[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 106548




                                    SONIA THOMAS
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                    PNC BANK, N.A.
                                                        DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-16-872063

        BEFORE: Stewart, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: September 27, 2018
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
ATTORNEYS FOR APPELLANT

Brian D. Spitz
Fred M. Bean
Spitz Law Firm
25200 Chagrin Boulevard, Suite 200
Beachwood, OH 44122


ATTORNEYS FOR APPELLEE

Alexander R. Frondorf
Littler Mendelson P.C.
1100 Superior Avenue, 20th Floor
Cleveland, OH 44114

Caroline Turcotte
Gary Lieberman
Locke Lord L.L.P.
One International Place, Suite 2700
Boston, MA 02110
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
MELODY J. STEWART, P.J.:

        {¶1} When plaintiff-appellant Sonia Thomas broke both of her hands, her

employer, defendant-appellee PNC Bank, N.A., placed her on short-term disability leave.

During the disability-leave period, PNC discovered that Thomas had committed several

policy and procedure violations that predated her injury. When Thomas returned to

work, she was immediately put on paid administrative leave pending investigation into

the work violations.          She was discharged one week later while still on paid

administrative leave.      Thomas brought this action claiming that she had been wrongfully

discharged due to disability discrimination. The case proceeded to trial, but the court

directed a verdict in PNC’s favor at the close of Thomas’s case-in-chief. The court ruled

that Thomas had no evidence to show that she was disabled at the time of discharge

because her injuries were “transitory and minor” and as a matter of law did not constitute

a disability. The court also concluded that Thomas failed to establish that she was

terminated because PNC perceived her as being disabled.
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶2} Thomas maintains in her first assignment of error that in order to establish a

prima facie case of disability discrimination, a plaintiff need only show that she has been

“perceived” as having a physical impairment, regardless of how severe the injury might

be, or whether she was actually disabled. She maintains that she presented evidence that

PNC viewed her as being disabled, so the court erred by directing a verdict on grounds

that her injuries were “transitory and minor.”

        {¶3} It is unlawful for any employer to discharge, without just cause, an employee

because of disability. See R.C. 4112.02(A). In this context, a “disability” can be both

actual or perceived.       An actual disability is a “physical or mental impairment that

substantially limits one or more major life activities.”       R.C. 4112.01(A)(13).      A

perceived disability is when a person, whether or not actually impaired, is “regarded as

having a physical or mental impairment.” Id.
      {¶4} In a case like this where there is no direct evidence of disability

discrimination, an employee can make out a prima facie case of disability discrimination

under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973).         As applied to cases of perceived disability

discrimination, the employee must show that (1) he or she was perceived as disabled, (2)

that the employer took an adverse employment action against the employee because of the

perceived disability, and (3) that the employee, although perceived as disabled, can safely

and substantially perform the essential functions of the job in question.         Hood v.

Diamond Prods., 74 Ohio St.3d 298, 302, 1996-Ohio-259, 658 N.E.2d 738, Copen v.

CRW, Inc., 9th Dist. Wayne No. 17AP0016, 2018-Ohio-2347, ¶ 21, citing Jaber v.

FirstMerit Corp., 9th Dist. Summit No. 27993, 2017-Ohio-277, 81 N.E.3d 879, ¶ 13.
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶5} “The federal Americans with Disabilities Act (‘ADA’) is similar to the Ohio

handicap discrimination law. * * * We can look to regulations and cases interpreting the

federal Act for guidance in our interpretation of Ohio law.” Columbus Civ. Serv. Comm.

v. McGlone, 82 Ohio St.3d 569, 573, 1998-Ohio-410, 697 N.E.2d 204, citing Little Forest

Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 575 N.E.2d 1164 (1991). See

also Ames v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-4774, 23 N.E.3d 162, ¶ 26 (10th

Dist.) (“Ohio disability discrimination law is similar to the Federal Americans with

Disabilities Act (‘ADA’), and therefore Ohio courts may seek guidance in the

interpretation of the ADA.”).

        {¶6} Under the ADA, an individual is “regarded as” disabled if he or she “has

been subjected to an action prohibited under this Act because of an actual or perceived

physical or mental impairment whether or not the impairment limits or is perceived to

limit a major life activity.” 42 U.S.C. 12102(3)(A). In 2008, amendments to the ADA

extended protection to individuals who were the subject of adverse employment action

because the individual was perceived as being impaired, even if the individual had

impairments that did not substantially limit any major life activity.
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶7} The ADA states, however, that an individual will not be regarded as disabled

based on an actual or perceived impairment that is “transitory and minor.” Id.; Silk v. Bd.

of Trustees, 795 F.3d 698, 706 (7th Cir.2015).           “A transitory impairment is an

impairment with an actual or expected duration of 6 months or less.”             42 U.S.C.

12102(a)(3)(B).      The “transitory and minor” standard applies “no matter what” the

employee may be able to prove about how an employer perceived the employee’s physical

condition. White v. Interstate Distrib., 438 Fed.Appx 415, 420 (6th Cir.2011).

        {¶8} The “transitory and minor” standard is a defense to a discrimination claim:

        To establish this defense, a covered entity must demonstrate that the
        impairment is both “transitory” and “minor.” Whether the impairment at
        issue is or would be “transitory and minor” is to be determined objectively.
        A covered entity may not defeat “regarded as” coverage of an individual
        simply by demonstrating that it subjectively believed the impairment was
        transitory and minor; rather, the covered entity must demonstrate that the
        impairment is (in the case of an actual impairment) or would be (in the case
        of a perceived impairment) both transitory and minor. For purposes of this
        section, “transitory” is defined as lasting or expected to last six months or
        less.

29 C.F.R. 1630.15(f).
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶9} This is an objective standard — the employer “must prove that the perceived

impairment actually was transitory and minor.” Silk, supra; Budhun v. Reading Hosp. &

Med. Ctr., 765 F.3d 245, 259-260 (3d Cir.2014).          “[B]roken bones, generally, are

characterized as being ‘transitory and minor’ for purposes of ADA disability definitions.”

 See Clark v. Boyd Tunica, Inc., N.D.Miss. No. 3:14-cv-00204-MPM-JMV, 2016 U.S.

Dist. LEXIS 25223, 17 (Mar. 1, 2016) (collecting cases); Zick v. Waterfront Comm. of

New York Harbor, S.D.N.Y., 2012 U.S. Dist. LEXIS 144920 (Oct. 4, 2012) (broken leg

with an expected duration of 8 to 10 weeks was “transitory” or “minor” and therefore not

covered).

        {¶10} We review the facts supporting a directed verdict most favorably to the party

against whom the verdict was directed and decide, as a matter of law, whether the court

erred by finding that reasonable minds could come to but one conclusion on the evidence.

 See Civ.R. 50(A)(4); Bennett v. Admr., Ohio Bur. of Workers’ Comp., 134 Ohio St.3d

329, 2012-Ohio-5639, 982 N.E.2d 666, ¶ 14.
       {¶11} There was no dispute on the facts describing Thomas’s injury. Thomas

suffered her injury on May 16, 2014. PNC approved her request for disability leave from

May 19, 2014, to June 8, 2014. Although Thomas originally thought that she would

return to work on June 8, 2014, her leave was extended to July 3, 2014. Thomas testified

that her broken bones “pretty much healed after six weeks.” She also agreed that upon

her return from medical leave, she was not prevented from working in any way. It was

undisputed that the return-to-work authorization issued by her doctor contained no

physical limitations or restrictions, nor did Thomas tell PNC that she had any work

limitations or restrictions.

       {¶12} As a matter of law, Thomas’s injury was transitory and minor because her

injury had an actual or expected duration of six months or less. And when an injury is

transitory and minor, the “regarded as” prong of the prima facie test does not apply.

Budhun, 765 F.3d 245; Neely v. Benchmark Family Servs., 640 Fed.Appx 429, 436 (6th

Cir.2016); Michalesko v. Freeland Borough, 658 Fed.Appx 105, 107 (3d Cir.2016); Adair

v. Muskogee, 823 F.3d 1297, 1306 (10th Cir.2016).
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶13} Thomas argues that we should not adopt the federal “transitory and minor”

standard because it conflicts with Ohio cases; notably, Field v. MedLab Ohio, Inc., 8th

Dist. Cuyahoga No. 97990, 2012-Ohio-5068, where we quoted Ross v. Campbell’s Soup

Co., 237 F.3d 701, 706 (6th Cir.2001), for the proposition that “[a]n individual may fall

into the definition of one regarded as having a disability if an employer ascribes to that

individual an inability to perform the functions of a job because of a medical condition,

when, in fact, the individual is perfectly able to meet the job’s duties.” Id. at ¶ 11. We

see no contradiction.       Field made the unremarkable point that an employee can be

regarded as disabled even if that employee is not actually disabled — in other words, a

discharge on the basis that an employee was “perceived” to be disabled was actionable

discrimination. The “transitory and minor” standard under federal law does not deal with

what the employer thought about an employee’s injury, but whether the injury itself rose

to the level of impairing a major life activity. Brief periods of illness or injury do not

rise to the level of impairing a major life activity for purposes of the discrimination law.

Congress stressed that “‘the intent of this [“transitory and minor”] exception is to prevent

litigation over minor illnesses and injuries, such as the common cold, that were never

meant to be covered by the ADA.’” 9 Larson on Employment Discrimination, Section

153.09 (2018), quoting Joint Hoyer-Sensenbrenner Statement on the Origins of the ADA

Restoration Act of 2008, H.R. 3195. Applying this federal standard does no damage to

Ohio precedent on disability discrimination.
         {¶14} Even if Thomas’s injuries were not transitory and minor, there was no

evidence to show that PNC continued to regard her as disabled when she returned to work

following the expiration of her disability leave. In cross-examination, Thomas agreed

that no one at PNC ever said anything negative or derogatory to her about her injuries.

There was no evidence that Thomas separately told PNC that she had any restrictions on

her ability to perform her job, nor did PNC mention her disability to her when her leave

ended.
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        {¶15} Thomas argues that PNC viewed her as disabled by virtue of placing her on

“disability” leave, but this is a tautology relying solely on the label used to describe the

type of leave. The way in which PNC defined a disability for purposes of its disability

leave policy was irrelevant to the statutory definition of what constitutes an impairment of

a major life activity. When transitory and minor injuries do not constitute impairments

for purposes of being regarded as disabled, the label attached to the type of leave afforded

to an injured employee is of no consequence. In fact, if Thomas is correct that the use of

the word “disability” to describe the type of leave somehow controlled with respect to

PNC’s perception of her physical condition, it logically follows that when her disability

leave ended and she reported to work, PNC would no longer perceive her as disabled.

There is no factual dispute that when Thomas returned to work, she was immediately

placed on administrative leave. That Thomas was placed on administrative leave when

she returned, and not continuing disability leave, Thomas’s own logic shows that PNC did

not regard her as disabled when she returned to work.

        {¶16} Our conclusion necessarily moots Thomas’s second assignment of error

complaining that the court erred by excluding PNC’s disability leave policy and

precluding testimony regarding its requirements. See App.R. 12(A)(1)(c). Even if the

court erred by refusing to admit PNC’s disability leave policy into evidence, the fact

remains that Thomas could not make out a “perceived” claim of disability discrimination

given the transitory and minor nature of her injuries.
      {¶17} Our conclusion likewise moots Thomas’s third assignment of error that the

court erred by directing a verdict because Thomas did not present any evidence of pretext.

With Thomas having failed to establish a prima facie case of discrimination, we need not

consider whether PNC’s reasons for terminating her were pretext for disability

discrimination.   Surry v. Cuyahoga Community College, 149 Ohio App.3d 528,

2002-Ohio-5356, 778 N.E.2d 91, ¶ 26 (8th Dist.); Grimsley v. Cain D.D.S., L.L.C., 5th

Dist. Stark No. 2012 CA 00052, 2012-Ohio-5273, ¶ 60.

      {¶18} Judgment affirmed.
[Cite as Thomas v. PNC Bank, N.A., 2018-Ohio-4000.]
        It is ordered that appellee recover of appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
