United States District Court, S.D. Ohio, Eastern Division
DAVID E. GEARHART, Plaintiff,
E.I. DU PONT DE NEMOURS AND CO., Defendant.
Chelsey M. Vascura Magistrate Judge.
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment. (ECF No. 26.) Plaintiff David E. Gearhart
has filed a Response in Opposition (ECF No. 32), and
Defendant has filed a Reply Brief (ECF No. 35). The matter is
now ripe for a decision.
Statement of the Facts
David E. Gearhart worked for Defendant E.I. DuPont de Nemours
and Co. (“DuPont”) at its Circleville, Ohio,
plant beginning on October 2, 2012, as a Kapton Casting
Operator. (Gearhart Dep. 26, 28-30, ECF No. 22-1). According
to the Complaint, Mr. Gearhart suffers from Sarcoidosis,
cardiovascular disease and chronic spine issues and these
medical conditions substantially limit one or more of his
major life activities of walking, breathing, lifting, and
bending. (Compl. ¶ 4, ECF No. 1) However, during his
deposition, Mr. Gearhart denied being limited in his
activities other than for the months of September through
December 2016. (Gearhart Dep. 195-96, 203-04.)
position as an Operator, Mr. Gearhart's duties included
going into the ovens at the plant and cleaning them.
(Id. at 36-39, Ex. 3, pp. 2-3, Ex. 4.) At the time
of entry and cleaning of the ovens, the temperatures were
usually elevated - temperatures of approximately 140 to 150
degrees Fahrenheit. (Id.) As a result, Operators are
required to wear multiple forms of personal protective
equipment, including fire-retardant Kevlar suits, protective
hoods, respirators and other items that collectively weigh
thirty to thirty-five pounds. (Id.) While wearing
all of that equipment, Operators must get on their hands and
knees, get up and down frequently, and must work slowly to
avoid heat exhaustion. (Id. at 42). In addition to
these physical demands, Kapton Casting employees are actively
moving in and out of the oven throughout their twelve-hour
shifts; some shifts the oven work could be for only thirty
minutes, while for other shifts an Operator could be moving
in and out of the oven for the entire shift. (Id. at
38, 41-43). The nature of this work led to DuPont's
requirement that employees must have medical clearance from
DuPont's plant doctor to work in the Operator position.
(Id. Ex. 3 p. 2, Ex. 4; Mike Dutton Dep. 52, 64-65,
ECF No. 24-1.) Dr. Brent Cale was DuPont's plant doctor
during the relevant time period. (Dutton Dep. 65.)
Gearhart had a triple bypass surgery on May 7, 2014, after
suffering a heart attack. (Gearhart Dep. 70-75.) Following
that surgery, he was on medical leave until mid-September
2014. (Id. at 75-76) Upon his return, Mr. Gearhart
was on light duty and an hours restriction for approximately
four weeks. (Id. at 76-77). On October 21, 2014, Mr.
Gearhart gave Dr. Cale a note from his personal cardiologist
(Dr. Britton Young) releasing Mr. Gearhart to return to work.
(Brent Cale Dep. 58-59, ECF No. 23-1; Gearhart Dep. Ex. 7,
page ID # 261.)
the note from Dr. Young did not mention Mr. Gearhart working
in the hot oven, Dr. Cale refused to approve Mr. Gearhart for
oven work until he got another note from Dr. Young
specifically stating that Mr. Gearhart could safely work in
the oven. (Cale Dep. 61-69). Dr. Cale testified that given
Mr. Gearhart's history, he was not comfortable releasing
Mr. Gearhart for oven work without express approval from his
cardiologist. (Id.) That express approval came on
November 11, 2014, when Mr. Gearhart gave Dr. Cale a note
from Dr. Young stating that he was releasing Mr. Gearhart to
full duty, including oven entry. (Id. at 65-66).
Once he received that note, Dr. Cale released Mr. Gearhart to
return to work without restrictions. (Id.)
2016, Mr. Gearhart was admitted to the hospital due to
medication issues related to his cardiovascular condition.
(Compl. ¶ 11; Gearhart Dep. 90.) At the time, his blood
pressure was elevated, he was having chest pains, and he was
having difficulty pushing things and standing for a long
time. (Gearhart Dep. 92-93.) After this hospital admission,
Mr. Gearhart was off work for five days pursuant to the
instructions of his primary care doctor, Dr. Jaya Thakur.
(Id. at 94, 100-101, Ex. 18, p. 3.) When Dr. Thakur
released Mr. Gearhart to work on July 19, 2016, that release
stated that Mr. Gearhart could only perform “regular
office work.” (Id. at 100-02.) That situation
did not last long because, later in August, Plaintiff had
surgery for a different medical condition (umbilical hernia)
and was subsequently off work for six more weeks.
(Id. at 105-106.)
his hernia surgery, when Mr. Gearhart sought to return to
work on or about August 23, 2016, he met with Dr. Cale.
(Id. at 107-08.) During that meeting, he and Dr.
Cale talked about Mr. Gearhart's oven work at the plant,
though there is a dispute regarding exactly what Mr. Gearhart
said to Dr. Cale. Dr. Cale's notes of that meeting
reflect that Mr. Gearhart said: “his cardiologist is
not comfortable with him working in the oven due to his
cardiac disease. Patient's cardiologist did not put this
in writing, because patient specifically told him not to put
it in writing.” (Cale Dep. 181.) However, Mr. Gearhart
claims that his “exact words” to Dr. Cale were
“[my cardiologist] doesn't think anybody ought to
go into an oven.” (Gearhart Dep. 108.)
to this meeting with Dr. Cale, according to his plant medical
chart, Mr. Gearhart had told a DuPont nurse that his
cardiologist told him that he could “never go in the
oven again”; however, Mr. Gearhart denies saying that
to a nurse. (Compare Gearhart Dep. 106-07,
with Ex. 7, ECF No. 22-5, page ID # 247).
Nevertheless, during his deposition in this case, Mr.
Gearhart acknowledged that his cardiologist “was
uncomfortable with me working in a high temperature
oven.” (Gearhart Dep. Ex. 110.)
fact, following an appointment on August 11, 2016, Mr.
Gearhart's new cardiologist (Dr. Douglas Magorien)
advised Dr. Thakur in writing that, “[d]ue to [Mr.
Gearhart's] cardiac history he should not work in an oven
with high temperatures.” (Cale Dep. 194-97, Ex. 4, p.
3). Dr. Cale was not aware that Mr. Gearhart had a new
cardiologist at that time, nor was he aware of this letter.
(Id. at 195)
Mr. Gearhart returned to work in August 2016, Dr. Cale was
concerned with Mr. Gearhart's safety if he was going to
work in the oven. (Id. at 193-94.) This is because,
as Dr. Cale described it, oven work is “[p]hysically
strenuous activity, high temperatures, which is physically
stressful on the cardiovascular system. . . . [In addition, ]
the multi layers of [protective equipment] that are worn and
just the heaviness of the equipment, that there would be
crawling involved, kneeling involved, reaching and pulling
involved inside a pretty confined, tight space…”
(Id. at 129.) Accordingly, and with knowledge of Mr.
Gearhart's history of cardiac disease and surgery, on
August 23, 2016, Dr. Cale permanently restricted Mr. Gearhart
from working the oven at DuPont. (Gearhart Dep. 111-12, 117;
Cale Dep. 104-09, 181-82, 189.)
Gearhart was permitted to return to work but with Dr.
Cale's restriction on working in the ovens. Because of
Dr. Cale's restriction prohibiting Mr. Gearhart from
working in the ovens, DuPont temporarily assigned him to a
position that did not require entry into a hot oven.
(Gearhart Dep. 160-61.) It then engaged in an interactive
accommodation process with Mr. Gearhart to explore ways that
it could accommodate the limitation placed on him by Dr.
Cale. (Id. at 153.)
management conducted a series of “accommodation
hearings” with Mr. Gearhart between September and
December 2016 in an effort to accommodate his medical
restrictions and allow him to keep working. (Id. at
153-54, Ex. 32, ECF No. 22-12.) DuPont's accommodation
review process requires managers, human resources, and the
restricted employee to work together to find an effective
accommodation. (Dutton Dep. 61-62, Ex. 6.) As part of this
process, DuPont encouraged Mr. Gearhart to apply for any
positions that opened up within the plant. (Gearhart Dep.
63-64.) Also, DuPont identified three potential
accommodations for Mr. Gearhart: (1) progress Mr. Gearhart to
a level 4 Chemical/Solvent Recovery Operator position
(Id. at 155-57, 167-68); (2) assign him to a role in
which he dumped monomers (Id. at 158-61); or (3)
transfer him to the Tedlar area of the plant (Id. at
162-66). For various reasons, however, none of these
accommodations were made.
December 2016, DuPont's management had concluded that
none of the accommodations considered during the interactive
process would work to allow Mr. Gearhart to work at the plant
with Dr. Cale's medical restriction of no oven work.
(Id. Ex. 32, at 4-5.) Around that same time, Mr.
Gearhart began to experience additional health issues and was
off work for thirty days due to two back surgeries.
(Id. at 124-35.)
January 2017, Mr. Gearhart applied for long term disability
(“LTD”) benefits; he says he applied only because
DuPont's human resources manager, Mike Dutton, made him
do it. (Id. at 135-39.) Nevertheless, the
application was granted, and Mr. Gearhart began to receive
long- term disability benefits. (Id. at 27-28,
137-38.) DuPont terminated Mr. Gearhart's employment
effective February 8, 2017. (Id. at 26-27.)
fact, Mr. Gearhart was on LTD for only a short period of
time. After approximately five months, he ended the LTD
benefits when he went to work for New England Motor Freight.
Gearhart filed the Complaint in this action on September 29,
2017. In his Complaint, he alleges the following claims:
Americans with Disabilities Act (ADA) failure to accommodate
(Count 1), ADA disparate treatment (Count 2), ADA perception
of disability, which the Court interprets as a disability
discrimination claim (Count 3), Ohio state law failure to
accommodate (Count 4), Ohio state law disparate treatment
(Count 5), Ohio state law perception of disability (Count 6),
and Age Discrimination in Employment Act (ADEA) disparate
treatment (Count 7).
Standard for Review
judgment is appropriate when “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
movant has the burden of establishing there are no genuine
issues of material fact, which may be achieved by
demonstrating the nonmoving party lacks evidence to support
an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v.
Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382,
1388-89 (6th Cir.1993). The burden then shifts to the
nonmoving party to “‘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 ...