[Cite as Winkfield v. Ohio Dept. of Dev. Disabilities, 2011-Ohio-4854.]



                                                         Court of Claims of Ohio
                                                                                  The Ohio Judicial Center
                                                                          65 South Front Street, Third Floor
                                                                                     Columbus, OH 43215
                                                                           614.387.9800 or 1.800.824.8263
                                                                                      www.cco.state.oh.us



KIMBERLY E. WINKFIELD

        Plaintiff

        v.

OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES

        Defendant

        Case No. 2010-08977

Judge Joseph T. Clark

DECISION



        {¶1}     On December 20, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On January 24, 2011, with leave of court, plaintiff filed her
response. Defendant’s January 25, 2011 motion for leave to file a reply is GRANTED
instanter. On March 23, 2011, the court conducted an oral hearing on defendant’s
motion.
        {¶2}     Civ.R. 56(C) states, in part, as follows:
        {¶3}     “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can 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 or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶4}   Plaintiff began her employment with the Columbus Development Center
(CDC), a division of defendant, as a therapeutic program worker in 2003. Plaintiff was a
member of the collective bargaining unit. In 2005, plaintiff notified human resources
that she was diagnosed with multiple sclerosis and she used five days of leave under
the Family and Medical Leave Act (FMLA).
       {¶5}   On July 9, 2009, plaintiff interacted with CDC residents in “day hab” where
they had been dancing and playing kickball. In the afternoon, plaintiff drove a state-
owned van to transport residents from the recreation center to their housing unit. While
driving the van to pick up the residents, the van hit another vehicle in the parking lot
causing damage to both vehicles.        Plaintiff was cited for failure to control and for
operating a vehicle the wrong way on a one-way street.
       {¶6}   On August 19, 2009, a pre-hearing disciplinary conference was held to
determine if plaintiff should be terminated, pursuant to defendant’s progressive policy,
inasmuch as plaintiff had two disciplinary actions on record. Plaintiff was terminated
from her employment at CDC effective September 1, 2009. On March 4, 2010, an
arbitrator heard plaintiff’s appeal pursuant to the collective bargaining agreement and
upheld plaintiff’s termination.
       {¶7}   In this action, plaintiff claims that, just prior to the motor vehicle accident
on July 9, 2009, she suffered a momentary loss of consciousness due to multiple
sclerosis and that the termination of her employment by defendant constitutes
discrimination in violation of R.C. 4112.02.1 Plaintiff submitted the deposition of Scott
Flynn, the current Chief of Police for CDC.        He testified that on July 9, 2009, he
responded to plaintiff’s accident and that he cited plaintiff for failure to control and for
operating a vehicle the wrong way on a one-way street. He also related that plaintiff
told him after the accident that she felt dizzy and that she did not have any recollection
of her van hitting the other vehicle.
        {¶8}    R.C. 4112.02 states, in part: “It shall be an unlawful discriminatory
practice: (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.”
        {¶9}    To establish a prima facie case of disability discrimination pursuant to R.C.
4112.02, plaintiff must demonstrate: “(1) that he or she was handicapped, (2) that an
adverse employment action was taken by an employer, at least in part, because the
individual was handicapped, and, (3) that the person, though handicapped, can safely
and substantially perform the essential functions of the job in question.” Columbus Civ.
Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 1998-Ohio-410.
        {¶10} Under Ohio law, an individual has a “disability” if he or she has “a physical
or mental impairment that substantially limits one or more major life activities, including
the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working; a record of a physical or mental impairment;
or being regarded as having a physical or mental impairment.” R.C. 4112.01(A)(13).
        {¶11} Although multiple sclerosis is identified as a physical or mental impairment
pursuant to R.C. 4112.01(A)(13) and R.C. 4112.01(A)(16)(a)(iii), “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. Consequently, plaintiff
must still demonstrate that her impairment substantially limits one or more major life
activities. Fitzmaurice v. Great Lakes Computer Corp., 155 Ohio App.3d 724, 2004-
Ohio-235, ¶12.
        {¶12} Under the former version of 29 C.F.R. 1630.2(j) which was in effect at all
times relevant, “substantially limits” means: “(i) Unable to perform a major life activity
that the average person in the general population can perform; or (ii) Significantly
restricted as to the condition, manner or duration under which an individual can perform
a particular major life activity as compared to the condition, manner, or duration under
which the average person in the general population can perform the same major life
activity.”

1
 At the oral hearing, plaintiff conceded that she cannot produce sufficient evidence to support her claims
for failure to provide a reasonable accommodation and wrongful discharge in violation of public policy.
       {¶13} Defendant asserts that plaintiff does not have a disability within the
meaning of the law. In support of its motion for summary judgment, defendant filed the
deposition of plaintiff. It states, in part:
       {¶14} “Q: Do you have multiple sclerosis?
       {¶15} “A: Yes.
       {¶16} “Q: When did you develop that?
       {¶17} “A: In 2005.
       {¶18} “Q: When was it diagnosed?
       {¶19} “A: In 2005. May of 2005.
       {¶20} “Q: Have you been told to the extent or the degree to which you have it?
       {¶21} “A: No. I just have - - I think they call it intermediate MS.
       {¶22} “Q: What does that mean?
       {¶23} “A: Just going through life. I really don’t have too many problems. I’m not
bedridden or anything like that.” (Winkfield Deposition, Page 51, Lines 2-15.)
       {¶24} Plaintiff testified that in 2005, when she was diagnosed with multiple
sclerosis, she experienced numbness on the right side of her body. However, she
acknowledged that she has had no other physical problems arising from her multiple
sclerosis after 2005, and that she had no other communications with human resources
regarding her condition.
       {¶25} Defendant next argues that the sole reason that plaintiff’s employment
was terminated was the damage she caused to state property, and that her multiple
sclerosis had nothing to do with the decision. “To prove discrimination, an employee
must demonstrate that the employer knew, or should have known, of the employee’s
handicap and resulting limitations.” Beauchamp v. CompuServe, Inc. (1998), 126 Ohio
App.3d 17, 25.
       {¶26} In support of her claim, plaintiff relies upon a letter written by her
physician, Dr. Racke, dated September 9, 2009.               In the letter, Dr. Racke informs
defendant that during a multiple sclerosis relapse, a person may have problems with
walking, weakness, imbalance, and visual disturbances. However, the letter was not
sent to defendant until after plaintiff’s employment was terminated.



Therefore, summary judgment is GRANTED in favor of defendant as to such claims.
       {¶27} There is no dispute that defendant knew that plaintiff suffered from
multiple sclerosis, as an impairment, when she filed for FMLA leave in 2005. However,
there is no evidence that defendant knew of any limitation plaintiff suffered as a result of
the multiple sclerosis prior to the termination of her employment.
       {¶28} According to plaintiff, she provided defendant with a note from her doctor
during a pre-disciplinary meeting. However, plaintiff has not produced this letter nor did
she relate the specific contents of the letter during her deposition. Plaintiff also admitted
in her deposition that she did not mention the July 9, 2009 incident to Dr. Racke when
she saw him at a regularly scheduled appointment in mid-August of 2009 even though
she knew, at that time, that CDC could remove her for such an incident.
       {¶29} In short, even if the court were to assume that plaintiff could establish that
she had a “disability” under R.C. 4112.02, plaintiff cannot meet the second element of a
prima facie case for disability discrimination. Absent evidence upon which it may be
inferred that defendant knew, or should have known, prior to her discharge, that plaintiff
experienced certain physical limitations, plaintiff cannot show that her employment was
terminated “at least, in part,” because was disabled.
       {¶30} Accordingly, defendant’s motion for summary judgment shall be granted
and judgment shall be rendered in favor of defendant.
                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us



KIMBERLY E. WINKFIELD

          Plaintiff

          v.

OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES

          Defendant
          Case No. 2010-08977

Judge Joseph T. Clark

JUDGMENT ENTRY

          {¶31} An oral hearing was conducted in this case upon defendant’s motion for
summary judgment.        For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:


Eric A. Walker                                Erica A. Probst
Assistant Attorney General                    88 West Mound Street
150 East Gay Street, 18th Floor               Columbus, Ohio 43215-5084
Columbus, Ohio 43215-3130

JSO/dms
Filed August 4, 2011
To S.C. reporter September 22, 2011
