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Gearhart v. E.I. DU Pont De Nemours and Co.

United States District Court, S.D. Ohio, Eastern Division

December 30, 2019

DAVID E. GEARHART, Plaintiff,
v.
E.I. DU PONT DE NEMOURS AND CO., Defendant.

          Chelsey M. Vascura Magistrate Judge.

          OPINION AND ORDER

          SARAH D. MORRISON UNITED STATES DISTRICT JUDGE

         This 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.

         I. Statement of the Facts

         Plaintiff 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.)

         In his 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.)

         Mr. 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.)

         Because 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.)

         In July 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.)

         Following 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.)

         Prior 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.)

         In 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)

         When 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.)

         So Mr. 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.)

         DuPont 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.

         By 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.)

         In 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.)

         In 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 140).

         Mr. 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).

         II. Standard for Review

         Summary 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 ...


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