         [Cite as Bibee v. Gen. Revenue Corp., 2013-Ohio-1753.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




CAROL BIBEE,                                         :            APPEAL NO. C-120577
                                                                  TRIAL NO. A-1004149
        Plaintiff-Appellant,                         :

  vs.                                                :               O P I N I O N.

GENERAL REVENUE                                      :
CORPORATION,
                                                     :
    Defendant-Appellee.



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 1, 2013


Tobias, Torchia & Simon and David Torchia, for Plaintiff-Appellant,

Kevin T. Dreyer, for Defendant-Appellee.




Note: we have removed this case from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




DEWINE, Judge.

       {¶1}    This is an appeal from a summary judgment in favor of an employer

in a case of alleged disability discrimination. We conclude that the plaintiff did not

qualify as “disabled” under Ohio or federal law because she failed to present

sufficient evidence that she was substantially limited in any major life activity.

Accordingly, upon de novo review, we uphold the trial court’s grant of summary

judgment.

                                           I.

       {¶2}    In September 2007, Carol Bibee began working for the General

Revenue Corporation (“GRC”) as a “client reporting representative.” Her position

was eliminated during a company-wide downsizing in August 2008. According to

GRC, Ms. Bibee’s position was selected for elimination because she had the lowest

performance rating among nine client reporting representatives. GRC gave Ms.

Bibee the option of receiving a severance package or filling an open position in the

payment processing department.       She chose the latter.       Although the payment

processing position had a lower job grade with a lower base pay, Ms. Bibee received

the same actual pay that she had received in client reporting.

       {¶3}    Ms. Bibee had performance issues in the payment processing

position. GRC contends that the performance issues involved accuracy. Ms. Bibee

suggests that the issues were about slowness, due to arthritis. In November 2008,

GRC’s human resources director and GRC’s payment processing manager met with

Ms. Bibee to discuss the problems. She was given a choice between accepting the

severance package that she had been offered in August 2008 or continuing as

payment processor subject to further review and performance improvement. Ms.



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Bibee chose to remain in her job. On December 5, 2008, Ms. Bibee signed a letter

confirming that she agreed to stay in the payment processor position. That same day

she went home ill. She did not return to work. Instead, she filed for short-term

disability and, later, long-term disability.

       {¶4}     Ms. Bibee subsequently sued GRC for age discrimination, tortious

discharge in violation of public policy, disability discrimination, and retaliatory

discrimination. GRC moved for summary judgment on all claims. At the summary

judgment hearing, Ms. Bibee abandoned all her claims except her claims for

disability discrimination under the Americans with Disabilities Act, 42 U.S.C. 12102

et seq. (“ADA”), and under Ohio law, R.C. 4112.02(A). The trial granted summary

judgment on the complaint in its entirety, concluding that she had failed to establish

a prima facie case of disability discrimination. This appeal followed.



                                               II.

       {¶5}     The crux of Ms. Bibee’s disability-discrimination claims is that she

was disabled by arthritis in her hands while in the payment processor position and

that GRC failed to accommodate her disability. In an affidavit proffered in reply to

GRC’s motion for summary judgment, Ms. Bibee avers that she requested a different

keyboard and left-handed mouse to minimize her arthritis pain, and that this

“reasonable accommodation” was denied by the company.

       {¶6}     Under both the ADA and Ohio law, it is unlawful to discriminate on

the basis of disability in regard to hiring, firing and other terms, conditions and

privileges of employment. 42 U.S.C. 12112(a); R.C. 4112.02(A). It is a discriminatory

practice to fail to make a reasonable accommodation to an otherwise qualified




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individual with a disability unless such accommodation would cause the employer an

undue hardship. 42 U.S.C. 12112(b)(5)(a); see Kent State Univ. v. Ohio Civ. Rights

Comm., 64 Ohio App.3d 427, 581 N.E.2d 1135, 1140-1141 (11th Dist.1989).

       {¶7}    Because the ADA and the Ohio disability-discrimination law are

similar, Ohio courts look to federal cases and regulations to aid in interpreting the

Ohio law. Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 573, 697 N.E.

2d 204 (1998). The events alleged in Ms. Bibee’s complaint occurred in 2008, so we

apply the version of the ADA in place prior to amendments made effective on

January 1, 2009. See Milholland v. Sumner Cty. Bd. of Edn., 569 F.3d 562 (6th

Cir.2009).

       {¶8}    To succeed on her claim for failure to reasonably accommodate her

disability, Ms. Bibee was required to demonstrate “(1) that [she] was disabled; (2)

that [GRC] 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.” Pflanz v. Cincinnati, 149 Ohio App.3d 743, 2002-Ohio-5492, 778

N.E.2d 1073 (1st Dist.), ¶ 12, citing Shaver v. Wolske & Blue, 138 Ohio App.3d 653,

663-664, 742 N.E.2d 164 (1oth Dist.2000); see Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281 (7th Cir.1996).

       {¶9}    Entry of summary judgment is appropriate against a party who fails

to establish the existence of an element essential to the party’s case upon which the

party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the evidence in the light most




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                      OHIO FIRST DISTRICT COURT OF APPEALS



favorable to Ms. Bibee, we conclude that she did not present sufficient evidence that

she was disabled, as defined in the federal and Ohio statutes.

        {¶10}   R.C. 4112.01(A)(13) defines a disability as “a physical or mental

impairment that substantially limits one or more major life activities, including the

functions of caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working; a record of a physical or mental

impairment; or being regarded as having a physical or mental impairment.” The pre-

2009 ADA defined disability similarly: “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such an individual; (B)

a record of such an impairment; or (C) being regarded as having such an

impairment.” Former 42 U.S.C. 12102(1). In this case, there is no assertion that Ms.

Bibee was “regarded” as having a disability, and only the first part of the definitions

are at issue.

        {¶11}   In her affidavit, Ms. Bibee avers that she suffers from arthritis in her

hands, which, in time, caused severe pain in her right shoulder and neck and

impingement syndrome in her right shoulder. She also states that in the fall of 2008,

she suffered from depression and anxiety about having been removed from the client

reporting department. Even if we assume that the averments are sufficient to create

a genuine issue of material fact about whether she had an impairment, she has failed

to set forth evidence that she is substantially limited in one or more major life

activities.

        {¶12}   Ms. Bibee contends that she had impairments that substantially

limited her major life activities of performing manual tasks and working. Equal

Employment      Opportunity    Commission     (“EEOC”)     regulations   include   both




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“performing manual tasks” and “working” as “major life activities.”                 Former 29

C.F.R. 1630.2(i).1

                                               A.

        {¶13}    The United States Supreme Court has held that “[t]o be substantially

limited in performing manual tasks, an individual must have an impairment that

prevents or severely restricts the individual from doing activities that are of central

importance to most people’s daily lives.” Toyota Motor Mfg., Kentucky, Inc. v.

Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see former 29

C.F.R. 1630(j). “If each of the tasks included in the major life activity of performing

manual tasks does not independently qualify as a major life activity, then together

they must do so.” Williams at 197. Further, “[t]he impairment’s impact must also

be permanent or long-term.” Id.

        {¶14}     The only evidence set forth by Ms. Bibee in support of her claim that

she was substantially limited in her ability to perform manual tasks is a single

paragraph in her affidavit in which she asserts that she cannot hold or grasp items

except for short periods of time or twist lids off bottles, that she has great difficulty

closing her hands to smaller things, and that typing and writing is difficult and

painful.

        {¶15}    Plainly, the ability to twist the lids off of bottles is not of “central

importance to most people’s daily lives.” Nor are we convinced that her complaints

about difficulties closing her hands and grasping items—even if believed—are




1In Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194, 122 S.Ct. 681, 151 L.Ed.2d
615 (2002), although noting that “the persuasive authority of the EEOC regulations” was not
clear, the United States Supreme Court “assume[d] without deciding” that the EEOC regulations
were reasonable because they were accepted as such by both parties. Similarly, in the case at bar
both parties rely upon the EEOC regulations.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



sufficient to show that she is unable to perform activities of central importance to

most people’s daily lives.

       {¶16}    Her most significant complaint seems to be that typing and writing

are difficult and painful.     It is not clear that these activities are of “central

importance” to most people’s lives, but even were we to assume that they are, Ms.

Bibee still must show that her impairment is “substantial.”           That is, she must

“demonstrate that she is severely restricted in [performing the tasks] as compared to

how the average person in the general population would perform the same tasks.”

Amann v. Potter, 105 Fed. Appx. 802, 806-807 (6th Cir.2004). See former 29 C.F.R.

1630.2(j)(1). On the record before us, we cannot say that she has done so. Her own

affidavit reveals that while her arthritis affected the speed of her data entry, it did not

preclude her from performing such tasks. She was able to type memoranda and write

handwritten notes to her supervisors at GRC. In fact, examples of memoranda typed

by Ms. Bibee and handwritten notes prepared by her are included in the deposition

exhibits that are part of the record before us.

       {¶17}    Accordingly, we do not believe that any of the assertions in her

affidavit relating to various manual tasks are sufficient to establish a substantial

limitation in the ability to perform an activity of central importance to most people’s

lives. Nor are we able to say that the restrictions that Ms. Bibee claims, taken

together, equate to a substantial limitation in a major life activity. See Williams, 534

U.S. at 197, 122 S.Ct. 681, 151 L.Ed. 2d 615.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



                                                B.

        {¶18}    Ms. Bibee also has failed to make a sufficient showing that she was

substantially limited in the major life activity of working.2 To establish a substantial

limitation in the ability to work, a plaintiff must show that she is “significantly

restricted” in her ability “to perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable training, skills

and abilities.” Former 29 C.F.R. 1630.2(j)(3)(i); see also Sutton v. United Air Lines,

Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

        {¶19}    The Sixth Circuit Court of Appeals, for example, concluded that a

telephone operator with carpal tunnel syndrome and lift restrictions did not present

sufficient evidence to create a genuine issue of material fact where her expert, a

certified employment consultant, “did not compare [the plaintiff’s] access to jobs to

the access available to a non-injured individual with similar training and experience,

looking specifically to the labor market in [the plaintiff’s] geographic vicinity.”

Gerton v. Verizon S. Inc., 145 Fed. Appx. 159, 168 (6th Cir.2005). Similarly in Law

v. Scottsville, 6th Cir. No. 98-2335, 2000 U.S. App. LEXIS 14512 (Jun. 15, 2000), the

Sixth Circuit affirmed a grant of summary judgment in favor of the employer where a

sanitation worker, who had restrictions on the amount that he could lift, presented

only his own affidavit detailing his restrictions. The court noted that “no medical



        2  Prior to the 2009 amendments to the ADA, which explicitly listed working as a major
life activity, whether working constituted a major life activity was unresolved. Some federal
courts of appeal, guided by EEOC regulations, held that working is a major life activity. See, e.g.,
Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 80 (2d Cir.2000); Peters v.
Mauston, 311 F.3d 835, 843 (7th Cir.2002); Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495-
496 (10th Cir.2000). But in Williams, the United States Supreme Court expressed “hesitance” to
recognize working as a major life activity. Williams at 200. Because the Ohio law clearly
recognizes working as a major life activity and because GRC does not question its inclusion, we
assume without deciding that the inclusion of working as a major life activity is proper.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



records, testimony or other expert evidence establish that [plaintiff] is restricted

from doing heavy duty jobs, manual labor jobs, other sanitation worker jobs, or even

the present sanitation job, nor does the evidence show the number of these jobs, if

any, from which [he] is restricted.” Id. at *18.

       {¶20}   Ohio’s Eighth Appellate District reached a similar result in Maracz v.

United Parcel Serv., Inc., 8th Dist. No. 83432, 2004-Ohio-6851. The court in that

case reversed the trial court’s denial of an employer’s motion for judgment

notwithstanding the verdict because the plaintiff had failed to present evidence that

he was disqualified from a class of jobs or a broad range of jobs. Id. at ¶ 47. The

court explained that to prevail the plaintiff was “required to ‘produce some evidence

of the number and types of jobs in the local employment market in order to show he

is disqualified from a substantial class or broad range of such jobs[.]’ ” Id., quoting

Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1115-16

(D.C.Cir.2001).

       {¶21}   Ms. Bibee failed to present any evidence that she was significantly

restricted from a class or broad range of jobs. Absent such evidence, there was no

issue of fact as to whether Ms. Bibee was disabled due to a substantial limitation in

her ability to work.

                                            III.

       {¶22}   Without evidence that she was substantially limited in any major life

activity, Ms. Bibee could not qualify as disabled under federal or Ohio law. The trial

court properly granted summary judgment to GRC. The sole assignment of error is

without merit, and we affirm the judgment of the trial court.

                                                                   Judgment affirmed.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



HENDON, P.J., and DINKELACKER, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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