Court of Appeals of Ohio, Seventh District, Carroll
Appeal from Court of Common Pleas of Columbiana County, Ohio
Case No. 16 CVF 28390
Appellant/Petitioner Attorney Gust Callas Attorney Whitney L.
Appellees/Respondents Attorney David A. Oppenheimer Ass't
Gene Donofrio Hon. Cheryl L. Waite Hon. Carol Ann Robb,
Appellant, Colfor Manufacturing, Inc., appeals from a Carroll
County Common Pleas Court judgment approving the final order
of appellee, the Ohio Civil Rights Commission, finding that
Colfor engaged in disability discrimination in violation of
Ohio's Civil Rights Act when it failed to make a
reasonable accommodation for appellee, Jason Ott.
Colfor is in the business of forging steel parts for the
automotive industry. Forging involves taking pieces of steel,
known as "billets, " and putting them through
presses that forge them into automotive parts. Presses can
either be "hot" or "cold." Hot presses
heat the billets to such a temperature that they must be
handled with tongs. Cold presses also heat the billets but to
a lower temperature where they can be handled with gloved
hands. Presses are run by forge press operators (FPOs).
In 2010, Colfor had plants in Malvern, Salem, and Minerva.
Jason Ott began working at the Malvern plant in 1994 as a
temporary employee and later became a full-time employee. In
2005, Ott bid into an FPO position at the Malvern plant. In
2006, Ott bid into a "CNC" machine operator
position at the Salem plant. In 2007, Ott bid into an FPO
position at the Salem plant.
In 2009, Ott began to experience painful swelling in his
right arm. He sought treatment with his doctor, who
recommended that Ott only work 40 hours per week and not work
hot jobs for two months. Colfor honored Ott's
On April 1, 2010, Ott experienced stroke-like symptoms while
Later in April 2010, Colfor announced that it would be
ceasing operations at the Salem plant. Colfor negotiated an
agreement with Ott's union regarding the closure of the
Salem plant and the jobs that would be moved from Salem to
Malvern and Minerva. Per the agreement, union members would
be able to bid on available positions at Malvern and Minerva.
Shortly thereafter, Ott was diagnosed with multiple sclerosis
and was off from work for a period of time. Ott treated with
neurologist Dr. Andrew Stalker, who recommended that due to
Ott's heat sensitivity he should not work "hot
jobs" and should not work more than 40 hours per week.
On July 26, 2010, Colfor received a letter from Dr. Stalker
containing these restrictions. Also on July 26, Dr. Michael
Marvin, at Colfor's request, performed a fitness for duty
exam on Ott to determine if Ott was able to return to work.
Dr. Marvin agreed that Ott could return to work with
restrictions that he not work around the hot presses and not
work more than 40 hours per week.
Ott returned to work at Salem on August 2, 2010. Ott's
foreman assigned him to working only cold presses in
compliance with his medical restriction.
On September 14, 2010, Colfor posted a Notice of Job Opening
for ten FPOs needed at the Malvern plant. The next day, Ott
submitted a bid for the positions. Per the union contract,
positions were to be awarded on the basis of seniority. On
September 24, 2010, Tim Moran, Colfor's human resources
director, posted a list of successful bidders for the FPO
positions at Malvern. Ott was not one of them. Among the
successful bidders were nine employees from Salem with less
seniority than Ott.
Ott spoke to his foreman who in turn spoke to Moran. On
October 1, 2010, Ott received a memo from Moran stating that
he was not awarded one of the FPO positions at Malvern
because of his restriction of not being able to work hot
jobs. Moran's memo further stated the restriction would
prevent Colfor from assigning work effectively and
efficiently through job rotation.
On October 21, 2010, Ott, accompanied by his union president,
had a meeting with Moran. Ott brought a Request for
Accommodation letter, but Moran would not accept it without a
signed release to discuss Ott's medical information. Ott
subsequently mailed Moran the Request for Accommodation
letter, which Moran received on November 1, 2010.
On November 2, 2010, Colfor posted notices for two CNC
machine operator positions and eight FPO positions at
Malvern. Ott submitted bids for both positions. Ott was
denied the FPO position but was awarded the CNC machine
operator position, which had a lower hourly wage.
On November 12, 2010, Moran sent Ott a letter stating that
since Ott's doctor had not viewed the Malvern plant, the
doctor would need to explain what a "hot job" meant
and that Moran was available to meet with the doctor
regarding Ott's restrictions.
Ott then retained counsel. Ott's counsel sent Moran four
letters between December 10, 2010 and January 13, 2011,
containing a signed medical release, a report from Dr.
Stalker, and Dr. Stalker's recommendation that Ott not
work in environments where the temperature exceeded 90
degrees. Moran did not respond to any of these letters.
On March 2, 2011, Ott filed a discrimination charge with the
Ohio Civil Rights Commission (Commission). Ott alleged that
Colfor denied him an FPO position due to his disability. The
Commission conducted a preliminary investigation, which
resulted in a probable cause finding. The parties attempted
to conciliate the allegation, but were unsuccessful. The
Commission then filed a complaint against Colfor in February
The matter proceeded to a five-day hearing before an
administrative law judge (ALJ) that concluded on June 23,
2014. The ALJ subsequently issued her report in July 2015,
recommending that the Commission find that Colfor violated
Ohio's civil rights laws. Colfor filed objections, which
were heard before the Commission. The Commission rejected the
objections and adopted the ALJ's report. It issued a
final order requiring Colfor to cease its unlawful conduct,
to provide appropriate relief to Ott, to properly train its
employees, and to adopt proper antidiscrimination policies.
Colfor filed an appeal in the trial court. The trial court
reviewed the record and the parties' briefs. It found
reliable, probative, and substantial evidence supported the
Commission's conclusion that Colfor violated the civil
The trial court noted that Colfor did not dispute that
Ott's multiple sclerosis is a disability. It found that
Colfor was notified that Ott had a medical condition that
required the accommodations of no hot jobs and no more than
40 hours per week. The court noted that Colfor honored these
accommodations at the Salem plant. The court further found
that Ott met the FPO qualifications as was evidenced by Ott
performing the job in Salem. And it pointed to Moran's
testimony that but for Ott's restriction of no hot jobs,
he would have received the FPO job in Malvern. Based on these
findings, the court determined that the Commission made a
prima facie showing of discrimination.
The trial court went on to find there was reliable,
probative, and substantial evidence that Colfor was
responsible for failing to properly engage in the interactive
process. It noted that Ott met his obligation under the law
when he notified Colfor of his condition and need for an
accommodation. When Ott bid on the FPO position at Malvern,
the court found Moran had the obligation to either honor
Ott's accommodation or initiate the interactive process
with Ott to see what could be done. The court found that
Moran did neither. It found that Moran assumed that all
employees transferring from Salem were going to be required
to work hot jobs. The court further found that Ott attempted
to communicate with Moran about his condition and what jobs
he could perform but Moran refused to take any responsibility
for determining if Colfor could accommodate him.
The trial court next found there was reliable, probative, and
substantial evidence that Colfor could have accommodated Ott.
It noted that Ott had been successfully performing the FPO
job in Salem with the restrictions set by his doctors.
Additionally, the court pointed to testimony that Salem
employees who received the FPO positions at Malvern did not
all have to work on hot presses at Malvern.
Finally, the trial court found Colfor did not substantiate
its "direct threat" defense. The court noted that
beginning in November 2010, Ott worked as a CNC machine
operator at Malvern. It noted that Ott continued to work
there through the hearing date and there was no evidence that
he suffered any injury or caused Colfor any liability. The
court also pointed to evidence that the temperatures Ott was
exposed to as a CNC machine ...