[Cite as Hilbert v. Ohio Dept. of Transp., 2017-Ohio-488.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Thomas Hilbert,                                       :

                 Plaintiff-Appellant,                 :

v.                                                    :               No. 16AP-205
                                                                (Ct. of Cl. No. 2015-00020)
Ohio Department of Transportation,                    :
                                                               (REGULAR CALENDAR)
                 Defendant-Appellee.                  :


                                          D E C I S I O N

                                     Rendered on February 9, 2017


                 On brief: Law Office of John H. Forg, and
                 John H. Forg, III, for appellant. Argued: John H. Forg, III.

                 On brief: Michael DeWine, Attorney General, Peter E.
                 DeMarco and Timothy M. Miller, for appellee. Argued:
                 Timothy M. Miller.

                              APPEAL from the Court of Claims of Ohio

TYACK, P.J.

        {¶ 1} Plaintiff-appellant, Thomas Hilbert, is appealing from the judgment granted
in favor of the state in his lawsuit in the Court of Claims of Ohio. For the reasons that
follow, we reverse the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Hilbert began working for the Ohio Department of Transportation
("ODOT") in 1993 as a highway maintenance worker, and was eventually promoted to
Signal Electrician 2.        At all times, Hilbert was a member of the Ohio Civil Service
Employees Association ("OCSEA"), the union governing ODOT employees.                      Hilbert
obtained a Class A commercial driver's license during his probationary period and
regularly drove dump trucks which required Class A certification. Later, he was also
required to maintain a Class A certification in his position as a Signal Electrician 2.
No. 16AP-205                                                                                     2

However, as a Signal Electrician 2, Hilbert was not regularly required to drive any
equipment requiring a Class A certification. Instead, he drove a bucket truck and serviced
traffic lights that were malfunctioning. A commercial driver's license is not required to
drive a bucket truck. It is undisputed that Hilbert did not actually drive any equipment
that required Class A certification while working as a Signal Electrician 2, and Hilbert's
supervisors could not identify any specific job duty of a Signal Electrician 2 that Hilbert
needed a commercial driver's license to perform. 1
       {¶ 3} Hilbert was a diligent and hard-working employee who got along well with
his co-workers, whose work was always deemed satisfactory, who never received a
negative evaluation, and, until the events at issue in this case, never received a reprimand
or discipline.
       {¶ 4} On August 16, 2013, while returning from a concert, Hilbert was arrested
and charged with the offense of operating a motor vehicle while impaired. He refused a
breath test which resulted in an immediate suspension of his Ohio driver's license.
       {¶ 5} The next day, a Saturday, Hilbert contacted Jim Judd, his supervisor, and
explained what had happened the night before. After consultation with Amy Augsparger,
the safety director, Hilbert was advised to take personal leave until the matter was
resolved.
       {¶ 6} The following Monday after Hilbert received his citation, Jim Judd and
Mike Brown, the labor relations officer, called Hilbert, and Brown informed Hilbert that
he needed a commercial driver's license for his job because the union contract mandated
it. Hilbert informed them that he was going to retain counsel and attempt to get his
driving privileges restored.
       {¶ 7} On September 4, 2013, Hilbert appeared in court and pled guilty to a lesser
charge of reckless operation of a motor vehicle. The judge who heard the case terminated
the administrative license suspension flowing from the refusal to take a breath test but
placed a different six-month suspension on Hilbert's driving privileges. Under the new
driving suspension, Hilbert had work-related privileges and was allowed to drive to and
from work, and while at work, 24 hours a day, since Hilbert could be required to drive for


1Effective December 29, 2013, ODOT eliminated the requirement that a Signal Electrician 1 or 2 must
maintain a Class A commercial driver's license.
No. 16AP-205                                                                              3

road emergencies. The judge did not restrict Hilbert's ability to drive vehicles requiring a
commercial driver's license certification, but the sentencing documents do not contain a
specific reference to Hilbert's commercial driver's license.
       {¶ 8} The next day, Hilbert contacted Jim Judd, his supervisor, Jim Fife, the
human resources manager, and Michael Brown, assistant personnel director and labor
relations officer, and reported the reduction of his charges, the termination of his
administrative license suspension, and his ability to return to work without any
restrictions on his driving. Although Hilbert asked these managers to return to active
duty, he received no response.
       {¶ 9} Hilbert had recently gone through a divorce and a foreclosure, and these
events had caused him to seek treatment from his family physician for stress and anxiety.
Shortly after receiving his traffic citation, Hilbert again contacted his family physician
who suggested that Hilbert take leave under the Family Medical Leave Act ("FMLA") for
three months to obtain treatment. Hilbert had a family history of alcoholism, and he was
amenable to seeking help. Through the employee assistance program ("EAP") offered by
the state, he met with two separate medical professionals who diagnosed him as showing
signs of alcoholism. Hilbert began searching for a rehabilitation program.
       {¶ 10} On September 12, 2013, Hilbert contacted Shananne Middleton, the
benefits administrator, and requested leave from his job under FMLA.             Middleton
contacted Jim Fife, the human resources administrator, and Michael Brown, the labor
relations officer, by means of a conference call in which Hilbert repeated his request for
FMLA leave. Middleton prepared the necessary paperwork which she gave to a co-worker
to deliver to Hilbert that same day.
       {¶ 11} On September 19, 2013, Hilbert submitted a medical certification form to
his family physician.     The doctor faxed the completed form back to Hilbert on
September 24, 2013, and Hilbert emailed the completed form to the human resources
department.
       {¶ 12} Meanwhile, on September 20, 2013, Hilbert's supervisor, Judd, contacted
Hilbert and arranged for Hilbert to meet with Judd and Michael Brown, the labor
relations officer.   The three met at a gas station near Hilbert's home, and Brown
attempted to persuade Hilbert to resign. Hilbert refused. Brown sent a letter that day to
No. 16AP-205                                                                          4

Hilbert, notifying him that ODOT was considering terminating his employment, and that
a pre-disciplinary hearing would take place on September 25, 2013.
       {¶ 13} The letter stated in pertinent part as follows:
              You are charged with violating Directive WR-101 Item:
              27. Other actions that could compromise or impair the
              ability of the employee to effectively carry out his/her duties
              as a public employee.

              The basis of the charge is as follows: On August 16, 2013
              your Commercial Driver's License was placed on ALS
              suspension. The ALS suspension is for a period greater than
              120 days.

(Nov. 19, 2015 Hilbert Dep., Ex. E.)
       {¶ 14} As noted above, Hilbert's administrative license suspension ("ALS") was
terminated on September 4, 2013. Brown was aware of this fact, but the pre-disciplinary
hearing went forward anyway on September 25, 2013, as scheduled. Sometime in late
September, Bobby Johnson, labor relations administrator, received a report from the
Bureau of Motor Vehicles (dated September 25, 2013) that Hilbert's Class A commercial
driver's license was still suspended. According to the contract with OCSEA, any ODOT
employee who cannot drive for work for more than 120 days must either resign or be
removed from employment. ODOT takes the position that the loss or suspension of a
Class A commercial driver's license by an employee who is mandated to have a Class A
commercial driver's license means that the employee cannot drive for work.
       {¶ 15} The hearing officer determined that the ALS was still in place, and the
matter was referred to the central office in Columbus, Ohio. On September 30, 2013, the
director of ODOT issued a letter terminating Hilbert's employment effective October 4,
2013. The letter stated that Hilbert had "violated Directive WR-101, Item 27 - Other
actions that could compromise or impair the ability of the employee to effectively carry
out his/her duties as a public employee." (Hilbert Dep., Ex. F.)
       {¶ 16} On October 1, 2013, Middleton, the benefits administrator, received a
designation notice form, requesting additional information from Hilbert's treating
physician regarding his FMLA request. She forwarded this form to Hilbert the next day,
but Hilbert did not respond as he had already received his termination notice.
No. 16AP-205                                                                             5

      {¶ 17} Hilbert filed suit against ODOT in the Court of Claims of Ohio alleging three
claims: (1) interference with his right to medically related leave under the FMLA to deal
with anxiety and alcoholism in violation of 29 U.S.C. 2615(a)(1); (2) retaliation for
exercising his rights under the FMLA in violation of 29 U.S.C. 2615(a)(2); and (3)
discrimination on the basis of his disability, alcoholism, in violation of the Ohio Fair
Employment Practices Act, R.C. 4112.02(A) and 4112.99.
      {¶ 18} The parties filed cross-motions for summary judgment. On February 24,
2016, the trial court denied Hilbert's motion for summary judgment and granted ODOT's
motion for summary judgment. Hilbert timely filed an appeal to this court.
II. ASSIGNMENT OF ERROR
      {¶ 19} Hilbert assigns a single error with four attendant issues for our review:
             The Trial Court Erred Granting a Summary Judgment in
             Favor of ODOT and Against Hilbert on Each Claim Raised in
             His Complaint.

             A. First Issue Presented for Review:
             The trial court erred in ruling that Hilbert's Class A CDL was
             suspended, for purposes of driving heavy vehicles at work,
             and that as a result, he was unable to perform the duties of a
             Signal Electrician 2.

             B. Second Issue Presented for Review:
             The trial court erred in ruling that ODOT did not interfere
             with Hilbert's right to FMLA by terminating him within three
             weeks of his applying for such leave.

             C. Third Issue Presented for Review:
             The trial court erred in ruling that ODOT did not retaliate
             with Hilbert's right to FMLA by initiating disciplinary
             proceedings against him within a week of his requesting
             FMLA leave.

             D. Fourth Issue Presented for Review:
             The trial court erred in ruling that ODOT did not
             discriminate against Hilbert on the basis of his disability
             after he sought treatment for alcoholism through ODOT'S
             Employee Assistance Program.

III. STANDARD OF REVIEW
No. 16AP-205                                                                              6

       {¶ 20} Civ.R. 56(C) provides in pertinent part that "[s]ummary 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."
       {¶ 21} Accordingly, summary judgment is appropriate only where: (1) no genuine
issue of material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621,
629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66
(1978).
       {¶ 22} Our review of summary judgment is de novo. Westfield Ins. Co. v. Hunter,
128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12.
IV. DISPUTE OVER COMMERCIAL DRIVER'S LICENSE

       {¶ 23} ODOT fired Hilbert, claiming that the loss of his commercial driver's license
impaired Hilbert's ability to perform his duties for ODOT. ODOT began disciplinary
proceedings against Hilbert on the grounds that he had taken "actions that could
compromise or impair the ability of the employee to effectively carry out his/her duties as
a public employee." (Hilbert Dep., Ex. E.) ODOT stated: "The basis of the charge is as
follows: On August 16, 2013 your Commercial Driver's License was placed on ALS
suspension. The ALS suspension is for a period greater than 120 days." Id. In other
words, ODOT was contending that Hilbert was unable to perform his job duties because
his commercial driver's license had been placed on ALS suspension for a period of more
than 120 days.
       {¶ 24} Construing the evidence most strongly in favor of Hilbert, it is undisputed
that Hilbert could perform all of the job duties of a Signal Electrician 2 without the need
for a commercial driver's license. While Hilbert's Class A commercial driver's license was
suspended administratively under R.C. 4511.191 for his refusal to take a breathalyzer test,
on September 4, 2013, the municipal court judge terminated that suspension and
imposed his own six-month suspension with unlimited driving privileges while at work.
No. 16AP-205                                                                              7

As of that date, Hilbert could have driven an auger truck or a crane truck if necessary,
although no Signal Electrician had done so in the past five to six years. In addition,
Hilbert could have driven a bucket truck used to repair traffic signals, as a commercial
driver's license is not necessary to drive that particular vehicle.
       {¶ 25} Moreover, Hilbert's driving privileges were only administratively suspended
for 19 days until the municipal court judge terminated the ALS on September 4, 2013.
Thus, ODOT's claim that the administrative license suspension was for a period of more
than 120 days is a disputed question of fact. The ALS was terminated by the municipal
court judge who then imposed his own license suspension that provided for full work-
related driving privileges allowing Hilbert to drive to and from work, and while at work,
24 hours a day. (Hilbert Dep., Ex. A.) The judge placed no restrictions on Hilbert's ability
to drive vehicles requiring a commercial driver's license certification, but the sentencing
documents do not contain a specific reference to Hilbert's commercial driver's license.
Moreover, Michael Brown was aware of this fact because he testified at his deposition that
he had gone on line and reviewed the pertinent court documents and because Hilbert had
informed him of the resolution of his charges. (Nov. 23, 2015 Brown Dep. at 16.)
       {¶ 26} ODOT brought forth evidence that they received a print out from the
Bureau of Motor Vehicles showing that Hilbert's Class A commercial driver's license was
still suspended. (Dec. 21, 2015 Def.'s Mot. For Summ. Jgmt., Bobby Johnson Aff., Ex. C.)
At best, this evidence creates a genuine issue of material fact as to whether Hilbert's
commercial driver's license was still suspended because the documents from the
municipal court proceedings demonstrate that the municipal court judge terminated the
ALS.
       {¶ 27} Thus, a genuine issue of material fact exists regarding whether the proffered
reason for Hilbert's termination (inability to perform his duties as a public employee) was
false or pretextual.
V. FMLA CLAIMS
       {¶ 28} One reason the FMLA was enacted was to allow employees "to take
reasonable leave for medical reasons." 29 U.S.C. 2601(b)(2). The FMLA provides eligible
employees with an entitlement of 12 workweeks of leave during a 12-month period for a
serious health condition that renders the employee unable to perform the functions of his
No. 16AP-205                                                                               8

or her position. 29 U.S.C. 2612(a)(1)(D). Hilbert has asserted two theories of recovery
under the FMLA.
       {¶ 29} Hilbert's first claim is the interference or entitlement theory based on 29
U.S.C. 2615(a)(1), which states that "[i]t shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided under
this title [29 USCS 2611 et seq.]." The second theory is retaliation or discrimination
arising under 29 U.S.C. 2615(a)(2), which prohibits employers from discharging or
otherwise discriminating against individuals who oppose unlawful FMLA practices.
VI. INTERFERENCE CLAIM
       {¶ 30} A prima facie interference claim under the FMLA requires that Hilbert must
show that: (1) he was an eligible employee; (2) the defendant was an employer as defined
under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer
notice of his intention to take leave; and, (5) the employer denied the employee FMLA
benefits to which he was entitled. Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir.2006);
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir.2012); Hartman v. Ohio Dept. of
Transp., 10th Dist. No. 16AP-222, 2016-Ohio-5208, ¶ 36.
       {¶ 31} With respect to Hilbert's claim of interference with his FMLA rights, there is
no dispute that Hilbert was an eligible employee and ODOT is an employer for purposes
of the FMLA. ODOT argues that Hilbert was not eligible to receive FMLA leave because
he was terminated for conduct that occurred prior to the request for FMLA leave.
However, ODOT admits that, under the OCSEA contract, ODOT had to allow Hilbert time
to attempt to get his driving privileges restored.
       {¶ 32} The Monday after Hilbert received his traffic ticket, Mike Brown warned
Hilbert that he needed to have a commercial driver's license to keep his job. Hilbert
replied that he intended to retain counsel and have his driving privileges restored. By the
time Hilbert contacted Middleton for FMLA leave and the officials at ODOT began trying
to fire him, Hilbert had full work-related driving privileges to the extent authorized by the
judge who handled the case at the municipal court level. Whether a municipal court judge
could authorize full privileges of a commercial driver's license which is a federal
endorsement on an Ohio driver's license is less than clear. The fact that the Ohio Bureau
of Motor Vehicles may not have had completely up-to-date information about the status
No. 16AP-205                                                                                9

of Hilbert's driving privileges when ODOT inquired about Hilbert's driving privileges is a
distinct possibility and raises a factual dispute that cannot be resolved by summary
judgment proceedings.
       {¶ 33} Hilbert contacted Middleton, the benefits administrator, and requested
leave from his job under the FMLA on September 12, 2013. Middleton forwarded an
FMLA packet to Hilbert that same day, informing him that he was eligible for FMLA
leave. After submitting the form to his physician, Hilbert returned it to Middleton who
received it on September 24, 2013, the day before the pre-disciplinary hearing. Mike
Brown was aware that Hilbert had requested FMLA leave before the September 20, 2013
meeting at the gas station where Brown attempted to persuade Hilbert to resign. Thus, it
appears that the record shows that Hilbert was eligible for FMLA leave.
       {¶ 34} Medical certification is another issue, and ODOT requested additional
information from Hilbert's physician. On October 2, 2013, Middleton sent Hilbert a
Designation Notice requesting additional information. Under FMLA regulations, Hilbert
had seven days to provide the requested information. 29 C.F.R. 825.305(c). An employer
has a duty to provide a reasonable opportunity to the employee to cure any deficiency in
the certification. Sorrell v. Rinker Materials Corp., 395 F.3d 332, 337 (6th Cir.2005).
Furthermore, an employer's breach of its certification obligations under 29 C.F.R.
825.305 may give rise to an interference claim. Hansler v. Lehigh Valley Hosp. Network,
798 F.3d 149, 156-57 (3d Cir.2015).
       {¶ 35} When ODOT received what it believed to be insufficient certification,
ODOT was required to: (1) advise Hilbert that his certification was insufficient, (2) state in
writing what additional information was necessary to make it sufficient, and (3) provide
him with an opportunity to cure before denying his request for leave. 29 C.F.R.
825.305(c). ODOT instead terminated Hilbert before he even received the Designation
Notice. Instead of having the chance to exercise his rights in a meaningful way and
demonstrate his entitlement to leave, ODOT fired him. As such, the record indicates that
Hilbert established a prima facie claim of interference with his rights under the FMLA.
He sufficiently raised the issue that he was prejudiced as a result of ODOT's failure to
allow an opportunity to cure any alleged deficiency.
No. 16AP-205                                                                              10

         {¶ 36} Based on these facts, a reasonable trier of fact could conclude that ODOT
denied Hilbert FMLA leave by firing him before he could begin his leave to enter a
rehabilitation program. "If an employer takes an employment action based, in whole or in
part, on the fact that the employee took FMLA-protected leave, the employer has denied
the employee a benefit to which he is entitled." Wysong v. Dow Chem. Co., 503 F.3d 441,
447 (6th Cir.2007). Thus, it appears that Hilbert has established a prima facie case of
FMLA interference sufficient to overcome a motion for summary judgment.
         {¶ 37} The Sixth Circuit and this court have held that FMLA claims are to be
evaluated under the burden shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Donald at 762; Hartman at ¶ 38.
         {¶ 38} Therefore, Hilbert's establishment of a prima facie case of interference with
his rights under the FMLA shifts the burden of production to ODOT to articulate a
legitimate, non-discriminatory reason for terminating him. After an employer articulates
a legitimate, non-discriminatory reason for its actions, the burden shifts back to the
plaintiff who must prove by a preponderance of the evidence that the employer's reason is
pretextual. But here, in order " 'to survive summary judgment a plaintiff need only
produce enough evidence to support a prima facie case and to rebut, but not to disprove,
the defendant's proffered rationale.' " Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th
Cir.2012), quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir.2007).
         {¶ 39} ODOT argues that Hilbert was terminated for reasons unrelated to his
FMLA request. ODOT states in its brief that Hilbert was terminated because his Class A
commercial driver's license was suspended for more than 120 days. But according to the
letter Hilbert received from the central office, Hilbert was terminated because his actions
allegedly compromised or impaired his ability to carry out his duties as a public employee.
As discussed above in connection with issue one, we find that genuine issues of material
fact preclude making this finding in favor of ODOT.             There is sufficient dispute
surrounding the effect of the judicial termination of the ALS and the imposition of a
different suspension with full driving privileges to preclude summary judgment on this
claim.
VII. RETALIATION CLAIM
No. 16AP-205                                                                            11

       {¶ 40} In order to make out a prima facie retaliation/termination claim under the
FMLA, Hilbert must show that: (1) he was engaged in an activity protected by the FMLA;
(2) the employer knew that he was exercising his rights under the FMLA; (3) after
learning of the employee's exercise of FMLA rights, the employer took an employment
action adverse to him; and (4) there was a causal connection between the protected FMLA
activity and the adverse employment action. Donald at 761.
       {¶ 41} It is undisputed that Hilbert applied for FMLA leave on September 12, 2013,
and Mike Brown learned of that fact on the same day. He made the decision to terminate
Hilbert no later than September 20, 2013, when he tried to get Hilbert to resign, and
when that failed, initiated disciplinary proceedings.
       {¶ 42} A plaintiff satisfies the element of causation when he produces evidence
from which an inference can be drawn that the adverse action would not have been taken
in the absence of the protected conduct. Nguyen v. Cleveland, 229 F.3d 559, 563 (6th
Cir.2000). Proximity in time between the protected activity and the adverse employment
action may constitute evidence of a causal connection. Bryson v. Regis Corp., 498 F.3d
561, 571 (6th Cir.2007), citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314
(6th Cir.2001). For example, a plaintiff satisfied the low threshold of proof necessary to
establish a prima facie case of retaliatory discharge where the employee was terminated
within three weeks of returning from FMLA leave and two months after first notifying the
employer of the need for leave. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th
Cir.2012).
       {¶ 43} Here, the record indicates that ODOT knew that Hilbert had applied for
FMLA based upon stress and anxiety resulting from his arrest, a recent divorce, and
foreclosure proceedings. ODOT began disciplinary proceedings a little over one week
later and fired him less than one month after he applied for FMLA leave. This temporal
proximity is sufficient to establish a causal connection between the exercise of his FMLA
rights and his termination.
       {¶ 44} ODOT argues that it fired Hilbert before his FMLA request was granted, so
therefore it did not interfere with his FMLA rights. As discussed in connection with his
interference claim, ODOT fired Hilbert before the required time to respond to the
allegedly insufficient certification had run.
No. 16AP-205                                                                               12

       {¶ 45} As discussed in connection with issues one and two, there exists a genuine
issue of material fact as to whether ODOT's termination for allegedly being unable to
perform the duties of a Signal Electrician 2 was a pretext for discrimination. We cannot
know from the record what motivated the director of ODOT and upper level
administration at ODOT to fire Hilbert. We find that there is sufficient evidence to
preclude summary judgment.
VIII. DISABILITY DISCRIMINATION CLAIM
       {¶ 46} Hilbert asserted that ODOT discriminated against him on the basis of his
disability: alcoholism compounded by anxiety and stress, in violation of R.C. 4112.01 et
seq.
       {¶ 47} R.C. 4112.01(A) prohibits discrimination based on a disability 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.

       {¶ 48} To prevail on a claim of disability discrimination under Ohio law, a person
must establish: (1) that he or she was disabled; (2) that an adverse action was taken by the
employer, at least in part, because the person was disabled; and (3) that the person,
though disabled, can safely and substantially perform the essential functions of the job in
question. Taylor v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-385, 2011-
Ohio-6060, ¶ 13. If the plaintiff establishes a prima facie case, the burden then shifts to
the employer to articulate some legitimate, nondiscriminatory reason for the adverse
employment action. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 14,
citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Once the employer does
that, the burden shifts to the plaintiff to show "that the proffered reason was not the true
reason" for the adverse employment action.        Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
       {¶ 49} A disability is 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
No. 16AP-205                                                                                13

record of a physical or mental impairment; or being regarded as having a physical or
mental impairment." R.C. 4112.01(A)(13). Alcoholism is a disability as defined in R.C.
4112.01(A)(13). Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, syllabus. Under
R.C. 4112.01(A)(16)(a)(iii), alcoholism is defined as a physical or mental impairment.
       {¶ 50} ODOT argues that Hilbert cannot establish that he was disabled because the
record does not establish that he was diagnosed as an alcoholic, that he was regarded as
an alcoholic, or that his alleged alcoholism substantially limited a major life activity.
       {¶ 51} The evidence in the record is unrefuted that Hilbert had a family history of
alcoholism, he was cited for the offense of operating a motor vehicle while impaired, he
sought treatment through ODOT's EAP for alcoholism, two psychologists diagnosed him
as having signs of alcoholism, he began searching for a rehabilitation program, and he
requested FMLA leave (which necessitated being off work) in order to obtain treatment to
deal with his problems. ODOT's seeming hurry to terminate him before he could finish
seeking professional help creates an inference in favor of Hilbert that the adverse action of
termination was taken at least in part because of his disability.
       {¶ 52} Construing this evidence most strongly in favor of Hilbert, at the very least,
there is a genuine issue of material fact as to whether Hilbert suffered from alcoholism.
       {¶ 53} As discussed in connection with issues one, two, and three, there exist
genuine issues of material fact as to whether ODOT's termination for allegedly being
unable to perform the duties of a Signal Electrician 2 was a pretext for discrimination and
whether he was terminated, at least in part, for reasons relating to his disability as alleged.
       {¶ 54} As a result of the foregoing, we find merit in Hilbert's assertions under the
four issues presented for review. We sustain the assignment of error.
       {¶ 55} We therefore reverse the judgment of the Court of Claims of Ohio and
remand the case to that court for further appropriate proceedings.
                                                                   Judgment reversed and
                                                          remanded for further proceedings.

                              DORRIAN and BRUNNER, JJ., concur.
