[Cite as Ray v. Dept. of Health, 2018-Ohio-2163.]

THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Carol Ray, : 

 

 Plaintiff-Appellant, : No. 17AP-526 

 (Ct. of Cl. No. 2015-01051) 

v. : 

 (REGULAR CALENDAR) 

The Ohio Department of Health : 

c/o Director Richard Hodges et al., 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on June 5, 2018 

 

On brief: Adams & Liming LLC, and Sharon Cason-Adams, 

for appellant. Argued: Sharon Cason-Adams. 

On brief: Michael DeWine, Attorney General, Peter E. 

DeMarco, and Timothy M. Miller, for appellee Ohio 

Department of Health. Argued: Peter E. DeMarco. 

 

APPEAL from the Court of Claims of Ohio 

BROWN, P.J. 

{¶ 1} Plaintiff-appellant, Carol Ray, appeals from a judgment of the Court of 

Claims of Ohio which granted the Civ.R. 56 motion for summary judgment of defendantappellee, Ohio Department of Health ("ODH"), finding appellant's termination was not 

based on her disabilities and that ODH was not required to engage in the interactive process 

with appellant for a reasonable accommodation. 

{¶ 2} In 1990, appellant began working at ODH in the Office of General Counsel. 

She was an at-will employee. Appellant was diagnosed with depression after the birth of 

her son in 1993 and treated with medication. Her supervisor at that time, Jodi Govern, 
No. 17AP-526 2 

knew appellant was required by her health insurance company "to go see a psychiatrist" to 

obtain coverage for her medication. (Ray Depo. at 110.) Appellant testified she had worked 

with Lance Himes since 2004, and had discussed her health conditions with him. In April 

2011, appellant's daughter passed away. Appellant was diagnosed with Attention Deficit 

Hyperactivity Disorder ("ADHD"), in addition to her depression. In September 2011, 

Govern left the employment of ODH; in late 2011, Himes was appointed general counsel, 

and appellant reported directly to Himes. In approximately February 2014, Himes became 

interim director, and Mahjabeen Qadir was named interim acting general counsel. 

{¶ 3} Appellant stated that her workload from 2011 through August 2012 was 

overwhelming and heavier than she had experienced previously. In 2012 or 2013, Dr. Ted 

Wymslo, the former director, mentioned to Himes that he was concerned about appellant 

and suggested sending her for an independent medical exam ("IME"). Himes stated that 

Dr. Wymslo "worked late often, as did Carol, and when he would walk out, Carol would still 

be in the office. He would walk past her office. She would be either in a bad or low mood, 

might tear up when she's sharing with him." (Himes Depo. at 90.) Himes declined to send 

appellant for an IME at that time, but he did discuss his concerns with appellant. He also 

reassigned some of her duties to help manage her workload. 

{¶ 4} Himes testified he never disciplined or put appellant on a performance 

improvement plan. However, after the first review he conducted in 2011, Himes indicated 

to appellant that she could be more effective if she did not exhibit strong emotions in 

meetings. In that evaluation, Himes wrote that " '[s]he regularly provides her program 

areas with accurate, timely, and thoughtful legal analysis. * * * Her advice is well written 

and comprehensive. Carol identifies the right legal issues and offers solutions based in law, 

an asset to the department.' " (Himes Depo. at 48.) 

{¶ 5} Between March 2014 and June 6, 2014, several incidents occurred that ODH 

cited as reasons for appellant's termination. Himes stated that he terminated appellant 

because she exhibited "[u]nprofessional conduct, embarrassing conduct, [and an] inability 

to work with colleagues/program staff." (Himes Depo. at 62.) The first incident, on 

March 26, 2014, involved a complaint from two co-workers regarding a telephone call from 

appellant to an ODH vendor to discuss a contract. The co-workers, Sean Keller and Nicole 

Brennan, complained to Qadir that appellant had called a vendor without program 
No. 17AP-526 3 

employees requesting that she do so, and without their input regarding a contract 

modification. Qadir testified that Keller informed her the vendor then telephoned him to 

complain about appellant's "negative" tone, "aggressive" style, and the fact the vendor felt 

"intimidated." (Qadir Depo. at 95.) Keller and Brennan were concerned that appellant had 

damaged ODH's relationship with the vendor. 

{¶ 6} Later that day, Qadir called Vanessa Harmon-Gouhin, the other contracts 

attorney, to discuss the general contracts process in order to have a non-biased perception 

of the role of the contracts attorney before speaking to appellant. Qadir also discussed a 

separate employee matter with Harmon-Gouhin. While Qadir was on the telephone, 

appellant entered Qadir's office "very quickly, surprised me." (Qadir Depo. at 108.) 

Appellant wanted Qadir to discuss the matter with her, rather than Harmon-Gouhin. Qadir 

testified that appellant "continued to yell [at her] until she decided to leave," and she 

slammed Qadir's office door. (Qadir Depo. at 110.) Approximately 15 minutes later, 

appellant entered Qadir's office again without knocking and started to yell at Qadir "and 

accused [Qadir] of excluding her and saying she could be trusted." (Qadir Depo. at 117.) 

Qadir stated that appellant was "completely disrespectful" and "unprofessional." (Qadir 

Depo. at 117.) 

{¶ 7} Qadir talked to Will McHugh, the assistant director of health at that time, and 

Jaime Erickson, chief of human resources,1 regarding the outbursts and how to proceed 

regarding the complaint about appellant with the vendor. On March 28, 2014, appellant 

again went to Qadir's office. Qadir stated that appellant had tears in her eyes. Appellant 

was upset that Qadir had not talked to her regarding the March 26 incident, and that Qadir 

did not respect appellant's abilities or experience. Appellant testified that Qadir called 

appellant "paranoid, crazy -- not paranoid, crazy." (Ray Depo. at 201.) Qadir stated she 

told appellant: 

[B]efore she comes in my office, she needs to knock. She can't 

speak to me rudely. She can't yell at me. She can't be 

disrespectful, condescending. Communication is a two-way 

street. She told me she didn't do any of those things. I said, 

you know, "You're yelling at me right now at this very 

moment." She didn't see what she was doing as yelling, 

 

1 In 2014, her job title was chief of employee services, which later involved a change to her title but not job 

responsibilities. 
No. 17AP-526 4 

instead she thought that her voice was simply elevated. She 

was waving her arms around in a rapid and exasperated 

manner. Her eyes were getting teary again. 

(Qadir Depo. at 126-27.) 

 

{¶ 8} After the meeting, appellant telephoned Himes on his cell phone and 

explained she was having difficulties with Qadir and asked him not to share any 

information regarding her mental health with Qadir. Qadir again met with McHugh and 

Erickson to update them regarding appellant's behavior. They decided to discuss the 

incident with Himes. Qadir testified that she recommended termination because: 

[W]ithin a few short days, her being completely rude and 

disrespectful toward me, trying to -- she basically made me 

uncomfortable with her behavior, and she was choosing to be 

rude. She was choosing to disrespect her supervisor. She 

clearly didn't think that she needed to respect me. That sort 

of behavior to me is indicative of an employee that I don't 

know if I'm going to be able to rely upon their advice to me. 

She was insubordinate. 

 

(Qadir Depo. at 136.) 

{¶ 9} Qadir explained that appellant was insubordinate by "[m]aking a face and 

saying it was me, comparing me to her child; saying that I had a boyfriend and now I don't 

and that's why I'm treating her poorly; yelling at me; you know, just being disrespectful the 

entire time she was in my office." (Qadir Depo. at 136.) Himes decided to send appellant 

for an IME to "make sure she was okay, to see if something else was going on." (Himes 

Depo. at 72.) Himes testified he was cognizant of the anniversary of appellant's daughter's 

death, which was a factor in his decision to send appellant for an IME. 

{¶ 10} Belinda Kerr, human resources administrator, scheduled an IME for 

appellant with Nick Marzella, Ph.D. After the IME, Dr. Marzella issued his psychological 

fitness-for-duty evaluation and diagnosed appellant with major depression by history, 

ADHD, and histrionic personality traits and features. Dr. Marzella reported that "[t]hough 

these traits and features do not rise to the level of a personality disorder, they will 

nonetheless bring her into more conflict with her environment than most of her peers." 

(Plaintiff's Ex. at 8.) Dr. Marzella also noted appellant may have difficulty understanding 

the impact of her behavior on others. 
No. 17AP-526 5 

{¶ 11} Kerr received the results of the IME and informed appellant she was "cleared 

to work" and responsible for her actions in the workplace. (Kerr Depo. at 98.) Kerr testified 

she shared the results of the IME with Himes and Qadir, but did not discuss the doctor's 

diagnoses. Erickson did not read the report thoroughly. 

{¶ 12} Appellant met with Qadir and McHugh on April 16, 2014, during which Qadir 

and McHugh explained that appellant was given a new position description. Qadir testified 

she gave appellant a list of expectations, including better communication. Qadir, McHugh, 

and Harmon-Gouhin testified that Harmon-Gouhin was to be the primary attorney for all 

contracts, and appellant would no longer supervise Harmon-Gouhin. Appellant testified 

that she recalled at the meeting Qadir assigned her to the smoke-free program and told her 

to continue with the contracts until July. 

{¶ 13} On May 29, 2014, appellant attended two separate program procurement 

meetings. Appellant testified the meetings were uncomfortable, and that a co-worker, Carol 

Cook, accused appellant of going on a "fishing expedition" because appellant continued to 

ask questions. (Ray Depo. at 321.) After the meeting, Paul Maragos, chief of procurement, 

e-mailed Harry Kadmar, chief financial officer, McHugh and Qadir, and asked that 

appellant be removed from attending future regularly scheduled procurement meetings. 

{¶ 14} Following that e-mail, Elaine Stewart, labor relations administrator, 

conducted an investigation of the incidents and gathered witness statements from 

employees who attended the meetings, including Keller, Cook, Harmon-Gouhin, and 

Reginald Surmon, but not appellant. Stewart issued an investigative report on June 4, 2014 

concluding that witnesses reported appellant acted in an unprofessional manner and 

communicated in an aggressive manner. 

{¶ 15} On June 5, 2014, in the late afternoon, Himes met with Qadir and Erickson 

and decided to terminate appellant's employment; Himes concluded that appellant "did not 

have the ability to perform the duties because she couldn't get along with and be a team 

player with the programs that she was assigned to work with and advise." (Himes Depo. at 

136.) 

{¶ 16} Appellant testified that she met with Qadir after business hours on June 5, 

2014, and asked to transition out of the day-to-day contract process as a reasonable 

accommodation to reduce her increased anxiety. Qadir denied the meeting took place. On 
No. 17AP-526 6 

June 6, 2014, Himes signed appellant's letter of termination; that morning, Erickson 

informed appellant that her employment was being terminated. 

{¶ 17} On December 22, 2015, appellant filed a complaint in the Court of Claims 

asserting disability discrimination in violation of Ohio law, failure to accommodate in a 

disability discrimination claim, disability discrimination in violation of the Americans with 

Disabilities Act ("ADA"), and a failure to accommodate in violation of the ADA. On 

March 15, 2017, ODH filed a motion for summary judgment and appellant filed a motion 

for partial summary judgment. On June 21, 2017, the Court of Claims granted ODH's 

motion for summary judgment. 

{¶ 18} On appeal, appellant sets forth the following four assignments of error for 

this court's review: 

[I.] The trial court erred when it ruled that Appellant failed to 

present direct evidence of disability discrimination in 

violation of the Americans with Disabilities Act and Ohio law. 

[II.] The trial court erred when it ruled that Appellant failed 

to present sufficient evidence that the employer's stated 

"legitimate non-discriminatory" reason for Appellant's 

discharge was, in fact, pretext for disability discrimination. 

[III.] The trial court erred when it ruled that Appellant failed 

to prove that Appellee violated the ADA and Ohio law by 

failing to accommodate her disability. 

[IV.] The lower court erred by overruling Appellant's Motion 

for Summary Judgment and by granting Appellee's Motion for 

Summary Judgment. 

{¶ 19} Appellant's four assignments of error, all raising various challenges to the 

decision of the Court of Claims granting summary judgment in favor of ODH and denying 

appellant's motion for partial summary judgment, will be addressed jointly. Through these 

assignments of error, appellant contends the Court of Claims erred in its ruling that: 

(1) appellant failed to present direct evidence of disability discrimination, (2) appellant 

failed to present sufficient evidence that the employer's stated legitimate nondiscriminatory reason was pretext for disability discrimination, (3) appellant failed to prove 

that ODH violated the ADA and Ohio law by failing to accommodate her disabilities, and 
No. 17AP-526 7 

(4) in denying her motion for partial summary judgment and granting appellee's motion 

for summary judgment. 

{¶ 20} "Pursuant to Civ.R. 56(C), summary judgment is proper when '(1) no genuine 

issue as to any material fact exists, (2) the party moving for summary judgment is entitled 

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the 

non-moving party, reasonable minds can only reach one conclusion which is adverse to the 

non-moving party.' " Brust v. Franklin Cty. Sheriff's Office, 10th Dist. No. 16AP-881, 2017-

Ohio-9128, ¶ 14, quoting Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-742, ¶ 16 (8th 

Dist.). This court reviews the granting of a summary judgment motion de novo. Id. 

{¶ 21} We first address appellant's argument that the Court of Claims erred in 

granting ODH's motion for summary judgment on her disability discrimination claim. R.C. 

4112.02(A) prohibits discrimination based on disabilities as follows: 

It shall be an unlawful discriminatory practice: 

For any employer, because of * * * disability * * * 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. 

{¶ 22} The Supreme Court of Ohio has explained that discrimination actions under 

federal and state law each require the same analysis. Plumbers & Steamfitters Joint 

Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981); Little 

Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-10 (1991). Ohio courts 

may look to both federal and state courts' statutory interpretations of both federal and state 

statutes when determining the rights of litigants under state discrimination laws. 

Dautartas v. Abbott Labs., 10th Dist. No. 11AP-706, 2012-Ohio-1709, ¶ 24, citing Miller v. 

Potash Corp. of Saskatchewan, Inc., 3d Dist. No. 1-09-58, 2010-Ohio-4291, ¶ 16. 

{¶ 23} In order to prevail in her employment discrimination case, appellant must 

prove discriminatory intent and may establish such intent through either direct or indirect 

methods of proof. Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th 

Dist.1998), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996). "[A] plaintiff 

may establish a prima facie case of age discrimination directly by presenting evidence, of 

any nature, to show that an employer more likely than not was motivated by discriminatory 
No. 17AP-526 8 

intent." Mauzy at paragraph one of the syllabus. In the absence of the direct method of 

proof of discrimination, a plaintiff may indirectly demonstrate discriminatory intent using 

the analysis provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

{¶ 24} A plaintiff must first establish a prima facie case of discrimination. GreerBurger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 14, citing McDonnell Douglas. 

To prevail on a claim of disability discrimination under Ohio law, appellant must establish: 

(1) that she was disabled, (2) that an adverse employment action was taken, at least in part, 

because of her disabilities, and (3) that she, although disabled, can safely and substantially 

perform the essential functions of the job. Taylor v. Ohio Dept. of Job & Family Servs., 

10th Dist. No. 11AP-385, 2011-Ohio-6060, ¶ 19. Since an employee must prove all three 

elements in order to establish a prima facie case of disability discrimination, the failure to 

establish any single element is fatal to a discrimination claim. Id. at ¶ 20. 

{¶ 25} If the plaintiff demonstrates a prima facie case of discrimination, the burden 

then shifts to the employer to articulate some legitimate, non-discriminatory reason for the 

adverse employment action. Temesi at ¶ 14. If the employer does so, then the burden again 

shifts to the plaintiff to demonstrate " 'that the proffered reason was not the true reason' " 

for the adverse employment action. Id., quoting Texas Dept. of Community Affairs v. 

Burdine, 450 U.S. 248, 256 (1981). In general, "courts have found that a plaintiff 

establishes pretext by proving one or more of the following: (1) that the employer's 

proffered reasons for the adverse employment action had no basis in fact, (2) that the 

proffered reasons were not the true reason(s), or (3) that the proffered reason(s) were 

insufficient to motivate discharge." Nelson v. Univ. of Cincinnati, 10th Dist. No. 16AP224, 2017-Ohio-514, ¶ 35. Plaintiff has the ultimate burden of persuasion. St. Mary's 

Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). "A case that reaches this point is decided by 

the trier of fact on the ultimate issue of whether the defendant discriminated against the 

plaintiff." Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 14. 

{¶ 26} A disability is 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). We note there was no argument in this case regarding 
No. 17AP-526 9 

whether appellant suffered from a disability because ODH conceded, for purposes of 

summary judgment, that appellant stated a prima facie case of disability discrimination. 

{¶ 27} Appellant argues she presented direct evidence to support her claim for 

disability discrimination and that the Court of Claims erred in finding she failed to present 

such direct evidence. Under Ohio law, "[d]irect evidence is evidence that, if believed, 

requires the conclusion that unlawful discrimination was at least a motivating factor in the 

employer's actions. * * * If that evidence is credible, 'discriminatory animus may be at least 

part of an employer's motive, and in the absence of an alternative, non-discriminatory 

explanation for that evidence, there exists a genuine issue of material fact suitable for 

submission to the jury without further analysis by the court.' " Ceglia v. Youngstown State 

Univ., 10th Dist. No. 14AP-864, 2015-Ohio-2125, ¶ 16, quoting Norbuta v. Loctite Corp., 1 

Fed.Appx. 305, 312 (6th Cir.2001). "[D]irect evidence of discrimination does not require a 

factfinder to draw any inferences in order to conclude that the challenged employment 

action was motivated at least in part by prejudice against members of the protected group." 

Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003). 

{¶ 28} Appellant argues Himes admitted he terminated her for behavior that caused 

him to question her mental health. Appellant further contends the incidents which led him 

to conclude that an IME was necessary were the same incidents Himes used to justify her 

termination. 

{¶ 29} Himes' testimony, however, does not constitute direct evidence of 

discrimination. Both Ohio and federal courts have concluded that the act of an employer 

sending an employee to an IME does not constitute evidence that the employer perceived 

the employee as disabled. Dalton v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-827, 

2014-Ohio-2658, ¶ 31; Ames v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-119, 

2014-Ohio-4774, ¶ 29. Moreover, the complaints regarding appellant's behavior at the two 

meetings on May 29, 2014 occurred subsequent to the IME and, therefore, could not 

constitute a basis for sending her to have an IME. 

{¶ 30} Appellant argues this case is similar to Wells v. Cincinnati Children's Hosp. 

Med. Ctr., 860 F.Supp.2d 469 (S.D.Ohio 2012). In Wells, the plaintiff was suspended from 

her nursing position pending the outcome of a fitness-for-duty evaluation. The plaintiff 

was examined by three doctors; the first doctor concluded the plaintiff should not be 
No. 17AP-526 10 

allowed to work in a clinical setting and posed a risk to her patients. The plaintiff saw the 

second doctor, a psychologist, for substance abuse counseling, and this doctor concluded 

plaintiff could return to work during counseling. However, after approximately six weeks, 

the doctor provided a follow-up report explaining that he and the plaintiff had mutually 

agreed to terminate counseling because the plaintiff was not prepared to admit she had a 

substance abuse problem. Finally, the plaintiff's own physician provided a note stating she 

could return to work without restrictions. 

{¶ 31} The employer in Wells refused to reinstate the plaintiff because her medical 

condition rendered her incapable of performing her duties. The plaintiff's supervisor 

testified in part: "It was not whether or not they decided she was ready to come back, it was 

that she was still having medical issues, and those issues had caused her to have practice 

issues, or could have caused her to have practice issues." Id. at fn. 4. The court in Wells 

found the supervisor's admission constituted direct evidence that plaintiff's impairment 

was the reason she was not reinstated. 

{¶ 32} We find Wells to be distinguishable from the instant case, as ODH did not 

refuse to reinstate appellant after her IME indicated she was fit for duty without an 

accommodation. Moreover, Himes did not admit that he believed appellant was incapable 

of performing her duties because of medical issues. 

{¶ 33} Appellant also argues that Qadir called her "paranoid" and "crazy." However, 

appellant failed to argue this to the Court of Claims as direct evidence of disability 

discrimination. In general, "a party waives the right to raise an argument on appeal that it 

could have raised, but did not, in earlier proceedings." Union Sav. Bank v. Schaefer, 10th 

Dist. No. 13AP-222, 2013-Ohio-5704, ¶ 28, citing Niskanen v. Giant Eagle, Inc., 122 Ohio 

St.3d 486, 2009-Ohio-3626, ¶ 34. Furthermore, appellant testified she told Himes not to 

reveal to Qadir anything regarding her disabilities. Qadir testified she did not know about 

appellant's disabilities. In the absence of knowledge on the part of Qadir of appellant's 

disabilities, this comment cannot constitute direct evidence of disability discrimination. 

Accordingly, we conclude the Court of Claims did not err in finding that appellant failed to 

present direct evidence of disability discrimination. 

{¶ 34} Without direct evidence of disability discrimination, appellant's claim must 

be analyzed using the indirect method of proof pursuant to the McDonnell Douglas 
No. 17AP-526 11 

framework. Appellant argues the Court of Claims erred in finding that she failed to present 

sufficient evidence that the employer's stated legitimate, non-discriminatory reason was 

pretext for disability discrimination. ODH conceded, for purposes of summary judgment, 

that appellant stated a prima facie case of disability discrimination: She suffered a mental 

disability (depression and ADHD); she was otherwise qualified for her position with or 

without an accommodation; her employment was terminated; and ODH knew or had 

reason to know of her disabilities. Thus, the burden of production shifted to ODH to 

demonstrate a legitimate, non-discriminatory reason for the adverse employment action. 

ODH produced evidence of multiple co-workers' complaints regarding appellant's 

aggressive and unprofessional behavior. (See Depos. of Qadir; Harmon-Gouhin, and 

Maragos.) Here, the deposition testimony supported various instances of unprofessional 

behavior and examples of appellant's inability to work compatibly with her co-workers, and 

the Court of Claims found, even construing the evidence most strongly in appellant's favor, 

that ODH had legitimate, non-discriminatory reasons to terminate appellant's 

employment. 

{¶ 35} Appellant argues the Court of Claims erred in finding she failed to present 

sufficient evidence that the employer's stated legitimate, non-discriminatory reason was 

pretext for disability discrimination. ODH presented evidence, however, that it terminated 

appellant's employment due to her "[u]nprofessional conduct, embarrassing conduct, 

inability to work with colleagues/program staff." (Himes Depo. at 62.) Himes testified that 

appellant "has a style that can be aggressive, it can be condescending, it can be off putting." 

(Himes Depo. at 22.) Himes stated that some co-workers found her style "abusive." (Himes 

Depo. at 22.) 

{¶ 36} ODH also presented evidence that a vendor complained about appellant's 

behavior during a telephone call. The vendor indicated she felt intimidated and that 

appellant had acted unprofessionally. Maragos requested appellant be removed from 

attending regularly scheduled procurement meetings because of her confrontational 

manner resulting in unproductive meetings and damaged working relationships. Maragos, 

who was concerned that Cook and Harmon-Gouhin would seek other employment, testified 

that appellant's behavior caused stress. Qadir testified appellant was rude and 

unprofessional to her on several occasions. Such evidence amounts to a legitimate, non-
No. 17AP-526 12 

discriminatory reason. "So long as the employee's misconduct is related to the performance 

of her job, an employer may discipline or terminate the employee even if her misconduct 

was caused by her disability." (Citations omitted.) Sper v. Judson Care Ctr., Inc., 29 

F.Supp.3d 1102, 1110 (S.D.Ohio 2014). 

{¶ 37} In order for appellant to demonstrate that ODH's stated reasons for 

terminating her employment were pre-textual and not the true reasons, appellant must 

demonstrate that: 

(1) the employer's stated reason for terminating the employee 

has no basis in fact, (2) the reason offered was not the actual 

reason for the termination, or (3) the reason offered was 

insufficient to explain the employer's action. 

 

Hartman v. Ohio Dept. of Transp., 10th Dist. No. 16AP-222, 2016-Ohio-5208, ¶ 21, quoting 

Smith v. Ohio Dept. of Pub. Safety, 10th Dist. No. 12AP-1073, 2013-Ohio-4210, ¶ 77, citing 

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994). 

{¶ 38} Appellant acknowledges she called a vendor to discuss a contract, and the 

evidence reveals there was an internal complaint about the telephone call. Appellant also 

acknowledges she and Qadir had stressful meetings; specifically, appellant admits that the 

two meetings on May 29, 2014 were stressful and loud, and that Maragos asked that she be 

removed from further procurement meetings after these two meetings. Despite admitting 

these events occurred, appellant maintains ODH is exaggerating and that the events are 

insufficient to justify her termination. Appellant contends it is ODH's "discriminatory 

animus" that led to her termination. (Appellant's Brief at 31.) 

{¶ 39} Appellant cannot demonstrate that the stated reasons had no basis in fact, 

especially in light of her acknowledgement that the incidents occurred. Appellant also 

cannot demonstrate that the incidents cited as the basis for her termination were pretextual reasons. As discussed, Qadir calling appellant "paranoid" or "crazy" cannot be the 

result of discrimination because Qadir was unaware of appellant's disabilities. 

Furthermore, Maragos testified that he sent management the e-mail requesting appellant 

be removed from future procurement meetings. Maragos noted he had never before, in his 

employment at ODH, made such a request. According to Maragos, appellant "is very good 

at knowing what the rules and regulations say. She's very knowledgeable about the 

department. I can't tell you how many years of experience, but she's pretty much worked 
No. 17AP-526 13 

with many different programs. Not very many people have that wide range of knowledge." 

(Maragos Depo. at 52-53.) 

{¶ 40} However, when Maragos was asked if the problem with appellant involved 

difficulty building positive relationships, he replied: "Yes, it was getting to a point that what 

[appellant] was bringing to the table wasn't outweighing the issues that were happening 

with people, issues that were going on." (Maragos Depo. at 53.) Maragos further testified 

that, even though appellant had been difficult to work with in the past, the situation was 

worsening to the point where he asked that she be removed from future procurement 

meetings because "[t]he situation is becoming detrimental to our team and is not healthy." 

(Plaintiff's Ex. at 20.) Similarly, Harmon-Gouhin testified that her working relationship 

with appellant was initially good, but that uncomfortable interactions occurred over the 

ensuing months, leading Harmon-Gouhin to avoid interactions with appellant. According 

to the testimony of Qadir, Harmon-Gouhin came into Qadir's office in May 2014 and was 

in tears, complaining she was having problems with appellant and was considering quitting 

her job at ODH. In light of the record presented, appellant cannot demonstrate that the 

reasons given for her termination were pre-textual. 

{¶ 41} Appellant argues the Court of Claims erred when it ruled she failed to prove 

that ODH violated the ADA and Ohio law by failing to accommodate her disabilities. 

Appellant testified that on June 5, 2014, at approximately 6:00 p.m., she requested that 

Qadir remove her from working on contracts as an accommodation to relieve her stress. 

According to appellant, Qadir told her to "[g]o home and get some rest." (Ray Depo. at 

265.) By contrast, Qadir testified she did not meet with appellant and that appellant did 

not ask for an accommodation. Himes and Qadir testified that the decision to terminate 

appellant's employment had already been determined the afternoon of June 5, 2014, but 

Himes just signed the termination letter on the morning of June 6, 2014. (See Himes Depo. 

at 118; 132-33; Qadir Depo. at 227.) 

{¶ 42} In accordance with the ADA, "an employer must make 'reasonable 

accommodations to known physical or mental limitations of an otherwise qualified 

individual with a disability who is an applicant or employee' unless it can prove that such 

an accommodation would impose an 'undue hardship' on the business." Yarberry v. Gregg 

Appliances, Inc., 625 Fed.Appx. 729, 741 (2015), citing 42 U.S.C. 12112(b)(5)(A). However, 
No. 17AP-526 14 

an employer is not required to rescind discipline, including termination, or to engage in 

further discussions if the request for accommodation is made after the misconduct occurs 

and the decision to discipline is made. Id. at 742. Further, "[t]he timing of a request is 

crucial." Id. Here, assuming appellant's request constitutes a reasonable accommodation 

as defined in the ADA, Himes had already made the decision to terminate appellant before 

her request for an accommodation was made. ODH, therefore, was not required to consider 

the request for an accommodation. 

{¶ 43} Finally, in her fourth assignment of error, appellant argues the Court of 

Claims erred in denying her motion for summary judgment and granting ODH's motion for 

summary judgment. However, appellant makes no further argument to advance this 

assignment of error, other than issues we have previously addressed. Based on this court's 

de novo review, we find appellant's termination was not attributable to her disabilities and 

that ODH was not required to engage in the interactive process for a reasonable 

accommodation. Finding no genuine issues as to any material fact, we conclude the Court 

of Claims did not err in granting ODH's motion for summary judgment. Accordingly, 

appellant's four assignments of error are not well-taken and are overruled. 

{¶ 44} Based on the foregoing, appellant's four assignments of error are overruled, 

and the judgment of the Court of Claims of Ohio is affirmed. 

Judgment affirmed. 

TYACK and DORRIAN, JJ., concur. 

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