Muldowney v. Portage Cty., Ohio Board of Cty. Commissioners

[Cite as Muldowney v. Portage Cty., Ohio Board of Cty. Commissioners, 2018-Ohio-2579.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

MICHAEL J. MULDOWNEY, : OPINION

Plaintiff-Appellant, :
CASE NO. 2017-P-0072
- vs - :

PORTAGE COUNTY, OHIO BOARD OF :
COUNTY COMMISSIONERS, et al.
:
Defendants-Appellees.
:

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2015 CV
00770.

Judgment: Affirmed.

John F. Myers, 275 North Portage Path, #3C, Akron, OH 44303 (For Plaintiff-
Appellant).

Todd M. Raskin, Frank H. Scialdone, and David M. Smith, Mazanec, Raskin & Ryder
Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For
Defendants-Appellees).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Michael J. Muldowney, appeals from the order of the Portage

County Court of Common Pleas granting appellees, Portage County, Ohio Board of

County Commissioners, et al., summary judgment. At issue is whether appellant’s

statutory claims for disability discrimination and retaliatory discharge are barred by

operation of the doctrine of collateral estoppel because appellant previously went
through the grievance process, per the parties collective bargaining agreement (“CBA”)

and the arbitrator found appellant was terminated for just cause. If the causes of action

are not so barred, we must determine whether there are genuine issues of material fact

that remain for litigation. We answer the first issue in the negative, but conclude

summary judgment was nevertheless appropriate. We therefore affirm.

{¶2} Appellant commenced employment with the Portage County Sheriff’s

Department in September 2000. In 2009, appellant generally worked first-shift

courthouse security. He was assigned to third shift, however, for road-patrol training,

pursuant to a policy implemented by Sheriff David Doak requiring all deputies to be

road-certified. Appellant spoke with certain superiors, advising them that he suffered

from sleep apnea and working third shift may be difficult for him due to the medical

condition. Regardless, appellant commenced training on third shift.

{¶3} Appellant exhibited multiple deficiencies during his road training.

Appellant’s field-training officer noted various problems in appellant’s driving in his daily

observation reports. In particular, appellant lacked familiarity with county roads and

landmarks; possessed poor map-reading skills; he was unable to determine the shortest

route possible between two points; he lacked knowledge of county geographical lines;

he failed to notice street signs indicating county lines; he had a poor sense of direction;

he would fail to stop before turning right on red; he turned right on red where a sign was

posted “no turn on red,” and he had difficulty “multi-tasking.”

{¶4} On January 12, 2010, appellant’s treating physician, Dr. Stephen Crowe,

prepared a letter “[t]o whom it may concern,” in which he opined appellant had

“obstructive sleep apnea.” The letter further advised that, “[d]ue to compliance and

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treatment, it may be best if [appellant] work first or second shift * * *.” Although Sheriff

Doak did not specifically recall receiving the letter, he stated he would have been

hesitant to afford appellant a shift change or granting appellant “light duty.” He

maintained deputies were required to bid for a shift change and the sheriff had instituted

a policy whereby light duty was not an option; in his estimation, one was either fit for

duty or not. On January 26, 2010, Dr. Crowe sent a second letter, this time directly to

Sheriff Doak, stating appellant had been diagnosed with obstructive sleep apnea and

shift work disorder. The doctor apologized for the “nature” of the previous letter and

noted he was taking steps to resolve the problems with “CPAP and medications.” The

doctor advised the sheriff he was aware that “shifts are required for his positions” and

he expected “significant improvements over the next few weeks.”

{¶5} On February 2, 2010, Sheriff Doak sent a letter to Dr. Joel Steinberg,

advising the doctor that an appointment had been made for appellant to undergo an

independent medical examination. The sheriff noted his belief that the examination was

necessary due to appellant’s recent behavior. The sheriff stated, “[n]ot only has

[appellant] been insubordinate, but his erratic behavior has supervisors concerned for

his welfare along with his fellow employees.”1

{¶6} On February 22, 2010, after receiving Dr. Steinberg’s evaluation, Sheriff

Doak made an appointment with Dr. Roger Weiss to schedule a neurological

examination for appellant. The sheriff noted that, in the course of evaluating appellant’s

fitness for duty, Dr. Steinberg recommended appellant see a neurologist due to

concerns that he might be developing dementia.

1. Appellant had been suspended on two previous occasions for insubordination and failure to respect
supervisors.

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 {¶7} On March 1, 2010, Dr. Weiss provided the Sheriff with progress notes

and, on April 20, 2010, Dr. Weiss provided a fitness-for-duty report indicating appellant

was fit for duty, but restricted from working third shift. Sheriff Doak subsequently

instructed appellant to work the “power shift,” from 8:00 p.m. to 4:00 a.m. (third shift is

from 12:00 a.m. to 8:00 a.m.) Appellant spoke with the sheriff’s administrative assistant,

Linda Mottern, and explained he could not work nights, per Dr. Weiss’ recommendation.

In response, the sheriff wrote appellant, stating the doctor’s recommendation failed to

provide sufficient information to make a decision regarding a full accommodation. As

such, Sheriff Doak requested appellant to obtain further information and documentation

from Dr. Weiss regarding, inter alia, his impairments, the activities limited by these

impairments, as well as medical records from all medical professionals from whom he

had sought treatment for the impairments. In the meantime, appellant was ordered to

work the power shift.

{¶8} On April 26, 2010, Sheriff Doak sent appellant a letter questioning the

relevance of a seven-year-old report relating to a sleep study in which he had previously

participated; the letter also noted appellant had questioned the sheriff whether he had to

report for work. The sheriff confirmed appellant’s status had not changed and he was to

complete his road-certification training by May 10, 2010. During his April 27, 2010 shift,

Deputy Heath Wilson reported that, while appellant was road training, he stated he

could not drive after midnight; appellant advised Deputy Wilson that numerous doctors

had explained this to Sheriff Doak, but he has not listened. The report further detailed

the problems appellant has with his impairments and noted that, during the training,

appellant called Sheriff Doak at home to discuss his doctors’ purported

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recommendations. Deputy Wilson emphasized he was documenting the incident to

clarify he had no foreknowledge of appellant’s intention to call the sheriff.

{¶9} On April 29, 2010, appellant was notified of a pending disciplinary action

submitted by Charging Officer, Major Dale Kelly and Sheriff Doak, for incompetency and

insubordination. He was given notice of the pre-disciplinary hearing and that the

proposed disciplinary action could result in termination. It is unclear what, if anything,

occurred at this hearing. The notice, however, specifically indicated the proposed

disciplinary action was appellant’s termination.

{¶10} On the same day, an Americans with Disabilities Act (“ADA”)

questionnaire was sent to appellant’s treating physicians. On May 14, 2010, appellant

was granted leave under the Family Medical and Leave Act (“FMLA”). On May 20,

2010, appellant provided executed copies of the ADA questionnaire. Meanwhile, Dr.

Weiss contacted the Sheriff’s Office and, via written recommendation, stated appellant

would be unable to return to work until after July 28, 2010 “pending further testing and

evaluation.”

{¶11} On June 8, 2010, Sheriff Doak sent appellant a letter outlining the details

of the reports received by Portage County and the Portage County Sheriff’s Office

relating to appellant’s impairment. The letter noted he had been granted FMLA leave

until July 20, 2010 and that the Sheriff’s Office would agree to accommodate appellant

in the following ways upon his return to active duty: First, the sheriff stated he would

keep appellant’s position as deputy open until his return, per his physician’s order, on

July 28, 2010; and when he returns, he will complete his road certification on first shift

and upon successful completion, he would be assigned to first shift as a deputy sheriff.

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If, however, an emergency requires him to report at any time, day or night, he will be

expected to report for duty.

{¶12} On June 14, 2010, Dr. Weiss sent a notification to the Portage County

Sheriff’s Office stating appellant was cleared to return to work; hence, appellant’s FMLA

leave ended as of that date. On June 18, 2010, Sheriff Doak sent appellant a

memorandum relating to Dr. Weiss’ notification. He acknowledged the doctor released

him to return to work, but also pointed out appellant’s status, effective June 15, 2010,

would revert back to administrative leave without pay pending termination, pursuant to

the April 29, 2010 disciplinary notice. On June 21, 2010, Sheriff Doak formally notified

appellant he was terminated due to the allegations in the April 29, 2010 notice of

disciplinary action. Appellant filed a grievance, pursuant to the CBA entered between

appellant’s union and the Sheriff’s Officer (via the Portage County Commissioners).

{¶13} The grievance resulted in arbitration and a hearing was held on July 8,

2011. On January 11, 2012, the arbitrator reached her decision based solely upon the

alleged misconduct set forth in the April 29, 2010 notice of disciplinary action. The

arbitrator determined, under the terms of the CBA, there was just cause for the

termination of appellant for incompetency regarding essential duties that could directly

affect the health and safety of the public and appellant’s colleagues.

{¶14} In September 2015, appellant filed a complaint against appellees

asserting claims of disability discrimination and retaliatory discharge, pursuant to R.C.

Chapter 4112. The parties stipulated to the record of the July 2011 arbitration hearing,

which included a transcript of the sworn testimony and the exhibits introduced during

the proceedings. As such, these items were considered part of the record in the instant

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matter. Appellees filed a motion for summary judgment, arguing appellant’s claims are

barred by the doctrine of collateral estoppel and even if not barred, appellant could not

establish the elements of his causes of action as a matter of law. The motion was

supported by the deposition of Sheriff Doak, the transcript of the July 8, 2011 arbitration

proceedings, and the arbitrator’s ultimate decision.

{¶15} Appellant filed his memorandum in opposition to appellees’ motion and

supported the same with his personal affidavit. Appellees subsequently filed a reply to

appellant’s memorandum. On September 19, 2017, the trial court entered an order

granting appellees’ motion for summary judgment. The trial court offered no analysis in

support of its determination that there were no genuine issues of material fact and, as a

result, appellees were entitled to summary judgment. Appellant now appeals and

assigns the following as error:

{¶16} “The trial court erred in granting defendants’ motion for summary

judgment.”

{¶17} Summary judgment is a procedural tool that terminates litigation and thus

should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66

(1993). Summary judgment is proper where (1) there is no genuine issue of material

fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law;

and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion

favors the movant. See, e.g., Civ.R. 56(C).

{¶18} Because the trial court failed to provide a basis for its conclusion that

appellees were entitled to summary judgment, appellant challenges each argument

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asserted by appellees in their dispositive motion. Appellant first argues the trial court

erred to the extent it awarded appellees summary judgment based upon collateral

estoppel. The doctrine of issue preclusion, also known as collateral estoppel, holds that

a fact or a point that was actually and directly at issue in a previous action, and was

passed upon and determined by a court of competent jurisdiction, may not be drawn

into question in a subsequent action between the same parties or their privies, whether

the cause of action in the two actions be identical or different. Norwood v. McDonald,

142 Ohio St. 299 (1943), paragraph three of the syllabus. Collateral estoppel precludes

the relitigation, in a second action, of an issue that has been actually and necessarily

litigated and determined in a prior action that was based on a different cause of action.

Whitehead v. Gen. Tel. Co., (1969), 20 Ohio St.2d 108, 112 (1969).

{¶19} Appellant asserts that, even though the issue of whether he was

terminated for just cause was addressed via arbitration, pursuant to the CBA, the

arbitrator’s ruling did not preclude the underlying statutory discrimination claims.

Appellant notes that, even though res judicata has the effect of precluding relitigation of

the same cause of action, collateral estoppel precludes relitigation of an issue that has

been actually litigated and determined in a prior action. Appellant maintains his

statutory causes of action were not “actually and necessarily” litigated in a previous

action.

{¶20} Alternatively, appellees argue collateral estoppel bars the underlying

claims because the facts and issues animating the claims were determined during

arbitration. Appellees claim, under Ohio law, an “arbitration award has the same

preclusive effect as a court judgment for the matters it decided.” See e.g. Ford Hull-Mar

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Nursing Home, Inc. v. Marr, Knapp, Crawfis & Assoc., Inc., 138 Ohio App.3d 174, 181

(7th Dist.2000). Appellees maintain the issue of whether appellant’s termination was

the result of discriminatory practices was decided by the 2012 arbitration decision. And,

because the arbitrator determined appellant was terminated due to incompetency, the

underlying issues are barred by collateral estoppel.

{¶21} Appellant cites Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), as

his primary authority that collateral estoppel does not bar his statutory claims.

Alexander involved a grievance-arbitration provision in a CBA and racial discrimination

claims under Title VII. The CBA also contained a “no-discrimination” clause. The

employee in Alexander was terminated and filed a grievance for violation of the CBA

alleging racial discrimination. The arbitrator ultimately determined there was just cause

for the employee’s termination, but did not comment on the claim of racial

discrimination. After the arbitration concluded, the employee filed suit in federal district

court under Title VII, alleging his discharge resulted from a racially discriminatory

employment practice. The employer moved for summary judgment, which the district

court granted. The court reasoned the employee was bound by the prior arbitral

decision and had no right to sue under Title VII. The circuit court affirmed, and the

United States Supreme Court reversed. Id. The Supreme Court analyzed the purpose

and operation of Title VII and concluded:

{¶22} [T]he legislative history of Title VII manifests a congressional intent
to allow an individual to pursue independently his rights under both
Title VII and other applicable state and federal statutes. The clear
inference is that Title VII was designed to supplement rather than
supplant, existing laws and institutions relating to employment
discrimination. In sum, Title VII's purpose and procedures strongly
suggest that an individual does not forfeit his private cause of
action if he first pursues his grievance to final arbitration under the

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 nondiscrimination clause of a collective-bargaining agreement. Id.
at 48-49.

{¶23} The Court also noted the contractual and statutory rights at issue created

two separate schemes of remedies. And because there is a difference between

collective and individual rights under the agreement and Title VII, “an employee’s rights

under Title VII are not susceptible to prospective waiver” in a collective bargaining

agreement. Id. at 51-52. And, the Court emphasized the role of the arbitrator is

invariably different from that of a court resolving a discrimination suit:

{¶24} If an arbitral decision is based ‘soley upon the arbitrator’s view of
the requirements of enacted legislation,’ rather than on an
interpretation of the collective bargaining agreement, the arbitrator
has ‘exceeded the scope of the submission,’ and the award will not
be enforced.[ United Steelworkers of America v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 597 (1960)] Thus the arbitrator has
authority to resolve only questions of contractual rights, and this
authority remains regardless of whether certain contractual rights
are similar to, or duplicative of, the substantive rights secured by
Title VII. Alexander, supra, at 53-54.

{¶25} Accordingly, the Court noted that arbitration, per a CBA, does not prevent

the Title VII suit because “the federal policy favoring arbitration of labor disputes and the

federal policy against discriminatory employment practices can best be accommodated

by permitting an employee to pursue fully both his remedy under the grievance-

arbitration clause of a collective-bargaining agreement and his cause of action under

Title VII.” Id. at 59-60. Alexander therefore stands for the general proposition that a

CBA-arbitration decision and award does not bar Title VII discrimination claims based

on the doctrines of res judicata or collateral estoppel.

{¶26} Subsequent to Alexander, in Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20, the Court addressed the relationship between an agreement to arbitrate and

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the federal Age Discrimination in Employment Act (“ADEA”). In Gilmer, a securities

broker was required by his employer to register as a securities representative with, inter

alia, the New York Stock Exchange. The registration application included an agreement

to arbitrate any controversy arising out of a registered representative’s employment or

termination of employment. The employee was terminated at the age of 62 and, rather

than seek arbitration, elected to file an ADEA claim in federal district court. The

employer filed a motion to compel arbitration, which was denied by the district court

based upon Alexander. The circuit court reversed the judgment on the basis that the

ADEA did not preclude arbitration. The Supreme Court affirmed the circuit court,

distinguishing Alexander. The Court noted the key distinction between the cases was

that the individual employee in Gilmer signed an agreement to arbitrate his statutory

claims, rather than a union signing a CBA to arbitrate contractual claims. Id. at 35.

Hence, the employee was precluded from filing suit on the statutory claims. Id.

{¶27} In Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the

Supreme Court again addressed arbitration under a CBA and the ADA. In Wright, the

CBA included a grievance-arbitration provision. When the employee was not permitted

to return to work after an injury, he filed suit under the ADA, rather than filing a

grievance. The district court dismissed the employee’s suit for failing to pursue the

grievance procedure. The circuit court affirmed, concluding the CBA arbitration clause

encompassed a statutory claim under the ADA and was enforceable. The Supreme

Court reversed, concluding that for a “union-negotiated waiver of employees’ statutory

right to a judicial forum for claims of employment discrimination” to be enforceable, it

must be “clear and unmistakable” that a specific statutory right was waived. Id. at 80.

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The Court emphasized, “‘we will not infer from a general contractual provision that the

parties intended to waive a statutorily protected right unless the undertaking is “explicitly

stated.”’” Id., quoting Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708. Thus,

Wright created an additional exception to Alexander; to wit, if a grievance-arbitration

clause clearly and unmistakably waives an employee’s right to bring suit under federal

anti-discrimination schemes (or other statutory schemes), it will be upheld.

{¶28} Several courts in Ohio have addressed the interplay between arbitration

pursuant to a CBA and statutory discrimination claims. In Felger v. Tubetech, Inc., 7th

Dist. Columbiana No. 2000 CO 23, 2002 WL 417903, an employee injured on the job

filed a workers’ compensation claim. After she was discharged from her employment,

the employee filed a grievance alleging her discharge was due to a pattern of company-

sanctioned discrimination and harassment arising from her workers’ compensation

claim. The arbitrator denied the employee’s claims. She subsequently filed a complaint

in state court asserting various discrimination and retaliation claims. The trial court

granted the employer summary judgment, concluding the employee’s claim was barred

by the doctrine of collateral estoppel. The court reasoned that “the plaintiff raised those

issues in the arbitration and therefore asked for them to be decided by the arbitrator.” Id.

{¶29} On appeal, the Seventh Appellate District Court reversed. The court noted

that in Alexander, the statutory claim of racial discrimination and the contractual claim of

discharge without just cause involved the same issue, i.e., the reason for the

employee’s discharge. Id. at *7. The court pointed out, however, the United States

Supreme Court, in Alexander, had held that the employee’s contractual right to

arbitration and statutory claim “‘have legally independent origins and are equally

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available to the aggrieved employee.’” Felger. quoting Alexander, at 52. The court

observed:

{¶30} “‘An arbitrator is confined to interpretation of and application of the
collective bargaining agreement; he does not sit to dispense his
own brand of industrial justice. * * * If an arbitral decision is based
‘solely upon the arbitrator's view of the requirements of enacted
legislation,’ rather than on an interpretation of the collective
bargaining agreement, the arbitrator has authority to resolve only
questions of contractual rights * * *.’” Id., quoting Alexander, supra,
at 54.

{¶31} The Seventh District noted that there are strong policy reasons for this

distinction:

{¶32} “‘Labor arbitrators are authorized under a collective bargaining
agreement to resolve contractual claims, not statutory claims. Labor
arbitrators have developed a body of expertise in labor law. This is
why law presumes the arbitrability of disputes based upon a
collective bargaining agreement. This is not, however, the same
body of expertise or the same body of law implicated by the civil
rights statutes. Nor are the remedies the same.’ “Id., quoting
Thomas v. Gen. Elec. Co., 131 Ohio App.3d 825, 830 (1st
Dist.1999).

{¶33} The court concluded, therefore, that collateral estoppel did not preclude

the statutory claims. Moreover, the First District, in Thomas, stated that the line of

cases deriving from Alexander, extends to “civil rights claims brought pursuant to R.C.

Chapter 4112.” Thomas, supra, at 830. See also Truax v. EM Industries, Inc., 107 Ohio

App.3d 210 (1st Dist.1995).

{¶34} Notwithstanding the foregoing, appellees cite this court’s holding in

Hapgood v. Warren, 11th Dist. Trumbull No. 95-T-5355, 1996 WL 648929. In Hapgood,

an employee was discharged for falsification of records and gross neglect of duty after

filing workers’ compensation claims. The employee filed a grievance claiming, under

the CBA, he was terminated without just cause. The matter went to arbitration and the

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arbitrator found the employee was discharged for just cause. After unsuccessfully

pursuing a claim with the Ohio Civil Rights Commission and the Equal Employment

Opportunity Commission, he filed a complaint in the court of common pleas alleging,

inter alia, retaliatory discharge. The trial court granted summary judgment. On appeal,

this court observed:

{¶35} “After reviewing the record, we determine that the doctrine of
collateral estoppel is applicable to appellant’s retaliatory discharge
claim. Appellant has also failed to argue exactly how the issues in
the instant action are different from those in the previous
proceedings. We believe that the issues and facts concerning the
falsified workers’ compensation are sufficiently intertwined with the
issues and facts which would have to be determined under R.C.
4123.90 action to require the application of the doctrine.” Id. at *4.

{¶36} This court determined the issues involved in that particular case were

“essentially the same, i.e. the reason for appellant’s discharge, even though appellant

has attempted to characterize the issue under a different claim and asserting that his

discharge was for another reason.” Id.

{¶37} Although Hapgood facially supports appellees’ position, its facts differ in at

least one way. In Hapgood, the employee went through, not only arbitration, per his

CBA, he also pursued two administrative remedies prior to filing his suit. And the

Hapgood court, albeit not very clearly, did point out that the doctrine of collateral

estoppel applies to administrative proceedings. Appellant, in this matter, did not pursue

any post-arbitration administrative remedies. Upon careful examination, however, this

point, while providing a factual distinction between Hapgood and matter sub judice, may

be of no legal import. The line of authority cited by Hapgood for applying collateral

estoppel to administrative proceedings stands for the following general proposition:

“where an administrative proceeding is of a judicial nature and where the parties have

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had an ample opportunity to litigate the issues involved in the proceeding, the doctrine

of collateral estoppel may be used to bar litigation of issues in a second administrative

proceeding.” Superior Brand v. Lindley, 62 Ohio St.2d 133 (1980); see also Office of

Consumers’ Counsel v. Public Utilities Commission of Ohio, 16 Ohio St.3d 9, 10 (1985).

{¶38} Neither Hapgood nor the matter under consideration involve(d) the

application of the doctrine in a second administrative proceeding. To the contrary, both

Hapgood and the instant matter involve(d) the proposed use of the doctrine to preclude

litigation of a discrimination claim based upon a prior arbitration proceeding pursuant to

a CBA. We find no support for this application and the Court in Alexander expressly

determined the doctrine could not be utilized to preclude statutory claims. Thus, to the

extent Hapgood relied upon the employee’s post-arbitration administrative proceedings

to preclude litigation of his statutory claims, that conclusion was error.

{¶39} The reasoning in Hapgood is fatally flawed in light of the holdings and

policy analyses advanced by the United States Supreme Court in Alexander and its

progeny. Of course, the issues and facts considered in an arbitration proceeding will

inevitably be “intertwined” with those which make up the groundwork for a statutory

discrimination claim. Simply because the points in each proceeding are not mutually

exclusive, however, does not make the issues jointly exhaustive. As the Court noted in

Alexander, an arbitrator’s role is not to evaluate the facts of an employee’s discharge in

relation to the requirements of legislation prohibiting discrimination; rather, an arbitrator

is empowered to resolve questions of contractual rights and, as a result, questions of

retaliation and pretext may be well outside the purview of the issue(s) committed to an

arbitrator. This point, unto itself, is sufficient to place a statutory discrimination claim

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beyond the reach of collateral estoppel. Given the analytic deficiencies of Hapgood, we

decline to apply it to the instant matter.2

{¶40} In this case, arbitration occurred via the grievance procedure pursuant to

the parties’ CBA and thus was a function of collective representation. As Alexander

underscored, there is a tension between collective representation and individual

statutory rights, the latter of which cannot be waived or resolved by an arbitrator limited

to the interpretation of a CBA. Furthermore, there is nothing in the record to indicate

appellant individually agreed to arbitrate his statutory claims. See Gilmer, supra, at 35.

As such, the arbitrator of the just-cause determination was not authorized to resolve

such claims. Finally, there was no evidence or argument that the CBA “clearly and

unmistakably” waived appellant’s statutory-discrimination claims. See Wright, supra, at

80. On these bases, we decline to apply collateral estoppel to appellant’s statutory

claims.

{¶41} We recognize that certain issues of fact in the underlying discrimination

case will be common to those considered by the arbitrator. In her decision, the arbitrator

observed, “[t]he ultimate issue * * * is whether the County had just cause to terminate

the Grievant for his incompetency.” This narrow issue was presented for resolution

pursuant to the parties’ CBA and, as a result, cannot operate to waive or bar appellant’s

individual statutory, civil-rights claims. We therefore conclude, pursuant to Alexander

2. Even though we conclude Hapgood was erroneously decided, a panel of this court cannot overrule the
decision of another panel absent an en banc proceeding. Inconsistent authority within the same district
may be resolved by a court convening en banc. See McFadden v. Cleveland State Univ., 120 Ohio St.3d
54, 2008-Ohio-4914, ¶16 (“‘The principal utility of determinations by the courts of appeals [e]n banc is to
enable the court to maintain its integrity as an institution by making it possible for a majority of its judges
always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court
at the same time to follow the efficient and time-saving procedure of having panels of three judges hear
and decide the vast majority of cases as to which no division exists within the court.’ ” United States v.
American–Foreign Steamship Corp., 363 U.S. 685, 689–690 (1960), quoting Maris, Hearing and
Rehearing Cases in Banc, 14 F.R.D. 91, 96 (1954)).

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and its progeny, appellant’s causes of action are not barred by collateral estoppel or res

judicata.

{¶42} Next, appellant contends that genuine issues of material fact remain for

litigation on his disability discrimination and retaliation claims. To establish a prima

facie case for disability discrimination, the party seeking relief must establish: “(1) that

he or she was handicapped, (2) that an adverse employment action was taken by an

employer, at least in part, because the individual was handicapped, and (3) that the

person, though handicapped, can safely and substantially perform the essential

functions of the job in question.” Hood v. Diamond Products, Inc., 74 Ohio St.3d 298

(1996), syllabus.

{¶43} When a party makes a prima facie demonstration of the foregoing, the

burden shifts to the employer to show a nondiscriminatory reason for the action. Id. at

302. The burden then shifts to the plaintiff to demonstrate the employer’s stated reason

is a mere pretext for discrimination. Pretext may be demonstrated by showing “(1) that

the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate the employer’s action, or (3) that they were insufficient to motivate the

employer’s action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).

{¶44} Appellant advanced some evidence that he suffered from an impairment

or disability; and appellees do not appear to dispute this issue. Appellant contends

Sheriff Doak’s notice of termination, sent on April 29, 2010, was an adverse

employment action; and, a review of the document demonstrates it was, at least in part,

for insubordination as appellant took issue with the sheriff’s decision to place him on the

8:00 p.m. to 4:00 a.m. shift, despite his physician’s recommendations. As such, there is

17
a genuine issue of material fact as to whether the adverse employment action occurred,

in part, because of appellant’s impairment. And, appellant asserts, despite his

impairment, he could perform the essential functions of the job if reasonable

accommodations were made, e.g., allowing him to work first shift.

{¶45} In response, appellees maintain, even if appellant can establish a prima

facie case for trial, appellant’s termination was based upon his incompetence and

deficiencies in performance during his road training, i.e., a reasonable and legitimate

nondiscriminatory reason. Appellees point out that appellant had problems with

jurisdictional geography during training, and was unable to satisfactorily complete the

training. Appellees point to the arbitrator’s decision which characterized appellant as

unable to navigate and orient himself when operating a motor vehicle to perform his job.

Because navigational skills and orientation skills are both essential functions of the job,

he was properly terminated for a nondiscriminatory reason. And, with respect to

appellant’s accommodation argument, appellees underscore that appellant fails to

provide any argument that, even if he were permitted to work first or second shift, he

could perform the necessary navigational and orientation skills required of a deputy.

{¶46} Appellant maintains, however, genuine issues of material fact remain

regarding whether appellees’ motivation for terminating him were pretextual. Appellant

points to his physician’s recommendation restricting him from working third shift.

Appellant seems to argue Sheriff Doak’s decision to place him on the 8:00 p.m. to 4:00

a.m. “power shift,” in spite of the doctor’s restriction, is evidence that he was motivated

to discriminate against him due to his disability. The record does not support this

inference.

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 {¶47} Sheriff Doak formally requested more detailed information related to

appellant’s impairment; he stated “[y]our doctors notice that you cannot work a night

shift provides insufficient information on which to make [a] decision as to an appropriate

accommodation. Until such time as we receive the further information from your doctor,

per the attached form, you will be required to return to full duty with no restrictions.

Once we receive further documentation the issues of accommodation, if any is required,

will be discussed.” The sheriff testified the department’s policy regarding shift work is

not committed to the discretion of the deputies. Rather, if a deputy wishes to be

assigned a different shift, he or she must submit to a bidding process. According to the

sheriff, this policy applies universally. Thus, the sheriff’s concerns with granting

appellant’s request, without more documentation with greater details into his

impairment, undermine appellant’s argument that the sheriff was motivated to

discriminate.

{¶48} A plaintiff must establish that the alleged legitimate reasons offered by an

employer were not its true reasons, but were a pretext for discrimination. Texas Dept.

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). “But a reason cannot be

proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was

false, and that discrimination was the real reason.” (Emphasis omitted.) St Mary’s Honor

Center v. Hicks, 509 U.S. 502, 509 (1993). To carry his burden on summary judgment,

appellant was required to produce sufficient evidence from which a jury could

reasonably reject the sheriff’s explanation for his termination. Appellant’s allegation of

pretext, in light of the undisputed documentation in the record, is merely speculative. It

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is therefore insufficient to create a genuine issue of material fact as to the issue of

pretext.

{¶49} Appellant was terminated for incompetency regarding certain essential

duties of his job. Although appellant submitted evidence of his impairment, there was no

evidence submitted that his sleep disorder caused his deficiencies in navigation and

orientation on the road. Appellant has failed to create a genuine issue of material fact

regarding appellees’ legitimate nondiscriminatory reason for terminating him. Because

appellant has failed to create a material issue as to the pretext prong, appellees are

entitled to judgment as a matter of law on his disability discrimination claim.

{¶50} Appellant next argues the trial court erred in awarding summary judgment

to appellees on his retaliation claim. He maintains there are issues of material fact

going to each element of the claim.

{¶51} The Supreme Court explained that in order to establish a prima facie case

of retaliatory discharge, the employee must demonstrate: (1) the employee engaged in

protected conduct; (2) the employer knew about the protected conduct; (3) the employer

took adverse employment action; and (4) a causal connection between the activity and

the adverse employment action. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-

Ohio-6442, ¶13. If an employee establishes a prima facie case, the burden shifts to the

employer to articulate a legitimate reason for its action. See e.g. Chandler v. Empire

Chemical Inc., 99 Ohio App.3d 396, 402 (9th Dist.1994). And, if the employer meets its

burden, the burden shifts back to the employee to establish pretext. Id.

{¶52} Appellant argues he repeatedly requested a reasonable accommodation

and supplied medical documentation prior to being issued a notice of termination; he

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was terminated in the midst of engaging in the interactive process designed to reach a

reasonable accommodation; and the termination occurred subsequent to seeking

permission to complete his road training on the first or second shift. Even assuming the

foregoing was sufficient to establish a prima facie case for retaliatory discharge, we

have previously concluded that appellees advanced a legitimate reason for appellant’s

termination. We therefore hold appellees were entitled to summary judgment as a

matter of law on appellant’s retaliatory discharge claim.

{¶53} Appellant’s assignment of error lacks merit.

{¶54} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.

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