COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72991 MARION BLANKS, ET AL. : JOURNAL ENTRY : AND Plaintiffs-appellants : OPINION : -vs- : : GREATER CLEVELAND REGIONAL : TRANSIT AUTHORITY : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-304498 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: CARMINE CAMINO, ESQ. DAVID A. CRISAFI, ESQ. 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: BRUCE E. HAMPTON, ESQ. 615 West Superior Avenue Cleveland, Ohio 44113 -2- DYKE, J.: Plaintiffs Marion and Vicky Blanks appeal from the order of the trial court which entered summary judgment for defendant Greater Cleveland Regional Transit Authority (hereafter referred to as GCRTA ) in plaintiffs' action for unlawful termination of employment. For the reasons set forth below, we affirm. Plaintiff Marion Blanks was hired as a bus driver by GCRTA in 1975. On June 16, 1994, Blanks was injured while playing softball. He suffered an orbital fracture of his left eye and other injuries. The eye was severely injured; there was no movement and his sight deteriorated. Following the injury, Blanks was approved for twenty six weeks of leave from his employment. He underwent surgery in July 1994, August 1994, and November 1994. Thereafter, on December 13, 1994, Blanks was examined by his treating ophthalmologist, Dr. Edward Burney, who reported that plaintiff's vision was diminished in his injured eye, but that his vision was sufficient to permit plaintiff to return to work. Plaintiffs' complaint at paragraph nine. In a report prepared for GCRTA, Burney wrote: 2. Current Status: His most recent eye examination is 12-13-94. His visual acuity measured 20/20 OD and 20/100 OS with intra ocular pressures of 14mm Hg OU. His right eye is normal. His left eye shows the cornea to be clear. He has a small vitreous prolapse in the anterior chamber and a dense post- erior capsule cataract. 3. External examination: His conjunctiva has a bleb temporally. Posterior pole shows a dim view but there is no evidence of retinal detachment or choroidal elevation. The assessment of the exami- nation is stable status post repair of orbital -3- fracture status post trabeculectomy and status post revision of orbital fracture all on the left side. 4. Previous examination: His visual acuity was 20/70 prior to an episode of presumed inflammation. Since being put on Homatropine eye drops his vision is somewhat blurry presumably once he discontinues the Homatropine his vision should improve providing his cataract has not progressed. 5. Surgical prognosis of cataract: Removal is good with potential vision acuity meter reading of 20/40. At this time I recommend he return to work. However, cataract surgery may need to be performed in order for full rehabilitation. Should he require cataract surgery the estimated date of absence is 6-8 weeks, from the date of his actual surgical intervention. Thereafter, on December 16, 1994, pursuant to GCRTA policy, plaintiff visited with employer's doctor and produced Dr. Burney's report. GCRTA's doctor reviewed this document and refused to authorize Blanks to return to work. On December 21, 1994, Blanks was terminated from GCRTA pursuant to its Absence Control Policy, because his absence had exceeded six months. In May 1995, Blanks received a light duty position at a reduced rate of pay, and on June 19, 1995, he was reinstated to his former position and salary and benefit levels. It is undisputed that Blanks is a member of Local 268 of the Amalgamated Transit Union which has a collective bargaining agreement with GCRTA. This agreement protects GCRTA employees, including Blanks, from discharge except for just cause. Additionally, this agreement sets forth procedures for the arbitration of "any dispute, claim, grievance, or difference arising between the employee and GCRTA and further provides that the grievance may be pursued either by a union representative or by -4- the employee personally. It is undisputed that Blanks did not file a grievance to dispute GCRTA's determination that his visual acuity was insufficient to return to work and did not file a grievance following his termination. It is also undisputed that in January 1995, Blanks had lost most of the sight in his left eye. He underwent additional eye surgery in early 1995 and again in the spring of 1995. Following the last surgery, Dr. Burney indicated that the eye would return to normal after six to eight weeks. On March 6, 1996, plaintiffs filed this action alleging that GCRTA had violated the handicap protection provisions of R.C. Chapter 4112 wrongful discharge, that GCRTA was liable for infliction of emotional distress, that GCRTA was liable to Vicki Blanks for loss of consortium, that GCRTA had violated public policy in terminating a handicapped employee within the meaning of R.C. Chapter 4112, and that GCRTA had violated its own written policy of providing reasonable accommodations to employees who become disabled. On March 7, 1997, GCRTA moved for summary judgment. GCRTA asserted that Blanks had failed to exhaust the administrative remedies set forth in the collective bargaining agreement because he did not file a grievance following his termination. GCRTA further asserted that Blanks had merely suffered a transitory injury and was not handicapped within the meaning of R.C. Chapter 4112. GCRTA further maintained that plaintiffs could not prevail upon their claim of intentional infliction of distress since its -5- actions were neither extreme nor outrageous and Blanks had no evidence to demonstrate that he suffered severe emotional distress. On July 16, 1997, the trial court entered summary judgment for GCRTA. Plaintiffs now appeal and assign a single error for our review. Plaintiffs' assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY'S MOTION FOR SUMMARY JUDGMENT. Within this assignment of error, plaintiffs assert that the trial court erred in determining that GCRTA was entitled to summary judgment because he was wrongfully terminated in violation of the union agreement, the written company policy and the law. With regard to procedure, we note that summary judgment is proper if: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. See, also, State ex rel. Zimmerman v. Thompkins (1996), 75 Ohio St.3d 447,448. If the moving party meets this burden, the non-moving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. Id.; Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108. -6- With regard to the substantive law pertaining to plaintiffs' claim of handicap discrimination pursuant to R.C. Chapter 4112, plaintiffs were required to demonstrate that Blanks was "handicapped;" that CGRTA took an adverse employment action against him; and that Blanks could safely and substantially perform the essential functions of the job in question. See Hayes v. Cleveland Pneumatic Co. (1993), 92 Ohio App.3d 36, 42. In this instance, it is clear that this matter does not concern a handicap within the meaning of these statutory provisions. Pursuant to R.C. 4112.01 (A)(13), Handicap is defined as: A physical or mental impairment that substantially limits one or more major life activities, including the func- tions 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 impair- ment. This definition does not include transitory injuries which cause pain and inconvenience for a definite period of time, but have no adverse residual effects. Maloney v. Barberton Citizens Hospital (1996), 109 Ohio App.3d 372, 376. In this instance, the undisputed evidence of record demon- strates that at all relevant times Blanks was expected to make a full recovery and he in fact did so and was eventually returned to his previous employment. Blanks therefore has not articulated a claim of handicap discrimination. In any event, the undisputed facts of record indicate that the results of the December 13, 1995 eye examination conducted by Dr. -7- Burney show that Blank's visual acuity was "20/20 OD and 20/100 OS." The undisputed facts of record further demonstrate that in January 1995, Blanks had lost most of the sight in his left eye. Accordingly, Blanks completely failed to demonstrate that he could safely and substantially perform his duties as a bus driver during the period in which he was unemployed. As to plaintiff's claim for infliction of emotional distress, we note that the elements of this tort are: (1) that actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to plaintiff; (2) that actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was utterly intolerable in civilized society; (3) that actions were the proxi- mate cause of plaintiff's psychic injury; and (4) that mental anguish suffered was serious and of the nature that no reasonable person could be expected to endure it. Rine v. Sabo (1996), 113 Ohio App.3d 109, 118. Here, there is no evidence in the record that Blanks sustained severe emotional injury. (Blanks' deposition at 36). Accordingly, judgment was properly entered for GCRTA on this claim. Considering plaintiffs' claim that GCRTA violated its own policy regarding employees who become disabled, we note that in Beam v. Greater Cleveland Regional Transit Authority (May 20, 1993), Cuyahoga App. No. 61682, unreported, this court stated as follows: If "a labor contract sets forth a grievance pro- cedure to be used in resolving disputes between an -8- employer and an employee," common pleas courts have no subject matter jurisdiction unless the procedures are exhausted. Goode v. Cleveland (Dec. 6, 1990), Cuyahoga App. No. 57632, unreported (citing Ladd v. New York Central RR. Co. (1960), 170 Ohio St. 491, 503). Beam has been a Union member since 1984. He is seeking benefits and seniority rights under the Agree- ment. The Agreement's grievance procedure applies. Beam had two hearings when the Union refused to pro- ceed. If he wished to proceed, he was to do so personally. Beam has not exhausted the Agreement's grievance procedures. The common pleas court lacks subject matter jurisdiction over his claims. RTA's first assignment of error is sustained. In this instance, Blanks's employment with GCRTA is governed by a collective bargaining agreement. It sets forth procedures for the arbitration of "any dispute, claim, grievance, or difference either by a union representative or by the employee personally. Herein, Blanks admits that he discussed the matter with his union representative but the union refused to pursue the matter for him and Blanks did not personally do so. In light of this failure, Blanks has not exhausted his administrative remedies and the trial court was without jurisdiction over this claim. Id.; See, also, Young v. Greater Cleveland Regional Transit (November 19, 1992), Cuyahoga App. No. 61393, unreported, wherein this court stated: Furthermore, it is well established in Ohio that a party must exhaust available administrative remedies prior to seeking court action in an administrative matter. Noernberg v. City of Brookpark (1980), 63 Ohio St.2d 26, 406 N.E.2d 1095. Here, Young failed to exhaust administrative remedies when he opted not to appeal the Step 3 proceeding to Step 4. The collective bargaining agreement between the Union and GCRTA provided for an appeal to Step 4 and for subsequent arbitration. Young did not pursue these potential forms of remedy. Cf. Parks v. RTA (Dec. 11, 1986), Cuyahoga App. No. 51072, unreported. Young's argument that he had exhausted his administrative remedy because theft offenses were not -9- permitted to be appealed beyond Step 2 lacks merit. After Young's criminal charge for theft was dismissed, a Step 3 hearing was held. Moreover, the original grounds for Young's termination from his job were not solely based on theft, but also were for violations of his conditions of employment such as possessing cash while on the job as a magazine clerk. To the extent that the GCRTA failed to follow the collective bargaining agreement strictly by delivering the Step 3 decision two weeks later than required to Young, we do not believe that Young was then exempt from or unable to exhaust the administrative remedies available to him by way of the collective bargaining agreement. Young did receive notice of the Step 3 proceeding and elected not to appeal it. The trial court's grant of GCRTA's motion to dismiss was proper. ***such claim clearly does not derive from independent state law and should have been raised in accordance with the procedures set forth in the collective bargaining agreement. Plaintiffs argued before the trial court that they were not required to exhaust their administrative remedies because the handicap discrimination claims do not require construction of the collective bargaining agreement. That is, in reliance upon Lingle v. Norge Division of Magic Chef, Inc. (1988), 484 U.S. 399, plaintiffs asserted that these claims could be resolved on the basis of state law, without interpreting the collective bargaining agreement itself. Clearly, however, plaintiffs' claim that GCRTA violated its own policy regarding employees who become disabled cannot be resolved by application of independent state law and was subject to resolution through the collective bargaining process. Since Blanks failed to invoke that process, the trial court properly entered summary judgment for GCRTA as to this claim. Finally, inasmuch as the claim for loss of consortium was derivative, it likewise fails upon the failure of the other claims. -10- See Williams v. Warren General Hospital (1996), 115 Ohio App.3d, 87, 92-93. In accordance with the foregoing, the judgment of the trial court is affirmed. -11- It is ordered that appellee recover of appellants its 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. BLACKMON, A.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .