[Cite as Pilato v. Nordonia Hills City Schools Bd. of Edn., 2019-Ohio-3085.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

PATRICIA PILATO                                             C.A. No.           29243

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
BOARD OF EDUCATION OF THE                                   COURT OF COMMON PLEAS
NORDONIA HILLS CITY SCHOOL                                  COUNTY OF SUMMIT, OHIO
DISTRICT, ET AL.                                            CASE No.   CV-2017-12-5287

        Appellees


                                 DECISION AND JOURNAL ENTRY

Dated: July 31, 2019



        HENSAL, Judge.

        {¶1}     Patricia Pilato appeals from the decision of the Summit County Court of Common

Pleas, granting summary judgment in favor of the Board of Education of the Nordonia Hills City

Schools and the business director for the school district, Matt Gaugler. For the reasons that

follow, this Court affirms.

                                                       I.

        {¶2}     Ms. Pilato worked in the cafeteria at Nordonia High School for over 20 years,

eventually becoming the manager. In this position, Ms. Pilato was a member of the Ohio

Association of Public School Employees union.                 Throughout her employment, Ms. Pilato

received positive performance evaluations and, up until the facts giving rise to this case, had

never received disciplinary action. Relevantly, part of Ms. Pilato’s job responsibilities included

ordering food from Gordon Food Service (“GFS”). To do this, Ms. Pilato would log on to the
                                                  2


GFS website with her own username and password. Other than her immediate supervisor, Sue

Petonic (who had her own username and password), no one else at the high school had access to

GFS’s online ordering system.

       {¶3}      In May 2017, Ms. Pilato requested time off to have knee replacement surgery,

which would require her to be off work during the last two weeks of the school year. While Ms.

Pilato was on leave, a GFS order that Ms. Petonic placed did not arrive. After contacting GFS,

Ms. Petonic learned that someone using Ms. Pilato’s username and password on a non-school

computer had cancelled the order. Although Ms. Pilato denied cancelling the order, Ms. Petonic

and Mr. Gaugler did not believe her, in part because her “story changed multiple times[.]” Ms.

Petonic also learned that, while Ms. Pilato was on leave, Ms. Pilato was logging into the online

payroll system and correcting other employees’ time. According to Ms. Pilato, Ms. Petonic

instructed her to continue working while on leave. According to Ms. Petonic, she instructed Ms.

Pilato not to work while on leave. Further, during her investigation of the cancelled food order,

Ms. Petonic spoke with other cafeteria employees who alleged that Ms. Pilato had bullied and

harassed them.

       {¶4}      Mr. Gaugler ultimately decided that Ms. Pilato should be removed from her

position as manager, and that – given the allegations of bullying – she should not return to work

at the high school. He, therefore, provided Ms. Pilato with three options: (1) complete an

Employee Assistance Program and take a non-management cafeteria position at one of the other

schools within the district; (2) resign, thereby allowing her to retain the district’s contributions to

her retirement benefits; or (3) be terminated for insubordination. After speaking with a union

representative, Ms. Pilato resigned.
                                                3


       {¶5}     Ms. Pilato then sued the school district and Mr. Gaugler (collectively,

“Defendants”), asserting three causes of action against them: (1) disparate-impact disability

discrimination; (2) disability discrimination for failure to provide reasonable accommodation;

and (3) retaliation. She also asserted a claim for aiding and abetting discrimination against Mr.

Gaugler only.

       {¶6}     After a period of discovery, Defendants moved for summary judgment on all of

Ms. Pilato’s claims. In doing so, they argued that Ms. Pilato could not establish a prima facie

case of disability discrimination because she was not disabled, never requested an

accommodation, and did not suffer an adverse employment action because she voluntarily

resigned. Defendants further argued that, even if Ms. Pilato could establish a prima facie case,

they had a legitimate, non-discriminatory reason for their actions: Ms. Pilato cancelled the GFS

food order, requiring Ms. Petonic to go to the physical GFS store to buy the necessary food

items, which they “needed * * * immediately.”

       {¶7}     Ms. Pilato responded in opposition. She argued that she was disabled because she

had knee pain prior to her knee replacement surgery, which required her to wear a knee brace.

Without the knee brace, she asserted, she would not have been able to work. She also argued

that she was disabled during her recovery from surgery because she could not walk without the

assistance of a walker or cane, and that – even when she could walk unassisted several weeks

after her surgery – she did so slowly and with a limp. Regarding an accommodation, Ms. Pilato

argued that she requested an accommodation by virtue of her request for leave while recovering

from surgery, and that she was denied a reasonable accommodation because Ms. Petonic

instructed her to continue working while on leave. She further argued that she suffered an
                                                4


adverse employment action because she faced a demotion, and was constructively discharged by

being forced to resign.

       {¶8}    With respect to Defendants’ assertion that they fired her due to the cancelled GFS

order, Ms. Pilato maintained that she did not cancel the order, and asserted that Ms. Petonic “had

motivation to conceal the fact that she told [her] to continue working while on disability leave

and therefore concoct alternative reasons for why [she] would be working while on leave.” She

also argued that the cancelled order did not result in any harm because Ms. Petonic was able to

go to the physical GFS store and purchase the necessary food items to serve that day. She

further argued that the harsh punishment was not justified given her history of exemplary

performance.    She, therefore, concluded that “it would seem as if something other than a

legitimate business reason motivated the employment actions taken against her.”

       {¶9}    The trial court granted summary judgment in favor of Defendants, holding that

Ms. Pilato was not disabled as defined under Revised Code Section 4112.01(A)(13), and that no

evidence indicated that Defendants regarded her as such.        It then made several alternative

holdings, including that Ms. Pilato: (1) did not suffer an adverse employment action because she

voluntarily resigned; (2) never requested an accommodation (and even if her request for leave to

undergo knee surgery qualified as a request for an accommodation, she was granted leave); and

(3) failed to meet her burden of demonstrating that Defendants’ actions were a pretext for

disability discrimination.   The trial court further held that, since Ms. Pilato’s disability-

discrimination claims failed, her claim against Mr. Gaugler for aiding and abetting likewise

failed. She now appeals that decision, raising five assignments of error for our review. To

facilitate our review, we have combined Ms. Pilato’s assignments of error.
                            5


                            II.

                  ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIMS OF
DISABILITY DISCRIMINATION FOR FAILURE TO PROVIDE
REASONABLE ACCOMMODATION AND FOR RETALIATION WHEN IT
HELD THAT PILATO WAS NOT DISABLED.

                  ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF
DISABILITY DISCRIMINATION FOR FAILURE TO PROVIDE A
REASONABLE ACCOMMODATION WHEN IT HELD THAT PILATO
FAILED TO REQUEST A REASONABLE ACCOMMODATION AND/OR
THAT THE DISTRICT AND GAUGLER PROVIDED THE REQUESTED
REASONABLE ACCOMMODATION.

                 ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF
DISABILITY DISCRIMINATION – RETALIATION WHEN IT HELD THAT
PILATO SUFFERED NO ADVERSE EMPLOYMENT ACTION.

                 ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF
DISABILITY DISCRIMINATION – RETALIATION WHEN IT HELD THAT
PILATO FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT AS
TO WHETHER THE REASONS FOR HER FORCED RESIGNATION WERE
PRETEXT FOR DISCRIMINATION.

                 ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF GAUGLER ON PILATO’S CLAIM FOR AIDING AND
ABETTING DISCRIMINATION BECAUSE THE CLAIMS OF DISABILITY
DISCRIMINATION FOR FAILURE TO PROVIDE REASONABLE
ACCOMMODATION AND RETALIATION DO NOT FAIL AS A MATTER
OF LAW.
                                                   6


          {¶10} In her assignments of error, Ms. Pilato argues that the trial court erred by granting

summary judgment in favor of Defendants, determining that she: (1) was not disabled as defined

under Section 4112.01(A)(13); (2) was not denied a reasonable accommodation; (3) did not

suffer an adverse employment action; and (4) did not demonstrate that a genuine issue of

material fact remained as to whether Defendants’ proffered legitimate, nondiscriminatory reason

for their action was a pretext for discrimination. Ms. Pilato also argues that, because the trial

court granted summary judgment to Mr. Gaugler on the aiding-and-abetting claim based upon its

determination that her disability-discrimination claims failed, its reasoning was erroneous, and

its decision must be reversed.

          {¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is

proper if:

          (1) No genuine issue as to any material fact remains to be litigated; (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 viewing
          such evidence most strongly in favor of the party against whom the motion for
          summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

          {¶12} The party moving for summary judgment bears the initial burden of

demonstrating the absence of genuine issues of material facts concerning the essential elements

of the non-moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically,

the moving party must support the motion by pointing to some evidence in the record of the type

listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then the

non-moving party has the reciprocal burden to demonstrate a genuine issue for trial remains. Id.

at 293.      The non-moving party may not rest upon the mere allegations or denials in her
                                                7


pleadings, but must point to or submit evidence of the type specified in Civil Rule 56(C). Id.;

Civ.R. 56(E).

       {¶13} To establish a prima facie case of disability discrimination, a plaintiff must prove

that she: (1) was disabled; (2) suffered an adverse employment action based, at least in part, on

that disability; and (3) could safely and substantially perform the essential functions of the job.

See Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571 (1998). If the plaintiff

establishes a prima facie case, the burden shifts to the employer to produce evidence of a

legitimate, nondiscriminatory reason for its action. Tripp v. Beverly Ents.–Ohio, Inc., 9th Dist.

Summit No. 21506, 2003-Ohio-6821, ¶ 28. “The employer’s burden regarding the legitimate[,]

nondiscriminat[ory] rationale is one of production only.” Manofsky v. Goodyear Tire & Rubber

Co., 69 Ohio App.3d 663, 667 (9th Dist.1990). Then, the burden shifts back to the employee to

demonstrate that the proffered reason is a pretext for discrimination. Tripp at ¶ 28. Because

other issues are dispositive of this appeal, we will assume – without deciding – that Ms. Pilato

was disabled, and that she suffered an adverse employment action. Further, we note that there

was no dispute below that Ms. Pilato could safely and substantially perform the essential

functions of her job.

       {¶14} Regarding a claim for failure to accommodate:

       a prima facie case involves a showing that: (1) she is disabled within the meaning
       of the Act; (2) she is otherwise qualified for the position (with or without
       reasonable accommodation); (3) her employer knew or had reason to know about
       her disability; (4) she requested an accommodation; and (5) the employer failed to
       provide the necessary accommodation. The burden is placed on the plaintiff to
       propose an accommodation that is objectively reasonable.

Stewart v. Bear Mgt., Inc., 5th Dist. Stark No. 2017CA00025, 2017-Ohio-7895, ¶ 21, quoting

Barber v. Chestnut Land Co., 7th Dist. Mahoning No. 15 MA 39, 2016-Ohio-2926, ¶ 72.
                                                 8


       {¶15} Relevantly, “[a]n employer may obtain summary judgment in a discrimination

case by either demonstrating that the plaintiff’s proffered evidence fails to establish a prima facie

case, or by presenting a legitimate, nondiscriminatory explanation for the adverse employment

action about which the plaintiff fails to create a factual dispute that the explanation is a pretext

for discrimination.” Dunn v. GOJO Industries, 9th Dist. Summit No. 28392, 2017-Ohio-7230, ¶

13, quoting Williams v. Time Warner Cable, 9th Dist. Wayne No. 18663, 1998 WL 332937, *2

(June 24, 1998). Here, Ms. Pilato argues that Defendants discriminated against her by forcing

her to resign, and by failing to provide a reasonable accommodation. We will address her

reasonable-accommodation argument first.

       {¶16} As previously noted, the trial court determined that Ms. Pilato never requested an

accommodation. It further determined that, if her request for leave to undergo knee surgery

qualifies as a request for an accommodation, Defendants granted that request. On appeal, Ms.

Pilato argues that her request for leave was a request for an accommodation, and that Defendants

effectively denied it by requiring her to work, and by requiring her to address the cancelled-food-

order issue while on leave. Assuming without deciding that her request for leave qualifies as a

request for an accommodation, we agree with the trial court that no genuine issue of material fact

remained regarding whether Ms. Pilato received that accommodation.

       {¶17} Ms. Pilato testified that she met with Ms. Petonic the Friday before her surgery

and told her she would need the last 10 days of the school year off work to undergo knee

replacement surgery. According to Ms. Pilato, Ms. Petonic advised her to use her sick leave,

which she did. In the same meeting, Ms. Pilato and Ms. Petonic discussed ideas for the next

school year, including tentative menus and ways to increase participation in the high school’s

lunch program. The following Monday (the day before Ms. Pilato’s surgery), Ms. Petonic
                                                 9


wished Ms. Pilato “[g]ood luck[,]” and Ms. Pilato indicated that they would talk sometime after

her surgery.

       {¶18} While Ms. Pilato testified at her deposition that Ms. Petonic instructed her to

continue working while on leave (an assertion that Ms. Petonic denied), the record reveals that

Ms. Pilato continued to work on her own accord. For example, the record includes emails and

text messages authored by Ms. Pilato, indicating that she “was never told by [Ms. Petonic] or

anyone else not to do [her] job[,]” that she “just assumed” she would continue working, and that

she “did not think okaying times [in the online payroll system] was that big of a deal.” She also

indicated that she “d[idn’t] have a problem helping * * * if needed,” but acknowledged that she

was specifically told not to submit a GFS order while on leave because Ms. Petonic and another

cafeteria employee were “taking care of” it and “had it covered.”

       {¶19} While Ms. Pilato’s deposition testimony contradicted her other statements

contained in the record, it did not create a “genuine issue” of material fact, that is, one that

presented “a sufficient disagreement to require submission to a jury[.]” Turner v. Turner, 67

Ohio St.3d 337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252

(1986). Rather, the evidence here was “so one-sided that [Defendants] must prevail as a matter

of law[.]” Id., quoting Anderson at 252; see Deutsche Bank Natl. Trust Co. v. Doucet, 10th Dist.

Franklin No. 07AP-453, 2008-Ohio-589, ¶ 7 (describing a “genuine issue” as a “substantial or

real issue of fact” that “can be maintained by substantial evidence.”); Privett v. QSL-Milford,

L.L.C., 12th Dist. Clermont No. CA2013-04-025, 2013-Ohio-4129, ¶ 9 (“Not all disputes of fact

create a genuine issue. Instead, a dispute of fact can be considered ‘genuine’ if it is supported by

substantial evidence that exceeds the allegations in the complaint.”). Further, to the extent that

Ms. Pilato asserts that Defendants denied her request for an accommodation because they
                                                10


required her to address the cancelled-food-order issue while on leave, she did not raise that issue

below, and cannot do so for the first time on appeal. Miller v. Miller, 9th Dist. Summit No.

21770, 2004-Ohio-1989, ¶ 14.

       {¶20} Regarding her claim for retaliation, after Defendants proffered a legitimate,

nondiscriminatory reason for its actions (i.e., the cancelled food order), Ms. Pilato had the

burden of demonstrating that the proffered reason was a pretext for discrimination.            “To

demonstrate pretext, ‘the plaintiff must show one of the following: (1) that the proffered reasons

had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse

employment action, or (3) that the employer’s reasons were insufficient to motivate the adverse

employment action.’” Dunn, 2017-Ohio-7230, at ¶ 15, quoting Chiancone v. City of Akron, 9th

Dist. Summit No. 26596, 2014-Ohio-1500, ¶ 18. Ms. Pilato failed to meet this burden.

       {¶21} In her response to Defendants’ motion for summary judgment, Ms. Pilato asserted

that she did not cancel the GFS order, and that – even if she did – the lack of resulting harm,

coupled with her exemplary work history, did not justify her forced resignation. She further

asserted that Ms. Petonic “had motivation to conceal the fact that she told [her] to continue

working while on disability leave and therefore to concoct alternative reasons for why [she]

would be working while on leave.” She concluded that “it would seem as if something other

than a legitimate business reason motivated the employment actions taken against her.”

       {¶22} Despite her denial, the record contains no genuine issue of material fact as to

whether Ms. Pilato cancelled the GFS order: she admitted to being logged onto the GFS website

on the night the order was cancelled, and acknowledged that no one else knew her login

credentials. Further, Defendants presented evidence from GFS, which indicated that someone

using Ms. Pilato’s login credentials cancelled the food order. Again, the evidence presented was
                                                11


so one-sided that no “genuine issue” existed. See Turner, 67 Ohio St.3d 337, at 340; Interstate

Properties v. Prasanna, Inc., 9th Dist. Summit Nos. 22734, 22757, 2006-Ohio-2686, ¶ 30 (“In

determining whether there is a genuine issue of material fact, a court must inquire whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.”), quoting Wall v. Firelands Radiology,

Inc., 106 Ohio App.3d 313, 322-323 (6th Dist.1995).

       {¶23}    Additionally, as the trial court noted, the lack of harm (i.e., the fact that Ms.

Petonic was able to go to the physical GFS store and purchase the necessary food items) and Ms.

Pilato’s history of exemplary job performance does not, by itself, establish that Defendants

discriminated against her on the basis of her alleged disability.        Other than Ms. Pilato’s

speculation, nothing in the record indicates that Defendants’ actions were motivated by anything

other than a legitimate, nondiscriminatory reason: the cancellation of the GFS food order. In

fact, the record indicates that – prior to the cancellation of the food order – Ms. Petonic expected

Ms. Pilato to return to work the following school year, and had already begun planning new

menus with her, as well as discussing strategies to increase participation in the lunch program.

To the extent that Ms. Pilato asserts that Ms. Petonic was motivated to conceal the fact that she

allegedly told Ms. Pilato to continue working while on leave, Ms. Pilato failed to point to any

evidence – aside from her own testimony that, as discussed above, contradicted her other

statements contained in the record – that supported her position in that regard. See Barber, 2016-

Ohio-2926, at ¶ 68 (holding that speculation offered to show pretext is insufficient to defeat

summary judgment).      Defendants proffered a legitimate, nondiscriminatory reason for their

actions, and Ms. Pilato failed to meet her reciprocal burden of establishing a genuine issue of

material fact as to whether that reason was a pretext for disability discrimination. Accordingly,
                                                12


the trial court did not err by granting summary judgment in favor of Defendants, nor did the trial

court err by granting summary judgment in favor of Mr. Gaugler on Ms. Pilato’s claim for aiding

and abetting discrimination.

       {¶24} In light of the foregoing, Ms. Pilato’s assignments of error are overruled.

                                                III.

       {¶25} Ms. Pilato’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER L. HENSAL
                                                       FOR THE COURT
                                        13




CALLAHAN, P. J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

SHAWN A. ROMER, Attorney at Law, for Appellant.

CHRISTIAN M. WILLIAMS and TARYN A. WEISS, Attorneys at Law, for Appellees.
