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Colfor Manufacturing, Inc. v. Ohio Civil Rights Commission

Court of Appeals of Ohio, Seventh District, Carroll

December 28, 2017

COLFOR MANUFACTURING, INC., APPELLANT/PETITIONER,
v.
OHIO CIVIL RIGHTS COMMISSION, ET AL., APPELLEES/RESPONDENTS.

         Civil Appeal from Court of Common Pleas of Columbiana County, Ohio Case No. 16 CVF 28390

          For Appellant/Petitioner Attorney Gust Callas Attorney Whitney L. Willits.

          For Appellees/Respondents Attorney David A. Oppenheimer Ass't Attorney General.

          Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol Ann Robb, Judge.

          OPINION

          DONOFRIO, J.

         {¶1} 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.

         {¶2} 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).

         {¶3} 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.

         {¶4} 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 restrictions.

         {¶5} On April 1, 2010, Ott experienced stroke-like symptoms while at work.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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 2012.

         {¶16} 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.

         {¶17} 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 rights laws.

         {¶18} 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.

         {¶19} 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.

         {¶20} 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.

         {¶21} 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 ...


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