[Cite as Johnson v. Cleveland City School Dist., 2011-Ohio-1917.]

                          [Vacated opinion. Please see 2011-Ohio-2778.]

          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 94214




                         SHARON JOHNSON, PH.D.

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                CLEVELAND CITY SCHOOL DIST., ET AL.
                                                           DEFENDANTS-APPELLEES



                                     JUDGMENT:
                               REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-684948

        BEFORE: Jones, J., Kilbane, A.J., and Cooney, J.
        RELEASED AND JOURNALIZED: April 21, 2011

ATTORNEYS FOR APPELLANT

Edward L. Gilbert
Tracee D. Hilton-Rorar
Edward L. Gilbert Co., LPA
One Cascade Plaza
Suite 825
Akron, Ohio 44308


ATTORNEYS FOR APPELLEES

Lewis W. Adkins, Jr.
Joseph W. Boatwright, IV
Gina A. Kuhlman
Roetzel & Andress, LPA
1375 East Ninth Street
One Cleveland Center, 9 Floor
                         ht




Cleveland, Ohio 44114




LARRY A. JONES, J.:

        {¶ 1} Plaintiff-appellant, Sharon Johnson, Ph.D., appeals the trial court’s judgment

granting summary judgment in favor of defendants-appellees, the Cleveland City School

District, Sharon McDonald, Donna Bowen, and Clinton Faulkner (collectively “appellees” or

the “district”).   We reverse and remand.
                                 I.     Procedural History and Facts

       A.    Procedural History

       {¶ 2} In May 2007, Johnson filed a complaint against the district in federal court.           In

that case, Johnson alleged that she was fired from her position with the district in violation of

Title I of the Americans With Disabilities Act of 1990 (“ADA”) and in violation of Chapter

4112 of the Ohio Revised Code.            Johnson also asserted claims for breach of contract and

intentional infliction of emotional distress.

       {¶ 3} The district court granted appellee’s motion for partial summary judgment on

the breach of contract claim.         After discovery, appellees filed another motion for summary

judgment on the remainder of the claims.         The district court granted the motion as it related

to the federal claims, but declined to “exercise pendant jurisdiction over the remaining state

claims.”    The district stated that “[n]othing in this Memorandum Opinion and Order should

be construed to prevent Dr. Johnson from re-filing her state claims in an appropriate Ohio

court to the extent such claims are permitted under Ohio law.”         Johnson appealed.

       {¶ 4} In February 2009, while her federal appeal was pending, Johnson filed this

action against the district alleging “multiple violations of 4112 of the Ohio Revised Code.”

She also asserted a claim for the intentional infliction of emotional distress.
                                                                                  1




       {¶ 5} In August 2009, the Sixth Circuit Court of Appeals held that the district court


        The district filed a motion for judgment on the pleadings relative to the intentional infliction
       1


of emotional distress claim, and the trial court granted the motion.
improperly limited the following claims because Johnson had exhausted the administrative

proceedings:    (1) failure to accommodate; (2) retaliatory denial of accommodations; and (3)

discriminatory discharge.   The Sixth Circuit   reversed and remanded in part.

       {¶ 6} In September 2009, defendants filed a motion for summary judgment in this

case, which Johnson opposed.       In October 2009, the trial court summarily granted the

district’s motion.

       {¶ 7} In February 2010, the federal district court granted appellees’ motion for

summary judgment.

       B.   Facts

       {¶ 8} Johnson began her employment as a school teacher with the district in 1989.

Approximately a year prior to her employment with the district, Johnson was involved in an

automobile accident and as a result was diagnosed with cervical myelopathy.      The condition

resembles the effects of a stroke or multiple sclerosis: if Johnson overexerts herself, her

breathing becomes labored, she feels faint, her arm will “curl up,” her legs become weak, and

her muscles become fatigued.

       {¶ 9} In 1993, Johnson’s conditioned worsened to the point where she had difficulty

walking, ascending stairs, and performing “activities of daily living.”       In August 2002,

Johnson requested a “special transfer” to an area of administration with a handicapped facility.

 Dr. Patrick Bray, an occupational medicine specialist, was retained by the district to evaluate
Johnson.

        {¶ 10} In a September 12, 2002 letter, Dr. Bray described Johnson’s case as “fairly

complex and unusual,” and opined that she suffered from a “disability covered by the

Americans With Disabilities Act (ADA).”                 Bray further opined that Johnson’s

“ADA-covered disability does pose a direct threat of harm” to her.    He concluded that:

        “The district may remove this threat with reasonable accommodations such as the
        following: “[(1)] no standing for more than one hour per day[;] [(2)] no continuous
        speaking[;] [(3)] alternate sitting, standing and walking[;] [(4)] minimal stairs[;] [and
        (5)] use of ambulatory aids such as a cane, and under extreme circumstances, an[
        ]electrical scooter as needed.”

        {¶ 11} Johnson’s transfer request was granted, and in 2004, the district assigned her to

Adlai      Stevenson   Elementary     School    under     Principal   Susan    Hawthorne-Clay.

Hawthorne-Clay gave the following responsibilities to Johnson: (1) assisting a special needs

teacher; (2) tutoring groups of eight to ten students; and (3) filling in on “whatever was

needed.”     Johnson was given the title “academic interventionist” while at Adlai Stevenson.

        {¶ 12} In the fall of 2005, Principal Hawthorne-Clay transferred to Robert H. Jamison

School and requested that Johnson transfer with her.      The district allowed the transfer, and

Johnson did grant writing, parent interventions, and supervision of the administrative office in

Hawthorne-Clay’s absence.

        {¶ 13} In the beginning of the 2006-2007 school year, appellee Sharon McDonald, a

district administrator, visited Robert H. Jamison School and met Johnson for the first time.
Johnson told McDonald that she held small reading groups and helped principal

Hawthorne-Clay with discipline at times.            According to Johnson, McDonald told her that she

would be returning to classroom teaching, and would be assigned to a classroom on the second

floor.           Johnson told McDonald of her medical restrictions, but McDonald insisted on the
         2




reassignment, despite the restrictions and the fact that the school’s elevator was

non-functional.

             {¶ 14} After her visit to the school, McDonald met with other administrators from the

district, specifically appellees Faulkner and Bowen.            They reviewed Johnson’s personnel file,

including the 2002 statement from Dr. Bray with the listed restrictions, and discussed the

restrictions and accommodations.

             {¶ 15} The district thereafter met with Johnson and her union representative.

Appellee Faulkner stated that he had reviewed Dr. Bray’s report and believed that Johnson

could work in a classroom.           Johnson said that she had a “classroom exemption.”       Appellee

Faulkner told Johnson that the district expected her to be a classroom teacher.

             {¶ 16} Johnson filed a union grievance.        As part of the resolution of the grievance,

Johnson was promised that she would be “provided support via an additional teacher and

grade level staff person.”           Further, the school’s elevator was supposed to be fixed and

Johnson was to have a key to the elevator.



             The class was being taught by a substitute teacher at the time.
             2
       {¶ 17} In a September 5, 2006 letter from Principal Hawthorne-Clay to Johnson,

Hawthorne-Clay informed Johnson that her assignment at Robert H. Jamison School had been

changed “to assume the open 8 grade English-language arts position, per Ms. Sharon
                                    ht




McDonald.”     Johnson reported to the English language arts class on September 7.

       {¶ 18} District administrators visited the class on September 8.     The substitute teacher

was in the front of the class, and Johnson was in the back of the room working with a small

group of students.    The administrators spoke to Johnson in the hall.       Johnson complained

about having to climb the stairs and the temperature of the classroom, i.e., it was too hot.

According to Johnson, McDonald told her, “[e]nough, you’re going to teach this classroom,”

and that the substitute teacher was going to be reassigned.    Johnson felt overwhelmed by heat

and stress and left that day; she did not return to the school until January 8, 2007.

       {¶ 19} In September 2006, Johnson filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) alleging a violation of her ADA rights.

       {¶ 20} In late October 2006, Johnson submitted to the district a leave of absence form

with a letter from a Dr. Laura Shoemaker, which stated that Johnson was under her care and

that she was unable to attend work “from September 8, 2006, until the resolution of her job

requirements in accordance with her ADA restrictions.”

       {¶ 21} In December 2006, the Civil Rights Commission issued a no probable cause

ruling on Johnson’s EEOC complaint.        The district thereafter denied Johnson’s request for
leave and informed her that she was to report to her classroom assignment at Robert H.

Jamison on January 8, 2007, which Johnson did.         Johnson testified that the second-floor

classroom was “sauna like,” and she was without assistance to escort her students up and

down the stairs.   She felt physically unable to perform, and left. Johnson remained off work

until February 8, 2007, and used accumulated sick time for her leave.

       {¶ 22} On January 9, 2007, the day after she left, Johnson requested a “fitness for

duty” examination.    Pursuant to the request, Johnson had another examination with Dr. Bray.

 In a February 2007 report, Dr. Bray opined as follows:

       “1. Dr. Johnson does presently suffer from a disability covered by the Americans
       With Disabilities Act (ADA). I want to say once again that this case is complex and
       unusual. However, I haven’t the slightest doubt that her disability is appropriately
       covered by the ADA.

       “2. This ADA-covered disability does pose a direct threat of harm primarily to Dr.
       Johnson.”

       {¶ 23} Bray concluded that Johnson could be reasonably accommodated with the same

restrictions he provided in his September 2002 report, with the addition of “[n]o work

environment with extreme heat, humidity, or cold temperatures; [and] [s]he should not be

required to verbally control resistant students that persists after an initial warning[.]”   The

doctor explained that the last restriction was a “refinement of my previous recommendation

that [Johnson] not engage in continuous speaking.”

       {¶ 24} According to Dr. Bray, Johnson’s “disability is permanent in nature.”      But he
noted that “her physical limitations tend to vary, [and] she is certainly capable of being

gainfully employed within the accommodations mentioned above.”
                                                                       3




       {¶ 25} In May 2007, Johnson and district officials met.             By this time, Johnson had

obtained a guidance license, and she brought documentation of that to the meeting and

expressed interest in a guidance counselor position.      She also brought documentation to show

that she could be placed as a reading specialist or an administrator.       Johnson testified that she

obtained her guidance license specifically as a means to resolve her restrictions.        During the

meeting, Johnson also assured the district officials that she could maintain discipline even

given her speaking restriction.

       {¶ 26} In a July 2007 letter to Johnson, the district informed her that it was “willing to

continue to engage in the interactive process with [her,]” but that her speaking restriction was

“problematic.”    The district concluded that the request for a speaking restriction was not

reasonable and that it was therefore unable to accommodate it.

       {¶ 27} In a July 2007 letter, dated the day after the district’s letter, Johnson reiterated




          Johnson also submitted the reports from two Cleveland Clinic doctors in opposition to the
       3


district’s summary judgment motion. A January 2007 report concluded that Johnson “suffers from a
disability covered by the Americans with Disabilities Act[, and that the disability] does pose direct
threat of harm” to her. The report also described the disability as “permanent in nature,” and
suggested the same restrictions as Dr. Bray’s February 2007 report, with the exception of the speaking
restriction.

       An April 27, 2007 report also described Johnson’s disability as “permanent,” and suggested
the same restrictions as Dr. Bray.
her ability to maintain discipline with her speaking restriction.      She further expressed her

interest in being a guidance counselor, and stated that she had applied for a guidance counselor

position in the district in the spring of 2007.

       {¶ 28} On Friday, August 17, 2007, appellee Bowen called Johnson and told her that

there were three open teaching positions.         Johnson expressed concern as to whether any of

the positions were consistent with her restrictions and reminded Bowen that she had applied

for a guidance counselor position.     However, according to Johnson, she accepted one of the

positions.

       {¶ 29} A short time later that same day, Bowen called Johnson again and told her that

she needed to provide that district with medical certification regarding her ability to work.

According to Johnson, Bowen told her that the position she had just accepted was outside of

her restrictions and so she needed certification that the restrictions had been removed.

According to the district, certification is required whenever an employee is returning from

leave and the request was the district’s standard procedure.

       {¶ 30} The district terminated Johnson in a letter dated August 21, 2007 (Tuesday).

The letter stated that Johnson “declined the position without speaking to [her] physician[,]”

and that it had no positions available to accommodate her restrictions.          Johnson denied

declining the position, and in fact, it was her understanding that Bowen was going to call her

on Monday, August 20, to discuss the situation further.        Bowen never called, and the next
communication Johnson received from the district was the termination letter.

       {¶ 31} In this appeal from the trial court’s judgment summarily granting the district’s

summary judgment motion, Johnson raises the following two assignments of error for our

review:

       “[I.] The trial court’s Judgment Entry granting summary judgment is insufficient as a
       matter of law.

       “[II.] The trial court erred when it granted summary judgment when appellant
       established a prima facie case pursuant to Chapter 4112 of the Revised Code and
       established the evidence viewed in the light most favorable to appellant demonstrated
       that genuine issues of fact remained to be litigated.”

                                     II.   Law and Analysis

       A.    Sufficiency of Trial Court’s Judgment

       {¶ 32} For her first assigned error, Johnson contends that the trial court’s judgment,

which summarily granted the district’s summary judgment motion without explanation, is

insufficient as a matter of law.   We disagree.

       {¶ 33} Providing a basis for summary judgment is helpful, but the failure to do so does

not constitute reversible error. Steel Valley Bank, N.A. v. Tuckosh, Harrison App. Nos. 04

HA 566 and 04 HA 567, 2004-Ohio-4907, ¶14, citing Scassa v. Dye, Carroll App. No. 02CA

779, 2003-Ohio-3480.      Our review of a judgment granting summary judgment is de novo

and, therefore, regardless of any reasons stated by the trial court for granting summary

judgment, we conduct an independent review of the record and law.       Thus, the trial court’s
judgment summarily granting summary judgment in favor of the district is sufficient as a

matter of law for our review.

       {¶ 34} Accordingly, the first assignment of error is overruled.

       B.   Res Judicata

       {¶ 35} The district contends that Johnson was barred from relitigating her claims in

state court because of the federal court findings.   We disagree.

       {¶ 36} Under the doctrine of res judicata, a valid final judgment rendered on the merits

bars all subsequent actions based upon any claim or issue arising out of the same transaction

or occurrence that was the subject matter of the previous action. Grava v. Parkman Twp., 73

Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226, syllabus.       In regard to the application of the

doctrine between state court and federal court, this court has held as follows:

       “It is well settled that when a judgment is rendered by a federal court acting under its
       federal question jurisdiction, the availability of a res judicata defense depends on the
       federal-law standard.” Powell v. Doyle (Oct. 8, 1998), Cuyahoga App. No. 72900,
       citing Apparel Art Intern., Inc. v. Amertex Ents. Ltd. (C.A.1, 1995), 48 F.3d 576; Kale
       v. Combined Ins. Co. of Am. (C.A.1, 1990), 924 F.2d 1161; Cemer v. Marathon Oil
       Co. (C.A.6, 1978), 583 F.2d 830.

       {¶ 37} In order for a claim to be res judicata under federal law, the new claim must

share three elements with the earlier action: (1) identity of the parties or their privies; (2)

identity of the causes of action; and (3) a final judgment on the merits. Powell, citing D &

K Properties Crystal Lake v. Mutual Life Ins. Co. of New York (C.A.7, 1997), 112 F.3d 257;

Barnett v. Stern (C.A.7, 1990), 909 F.2d 973; Kale, supra.
       {¶ 38} We find that there was no final judgment on the merits in the federal action as

to the state claims.   In Lakewood Congregation of Jehovah’s Witnesses, Inc. v. Lakewood

(1984), 20 Ohio App.3d 338, 486 N.E.2d 194, this court cited Harper Plastics, Inc. v. Amco

Chem. Corp. (C.A.7, 1981), 657 F.2d 939, in addressing the doctrine of res judicata vis-a-vis

actions in state and federal court.    In Harper Plastics, the Seventh Circuit Court of Appeals

held that where a plaintiff filed a federal suit alleging that the defendant violated a federal

statute, that plaintiff could not subsequently bring an action in state court alleging violation of

state contract laws.   The Seventh Circuit reasoned that both cases were based on the same

physical actions taken by the defendant, and that there was not a second cause of action

merely because recovery was sought under different laws.

       {¶ 39} The Seventh Circuit further held, however, that the plaintiff could have joined

the state claim in federal court, and that res judicata is not only a bar to litigation of matters

that were raised, but also to matters that should have been raised, in a prior proceeding.

       {¶ 40} In Lakewood Congregation of Jehovah’s Witnesses, Inc., the plaintiff filed an

action in state court against the defendant regarding the constitutionality of a zoning

ordinance, as applied under the United States Constitution.       While the case was still pending

in state court, the plaintiff filed an action in federal court. A trial was held in federal court, and

the constitutionality of the ordinance was upheld.        The plaintiff then sought to amend its

complaint in the state court action, so that it could delete all references to the United States
Constitution and substitute the name of the new building commissioner for the one previously

named.        The trial court denied the motion.

         {¶ 41} This court affirmed, but relying on Harper Plastics, stated the following:

         “Unless it is clear that the federal court would have declined as a matter of its
         discretion to exercise jurisdiction over the state claim, that state action is barred in
         subsequent suits. Restatement of Law 2d, Judgments (1982) 316, 87a, Illustration 1.
         The [plaintiff] has not provided proof that it brought the state claim to the federal
         court’s attention, nor has it shown that the federal court would have declined to
         exercise jurisdiction over the state claim.” Lakewood Congregation of Jehovah’s
         Witnesses, Inc. at 340.

         {¶ 42} Here, Johnson did assert her state claims in the federal action, and the federal

court did specifically decline to exercise jurisdiction over them.     In light of Harper Plastics

and Lakewood Congregation of Jehovah’s Witnesses, Inc., therefore, her claims were not

barred by the doctrine of res judicata.

         C.     Summary Judgment Standard

         {¶ 43} Appellate review of summary judgment is de novo, governed by the standard

set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712,

¶8.   Accordingly, we afford no deference to the trial court’s decision and independently

review the record to determine whether summary judgment is appropriate.                Hollins v.

Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶12.           Under Civ.R. 56(C),

summary judgment is proper when the moving party establishes that “(1) no genuine issue of

any material fact remains, (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

construing the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made.”          State ex rel.

Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶9,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.

       D.   Disability Discrimination

       {¶ 44} To succeed on her disability discrimination claim, Johnson had to show the

following: (1) that she was disabled; (2) that her employer was aware of the disability; and (3)

that she was an otherwise qualified individual with a disability in that she satisfied the

prerequisites for the position and could perform the essential functions of the job with or

without accommodation. Plantz v. Cincinnati, 149 Ohio App.3d 743, 2002-Ohio-5492, 778

N.E.2d 1073, ¶13.    Ohio’s handicap-discrimination law was modeled after the federal ADA

and,   therefore,   Ohio   courts   may    seek   guidance    when    interpreting    the   Ohio

handicap-discrimination statute from regulations and cases that interpret the ADA. Plantz at

id.

       {¶ 45} R.C. 4112.01(A)(13) defines disability as:

       “[1] 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; [2] a record of a
       physical or mental impairment; or [3] being regarded as having a physical or mental
       impairment.”
       {¶ 46} In its motion for summary judgment, the district contended that “[t]here is no

evidence whatsoever that any of the claimed ‘restrictions’ substantially limit one or more life

activities as required under the federal and state anti-discrimination statutes.”   We disagree.

Dr. Bray, who was the physician chosen by the district to examine Johnson, twice concluded

that Johnson’s case was “fairly complex and unusual,” she suffered from a “disability” under

the ADA, and her disability posed a “direct threat of harm” to her.

       {¶ 47} The district further contended in its summary judgment motion that “physician

statements asserting someone is ‘disabled’ does not determine whether, in fact, an individual is

disabled under the anti-discrimination laws.”    That may be true.     But such statements can

create a genuine issue of material fact.    As the district aptly notes, “the determination of

whether an impairment substantially limits one or more of an individual’s major life activities

is an individualized inquiry.”    District’s summary judgment motion, p. 18, citing Toyota

Motor Mfg., Kentucky, Inc. v. Williams (2002), 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d

615.

       {¶ 48} In addition to Dr. Bray’s conclusions, evidence exists from two other doctors

that Johnson is “disabled,” the “disability is permanent,” and the “disability poses a direct

threat of harm” to her.   Further, other evidence in the record also creates a genuine issue of

fact as to whether Johnson was disabled.      For example, Lona Howell, a human resources

manager for the district, testified that she “became satisfied that Dr. Johnson had an ADA
illness that required some accommodation.”       Howell deposition at 32.      On this record, we

find that a genuine issue of material fact exists as to whether Johnson was disabled.

       {¶ 49} The record is clear that the district was well aware of Johnson’s circumstance,

the second element of a failure to accommodate claim.           In regard to the third element,

whether she was a qualified individual with a disability,     the district contended that she was

not qualified because of the speaking restriction.   Other than its bare assertion, the district did

not submit any evidence that Johnson was unable to maintain classroom control because of her

speaking limitation.
                    4




       {¶ 50} In opposition to the district’s motion, Johnson presented evaluations from

various principals under whom she served, showing mostly “excellent” ratings.          Admittedly,

some of the evaluations did not account for “classroom atmosphere” or “classroom control”

because Johnson did not always serve as a classroom teacher.      But of the ten that did evaluate

those areas, she received “excellent” ratings    with three exceptions, in which she received

“good” ratings.   On this record, a genuine issue of material fact exists as to whether Johnson

was a qualified individual with a disability.

       {¶ 51} In light of the above, the trial court erred in granting the district’s summary

judgment motion on Johnson’s disability discrimination claim.



          The district seemed to rely on the doctors’ restrictions about Johnson’s speaking. Those
       4


restrictions in and of themselves, however, do not equate to Johnson being unable to control a
classroom or group of students.
       E.   Reasonable Accommodation

       {¶ 52} A plaintiff who has established that he is disabled for R.C. 4112.02 purposes

may further establish a discrimination claim by showing that the employer has declined to

make a reasonable accommodation to known disabilities if such accommodation would not

cause undue hardship on the employer. “‘The disabled individual bears the initial burden of

proposing an accommodation and showing that [the] accommodation is objectively

reasonable.’”   McDonald v. Ford Motor Co. (N.D.Ohio 2002), 208 F.Supp.2d 837, 842,

quoting Vande Zande v. State of Wisconsin Dept. of Admin. (C.A.7, 1995), 44 F.3d 538.

“Once a prima facie case of discrimination is established, the burden shifts to the employer to

show that it could not reasonably accommodate the employee without undue hardship in the

conduct of its business.    The reasonableness of an accommodation is determined on a

case-by-case basis.” Franks v. Natl. Lime & Stone Co., 138 Ohio App.3d 124, 131,

2000-Ohio-1880, 740 N.E.2d 694.        This court has held that “the ‘reasonableness’ of an

accommodation ordinarily presents a question of fact for the jury to decide.”          Smith v.

Dillard Dept. Stores, Inc. (2000), 139 Ohio App.3d 525, 534, 744 N.E.2d 1198; see, also,

Johnson v. SK Tech., Inc., Montgomery App. No. 23522, 2010-Ohio-3449, ¶87 (Donovan,

P.J., concurring in part and dissenting in part) (“Accommodation is a highly fact sensitive task,

generally not suitable for summary judgment resolution.”).

       {¶ 53} In an August 2002 letter from Johnson to the district, Johnson requested a
“special transfer” “due to medical reasons.”   She stated that she had cervical myelopathy and

explained the condition and her resulting limitations.      Further, Johnson was specific in

proposed accommodations.         The district contended that it reasonably accommodated

Johnson and that her “rejection” of the job offered to her in August 2007 foreclosed her claim.




       {¶ 54} Upon review of the record, we find a genuine issue of material fact exists as to

both whether the district reasonably accommodated Johnson and whether she rejected the job

offered to her in August 2007.   For example, the district maintains that Johnson never applied

for a guidance counselor position.   Johnson testified that when she met with district officials

in May 2007, she specifically brought documentation of her recently obtained guidance license

and told the officials that a guidance counselor position, among others she suggested, would

accommodate her disability.

       {¶ 55} Further, Johnson specifically denied that she rejected the job offered to her in

August 2007.    Rather, according to Johnson, she accepted the position and at the conclusion

of her conversation with appellee Bowen relative to the job, Bowen told her that she (Bowen)

was going to call Johnson in a couple of days to further discuss the situation.      In fact, the

district’s own documentation tends to support Johnson’s contention.                 Specifically,

“conversation notes” summarizing the conversation between Bowen and Johnson that were

prepared by a Sonya Marshall of the district’s human resources department stated:
       “Dr. Johnson replied that she was not refusing [the assignment] and would accept the
       position at Gracemount but would discuss the matter about the violation at a later date.
        Ms. Bowen[ ] proceeded to give Dr. Johnson a contact number for the Principal at
       Gracemount.”

       {¶ 56} In light of the above, the trial court erred in granting the district’s summary

judgment motion on Johnson’s failure to accommodate claim.

       F.     Retaliation Claim

       {¶ 57} To establish a claim of retaliation under R.C. 4112.02(I), Johnson had to show

that: (1) she engaged in a protected activity; (2) her employer knew of her participation in the

protected activity; (3) she suffered an adverse employment action; and (4) a causal link existed

between the protected activity and the adverse action. Wille v. Hunkar Laboratories, Inc.

(1998), 132 Ohio App.3d 92, 107-108, 724 N.E.2d 492.

       {¶ 58} The record demonstrates that Johnson engaged in a protected activity, that is,
                                                                                          5




requesting a reasonable accommodation, and the district knew of her participation in the

protected activity.   Further, she suffered an adverse employment action, i.e., termination.

We find that a genuine issue of material fact remains as to whether a causal link existed

between the protected activity and the adverse action.   In particular, in its termination letter to

Johnson, the district stated that Johnson “declined the position without speaking to [her]

physician.”    The letter further stated that her employment with the district was terminated



          Filing an OCRC claim is also a protected activity. See Carney v. Cleveland Hts.-Univ.
       5


Hts. City School Dist. (2001), 143 Ohio App.3d 415, 428, 758 N.E.2d 234.
“[i]n light of [her] rejection of the positions offered to [her.]” As discussed, we find that a

genuine issue remains as to whether Johnson rejected a position with the district.        As such,

the trial court erred in granting the district’s summary judgment motion on Johnson’s

retaliation claim.

                                          III.   Conclusion

          {¶ 59} The trial court’s judgment was sufficient for our review.            Upon review,

genuine issues of material fact exist on Johnson’s discrimination claims under R.C. 4112.02.

The trial court therefore erred in granting summary judgment in favor of the district on the

claims.

          Judgment reversed; case remanded for further proceedings consistent with this opinion.

          It is ordered that appellant recover of appellees her 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, JUDGE

MARY EILEEN KILBANE, A.J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS
WITH SEPARATE OPINION


COLLEEN CONWAY COONEY, J., DISSENTING:

       I respectfully dissent. I would affirm the grant of summary judgment.

       This case began in federal court when Johnson filed her complaint in May 2007

alleging disability discrimination (failure to accommodate and retaliatory discharge) in

violation of the ADA and R.C. Chapter 4112.02 et seq., breach of contract, and intentional

infliction of emotional distress.   The district court granted summary judgment on all federal

claims and dismissed the state claims without prejudice, and Johnson appealed.        The U.S.

Sixth Circuit Court of Appeals affirmed in part and reversed in part.   It affirmed the district

court’s grant of summary judgment on Johnson’s failure to accommodate and retaliatory

termination claims.    However, in addition to dismissing those claims, the Sixth Circuit found

that these claims were properly exhausted prior to being raised in the federal court complaint.

The Sixth Circuit also found that a claim for retaliatory denial of accommodations reasonably

arose out of the allegations made in Johnson’s second Ohio Civil Rights Commission

(“OCRC”)/EEOC charge even though such a claim was not expressly included in the charge

and was not referenced in the fact section of her charge.   These three claims were remanded

to the district court for further consideration.

       During the pendency of the appeal, Johnson filed suit in the Cuyahoga County

Common Pleas Court alleging violations of Ohio’s anti-discrimination law (R.C. 4112.02 et
seq.) based on the same facts and issues alleged in the prior federal action.         On October 27,

2009, the common pleas court granted CCSD’s motion for summary judgment, dismissing all

of Johnson’s state law claims.      Meanwhile, the district court, on remand, granted summary

judgment in favor of CCSD on all of Johnson’s discrimination claims.

                                Collateral Estoppel and Res Judicata

       In the second assignment of error, Johnson argues the trial court erred in granting

summary judgment because Johnson established a prima facie case of failure to accommodate

her disability, retaliatory discharge, and discriminatory discharge.      CCSD argues, in response,

that because these same issues were conclusively determined in the federal district court case,

Johnson’s claims here are barred by the doctrines of collateral estoppel and res judicata.             I

find merit in CCSD’s argument.

       This court addressed this issue in Smith v. Bd. of Cuyahoga Cty. Bd. of Commrs.,

Cuyahoga App. No. 86482, 2006-Ohio-1073.             In Smith, the plaintiff filed a complaint in the
                                                 6




common pleas court alleging discrimination based on age and disability.            Smith had already

filed suit in federal court alleging disability discrimination. The county moved to strike any



         See, also, Ferrante v. Peters, Cuyahoga App. No. 90427, 2008-Ohio-3799, in which this court
       6


held that the plaintiff’s claims were barred by collateral estoppel because he had previously litigated
the same claims in federal court. See, also, Fort Frye Teachers Assn., OEA/NEA v. State Emp.
Relations Bd., 81 Ohio St.3d 392, 1998-Ohio-435, 692 N.E.2d 140 (Supreme Court held that
collateral estoppel precluded school board from relitigating the issue of its motivation for terminating
a teacher through state court review of unfair labor practice proceedings where federal court
previously found that the school board violated the teacher’s civil rights.).
reference to disability discrimination in the state court case, arguing that Smith’s disability

discrimination claim was barred by res judicata.   This court agreed explaining:




“Under the doctrine of res judicata, a valid, final judgment rendered upon the merits bars all
      subsequent actions based upon any claim or issue arising out of the same transaction or
      occurrence that was the subject matter of a previous action. Grava v. Parkman Twp.,
      73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226. A ‘transaction’ is a
      ‘common nucleus of operative facts.’ Id. quoting 1 Restatement of the Law 2d,
      Judgments (1982), Section 24, Comment b.

“Further, it does not matter that the court which previously decided the claim is of a different
       jurisdiction than the court currently deciding the claim. We have said that, to the extent
       to which a federal court judgment operates as res judicata in the federal court, it also
       operates as res judicata in Ohio state courts. Powell v. Doyle (Oct. 8, 1998), Cuyahoga
       App. No. 72900, citing Horne v. Woolever (1959), 170 Ohio St. 178, 163 N.E.2d 378.
       Further, the Ohio Supreme Court has held that a claim litigated to finality in the United
       States District Court cannot be relitigated in a state court when the state claim involves
       the identical subject matter previously litigated in federal court, and there is presently
       no issue of party identity or privity. Rogers v. City of Whitehall (1986), 25 Ohio
       St.3d 67, 494 N.E.2d 1387. Therefore, if Smith’s claims were already decided in
       federal court, he is barred from raising the same claims in state court.

“In order for a claim to be barred on the grounds of res judicata, the new claim must share
       three elements with the earlier action: (1) identity of the parties or their privies; (2)
       identity of the causes of action; and (3) a final judgment on the merits. Omlin v.
       Kaufmann & Cumberland Co., L.P.A., Cuyahoga App. No. 82248, 2003-Ohio-4069,
       citing, Horne, supra.”

       In the instant case, both the parties and the claims are identical to those in the federal

court case.    Therefore, Johnson’s claims are barred by the doctrine of res judicata, and the

trial court’s grant of summary judgment for CCSD should be affirmed.       The federal court did

a thorough analysis, as follows:
                                   Failure to Accommodate

       With respect to the failure to provide reasonable accommodation claim, the Sixth

Circuit Court of Appeals determined:

“The School District therefore provided Johnson with a reasonable accommodation in
     response to the only accommodation requests before January 11, 2007 that were based
     on Johnson’s disability. Accordingly, we hold that the district did not err in granting
     summary judgment to the School District on Johnson’s failure to accommodate claim
     based on events before January 11, 2007.”

       With respect to the retaliatory termination claim, the Sixth Circuit Court

of Appeals held:

“The district court found that there was no causal connection between Johnson’s protected
      activity and her termination. We agree. In order to establish causation, ‘a plaintiff
      must produce sufficient evidence from which an inference could be drawn that the
      adverse action would not have been taken had the plaintiff not’ engaged in protected
      activity. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6 Cir. 2000). In rare
                                                                         ht


      circumstances, temporal proximity may be enough to establish an inference of
      causation. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6 Cir. 2008).
                                                                                    ht


      However, ‘where some time elapses between when the employer learns of a protected
      activity and the subsequent adverse employment action, the employee must couple
      temporal proximity with other evidence of retaliatory conduct to establish causality.’
      Id. The burden of establishing causation is not onerous, but it does rest on the
      plaintiff. Nguyen, 229 F.3d at 563.

“Over a year passed between Johnson’s first OCRC charge and her termination, and three
      months had passed between the filing of this lawsuit and her termination. Standing
      alone, neither act is sufficiently close in time to Johnson’s termination to warrant an
      inference of causation. See Mickey, 516 F.3d at 525. As there is no other evidence
      that links her termination to her OCRC charge or to this lawsuit, Johnson has not
       established a causal connection for her prima facie case.”

       On remand, the district court found:

“This Court has already dismissed all claims for failure to accommodate prior to January 11,
       2007, and the Court of Appeals has affirmed this dismissal. In doing so, both this
       Court, and the Sixth Circuit noted that Dr. Johnson made no showing that her disability
       required, or that she requested, accommodation freeing her from extreme temperatures
       and humidity, assigning her to teach only small classes, or hiring her as a counselor,
       prior to January 11, 2007. Although she did present the issue of climate control as a
       medical restriction via doctors[’] letters submitted after January 11, 2007, there is no
       evidence that any doctor has ever indicated that Dr. Johnson could not teach a full class
       provided her other restrictions were met. There is absolutely no evidence to show that
       Plaintiff’s disability required an accommodation assigning her to teach only small
       groups of students, or assigning her to a position as a school counselor; this eliminates
       any claims based on the accommodations set forth in h-I, above.[ ]
                                                                           7




“Dr. Johnson provides no evidence whatsoever that she was denied accommodations for her
       standing, sitting, walking, use of ambulatory aids, or continuous speaking restrictions.
       She also fails to provide any evidence that she was required, by virtue of her job
       requirements, to engage in more than ‘minimal stair[s]’ climbing. * * * [T]here is no
       evidence to suggest that she was required to use the stairs more than twice a day in
       order to fulfill her obligations of her teaching assignment during that time period, or
       that she was or would have been required to use stairs more frequently had she
       returned to work in her classroom after January 11, 2007.

“There is also no evidence, that had she returned to work after submitting doctors’ letters
      establishing that heat and humidity were a medical issue for her, related to her
      disability, that she would have been asked to teach in a classroom that was not climate
      controlled (or on the second floor), thereby requiring her to use the stairs more than
      twice a day in order to satisfy other conditions of her medical accommodations. This
      eliminates any claims based on the allegedly required accommodations set forth in b-e,
      and g above * * *.
             8




           In her complaint, Johnson alleges a list of accommodations should have been made.
       7


Claims listed in h and I include providing Johnson with a position as a small group teacher or as a
school counselor.

           Accommodations b-e and g were for: (b) no standing for more than one hour per day; (c)
       8
“Although Dr. Johnson testified that she would have returned to work as soon as Defendants
      fixed the temperature controls in her classroom, or offered her another classroom with
      a working thermostat, there is absolutely no evidence that as of January 12, 2007, the
      temperature controls in the classroom to which Dr. Johnson was assigned were not in
      working condition; nor is there any actual evidence that Dr. Johnson asked anyone in
      authority to address the temperature and climate control issues in order to
      accommodate her disability after her medical letters were updated to include a
      restriction against high heat and humidity. There is also no evidence that Dr. Johnson
      checked with anyone in authority at any time after January 11, 2007 to see if those
      issues had been or could be resolved.
“In August of 2007, after taking an extended leave of absence, utilizing her sick time and
      being paid in full for the duration, Plaintiff was offered three different teaching
      positions, at least one of which was in a new, air-conditioned building with an elevator.
        Plaintiff believed that because these positions were in the classroom, they were not in
      line with her ADA restrictions. (Johnson Depo. Pg. 57). Rather than state a
      preference for any of the open positions, Dr. Johnson told Ms. Bowen that she wanted
      a counselor’s position. There was no indication by either Plaintiff or Defendants that
      any of these classroom assignments would not satisfy Dr. Johnson’s need for a climate
      controlled room.

“In short, there is absolutely no evidence that Dr. Johnson was denied the
      option/accommodation of working in a climate controlled classroom after January 11,
      2007. Any failure to accommodate claim based on this proposed accommodation
      must, therefore, be dismissed for lack of any evidence in support of the claim.”
      (Original footnotes omitted.)

       With respect to the accommodation excusing her from verbally controlling resistive

students, the district court explained that “no reasonable person could take the stand that the

ability to control, manage and/or discipline students is not an essential function of a teacher,

tutor, or counselor.”   The district court further found that “in so far as Dr. Johnson’s doctors


alternate sitting, standing: (d) minimal stair climbing; (e) ambulatory aids such as cane or scooter in
extreme circumstances; and (g) an aide assignment to escort her students up and down stairs or to
otherwise relieve her with regard to standing, walking, and voice-strain.
agreed that she is incapable of addressing this essential function due to her disability and

would need an accommodation excusing her from such duties, she is not qualified to perform

the function of teacher or counselor with or without ‘reasonable’ accommodation.”

Accordingly, the district court concluded:

“The accommodations Dr. Johnson has proposed to deal with this restriction: reducing her
      class size, allowing her to work one-on-one in an interventionist position (which does
      not exist in the district), or giving her a job as a counselor, are not reasonable
      accommodations directed at this aspect of her disability, because in any of these
      situations, a teacher/counselor will, as a natural result and requirement of their position,
      be required to verbally control resistive behavior in children. Employing a teacher
      who is admittedly incapable of maintaining control of her students verbally without
      violating her own ADA restrictions would create an unsafe environment for the teacher
      and for the students. This is true whether the employee was teaching a full class, a
      reduced class, or even counseling an individual student. Being able to verbally
      maintain control of students is an essential element of any position that deals directly
      with children, therefore, the proposed accommodations suggested by Dr. Johnson are
      not reasonable accommodations for her disability. Thus, the claim for failure to
      accommodate on that basis must be dismissed.”

       Thus, the district court heard all the same arguments regarding Johnson’s failure to

accommodate claim and dismissed the claim on the merits.           Therefore, this claim is now

barred by res judicata. Having found that the CCSD accommodated Johnson’s disability, there

can be no retaliatory denial of

accommodation.

                                   Discriminatory Discharge

       With respect to Johnson’s discriminatory discharge claim, Johnson claims CCSD fired

her because of her disability.     To establish a prima facie case of disability related to
discriminatory discharge, a plaintiff must show: (1) that she is disabled; (2) that she was

otherwise qualified for the position; (3) that she suffered an adverse action; (4) that her

employer knew or had reason to know of her disability; and (5) she was replaced or the job

remained open.

       The district court found that because one of her restrictions prohibited Johnson from

verbally controlling students, she was not qualified for her position, with or without a

reasonable accommodation.      Accordingly, the district court found that Johnson “does not

satisfy the qualification element of a claim for discriminatory discharge, and her claim must be

dismissed.”

       Accordingly, I would affirm the grant of summary judgment for CCSD because

Johnson’s claims are barred by res judicata.
