COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75365 JUDITH TORRES : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 1, 1999 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 334,084 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: ALAN BELKIN Attorney at Law 75 Public Square, #920 Cleveland, Ohio 44113 For defendant-appellee: CORNELL P. CARTER Law Director JENNIFER A. CORSO, Assistant MICHELLE A. MACECECIC, Ass't. ANTHONY N. PALOMBO, Assistant Room 106, City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 -2- KENNETH A. ROCCO,J.: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Plaintiff-appellant Judith Torres appeals from the trial court order that granted the motion for summary judgment filed by her former employer, defendant-appellee City of Cleveland, thus termi- ating appellant's action for handicap discrimination.1 Appellant asserts the evidence submitted to the trial court demonstrates genuine issues of material fact remain as to her claim. After a review of the record, however, this court concludes the trial court's action was appropriate; therefore, its order is affirmed. The evidentiary materials submitted to the court below, all of which were attached only to appellee's motion for summary judgment, established the following facts: Appellant began her employment with appellee in May 1987. She was assigned to the Department of Public Safety and worked as a technician for the Emergency Medical Service ( EMS ). Although appellant received several letters of commendation during her tenure as an EMS technician, she also was the subject of several 1As noted in a trial court journal entry, appellant's additional claim of retaliatory discharge was orally abandoned during a pretrial conference. Appellant therefore presents no argument on appeal as to that claim. -3- disciplinary actions. In August 1988, appellant was disciplined for sick leave abuse 2 since her absence from work was excessive for the preceding three months. In October 1989, appellant again was disciplined for sick leave abuse; a note on the warning letter signed by appellant indicated appellant had taken three days off without a physician's excuse during pregnancy. In July 1991, appellant was disciplined a third time for an abusive sick time pattern. In March 1992, appellant was notified by the Assistant Chief of the department that her actions during an EMS run were inconsistent with our current patient care protocol ; she therefore received a warning of further disciplinary action should other similar incidents occur. In October 1992, appellant's altercation with her partner during the treatment and transport of a patient was the subject of a predisciplinary hearing. The record reflects appellant began attending law school sometime in 1992. In August 1993, she requested a change in shift assignment in order to accommodate her academic schedule. Appel- lant's request was granted. Soon thereafter, appellant requested a second change in her work schedule to further accommodate her academic schedule ; however, this request was denied based on operational needs. 2Quotes are taken from the evidentiary material filed in the trial court. -4- Appellant then requested a leave of absence for the period from September 1993 through June 1994 due to extenuating circum- stances. Appellant informed the EMS's Chief of Operations she needed some time in order to pursue her academic studies. Appellant's request for a leave of absence also was denied due to operational needs. Upon this denial, appellant notified the EMS's Commissioner that she was resigning her position because her leave of absence was turned down. Appellant subsequently requested reinstatement to the eligible list of employees. Her request was disapproved for the following reasons: (1) she was disciplined for sick time abuse; (2) she was given a written warning for disregarding patient care protocol in 1992; and (3) she had a history that included confrontation with her partner and other members of the division. In May 1997, appellant instituted this action against appellee, alleging in pertinent part that she suffered from gynecological problems which necessitated surgery and recurring complications from that surgery. Appellant further alleged she began leave from her employment in October 1993 for medical reasons and that appellee's refusal to reinstate her employment was because of her handicap and was, therefore, discriminatory. After appellee filed its answer, discovery proceeded in the case. Subsequently, appellee filed its motion for summary judgment arguing appellant could not sustain a claim of handicap discrimina- tion. -5- Appellee attached to its motion, inter alia, copies of the following: (1) appellant's responses to appellee's requests for admissions; (2) the affidavit of the Chief of Operations of the EMS; (3) appellant's September 1993 request for a leave of absence; (4) appellant's notice of resignation; (4) the Request for Reinstatement form that detailed the reasons for the disapproval of appellant; (5) pages of appellee's personnel manual explaining the sick/absence abuse control procedures ; and (6) appellant's disciplinary notices. After the filing of appellee's motion, the parties filed together in the trial court a Joint Submission of Stipulations. Appellant stipulated therein that she does not hold herself out to be a person with a disability and claims that she was discrimi- nated against on the basis of a perceived disability ; however, she did not indicate any intent to amend her complaint. Instead, appellant responded to appellee's motion for summary judgment with a memorandum to which she attached no evidentiary material. The trial court ultimately granted appellee's motion, citing as the basis of its decision appellant's failure to support the allegations of her complaint. Appellant asserts in her sole assignment of error that the evidentiary material submitted by appellee was insufficient to demonstrate an absence of genuine issues of material fact as to her claim of handicap discrimination. Appellant's argument is flawed. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is -6- entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Once the moving party identifies those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claim, the nonmoving party must produce evidence on that issue and may not rely on merely the unsworn allegations of her complaint. Dresher v. Burt (1996), 75 Ohio St.3d 280; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. In this case, appellee provided evidence that demonstrated appellant could not prove her claim of handicap discrimination. To defend a summary judgment motion against a handicap discrimination claim, a plaintiff should demonstrate that a genuine issue of material fact exists as to whether (1) [she] is handicapped, (2) action was taken by [her] employer (at least in part) because [she] was handicapped, and (3) even though plaintiff is handicapped, [she] can safely and substan- tially perform the essential functions of the job in question with reasonable accommoda- tions. *** Wooten v. Columbus Div. of Water (1993), 91 Ohio App.3d 36, 632 N.E.2d 605, citing Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478 and Asplundh Tree Expert Co. v. Ohio Civ. Rights Comm. (1991), 68 Ohio App.3d 550, 589 N.E.2d 102. Cox v. Commercial Parts & Serv. (1994), 96 Ohio App.3d 417 at 423. See, also, Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569; Hood v. Diamond Products (1996), 74 Ohio St.3d 298. First, appellant provided no evidence, in the form of either an affidavit or verified medical records, that she was a qualified handicapped individual, as she claimed in her complaint. R.C. 4112.01(A)(13); Columbus Civ. Serv. Comm. v. McGlone, supra; -7- cf., Cox v. Commercial Parts & Serv., supra. Since appellant was not substantially limited in a major life activity, she could not establish the first element of her cause of action. Moreover, appellee's evidence demonstrated the recommendation against appellant's rehiring had a legitimate basis since it was made in part due to appellant's abuse of the sick leave proce- dures; i.e., appellant took sick leave without medical excuse. Cf., Potocnik v. Sifco Industries, Inc. (1995), 103 Ohio App.3d 560. Finally, except for a brief period during appellant's pregnancy in 1989, appellee's evidence demonstrated appellant performed her duties without requiring any accommodation. Thus, based upon these undisputed facts, despite appellant's suggestion to the contrary, there could be no inference that appellee considered appellant to be handicapped. Columbus Civ. Serv. Comm. v. McGlone, supra; cf., Martinez v. Ohio Dept. of Adm. Serv. (1997), 118 Ohio App.3d 687; Bryans v. English Nanny & Governess School, Inc. (1997), 117 Ohio App.3d 303; Degnan v. Goodwill Industries of Toledo (1995), 104 Ohio App.3d 589. Rather, the evidence proved only that any medical condition appellant had was transitory at best. Maloney v. Barberton Citizens Hosp. (1996), 109 Ohio App.3d 372. Since appellee provided evidence that demonstrated appellant could not establish the elements of a prima facie case of handicap discrimination, and appellant provided no evidence to support the allegations made in her complaint, the trial court did not err in granting appellee's motion for summary judgment on her claim. -8- Thatcher v. Goodwill Industries of Akron (1997), 117 Ohio App.3d 525; cf., Csejpes v. Cleveland Catholic Diocese (1998), 109 Ohio App.3d 533. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. This cause is affirmed. It is ordered that appellee recover of appellant 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 Cuuahoga County Court of Common Pleas 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. ANN DYKE, P.J. CONCURS LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO 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. 22. 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 -9- 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 .