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Cochran v. Columbia Gas of Ohio9/26/2000
o * perform, with reasonable accommodations, the essential functions of the job in question." Hood, at 302. " f the employer establishes a nondiscriminatory reason for the action taken, then the employee * must demonstrate that the employer's stated reason was a pretext for impermissible discrimination." Id., citing Plumbers & Steamfitters, at 198. "' reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.'" Brown v. Renter's Choice, Inc. (N.D.Ohio 1999), 55 F.Supp. 2d 788, 795, quoting St. Mary's Honor Ctr. v. Hicks (1993), 509 U.S. 502, 512, n.4. Ohio courts have held that, when interpreting R.C. Chapter 4112, it is appropriate to look at analogous federal statutes and case law. See Wooten v. Columbus, Div. of Water (1993), 91 Ohio App.3d 326, 334.
The evidence refutes appellant's claim that appellee regarded him as having any sort of a mental impairment that would entitle him to relief under R.C. 4112.02. While appellee terminated appellant in light of Dr. Litvak's report, in that report, Dr. Litvak stated that he was unable to determine whether appellant's behavior was due to a mental disorder. Moreover, Dr. Litvak's personal evaluation of appellant demonstrated that appellant did not have a mental disorder. It is mere speculation on the part of appellant that appellee formed a belief that contradicted Dr. Litvak's opinion.
Appellant suggests that "being perceived to be a 'potential danger'" by itself amounts to a perceived mental impairment. Appellant was unable, however, to provide any authority for this proposition. The cases that appellant cites are distinguishable. Gilday v. Mecosta County (C.A.6, 1997), 124 F.3d 760, did not address what is required to establish a "regarded as" claim of handicap discrimination, as the parties in that case agreed that the employee's diabetes constituted an actual physical impairment. In Holihan v. Lucky Stores, Inc. (C.A.9, 1996), 87 F.3d 362, 366, the court concluded that the employee presented sufficient evidence that he was regarded as mentally impaired because his employer had received several doctors' reports diagnosing the plaintiff with depression, anxiety and stress. Similarly, the court determined in Stradley v. LaFourche Communications, Inc. (E.D.La. 1994), 869 F.Supp. 442, 443-444, that an employee presented evidence that he was regarded as mentally impaired where the employee had been diagnosed with Adjustment Disorder with Mixed Emotional Features and his supervisor testified that he believed that the employee was suffering from acute anxiety and depression.
In the absence of any evidence or authority whatsoever, this court is unwilling to conclude that an employee is perceived as mentally impaired merely because his employer believes that the employee's behavior poses a potential danger, where an evaluating psychiatrist has been unable to diagnose an actual mental impairment. This court finds that appellant has failed to provide evidence that he was regarded as having a mental impairment.
Even if appellant had established a prima facie case of handicap discrimination, summary judgment would be warranted for the additional reason that appellee provided a legitimate, nondiscriminatory reason for the termination, and appellant has provided no evidence that the proffered reason was a pretext for impermissible discrimination.
The undisputed evidence demonstrates that appellee received corroborated reports that appellant had struck an employee with a notebook, grabbed an employee around the neck and brandished an open pocketknife. The evidence further demonstrates that Dr. Litvak concluded that appell
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