[Cite as Anderson v. Ohio Bell Tel. Co., 2017-Ohio-7318.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104858




                                 JACINDA ANDERSON

                                                            PLAINTIFF-APPELLANT

                                                      vs.

              THE OHIO BELL TELEPHONE COMPANY

                                                            DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-798525

        BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEY FOR APPELLANT

Steven J. Forbes
Norchi Forbes, L.L.C.
23240 Chagrin Blvd., Suite 210
Cleveland, Ohio 44122


ATTORNEYS FOR APPELLEE

Laura Lindner
Littler Mendelson P.C.
111 East Kilbourn Avenue, Suite 1000
Milwaukee, WI 53202

Amy Ryder Wentz
Littler Mendelson P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

      {¶1} Plaintiff-appellant Jacinda Anderson (“Anderson”) appeals from the trial

court’s January 24, 2016 judgment that, in part, granted summary judgment in favor of

defendant-appellee, The Ohio Bell Telephone Company, a.k.a. AT&T (“Ohio Bell”), on

Anderson’s disability discrimination claims. For the reasons that follow, we reverse and

remand.

Background

      {¶2} Beginning in August 2005, Anderson worked for Ohio Bell; she had

previously worked for Michigan Bell from 1995 until she transferred to Ohio Bell.        In

August 2009, she sought leave of absence for an alleged medical condition.               In

November 2009, the company terminated her employment.

      {¶3} In 2013, Anderson filed this action against Ohio Bell, alleging that she was

terminated because of a disability and that the company failed to provide her with a

reasonable accommodation for the disability.      Ohio Bell answered the complaint and

asserted a fraud counterclaim against Anderson.

      {¶4} Both parties filed motions for summary judgment: Anderson filed a motion

for summary judgment on the company’s fraud counterclaim, and Ohio Bell filed a motion

for summary judgment on both Anderson’s complaint and its fraud counterclaim. The

trial court granted Ohio Bell’s motion as it related to Anderson’s complaint, but denied

both parties’ motions as they related to the company’s fraud counterclaim.   After the trial

court’s ruling, the telephone company voluntarily dismissed its fraud counterclaim.
Anderson now appeals, and for her sole assignment of error contends that “the trial court

erred by granting summary judgment in favor of Ohio Bell Company and finding as a

matter of law that The Ohio Bell Telephone Company did not discriminate against Jacinda

Anderson based on her disability.”1

Summary judgment standard of review

        {¶5} This court’s review of a trial court’s decision on summary judgment is de

novo.       Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220,

767 N.E.2d 707, ¶ 24. Summary judgment is appropriate only when the moving party

demonstrates that (1) no genuine issue of material fact exists, (2) the moving party is

entitled to judgment as a matter of law, and (3) reasonable minds could come to but 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 most strongly

construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78

Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

Ohio Bell’s summary judgment motion

        {¶6} In support of its motion for summary judgment, Ohio Bell submitted several

affidavits with accompanying documentation and deposition transcripts, including the

transcript from Anderson’s deposition. It was Ohio Bell’s position that Anderson sought

disability leave based on “knowing misrepresentations.”                  Specifically, the telephone


        1
          Because the telephone company dismissed its fraud counterclaim against Anderson, the claim
is not part of this appeal. Therefore, it will only be discussed as is necessary to explain the setting of
the case.
company maintained that it granted her a five-week, short-term disability leave based on

her representations that she was having surgery for carpal tunnel; the leave was for August

5, 2009 through September 14, 2009.            According to the company, Anderson neither

scheduled nor had the surgery.

       {¶7} When the five-week period expired, Anderson sought additional time, which

the company denied.      Anderson appealed the denial.        In support of her appeal, Anderson

submitted a letter she and her father drafted, “purportedly bearing the letterhead and

signature of a psychiatrist.”     However, Ohio Bell contended that the psychiatrist never

treated Anderson during the relevant time frame, had not even met her at the time the letter

was drafted, and did not write the letter.     The “fraudulent” letter from the psychiatrist was

the ground for Ohio Bell’s fraud counterclaim against Anderson.

Anderson’s leave

       {¶8} The company’s resource manager, Lashon Borom (“Borom”), averred that

claims for short-term disability are processed by a third-party administrator, Sedgwick

Claims Management Services, which operates as the AT&T Integrated Disability Services

Center (“IDSC”).      After being notified of a claim for short-term disability,2 the IDSC

makes a determination, based on the information provided by the employee’s health care

provider, on whether the medical condition qualifies for benefits. After it makes its

determination, the IDSC then notifies the employee in writing as to whether his or her


       2
         Under the company’s benefits plan, an employee whose absence for his or her own illness for
greater than seven days is eligible for short-term disability benefits.
claim had been approved or denied, and the reason for the determination.

       {¶9} Borom averred that Anderson had “three chargeable absences in 2009: July 5 -

July 11, July 19 - July 23, and July 30 - August 3.” After the third absence, the company

was eligible under its disciplinary policy to terminate Anderson, but it “decided to exercise

leniency and * * * give her a final written warning plus 3-day suspension in lieu of

termination.”

       {¶10} On August 13, 2009, Borom opened a short-term disability claim for

Anderson because she had been off work for her own illness for eight consecutive days.

On September 15, 2009, the IDSC determined that Anderson was no longer unable to

work and, therefore, that she was not entitled to benefits.     In a letter from Borom to

Anderson dated September 16, 2009, Borom advised Anderson that her claim for

short-term disability benefits had been denied and that she had “exhausted [her] FMLA

entitlement for the current 12-month period.”     The letter directed Anderson to report to

work on September 23, 2009, and that if she did not, the company would “have no choice

but to assume you are abandoning your job” and it would remove her from the payroll

because of her “voluntary resignation.”

       {¶11} The letter further advised that if Anderson required a reasonable

accommodation, she should contact the IDSC, and if she needed help managing a situation

in her personal or work life, she should contact the employee assistance program.

       {¶12} Borom averred that Anderson did not contact her or otherwise respond to the

letter, and did not report to work on September 23. Further, the IDSC did not contact
Borom to advise that Anderson had requested a reasonable accommodation.       Borom sent

another letter to Anderson, dated October 7, 2009, advising her to return to work by

October 14; Anderson did not return. On October 14, Borom sent another letter to

Anderson advising her to report to work by October 21; again, Anderson did not report.

Another letter, dated October 26 was also sent; the letter stated that Anderson needed to

report to work on November 2, 2009; she did not.

      {¶13} As with the first letter, the October letters advised Anderson that failure to

report to work would be deemed abandonment of her job and voluntary resignation; that

she should contact the IDSC for a request for a reasonable accommodation; and that if she

needed help managing a work or personal issue, she should contact the employee

assistance program.

      {¶14} Meanwhile in October 2009, Borom emailed an IDSC representative to get

an update on Anderson’s claim. Borom told the representative that Anderson “continues

to say that her doctor is sending medical information because she is not able to come back

to work.”   The representative responded that the IDSC had received updated information,

but the “information did not support overturning the denial of this claim. To date, the

claim remains denied from 9/15/09 to her return to work.”

      {¶15} After Anderson did not return to work, by letter dated November 5, 2009,

Ohio Bell terminated her employment.     Borom averred that before removing Anderson

from the payroll, she contacted the IDSC to determine if Anderson had provided any

additional information and learned that she had not.   Borom further averred that neither
the IDSC nor Anderson had ever communicated any medical information about Anderson

to her.    According to Borom, at the time the termination decision was made, she had no

knowledge as to what condition Anderson claimed was preventing her from returning to

work.

          {¶16} Ohio Bell also submitted an affidavit from Susan HagEstad (“HagEstad”), a

manager for Sedgwick, the company that, as mentioned, was the third-party administrator

of disability benefits for Ohio Bell.   HagEstad averred that, although she had access to a

claimant’s records, because of privacy laws, medical information acquired by Sedgwick

was not shared with Ohio Bell agents.

          {¶17} According to HagEstad, Anderson called the IDSC on August 18, 2009, and

reported that she was scheduled for hand surgery to treat carpal tunnel syndrome and

arthritis on September 9, 2009. But as of September 14, Sedgwick had not received any

medical documentation that a health condition prevented Anderson from working.

Further, Sedgwick had only received a request from Anderson for time off work; it had not

received a request for a job accommodation.

          {¶18} On September 15, 2009, an IDSC claim representative contacted Anderson

by phone and explained that her request for continued benefits beyond September 14 was

denied because there were was no medical documentation substantiating the request.

Anderson was further advised that she could submit medical documentation for additional

review or file an appeal of the denial of benefits.

          {¶19} HagEstad averred that on September 23, 2009, Anderson’s supervisor
contacted the IDSC to inquire about whether additional medical records had been received

from any of Anderson’s medical providers. The supervisor was advised that additional

medical information had been received and was pending review.

       {¶20} On September 25, 2009, the IDSC reviewed Anderson’s medical records

from a September 8, 2009 appointment with Dr. Nina Njus, an orthopedic surgeon

specializing in the hand.   HagEstad averred that the review did not provide a basis to

overturn the denial of benefits, so a claim representative contacted Dr. Njus’s office to see

if it had any additional records for Anderson.   The office informed the representative that

it would forward additional records from a September 22, 2009 appointment.       The claims

examiner contacted Anderson to explain that, as of that time, the claim for continued

benefits was still denied, but that the IDSC would review additional records from Dr. Njus

to determine if an approval of benefits was warranted.

       {¶21} HagEstad averred that Borom contacted the IDSC in early October 2009 and

was advised that additional documentation had been received, but that it did not support

Anderson’s claimed inability to work. Borom again contacted the IDSC later in October

and on November 5, the day Anderson was terminated, and learned that no additional

medical documentation on Anderson had been received.

       {¶22} Anderson appealed the IDSC’s decision denying benefits, and submitted

various letters and medical records in support of her appeal. Only one of the documents

— a letter from a psychiatrist, Dr. Kameswara Tatineni — stated that Anderson was

unable to work for the period after September 14, 2009.      The IDSC took Dr. Tatineni’s
letter to state a medical opinion that Anderson had been incapacitated since July 2009, and

based on that belief, hired an independent psychiatric medical advisor to review the letter

and interview Dr. Tatineni.

      {¶23} Ohio Bell also submitted an affidavit of Kacendra Offord (“Offord”), a

Sedgwick case manager who was assigned to Anderson’s case.            Offord averred that

Anderson reported to the IDSC that she was scheduled for hand surgery for carpal tunnel

syndrome and arthritis on September 9, 2009, and based on that representation, Offord

approved Anderson’s claim for short-term disability benefits from early August 2009

through September 14, 2009.

      {¶24} Offord averred that she made three requests from Anderson for the name of

her surgeon on the following dates: August 19, August 31 and September 10, 2009.

Anderson did not respond to the first two requests. Anderson responded to the third

request on September 14, 2009 and provided Dr. Njus’s name and number.

      {¶25} Offord further averred that Anderson failed to inform the IDSC that she did

not have surgery on September 9. Moreover, as of September 14, Sedgwick had not

received any medical documentation from Anderson that supported her claimed inability to

work, nor had it received a request for a job accommodation;       the only request it had

received from Anderson was for time off work.

Anderson’s medical treatment

      {¶26} The record demonstrates that on July 14, 2009, Anderson first consulted with

a primary care physician, Dr. Kerwyn Flowers.      She told the doctor that she had been
diagnosed with carpal tunnel syndrome approximately seven years prior, and she believed

it had returned.      Anderson told Dr. Flowers that she typed as part of her job

responsibilities and that when she did so it caused her pain. The doctor testified that

Anderson did not ask for a work restriction note from her, and that she did not advise

Anderson that she was unable to work. Dr. Flowers recommended that Anderson treat

with an anti-inflammatory and wear a splint.

       {¶27} On August 7, 2009, Anderson had a follow-up appointment with Dr.

Flowers. The doctor and Anderson did not discuss whether Anderson was working at

that time.     The doctor noted that Anderson had some tingling in her fingertips and

testified that she “kind of” diagnosed her with carpal tunnel syndrome because Anderson

“did test positive for [a sign of the syndrome] and did have some symptoms of carpal

tunnel.”       Dr. Flowers recommended that Anderson continue to treat with an

anti-inflammatory and a splint and, further, because she did not seem to be improving, that

she schedule an appointment with Dr. Nina Njus, an orthopedic surgeon who specialized

in the hand.    She also referred her for physical therapy.

       {¶28} Anderson first visited with Dr. Njus on September 8, 2009; her chief

complaint was carpal tunnel syndrome on both sides.              After her examination of

Anderson, Dr. Njus wrote a letter to Dr. Flowers, and told her that she believed Anderson

had a “low grade autoimmune reaction to strep.”          Dr. Njus ordered various tests and

blood work, and told Anderson that she wanted to see her for a follow-up appointment

once the blood work and tests and results were completed.         The doctor did not place
Anderson on any restrictions, work or otherwise. She did not recommend surgery for

Anderson; rather, her recommendation was “skillful neglect,” which meant just leaving the

areas Anderson complained about alone for the time being.

       {¶29} Anderson saw Dr. Njus twice after her initial visit — on September 22, and

October 7, 2009. The doctor was unable to find what was causing Anderson’s pain and,

therefore, she testified about her impressions after the October visit as follows:   “I could

not tell her if she would be able to return to her current employment because I [did] not

have a definite diagnosis as to what was causing her upper extremity pain.”      The doctor

advised Anderson to try physical therapy, and if that was not successful, she could then

consider an epidural steroid or surgery.

       {¶30} In late August 2009, Anderson sought a second opinion from Dr. George

Balis, an orthopedic surgeon at the Cleveland Clinic. After his examination of Anderson,

Dr. Balis concluded that she “probably had mild carpal tunnel syndrome,” and there “may

be some underlying carpal tunnel syndrome.”      He also noted that she had a mass on her

left wrist, which he believed was possibly a ganglion cyst.         Dr. Balis testified that

sometimes the cysts can get large and be painful, but that generally there is no treatment

for them other than aspirating them to drain the fluid or surgically removing them. The

doctor switched Anderson’s anti-inflammatory medicine, ordered lab tests, blood work and

an MRI of her wrist.

       {¶31} In late October 2009, Anderson had a follow-up appointment with Dr. Balis.

 Her test results were “not completely” within normal range, “but close.”        The doctor
testified that one test — which was not administered as a diagnostic test, but rather was

administered as a general test — indicated that Anderson had inflammation in her body.

Dr. Balis further testified that, based on the tests, Anderson did not have significant carpal

tunnel syndrome, but he did not rule out that she may have had mild carpal tunnel

syndrome.    He recommended that she see a rheumatologist, who could explore whether

she had fibromyalgia. He did not place Anderson on any restrictions, work or otherwise.

       {¶32} As mentioned, Dr. Tatineni was a psychiatrist who saw Anderson.

Anderson’s first appointment with him was on January 18, 2010, after she had been

terminated from Ohio Bell. Anderson went to the doctor for recommendations for coping

with her severe pain and to seek a plan for rehabilitation.       Dr. Tatineni provisionally

diagnosed Anderson with severe major depression and post-traumatic stress disorder.

Anderson saw Tatineni a second time and was admitted to the hospital in late January

2010; she sought to be voluntarily admitted on an emergency basis. She told the doctor

that she was overwhelmed as a result of losing her job and was having suicidal thoughts.

       {¶33} Dr. Tatineni admitted that Anderson wrote the letter (that was the basis of

Ohio Bell’s fraud counterclaim) and he signed off on it, but testified that the letter

accurately reflected his medical opinion.     The letter stated, in part, that Anderson had

been “ill and incapacitated since July 2009.”     Dr. Tatineni admitted that Anderson had

not been a patient of his in July 2009, but testified that the conclusion was based on the

information Anderson described to him.

Anderson’s Opposition to Ohio Bell’s Motion
      {¶34} In opposition to the telephone company’s summary judgment motion,

Anderson relied on her own deposition testimony and the deposition testimonies of the

doctors with whom she treated.

      {¶35} Anderson testified that she began experiencing chronic and severe pain in her

hands and wrists, and after she got a carpal tunnel syndrome diagnosis from Dr. Flowers,

Anderson applied for disability leave, and submitted her medical records to Sedgwick.

Ohio Bell then approved her leave through September 14, 2009. According to Anderson,

the pain greatly affected her life — she was unable to sleep, unable to care for her child,

and was depressed.

      {¶36} On September 8, 2009, Anderson saw Dr. Njus, as recommended by Dr.

Flowers. Dr. Njus, however, did not believe that carpal tunnel syndrome explained the

pain Anderson was experiencing and, therefore, did not recommend surgery.               On

September 11, 2009, Anderson signed a release relative to her medical records from her

visit with Dr. Njus so that they could be provided to Ohio Bell. Before Ohio Bell

received the records from Dr. Njus, Anderson received a letter from the company, dated

September 16, 2009, stating that it would assume that she had abandoned her job if she did

not return to work by September 23, 2009. According to Anderson, Ohio Bell issued the

letter before speaking with Dr. Njus or reviewing her records.

      {¶37} Dr. Njus’s records were submitted to Ohio Bell on September 21, 2009, and

they stated that Anderson was experiencing severe pain in her wrists and had difficulty

sleeping because of the pain.    Dr. Njus could not explain the cause of the pain, however.
The doctor wrote in an October 7, 2009 letter that she informed Anderson that she “could

not tell her if she would be able to return to her current employment because [she did] not

have a definitive diagnosis as to what [was] causing her upper extremity pain.”           The

doctor continued that “[i]f therapy does not quiet her down, we will get a cervical MRI to

see if she has a broad-based disc of something of that sort that is surgically amenable to

treatment or consider possibly trying an epidural steroid.”

       {¶38} According to Anderson, she called Ohio Bell five times during the time

spanning October 12 to October 22, 2009, to request an expedited review of her records.

On October 14, 2009, Anderson wrote to her union to inform it that she was not

abandoning her job.      Borom, the telephone company’s resource manager, received a copy

of the letter.

       {¶39} Further, on October 22, she wrote to Borom. In the letter, Anderson told

Borom that she had a 15-year career with the telephone company, she was committed to

her job, but because of her medical condition, she was unable to function at that time.

She stated that she “needed a reasonable accommodation, which is a request for a time

extension to recover.”    Anderson further stated in the letter that if granted an extension of

time, she would continue treatment with a physical therapist to “further analyze and assist

[her] with further accommodations to be able to perform [her] essential job functions.”

Anderson concluded the letter by saying that she was neither abandoning her job nor

voluntarily resigning.

Analysis
       {¶40} In this appeal, we consider whether the trial court erred by granting summary

judgment in favor of Ohio Bell on Anderson’s disability discrimination claims.

       {¶41}   R.C. 4112.02(A) prohibits discrimination based on disabilities as follows:

       It shall be an unlawful discriminatory practice:

       (A) For any employer, because of * * * disability * * * 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.

       {¶42} The Ohio Supreme Court has explained, “we have determined that federal

case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title

42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter

4112.” Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610,

575 N.E.2d 1164 (1991); see also Martin v. Barnesville Exempted Village School Dist. Bd.

of Edn., 209 F.3d 931, 934, fn.2 (6th Cir.2000) (“Both federal and Ohio disability

discrimination actions require the same analysis.”).

       {¶43} In pursuing an employment discrimination claim, a plaintiff must first

establish a prima facie case of discrimination. Greer-Burger v. Temesi, 116 Ohio St.3d

324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14, citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff does, the burden

then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the

adverse employment action. Id. Once the employer does, the burden again shifts to the

plaintiff to show “that the proffered reason was not the true reason” for the adverse

employment action. Id., quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

      {¶44} A prima facie case of discriminatory disability discharge requires a plaintiff

to show (1) he or she is disabled, (2) he or she was otherwise qualified for the position,

with or without reasonable accommodation, (3) he or she suffered an adverse action, (4)

the employer knew or had reason to know of his or her disability, and (5) he or she was

replaced or the job remained open. Rosebrough v. Buckeye Valley High School, 690 F.3d

427, 431 (6th Cir.2012), citing Plant v. Morton Interntl. Inc., 212 F.3d 929, 936 (6th

Cir.2000).

      {¶45} Regarding Anderson’s claim that Ohio Bell discriminated against her by

failing to reasonably accommodate her alleged disability, under Ohio law

      (1) An employer must make reasonable accommodation to the disability of

      an employee or applicant, unless the employer can demonstrate that such an

      accommodation would impose an undue hardship on the conduct of the

      employer’s business.

      (2) Accommodations may take the form, for example, of providing access to

      the job, job restructuring, acquisition or modification of equipment or

      devices or a combination of any of these. Job restructuring may consist,

      among other things, of realignment of duties, revision of job descriptions or

      modified and part-time work schedules.

Ohio Adm.Code 4112-5-08(E).

      {¶46} Thus, both of Anderson’s claims — discriminatory disability discharge and
failure to reasonably accommodate her alleged disability — first require that Anderson

demonstrate she was disabled.    The trial court found that she “did not produce evidence

that created a factual dispute on the critical issue [of] whether at the time her employer

was responding to her absences she had a disability within the meaning of Ohio law.”

We disagree.

       {¶47} “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 Ohio discrimination law from regulations and cases that interpret the

ADA.”    Ames v. Ohio Dept. of Rehab. & Corr., 23 N.E.3d 162, 2014-Ohio-4774, ¶ 26

(10th Dist.). A disability is defined as “a physical or mental impairment that substantially

limits one or more major life activities of [an] individual, [and includes] being regarded as

having such an impairment.” 42 U.S.C. 12102(1)(A),(C). “Major life activities” include

“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.”         42 U.S.C. 12102(2)(A).        A plaintiff may prove

disability discrimination with either direct or indirect evidence. Markham v. Earle M.

Jorgensen Co., 138 Ohio App.3d 484, 495, 741 N.E.2d 618 (8th Dist.2000).

       {¶48} The trial court, citing Rhoads v. Bd. of Edn., 103 Fed. Appx. 888, 893 (6th

Cir.2000), held that a plaintiff must provide medical evidence to prove a disability and that

Anderson failed to do so. Upon review, we find Rhoads distinguishable from this case.

       {¶49} In Rhoads, the plaintiff had been a bus driver for a school district, and as
required to by law, had submitted to a random drug test; she failed the test. After

learning that she was going to be terminated, she resigned from her position.      Thereafter,

she attempted numerous times to get her job back, to no avail. She filed an action against

the board of education claiming, among other things, that it had discriminated against her

because of a disability, that is, substance abuse.      The district court granted summary

judgment in favor of the board and the plaintiff appealed.

       {¶50} In addressing whether the plaintiff was disabled, the Sixth Circuit

acknowledged that disability discrimination can be proved with either direct or indirect

evidence. Id. at 891.     Thus, “[a]scertaining whether a plaintiff is disabled requires an

individualized inquiry into her particular condition and its affect on her ability to perform a

major life activity.” Id. at 892.      “The determination of whether an individual has a

disability is not necessarily based on the name or diagnosis of the impairment the person

has, but rather on the effect of that impairment on the life of the individual.”      (Citation

omitted.) Id.

       {¶51} The Sixth Circuit recognized that drug addiction is a “physical or mental

impairment,” but stated that “[a] plaintiff cannot prove that her drug use amounts to a

disabling addiction merely by providing self-serving, conclusory statements that her drug

use substantially limits her ability to perform a major life activity.” Id. at 893, citing

Cervella v. Lake Cty. Bd. of Commrs., 11th Dist. Lake No. 95-L-094, 1996 Ohio App.

LEXIS 2449, 3 (June 14, 1996).         “Rather, ‘at a minium, medical evidence must be

offered to substantiate the claimed [disability].’” Rhoads at id., quoting Cervella at id.
        {¶52} In Rhoads, the plaintiff “produced scant medical evidence that she suffered

from a drug addiction.” Id. Rather, she relied on her own assertions that she began

using drugs at age 16, that she sometimes smoked marijuana all day long, and that she

believed that she was a drug addict.

        {¶53} The Sixth Circuit found that “even assuming [the plaintiff] could show that

she once suffered from a drug addiction, she presents no evidence indicating to what

extent the addiction affected her ability to perform a major life function.” Id. She,

therefore, “failed to bring forth evidence adequate to prove that she was actually disabled

when the District refused to hire her or that she had a record of a disability at that time * *

* [or] that shows the District regarded her drug use as a disability.” Id.

        {¶54} The court reasoned that

        [a]lthough the random drug test certainly put the District on notice that she
        used controlled substances, there is no indication that the District regarded
        [her] as a drug addict or that it was aware of the extent of her use of
        marijuana. Nor does any evidence suggest that the District believed her
        drug use substantially limited her ability to perform a major life activity.

Id.3


        3
          Medical evidence is not the only way a plaintiff can prove a disability. Specifically, being
disabled for purposes of a disability discrimination claim includes being regarded as having a
disability. “An individual is regarded as having a disability if the individual: ‘(1) has a physical or
mental impairment that does not substantially limit major life activities but is treated by a covered
entity as constituting such limitation; (2) has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward such impairment; or (3) has [no
physical or mental impairment] but is treated by a covered entity as having a substantially limiting
impairment.’” Fitzmaurice v. Great Lakes Computer Corp., 155 Ohio App.3d 724, 2004-Ohio-235,
803 N.E.2d 854, ¶ 20 (8th Dist.), quoting Bush v. Dictaphone Corp., 10th Dist. Franklin No.
00AP-1117, 2003-Ohio-883, ¶ 40-43.
       {¶55} Here, in contrast to the plaintiff in Rhoads, Anderson did present medical

evidence; we find the medical evidence in the record created a genuine issue of material

fact as to whether she was disabled.       It is inconsequential that she never received a

definitive diagnosis. As mentioned, “[t]he determination of whether an individual has a

disability is not necessarily based on the name or diagnosis of the impairment the person

has, but rather on the effect of that impairment on the life of the individual.” Id. at 892.

       {¶56} The record establishes that at the time of her leave from Ohio Bell, Anderson

was experiencing severe pain in her hands and wrists.       She treated with several doctors

who were unable to definitively find the cause of her pain. But Anderson testified that

the pain left her depressed, unable to care for her child, unable to sleep and, often times,

bedridden. Dr. Tatineni’s testimony aside (Anderson did not treat with him until after she

was terminated), there is medical evidence in the record from the time she was granted

medical leave from her job and was trying to find out what condition she had that

Anderson had a history of depression. There was also medical testimony that depression

can cause physical symptoms and pain.      This evidence created a genuine issue of material

fact as to whether Anderson was disabled.

       {¶57} We note Ohio Bell’s contention throughout this litigation that Anderson

misrepresented to the company that she was scheduled for hand surgery. The record does

support the company’s contention of her misrepresentation — Anderson was not

scheduled for surgery at the time she sought short-term disability leave or at any other

relevant time.   Even if there was a misrepresentation, that misrepresentation does not
diminish other evidence in the record, as detailed above, which creates a genuine issue of

material fact as to whether Anderson was disabled.

      {¶58} In light of the above, the trial court erred by granting summary judgment in

favor of Ohio Bell on Anderson’s disability discrimination claims.

      {¶59} Judgment reversed; case remanded for further proceedings.

      It is ordered that appellant recover of appellee 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 Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
