Opinion
Case No. 3:02CV7505
July 23, 2003
ORDER
Plaintiff James White brings this suit against defendant Coyne International Enterprises Corporation ("Coyne") claiming disability discrimination in violation of Ohio Revised Code §§ 4112.01 et seq. This court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Coyne is an industrial laundry company that rents and launders garments. Coyne's Toledo, Ohio, facility has two terminals located in South Holland, Illinois, and Indianapolis, Indiana. Coyne's Toledo facility is responsible for picking up loads of dirty laundry from the terminals and returning loads of clean laundry.
Coyne hired plaintiff James White in 1998, and he soon became a transport driver between South Holland and Toledo.
On October 24, 2001, Coyne terminated plaintiff. According to plaintiff, while he was waiting for his truck to be loaded, he argued with Coyne's Toledo general manager, Ray Lampley, regarding the overtime pay policy. After the argument, plaintiff entered his truck to depart to the Illinois terminal. Plaintiff then felt dizzy and his vision became blurred. Plaintiff recognized this as the symptoms of a diabetic episode.
Plaintiff wanted to be paid at a higher hourly rate for "wait time" — the time it took for his truck to be loaded.
Plaintiff claims he returned to Lampley's office and informed Lampley that he was having "sugar" problems and needed to go home. Lampley accused plaintiff of lying and told him that if he left the premises, he would be fired. Plaintiff thereafter telephoned his union representative, who advised him to take the remainder of the day off. When plaintiff left, Lampley terminated him.
In September, 2002, plaintiff filed this lawsuit, claiming:
(1) unlawful consideration of Plaintiff's chronic physical impairment and his need for treatment, and/or (2) Defendant's refusal to accommodate Plaintiff by allowing him occasional unobstructed use of sick time, in derogation and violation of R.C. 4112.02(A).
Complt. at ¶ 9.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION
Under Ohio law, it is unlawful "for an employer, because of the . . . handicap, . . . of any person, to discharge without just cause, to refuse to hire, or to otherwise discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." O.R.C. § 4112. 02(A).
Plaintiff claims defendant terminated him because of his disability and that defendant unlawfully refused to accommodate his disability. Both of plaintiff's claims fail as a matter of law.
I. Disability Discrimination A. Prima Facie Case
To establish a prima facie case of disability discrimination under Ohio law, the person seeking relief must demonstrate "(1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question." City of Columbus Civ. Serv. Comm'n v. McGlone, 82 Ohio St.3d 569, 571 (1998) (citingHazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281 (1986)).
The current statutory term is "disability," but before 2000 the term was "handicap."
1. Whether Plaintiff is Disabled
Under Ohio Revised Code § 4112.01(A) (13), "disability" means:
a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.
Plaintiff claims that he has a disability and that he has a record of a disability because his diabetes causes "intermittent episodes of hyper or hypoglycemia." Pl.'s Br. at 7. Because of these "chronic episodic conditions," plaintiff claims he is substantially limited in the major life activities of working and "being able to function consistently in stressful circumstances." Id. at 13.
The determination of whether a particular impairment constitutes a disability must be made on a case-by-case basis. No impairment constitutes a disability per se, but rather an impairment is a disability if it limits the major life activities of the particular individual who is impaired. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999).
a. Substantially Limited in the Major Life Activity of Working
Chapter 4112 does not define "substantially limits." The Supreme Court of Ohio, however, has urged courts to look to the American with Disabilities Act, 42 U.S.C. § 12112, for guidance interpreting Ohio's prohibition on disability discrimination. City of Columbus, 82 Ohio St.3d at 573 ("The Americans with Disabilities Act (`ADA') is similar to the Ohio handicap discrimination law. . . . We can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law.").Under the Code of Federal of Regulations, "substantially limits a major life activity" means a person is "[u]nable to perform a particular major life activity that the average person in the general population can perform," or the person is "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1) (i), (ii).
The following factors are considered in determining whether an individual is substantially limited in a major life activity:
(i) the nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.29 C.F.R. § 1630.2(j)(2)(i)-(iii).
In the Sixth Circuit, a physical condition or limitation is not considered a substantial impairment or handicap "unless it places an individual so far outside the norm as to make it impossible or unusually difficult for that individual to perform work that could be done by most other people." Szalay v. Yellow Freight Sys. Inc., 998 F. Supp. 799, 802 (N.D. Ohio 1996) (internal citations omitted).
In this case, no reasonable jury could find that plaintiff's "episodic conditions" of "sudden-onset blood sugar spikes up or down" were "permanent or long-term." 29 C.F.R. § 1630.2(j)(2) (iii). One could imagine ways in which such episodes, if severe and/or frequent enough, might impose substantial limitations on the person who experiences them. But there is no evidence that plaintiff's episodes have this effect. In the absence of such evidence, I cannot conclude that such moments impose substantial limitations on White's ability to work.
Moreover, when the alleged major life activity is working, special rules apply. See e.g., Pflanz v. City of Cincinnati, 149 Ohio App.3d 743, 756-57 (2002). Under the EEOC regulations,
(i) The term substantially limits means significantly restricted in the ability to perform either 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. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(2).
Plaintiff has not attempted to prove that he is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person." 29 C.F.R. § 1630.2(j)(2). More importantly, in his complaint, plaintiff admits that "[w]hen at work, Plaintiff did not have limitations on the types of work he could perform, such as long-haul driving of a large vehicle and onloading/offloading of heavy cargo." Complt. at ¶ 4. Thus, plaintiff has failed to offer any evidence that he was significantly restricted in performing his job or broad range of jobs as compared to the average person.
Additionally, in Sutton, the Supreme Court stated that a "disability only exists where an impairment `substantially limits' a major life activity, not when it `might,' `could,' or `would' be substantially limiting if mitigating measures were not taken." 527 U.S. at 482. Plaintiff's doctor testified that with proper medication, plaintiff would not be restricted from working, and that the medication used to treat diabetes would not prevent plaintiff from driving a large semi-truck. Fisher Depo. at 19, 21. Plaintiff admits that he failed to consistently take medication for his diabetes or control his diet. It would go against the holding of Sutton to label plaintiff "disabled," even though he did not take available mitigating measures. See e.g., Hein v. All American Plywood Co., Inc., 232 F.3d 482, (6th Cir. 2000) ("Here, it was Hein's voluntary failure to obtain medication, rather than the physical condition of hypertension itself, that was the direct cause of his temporary inability to work. Accordingly, Hein's hypertension does not substantially limit his major life abilities such that he has a claim under either the ADA. . . .").
Finally, even if plaintiff suffers from "chronic episodic conditions," short-term restrictions on major life activities are not disabilities. Likewise, the mere possibility that an episode will occur in the future is not sufficient to establish that plaintiff is substantially limited in the major life activity of working. See e.g., Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996) ("Because plaintiff's kidney condition was temporary, it is not substantially limiting and, therefore, not a disability under the ADA. Further, the mere possibility that a kidney blockage will recur or that further surgery will be needed is not sufficient to establish that her condition is substantially limiting.").
b. Stressful Conditions
Plaintiff claims that "being able to function consistently in stressful circumstances without experiencing uncontrolled blood sugar spikes, blurred vision and dizziness. . . ." is a major life activity. Pl.'s Br. at 13.
The Supreme Court held in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that major life activities constitute tasks central to most people's daily lives. Plaintiff has not provided any case law suggesting that being able to function in stressful circumstances could be a major life activity. Cf. Nordwall v. Sears Roebuck, Co., 2002 U.S. App. LEXIS 18554, at *10 (7th Cir. Sept. 6, 2002) ("From the evidence before us, it would appear that Nordwall is only unable to perform her job because of her diabetes when it becomes highly stressful. The inability to handle a sizeable workload or a stressful workplace environment does not establish a substantial limitation on a plaintiff's ability to work for purposes of the ADA."). Moreover, to impose legally enforceable duties on an employer based on such an amorphous concept would be very problematic.
Thus, because no reasonable juror could find that plaintiff has a "disability" under Ohio's disability discrimination laws, plaintiff's prima facie case fails as a matter of law.
B. Legitimate Non-Discriminatory Reason and Pretext
If plaintiff had established a prima facie case, the burden would then shift to defendant to establish "some legitimate, nondiscriminatory reason" for terminating plaintiff. Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 302 (1996) (citing Plumbers Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 197 (1981)). If defendant offers evidence of a nondiscriminatory reason for terminating plaintiff, the burden of production would shift back to plaintiff to present evidence that defendant's proffered reason was a pretext for impermissible discrimination. Hood, 74 Ohio St.3d at 302 (citing Plumbers Steamfitters, 66 Ohio St.2d at 198).
Defendant offers evidence that plaintiff was terminated for insubordination and a "prolonged, outrageous and insubordinate tirade directed at two supervisors." Def.'s Br. at 18. According to defendant, in the months before plaintiff was terminated, he constantly argued with Coyne management over whether he should be paid for "wait time." On his last day of work, defendant claims that plaintiff became loud and obscene after he received his paycheck. Plaintiff was not calmed by management's attempts to review plaintiff's paycheck and the collective bargaining agreement. Plaintiff allegedly yelled that Coyne had been "fucking him" out of money for years, that he was not going to drive his route, and that he was "fucking quitting." McCorkle Depo. at 36-37. Lampley Aff. at ¶ 8.
At some point during the argument, Lampley informed plaintiff that if he did not get into the truck and drive, he would be terminated for insubordination. Lampley Aff. at ¶ 8. According to defendant, plaintiff got into his truck but returned to Lampley's office informing Lampley that he was sick and going home. Lampley again told plaintiff that if he did not drive his run, he would be terminated. Id. Plaintiff left anyway.
Defendant also offers evidence that plaintiff's insubordination was investigated and reviewed by Coyne management and union representatives, and the termination was affirmed by both.
As stated by the Supreme Court of Ohio in Hood, "[l]egitimate, nondiscriminatory reasons for the action taken by the employer may include, but are not limited to, insubordination on the part of the employee claiming discrimination, . . ." 74 Ohio St.3d at 302. A review of the record regarding the events on October 24, 2001, and plaintiff's disciplinary history demonstrates that defendant has provided a legitimate, non-discriminatory reason for terminating White.
To demonstrate pretext, plaintiff must show by a preponderance of the evidence either "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge." Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (quoting McNabola v. Chicago Transit. Auth., 10 F.3d 501, 512 (7th Cir. 1993)).
Plaintiff has not offered any evidence that defendant's proffered reason falls under any of these factors.
Therefore, even if plaintiff had met his prima facie case, he has not met his burden of proof.
II. Failure to Accommodate
Under Ohio law, an employer must make reasonable accommodation to the disability of an employee, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of the employer's business. O.A.C. § 4112-5-08(E)(1).
In order to succeed on a failure to accommodate claim, plaintiff must show: "(1) that he was disabled; (2) that his employer was aware of the disability; and (3) that he was an otherwise qualified individual with a disability in that he satisfied the prerequisites for the position and could perform the essential functions of the job with or without accommodation." Pflanz v. City of Cincinnati, 149 Ohio App.3d 743, 752 (2002) (citing Shaver v. Wolske Blue, 138 Ohio App.3d 653, 663-64 (2000) (finding that "the McDonnell Douglas prima facie case and burden shifting analysis do not apply in a failure to accommodate case.")).
There is no evidence plaintiff sought an accommodation from defendant. When a plaintiff-employee claims that he would have been capable of performing his job if he had been accommodated, he has the initial burden of having proposed an accommodation and showing that the accommodation is objectively reasonable. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996); see also, Schmidt v. Safeway, Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (noting that an employee cannot "expect the employer to read his mind and know he secretly wanted a particular accommodation"). Where a plaintiff seeks accommodation, "[he] must establish that a `reasonable accommodation is possible, and bears a traditional burden of proof that [he] is qualified for the position with such reasonable accommodation." Monette, 90 F.3d at 1186 n. 12.
Plaintiff argues that his request to use a day's sick leave should be construed as a request for an accommodation. The record demonstrates, however, that he did not request to use sick leave, but instead, unilaterally told Lampley that he was leaving. This cannot be construed as requesting an accommodation.
Nonetheless, even if plaintiff could prove that Coyne was aware of his diabetes and failed to reasonably accommodate it by rejecting plaintiff's request for sick leave, plaintiff does not, as explained above, have a "disability" as it is defined in O.R.C. § 4112.01(A) (13). Therefore, plaintiff's failure to accommodate claim fails as a matter of law.
CONCLUSION
It is, therefore,
Ordered that
Defendant's motion for summary judgment be, and hereby is, granted.
So ordered.