[Cite as Barreca v. Travco Behavioral Health, Inc., 2014-Ohio-3280.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


KATHLEEN A. BARRECA, MSEd, LPC,                         :              OPINION

                 Plaintiff-Appellant,                   :
                                                                       CASE NO. 2013-T-0116
        - vs -                                          :

TRAVCO BEHAVIORAL HEALTH,                               :
INC., et al.,
                                                        :
                 Defendant-Appellee.


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV
02512.

Judgment: Affirmed.


James R. Wise, P.O. Box 3388, Boardman, OH 44513 (For Plaintiff-Appellant).

James E. Roberts and Robert J. Herberger, Roth, Blair, Roberts, Strasfield & Lodge,
100 East Federal Street, Suite 600, Youngstown, OH 44503 (For Defendant-
Appellee).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from a final order of the Trumbull County Court of Common

Pleas, granting summary judgment in favor of appellee, Travco Behavioral Health, Inc.

Appellant, Kathleen A. Barreca, contends that summary judgment should have been

denied on her disability discrimination claim because there is a factual dispute as to

whether she was terminated as a result of having multiple sclerosis. For the following

reasons, the trial court did not err in holding that appellant failed to present any
evidence establishing that she qualifies as “disabled” under Ohio law or that appellee’s

decision to not hire or terminate her was specifically due to her multiple sclerosis.

        {¶2}    Appellee provides counseling for addiction and mental health problems.

Specifically, appellee hires psychological counselors who are placed with other health

care entities in a two-county region. One such entity is the Trumbull Memorial Hospital,

a facility owned by Youngstown Ohio Hospital Company, LLC. Beginning in 2011,

appellee has had a contract with Trumbull Memorial to provide two counselors for

emergency room crisis intervention screening.

        {¶3}    In late January 2011, appellant submitted a resume to appellee for the

position of “crisis” counselor at Trumbull Memorial. After an initial telephonic interview,

appellant was interviewed at the main corporate office by two of appellee’s employees,

Cindy Kruzel-O’Keefe and Nicki Villela. At the close of the second interview, appellant

was given a list of documents that she had to provide in order to complete her employee

file.1 One of these documents was a physical exam form, which had to be completed by

her primary physician.

        {¶4}    Approximately one month later, appellant submitted her finished physical

exam form to Nicki Villela. In the section requesting a list of appellant’s current health

problems, her submitted form stated: “Multiple Sclerosis / No Limitations.”                              That

appellant had multiple sclerosis was never discussed in her two interviews.

        {¶5}    Appellant was originally diagnosed with multiple sclerosis in 1983. Since

the late 1980’s, she has received monthly payments from the federal government.

However, appellant has not been hospitalized for this condition since 1991.



1. The record indicates that appellee used the term “employee file” in lieu of the term “application.”


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Furthermore, her present diagnosis for the disease is secondary progressive, meaning

that her symptoms are unlikely to become worse in the future.

        {¶6}     Appellant has to deal with many symptoms of multiple sclerosis daily. For

example, at the relevant time, she was taking Ritalin to fight fatigue. Yet, the disease

has not affected her ability to drive or walk. In this regard, her submitted physical exam

form did not state that she has been rendered “disabled” by the disease.

        {¶7}     On March 7, 2011, appellant went to the Trumbull Memorial Hospital and

“shadowed” Nicki Villela throughout her entire shift. A factual dispute exists concerning

whether appellant did this voluntarily, or whether she was instructed by an authorized

employee to report for work at the hospital.2 During the course of the shift, appellant

gave Villela or another employee copies of some of the documents needed to complete

her employee file.

        {¶8}     The following day, Harriet Perantinides, who supervised appellee’s

employees at Trumbull Memorial Hospital, contacted appellant and informed her that

she should not attempt to report to work at the hospital because she had not submitted

all necessary documents to be officially hired.                      Perantinides also indicated that

appellant’s employee file would not be considered complete until she submitted a

mental competency letter from an appropriate physician. Although appellant later tried

to satisfy these requirements, no representative of appellee contacted her and officially

offered her the position at the hospital. As a result, she never executed an employment

contract with appellee.

        {¶9}     After pursuing a claim before the Ohio Civil Rights Commission, appellant



2. The resolution of this particular dispute is irrelevant to the proper disposition of this appeal.


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instituted this action in November 2011.           Initially, she named both appellee and

Youngstown Ohio Hospital Company as defendants, but voluntarily dismissed the latter

company at the close of discovery.        In her amended complaint, appellant asserted

claims for disability discrimination and intentional infliction of emotional distress.

        {¶10} In July 2013, appellee moved for summary judgment on both claims. As

to the disability discrimination claim, appellee primarily argued that appellant could not

establish a prima facie case because multiple sclerosis had not rendered her “disabled”

under R.C. 4112.01(A)(13) and 4112.02(A).            According to appellee, she could not

present any evidence demonstrating that the disease had caused a physical or mental

impairment that substantially limited her ability to perform major life activities. In support

of this argument, appellee noted that appellant’s physical exam form stated that she had

no limitations attributable to her multiple sclerosis.

        {¶11} In responding to the summary judgment motion, appellant did not address

whether she had an actual physical or mental impairment. Instead, she only asserted

that she is disabled because she has multiple sclerosis. Moreover, she did not submit

evidentiary materials indicating that any of her physical capabilities were substantially

impaired.

        {¶12} After appellee filed a reply brief, the trial court issued its decision granting

summary judgment for appellee on both pending claims, primarily holding that

appellant’s multiple sclerosis did not constitute a disability because there was no

evidence that it had substantially limited her ability to perform one or more major life

activities.

        {¶13} On appeal, appellant asserts one assignment of error for review:




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       {¶14} “The trial court erred in granting summary judgment to [appellee].”

       {¶15} In challenging the summary judgment ruling, appellant has not raised any

argument relating to the merits of her claim for intentional infliction of emotional distress.

Instead, her assignment focuses solely upon her disability discrimination claim. It is her

position that summary judgment was not warranted because there were multiple factual

disputes as to key issues pertaining to this claim. However, regarding the question of

whether she has a disability, appellant contends that there was no factual dispute; i.e.,

she argues that she is disabled because: (1) she has multiple sclerosis; and (2) various

symptoms of the disease affect her on a daily basis.

       {¶16} Appellant’s disability discrimination claim was brought under R.C. Chapter

4112, the Ohio Civil Rights Act. R.C. 4112.02 provides, in pertinent part:

       {¶17} “It shall be an unlawful discrimination practice:

       {¶18} “(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.”

       {¶19} “R.C. 4112.02 sets out Ohio’s clear public policy in opposition to the

wrongful discharge of an employee based upon an employer’s discrimination against

such employee’s physical or mental disability.” House v. Kirtland Capital Partners, 158

Ohio App.3d 68, 2004-Ohio-3688, ¶22 (11th Dist.). The Ohio statutory scheme relating

to unlawful discrimination was modeled after the federal Americans with Disabilities Act;

therefore, federal case law and regulations can be cited as authority in interpreting R.C.

4112.02. Kredel v. Austinwoods, 7th Dist. Mahoning No. 08 MA 19, 2008-Ohio-5140,




                                              5
¶8.

       {¶20} “To establish a prima facie case of disability discrimination, the person

seeking relief must demonstrate (1) that he or she was disabled, (2) that an adverse

employment action was taken by an employer, at least in part, because the individual

was disabled, and (3) that the person, though disabled, can safely and substantially

perform the essential function of the job in question. Hazlett v. Martin Chevrolet, Inc.

(1986), 25 Ohio St.3d 279, 281, * * *.” Hammercheck v. Coldwell Banker First Place

Real Estate, 11th Dist. Trumbull No. 2007-T-0024, 2007-Ohio-7127, ¶22. These three

elements are essentially identical to the requirements for proving a federal prima facie

claim for disability discrimination. House, 2004-Ohio-3688, at ¶23, quoting Monette v.

Electronic Data Systems Corp., 90 F.3d 1173, 1178 (C.A.6, 1996).

      {¶21} As noted above, in moving for summary judgment on appellant’s disability

discrimination claim, appellee focused upon the first element; i.e., is appellant disabled

as a consequence of having multiple sclerosis? R.C. 4112.01(A)(13) defines “disability”

as “a physical or mental impairment that substantially limits one or more major life

activities, including the function of caring for one’s self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working; * * *. Based upon

this statutory definition, a person will only be deemed “disabled” when she has a mental

or physical impairment that substantially limits at least one major life activity. Kredel,

2008-Ohio-5140, at ¶12.

      {¶22} Pursuant to R.C. 4112.01(A)(16)(a)(iii), the disease “multiple sclerosis” is

considered a “physical or mental impairment” for purposes of the statutory definition of

“disability.” Nevertheless, the fact that a person has an “impairment” is not sufficient to




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satisfy the entire statutory definition. In addition to being impaired, a person will only be

considered “disabled” if the impairment substantially limits her ability to perform one or

more major life activity.

       {¶23} In Fitzmaurice v. Great Lakes Computer Corp., 155 Ohio App.3d 724,

2004-Ohio-235 (8th Dist.), the plaintiff argued that, since multiple sclerosis was listed as

a physical impairment under R.C. 4112.01(A)(16)(a)(iii), she was disabled for purposes

of her disability discrimination claim. In rejecting this argument, the Eighth Appellate

District noted:

       {¶24} “‘A physical impairment, standing alone, does not necessarily constitute a

disability (* * *),’ Kirkendall v. United Parcel Service, Inc. (W.D.N.Y.1997), 964 F.Supp.

106, 109.     In fact, ‘a physical impairment “may affect an individual’s life without

becoming disabling.”’ Id., citing Hazeldine v. Beverage Media, Ltd. (S.D.N.Y.1997), 954

F.Supp. 697. To be disabled under the statute, [the plaintiff] must demonstrate that her

impairment ‘substantially limits’ one or more of her major life activities.             R.C.

4112.01(A)(13); Wiegerig v. Timkin (2001), 144 Ohio App.3d 664, 671, * * *.” Id. at ¶12.

       {¶25} In moving for summary judgment on the “disability” issue, appellee relied

primarily upon appellant’s deposition testimony.        During the deposition, appellant

acknowledged that her physical exam form, as completed by her physician, stated that

she did not have any “limitations” due to her multiple sclerosis. Moreover, she admitted

that multiple sclerosis has no substantial affect upon her ability to walk, see, or drive a

motor vehicle.

       {¶26} In responding to appellee’s motion, appellant did not address whether her

multiple sclerosis substantially limits one or more major activities. Similarly, she failed




                                             7
to present any conflicting evidence on the point. Instead, appellant only argued that,

because she has multiple sclerosis, she is disabled.

       {¶27} Given the statement on appellant’s own physical exam form that she had

no limitations stemming from her multiple sclerosis, the trial court justifiably concluded

that appellee presented some evidence showing that the disease had not substantially

affected her ability to perform any of life’s major activities. Under such circumstances,

appellant was obligated to submit conflicting evidentiary materials on the point. When

she failed to do so, the lack of a factual dispute meant that appellee could not satisfy the

statutory definition for a “disability” under R.C. 4112.02(A)(13); i.e., since appellant can

still perform all major activities despite having multiple sclerosis, she is not disabled. In

turn, because appellant cannot fulfill the first element for a prima facie claim of disability

discrimination, appellee was entitled to prevail on that claim.

       {¶28} In contending that summary judgment was not warranted, appellant places

significant emphasis upon the point that there was a factual dispute as to whether she

was actually hired and worked one day as a hospital crisis counselor. However, given

that a finding of unlawful discrimination under R.C. 4112.02(A) can be predicated upon

an improper refusal to hire or an improper termination of employment, the resolution of

this issue is not dispositive and need not be decided. Second, in light of the resolution

of the “disability” issue, all other genuine issues of fact are immaterial.

       {¶29} As a separate basis for its judgment, the trial court concluded that, even if

appellant could qualify as a “disabled” person, there was no evidence establishing that

appellee’s decision to not hire or terminate her was based upon the fact that she has

multiple sclerosis. The record also supports this aspect of the trial court’s ruling. In its




                                              8
summary judgment motion, appellee presented some evidentiary materials tending to

show that appellant was not offered an employment contract because she failed to

submit all required documents to complete her application/employee file. In responding

to the motion, appellant only asserted that the question of why she was not hired must

be given to a jury for determination; she did not cite any evidentiary materials, either

attached to her response or otherwise in the record, tending to prove that appellee

chose not to hire her on account of her multiple sclerosis.

      {¶30} Pursuant to Civ.R. 56(C), the granting of summary judgment is appropriate

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.” House 2004-Ohio-3688, at ¶16. Given the absence of any

evidentiary materials indicating that appellant is disabled as a consequence of having

multiple sclerosis, summary judgment was proper.

      {¶31} Appellant’s sole assignment of error lacks merit. It is the judgment and

order of this court that the judgment of the Trumbull County Court of Common Pleas is

affirmed.


TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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