Kibler

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY KIBLER,

:

Plaintiff,

Case No. 2:23-cv-2466

v. Chief Judge Sarah D. Morrison

Magistrate Judge Kimberly A.

Jolson

GENOA TOWNSHIP, OHIO,

:

Defendant.

OPINION AND ORDER

Jeffrey Kibler was employed by Genoa Township as a Firefighter/EMT from

2001 to 2021. Mr. Kibler performed his job using hearing aids in both ears without

issue after 2006. When his 2021 annual exam revealed that his hearing had fallen

below the National Fire Protection Association’s (“NFPA”) and Genoa Township

Fire Department’s minimum hearing threshold, Genoa placed Mr. Kibler on leave

and ultimately terminated him. Mr. Kibler brings this action against Genoa

alleging it violated the ADA and Ohio law when it failed to accommodate him and

discriminated against him on the basis of his hearing impairment.1

1 Mr. Kibler filed an unopposed Motion to Dismiss his age discrimination

claims (Claims 5 and 6). (ECF No. 46.) The Motion moves to dismiss fewer than all

the claims, so the Court construes the Motion as a motion to dismiss under Rule 21.

See Dix v. Atos IT Sols. & Servs. Inc., No. 1:18-cv-275, 2021 WL 1165762, at *1 (S.D.

Ohio Mar. 25, 2021) (Cole, J.). So construed, the Court GRANTS the Motion and

DISMISSES Claims 5 and 6.

Mr. Kibler and Genoa both moved for summary judgment. (ECF Nos. 48, 49.)

Also pending are Genoa’s Motions to Strike several affidavits filed in support of Mr.

Kibler’s summary judgment briefing. (ECF Nos. 50, 56.)

I. STATEMENT OF FACTS

A. Mr. Kibler’s Firefighter/EMT Role

As a Firefighter/EMT with Genoa, Mr. Kibler was responsible for, among

other things, responding to fire alarms and other emergency calls to protect life and

property, and for participating in fire prevention, fire suppression, rescue, and

hazmat operations. Mr. Kibler was required to work in the Immediately Dangerous

to Life and Health (“IDLH”) environment, such as a structure fire where the

environment could be noisy, dark, wet, and hot with temperatures ranging from 180

to 800 degrees. He was required to wear personal protective equipment (“PPE”),

including protective pants, boots, coat, hood, helmet, gloves and a self-contained

breathing apparatus (“SCBA”). Mr. Kibler was dispatched to hundreds of runs with

the potential to work inside the IDLH environment, including building fires, gas

leaks, chimney fires, and motor vehicle fires.

B. Genoa’s Employment Policy

Due to the low visibility of a fire scene, firefighters depend on other senses,

such as hearing, to perform rescue operations. (Jackson Dep., PAGEID # 1803–04;

Kibler Dep., PAGEID # 590–91.) Genoa firefighters thus participate in limited

visibility training to practice working in scenarios where they cannot rely on vision

to communicate or locate occupants. (Holtsberry Dep., PAGEID # 2813–14.) Genoa

also assesses firefighters’ hearing ability when determining whether the firefighter

meets its medical requirements for employment. (ECF No. 31-5, PAGEID # 635–37;

ECF No. 31-6, PAGEID # 638–41.) Since 2006, Genoa’s employment policy for its

firefighters has incorporated the NFPA 1582 Standard on Comprehensive

Occupational Medical Program for Fire Departments’ minimum hearing acuity

threshold for firefighters. 2 (Id.)

The NFPA 1582 Standard requires the average hearing in the unaided,

better ear of the firefighter be greater than 40 decibels (dB) at 500 Hz, 1000 Hz, and

200 Hz. (ECF No. 42-7, PAGEID # 2159.) Genoa’s policy incorporates this

requirement, stating “[h]earing aid use is not considered a reasonable

accommodation for hearing deprivation.” (ECF No. 31-5, PAGEID # 635–37; ECF

No. 31-6, PAGEID # 638–41.) According to the NFPA 1582 Standard, hearing aids

are not calibrated to function in areas of high background noise and compromise the

ability to localize acoustic cues such as calls for assistance, collapsing walls or

beams, and changes in fire patterns. (ECF No. 42-7, PAGEID # 2158–59.)

Firefighters may use hearing aids if their unaided hearing is above the NFPA

threshold because the firefighter meets the minimum standard in the event the

hearing aids fail on the scene. (Id., PAGEID # 2159; Ponzi Aff. II, PAGEID # 3232.)

C. Mr. Kibler’s Hearing Loss

• Mr. Kibler obtained a hearing aid for his right ear in 2002 and one for his left

ear in 2006. (Kibler Dep., PAGEID # 538–39; Kibler Aff. I, PAGEID # 2996.) Mr.

2 The NFPA 1582 Standard provides information and guidance for physicians

responsible for fire department medical programs on various topics, including

hearing. (ECF No. 42-7.)

Kibler’s colleagues, including Genoa’s Fire Department Chief Joseph Ponzi, knew

that he wore hearing aids. (Ponzi Dep. Vol. I, ECF No. 32-1, PAGEID # 790, 794,

818.) After receiving his second hearing aid, Mr. Kibler continued to work as a

Firefighter/EMT until August 2021 without any incidents related to his hearing

aids. (Ponzi Dep. Vol. II, ECF No. 33-1, PAGEID # 932; Kibler Aff. I, PAGEID #

2996.)

On August 19, 2021, Mr. Kibler attended his annual physical examination

with Dr. William Cann. (Cann Dep., ECF No. 36-1, PAGEID # 1414–15; Kibler

Dep., PAGEID # 547.) Dr. Cann determined that Mr. Kibler did not meet the NFPA

threshold and requested that Mr. Kibler’s audiologist provide Mr. Kibler’s most

recent audiological examination. (Cann Dep., PAGEID # 1435–37, 1439–40.) Dr.

Cann released Mr. Kibler to work without restrictions, but Genoa placed Mr. Kibler

on paid administrative leave on August 21, 2021. (ECF No. 36-11, PAGEID # 1645;

Kibler Aff. I, PAGEID # 2996.)

Mr. Kibler visited his audiologist on August 23, 2021. (Kibler Dep., PAGEID

# 547–48.) The audiologist also concluded that Mr. Kibler’s hearing loss fell below

the NFPA threshold, but said that Mr. Kibler should have no issue performing his

duties while using his hearing aids. (ECF No. 36-7, PAGEID # 1521; Durst Dep.,

ECF No. 29-1, PAGEID # 220–221, 230; ECF No. 29-3, PAGEID # 303.)

Four days later, Dr. Cann told Chief Ponzi that Mr. Kibler did not meet the

NFPA threshold and that Mr. Kibler’s hearing impairment could degrade his ability

to perform certain firefighting tasks. (ECF No. 36-7, PAGEID # 1521–22.) Dr. Cann

reviewed Mr. Kibler’s past hearing test results and found that his hearing had not

met the NFPA threshold since at least 2011, and that his hearing had “gradually

worsened and worsened precipitously between 2017 and 2018.” (Id.) Dr. Cann

advised Chief Ponzi that to allow Mr. Kibler to continue working as a

Firefighter/EMT was a “risk management decision,” but that he could not

accurately predict whether Mr. Kibler will be able “to hear and understand the

spoken voice under conditions of high background noise, or hear, recognize, and

directionally locate cries or audible alarms” in the firefighting environment. (Id.)

Dr. Cann recommended that Mr. Kibler wear his hearing aids and hearing

protection, and that Genoa consider implementing “administrative controls” to

minimize the chance of Mr. Kibler’s hearing aids failing and “closed-loop

communication practices” between Mr. Kibler and his co-workers. (Id.)

Chief Ponzi testified that, although he knew Mr. Kibler used hearing aids, he

was unaware that Mr. Kibler’s hearing had fallen below the NFPA threshold until

Dr. Cann contacted him. (Ponzi Aff., ECF No. 49-17, PAGEID # 3135.)

One month after he provided his recommendations to Genoa, Dr. Cann told

Chief Ponzi that, while the use of hearing aids among firefighters had not been

studied, there was a concern that hearing aids could suddenly fail in an IDLH

environment, particularly because a firefighter’s sweat could interfere with the

hearing aid. (ECF No. 36-8, PAGEID # 1525.) Mr. Kibler’s hearing aids were water

resistant but not waterproof, so sweat could degrade their performance. (Id.) Dr.

Cann recommended that Chief Ponzi consider if there were any reasonable

accommodations to continue Mr. Kibler’s employment while excluding him from any

IDLH environments or environments where ambient noise could degrade the

functionality of his hearings aids. Dr. Cann advised that, if Mr. Kibler was unable

to effectively communicate with members of his team, it could adversely impact his

safety, the safety of his fellow firefighters, and the safety of the citizens of Genoa

Township. (Id. at PAGEID # 1526.)

D. Proposed Accommodations

On October 7, 2021, Genoa convened a pre-separation conference during

which Mr. Kibler proposed four accommodations: (1) allow him to work with his

hearing aids; (2) impose a requirement that he carry a second pair of hearing aids

as a backup and continue to work all of his job duties; (3) allow him to only work as

an engineer and not perform other firefighting duties at scenes; or (4) transfer him

to an administrative position. There was no resolution at the conference.

Following the conference, Genoa contacted the Job Accommodation Network

(“JAN”)3 about appropriate accommodations for a firefighter who has hearing loss

below the NFPA threshold. (ECF No. 42-31, PAGEID # 2544.) JAN responded that

“[i]t may be that reassignment to a vacant position may be the only option if the

individual’s hearing loss cannot be improved.” (Id.) No one from JAN spoke with

Mr. Kibler.

3 JAN is a service provided by the U.S. Department of Labor’s Office of

Disability Employment Policy and offers employers guidance and technical

assistance on job accommodations and disability employment issues. About JAN,

Job Accommodation Network, https://askjan.org/about-us/index.cfm.

On December 3, 2021, Chief Ponzi rejected Mr. Kibler’s proposed

accommodations and told him that Genoa was placing him on Family Medical Leave

because he was not fit-for-duty. (ECF No. 49-9.) Chief Ponzi rejected the first

accommodation because it did not address the safety issues raised by the fact that

Mr. Kibler did not meet the NFPA threshold or Genoa Policy, particularly in an

IDLH environment. (Id. at PAGEID # 3119.) He rejected the second accommodation

because it would not be safe or feasible to swap-out malfunctioning hearing aids in

an IDLH environment. (Id.) He rejected the third proposed accommodation because

it would eliminate some of Mr. Kibler’s job functions and create staffing and safety

concerns. (Id. at PAGEID # 3120.) Finally, he rejected the fourth proposed

accommodation because no administrative positions were available. (Id.)

Mr. Kibler then proposed two additional accommodations: (1) place him in

the Staff Lieutenant position; or (2) allow him to continue in the Firefighter/EMT

position, but permit him to run the truck if a fire entry occurs during his shift until

a vacant position for which he is qualified becomes available. Genoa rejected both

proposed accommodations.

E. Mr. Kibler’s Termination

On Chief Ponzi’s recommendation, the Genoa Board of Trustees voted to

terminate Mr. Kibler. On April 21, 2022, Chief Ponzi notified Mr. Kibler that his

employment with Genoa had been terminated.

Chief Ponzi did not conduct any tests with Mr. Kibler to assess the risk posed

by his hearing impairment. Instead, Chief Ponzi says that he considered his own

experience as a firefighter and personal knowledge of the requirements of a Genoa

Firefighter/EMT when he evaluated the information from Dr. Cann and JAN, and

he determined that Mr. Kibler was not fit for duty. (Ponzi Dec. II, ECF No. 52-1,

PAGEID # 3233.)

II. MOTIONS TO STRIKE

Genoa moves to strike the affidavits of Cpt. Spitler, Chief Clint Canterbury,

and Lt. Chad Cochran submitted in support of Mr. Kibler’s motion for summary

judgment. (ECF No. 50.) Genoa also seeks to strike Mr. Kibler’s second affidavit

submitted with his reply in support of his summary judgment motion. (ECF No. 56.)

A. Motion to Strike Spitler, Canterbury, and Cochran Affidavits

Genoa moves to strike the affidavits of Cpt. Spitler, Pleasant Township Fire

Chief Canterbury, and Lt. Cochran because: (1) Mr. Kibler failed to identify Cpt.

Spitler and Chief Canterbury in his initial disclosures in violation of Rule 26; and

(2) Lt. Cochran’s affidavit exceeds the scope of his disclosed knowledge in violation

of Rule 56.

Mr. Kibler argues that Genoa’s Motion to Strike is improper because

affidavits are not pleadings subject to a Rule 12(f) motion to strike. (ECF No. 57,

PAGEID # 3279–80.) But Genoa brings its Motion to Strike Cpt. Spitler’s and Chief

Canterbury’s affidavits under Rule 37; under that rule, the Court may impose

sanctions, including the exclusion of affidavits, for violations of Rule 26(a) or (e). As

to Lt. Cochran’s affidavit, Genoa brings its motion under Rule 56. While Rule 56

does not expressly provide a mechanism for a motion to strike affidavits, “courts

should generally consider a motion to strike an affidavit as a matter of the

‘admissibility of the evidence offered in the affidavit, and the competency of the

affiant to testify to the matters stated therein.”’ Reed v. City of Memphis, Tennessee,

735 F. App’x 192, 197 (6th Cir. 2018) (quoting Wimberly v. Clark Controller Co., 364

F.2d 225, 227 (6th Cir. 1966)).

1. Spitler and Canterbury Affidavits

Rule 26 requires parties to make certain mandatory disclosures during the

initial stages of litigation. Thereafter, a party “must supplement or correct its

disclosure ... in a timely manner if the party learns that in some material respect

the disclosure ... is incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other parties during the

discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). There is no duty to

supplement a Rule 26 disclosure if the information “has been otherwise made

known to the parties in writing or during the discovery process, as when a witness

not previously disclosed is identified during the taking of a deposition.” Fed. R. Civ.

P. 26(e) advisory committee’s note (1993). While “[t]he mere mentioning of a

potential witness’s name . . . is insufficient [to] demonstrate that the opposing party

knew the party who failed to disclose the witness might call that person to testify at

trial,” a party is relieved of the duty to disclose “when a party has good reason [to]

know that a person has knowledge supporting the opposing party’s litigation

position.” Sjostrand v. Ohio State Univ., No. 2:11-CV-00462, 2014 WL 4417767, at

*2 (S.D. Ohio Sept. 8, 2014) (Abel, M.J.).

Mr. Kibler says that he did not disclose Cpt. Spitler or Chief Canterbury

because their names were referenced in depositions taken after his initial

disclosures were filed. (See ECF No. 57.)

As to Cpt. Spitler, Mr. Kibler’s counsel asked Firefighter Brock Piatt during

his deposition whether he had ever talked to Cpt. Spitler about Mr. Kibler’s

termination, to which Mr. Piatt responded that Cpt. Spitler said that “Ponzi came

into his office and told him that Jeff was cleared to come back to work, but he was

setting an example.” (Piatt Dep., ECF No. 37-1, PAGEID # 1691–92.) When Mr.

Piatt was asked what Chief Ponzi meant by “setting an example,” Mr. Piatt said

that: “he was going to go ahead and let Jeff go.·Hearsay, so I don't know what’s true

on that. You would have to contact Andy Spitler on that one.” (Id.)

At the time of Mr. Piatt’s deposition, it was clear that Chief Ponzi was a

witness with knowledge of Mr. Kibler’s termination. (See ECF 50-1, PAGEID #

3147.) Mr. Piatt’s testimony was sufficient to place Genoa on notice that Mr. Kibler

could use Cpt. Spitler as a witness on the subject of statements made by Chief

Ponzi. Thus, Mr. Kibler did not violate Rule 26(e) with respect to Cpt. Spitler.

As to Chief Canterbury, Genoa’s counsel asked Mr. Kibler what he told Chief

Canterbury about his termination; Mr. Kibler responded: “I don’t know. He was

aware of my being terminated. That tends to go around like hot butter so I don’t

know what the conversations were.” (Kibler Dep., PAGEID # 581–82.) Unlike the

deposition testimony regarding Cpt. Spitler, the mere mention of Chief Canterbury

in Mr. Kibler’s deposition was insufficient to place Genoa on notice of Mr. Kibler’s

intent to use Chief Canterbury as a witness. The foregoing exchange does not

suggest that Chief Canterbury has knowledge supporting Mr. Kibler’s claims; it

merely suggests that Chief Canterbury knew Mr. Kibler had been terminated.

Similarly, Mr. Kibler’s disclosure of the fire departments where he had worked was

insufficient to put Genoa on notice the Mr. Kibler intended to call Chief Canterbury

as a witness.

When “a party fails to provide information or identify a witness as required

by Rule 26(a) or (e), the party is not allowed to use that information ... to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). A noncompliant party may avoid

sanction if “there is a reasonable explanation of why Rule 26 was not complied with

or the mistake was harmless.” Bessemer & Lake Erie R.R. Co. v. Seaway Marine

Transp., 596 F.3d 357, 370 (6th Cir. 2010) (internal quotation marks omitted)

(citation omitted).

Mr. Kibler, as the party seeking to avoid the Rule 37 sanction, has the

burden of showing that any omission was either substantially justifiable or

harmless. Roberts, 325 F.3d at 782. To assess whether a party’s omitted disclosure

is “harmless” or “substantially justified,” the Court considers five factors:

(1) the surprise to the party against whom the evidence would be

offered;

(2) the ability of that party to cure the surprise;

(3) the extent to which allowing the evidence would disrupt the trial;

(4) the importance of the evidence; and

(5) the non-disclosing party’s explanation for its failure to disclose the

evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015).

Mr. Kibler’s failure to disclose Chief Canterbury was neither harmless nor

substantially justified. First, as discussed above, Genoa was surprised by Mr.

Kibler’s use of Chief Canterbury as a witness. Second, because Mr. Kibler filed

Chief Canterbury’s affidavit after the close of discovery, Genoa could not cure the

surprise. Third, allowing Chief Canterbury as a witness would require the Court to

re-open discovery in this case. Fourth, there is no dispute that Mr. Kibler performed

his firefighting duties without incident when wearing his hearing aids so Chief

Canterbury’s testimony that Mr. Kibler did not have any incidents with his hearing

aids while working for Pleasant Township does not cut sharply in either party’s

favor. Finally, as discussed above, Mr. Kibler’s explanation for his failure to disclose

is insufficient.

Genoa’s Motion is DENIED as to Cpt. Spitler’s affidavit and GRANTED as

to Chief Canterbury’s affidavit.

2. Cochran Affidavit

Genoa next moves to strike Lt. Cochran’s affidavit, arguing that his

testimony exceeds the scope of his disclosed knowledge.

Rule 56(c)(4) requires that a “declaration used to support or oppose a motion

must be made on personal knowledge” and “set out facts that would be admissible

in evidence.” Fed. R. Civ. P. 56(c)(4). Any portion of an affidavit that violates Rule

56 should be disregarded. Reed v. City of Memphis, Tennessee, 735 F. App’x 192, 197

(6th Cir. 2018). “In order for inferences, thoughts, and opinions to be properly

included in a Rule 56 affidavit, they must be premised on firsthand observations or

personal experience, and established by specific facts.” Giles v. Univ. of Toledo, 241

F.R.D. 466, 469 (N.D. Ohio 2007). A court should “use a scalpel, not a butcher knife”

and disregard only those portions of the affidavit that are inadmissible. Id. at 469.

First, Genoa challenges Lt. Cochran’s testimony that Genoa “initiated a

policy that forbid anyone with hearing aids from being an employee” in 2007 but did

not enforce that policy before Mr. Kibler’s termination. (Cochran Aff., PAGEID #

2992.) But Lt. Cochran testified that he has worked at Genoa since 2001 and was

the president of its Fire Department’s union at the time of Mr. Kibler’s termination;

thus, his testimony regarding Genoa’s policies and their implementation is within

his personal knowledge.

Second, Genoa challenges Paragraphs 10 through 14 of Lt. Cochran’s

affidavit because the affidavit “fails to establish how [Mr. Kibler’s] medical history,

testing results, and qualifications of reviewing physicians are within his personal

knowledge.” (ECF No. 50, PAGEID # 3145–46.) The Court agrees and will disregard

Paragraphs 10 through 13. However, Lt. Cochran’s testimony in Paragraph 14 that

Mr. Kibler’s “hearing aids have never failed on the job[]” is fairly within his

personal knowledge. (Cochran Aff., PAGEID # 2992.)

Genoa’s third argument is that Lt. Cochran’s affidavit exceeds the scope of

his “disclosed knowledge” to the extent that it discusses Genoa’s policy regarding

firefighters wearing hearing aids. (ECF No. 50, PAGEID # 3145.) But Lt. Cochran’s

testimony is fairly within Mr. Kibler’s initial disclosure that Lt. Cochran had

information relevant to “[Mr. Kibler’s] ability to perform the essential functions of

his job with an accommodation, as well as [Genoa’s] termination of [Mr. Kibler]”

and “about [Genoa] treating similarly situated employees differently than [Mr.

Kibler] because of his disability.” (ECF No. 50-1, PAGEID # 3148.)

Finally, Genoa challenges Lt. Cochran’s averment that Genoa “did not want

to entertain any of [Mr. Kibler’s] suggested accommodations” because Lt. Cochran’s

affidavit does not establish his personal knowledge of Genoa’s conversations with

Mr. Kibler on his accommodations. (ECF No. 50, PAGEID # 3146 (quoting Cochran

Aff., PAGEID # 2993).) But Lt. Cochran was Mr. Kibler’s Union Representative and

he attended the pre-separation meeting with Mr. Kibler; this testimony is fairly

within his personal knowledge. (Kibler Dep., PAGEID # 560–61.)

Genoa’s Motion is GRANTED as to Paragraphs 10 through 13 of Lt.

Cochran’s affidavit. The Motion is otherwise DENIED.

B. Motion to Strike Mr. Kibler’s Second Affidavit

Genoa moves to strike Mr. Kibler’s second affidavit, arguing that it is (1)

untimely; and (2) inconsistent with his prior deposition testimony and medical

records. (ECF No. 56.)

1. Untimeliness

Rule 6(c)(2) requires that any affidavit supporting a motion be served with

the motion. Fed. R. Civ. P. 6(c)(2). That said, an affidavit may be filed with a reply

brief if “two conditions are satisfied: (1) the affidavit responds only to the

nonmoving party's opposition memorandum, and (2) the nonmoving party has an

opportunity to respond.” Gilleland v. Schanhals, 55 F. App’x 257, 261 (6th Cir.

2003) (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 476 (6th Cir. 2002)).

Both conditions are satisfied here. Mr. Kibler’s second affidavit contradicts

Genoa’s assertion in its Response that Mr. Kibler’s hearing aids have previously

malfunctioned. (See Def.’s Response in Opp., ECF No. 52, PAGEID # 3224.)

Additionally, Genoa had an opportunity to respond to Mr. Kibler’s second affidavit;

its Motion to Strike serves this very purpose.

2. Inconsistency

An affidavit that “directly contradicts prior sworn testimony should be

stricken ‘unless the party opposing summary judgment provides a persuasive

justification for the contradiction.’” France v. Lucas, 836 F.3d 612, 622 (6th Cir.

2016) (quoting Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir.

2006)). Where a deponent is “asked specific questions about, yet denie[s] knowledge

of, the material aspects of h[is] case, the material allegations in h[is] affidavit

directly contradict h[is] deposition.” Reich v. City of Elizabethtown, Kentucky, 945

F.3d 968, 976 (6th Cir. 2019) (quoting Powell-Pickett v. A.K. Steel Corp., 549 F.

App’x 347, 353 (6th Cir. 2013)).

At his deposition, Genoa asked Mr. Kibler about visits to his audiologist on

August 26, 2021, and February 24, 2022. Mr. Kibler testified that he did not

remember why he visited his audiologist on these dates. (Kibler Dep., PAGEID #

549–50.) When asked whether these appointments—which occurred during his

employment with Genoa—were due to his hearing aids malfunctioning, Mr. Kibler

testified that he did not recall. (Id.)

Mr. Kibler’s second affidavit contradicts his deposition testimony. In

Paragraphs 2 and 3, he details the reasons for both audiologist appointments and

says that his hearing aids neither failed nor malfunctioned at either appointment.4

(Kibler Aff. II, ECF No. 54-1.) Paragraph 4 includes an assertation that he has

“never experienced a malfunction or failure of [his] hearing aids while working as a

Firefighter.” (Id. at PAGEID # 3257.) Mr. Kibler does not identify what refreshed

his recollection about these appointments after his deposition. Paragraphs 2

through 4 plainly contradict his deposition testimony for which Mr. Kibler offers no

persuasive justification. Thus, the Court will disregard Paragraphs 2 through 4 of

Mr. Kibler’s second affidavit.

Genoa’s Motion to Strike Mr. Kibler’s second affidavit is GRANTED in part.

The Court will disregard Paragraphs 2 through 4 of Mr. Kibler’s second affidavit.

The Motion is otherwise DENIED.

III. CROSS-MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

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

4 Mr. Kibler’s second affidavit states that the audiologist appointments

occurred “[o]n or about” August 23, 2021 and January 22, 2022 but he later

concedes that he is referring to the August 26, 2021 and February 24, 2022

appointments discussed at his deposition. (ECF No. 61, PAGEID # 3349.)

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 Fed. R. Civ. P.

56). When evaluating a motion for summary judgment, the evidence must be viewed

in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970).

A genuine issue exists if the nonmoving party can present “significant

probative evidence” to show that “there is [more than] some metaphysical doubt as

to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.

1993). In other words, “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that

summary judgment is appropriate when the evidence could not lead the trier of fact

to find for the nonmoving party).

The standards on which a court evaluates motions for summary judgment “do

not change simply because the parties present cross-motions.” Taft Broad. Co. v.

United States, 929 F.2d 240, 248 (6th Cir. 1991) (citation omitted).

B. ANALYSIS

Mr. Kibler brings a failure to accommodate claim under the ADA and Ohio

law (Claims 1 and 2) and a disparate treatment claim under the ADA and Ohio law

(Claims 3 and 4).

Employers are prohibited from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §

12112(a). Discrimination is defined to encompass an employer's failure to “mak[e]

reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability,” unless the employer “can

demonstrate that the accommodation would impose an undue hardship on the

operation of the business[.]” Id. § 12112(b)(5)(A).

Whether brought under the ADA or Ohio law, disability discrimination

claims are analyzed in the same manner. Kleiber v. Honda of Am. Mfg., Inc., 485

F.3d 862, 872 (6th Cir. 2007); see also Daugherty v. Sajar Plastics, Inc., 544 F.3d

696, 702 (6th Cir. 2008) (“In light of the fact that Ohio’s disability discrimination

law parallels the ADA in all relevant respects, we apply the same analytical

framework[.]”).

1. Failure to Accommodate (Claims 1 and 2)

Courts analyzing disability discrimination claims use “two different rubrics,

depending on whether the plaintiff relies on ‘direct’ or ‘indirect’ evidence of

discrimination.” O’Donnell v. Univ. Hosps. Cleveland Med. Ctr., 833 F. App’x 605,

614 (6th Cir. 2020). Because failing to make a reasonable accommodation falls

within the ADA’s definition of “discrimination,” claims premised on an employer’s

failure to offer a reasonable accommodation “necessarily involve direct evidence [of

discrimination]” such that courts “jettison the familiar McDonnell Douglas burden-

shifting framework applicable in indirect-evidence cases.” Kleiber, 485 F.3d at 868–

69 (citation omitted).

Mr. Kibler must make a prima facie showing that Genoa failed to

accommodate his known disability and that his proposed accommodation was

reasonable. To do this, Mr. Kibler must demonstrate:

(1) he was disabled within the meaning of the statute; (2) he was

otherwise qualified for his position, with or without reasonable

accommodation; (3) the defendant knew or had reason to know about

his disability; (4) he requested an accommodation; and (5) the

defendant failed to provide the necessary accommodation.

King v. Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 560 (6th Cir. 2022)

(citation and internal quotation marks omitted) (cleaned up). If he makes this

showing, “the burden shifts to [Genoa] to demonstrate that [the] particular

accommodation would impose an undue hardship” on it as the employer. Johnson v.

Cleveland City Sch. Dist., 443 F. App’x 974, 983 (6th Cir. 2011).

Genoa disputes that Mr. Kibler was otherwise qualified for his position with

or without reasonable accommodation.

An individual is “otherwise qualified” if he can perform the “essential

functions” of the job with or without reasonable accommodation. 42 U.S.C. §

12111(8). When an accommodation is necessary to allow a plaintiff to perform the

essential functions of his position, it is the plaintiff’s burden to propose an

accommodation that is “objectively reasonable.” Kleiber, 485 F.3d at 870. In defining

what is reasonable, the Sixth Circuit has described the employee’s burden as

showing that the accommodation is reasonable in the sense both of efficacious and

of proportional to costs.’” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th

Cir.1996) (citation omitted). “Determining the reasonableness of a proposed

accommodation is a question of fact.” Blanchet v. Charter Commc’ns, LLC, 27 F.4th

1221, 1229–30 (6th Cir. 2022) (quoting Cassidy v. Detroit Edison Co., 138 F.3d 629,

634 (6th Cir. 1998)).

The parties agree that the essential functions of a firefighter/EMT are

performing firefighting and suppression tasks (including rescue, entry, ventilation

and salvage work) and other emergency response actions; these functions must be

performed while continuously wearing PPE and working in extremely hot or cold

environments for prolonged time periods. They also agree that Mr. Kibler failed to

meet the NFPA threshold, so that he cannot perform the essential job functions

without an accommodation. Mr. Kibler argues that there are three accommodations

that are reasonable and would allow him to perform the essential job functions: that

Genoa (1) allow him to work with his hearing aids; (2) require Mr. Kibler carry a

second pair of hearing aids as a backup; or (3) allow him to only work as an

engineer and not perform other firefighting duties at scenes.

With respect to the first two proposed accommodations, neither addresses

that the NFPA threshold is a threshold for unaided hearing. Mr. Kibler argues that

these accommodations are nevertheless reasonable because he used hearing aids in

both ears while working as a Firefighter/EMT for 15 years without issue, even

though he did not meet the NFPA threshold for the majority of that time. But, in

light of the evidence that Mr. Kibler’s hearing has worsened over time, Mr. Kibler’s

prior performance is not dispositive of his continued ability to meet the essential

qualifications of the Firefighter/EMT role. See Hummel v. Cnty. of Saginaw, 40 F.

App’x 965, 969 (6th Cir. 2002); Jones v. Walgreen Co., 679 F.3d 9, 18 (1st Cir. 2012)

(“[A]n ADA plaintiff may not rely on past performance to establish that []he is a

qualified individual without accommodation when there is undisputed evidence of

diminished or deteriorated abilities.”).

Nor does the fact that his hearing aids have not failed on the job establish

that continued use of his hearing aids would be a reasonable accommodation.

Indeed, Mr. Kibler’s hearing aids have, in fact, malfunctioned after exposure to

water. (Durst Dep., PAGEID # 251.) Further, Genoa has offered evidence that the

risk of Mr. Kibler’s hearing aids failing in an IDLH environment is not merely

speculative. Dr. Stanely C. Haimes (a physician who works on the technical

committee that established the NFPA threshold) testified that the NFPA 1582

Standard does not permit firefighters to use a hearing aid to meet the minimum

hearing threshold because hearing aids are not “designed for operation in structural

firefighting environmental conditions of elevated heat, water deluge, and humidity

and therefore being subject to unpredictable failure under those conditions.”

(Haimes Rep., PAGEID # 2076.) Dr. Haimes says that carrying a spare hearing aid

would not alleviate these safety concerns because “it would be extremely dangerous

- if not life threatening - to have the firefighter remove his personal protective

equipment” to replace his hearing aids while on a call. (Id.)

Mr. Kibler’s proposals to continue wearing hearing aids and/or carry a

backup pair were thus unreasonable in light of a firefighter’s reliance on his hearing

in low visibility situations and the testimony that hearing aids can unpredictably

fail in an IDLH environment. Mr. Kibler effectively argues that Genoa should

ignore its own policy and application of a national standard, recommendations from

a medical professional, and the danger posed by the potential and “unpredictable”

failure of hearing aids in an IDLH environment, in favor of hoping that nothing

goes wrong in the future. The law does not require Genoa to assume this risk.

Turing to his third accommodation, Mr. Kibler also fails to show that moving

him to an engineer position is reasonable. Genoa rejected this accommodation

because there was no full-time engineer position and because the engineer on scene

must still operate in an IDLH environment and perform fire suppression tasks.

(ECF No. 49, PAGEID # 3090–91; Ponzi Aff., PAGEID 3136.) While Mr. Kibler

counters that he could perform any firefighting functions with his hearing aids on

the “rare occasion” it became necessary to do so, this poses the same issue as the

first two proposed accommodations. Moreover, that the engineer may rarely perform

fire suppression tasks does not mean that firefighting tasks are not an essential job

function. This is particularly so when, as here, failing to (safely) perform the task

creates a serious risk for the employee, his coworkers, and the public. See Wardia v.

Justice and Public Safety Cabinet Dept. of Juvenile Justice, 509 F. App’x 527, 530

(6th Cir. 2013) (“Rarity alone will not support a denial of summary judgment: courts

will first look to the seriousness of failing to perform the low-probability job

function.”).

Mr. Kibler fails to create a genuine dispute that his proposed

accommodations were reasonable and will allow him to perform his essential job

functions. Accordingly, Genoa’s Motion for Summary Judgment is GRANTED on

Counts I and II and Mr. Kibler’s Motion for Summary Judgment is DENIED on

Counts I and II.5

2. Disability Discrimination

In addition to his claims that Genoa failed to accommodate his disability, Mr.

Kibler alleges that it discriminated against him based on his disability in violation

of both the ADA and Ohio law.

To establish a prima facie case of disability discrimination, Mr. Kibler must

show that (1) he is disabled; (2) he is otherwise qualified for the position, with or

without reasonable accommodation; and (3) he suffered an adverse employment

action because of his disability. Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th

Cir. 2016).

5 Mr. Kibler’s failure-to-accommodate claim also alleges that Genoa failed to

engage in the interactive process required by the ADA and Ohio law. Failure to

engage in the interactive process is only an independent violation of the law if the

plaintiff has established a prima facie showing that he proposed a reasonable

accommodation. Rorrer v. City of Stow, 743 F.3d 1025, 1041 (6th Cir. 2014). Because

the Court finds that Mr. Kibler has failed to establish that he proposed a reasonable

accommodation, the Court does not address this element of his claim.

As discussed in the context of his failure to accommodate claim, Mr. Kibler

has not shown that he was otherwise qualified for the Firefighter/EMT role with or

without a reasonable accommodation. His disability discrimination claim thus fails

for the same reason as his failure-to-accommodate claim.

Genoa’s Motion for Summary Judgment is thus GRANTED on Counts III

and IV. Mr. Kibler’s Motion for Summary Judgment is DENIED on Counts III and

IV.

IV. CONCLUSION

For the reasons above, Mr. Kibler’s Motion to Dismiss his age discriminations

claims (Claims 5 and 6) (ECF No. 46) is GRANTED. Genoa’s Motions to Strike

(ECF Nos. 50, 56) are GRANTED as to Chief Canterbury’s affidavit, Paragraphs 10

through 13 of Lt. Cochran’s affidavit, and Paragraphs 2 through 4 of Mr. Kibler’s

second affidavit. The Motions to Strike are otherwise DENIED. Genoa’s motion for

summary judgment (ECF No. 49) is GRANTED. Mr. Kibler’s motion for summary

judgment (ECF Nos. 48) is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON, CHIEF JUDGE

UNITED STATES DISTRICT COURT