makes this showing, the burden shifts back
        to the employee to show that the nondiscriminatory reason was a mere pretext.

(Citations omitted.) Proctor v. Ohio Civ. Rights Comm., 9th Dist. No. 23198, 2006-
Ohio-6007, at ¶ 9.

Here, the trial court granted summary judgment in defendants’ favor because Wagner failed to

establish a prima facie showing of disability. Specifically, it determined that Wagner did not

show that defendants took “discriminatory action [against her] at least in part because of [her]

disability.” Id.

        {¶10} Initially, we note that both parties relied upon non-Civ.R. 56(C) materials in their

summary-judgment filings. See Civ.R. 56(C) (providing an exhaustive list of materials upon

which a party may rely in moving for or opposing an award of summary judgment). Neither

party objected to the introduction of this evidence. Accordingly, the trial court had the discretion

to consider all the evidence that the parties submitted in their filings. Wolford v. Sanchez, 9th

Dist. No. 05CA008674, 2005-Ohio-6992, at ¶ 20, quoting Christe v. GMS Mgt. Co., Inc. (1997),

124 Ohio App.3d 84, 90 (“[I]f the opposing party fails to object to improperly introduced
                                               5


evidentiary materials, the trial court may, in its sound discretion, consider those materials in

ruling on the summary judgment motion”).

       {¶11} In support of their motion for summary judgment, defendants primarily relied

upon (1) Wagner’s employment application, which included a medical history form and (2)

Wagner’s deposition. Wagner had checked the box marked “Yes” on the portion of the medical

history form asking: “Have you ever been treated for alcoholism or a drug habit?” In the space

asking her to list any medication she was currently taking, however, Wagner indicated that she

was not taking any medications. Wagner signed the bottom of the form, which contained the

following certification: “I certify that the above statements are true and correctly recorded[.]”

Wagner admitted in her deposition that she did not truthfully complete the medical-history

portion of her employment application.

       {¶12} Wagner testified in her deposition that defendants told her that the reason for her

termination was that she had falsified her medical history. Further, Wagner was unable to point

to any facts to demonstrate that defendants had actually fired her based on her disability. The

relevant portion of Wagner’s deposition reads as follows:

              Q. * * * So what facts do you have to establish any part of the hospital’s
              decision to terminate you was based on your alleged disability for
              chemical dependency?

              A. What else did they fire me for? They fired me over not disclosing to
              [Human Resources] the medication that I was on.

              Q. That’s correct?

              A. Right.

              Q. But do you have any facts other than that to demonstrate your
              termination was due in part to your disability?

              A. No. All I have is being terminated for not disclosing my medication.
                                                6


               Q. Okay. And did anyone from the hospital specifically tell you you were
               being terminated because of your disability or methadone use?

               A. No.

               Q. So did anyone from the hospital say anything to you that led you to
               believe the hospital was firing you because of your disability or
               methadone use?

               A. No. * * *

                ***

               Q. Do you have any facts to establish the hospital’s reason for terminating
               you for falsification of your medical history was not the real reason for
               your termination?

               A. No, that’s what they said.        They said I was terminated for not
               disclosing that medication.

Accordingly, Wagner admitted that she could not point to any evidence that defendants had

terminated her for any reason other than the reason they gave: that she had falsified her medical

history. The preemployment statement that Wagner signed as part of her application form also

contained the following certification:

               I certify that all information I have provided on this application * * * is
       true, accurate, and complete to the best of my knowledge and belief. I understand
       that falsification, misrepresentation, or omission of any information on my
       application * * * will be justification for withdrawing any offer of employment or,
       if employed, termination from employment, regardless of when the falsification,
       misrepresentation or omission is discovered[.]

Thus, Wagner was on notice that any falsification, misrepresentation, or omission on her part

was a terminable offense.

       {¶13} In her memorandum in opposition to summary judgment, Wagner relied upon her

own affidavit and a series of e-mails between an employee health manager and the director of in-

patient nursing at Allen Community. In the e-mail exchange dated September 5, 2008, the

employee health manager wrote the following:
                                                 7


                       I discovered [Wagner’s] drug screen was not back from 8-22-08
               yet. I knew based on * * * my experience in post offer physicals that this
               indicated the drug screen was being medically reviewed (MRO), which
               also meant that she was taking a drug of some kind.

                        In MRO of a [drug screen] the reviewing physician determine[s]
               whether the drug found on the [drug screen] is legally prescribed or not. If
               it is then the drug screen is reported out as a negative. Which hers has
               been.

                       The issue with this individual is that on the medical history she
               filled out post offer in this office she indicated she was taking no
               medications and signed her name to the statement[:] “I certify that the
               above statements are true and correctly recorded[.]”

                     Now due to the MRO of the [drug screen] we know that she was
               on medication at the time of the physical. Therefore she falsified her
               medical history form.

The employee health manager further wrote: “It is [Human Resources’] recommendation that we

proceed with termination based on the fact that she falsified the medical history.”

       {¶14} Wagner relies upon the e-mails from the employee health manager to argue that

“[o]nce [Defendants] discovered that [she] was using methadone, [she] was terminated.” The e-

mails, however, do not support that assertion. Wagner’s termination was not based on the type

of prescription medication she was taking. Rather, it was based on Wagner’s false, sworn

statement that she was not taking any prescription medication. Wagner admitted that she had

falsified the medical history portion of her employment application and that no one had

authorized her to record the false response that she did. She testified in her deposition that she

had evaded questions about her disability and criminal history on applications because “if [she]

could get to just interview with somebody, [she] thought [she] could explain [herself] and maybe

get hired.”

       {¶15} Based on the foregoing, we cannot conclude that the trial court erred by finding

that defendants were entitled to summary judgment. Wagner failed to establish a prima facie
                                                  8


case of disability discrimination. See Proctor, 169 Ohio App.3d 527, 2006-Ohio-6007, at ¶ 9

(requiring plaintiff to establish that discriminatory action was taken at least in part because of the

plaintiff's disability). See also Aloi v. Ravenna Aluminum Indus. (May 23, 1997), 11th Dist. No.

96-P-0205, at *3-5 (concluding that plaintiff failed to prove discrimination where employer had

terminated plaintiff for falsifying a portion of his employment application). The record supports

the conclusion that defendants terminated Wagner because she had falsified her medical history.

Wagner’s own exhibit indicates that defendants eventually received a negative drug-screen result

for Wagner. Wagner fails to point to any evidence that defendants knew her prescription was for

methadone, the link to her chemical-dependency disability. See R.C. 4112.01(A)(16)(a)(iii)

(including drug addiction as a mental impairment for purposes of disability).             Defendants

terminated Wagner because she “was taking a drug of some kind,” a fact that she falsified on her

medical history form before signing a sworn statement that her answers were true. Wagner has

not pointed to any evidence that she was terminated, at least in part, based on her disability.

Even viewing the evidence in a light most favorable to Wagner, see Temple, 50 Ohio St.2d at

327, her argument that the trial court erred by awarding defendants summary judgment on her

wrongful-termination claim lacks merit. Wagner’s sole assignment of error is overruled.

                                                 III

       {¶16} Wagner’s sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




MOORE, J., concurs.
                                                9


BELFANCE, P. J., dissents.


BELFANCE P.J., dissenting.

       {¶17} I respectfully dissent. Because I believe that there is a genuine issue of fact

regarding whether the reason that Community Regional Medical Center (“CRMC”) offered for

Debra Wagner’s discharge was a pretext for disability discrimination, the trial court erred by

granting CRMC’s motion for summary judgment.

       {¶18} As an initial matter, it appears that although CRMC argued, in part, that Wagner

did not demonstrate an issue of fact with respect to whether its decision was a pretext for

discrimination, the trial court analyzed this case solely under a “direct evidence” framework.

The ultimate issue in cases alleging employment discrimination under R.C. Chapter 4112 is

whether the adverse employment action was motivated, at least in part, by discriminatory intent.

See Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569, 571. See also Cooke v.

SGS Tool Co. (Apr. 26, 2000), 9th Dist. No. 19675, at *2-3 (emphasizing that the ultimate

question under R.C. 4112.02 is whether the employment action was “because of” membership in

a protected class). While an employee can prove discrimination by using direct evidence, it can

also be proved indirectly. See generally Texas Dept. of Community Affairs v. Burdine (1981),

450 U.S. 248, 256; Mauzy v. Kelly Servs. Inc. (1996), 75 Ohio St.3d 578, 583. In McDonnell

Douglas Corp. v. Green (1973), 411 U.S. 792, the United States Supreme Court described the

indirect method of proving discrimination under Title VII of the Civil Rights Act of 1964. The

court later summarized its holding in general terms applicable to other forms of discrimination:

              First, the plaintiff has the burden of proving by the preponderance of the
       evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in
       proving the prima facie case, the burden shifts to the defendant “to articulate some
       legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should
       the defendant carry this burden, the plaintiff must then have an opportunity to
                                                10


       prove by a preponderance of the evidence that the legitimate reasons offered by
       the defendant were not its true reasons, but were a pretext for discrimination.

(Citation omitted.) Burdine, 450 U.S. at 252-253, quoting McDonnell Douglas Corp.,

411 U.S. at 802. Given the varying forms of discrimination, the articulation of the prima

facie elements under the McDonnell Douglas paradigm varies. See, e.g., O’Connor v.

Consol. Coin Caterers Corp. (1996), 517 U.S. 308, 311-312, quoting Burdine, 450 U.S.

at 254 (“[T]here must be at least a logical connection between each element of the prima

facie case and the illegal discrimination for which it establishes a ‘legally mandatory,

rebuttable presumption’ ”).       The McDonnell Douglas paradigm for analyzing

discrimination claims has since been applied to cases in which disability discrimination is

alleged. Raytheon Co. v. Hernandez (2003), 540 U.S. 44. Federal caselaw may be

employed in interpreting R.C. Chapter 4112 to the extent that the employment-

discrimination statutes at issue are consistent. Genaro v. Cent. Transport, Inc. (1999), 84

Ohio St.3d 293, 297-298.


       {¶19} The Ohio Supreme Court has not specifically articulated the McDonnell Douglas

prima facie case in the context of disability discrimination. In Hood v. Diamond Prods., Inc.

(1996), 74 Ohio St.3d 298, 301-302, for example, the Ohio Supreme Court referred to the

McDonnell Douglas framework with respect to disability discrimination under R.C. 4112.02, but

did so in a limited context that did not entail an inquiry into indirect evidence of discriminatory

animus. In fact, the issue before the court in Hood was a narrow one: whether cancer could be

considered a “handicap” for purposes of R.C. 4112.02, and if so, what quality of proof would be

necessary to establish it. See id. at 302 (“The case we now have before us concerns only whether

appellant was ‘handicapped’ – the first element of a prima facie case of handicap
                                                 11


discrimination”).   Consequently, although the Supreme Court implicitly acknowledged that

McDonnell Douglas could be used by Ohio courts, the issue of how the prima facie case should

be articulated was not squarely before the court.

       {¶20} In that context, the court noted that part of a plaintiff’s initial burden under cases

applying McDonnell Douglas is demonstrating that the employer’s action was motivated, at least

in part, by disability. See Hood, 74 Ohio St.3d at 302, citing Hazlett v. Martin Chevrolet, Inc.

(1986), 25 Ohio St.3d 279, 281. In Hazlett, however, the court did not address McDonnell

Douglas and did not articulate any test for indirectly proving discriminatory animus. Instead, the

issue before the court was whether an individual who was chemically dependent qualified as

disabled under R.C. 4112.02. Hazlett, 25 Ohio St.3d at 279-280. In considering the issue, the

court emphasized that a chemically dependent individual must be able to perform the essential

functions of the job. See id. at 281. The court then articulated the prima facie case required to

establish ultimate proof of a claim under the statute: the plaintiff must prove that he or she was

handicapped; that the plaintiff could “safely and substantially perform the essential function[s] of

the job[;]” and that the employer acted, at least in part, because the plaintiff was disabled. Id.

       {¶21} If the plaintiff’s initial burden of production under the McDonnell Douglas

paradigm is articulated in this way, however, it is coextensive with proof of the claim itself. In

other words, it “more aptly describes what is required to win a judgment, not to make out a

prima facie case under the McDonnell Douglas framework.” Whitfield v. Tennessee (C.A.6,

2011), 639 F.3d 253, 261, fn. 3. See also id. at 262-265 (Stranch, J., concurring) (commenting

on the use of an analogous formulation of the prima facie case under the Rehabilitation Act of
                                                12


1973 in the McDonnell Douglas framework).1            Indeed, to apply the Hazlett and Hood

formulation of the prima facie case “makes little sense, as its third element—whether the

employee was, in fact, discharged because of the disability—requires at the prima facie stage

what the McDonnell Douglas burden-shifting framework seeks to uncover only through two

additional burden shifts, thereby rendering that framework wholly unnecessary.” See Whitfield,

639 F.3d at 259.

       {¶22} This district and other appellate districts have relied on Hood in determining how

the prima facie case under the McDonnell Douglas framework should be articulated. See, e.g.,

Proctor v. Ohio Civ. Rights. Comm., 169 Ohio App.3d 527, 2006-Ohio-6007, at ¶ 9; Tibbs v.

Ernst Ents, Inc., 2d Dist. No. 22850, 2009-Ohio-3042, at ¶ 22; Foster v. Jackson Cty.

Broadcasting, Inc., 4th Dist. No. 07CA4, 2008-Ohio-70, at ¶ 14; Sicklesmith v. Chester Hoist,

169 Ohio App.3d 470, 2006-Ohio-6137, at ¶ 97. Because application of McDonnell Douglas

under Ohio law was not considered by the Supreme Court in Hazlett and was not squarely before

the court in Hood, however, it is appropriate to look to how other courts have articulated the

prima facie case. I believe the better articulation of the prima facie case under McDonnell

Douglas in the context of disability discrimination is that described in Monette v. Electronic

Data Sys. Corp. (1996), 90 F.3d 1173, 1186:

              [T]he plaintiff may establish a prima facie case of discrimination by
       showing that: 1) he or she is disabled; 2) otherwise qualified for the position, with
       or without reasonable accommodation; 3) suffered an adverse employment
       decision; 4) the employer knew or had reason to know of the plaintiff’s disability;


1
 Unlike Ohio courts, the United States Sixth Circuit Court of Appeals has required plaintiffs to
prove that disability discrimination was the only motivation for the employment action at issue.
See generally Monette v. Electronic Data Sys. Corp. (C.A.6, 1996), 90 F.3d 1173, 1178. The
Sixth Circuit recently took this issue under consideration en banc in Lewis v. Humboldt
Acquisition Corp., Inc., Case No. 09-6381. The Sixth Circuit’s articulation of the prima facie
case for purposes of McDonnell Douglas is not affected by this discrepancy.
                                                13


       and 5) the position remained open while the employer sought other applicants or
       the disabled individual was replaced.

See also Whitfield, 639 F.3d at 259 (“Monette states the proper test”).

       {¶23} This is not just a theoretical distinction: the substantive elements of a plaintiff’s

claim frame our analysis under Civ.R. 56. “A disputed fact is material if it is an essential

element of the claim as determined by the applicable substantive law – one which might affect

the outcome of the litigation.” Wochna v. Mancino, 9th Dist. No. 07CA0059-M, 2008-Ohio-996,

at ¶ 9, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. This case illustrates the

problem. Instead of analyzing Wagner’s disability-discrimination claim through the McDonnell

Douglas framework, the trial court entered judgment for CRMC based on its conclusion that

Wagner had not established a prima facie case under Hazlett – in effect, requiring Wagner to

prove the ultimate issue in the case through direct evidence of discrimination or not at all. As

explained above, however, it is well established that discriminatory intent may be established

either by direct evidence or indirectly, using the McDonnell Douglas framework. Byrnes v. LCI

Communication Holdings Co. (1996), 77 Ohio St.3d 125, 128.

       {¶24} Analyzing this case under the McDonnell Douglas framework leads to a different

result. It appears that the parties would not dispute that Wagner has established the prima facie

case articulated in Monette: she is recovering from chemical dependency, demonstrated her

qualification for the position by performing the same job duties through a staffing agency, and

was terminated after being hired directly by CRMC, and CRMC had reason to know of her

disability by virtue of her conversations with supervisory employees and her disclosure of her

methadone use to the testing entity operated by CRMC. In its motion for summary judgment,

CRMC articulated a legitimate, nondiscriminatory reason for terminating Wagner’s employment:

dishonest statements in connection with her application for employment. It did so with reference
                                                  14


to evidence that is contemplated by Civ.R. 56(C), namely, Wagner’s own deposition testimony.

Consequently, CRMC met both its evidentiary burden under Civ.R. 56(C) and its substantive

burden of production under McDonnell Douglas. See generally St. Mary’s Honor Ctr. v. Hicks

(1993), 509 U.S. 502, 506-511, quoting Burdine, 450 U.S. at 254 (describing the defendant’s

burden under McDonnell Douglas to “produc[e] an explanation to rebut the prima facie case” but

noting that the defendant does not have the burden of proving “ ‘that it was actually motivated by

the proffered reasons’ ”). At this point in the analysis under McDonnell Douglas, the burden of

production shifts to Wagner to point to evidence indicating that the nondiscriminatory reason

articulated by CRMC is a pretext for disability discrimination. When the evidence before the

court with respect to the motion for summary judgment is viewed in the light most favorable to

Wagner, as it must be, there is at least a genuine issue of material fact on this point.

       {¶25} Wagner originally began working as a nurse at Allen Community Hospital

(“ACH”) through an agency. For approximately ten months before she was directly hired,

Wagner worked in the ACH intensive-care unit caring for critical-care patients. One of her

supervisors, Suzanne Green, asked Wagner why she didn’t apply to be directly hired for the

position, noting that Wagner needed the benefits. Wagner explained to Green that she “ha[d] a

past” and that she was in recovery. Green stated that she would run it by Eileen Boozer, the

nursing supervisor. Wagner made a similar disclosure to Dorrie Adams, another supervisor.

       {¶26} Green told Wagner that Eileen Boozer had said to come in and fill out an

application. Wagner then spoke to Boozer, telling her that she was in recovery and still involved

in a treatment program. She also told Boozer that she was still seeing a counselor and doing

monitored drug screens. Boozer stated that she would speak to Community Health Partners and

her boss, Brian Yorko.
                                                 15


       {¶27} Wagner interviewed for a position with Yorko. When Yorko initially asked

Wagner to tell him a few things about herself, Wagner said, “[W]e might as well address the

elephant in the room first. I have a drug addiction problem that I have been treated for, am being

treated for.” During the interview, Wagner told Yorko that she had been working at ACH for a

long time and she that wanted to go on staff, but she was afraid to try for the job because she

knew her history and chemical dependency would have to be revealed. She was also afraid that

if ACH didn’t want to hire her, she would be prohibited from working at ACH through an

agency. She also disclosed her criminal history to Yorko during her employment interview.

       {¶28} CRMC operates ACH. CRMC Human Resources (“HR”) Department called

Wagner to offer her the position, and Yorko sent Wagner a letter of employment. After being

hired, Wagner was required to take a drug test. She filled out a medical-history form and did not

indicate that she was taking any medication because she had been told that she was not required

to publicly disclose her methadone prescription. When she went to Occupational Health, a

division of CRMC, she took her methadone prescription with her and disclosed it to the doctor

and the nurse that performed the drug screen. She told them, “I’m not trying to get over on

anybody.    I’m not trying to be dishonest.       It’s a medication I don’t have to disclose to

everybody.”

       {¶29} Wagner stated that she had been told by her treatment facility that she did not

have to disclose to HR what medication she was taking; rather, her understanding was that she

was required to disclose it to Occupational Health, the testing entity. Although she offered the

prescription at the point of testing, Wagner stated that they did not take the prescription. Instead,

she was told that the “medical review officer [MRO] will get a hold of [her] when they get [her]

urine and [she’ll] verify the prescription with the MRO.”
                                                16


       {¶30} After the test, and approximately three to four days prior to Wagner’s termination,

Eileen Boozer called Wagner to her office. Boozer told Wagner that she got off the phone with

HR and that HR was waiting for the paperwork to come back from Occupational Health so that it

could close up her file. Boozer asked Wagner whether she knew why Occupational Health had

not reported back on the screen. Wagner indicated that Boozer had told her, “HR said that you

wrote down that you weren’t on a medication, and your drug screen is being held up because it

hasn’t been---medication hasn’t been verified, your prescription hasn’t been verified yet. HR

said that, you know, you said you’re not on medicine and you are on medicine, what is the deal

with that.”

       {¶31} Wagner told Boozer that she had taken her prescription with her to the drug

screen and disclosed it to the nurse and doctor there, but that she had been told that the MRO

would contact her to verify the prescription. She also explained that she had signed a consent

form for her treatment facility to verify the prescription. She explained to Boozer that she did

not list the medication on the medical history form because she believed it was a medication she

was not required to list. She further told Boozer, “It was disclosed to the people it had to be

disclosed to, and that was the physician and his staff and occupational health; the nurse that took

my drug screen and the MRO.”

       {¶32} E-mail correspondence dated September 4, 2008, indicates that the test results

were known to HR and that the results were negative because the prescription had been verified

by the MRO. On this day, Marsha Heuring, employee health manager, e-mailed Jennifer Angle,

the manager of employment. In the e-mail, Heuring indicated that Wagner had called HR asking

why a doctor wanted to talk to her. Heuring stated that she saw that the drug screen was not
                                                  17


back, that the delay meant the test was being medically reviewed, and that medical review meant

that Wagner was taking a drug of some kind.

          {¶33} Heuring indicated that the screen had come back negative. Heuring had stated,

“Now due to the [medical review] of the [drug screen] we know she was on medication at the

time of the physical. Therefore she falsified her medical history form.” Several days later, on

September 9, 2008, Angle e-mailed Boozer at 1:10 p.m. In that e-mail, Angle stated:

                  It is HR’s recommendation that we proceed with termination based on the
          fact that she falsified the medical history. Additionally, there has been a pattern
          of dishonesty and concerns with rude behaviors when she has contacted
          occupational health. If we are all in agreement, HR will proceed with the
          termination. Please advise.

Yorko and Heuring were copied on this e-mail. At 1:52 p.m., Boozer responded to Angle. She

stated:

                  Sorry I sent the other email before I saw this. Deb tells     me she told
          occupational health and offered the prescription at the time of the   drug screen,
          which they stated wasn’t needed, are we sure she didn’t do             this? The
          conversation with HR over the application, occurred after these       2 incidents,
          correct?

Wagner was terminated by HR. She had a conversation with a person whom she could not

identify by name. As she was speaking to this person, Wagner understood that the person was

aware that she was taking methadone. At her deposition, she stated that the person who

terminated her said, “[T]he [nursing] board knows you take it, right?” Wagner stated that

because the HR person made reference to the nursing board’s being aware of her taking this

medication, she knew that HR was aware that it was methadone. She explained that although the

HR person “didn’t come right out and say, you know, the drug name, but it was a treatment drug,

she knew it, I knew it, and for her to say that the board knows you’re on it, then what is the

problem, I know it had to do with the medication I was on.”
                                                 18


       {¶34} The trial court and the majority opinion take the position that Wagner’s deposition

testimony is tantamount to an admission that she loses. Specifically, they point to Wagner’s

repeated statements that she was told she was being terminated for lying on her application. I do

not find this persuasive for several reasons. First and foremost, as argued above, the lack of

direct evidence of discrimination does not end this court’s inquiry. At most, Wagner stated that

she did not have direct evidence of discriminatory animus, a fact that is unremarkable in many

cases of discrimination. In addition, Wagner’s statement as to why her employer terminated her

merely articulates what her employer told her. It does not mean that what her employer told her

is true. The effect of articulating a legitimate nondiscriminatory reason is not judgment for the

employer. It merely ends the presumptive effect of the plaintiff’s prima facie case. See St.

Mary’s Honor Ctr., 509 U.S. at 506-511. Pretext is a material issue for purposes of summary

judgment, and to the extent that CRMC points to her statements to demonstrate that there is no

genuine issue of material fact regarding pretext, I must disagree. Viewing Wagner’s statements

in the light most favorable to her, it is apparent that their use in this manner divorces them from

their context within her deposition testimony. It is clear that in response to the repeated question

about whether she had evidence about why she was terminated that she responded with the

reason that she was given by her employer. It is also clear that she did not believe it.

       {¶35} In light of this, I believe that viewing the evidence in the light most favorable to

Wagner leads to the conclusion that there is a genuine issue of material fact with respect to

whether CRMC’s articulated reason for firing her is pretext because it demonstrates that she was

open and honest about her recovery from chemical dependency and disclosed her medication at

her post-hire drug test. Further, there is no indication that those managers to whom she initially

disclosed her chemical dependency provided this information to the human resources staff. In
                                                 19


other words, there is no evidence that at the time Wagner was hired, HR knew about her

chemical dependency. Thus, even if CRMC decided to terminate Wagner in part due to her

failure to disclose her medication on the form or to properly fill out her employment application,

there is a dispute of fact as to whether CRMC nonetheless terminated Wagner in part due to her

chemical dependency. Again viewing the evidence in the light most favorable to Wagner, the

proximity of HR’s discovery of this fact to her termination under circumstances where she was

open and truthful about her methadone use to her superiors and at the time of the drug test

indicates that there is an issue of material fact regarding whether it was a motivating factor in her

termination.

       {¶36} Wagner met her evidentiary burden under Civ.R. 56 of demonstrating that there is

a genuine issue of material fact regarding whether the nondiscriminatory reason proffered for her

discharge was pretext. The trial court, therefore, erred by entering summary judgment in favor

of CRMC, and I would reverse on that basis.

       {¶37} I respectfully dissent.
