[Cite as Pilato v. Nordonia Hills City Schools Bd. of Edn., 2019-Ohio-3085.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
PATRICIA PILATO C.A. No. 29243
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE BOARD OF EDUCATION OF THE COURT OF COMMON PLEAS NORDONIA HILLS CITY SCHOOL COUNTY OF SUMMIT, OHIO DISTRICT, ET AL. CASE No. CV-2017-12-5287
Appellees
DECISION AND JOURNAL ENTRY
Dated: July 31, 2019
HENSAL, Judge.
{¶1} Patricia Pilato appeals from the decision of the Summit County Court of Common
Pleas, granting summary judgment in favor of the Board of Education of the Nordonia Hills City
Schools and the business director for the school district, Matt Gaugler. For the reasons that
follow, this Court affirms.
I.
{¶2} Ms. Pilato worked in the cafeteria at Nordonia High School for over 20 years,
eventually becoming the manager. In this position, Ms. Pilato was a member of the Ohio
Association of Public School Employees union. Throughout her employment, Ms. Pilato
received positive performance evaluations and, up until the facts giving rise to this case, had
never received disciplinary action. Relevantly, part of Ms. Pilato’s job responsibilities included
ordering food from Gordon Food Service (“GFS”). To do this, Ms. Pilato would log on to the 2
GFS website with her own username and password. Other than her immediate supervisor, Sue
Petonic (who had her own username and password), no one else at the high school had access to
GFS’s online ordering system.
{¶3} In May 2017, Ms. Pilato requested time off to have knee replacement surgery,
which would require her to be off work during the last two weeks of the school year. While Ms.
Pilato was on leave, a GFS order that Ms. Petonic placed did not arrive. After contacting GFS,
Ms. Petonic learned that someone using Ms. Pilato’s username and password on a non-school
computer had cancelled the order. Although Ms. Pilato denied cancelling the order, Ms. Petonic
and Mr. Gaugler did not believe her, in part because her “story changed multiple times[.]” Ms.
Petonic also learned that, while Ms. Pilato was on leave, Ms. Pilato was logging into the online
payroll system and correcting other employees’ time. According to Ms. Pilato, Ms. Petonic
instructed her to continue working while on leave. According to Ms. Petonic, she instructed Ms.
Pilato not to work while on leave. Further, during her investigation of the cancelled food order,
Ms. Petonic spoke with other cafeteria employees who alleged that Ms. Pilato had bullied and
harassed them.
{¶4} Mr. Gaugler ultimately decided that Ms. Pilato should be removed from her
position as manager, and that – given the allegations of bullying – she should not return to work
at the high school. He, therefore, provided Ms. Pilato with three options: (1) complete an
Employee Assistance Program and take a non-management cafeteria position at one of the other
schools within the district; (2) resign, thereby allowing her to retain the district’s contributions to
her retirement benefits; or (3) be terminated for insubordination. After speaking with a union
representative, Ms. Pilato resigned. 3
{¶5} Ms. Pilato then sued the school district and Mr. Gaugler (collectively,
“Defendants”), asserting three causes of action against them: (1) disparate-impact disability
discrimination; (2) disability discrimination for failure to provide reasonable accommodation;
and (3) retaliation. She also asserted a claim for aiding and abetting discrimination against Mr.
Gaugler only.
{¶6} After a period of discovery, Defendants moved for summary judgment on all of
Ms. Pilato’s claims. In doing so, they argued that Ms. Pilato could not establish a prima facie
case of disability discrimination because she was not disabled, never requested an
accommodation, and did not suffer an adverse employment action because she voluntarily
resigned. Defendants further argued that, even if Ms. Pilato could establish a prima facie case,
they had a legitimate, non-discriminatory reason for their actions: Ms. Pilato cancelled the GFS
food order, requiring Ms. Petonic to go to the physical GFS store to buy the necessary food
items, which they “needed * * * immediately.”
{¶7} Ms. Pilato responded in opposition. She argued that she was disabled because she
had knee pain prior to her knee replacement surgery, which required her to wear a knee brace.
Without the knee brace, she asserted, she would not have been able to work. She also argued
that she was disabled during her recovery from surgery because she could not walk without the
assistance of a walker or cane, and that – even when she could walk unassisted several weeks
after her surgery – she did so slowly and with a limp. Regarding an accommodation, Ms. Pilato
argued that she requested an accommodation by virtue of her request for leave while recovering
from surgery, and that she was denied a reasonable accommodation because Ms. Petonic
instructed her to continue working while on leave. She further argued that she suffered an 4
adverse employment action because she faced a demotion, and was constructively discharged by
being forced to resign.
{¶8} With respect to Defendants’ assertion that they fired her due to the cancelled GFS
order, Ms. Pilato maintained that she did not cancel the order, and asserted that Ms. Petonic “had
motivation to conceal the fact that she told [her] to continue working while on disability leave
and therefore concoct alternative reasons for why [she] would be working while on leave.” She
also argued that the cancelled order did not result in any harm because Ms. Petonic was able to
go to the physical GFS store and purchase the necessary food items to serve that day. She
further argued that the harsh punishment was not justified given her history of exemplary
performance. She, therefore, concluded that “it would seem as if something other than a
legitimate business reason motivated the employment actions taken against her.”
{¶9} The trial court granted summary judgment in favor of Defendants, holding that
Ms. Pilato was not disabled as defined under Revised Code Section 4112.01(A)(13), and that no
evidence indicated that Defendants regarded her as such. It then made several alternative
holdings, including that Ms. Pilato: (1) did not suffer an adverse employment action because she
voluntarily resigned; (2) never requested an accommodation (and even if her request for leave to
undergo knee surgery qualified as a request for an accommodation, she was granted leave); and
(3) failed to meet her burden of demonstrating that Defendants’ actions were a pretext for
disability discrimination. The trial court further held that, since Ms. Pilato’s disability-
discrimination claims failed, her claim against Mr. Gaugler for aiding and abetting likewise
failed. She now appeals that decision, raising five assignments of error for our review. To
facilitate our review, we have combined Ms. Pilato’s assignments of error. 5
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIMS OF DISABILITY DISCRIMINATION FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATION AND FOR RETALIATION WHEN IT HELD THAT PILATO WAS NOT DISABLED.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF DISABILITY DISCRIMINATION FOR FAILURE TO PROVIDE A REASONABLE ACCOMMODATION WHEN IT HELD THAT PILATO FAILED TO REQUEST A REASONABLE ACCOMMODATION AND/OR THAT THE DISTRICT AND GAUGLER PROVIDED THE REQUESTED REASONABLE ACCOMMODATION.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF DISABILITY DISCRIMINATION – RETALIATION WHEN IT HELD THAT PILATO SUFFERED NO ADVERSE EMPLOYMENT ACTION.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DISTRICT AND GAUGLER ON PILATO’S CLAIM OF DISABILITY DISCRIMINATION – RETALIATION WHEN IT HELD THAT PILATO FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE REASONS FOR HER FORCED RESIGNATION WERE PRETEXT FOR DISCRIMINATION.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF GAUGLER ON PILATO’S CLAIM FOR AIDING AND ABETTING DISCRIMINATION BECAUSE THE CLAIMS OF DISABILITY DISCRIMINATION FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATION AND RETALIATION DO NOT FAIL AS A MATTER OF LAW. 6
{¶10} In her assignments of error, Ms. Pilato argues that the trial court erred by granting
summary judgment in favor of Defendants, determining that she: (1) was not disabled as defined
under Section 4112.01(A)(13); (2) was not denied a reasonable accommodation; (3) did not
suffer an adverse employment action; and (4) did not demonstrate that a genuine issue of
material fact remained as to whether Defendants’ proffered legitimate, nondiscriminatory reason
for their action was a pretext for discrimination. Ms. Pilato also argues that, because the trial
court granted summary judgment to Mr. Gaugler on the aiding-and-abetting claim based upon its
determination that her disability-discrimination claims failed, its reasoning was erroneous, and
its decision must be reversed.
{¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is
proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party 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 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).
{¶12} The party moving for summary judgment bears the initial burden of
demonstrating the absence of genuine issues of material facts concerning the essential elements
of the non-moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically,
the moving party must support the motion by pointing to some evidence in the record of the type
listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then the
non-moving party has the reciprocal burden to demonstrate a genuine issue for trial remains. Id.
at 293. The non-moving party may not rest upon the mere allegations or denials in her 7
pleadings, but must point to or submit evidence of the type specified in Civil Rule 56(C). Id.;
Civ.R. 56(E).
{¶13} To establish a prima facie case of disability discrimination, a plaintiff must prove
that she: (1) was disabled; (2) suffered an adverse employment action based, at least in part, on
that disability; and (3) could safely and substantially perform the essential functions of the job.
See Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571 (1998). If the plaintiff
establishes a prima facie case, the burden shifts to the employer to produce evidence of a
legitimate, nondiscriminatory reason for its action. Tripp v. Beverly Ents.–Ohio, Inc., 9th Dist.
Summit No. 21506, 2003-Ohio-6821, ¶ 28. “The employer’s burden regarding the legitimate[,]
nondiscriminat[ory] rationale is one of production only.” Manofsky v. Goodyear Tire & Rubber
Co., 69 Ohio App.3d 663, 667 (9th Dist.1990). Then, the burden shifts back to the employee to
demonstrate that the proffered reason is a pretext for discrimination. Tripp at ¶ 28. Because
other issues are dispositive of this appeal, we will assume – without deciding – that Ms. Pilato
was disabled, and that she suffered an adverse employment action. Further, we note that there
was no dispute below that Ms. Pilato could safely and substantially perform the essential
functions of her job.
{¶14} Regarding a claim for failure to accommodate:
a prima facie case involves a showing that: (1) she is disabled within the meaning of the Act; (2) she is otherwise qualified for the position (with or without reasonable accommodation); (3) her employer knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the employer failed to provide the necessary accommodation. The burden is placed on the plaintiff to propose an accommodation that is objectively reasonable.
Stewart v. Bear Mgt., Inc., 5th Dist. Stark No. 2017CA00025, 2017-Ohio-7895, ¶ 21, quoting
Barber v. Chestnut Land Co., 7th Dist. Mahoning No. 15 MA 39, 2016-Ohio-2926, ¶ 72. 8
{¶15} Relevantly, “[a]n employer may obtain summary judgment in a discrimination
case by either demonstrating that the plaintiff’s proffered evidence fails to establish a prima facie
case, or by presenting a legitimate, nondiscriminatory explanation for the adverse employment
action about which the plaintiff fails to create a factual dispute that the explanation is a pretext
for discrimination.” Dunn v. GOJO Industries, 9th Dist. Summit No. 28392, 2017-Ohio-7230, ¶
13, quoting Williams v. Time Warner Cable, 9th Dist. Wayne No. 18663, 1998 WL 332937, *2
(June 24, 1998). Here, Ms. Pilato argues that Defendants discriminated against her by forcing
her to resign, and by failing to provide a reasonable accommodation. We will address her
reasonable-accommodation argument first.
{¶16} As previously noted, the trial court determined that Ms. Pilato never requested an
accommodation. It further determined that, if her request for leave to undergo knee surgery
qualifies as a request for an accommodation, Defendants granted that request. On appeal, Ms.
Pilato argues that her request for leave was a request for an accommodation, and that Defendants
effectively denied it by requiring her to work, and by requiring her to address the cancelled-food-
order issue while on leave. Assuming without deciding that her request for leave qualifies as a
request for an accommodation, we agree with the trial court that no genuine issue of material fact
remained regarding whether Ms. Pilato received that accommodation.
{¶17} Ms. Pilato testified that she met with Ms. Petonic the Friday before her surgery
and told her she would need the last 10 days of the school year off work to undergo knee
replacement surgery. According to Ms. Pilato, Ms. Petonic advised her to use her sick leave,
which she did. In the same meeting, Ms. Pilato and Ms. Petonic discussed ideas for the next
school year, including tentative menus and ways to increase participation in the high school’s
lunch program. The following Monday (the day before Ms. Pilato’s surgery), Ms. Petonic 9
wished Ms. Pilato “[g]ood luck[,]” and Ms. Pilato indicated that they would talk sometime after
her surgery.
{¶18} While Ms. Pilato testified at her deposition that Ms. Petonic instructed her to
continue working while on leave (an assertion that Ms. Petonic denied), the record reveals that
Ms. Pilato continued to work on her own accord. For example, the record includes emails and
text messages authored by Ms. Pilato, indicating that she “was never told by [Ms. Petonic] or
anyone else not to do [her] job[,]” that she “just assumed” she would continue working, and that
she “did not think okaying times [in the online payroll system] was that big of a deal.” She also
indicated that she “d[idn’t] have a problem helping * * * if needed,” but acknowledged that she
was specifically told not to submit a GFS order while on leave because Ms. Petonic and another
cafeteria employee were “taking care of” it and “had it covered.”
{¶19} While Ms. Pilato’s deposition testimony contradicted her other statements
contained in the record, it did not create a “genuine issue” of material fact, that is, one that
presented “a sufficient disagreement to require submission to a jury[.]” Turner v. Turner, 67
Ohio St.3d 337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252
(1986). Rather, the evidence here was “so one-sided that [Defendants] must prevail as a matter
of law[.]” Id., quoting Anderson at 252; see Deutsche Bank Natl. Trust Co. v. Doucet, 10th Dist.
Franklin No. 07AP-453, 2008-Ohio-589, ¶ 7 (describing a “genuine issue” as a “substantial or
real issue of fact” that “can be maintained by substantial evidence.”); Privett v. QSL-Milford,
L.L.C., 12th Dist. Clermont No. CA2013-04-025, 2013-Ohio-4129, ¶ 9 (“Not all disputes of fact
create a genuine issue. Instead, a dispute of fact can be considered ‘genuine’ if it is supported by
substantial evidence that exceeds the allegations in the complaint.”). Further, to the extent that
Ms. Pilato asserts that Defendants denied her request for an accommodation because they 10
required her to address the cancelled-food-order issue while on leave, she did not raise that issue
below, and cannot do so for the first time on appeal. Miller v. Miller, 9th Dist. Summit No.
21770, 2004-Ohio-1989, ¶ 14.
{¶20} Regarding her claim for retaliation, after Defendants proffered a legitimate,
nondiscriminatory reason for its actions (i.e., the cancelled food order), Ms. Pilato had the
burden of demonstrating that the proffered reason was a pretext for discrimination. “To
demonstrate pretext, ‘the plaintiff must show one of the following: (1) that the proffered reasons
had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse
employment action, or (3) that the employer’s reasons were insufficient to motivate the adverse
employment action.’” Dunn, 2017-Ohio-7230, at ¶ 15, quoting Chiancone v. City of Akron, 9th
Dist. Summit No. 26596, 2014-Ohio-1500, ¶ 18. Ms. Pilato failed to meet this burden.
{¶21} In her response to Defendants’ motion for summary judgment, Ms. Pilato asserted
that she did not cancel the GFS order, and that – even if she did – the lack of resulting harm,
coupled with her exemplary work history, did not justify her forced resignation. She further
asserted that Ms. Petonic “had motivation to conceal the fact that she told [her] to continue
working while on disability leave and therefore to concoct alternative reasons for why [she]
would be working while on leave.” She concluded that “it would seem as if something other
than a legitimate business reason motivated the employment actions taken against her.”
{¶22} Despite her denial, the record contains no genuine issue of material fact as to
whether Ms. Pilato cancelled the GFS order: she admitted to being logged onto the GFS website
on the night the order was cancelled, and acknowledged that no one else knew her login
credentials. Further, Defendants presented evidence from GFS, which indicated that someone
using Ms. Pilato’s login credentials cancelled the food order. Again, the evidence presented was 11
so one-sided that no “genuine issue” existed. See Turner, 67 Ohio St.3d 337, at 340; Interstate
Properties v. Prasanna, Inc., 9th Dist. Summit Nos. 22734, 22757, 2006-Ohio-2686, ¶ 30 (“In
determining whether there is a genuine issue of material fact, a court must inquire whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”), quoting Wall v. Firelands Radiology,
Inc., 106 Ohio App.3d 313, 322-323 (6th Dist.1995).
{¶23} Additionally, as the trial court noted, the lack of harm (i.e., the fact that Ms.
Petonic was able to go to the physical GFS store and purchase the necessary food items) and Ms.
Pilato’s history of exemplary job performance does not, by itself, establish that Defendants
discriminated against her on the basis of her alleged disability. Other than Ms. Pilato’s
speculation, nothing in the record indicates that Defendants’ actions were motivated by anything
other than a legitimate, nondiscriminatory reason: the cancellation of the GFS food order. In
fact, the record indicates that – prior to the cancellation of the food order – Ms. Petonic expected
Ms. Pilato to return to work the following school year, and had already begun planning new
menus with her, as well as discussing strategies to increase participation in the lunch program.
To the extent that Ms. Pilato asserts that Ms. Petonic was motivated to conceal the fact that she
allegedly told Ms. Pilato to continue working while on leave, Ms. Pilato failed to point to any
evidence – aside from her own testimony that, as discussed above, contradicted her other
statements contained in the record – that supported her position in that regard. See Barber, 2016-
Ohio-2926, at ¶ 68 (holding that speculation offered to show pretext is insufficient to defeat
summary judgment). Defendants proffered a legitimate, nondiscriminatory reason for their
actions, and Ms. Pilato failed to meet her reciprocal burden of establishing a genuine issue of
material fact as to whether that reason was a pretext for disability discrimination. Accordingly, 12
the trial court did not err by granting summary judgment in favor of Defendants, nor did the trial
court err by granting summary judgment in favor of Mr. Gaugler on Ms. Pilato’s claim for aiding
and abetting discrimination.
{¶24} In light of the foregoing, Ms. Pilato’s assignments of error are overruled.
III.
{¶25} Ms. Pilato’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court 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 make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER L. HENSAL FOR THE COURT 13
CALLAHAN, P. J. CONCURS.
CARR, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
SHAWN A. ROMER, Attorney at Law, for Appellant.
CHRISTIAN M. WILLIAMS and TARYN A. WEISS, Attorneys at Law, for Appellees.