Cochran v. Columbia Gas of Ohio9/26/2000
vit, Cline affirmed the incident occurred and stated that, while he believed appellant was joking, he considered such conduct inappropriate in the workplace. Appellant denied that any of these incidents took place. It is undisputed, however, that these incidents were related to the investigations.
In the wake of this investigation, in July 1998, appellee removed appellant from his supervisory position and suspended him for two weeks. Appellee also referred appellant for physical and psychiatric exams to determine his fitness to work. The doctor who conducted the physical exam concluded that appellant was physically fit for duty.
The psychiatric evaluation was conducted by Dr. Ronald Litvak, a board certified forensic psychiatrist. Based on his personal evaluation of appellant, Dr. Litvak concluded that appellant did not have a mental disorder; however, appellee had relayed to Dr. Litvak the results of its investigation and, based on that information, Dr. Litvak concluded that appellant may have been untruthful during Dr. Litvak's evaluation. Consequently, Dr. Litvak opined that " t cannot be determined if the behavior in question at work is due to a mental disorder or not." He concluded that appellant "pose a significant risk of substantial harm to the health and/or safety of other employees." In an addendum to his report, Dr. Litvak recommended that appellee consider alternatives in handling the matter such as terminating appellant's employment. Based on Dr. Litvak's determination, appellee terminated appellant on October 16, 1998.
In his first assignment of error, appellant contends that he provided material facts sufficient to withstand appellee's motion for summary judgment on appellant's claim for wrongful discharge based on handicap discrimination. Appellant argues that he was terminated unlawfully because appellee regarded him as having a mental impairment.
R.C. 4112.02 provides in pertinent part as follows:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the * handicap * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
"Handicap" is defined as:
* 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, seeking, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment. [Emphasis added. R.C. 4112.01(13).]
In order to establish a prima facie case for unlawful handicap discrimination, a plaintiff must prove "(1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question." Hood v. Diamond Products, Inc. (1996), 74 Ohio St.3d 298, paragraph one of the syllabus.
"Once the plaintiff establishes a prima facie case of handicap discrimination, the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reason for the action taken." Id. at 302, citing Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 197. "Legitimate, nondiscriminatory reasons for the action taken by the employer may include * the inability of the employee * t
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