Shelton v. Cincinnati, City of et al

Filing 34

ORDER granting in part and denying in part defenadant Robert Wright's 22 Motion for Summary Judgment; and denying City of Cincinnati's 24 Motion for Summary Judgment. Signed by Magistrate Judge Karen L. Litkovitz on 11/1/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ROBERT SHELTON,
Plaintiff

Case No. 1:11-cv-381
Litkovitz, M.J.

v.

CITY OF CINCINNATI, et al.,
Defendants

ORDER

Plaintiff Robert Shelton brings this action alleging employment discrimination and
retaliation against his employer, the City of Cincinnati ("City") and the City's former Fire Chief,
Robert Wright ("Wright"). The matter is before the Court on defendant Wright's motion for
summary judgment (Doc. 22), plaintiffs opposing memorandum (Doc. 31 ), and Wright's reply
in support of the motion (Doc. 33), and upon the City's motion for summary judgment (Doc. 24),
plaintiffs opposing memorandum (Doc. 30), and the City's reply in support of its motion. (Doc.
32).
I. Undisputed Facts

Plaintiffhas been employed by the City as a firefighter since February of 1995. (Pltf.
Depo. at 8). Defendant Robert Wright served as Chief of the City's Fire Department until his
retirement in January 2011. (Wright Depo. at 6). The last day on which Wright reported to work
was on or around November 8, 2010. (!d. at 6-7).
Plaintiff was diagnosed with diabetes prior to beginning his employment with the City.
He disclosed his diabetes to the City's Employment Health Service ("EHS") in 1994 during a
pre-employment health screening. (Pltf. Depo. at 11 ).

A. City policies
A Labor-Management Agreement (LMA) in effect between the City and the local union
at all relevant times governed the process for returning a firefighter to duty following certain
absences. (Doc. 22 at 9, citing LMA at§ 28.6). 1 Pursuant to the process, the Fire Department
can require a member who has missed three or more continuous tours on account of sickness
with pay ("SWP") to be evaluated by EHS prior to returning to duty. (Doc. 30-2 at 3). The Fire
Department can likewise require a firefighter who has used SWP for a specified condition,
including pneumonia, to undergo an EHS exam prior to returning to work. (!d.). EHS makes the
determination as to whether an individual can perform the functions of a firefighter. (Ronald
Texter2 Depo. at 59). In ascertaining an individual's fitness for duty, the focus is on whether the
employee can perform his job safely and without harming himself or others. (Dr. AriffMehter,
M.D., Depo. at 35). According to Dr. Mehter, the City's full-time EHS physician since July
2004, EHS is limited to requesting whatever medical records are relevant to ascertaining a
member's fitness for duty when performing its evaluation. (Mehter Depo. at 6-7, 34).
Section 32.8 of theLMA, "Limited Duty," provides that members "who suffer temporary
disabilities from on or off duty injuries may, upon recommendation of the EHS physician, be
placed on limited duty." (Doc. 23, Exh. 11). The member may submit for consideration medical
records from his personal/treating physician regarding the limited duty determination, and the
EHS physician is required to include and consider recommendations submitted by the
personal/treating physician regarding the limited duty determination. (!d.). The decision to offer

1

Defendant Wright asserts that Exhibit 11 contains the relevant pages from theLMA. (Doc. 22 at 9, n. 2). Exhibit
11 does not contain the relevant pages of theLMA, but the relevant provision is included in an arbitrator's decision
found at Doc. 30-2.
2
Texter was the Fire Department's Safety Risk Manager from 2003 to March 2011.
2

medical limited duty is made by the EHS physician. (Texter Depo. at 51). An individual
assigned to light duty is paid his regular pay. (Texter Depo. at 59).
Pursuant to§ 28.12 of theLMA, ifthe EHS physician determines that the member should
be medically separated and the member's treating physician disagrees, the City and the member
will mutually select a third physician to resolve the disagreement. (Doc. 23, Exh. 11). The third
physician's decision "shall be submitted to the Department Head or his designee for
consideration in determining whether medical separation is appropriate." (!d.). The thirdphysician review process set forth in§ 28.12 ofthe LMA was the procedure by which a
firefighter could challenge a light-duty assignment. (Texter Depo. at 39-41).

B. Plaintiff's medical and work history
1. February 2004 hypoglycemic episode
Plaintiff had a hypoglycemic episode while working at a two-alarm fire scene in February
2004. (Mehter Depo. Exh. 54). He felt weak and was told he had "mental status changes." (!d.).
When examined by Dr. Mehter the following day, the episode was found to be resolved and
plaintiff was returned to full duty. (Id.).

2. August 2004- October 2005 illnesses and hypoglycemic episode
In August of 2004, plaintiff took a leave of absence from work under the Family and
Medical Leave Act (FMLA) and SWP for surgery on his uvula and palate. (Mehter Depo. Exh.
67, p. 2; Pltf. Depo. at 19-20). When plaintiff was ready to return to work, he presented a note
from his doctor to EHS. (Pltf. Depo. at 20). The EHS records indicate that plaintiff telephoned
on December 14, 2004, and stated he was having some problems with his blood sugar and chest
pain. (Mehter Depo. Exh. 67, p. 2). Plaintiff reported he had seen his primary care physician
and had undergone a stress test, which was normal, and his blood pressure had been elevated but

3

was now 122/80 after his medication was readjusted. (!d.). Plaintiff stated he wanted to return
to work and he had a note from his doctor. (!d.). He was advised he needed to get his records
and to sign releases, and he was informed he would probably be put on limited duty until the
records were received. (!d.). Plaintiff was placed on limited duty effective December 16, 2004. 3
(Doc. 23, Exh. 2).
During early 2005, plaintiff was in contact with EHS on several occasions concerning the
release ofhis medical records. (Mehter Depo. Exh. 67, p. 3). Plaintiff refused to release some of
the requested medical records as he did not believe they were pertinent to the fitness-for-duty
examination. (Doc. 23, Exhs. 2, 3). On January 19, 2005, plaintiff filed a formal grievance
based on EHS 's refusal to release him to return to work despite the information provided by his
treating physicians. (Doc. 23, Exh. 2; Pltf. Depo. at 13-14).
On April4, 2005, Texter advised plaintiff that the EHS physician could not make an
informed opinion regarding plaintiffs fitness for duty without the full release of plaintiffs
medical records pertinent to his absence from work beginning August 19, 2004. (Doc. 23, Exh.
4). Texter asked plaintiff to sign a release for that period and informed plaintiff that his refusal
to cooperate made it unreasonable to expect the Fire Department to maintain his limited duty
status indefinitely during the conflict with EHS. (!d.). Texter further stated:
Article 32, Section 8, Paragraph (A) of the Labor Management Agreement states:
"Members of the Fire Department who suffer temporary disabilities from on or
off duty injuries may, upon recommendation of the Employee Health Physician,
be placed on Limited Duty." The operative word in the statement is "MAY."
Limited Duty is a privilege not a right and can be denied and revoked if the
circumstances so indicate. Secondly, you are not on Limited Duty from an on or
off duty injury. You were placed in this status only to provide a grace period until
appropriate documentation could be provided to EHS. Since this appears not to
be happening, Limited Duty will no longer be offered as an option.
3
In a grievance he subsequently filed, plaintiff stated he was placed on limited duty effective December 16, 2005.
(Doc. 23, Exh. 2). However, it is apparent that there is a typographical error in the exhibit and the actual date he
was placed on limited duty was December 16, 2004.

4

Article 28, Section 4, states: "Members returning from a serious health condition
as defined under the Family Medical Leave Act (FMLA) may be required by the
Fire Department to be evaluated by a city-approved licensed health care provider
prior to return to duty ...."
(Doc. 23, Exh. 4).
Texter advised plaintiff that he could use his accrued leave time while the matter was
being resolved; plaintiff would not be offered any duty status until released as "fit for duty" by
the City physician; and he would therefore be carried in a leave without pay status after his leave
time had been exhausted and until the matter was finally resolved. (Id.). Texter strongly urged
plaintiff to reconsider his position on providing the necessary documentation to the City
physician so that the matter could be resolved. (ld.). On October 6, 2005, the Fire Department
and the local union entered into an agreement that resolved plaintiff's grievance and permitted
plaintiff to return to limited duty so long as he provided EHS with all of the requested medical
records. (Doc. 23, Exh. 5).
In October of 2005, plaintiff experienced a hypoglycemic event while in his automobile
on his way to work. (Mehter Depo. Exh. 61). Plaintiff had skipped breakfast because he was
"running late" and intended to eat at work, and he lost consciousness at an intersection. (ld.).
He did not have an accident and reported afterwards to his physician, Dr. Kenneth Kreines,
M.D., that he since understood the importance of never delaying a meal. (Mehter Depo. Exh.
58). In the wake of that incident, the Fire Department requested that plaintiff be given "a
complete physical examination concerning his general health condition as related to his most
recent incident of incapacitation, in light of his documented medical history .... " (Mehter Depo.
Exh. 59). EHS physician Dr. William Kelley, M.D., issued an opinion on November 21, 2005,
stating that he had received the office records from plaintiff's attending physician and it was Dr.

5

Kelley's medical opinion that plaintiff "has a medical condition that places him and others at risk
of injury during the performance of unrestricted firefighting. I recommend that he not perform
unrestricted firefighting. His condition is not expected to prohibit restricted duty provided he
does not drive City vehicles or work around open dangerous machinery or at unprotected
heights." (Mehter Depo. Exh. 60). Dr. Kelley opined that plaintiff should be able to commence
restricted duty when cleared for it by his attending physician. (!d.).
In response to Dr. Kelley's opinion, plaintiff submitted a letter from his treating
physician, Dr. Kreines, dated November 30, 2005. (Mehter Depo. Exh. 58). Dr. Kreines stated
that plaintiff had Type II diabetes of approximately 13 years duration for which he was treated
with insulin. Dr. Kreines recounted the two insulin reactions plaintiff had experienced over the
last several years: (1) the incident at the fire scene one year earlier when plaintiff was required
to fight two fires in rapid succession without time for a meal, and (2) the attack plaintiff had in
his car at the intersection in October. Dr. Kreines stated that plaintiff had been seen in the office
three times by diabetes educators and was "progressing nicely toward a clearer understanding of
his treatment." (!d.). Dr. Kreines stated it was his medical opinion that "if Mr. Shelton carefully
follows the directions which we are providing he should be able to safely perform unrestricted
duties as a firefighter. His kidney involvement and elevated blood pressure are warning signs
that he must improve his diabetes control but are not contraindications at this stage as to his
employment as an unrestricted firefighter." (!d.).
Because there was a conflict between the EHS physician and plaintiff's physician as to
whether plaintiff could return to full duty, Dr. Malcolm Steiner, M.D., performed an independent
assessment on May 19, 2006. (Mehter Depo. Exh. 61). Dr. Steiner assessed whether plaintiff
could safely perform unrestricted firefighting duties given his Insulin Treated Diabetes Mellitus.

6

(!d.). Dr. Steiner concluded that plaintiff could "work unrestricted as a fire fighter within a safe

practice protocol," which meant that he needed to follow "established guidelines for nutritional,
insulin therapy and monitoring practices under the care of a Diabetes specialist in order to safely
perform as a firefighter." (!d.). Plaintiff agreed to release his medical records on June 7, 2006,
pertinent to the independent third physician review. (Pltf. Depo. at 22).
Defendant Wright decided to return plaintiff to full duty on June 9, 2006, with certain
conditions.

(Mehter Depo. Exh. 62). Plaintiff was required to follow established nutritional

guidelines, insulin therapy, and monitoring practices under the care of a diabetes specialist as
noted by Dr. Steiner. (!d.). Wright testified that Dr. Kelley disagreed with his decision. (Wright
Depo. at 18-19). Wright subsequently sent an email to EHS in which he stated that it appeared
EHS physicians and Chuck Haas, the City's Risk Manager, were disappointed that he had
decided to return plaintiff to full duty and were opposing "this legitimate resolution of his
situation." (Wright Depo. at 12; Wright Depo. Exh. 33).
3. September 2007 illness
On September 8, 2007, plaintiff became ill at work and began vomiting upon completing
a run at 2:45a.m. (Mehter Depo. Exh. 63). Plaintiff planned to drive home but was advised by
his coworkers to call his wife, who picked him up and drove him to the hospital. (!d.). Plaintiff
was initially diagnosed with pneumonia or possible pneumonia and admitted to the hospital for
four days. (Tr. 30-31, 152-53; Mehter Depo. Exh. 65). Wright requested that plaintiff undergo a
fitness-for-duty examination after it was reported to him that plaintiff was "incoherent" when he
left the station and had been hospitalized. (Wright Depo. at 21). It was also reported to Wright
that plaintiff had pneumonia and it was a minor illness. (!d. at 24). Wright could not recall
another instance that was not related to substance abuse or an on-the-job injury where he had

7

ordered a firefighter to undergo a fitness-for-duty examination. (Wright Depo. at 23). Although
plaintiff was admitted to the hospital with a diagnosis of possible pneumonia (Mehter Depo. Exh.
65), during his hospital stay plaintiff was found to be suffering from acute respiratory failure,
stage 4 chronic kidney disease, severe aortic valve disorder, unspecified anemia, and fluid
overload. (Pltf. Depo. at 31 ).
When plaintiff returned to work, his captain informed him that Wright was requiring
plaintiff to undergo a fitness-for-duty examination. (Pltf. Depo. at 143). Plaintiff questioned
why this was required as he had missed only one tour, not three consecutive tours as required
under theLMA. (!d. at 143-47). The captain informed plaintiff that it was Wright's discretion
as to whether to require an exam under theLMA because plaintiff had pneumonia. (Tr. 144-45).
On October 4, 2007, Texter requested that EHS give plaintiff a complete physical examination
concerning his general health condition as related to the incident. (Mehter Depo. Exh. 59).
Plaintiff reported for a fitness-for-duty examination and was examined by Dr. Kelley on
October 16, 2007. Dr. Kelley informed plaintiff that he had heard plaintiff had "passed out" at
work, which plaintiff denies had occurred. (Pltf. Depo. at 151 ). At the conclusion of the
examination, Dr. Kelley reported that he had "already given the Fire Department my opinion
about his duty status. I do not think he should do unrestricted firefighting. He doesn't even meet
the DOT [Department of Transportation] exemption criteria for driving with his hypoglycemic
episodes." (Mehter Depo. Exh. 63). Dr. Kelley stated he could not give an additional duty status
opinion in view of the most recent event without adequate information about the event. (Jd.).
On November 5, 2007, Texter sent plaintiff a memorandum from Dr. Kelley advising
plaintiff that the last records he submitted were not sufficient for Dr. Kelley to complete an
independent medical review for plaintiffs fitness-for-duty examination. (Doc. 23, Exh. 9).

8

Texter advised plaintiff that he needed to provide the requested records and if he failed to make
arrangements to do so or unduly delayed the process, he would be suspended until he complied
or was cleared for full duty by the EHS physician. (!d.).
On November 29, 2007, Dr. Kelley reported that plaintiffs hospital records had been
obtained and that plaintiff had "progressively worsening medical conditions other than the
condition for which he was restricted per my memo of 11/21/2005. In light of these additional
conditions it is my recommendation that he be limited to light duty." (Mehter Depo. Exh. 68).
On December 21,2007, Dr. K. Shashi Kant, M.D., a treating physician who was following
plaintiff for "chronic kidney disease in the setting of type II diabetes," wrote that plaintiff was
currently asymptomatic from most of his conditions and had no evidence of any symptoms
related to his chronic kidney disease. (Mehter Depo. Exh. 69). Dr. Kant stated that plaintiff
should be able to return to his "full, unrestricted firefighting duties." (!d.). He stated that
plaintiff was being reevaluated periodically and was in the process of being evaluated for a
future renal transplant. (!d.).
On March 3, 2008, plaintiff requested a third-party physician review. (Pltf. Depo. at 44).
The parties had difficulty agreeing on a third-party physician, and plaintiff remained on light
duty through 2008. (Pltf. Depo. at 45). On or about February 23, 2009, Texter requested a thirdphysician review for plaintiff. (Doc. 23, Exh. 11). On March 10, 2009, plaintiff declined the
third-party physician selected by the City to perform the fitness-for-duty examination. (Pltf.
Depo. at 57; Doc. 23, Exh. 13).
On September 29, 2009, Texter wrote plaintiff a letter captioned "Medical Separation
Process." (Doc. 23, Exh. 17). Texter stated in the letter that it had been discovered during the
search for a third-party physician to provide the "Third Physician Review" that plaintiff had

9

failed to disclose one of his treating physicians. Texter informed plaintiff that if he did not
provide a signed release for that physician's medical records within two weeks, his limited duty
privileges would be revoked in October 2009 and the process of separation from the City would
be implemented 90 days later on December 29, 2009. On October 1, 2009, plaintiff filed a
grievance on the ground that he was being denied the third-party physician review under§ 28.12
of the LMA and was also being denied limited duty for refusing to release his medical records.
(Doc. 23, Exh. 11 ). Plaintiff requested that he be granted a third-physician review and that he be
permitted to remain in a limited-duty status pending the final outcome of the third-physician
review process.
Subsequently, in November 2009, Wright removed plaintiff from paid limited-duty
status. According to Texter and Wright, plaintiff was removed from limited-duty status because
he was not cooperating in the third-party physician review process and he refused to sign a
medical release for EHS to obtain his medical records. (Wright Depo. at 30-31; Texter Depo. at
60). Plaintiff did not receive a salary after he was removed from limited-duty status but he
continued to receive benefits. (Texter Depo. at 61).
Plaintiffs grievance proceeded to arbitration and a decision was rendered on March 11,
2010. (Doc. 30-2, Pltf. Depo. Exh. 12). The arbitrator sustained the grievance; determined that
the third-party physician review process was to be completed; decided that plaintiff must release
his medical records only if the third-party physician decided he needed them to evaluate
plaintiffs ability to return to full, unrestricted firefighting duty; and ordered that plaintiff be
returned to limited duty while the third-party physician review process continued. The City
contacted plaintiff and offered to return him to limited duty pending the third-party physician
review process. (Pltf. Depo. at 53). Plaintiff did not return to limited duty at that time, and the

10

third-party physician review process continued. (/d.). Returning plaintiff to limited duty would
have interfered with the outside jobs he held at the time. (/d. at 54).
Plaintiff was hospitalized after undergoing heart valve surgery in June 2010, and he was
kept off work by his doctor for five weeks. (Pltf. Depo. at 54-55). Plaintiff subsequently had a
kidney transplant in November 2010. (!d. at 88). Chief Wright reported for his last day of work
that same month.
Following a six-week recuperation period for the kidney transplant surgery, plaintiff was
cleared to return to limited-duty status on or about January 3, 2011. (Pltf. Depo. at 88-89).
Between January 27 and March 25, 2011, plaintiffs various transplant and treating physicians
rendered opinions that plaintiff was capable of returning to full unrestricted firefighting duty.
(Mehter Depo. Exhs. 78-81). EHS physician Dr. Mehter issued an opinion dated February 23,
2011, that plaintiff could return to work with the restrictions imposed by Dr. Kelley on
November 21, 2005 and November 29, 2007. (Mehter Depo. Exh. 82). Texter initiated a request
for a third-party physician exam shortly thereafter, which Dr. Susan S. Stegman performed.
(Pltf.'s Depo. at 91). On May 17, 2011, Dr. Stegman gave her "very strong opinion" that
plaintiff could return to "full, unrestricted fire fighting duty effective immediately." (Mehter
Depo. Exh. 83). Dr. Stegman stated that she could find "no medical reason to delay this ruling
any further." (/d.). Plaintiff was subsequently returned to full duty and has remained in that
status. (Pltf. Depo. at 91-92).
As a result of being placed on limited-duty status, plaintiffs hours were changed, which
precluded him from earning extra income at his other part-time jobs, and he was required to use
holiday and sick time to fulfill his obligations to his other jobs. (Pltf. Depo. at 120-21, 141-42).

11

C. Paramedic program
In 2008 or 2009, the City instituted its Paramedic Training Program ("PTP"). (Locasto
Depo. at 8). City firefighters are able to participate in the program free of charge. (Wright
Depo. at 39). Plaintiff was enrolled in the 2009 PTP class, while he was on paid limited-duty
status. (Locasto Depo. at 8-9). On or about April 7, 2009, the City removed plaintiff from the
PTP at Chief Wright's direction because plaintiff purportedly could not complete the program
requirements. (Locasto Depo. at 19-20; Wright Depo. at 43). Specifically, a participant in the
program must complete "ride time," which involves riding with certified paramedics and
observing their work in the field. (Locasto Depo. at 17). Wright testified that he decided to not
allow plaintiff to obtain his ride time with the City because historically an individual who was on
limited duty did not ride on Fire Department equipment. (Wright Depo. at 46-47). Plaintiff was
initially told it would be acceptable if he could get his ride time with a fire department other than
the City of Cincinnati (!d. at 42), and plaintiff advised the City that he would be able to obtain
his ride time outside the City. (Pltf. Depo. at 72-73). However, Wright testified that he
subsequently decided to remove plaintiff from the program because the other fire departments
with whom plaintiff could ride wanted Wright to sign a waiver indemnifying them against any
issues, which Wright could not do (Wright Depo. at 42), and Wright was informed by the City's
Medical Director, Dr. Locasto, that other requirements of the program could not be substituted
for ride time. (Wright Depo. at 42-43). Dr. Locasto testified that from his perspective as
Medical Director, plaintiffs "light duty" status would not have affected his ability to complete
the program in any way. (Locasto Depo. at 15). Dr. Locasto testified that at some point he
became aware plaintiff was receiving dialysis while participating in the PTP, but this would not

12

have prevented plaintiff from successfully completing his ride time on City units without any
accommodation. (Locasto Depo. at 17-18).
Plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission
("OCRC") on April20, 2009, alleging that he was unlawfully removed from the PTP based on a
perceived disability. (Doc. 23, Exh. 23).

II. Summary Judgment Standard
Fed. R. Civ. P. 56 allows summary judgment to secure a just and efficient determination
of an action. The court may only grant summary judgment as a matter of law when the moving
party has identified, as its basis for the motion, an absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317,327 (1986).
The party opposing a properly supported motion for summary judgment "may not rest
upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing
that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)
(quoting First Nat'l Bank ofArizona v. Cities Serv. Co., 391 U.S. 253 (1968)). The evidence of
the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. !d. at
255 (citing Adickes v. SH Kress & Co., 398 U.S. 144, 158 (1970)). However, a district court
need not view the facts in the light most favorable to the nonmoving party if that party's version
of events is "blatantly contradicted by the record, so that no reasonable jury could believe it."

Scott v. Harris, 550 U.S. 372, 380 (2007).
The court is not to weigh the evidence and determine the truth of the matter but is to
decide whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. There is no genuine
issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party. !d. (citing Cities Serv., 391 U.S. at 288-289). If the evidence is merely

13

colorable, Dombrowski v. Eastland, 387 U.S. 82, 84 (1967), or is not significantly probative,

Cities Serv., 391 U.S. at 290, judgment may be granted. Anderson, 477 U.S. at 249.

III. Claims against the City
A. Disability discrimination claims

1. Applicable law
The ADA applies to the alleged discriminatory acts that occurred in this case prior to
January 1, 2009. The Americans with Disabilities Act Amendments Act of2008 ("ADAAA")
applies to the alleged discriminatory acts that occurred after January 1, 2009. 4
Federal law makes it unlawful for a covered employer to discriminate against a qualified
individual on the basis of disability with respect to discharge and "employee compensation, job
training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
The Ohio Civil Rights Act provides that it shall be an unlawful discriminatory practice "[f]or any
employer, because of the ... [disability] ... of any person ... 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." Ohio Rev. Code§ 4112.02(A). The analysis of
plaintiffs disability discrimination claims is generally the same under both the federal and state
statutes. See Jakubowski v. The Christ Hospital, 627 F.3d 195, 201 (6th Cir. 2010) (citing

Kleiber v. Honda ofAm. Mfg., Inc., 485 F.3d 862, 872 (6th Cir. 2007) (citation omitted)).
To establish his claim for disability discrimination under the ADA, a plaintiff must show:
(1) he is disabled, (2) he is qualified to perform the job requirements with or without reasonable
accommodation, and (3) he suffered an adverse employment decision because of the disability.

Frengler v. General Motors, No. 11-3378, 2012 WL 2044419, at *2 (6th Cir. June 7, 2012)

4

The ADA was amended by the ADAAA effective January 1, 2009. The ADAAA does not apply to preamendment conduct. Milholland v. Sumner County Bd. of Educ., 569 F.3d 562 (6th Cir. 2009).
14

(citing Lewis v. Humboldt Acquisition Corp., 681 F .3d 312 (6th Cir. 20 12) (en bane); Donald v.
Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012)). See also Henderson v. Ardco, Inc., 247 F.3d
645, 649 (6th Cir. 2001). The plaintiff must establish that his disability was a "but for" cause of
the employer's adverse employment action. Lewis, 681 F.3d 312. The employee need not
"show that the disability was the 'sole' cause of the adverse employment action." Id. at 316.
A plaintiff can establish a claim of disability discrimination through either direct or
indirect evidence. 5 Direct evidence is "that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer's actions." Amini v.
Oberlin College, 440 F.3d 350, 359 (6th Cir. 2006) (race discrimination) (quoting Kocak v.
Cmty. Health Partners of Ohio, Inc., 400 F.3d 466,470 (6th Cir. 2005)); Grizzell v. City of
Columbus Div. ofPolice, 461 F.3d 711,719 (6th Cir. 2006) (Title VII). Direct evidence must
prove not only discriminatory animus, but also that the employer actually acted on that animus.
See Amini, 440 F.3d at 359. Direct evidence of discrimination does not require a factfinder to
draw any inferences in order to conclude that a challenged employment action was motivated at
least in part by prejudice against members of the protected group. Wells v. Cincinnati Children's
Hosp. Med Ctr., 860 F. Supp. 2d 469, 479-80 (S.D. Ohio 2012) (Beckwith, J.) (citing Johnson v.
Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003)).

5

To make out a prima facie case of disability discrimination through indirect evidence, a plaintiff must show: 1) he
is disabled; 2) he is otherwise qualified for the position, with or without reasonable accommodation; 3) he suffered
an adverse employment decision; 4) the employer knew or had reason to know of plaintiff's disability; and 5) the
position remained open while the employer sought other applicants or the disabled individual was replaced.
Whitfieldv. Tennessee, 639 F.3d 253,258-259 (6th Cir. 2011) (citing Macy v. Hopkins Cnty. Sch. Bd. ofEduc., 484
F.3d 357, 365 (6th Cir. 2007) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)). Once
the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a non-discriminatory
explanation for the employment action. !d. at 259 (citing McDonnell Douglas Corp. V Green, 411 U.S. 792, 80204 (1973); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008)). If the defendant does so, the
burden shifts back to the plaintiff to prove that the defendant's explanation is pretextual. /d. at 260 (citations
omitted).
15

Where there is direct evidence that the employer relied on the employee's impairments in
making an adverse employment decision, the McDonnell Douglas burden-shifting format does
not apply. 6 See Wells, 860 F. Supp. 2d at 479-80 (citing Monette, 90 F.3d at 1184, abrogated on
other grounds by Lewis, 681 F .3d 312). Instead, the plaintiff must prove he is "disabled" within
the meaning of the Act and that he was "otherwise qualified for the position." !d. (citing
Monette, 90 F.3d at 1186). An individual is not "a qualified individual with a disability" so as to

satisfy the second element of a disability claim if the individual "poses a 'direct threat' to the
health or safety of others .... " Wurzel v. Whirlpool Corp., No. 10-3629, 2012 WL 1449683, at
*9 (6th Cir. April27, 2012); 42 U.S.C. § 12111(3). See also 29 C.P.R. § 1630.2(r). However,
an employer cannot deny an employment opportunity to an individual with a disability because
of a slightly increased risk ofharm. Wurzel, 2012 WL 1449683, at *9. There must be "a
significant risk, i.e. high probability, of substantial harm; a speculative or remote risk is
insufficient." !d. (quoting Estate ofMauro By and Through Mauro v. Borgess Medical Center,
137 F.3d 398, 402 (6th Cir. 1998)).
2. The City is not entitled to summary judgment on plaintiff's disability
discrimination claims.
Plaintiff claims that the City discriminated against him by subjecting him to a number of
adverse job actions because the City perceived him to be disabled with respect to the major life
activity ofworking in violation ofthe ADA, the ADAAA, and Ohio Rev. Code Ch. 4112. The
Court will address each of these adverse job actions in turn.

6

The McDonnell Douglas burden-shifting format applies where the plaintiff seeks to prove his case by
circumstantial evidence. See Monette, 90 F.3d at 1184-85. Although the parties analyze plaintiff's disability
discrimination claims in the context of the McDonnell Douglas framework, the record contains direct evidence that
the City perceived plaintiff as being disabled.

16

The first adverse job action is the City's refusal to reinstate plaintiff to full-duty status
through December 2008 following his brief illness and hospitalization in September 2007.
Plaintiff claims that the City's refusal to reinstate him to full-duty status during this time period
violated the ADA and the Ohio statute. Plaintiff contends that a reasonable jury could disbelieve
the City's stated reason that it found plaintiff was unfit for the job offirefighting and instead
determine that the City acted as it did because it perceived him to be disabled due to his diabetes.
(Doc. 30 at 13-14).
This adverse job action is properly analyzed under the direct evidence framework.
Plaintiff has introduced direct evidence that the City refused to return him to full duty following
his hospitalization in 2007 and during 2008 because of his diabetic condition. In an
interdepartmental memorandum dated November 21, 2005, Dr. Kelley opined that plaintiff was
precluded from working in any job involving driving City vehicles, working around open
dangerous machinery, or working at unprotected heights following plaintiffs October 2005
hypoglycemic (diabetic) event. (Mehter Depo. Exh. 60). Dr. Kelley referenced the
interdepartmental memorandum outlining these restrictions when he recommended to Texter on
November 29, 2007, that plaintiff be limited to light duty. (Mehter Depo. Exh. 68). In tum, Dr.
Mehter's November 18, 2008 memorandum limiting plaintiff to light duty is based on Dr.
Kelley's November 29,2007 memorandum. (Mehter Depo. Exh. 71). Additionally, EHS
records dated June 10, 2008, indicate that "permanent restrictions" listed in the November 21,
2005 memorandum were verified in a telephone call to Texter on June 10, 2008. (Mehter Depo.
Exh. 67, p. 9). This direct evidence shows that the City relied on restrictions its physicians
imposed as a result of plaintiffs diabetic condition to restrict him from full duty.

17

Plaintiff must therefore prove that he was "disabled," which he seeks to do by showing
the City regarded him as substantially limited in the major life activity of working, and that he
was qualified to perform the essential functions of his position. The ADA (and not the ADAAA)
applies to this time period.
The prior version of the ADA defined a "disability" as "(A) a physical or mental
impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment." 42
U.S.C. § 12102(2) (2006). "Working" is included among the "major life activities" listed under
the regulations accompanying the ADA. To show he was substantially limited in the major life
activity of working, an individual had to establish that his impairment substantially limited his
ability to perform "a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities." Sutton v. United Air Lines, Inc.,
527 U.S. 471, 491 (1999) (quoting 29 C.P.R. § 1630.2G)(3)(i) (1998)); Daugherty v. Sajar
Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008). See also Donald v. Sybra, Inc., 667 F.3d 757,

764 (6th Cir. 2012) (under the prior version ofthe Act, in order to be regarded as disabled, an
individual "must be regarded as having an impairment that limits a major life activity."). "The
inability to perform a single, particular job does not constitute a substantial limitation in the
major life activity of working" under the ADA. Daugherty, 544 F.3d at 704. 7

7
In contrast, the Ohio Civil Rights Act does not require that an individual who claims his employer
regarded him as disabled to show that the employer also believed that the perceived disability limited a major life
activity. Wells, 860 F.Supp.2d at 478 (citing Ohio Rev. Code§ 4112.01(13)) ("'Disability' means a physical or
mental impairment that substantially limits one or more major life activities, including ... working; a record of a
physical or mental impairment; or being regarded as having a physical or mental impairment."); Scalia v. Aldi, Inc.,
No. 25436,2011 WL 6740756, at **7-8 (Ohio App. 9th Dist. Dec. 21, 2011). As plaintiff has presented evidence
establishing material issues of fact under the ADA standard, he necessarily meets the lower threshold under Ohio
law.

18

The City contends that under the ADA, an individual is regarded as disabled only if an
employer mistakenly believes that he has an actual, non-limiting impairment that substantially
limits one or more major life activities. (Doc. 24 at 11, citing Sutton, 527 U.S. at 489; Murphy v.

UPS, 527 U.S. 516, 521-22 (1999)). The City argues that plaintiff cannot meet this standard
under the ADA with respect to the 2007 action restricting him from returning to full duty
because the most plaintiff has shown is that the City decided to keep him on limited duty because
he was not able to fulfill the duties of an active full-duty firefighter. (Doc. 24 at 11-12, citing

Williams v. Stark County Bd. of County Comm 'rs, 7 F. App'x 441 (6th Cir. 2001)). The City
asserts this is insufficient to establish that it regarded plaintiff as unable to perform a class of
jobs or a broad range of jobs in various classes. Plaintiff asserts the restrictions the City imposed
on him would preclude him from working a wide range of jobs.
Neither party cites any authority from the Sixth Circuit or any other court as to whether
the restrictions imposed by the City would preclude plaintiff from performing a class of jobs or a
broad range of jobs in various classes. At least one district court from outside the Sixth Circuit
has determined that while driving is not a major life activity, a restriction against operating
commercial vehicles may constitute a significant restriction on the ability to perform a particular
class of jobs. See Schlegel v. Berks Area Reading Transp. Auth., No. CIV. A. 016055,2003 WL
21652173 (E.D. Pa. Jan. 9, 2003). Similarly, because it appears the restrictions imposed by the
EHS physicians during the 2007-2008 timeframe would preclude plaintiff from operating
commercial vehicles, as well as from performing other categories of work activities, there are
genuine issues of material fact as to whether the City perceived plaintiff to be substantially
limited in the major life activity of working.

19

The next issue to be resolved is whether plaintiff was qualified to perform the full duties
of a firefighter during the 2007-2008 time period. The City asserts that plaintiffwas not a
qualified individual with a disability. Although the City has not clearly articulated its argument,
the City appears to contend that plaintiff could not perform unrestricted firefighting duties
because he posed a direct threat to his safety and that of others due to having experienced
hypoglycemic episodes. (Doc. 24 at 12-13). The City asserts that Dr. Kelley examined plaintiff
after his September 2007 illness; Dr. Kelley noted plaintiff had not been a reliable historian
regarding his insulin use; and Dr. Kelley opined that plaintiff should not perform unrestricted
firefighting duties, particularly as he did not meet "DOT" exemption criteria for driving with
hypoglycemic episodes. (Doc. 24 at 13, citing Mehter Depo. Exh. 63). The City asserts that the
Sixth Circuit has found similar evidence demonstrated an employee posed a direct threat and that
removal from full duty was not discriminatory. See Wurzel, 2012 WL 1449683. The City also
contends that other courts have found that an employee with diabetes who experienced
hypoglycemic episodes constituted a direct threat such that the employee's removal from full
duty was not discriminatory. See Darnell v. Thermajiber, Inc., 417 F.3d 657, 661 (7th Cir.
2005); Hutton v. ElfAtochem North America, Inc., 273 F.3d 884, 886-87 (9th Cir. 2001).
The burden is on the employer to show that the plaintiff is not qualified to perform the
requirements of a particular job because he poses a direct threat to the health or safety of others.
See Wells, 860 F. Supp.2d at 481. The regulations accompanying the ADA explain the meaning

of"direct threat" as follows:
Direct Threat means a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The determination that an individual poses a "direct threat" shall
be based on an individualized assessment of the individual's present ability to
safely perform the essential functions of the job. This assessment shall be based
on a reasonable medical judgment that relies on the most current medical
20

knowledge and/or on the best available objective evidence. In determining
whether an individual would pose a direct threat, the factors to be considered
include:
(1) The duration ofthe risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence ofthe potential harm.
29 C.F.R. § 1630.2(r).
Here, there is a question of fact as to whether plaintiff posed a direct threat to his safety
or that of others such that he was not qualified for a full duty firefighter position. The present
case is distinguishable from Wurzel and the other cases on which the City relies in support of its
direct threat defense. The Court in Wurzel granted summary judgment in favor of the defendant
because it found no reasonable juror could disagree with the defendant's determination that its
employee posed a direct threat to his own safety and that of others in the plant. Wurzel, 2012
WL 1449683. The Court found the defendant's determination was based on a reasonable
medical judgment, it relied on the most current medical judgment and best available objective
evidence, and it reflected an individualized assessment of the plaintiffs abilities. Id, at* 12.
The Court further determined that a reasonable juror could not find there was evidence of a
reasonably based medical judgment supporting the opposite view that the plaintiff did not pose a
direct threat. !d. Similarly, in Darnell, 417 F.3d at 661, there was not sufficient conflicting
medical evidence, and in Hutton, 273 F.3d at 894, the Court was unable to rule out the possibility
of a hypoglycemic event under circumstances where a single physical or mental lapse could
result in harm of significant potential severity to the plaintiffs co-workers and others. Here,
however, the only evidence the City cites to show plaintiff posed a direct threat is Dr. Kelley's
examination report following plaintiffs 2007 hospitalization. Plaintiff has produced medical
opinions and evidence that are contrary to Dr. Kelley's opinion and that cover the time period
21

subsequent to September 2007. Thus, there is conflicting medical evidence such that the City
has not established its direct threat defense as a matter of law.
In short, plaintiff has come forward with evidence which, if accepted as true, would allow
a reasonable jury to find that the City regarded him as disabled during the 2007-2008 time frame
when he was restricted to light duty; he was qualified to perform unrestricted firefighting duties
during this time period; he was not a direct threat to the safety or health of others; and he
suffered an adverse employment decision because the City regarded him as disabled.
Accordingly, the City is not entitled to summary judgment on plaintiffs ADA and Ohio claims
premised on this adverse action.
The second adverse employment action is the City's refusal to reinstate plaintiff to fullduty status from 2009 to 2011. Plaintiff claims that the City's refusal violated the ADAAA and
the Ohio statute.
The definition of disability under the ADAAA is found at 42 U.S.C. § 12102(1). Under
the ADAAA, "disability" means:
(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
Paragraph 3 states:
(A) An individual meets the requirement of "being regarded as having such an
impairment" if the individual establishes that he or she has been subjected to an
action prohibited under this chapter because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor.
A transitory impairment is an impairment with an actual or expected duration of 6
months or less.

22

Under the ADAAA, "disability" is to "be construed in favor of broad coverage of
individuals" to the maximum extent permissible under the terms ofthe Act. 42 U.S.C. §
12102(4)(A). The term "substantially limits" as used under the ADAAA is "not meant to be a
demanding standard." 29 C.F.R. § 1630.2G)(l)(i). The regulations accompanying the ADAAA
explain: "An impairment is a disability within the meaning of this section if it substantially limits
the ability of an individual to perform a major life activity as compared to most people in the
general population. An impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be considered substantially limiting."
29 C.F.R. § 1630.2(j)(l)(ii). An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active. 29 C.F.R. § 1620.2(j)(l)(vii).
In contrast to the pre-amendment statute, under the ADAAA, a plaintiff proceeding under
the "regarded as" prong of the disability definition need only prove the existence of an
impairment that is neither transitory (i.e., having an actual or expected duration of 6 months or
less) nor minor to be covered under the ADAAA. The individual no longer is required to prove
that the employer regarded his impairment as substantially limiting a major life activity. See §
12102(1)(C); 29 C.F.R. § 1630.2(1)(1) (2012) (an individual is "regarded as having [a disabling]
impairment" if the individual is subjected to a prohibited action because of an actual or perceived
physical or mental impairment, whether or not that impairment substantially limits, or is
perceived to substantially limit, a major life activity).
The City alleges it was proper to place plaintiff on limited duty during the 2009-2011
time frame given his health issues during this time period. The City contends that plaintiffs own
cardiologist removed him from full duty for several months, plaintiff was hospitalized for several
days for multiple issues, and plaintiff had heart valve surgery and a kidney transplant. The City also
states that plaintiff requested in the October 1, 2009 grievance he filed that he be permitted to
23

remain in a limited-duty status rather than be returned to full duty pending the final outcome of
the third-party physician review process. (Doc. 24 at 12, citing Pltf. Depo. Exh. 11).
For the reasons stated in connection with plaintiffs claim for the 2007-2008 time period,
the Court finds there are genuine issues of material fact as to whether the City regarded plaintiff
as disabled under the more lenient ADAAA standard during the 2009-2011 time frame.
Furthermore, there are genuine issues as to whether plaintiff was qualified to perform
unrestricted firefighting duties during portions of the 2009-2011 time period but was nonetheless
precluded from returning to work. The evidence shows that plaintiff was not on full duty status
for a number of reasons during this time frame. The City began the medical separation process
for plaintiff in 2009 based on his refusal to release his medical records and then removed
plaintiff from paid limited duty status in November 2009. However, for the reasons explained
below, there are issues of fact as to whether the City was entitled to the records it required
plaintiff to provide. In addition, although plaintiff had a number of health issues during this time
period, his treating physicians imposed only temporary restrictions as a result of these
conditions. He was off work for five weeks in June 2010 for heart valve surgery and for six
weeks in November 2010 for a kidney transplant. His treating physicians released him for full
duty in January 2011 and in May 2011 the third-party physician found plaintiff could return to
full duty. Furthermore, the fact that plaintiff asked to remain on limited duty in his October 1,
2009 grievance is not dispositive of whether he was qualified to perform unrestricted fire fighting
duties during the entire 2009-2011 period as plaintiff requested to remain in limited duty status
only during the pendency of the third-physician review process then underway in lieu of being
medically separated. (Doc. 23, Exh. 11). Thus, the evidence does not show that plaintiff was
unqualified to perform unrestricted firefighting duties for the entirety of the 2009-2011 time

24

period. Finally, the City has not produced evidence to show that plaintiff posed a direct threat to
the safety or health of himself or others during this time frame. The City is therefore not entitled
to summary judgment on plaintiffs claim pertaining to the 2009-2011 time period.
Third, plaintiff claims that the City violated 42 U.S.C. § 12112(d)(4)(A) by requesting his
medical records in November 2009 and then removing him from paid limited-duty status for
refusing to provide these records. (Doc. 30 at 19-20). Section 12112(d)(4)(A) provides: "A
covered entity shall not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or as to the nature or
severity of the disability, unless such examination or inquiry is shown to be job-related and
consistent with business necessity." Plaintiff alleges the City violated the statute because the
requested records were not related to his fitness for duty as they were over two years old; EHS
had already determined that plaintiff was permanently restricted from full-duty firefighting; and
plaintiff had provided recent records from his own physicians substantiating his fitness for duty.
The City argues it followed the procedures outlined under the LMA, and the evidence amply
demonstrates that the request for records and subsequent action based on plaintiffs refusal to
provide the records were justified. (Doc. 32 at 3-5).
Plaintiff has raised genuine issues of fact as to whether the City violated his rights under
the ADAAA by removing him from limited-duty status in November 2009 for refusing to
disclose certain medical records. There is evidence that calls into question whether the records
were related to plaintiffs ability to perform his job and whether the request was consistent with
business necessity. Thus, the City is not entitled to summary judgment on this claim.
The fourth adverse action is plaintiffs removal from the PTP in November 2009. The
City contends that plaintiff cannot meet the "disability" standard of the ADAAA with regard to

25

his removal from the PTP because the record shows plaintiff suffered temporary disabilities and
was therefore properly placed on limited duty pursuant to§ 32.8 of theLMA. (Doc. 24 at 12).
The City states it removed plaintiff from the PTP based on his inability to obtain the necessary
"ride time" resulting from his limited-duty status and not because of a perceived disability. The
City asserts that ride-time requirements must be fulfilled in order to complete the PTP under
Ohio law. The City also asserts that plaintiff acknowledged it was not possible to accumulate
ride time on City vehicles as he was on limited-duty status, and all individuals on City vehicles
must be able to perform full duty. Although plaintiff was initially advised he could obtain his
ride time through another fire department, the City determined this option was unworkable.
(Doc. 24 at 13-14).
There is direct evidence that the City took plaintiffs diabetic and kidney conditions into
account when refusing to allow him to complete the PTP, so it is appropriate to analyze this
adverse action under the direct evidence framework. There are issues of fact under the more
liberal ADAAA standard as to whether the City regarded plaintiff as having a disabling
impairment and removed plaintiff from the PTP because it perceived him to be restricted to
limited, and not full, fire fighting duties as a result of his diabetic and kidney conditions. Plaintiff
has presented evidence that he was qualified to perform unrestricted firefighting duties and
complete the requirements of the PTP. There is evidence that plaintiffs own physicians had
attested to his capability to perform unrestricted firefighting duties, and Dr. Locasto expressed
his preference that plaintiff perform his ride time on City units, but the City rejected his
recommendation. (Doc. 30 at 18, citing Locasto Depo at 24, Locasto Depo. Exhs. 36, 38). The
City has not produced evidence to show plaintiffs participation in the program would have

26

posed a direct threat to his safety or to the safety of others. Accordingly, plaintiff has come
forward with sufficient evidence to proceed to trial on this portion of his discrimination claim.
In sum, there is sufficient evidence for plaintiff to proceed to a jury on his claims that the
City violated his rights under the federal and state anti-discrimination laws by refusing to allow
plaintiff to return to full fire fighting duties following his hospitalization in September 2007 and
throughout 2008; by refusing to allow plaintiff to complete the PTP; by restricting plaintiff to
limited duty from 2009 to 2011; and by removing plaintiff from limited duty for refusing to
provide certain medical records. Although the City has asserted that plaintiff posed a direct
threat to himself or others, the evidence plaintiff has presented is sufficient to call into question
the validity of the City's allegation. These issues cannot be resolved without weighing the
evidence and making credibility determinations, which are functions that must be performed by
the trier-of-fact. Accordingly, the City is not entitled to summary judgment on plaintiffs
disability discrimination claims against it.

B. Retaliation claim against the City
Plaintiff brings a retaliation claim against the City under Ohio law. Plaintiff has clarified
the factual basis for this claim in his response to the City's motion for summary judgment.
Plaintiff alleges that he engaged in protected activity by filing a charge of discrimination with the
OCRC and the Equal Employment Opportunity Commission ("EEOC") on or about April 20,
2009, alleging that the City discriminated against him on the basis of a perceived disability by
removing him from the PTP. (Doc. 30 at 20). Plaintiff asserts that the City was aware of the
charge. Plaintiff testified at his deposition that he had a conversation with Assistant Fire Chief
Corbett in October 2009 during which Corbett offered plaintiff the opportunity to return to
"paramedic school" if plaintiff dropped his EEOC complaint. (Pltf. Depo. at 78-81). Plaintiff
27

contends that after he refused to drop the charge, he was removed from limited-duty status and
placed in unpaid status. (Doc. 30 at 20, citing Wright Depo. at 30-31 ). Plaintiff claims this
action was taken against him in retaliation for filing the charge.
The City contends that plaintiff cannot establish a causal connection between the filing of
his EEOC charge on April20, 2009, and his removal from limited duty effective October 15,
2009. The City asserts that plaintiffs removal from limited duty was not in retaliation for the
filing of his EEOC charge but was in response to plaintiffs refusal to release his medical
records. (Doc. 32 at 8). The City contends that plaintiff acknowledged this as the reason for his
removal from limited duty in a union grievance he filed on October 1, 2009. (Doc. 32 at 8, citing
Pltf. Depo. Exh. 11 ). The City states that the five-month gap between the filing of the charge
and plaintiffs removal from limited duty is insufficient, in the absence of other compelling
evidence, to establish a causal connection between the two events. (Doc. 32 at 8-9, citing Boggs

v. The Scotts Co., No. 04AP-425, 2005 WL 647560, at *8 (Ohio App. lOth Dist. March 22,
2005) ("[T]emporal proximity alone does not support a claim of retaliation if there is no other
compelling evidence.")).
Ohio law provides that it is unlawful for "any person to discriminate in any manner
against any other person because that person has opposed any unlawful discriminatory practice
.... " Ohio Rev. Code§ 4112.02(!). To establish a prima facie case of retaliation under
Ohio law, the plaintiff must show that "(1) [he] engaged in a protected activity, (2) the defending
party was aware that the [plaintiff] had engaged in that activity, (3) the defending party took an
adverse employment action against the employee, and (4) there is a causal connection between
the protected activity and [the] adverse action." Greer-Burger v. Temesi, 879 N.E.2d 174, 180
(Ohio 2007) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990);
28

Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,544 (6th Cir. 2008)). lfthe plaintiff

establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a
legitimate reason for its action. !d. If the defendant does so, the burden then shifts back to the
plaintiff to demonstrate that the proffered reason was a pretext for retaliation. !d.
Plaintiffhas produced sufficient evidence to proceed to a jury on his retaliation claim.
Plaintiff engaged in protected conduct by filing an EEOC charge in April2009. Plaintiff was
subjected to an adverse action in October 2009 when he was removed from limited-duty status
and placed in unpaid status. Plaintiff relies on more than temporal proximity to establish a
causal connection between the two events. Plaintiff testified at his deposition that he was
removed from limited-duty status shortly after he refused the City's offer to allow him to return
to paramedic school in exchange for dropping the EEOC charge. (Pltf. Depo. at 78-81 ). A
reasonable jury could infer from this evidence that there was a causal connection between
plaintiffs filing ofthe EEOC charge and the City's decision to remove plaintiff from limitedduty status. It is for the jury to decide whether to draw the inference or to accept the legitimate
non-retaliatory reason asserted by the City for its action. The City therefore is not entitled to
summary judgment on plaintiffs retaliation claim.
IV. Plaintiff's claims against defendant Wright
Defendant Wright moves for summary judgment on all claims against him. First, Wright
argues that he cannot be held personally liable for a violation of the ADA. (Doc. 22 at 20, citing
Sullivan v. River Valley School Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1991); Wms. v. McLemore,

247 F. App'x 1, 8 (6th Cir. 2007)). Second, Wright alleges that he can be held liable under Ohio
law only for his own discriminatory conduct occurring in the workplace. (Doc. 22 at 21, citing
Genaro v. Cent. Transport, Inc., 703 N.E.2d 782 (Ohio 1999)). Wright contends he did not

29

violate plaintiff's rights under the Ohio anti-discrimination statute by refusing to return plaintiff
to full-duty status from October 2007 forward and by removing plaintiff from the City's PTP in
April2009. In addition, Wright contends that plaintiff cannot establish a claim of retaliation
against him because there is no evidence of a causal connection between plaintiff's filing of his
EEOC charge and Wright's decision to remove him from limited-duty status. Wright further
argues that plaintiff's claims based on Wright's failure to return plaintiff to unrestricted duty are
preempted by the Labor Management Relations Act (LMRA) because they require an
interpretation of the collective bargaining agreement between the City and the union. In
addition, Wright contends that he is immune from suit under Ohio Rev. Code Ch. 2744. Finally,
Wright contends he is entitled to summary judgment on plaintiff's claim for punitive damages
because plaintiff cannot establish actual malice.
A. Wright is subject to liability on certain claims.
A manager or supervisor who does not otherwise qualify as an employer cannot be held
personally liable under the ADA. See Wathen v. General Electric., 115 F.3d 400 (6th Cir. 1997).
For purposes of Ohio Rev. Code Chapter 4112, however, a supervisor/manager may be held
jointly and/or severally liable with his employer for the supervisor/manager's own
discriminatory conduct. Genaro, 703 N.E.2d 782. Thus, Wright can potentially be held liable
for disability discrimination only under Ohio law.
Before turning to the merits of plaintiff's disability discrimination claims, the Court will
address Wright's LMRA preemption and statutory immunity arguments. Wright argues that
plaintiff's claim of disability discrimination based on Wright's failure to return him to full duty
is preempted by the LMRA because the LMA must be interpreted in order to determine whether
Wright had the authority to return plaintiff to unrestricted duty. Section 301 of the LMRA

30

preempts "any state-law claim arising from a breach of a collective bargaining agreement."

Mattis v. Massman, 355 F.3d 902, 905 (6th Cir. 2004) (citing Smolarek v. Chrysler Corp., 879
F.2d 1326, 1329 (6th Cir. 1989) (en bane)). A two-step inquiry must be undertaken to determine
whether a state-law claim survives§ 301 preemption: (1) whether resolving the state-law claim
would require interpretation of the terms of the collective bargaining agreement; and (2) whether
the rights claimed by the plaintiff were created by the collective bargaining agreement or instead
by state law. !d. at 906 (citing DeCoe v. G.M Corp., 32 F.3d 212,216 (6th Cir. 1994)). If a
state-law claim fails either of these two requirements, it is preempted by § 301. !d.
The Court finds that § 301 preemption does not apply here. First, the ultimate issue of
whether Wright refused to return plaintiff to full duty because Wright perceived him as disabled
does not depend upon an interpretation of theLMA. To the contrary, there is no disagreement
regarding the pertinent provisions of the LMA and their applicability to this case insofar as they
pertain to Wright's exercise of discretion. Second, the right to be free from disability
discrimination is derived from Ohio's anti-discrimination statute rather than the collective
bargaining agreement. Accordingly, neither prong of the two-part test for preemption is
satisfied.
Nor is Wright shielded from personal liability for plaintiffs discrimination and retaliation
claims by the statutory immunity provision of Ohio Rev. Code§ 2744.03. Pursuant to that
provision, employees of political subdivisions are generally immune from liability unless one of
the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the
employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a
wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised
Code ....
31

Ohio Rev. Code§ 2744.03(A)(6). Wright asserts that none of the exceptions to statutory
immunity are present in this case. He argues there is no dispute he was acting within the scope
of his duties when he made decisions concerning plaintiffs employment; no reasonable jury
could find that his acts or omissions rose to the level of egregiousness described in subsection
(b); and although Ohio appellate courts have reached different conclusions as to whether Ohio
Rev. Code Ch. 4112 expressly imposes liability upon supervisors and managers of political
subdivisions charged with discrimination, the Court should follow the decision of the lone Ohio
appellate court that has determined there is no supervisory liability under the anti-discrimination
statute. (Doc. 22 at 37-38, citing cases).
Wright's argument is not well-taken. Two judges in this district have previously decided
that the third exception to statutory immunity applies to a claim brought under Chapter 4112.

See Conant v. Delaware County Bd of County Com 'rs, No. 2:10-cv-221, 2011 WL 4383444, at
*12 (S.D. Ohio Sept. 19, 2011) (Sargus, J.); Satterjieldv. Karnes, 736 F.Supp.2d 1138, 1151-54
(S.D. Ohio 2010) (Holschuh, J.). The Court adopts the reasoning of those decisions and finds
that as the potential for civil liability is imposed on Wright by Chapter 4112, statutory immunity
is inapplicable to him.

B. Wright is not entitled to summary judgment on all claims.
Turning to the merits of plaintiffs claims, the Court will address each of the adverse
actions alleged by plaintiff. The first purported adverse action is Wright's order that plaintiff
submit to a fitness-for-duty examination in 2007 followed by Wright's refusal to return plaintiff
to unrestricted duty from 2007 to 2008 based on the results of the examination. Plaintiff assumes
for purposes of his summary judgment motion that direct evidence of discrimination by Wright
does not exist. (Doc. 31 at 4). Plaintiff argues, however, that he can establish a prima facie case
32

of discrimination against defendant Wright. Plaintiff contends that Wright ordered the fitnessfor-duty examination without a proper basis for doing so and then used the "illegal examination"
to obtain an opinion from EHS upon which Wright could rely to remove plaintiff from full-duty.
(Doc. 31 at 6-7). Plaintiff contends that although Wright denies he could have returned plaintiff
to full-duty absent a third-party physician's recommendation, District Chief Texter contradicted
Wright's testimony and testified that Wright did have such authority. (Texter Depo. at 54-55).
Wright argues that plaintiff has failed to set forth a prima facie case of discrimination as
to the fitness-for-duty examination because plaintiff cannot show ( 1) that a demand for a valid
fitness-for-duty examination is an adverse action, or (2) that plaintiff was a qualified individual
with a disability. (Doc. 22 at 24). Wright further contends that plaintiff has not shown that his
reason for leaving plaintiff on limited duty after the initial fitness-for-duty examination in 2007
was a pretext for discrimination. (!d. at 24-27). Wright asserts he did not return plaintiff to
unrestricted duty at any point between 2007 and Wright's retirement in early 2011 because
Wright did not have the authority under theLMA to do so. Wright asserts he was precluded by§
32.8 of theLMA from removing plaintiff from limited duty before a third-party physician review
was conducted. Wright states that pursuant to§ 32.8, once an EHS physician determines that an
employee is unable to function safely as a firefighter, the Fire Chief has the discretion to either
(1) place the employee on limited duty, or (2) decline to return the employee to work in any

capacity. (!d. at 25). Wright asserts that the Fire Chief does not have the discretion to override
the EHS physician's opinion that the employee is unable to function as a full-duty firefighter,
even if the employee's personal physician has released him for unrestricted duty. (Doc. 22 at 25,
citing Wright Depo. at 26, Texter Depo. at 49-50). Rather, in that instance, a third-party
physician must be consulted to resolve the conflict. (Pltf. Depo. Exh. 11, LMA § 28.12). Wright

argues that even if he had the authority to override EHS 's decision to place plaintiff on limitedduty status, no reasonable juror could find that he failed to do so because he perceived plaintiff to
be disabled. (Doc. 22 at 26-27). Wright alleges that he cannot be faulted for relying on the
professional opinions ofthe EHS physicians. (!d.).
The Court finds that plaintiff has not come forward with sufficient evidence to raise a
genuine issue of material fact as to whether Wright violated the Ohio Civil Rights statute by
ordering a fitness-for-duty examination in 2007 and then refusing to reinstate plaintiff to full
duty at any time during the 2007-2008 time frame. First, plaintiff has not shown that Wright
acted improperly by ordering the fitness-for-duty examination. The evidence shows that it was
reported to Wright in September 2007 that plaintiff had pneumonia. (Wright Depo. at 24).
According to plaintiffs own testimony, Wright had the discretion under the terms of theLMA to
require plaintiff to submit to a fitness-for-duty examination following his hospitalization and
pneumonia diagnosis in September 2007. (Pltf. Depo. at 144-147).
Second, the only evidence plaintiff points to as "the basis" for Wright's decision to not
return plaintiff to full duty is Dr. Kelley's memorandum opining that plaintiff was unable to
work a broad class of jobs (i.e., driving City vehicles, working around open dangerous
machinery, or working at unprotected heights). (Mehter Depo. Ex. 60). Although plaintiff
asserts that Wright had the authority to return plaintiff to full duty despite the opinion of the EHS
physician that he was not fit for such duty (Doc. 31 at 9, citing Texter Depo. at 54-55), Texter
testified only that as a department head Wright "probably could" do so. Texter clarified that
Wright generally would not overrule the EHS's decision under such circumstances because
Wright would then become liable for any injury or illness suffered by that individual, and Texter
was not aware of anyone for whom Wright had overridden the decision of the EHS physician.

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(Texter Depo. at 54-55). Texter's testimony thus shows that Wright followed the standard
procedure in not returning plaintiff to full duty under the circumstances and does not permit an
inference that Wright acted as he did for some improper purpose. Wright was entitled to rely on
the findings of the EHS physician that plaintiff was not able to return to full duty. Accordingly,
plaintiff has not produced evidence to proceed to trial on his claim that Wright violated Ohio law
by ordering a fitness-for-duty examination and failing to return plaintiff to full duty based on the
results of that examination.
The second adverse action is Wright's refusal to reinstate plaintiff to full duty from 2009
to 2011. Plaintiff alleges that Wright could have returned him to full duty at any time absent a
third-party physician's recommendation. (Doc. 31 at 10, citing Texter Depo. at 54-55). To show
Wright failed to do so based on an improper motive, plaintiff points to deposition testimony that
Texter and the union president heard Wright state he would not return plaintiff to full duty even
if a third-party physician recommended it. (Doc. 31 at 10, citing Texter Depo. at 23; Pltf. Depo.
Exh. 32). 8 The cited testimony is too vague, however, to carry plaintiffs burden to show that
Wright perceived him as disabled and would have reinstated him to full duty at any time between
2009 to 2011 but for the perceived disability. Texter actually testified that he believes he heard
Wright indicate during a discussion that plaintiff would not be returned to full duty even if a
third-party physician recommended his return, but Texter does not know when the discussion
took place and he does not know the context in which Wright made the statement. (Texter Depo.
at 23). Plaintiff has not produced any other evidence to carry his burden on his discrimination
claim against Wright for this time period. Therefore, Wright is entitled to summary judgment on
this claim.

8

Plaintiffhas not submitted this deposition exhibit and it is not part of the record before the Court.

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The third adverse action is plaintiffs dismissal from the City's PTP. Plaintiff disputes
Wright's contentions that (1) defendants were justified in placing him on limited-duty status, and
(2) being on limited duty automatically rendered him unable to fulfill the ride time requirements.
Plaintiff argues that his treating physicians attested to his ability to perform unrestricted
firefighting duties. Further, he contends that even if the City could have restricted him from fullduty firefighting, his preclusion from the PTP was discriminatory because it was based on
misguided assumptions rather than an analysis of how his medical condition affected his ability
to perform the program requirements. Plaintiff alleges that Wright disregarded recommendations
that the City Medical Director, Dr. Locasto, made on January 15, 2009 and March 4, 2009, that
plaintiff be permitted to perform his ride time on City units (Doc. 31 at 12, citing Locasto Depo.
at 24, Locasto Depo. Exhs. 36, 38), and plaintiff notes that Dr. Locasto testified that plaintiff
would not have been prevented by his dialysis needs from performing his ride time on City units.
(Doc. 31 at 12, citing Locasto Depo. at 18). Plaintiff further relies on the testimony of Assistant
Fire Chief Corbett that plaintiff was treated differently than other firefighters who were
permitted to complete ride-time requirements while on limited duty. (!d. at 13, citing Corbett
Depo. at 46, 48). Plaintiff argues that a reasonable trier-of-fact could conclude based on the
evidence that he was treated differently than similarly-situated individuals on limited duty and
that but for Wright's perception that he was disabled, he would have been permitted to remain in
the PTP. (!d. at 13).
Wright assumes plaintiff can establish a prima facie case of discrimination as to this
claim but asserts a legitimate non-discriminatory reason for plaintiffs removal from the
program, i.e., his limited-duty status rendered him unable to meet the training program's ride
time requirements because the City has a policy against permitting firefighters on limited duty

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from riding on rescue units. (Doc. 22 at 28-29; Doc. 33 at 11, citing Corbett Depo. at 12; Pltf.
Depo. Exh. 36). Defendant Wright disputes that plaintiff was similarly-situated with the
individuals to whom he seeks to compare himself and asserts that plaintiff provides no details
about pregnant female firefighters who allegedly were allowed to do ride-time while on limited
duty.
Plaintiff has come forward with evidence that raises a genuine issue of material fact as to
the legitimacy of the stated reason for his withdrawal from the PTP. Specifically, plaintiffhas
called into question whether he was treated differently than similarly-situated firefighters who
participated in the PTP. Assistant Fire Chief Corbett testified that he told Wright that he did not
think Wright should remove plaintiff from the PTP. (Corbett Depo. at 47). Corbett stated he
disagreed with Wright's decision to withdraw plaintiff from the PTP because he thought "we
were treating him different than they treated other people." (Corbett Depo. at 45). Specifically,
Corbett testified that he thought plaintiff was being treated differently than other firefighters who
had been on light duty status and were allowed to complete paramedic training classes. (!d. at
45-47). Wright asserts that the situations of these individuals differed from plaintiffs situation.
Wright notes that Corbett testified he did not believe firefighter Haki Zuberi took the training inhouse or through any of the City's programs and firefighter Vernon Simpson, who was in the
first class of graduates from the PTP, was likewise unable to complete ride time due to his
limited duty status and did not complete the requirement until he returned to full duty. (Doc. 33
at 12, citing Corbett Depo. at 46-47). However, Corbett's testimony indicates that in contrast to
plaintiff, these individuals were permitted to participate in the PTP despite being on light duty
status. (!d. at 46-47). The evidence presents an issue as to whether plaintiff was treated
differently from similarly-situated individuals and was forced to withdraw from the PTP program

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based on a perceived disability. Plaintiff is therefore entitled to proceed to a jury on this claim
against defendant Wright.
The fourth adverse action is Wright's acting in concert with EHS to coerce plaintiff into
providing his medical records in violation of 42 U.S.C. § 12112(d)(4)(A). Because plaintiff
concedes that Wright cannot be held liable for a violation of the ADA or ADAAA, Wright is
entitled to summary judgment on this claim.
Plaintiff also brings a retaliation claim against Wright under Ohio law, alleging that
Wright removed him from limited-duty status in retaliation for filing the EEOC charge in April
2009. Plaintiff testified at his deposition that he was removed from limited-duty status shortly
after he refused the City's offer to allow him to return to paramedic school in exchange for
dropping the EEOC charge. (Pltf. Depo. at 78-81 ). Plaintiff asserts that the short time frame
between Corbett's request that he drop his charge and Wright's decision to remove him from
limited-duty status is sufficient to establish a causal connection between the two events.
Wright argues there is no evidence of a causal connection between plaintiffs filing of the
EEOC charge in April2009 and his decision to remove plaintiff from full-duty status. Wright
contends his decision was based on plaintiffs refusal to sign a medical release so that EHS
physicians could have access to his medical records. (Wright Depo. at 30-31 ). Wright asserts
there is no evidence he was aware any City employee had asked plaintiff to drop his
discrimination charge. (Doc. 33 at 14). Wright further notes that although plaintiff testified that
Corbett asked him to drop his charge in October 2009, this was after Texter had written to
plaintiff and informed him that his continued refusal to release medical records to EHS would
result in termination of his limited duty status. (Id. at 14, citing Pltf. Depo. Exh. 17).

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A reasonable jury could reasonably infer that there was a causal connection between
plaintiffs filing of the EEOC charge and Wright's decision to remove plaintiff from limited-duty
status. Corbett testified that there had been discussions within the Fire Department about
presenting a proposal to plaintiff to allow him to return to the PTP if he dropped his charge
against the City, and it was his impression Wright was trying to make things difficult for
plaintiff. (Corbett Depo. at 24-25). A reasonable juror could infer that as Fire Chief, Wright was
involved in these discussions about presenting a proposal to plaintiff to withdraw his charge.
Although Wright articulated a legitimate reason for plaintiffs removal from the PTP, it is up to
the jury to determine whether the decision to remove plaintiff from limited duty status was made
in retaliation for plaintiffs refusal to withdraw the charge, or whether it was based on plaintiffs
refusal to release his medical records. Because the Court cannot weigh the evidence and make
credibility determinations necessary to resolve this issue, Wright is not entitled to summary
judgment on plaintiffs retaliation claim.
Finally, Wright contends that plaintiffs claim for punitive damages must be dismissed
because no reasonable juror could find that Wright acted with actual malice. Wright relies on
plaintiffs deposition testimony that the two individuals had no communications and "no
relationship" as of 2007 to show Wright could not have acted with actual malice. (Doc. 22 at 36,
citing Pltf. Depo. at 147, 173). Plaintiff contends there is evidence that Wright harbored hatred
and ill will toward him. In addition to evidence plaintiff has previously cited to demonstrate that
Wright discriminated against him, plaintiff relies on Corbett's testimony that it was his
impression Wright tried to make things difficult for plaintiff and that Wright appeared to be
upset when talking about plaintiff. (Doc. 31 at 18, citing Corbett Depo. at 25-26).

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Punitive damages may be awarded in an action under Ohio Rev. Code§ 4112.99 ifthere
is evidence of actual malice. Rice v. CertainTeed Corp., 704 N.E.2d 1217, 1221 (Ohio 1999).
"Actual malice, necessary for an award of punitive damages, is (1) that state of mind under
which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a
conscious disregard for the rights and safety of other persons that has a great probability of
causing substantial harm." Preston v. Murty, 512 N.E.2d 1174, syll. (Ohio 1987) (emphasis in
original). "The first prong of actual malice has also been defined as conduct characterized by
'retaliation, or a determination to vent ... feelings upon other persons."' Meyers v. Hot Bagels

Factory, Inc., 721 N.E.2d 1068, 1078 (Ohio App. 1st Dist. 1999). Actual malice may be inferred
from conduct and surrounding circumstances that may be characterized as "reckless, wanton,
willful, or gross." Id. (citing Calmes v. Goodyear Tire & Rubber Co., 575 N.E.2d 416, 419
(Ohio 1991) (quoting Preston, 512 N.E.2d 1174, syll.). "It is the egregiousness of the
defendant's conduct that determines the appropriateness of an award of punitive damages. In
Ohio, egregiousness is defined by the defendant's evil or depraved mental state or his
willingness to disregard almost certain injury." ld.
The Court finds that plaintiff has come forward with sufficient evidence to proceed to
trial on his claim for punitive damages against Wright. The evidence supporting plaintiffs
retaliation claim is likewise "sufficient to show malice for purposes of punitive damages: actual
malice has been defined as 'that state of mind under which a person's conduct is characterized by
hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon
other persons." Toole v. Cook, No. 98AP--486, 1999 WL 280804, at *7 (Ohio App. lOth Dist.
1999) (emphasis in the original) (citations omitted) (abrogated on other grounds). Accordingly,
Wright is not entitled to summary judgment on the punitive damages claim.

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IT IS THEREFORE ORDERED THAT:
1) Defendant City of Cincinnati's motion for summary judgment (Doc. 24) is DENIED.
2) Defendant Robert Wright's motion for summary judgment (Doc. 22) is GRANTED in
part and DENIED in part.

Date: II

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Karen L. Litkovitz
United States Magistrate Judge

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