Smith v. Cuyahoga County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

:

PAUL H. SMITH, : CASE NO. 1:21-cv-00160

:

Plaintiff, : OPINION & ORDER

: [Resolving Doc. 28]

v. :

:

CUYAHOGA COUNTY, :

:

Defendant. :

:

JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:

In this case, the Court considers whether a longtime Cuyahoga County (“the

County”) Sewer Division employee can survive summary judgment on disability and race

discrimination claims against the County.1 This Court principally examines whether

sufficient evidence shows that Plaintiff Smith could return to work with reasonable

accommodations.

Finding that the employee is not a qualified individual under the Americans with

Disabilities Act (“ADA”) and that he has not identified a similarity situated employee who

received better treatment, the Court GRANTS the County’s summary judgment motion.2

1 Smith’s Ohio disability discrimination claims are resolved on the same basis as his federal claim.

355 F.3d 444, 452 n.4 (6th Cir. 2004).

2 The Court does not consider Doc. 31, Plaintiff Smith’s second reply document, which was filed without leave of

I. Background

Plaintiff Paul Smith, who is African American, grew up in Cleveland.3 He did two

years of college at Adrian College in Michigan, where he was a wide receiver on the

football team.4

Smith moved back to Cleveland and eventually took a full-time custodian job with

the County.5 For four years he worked the night shift at the Cleveland Justice Center and

was later transferred to the Jane Edna Hunter Building.6

Around 2006, seeking daytime employment, Smith accepted a position with the

County Public Works Sewer Maintenance Division (“Sewer Division”) as an entry-level

sewer maintenance worker.7 The Sewer Division is responsible for periodically accessing,

cleaning and digging up sewer lines and related components that are typically located

under streets.8 Within the Sewer Division, there are several different crews.

Smith first worked on the crew that monitored water levels inside the main sewer

lines.9 This job involved physically opening sewers and running tests to make sure, in

Smith’s words, “everything is going where it’s supposed to go.”10

From there, Smith received two promotions.11 In 2008, he was promoted to the

position of Operator.12 And about a year later, he was promoted to Jet Vac Operator.13 In

3 Doc. 22 at 12.

4 at 13.

5 at15.

6

7 at 21.

8 Doc. 28-3 at 2.

9 Doc 22at 23.

10 at 24, 25.

11 at 33.

12

that role, a typical day involved opening a manhole and operating a high-pressure hose to

clean the sewer.14

Around 2010, Smith applied for the position of Leadman.15 A Leadman works as

working jobsite supervisors who also do physical labor.16 Smith did not apply to be a

Leadman on a specific Sewer Division crew; he applied for a general Leadman position.17

Smith received the Leadman promotion.18 His supervisors told him that in his new

role, the Sewer Division would mainly assign Smith to work with the Sewer Division’s

Camera Trucks.19 The Camera Truck crew runs robotic cameras in the sewer lines.20 Smith

was initially hesitant as he had developed expertise working with the Jet Vac device, but he

accepted the new assignment when his supervisors told him that they had confidence in

his abilities.21

On a typical day, employees drive the Camera Truck to a jobsite.22 The truck

incorporates considerable electronic equipment.23 A generator powers the truck.24 In a

typical assignment, an employee opens the sewer.25 And then, using poles, a robotic

camera is lowered into the sewer.26 Generally, the job does not require entering the sewer,

14 at 39–40.

15 at 44.

16 Doc. 22-6 at 1.

17 Doc. 22 at 44.

18 at 45.

19 .

20 at 55.

21 at 46.

22 at 57.

23 at 56.

24 .

25 at 58.

although it is sometimes necessary to enter the sewer to retrieve the camera in

emergencies.27

Over time, Smith became skilled in his Camera Truck duties.28 He enjoyed the

work.29 And he eventually passed a certification exam and received a license to operate

the robotic camera.30

As Leadman, Smith also performed work other than in the Camera Truck.31 Smith

testified that he worked “in almost every department.”32 He worked with the crews that

visited residents’ homes, with crews that did construction, and with crews that operated the

vacuum devices.33 And, near 2015, the County sought to have Smith observe more

experienced workers in the construction crew so that he could become more proficient

with that work.34

In 2018, the County took Smith and another Leadman, Ted Choukas—who is

white—off their respective Camera Truck assignments and moved them to construction

work.35 According to the County, the Sewer Division’s clients had requested that the

Division focus on a backlog of sewer repair and maintenance projects and there was less

Camera Truck Sewer Inspection services demand.36

Smith and Choukas filed an Unfair Labor Practice charge challenging this move to

construction work.37 Smith contends that he was singled out for the assignment change as

27 ; Doc. 28-3 at 4.

28 Doc. 22 at 61.

29 at 60.

30 at 50–51.

31 at 61;

32 at 62.

33

34 at 70.

35 at 76.

36 Doc. 28-3 at 2.

compared to other Leadmen.38 The Ohio State Employment Relations Board ultimately

investigated and dismissed the charge with prejudice.39 The Board held that the County

had “the inherent managerial right” to assign Smith and Choukas to the construction work

under the Collective Bargaining Agreement.40

The County also says that it did not view Smith and Choukalas’ construction

assignment as permanent.41

In the fall of 2018, Smith started experiencing serious respiratory problems.42 He

exhibited a severe cough that he knew was not “normal” and was spitting up a white

substance.43

Smith went to the emergency room.44 The doctors there thought he had a nasal

infection and prescribed him antibiotics.45 But his symptoms kept getting worse. He

eventually saw a pulmonary specialist who diagnosed him with asthma.46

After Smith was diagnosed with asthma, he filed a Worker’s Compensation claim

“to document where [he] got the injury from.”47

On November 29, 2018, Smith saw a doctor for the Worker’s Compensation

claim.48 This visit produced a MEDCO-14 form, which is a form that heath care providers

38 Doc. 22at 79 (“I think they violated [the Collective Bargaining Agreement by] not making sure that everybody

is treated equally and fairly in their process.”).

39 Doc. 22-16.

40

41 Doc. 22-15 at 3.

42 Doc. 22at 96.

43 at 95–96.

44 at 99.

45

46 at 100.

47

submit to state authorities to certify that an injured worked is disabled as a result of a work

injury.49

In this physician-completed form, the doctor determined that Smith was not able to

return to “the full duties of [his] job held on the date of the injury” even with restrictions of

“no exposure to chemicals, gases, fumes, concrete, [and] dust.”50 The form described

Smith’s condition as “occupational asthma” and said he had a “continued chronic

cough.”51

Altogether, between November 2018 and October 2020, Smith filed seven

respiratory-related MEDCO-14 forms to continue his disability benefits that offer

substantially similar evaluations. These medical reports describe Smith as unable to work

at his former position.

Smith’s Worker’s Compensation Claims have been allowed.52 He continues to

receive regular temporary total disability payments.53

In addition, Smith later filed MEDCO-14 forms related to his mental health

conditions.

After the emergency room visit, Smith went back to work.54 His Union

representatives met with his County supervisors about Smith’s health conditions and that

resulted in the County assigning Smith out of the construction crew. In the new

49 at 102.

50 Doc. 22-57.

51

52 Doc. 22 at 116.

53 at 119.

assignment, at least some of the work Smith did was typically done by lower-level

employees.55

After Smith submitted the first Worker’s Compensation claim, County officials

including Sewer Division management, the Worker’s Compensation Coordinator, and

Human Resources staff determined that Smith could not safely work in the Leadman

position given his work restrictions.56 The County says:

The decision that Smith could not serve as Leadman was based on the fact

that every environment [in which] the Leadman works involves accessing

existing sewers or working at construction sites with excavations of buried

sewer lines that would expose him to the irritants to which he could have no

exposure pursuant to his work restrictions: dust, chemicals, asphalt, clay,

concrete, etc., which pose no particular hazard to most workers.57

On December 6, 2018, Smith was sent home.58 In a meeting, County Human

Resources Representative Ciara Stone told him that she had received one of Smith’s

MEDCO-14 forms from County Worker’s Compensation Coordinator Cishma Haines.59

According to Smith, Stone told him that he couldn’t be on the job because of the Worker’s

Compensation claim.60 Smith went home.61 He has not since returned to work.62

On December 12, 2018, Smith filed an ADA accommodations request.63 The

accommodation he requested was: “No exposure to chemicals, cases, fumes, silica,

asbestos, and dust.”64 The form was signed by one of the doctors who treated Smith for his

55 at 135.

56 Doc. 28-3 at 4.

57

58 Doc. 22 at 136.

59 at 138.

60 at 137.

61 at 140.

62

63 Doc. 22-10.

earlier Worker’s Compensation claim.65 The doctor listed Smith’s disability as chronic

obstructive pulmonary disease (COPD) and indicated that Smith’s duration of impairment

was five-months or longer.66

Sometime in December 2018, Smith presented to the County a medical report from

Dr. Ziad Shaman.67 This brief letter says that Smith was cleared to return to work with the

restrictions of: “Minimize exposure to dust, fumes, or possible breathing irritants.68

On March 18, 2019, Smith filed a second and substantially similar ADA request.69

Worker’s Compensation Coordinator Haines helped set up an independent medical

exam for Smith.70 She said she scheduled this exam because Smith indicated that he had

been exposed to asbestos and silica.71 County Human Resources Specialist Brian Adams

also suggested that the independent medical exam was prompted from the conflict

between the MEDCO-14 forms and Dr. Shaman’s assessment.72

In a February 13, 2019 document titled: “Independent Medical Examination,” Dr.

David Garcia assessed Smith’s condition based on a review of his medical records and a

physical exam.73 Dr. Garcia determined that Smith suffered from occupational asthma.74

Dr. Garcia also determined that Smith was “not capable of returning to the essential

65

66

67 Doc. 22 at 207.

68 Doc. 24-1.

69 Doc. 22-11.

70 Doc. 25 at 35.

71 Doc. 24 at 21.

72 Doc. 23 at 16.

73 Doc. 24-2.

functions of [his] exact position due to the different varieties of potential allergens that he

had been exposed to.”75

On April 10, 2019, County Employee and Labor Relations Specialist Brian Adams

wrote Smith a letter saying that Smith’s ADA request was “on hold because an independent

medical examination found [him] not fit for duty.”76 The letter made direct reference to Dr.

Garcia’s report.77 It also stated that Smith should contact Adams if Smith became

“medically cleared to return to full duty.”78

Smith ultimately went on unpaid medical leave.79

On July 23, 2019, Smith and a Union representative met with several County

officials to discuss his employment situation.80 The meeting did not produce a resolution.81

On December 5, 2019, Employment and Labor Relations Specialist Adams informed

Smith in a letter that, in accordance with County policy, he would be disability separated

effective the following day.82 The letter also informed Smith that he could request to be

reinstated if he could provide “substantial, credible medical evidence that [he] is once

again capable of performing the employee’s essential job duties.”83

On March 7, 2020 Smith emailed Adams requesting to be reinstated.84 He included

two documents. The first document was a MEDCO-14 form in which the doctor checked a

75 at 4.

76 Doc. 22-12.

77

78

79 Doc. 22 at 180.

80 at 192.

81 at 201.

82 Doc. 22-7.

83

box indicating that Smith could not return to the full duties of his former position.85 The

second document is a February 28, 2020 letter from Dr. Ziad Shaman that said that Smith

was given clearance to return to work with the “recommendations” of “minimiz[ing]

exposure” to certain substances.86

Adams did not respond to Smith’s request.87 Adams said that he discussed the

request with Human Resources Manager Yolanda Guzman and that because the

documents Smith submitted did not reflect a change in his medical condition, his request

was not considered a formal request for reinstatement.88

II. Standard of Review

A court will grant a motion for summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.”89 There is a genuine dispute as to a material fact when the “evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”90

The Court “view[s] the evidence in the light most favorable to the nonmoving party.”91

But, the nonmoving party “must show sufficient evidence to create a genuine issue of

material fact”92 as to each of the claim’s required elements.93 Summary judgment may be

granted “[i]f the evidence is merely colorable . . . or is not significantly probative.”94

85 at 2.

86 at 3.

87 Doc. 24 at 52.

88 at 53.

89 Fed. R. Civ. P. 56(a).

90 , 880 F.3d 256, 262 (6th Cir. 2018) (quoting , 477 U.S. 242,

248 (1986)).

91 , 954 F.3d 852, 859 (6th Cir. 2020) (citing

, 895 F.3d 423, 428 (6th Cir. 2018)).

92 , 916 F.2d 337, 341–42 (6th Cir.1990) (citation omitted).

93 (noting that a scintilla of evidence is not enough to defeat a summary judgment motion).

Plaintiff represents himself. pleadings are liberally construed and held to less

stringent standards than counsel-drafted pleadings.95 The Court broadly reads Plaintiff’s

filings to determine his claims’ legal underpinnings.

III. Discussion

The ADA is a federal law that “seeks to eliminate unwarranted discrimination

against disabled individuals in order both to guarantee those individuals equal opportunity

and to provide the Nation with the benefit of their consequently increased productivity.”96

To fall under the law’s protection, a plaintiff must be a “qualified individual” with a

disability.97 By the statute’s terms, a “qualified individual” is a person “who [ . . . ] can

perform the essential functions” of his or her job, including those who can do so only “with

[ . . . ] reasonable accommodation.”98 This means that “an employer may legitimately fire

an employee for conduct, even conduct that occurs as a result of a disability, if that

conduct disqualifies the employee from his or her job.”99

Smith’s complaint sets out three distinct ADA claims: That he was treated differently

than other employees because of his disability, that the County failed to provide reasonable

accommodations in violation of the ADA, and that the County retaliated against him

because of his ADA request. Even after using the liberal pro se pleading standard, the

Court finds his arguments at summary judgment hard to parse.

95 , 169 F.3d 384, 387 (6th Cir. 1999) (“Pro se plaintiffs enjoy the benefit of a liberal construction

of their pleadings and filings.”).

96 , 526 U.S. 795, 801 (1999) (citing 42 U.S.C. §§ 12101(a)(8),(9)).

97 42 U.S.C. § 12112(a).

98 at § 12111(8).

99 , No. 20-4308, 2021 WL 4810172, at *9 (6th Cir. Oct. 15, 2021) (quoting

, 484 F.3d 357, 366 (6th Cir. 2007),

Each of Smith’s ADA claims fail because no reasonable juror could find that Smith

was able to perform the essential duties of a Sewer Division Leadman.

To determine what job aspects are essential duties, courts examine “the employer’s

judgment as to what functions of a job are essential” and “written descriptions of the

job.”100 Some courts also look to the largely similar factors in the ADA regulations.101

Although Smith’s complaint suggests that Smith’s job duties were limited to the

Camera Truck,102 evidence shows that Smith’s Leadman responsibilities extended to the full

range of Sewer Division work.

The Leadman job description says that Leadman must complete work “involving

storm and sanitary sewer line repair, rehabilitation, cleaning, evaluation, and other

activities.”103 This job-duty list is broader than the Camera Truck duties. The job

description also says that “[a]ssignment to permanent crews or vehicles is not possible.”104

The Court also finds that the history of the Collective Bargaining Agreement

negotiations supports this broader understanding of Leadman duties. In a previous

bargaining agreement, there was a position called a “TV tech.”105 But the current

agreement consolidated that position into the Leadman position.106

Additionally, in his own deposition, Smith says the same. When asked if he

understood that part of his job involved work outside the Camera Truck, he answered in

100 , 443 F. App'x 974, 985 (6th Cir. 2011).

101 , 683 F. App'x 486, 492 (6th Cir. 2017) (quoting 29 C.F.R. § 1630.2(n)(3)).

102 Doc. 1 at 49–50.

103 Doc. 22-6.

104

105 Doc. 23 at 13.

the yes.107 He also acknowledged that he regularly worked on all Sewer Division crews,

not just the Camera Truck crew.

The County relies on Smith’s seven breathing-related MEDCO-14 forms and Dr.

Garcia’s independent medical exam to argue that Smith was not able to perform Leadman

duties.108 Taken together, these medical assessments establish that Smith cannot be

exposed to certain substances including “chemicals, cases, fumes, silica, asbestos, and

dust.”109 Because all Sewer Division Leadman “routinely work with concrete, dust and

silica, and many of the sewer lines are made of concrete, clay, and similar materials,”110 the

County says that no accommodation could make it possible for Smith to avoid exposure to

these substances.

Precedent supports the County’s position that, given Smith’s work environment, the

doctor-prescribed limits on his exposure to certain substances prevent him from being an

ADA qualified employee.

At the outset, the U.S. Supreme Court has said that when there is an “apparent

contradiction that arises out of [an] earlier [ . . . ] disability claim” and an ADA claim, the

plaintiff must provide a “sufficient explanation” explaining the contradiction.111 In that

Supreme Court case, the ADA plaintiff had received federal Social Security Disability

107 Doc. 22 at 62.

108 The County also relies on Smith’s mental health-related MEDCO-14 forms, but the Court does not find it

necessary to consider that argument as the case is capable of being resolved on the breathing issues alone. Doc. 28-1

at 19.

109 Doc. 22-10.

110 Doc. 28-3 at 4.

111 , 526 U.S. at 806; 802 (noting that disability and ADA claims do not “inherently conflict”);

, 382 F. App'x 451, 458 (6th Cir. 2010) (quoting

, 375 F.3d 424, 429 (6th Cir.2004) (finding that ADA plaintiff failed to provide sufficient explanation in light of

Insurance payments that were based on a finding that the plaintiff was “unable to do [her]

previous work” and “cannot ... engage in any other kind of substantial gainful work which

exists in the national economy.”112

Smith’s Ohio total temporary disability claims were allowed. Under Ohio law,

“temporary total disability is defined as a disability which prevents a worker from returning

to [her or] his former position of employment.”113

Accordingly, the issue here is whether Smith can explain how he can perform his

essential Leadman duties in light of the doctor-submitted Ohio temporary total disability

forms—and the Dr. Garcia report—which indicate that he is unable to return to work, even

with restrictions.

On each of the seven respiratory-related MEDCO-14 forms, physicians checked a

box indicating that Smith was not able to return to work even “[i]f there are restrictions.”114

Smith does not address these forms at summary judgment.

Smith says that Dr. Garcia’s exam only considered whether Smith could perform

construction-related duties and it did not consider whether Smith was able to work with

other crews.115 However, even if this is true, Smith’s inability to do the construction work

bars his claim from going forward since Leadman perform some construction work.

Smith also points to the Dr. Shaman report which technically cleared Smith to

return to work in a brief December 11, 2018, letter report.116 While this letter does support

112 , 526 U.S. at 797 (quoting 42 U.S.C. § 423(d)(2)(A)).

113 , 751 N.E.2d 990, 993 (Ohio 2001) (citations omitted);

No. 2:13-CV-819, 2015 WL 4039356, at *4 (S.D. Ohio June

30, 2015), , 644 F. App'x 427 (6th Cir. 2016) (relying on Ohio temporary total disability claim to find plaintiff not

qualified under ADA).

114 , Doc. 22-21 at 2 (Nov. 11, 2019 MEDCO-14).

115 Doc. 29.

Smith’s position, it does not create a genuine dispute of fact. As Smith himself

acknowledged at his deposition, Dr. Shaman’s assessment imposes substantially similar

restrictions on Smith’s exposure to possible breathing irritants as the MEDCO-14 forms.117

The Sixth Circuit’s decision in 118 further

stops Smith’s ADA claim. In that case, the Court determined that a physician’s assessment

that a janitor could not be exposed to certain cleaning substances established that the

junior was not an ADA qualified individual.119 Specifically, the court rejected the janitor’s

“personal belief that she could handle cleaning solutions” as reason for denying summary

judgment in favor of the defendant employer.120 Smith’s personal belief that he is able to

do perform Leadman duties despite the medical assessments therefore fail.

Lastly, the Court notes that Smith’s refences to materials from the U.S. Equal

Employment Opportunity Commission website are not relevant to his case. As noted

above, to bring an ADA claim, Smith must show that he is qualified to perform the

work. He has not here made that showing.

To bring a race discrimination claim, Smith “must show that he was ‘similarly

situated’ ‘in all of the relevant respects’ to an employee of a different race who was treated

better.”121 Smith identifies Leadman Ted Choukalas as such a person, but Choukalas’s

situation is different from Smith’s in two key respects.

117 Doc. 22 at 210.

118 556 F. App'x 452 (6th Cir. 2014).

119 at 455.

120 at 456.

121 , 942 F.3d 329, 331 (6th Cir. 2019) (quoting

First, although Choukalas did file a substantially similar Worker’s Compensation

claim to Smith, it was not allowed.122 This means that, unlike Smith, the Ohio Bureau of

Workers Compensation did not find Choukalas temporarily totally disabled.

Second, an independent medical assessment determined that, unlike Smith,

Choukalas was fit for duty.123

Because Choukalas is not similar situated to Smith, Smith’s race discrimination

claim fails.

IV. Conclusion

For nearly two decades, Smith served his community, doing hard and difficult work.

From these jobs, he developed a serious health condition that impairs his daily life. Yet, at

critical junctures, both the County and Smith’s Union stopped responding to him, forcing

him to turn to the courts.124

Smith says that his goal was to “get back to work.” 125 Now that this lawsuit is

resolved, the Court expresses its hope that he will be able to return to work, in some

capacity.

The Court GRANTS Defendant’s motion for summary judgment.

IT IS SO ORDERED.

Dated: January 3, 2022

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

122 Doc. 25 at 46.

123

124 Doc. 24 at 52 (County); Doc. 22 at 202–03 (Union).