COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67225 DANICA STEVANOVIC : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION MODERN TOOL & DIE COMPANY, ET AL: : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 20, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CV-251583 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DAVID ROLOFF WALLY MUELLER Gaines & Stern Co., L.P.A. 1400 Renaissance Center 1350 Euclid Avenue Cleveland, Ohio 44115-1817 For Defendant-Appellee: DAVID R. KNOWLES CHRISTOPHER A. HOLECEK 6100 Rockside Woods Blvd. Suite 345 Cleveland, Ohio 44131 - 2 - O'DONNELL, J.: Plaintiff Danica Stevanovic filed an unlawful discriminatory practices case against defendant Modern Tool & Die alleging that her condition of tinnitus meets the statutory definition of handicap and that Modern Tool & Die terminated her employment as a result of this condition. On May 18, 1987, while working in the press room of the Modern Tool & Die plant located on West 130th in Cleveland, Ohio, an air hose burst and plaintiff heard an explosion behind her head. Plaintiff removed the ear plugs she was wearing and she could not hear anything, but approximately thirty five minutes later she regained her hearing. Since that incident, she has experienced chronic tinnitus, commonly referred to as a condition of ringing in the ears, which she claims is aggravated by increased pressure from the use of ear protection. Plaintiff continued to work until May, 1988, when Modern Tool & Die granted plaintiff medical leave due to tinnitus. In July, 1988, when plaintiff returned to work, she attempted to wear ear muffs instead of ear plugs, but the pressure increased her ear problem. Modern Tool & Die transferred her to the assembly and shredder line, because it required no ear protection in that area, and she proceeded to work in that area until March, 1991. In 1991, however, Modern Tool & Die, as a result of OSHA requirements, implemented a new hearing policy which required all production employees who work in noise levels above eighty five - 3 - decibels to wear ear protection. Thereafter, Modern Tool & Die granted plaintiff another medical leave beginning March 25, 1991, because she could not wear the required ear protection. During the period of her second medical leave, plaintiff failed to comply with provisions of the collective bargaining agreement between plaintiff's union and Modern Tool & Die, which required her to update the status of her medical condition by submitting a monthly physician's authentication form. As a result of her failure to submit the required medical forms, on July 24, 1991, Modern Tool & Die terminated plaintiff's employment, but, upon being supplied the required forms, reinstated her on August 8, 1991. On August 9, 1991, plaintiff filed charges with the Ohio Civil Rights Commission against Modern Tool & Die alleging both sex and handicap discrimination. By letter dated January 30, 1992, the Ohio Civil Rights Commission dismissed these charges and no appeal was taken from that decision. After reinstatement, plaintiff requested she be allowed to work without the use of ear plugs or ear muffs. Modern Tool & Die denied this request, but did grant her a second medical leave of absence. During this absence, plaintiff again failed to supply Modern Tool & Die with the monthly physician's authentication forms as of February, 1992. By letter dated January 6, 1992, Modern Tool & Die informed her that reinstatement with the company was premised on submitting the - 4 - required forms each month and that she had failed to comply. Because plaintiff failed to remedy this situation, on May 12, 1992, Modern Tool & Die again terminated her employment. Approximately one year later, on May 3, 1993, plaintiff filed the instant action in conformity with Chapter 4112 of the Revised Code. On February 18, 1994, Modern Tool & Die filed its motion for summary judgment, on April 1, 1994, plaintiff responded, and on April 5, 1991, the trial court granted summary judgment for Modern Tool & Die, finding the motion was "unopposed, well-taken and granted." Plaintiff appeals from the grant of summary judgment and raises three assignments of error. I. Plaintiff's first assignment of error contends: THE TRIAL COURT'S AWARD OF SUMMARY JUDGMENT IN FAVOR OF MODERN TOOL & DIE WAS ERRONEOUS BECAUSE STEVANOVIC PRESENTED EVIDENCE SUPPORTING A PRIMA FACIE CASE OF HANDICAP DISCRIMINATION AND MODERN TOOL AND DIE FAILED TO CARRY ITS BURDEN IN ESTABLISHING THE AFFIRMATIVE DEFENSE OF OCCUPATIONAL HAZARD. Plaintiff alleges that her condition of chronic tinnitus constitutes a handicap as defined in R.C. 4112.02(A)(13) and Modern Tool & Die is therefore subject to an action for damages because it terminated her employment due to her condition. Modern Tool & Die believes summary judgment was properly granted because plaintiff's ear condition does not qualify as a handicap pursuant to Chapter 4112 of the Revised Code. The issue for our - 5 - review then is whether plaintiff presented a prima facie case of unlawful discriminatory practices which would preclude summary judgment in favor of Modern Tool & Die. Summary judgment is governed by Civ.R. 56(C), which provides as follows: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, (and) answers to interrogatories *** 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. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" Wooten v. Columbus, Div. of Water (1993), 91 Ohio App.3d 326. The burden of establishing that no genuine issue of material fact exists and that summary judgment should be granted in its favor as a matter of law falls squarely on Modern Tool & Die, the moving party. R.C. 4112.02 defines the cause of action being advanced by plaintiff in this case and states in pertinent part: "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." R.C. 4112.99 further defines the cause of action which renders an employer liable for breach of 4112.02 and states: - 6 - "Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief." We therefore must first examine whether plaintiff has a justiciable cause of action. In Wooten v. Columbus, Div. of Water (1993), 91 Ohio App.3d 326, at paragraph 4 of the syllabus, Judge Whiteside set forth a test to determine whether plaintiff has established a prima facie case: "(A) prima facie case of handicap discrimination in employment consists of showing that plaintiff is handicapped, that challenged employment action was taken at least in part because he is handicapped, and that he can safely and substantially perform essential functions of the job in question with reasonable accommodations despite his handicap." We therefore conclude that any plaintiff, in order to recover, must establish an unlawful discriminatory practice on the part of an employer taken against an employee because of race, color, religion, sex, national origin, handicap, age, or ancestry and that the employee can perform the essential functions of the job in question with reasonable accommodations despite this handicap. As further defined in R.C. 4112.01(A)(13), a handicap means: "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. (Emphasis added). - 7 - Therefore, in this case, plaintiff bears the burden of proof to establish that the handicap of which she complains meets the definition of 4112.01(A)(13), that the termination of her employment by Modern Tool & Die was due to that handicap, and that she can safely and substantially perform the essential functions of the job with reasonable accommodations. Our review of the record in this case, including plaintiff's deposition, fails to present evidence of a substantial limitation of one or more major life activities on the part of plaintiff. Absent this evidence, we conclude as a matter of law that plaintiff's condition of chronic tinnitus does not qualify as a handicap under R.C. 4112.01(A)(13). Next, the record before us reveals that plaintiff failed to submit the required monthly physician's authorization forms to Modern Tool & Die and that this was the reason for her termination. After reinstatement, plaintiff again failed to comply with this condition in the collective bargaining agreement. No evidence exists to controvert this state of the record. Hence, plaintiff failed to show the existence of any genuine issue of material fact and therefore the trial judge could conclude that Modern Tool & Die's action was taken for reasons other than her ear problem. Finally, according to Wooten, in order to prevail, plaintiff must establish an ability to safely and substantially perform the essential functions of an available job with reasonable accommodation. In this case, - 8 - plaintiff failed to establish the availability of a position which she could perform with reasonable accommodation. Because we find plaintiff has failed to demonstrate a genuine issue of material fact as required by Civ.R. 56(C) and we determine as a matter of law that plaintiff's condition of chronic tinnitus does not meet the statutory definition of handicap under 4112.01(A)(13), that plaintiff was not terminated due to her condition, and failed to establish the availability of a job she could perform, we conclude that Modern Tool & Die is not guilty of an unlawful discriminatory practice. This assignment of error is without merit and is overruled. II. Plaintiff's second assignment of error claims: STEVANOVIC WAS NOT BARRED FROM MAINTAINING AN ACTION UNDER O.R.C. 4112.99 BECAUSE SHE HAD FILED A CHARGE OF DISCRIMINATION WITH THE OHIO CIVIL RIGHTS COMMISSION AGAINST MODERN TOOL & DIE CONTESTING A PRIOR TERMINATION. III. Plaintiff's third assignment of error claims: THE TRIAL COURT IMPROPERLY CONCLUDED THAT MODERN TOOL & DIE'S MOTION FOR SUMMARY JUDGMENT WAS "UNOPPOSED" WHEN STEVANOVIC FILED A BRIEF IN OPPOSITION ON APRIL 1, 1994, WHICH WAS THE DEADLINE ESTABLISHED IN THE COURT'S CASE MANAGEMENT ORDER. - 9 - Our disposition of the first assignment of error renders these remaining assignments moot. Pursuant to App.R. 12(A)(1)(c), we are not to decide them. Accordingly, the judgment of the trial court is affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .