Feerasta v. Univ. of Akron , 2022 Ohio 653 ( 2022 )

[Cite as Feerasta v. Univ. of Akron, 2022-Ohio-653.]
JAMAL FEERASTA Case No. 2020-00617JD
Plaintiff Judge Patrick E. Sheeran
Magistrate Robert Van Schoyck
v.
DECISION
THE UNIVERSITY OF AKRON
Defendant
{¶1} On September 10, 2021, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff filed a response on September 23, 2021. Defendant
filed a reply on October 7, 2021. Plaintiff filed a sur-reply, with leave of court, on
November 29, 2021. The motion is now before the court for a non-oral hearing
pursuant to Civ.R. 56 and L.C.C.R. 4(D).
{¶2} Civ.R. 56(C) states, in part, as follows:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in this rule. A
summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation
construed most strongly in the party’s favor.
See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564,
¶ 6, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
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{¶3} There is no dispute that, as set forth in the complaint, plaintiff began working
for defendant in 2000 and later became a tenured professor in the Bachelor of
Organizational Supervision program within the Business and Information Technology
Department. (Complaint, ¶ 3, 5, 9.) Plaintiff went on medical leave during the spring
semester of 2020 to undergo cardiac surgery. (Id. at ¶ 11.) On July 16, 2020, plaintiff
was notified that he was among 96 full-time faculty members whose employment was
terminated by defendant as part of a reduction in force (RIF). (Id. at ¶ 16, 20.) Plaintiff,
who was 68 years old at the time he filed his complaint, claims that the termination of
his employment constituted unlawful discrimination on the basis of both age and
disability.
AGE DISCRIMINATION
{¶4} Count I of the complaint raises a claim of age discrimination in violation of
R.C. 4112.01, et seq.
{¶5} “R.C. 4112.02(A) provides that ‘[i]t shall be an unlawful discriminatory
practice * * * [f]or any employer, because of the race, color, religion, sex, military status,
national origin, disability, age, or ancestry of any person, to discharge without just
cause, to refuse to hire, or otherwise to discriminate against that person with respect to
hire, tenure, terms, conditions, or privileges of employment, or any matter directly or
indirectly related to employment.’” Nelson v. Univ. of Cincinnati, 2017-Ohio-514, 75
N.E.3d 1304, ¶ 31 (10th Dist.). Additionally, “[t]he Supreme Court [of Ohio] has
explained, ‘we have determined that federal case law interpreting Title VII of the Civil
Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code, is generally applicable to
cases involving alleged violations of R.C. Chapter 4112.’” Brown v. Corr. Reception
Ctr., 2020-Ohio-684, 146 N.E.3d 621, ¶ 21 (10th Dist.), quoting Little Forest Med. Ctr. v.
Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164 (1991).
{¶6} “In order to prevail in [an] employment discrimination case, [a plaintiff] must
prove discriminatory intent and may establish such intent through either direct or indirect
Case No. 2020-00617JD -3- DECISION
methods of proof.” Ray v. Ohio Dept. of Health, 2018-Ohio-2163, 114 N.E.3d 297, ¶ 23
(10th Dist.). In this case, plaintiff maintains that discriminatory intent may be
established through the indirect method of proof. (Response, p. 8).
{¶7} A plaintiff “may indirectly establish discriminatory intent using the analysis
promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973) * * *.” Brehm v. MacIntosh Co., 10th Dist. Franklin No. 19AP-19,
2019-Ohio-5322, ¶ 14. “To establish a prima facie case of age discrimination, a plaintiff
must show: ‘(1) membership in a protected group; (2) qualification for the job in
question; (3) an adverse employment action; and (4) circumstances that support an
inference of discrimination.’” Blizzard v. Marion Tech. College, 698 F.3d 275, 283 (6th
Cir.2012), quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002).
{¶8} Ohio courts, “including [the Tenth District Court of Appeals], have held that a
RIF ‘necessarily requires modification of the indirect method of proof and establishing a
prima facie case by modifying the fourth element under * * * McDonnell Douglas.’”
Kundtz v. AT&T Solutions, Inc., 10th Dist. Franklin No. 05AP-1045, 2007-Ohio-1462,
¶ 21, quoting Dahl v. Battelle Mem. Inst., 10th Dist. Franklin No. 03AP-1028, 2004-
Ohio-3884, ¶ 15. Therefore, “in cases of a termination due to a RIF, ‘an age
discrimination plaintiff carries a greater burden of supporting allegations of
discrimination by coming forward with additional evidence, be it direct, circumstantial, or
statistical, to establish that age was a factor in the termination.’” Id. “The purpose of
requiring the plaintiff to introduce additional evidence in RIF cases ‘is to ensure “there is
a chance that the work force reduction is not the reason for the termination.”’” Pettay v.
DeVry Univ., Inc., 10th Dist. Franklin No. 19AP-762, 2021-Ohio-1380, ¶ 23, quoting
Case No. 2020-00617JD -4- DECISION
Mittler v. OhioHealth Corp., 10th Dist. Franklin No. 12AP-119, 2013-Ohio-1634, ¶ 33,
quoting Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672,
¶ 57.
{¶9} “Once a plaintiff establishes a prima facie case of disability discrimination,
‘the burden then shifts to the employer to set forth some legitimate, nondiscriminatory
reason for the action taken.’” Dalton v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 13AP-827, 2014-Ohio-2658, ¶ 27, quoting Hood v. Diamond Prods., Inc., 74 Ohio
St.3d 298, 302, 658 N.E.2d 738 (1996). “The defendant must then offer a legitimate
explanation for its action. If the defendant satisfies this burden of production, the
plaintiff must introduce evidence showing that the proffered explanation is pretextual.
Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times.”
Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186-1187 (6th Cir.1996).
{¶10} In its motion for summary judgment, defendant does not dispute that
plaintiff is a member of the protected class, that his position was eliminated, and that he
was qualified for his position; however, defendant asserts that plaintiff cannot establish
the fourth element of the prima facie case because he was neither replaced, nor were
substantially younger employees retained by the elimination of his position.
{¶11} Plaintiff, on the other hand, argues that there are circumstances which
permit an inference of age discrimination.
{¶12} First, plaintiff cites the testimony of Stan Smith, who served as Acting Chair
of the Business and Information Technology Department from approximately February
2020 through June 2020 and thus served as plaintiff’s supervisor during that time.
According to plaintiff, Smith “was clearly untruthful in his testimony surrounding the
reduction in force process”, particularly to the extent that he “did not know who his
supervisor was” when the RIF occurred. (Response, p. 9.) In his deposition, Smith
explained that as Acting Chair he initially reported to Michael Johanyak, who was Acting
Case No. 2020-00617JD -5- DECISION
Dean of the College of Applied Science & Technology. Smith stated that after Johanyak
retired sometime that winter, there were various changes afoot due to a pending
reorganization of departments and then he started working from home due to the
COVID-19 pandemic and no one ever specifically told him who his new supervisor was;
but, he understood that Johanyak was replaced by Interim Chair Sukanya Kemp, he
would assume that he was supposed to report to Kemp, and indeed Kemp was the
administrator with whom he dealt following Johanyak’s retirement. (Smith Depo.,
pp. 26-31.) Thus, the evidence demonstrates that Smith reported to Kemp after
Johanyak’s retirement, and, even if Smith was uncertain about Kemp officially being his
supervisor, it is not clear how this would make it any more or less likely that the RIF was
not the reason for plaintiff’s position being abolished.
{¶13} Plaintiff also asserts that “[i]t is challenging to believe” that Smith was not
involved in the RIF. (Response, p. 9.) In his deposition, though, Smith denied having
any involvement in choosing whose positions would be abolished in the RIF, he denied
having any knowledge of the criteria used for those determinations, and, moreover, he
stated that he only learned of the RIF from media reports. (Smith Depo., pp. 16-17.)
Kemp, in her deposition, also stated that Smith was not a decisionmaker in the RIF
process. (Kemp Depo., p. 22.) Joseph Urgo, who served as Interim Provost before
becoming Acting Dean of the College of Arts & Sciences in May 2020, testified that he
spoke with Kemp about the RIF process, but not Smith. (Urgo Depo., p. 24.) Plaintiff
does not identify evidence to contravene Smith, Kemp, and Urgo’s testimony in this
regard.
{¶14} Plaintiff also asserts that an inference of age discrimination can be drawn
from Smith and Kemp questioning him about potentially retiring. In his deposition,
plaintiff stated that when he came back from his medical leave and spoke to Smith,
Smith asked how he was doing, if he was available to teach, and if he was considering
retirement.
Case No. 2020-00617JD -6- DECISION
(Plaintiff Depo., pp. 24, 56.) As stated earlier, though, the uncontroverted evidence is
that Smith was not involved in the decision to abolish plaintiff’s position through the RIF.
Although Kemp admitted that she may have at some point asked plaintiff if he preferred
to retire in lieu of his position being abolished in the RIF (Kemp Depo., p. 23), simple
“inquiries into retirement plans do not generally constitute evidence of discrimination”.
Anderson v. U.S. Bank Natl. Assn., S.D.Ohio No. 2:14-cv-2167, 2016 U.S. Dist. LEXIS
84728, *29 (June 28, 2016), citing MacDonald v. United Parcel Serv., 430 Fed.Appx.
453, 460 (6th Cir.2011), Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir.1997).
{¶15} Plaintiff also argues that there is conflicting evidence about who made the
decisions as to which employees would have their positions eliminated in the RIF. In
particular, plaintiff contends that the deposition testimony of Kemp and Urgo are
inconsistent. Plaintiff notes that Urgo, who served as Provost until May 2020, when he
became Acting Dean of the College of Arts & Sciences, was asked “[w]ho would have
been in charge of the RIFs involving BOS”, and he replied that Kemp “oversaw that
process.” (Urgo Depo., p. 23.) Plaintiff further notes that Urgo said he spoke to Kemp
about the names of those who would lose their positions in the RIF and, when asked if
he was simply informed of that information or was part of the approval process, he said
he was only informed. (Id.) Plaintiff then notes that when Kemp was asked in her
deposition if she would be surprised to learn that Urgo indicated she was “involved in
choosing the names”, she said she would be very surprised. (Kemp Depo., p. 25)
{¶16} In fact, consistent with Urgo’s testimony, Kemp explained in her deposition
that she was in charge of conducting an RIF analysis in which she provided information
about the academic programs and faculty under her authority within the College of
Applied Science & Technology, including plaintiff, and she supposed her analysis was
used in the creation of the final list of faculty eliminated in the RIF. (Id. at pp. 14-15, 25-
27, 32.) Kemp stated that she conducted this analysis in June 2020, at which time Urgo
Case No. 2020-00617JD -7- DECISION
was no longer the Interim Provost over her but was instead an Acting Dean of the
College of Arts & Sciences. (Id. at p. 17; Urgo Depo., p. 13.) Insofar as Urgo stated
that Kemp discussed with him the names of faculty affected by the RIF, there is no
dispute that the college overseen by Kemp was being eliminated and its departments
were being reorganized into other colleges, including the College of Arts & Sciences.
Indeed, Kemp testified that she shared with Urgo the information she compiled about
the programs that were moving to the College of Arts & Sciences. (Kemp Depo., p. 33.)
As to Kemp’s denial of having decided which faculty would be eliminated in the RIF, she
testified that her analysis was limited to providing information and that the actual
decisions on which faculty were to be eliminated were made by other university officials,
and, ultimately, the board of trustees (Id. at pp. 16, 20, 25, 29.) Even if there was some
inconsistency in Kemp and Urgo’s testimony, plaintiff has not shown how it points
toward age discrimination.
{¶17} Similarly, while plaintiff submitted with his sur-reply copies of email
messages from Kemp indicating that her involvement in the RIF process included
preparing a list of faculty whom she proposed to be eliminated, she admitted in her
deposition that she supposed her input was indeed used in defendant’s adoption of a
final RIF list, and even if there is some inconsistency between the email messages and
her deposition testimony, plaintiff does not show how this points to age discrimination
rather than the RIF as the reason for plaintiff’s position being eliminated.
{¶18} Plaintiff also points to a document obtained in discovery listing every
employee whose position was abolished in the RIF, arguing that when reviewing the
age of each employee “under 15% of the reduction in force list was under 40.”
(Response, p. 5; Plaintiff Affidavit, Ex. 1.) The Tenth District Court of Appeals has
consistently held, however, “that statistical evidence, in order to be of probative value,
must ‘account for variations among employees’ with respect to variables such as ‘skill
level, job function, and education.’” Pettay, 2021-Ohio-1380, at ¶ 26, quoting Dahl,
Case No. 2020-00617JD -8- DECISION
2004-Ohio-3884, at ¶ 18. For example, under the facts in Boggs v. Scotts Co., 10th
Dist. Franklin No. 04AP-425, 2005-Ohio-1264, ¶ 18, the appeals court found “the
appellant’s statistical evidence, which looked only at ‘the number of persons above and
below the age of 40 who were selected for termination,’ and which failed to consider
other non-discriminatory business reasons, was not probative of whether the employer
decided to terminate her based solely on age.” Pettay at ¶ 27. Here too, the
unelaborated statistic identified by plaintiff is insufficient to establish a material issue of
fact going toward plaintiff’s prima facie case. See Id. at ¶ 48.
{¶19} Plaintiff also refers to an averment in an affidavit he submitted in response
to the motion for summary judgment, being that when the Bachelor of Organizational
Supervision program moved to the School of Communication as part of the
reorganization in 2020, “at least one individual within the School of Communication who
was retained by the University of Akron began teaching a BOS course and was younger
than me.” (Plaintiff Affidavit, ¶ 3.) Plaintiff does not point to material facts to further
explain or substantiate this assertion, including the age of the unnamed individual.
Vague, self-serving statements do not substantiate plaintiff’s allegation. Pierce v.
Brown Publishing Co., 12th Dist. Fayette No. CA2006-07-027, 2007-Ohio-1657, ¶ 15.
“An employee may not rely upon bare assertions that he was replaced by a substantially
younger individual as evidence going to this question of fact.” Id., quoting Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).
{¶20} Accordingly, plaintiff has not identified circumstantial evidence sufficient to
meet the fourth element of his prima facie case. Even if plaintiff could establish a prima
face case, “Ohio courts have recognized that a reduction in force due to economic
necessity can be a legitimate, nondiscriminatory reason for an employee’s discharge.”
Lascu v. Apex Paper Box Co., 8th Dist. Cuyahoga No. 95091, 2011-Ohio-4407, ¶ 25. In
this case, defendant indeed cites the RIF as the reason for plaintiff’s discharge.
Case No. 2020-00617JD -9- DECISION
{¶21} In an affidavit, Kemp avers, in part, that she “had been aware that UA had
financial issues, from at least the academic year of 2018-2019, and in the end of May
2020, I became aware that UA would be doing a reduction-in-force (“RIF”) in order to
address the financial hardships it faced.” (Kemp Affidavit, ¶ 4.) Similarly, Urgo stated in
his deposition that soon after he joined defendant in November 2019, he learned that
defendant had financial problems resulting from declining enrollment, and in May 2020
defendant’s president told him there would be an RIF. (Urgo Depo., pp. 11-12.) As
Urgo explained, each Dean was tasked with reducing their budget by a certain amount,
and faculty salaries were the biggest part of their budgets. (Id. at pp. 15-16.) Kemp
states in her affidavit that in her role as Dean of the College of Applied Science and
Technology, she was involved in the RIF process by compiling information on “every
department, including student enrollment and retention rates, financial status, as well as
input on faculty and nonfaculty positions within [the college] in regards to program
viability.” (Kemp Affidavit, ¶ 5.) According to Kemp, she “provided input on positions
that could be abolished for cost-saving measures—not people. The information
provided to the administration and UA about positions that could be abolished did not
take into account the age or disability status of any employee, including [plaintiff].” (Id.
at ¶ 6.) Kemp goes on to state:
The Bachelor of Organizational Supervision (“BOS”) was among those
programs that I reviewed at the behest of UA. The BOS program’s
enrollment numbers had been trending downward for the past five years,
and with the UA’s reorganization of the BOS program into the College of
Communications it was determined that the two full-time professor
positions within the program were appropriate for inclusion on the RIF list.
(Id. at ¶ 7.) There is no dispute that the only other full-time professor in the Bachelor of
Organizational Supervision program besides plaintiff was also eliminated in the RIF.
Higher-level officials, and, ultimately, the board of trustees made the decisions on which
Case No. 2020-00617JD -10- DECISION
faculty were included in the RIF. (Kemp Depo., pp. 16, 29.) It appears to be undisputed
that the positions of 178 employees were eliminated in the RIF, including 96 full-time
faculty.
{¶22} From the evidence presented, reasonable minds must conclude that
defendant’s university-wide RIF was conducted out of economic necessity and
constituted a legitimate, nondiscriminatory reason for plaintiff’s position being
eliminated.
{¶23} “A plaintiff can demonstrate pretext by showing that the proffered reason
(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick
Co., 231 F.3d 1016, 1021 (6th Cir.2000). “At the summary judgment stage, the issue is
whether the plaintiff has produced evidence from which a jury could reasonably doubt
the employer’s explanation.” Chen v. Dow Chem. Co., 580 F.3d 394, 400, fn.4 (6th
Cir.2009).
{¶24} Plaintiff does not dispute “that the university may have had to make some
changes, but [plaintiff] was chosen because of his age * * *.” (Response, p. 10.) As
evidence, plaintiff refers again to perceived inconsistencies between the deposition
testimony of Kemp, Smith, and Urgo, which have already been addressed. Plaintiff
refers to the evidence of defendant’s financial issues as “[b]lanket allegations”, but the
uncontroverted evidence is that defendant indeed faced a significant budget shortfall.
(Id.)
{¶25} Plaintiff also asserts that “[d]efendant’s own admissions that more senior
employees would need to be terminated first, cuts against” defendant’s proffered
reasoning. (Id.) According to the deposition testimony of Urgo, however, while the
faculty eliminated in the RIF tended to have more seniority, they were not necessarily
“older”. (Urgo Depo., p. 17.) And, in an RIF the decision to discharge a qualified, older
employee is not inherently suspicious, but “is readily explainable in terms of the
Case No. 2020-00617JD -11- DECISION
employer’s economic situation.” Brocklehurst v. PPG Indus., 123 F.3d 890, 896 (6th
Cir.1997). The federal Age Discrimination in Employment Act “only bars discrimination
on account of age; it does not place on employers an affirmative obligation to retain
older workers whenever a reduction in staff becomes necessary.” Wilson v. Firestone
Tire & Rubber Co., 932 F.2d 510, 517 (6th Cir.1991).
{¶26} In short plaintiff has not produced evidence from which a reasonable finder
of fact could doubt defendant’s explanation for including plaintiff among the 96 full-time
faculty members whose positions were eliminated.
{¶27} Accordingly, defendant is entitled to judgment on plaintiff’s claim of age
discrimination.
DISABILITY DISCRIMINATION
{¶28} Count II of the complaint raises a claim of disability discrimination in
violation of R.C. 4112.01, et seq.
{¶29} “Disability discrimination in employment is prohibited by R.C. 4112.02
which provides, in pertinent part, that ‘[i]t shall be an unlawful discriminatory practice * *
* [f]or any employer,’ because of the ‘disability * * * of any person, to discharge without
just cause, * * * 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.’” Dalton, 2014-Ohio-2658 at ¶ 24, quoting R.C.
4112.02(A).
{¶30} “The Supreme Court of Ohio has explained that discrimination actions
under federal and state law each require the same analysis.” Ray v. Ohio Dept. of
Health, 2018-Ohio-2163, 114 N.E.3d 297, ¶ 22 (10th Dist.), citing Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d
192, 196, 421 N.E.2d 128 (1981); Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61
Ohio St.3d 607, 609-610, 575 N.E.2d 1164 (1991). “Ohio courts may look to both
Case No. 2020-00617JD -12- DECISION
federal and state courts’ statutory interpretations of both federal and state statutes when
determining the rights of litigants under state discrimination laws.” Id.{¶31} “[A] plaintiff may establish a prima facie case of * * * discrimination directly
by presenting evidence, of any nature, to show that an employer more likely than not
was motivated by discriminatory intent.” Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578,
664 N.E.2d 1272 (1996), paragraph one of the syllabus. “To establish a prima facie
case of disability discrimination under R.C. 4112.02, a plaintiff must show that: (1) the
employee was disabled, (2) that the employer took adverse employment action against
the employee, which was caused, at least in part, by the employee’s disability; and that
(3) despite the disability, the employee can safely and substantially perform the
essential functions of the job, with or without a reasonable accommodation.” Sheridan
v. Jackson Twp. Div. of Fire, 10th Dist. Franklin No. 08AP-771, 2009-Ohio-1267, ¶ 5.
{¶32} “Once a plaintiff establishes a prima facie case of disability discrimination,
‘the burden then shifts to the employer to set forth some legitimate, nondiscriminatory
reason for the action taken.’” Dalton, 2014-Ohio-2658, at ¶ 27, quoting Hood v.
Diamond Prods., Inc., 74 Ohio St.3d 298, 302, 658 N.E.2d 738 (1996). “The defendant
must then offer a legitimate explanation for its action. If the defendant satisfies this
burden of production, the plaintiff must introduce evidence showing that the proffered
explanation is pretextual. Under this scheme, the plaintiff retains the ultimate burden of
persuasion at all times.” Monette, 90 F.3d at 1186-1187.
{¶33} Defendant argues that plaintiff cannot establish the first element of a prima
facie case inasmuch as he was not disabled for purposes of a disability discrimination
claim.
{¶34} “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
Case No. 2020-00617JD -13- DECISION
mental impairment.’” Hilbert v. Ohio Dept. of Transp., 2017-Ohio-488, 84 N.E.3d 301,
¶ 49 (10th Dist.), quoting R.C. 4112.01(A)(13).
{¶35} Under plaintiff’s theory of disability discrimination, “[t]he question is whether
[he] was disabled when he was terminated”, and, according to plaintiff, “at the time [his]
employment was terminated, he most certainly had a cognizable disability.” (Response,
pp. 11-12.)
{¶36} Plaintiff alleged in his complaint that he “is a member of a protected class,
as he suffered from a medical condition and had recently received and was recovering
from a major surgery related to the condition.” (Complaint, ¶ 38.) More specifically, in
responses to interrogatories plaintiff identified his disability as a heart “[v]alve
replacement and bypass”, and when asked to identify how he was substantially limited
in a major life activity he answered “[w]as required to take semester off.” (Motion,
Ex. C-1, p. 5.)
{¶37} Consistent with that, plaintiff testified in his deposition that he took the
spring semester off to undergo the procedure, which was performed on February 6 or 7,
2020. (Plaintiff Depo., pp. 10, 30.) According to plaintiff, the procedure went “very
smooth”, he subsequentlly has more energy, is more active, and is “absolutely” thriving.
(Id. at p. 31.) Plaintiff stated that after his doctor cleared him to return to work, he got in
touch with Smith about planning for summer and fall semester classes and let him know
he was ready to teach again. (Id. at pp. 13-15, 26.) As plaintiff recounted, he was
indeed assigned to teach that summer and fall, although plans were in limbo due to the
pending reorganization of colleges. (Id. at pp. 15, 24.) Plaintiff stated that he did teach
in the summer semester and it “was not a problem”. (Id. at p. 39.)
{¶38} There is no dispute that on or about July 16, 2020, plaintiff was notified that
his position was being eliminated in the RIF, and, according to defendant’s written
notice to plaintiff, his last day of full-time employment was August 21, 2020. (Kemp
Case No. 2020-00617JD -14- DECISION
Affidavit, Ex. A-3.) Plaintiff has continued to teach part-time for defendant since then,
up to the present time. (Plaintiff Depo., pp. 35, 39.)
{¶39} While plaintiff claims that he was disabled at the time his position was
eliminated, from the evidence presented it can only be concluded that the extent of his
impairment was to limit him from teaching during spring semester. Plaintiff has failed to
demonstrate that he was limited in a major life activity at the time his position was
eliminated. See Stearman v. Ferro Coals, Inc., 751 Fed.Appx. 827, 831 (6th Cir.2018)
(employee who suffered heart attack and prostate cancer but came back to work “‘full
steam’ after treatment”, had no restriction in his ability to perform his job, and “had no
serious health issues at the time of his termination” was not disabled under ADA
standards).
{¶40} Finally, while he does not specifically raise such a theory, even if plaintiff
could be understood as arguing he was at least “regarded as” disabled, he has not
identified evidence tending to show any mistaken belief that he had a physical
impairment. Plaintiff emphasizes that Kemp and Smith “were aware of his medical
condition.” (Response, pp. 6, 11.) However, “[g]eneral knowledge or notice about an
employee’s medical treatment or condition, alone, is insufficient to overcome summary
judgment on a claim that an employer ‘regarded’ the employee as disabled. Wingfield
v. Escallate, LLC, N.D.Ohio No. 5:12CV2620, 2014 U.S. Dist. LEXIS 139885, *16 (Sept.
30, 2014). Plaintiff also asserts that Smith “questioned his ability to teach following the
medical procedure”, but in his deposition plaintiff stated that Smith merely asked him,
when he was returning from leave (amid the outset of the COVID-19 pandemic) “how
are you doing” and “are you ready to teach?” (Response, p. 6; Plaintiff Depo., p. 56.)
And, as stated earlier, Smith was not involved in the RIF process.
{¶41} Accordingly, defendant is entitled to judgment on plaintiff’s claim of
disability discrimination.
Case No. 2020-00617JD -15- DECISION
CONCLUSION
{¶42} Based upon the foregoing the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment shall be granted and judgment
shall be rendered in favor of defendant.
PATRICK E. SHEERAN
Judge
[Cite as Feerasta v. Univ. of Akron, 2022-Ohio-653.]
JAMAL FEERASTA Case No. 2020-00617JD
Plaintiff Judge Patrick E. Sheeran
Magistrate Robert Van Schoyck
v.
JUDGMENT ENTRY
THE UNIVERSITY OF AKRON
Defendant
{¶43} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment. For the reasons set forth in the decision filed concurrently
herewith, the court concludes that there are no genuine issues of material fact and that
defendant is entitled to judgment as a matter of law. As a result, defendant’s motion for
summary judgment is GRANTED and judgment is hereby rendered in favor of
defendant. All previously scheduled events are VACATED. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed January 25, 2022
Sent to S.C. Reporter 3/7/22