United States District Court, S.D. Ohio, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED
COMPLAINT (Doc. 11) and DENYING AS MOOT
DEFENDANTS' MOTION TO DISMISS (Doc. 9)
TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE.
civil case is before the Court on Defendants' motion to
dismiss the Complaint (Doc. 9),  Plaintiff's motion for
leave to file an amended complaint (Doc. 11), and the
parties' responsive memoranda (Docs. 10, 12, 13).
FACTS AS ALLEGED BY PLAINTIFF
July 30, 2007 to April 14, 2015, Atlas Roofing employed
Plaintiff as a line worker in the felt mill plant at the
Franklin Facility. (Doc. 11-1 at ¶ 7). Throughout that
period, Atlas Roofing considered Plaintiff to be a
conscientious and diligent employee who satisfactorily
performed the duties of the general laborer position.
twenty years prior to his employment with Atlas Roofing,
Plaintiff was beaten during a robbery and suffered a
herniated disc and fractured vertebrae. (Doc. 11-1 at ¶
8). This injury has plagued him ever since, rendering him, at
times, unable to straighten his back or stand without
enduring severe pain. (Id.)
early 2014, this injury flared up again, and on February 16,
2014, Plaintiff's treating physician, Kali Hollingsworth,
MD, took Plaintiff off work in anticipation of back surgery.
(Doc. 11-1 at ¶ 9). On April 3, 2014, Plaintiff had back
surgery. (Id.) During this period, Plaintiff was on
a short-term disability under Atlas Roofing's medical
insurance. (Id.) The company also required Plaintiff
to use his available leave under the Family Medical Leave
he was recovering, Holian tried to convince Plaintiff to
resign and apply for social security disability benefits,
telling him that he would never work for Atlas Roofing again.
(Doc. 11-1 at ¶ 10). Holian told Plaintiff that, with
the condition of his back, he was a liability to the company.
(Id.) Atlas Roofing had just completed 750, 000
hours without any lost time, and if the company allowed
Plaintiff to return and he reinjured his back, it would ruin
that safety record. (Id.) Holian even went so far as
to write a letter to the Social Security Office in Franklin,
Ohio to assist Plaintiff in obtaining social security
disability benefits. (Id.)
28, 2014, Dr. Hollingsworth released Plaintiff to return to
work with certain restrictions, including a prohibition on
lifting more than 10 pounds. (Doc. 11-1 at ¶ 11).
Defendant Holian refused to accommodate these restrictions,
telling Plaintiff that Atlas Roofing did not offer
“light-duty” work to its employees.
(Id.) Plaintiff therefore went back to Dr.
Hollingsworth, who reluctantly released Plaintiff to return
to work without restrictions. (Id.)
August 6, 2014, Plaintiff returned to work as a full-time
line worker. (Doc. 11-1 at ¶ 12). He continued to attend
physical therapy and receive medical treatment from his
surgeon, sometimes during work hours. (Id.) Holian
again refused to accommodate these medical treatments,
assessing Plaintiff 0.5 points under its Absenteeism Policy
every time he missed work to attend therapy or receive
August 18, 2014, while attempting to lift a 50 pound bag of
titanium oxide, the bag broke, forcing Plaintiff to the
concrete floor and exacerbating the injury to his back. (Doc.
11-1 at ¶ 13). Plaintiff, however, did not file a
worker's compensation claim for fear of retaliation.
the week, Plaintiff continued to work his regular shift
despite his back pain. (Doc. 11-1 at ¶ 14). On August
25, 2014, he was scheduled to work a 12-hour shift, from 7:00
a.m. to 7:00 p.m.; he also had scheduled a physical therapy
session for 3:00 p.m. that same day, hoping the therapy would
help alleviate his back pain. (Id.) Although he had
informed management of his intentions two days earlier, and
had arranged for coworkers to cover his shift, Kidder refused
to allow him to leave. (Id.) When Plaintiff sought
treatment anyway, Kidder charged him with walking off his
shift and suspended him for three days without pay.
Plaintiff returned from suspension, members of his workshift,
including Kidder, the Production Supervisor, and coworkers
Elvis Angel, Jake Hoskins, Tony Whitt, and Daryl Roberts,
began to taunt Plaintiff for missing work because of his
back, claiming that he was shirking work and jeopardizing the
company's safety record. (Doc. 11-1 at ¶ 15).
Although Plaintiff complained to Holian about this
harassment, it continued unabated during the remainder of his
employment with Atlas Roofing. (Id.)
in November, 2014, Plaintiff sought treatment from Stephen
Pledger, M.D., a back surgeon, who eventually scheduled
Plaintiff for additional back surgery on March 30, 2015.
(Doc. 11-1 at ¶ 16). Holian, however, refused to
accommodate Plaintiff by allowing time-off to begin the
protocol leading up to the scheduled surgery, even after Dr.
Pledger himself contacted Holian to explain the situation.
(Id.) Eventually, Plaintiff had to cancel that
on April 2, 2015, Dr. Hollingsworth again took Plaintiff off
work for one month to rest his back. (Doc. 11-1 at ¶
17). While he was off, Holian again tried to convince
Plaintiff to resign and apply for social security disability
met with Holian on April 13, 2015, at which time Holian again
told him that he would never return to work for Atlas
Roofing, and that his only options were to resign or be
terminated. (Doc. 11-1 at ¶ 18). Holian then prepared a
letter of resignation, on which Plaintiff wrote that he was
being forced to resign. (Id.)
times herein, Plaintiff has been ready, willing and able to
perform the duties of a line worker in the felt paper mill at
the Franklin Facility, with or without accommodation. (Doc.
11-1 at ¶ 19).
subsequently filed a charge with the Equal Employment
Opportunity Commission alleging that Atlas Roofing had
retaliated against him on the basis of disability. (Doc. 11-1
at ¶ 18). On February 2, 2017, the EEOC issued a right
to sue letter. (Id.)
April 15, 2017, Plaintiff filed the Complaint. (Doc. 1). The
Complaint asserts claims against Defendants for disability
discrimination under the Americans with Disabilities Act
(“ADA”) and Ohio Revised Code § 4112.02(A).
August 30, 2017, Defendants filed a motion to dismiss arguing
that the Complaint does not state a plausible claim for
disability discrimination, and, further, that Holian and
Kidder-employees of Atlas Roofing-are not
“employers” and cannot ...