[Cite as Hall v. Crawford Cty. Job & Family Servs.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

SARAH HALL,

PLAINTIFF-APPELLANT, CASE NO. 3-21-19

v.

CRAWFORD COUNTY JOB AND FAMILY SERVICES, OPINION

DEFENDANT-APPELLEE.

Appeal from Crawford County Common Pleas Court Trial Court No. 19-CV-0170

Judgment Affirmed

Date of Decision: April 25, 2022

APPEARANCES:

Michael T. Conway for Appellant

Daniel T. Downey and Stephanie L. Schoolcraft for Appellee Case No. 3-21-19

ZIMMERMAN, P.J.

{¶1} Plaintiff-appellant, Sarah Hall (“Hall”), appeals the September 16, 2021

decision of the Crawford County Court of Common Pleas granting summary

judgment in favor of defendant-appellee, Crawford County Job and Family Services

(“CCJFS”). For the reasons that follow, we affirm.

{¶2} On August 16, 2019, Hall filed a complaint in the trial court alleging

that she was terminated from her employment with CCJFS in violation of Chapter

4112 of the Ohio Revised Code. CCJFS filed an answer on September 16, 2019.

{¶3} On April 15, 2021, CCJFS filed a motion for summary judgment in

which it interpreted Hall’s second cause of action as a disability-discrimination

claim and argued that there is no genuine issue of material fact that Hall “cannot

establish the prima facie case for her disability discrimination and retaliation

claims.” (Doc. No. 16). After being granted an extension of time, Hall filed a

memorandum in opposition to CCJFS’s motion for summary judgment on June 1,

2021. In her memorandum in opposition to CCJFS’s motion for summary

judgment, Hall disagreed with CCJFS’s interpretation of her second cause of action

and asserted that her second cause of action is a prohibited-inquiry claim. On June

15, 2021, CCJFS filed its reply to Hall’s memorandum in opposition to its motion

for summary judgment in which it argued, in relevant part, that Hall’s assertion that

her second cause of action is a prohibited-inquiry claim is “an improper attempt by

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[Hall] to modify her Complaint through arguments in her [memorandum] in

opposition to a motion for summary judgment.” (Doc. No. 25).

{¶4} On September 16, 2021, the trial court granted summary judgment in

favor of CCJFS after concluding that no genuine issue of material fact remained that

Hall cannot establish that CCJFS discriminated or retaliated against her based on

her disability. (Doc. No. 29). Specifically, the trial court addressed Hall’s

disability-discrimination claim and concluded that there is no genuine issue of

material fact that Hall “could perform the essential job functions, with or without

accommodation” and that CCJFS provided Hall a reasonable accommodation. (Id.).

As to Hall’s retaliation claim, the trial court concluded that there is no genuine issue

of material of fact that there was no causal connection between the adverse

employment action and a protected activity. Furthermore, the trial court concluded

that, even construing Hall’s second cause of action as a prohibited-inquiry claim,

“[t]he information that [CCJFS] obtained was job-related and necessary” because

“the information that they obtained was used to provide [Hall] with reasonable

accommodations in completing her job duties.” (Id.).

{¶5} On October 15, 2021, Hall filed her notice of appeal. She raises five

assignments of error for our review, which we review together.

Assignment of Error No. I

The Court of Common Pleas Erred to the Material Prejudice of the Appellant When it Granted the Appellee [sic] Motion for

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Summary Judgment on Sarah Hall’s RC 4112.02 (A) Prohibited Inquiry Claim. (Appx “A” at pg. 16-17).

Assignment of Error No. II

The Court of Common Pleas Erred to the Material Prejudice of the Appellant When it Granted the Appellee [sic] Motion for Summary Judgment on a RC 4112.02 (A) Failure to Accommodate Disability Claim Which Was Not Being Pursued As a Claim in the Trial Court or on MSJ Opposition by the Appellant. (Appx “A” at pg. 8-12).

Assignment of Error No. III

The Court of Common Pleas Erred to the Material Prejudice of the Appellant When it Granted the Appellee [sic] Motion for Summary Judgment Finding the Appellant Must Prove She is Disabled to Support a RC 4112.02 (I) Retaliation Cause of Action

Assignment of Error No. IV

The Court of Common Pleas Erred to the Material Prejudice of the Appellant When it Granted the Appellee [sic] Motion for Summary Judgment Finding the Appellant Asking for An Accommodation For Multiple Sclerosis Disability is Not Protected Activity Under Ohio RC 4112.02 (I) and Further Representing it Was Not Dismissing the Case Based on Review of That Element of the Prima Facie [sic] and Then Did So Regardless. (Appx A at pg. 13-14, 16).

Assignment of Error No. IV

The Court of Common Pleas Erred to the Material Prejudice of the Appellant When it Granted the Appellee [sic] Motion for Summary Judgment on the RC 4112.02 (I) Retaliation Claim Finding in Effect There is No Genuine Issue of Material Factual Dispute as to What the Actual Employer’s Motivation/Cause Was for Terminating Sarah Hall’s Employment. (Appx. A at 16).

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{¶6} In her assignments of error, Hall argues that the trial court erred by

granting summary judgment in favor of CCJFS. In particular, in her first and second

assignments of error, Hall argues that the trial court erred by granting summary

judgment in favor of CCJFS by addressing her second cause of action as a disability-

discrimination claim and further concluding that there is no genuine issue of

material fact that CCJFS conducted a prohibited inquiry. Under her third, fourth,

and fifth assignments of error, Hall specifically argues that the trial court erred by

concluding that there are no genuine issues of material fact that CCJFS retaliated

against her based on her disability.

Standard of Review

{¶7} We review a decision to grant summary judgment de novo. Doe v.

Shaffer,

(2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47,

, citing Costner Consulting Co. v. U.S.

Bancorp,

,

, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party

is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn.,

(1994).

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{¶8} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88,

, citing

Dresher v. Burt,

(1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.”

citing

.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.”

citing Dresher at 292 and Civ.R. 56(E).

Analysis

{¶9} “Title I of the [Americans with Disabilities Act (“ADA)”] prohibits

certain employers from terminating ‘an employee because the employee is disabled,

because the employee has a record of being disabled, or because the employer

“regards” the employee as disabled.’” (Emphasis sic.) Equal Emp. Opportunity

Comm. v. Blue Sky Vision, LLC, W.D.Mich. No. 1:20-CV-285,

,

*7 (Nov. 1, 2021), quoting Babb v. Maryville Anesthesiologists P.C.,

(6th Cir. 2019). In Ohio, “R.C. 4112.02(A) provides that it is ‘an unlawful

discriminatory practice’ ‘[f]or any employer, because of the * * * disability * * * of

any person * * * to discriminate against that person with respect to hire, tenure,

terms, conditions, or privileges of employment, or any matter directly or indirectly

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related to employment.’” Chiancone v. Akron, 9th Dist. Summit No. 26596, 2014-

Ohio-1500, ¶ 15, quoting R.C. 4112.02(A). Consequently, “[t]he ultimate issue in

cases where a plaintiff alleges employment discrimination in violation of R.C.

Chapter 4112 is whether the adverse employment action was motivated by

discriminatory intent.”

citing Columbus Civ. Serv. Comm. v. McGlone,

(1998).

{¶10} “In interpreting Ohio law, courts may look to federal regulations and

case law in interpreting the” ADA. Hart v. Columbus Dispatch/Dispatch Printing

Co., 10th Dist. Franklin No. 02AP-506,

, ¶ 24, citing

. “However, the Supreme Court of Ohio refined this statement, and ‘federal

materials may only be utilized “when the terms of the federal statute are consistent

with Ohio law or when R.C. Chapter 4112 leaves a term undefined.”’” Carnahan

v. Morton Bldgs. Inc., 3d Dist. Paulding No. 11-14-04,

(Preston, J., concurring), quoting Dalton v. Ohio Dept. Rehab. & Corr., 10th Dist.

Franklin No. 13AP-827,

, quoting Scalia v. Aldi, Inc., 9th Dist.

Summit No. 25436,

, citing Genaro v. Cent. Transport,

(1999).

{¶11} “To establish a prima facie case of disability discrimination under R.C.

4112.02, a plaintiff must demonstrate that: (1) he or she is disabled; (2) his or her

employer took an adverse employment action against him or her at least partially

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based upon the disability; and (3) the he or she could safely and substantially

perform the essential functions of his or her job despite disability.” Niles v. Natl.

Vendor Servs., Inc., 10th Dist. Franklin No. 10AP-128,

, ¶ 26,

citing Pinchot v. Mahoning Cty. Sheriff’s Dept.,

, 2005-Ohio-

6593, ¶ 10 (7th Dist.), citing Hood v. Diamond Prods., Inc.,

, 302

(1996). See also

(“In a disability-discrimination case under R.C.

4112.02(A), the burden is on the employee to establish a prima-facie case of

disability discrimination in the absence of direct evidence of discrimination.”).

{¶12} “Once an employee successfully establishes a prima-facie case of

disability discrimination, the burden ‘shift[s] to the employer to articulate some

legitimate, nondiscriminatory reason for the employee’s rejection.’”

, quoting McDonnell Douglas Corp. v. Green,

,

,

(1973), and citing Raytheon Co. v. Hernandez,

,

(2003)

(applying the McDonnell Douglas burden-shifting scheme to disability-

discrimination cases) and Hood at 302 (applying the burden-shifting analysis to

disability-discrimination cases under Ohio law). “‘[I]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., quoting Hood at 302.

{¶13} “Disability” is defined by the statute as

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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.

R.C. 4112.01(A)(13). Therefore, under the statute, a claimant can establish that he

or she has a disability in three potential ways.

.

{¶14} “A plaintiff who has established that he is disabled for R.C. 4112.02

purposes may further establish a discrimination claim by showing that the employer

has declined to make a reasonable accommodation to known disabilities if such

accommodation would not cause undue hardship on the employer.” Niles, 2010-

Ohio-4610, at ¶ 27. The employee bears the burden of proposing an accommodation

and showing that the accommodation is objectively reasonable.

{¶15} In this case, Hall argues under her first assignment of error that the

trial court erred by granting summary judgment in favor of CCJFS as to her

“prohibited inquiry claim.” (Appellant’s Brief at 17). In response, CCJFS contends,

“[a]s the lower court properly recognized, Hall failed to plead her claim that

[CCJFS] improperly inquired about Hall’s medical condition.” (Appellee’s Brief at

12).

{¶16} “Ohio is a notice-pleading state.” Pugh v. Sloan, 11th Dist. Ashtabula

No. 2019-A-0031,

. Under Civ.R. 8(A), “[a] pleading that

sets forth a claim for relief * * * shall contain (1) a short and plain statement of the

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claim showing that the party is entitled to relief, and (2) a demand for judgment for

the relief to which the party claims to be entitled.” “Each averment of a pleading

shall be simple, concise, and direct. No technical forms of pleading or motions are

required.” Civ.R. 8(E)(1). In sum, “[t]he statement of the claim must give the

defendant fair notice of the plaintiff’s claim and the grounds upon which it is based.”

.

{¶17} Here, in addition to the retaliation claim under R.C. 4112.02(I), Hall

raised the following claim in her complaint as her second cause of action:

The conduct of the Defendant, acting by its agents, in refusing to accommodate the Plaintiff’s MS disability and using a fitness for duty examination to further a discriminatory purpose amounts to discrimination based upon a disability, in violation of Ohio RC 4112.02. damage [sic] as averred.

(Doc. No. 1). CCJFS and the trial court interpreted Hall’s second cause of action as

a disability-discrimination claim along with a failure to accommodate.

Nevertheless, in her memorandum in opposition to CCJFS’s motion for summary

judgment, and in her first assignment of error, Hall contends that the foregoing cause

of action is a prohibited-inquiry claim. Specifically, Hall asserts that her complaint

alleged sufficient operative facts to put CCJFS on notice that her second cause of

action alleged a prohibited-injury claim. Those facts, according to Hall are:

15. [CCJFS’s] HR officer then advised [Hall] in March 2018 to take FMLA leave in spite of the fact she was not suffering from an FMLA qualifying illness. [Hall] refused to take the leave although she had her doctor fill out the FMLA forms regardless as instructed by HR.

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[Hall] submitted FMLA forms on March 26, 2018 indicating [she] suffers from MS symptoms.

16. [Hall] was then given a 3 day disciplinary suspension for not being able to do her job competently (without training or accommodation) on March 27, 2018.

17. [CCJFS] * * * disputed [Hall’s] FMLA leave diagnosis after it insisted that [she] take FMLA leave, and demanded more medical evidence from her doctor in April 2018 claiming it wanted to make a fitness for duty evaluation of her.

(Doc. No. 1).

{¶18} Even if we liberally construe Hall’s complaint (as we are required to

do), there is no genuine issue of material fact that Hall failed to prove that CCJFS

improperly inquired about her disability. See Boyland v. Giant Eagle, 10th Dist.

Franklin No. 17AP-133,

(noting that courts shall liberally

construe pleadings), citing MacDonald v. Bernard,

(1982), fn.

1, citing Civ.R. 1(B); Sherrer v. Hamilton Cty. Bd. of Health,

(S.D.Ohio 2010).

{¶19} “The ADA was enacted in 1990 ‘to provide a clear and comprehensive

national mandate for the elimination of discrimination against individuals with

disabilities.’” State ex rel. Mahajan v. State Med. Bd. of Ohio,

,

, quoting 42 U.S.C. 12101(b). Under the ADA, “[m]edical

examinations and inquiries of current employees are prohibited if they seek to

determine ‘whether such employee is an individual with a disability or as to the

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nature or severity of the disability, unless such examination or inquiry is shown to

be job-related and consistent with business necessity.’”

, quoting

42 U.S.C. 12112(d)(4)(A).

{¶20} “The employer bears the burden of proving that a medical examination

[or disability inquiry] is job-related and consistent with business necessity by

demonstrating that: ‘(1) the employee requests an accommodation; (2) the

employee’s ability to perform the essential functions of the job is impaired; or (3)

the employee poses a direct threat to himself or others.’” Kroll v. White Lake

Ambulance Auth.,

(6th Cir. 2014), quoting Denman v. Davey Tree

Expert Co.,

(6th Cir. 2007). Blue Sky Vision, LLC,

, at *7 (“Because the same statutory provision both permits medical

examinations and disability inquiries, the same circumstances that authorize

medical examinations also permit the disability inquiries.”). “The employer must

show the disability-related inquiry is ‘no broader or more intrusive than necessary’

and is a ‘reasonably effective method’ of achieving a business necessity.” Miller v.

Whirlpool Corp.,

(N.D.Ohio 2011), quoting Conroy v. N.Y.

State Dep’t of Corr. Servs.,

, 97-98 (2d Cir. 2003). See also Jackson v.

Regal Beloit America, Inc., E.D.Ky. No. 16-134-DLB-CJS,

, *6

(June 21, 2018) (stating that “for unlawful-medical-examination claims, it is the

defendant who has the burden of persuasion, not the plaintiff”). “The business

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necessity standard is ‘quite high[ ] and is not [to be] confused with mere

expediency.’”

, quoting Cripe v. San Jose,

, 890 (9th

Cir. 2001).

{¶21} Importantly, when contesting “‘an allegedly improper’ medical

examination or inquiry under [42 U.S.C.] 12112(d)(4)(A),” “‘a plaintiff need not

prove’” “that he or she is disabled.”

, quoting Lee v. Columbus,

(6th Cir. 2011), and citing Kroll v. White Lake Ambulance Auth.,

(6th Cir. 2012). Therefore, courts generally analyze improper-medical

examination or inquiry claims without resorting to the typical ADA-discrimination

test.

See also Kroll,

; Bates v. Dura Auto. Sys., Inc.,

(6th Cir. 2014). Thus, the relevant inquiry is “‘(1) whether the employer

performed or authorized a medical examination or disability inquiry (“the regulated

conduct”); and if so, (2) whether the exam/inquiry was job-related and consistent

with business necessity (“the justification”).’”

, quoting Bates,

.

{¶22} Under this analysis, Hall must demonstrate that CCJFS engaged in an

improper disability inquiry. Accord

“If she does so, [CCJFS] will then ‘bear[ ]

the burden of proving that’ * * * inquiry was ‘job-related and consistent with

business necessity.’”

quoting Kroll,

. In this case, Hall contends

that CCJFS “attempted to illegally compel [her] on * * * March 29, 2018 * * * to

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use an FMLA leave request” to elicit information about her disability in

contravention of the ADA. (Appellant’s Brief at 9).

{¶23} A disability-related inquiry is generally defined as “‘a question (or

series of questions) that is likely to elicit information about a disability.’”

, quoting EEOC, Enforcement Guidance: Disability-Related Inquiries and

Medical Examinations of Employees Under the Americans with Disabilities Act

(ADA) Part B.1 (July 27, 2000). See also Kroll,

(noting that, because

“[t]he ADA’s legislative history provides little insight into the intended meaning or

scope of the term[s],” “the best interpretive aid is the Enforcement Guidance that

the EEOC has published to explain and clarify the terms of § 12112(d)(4)”). In

other words, the relevant inquiry is whether an employer seeks to reveal whether an

employee (or potential employee) suffers from a disability. See, e.g., Kroll,

(noting that “one must consider whether it is likely to elicit information

about a disability, providing a basis for discriminatory treatment”). However, “[t]he

nondisclosure provisions of the ADA do not govern voluntary disclosures of

medical information initiated by the employee.” Sherrer,

.

See also Cash v. Smith,

, 1307 (11th Cir. 2000).

{¶24} There is no dispute that Hall revealed her disability prior to CCJFS’s

March 29, 2018 request that she fill out the FMLA forms and submit to the fitness-

for-duty examination. Accord Cash at 1307 (“In this case, the disclosure that Cash

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complains of was not of the result of an examination ordered by [her employer], but

of a voluntary disclosure that Cash made to [her supervisor].”). In other words,

Hall’s disclosure prompted CCJFS to offer the FMLA paperwork and the fitness-

for-duty examination.

{¶25} Indeed, the record reveals that Hall informed CCJFS about her MS

diagnosis prior to the alleged improper inquiry. Notably, the record reflects that (on

November 17, 2017) Hall informed CCJFS that “she has MS and a fog that comes

and goes, that it is harder for her to process” and further “explained her health

condition might hinder her job duties.” (Doc. No. 21, Ex. 86).

{¶26} Moreover, Hall testified in her deposition that she informed CCJFS

“about having MS” at the March 20, 2018 pre-disciplinary conference and explained

the difficulties it caused her job performance. (Doc. No. 18, Hall Depo. at 83, 85).

(See also Doc. No. 22, Holtzman Depo. at 23); (Doc. No. 17, Defendant’s Ex. HH,

II). Likewise, Hall provided CCJFS with a letter on March 20, 2018 detailing her

MS diagnosis, including her symptoms and job difficulties, along with the results of

an MRI documenting her MS diagnosis. (Doc. No. 17, Defendant’s Ex. II). Hall

testified that CCJFS provided her with the FMLA paperwork thereafter. (Doc. No.

18, Hall Depo. at 83, 85). Furthermore, Hall testified that she informed her medical

provider that she “already told [CCJFS]” of her MS diagnosis in response to her

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medical provider’s advice to omit her specific diagnosis from the FMLA form. (Id.

at 86).

{¶27} Importantly, Hall directs us to no evidence that CCJFS made any

inquiry prior to or during the March 20, 2018 pre-disciplinary meeting which

prompted her disclosure. See

, citing Doe v. U.S. Postal Serv.,

(D.C.Cir. 2003) and Cash at 1307 (concluding that Cash

“disclosed her medical condition to her boss ‘in confidence’ but not pursuant to an

FMLA request nor in response to any specific questioning”). Consequently, based

on our review of the record, we conclude that there is no genuine issue of material

fact that Hall voluntarily disclosed her disability to CCJFS.

{¶28} Nevertheless, even assuming without deciding that Hall’s disclosure

was not voluntary, there is no genuine issue of material fact that such inquiry on the

part of CCJFS was job-related and consistent with business necessity. Specifically,

any inquiry on the part of CCJFS was made because there is no genuine issue of

material fact that Hall’s ability to perform the essential functions of the job were

impaired. Indeed, Hall informed CCJFS as early as November 2017 that her “health

condition might hinder her job duties” and Hall detailed the ways in which her

disability impaired the essential functions of her job in her March 20, 2018 letter to

CCJFS. (Doc. No. 17, Defendant’s Ex. II); (Doc. No. 21. Ex. 86). Consequently,

CCJFS was justified in requesting a fitness-for-duty examination and additional

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medical information from Hall’s physician regarding her condition. See Sullivan v.

River Valley School Dist.,

(6th Cir. 1999); Denman,

. Therefore, we conclude that there is no genuine issue of material

fact that CCJFS did not engage in an improper-disability inquiry under 42 U.S.C.

12112(d)(4)(A).

{¶29} Hall further argues that the trial court erred by granting summary

judgment in favor of CCJFS as to her retaliation claim under R.C. 4112.02(I). That

statute “prohibits ‘any person to discriminate in any manner against any other

person because that person has opposed any unlawful discriminatory practice

defined in this section or because that person has made a charge, testified, assisted,

or participated in any manner in any investigation, proceeding, or hearing under

sections 4112.01 to 4112.07 of the Revised Code.’” Stachura v. Toledo, 6th Dist.

Lucas No. L-19-1269,

, quoting R.C. 4112.02(I). “Because of

the similarities between R.C. 4112.02(I) and Title VII of the Civil Rights Act of

1964, Ohio courts look to federal case law for assistance in interpreting retaliation

claims under R.C. 4112.02(I).” Moody v. Ohio Dept. of Mental Health & Addiction

Servs., 10th Dist. Franklin No. 21A

, citing Grubach v.

Univ. of Akron, 10th Dist. No. 19AP-283,

.

{¶30} “To establish a prima facie case of retaliation, a claimant must prove

that ‘(1) she engaged in a protected activity, (2) the defending party was aware that

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the claimant had engaged in that activity, (3) the defending party took an adverse

employment action against the employee, and (4) there is a causal connection

between the protected activity and adverse action.’”

, quoting

Greer-Burger v. Temesi,

,

, ¶ 13. See also

Moody at ¶ 36, citing Wu v. Northeast Ohio Med. Univ., 10th Dist. Franklin No.

18AP-656,

, ¶ 29 (noting that retaliation claims, similar to

discrimination claims, which are based on indirect evidence, are evaluated under the

McDonnell Douglas analytical framework). “‘If a complainant establishes a prima

facie case, the burden then shifts to the employer to “articulate some legitimate,

nondiscriminatory reason” for its actions.’”

quoting Greer-Burger at ¶ 14,

quoting McDonnell Douglas Corp.,

. “‘If the employer satisfies this

burden, the burden shifts back to the complainant to demonstrate “that the proffered

reason was not the true reason for the employment decision.”’”

quoting Greer-

Burger at ¶ 14, quoting Texas Dept. of Community Affairs v. Burdine,

,

(1981).

{¶31} In this case, Hall argues that genuine issues of material fact remain

regarding whether she engaged in a protected activity and whether there is a causal

connection between the protected activity and adverse action. Specifically, Hall

argues that there are genuine issues of material fact as to whether she engaged in the

protected activity of requesting a reasonable accommodation whether there is a

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causal connection between her reasonable-accommodation request and her

progressive discipline and ultimate termination. That is, Hall argues, “[b]ecause the

Court did not analyze the case from the perspective that requesting an

accommodation is lawful protected activity under RC 4112.02 (I), the Trial Court’s

analysis finding no retaliation against HALL [sic] by CCJFS occurred [sic] is flawed

throughout its dispositive order, and reversal of the prejudicial error is required.”

(Appellant’s Brief at 24). Thus, this court will address only whether the trial court

erred by granting summary judgment in favor of CCJFS as to Hall’s argument that

CCJFS retaliated against her for engaging in the protected activity of requesting a

reasonable accommodation.

{¶32} Nevertheless, the protected-activity argument that Hall raises in her

argument in this appeal is without merit. Indeed, any suggestion that requesting a

reasonable accommodation is a protected activity under R.C. 4112.02(I) is specious,

and Hall’s reliance on federal-case law suggesting that requesting a reasonable

accommodation is a protected activity under Ohio law is misplaced.

{¶33} As we previously noted, Ohio courts may look to federal-case law

interpreting the ADA when construing Ohio law. Accord Hart,

, at

¶ 24. However, the Supreme Court of Ohio cautioned that these federal materials

may only be consulted “when the terms of the federal statute are consistent with

Ohio law or when R.C. Chapter 4112 leaves a term undefined.” Scalia, 2011-Ohio-

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6596, at ¶ 23. In this case, because the terms of the ADA are not consistent with

R.C. 4112.02(I), the federal materials on which Hall relies are inapposite.

{¶34} Rather, our sister appellate district determined that requesting a

reasonable accommodation does not constitute a protected activity under R.C.

4112.02(I). Musil v. Gerken Materials, Inc., 6th Dist. Lucas No. L-19-1262, 2020-

Ohio-3548, ¶ 20. See also Rorrer v. Stow,

(6th Cir. 2014). But

see Johnson v. Cleveland City School Dist., 8th Dist. Cuyahoga No. 94214, 2011-

Ohio-2778, ¶ 68 (concluding, without citation to authority, that requesting a

reasonable accommodation constitutes a protected activity). Interpreting the statute,

the Sixth District Court of Appeals reasoned that, since “R.C. 4112.02(I) states that

it is unlawful to discriminate against a person because that person has ‘opposed any

unlawful discriminatory practice,’ or ‘made a charge, testified, assisted, or

participated in any manner in any investigation, proceeding, or hearing,’ and a

request for an accommodation is “not participation in an investigation, proceeding,

or hearing” or “opposition to an unlawful discriminatory practice.” Musil at ¶ 20.

Importantly, the court resolved that “the act of terminating a person for requesting

a reasonable accommodation would be the discriminatory practice itself.”

{¶35} Based on that reasoning, we agree that Hall’s request for a reasonable

accommodation is not a protected activity under R.C. 4112.02(I). Accord

Consequently, since Hall cannot demonstrate the first element of her retaliation

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claim under R.C. 4112.02(I), Hall cannot demonstrate that a genuine triable issue of

fact remains as to an essential element of her retaliation claim. Accordingly, we

conclude that no genuine issues of material fact exist regarding Hall’s retaliation

claim. Therefore, the trial court did not err by granting summary judgment in favor

of CCJFS as to the retaliation claim.

{¶36} Finally, Hall argues that the trial court erred by granting summary

judgment in favor of CCJFS as to a failure-to-accommodate claim, which she asserts

she did not allege. However, Hall does not make any argument conveying how the

trial court’s error was “prejudicial” or “require[s] reversal.” (Appellant’s Brief at

21). An appellant has the burden of affirmatively demonstrating the error of the

trial court assigned on appeal. Riddle v. Riddle, 3d Dist. Marion No. 9-19-08, 2019-

Ohio-4405, ¶ 49. Indeed, “an appellate court may disregard an assignment of error

pursuant to App.R. 12(A)(2): ‘if the party raising it fails to identify in the record the

error on which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A).’” Rodriguez v. Rodriguez,

8th Dist. Cuyahoga No. 91412,

, ¶ 4, quoting App.R. 12(A);

Hawley v. Ritley,

(1988).

{¶37} App.R. 16(A)(7) requires that Hall include in her brief: “An argument

containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to

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the authorities, statutes, and parts of the record on which appellant relies. The

argument may be preceded by a summary.”

{¶38} “‘It is not the duty of an appellate court to search the record for

evidence to support an appellant’s argument as to any alleged error.’”

, quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001,

, *14 (Apr. 15, 1996). “An appellate court is not a performing bear, required

to dance to each and every tune played on an appeal.”

citing State v. Watson,

(12th Dist. 1998) and McGuire at *14. Because Hall

failed to include an argument containing her contentions with citations to the

authorities, statutes, and parts of the record on which she relies, we decline to review

it.

{¶39} Based on the forgoing reasons, Hall’s assignments of error are

overruled.

{¶40} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

MILLER and SHAW, J.J., concur.

/jlr

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