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Hultberg v. Ohio Edison Co.12/5/1996
JOSEPH E. O'NEILL, Presiding Judge.
This cause originated in the trial court when the present appellant, Mary Lou Hultberg, filed a complaint naming the present appellee, Ohio Edison Company, as defendant. The complaint contained six counts.
The first count alleged that the appellant had been employed by the appellee and that, while she was absent from work by leave and on a bona fide workers' compensation claim due to a work- related injury, she was wrongfully discharged and terminated in violation of the laws of Ohio. It was alleged that her discharge was due to the fact that she had filed a workers' compensation claim. This count also alleged that the custom and policy created around the employer's discharge policy for absences due to work-related injuries was unfairly and unequally applied toward her.
The second count alleged that the appellant was wrongfully discharged without just cause by the appellee in violation of an implied contract of employment that existed between the appellant and the appellee.
The third count alleged that the appellant had relied upon practices and manner of equal custom and treatment to persons similarly situated on the part of her employer and that the appellant relied upon these representations in not seeking other employment or changing her employment and, as a result thereof, suffered damages.
Count number four alleged that the appellant was a qualified handicapped person and, as such, was wrongfully discharged without just cause when she was terminated without first being afforded any reasonable accommodation by the appellee employer.
The fifth count alleged that the appellee's conduct, in terminating the appellant's employment contrary to its custom policy and course of dealing, constituted a discriminatory practice in light of her status as a female injured worker .
Count number six alleged that the actions of appellee in wrongfully discharging the appellant without just cause constituted an intentional infliction of serious emotional stress.
Following an answer by the appellee and the completion of discovery, the appellee eventually filed a motion for summary judgment. This motion for summary judgment, with various references to evidentiary matters properly before the trial court, was directed to each and all of the six causes of action set forth in the complaint.
The appellant, in her first assignment of error, complains that the trial court erred in granting the appellee's motion for summary judgment on the ground that she had waived her claim for handicap discrimination.
The appellant's claim, as to handicap discrimination, appeared in Counts Four and Five of her complaint. These claims were specifically denied by the appellee in its answer. Specifically, the appellee raised as a part of its affirmative defenses that these claims were barred because the appellant had previously filed a charge of discrimination with the Ohio Civil Rights Commission and further were barred by the doctrine of [aches, waiver, and estoppel. The claim of handicap discrimination was specifically addressed in the appellee's motion for summary judgment as to Counts Four and Five of the complaint. There was a specific response in the appellant's memorandum in opposition to the motion for summary judgment. During the hearing on the motion for summary judgment, the following dialogue took place:
"COURT: Let me interrupt you before we go too far into this. It looks to me as if the only claims presently being pursued or I think that you're going to have to argue is the second and third count, implied contract employment and pr
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