Nichols v. OhioHealth Corporation et al

Filing 61

OPINION AND ORDER granting #31 Defendants' Motion for Summary Judgment. Signed by Judge George C. Smith on 8/17/2017. (er)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHANIE NICHOLS,
Plaintiff,
v.

Case No.: 2:14-cv-2796
JUDGE SMITH
Magistrate Judge Vascura

OHIOHEALTH CORP., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court upon the Motion for Summary Judgment of Defendants
OhioHealth Corporation, Kay Holland, Kathy Talbott, Nancy Miller, and Charissa Cattrell
(collectively “Defendants”) (Doc. 31). Plaintiff opposed Defendants’ Motion (Doc. 50) and
Defendants replied in support (Doc. 56). This matter is now ripe for review. For the following
reasons, Defendants’ Motion for Summary Judgment is GRANTED.
I.

BACKGROUND

This case concerns Plaintiff’s attempt to obtain a Senior Radiology Technologist position
with OhioHealth Corp. (“Ohio Health”) at the Riverside Breast Health Center. (Doc. 2, Compl.
at ¶¶ 6, 12). Although Ohio Health originally offered Plaintiff the job, Plaintiff’s offer was
rescinded before she ever began working for Ohio Health and this lawsuit followed.
Plaintiff applied for the Senior Radiology Technologist position on July 26, 2012. (Doc.
3, Am. Compl. at ¶ 11). Plaintiff had worked in similar positions performing mammograms for
over thirty years before she applied for the position with Ohio Health.
Application at PAGEID# 742–43).

(Doc. 48-1, Pl.’s

While waiting to hear about her application, Plaintiff

contacted a former coworker, Dee Goodwin, who worked for Ohio Health at the time. (Doc. 541, Nichols Dep. at 26). Goodwin spoke to her supervisor, Katie Roth, about Plaintiff and
Plaintiff forwarded her application directly to Roth. (Id. at 26–27). Roth informed Plaintiff that
Goodwin had wonderful things to say about Plaintiff. (Id.). Plaintiff interviewed with Roth
shortly after her email conversation. (Id. at 28–30). After her interview, Plaintiff had a short
meeting with Liz Tully, an Ohio Health human resources representative.

(Id. at 30–31).

Following her meeting with Tully, Plaintiff had a telephone interview with the head of
mammography. (Id. at 33–34). Shortly after Plaintiff’s phone interview, Kathy Talbott, a
recruitment consultant, called Plaintiff and offered her the job. (Id. at 34). Talbott informed
Plaintiff that the position was contingent on a background check and a health assessment and
said that she would be mailing Plaintiff information memorializing the call. (Id. at 34–37).
Talbott sent Plaintiff an offer letter dated August 21, 2012, again indicating that the job offer was
contingent on the completion of a background check and a health assessment. (Doc. 48-4, Offer
Letter). The Offer Letter scheduled Plaintiff for Ohio Health orientation on August 27, 2012.
(Id.).
Prior to completing the Health Assessment, Plaintiff filled out a few different documents
about her health history. Under the section asking “Do you have any limitations that would keep
you from performing the duties of your job?”, Plaintiff answered, “Cannot stoop or work
standing on my knees.” (Doc. 54-3, Health History). Plaintiff’s noted limitations were the result
of a meniscus tear that had been surgically repaired a year prior to the Health Assessment. (Doc.
54-1, Nichols Dep. at 50). Plaintiff did not mark either the “No” or “Yes, if yes explain” check
boxes next to the question. (Doc. 54-3, Health History). Plaintiff stated that she did not check
either box because she did not believe the knee issues kept her from performing her job. (Doc.

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54-1, Nichols Dep. at 55–56). Plaintiff noted that she has poor balance and that if she needs to
go down to the floor that she usually “hang[s] on to something.” (Id.). The next question on the
form asked “Are there any accommodations that you need our company to make to perform this
job?” (Doc. 54-3, Health History). Plaintiff checked the “No” box. (Id.).
Plaintiff’s in-person health assessment took place at the Riverside Hospital campus with
nurse Charissa Cattrell. (Doc. 54-1, Nichols Dep. at 41–42). Cattrell and Plaintiff discussed
Plaintiff’s noted knee limitations. (Id. at 50). Cattrell told Plaintiff that she did not like the way
Plaintiff had worded her limitations and rewrote it to say that Plaintiff could not kneel because of
knee pain and that Plaintiff could not stoop without holding onto something. (Id. at 56; Doc. 543, Health History). Plaintiff admits that her description of her limitations was “kind of vague” so
she tried to explain to Cattrell “the real issue.” (Doc. 54-1, Nichols Dep. at 57). Plaintiff
believed “‘Stooping’ means kind of a squat to the floor. ‘Standing on my knees’ was when I’m
in an upright position on my knees. And ‘kneeling’ to me means you have—you’re squatted
with one foot on the ground and one knee on the ground.” (Id. at 60). Plaintiff indicated that
stooping did not cause her knee pain at that time but that standing on her knees and kneeling did
cause knee pain. (Id. at 60–61). Plaintiff told Cattrell that she could perform all of her duties but
that “it’s a little bit more painful,” because of the knee surgery. (Id.). Cattrell informed Plaintiff
that she would have to send Plaintiff’s information to another department. (Id.).
After the Health Assessment, Cattrell emailed Nancy Miller, an accommodations
specialist, stating “New hire Sr Rad tech at RMH mammo/Nao 0827/2012/indicated on her
health hx form that she cannot stoop without holding onto something or kneel because of
bilateral knee pain. States she had surgery on her Rt knee 1 year ago for a ‘tear.’” (Doc. 47-9,
Cattrell 8/22/12 Email to Miller). Plaintiff next spoke with Miller a day or two after Plaintiff’s

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Health Assessment.

(Doc. 54-1, Nichols Dep. at 73).

Miller began discussing Plaintiff’s

limitations and Plaintiff responded “I can do these things.” (Id. at 74). At that point, Miller
allegedly called Plaintiff a liar for writing the things down in the Health History and refused to
let Plaintiff explain. (Id.). Plaintiff did not request any accommodations during the call but did
not get a chance to explain her vague wording. (Id. at 74–77). Plaintiff stated that she did not
ask for accommodations during that phone call because she does not need accommodations and
that the phone call ended after about ten minutes. (Id.). Miller told Plaintiff that she would have
to report the issue to Kay Holland. (Id.). Miller had a different memory of the phone call,
stating that Plaintiff “indicated that the restrictions could be accommodated by potentially
leaving the door to the mammography suite open or having another person to be available to
assist her.” (Doc. 46-2, Miller Dep. at 37). Miller suggested that in “some places it might be
possible to install grab bars, which would have been of assistance potentially to her getting up
from a kneeling position if needed.” (Id. at 43). Plaintiff responded that she would check into
that. (Id.). Miller stated that she did not accuse Plaintiff of lying or backpedaling. (Id. at 45–
46). Miller told Plaintiff that she would discuss the requested accommodations with Plaintiff’s
new manager. (Id.).
Miller next spoke to Kay Holland, the manager of Radiology to discuss the
accommodations Plaintiff requested. (Id. at 56). Holland stated that to leave the door open
would violate radiology and HIPAA protocols and that the staffing system could not allow two
people in an exam room at one time. (Id. at 57). Holland also said that grab bars were not
possible because of the size and orientation of the room. (Id. at 58).
Plaintiff and Miller spoke the next day when Miller told Plaintiff to get documents from
her doctor stating that she had no limitations and to fax that information to Miller by the end of

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the day. (Doc. 54-1, Nichols Dep. at 77–80). Although Plaintiff told Miller that it was unlikely
that she could get the requested records by the close of business on a Friday, Miller insisted “‘[i]f
you do not get me these documents by the end of the day, you cannot attend orientation on
Monday.’” (Id. at 78). Plaintiff stated that she and Miller did not discuss accommodations
“because we weren’t at that point in this process. I was just trying to give her the documents to
say that I had no limitations, of which I was quite aware I didn’t have limitations.” (Id. at 79).
Plaintiff offered to come to Ohio Health and demonstrate that she could perform the job but
Miller informed her that it was too late in the day to do that. Again, Miller has a different
memory of the call, stating that Plaintiff offered a doctor’s release to full duty upon hearing that
her suggested accommodations could not be met. (Doc. 46-2, Miller Dep. at 61–64). Miller
insists that the door was not closed on further possible accommodations. (Id.). The call ended
with Miller waiting on a fax from Plaintiff’s doctor. (Doc. 54-1, Nichols Dep. at 80).
After the second conversation between Miller and Plaintiff, Plaintiff contacted Kimberly
Cox to see if Cox could talk to Holland about Plaintiff and put in a good word. (Doc. 54-1,
Nichols Dep. at 86–87). Cox was a friend of Plaintiff’s in the imaging department at Ohio
Health. (Id). Miller called Plaintiff and said “[h]ow dare you call and try to get someone within
the system to vouch for you.

I’m your representative and you are to let me do that for

you . . . From now on, if you need -- if you need questions or you need communication done
within the system, you call me.” (Id. at 88).
On the Monday when Plaintiff was originally scheduled to have orientation, Plaintiff
called Talbott to see if she could attend orientation on Tuesday but Talbott informed Plaintiff
that orientation was a two day process and that Plaintiff would have to wait for the next
orientation. (Doc. 54-1, Nichols Dep. at 94–95). Plaintiff’s doctor, Dr. Barker, faxed a note to

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Ohio Health, stating: “Patient was last seen 9/7/11. The patient was released without restrictions
at that appointment.” (Doc. 54-4, Barker Fax at 2). Barker’s fax also included a September 8,
2011 note, stating Plaintiff was cleared for “Return to Work 9/12/11 without restrictions.” (Id. at
3). Dr. Barker also provided a note from Plaintiff’s September 7, 2011 appointment which
stated, “[Plaintiff] has not required physical therapy at this point in time but certainly she will
give us a phone call if she stalls with progress and perceives the need for some reconditioning,
which would be nicely accomplished by therapy if necessary.” (Id. at 4). Plaintiff never sought
physical therapy for her knee and did not see Dr. Barker or any other care provider for her knee
between her release to work and Barker’s fax on August 28, 2012. (Doc. 54-1, Nichols Dep. at
82–83).
On Tuesday, August 28, Plaintiff emailed Roth to inform her that all of the necessary
medical documentation was sent to Ohio Health and that she would be ready for the next
orientation. (Doc. 48-10, Pl. 8/28/12 E-mail to Roth). On September 4, 2012, Talbott informed
Plaintiff that the offer was rescinded and that the position would not be filled. (Doc. 54-1,
Nichols Dep. at 97). Plaintiff asked if that was the case even though she had submitted all of the
required medical documents and Talbott confirmed that the offer was rescinded. (Id.).
Plaintiff filed an EEOC charge in November of 2012 and received a right-to-sue letter in
October, 2014. (Doc. 48-12, EEOC Charge; Doc. 3-1, Right-to-Sue Letter). Plaintiff filed suit
in this case on December 31, 2014. Plaintiff brings the following claims against Defendants:
(1) Ohio Health rescinded its offer to Plaintiff “because of her disability and/or perceived
disability” in violation of the Americans with Disabilities Act as Amended (“ADAAA”) and
Ohio Revised Code § 4112.02(A); (2) Ohio Health conducted an unlawful medical examination
and/or unlawfully used the results of Plaintiff’s medical examination . . .” in violation of 42

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U.S.C. § 12112(d) and Ohio Revised Code § 4112.02(A); (3) Ohio Health failed to provide an
accommodation for Plaintiff in violation of 42 U.S.C. § 12112(b)(5) and Ohio Rev. Code
§ 4112.02(A); and (4) Holland, Talbott, Miller, and Cattrell “aided and abetted in
discrimination” against Plaintiff in violation of Ohio Revised Code § 4112.02(J). (Doc. 50,
Mem. Opp. at 1–2; see also Doc. 3, Am. Compl. at ¶¶ 38–68).
II.

STANDARD OF REVIEW

Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. 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). The Court’s purpose in considering a summary judgment motion is
not “to weigh the evidence and determine the truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A
genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient
evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not
significantly probative,” however, is not enough to defeat summary judgment. Id. at 249-50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant

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must “produce evidence that results in a conflict of material fact to be resolved by a jury”). In
considering the factual allegations and evidence presented in a motion for summary judgment,
the Court must “afford all reasonable inferences, and construe the evidence in the light most
favorable to the nonmoving party.” Id.
III.

DISCUSSION

Defendants moved for summary judgment on all of Plaintiff’s claims providing legal and
factual arguments against each. Plaintiff responded to each of Defendants’ arguments and the
Court will address each in turn. Before turning to the merits of each claim, the Court GRANTS
summary judgment in favor of Defendant Talbott as Plaintiff made no arguments for liability
against Talbott. 1
A.

Disability Discrimination
Plaintiff’s first cause of action claims Ohio Health rescinded her offer because she was

disabled and/or because Ohio Health believed her to be disabled in violation of the ADAAA and
Ohio Revised Code § 4112.02(A). Ohio Health argues that Plaintiff does not suffer from a
disability, that Ohio Health did not perceive her as disabled and that even if Plaintiff succeeds in
overcoming the earlier defenses, that Ohio Health’s decision maker had no knowledge of the
alleged disability.
As an initial matter, “because Ohio case law tends to suggest that it entails the same legal
analysis as that under the ADA, [the Court] will analyze plaintiff’s state and federal
discrimination claims under Ohio Revised Code § 4112 and the ADA, respectively, solely under
the ADA.” Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004) (citing

1

Although Plaintiff attempted to dismiss the claims against Talbott, under Rule 41 of the Federal Rules of Civil
Procedure, once responsive pleadings to a complaint have been served, a plaintiff may not dismiss a party without a
stipulation of dismissal signed by all parties who have appeared or by court order at a plaintiff’s request.

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Plant v. Morton Int’l, Inc., 212 F.3d 929, 938–39 (6th Cir. 2000)); see also Rosebrough v.
Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012) (citing City of Columbus Civ. Serv.
Comm’n v. McGlone, 82 Ohio St.3d 569, 573, 697 N.E.2d 204 (1998)).
The prima facie case for a discrimination claim under the ADAAA where the Plaintiff
presents no evidence of direct discrimination is: (1) the plaintiff is disabled; (2) the plaintiff is
otherwise qualified for the position, with or without reasonable accommodation; (3) the plaintiff
“suffered an adverse employment decision;” (4) “the employer knew or had reason to know of
the plaintiff’s disability;” and (5) “the position remained open while the employer sought other
applicants or the disabled individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253, 259
(6th Cir. 2011) (quoting Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir.
2007)).
Ohio Health argues that Plaintiff cannot meet the prima facie for disability discrimination
because she was not actually disabled. Under the ADAAA:
The term “disability” means, with respect to an individual—
(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)).
42 U.S.C. § 12102(1).
Plaintiff argues that she has provided sufficient evidence to show that she meets the
definition of disability because she is both substantially limited in a major life activity by her
impairments and that she was regarded as having such an impairment. The Court will address
each below.

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1.

Plaintiff was not Substantially Limited in a Major Life Activity

Defendants argue that Plaintiff is not disabled under 42 U.S.C. § 12102(1)(A) for three
reasons: (1) she testified that she was not disabled; (2) her physician released her to full duty
prior to her offer being rescinded; and (3) Plaintiff has not identified how any of the alleged
conditions actually “substantially limit[] her from one or more major life activities.” (Doc. 56,
Reply at 3 (citations omitted)).
The Court first addresses Plaintiff’s deposition testimony in which she twice stated that
she did not believe was not disabled. (See Doc. 54-1, Nichols Dep. at 103, 114). In the first
instance, Plaintiff’s answer was in response to a question about why she offered to go to Ohio
Health and show her abilities; she stated:
To go back over, to drive down -- up to Columbus, to go back over to Employee
Health, because I assumed that would be the place that you would show a nurse or
somebody my ability . . . I’m not disabled . . . I have pain sometimes on my
knees; and that I can do all of the things that I listed that I couldn’t do on a -- on
the job, that I can indeed do them but just need, you know, something to hang on
to just to get back up.
(Id. at 103). In a second instance, Plaintiff had the following exchange with Ohio Health’s
counsel over objection from Plaintiff’s counsel that it called for a legal conclusion:
Q: I understand you’ve said that you believe OhioHealth has regarded you as
disabled for a number of conditions. Do you, yourself, believe you have a
disability?
A. No.
(Id. at 114). Plaintiff also stated that at the time of her phone calls with Miller, she did not have
limitations imposed by a physician. (Id. at 79).
The Court agrees with Plaintiff that Plaintiff’s deposition testimony does not conclusively
establish that Plaintiff is not disabled. However, that the testimony is not conclusive does not
mean that Plaintiff’s testimony is irrelevant. See Haley v. Cmty. Mercy Health Partners, No.

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3:11-CV-232, 2013 WL 322493, at *11 (S.D. Ohio Jan. 28, 2013) (Rice, J.) (holding that the
plaintiff’s statement that she was not disabled was “not particularly probative of the
determination of whether she is disabled under the ADA, which is a legal definition quite distinct
from the colloquial meaning of ‘disabled.’”); Young v. Dayton Power & Light Co., No. 1:11-CV119, 2012 WL 1680100, at *7 (S.D. Ohio May 14, 2012) (Black, J.) (“Based on Young’s
admission that he is not disabled was never disabled, and based on Young’s failure to evidence
his disability, the Court concludes that Young is not disabled.”); Thompson v. Chase Bankcard
Servs., Inc., 737 F. Supp. 2d 860, 881 (S.D. Ohio 2010) (Holschuh, J.) (finding a plaintiff not
disabled where, among other things, the plaintiff explained that “she has never considered herself
to be handicapped and that she has not restricted her job search because of her condition.”). In
fact, even the case cited by Plaintiff later found that even though plaintiff’s testimony that she
was not disabled was not dispositive, the plaintiff still failed to show that “she was actually
disabled under the ADA.” Wiseman v. Convention Ctr. Auth. of the Metro. Gov’t of Nashville
and Davidson Cty., No. 3:14 C 01911, 2016 WL 54922, at *11–12 (M.D. TN Jan. 5, 2016).
Defendant’s next two contentions: (1) that Plaintiff’s physician released her to full duty
prior to the offer being rescinded; and (2) that Plaintiff has not identified how any of the alleged
conditions actually “substantially limit[] her from one or more major life activities” are
essentially two attacks at the same issue and will be addressed as a comprehensive review of
whether Plaintiff’s alleged conditions meet the legal definition for a disability. Plaintiff argues
she is disabled under the Act because she suffers from numerous conditions which have been
deemed to be disabilities by other courts or by the federal regulations interpreting the ADAAA.
Further, Plaintiff claims “that she experienced pain when she kneeled and used ‘something to

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han[g] on to just to get back up.’” (Doc. 50, Mem. Opp. at 14 (quoting Doc. 54-1, Nichols Dep.
at 103)).
Plaintiff cautions the Court that the regulations implementing the ADAAA are intended
to be read “broadly in favor of expansive coverage,” and the term “‘[s]ubstantially limits’ is not
meant to be a demanding standard.” 20 C.F.R. 1630.2(j)(1)(i). “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.

Nonetheless, not every impairment will

constitute a disability within the meaning of this section.” Id. at § 1630.2(j)(1)(ii). Last, the
regulations note that “[a]n 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.” Id. Regarding major life activities, the regulations state,
“the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability.”
20 C.F.R. 1630.2(i)(2). Included in a list of major life activities are the following relevant
activities: walking, standing, sitting, reaching, lifting, bending, and working.

Id. at

§ 1630(i)(1)(i). However, “[a]s other district courts have noted, the ADAAA left untouched the
plaintiff’s burden of proof; he still has to prove he has a disability.” Taylor v. Specialty Rests.
Corp., No. 2:12-CV-44, 2014 WL 4922942, at *5 (S.D. Ohio Sept. 30, 2014) (Sargus, J.)
(internal citations and quotations omitted).
The Court agrees with Plaintiff that Dr. Barker’s return to work without restrictions is not
dispositive of whether or not she has a disability, but it is a significant blow to her claim that the
knee injury substantially limited a major life activity. Plaintiff’s memorandum in opposition
argues that “[b]ecause Ms. Nichols had degenerative arthritis in her knee, she would continue to
experience pain despite the surgery to repair the meniscus tear. Even if Ms. Nichols did not have

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degenerative arthritis, it would not be uncommon or unusual for her, or any other individual, to
experience limitations after being released by her physician.” (Doc. 50, Mem. Opp. at 14). But
neither of these points provides any evidence that Plaintiff actually suffered a substantial
limitation at the time of Ohio Health’s decision to rescind her offer. That Plaintiff “would
continue to experience pain” and that it would not be uncommon to have limitations does not
mean that she actually had limitations. Plaintiff’s memorandum in opposition states that Plaintiff
experienced trouble sleeping, pain most all day, and that walking or using stars was not possible.
However, each of these symptoms predated Plaintiff’s surgery to repair her knee and Ohio
Health’s decision to rescind her offer.
Plaintiff next points to numerous medical conditions that she alleges qualify as
disabilities under the ADAA such as her asthma, high blood pressure, anxiety, severe depression,
sleep apnea, acid reflux disease, high cholesterol, high body mass index, and allergies. Although
other courts or the regulations do mention some of Plaintiff’s afflictions as potentially causing
disabilities, “[t]he determination of whether an impairment substantially limits a major life
activity requires an individualized assessment.”

29 C.F.R. § 1630.2(j)(1)(iv).

Plaintiff’s

Memorandum in Opposition does not explain how any of the named medical conditions actually
affect her life as required by the regulations.

Further, although Plaintiff testified that she

suffered from depression and anxiety, the regulations identify “major depressive disorder” as a
disability, not just any depressive disorder. 29 C.F.R. § 1630.2(j)(3)(iii). Accordingly, Plaintiff
has not presented any evidence that her other noted medical conditions had any effect on her
major life activities.
Plaintiff’s post-surgery limitations identified in the Memorandum in Opposition are that
she could not stoop or work standing on her knees because of pain. However, in her deposition,

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Plaintiff stated that “‘[s]tooping’ means kind of a squat to the floor,” and then immediately stated
that squatting to the floor did not cause her pain at the time Ohio Health rescinded her offer.
(Doc. 54-1, Pl.’s Dep. at 60). Plaintiff’s description of standing on her knees is “in an upright
position on my knees,” and that “I just have poor balance . . . if I go down to the floor, I usually
hang on to something.” (Id. at 56, 60). Although Plaintiff’s subjective view of her disability is
not controlling, her admission that stooping did not cause her pain is highly prejudicial to her
claim that her knee injury substantially interfered with her ability to stoop. Further, the Court
does not find working while standing on your knees to be a major life activity. In her deposition
testimony, Plaintiff also stated that she offered to go to Ohio Health to show “I can do all of the
things that I listed that I couldn’t do on a -- on the job, that I can indeed do them but just need,
you know, something to hang on to just to get back up.” (Id. at 103). Further, that her doctor
released her without restrictions and that she never sought medical help for her knee between the
surgery and the events in this lawsuit is evidence that her knee injury did not substantially limit a
major life activity. See Shoemaker v. ConAgra Foods, Inc., 219 F. Supp. 3d 719, 733 (E.D.
Tenn. 2016) (finding plaintiff not substantially limited where she performed the job and had no
working or lifting restrictions). Finally, Plaintiff makes no argument regarding how her alleged
limitations compare to the general population as required by 29 C.F.R. § 1630.2(j)(1)(ii).
Accordingly, the Court finds that Plaintiff has presented insufficient evidence for a jury to decide
that Plaintiff was disabled at the time of the Health Assessment and the rescission of the offer.
2.

Plaintiff was not Regarded as Disabled

Regardless of the existence of a physical disability, Plaintiff also argues Ohio Health
regarded her as disabled when it made the decision to rescind her offer. Plaintiff argues that
Ohio Health’s referral of Plaintiff to Miller, a workplace accommodation specialist, made clear

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that Ohio Health perceived Plaintiff as disabled. Ohio Health argues that Plaintiff was not
regarded as disabled because Ohio Health received her return to work without restrictions and
that referral to an accommodation specialist alone is insufficient to carry Plaintiff’s burden of
proof.
Under the ADAAA, a plaintiff will be regarded as disabled “if the individual establishes
that he or she has been subjected to an action prohibited under the Act 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.”

42 U.S.C. § 12102(3)(A).

The regulations expound on this

definition: “Being regarded as having [a disability] . . . means that the individual has been
subjected to an action prohibited by the ADA as amended because of an actual or perceived
impairment that is not both ‘transitory and minor.’” 29 C.F.R. 1630.2(g)(1)(iii). The “regarded
as” test thus has both factual components and a causation component. Factually, a plaintiff must
show that employer actually perceived that the plaintiff had a physical or mental impairment and
that the employer subjected the plaintiff to a prohibited action. Second, a plaintiff must show
that the perceived impairment was the but-for cause of the prohibited action. Banaszak v. Ten
Sixteen Recovery Network, No. 12-12433, 2013 WL 2623882, at *5 (E.D. Mich. June 11, 2013).
The regulations confusingly state:
Establishing that an individual is “regarded as having such an impairment” does
not, by itself, establish liability. Liability is established under title I of the ADA
only when an individual proves that a covered entity discriminated on the basis of
disability within the meaning of section 102 of the ADA.
29 C.F.R. § 1630.2(l)(3). This is confusing because in order to establish that an individual is
“regarded as having an impairment,” the statute already requires that the person has been
subjected to an action prohibited under the ADAAA. It is difficult to imagine many situations in
which a covered entity believed a person had an impairment and subjected the person to a

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prohibited action under the ADAAA, but did not discriminate against the person on the basis of
disability under the ADAAA.

One possible example is an improper medical examination

because “‘plaintiffs need not prove that they are qualified individuals with a disability in order to
bring claims challenging the scope of medical examinations under the ADA.’” Taylor v. Health,
675 F. App’x 676, 678 (9th Cir. 2017) (quoting Fredenburg v. Contra Costa Cty. Dep’t of
Health, 172 F.3d 1176, 1182 (9th Cir. 1999)).
The Court finds that Plaintiff has not presented sufficient evidence to survive summary
judgment at this stage for a “regarded as” claim. Plaintiff provides evidence that Ohio Health
was aware of her past knee injury from her health assessment, that Cattrell adjusted her health
assessment to say that she could not kneel, that Cattrell referred her to an accommodations
specialist to see if Plaintiff needed an accommodation, that Plaintiff and Miller had multiple
conversations regarding her injuries, and that Miller testified that Plaintiff asked for
accommodations. Miller also testified that she told Holland of Plaintiff’s alleged suggested
accommodations. (Doc. 46-2, Miller Dep. at 56–58).
Although this evidence certainly suggests that Ohio Health knew of a possible
impairment, the Court agrees with Defendant that receipt of a doctor’s report showing no
restrictions has a preclusive effect on a regarded-as claim. See Gleason v. Food City 654, No.
3:13-CV-712, 2015 WL 1815686, at *6 (E.D. Tenn. Apr. 22, 2015) (“The fact that Gleason had
been cleared to work without restriction by Dr. Brown precludes any finding that Food City
‘regarded’ Gleason as disabled.”); see also Jennings v. Monroe Cty., No. 13-CV-13560, 2014
WL 6675277, at *11 (E.D. Mich. Nov. 25, 2014), aff’d sub nom. Jennings v. Cty. of Monroe, 630
F. App’x 547 (6th Cir. 2015) (finding no jury could find that defendant regarded plaintiff as
claim disabled where doctors had cleared the plaintiff to return with no restrictions and the

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plaintiff had repeatedly asserted he could perform his job). After informing Ohio Health that she
had restrictions, Plaintiff informed Cattrell, “I can do all of these things, it’s just with the recent
surgery to my knee, it’s a little bit more painful” and then asked Miller if she could come to Ohio
Health to “demonstrate for somebody in authority that I could do all of those things.” (Doc. 541, Nichols Dep. at 57, 102).

Policy considerations also suggest that finding Ohio Health

regarded Plaintiff as disabled because Ohio Health referred Plaintiff to Miller would make
employers less likely to engage with an employee or potential employee regarding possible
restrictions. See Price v. Mount Sinai Hosp., 458 F. App’x 49, 52 (2d Cir. 2012) (quoting
Kramer v. Hickey–Freeman, Inc., 142 F.Supp.2d 555, 560 (S.D.N.Y.2001)) (“Moreover, as
courts have convincingly observed, accepting [plaintiff]’s argument here would ‘discourage
employers from taking . . . preliminary or temporary steps . . . for fear that showing concern for
an employee’s alleged medical problems could draw them into court facing an ADA claim based
on a perceived disability.’”). The Court finds that Plaintiff’s repeated assertions that she could
do the things she originally said she could not do and Ohio Health’s receipt of her doctor’s note
returning her to work with no restrictions forecloses Plaintiff’s “regarded as” claim. Plaintiff
cannot satisfy the first prong of her disability discrimination claim and therefore summary
judgment as to Plaintiff’s disability discrimination claims under Ohio and federal law is
GRANTED.
B.

Failure to Accommodate and Aiding and Abetting
Plaintiff’s claims for failure to accommodate and aiding and abetting are dependent on

the Court’s findings regarding her disability.

As Plaintiff notes regarding the failure to

accommodate claim, “[i]f . . . this Court determines that Ms. Nichols is not disabled, then she is
not entitled to an accommodation under a ‘perceived as’ disability claim.” (Doc. 50, Mem. Opp.
at 25 (quoting Wells v. Cincinnati Children’s Hos. Med. Ctr., 860 F. Supp. 2d 469, 483 (S.D.
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Ohio 2012) (Beckwith, J.))).

The Court agrees that Plaintiff cannot support a failure to

accommodate claim because she is not disabled under the ADAAA. Summary judgment as to
Plaintiff’s failure to accommodate claim is GRANTED.
Similarly, Plaintiff’s aiding and abetting claims under Ohio Revised Code § 4112.02(J)
depend on a finding that Plaintiff was subject to an act that was an unlawful discriminatory
practice. Plaintiff explained that the claims against the individual defendants were for aiding and
abetting discrimination. She alleged that Cattrell “facilitated discrimination against Ms. Nichols
by changing the limitations that Ms. Nichols identified on her Health History form,” that Miller
“suggested completely unreasonable accommodations” and that Holland made the final decision
to rescind the offer. (Doc. 50, Mem. Opp. at 35–36). Because the Court has found that no
unlawful discriminatory practice occurred, there is no liability under Ohio Revised Code
§ 4112.02(J) for Cattrell, Miller, or Holland. Summary judgment as to the aiding and abetting
claims is GRANTED.
C.

Illegal Health Assessment
The last claim the Court must address is Plaintiff’s contention that the health assessment

itself was unlawful under 42 U.S.C. § 12112(d) and Ohio Revised Code § 4112.02(A). Under 42
U.S.C. § 12112(d)(2), an employer cannot conduct a medical examinations before
preemployment to determine if a person has a disability or the extent of the disability. However,
under 42 U.S.C. § 12112(d)(3), an employer “may require a medical examination after an offer
of employment has been made to a job applicant and prior to the commencement of the
employment duties of such applicant.” If the employer makes the offer conditional upon the
results of the medical examination, three requirements are necessary: (1) all entering employees
are subject to the examination; (2) the information is treated as a confidential medical record;

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and (3) that the information obtained is not used to discriminate on the basis of disability. Id. at
§ 12112(d)(3)(B).
At issue in this case is whether the Health Assessment was performed preemployment or
between an offer of employment and the commencement of employment duties. Defendant also
argues that this claim was not brought in the Complaint and thus, should not be considered.
There is no dispute the health assessment was a medical examination under the ADAAA or that
Ohio Health satisfied the ADAAA’s requirements for a post-offer medical examination. 2
The Court agrees with Defendants that Plaintiff failed to plead a claim for an improper
medical examination under 42 U.S.C. § 12112(d)(2). The Amended Complaint specifically
states that Ohio Health “required Plaintiff to undergo a medical examination after offering her
the Senior Radiology Technologist position.” (Doc. 3, Am. Compl. at ¶ 44). The Amended
Complaint further states that Ohio Health then used the medical examination to discriminate
against her on the basis of her alleged disabilities. (Id. at ¶¶ 44–46). There is no mention of the
health assessment being improper because it was preemployment and the only citation is to 42
U.S.C. § 12112(d)(3)(C), the section discussing post-offer medical examinations. Had Plaintiff
made this claim in the Amended Complaint then perhaps Defendant could have prepared a
defense “that it could not reasonably have completed the background checks and so notified the
appellants before initiating the medical examination process.” Leonel v. Am. Airlines, Inc., 400
F.3d 702, 710 (9th Cir. 2005), opinion amended on denial of reh’g, No. 03-15890, 2005 WL
976985 (9th Cir. Apr. 28, 2005). Summary judgment as to Plaintiff’s claim under 42 U.S.C.
§ 1211(d)(3) is GRANTED.

2

Plaintiff argues the third criteria—that the information obtained is not used to discriminate on the basis of
disability—was not met here, but the Court has already determined that no discrimination under the Act occurred.

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IV.

CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment is GRANTED.
The Clerk shall REMOVE Document 31 from the Court’s pending motions list. The Clerk shall
enter final judgment in favor of Defendants and REMOVE this case from the Court’s pending
cases list.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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