Watters v. Summit County, Ohio et al

Filing 60

Memorandum Opinion and Order: Defendants Summit County, Ohio and Summit County Sheriff's Department's motion to strike is overruled (Related document 57 ); defendants Summit County, Ohio and Summit County Sheriff's Department&# 039;s motion for summary judgment is granted (Related document 48 ); the remainder of the pending claims in plaintiff's complaint (Counts 1, 2, and 3) are dismissed with prejudice at plaintiff's costs (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 6/29/16. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LYN WATTERS,
Plaintiff,
v.
SUMMIT COUNTY, OHIO, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO.: 5:14CV2390
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER

Before the Court is a motion filed by Defendants, Summit County, Ohio, and Summit
County Sheriff’s Department (collectively, “Defendants”) for summary judgment. ECF Dkt.
#48. Plaintiff has filed a brief in opposition to the motion for summary judgment. ECF Dkt. #55.
Defendants have filed a reply brief. ECF Dkt. #56. Defendants also filed a motion to strike
certain evidentiary offerings made in Plaintiff’s brief in opposition to a motion for summary
judgment. ECF Dkt. #57. For the following reasons, the Court DENIES Defendants’ motion to
strike (ECF Dkt. #57), and GRANTS Defendants’ motion for summary judgment (ECF Dkt.
#48).
I.

FACTUAL AND PROCEDURAL HISTORY
On October 27, 2014, Plaintiff filed a complaint in this Court alleging that Defendants

violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., as amended
(“ADA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e, et seq., as amended
(“Title VII”), and state law disability and gender discrimination statutes. ECF Dkt. #1. In her
complaint, Plaintiff alleges that she was employed by Defendants since 1999 as a Deputy Sheriff
in the jail and is a female and therefore a member of a protected class for the purposes of Title
1

VII and Ohio Revised Code § 4112. Id. at 2. She avers that she suffers from a blood clotting
disorder and takes blood thinning medications and is a qualified individual with a disability
under the ADA. Id.
Plaintiff alleges that at the time of the events of which she complains, she was assigned to
property room cage duty, and as long as she remained in this assignment, she did not need an
accommodation for her disability because she had limited contact with inmates. ECF Dkt. #1.
Plaintiff indicates that direct interaction with inmates may place her at risk for injury which
could be life-threatening to her because of her blood-clotting disorder. Id. She avers that
Defendants were aware of her disability. Id.
Plaintiff alleges that in 2011, Defendants announced that the jail would be implementing
a restrictive bidding policy which included assigning only men to property room cage duty based
on a purported Bona Fide Occupational Qualification (“BFOQ”). Id. Plaintiff alleges that under
this BFOQ, she, because of her gender, would be assigned as a “float,” which meant her time
would be split between intake/booking and security patrol. Id. She avers that working as a
“float” exposed her to unreasonable risk because she would face a significantly higher
probability of encounters with inmates, which could lead to injuries that would be lifethreatening due to her condition. Id. at 4. Plaintiff alleges that she told Captain Nicholas that she
could not work as a “float” and if she was removed from property room cage duty, she would
have to apply for disability retirement. Id.
Plaintiff avers that the new policy went into effect in January of 2012 and she was
removed from property room cage duty. ECF Dkt. #1 at 4. She alleges that she was assigned to
the hospital department numerous times in the first half of 2012 and she repeatedly told
Defendants that she could not work this assignment because of her disability and the substantial

2

risk to her health. Id. She avers that “through these conversations, Plaintiff was requesting that
Defendants continue to provide her with a reasonable accommodation, to-wit: assignment to the
property room.” Id. Plaintiff alleges that Defendants forced her to seek a disability retirement
because they did not provide her with a reasonable accommodation and she retired effective June
1, 2012. Id. Plaintiff notes that Defendants abandoned their sex-segregated job assignment
policy in July of 2012 and she was unable to use her seniority to bid on a job because she was
already separated from employment and had begun her retirement. Id.
Plaintiff indicates that she filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on September 4, 2012, which was amended on October 30,
2012. The EEOC issued a determination on August 13, 2013 finding reasonable cause to believe
that violations of Title VII and the ADA had occurred. ECF Dkt. #1 at 4. Plaintiff notes that she
was one of 20 women deputies who filed suit against Defendants for adopting the BFOQ and in
the settlement of that suit, Defendants agreed that Plaintiff’s claims in her EEOC charges would
not be resolved or affected by the Consent Decree from the settled suit. Id.
In the instant complaint, Plaintiff alleges that Defendants violated the ADA by failing to
reasonably accommodate her disability and by retaliating against her and interfering with her
rights under the ADA. ECF Dkt. #1 at 5-6. Plaintiff also alleges that Defendants violated state
law disability discrimination statutes Ohio Revised Code §§ 4112.01, et seq., and 4112.99. Id. at
5. She further avers that Defendants violated Title VII and Ohio Revised Code §§ 4112.02(A)
and 4112.99 by discriminating against her due to her gender and also retaliated against her in
violation of those statutes. Id. at 7.
On December 22, 2014, Defendants filed an answer to the complaint. ECF Dkt. #15. On
February 8, 2016, Plaintiff filed a motion for leave to file her first amended complaint. ECF Dkt.

3

#39. On February 22, 2016, Defendants filed a brief in opposition to Plaintiff’s motion for leave.
ECF Dkt. #41. On February 26, 2016, Plaintiff filed a reply brief. ECF Dkt. #42. On March 22,
2016, the Court denied Plaintiff’s motion for leave to file a first amended complaint. ECF Dkt.
#47. The original complaint, therefore, stands with only Counts 1, 2, and 3 remaining, and
Counts 4, 5, 6, and 7 dismissed without prejudice. Id.
On March 29, 2016, Defendants filed the instant motion for summary judgment. ECF
Dkt. #48. On May 6, 2016, Plaintiff, with leave of the Court, filed an opposition to Defendants’
motion for summary judgment. ECF Dkt. #55. On May 20, 2016, Defendants filed a reply in
support of a motion for summary judgment. ECF Dkt. #56.
Accompanying the reply, Defendants also filed the instant objections pursuant to Rule
56(c)(2) of the Federal Rules of Civil Procedure and a motion to strike certain evidentiary
offerings in Plaintiff’s opposition. ECF Dkt. #57. On June 2, 2016, Plaintiff filed an opposition
to Defendants’ motion to strike. ECF Dkt. #58. On June 9, 2016, Defendants filed a reply in
support of the motion to strike. ECF Dkt. #59.
II.

MOTION TO STRIKE
A.

STANDARD OF REVIEW

Rule 56(c)(2) of the Federal Rules of Civil Procedure governs the standard for reviewing
objections to the admissibility of evidence to support an assertion in connection with a motion
for summary judgment. Motions to strike are no longer appropriate for summary judgment and
should be construed as objections under Fed.R.Civ.P. 56(c)(2). See, generally, Reed v. Austal
U.S.A., LLC, No. 08-155 (S.D.Ala. Sept. 23, 2011), 2011 WL 4425562. A party may object that
the material cited to support or dispute a fact cannot be in a form that would be admissible in
evidence. Fed.R.Civ.P. 56(c)(2). The objection functions much as an objection at trial, adjusted
4

for the pretrial setting. Fed.R.Civ.P. Adv.Comm. Notes (2010 Ammendments). The burden is on
the proponent to show that the material is admissible. Id. “Only admissible evidence may be
considered by the trial court in ruling on a motion for summary judgment.” Wiley v. United
States, 20 F.3d 222, 226 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d
1179, 1181 (9th Cir. 1994)).
Under Rule 56, “an affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).
“[T]he Court must only strike the inadmissible portions of a [declaration], rather than the whole
[declaration].” Smith v. Interim HealthCare of Cincinnati, Inc., No. 1:10-cv-582, 2011 WL
6012971 (S.D. Ohio Dec. 2, 1011). Furthermore, it is the defendant’s obligation to specifically
identify which statements in the declaration should be struck. Id. A witness may testify to a
matter only if evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Fed.R.Evid. 602. This evidence may consist of the witness’s own
testimony. Id. When considering a dispute over assertions of fact as required by Fed.R.Civ.P.
56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider
the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and
supporting materials – including the facts considered undisputed – show that the movant is
entitled to it; or (4) issue any other appropriate order. Fed.R.Civ.P. 56(e).
B.

LAW AND ANALYSIS

1.

Attachments to Plaintiff’s Memorandum in Opposition

Defendants object to the following exhibits as being unauthenticated: (1) the
correspondence from Bruce Elfvin to the EEOC with attachments (ECF Dkt. #55-2); (2) a non5

certified copy of the EEOC’s Determination (ECF Dkt. #55-9); (3) letters from Attorney James
Budzik to the EEOC (ECF Dkt. #55-6, 55-8); (4) Dr. Massien’s report to OPERS, Exhibit 15 to
Donna Nicholas’s deposition; and (5) Summit County’s response to the EEOC’s Request for
Information (ECF Dkt. #55-7). ECF Dkt. #57.
The 2010 Amendments to Rule 56 of the Federal Rules of Civil Procedure eliminated the
requirement that records relied on in support or opposition to a summary judgment motion must
be authenticated. See Swank v. Hale, No. 2:12-cv-1031, 2016 U.S. Dist. LEXIS 38706 (S.D.
Ohio Mar. 24, 2016) at *5. The 2010 Amendments replaced the requirement with the far more
lenient subsection (c)(1)(A), which allows reliance on both authenticated and unauthenticated
evidence in support or opposition to summary judgment. Fed.R.Civ.P. 56(c)(1)(A).
Additionally, the Advisory Committee noted that a party may either refer to materials already in
the record or “may place such materials into the record by attaching them to the summary
judgment motion.” Swank, 2016 U.S. Dist. LEXIS 38706 at *7. See also Smith v. Interim
HealthCare of Cincinnati, Inc., No. 1:10-cv-582, 2011 U.S. Dist. LEXIS 138885 (S.D. Ohio
Dec. 2, 2011) at *12.
Federal Rule of Civil Procedure 56(c)(2) provides, “A party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be admissible in
evidence” (emphasis added). The objection pursuant to Rule 56(c)(2) is “not that the material
‘has not’ been submitted in admissible form, but that it ‘cannot’ be.” B&S Transp., Inc. v.
Bridgestone Ams. Tire Operations, LLC, No. 5:13-cv-2793, 2016 U.S. Dist. LEXIS 36268 (N.D.
Ohio Mar. 21, 2016) at *13 (quoting ForeWord Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv1144, 2011 U.S. Dist. LEXIS 125373 (W.D. Mich. Oct. 31, 2011)). The court may, therefore,
allow the proponent an opportunity to properly support or address the fact, or “propose a method
6

for doing so at trial.” See ForeWord Magazine, Inc., 2011 U.S. Dist. LEXIS 125373 at *6;
Fed.R.Civ.P. 56(e).
In reviewing Defendants’ objections and the challenged exhibits, the Court finds the
objections meritorious. Accordingly, Plaintiff must support the exhibits, or propose a method for
doing so at trial. The Court finds that Plaintiff properly supported or addressed the objections
made by Defendants. As to this this group of exhibits, Plaintiff asserts that “for the purpose of
summary judgment, Mr. Elfvin can authenticate these documents as a ‘witness with knowledge’
under Evid. R. 901.” ECF Dkt. #58 at 5. Plaintiff further asserts that the documents Defendants
object to may be authenticated at trial “by way of witnesses identified on Supplemental Initial
Disclosures provided to Defendants.” Id. Additionally, Plaintiff asserts these documents were all
submitted to either the EEOC or OPERS and are easily authenticated. As to Defendants’ claim
that Dr. Massien’s report constitutes hearsay, the Court agrees with Plaintiffs that Defendants
offer no analysis or legal authority in support of the claim. Id. at 6-7. For these reasons, the
Court finds that the five challenged documents are admissible as evidence offered in support of
Plaintiff’s brief in opposition of the motion for summary judgment.
2.

Declaration of Cynthia Young

Defendants also challenge Plaintiff’s submission of the declaration of Cynthia Young. In
the instant case, Defendants object to the following statements in Cynthia Young’s Declaration:
paragraphs 5, 6, 7, 10, 11, 13, 14, 15, and 16. Defendants provide individual challenges to each
of these statements. ECF Dkt. #57.
Among the options available to the Court under Rule 56(e) of the Federal Rules of Civil
Procedure, the Court may elect to not strike any portions of a party’s affidavit or declaration,
even if it contains some statements that would be inadmissible. Roshen v. IBM, No. 2:14-CV7

260, 2016 U.S. Dist. LEXIS 32543 (S.D. Ohio Mar. 14, 2016), at *29. Instead, the Court may
choose to “consider only evidence that would be admissible under Rule 56 in ruling on [a
party’s] Motion for Summary Judgment.” Id.
Under Rule 56, “an affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). A
witness may use their own testimony as evidence for having personal knowledge on a matter.
Fed. R. Evid. 602. The witness must still, however, provide a factual basis for their claim of
personal knowledge. See United States v. Harris, 200 F. App'x 472, 489 (6th Cir. 2006) (citing
Hilgraeve, Inc. v. Symantec Corp., 271 F. Supp. 2d 964 (E.D. Mich. 2003)).
The standard for the factual basis required for admitting testimony under Rule 602 is low.
Id. A declaration or affidavit should not be excluded for lack of personal knowledge “unless no
reasonable juror could believe that the witness had the ability and opportunity to perceive the
event that he testifies about.” (emphasis added). Id; See also Jain v. Memphis Shelby Cty. Airport
Auth., No. 08-2119-STA-dkv, 2010 U.S. Dist. LEXIS 16806 (W.D. Tenn. Feb. 22, 2010) at *5.
A party will satisfy this burden if they “indicate any factual basis which would tend to show that
he had personal knowledge of the matter.” See Hout v. City of Mansfield, No. 1: 04 CV 1127,
2008 U.S. Dist. LEXIS 27014 (N.D. Ohio Apr. 3, 2008) at *7 (quoting Davis v. Chicago, 841
F.2d 186 (7th Cir. 1988)). And while, ideally, a declaration will explicitly state the basis for the
factual assertions, in some instances, personal knowledge may be inferred from the content of
the declaration. See Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F. Supp. 2d 948, 956
(S.D. Ohio 2000) (discussing Fed.R.Civ.P. 56(e), which is now under subdivision 56(c)(4)).

8

In her declaration, Ms. Young states that she worked at the Summit County Jail since
1998 and worked in Intake – the same department where Plaintiff worked – from 2010 to 2015.
ECF Dkt. #55-3 at ¶1. It is plausible to conclude from the fact that Ms. Young worked at the Jail
for nearly twenty years, and worked in the same department as Plaintiff for five years, that she
has some factual basis for her claim of personal knowledge.
Despite what Defendants claim in their objections to paragraphs 5 and 7, Ms. Young
worked in a close enough proximity to the Property/Release assignment to observe that the same
deputies were consistently placed on the assignment. ECF Dkt. #55-3 at ¶5. Moreover, Ms.
Young can attest to the actions of the supervisors, and from those observations personal
knowledge may be inferred. It also follows that Ms. Young would have the opportunity to
observe Plaintiff’s job performance and make a personal assessment of Plaintiff’s abilities. ECF
Dkt. #55-3 at ¶6. The statements that Ms. Young makes in paragraphs 10 and 11 are based only
on her personal experience. See ECF Dkt. #55-3 at ¶¶ 10-11. Even Defendants admit that
paragraph 13 “simply contains Ms. Young’s opinion” (ECF Dkt. #57, at *4), and Ms. Young
represents that the entire statement is “based on [her] experience.” ECF Dkt. #55-3 at ¶13. As to
the statements made in paragraph 14, it is not disputed that Plaintiff suffers from a medical
disability that requires the taking of blood thinners. Paragraph 15 contains Ms. Young’s
observations and personal assessment and opinion of those who work at the Summit County Jail
as “law enforcement officers . . . particularly supervisors.” ECF Dkt. #55-3 at ¶15.
The challenged statements would be admissible for the aforementioned reasons, and as
such will be considered by the Court when deciding on the Defendants’ motion for summary
judgment. Defendants’ objections are less of a challenge to admissibility, and are in fact
challenging the credibility of Ms. Young’s statements.

9

Based on the foregoing reasons, the Court OVERRULES Defendants’ motion to strike,
which is construed as an objection to Plaintiff’s evidence under Rule 56(c)(2) of the Rules of
Civil Procedure. ECF Dkt. #57.
III.

MOTION FOR SUMMARY JUDGMENT
Turning now to Defendants’ motion for summary judgment, Defendants argue that there

are no genuine issues of material fact in this case and that they are entitled to judgment as a
matter of law. ECF Dkt. #48.
A.

STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Upon filing a motion for summary judgment, the movant has the initial burden of
establishing that there are no genuine issues of material fact as to an essential element of the
opposing party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986).
The movant is not required to file affidavits or other similar materials negating a claim on which
its opponent bears the burden of proof. Id. A fact is “material” only if its resolution will affect
the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986). Whether a factual issue is “genuine” or not is determined by consideration of the
applicable evidentiary standards. Id. at 252.
In response, if the movant establishes the absence of a genuine issue of material fact, in
order to defeat summary judgment, the opposing party may not rely solely upon allegations or
denials in its own pleading, but must set out specific factual evidence showing a genuine issue
for trial. See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). In this regard, the
opposing party must show more than a scintilla of evidence to overcome summary judgment; it
10

is not enough for the opposing party to show that there is some metaphysical doubt as to material
facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “In other
words, the movant can challenge the opposing party to ‘put up or shut up’ on a critical issue.”
BDT Prods. v. Lexmark Int'l, Inc., 124 F. App'x 329, 331 (6th Cir. 2005).
Accordingly, the ultimate inquiry for the Court is whether the record, as a whole, and
upon viewing it in the light most favorable to the non-moving party, could lead a rational trier of
fact to find in favor of the non-moving party. Matsushita Elec. Indus. Co., 475 U.S. at 586-87;
see also Anderson, 477 U.S. at 252.
B.

LAW AND ANALYSIS

1. Plaintiff’s ADA Accommodation Claim
Since the elements of a disability claim are essentially the same under the ADA and the
Ohio statute, and “Ohio case law tends to suggest it entails the same legal analysis,” the Court
will address them together. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir.
2004). In order to establish a prima facie case of a failure to accommodate claim under the
ADA, a plaintiff must show 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. Judge v. Landscape
Forms, Inc., 592 F. App'x 403, 407 (6th Cir. 2014); See also Johnson v. Cleveland City Sch.
Dist., 443 F.App’x 974, 982-83 (6th Cir. 2011). Defendants argue that there are no genuine
disputes of material fact and that Plaintiffs fail to meet elements 2 and 4 of her ADA
accommodation claim.

11

Defendants first argue that Plaintiff is not a “qualified individual with a disability.” ECF
Dkt. #48 at 12. In order for an employee to be qualified for a job position – with or without an
accommodation – they must be able to “perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. §§ 12111(8). Defendants assert that
interacting with inmates is an essential function of the Deputy Sheriff position. See generally
ECF Dkt. #48. Further, Defendants hold that Plaintiff’s treating physician, as well as Plaintiff
herself, admitted that she was disabled and unable to perform the job duties attached to the
position of Deputy Sheriff. ECF Dkt. #48 at 12. Defendants aver that even with a reasonable
accommodation, Plaintiff would be unable to perform the essential duties of her job because it is
nearly impossible to avoid interacting with inmates when working in a jail. Id. at 13.
Plaintiff states that issues of whether or not interacting with inmates is an essential
function of a Deputy Sheriff is a question of fact, and therefore summary judgment is improper.
ECF Dkt. #55 at 19. Plaintiff cites to the Sixth Circuit Court of Appeals, holding that “whether a
job function is essential is a question of fact that is typically not suitable for resolution on a
motion for summary judgment.” Rorrer v. City of Stow, 743 F.3d 1025, 1039 (6th Cir. 2014).
Actually, Plaintiff’s use of Rorrer is misleading. In that case, the employer equivocated in
regards to the job function of firefighters. The job function in question – driving – was permitted
by the employer “as a matter of choice” and the written job description stated firefighters may
operate vehicles. Id. at 1034.
The Court is not precluded from determining that a specific function is essential to a job
position. “Whether a function is essential is evaluated on a case-by-case basis by examining a
number of factors.” Id. at 1039. The central factors included in the determination are “the
employer’s judgment as to what functions of a job are essential, and if the employer prepared a

12

written description [of the job].” 42 U.S.C. § 12111(8). If the employer was clear that the job
function was unequivocally essential, they are still entitled to summary judgment if the employee
is unable to perform the function with or without reasonable accommodations. See Wagner v.
Sherwin-Williams Co., No. 14-178-ART, 2015 U.S. Dist. LEXIS 116882 (E.D. Ky. Sep. 2, 2015)
at 14-15.
In the instant case, the Summit County Sheriff’s Office Classification Specification lacks
any explicit mention of discretionary authority of deputies when it comes to interacting with
inmates. ECF Dkt. #48-4. In fact, the job responsibilities of a Deputy Sheriff specifically
include “provid[ing] security for correctional facilities” and section 1B of the illustrative duties
in the written job description lists “Maintains security and discipline of inmates in jail facility”
among numerous ways Deputy Sheriffs are required to interact with inmates as a function of
their job. Id. Further, Plaintiff herself agreed that each of the positions she held – the Intake
Deputy position and the Float position – listed job responsibilities as providing security and
performing other duties, such as assisting other deputies on duty. ECF Dkt. #48-2 at 21.
Interacting with inmates in some fashion is therefore an essential function of being a Deputy
Sheriff.
Defendants argue that Plaintiff is not capable of interacting with inmates, and therefore
cannot perform an essential job function, even with an accommodation. Plaintiff herself makes
several admissions to not being able to perform her job duties. See ECF Dkt. #48-11. Plaintiff
specifically admits that, “Working at the jail [she has] to deal with a large quantity of inmates on
a daily basis some of which are violent and any of them could become violent at any moment.”
Id. Furthermore, in his determination of Plaintiff’s disability, Dr. Katirji responded “no” to “Can
[Plaintiff] return to work with restrictions and/or limitations?” ECF Dkt. #48-2 at 76. Even if
13

Plaintiff was provided an accommodation she would – according to her physician – not be able
to return to work and perform the essential functions of a Sheriff Deputy. While Plaintiff is
clearly disabled, the Court finds that Plaintiff is not a “qualified individual with a disability”
because she cannot perform an essential function of her position. Therefore, without the
possibility of a reasonable accommodation, Plaintiff’s ADA Accommodation claim fails under
its second element.
A reasonable accommodation “does not include removing an ‘essential function’ from
the position, for that is per se unreasonable.” EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th
Cir. 2015) (citing Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998)).
Plaintiff argues that “[w]hile [generally] interacting with inmates is certainly an essential
function of the Deputy Sheriff job,” the accommodation she sought was not to eliminate all
interactions with inmates, but to simply minimize them. ECF Dkt. #55 at 20-21. Defendants cite
case law indicating that interacting with inmates is a general part of daily life at a jail, regardless
of position, and that no position at the jail can guarantee less interaction with inmates. ECF Dkt.
#48 at 13. The Court finds that Plaintiff has provided evidence showing that, while there is no
guarantee of eliminating interaction with inmates altogether, there may be some positions at the
jail that involve less risk of inmate altercations. See ECF Dkt. #55-3 at ¶12. However, this is not
a genuine issue of material fact because the Court finds that Plaintiff’s proposed accommodation
would be unreasonable regardless of whether certain positions involve a different amount of
inmate interaction.
In order to provide a reasonable accommodation, an employer may be required to (1)
modify the responsibilities of a disabled employee’s existing job, or (2) transfer the employee to
a vacant position with different responsibilities. 42 U.S.C. 12111(9). Defendants may have

14

altered Plaintiff’s responsibilities by insulating her from risks of inmate altercations. The Court
finds that even if Defendants altered Plaintiff’s duties in the Float position, or even as an Intake
deputy, that the resulting accommodation would be unreasonable under the ADA. First of all,
doing so would ultimately defeat the purpose of and alter the essential nature of the Float
position. Even the Intake/Release position, which Plaintiff argues constitutes an
accommodation, involves explicitly and personally interacting with inmates, with no guarantee
that the inmates will be non-combative. See ECF Dkt. #48-7; see also ECF Dkt. #48-2 at 13. By
altering such an essential function, Defendants would be creating a personally-tailored position
for Plaintiff, which would be an unreasonable accommodation on its face. Additionally, by
removing the responsibility of interacting with inmates altogether from Plaintiff, the
responsibilities would need to be placed onto another deputy entirely. See Wardia v. Justice &
Pub. Safety Cabinet Dep't of Juvenile Justice, 509 F. App'x 527 (6th Cir. 2013) (holding that
both reallocating essential functions and converting positions from rotating to permanent are not
reasonable accommodations).
Even if the Intake/Release position amounted to a reasonable accommodation for
Plaintiff, an employer is only required to transfer a disabled employee to a “vacant position.” 42
U.S.C. 12111(9). At the time the Bona Fide Occupational Qualification (“BFOQ”) plan was
being implemented, employees bid on positions within the jail and those positions were assigned
and filled based on seniority. ECF Dkt. #55 at 7; ECF Dkt. #49 at 121-29. The “Female Float”
position was Plaintiff’s third option and where she was finally assigned, meaning that the
daytime Intake positions she chose as her first two options were filled by other deputies. Id. It
follows that by transferring Plaintiff to the Intake position, which was not vacant, Defendants
would be unfairly removing another deputy from the position. Additionally, Plaintiff had the
15

afternoon and evening Intake positions available to her during the BFOQ bidding process and
could have avoided being assigned to a Float position altogether. ECF Dkt. #48-2 at 3, 10.
Defendants were not required to provide Plaintiff with her preference, especially by displacing
other employees from positions that they were fairly granted by means of a seniority-based
process. Transferring Plaintiff to the Intake position would not have been a reasonable
accommodation.
Defendants also argue that Plaintiff failed to request a reasonable accommodation. The
employee “bears the burden of proposing an accommodation that will permit her to effectively
perform the essential functions of her job.” Ford Motor Co., 782 F.3d at 763, citing Jakubowski
v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010). Defendants’ argue that Plaintiff never
requested an accommodation to eliminate interaction with inmates. ECF Dkt. #48 at 14. Plaintiff
argues in her objection that there is only a need for the employee to notify the employer of a need
for an accommodation. ECF Dkt. #55 at 21. According to Plaintiff, once an employee shows
that her employer refused to provide a reasonable accommodation, the burden shifts to the
employer to show that the accommodation would have imposed an “undue hardship.” Id (citing
U.S. Airways v. Barnett, 535 U.S. 391, 401 (2002)).
In fact, the burden to show that an accommodation would impose undue hardship only
shifts to the employer after the employee “show[s] that an ‘accommodation’ seems reasonable on
its face.” Barnett, 535 U.S. 391, at 401. The focus is not on whether or not the proposed
accommodation was refused or not – or even whether or not it was even requested – but on
whether or not the accommodation is “reasonable on its face.” The Court has already decided
that interacting with inmates is an essential function of Deputy Sheriffs and Plaintiff’s proposed
accommodations are unreasonable. Therefore, whether Plaintiff requested an accommodation –

16

or if notice of a need for an accommodation is sufficient – is not a material issue. Even if
Plaintiff requested an accommodation, Plaintiff fails to defeat Defendants’ motion for summary
judgment in regards to the second element of her ADA failure-to-accommodate claim.
Therefore, for the above reasons, the Court GRANTS Defendants’ motion for summary
judgment in regards to this claim.
2. Plaintiff’s Retaliation and Interference Claim
In her retaliation and interference claim, Plaintiff alleges that after she told Defendants of
her disability and requested accommodations, Defendants retaliated by assigning her to
increasingly riskier job positions. ECF Dkt. #1; ECF Dkt. #55 at 24-25.
Under the ADAAA, no person shall discriminate against any individual because “such
individual has opposed any act or practice made unlawful by this Act” or “interfere with any
individual in the exercise or enjoyment of . . . any right granted or protected by this Act.” 42
U.S.C. § 12203(a)-(b). A person’s status as a “qualified individual with disability” is not
relevant in assessing that person’s claim for retaliation under the ADA. “A plaintiff may prevail
on a disability-retaliation claim ‘even if the underlying claim of disability fails’.” Bryson v. Regis
Corp., 498 F.3d 561, 577 (6th Cir. 2007). The retaliation provision protects “any individual”
and unlike the underlying claim of disability, does not require the plaintiff to prove that they are
disabled within the meaning of the Act. Accordingly, the Court moves forward in separately
analyzing Plaintiff’s retaliation and interference claim.
The Court applies the burden-shifting framework developed for claims of discrimination
proposed in McDonnell Douglas Corporation v. Green and adopted by the Sixth Circuit. See
generally Gribcheck v. Runyon, 245 F.3d 547 (6th Cir. 2001). First, the plaintiff must set forth a
prima facie case of discrimination. Id. at 550. The burden then shifts to the employer to
17

“articulate some legitimate, nondiscriminatory reason” for its actions. Id. If the defendant carries
this burden, the plaintiff must then prove by a preponderance of the evidence that the reasons
offered by the employer were a pretext for discrimination. Id. However, “[t]he ultimate burden
of persuasion remains at all times with the plaintiff.” Id.
As Plaintiff points out, the burden for establishing a prima facie case for discrimination is
a “low hurdle.” Id. at 551. There are four elements to a prima facie case of retaliation: (1) the
plaintiff engaged in legally protected activity; (2) the defendant knew about the plaintiff’s
exercise of this right; (3) the defendant than took employment action adverse to plaintiff; and (4)
the protected activity and adverse employment action are causally connected. See Wrenn v.
Gould, 808 F.2d 493, 501 (6th Cir. 1987); see also Runyon, 245 F.3d, at 551.
Requesting an accommodation is a protected activity. See A.C. v. Shelby Cty. Bd. of
Educ., 711 F.3d 687, 698 (6th Cir. 2013). While Defendants assert that Plaintiff had not
followed jail protocol for requesting an accommodation, Defendants do not dispute that Plaintiff
made her preference to work in Intake known to supervisors. Thus, the Court finds that the first
two elements of the retaliation and interference claim are satisfied. Further, Defendants did shift
Plaintiff’s assignments, which she alleges placed her in riskier situations due to the chances of
inmate interaction and her health condition. As to the fourth element, a plaintiff may
demonstrate the causal connection by establishing the proximity of the adverse employment
action to the protected activity. Runyon, 245 F.3d, at 551. Here, Defendants’ moving of
Plaintiff’s assignments occurred at about approximately the same time as Plaintiff asserts that
she informed Defendants of her accommodation requests. Viewing the shifts of Plaintiff’s
assignments by Defendants in a light most favorable to Plaintiff, the Court finds that Plaintiff
satisfies the prima facie case for retaliation.

18

Defendants point out that all of the jobs that they assigned to Plaintiff were well within
the scope of her position. ECF Dkt. #48 at 17; ECF Dkt. #56 at 10. They also assert that
Plaintiff selected the Float position through the jail’s bidding process, a fact Plaintiff herself
admits. ECF Dkt. #48-2 at 10. Defendants indicate that Plaintiff told her supervisor that she
would be willing to work where she was needed, but she preferred not to work in certain
assignments (such as the housing pods). ECF Dkt. #48-6 at 5. She had the option to work Intake
in the afternoon or evening, but decided to bid on the Float position as her third option, even
though she had no limitations as to the time of day she could have worked. ECF Dkt. #48-2 at 3.
If Plaintiff elected to bid on an afternoon or evening shift, she would have been guaranteed an
assignment in Intake, her preferred department. Id. at 104. After she fairly received the Float
position, there is no showing that Defendants did anything indicating that they acted outside of
the duties listed in the job description. Therefore, Defendants have provided a satisfactory
reason for their actions and the burden shifts back to Plaintiff.
Since Defendants have provided a legitimate, nondiscriminatory reason for their actions,
Plaintiff must demonstrate that a reasonable jury could find by a preponderance of the evidence
that Defendants’ stated reasons are pretextual. See Runyon, 245 F.3d, at 552. In other words, “a
plaintiff must take the extra step of presenting evidence to show that the reasons given are an
attempt to cover up the employee’s alleged real discriminatory motive.” Id. Plaintiff fails to
carry this burden. In Plaintiff’s response to Defendants’ motion for summary judgment, Plaintiff
offers no evidence demonstrating Defendants’ stated reason for assigning her to certain
departments within her classification and some which she actually selected, were provided to
cover up a discriminatory motive.

19

Accordingly, for the above reasons, the Court GRANTS Defendants’ motion for
summary judgment in relation to Plaintiff’s ADAAA retaliation and interference claim. ECF
Dkt. #48.
IV.

CONCLUSION
For the foregoing reasons, the Court OVERRULES Defendants’ motion to strike. ECF

Dkt. #57. The Court also GRANTS Defendants’ motion for summary judgment and dismisses
with prejudice the remainder of pending claims in Plaintiff’s complaint at Plaintiff’s costs
(Counts 1, 2, and 3). ECF Dkt. #48.
IT IS SO ORDERED.

Dated: June 29, 2016

/s/George J. Limbert
GEORGE J. LIMBERT
U.S. MAGISTRATE JUDGE

20