Petition for Writ of Certiorari — Ventura v. City of Independence

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97-11 7 JUL 16 1997

In The n

Supreme Court of The United States

October Term 1996

JOHN A. VENTURA,

Petitioner,

Vv.

CITY OF INDEPENDENCE;

WALTER ELLERT; DOROTHY ORNAS;

DENNIS MESSINA; GEORGE SPILKER,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

with Appendix

*Timothy N. Toma

TIMOTHY N. TOMA CO.,L.P.A.

27801 Euclid Ave. #500

Euclid, Ohio 44132

(216) 261-0200

Attorneys for Petitioner

*Counsel of Record

LEGAL ADVAN T AGE = 432 Walnut Street * Cincinnati, OH 45202

P FOR Ww

1. Whether a plaintiff should not be precluded

as a matter of law from protection under the Americans

with Disabilities Act ("ADA") as a result of involvement in

some normal activities.

2. Whether the assessment if an individual is.

substantially limited in one or more major life activities

should be made without regard to mitigating measures such

as medicines or assistive or prosthetic devices.

3. Whether a court inappropriately enters summary

judgment on an issue not raised or argued by the movant.

PAR T E

The petitioner is John Ventura, an individual.

The respondent, City of Independence, is a munici-

pal corporation in Cuyahoga County, Ohio.

The respondents Walter Ellert, Dorothy Ornas,

Dennis Messina and George Spilker are individuals and

employees of the respondent, City of Independence.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....... i

PARTIES TO THE PROCEEDING ........... ii

Ti Oe PUT TRPIEED 00 cei cece ee vi

PETITION FOR WRIT OF CERTIORARI ....... l

SEN ee CN sic 8 acd a vaeee l

STATEMENT OF JURISDICTION ............ 2

STATUTORY PROVISIONS INVOLVED ....... 2

STATEMENT OF THE CASE..........000000. 2

A. PO ahh ho he dS Wo Ge Bch acai te beige oes s 2

B. District Court Proceedings .............. 4

C. OS SS SEES ee 5

REASONS FOR GRANTING THE WRIT........ 6

A. The Court of Appeals’ Decision

Conflicts with the Intent of Congress

and the Purpose of the ADA ............ 7

B. The Decision Below Conflicts with

Decisions in Other Circuits ............ 15

ili

TABLE OF CONTENTS Continued

ie The Court of Appeals and District Court

Departed from the Accepted and Usual Course

of Judicial Proceedings so as to Call for

Exercise of this Court’s Power of

I cs org oes Grant aed ore. wake 19

LAPP 5 hos bo eee ee e 23

APPENDICES

A. March 4, 1997 Opinion of the

United States Court of Appeals

for the Sith Circuit ........... 1-13

B. April 18, 1995 Memorandum

and Order of the United States

District Court for the Northern

Everest OE GH kg ce eas 1-26

C. April 18, 1997 Decision of the Sixth

Circuit Court of Appeals Denying

are 1-2

D. August 9, 1995 Brief of the Plaintiff/

Appellant to the Sixth Circuit Court

i. as ite oe 1-28

October 19, 1994 Defendants’ Motion

for Summary Judgment and Brief in

Support to the United States

gk a en eee 1-6

Excerpts of the Deposition of

FUR VOR nk Be RA SS 1-9

G2 Cie Eee a kk eos ees 1-4

424 BA SES «hs Fe hk 1-2

42 RIGS. OEE nis Sees Bes 1-5

“2 UGA. OTa08e « fiasbwenee 1-7

pba 2 ee a eee 1-12

29 C.F.R. App. § 1630.2(j) ....... 1-2

Wall Street Journal, February 18,

ide 2 re as 1-1

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co.,

396 U.S. 144 (1970)... eee ce ccsce MS

Celotex Corp. v. Catrett,

GTT U.S. S07 CAFE os ek 20-21, 23

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. G57 CEOS seiko 60s en ee Oe 17

Fountain v. Filson,

3350 US. GEl CIS 6. Gace eee 21

Gaddy by and through Gaddy v. Four B Corp.,

953 F.Supp. 331 (D.Kan. 1997) .......... 13, 18

Harris v. H & W Contracting Company,

102 F.3d 516 (11th Cir. 1996) ........... 16-18

Heilweil v. Mt. Sinai Hosp.,

32 F356 718 Cone Ce. 1996) oe kickin ceca 13

Helen L. v. DiDario,

46 F.3d 325 (3rd Cir. 1995) ......... 10, 12, 17

Milton v. Bob Maddox Chrysler, Plymouth, Inc.,

868 F.Supp. 320 (S.D.Ga. 1994) ........... 13

TABLE OF AUTHORITIES

Cases Continued

Roth v. Lutheran Gen. Hospital,

TR eo fy. 2% A.) Pe 16

Staron v. McDonald's Corp.,

Sr Pe Oas GR Gs ESE oe cece neeens 13

Webb v. Garelick Mfg. Co.,

94 F.3d 484 (8th Cir. 1996) .............. 19

Statutes

Be Sh ORD 5 0 xielile False we eek Oe 2

Bs Ta ol ak A ees 2 eS 10

42 U.S.C. § 12101-12,

Americans with Disabilities Act

ig oe Sr ee ee 2, 8, 9-12, 14-19

Regulations

29 C.F.R. § 1630.2

(and the appendix thereto) ..... 2, 7, 15, 16, 17-19

Vil

TABLE OF AUTHORITIES Continued

Rules

ee Gy MD SUE ive nd serene eee ee ks 6, 23

Legislative Reports

H.R. Rep. No. 101-485(1]), 101st Cong.

2d Sess. at 52 (1990), 1990 U.S. Code

Cong. & Admin. News at 334 ............. 17

H.R. Rep. No. 101-485(IID), 101st Cong.

2d Sess. at 28-29 (1990), 1990 U.S. Code

Cong. & Admin. News at 451 ............. 17

S. Rep. No. 116, 101st Cong.

ae Ce Se eee 6k oo nace eae ee 17

Other References

Burgdorf,

The Americans with Disabilities Act:

Analysis and Implications of a Second-

Generation Civil Rights Statute,

26 Harv. C.R.-C.L. L. Rev. 413, 431 (1991) ... 10

Wall Street Journal,

Poormary 16, 1997 01, C0. 3S occ tee 10

Vill

In the

Supreme Court of the United States

October Term, 1997

JOHN A. VENTURA

Petitioner,

CITY OF INDEPENDENCE; WALTER ELLERT;

DOROTHY ORNAS; DENNIS MESSINA;

GEORGE SPILKER

Respondents.

PETITION FOR WRIT OF CERTIORARI

John Ventura respectfully asks that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals for the

Sixth Circuit, review of which is sought, is unreported

and is reproduced in the Appendix attached to this

Petition at App. A. The Memorandum and Order of

the District Court for the Northern District of Ohio is

unreported and is reproduced in the Appendix attached

to this Petition at App. B.

STATEMENT OF JURISDICTION

The decision of the Court of Appeals was

entered on March 4, 1997. A timely petition for

rehearing and rehearing en banc filed by the petitioner

was denied on April 18, 1997. (App. C.)

The Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutes involved lie within the Americans

with Disabilities Act, 42 U.S.C. § 12101 et. seqg., and

especially 42 U.S.C. § 12101, 12102, 12111 and

12112. Also the pertinent regulations involved are 29

C.F.R. § 1630.2 and the appendix thereto. Pertinent

provisions of these statutes and regulations are repro-

duced at App. G through L.

STATEMENT OF THE CASE

A. Facts

JOHN VENTURA was employed with the

Service Department of the CITY OF INDEPENDENCE

from May 1977 until June 21, 1993. (App. B-2, B-7.)

Around 1991, VENTURA developed asthma. (App. B-

2, B-3.) With the use of medications (Ventolin,

Atrovent and Vanceril), VENTURA was able to contin-

ue to do his job and engage in some exercise and other

normal activities. (App. A-6, A-7, B-4, D-6,

D-7, D-26, D-27; see, also, Ventura Depo., p. 103-104,

147-150, 259-262, attached hereto as App. F.) With

the asthma, VENTURA was unable to work around

diesel fumes, had to avoid extremes in temperature and

humidity and had to avoid working irregular hours.

(App. A-3, B-3, B-5, D-4, D-5, D-25, D-26.) Despite

these restrictions, there were numerous jobs which

VENTURA could still perform. (App. D-6,

D-7.) Even though the CITY would accommodate

other employees in making job assignments, it refused

to take consideration of VENTURA’s asthma. Indeed,

rather than attempting to accommodate his asthma, his

supervisors purposely assigned VENTURA to jobs

which they knew would provoke his condition. (App.

D-9 thru D-11.) In one instance, VENTURA was

forced to work outside continuously on a bitterly cold

day in February while his co-workers were allowed to

warm up in a back-up vehicle. (App. D-12, D-13.)

The CITY demoted VENTURA from Grade I to

Grade III because of his asthma. (App. B-5, B-6, D-9.)

Grade I and Grade III employees perform essentially

the same tasks. (App. D-1, D-2.) The only real differ-

ence is that Grade I employees have supervisory

responsibilities. (/d.) WENTURA’s asthma did not

restrict his ability to supervise other employees and he

was asked to do so even after his demotion. (App. D-

9, D-10.)

Because his employer refused to make any real

accommodation for his asthmatic condition, VENTURA

was eventually forced to leave his job on June 21,

1993. (App. D-13.)

B. District Court Proceedings

On December 21, 1993, VENTURA initiated

this action by filing suit in the United States District

Court, Northern District of Ohio. On October 19,

1994, the defendants all jointly moved for summary

judgment. (App. E.) In making this motion before

the trial court, the defendants did not dispute that

VENTURA was disabled as defined under the ADA.

To the contrary, the defendants maintained in their

summary judgment motion that VENTURA was

indisputably so disabled that they could not reasonably

accommodate him without undue hardship. (App. E-1

to E-6.)

While the defendants asserted that reasonable

minds were compelled to conclude that VENTURA

was too disabled, the district court held that reasonable

minds were compelled to conclude that VENTURA

was not disabled at all. (App. B-15, B-16.) Conse-

quently, the district court granted the defendants’ mo-

tion, but for reasons totally contrary to those raised by

defendants. The district court held that VENTURA’s

asthma did not substantially limit his major life activi-

ties of working or breathing because he continued to

exercise, play a musical instrument and engage in other

physical activities. (App. B-15 to B-20.) The district

court failed to consider or address the fact that VENT-

URA’s ability to engage in other activities was the

result of his taking medication to control his asthma.

C. Court of Appeals

VENTURA appealed the decision of the district

court to the Sixth Circuit Court of Appeals. As part of

that appeal, VENTURA raised the procedural error of

the district court granting summary judgment on an

issue never raised by the movant. (App. D-27 to D-

29.) VENTURA further noted the logical inconsistency

of the defendants’ and district court’s positions, which

is particularly troubling on summary judgment. (App.

D-29.)

Nonetheless, on March 4, 1997, the Sixth Circuit

affirmed the district court’s decision, finding that

VENTURA was not disabled as defined under the

ADA because he is able to engage in different activi-

ties. (App. A-6, A-7.) The Court of Appeals did not

even address the procedural problem of granting

summary judgment on an issue not raised by the

movant. The Sixth Circuit also failed to consider the

extent to which VENTURA’s ability to engage in other

activities was made possible by his taking proper

medication to control his asthma.

VENTURA timely filed a Petition for Rehearing

En Banc. On April 18, 1997 this petition for rehearing

was denied. (App. C.)

REASONS FOR GRANTING THE WRIT

Certiorari is appropriate in this case under Sup.

Ct. Rule 10.1(a) and 10.1(c). The Sixth Circuit has

decided an important question of federal law that has

not been, but should be, settled by this Court. In

particular, the Sixth Circuit has decided as a matter of

law that an individual who attempts to engage in some

normal activities, even with the use of assistance such

as medication, cannot be protected as disabled under

the ADA. This decision conflicts with the intent of

Congress to establish clear, consistent and enforceable

standards to eliminate discrimination against individuals

with disabilities. The Sixth Circuit’s decision also

conflicts with other courts of appeals which have

recognized the validity of EEOC interpretive guidelines

which indicate that whether an impairment substantially

limits a major life activity should be assessed without

considering mitigating measures such as medication.

See, 29 C.F.R. App. § 1630.2(j) (App. L hereto). Also,

the court, in affirming summary judgment on an issue

never raised or argued by the movant, so far departed

from the accepted and usual course of judicial proceed-

ings as to call for an exercise of this Court’s power of

supervision.

A. The Court of Appeals’ Decision Conflicts

with the Intent of Congress and the Pur-

pose of the ADA.

In 1990, Congress enacted the Americans with

Disabilities Act ("ADA") to expand the protection

under the federal law for persons with disabilities.

Among the reasons the ADA was enacted are that:

(1) some 43,000,00 Americans have

one or more physical or mental

disabilities, and this number is

increasing as the population as a

whole is growing older;

einai

(2) historically, society has tended to

isolate and segregate individuals

with disabilities, and, despite

some improvements, such forms

of discrimination against individ-

uals with disabilities continue to

be a serious and pervasive social

problem;

(8) the Nation’s proper goals regard-

ing individuals with disabilities

are to assure equality of opportu-

nity, full participation, indepen-

dent living, and economic self-

sufficiency for such individuals;

42 U.S.C. § 12101(a)

As the Eighth Circuit has noted:

The purpose of the ADA is

broad and remedial: it is de-

Ss TT

signed to provide ’a clear and

comprehensive national mandate

for the elimination of discrimina-

tion against individuals with

disabilities.’

Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir.

1996); quoting in part 42 U.S.C. § 12101(b)(1).

Congress also stated as its purpose in enacting

the ADA:

- to provide clear, strong, consis-

tent, enforceable standards ad-

dressing discrimination against

individuals with disabilities;

- to ensure that the Federal Gov-

ernment plays a central role in

enforcing the standards estab-

lished in this Act on behalf of

individuals with disabilities; and

- to invoke the sweep of congres-

sional authority, including the

power to enforce the fourteenth

. amendment and to regulate com-

merce, in order to address the

major areas of discrimination

faced day-to-day by people with

disabilities.

42 U.S.C. § 12101(b)(2)-(4) (emphasis added).

As the Third Circuit has noted, the ADA was

enacted to remedy the shortcomings of § 504 of the

Rehabilitation Act (29 U.S.C. § 794) including "the

limited extent of its coverage, inadequate enforcement

mechanisms and erratic judicial interpretations." Helen

L. v. DiDario, 46 F.3d 325, 331 (3rd Cir. 1995), citing,

Burgdorf, The Americans with Disabilities Act: Analy-

sis and Implications of a Second-Generation Civil

Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413, 431

(1991).

The ADA is not being enforced in a clear and

consistent manner, which is defeating the congressional

purpose of providing a "comprehensive national man-

date for the elimination of discrimination against in-

dividuals with disabilities." 42 U.S.C. § 12101(b)(1).

Indeed, the Wall Street Journal has reported that

employers prevail in about ninety percent (90%) of the

lawsuits filed under the ADA because of the "Catch-

22" often faced by workers in showing that they are

capable of performing their jobs but that their disabili-

ties substantially affect them. Wall Street Journal,

February 18, 1997 at 1, col. 5 (attached hereto at App.

M-1).

This case graphically illustrates the "Catch-22"

which is defeating the purpose of the ADA. While the

defendants moved for summary judgment claiming that

VENTURA was too disabled to be accommodated

without undue hardship, the district court and the Sixth

Circuit found that VENTURA was not disabled at all

because he could still engage in some other normal

activities. (App. A-6, A-7, B-15 to B-20, E-1 to

E-6.)

There are two opposite parameters established by

Congress for a person to be entitled to protection under

the ADA. First, the individual must meet the threshold

of being disabled. 42 U.S.C. § 12102. The disability,

however, cannot be so limiting as to preclude reason-

able accommodation without undue hardship. 42

U.S.C. § 12111(8) to (10). In this case, those parame-

ters have been narrowed so much that they literally

overlap, eliminating any area in between in which an

employee could be considered qualified and disabled.

What is particularly disturbing is that these

issues were determined on summary judgment rather

i than at trial. While a finder of fact might ultimately

decide that an individual is either too disabled or not

disabled at all, on summary judgment the employee

need only arguably fall within the protected classifica-

tion. Thus, on summary judgment the parameters

ought actually be broader. Unless the plaintiff is

indisputably not disabled or indisputably unable to be

reasonably accommodated, summary judgment on these

issues are inappropriate. The irreconcilable contradic-

tion between the defendants and the courts below

reflects the need for this Court to clarify and delineate

the proper parameters so that the ADA provides "clear,

strong, enforceable standards" as Congress intended.

42 U.S.C. § 12101(b)(2).

The Sixth Circuit, in this case, inappropriately

narrowed the parameters of what is considered a

disability under the ADA by holding that VENTURA’s

efforts to live as full a life as possible (considering his

condition), including limited exercise and playing a

musical instrument, precluded him, as a matter of law,

from being considered disabled. (App. A-6, A-7.)

This is certainly inconsistent with the purpose and

intent of the ADA "to assure equality of opportunity,

full participation, independent living, and economic

self-sufficiency." 42 U.S.C. § 12101(a)(8); see, also,

Helen L., 46 F.3d at 332-33. From a policy standpoint,

a disabled individual would be well advised, based on

the Sixth Circuit’s decision in this case, to crawl into

a hole and avoid engaging in any activity which might

————EEEE

be used to question his or her disability. This works

directly against the purpose of the ADA to encourage

full participation and independent living for disabled

individuals.

There is a divergence of opinion among various

SOA SAP sl EARE OD BA ETE ‘ srede s

courts on this issue. Some courts, along with the Sixth

Circuit in this case, have viewed involvement in certain

activities as preclusive of an individual being consid-

ered disabled. See, Heilweil v. Mt. Sinai Hosp., 32

F.3d 718, 723-24 (2nd Cir. 1994)'; Gaddy by and

through Gaddy v. Four B Corp., 953 F.Supp. 331, 337

(D.Kan. 1997). Other courts, however, have realized

that a person need not be totally debilitated and have

recognized the existence of a disability for individuals

still able to engage in some activities. See, e.g., Milton

v. Bob Maddox Chrysler, Plymouth, Inc., 868 F.Supp.

320, 324-25 (S.D.Ga. 1994).

The Sixth Circuit, in this case, recognized that

"The determination of whether a particular impairment

constitutes a disability must be made on a case-by-case

/ Interestingly, the Second Circuit in Staron v. McDonald's

Corp., 52 F.3d 353, 355 (2nd Cir. 1995), recognized the purpose of

the ADA to establish clear, strong, consistent, enforceable standards’

in allowing a suit to proceed seeking to require the defendants to

eliminate smoking in their restaurants to accommodate allergies and

sensitivity to cigarette smoke.

basis." (App. A-5.) Indeed, there are numerous factual

considerations which must be made to determine

whether a particular individual is disabled. See, e.g.,

29 CFR. § 1630.2(g), (h), (i) and (j); 29 C.F.R. App.

§ 1630.2(j). Thus, the determination of whether a par-

ticular individual is disabled is essentially a factual

questions which is not generally appropriately deter-

mined by the Court on summary judgment.

The Sixth Circuit correctly notes that "Blanket

determinations that a particular condition is not a

disability should be avoided." (App. A-5.) The Court,

however, made just such a blanket determination that

VENTURA’s efforts to live as active a life as possible

precluded him from the protection of the ADA as a

matter of law.

If the congressional purpose of providing "clear,

strong, consistent and enforceable standards" under the

ADA is to be fulfilled, this Court needs to clarify that

involvement in other activities will not preclude

protection under the ADA as a matter of law, but that

the issue is a factual one for trial.

This case is particularly appropriate for this

Court to address this issue. The record demonstrates

VENTURA’s asthmatic condition and the limitations it

imposed on him. The record also demonstrates that

VENTURA, with the use of medication, was still able

to perform a number of jobs with the CITY and has

been able to engage in several other activities, even if

on a more limited basis.

Indeed, VENTURA is precisely the type of

individual the ADA was intended to benefit. While

certainly not debilitating, his asthma caused substantial

limitations which required some reasonable accommo-

dation to allow him to work and live a full life.

Judicial activism is no more appropriate when it

fails to enforce rights and remedies which have been

enacted by Congress than when it creates such rights or

remedies on its own. Congress has established the

ADA as a broad remedy for those affected with various

disabilities. This Court needs to consider this case so

that the ADA will be properly and consistently en-

forced as intended by Congress.

B. The Decision Below Conflicts with Deci-

sions in Other Circuits.

The Equal Employment Opportunity Commis-

sion ("EEOC") has promulgated interpretive guidelines

for Title I of the ADA. 29 C.F.R. App. § 1630.

Among those guidelines, it is stated:

The determination of whether an individ-

ual is substantially limited in a major life

eee

must be made on a case by case basis,

without regard to mitigating measures

such as medicines, assistive or prosthetic

devices.

29 C.F.R. App. § 1630.2(j) (emphasis added).

The validity of this guideline has been expressly

recognized by at least two circuits. In Harris v. H &

W Contracting Company, 102 F.3d 516, 520-21 (11th

Cir. 1996), the Court found that the interpretive guid-

ance was based on a permissible construction of the

ADA and was supported by the statute’s legislative

history. See, also, Roth v. Lutheran Gen. Hospital, 57

F.3d 1446, 1454 (7th Cir. 1995). As stated in the

legislative reports:

Whether a person has a disability should

be assessed without regard to the avail-

ability of mitigating measures, such as

reasonable accommodations or auxiliary

aids. For example, a person who is hard

of hearing is substantially limited in the

major life activity of hearing, even

though the loss may be corrected through

the use of a hearing aid. Likewise, per-

sons with impairments, such as epilepsy

or diabetes, which substantially limit a

major life activity are covered under the

first prong of the definition of disability,

even if the effects of the impairment are

controlled by medication.

H.R. Rep. No. 101-485(II), 101st Cong.2d Sess. at 52

(1990), 1990 U.S. Code Cong. & Admin. News at 334;

see, also, H.R. Rep. No. 101-485(II]), 101st Cong.2d

Sess. at 28-29 (1990), 1990 U.S. Code Cong. &

Admin. News at 451; S. Rep. No. 116, 101st Cong. Ist

Sess. at 23 (1989).

The Eleventh Circuit in Harris relied on this

Court’s decision in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843-45

(1984) in recognizing that the agency’s interpretation of

the statute it is entrusted to administer is given "consid-

erable weight" and is not to be disturbed unless it

appears from the statute or legislative history that

Congress intended otherwise.” Consequently, in

Harris, 102 F.3d at 522-23, the Court followed the

interpretive guidance of 29 C.F.R. App. § 1630.2() in

: Similarly, in Helen L., 46 F.3d at 329-33, the Third Circuit

analyzed the history and purpose of the ADA in depth in recognizing

the validity of the regulations under the standards of Chevron.

considering whether the plaintiff was substantially

limited in a major life activity without regard to

mitigating measures.

In this case, the Sixth Circuit summarily dis-

missed VENTURA from protection under the ADA

because he was able to engage to a limited extent in

some normal activities. (App. A-5, A-6.) The Sixth

Circuit, however, failed to follow the interpretive

guidance of 29 C.F.R. App. § 1630.2(j) by failing to

consider that VENTURA’s ability to engage in these

activities is the result of his taking certain medications

to control his asthma. (App. F.)

The Sixth Circuit is not alone in this regard.

Other courts have refused to follow the interpretive

guidance of 29 C.F.R. App. § 1630.2(j) even though it

is expressly supported by the legislative history. See,

e.g., Gaddy by and through Gaddy, 953 F.Supp. at

337. Other courts have recognized the validity of the

interpretive guidelines, as did the Eleventh Circuit in

Harris, in assessing whether the individual is substan-

tially limited in a major life activity without consider-

ing mitigating factors. See, e.g., Sicard v. City of Sioux

City, 950 F.Supp. 1420, 1430-39 (N.D. Iowa 1996).

The extent to which an individual may be

considered substantially limited in a major life activity

will certainly depend in large part on whether or not

be Aa agit Miia PN Ba ree nichite need

adr te th ORI TAN are i ele ohn oh iy Medi 2 Bone

ee La i UN any RE A DET? ELE st a Boe eh.

mitigating measures such as medicines, assistive or

prosthetic devices are considered. The Sixth Circuit’s

finding in this case that VENTURA is not disabled

because of his engagement in other activities failed to

consider the fact that this was made possible through

the use of medication. Thus, the Sixth Circuit's

decision cannot be reconciled with the interpretive

guidelines of 29 C.F.R. App. § 1630.2(j) or the case

law upholding it. If the ADA’s purpose of providing

clear, strong, consistent and enforceable standards is to

be realized, it is imperative that this Court resolve this

issue.

C. The Court of Appeals and District Court

Departed from the Accepted and Usual

Course of Judicial Proceedings so as to

Call for Exercise of this Court’s Power of

Supervision.

The district court granted summary judgment

finding that VENTURA was not sufficiently disabled

to be entitled to protection under the ADA. (App. B-

15 to B-20.) The defendants, however, argued in the

Motion for Summary Judgment that VENTURA’s

disability was so severe that he could not even perform

the essential functions of his job and that his condition

could not be reasonably accommodated without undue

hardship. (App. E1-E6.)

This Court’s decision in Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986) is often cited for

the principal that a non-moving party must produce

evidence showing a genuine dispute on issues which

that party bears the burden of proof at trial. What is

ignored, however, at least in this casé, is that Celotex

confirms that this burden on the non-moving party

arises only afte the moving party has at least made a

"showing" of an absence of a genuine issue concerning

any material fact. Celotex, 477 U.S. at 325-26; see,

also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 159

(1970).

In Celotex, 477 U.S. at 323, this Court estab-

lished that it is not necessary for the moving party to

support its motion "with affidavits or other similar

materials negating an opponent’s claim." This Court,

nonetheless, maintained that:

Of course, a party seeking summary

judgment always bears the initial respon-

sibility of informing the district court of

the basis for its motion, and identifying

those portions of "the pleadings, depo-

sitions, answers to interrogatories, and

aaa

admissions on file, together with the

affidavits, if any," which it believes

demonstrates the absence of a genuine

issue of material fact.

In this case, unlike in Celotex, the defendants

made no "showing" whatsoever of a lack of a genuine

issue concerning VENTURA’s disability. At no time

‘n their motion did they suggest that VENTURA was

not at least disputably disabled. (See, App. E hereto.)

As the defendants made no showing whatsoever on this

issue, VENTURA had no burden to come forward with

evidence.

As this Court has noted, summary judgment may

be rendered sua sponte only if the party is put on

adequate notice by the Court to come forward with

evidence on an issue. Celotex, 477 US. at 326;

Fountain v. Filson, 336 U.S. 681, 682-83 (1949). If

the courts below believed there was an issue making

this case prone for summary judgment which had not

been raised by the defendants, the proper procedure

would have been to notify the parties and order brief-

ing on the issue. Without this notice and an opportuni-

ty to brief the issue and to submit affidavits at the trial

court level, it was inappropriate for summary judgment

to be entered on an issue never raised or argued by the

moving party.

This failure to follow proper procedure was

specifically raised and argued to the Sixth Circuit on

appeal. (App. D-27 to D-29.) The Sixth Circuit,

however, never even addressed this procedural problem

in affirming the district court’s decision on the same

issue of disability.

The ramifications of this failure to follow proper

procedure is significant. A party may move for

summary judgment on one particular issue, such as

damages or proximate cause, for example. Based on

the procedure followed by the courts below in this

case, the non-moving party would be required to

support its entire case even though other issues are

uncontested by the moving party on summary judg-

ment.

As presented in his brief to the Sixth Circuit

(App. D) and previously in this brief, VENTURA

maintains that there is adequate evidence in the record

to establish at least a genuine issue for trial regarding

his disability. That, however, does not negate the

prejudice to the plaintiff in being unable to further

support the record at the trial court level with affidavits

or other appropriate materials in response to a properly

plead motion or notice from the court that the issue

was being considered.

Entering summary judgment on an issue never

raised or argued by the moving party, without provid-

ing notice that the issue was being considered, departs

from the usual course of judicial proceedings and

conflicts this Court’s decisions in Celotex and Adickes.

Consequently, it is imperative that this Court address

the issue in the exercise of its power of supervision.

CONCLUSION

For the reasons set forth herein, the Court’s

standards for granting certiorari, as set forth in Sup. Ct.

Rule 10.1, are well met in this case. Consequently, the

petitioner respectfully submits that the petition should

be granted.

Respectfully submitted,

TIMOTHY N. TOMA (#0038717)

Attorney for PETITIONER

TIMOTHY N. TOMA CO., L.P.A.

27801 Euclid Avenue #500

Euclid, Ohio 44132

(216) 261-0200

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

~ *

OPINION

Sixth Circuit Case N®. 95-3582

Decided March 4, 1997

Pages A-1 thru A-13

NOT RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit Rule 24

N&. 95-3582

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN VENTURA

Plaintiff-Appellant, : ON APPEAL from the

United States District

V. Court for the

Northern District

CiTY OF INDEPENDENCE, of Ohio

WALTER ELLERT, DOROTHY

ORNAS, DENNIS MESSINA AND

GEORGE SPILKER,

Defendants-Appellees.

Decided and Filed March 4, 1997

Before: MERRITT and COLE; Circuit Judge;

ECHOLS, District Judge.

‘The Honorable Robert L. Echols, United States District

Judge for the Middle District of Tennessee, sitting by

designation.

Apdx. A - |

PER CURIAM. Plaintiff John Ventura appeals the

district court’s grant of summary judgment in favor of the

defendants in his employment, discrimination suit under

Title I of the Americans With Disabilities Act ("ADA"), 42

U.S.C. §§ 12111-12117. Ventura alleges that his asthma

constitutes a disability under the ADA and argues that his

former employer, the City of Independence, Ohio, and

several city officials (collectively, the "City") discriminated

against him on the basis of that disability by reclassifying

him, reducing his pay, and failing to accommodate his

physical restrictions. Ventura also claims that the City

breached its collective bargaining agreement with the

American Federation of State, County and Municipal

Employees, and retaliated against him in violation of 42

U.S.C. § 12203 of the ADA for filing a charge with the

Equal Employment Opportunity Commission ("EEOC").

Finally, Ventura alleges under state law that the City

intentionally caused him emotional distress. For the

following reasons, we AFFIRM the district court’s grant of

summary judgment.

This court reviews a district court’s grant of summary

judgment de nova, using the same standard employed by the

district court. City Mgmt. Corp. v United States Chem. Co.

Inc., 43 F.3d 244, 250 (6th Cir. 1994); Kraus v. Nobel

Corrugated Containers Inc., 915 F.2d 227, 229 (6th Cir.

1990); see Moore v. Phillip Morris Cos., 8 F.3d 335, 339

(6th Cir. 1993). Summary judgment is appropriate where

Apdx. A - 2

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In deciding upon a motion

for summary judgment, we must view the factual evidence

and draw all reasonable inferences in favor of the

non-moving party. Matsushita Alec. Ind. Co. v Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

II.

Ventura first contends that the district court erred in

concluding that his asthma does not constitute a disability

within the coverage of the ADA. Ventura presented

evidence to the district court that his asthma causes him

difficulty in breathing and prevents him from working

around diesel fumes, in high humidity or in extreme

temperatures. He also notes that his asthma restricts his

ability to work irregular hours, such as the night shift.

Ventura argues that he presented sufficient evidence to the

district court to establish that his asthma significantly

impairs his ability to work and breathe and, thus, that he is

"disabled" within the meaning of the ADA.

The ADA mandates that an employer shall not

discriminate against "a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or

Apdx. A - 3

discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment." 42 U.S.C. § 12112. In order to assert a

claim of discrimination under the ADA, a plaintiff must

satisfy the threshold requirement of demonstrating that he

or she is disabled under the statute. See Jasany v. United

States Postal Serv., 755 F.2d 1244, 1248 (6th Cir. 1985)

(construing the Rehabilitation Act of 1973, 29 U.S.C. §§

701-96, the model for the ADA).? Many physical or

"When Congress drafted the ADA, it intended that the

case law developed under the Rehabilitation Act would

serve as a guide to interpreting the ADA’s provisions. See

e.g. H.R. Rep. No. 485. 101st Cong., 2d Sess., pt. 3, at 41,

42 (stating that the flexible approach used under the

Rehabilitation Act for determining undue hardship is

appropriate for the ADA as well and noting that, "[l]ike the

Rehabilitation Act the burden is on the employer to

demonstrate that the needed accommodation would cause an

undue hardship") (citing Nelson v Thornburgh, 567 F. Supp.

369 (E.D. Pa. 1983) as an example of the Rehabilitation

Act case law serving as a guide to ADA courts in utilizing

a flexible approach to determining undue hardship).

Thus, Congress has specifically directed that courts

impose similar standards under the Rehabilitation Act and

the ADA to prevent inconsistent or conflicting requirements.

See 29 U.S.C. § 794(d) (stating that the standards used to

determine whether there has been a violation of this section

shall be the same as those applied under Title I of the

ADA); 42 U.S.C. § 12117 (b) (directing that the agencies

Apdx. A - 4

‘canna ete eer

mental impairments “do not impact an individual’s life to

the degree that they constitute disabling impairments." 29

C.F.R. pt.1 630, App. § 1630.2(j). Rather, a physical or

mental impairment "rises to the level of disability if the

impairment substantially limits one or more of the

individual’s major life activities." Jd; see 42 U.S.C. §

12102(2)(A) (defining a disability as "a physical or mental

impairment that substantially limits one or more of the

major life activities of [an] individual ...."). "’Major life

activities’ are those basic activities that ’the average person

in the general population can perform with little or no

difficulty . . . [such as] caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.”"" 29 C.F.R. pt. 1630, App. §

1630.2(i). The determination of whether a particular

impairment constitutes a disability must be made on a

case-by-case basis. Blanket determinations that a particular

condition is not a disability should be avoided. See 29

C.F.R. pt. 1630, App. § 1630.2(j) ("The determination of

whether an individual has a disability is... based... on

the effect of that impairment on the life of the individual.

charged with enforcing the ADA and Rehabilitation Act

shall coordinate their procedures so as to prevent the

"imposition of inconsistent or conflicting standards for the

same requirements under this title and the Rehabilitation

Act of 1973").

Apdx. A - 5

Some impairments may be disabling for particular indivi-

duals but not for others ....").

In the present case, Ventura has failed to demonstrate

that his asthma substantially impairs his ability to breathe or

work and, thus, has failed to demonstrate that he is disabled

under the ADA. Ventura admitted at his deposition that,

since he was diagnosed with asthma, he has engaged in a

number of activities that belie his claim that his ability to

breathe and work have been significantly restricted. For

example, Ventura admitted that his asthma has not

prevented him from playing baseball and football,

performing calisthenics, walking, playing the saxophone,

occasionally running, singing, and water skiing. There is

also evidence that, although Ventura may be precluded from

working as a Grade I maintenance employee for the City,

he is able to engage in numerous other types of

employment. See Heilweil v. Mount Sinai Hosp., 32 F.3d

718, 723 (2d Cir. 1994) ("An impairment that disqualifies

a person from only a narrow range of jobs is not considered

a substantially limiting one.") (citing Jasany 755 F.2d at

1249 n.3.). Ventura admits that he has engaged in

employment-related activities such as landscaping, painting,

laying ceramic tile, constructing residential decks,

plastering, pressure-washing buildings, and working as a

late-night security officer. Considering that Ventura is able

to perform a wide range of activities and hold several

different types of jobs, we do not believe that his inability

Apdx. A - 6

to perform the duties of the Grade I maintenance position

with the City renders him disabled within the meaning of

the ADA. See Byrne v. Board of Educ., 979 F.2d 560, 565

(7th Cir. 1992) (holding that "an inability to perform a

particular job for a particular employer is not sufficient to

establish a handicap; the impairment must substantially limit

employment generally.")

Accordingly, Ventura has failed to offer sufficient

evidence to demonstrate that his asthma has substantially

impaired his ability to work or breathe or impacted any

other major life activity. Thus, the district court did not err

in concluding that Ventura was not disabled within the

meaning of the ADA and granting the City summary

judgment as to Ventura’s discrimination claim.

IV.

Ventura next contends that the district court erred in

concluding that he failed to establish a prima facie~case of

retaliation in violation of the ADA. See 42 U.S.A. §

12203(a) ("No person shall discriminate against any

individual because such individual has opposed any act or

practice made unlawful by this chapter or because such

individual made a charge, testified, assisted or participated

in any manner in an investigation, proceeding, or hearing

under this chapter."). Specifically, Ventura alleges that the

City "discharged" him as a part-time patrol officer because

he had filed a charge of disability discrimination with the

Apdx. A - 7 “

EEOC.’ Ventura notes that he had filed the EEOC charge

eight months earlier concerning his demotion from a Grade

I to a Grade III maintenance position in another City

department. Ventura also notes that his "termination letter"

was sent on the same day that an EEOC investigator

conducted an on-site investigation of his disability

discrimination charge.

To establish a prima facie case of retaliation, Ventura

must show that (1) he was engaged in a protected activity;

(2) the City knew of his exercise of this protected activity;

(3) the City then took an adverse employment action; and

(4) there was a causal connection between the protected

activity and the City’s actions. See Canitia v. Yellow

Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)

(citing Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987)).

Once the plaintiff has established a prima facie case, "the

burden shifts to the defendant ’to rebut the presumption of

discrimination by producing evidence that the plaintiff was

rejected, or someone else was preferred, for a legitimate,

”

nondiscriminatory reason.’"" Manzer v. Diamond Shamrock

*Ventura received a letter from the Chief of Police,

Anthony Appenzeller, in April 1993. The letter informed

Ventura that, because he had not worked for more than a

year as a part-time patrol officer, he was required to submit

to retraining and return all equipment issued to him. The

letter itself did not state whether Ventura’s employment was

terminated.

Apdx. A - 8

Chem. Co., 29 F.3d 1078, 1082 (6th Cir. 1994) (quoting

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

254 (1981)); see Jasany, 755 F.2d at 1249-50 n.5 (applying

the McDonnell Douglas analysis and burden- shifting

analysis to handicap discrimination cases). The plaintiff

must then produce direct, indirect, or circumstantial

evidence that the employer’s decision was a result of his or

her disability. See Gagne v. Northwestern Nat'l Ins. Co.,

881 F.2d 309, 314 (6th Cir. 1989); see Manzer, 29 F.3d at

1084.

Plainly put, Ventura failed to establish a prima facie

case of retaliation trader the ADA. Although Ventura

engaged in a protected activity when he filed a charge of

disability discrimination with the EEOC, he has not estab-

lished the remaining elements of the retaliation claim. First,

Ventura has failed to produce any evidence that Chief

Appenzeller was even aware that Ventura had filed an

EEOC complaint. Cf Landefeld v. Marion General Hosp.,

Inc., 994 F.2d 1178 (6th Cir. 1993) (finding that plaintiffs

failure to prove that the board of directors had knowledge

of the plaintiffs disability prevented the plaintiff from

recovering for discrmininatory discharge under the Rehabili-

tation Act). Moreover, as the district court noted, the mere

fact that Chief Appenzeller’s letter was sent on the same

day that an EEOC investigator conducted an on-site investi-

Apdx. A - 9

gation at the City garage’ is insufficient to support an

inference of discrimination. Although the timing of events

is relevant in determining whether a plaintiff has put forth

a prima facie case of retaliation, see Canitia, 903 F.9d at

1066, evidence that certain events occurred in close proxi-

mity is insufficient, standing alone, to support such a claim.

Second, Ventura has failed to show that the City ever

took adverse employment action against him. Chief

Appenzeller’s letter stated only that, according to the Ohio

Peace Officers Training Council, Ventura was required to

submit to retraining and turn in his equipment because he

had not been active as a patrol officer for more than one

year. Ventura has failed to provide any evidence that the

letter constituted a termination letter and has not

demonstrated any discriminatory enforcement of the rules

of the Ohio Peace Officers Training Council. For example,

Ventura produced no evidence that other patrol officers

were inactive for more than one year were not required to

undergo retraining or turn in their equipment.

Third, Ventura failed to show any causal connection

“Ventura worked at the City garage in his maintenance

position, not in his position as a par-time patrol officer.

Thus, Chief Appenzeller would not have even known about

the on-site investigation unless informed by others.

Apdx. A - 10

between his "discharge" from his part-time patrol officer

position and his filing of an EEOC complaint. Because

Ventura failed to produce any evidence that Chief

Appenzeller was even aware of his EEOC complaint,

Ventura cannot show that Appenzeller sent him the letter on

that basis.

Fourth, even assuming that Ventura established a

prima facie case of discrimination, his claim nevertheless

fails as the City articulated a legitimate, non-discriminatory

reason for its actions which Ventura failed to rebut. See

Manzer, 29 F.3d at 1082. Specifically, the City notes that,

under Ohio law, a peace officer must turn in his equipment

if he has not worked in more than one year and fails to

undergo required retraining. Not only has Ventura failed to

rebut the City’s assertion he readily admits that he failed to

meet these requirements and, as such, was required by law

to turn in his equipment. Thus, even if Ventura had estab-

lished a prima facie case of discrimination, he has failed to

rebut the City’s articulated, nondiscriminatory reason for

Chief Appenzeller’s sending the letter.

Ventura also contends that the district court erred by

granting summary judgment in favor of the City on his

claims under the City’s collective bargaining agreement.

Ventura argues that the City breached the agreement when

it recategorized him from a Grade I to a Grade Iil

Apdx. A - 11

maintenance position and refused to accommodate his

alleged disability.” Notably, Ventura does not contest the

district court’s finding that his claims under the collective

bargaining agreement are "coextensive with his rights under

the ADA."

Because we have concluded that Ventura is not

disabled within the meaning of the ADA and because the

district court found that Ventura’s rights under the ADA

and the agreement are coextensive, we conclude that the

City did not breach the agreement when it recategorized

Ventura from a Grade I to a Grade III maintenance posi-

tion. Thus, the district court properly granted summary

judgment in favor of the City on Ventura’s claim for breach

of contract.

VI.

Ventura finally contends that the district court erred

in dismissing his state law claims. However, once a district

court has dismissed all of a plaintiff's federal claims, that

court may decline to exercise supplemental jurisdiction over

any remaining state law claims. See 28 U.S.C. §1367(c)(3);

Landefeld, 994 F.2d at 1182 (holding that, where the federal

*Plaintiff asserts that the primary distinction between a

Grade I employee and a Grade III employee is that the

former is expected to supervise or lead a crew. The

reclassification also resulted in a fifty-eight-per-hour

reduction in pay.

Apdx. A - 12

claims are dismissed before trial, the state claims should be

dismissed as well) (quoting Taylor v. First of America

Bank-Wayne 973 F.2d 1284, 1287 (6th Cir. 1992)). Because

the district court properly granted summary judgment on all

of Ventura’s federal claims, it did not err in declining to

exercise supplemental jurisdiction over his remaining state

claims and dismissing those claims without prejudice.

Vil.

Accordingly, the district court’s grant of summary

judgment in favor of the defendants is AFFIRMED.

Apdx. A - 13

APPENDIX B

Na 2) ae oe

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MEMORANDUM AND ORDER

Civil N®%. 1:93-CV-2701

filed April 18, 1995

Pages B-1 thru B-26

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN A. VENTURA,

Plaintiff,

)

) Case No. 1:93CV2701

vs. )

)

Memorandum and Order

CITY OF INDEPENDENCE, )

et al., )

Defendants. )

Plaintiff John A. Ventura brings this action in which

he alleges that the City of Independence, Ohio; Walter

Ellert; Dorothy Ornas; Dennis Messina and George Spilker

(collectively the "City" or the "defendants) discriminated

against him in violation of the Americans with Disabilities

Act, 42 U.S.C. § 12101 through § 12213, ("ADA" or the

"Act") when, instead of accommodating his known dis-

ability, they reclassified him and reduced his pay. Ventura

also claims that the City breached its collective bargaining

agreement with the American Federation of State, County,

and Municipal Employees ("AFSCME"), and retaliated

against him in violation of 42 U.S.C. § 12203 of the ADA

for filing a charge with the Equal Employment Opportunity

Commission ("EECC"). Ventura further alleges under state

law that the defendants intentionally caused him emotional

distress.

Apdx. B - |

Defendants move this Court to grant summary

judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure (the "Rules"). For the reasons discussed below,

the Court grants summary judgment in favor of defendants

as to Ventura’s Claims 1, 2, and 3 and dismisses, without

prejudice, Ventura’s state law claims under Claims 4 and 5.

The undisputed facts are as follows: Ventura was

hired by the City on May 1, 1977 as a Grade III

maintenance person in the City’s Service Department. On

December 18, 1977, Ventura was promoted to a Grade II

maintenance position, and on December 5, 1982, he was

promoted to a Grade I maintenance position. Ventura served

as a Grade I maintenance person through October 1991.

Sometime during late 1991, Ventura developed an

asthmatic condition. On November 30, 1991, Ventura

submitted a note to defendant Ornas, the Service Director

for the City, from Dr. Papsidero. According to the note,

Papsidero recommended that Ventura not work the midnight

shift or "irrigular" [sic] hours. The note did not explain

why Dr. Papsidero requested the restriction, nor did the note

describe any mental or physical impairment which would

otherwise require a restriction. Ventura admitted that he

never submitted any information concerning his medical

condition to support Papsidero’s requested restriction, and

Apdx. B - 2

refused to discuss his medical condition with Ornas.

Ventura Dep. at 138-141. Nevertheless, even without

supporting medical documentation, the City honored

Ventura’s request. Ventura was not required to perform any

Grade I duties which would have required him to work

during the hours mentioned in the requested restriction.

On December 16, 1991, Ventura presented Ornas

with a restriction recontest from Dr. Weiner. According to

Weiner’s note, Ventura suffered from asthma which is

exacerbated by diesel fumes. Weiner advised only that

Ventura should be "excused from driving trucks if he has

problems." Ornas Affidavit, Exh. 6. Accordingly, the city

adjusted Ventura’s work schedule and job duties; Ventura

was not required to operate the garbage truck, work after

midnight, or work near diesel vehicles. Instead, venture

was assigned to operate gasoline-fueled vehicles, perform

general laborer functions and work in the recycling

program.

On January 24, 1992, at the behest of the city,

Ventura was examined by Dr. Bray. Ina March 13, 1992

letter to Ornas, Bray explained that Ventura "has asthma,

which is made worse by diesel fumes." Bray cautioned that

venture needed to avoid diesel fume irritants, but noted that

Apdx. B - 3

"([b]y definition, asthma is a reversible and temporary

constriction of the airways." Ventura Exh. A-3.

During his deposition, Venture stated that, despite

his asthmatic condition and the restrictions recommended by

a number of physicians, he was able to pursue a wide range

of activities. Ventura noted that during the period at issue

he had worked as a part-time police officer for the city, as

a part-time security officer during late evenings and early

mornings at a local nightclub, and as a part-time landscaper.

Ventura acknowledged that he paints and remodels houses

and does construction work. Ventura stated during his

deposition that he played a saxophone in a band which

performed in bars, basements, and at parties. Ventura also

said that he swims regularly, exercises, walks, does

calisthenics, lifts weights, stretches and occasionally runs

and waterskis.

On February 13, 1992, the city and AFSCME

entered into an agreement to address Ventura’s request to be

excused from driving city garbage trucks. Ventura’s

reluctance to drive the truck was the result of an October

1991 incident in which a fellow employee was injured while

riding a truck driven by Ventura. In his deposition, Ventura

testified that he did not tell the city that he could not drive

the garbage truck, but only "asked for some time" before

resuming those activities. According to the Memorandum

Apdx. B - 4

of Understanding, Ventura agreed to submit to psycho-

therapy treatments through May 1, 1992, later extended

through August 28, 1992, after which the city and

AFSCME agreed to reevaluate Ventura’s condition and job

classification. The city continued to pay Ventura at the

Grade I rate and did not require him to drive the garbage

truck, work after midnight or work on diesel-powered

vehicles.

Bray reexamined Ventura on July 29, 1992. Ina

July 30, 1992 letter to Ornas, who by that time had been

replaced by defendant Ellert as the city’s Service Director,

Bray again noted that Ventura suffered from asthma. ~

According to the letter, "there are certain reliable provokers

of his symptoms, such as diesel fumes, cigarette/cigar

smoke, high humidity, and vigorous exercise in cold

weather." Bray stated in the letter that Ventura should be

restricted in his exposure to diesel fumes and, while he

could work irregular hours, he should not work during the

"six hours or so after midnight.". Bray also noted that

Ventura has increased his exercise which has "specifically

restored some sense of well-being and endurance. .. .

Ventura Ex. A-5.

On August 30, 1992, as provided in the Memo-

randum, Ellert, with the assistance of Ornas, reviewed the

essential functions of the Grade I position and the

Apdx. B - 5

restrictions recontested by Ventura and his physicians.

Ellert determined that Ventura could not perform the

essential functions of the Grade I position, but could

perform the essential functions of a Grade III position.

Accordingly, Ellert reclassified Ventura as a Grade III

maintenance person and assigned him concomitant Grade III

duties. The city advised Ventura that if his job restrictions

were removed, he would be considered for re-classification.

Ellert Affidavit, {4 3-5.

On August 31, 1992, one day after being reclas-

sified, Ventura was examined by Dr. Sauers. Sauers

determined that Ventura is allergic to certain grasses, dust

molds and animal hairs. Ventura did not report the results

of Sauers’ examination to defendants. Shortly thereafter

Ventura filed a charge with the EEOC in which he alleged

that the defendants discriminated against him on the basis

of disability.

According to Ventura’s amended complaint, on April

23, 1993, approximately eight months after Ventura filed

the EEOC charge, the same day an EEOC investigator

conducted an on-site investigation of Ventura’s October 1,

1992 disability discrimination charge, Anthony Appenzeller,

the Chief of Police, terminated Ventura from a part-time

patrol officer position. Ventura alleges that this termination

was in retaliation for his filing of the charge. Appenzeller’s

Apdx. B - 6

April 28, 1993 letter to venture noted that Ventura had not

worked for at least a year and that according to the Ohio

Peace Officers Training Council, officers who have not

worked for a year or more must submit to retraining. The

letter also requested that Ventura return all equipment

issued to him. Appenzeller’s letter did not state whether

ventura~s employment was being terminated.

On May 14, 1993, Ventura filed an additional charge

with the EEOC in which he claimed that Appenzeller termi-

nated his employment with the police department in retalia-

tion for his earlier filed complaint against the city.

On June 21, 1993, Ventura had difficulty breathing

while cleaning a storm sewer catch basin. Immediately

after the incident, Ventura took sick leave and was

examined by Dr. Sauers. During his examination, Ventura

introduced the topic of seeking disability benefits and

indicated that he intended to explore the possibility. Sauers

Dep. at 74. Sauers gave Ventura a note which recom-

mended that Ventura "take an extended leave from work

due to his Bronchial Asthma and Chronic Fatigue Syndrome

until further notice." Ventura, Ex. A-8. Eight days later,

on June 29, 1993, Ventura filed a claim for permanent

disability with the Public Employees Retirement System of

Ohio (TAPERS"). Ventura never returned to work for the

city.

Apdx. B - 7

According to his PERS disability benefits claim,

Ventura was unable to work in diesel fumes, humidity, cold

air, dust, smoke, asphalt vapors or during irregular hours.

Sauers’ report, attached to the disability application,

provided that Ventura suffered from Bronchial Asthma,

dust, mold and grass pollen allergy and chronic fatigue

syndrome. Sauers did not indicate when Ventura could

return to work and what restrictions, if any, would be

necessary to permit Ventura to return to work. In Sauers’

Affidavit he stated that "I recommended Mr. Ventura for

disability due to the fact that the refusal by his employer to

make these accommodations made it impossible for him to

perform his job." Sauers Affidavit, § 2. On February 22,

1994, PERS granted Ventura a full disability pension

retroactive to August 1, 1993.

Il.

Federal Rule of Civil Procedure 56 (c) governs

summary judgment motions. Specifically, Rule 56 (c)

provides:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show that there is no

genuine issue as to any material fact and

Apdx. B - 8

that the moving party is entitled to a

judgment as a matter of law.

Fed. R. Civ. P. 56 (c) ; Celotex Cord. v. Call, 477 US.

317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986); Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 477 U.S. at 323.

The moving party must demonstrate through

reference to pleadings and discovery responses the absence

of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. at 323. The burden on the nonmoving

party is to show, through the use of evidentiary materials,

the existence of a material fact which must be tried. Id.

"The mere existence of a scintilla of evidence in support of

the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff." Anderson, 477 U.S. at 251-52. "The question on

review of a summary judgment ’is whether the evidence

presents a sufficient disagreement to require submission to

a jury or whether it is so on" sided that one party must

prevail as a matter of law’". National Rifle Ass’n_v.

Handgun control Fed’n, 15 F.3d 559, 561 (6th

Cir.)(quoting Anderson, 477 U.S. 242, 251-52 (1986)), cert.

denied, 115 S.Ct. 71 (1994). The court’s task is to engage

in "the threshold inquiry of determining whether there is the

need for a trial - whether, in other words, there are any

Apdx. B - 9

genuine factual issues that properly can be resolved in favor

of either party." Id. at 250.

In order to determine whether to grant a summary

judgment motion, this Court must view the evidence in a

light most favorable to the non-moving party to determine

whether a genuine issue of material fact exists. Adickes v.

S.H. Kress & Co., 398 U.S. 144 (1970); White v. Turfway

Park Racing Ass’n. Inc., 909 F.2d 941, 943-44 (6th Cir.

1990). A fact is "material" only if its resolution will affect

the outcome of the lawsuit. Anderson v. Liberty Lobby,

Inc., 477 U.S. at 248. Determination of whether a factual

issue is "genuine" requires consideration of the applicable

evidentiary standards. In most civil cases, therefore, the

court must decide "whether reasonable jurors could find by

a preponderance of the evidence that the [non-moving

party] is entitled to a verdict." Id. at 252.

Ill.

A. Ventura’s Disability Discrimination Claim

The ADA prohibits employers from "discriminat[ing]

against a qualified individual with a disability because of

the disability of such individual 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

Apdx. B - 10

U.S.C. § 12112(a). Initially, Ventura must establish that (1)

he has a disability; and (2) he is an otherwise qualified

individual. See Jasany v. United States Postal Serv., 755

F.2d 1244, 1250 (6th Cir. 1985); Chandler _v. City of

Dallas, 2 F.3d 1385, 1390 (Sth Cir. 1993), cert. denied, 114

S.Ct. 1386 (1994).

Section 12102(2) of the ADA provides:

The term "disability" means, with respect to an

individual--

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities. ...

Accordingly, in order to avoid summary judgment Ventura

must produce specific facts to demonstrate that a genuine

issue remains for trial as to whether he has an impairment

and whether that impairment substantially limits a major life

activity. Jasany, 755 F.2d 1244, 1249-50 (6th Cir.1985).

See also Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (2d

Cir. 1994), cert. denied, 115 S. Ct . 1095 (1995); Dutton

v. Johnson County Bd. of County Comm’r _, 859 F. Supp.

498, 504-05 (D. Kansas 1994).

While the ADA does not define the terms

"impairment," "substantially limits," or "major life

Apdx. B - 11

activities," EEOC regulations implementing Title I of the

ADA are instructive.' See School Bd. of Nassau County

v. Airline, 480 U.S. 273, 107 S.Ct. 1123 (1987). The ADA

regulations at 29 C.F.R. § 1630.2(h)(1) define a physical

impairment as a "physiological disorder, or condition,

cosmetic disfigurement, or anatomical loss affecting one or

more of the following body systems: . . .respiratory. . ."”

Ventura has produced ample evidence that he has an

asthmatic condition which obviously affects his respiratory

system.

The mere fact that an individual has an asthmatic

| condition is insufficient to support an inference that the

| individual is disabled under the ADA. In order for Ventura

| to be protected by the ADA, his asthmatic condition must

substantially limit a major life activity. Although the ADA

does not define Major life activities," the ADA regulations

provide that "major life activities" include "functions such

as caring for oneself, performing manual tasks, walking,

'This case involves allegations of disability

discrimination by a public entity under Title II which

incorporates by reference the employment definitions of

Title I. 28 C.F.R. § 35.140.

>The ADA regulations adopt the definition of Major life

activities" found in the regulations to the Rehabilitation Act

of 1973, 29 U.S.C. §§ 701-96.

Apdx. B - 12

g—— Kei

seeing, hearing, speaking, breathing and working." 29

C.F.R. § 1630.2(i).! Ventura must offer some evidence,

therefore, to establish that there is a genuine issue of

material fact as to whether he is substantially limited in

either the major life activity of breathing or working.

The ADA regulations provide six factors to consider

in determining whether a condition substantially impairs a

major life function. The first three factors which "should

be considered" are:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the

impairment; and

(iii) The permanent or long term impact, or the

expected permanent or long term impact of or

resulting from the impairment.

29 C.F.R. § 1630.2(j)(2).

In order to determine whether an individual is

limited in the major life activity of working, the regulations

suggest three additional factors for consideration, including:

(A) The geographical area to which the individual

has reasonable access;

(B) The job from which the individual has been

disqualified because of an impairment, and the

Apdx. B - 13

number and types of jobs utilizing similar training,

knowledge, skills or abilities, within that geo-

graphical area, from which the individual is also

disqualified because of the impairment (class of

jobs); and/or

disqualified because of an impairment, and the

number and types of other jobs not utilizing similar

training, knowledge, skills or abilities, within that

geographical area, from which the individual is also

disqualified because of the impairment (broad range

of jobs in various classes).

Id. § 1630.2(j)(3)(ii). Courts agree that in order to

determine whether an individual is substantially impaired in

the major life function of working it is appropriate to

consider the individual’s ability to perform other duties in

the work place, as well as his or her ability to engage in

other activities, including exercise, recreation and other

work or employment. See. e.g., Jasany v. United States

Postal Serv., 755 F.2d 1244, 1249-50 (6th Cir. 1985).

Generally, the exclusion from one position does not

substantially limit a major life activity. See. e.a., Fugua v.

Unisys Corp., 716 F. Supp. 1201, 1205-06 (D. Minn. 1989).

"An impairment that affects only a narrow range of jobs can

be regarded as not reaching a major life activity or as not

Apdx. B - 14

substantially limiting one." Jasany v. United States Postal

Serv., 755 F.2d 1244, 1249 n.3 (6th Cir. 1985). Under the

ADA, "an individual is not substantially limited in working

simply because he or she is unable to perform s particular

job for one employer. . ." 29 C.F.R. Part 1630, Appendix

1630.2(j). | See also Welsh v. City of Tulsa, 977 F.2d

1415, 1417 (10th Cir. 1992)("While the regulations define

a major life activity to include working, this does not

necessarily mean working at the job of one’s choice");

Forisi_v. Bowed, 794 F.2d 931, 935 (4th Cir. 1986)

(substantial limitation on person’s ability to work occurs

when impairment forecloses generally "the type of

employment involved"). Generally, for a physical condition

to constitute a disability it must place an "individual so far

outside the norm as to make it impossible or unusually

difficult. . . to perform work that could be done by most

other people." Cook v. State of R. 1. Dept of Mental health

Retardation & Hosp., 783 F. Supp. 1569, 1574 (D.R.I.

1992), aff'd, 10 F.3d 17 (Ist Cir. 1993).

Although asthma is a potentially disabling condition,

Ventura has failed to offer sufficient probative evidence

here to establish that there is a genuine issue whether his

asthma condition at the time of his reclassification or at any

other time substantially limited hin in either his ability to

breathe or his ability to work. During his deposition,

Ventura stated that he exercised regularly and engaged in

Apdx. B - 15

physical labor, including construction work, landscaping,

remodeling and painting". Ventura confirmed that he

played a wind instrument in a band which performed in

environments containing known irritants to his condition.

Ventura also acknowledged that in spite of the restriction

advised by every physician who examined him he was able

to work during the very early morning hours as a security

guard/bouncer and that the effects of his condition abated

according to the amount of exercise he got. Ventura has

indicated that during the time at issue he worked as a police

officer, security guard, musician and general laborer.

Ventura also claims that he is able to work as a carpenter

and is able to perform almost every function of a Grade III

maintenance employee, if provided the appropriate work

environment. Ventura has not offered any evidence

concerning the kinds of jobs from which he is disabled, the

geographic job market to which he had reasonable access,

any evidence of general employment demographics, recog-

nized occupational categories or any other information

which would otherwise indicate the approximate number of

jobs from which Ventura is excluded because of his asthma.

See 29 C.F.R. 1630.2(i), (j)(2).

In fact, Ventura has provided substantial evidence

that he was not disabled within the meaning of Section

Apdx. B - 16

12102(2) of the ADA at the time he was recategorized.”

Sauers’ sworn affidavit that he "recommended Mr. Ventura

for disability due to the fact that the refusal by his employer

to make these accommodations made it impossible for him

to perform his job," undermines any inference of disability

under the ADA and presupposes that employers must

provide every requested consideration regardless of whether

the employee has a disability. Not only is it not clear

whether Sauers had any reliable information upon which to

state that the city refused to accommodate Ventura, but also

the city does not have any duty to accommodate an

individual who is not disabled. Ventura’s assertion that,

among other considerations, the city should have invested

$20,000 in a new ventilation system and allowed him to

work only with non-diesel powered vehicles assumes that

the city has a duty to accommodate him. Absent a claim

that the employer regarded an individual as disabled, an

individual is not "disabled" or substantially impaired in the

The fact that PERS determined that Ventura was

disabled for purposes of receiving benefits is insufficient

evidence, standing alone, to support an inference that

Ventura was an individual with a disability under the ADA

when he was recategorized in 1992. There is no evidence

in the record to establish the meaning of "disability" under

PERS, the bases, if any, for PERS’ determination, or how

Ventura’s condition in 1992 is implicated by the PERS’

decision, retroactive to August 1993.

Apdx. B - 17

major life function of working merely because he or she is

unable to work in a particular environment because of the

peculiar nature of his or her conditions.‘ See Heilweil v.

Mount Sinai Hosp., 32 F.3d 718, 723-24 (2nd Cir. 1994)

("Because [plaintiff's] asthmatic condition did not

substantially limit a major life activity--either her ability to

breathe or work--defendant’s motion for summary judgment

was properly granted."), cert. denied, 115 S.Ct. 1095

(1995); Byrne v. Board of Education, 979 F.2d 560, 565-66

(7th Cir. 1992) (allergy to common fungus and airborne

organisms is not disability; plaintiff was not totally disabled

because airborne pollutant situation could be remedied);

Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992),

cert. denied, 113 S.Ct. 1255 (1993)(plaintiff was not

disabled because sensitivity to chemicals prevented her from

working only in lab and did not substantially limit

employment opportunities as a whole); Miller v. AT & T

Network Systems, 722 F. Supp. 633 (D. Or. 1989), aff'd,

*Ventura does not allege that the city perceived him to

be disabled. Moreover, the fact that the city provided

requested restrictions does not require a determination that

it perceived that Ventura Was disabled. “[A]n employer’s

decision to attempt to accommodate an employee who

defines herself as impaired does not dictate a finding that

the employer regards the employee as handicapped as a

matter of law." See Byrne v. Board of Educ., 979 P.2d

560, 566-67 (7th Cir. 1992).

Apdx. B - 18

915 F.2d 1401 (9th Cir. 1990)(asthma of installer unable to

work in extreme temperatures not substantial limitation

under state discrimination laws); Daley v. Koch, 892 F.2d

212, 214-16 (2d Cir. 1939); Wright v. Tisch, 45 Fair Emp.

Prac. Cas. (BNA) 151 (E.D.Va. 1987)(allergic reaction to

dusty working conditions not handicap beciu« plaintiff

restricted only from unusual environmental conditions of

her workplace); Fugua v. Unisys Corp., 716 F. Supp. 1201,

1206 (D. Minn. 1989). The mere fact that Ventura was

unable to return to his particular job without some

accommodation does not demonstrate a substantial

limitation in the major life activity of working or breathing.

See. ¢.g., Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th

Cir. 1994), cert. denied, 115 S.Ct. 1104 (1995); 29 C.F.R.

§ 1630.2(j)(3)i). -

Although this Court is quite aware of the protections

afforded to individuals with disabilities, it would pervert the

appropriate purpose of the ADA to interpret it to apply to

individuals with not uncommon conditions. Accordingly,

because Ventura has not produced sufficient evidence to

establish a genuine issue that he has a disability under the

ADA, the Court grants defendants’ motion for summary

judgment. The Court does not determine whether Ventura

has produced sufficient evidence to establish that he is

qualified" under the ADA, or whether the defendants would

otherwise be entitled to the entry of an order granting

Apdx. B - 19

summery judgment as to his disability claim.

B. Ventura’s Retaliation Claim

Section 12203(a) of the ADA provides:

No person shall discriminate against any individual

because such individual has opposed any act or

practice made unlawful by this chapter or because

such individual made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing under this chapter.

In order to establish a prima facie claim of retaliation,

Ventura must prove that: (1) he engaged in a protected

activity; (2) Appenzeller knew of the activity; (3) he was

subjected to an adverse employment action; and (4) a

causal link existed between the protected activity and the

adverse action. Canitia v. Yellow Freight Sys. Inc., 903

F.2d 1064, 1066 (6th Cir.), cert. denied, 498 U.S. 984

(1990).

It is not disputed that Ventura satisfies the first

prong of his prima facie burden. Ventura engaged in a

protected activity when he filed his charge of disability

discrimination with the EEOC.

Apdx. B - 20

The Court determines, however, that Ventura has not

offered sufficient probative evidence to satisfy prongs two,

three or four of his prima facie burden. The mere fact that

the letter from Appenzeller was sent on the same day that

an EEOC investigator allegedly conducted an on-site

investigation at the city’s garage is insufficient to support an

inference that Appenzeller knew of Ventura’s claim or that

there is a causal link between the alleged adverse

employment action and the protected activity. The city

offered evidence that Appenzeller did not know of

Ventura’s protected activity. In this context, simultaneity

does not suggest cause. Moreover, absent some evidence

that the city ordinarily did not require patrol officers to

return equipment or submit to retraining, or that the policy

only applied to Ventura, a request to return equipment made

pursuant to Ohio law does not constitute an adverse

employment action for purposes of a retaliation suit under

the ADA. Accordingly, this Court grants the city’s motion

for summary judgment as to Ventura’s retaliation claim.

C. Breach of Collective Bargaining Agreement

In Claim 2 of his amended complaint, Ventura

alleges that the City breached the collective bargaining

agreement (the "agreement") when it recategorized him

from a Grade I to a Grade III maintenance position and

refused to accommodate his claimed disability. Ventura

Apdx. B - 21

claims that the city’s decision to recategorize him breached

Article 6 § | b) and Articles 22, 33 and 42 of the agree-

ment. In its motion for summary judgment, the city

acknowledges that it agreed not to raise certain defenses as

to Ventura’s claims under Articles 6 and 42, but claims that

Ventura has failed to exhaust the grievance procedure as to

the city’s alleged breach of Articles 22 and 33 and, there-

fore, this Court has no jurisdiction to hear Ventura’s claims

arising thereunder. Ventura claims that the city stipulated

that it would not assert a failure to exhaust grievance

procedure defense to Claims 1 and 2 of his amended

complaint which specifically include an allegation that the

city breached Articles 22 and 33.

The Court agrees that Ventura has established that

the city waived any failure to exhaust administrative process

defense to Ventura’s Claims | and 2. On June 9, 1994, the

City and Ventura stipulated:

[T]he Defendants hereby waive the defense of

failure to exhaust the administrative process as to

Claims | and 2 of the Amended Complaint. . . as a

result of Plaintiff's withdraw] [sic] of Grievance No.

15187. . . . The parties have agreed that the subject

matter of the grievance will be tried in this action

rather than through the grievance process.

Apdx. B - 22

Claim 2 of Ventura’s Amended Complaint plainly provides

at J 21:

The CITY’s demotion of VENTURA from

Maintenance Classification I to Maintenance

Classification II and its refusal to accommodate his

medical condition was in violation of the contract

governing Ventura’s employment, including Article

6 § 1(b), Article 22, Article 33 and Article 42.

Accordingly, the Ciiy has waived its failure to exhaust

administrative process defense as to its alleged breach of the

agreement, including Articles 6, 22, 33 and 42.

Nevertheless, because Ventura’s claims under the

agreement are coextensive with his rights under the ADA,

the city is entitled to summary judgment as to Ventura’s

Claim 2. Ventura acknowledges that Article 6 § 1(b) of the

agreement cedes virtual plenary authority to the city for the

classification and categorization of maintenance employees.

That authority is limited only by federal and state law as

provided in Article 42 of the agreement. Article 33, which

involves city employees’ compensation schedule under the

agreement, is only implicated when the city fails to comply

with the ADA as incorporated by Article 42’s limits on the

city’s rights under Article 6 § 1(b) of the agreement to

Apdx. B - 23

recategorize and reclassify employees.* Because this Court

herein has determined that Ventura has not established a

material issue of fact as to the city’s alleged violation of the

ADA when it recategorized Ventura, the Court also

determines that summary judgment is appropriate as to

Ventura’s Claim 2.

D. Ventura’s State Law Claims

The only issues remaining are Ventura’s state law

claims for intentional infliction of emotional distress.

Under 28 U.S.C. § 1367(c)(3), a district court may decline

to exercise supplemental jurisdiction if the federal claims

have been dismissed. Accordingly, this Court, in its

discretion dismisses, without prejudice, Ventura’s state law

claims.

IV.

For the reasons stated herein, this Court grants the

City’s motion for summary judgment as to Ventura’s

Claims 1, 2, and 3, and dismisses, without prejudice,

Ventura’s state law claims under Claims 4 and 5S.

*Ventura has represented to the Court that he has

abandoned any claims arising under Article 22 for purposes

of this suit.

Apdx. B - 24

IT IS SO ORDERED.

/s/Ann Aldrich

UNITED STATES DISTRICT JUDGE

Apdx. B - 25

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN A. VENTURA, )

Plaintiff, )

) Case No. 1:93-CV-2701

VS. )

) Order

CITY of INDEPENDENCE, )

et al., )

Defendants. )

ALDRICH, J.

The Court has filed its memorandum and order

granting defendants’ motion for summary judgment as to

Claims 1, 2, and 3, and dismissing, without prejudice,

Ventura’s state law Claims 4 and 5. Therefore,

IT IS ORDERED that defendants; motion for

summary judgment as to Claims 1, 2, and 3 is granted;

Claims 4 and 5 are dismissed, without prejudice; final

judgment is entered in favor of the defendant; and the case

is dismissed.

IT IS FURTHER ORDERED that this judgment is

final and appealable.

/s/ Ann Aldrich

United States District Judge

Apdx. B - 26

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

Sixth Circuit Case N®%. 95-3582

Filed April 18, 1997

Pages C-1 thru C-2

N2® 95-3582

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN A. VENTURA,

Plaintiff-Appellant,

VS. ORDER

Ne ee ee ee ee”

CITY of INDEPENDENCE, ) Filed April 18, 1997

et al., )

Defendants. )

BEFORE: MERRITT and COLE, Circuit Judges; and

ECHOLS* District Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a

vote on the suggestion for rehearing en banc, the petition

for rehearing has been referred to the original panel.

*Hon Robert L. Echols, United States District Judge for the

Middle District of Tennessee, sitting by designation.

Apdx. C - |

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green, Clerk

APPENDIX D

On ST —— ————— ————

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EXCERPTS OF BRIEF OF PLAINTIFF-APPELLANT

Sixth Circuit Case N®*. 95-3582

Filed August 9, 1995

Pages D-1 thru D-28

STATEMENT OF THE CASE

The _ plaintiff-appellant JOHN VENTURA

("VENTURA") was hired by the CITY OF INDEPEN-

DENCE ("CITY") Service Department as a Grade III

maintenance person in May of 1977. (R.61: Ventura Depo..,

p. 16.)' He was promoted to Grade II in December, 1977

and then to Grade I in December 1982. (R.61: Ventura

Depo., p. 16, 18.)

The main distinction between Grade III and a Grade

I is that a Grade I employee is expected to supervise or lead

a crew. (R.49: Ellert Depo., p. 29, 35, 36; R.50: Timinski

Depo., p. 6; R.52: VonDriska Depo., p. 7-8; R.54:

Kemenyes Depo., p. 28; R.55: Snabel Depo., p. 8.) As

stated by the road foreman, Ed Timinski:

A maintenance class one employee, usually their

responsibilities consist of being like a crew leader...

guess, you know, someone that makes--can make a

decision.

(R.50: Timinski Depo., p. 6.)

As road foreman, Timinski was frequently given

direct supervision over VENTURA and was involved in

‘All deposition references cited and the Plaintiff's Brief in

Opposition (R.99) have been designated by the Plaintiff for

inclusion in the Joint Appendix.

Apdx. D - |

work scheduling. (R.49: Ellert Depo., p. 5, 32, 33; R.S0:

Timinski Depo., p. 5.) He considered VENTURA to be a

responsible and reliable employee. (R.50: Timinski Depo.,

p. 56.)

Except for the responsibilities of leading a crew,

Grade III’s are frequently asked to perform the same

functions as Grade I employees. (R.49: Ellert Depo., p.

34-35; R.50: Timinski Depo., p. 8; R.52: VonDriska Depo.,

p. 8; R.54: Xemenyes Depo., p. 28-29; R.55: Snabel Depo.,

p. 7-8.) As stated by DENNIS MESSINA ("MESSINA"),

the shop foreman for the Service Department:

Q. Are Class III employees involved in operating

vehicles with diesel engines?

A. Yes.

Q. Are they involved in snowplowing?

A. Yes.

Q. Okay. Are they involved in the recycling bin?

A. Yes.

(R.57: Messina Depo., p. 27.)

The CITY’s former Service Director, DOROTHY ORNAS

("ORNAS"), agreed that Class III employees may be

required to drive snowplows, operate diesel powered

vehicles or machines and work in extreme temperatures as

well. (R.S6: Ornas Depo., p. 45.)

Apdx. D - 2

Around 1980, the Service Department purchased a

diesel truck which was designated as Truck #12. (R.61:

Ventura Depo., p. 235-237.) The original equipment

provided for an upright exhaust which exited above the cab.

(R.62: Ventura Depo., p. 235.) Shortly after the truck was

acquired, a dumpster was added to the back and the exhaust

was modified to exit just below the cab on the passenger

side. (R.61: Ventura Depo., p. 236.)

VENTURA was assigned to Truck #12 to plow

snow for about twelve (12) years. (R.56: Ornas Depo., p.

52: R.61: Ventura Depo., p. 237.) Since about 1982,

VENTURA complained about exhaust fumes entering the

cab of Truck #12. (R.61: Ventura Depo., p. 236-237; R.62:

Ventura Depo., p. 449; R.99: Brief in Opposition, Ventura

Aff., § 1, Exhibit "A" thereto.) VENTURA complained to

DOROTHY ORNAS when she was the Department's

administrative assistant and later when she was promoted to

Service Director. (Id.; see, also, R.56: Ornas Depo., p.

57-58.)

VENTURA had noticed breathing problems while

driving Truck #12 in March of 1991. (R.61: Ventura Depo.,

p. 119.) He was gasping for air and had to exit the truck

because the fumes were so bad. (Id.) VENTURA promptly

reported this to ORNAS when he returned to the garage.

(Id. at 120.) Yet nothing was done to correct the problem

with the truck’s exhaust and VENTURA continued to be

assigned to it until he was diagnosed with asthma in

Apdx. D - 3

December 1991. (R.61: Ventura Depo., p. 31, 40, 143;

R.62: Ventura Depo., p. 461.)

For several years, since at least 1990, VENTURA

also complained about exhaust fumes in the Service —

Department garage and the lack of adequate ventilation.

(R.50: Timinski Depo., p. 20; R.52: VonDriska Depo., p.

13; R.53: Chuha Depo., p. 9; R.54: Kemenyes Depo., p.

10-13; R.5S7: Messina Depo., p. 56-57; R.61: Ventura

Depo., p. 257-259; R.99: Brief in opposition, Ventura Aff.,

§ 2, Exhibit "A" thereto.) Several other employees

complained about this problem along with VENTURA.

(R.53: Chuha Depo., p. 9; R.54: Kemenyes Depo., p.

11-13.) Nothing was done to rectify the situation. (R.53:

Chuha Depo., p. 9; R.55: Snabel Depo., p. 13; R.57:

Messina Depo., p. 57-58; R.61: Ventura Depo., p. 258-259;

R.99: Brief in opposition, Kapusta Aff., § 2-3, Exhibit "B"

attached thereto.)

In fact, the CITY abandoned efforts to complete a

localized exhaust system with vents to draw off exhaust

fumes throughout the garage. (R.52: VonDriska Depo., p.

11; R.61: Ventura Depo., p. 258-259; R.99: Brief in

Oppesition, Kapusta Aff., § 2-3, Exhibit "B" thereto; R.99:

Brief in Opposition, Wood Aff., § 3, Exhibit "C" thereto.)

If this system were completed, it would significantly

improve the adequacy of the ventilation in the Service

Department garage. (R.99: Brief in Opposition, Wood Aff.,

§ 3, 3, Exhibit "C" thereto.) The CITY, however, sealed

Apdx. D - 4

the vents and never completed this system. (R.52:

VonDriska Depo., p. 11; R.99: Brief in Opposition, Ventura

Aff., J 2, Exhibit "A" thereto; R.g.9: Brief in Opposition,

Kapusta Aff., § 2-3, Exhibit "B" thereto; R.99: Brief in

Opposition, Wood Aff., 4 3, Exhibit "C" thereto.)

~ On November 30, 1991, VENTURA submitted to

ORNAS a note from his doctor restricting him from

working hours after midnight or irregular hours. (R.61:

Ventura Depo., p. 135-137; R.99: Brief in Opposition,

Papsidero Note, Exh‘hit "A-1" thereto.) VENTURA was

given this restriction by his doctor because he would wake

up late at night with difficulty in breathing. (R.61: Ventura

Depo., p. 136.) Despite the fact that VENTURA indicated

the restriction was medically necessary, ORNAS was

extremely irate. (R.61: Ventura Depo., p. 135-139.)

On December 12, -1991, VENTURA had a

methacholine challenge test on his lungs which confirmed

that he bad asthma. (R.61: Ventura Depo., p. 140)

VENTURA’S doctor than restricted him from driving diesel

trucks. (R.61: Ventura Depo., p. 143; R.99: Brief in

opposition, Weiner Note, 12/16/91, Exhibit "A-2" thereto.)

MS. ORNAS was not satisfied with VENTURA’s

explanation or doctor’s reports. So, on January 23, 1992,

she informed him that she had scheduled appointments for

him to see a specialist in occupational medicine, Dr. Bray.

(R.56: Ornas Depo., p. 25-27; R.61: Ventura Depo., p.

155-157, 191.) Dr. Bray confirmed Dr. Weiner’s diagnosis

Apdx. D - 5

of asthma and concurred with his recommendation that

VENTURA should avoid exposure to diesel fumes. (R.99:

Brief in Opposition, Bray letter, 03/13/92, Exhibit "A-3"

thereto.)

On January 24th, after the examination by Dr. Bray,

ORNAS told VENTURA he would be demoted if he

couldn’t do his job. (R.62: Ventura Depo., p. 481-482.) She

indicated that he should get another job if this one was

detrimental to his health. (Id.) WENTURA indicated to

ORNAS that there were other jobs he could do and that

other Grade I employees, namely Tom Mendezoff, weren’t

required to do numerous jobs under that classification.

(R.61: Ventura Depo., p. 482.)

Mr. Mendezoff, a Grade I employee, has not had to

plow snow or work irregular hours. (R.48: Mendezoff

Depo., p. 5-9, 12-13; R.49: Ellert Depo., p. 69-72; R.50:

Timinski Depo., p. 33-34, 4244; R.54: Kemenyes Depo., p.

30-31.) He has not had to operate the equipment that is

claimed to be "essential" to the job classification. (R.48:

Mendezoff Depo., p. 7-8; R.49: Ellert Depo., p. 1516,

36-37, 69-72, 92.) He doesn’t even have a commercial

drivers license, which is Supposed to be required of all

Grade I employees. (R.49: Ellert Depo., p. 38, 70; R.54:

Kemenyes Depo., p. 24.)

Dick Strozewski, even though a Grade I employee,

was assigned to the Parks Department. (R.54: Kemenyes

Depo., p. 32.) He didn’t even work in the Service

Apdx. D - 6

fk:

Department and performed none of the functions normally

associated with a Grade I employee. (R.56: Ornas Depo.,

p. 32.) ay

MS. ORNAS was well aware of VENTURA’s

talents and ability to perform other jobs. VENTURA had —

worked in the CITY’S Historic Hall periodically from about

1982 through about 1990. (R.50: Timinski Depo., p. 9;

R.53: Chuha Depo., p. 17; R.55: Snabel Depo., p. 2526;

R.62: Ventura Depo., p. 418; R.99: Brief in Opposition,

Ventura Aff., 5 3, Exhibit "A" thereto.) He also worked on

the renovation of the Town Hall in early 1992. (R.52:

VonDriska Depo., p. 9; R.53: Chuha Depo., p. 17; R.99:

Brief in Opposition, Ventura Aff., 4 3, Exhibit "A" thereto.)

VENTURA’s work included carpentry, painting, wall-

papering, drywalling, plastering and various other

remodelling and maintenance duties. (R.50: Timinski

Depo., p. 9; R.53: Chuha Depo., p. 17; R.54: Kemenyes

Depo., p. 19-20; R.55: Snabel Depo., p. 26; R.56: Ornas

Depo., p. 12; R.62: Ventura Depo., p. 418; R.99: Brief in

Opposition, Ventura Aff., § 3, Exhibit "A" thereto.) Even

MS. ORNAS was impressed with the quality of

VENTURA’s work. (R.53: Chuha Depo., p. 17; R.55:

Snabel Depo., p. 26; R.56: Ornas Depo., p. 12.)

WALTER ELLERT ("ELLERT") succeeded MS.

ORNAS as Service Director in June of 1992. (R.49: Ellert

Depo., p. 4; R.56: Ornas Depo., p. 5, 32.) ORNAS has

continued working with the CITY and assisted ELLERT

Apdx. D - 7

rere

during the transition period. (R.49: Ellert Depo., p. 12-15;

R.56: Ornas Depo., p. 23.) ELLERT was made aware of

VENTURA’s medical condition and the restrictions on his

job duties. (Id.)

On July 29, 1992, the CITY had VENTURA

examined by Dr. Bray a second time. (R.61: Ventura

Depo., p. 199; R.99: Brief in opposition, Bray letter,

07/30/92, Exhibit "A-5" thereto.) Dr. Bray’s second

examination of VENTURA again confirmed his asthmatic

condition. (R.99: Brief in Opposition, Bray letter, 07/30/92,

Exhibit "A-5S" thereto.) In addition to recommending that

VENTURA not be exposed to diesel fumes or work in early

morning hours, Dr. Bray indicated to the CITY in his letter

of July 30th:

For him [VENTURA], there are certain reliable

provokers of his [asthma] symptoms, such as diesel

fumes, cigarette smoke, high humidity, and vigorous

exercise in cold weather.

(R.99: Brief in Opposition, Bray letter, 07/30/92, Exhibit

"A-5" thereto, emphasis added.)

ELLERT specifically recalls receiving this letter.

(R.49: Ellert Depo., p. 20.) VENTURA also specifically

informed ELLERT that cold air aggravated his condition as

well. (R.61: Ventura Depo., p. 3738.)

On August 14, 1992, VENTURA was informed by

a Union representative that the CITY was planning to

Apdx. D - 8

demote him. (R.61: Ventura Depo., p. 205.) VENTURA

received no notice of this from the CITY until ELLERT

gave him a letter on September 3rd, demoting him to Grade

III as of August 30, 1992. (R.49: Ellert Depo., p. 47; R.56:

Ornas Depo., p. 45-46; Exhibit "A-6" thereto.) Both

ORNAS and ELLERT admit to being involved in the

decision to demote VENTURA. (id.)

On September 8th, just after being demoted to Grade

II], VENTURA was assigned to be in charge of a crew,

even though leading a crew is what primarily distinguished

a Grade I from a Grade III employee. (R.61: Ventura

Depo., p. 220.) Thus, even after demoting him to Grade

III, the CITY continued to assign VENTURA the responsi-

bilities of a Grade I employee. (R.49: Ellert Depo.,

p. 29, 35-36; R.61: Ventura Depo., p. 220.)

The abuse of VENTURA and the total disregard for

his asthmatic condition (not to mention the health of other

employees) continued to grow worse under Service Director

ELLERT and shop foreman, DENNIS MESSINA. On

October 6th, ELLERT and MESSINA had VENTURA

clean the wash bay in the Service Department garage with

unmarked, acidic chemicals with fumes that caused

7On October 1, 1992, VENTURA filed his charge with the

EEOC that his demotion was in violation of the American with

Disabilities Act.

Apdx. D - 9

VENTURA extreme difficulty in breathing. (R.61: Ventura

Depo., p. 228-229.)

After receiving the July 30th letter from Dr. Bray

informing him that cold weather is a "reliable provoker" of

VENTURA’s asthma (in addition to VENTURA also

informing him of this on several occasions) ELLERT

assigned VENTURA on October 23rd to the back of the

recycling trailer; an assignment which would continue

throughout the winter. (R.61: Ventura Depo., p. 233-234;

R.99: Brief in Opposition, Ventura Aff., § 8, Exhibit "A"

thereto, Exhibit "A-18" thereto.) VENTURA’s road

foreman, Ed Timinski, indicated on several occasions that

he would like to have assigned VENTURA different jobs

but that he was under orders from ELLERT and MESSINA

to keep VENTURA on the recycling bin. (R.50: Timinski

Depo., p. 49-50; R.62: Ventura Depo., p. 346, 446, 450.)

On February 12, 1993, VENTURA confronted

ELLERT and MESSINA regarding their harassment and

abusive tactics. (R.61: Ventura Depo., p. 263-265; R.62:

Ventura Depo., p. 488-489.) He again reiterated Dr. Bray’s

report which indicated cold weather provoked his asthma.

(R.61: Ventura Depo., p. 263-265; R.99: Brief in

Opposition, Bray letter, 07/30/92, Exhibit "A-5" thereto.)

During this conversation, ELLERT stated to

VENTURA:

- If you can’t do this job because of your health,

there’s the door.

Apdx. D - 10

- Carbon monoxide never hurt anybody.’

- You’re not paid to take medication on City time.

- If you need a break from the fumes inside the

garage, stay outside where the air is fresh and

clean.

(R.61: Ventura Depo., p. 263-265; R.62: Ventura Depo., p.

488-489.)

February 18, 1993 was one of the coldest days of

the year. (R.99: Brief in Opposition, Certified Weather

Record attached thereto as Exhibit "E".) It was so cold that

a back-up vehicle was sent to allow the workers on the

recycling crew to rotate and not have to be continually

exposed to the cold; all the workers, except for JOHN

VENTURA. (R.55: Snabel Depo., p. 16-23; R.61: Ventura

Depo., p. 269-275.) Knowing that cold weather was a

"reliable provoker" of VENTURA’s asthma and with a

totally vindictive and malicious disregard for a man’s

health, ELLERT ordered that all the workers on the

recycling crew could rotate to warm up in the backup

vehicle, except for VENTURA. (R.55: Snabel Depo., p.

16-18; R.61: Ventura Depo., p. 271.) The crew supervisor

*MR. ELLERT has subsequently learned that the effect of

carbon monoxide is lethal. TR.49: Ellert Depo., p. 97.)

Apdx. D - 11

even radioed to ELLERT, specifically requesting permission

to allow VENTURA to rotate as well. (R.55: Snabel Depo..,

p. 17; R.61: Ventura Depo., p. 271.) ELLERT unequivo-

cally denied this request. (Id.)

February 19, 1993 was another extremely cold day.

(R.99: Brief in opposition, Certified Weather Record

attached thereto as Exhibit "F".) After having VENTURA

continually exposed to the cold the entire day before,

without relief, ELLERT again assigned VENTURA to the

back of the recycling trailer, although he did finally relent

to at least allow VENTURA to rotate to the back-up truck

with the other employees. (R.61: Ventura Depo., p.

277-278.) As a result of the exposure to the extreme cold

on February 18th and 19th, VENTURA suffered from an

upper respiratory infection and was out sick under doctor’s

orders for a week. (R.61: Ventura Depo., p. 279-282.)

Up until February 1992, VENTURA had also

worked part-time for the CITY OF INDEPENDENCE

Police Department. (R.61: Ventura.Depo., p. 298.) The

Police Department knew that JOHN was not working as an

officer until he recovered 100% from a prior assault and its

resulting surgery. (R.61: Ventura Depo., p. 304-305.) On

March 2, 1993, over one year after VENTURA had last

worked as a police officer, Chief Appenzeller told

VENTURA just to take care of himself and he would "get

him back in the saddle again." (R.61: Ventura Depo., p.

299.)

Apdx. D - 12

On April 28, 1993, the EEOC began an on-site

investigation, interviewing employees as a result of

VENTURA’s ADA charges. (R.61: Ventura Depo., p. 306.)

The following day, VENTURA received a certified letter

from Chief Appenzeller, dated April 28th. (R.61: Ventura

Depo., p. 306.) The letter instructed VENTURA to turn in

his equipment because he had not worked as an officer for

over a year. (R.99: Brief in Opposition, Appenzeller letter,

04/28/93 attached thereto as Exhibit "A-7".) VENTURA

was never provided the option of taking retraining but was

terminated immediately from the force and ordered to turn

in his equipment, despite Chief Appenzeller’s previous

assurance to get VENTURA "back in the saddle again".

(R.61: Ventura Depo., p. 298, 299, 300, 306.) On May 14,

1993, VENTURA filed his second charge with the EEOC

based on his discharge from the Police Department in

retaliation to his ADA claim.

Finally, conditions were too much for VENTURA.

After working several days outdoors in high heat and

humidity, VENTURA was having difficulty breathing while

cleaning catch basins on June 21, 1993. VENTURA called

his doctor and met with him at 2:00 p.m. that same day.

Because the CITY refused to accommodate VENTURA’s

asthmatic condition, the doctor recommended VENTURA

for disability. (R.60: Sauers Depo., p. 73; R.62: Ventura

Depo., p. 338-344; R.99: Brief in opposition, Disability

Apdx. D - 13

Recommendation, Exhibit "A-B" attached thereto R.99:

Brief in Opposition, Sauers Aff., | 2, Exhibit "D" thereto.)

On December 21, 1993, VENTURA initiated this

lawsuit to recover from the CITY, ORNAS, ELLERT,

MESSINA and SPILKER for violating the ADA and

breaching the Union contract by refusing to accommodate

VENTURA’s asthmatic condition; for retaliating against

him because of his ADA claim; for intentionally exposing

him to extreme cold without allowing him to rotate with the

rest of the crew; and for intentionally inflicting emotional

distress upon him. (R.1: Complaint; R.21: Amended

Complaint.) The defendants moved for summary judgment

on each of these claims.

On April 18, 1995, the trial court granted the

Defendants’ Motion for Summary Judgment on

VENTURA’s ADA and breach of contract claims. (R.89.)

The court then dismissed VENTURA’s remaining state law

claims, without prejudice, for lack of jurisdiction without

the federal claims. (Id.) VENTURA appealed this final

decision of the district court on May 16, 1995. (R.92.)

All of the issues involved in tits appeal were

determined by the trial court on Defendants’ Motion for

Summary Judgment. Thus, this Court's review of the issues

is de nova. E.q., Tolton v. American Biodyne. Inc., 48

F.3d 93B, 940 (1995).

The district court inappropriately made a factual

determination that VENTURA is not disabled and not

Apdx. D - 14

entitled to protection under the ADA. This issue was never

even raised on defendants’ motion. To the contrary the

defendants argued that VENTURA was so disabled that he

could not perform the essential functions of his job and that

the defendants could not reasonably be expected to accom-

modate his condition. The record demonstrates the existence

of at least a genuine issue of material fact regarding not

only VENTURA’s disability but the defendants’ refusal to

reasonably accommodate VENTURA’s asthmatic condition.

As these are factual issues in genuine dispute, they cannot

be properly resolved on summary judgment.

The district court also erred in concluding that the

CITY did not retaliate against VENTURA for his ADA

claim when VENTURA was discharged from the police

force immediately after the EEOC began its on-sight

investigation. Directly contrary to the appropriate standards

for reviewing summary judgment, the court inferred in

favor of the movant that the letter from the Chief of Police

to VENTURA, instructing him to "return all of the

equipment that the City of Independence Police Department

issued [him] as soon as possible" was not a termination

letter. (See, R.99: Brief in Opposition, Letter from Chief

Appenzeller to John Ventura, dated 04/28/93, Exhibit "A-7"

attached thereto. )

VENTURA also claims that the CITY’s failure to

comply with the ADA constitutes a breach of the CITY’s

collective bargaining agreement with the Service

Apdx. D - 15

Department employees. The trial court dismissed

VENTURA’s breach of contract claim on summary judg-

ment based on its dismissal of his ADA claims. Thus, to the

same extent the court erred in dismissing VENTURA’s

ADA claims on summary judgment, likewise the dismissal

of his contract claim was in error.

Having disposed of VENTURA’s claims under

federal law, the trial court dismissed VENTURA’s

remaining two state law claims, without prejudice, for lack

of federal jurisdiction. As the court’s dismissal of

VENTURA’s ADA claims was erroneous, the state law

claims ought be reinstated as part of this suit.

ARGUMENT

In 1990, Congress enacted the American with

Disabilities Act ("ADA") to expand the protection under

federal law previously granted by the Rehabilitation Act of

1973 for persons with disabilities. See, 42 U.S.C. § 12101.

Among the reasons the ADA has been implemented are

that:

l- discrimination against individuals with disabilities

persists in such critical areas as employ-

ment,housing, public accommodations, education,

transportation, communication, recreation, institu-

tionalization, health services, voting, and access to

public services;

Apdx. D - 16

Id.

individuals with disabilities continually encounter

various forms of discrimination, including outright

intentional exclusion, the discriminatory effects of

architectural, transportation, and communication bar-

riers, overprotective rules and policies, failure to

make modifications to existing facilities and prac-

tices, exclusionary qualification standards and

criteria, segregation, and relegation to lesser

services, programs, activities, benefits, jobs, or other

opportunities;

the Nation’s proper goals regarding individuals with

disabilities are to assure equality of opportunity, full

participation, independent living, and economic self-

sufficiency for such individuals; and

the continuing existence of unfair and unnecessary,

discrimination and prejudice denies people with

disabilities the opportunity to compete on an equal

basis and to pursue those opportunities for which

our free society is justifiably famous, and costs the

United States billions of dollars in unnecessary

expenses resulting from dependency and non-

productivity.

The ADA provides protection and redress to disabled

individuals in the areas of employment, public services and

public accommodations. VENTURA’s claims have been

Apdx. D - 17

brought under the employment provisions of the ADA, 42

U.S.C. § 12111 et_seqg.

Under 42 U.S.C. § 12112, an employer is prohibited

from discriminating against an individual with a disability

in regards to hiring, advancement, discharge, compensation,

job training and other terms, conditions and privileges of

employment. An employer is also prohibited from

retaliating against any individual who has made a charge

under the ADA. 42 U.S.C. § 12203.

A person with a disability has:

1- a physical or mental impairment that substantially

limits one or more such major life activities of

such individual;

2- a record of such impairment; or

3- been regarded as having such impairment.

42 U.S.c. § 12102; 29 C.E.R. § 1630.2(g).

The defendants did not dispute in their Motion for

Summary Judgment that VENTURA has asthma or that his

condition constitutes a disability within the context of the

ADA. Indeed, the crux of the defendants’ argument is that

VENTURA’s condition is so bad that he cannot perform the

essential function of his job and that it would impose an

undue hardship to accommodate his condition.

An employer is required to make reasonable accom-

modation to allow a disabled employee to perform his

essential job functions, unless the employer can establish

Apdx. D - 18

that it would impose an undue hardship on the employer’s

operations. 42 U.S.C. § 12112(b)(5)(A). The issues to be

determined are whether VENTURA is qualified to perform

the essential functions of a Maintenance Grade I employee,

provided reasonable accommodation is given to his

asthmatic condition, as well as whether VENTURA’s

discharge from the Police Department was in retaliation for

his initiating his claims under the ADA.

Summary judgment is not to be a substitute for trial.

It is to be rarely granted only when there are no genuine

issues for trial and the moving party is clearly entitled to

prevail as a matter of law. See, Felix v. Young, 536 F.2d

1126, 1130 (6th Cir. 1976). If questions of fact remain, the

motion should be denied and the case should proceed to

trial. Id.; see, also, Bohn Aluminum & Brass Corp. v.

Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). The

party moving for summary judgment bears the initial burden

of demonstrating the absence of a genuine issue of material

fact. Celotex Corp. v. Catratt, 477 U.S. 317, 323 (1986).

When considering a motion for summary judgment,

the evidence must be construed most favorably for the

non-moving party who must only show that there exists a

genuine issue for trial. See, e.g., Adams v. Union Carbide

Corp., 737 F.2d 1453, 1455-1356 (6th Cir. 1984).

"{[P]apers supporting the movant are closely scrutinized

whereas the opponents are indulgently treated." Id. quoting

Apdx. D - 19

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303

F.2d at 427.

As the Supreme Court has explained:

Our holding on summary judgment motions does not

denigrate the role of the jury. It by no means

authorizes trial on affidavits. Credibility

determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts

are jury functions, not those of a judge, whether he

is ruling on a motion for summary judgment or for

a directed verdict. The evidence of the non-movant

is to be believed, and all justifiable inferences are to

be drawn in his favor. [Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158-59 (1970).] Neither do we

suggest that the trial courts should act other than

with caution in granting summary judgment or that

the trial court may not deny summary judgment in

a case where there is reason to believe that the

better course would be to proceed to a full trial.

Kennedy v. Silas Mason Co., 344 U.S. 249 (1948).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct.

2505, 2513 (1986). The district court erred in entering

summary judgment in favor of the defendants on

VENTURA’s ADA and breach of contract claims as the

defendants failed to demonstrate the lack of a genuine issue

Apdx. D - 20

of fact or that they were entitled to prevail as a matter of

law.

I. THE TRIAL COURT ERRED IN GRANTING

SUMMARY JUDGMENT ON AN ISSUE

WHICH HAD NOT BEEN PRESENTED

ON MOTION.

VENTURA maintains that the CITY OF

INDEPENDENCE discriminated against him by demoting

him to a Maintenance Class III employee and by refusing

to reasonably accommodate his asthmatic condition. (R.21:

Amended Complaint, § 10-18.) In moving for summary

judgment on this claim, the defendants argued that

VENTURA’s asthmatic condition was so bad that he could

not perform the essential functions of a Maintenance Class

I employee, even with reasonable accommodations. (R.36:

Motion by Defendants for Summary Judgment, p. 18-22.)

In granting summary judgment on this claim, the

trial court did not rely on any of the issues raised by the

defendants in their moticn. To the contrary, while the

defendants argued that VENTURA is so disabled that he

cannot be reasonably accommodated, the court determined

that VENTURA was not disabled at_all and consequently

not entitled to any protection under the ADA. (R.88:

Memorandum and Order, p. 15.)

Summary judgment cannot properly be entered on an

issue which has not been raised by the movant. The non-

movant’s burden to respond with specific facts showing a

genuine issue for trial only arises once the moving party has

met its initial burden of demonstrating an absence of a

Apdx. D - 21

genuine issue for trial. Celotex Corp., 477 U.S. at 323;

Felix, 536 F.2d at 1134-35. Indeed, when a movant fails to

meet this initial burden, summary judgment must be denied

even if no opposing evidentiary matter is provided.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970);

Felix, 536 F.2d at 1135. Because the defendants did not

raise On summary judgment any issue with regards to

whether VENTURA is disabled under the ADA,

VENTURA had no obligation to present any materials at

that point establishing this as a genuine issue for trial.

While a court may have the power to enter summary

judgment on an issue sue sponte, this is only if the party is

on notice to come forward with his evidence on the issue.

Celotex, 477 U.S. at 326; see, also, Fountain v. Filson, 336

U.S. 681, 682-83 (1949): Sharlitt v. Gorinstein, 535 F.2d

282, 283-84 (6th Cir. 1976). At no point was VENTURA

put on notice, either through the defendants’ motion or by

the court, that the question of whether his asthma was a

disability would be an issue on summary judgment. While

VENTURA obviously still has the burden of proving this

element at trial, it was not properly considered by the

district court as a basis for summary judgment.

As will he discussed further in the following section,

there is sufficient evidence in the record to establish that

VENTURA is disputably disabled by his asthma under the

provisions of the ADA. VENTURA, however, was

prejudiced by the court disposing of this issue on summary

Apdx. D - 22

judgment without prior notice, when the defendants failed

to raise this issue on their own motion.

VENTURA properly responded on summary judg-

ment by presenting specific facts establishing genuine issues

for trial on those matters actually raised by the defendants.

To the extent it is questioned whether VENTURA is act-

ually disabled, VENTURA could have provided additional

testimony of his own or from his medical experts, by way

of affidavit, clarifying that his asthma substantially impaired

him in the life functions of working, breathing, etc.

VENTURA could also have shown the court specific refer-

ences in depositions already on file that establish the

element of his disability.

The trial court, however, never provided VENTURA

with this opportunity. While the defendants were arguing

that VENTURA is too disabled to be accommodated in his

employment, the trial court concluded, on its own, that

VENTURA was not disabled at all. As this issue was never

raised by the defendants in their motion and the court never

provided VENTURA notice that it was considering this

issue, the trial court’s rendering of summary judgment on

VENTURA’s first claim, based on this issue, was in error.

Il. THE TRIAL COURT ERRED IN

CONCLUDING THAT VENTURA’S

ASTHMA DID NOT CONSTITUTE A

DISABILITY UNDER THE ADA.

Apdx. D - 23

Despite the fact that the issue was never raised in

the defendants’ motion, the district court determined that

VENTURA failed to show that he was at least disputably

disabled under the provisions of the ADA. According to the

trial court, VENTURA failed to show that his asthma

limited his ability to breathe, work or other life activities.

(R.88: Memorandum and Order, p. 19.)

The definition of handicap or disability under the

ADA is broad. See, Taylor v. United States Postal Service,

946 F.2d 1214, 1218 (6th Cir. 1991).4 Other cases under

the ADA and the Rehabilitation Act have found asthma or

similar conditions to be disabilities, entitled to protection

under federal law. E.g., Milton v. Bob Maddox Chrysler,

868 F.Supp. 320, 325 (S.D. Ga. 1994); Harmen v. Virginia

Electric & Power Co., 831 F.Supp. 1300, 1306 (E.D. Va.

1993).

The determination to be made is_ whether

VENTURA’s asthma limits him in one or more major life

activities. When considering the evidence in a light most

favorable to VENTURA, it cannot be determined as a

*"In passing the ADA, Congress specifically intended that the

case law established under the Rehabilitation Act be used in

deciding cases brought under the ADA." Dutton v. Johnson

County Board of County Commissioners, 859 F.Supp. 498, 504

(D. Kan. 1994); citing 42 U.S.C. § 12117(b).

Apdx. D - 24

matter of law that VENTURA fails to meet those

requirements. See, Milton, 868 F.Supp. at 324.

Contrary to the district court’s factual conclusion,

there’s sufficient evidence on record to establish at least a

genuine dispute that VENTURA is limited in one or more

major life activities. VENTURA indicated that due to his

asthma, he could not be around diesel fumes, high humidity

or extreme temperatures and needed to avoid midnight

shifts. (R.61: Ventura Depo., p. 37.) This was confirmed

by Dr. Kathleen Fagan, a specialist in occupational

medicine, who indicated that due to his asthmatic condition,

VENTURA needed the following accommodations on his

job:

- Driving of gasoline powered vehicles rather than

diesel powered vehicles;

- Avoidance of extremes in temperatures or high

humidity;

- Providing proper respirator and respirator training

for paint jobs or other duties requiring use of or

exposure to irritant chemicals, fumes or gases; and

- Providing a clean air environment.

(R.99: Fagan Report, Defendants’ Exhibit 9(A), attached to

Fagan Deposition and identified at p. 9; Fagan Depo., p. 32,

109-110.)

Dr. James Sauers has been treating VENTURA for

his asthma since August, 1992. (R.60: Sauers Depo., p. 14.)

Dr. Sauers confirmed that VENTURA suffers from short-

Apdx. D - 25

ness of breath, tightness of chest and limitation of his

physical activities due to his asthma. (R.61: Sauers Depo.,

p. 31.) Dr. Sauers also indicates that VENTURA needs to

avoid exposure to hydrocarbons (particularly diesel fumes)

and extreme temperatures or humidity. (R.99: Brief in

Opposition, Sauers Aff., Exhibit "D" attached thereto.)

The limitations on VENTURA’s ability to work and

breathe is confirmed not only by VENTURA’s physicians

but by the defendants’ physician as well. The CITY twice

had VENTURA examined by its own physician, Dr. Bray,

regarding his asthmatic condition. (R.56: ornas Depo., p.

26, 27, 28, 33.) Dr. Bray also confirmed that VENTURA

should avoid exposure to diesel fumes and not be required

to work early morning hours due to his asthma. (R.99:

Brief in Opposition, Bray letters, Exhibits "A-3" and "A-5"

attached thereto.) Dr. Bray also confirmed that extreme

temperatures and Humidity are reliable provokers of

VENTURA’s asthma. (R.99: Brief in Opposition, Bray

letter, Exhibit "A-5" attached thereto.)

VENTURA used to be an avid and accomplished

runner. (R.61: Ventura Depo., p. 97-100.) Since the onset

of his asthma in 1991, attempts at running have been

restricted due to his difficulty breathing. (R.61: Ventura

Depo., p. 100.) He has quit playing basketball because of

his asthma. (R.61: Ventura Depo., p. 111.) While he does

still play the saxophone on occasion, he must sit out when

irritation is caused by smoke. (R.61: Ventura Depo., p. 81-

82.)

Apdx. D - 26

The fact that VENTURA attempts to engage in some

normal activities, to the extent his health permits, does not

preclude him from being considered disabled.’ One need

not be totally debilitated to be considered disabled.

Involvement in work and other activities will not preclude

one from being determined to be disabled. Milton, 868 E.

Supp. at 324; Watson v. United States, Civil Action No.

84-216, p. S (D.B.C., Jan. 17, 1985) (slip opinion attached. )

The fact that VENTURA’s asthma restricts him from

working around diesel fumes and in extreme temperatures

and humidity substantially limits his ability to work and

breathe. The essential issue in this case, as even the

defendants have argued, is not whether VENTURA is dis-

abled but whether his limitations can be reasonably

accommodated.

Indeed, under the ADA, it is not necessary for

VENTURA to establish that he is actually disabled but only

that he is "regarded" as disabled. Milton, 868 F.Supp. at

325; 42 U.S.C. § 12102(2)(C); 29 C.F.R § 1630.2(g). In his

affidavit to the EEOC and in his deposition testimony,

Service Director WAITER ELLERT indicated _ that

VENTURA cannot even perform the essential functions of

his job due to his medical condition. (R.49: Ellert Depo.,

p. 23, 24, 25, 48, 88, 89.) This is purportedly the reason

‘Indeed, the purpose of the ADA is to assist disabled

individuals in leading as normal a life as possible by making

reasonable accommodations.

Apdx. D - 27

why VENTURA was demoted from Class I to Class III.

(Id. at 48.) The garage foreman, DENNIS MESSINA,

doesn’t believe VENTURA’s even capable of performing

the functions of a Class III maintenance employee due to

his medical restrictions, the position to which VENTURA

was demoted. (R.57: Messina Depo., p. 39, 40.)

While VENTURA maintains that he is able to

perform the essential functions of a Maintenance Class |

employee, if provided with reasonable accommodation, the

fact that his supervisors regard him as unable to do so

because of his medical restrictions, is sufficient in itself to

establish that VENTURA is disabled and entitled to the

protection afforded by the ADA. Milton, 868 F.Supp. at

325.

The trial court erred in concluding that VENTURA

is not disabled as a matter of law, as the record demon-

strates this is at least a genuine issue for trial. Indeed, with

the evidence that the defendants believed VENTURA was

unable to perform the essential functions of his job, it seems

indisputable that VENTURA was in fact "regarded" as

disabled and therefore entitled to the protection under the

ADA.

Apdx. D - 28

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DIVISION

EXCERPTS OF DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT AND

MEMORANDUM IN SUPPORT

Case No. 1:93-CV-2701

Filed 10/19/94

Pages E-1 thru E-6

ta gL ate lh AG,

eistiitoc™

Bec eet eee neo) a

.. because Ventura’s condition was diagnosed as reversible

and it resulted in only a 4% reduction in pay where he

claimed to be 100% disabled, his reclassification was a

reasonable accommodation as a matter of law.

B. Assuming, Arguendo, That Ventura Had Notified

The City Of All His Restrictions, Ventura Was

Not "An Otherwise Qualified Individual With A

Disability" Since Be Could Not Perform The

Essential Functions Of Any Job With Or

Without Reasonable Accommodation.

As stated earlier, the ADA does not require

employers to provide "reasonable accommodations" to an

individual who cannot perform, either with or without

reasonable accommodations, the "essential functions" of a

job. 42 U.S.C. §12112(b)(5)(A) (reasonable accommo-

dations must be provided to an "otherwise qualified

individual"); EEOC & United States Dep’t of Justice,

Americans with Disabilities Act Handbook, I-60 (1992) (an

individual is "otherwise qualified" if the person can perform

the essential functions of the job desired once the individual

is provided with reasonable accommodations.)

However, an individual is not entitled to absolute

accommodation, any "possible" accommodation, nor the

accommodation of his choice. Vande Zande v. State of

Wisconsin Dept. of Admin., 851 F. Supp. 353, 359 (W.D.

Wis. 1994); Harmer v. Virginia Elec. and Power Co., 831

Apdx. E - |

F. Supp. 1300, 1307 (E.D. Va. 1993); Davis v. York Int'l,

Inc,, 1993 Westlaw 524761, No. HAR 92-3545 (D.Md.

November 22, 1993) (attached at Tab G); 29 C.F.R. App.

§1603.9, at 415. Therefore, if there is no job available for

an employee to perform in light of the employee's

disability, the employee can be terminated. Rosiak v,

United States Dep’t of Army, 679 F. Supp. 444 (M.D. Pa.

1987), aff'd without opinion, 845 F.2d 1014 (3d Cir. Pa.

1988); Lillback v. Metropolitan Life Ins, Co,, 1994

Westlaw 107323 (Ohio App. 2 Dist.) No. 14085 (Mont-

gomery City March 30, 1994), at 8 (attached at Tab F).

In Rosiak, the plaintiff suffered from a peculiar

handicap where exposure to cement caused him (1) to act

erratically, (2) to suffer dizzy spells, and (3) to suffer chest

pains; Id.. at 446. The Army attempted to accommodate

him by assigning him to a different work station. Id. This

assignment was unsuccessful as the plaintiff complained

about exposure to dust and fumes. Id. The Army then

attempted to minimize the plaintiff's exposure to the fumes

by assigning him to jobs that could be completed outside.

Id. However, the plaintiff refused this assignment due to

the diesel fumes of passing trucks. Id. Eventually, the

Army terminated the plaintiff. The Rosiak court granted

the Army summary judgment and held that plaintiff was not

an otherwise qualified individual because "[t]he dustless and

fumeless working environment that t the plaintiff] led the

agency to believe he required simply could not be

Apdx. E - 2

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RN aS eae

Rea bc a ce

provided.” Id, at 445,451. See also Harmer, $31 F. Supp.

1300 (employee not entitled to complete smoke-free work

environment as reasonable accommodation. )'

in the case at bar, Ventura told PERS some time

after June, 1993, that he could only work in a dustless and

fumeless environment. (Amended Complaint, at a, 12-14;

Ventura Deposition, at 352-57.) In fact, in pursuing his

claim for a PERS disability, Ventura identified the

following items as causing breathing problems for him and

which he must avoid:

... diesel fumes, midnight shifts, humidity, cold

weather, dust, oil based paints, thinners, acid fumes,

asphalt vapors, floor removers/strippers, welding

fumes, heat with certain variables, smoke, cleaning

solvents, carbon monoxide and grasses on occasion.

(Ventura Deposition, at 347-57.) Ventura allegedly had to

avoid these items up until the day he voluntarily left his

As in Harmer, Ventura’s medical expert, Dr. Sauers,

has not inspected the Service Garage and has no

information about its air quality other than that provided by

Ventura. (Sauers Deposition, at 45). As such, Dr. Sauers’

conclusory opinions cannot raise a genuine issue of fact.

831 F. Supp. at 1307.

Apdx. E - 3

employment at the Service Garage on June 21, 1993.

Ventura’s complaints, which are strikingly similar to the

complaints in Rosiak, would have made it impossible for

the City to provide an accommodation that could have kept

him in a Grade I or Grade III position because all Service

Department employees will always be either indoors near

dust or fumes or outdoors when it is cold, hot or humid.

(Ellert Affidavit, at (21; Ornas Deposition, at 429; Messina

Deposition, at §5.)’

Ventura cannot be viewed as a "qualified individual"

since he is receiving total and permanent disability benefits

from Ohio’s PERS. In Larkins _v. CIBA Vision

Corporation, -- F. Supp. --, 1994 Westlaw 370138 (N.D.Ga.

1994) at Tab H), the defendant con-tended that no

accommodation can be made for an employee who is

entirely unable to work because of being declared "totally

disabled from work." (Slip op., at 8.) Accordingly, the

court found that the plaintiff was "not a qualified individual

under the ADA because she cannot perform the essential

functions of [her] position with or without reasonable

accommodation." (Slip op., at 11.) Here, as of July 31,

1993, PERS declared that Ventura was totally disabled from

? Ironically, Ventura argues that despite his being

totally and permanently disabled, he feels he could perform

a job if it were "patch-worked" together. (Ventura

Deposition, at 364-66.)

Apdx. E - 4

work due to a "presumed permanent mental or physical

incapacity for the performance of this] present duty or

similar service." (See Ohio Administrative Code

§145-11-04; Ventura Deposition, at 396.)

Finally, Ventura’s alleged work restrictions are so

overwhelming that he cannot perform, even with rea-

sonable accommodations, the majority of the duties

expected of a Grade I Service Department employee or even

those of a Grade III position. Thus, Ventura is not a

“qualified individual" within the meaning of the ADA and

he was not entitled to any accommodation, if all facts

would have been known.

C. No Material Issue Exists As To Ventura’s Claim

1 Allegations Regarding The Department’s Ven-

tilation System. As such, Summary Judgment Is

Warranted.

Claim 1 of Ventura’s Amended Complaint includes

allegations that the Service Department does not have a

properly functioning ventilation system and that this

condition was the cause of Ventura’s asthma. (Amended

Complaint, at 411.)

Even if Ventura could establish a causal connection

between the ventilation system and his asthma, his claim

here would still be barred. The City vigorously maintains

Apdx. E - 5

that the ventilation system in the Service Garage was

designed and operated in accordance with all applicable

codes and is prepared to prove as such. However, the

condition of the ventilation system is irrelevant to the

Court’s consideration of the "causal connection" issue. It is

well established that an employee who suffers a work place

injury or disease’ has, as an exclusive remedy, the Ohio

Workers Compensation System. (see Ohio Constitution,

Article Il, Section 35; Ohio Revised Code §4123.74; and

Bridges v. Nat’l Engineering & Contracting Co. 49 Ohio

St.3d 108 (1990).) Indeed, on January 14, 1993, Ventura

filed an asthma based claim against the City with the Ohio

Workers Compensation System. (See Ventura Deposition,

at 252-253; Claim of John Ventura, Workers Compensation

Claim No. ODPE 12271, filed January 14, 1993, Spilker

Affidavit, at 910 and Exhibit 2.) | Consequently, since

Ventura is actively pursuing his claim within the Ohio

Workers Compensation System, he is not entitled to any

recovery based on his allegations in this Court that the

Department’s ventilation system is inadequate. Therefore,

summary judgment in favor of the City is appropriate as a

matter of law.

> Asthma would be a disease as opposed to an injury.

(See Ohio Revised Code 4123.01(F).)

Apdx. E - 6

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APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

EXCERPTS OF DEPOSITION

OF JOHN VENTURA

Case No. 1:93-CV-2701

Pages F-1 thru F-9

RAR

—

[Page 103-104]

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In 91?

Yes.

It’s hard to say. I’d ride with the kids.

Do you swim now in 94?

Yes.

Do you swim laps now?

I try to swim more of the lap type process rather

than just swim and taking a break.

Where to you swim?

I swim at the Civic Center.

That’s an indoor pool?

Yes, at the City of Independence.

How often do you go there and swim?

I try to go -- if I don’t have my boys with me, I’ll

try to go every night.

And what’s your routine there?

My routine is usually before I go, I’ll take my

medication and I’ll go there and then I’ll use the

whirlpool for about 10, 15 minutes and then I'll

swim in the pool.

For how long?

About 15 minutes, 20 minutes, something like that.

How many laps do you do?

Well, I can’t do straight laps, even in a small pool.

It’s kind of difficult for me to do that. I try to do

Apdx. F - |

about six or seven laps. And that’s a smaller pool

than Elmwood Pool.

Q. Do you run still?

A. No.

Q. When was the last time you ran

A. Are you speaking like a three to six-mile type race

or type run?

Q. Jogging.

A. Is that what you’re referring to?

Q. Yes.

A. Might have been last summer as best I can recollect.

Q. Did you run in 1992?

A. A little bit.

Q. How about in 93?

A. I tried. I didn’t run that often because I had a

difficult time breathing.

Q. When did you try to run in 93 when you had the

difficult time breathing?

A. In the spring when the weather warmed up.

Q. What month?

* * * *

[Pages 147-150]

(Luncheon recess taken.)

Q. I think where we left off, Mr. Ventura, was with

Exhibit AAA, which was the slip from Weiner

saying you should not ride diesel vehicles, correct?

A. I should not what?

Apdx. F - 2

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Operate diesel vehicles.

"Please excuse him from driving trucks if possible

if he has problems."

Did Dr. Weiner prescribe medication for you for

your asthma?

Yes.

What did he prescribe?

Ventolin.

What is Ventolin?

It’s an inhaler.

What else did he prescribe?

I was on Asthmacort also.

What is Asthmacort?

It’s also an inhaler.

And when did he prescribe that medication for you?

After I wad diagnosed. I don’t remember the exact

date. It was in December of 91.

How long have you been taking Ventolin?

Ever since that day.

How about the Asthmacort?

I stopped taking that because it was making my

throat bleed.

Was that like one of the side effects of it?

Yes. It’s very strong medication.

And it made your throat bleed?

Yes. I was on another inhaler that he gave me. |

can’t remember which one it was now.

Have you been on any other medication?

Apdx. F - 3

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POP PH Po

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I’m on the Ventolin. I’m on the Atrovent inhaler.

Atrovent?

Yes.

How long have you been on that?

A couple years.

Okay.

And I’m on Vanceril also.

How long have you been on Vanceril?

At least a couple years. I’m also using Albuterol

Sulfate through an aerosol machine.

And what is the name of that medication?

Albuterol Sulfate. It’s a premeasured liquid that you

put into the aerosol inhaler and the machine makes

it like an aerosol, like a midst.

That you breathe in through your nose?

Through your mouth.

How long have you been on that?

I believe it was February of 94.

Who prescribed that for you?

Dr. Sauers.

Can you remember any other medications you’ ve

been on since December of 91?

Not offhand.

Were you ever on Uniphyl?

If | was, I can’t remember.

Were you ever on Xanax?

Yes.

Valium?

Apdx. F - 4

PR aN got Ot a

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POP OrO PO

No.

How long were you on the Xanax?

I didn’t take it every single day. Off and on for a

couple months.

Who prescribed it?

Dr. Sauers.

What else has Sauers prescribed for you?

I had another medication he prescribed.

Aerobid?

No.

Did you ever take Aerobid?

Yes, I did with -- I did take Aerobid. | believe that

was with Dr. Weiner. That was inhaler also.

And --

Boy, I can’t remember the one Medication I was on

when I had the respiratory infection. I’m sorry, |

can’t remember it.

Amoxicillian? I[sn’t that what you took for your

upper respiratory infection?

I had Amoxicillian, too, I believe. There was

another medication other than the Amoxicillian.

Proventil? Were you on that?

No.

* * * *

[Pages 259-260]

System worked on and revamped. And under the

construction that it was revamped, it was never completed.

Apdx. F - 5

And this is going back at least ten years ago.

> ©

Was Dottie the service director ten years ago?

Dottie was the assistant administrative director I

believe her tithe was at the garage. We also

answered to Dottie. And I worked a couple days on

that system with Lou Kapusta.

Let’s go back to the recycling. That’s one instance

where you say you were forced to be exposed to

diesel fumes?

Yes.

And on certain occasions you would not assist in

dumping the recyclable bins and you would go

where?

If we had oil, recyclable oil, that had to be dumped,

they had a big container underground. And when

I’d come in, I would either take the oil off the trailer

and go outside and dump it. And I would go up

into the locker room after I did those jobs and |

would take my medication, and I would stay up in

the locker room until we were ready to leave again.

Usually it took about 15 minutes to unload the

recyclable materials.

How long did it take you to take your medication?

Approximately ten minutes.

What do you do when you take your medication?

You just put the inhaler --

Put the inhaler up to your mouth and you breathe it

in and hold your breath for awhile and then you

Apdx. F - 6

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exhale. Then you give it about a minutes, 30

seconds to a minute, and then you do it again. And

I would do that with the three inhalers that I use.

You did three at a time?

I do three at a time four times a day and I still do it.

Did you do it today?

Yes.

When?

When we got finished here, I went in the bathroom

over there and I took them in there.

You took all three of them?

Yes.

At one time?

Yes.

Which three did you take at one time?

The Ventolin. They’re not all done at the same

time. They’re not done -- I don’t put three up to

my mouth.

No, but you do three consecutively?

Yes.

Ventolin. What other two?

The Atrovent. Would you like to see them? I’ve

got them with me.

No, I’ve seen them before. Were you ever

disciplined for not assisting the other workers in

dumping the recyclables.

Verbally I was.

Apdx. F - 7

POP

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By who?

By Walt and Dennis.

What did they say?

They told me that my job duty is to help the crew

and I’m not carrying my end of the load and I

should get gown there and help them out. And |

explained to them I could not work in the Garage.

I could not be in there with the fumes.

Did you thereafter work in the garage?

No.

You continued to go up to the locker room?

Well, after this incident -- that incident was on

January 21 of 93 that I told them that I could not

work inside the garage.

That’s the same day you gave them Dr. Sauers’

note, right?

That’s correct. I mean I told them prior to that on

a number of occasions that I wasn’t supposed to be

in there.

But you gave them Dr. Sauers’ note at the same

time that they told you to go down and help your

coworkers dump the recyclables?

They called me upstairs to tell me that, yes.

And then you gave them Dr. Sauers’ note?

Yes.

Did you just have it in your pocket?

Apdx. F - 8

I told you I had it in my possession. I had it in my

locker room. Jack Filak told me not to give them

that letter yet. Jack Filak had a copy of it. I did

what my union...

Apdx. F - 9

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 U.S.C.S. @ 12101 (1997)

o—

Pages G-1 thru G-4

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY

FOR INDIVIDUALS WITH DISABILITIES

42 USCS @ 12101 (1997)

@ 12101. Congressional findings and purposes

(a) Findings. The Congress finds that--

(1) some 43,000,000 Americans have one or more

physical or mental disabilities, and this number is

increasing as the population as a whole is growing

older;

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and, despite

some improvements, such forms of discrimination

against individuals with disabilities continue to be a

serious and pervasive social problem;

(3) discrimination against individuals with dis-

abilities persists in such critical areas as employ-

ment, housing, public accommodations, education,

transportation, communication, recreation, institu-

tionalization, health services, voting, and access to

public services;

4) unlike individuals who have experienced dis-

crimination on the basis of race, color, sex, national

origin, religion, or age, individuals who have ex-

perienced discrimination on the basis of disability

Apdx. G - |

have often had no legal recourse to redress such

discrimination;

(5) individuals with disabilities continually

encounter various forms of discrimination, including

outright intentional exclusion, the discriminatory

effects of architectural, transportation, and com-

munication barriers, overprotective rules and

policies, failure to make modifications to existing

facilities and practices, exclusionary qualification

standards and criteria, segregation, and relegation to

lesser services, programs, activities, benefits, jobs, or

other opportunities;

(6) census data, national polls, and other studies

have documented that people with disabilities, as a

group, occupy an inferior status in our society, and

are severely disadvantaged socially, vocationally,

economically, and educationally;

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restric-

tions and limitations, subjected to a history of

purposeful unequal treatment, and relegated to a

position of political powerlessness in our society,

based on characteristics that are beyond the control

of such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to, society;

Apdx. G - 2

(8) the Nation’s proper goals regarding individuals

with disabilities are to assure equality of oppor-

tunity, full participation, independent living, and

economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and un-

necessary discrimination and prejudice denies people

with disabilities the Opportunity to compete on an

equal basis and to pursue those Opportunities for

which our free society is Justifiably famous, and

costs the United States billions of dollars in un-

necessary expenses resulting era- dependency and

nonproductivity.

(b) Purpose. It is the purpose of this Act--

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against indivi-

duals with disabilities;

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in

this Act on behalf of individuals with disabilities;

and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth

amendment and to regulate commerce, in order to

Apdx. G - 3

address the major areas of discrimination faced

day-to-day by people with disabilities.

HISTORY: (July 26, 1990, P.L. 101-336, @ 2, 104 Stat.

328.)

Apdx. G - 4

+ -

% 4

“<

‘

APPENDIX H

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 U.S.C.S. @ 12102 (1997)

Pages H-1 thru H-2

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY

FOR INDIVIDUALS WITH DISABILITIES

42 USCS @ 12102 (1997)

@ 12102. Definitions

As used in this Act:

(1) Auxiliary aids and services. The term "auxiliary

aids and services" includes--

(A) qualified interpreters or other effective

methods of making aurally delivered

materials available to individuals with

hearing impairments;

(B) qualified readers, taped texts, or other

effective methods of making visually

delivered materials available to individuals

with visual impairments;

or devices; and

(D) other similar services and actions.

(2) Disability. The term "disability" means, with

respect to an individual--

(A) a physical or mental impairment that

substantially limits one or more of the major

life activities of such individual;

(B) a record of such an impairment: or

Apdx. H - |

impairment.

(3) State. The term "State" means each of the

several States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam, American

Samoa, the Virgin Islands, the Trust Territory of the

Pacific Islands, and the Commonwealth of the

Northern Mariana Islands.

HISTORY: (July 26, 1990, P.L. 101-336, @ 3, 104 Stat

329.)

Apdx. H - 2

—————_——____

APPENDIX I

TE i ot

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 U.S.C.S. @ 12111 (1997)

Pages I-1 thru I-5

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY

FOR INDIVIDUALS WITH DISABILITIES

42 USCS @ 12111 (1997)

@ 12111. Definitions

As used in this title:

(1) Commission. The term "Commission" means the

Equal Employment Opportunity Commission established by

section 705 of the Civil Rights Act of 1964 <=]> (42

U.S.C. 2000e-4).

(2) Covered entity. The term "covered entity"

means an employer, employment agency, labor organization,

or joint labor-management committee.

(3) Direct threat. The term "direct threat" means a

significant risk to the health or safety of others that cannot

be eliminated by reasonable accommodation.

(4) Employee. The term "employee" means an

individual employed by an employer. With respect to

employment in a foreign country, such term includes an

individual who is a citizen of the United States.

(5) Employer.

(A) In general. The term "employer" means

a person engaged in an industry affecting

commerce who has 15 or more employees

for each working day in each of 20 or more

Apdx. I - 1

calendar weeks in the current or preceding

calendar year, and any agent of such person,

except that, for two years following the

effective date of this title, an employer

means a person engaged in an industry

affecting commerce who has 25 or more

employees for each working day in each of

20 or more calendar weeks in the current or

preceding year, and any agent of such

person.

(B) Exceptions. The term "employer" does

not include--

(i) the United States, a corporation

wholly owned by the government of

the United States, or an Indian tribe;

(ii) a bona fide private membership

club (other than a labor organization)

that is exempt from taxation under

section SOl(c) of the Internal

Revenue Code of 1986.

(6) Illegal use of drugs.

(A) In general. The term "illegal use of

drugs means the use of drugs, the possession

or distribution of which is unlawful under

the Controlled Substances Act <==2> (21

U.S.C. 812). Such term does not include the

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use of a drug taken under supervision by a

licensed health care professional, or other

uses authorized by the Controlled Substances

Act or other provisions of Federal law.

(B) Drugs. The term "drug" means a control-

led substance, as defined in schedules |

through V of section 202 of the Controlled

Substances Act [<=3> 21 USCS @ 812].

(7) Person, etc. The terms "per cation", "employment

agency", "commerce", and "industry", shall have the same

meaning given such terms in section 701 of the Civil Rights

Act of 1964 <=4> (42 U.S.C. 20006e).

(8) Qualified individual with a "qualified individual

with a disability" means an individual with a disability who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires. For the purposes of this title,

consideration shall be given to the employer’s judgment as

to what functions of a job are essential, and if an employer

has prepared a written description before advertising or

interviewing applicants for the job, this description shall be

considered evidence of the essential functions of the job.

(9) Reasonable accommodation. The term

"reasonable accommodation" may include--

(A) making existing facilities used by

employees readily accessible to and usable

by individuals with disabilities; and

Apdx. I - 3

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(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant

position, acquisition or modification of

equipment or devices, appropriate adjustment

or modifications of examinations, training

materials or policies, the provision of

qualified readers or interpreters, and other

similar accommodations for individuals with

disabilities.

(10) Undue hardship.

(A, In general. The term "undue hardship"

means an action requiring significant

difficulty or expense, when considered in

light of the factors set forth in subparagraph

(B) Factors to be considered. In determining

whether an accommodation would impose an

undue hardship on a covered entity, factors

to be considered include--

(i) the nature and cost of the

accommodation needed under this

Act;

(ii) the overall financial resources of

the facility or facilities involved in

the provision of the reasonable ac-

commodation; the number of persons

employed at such facility: the effect

on expenses and resources, or the

Apdx. I - 4

impact otherwise of such accom-

modation upon the operation of the

facility;

(iii) the overall financial resources of

the covered entity; the overall size of

the business of a covered entity with

respect to the number of its

employees; the number, type, and

location of its facilities; and

(iv) the type of operation or

operations of the covered entity,

including the composition, structure,

and functions of the workforce of

such entity; the geographic

separateness, administrative, or fiscal

relationship of the facility or facilities

in question to the covered entity.

HISTORY: (July 26, 1990, P.L. 101-336, Title I, @ 101,

104 Stat. 330; Nov. 21, 1991, P.L. 102-166, Title I, $

109(a), 105 Stat. 1077.)

Apdx. I - 5

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 U.S.C.S. @ 12112 (1997)

Pages J-1 thru J-7

* mre. 2

We PORE EA NES MUR NAS ey Oe

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY

FOR INDIVIDUALS WITH DISABILITIES

42 USCS @ 12112 (1997)

@ 12112. Discrimination

(a) General rule. No covered entity shall discriminate

against a qualified individual with a disability because of

the disability of such individual 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.

(b) Construction. As used in subsection (a), the term

"discriminate" includes

(1) limiting, segregating, or classifying a job

applicant or employee in a way that adversely af-

fects the opportunities or status of such applicant or

employee because of the disability of such applicant

or employee;

(2) participating in a contractual or other arrange-

ment or relationship that has the effect of subjecting

a covered entity’s qualified applicant or employee

with a disability to the discrimination prohibited by

this title (such relationship includes a relationship

with an employment or referral agency, labor union,

an organization providing fringe benefits to an

Apdx. J - 1

employee of the covered entity, or an organization

providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of

administration--

(A) that have the effect of discrimination on

the basis of disability; or

(B) that perpetuate the discrimination of

others who are subject to common admini-

strative control;

(4) excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the

known disability of an individual with whom the

qualified individual is known to have a relationship

or association;

(5)

(A) not making reasonable accommodations

to the known physical or mental limitations

of an otherwise qualified individual with a

disability who is an applicant or employee,

unless such covered entity can demonstrate

that the accommodation would impose an

undue hardship on the operation of the

business of such covered entity; or

(B) denying employment opportunities to a

job applicant or employee who if an other-

wise qualified individual with a disability, if

such denial is based on the need of such

covered entity to make reasonable accom-

Apdx. J - 2

modation to the physical or mental impair-

ments of the employee or applicant;

(6) using qualification standards, employment tests

or other selection criteria that screen out or tend to

screen out an individual with a disability or a class

of individuals with disabilities unless the standard,

test or other selection criteria, as used by the

covered entity, is shown to be job-related for the

Position in question and is consistent with business

necessity; and

(7) failing to select and administer tests concerning

employment in the most effective manner to ensure

that, when such test is administered to a job

applicant or employee who has a disability that

impairs sensory, manual, or speaking skills, such test

results accurately reflect the skills, aptitude, or

whatever other factor of such applicant or employee

that such test purports to measure, rather than

reflecting the impaired sensory, manual, or speaking

skills of such employee or applicant (except where

such skills are the factors that the test purports to

measure).

(1) In general. It shall not be unlawful under this

section for a covered entity to take any action that

constitutes discrimination under this section with

respect to an employee in a workplace in a foreign

Apdx. J - 3

country if compliance with this section would cause

such covered entity to violate the law of the foreign

country in which such workplace is located.

(2) Control of corporation.

(A) Presumption. If an employer controls a

corporation whose place of incorporation is

a foreign country, any practice that con-

stitutes discrimination under this section and

is engaged in by such corporation shall be

presumed to be engaged in by such

employer.

(B) Exception. This section shall not apply

with respect to the foreign operations of an

employer that is a foreign person not

controlled by an American employer.

paragraph, the determination of whether an

employer controls a corporation shall be

based on--

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor

relations; and

(iv) the common ownership or finan-

cial control, of the employer and the

corporation.

Apdx. J - 4

(d) Medical examinations and inquiries.

(1) In general. The prohibition against

discrimination as referred to in subsection

(a) shall include medical examinations and inquiries.

(2) Preemployment.

(A) Prohibited examination or inquiry.

Except as provided in paragraph (3), a

covered entity shall not conduct a medical

examination or make inquiries of a job

applicant as to whether such applicant is an

individual with a disability or as to the

nature or severity of such disability.

(B) Acceptable inquiry. A covered entity

may make preemployment inquiries into the

ability of an applicant to perform job-related

functions.

(3) Employment entrance examination. A covered

entity may require a medical examination after an

offer of employment has been made to a job :

applicant and prior to the commencement of the |

employment duties of such applicant, and may

condition an offer of employment on the results of

such examination, if--

(A) all entering employees are subjected to

such an examination regardless of disability;

(B) information obtained regarding the

medical condition or history of the applicant

Apdx. J - §

is collected and maintained on separate

forms and in separate medical files and is

treated as a confidential medical record,

except that--

(i) supervisors and managers may be

informed regarding necessary restric-

tions on the work or duties of the

employee and necessary accommo-

dations,

(ii) first aid and safety personnel may

be informed, when appropriate, if the

disability might require emergency

treatment; and

(iii) government officials investi-

gating compliance with this Act shall

be provided relevant information on

request; and

only in accordance with this title.

(4) Examination and inquiry.

(A) Prohibited examinations and inquiries. A

covered entity shall not require a medical

examination and shall not make inquiries of

an employee as to whether such employee is

an individual with a disability or as to the °

nature or severity of the disability, unless

such examination or inquiry is shown to be

Apdx. J - 6

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job-related and consistent with business

necessity.

(B) Acceptable examinations and inquiries. |

A covered entity may conduct voluntary .

medical examinations, including voluntary

medical histories, which are part or an

employee health program available to em-

ployees at that work site. A covered entity

may make inquiries into the ability of an

employee to perform job-related functions.

subparagraph (B) regarding the medical

condition or history of any employee are

subject to the requirements of subparagraphs

(B) and (C) of paragraph (3).

HISTORY: (July 26, 1990, P.L. 101-336, Title I, @ 102,

104 Stat. 331; Nov. 21, 1991, P.L. 102-166, Title I, @

109(b)(2), 105 Stat.1077.)

Apdx. J - 7

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TITLE 29. LABOR; SUBTITLE B;

CHAPTER XIV; PART 1630

29 C.F.R. 1630.2

Pages K-1 thru K-12

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TITLE 29. -- Labor

SUBTITLE B -- Regulations Relating to Labor

Chapter XIV — Equal Employment Opportunity Commission

Part 1630 00 Regulations to Implement The Equal

Employment Provisions of The Americans With

Disabilities Act

29 CFR 1630.2

@ 1630.2 Definitions.

(a) Commission means the Equal Employment

Opportunity Commission established by section 705 of the

Civil Rights Act of 1964 (42 U.S.C. 2000e-41. ;

(b) Covered Entity means an employer, employment

agency, labor organization, or joint labor management

committee.

commerce and industry affecting commerce shall have the

same meaning given those terms in section 701 of the Civil

Rights Act of 1964 (42 U.S.C. 2000e).

(d) State means each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico,

Guam, American Samoa, the Virgin Islands, the Trust

Territory of the Pacific Islands, and the Commonwealth of

the Northern Mariana Islands.

(e) Employer--

(1) In general. The term employer means a

person engaged in an industry affecting

commerce who has 15 or more employees

for each working day in each of 20 or more

Apdx. K - 1

AVON SAR NE ATONE TINE EATON NE Ct NEE TORAH

calendar weeks in the current or preceding

calendar year, and any agent of such person,

except that, from July 26, 1992 through July

25, 1994, an employer means a person

engaged in an industry affecting commerce

who has 25 or more employees for each

working day in each of 20 or more calendar

weeks in the current or preceding year and

any agent of such person.

(2) Exceptions. The term employer does not

include--

(i) The United States, a corporation

wholly owned by the government of

the United States, or an Indian tribe;

(ii) A bona fide private membership

club (other than a labor organization)

that is exempt from taxation --501(c)

of the Internal Revenue Code of

1986.

(f) Employee means ad by an employer.

(g) Disability means, with respect to an individual--

(1) A physical or men substantially limits

one or more of the major life activities Dual;

(2) A record of such an impairment; or

(3) being regarded as having such an

impairment. (See @ 1630.3 for exceptions to

this definition).

Apdx. K - 2

(h) Physical or mental impairment means:

(1) Any physiological disorder, or condition,

cosmetic disfigurement, or anatomical loss

affecting one or more of the following body

systems: neurological, musculoskeletal,

special sense organs, respiratory (including

speech organs), cardiovascular, reproductive,

digestive, genito-urinary, hemic and

lymphatic, skin,

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