Joe Allman v. Walmart, Inc.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0235p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOE B. ALLMAN, ┐

Plaintiff-Appellant, │

│

> No. 19-4220

v. │

│

│

WALMART, INC., │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:18-cv-00369—Sarah Daggett Morrison, District Judge.

Decided and Filed: July 30, 2020

Before: GILMAN, BUSH, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael T. Conway, MICHAEL T. CONWAY AND COMPANY, Brunswick,

Ohio, for Appellant. Alison M. Day, Benjamin W. Mounts, LITTLER MENDELSON, P.C.,

Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Joe B. Allman was employed as a commercial

truck driver by Walmart, Inc. After Allman’s supervisors required him to wear a continuous

positive airway pressure (CPAP) machine at night based on medical reports that Allman had

sleep apnea, he resigned. Allman has alleged that he was in fact constructively discharged from

Walmart due to its requirement that he wear the CPAP machine. He also claims that Walmart

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retaliated against him by requiring him to wear the device, in violation of Ohio Revised Code

Annotated § 4112.02(I), and that he was wrongfully terminated in violation of Ohio public

policy.

The district court granted summary judgment in favor of Walmart with respect to

Allman’s retaliation claim and granted Walmart’s motion to dismiss Allman’s wrongful-

termination claim. For the reasons set forth below, we AFFIRM the judgment of the district

court.

I. BACKGROUND

A. Factual background

1. Department of Transportation (DOT) regulations and Walmart’s sleep-

apnea program

Walmart’s requirement that Allman wear a CPAP machine is based on federal law.

Federal regulations require commercial truck drivers to be “medically certified as physically

qualified” to operate commercial motor vehicles. 49 C.F.R. § 391.41(a)(1)(i). A driver is not

physically qualified if he or she has an “established medical history or clinical diagnosis of a

respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial

motor vehicle safely.” 49 C.F.R. § 391.41(b)(5). “Respiratory dysfunction” includes sleep

apnea, which is listed under the “conditions that interfere with oxygen exchange and may result

in incapacitation.” 49 C.F.R. Pt. 391, App. A (E)(3).

Drivers must undergo an annual medical examination in order to be certified as

“physically qualified.” 49 C.F.R. § 391.41(a)(3). With exceptions not pertinent here, “the

medical examination must be performed by a medical examiner listed on the National Registry

of Certified Medical Examiners.” 49 C.F.R. § 391.43(a).

Against this regulatory backdrop, Walmart promulgated a sleep-apnea program for its

commercial truck drivers in 2013. Walmart contracted with a company called “SleepSafe

Drivers” (SleepSafe) to oversee this initiative. Under the program, drivers are screened for

sleep-apnea risk factors during their annual DOT medical examination and may be referred for

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further evaluation and treatment on this basis. Walmart provides these benefits without cost to

its drivers.

2. Allman’s employment with Walmart

Allman began working as a driver for Walmart in 2006. During Allman’s medical

examination in 2013, physician assistant David Burton determined that Allman was at risk for

sleep apnea and referred him for a sleep study. Allman asserts that the referral was based solely

on his body-mass index and neck circumference. But Allman had noted several risk factors for

sleep apnea in his intake form during the visit. He marked, for example, that he had diabetes and

high blood pressure, and he checked the box indicating that he experienced “[s]leep disorders,

pauses in breathing while asleep, daytime sleepiness, loud snoring.”

Allman subsequently underwent a sleep study conducted by Advanced Home Medical, a

SleepSafe contractor, and was diagnosed with sleep apnea. Pursuant to Walmart’s sleep-apnea

program, Allman was then instructed to wear a CPAP machine for four hours each night when

sleeping in his truck. But Allman found that wearing the device caused him “trouble.”

Specifically, he experienced dry mouth from wearing the CPAP machine, as well as headaches

and nosebleeds. He complained about the pain and discomfort caused by the device to his

supervisor, John Coburn; to a Walmart manager, Jesse Judge; and to a SleepSafe employee, Sean

Knight.

After several weeks of trying to use the CPAP machine, Allman’s compliance wavered.

Knight, who remotely monitored Allman’s use of the device, informed Allman that he was not in

compliance with Walmart’s sleep-apnea program and warned Allman that he would not be

allowed to drive unless he wore the CPAP machine. Allman was thereafter suspended twice for

not complying with Walmart’s requirement. Each time that Allman was suspended, he was

required to wear the CPAP machine for five consecutive nights in order to return to his duties.

In February 2014, Allman independently sought out a second sleep study at Adena

Hospital. The results of this sleep study, in contrast to the study by Advanced Home Medical,

showed that Allman did not have sleep apnea. After receiving this negative result, Allman

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stopped wearing the CPAP machine. He also informed his supervisor, Coburn, that he no longer

needed to use the device.

In response, Walmart manager Judge instructed Allman to undergo another DOT medical

examination in order to be recertified to drive. Allman returned to physician assistant Burton for

the exam on March 5, 2014. When Allman showed Burton the results of the Adena Hospital

sleep study, Burton issued Allman a new DOT certification card without conducting an

independent examination.

Despite Allman’s DOT recertification, Walmart Operations Safety Manager James

Murphy instructed Allman to participate in a third sleep study. According to Allman, Murphy

explained that the doctor who had performed Allman’s sleep study at Adena Hospital was not

board certified, and he requested that Allman undergo another sleep study arranged by

SleepSafe. (Allman disputes Murphy’s assertion that the doctor was not board certified, but he

provided no evidence that the doctor was listed on the National Registry of Certified Medical

Examiners.) Allman subsequently underwent a third sleep study at Mid Ohio Sleep Center on

March 7, 2014, resulting in a second diagnosis of sleep apnea. A SleepSafe representative then

instructed Allman to wear the CPAP machine for eight hours a night, seven days a week, and

both Murphy and Knight informed Allman that he would need to wear the machine for three

consecutive nights in order to return to work.

But Allman still refused to wear the CPAP machine. Coburn then requested that Allman

take the conflicting sleep studies to a second DOT medical examiner, who would evaluate the

reports. Allman was given seven days to do so. Rather than comply with the request, Allman

instead resigned from his employment with Walmart.

B. Procedural background

Allman filed suit against Walmart in the United States District Court for the Southern

District of Ohio. His claims are all premised on alleged violations of Ohio state law, with

jurisdiction based on diversity of citizenship. Allman asserted claims for (1) discrimination

based on perceived or claimed disability, in violation of Ohio Revised Code Annotated

§§ 4112.02(A) and 4112.99; (2) retaliation, in violation of Ohio Revised Code Annotated

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§ 4112.02(I); and (3) wrongful termination, in violation of Ohio’s public policy requiring safe

workplaces. As the case progressed, Allman voluntarily dismissed his discrimination claim. The

district court subsequently granted summary judgment in favor of Walmart on the retaliation

claim, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and it dismissed the

wrongful-termination claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. ANALYSIS

A. Standard of review

We review the district court’s grant of summary judgment de novo. Keith v. County of

Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “The court shall grant 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.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists

“if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Likewise, “[w]e review de novo a dismissal under Federal Rule of Civil Procedure

12(b)(6).” First Am. Title Co. v. Devaugh, 480 F.3d 438, 443 (6th Cir. 2007). Rule 12(b)(6)

provides that a complaint may be dismissed for “fail[ing] to state a claim upon which relief can

be granted.” We construe the complaint in the light most favorable to the plaintiff and determine

whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

B. Disability-retaliation claim

Allman contends that Walmart retaliated against him because of his complaints about

having to wear the CPAP machine, in alleged violation of Ohio Revised Code

Annotated § 4112.02(I). He argues that, although Walmart did not actually terminate him from

his position, Walmart told him that he would be fired if he did not wear the device. Allman thus

argues that the CPAP requirement resulted in his constructive discharge. He further contends

that Walmart was not acting out of an interest to protect the public on highways when it imposed

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the CPAP requirement, but rather to punish him for refusing to undergo an additional medical

examination and for rejecting the accommodation of the CPAP machine.

Because retaliation claims under Ohio law are analyzed the same way as under federal

law, see Mengelkamp v. Lake Metro. Hous. Auth., 549 F. App’x 323, 329–30 (6th Cir. 2013), we

may look to the analogous federal law in assessing Allman’s claim. Under Ohio and federal law,

a plaintiff asserting a retaliation claim must make a prima facie showing “that (1) [he] engaged in

a statutorily protected activity, (2) [he] suffered an adverse employment action, and (3) there was

a causal connection between the adverse employment action and the protected activity.” Bryson

v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007); see also Johnson v. Univ. Hosps. Physician

Servs., 617 F. App’x 487, 492 (6th Cir. 2015) (applying this framework to a claim under Ohio

Revised Code Annotated § 4112.02(I)). “[T]he burden shifts to the defendant to offer evidence

of a legitimate, non-discriminatory reason for the adverse employment action” once the plaintiff

has made out a prima facie case. Bryson, 498 F.3d at 570.

If the defendant offers a legitimate, nondiscriminatory reason, the burden shifts back to

the plaintiff to show that the reason was actually a pretext designed to mask unlawful

discrimination. Id. A plaintiff may prove pretext “by establishing that the proffered reason:

1) has no basis in fact; 2) did not actually motivate the adverse action; or 3) was insufficient to

motivate the adverse action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003).

After reviewing the record, we doubt that Allman has satisfied the elements to establish a

prima facie case of disability retaliation. His claim of having engaged in a “statutorily protected

activity” is particularly weak. But even assuming, without deciding, that Allman did establish a

prima facie case, we conclude that Walmart has offered a legitimate, nondiscriminatory reason

for its CPAP requirement and that Allman has failed to rebut this reason as pretextual. This

court has explained that “[a]n employee is not protected when he violates legitimate rules and

orders of his employer, disrupts the employment environment, or interferes with the attainment

of his employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312

(6th Cir. 1989). And Walmart’s program of requiring drivers who have sleep apnea to wear a

CPAP machine constitutes a legitimate safety requirement and disability accommodation.

No. 19-4220 Allman v. Walmart, Inc. Page 7

Our conclusion is supported by the record. Walmart had before it two separate studies

demonstrating that Allman had sleep apnea, and the company reasonably sought to ensure that

Allman’s twice-diagnosed medical condition was under control. See Butler v. Wash. Metro.

Area Transit Auth., 275 F. Supp. 3d 70, 82 (D.D.C. 2017) (viewing an employer’s requirement

that an employee show that his sleep apnea was controlled by a CPAP machine as “an eminently

reasonable balance between the individual interests of employees with disabilities and the safety

standards required or necessitated by . . . regulation” (internal quotation marks omitted)).

Although Allman offers several arguments as to why Walmart’s CPAP requirement was

pretextual, his contentions are not persuasive. First, Allman disputes the validity of the two sleep

studies showing that he had sleep apnea by asserting that (1) he was awake during the duration of

the first sleep study, and (2) the monitoring equipment had fallen off his body during the second

sleep study, thereby waking him up. But he offers no reason why Walmart should be required to

believe Allman’s account over that of the company’s certified professionals. See Self v. Bnsf Ry.

Co., No. A-14-CA-618-SS, 2016 WL 543245, at *15 (W.D. Tex. Feb. 9, 2016) (holding that an

employer is “not required to rely upon [the plaintiff’s] own opinion (or a physician’s restatement

of [the plaintiff’s] opinion) that he no longer suffered from sleep apnea, and was permitted, for

safety reasons, to verify whether the sleep apnea had remitted or not”).

Second, Allman points to the sleep study from Adena Hospital as evidence that he does

not have sleep apnea, thus making the CPAP requirement pretextual. But Allman does not

explain why Walmart should be compelled to accept evidence offered from Allman’s chosen

doctor over the two diagnoses made by SleepSafe, especially because he has offered no evidence

that the doctor belonged to the National Registry of Certified Medical Examiners. See id. We

find no basis to infer from this evidence that Walmart was motivated to require Allman to wear

the CPAP machine “out of spite,” as Allman suggests.

Third, Allman argues that his DOT recertification by physician assistant Burton in 2014

shows that Walmart’s CPAP requirement was pretextual. But Allman cites no case holding that

an employee’s DOT card carries such legal weight. Indeed, cases from within this circuit

suggest that employers may permissibly disregard DOT cards issued in error. See Cummings v.

Dean Transp., Inc., 9 F. Supp. 3d 795, 804 (E.D. Mich. 2014) (holding that an employer was

No. 19-4220 Allman v. Walmart, Inc. Page 8

permitted to remove an employee after it learned that a DOT card had been issued in error

because “[p]lacing an uncertified person behind the wheel of one of its vehicles would have

exposed [the employer] to both civil and criminal liability” (internal quotation marks omitted));

Broadway v. United Parcel Serv., Inc., 499 F. Supp. 2d 992, 1001 (M.D. Tenn. 2007) (holding

that an employer may “deny the plaintiff the package driver position on the basis that he does not

meet the minimum requirements established by the DOT, although he has inexplicably obtained

a card saying that he does”).

Allman’s first two sleep studies conflicted, and this alone would have provided a

sufficient basis to question Allman’s recertification. The results of Allman’s third sleep study,

which were obtained after Burton issued the DOT card, would have further suggested to

Walmart that Allman’s DOT certification might have been in error. And although Allman

contends that Walmart was not permitted to require him to undergo the third sleep study, he

provides no basis for this assertion. We believe, to the contrary, that Walmart reasonably

required Allman to reconcile the conflicting results of the two previous studies.

Although Allman disagrees with Walmart’s assessment of the information at its disposal

at the time that it imposed the CPAP requirement, we conclude that “arguing about the accuracy

of the employer’s assessment is a distraction because the question is not whether the employer’s

reasons for a decision are right but whether the employer’s description of its reasons is honest.”

Hardesty v. Kroger Co., 758 F. App’x 490, 493 (6th Cir. 2019) (quoting Smith v. Chrysler Corp.,

155 F.3d 799, 806 (6th Cir. 1998)) (emphases in original). And because Walmart has shown “its

reasonable reliance on the particularized facts that were before it at the time the decision was

made,” we find no basis to infer that its reason for requiring Allman to wear the CPAP machine

was pretextual. See id. (quoting Smith, 155 F.3d at 807).

Walmart’s offer to provide an additional DOT medical examination to Allman to resolve

the dispute reinforces our conclusion. As the district court noted, the “sincerity of Walmart’s

belief [that Allman had sleep apnea] is . . . borne out by Walmart’s instruction to Mr. Allman to

take the conflicting medical reports to another doctor in an apparent effort to reconcile the

conflicting medical evidence and settle the matter.” We further note that Allman himself

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believed that Walmart had required him to wear the CPAP machine because Walmart’s

management was “convinced that I had sleep apnea.”

In sum, Allman has failed to rebut Walmart’s legitimate reason for requiring him to wear

the CPAP machine. His claim that Walmart retaliated against him based on his perceived

disability therefore fails.

C. Wrongful-termination claim

Allman also asserts that the district court improperly dismissed his claim for wrongful

termination. Although Ohio has traditionally followed an employment-at-will doctrine, which

allows employers to terminate workers “for any cause,” Painter v. Graley, 639 N.E. 2d 51, 55

(Ohio 1994) (citation and internal quotation marks omitted), an exception to this rule exists

where an employee has been discharged in violation of public policy, Greeley v. Miami Valley

Maint. Contractors, Inc., 551 N.E.2d 981, 986 (Ohio 1990), narrowed in part by Tulloh v.

Goodyear Atomic Corp., 584 N.E.2d 729 (Ohio 1992). As the Supreme Court of Ohio has

explained, this exception derives from the need for “a proper balance” between “the employer’s

interest in operating a business efficiently and profitably, the employee’s interest in earning a

livelihood, and society’s interest in seeing its public policies carried out.” Collins v. Rizkana,

652 N.E.2d 653, 657 (Ohio 1995) (internal quotation marks omitted).

“The existence of such a public policy may be discerned by the Ohio judiciary based on

sources such as the Constitutions of Ohio and the United States, legislation, administrative rules

and regulations, and the common law.” Painter, 639 N.E.2d at 56. Allman grounds his claim on

Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio 1997), where the court explained that

“[t]he public policy of [Ohio] demands that employees be provided with a safe work

environment and that unsafe working conditions be corrected.” Id. at 322 (citing Ohio Revised

Code Annotated § 4101.12, which provides for the “duty of employer to furnish safe place of

employment”). Accordingly, “[r]etaliation against employees who file [Occupational Safety and

Health Administration (OSHA)] complaints concerning unsafe or unhealthy conditions in the

workplace is an absolute affront to Ohio’s public policy favoring workplace safety.” Id.

No. 19-4220 Allman v. Walmart, Inc. Page 10

Although Allman does not allege that he filed an OSHA complaint, he claims to have opposed

the “unsafe working condition” of the CPAP machine by refusing to wear the device.

This leads us to Allman’s so-called Greeley claim, the elements of which are as follows:

1. That [a] clear public policy existed and was manifested in a state or

federal constitution, statute or administrative regulation, or in the common

law (the clarity element).

2. That dismissing employees under circumstances like those involved in the

plaintiff’s dismissal would jeopardize the public policy (the jeopardy

element).

3. The plaintiff’s dismissal was motivated by conduct related to the public

policy (the causation element).

4. The employer lacked overriding legitimate business justification for the

dismissal (the overriding justification element).

Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003) (quoting Collins, 652 N.E.2d at

657–58) (emphases in original).

To start with, Allman has failed to satisfy the “jeopardy element” of Greeley. Under the

three-step jeopardy analysis employed by this court, we must

(1) determine what kind of conduct is necessary to further the public policy at

issue; (2) decide whether the employee’s actual conduct fell within the scope of

conduct protected by this policy; and (3) consider whether employees would be

discouraged from engaging in similar future conduct by the threat of dismissal.

Himmel, 342 F.3d at 599 (citation and internal quotation marks omitted). The employee must

also have given the employer clear notice “that he is invoking a governmental policy as the basis

for his complaint, not just his own self-interest.” Jermer v. Siemens Energy & Automation, Inc.,

395 F.3d 655, 659 (6th Cir. 2005).

Allman’s claim fails to satisfy the jeopardy element’s threshold three-step analysis, to say

nothing of the notice requirement in Jermer. Although Allman claims that he opposed unsafe

working conditions by refusing to wear the CPAP device, we are hard-pressed to understand the

logic of his argument. Walmart’s CPAP requirement was not an unsafe working condition, but

instead a disability accommodation meant to promote public safety on the highways and to

ensure compliance with federal law.

No. 19-4220 Allman v. Walmart, Inc. Page 11

And to the extent that Allman claims to have been retaliated against for complaining

about the device, we acknowledge that Allman need not have been “certain that the seemingly

inappropriate conduct is actually illegal,” but he must still have held a good-faith belief that his

complaint was valid. See Himmel, 342 F.3d at 600. In this context, we believe that “good faith”

required an objectively reasonable belief that the CPAP machine was an unsafe working

condition. Nothing in the record before us would allow a reasonable person to hold such a

belief. Allman’s personal discomfort in wearing a CPAP machine that so many others have

successfully used to alleviate the dangers of sleep apnea is indeed unfortunate, but his personal

discomfort does not satisfy the jeopardy element of his Greeley claim.

Moreover, although the district court did not address the legitimate-business-justification

element in response to Walmart’s motion to dismiss because the element involves a question of

fact, “this court may affirm the judgment of the district court on any grounds supported by the

record, even if they are different from those relied upon by the district court.” Kennedy v.

Superior Printing Co., 215 F.3d 650, 655 (6th Cir. 2000). And because the “overriding

justification element[] of a public policy wrongful discharge claim involve[s] considerations of

factors similar to those used in determining whether an employee was unlawfully discharged in a

statutory retaliation claim,” Whitaker v. First Energy Nuclear Operating Co., 2013 WL

4792860, at *7 (Ohio Ct. App. Sept. 6, 2013), we may consider our retaliation-claim analysis in

assessing Allman’s Greeley claim, see id. at *8 (granting summary judgment in favor of the

employer after concluding that the employee’s Greeley claim failed to raise a genuine dispute of

material fact). Walmart offered a legitimate reason for requiring Allman to undergo another

DOT examination, and Allman failed to raise a genuine dispute as to whether that reason was

pretextual. Allman’s Greeley claim therefore fails on the same basis as his retaliation claim.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.