[Cite as Davis v. Cinnamon Lake Assn., Inc. , 2020-Ohio-5374.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STEVEN TODD DAVIS Appellant

v. CINNAMON LAKE ASSOCIATION, INC., et al. Appellees C.A. No. 19AP0052

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2018-CVC-H-000055

DECISION AND JOURNAL ENTRY Dated: November 23, 2020

CARR, Judge. {¶1} Appellant, Steven Todd Davis, appeals the judgment of the Wayne County Court

of Common Pleas. This Court affirms.

I. {¶2} This matter arises out of a dis pute between Davis and his forme r employer, Cinnamon Lake Assoc., Inc. (“Ci nnamon Lake”). Cinnamon Lake is a homeowner’s association. In March 2017, Davis resigned from another job to take a positi on with Cinnamon Lake as a maintenance supervisor. Pursuan t to the Cinnamon Lake’s Employ ee Handbook (“the Handbook”), Davis was subject to a 90-day probationary period. A number of issues arose during Davis’s probationary period, seve ral of which were performance related. Cinnamon Lake’s board of directors ultimately decided not to retain Davis as a perman ent employee. On May 22, 2017, Cinnamon’s Lake’s president, R on Arrichi, informed Davis of the board’s decision.2

{¶3} Davis filed a complaint against Cinnamon Lake, Arrichi, and sev eral other defendants in the Wayne County Court of Common Pleas. Several months later, with leave of court, Davis filed an amended co mplaint against Cinnamon Lake a nd Arrichi. Davis alleged claims for promissory estoppel and a violation of R.C. 4112.02, Ohio’s statute governing unlawful discriminatory practices. Cinnamon Lake filed an answer genera lly denying the claims in the complaint and asserting a numbe r of affirmative defenses. {¶4} The matter proceeded through the discovery process. Cinnamon L ake filed a motion for summary judgment against Davis, arguing that Davis h ad failed to make a prima facie case in support of his claims . Davis filed a brief in oppositi on to the motion, and Cinnamon Lake replied thereto. On September 6, 2019, the trial court issued a judgment entry granting summary judgment in favor of Cinnamon Lake. In reaching its conclusion , the trial court determined that Davis had neither presented evide nce that he was suffering from a disability, nor had he

demonstrated that Cinnamon Lake’s board of directors perceived him to have a disability at the time of his firing. The trial court further concluded that the re was no evidence that Cinnamon Lake made a clear and unambiguous promise to Davis that he woul d be hired on a permanent basis. {¶5} On appeal, Davis raises four assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLEERROR WHEN IT CONCLUDED FOR A JURY THE DEFENDANTSAPPELLEES DID NOT PERCEIVE THE PLAINTIFF-APPELLANT AS DISABLED TO SUPPORT AN [R.C.] 4112.02 DISABILITY DISCRIMINATION CLAIM BY WEIGHING THE SUFFICIENCY OF INFORMATION APPELLEE ARRICHI VOLUNTEERED HE HEARD FROM THE APPELLANT TO DECIDE WHETHER OR NOT THE APPELLANT COULD PROVE THE APPELLEE PERCEIVED HIM AS HAVING THE DISABILITY OF CANCER.3

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLEERROR WHEN IT CONCLUDED FOR A JURY THE DEFENDANTSAPPELLEES DID NOT REGARD THE APPELLANT AS HAVING THE DISABILITY OF CANCER WHEN MAKING A DECISION TO TERMINATE HIS EMPLOYMENT. {¶6} In his first and second assignment s of error, Davis contends th at the trial court erred in granting summary judgment to Cinnamon Lake on his employment discrimination claim on the basis that he failed to demonstrate that his employer was aware that he had cancer. Davis argues

that the trial court failed to consider circumstantial evidence which supported the conclusion that Cinnamon Lake’s board regarded Davis as disabled at the time it let him go. Davis asserts that there is a question of fact as to whether Cinnamon Lake termina ted his employment because it did not want an employee who would n eed to take significant time of f to seek cancer treatment. This Court disagrees. {¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co ., 77 Ohio St.3d 102, 105 (1996). T his Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to th e non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. , 13 Ohio App.3d 7, 12 (6th Dist.1983). {¶8} Pursuant to Civ.R. 56(C), summa ry judgment is proper if: (1) No genuine issue as to any m aterial fact remains to be liti gated; (2) the moving party is entitled to judgment as a matter of law; and (3) it ap pears from the evidence that reasonable minds can come to but one conclusion, and viewi ng such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977).4

{¶9} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts o f the record that show the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the motion by pointing to some ev idence in the record of the type listed in Civ.R. 56(C). Id . Once a moving party satisfies its burden of supporting its m otion for summary judgment with acceptable evidence pursuant to Civ.R. 56 (C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party’s pleadings. Rather, the non-movi ng party has a reciprocal burde n of responding by setting forth specific facts, demonstrating that a “genuine triable issue” ex ists to be litigated at trial. State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 449 (1996). {¶10} R.C. 4112.02(A) states that “[i]t s hall be an unlawful discrimi natory practice * * * [f]or any employer, because of the * * * disability * * * of an y 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 other ma tter directly or indirectly related to employment.” {¶11} “To establish a prima facie disability wrongful discharge viola tion of R.C. 4112.02(A), a plaintiff must show that 1) he is disabled; 2) he suffered an adverse employment action at least in part due to hi s handicap; and 3) that he cou ld safely and substantially perform all essential functions of the job.” Stembridge v. Summit Academy Mgt. , 9th Dist. Summit No. 23083, 2006-Ohio-4076, ¶ 22, citing Hood v. Diamond Products, Inc. , 74 Ohio St.3d 298, 302 (1996). “Once the prima facie case is established, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for their action.” Stembridge at ¶ 22. If indeed the defendant sets forth5

a legitimate, nondiscriminatory reason for the adverse action, the plaintiff must then demonstrate that the reason is a pretext fo r impermissible discrimination. Id

. {¶12} R.C. 4112.01(A)(13) defines “[d]isability” as “a physical or me ntal impairment that substantially limits one or more major life activities, includi ng the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaki ng, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.” {¶13} The Supreme Court of Ohio has he ld that Ohio courts considering a disability

discrimination claim may look to case law interpreting the Amer icans with Disabilities Act. See

Columbus Civ. Serv. Comm. v. McGlone , 82 Ohio St.3d 569, 573 (1998). “An individual is considered ‘disabled’ under the ADA if she (1) ‘has a physical or mental impairment that substantially limits one or more of the major life activities o f such individual,’ (2) ‘has a record of such impairment,’ or (3) is regarded by [his] employer as havin g such an impairment.” Gruener v. Ohio Cas. Ins., Co. , 510 F.3d 661, 664 (6th Cir.2008), quoting Sullivan v. River Valley School

Dist. , 197 F.3d 804, 810 (6th Cir.1999). {¶14} In support of its motion for summary judgment, Cinnamon Lake pr ovided affidavits from its board members and its office manager. Cinnamon Lake a lso attached a copy of the

Handbook. All of the board members averred that Davis was hire d on a probationary basis on March 20, 2017, and that he was inf ormed of the board’s decisio n not to hire him on a permanent basis on May 22, 2017. Arrichi, in his capacity as board presi dent, as well as board members Carl Habel and Tim Huffman, averred that Davis was never offered or promised permanent employment with Cinnamon Lake. D uring the interview process, D avis represented that he was a highly knowledgeable maintenance worker who had skilled-mainten ance certificates in the areas6

of welding, electrical work, and plumbing. Huffman averred tha t it became clear during Davis’s probationary period that he did not possesses the skills that h e had represented. On multiple occasions, Huffman had to instruct Davis regarding basic concep ts of electrical work. Davis was unable to produce copies of his trade certificates. Other Cinn amon Lake employees reported that

Davis would sit idle in his truc k when he was not being observe d and, further, that he may have been responsible for cans of pain t missing from the storage bui lding. {¶15} On one occasion, Davis asked Arrichi to sign a home arrest work release that was related to a disorderly conduct conviction in Wayne County Muni cipal Court. The conviction occurred in April 2017. Arrichi wa s not comfortable signing th e document. {¶16} Arrichi averred that while he re called a conversation where Dav is indicated that he had been “previously treated for cancer[,]” Davis did not provi de any additional details about the nature of the treatment, nor did Davis indicate that he was lim ited in any of his life activities. Arrichi further averred that Davis never provided any documenta tion indicating that he had a physical or mental impairment. Arrichi never perceived any act ivity that would suggest Davis had a disability. Cinnamon Lake’s other board members averred that Davis never informed Cinnamon Lake that he had a disability and that they were not aware of a ny disability at the time they decided

not to retain Davis as a permanent employee. {¶17} In opposing the motion for summary judgment, Davis pointed to s upposed admissions by Arrichi and Huffman during their deposition testi mony. Huffman testified that Davis’s employment with Cinnamon Lake ended because of Davis’s inability to do his job. Huffman recalled multiple occasions where Davis lacked the know ledge necessary to complete electrical projects and sought Huffman’s assistance. Huffman f urther testified that Davis was7

hostile towards Cinnamon Lake members who needed his assistance . Huffman had no knowledge of any health issues at the time the board decided to discontin ue Davis’s employment. {¶18} Arrichi gave similar testimony. When asked during his depositi on if he spoke to

other board members about wheth er Davis had cancer, Arrichi res ponded, “No, I did not. I didn’t even know he had cancer.” While Arrichi acknowledged a convers ation where Davis mentioned previously being treated for cancer, Arrichi explained that the conversation did not cause him to “take notice that he had cancer, [or] that it would affect his job and/or anything else.” When asked whether Davis sought permission to go to a cancer-related docto r’s appointment, Arrichi testified that “[Davis] never said that[ ]” and it was his understanding t hat the appointment was a

“semiannual check for clean health.” {¶19} The aforementioned evidence, even when viewed in the light most favorable to Davis, failed to establish a pr ima facie violation of R.C. 4112 .02(A). Davis never presented evidence demonstrating that he was either disabled or was regar ded as disabled during his employment with Cinnamon Lake. F urthermore, while Arrichi ackn owledged that Davis mentioned that he had previously been treated for cancer, there was no evidence presented that anyone associated with Cinnamon Lake, including Arrichi, had ev en the slightest inclination that Davis had cancer during the course of his employment. Davis co rrectly notes that a plaintiff in a civil action may prove his case by either direct or circumstant ial evidence. See Mauzy v. Kelly Servs., Inc. , 75 Ohio St.3d 578, 584 (1996). Significantly, however, Davis failed to present any evidence, either direct or circumstantial, showing that Cinnamo n Lake’s decision to not retain him as a permanent employee was related to either a disability or a perceived disability. Under these circumstances, the trial court did not err in awarding summary judgment to Cinnamon Lake. {¶20} Davis’s first and second assign ments of error are overruled.8

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT CONCLUDED AS A MATTER OF LAW THE DEFENDANTS-APPELLEES DID NOT HAVE TO RETAIN THE APPELLANT BECAUSE HE WAS AN AT-WILL EMPLOYEE ON PROBATION GIVEN [R.C.] 4112.02 PROTECTS AT-WILL EMPLOYEES FROM TERMINATION OF EMPLOYMENT DUE TO HAVING A PERCEIVED DISABILITY WHETHER THEY ARE ON PROBATION OR NOT. {¶21} In his third assignment of error, Davis contends that the trial court erred in concluding that Cinnamon Lake was not required to retain Davis due to his status as an at-will, probationary employee given that his perceived disability trigg ered protections under R.C. 4112.02(A). As noted in this Court’s resolution of Davis’s fir st and second assignments of error, Davis failed to establish a pr ima facie violation of R.C. 4112. 02(A) based on a disability or a perceived disability. Accordingly, we decline to address Davis ’s third assignment of error as it has been rendered moot. App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT CONCLUDED THE DEFENDANTS-APPELLEES WERE NOT ESTOPPED TO TERMINATE THE APPELLANT’S EMPLOYMENT GIVEN THE RECORD SHOWS THERE IS DIRECT EVIDENCE BY WAY OF ADMISSION THE APPELLANT WAS HIRED TO BE RETAINED AS A PERMANENT EMPLOYEE AFTER 90 DAYS IF HE QUIT EMPLOYMENT WITH A PREVIOUS EMPLOYER TO COME TO WORK FOR THE APPELLEE ASSOCIATION. {¶22} In his final assignment of error, Davis contends that the trial court erred in entering summary judgment on his promisso ry estoppel claim. This Court disagrees. {¶23} In reviewing Davis’s claim that the trial court erred in granti ng summary judgment to Cinnamon Lake on his promisso ry estoppel claim, we renew the standard of review set forth above in resolving Davis’s claim that the trial court erred in granting summary judgment to Cinnamon Lake on his employme nt discrimination claim. See Temple , 50 Ohio St.2d at 327.9

{¶24} This Court has held that the elements necessary to establish a claim for promissory estoppel are “a promise, clear and unambiguous in its terms; re liance by the party to whom the promise is made; that the reliance was reasonable and foreseeab le; and that the party claiming estoppel was injured by the reliance.” Rigby v. Fallsway Equip. Co., Inc. , 150 Ohio App.3d 155, 2002-Ohio-6120, ¶ 25 (9th Dist.), quoting Healey v. Republic Powdered Metals, Inc. , 85 Ohio App.3d 281, 284 (9th Dist.1992). Generally speaking, an employ ment relationship in Ohio is terminable at the will of either party absent an express agreem ent to the contrary. Stembridge , 2006-Ohio-4076, at ¶ 26. The Supreme Court of Ohio has held th at “[a]bsent fraud in the inducement, a disclaimer in an employee handbook stating that e mployment is at will precludes an employment contract other than at will based upon the terms of the employee handbook.” Wing v. Anchor Media, Ltd. of Texas , 59 Ohio St.3d 108 (1991), paragra ph one of the syllabus. {¶25} The crux of Davis’s argument on appeal is that Arrichi admitted during his deposition testimony that Davis stepped away from another posit ion with the understanding that

Cinnamon Lake would hire him as a permanent employee. Davis ma intains that Arrichi admitted that Davis was not hired on an at-will basis. In support of th is position, Davis highlights a quote from the deposition where Arrichi stated, “My understanding was [Davis] was going to be hired as -- the job would be permanent ly his until he proved otherwis e.” {¶26} A review of Arrichi’s deposition testimony reveals that Davis’s argument is without merit. Davis was brought before the board for a job interview by the board president who preceded Arrichi. Arrichi participated in the interview. By the time t hat Cinnamon Lake decided not to retain Davis as a permanent employee, Arrichi had assumed the r ole of board president. Arrichi was aware that Davis left another position to work at Cinnamon Lake. Arrichi explained that

Davis was in the midst of a 90-da y probationary period at the t ime Cinnamon Lake decided not to10

retain him. 1 Arrichi testified that Davis was hired with the hope of retai ning him as a permanent employee after he completed his probationary period. When coun sel for Davis sought clarification as to whether the position was permanent, Arrichi responded, “A fter the 90 days, that is what is stated in our manual.” Anna Gibson, who serves as office mana ger at Cinnamon Lake, averred that Davis acknowledged receiving a copy of the Handbook on Mar ch 8, 2017. The Handbook provides that “It is not intended to create, and does not creat e, a contract of employment, either express or implied, between [Cinna mon Lake] and any of our empl oyees for employment, hours of work, or the providing of bene fits. Our employees are emplo yees-at-will.” The Handbook further provides that all new employees are subject to a 90-day probationary period. There is no dispute here that Cinnamon Lake m ade the decision to part ways with Davis prior to the expiration of the 90-day probationary window. {¶27} Under these circumstances, where Davis was subject to a 90-day probationary period pursuant to the Handbook, and where there was no evidenc e that Cinnamon Lake made a clear and unambiguous promise that Davis would be retained beyo nd the 90-day probationary period, the trial court did not e rr in granting summary judgmen t in favor of Cinnamon Lake on Davis’s promissory estoppel claim. {¶28} Davis’s final assignment of error is overruled.

III. {¶29} Davis’s assignments of error ar e overruled. The judgment of th e Wayne County

Court of Common Pl eas is affirmed. Judgment affirmed.

1 During Arrichi’s deposition, c ounsel for the respective partie s strongly disagreed as to whether Davis’s exit from Cinnamon Lake should be characterized as a termination. The gist of Arrichi’s testimony was that Davis was relieved of his duties d uring his probationary period but he was not terminated.11

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment i nto execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: MICHAEL T. CONWAY, Attorney at Law, for Appellant. STEPHEN J. CHUPARKOFF, Attorney at Law, for Appellee.