United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge Vascura
OPINION AND ORDER
C. SMITH, JUDGE
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.
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offer was rescinded before she ever began working for Ohio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.
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. (Doc. 48-1, Pl.'s Application at PAGEID#
742-43). While waiting to hear about her application,
Plaintiff contacted a former coworker, Dee Goodwin, who
worked for Ohio Health at the time. (Doc. 54-1, 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.).
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. 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.).
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. 54-3, 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.).
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 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.).
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).
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 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).
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).
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 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.
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.
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 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
STANDARD OF REVIEW
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.
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 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.”
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 ...