[Cite as Hilbert v. Ohio Dept. of Transp., 2016-Ohio-1256.]




THOMAS HILBERT                                          Case No. 2015-00020

        Plaintiff                                       Judge Patrick M. McGrath
                                                        Magistrate Anderson M. Renick
        v.
                                                        DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant



        {¶1} On December 21, 2015, the parties filed cross-motions for summary
judgment pursuant to Civ.R. 56. On January 4, 2016, the parties filed responses to the
motions. On January 11, 2016, defendant, Ohio Department of Transportation (ODOT),
filed a reply. On January 12, 2016, plaintiff filed both a reply and a motion for leave to
file the same, which is GRANTED. The case is now before the court for a non-oral
hearing on the motions.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2015-00020                        -2-                                    ENTRY


Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶4} On April 23, 1993, plaintiff began working for ODOT as a highway
maintenance worker in defendant’s District 8 office and he was eventually promoted to
the position of Signal Electrician 2, a union bargaining unit position in the Ohio Civil
Service Employee Association (OCSEA). Plaintiff first obtained a Class A commercial
driver’s license (CDL) during his probationary period as a highway maintenance worker
and in that position, he drove trucks which required Class A certification. Plaintiff was
also required to maintain a Class A CDL as a Signal Electrician 2. However, it is
undisputed that plaintiff did not actually drive any equipment that required a Class A
CDL while working as a Signal Electrician 2.
       {¶5} On August 16, 2013, plaintiff was stopped by an Ohio State Highway Patrol
trooper for a turn signal violation while driving home from a concert and he admitted that
he had consumed two beers. After plaintiff refused a Breathalyzer test, he was cited for
operating a vehicle while under the influence of alcohol and placed under an
administrative license suspension (ALS), pursuant to R.C. 4511.191.
       {¶6} The next day plaintiff contacted his supervisor, James Judd, and related
what had happened the night before. Judd was advised by defendant’s safety director,
Amy Augsparger, to direct plaintiff to use vacation and personal leave while he was
unable to drive or report to work.
       {¶7} On September 4, 2013, plaintiff pleaded guilty to reckless operation of a
motor vehicle in the Hamilton County Municipal Court, resulting in a six-month
suspension of his license, effective August 16, 2013, and he was granted limited driving
privileges “to from and during work” and to any treatment and medical appointments.
(Plaintiff’s deposition, Exhibit A.) On the same date, the municipal court issued an order
which terminated the ALS and waived the ALS fee. Id.
Case No. 2015-00020                          -3-                                 ENTRY


       {¶8} The following day, plaintiff contacted both Jim Fife, a human resources
administrator, and Mike Brown, ODOT’s Labor Relations Officer for District 8, and
reported the conclusion of his traffic case and the limited restoration of his driving
privileges. Brown testified that on numerous occasions he asked plaintiff whether his
CDL privileges had been restored and plaintiff replied “no.” (Brown’s deposition, page
28.) Brown discussed plaintiff’s status with Bobby Johnson, ODOT’s Labor Relations
Administrator, and Steve Mary, ODOT’s deputy director in District 8, and subsequently a
decision was made to initiate disciplinary proceedings against plaintiff because his
union contract provided that any suspension of his CDL for more than 120 days
required that he either resign or be removed from employment. (Johnson affidavit, ¶ 7).
       {¶9} On September 12, 2013, plaintiff contacted Shananne Middleton, the
benefits coordinator for District 8, and requested FMLA leave. On September 20, 2013,
plaintiff’s physician, Dr. Jason Hoke completed an FMLA medical certification form.
(Plaintiff’s deposition, Exhibit C.) Plaintiff testified that, on the same day, Brown had
attempted to persuade him to resign. Four days later, Middleton processed the FMLA
forms and forwarded them to ODOT’s human resources department.
       {¶10} On September 20, 2013, ODOT provided plaintiff with written notice of a
pre-disciplinary hearing that was scheduled for September 25, 2013.            (Plaintiff’s
deposition, Exhibit E.)   Plaintiff was specifically informed that he was charged with
violating Directive WR-101, Item 27:
       {¶11} “Other actions that could compromise or impair the ability of the employee
to effectively carry out his/her duties as a public employee.
       {¶12} “The basis of the charge is as follows:            On August 16, 2013 your
Commercial Driver’s License was placed on ALS suspension. The ALS suspension is
for a period greater than 120 days.” (Plaintiff’s deposition, Exhibit E.)
       {¶13} According to plaintiff, two union members attended the hearing and
represented him. After the pre-disciplinary hearing, the hearing officer determined that
Case No. 2015-00020                          -4-                                    ENTRY


probable cause existed to terminate plaintiff’s employment. Johnson determined that
plaintiff’s Class A CDL would remain suspended for more than 120 days and that his
union contract required that he should be removed from employment.               (Johnson’s
affidavit, ¶ 8.) On September 30, 2013, ODOT’s director, Jerry Wray, issued a letter
stating that plaintiff’s employment would be terminated effective October 4, 2013.
(Plaintiff’s deposition, Exhibit F.)
       {¶14} Plaintiff brought this action alleging disability discrimination pursuant to
R.C. 4112.02 and 4112.99, and violation of his rights under the Family and Medical
Leave Act (FMLA), 29 U.S.C. 2611 et seq.           Defendant argues that plaintiff cannot
prevail on his claims because the recommendation to terminate his employment was
not related either to his purported disability or to his requests to take FMLA leave.
Defendant further contends that plaintiff cannot show that defendant’s legitimate, non-
discriminatory reason for imposing discipline and subsequently terminating his
employment was pretext for retaliation or disability discrimination.
       {¶15} “To prevail in an employment discrimination case, a plaintiff must prove
discriminatory intent. * * * Discriminatory intent may be proven by either direct or indirect
evidence.” Hardgrow v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-919,
2012-Ohio-2731, ¶ 18. In this case, plaintiff does not appear to suggest that there is
direct evidence of discriminatory intent. Absent direct evidence, Ohio courts resolve
claims of employment discrimination using the evidentiary framework established by the
Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Canady v. Rekau & Rekau, Inc., 10th Franklin Dist. No. 09AP-32, 2009-
Ohio-4974, ¶ 22.


FMLA
       {¶16} The FMLA prohibits employers from discriminating against employees for
exercising their rights under the Act. Section 2615(a)(2).             “Basing an adverse
Case No. 2015-00020                          -5-                                   ENTRY


employment action on an employee’s use of leave or retaliation for exercise of FMLA
rights is therefore actionable.” Ressler v. AG, 10th Dist. Franklin No. 14AP-519, 2015-
Ohio-777, ¶ 14, citing Skrjanc v. Great Lakes Power Serv. Co. (C.A.6, 2001), 272 F.3d
309.
         {¶17} There are two distinct theories of recovery under the FMLA: 1) interference,
sometimes referred to as entitlement, and 2) retaliation, sometimes referred to as
discrimination. Randolph v. Grange Mut. Cas. Co., 185 Ohio App.3d 589, 2009-Ohio-
6782, ¶ 8 (10th Dist.) For an interference claim, the issue is whether the employer
provided its employee the entitlements set forth in the FMLA; the employer’s intent is
not a relevant part of the analysis. Id., citing Edgar v. JAC Prods., Inc. (C.A.6, 2006),
443 F.3d 501, 507. For a retaliation claim, the employer’s motive is relevant because
such claims impose liability on an employer that acts against an employee specifically
because the employee invoked FMLA rights. Id., citing Edgar at 508.
         {¶18} An employee can prove FMLA interference or retaliation circumstantially,
using the method of proof established in McDonnell Douglas Corp. v. Green, supra.
Ressler, at ¶ 14. If plaintiff establishes a prima facie case, the burden of production
shifts to defendant to “articulate some legitimate, nondiscriminatory reason for [its
action].” McDonnell Douglas, supra, at 802. If defendant succeeds in doing so, then
the burden shifts back to plaintiff to demonstrate that defendant’s proffered reason was
not the true reason for the employment decision. Id.
         {¶19} To establish a prima facie case of FMLA interference, plaintiff must
establish that 1) he was an eligible employee, 2) ODOT is a covered employer, 3) he
was entitled to leave under the FMLA, 4) he gave ODOT notice of his intent to take
leave, and 5) ODOT denied his right to be restored to the same position or a
comparable one. Niles v. Nat’l Vendor Servs., 10th Dist. Franklin No. 10AP-128, 2010-
Ohio-4610, ¶ 14, citing Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (C.A.6,
2004).
Case No. 2015-00020                       -6-                                    ENTRY


      {¶20} Pursuant to FMLA regulations “if the employee is unable to perform the
essential functions of the position or a comparable one when FMLA leave expires, the
employee is not entitled to reinstatement.” Niles, supra at ¶ 15, citing Reynolds v.
Phillips & Temro Industries, Inc., 195 F.3d 411, 414 (C.A.8, 1999). Furthermore, an
employee “‘who requests FMLA leave would have no greater protection against his or
her employment being terminated for reasons not related to his or her FMLA request
than he or she did before submitting that request.’” Kemper v. Springfield Twp., 1st
Dist. Hamilton Nos. C-110514, C-110546, 2012-Ohio-2461, ¶ 22, quoting Arban v. West
Publishing Corp., 345 F.3d 390, 401 (6th Cir.2003).
      {¶21} The evidence shows that both plaintiff’s union contract and his ODOT
position description included a Class A CDL as a requirement of his position.
Therefore, once plaintiff’s CDL was suspended, he was not entitled to “be restored to
the same position.” Plaintiff did not request FMLA leave until after his license was
suspended. Consequently, he cannot prove his prima facie case of FMLA interference.
      {¶22} “To establish a prima facie case of retaliation circumstantially, a plaintiff
must show that: (1) [he] exercised rights afforded by FMLA, (2) [he] suffered an adverse
employment action, and (3) there was a causal connection between [his] exercise of
rights and the adverse employment action.” Ressler at ¶ 14, citing Zechar v. Ohio Dept.
of Edn., 121 Ohio Misc.2d 52, 2002-Ohio-6873, ¶ 9.
      {¶23} There is no dispute that plaintiff exercised his rights under the FMLA and
that his termination was an adverse employment action. However, defendant argues
that there was no causal connection between any protected FMLA activity and any
adverse employment action.
      {¶24} If an adverse action was considered before plaintiff engaged in protected
activity, there is no inference of causation.         See Prebilich-Holland v. Gaylord
Entertainment Co., 297 F.3d 438, 443-444 (6th Cir.2002) (finding that close proximity
creates no inference of causation when the termination procedure was instituted several
Case No. 2015-00020                        -7-                                     ENTRY


days before knowledge of protected status or activity). “Evidence that the employer had
been concerned about a problem before the employee engaged in the protected activity
undercuts the significance of the temporal proximity.” Sosby v. Miller Brewing Co., 415
F. Supp. 2d 809, 822 (S.D.Ohio 2005), citing Smith v. Alien Health Sys., Inc., 302 F.3d
827, 834 (8th Cir.2002).
      {¶25} Furthermore, “‘[a] reason for dismissal that is unrelated to a request for an
FMLA leave will not support recovery under an interference theory * * * an indirect
causal link between dismissal and an FMLA leave is an inadequate basis for recovery.’”
Anderson v. Wellman Prods. Group, 157 Ohio App. 3d 565, 573, 2004-Ohio-3420 (9th
Dist.). “[I]f an employee’s discharge would have occurred regardless of [his] request for
FMLA leave, then that employee may be discharged even if discharge prevents [his]
exercise of any possible right to FMLA leave.” Id. at 572.
      {¶26} Brown testified that sometime in August 2013, he informed plaintiff that he
needed to retain his CDL to keep his job and that plaintiff replied that he was going to
retain counsel to help him have his driving privileges restored.       (Brown deposition,
page 14.) As discussed above, Brown testified that he asked plaintiff on numerous
occasions about the status of his CDL and plaintiff responded that his privileges had not
been restored. Inasmuch as plaintiff was informed that suspension of his CDL could
result in the termination of his position well before he requested FMLA leave, there is no
inference of causation. Construing the evidence most strongly in favor of plaintiff, the
only reasonable conclusion is that there was no causal connection between plaintiff’s
FMLA request and the decision to terminate his employment based upon the
suspension of his CDL.
      {¶27} Even if plaintiff had established a prima facie case of retaliation, he could
not prevail if defendant had legitimate, nondiscriminatory reasons for terminating his
employment.    McDonnell Douglas, supra.         There is no dispute that plaintiff’s union
contract provided that plaintiff’s employment would be terminated if he refused to resign
Case No. 2015-00020                          -8-                                    ENTRY


after the suspension of his Class A CDL. (Johnson affidavit, ¶ 7; Exhibit D.) Plaintiff
admitted that his CDL was suspended and the evidence that was obtained by ODOT
shows that the suspension remained in place at the time of his pre-disciplinary hearing.
(Johnson affidavit, ¶ 6; Exhibit C.) Plaintiff’s own notes from the pre-disciplinary hearing
show that “everyone agreed” that his CDL was suspended.              (Plaintiff’s deposition,
Exhibit L.)        Upon review of the hearing officer’s recommendation, ODOT’s director
determined that just cause existed to terminate plaintiff’s employment.
       {¶28} Based upon the undisputed evidence and the applicable law, the court
finds that defendant had legitimate, nondiscriminatory reasons for terminating plaintiff’s
position.     Accordingly, defendant is entitled to judgment as a matter of law as to
plaintiff’s FMLA claims.


Disability discrimination
       {¶29} R.C. 4112.02(A) makes it an unlawful discriminatory practice for any
employer, because of an employee’s disability, to refuse to hire or otherwise to
discriminate against that person. Ressler, supra, at ¶ 16. In order to establish a prima
facie case of disability discrimination, plaintiff must demonstrate that: 1) he was
disabled, 2) an adverse employment action was taken by an employer, at least in part,
because of his disability, and 3) although disabled, plaintiff can safely and substantially
perform the essential functions of the job in question. Id., citing Debolt v. Eastman
Kodak Co., 146 Ohio App.3d 474, ¶ 39, 2001-Ohio-3996 (10th Dist.2001); Columbus
Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 1998-Ohio-410 (1998). The
burden        of      proof    framework    that   applies    to    federal     Title    VII
employment discrimination cases, set forth in McDonnell Douglas, also applies to
Chapter 4112 discrimination cases. See Mauzy v. Kelly Services, Inc., 75 Ohio St.3d
578, 582, 1996-Ohio-265 (1996).
Case No. 2015-00020                          -9-                                     ENTRY


       {¶30} To establish a prima facie case of disability discrimination, a plaintiff must
demonstrate: 1) that he was disabled; 2) that an adverse employment action was taken
by his employer at least in part because plaintiff was disabled, and 3) that plaintiff, even
though disabled, can safely and substantially perform the essential functions of the job
in question. Id. at 571. “Because an employee must prove all three elements in order
to establish a prima facie case of disability discrimination, the failure to establish any
single element is fatal to a discrimination claim.” Taylor v. Ohio Dept. of Job & Family
Servs., 10th Dist. No. 11AP-385, 2011-Ohio-6060, ¶ 20.
       {¶31} With regard to plaintiff’s alleged disability, plaintiff relates that he is an
alcoholic and that defendant discriminated against him because of his alcoholism.
       {¶32} Federal and state disability discrimination claims, whether brought under
the Americans with Disabilities Act, 42 U.S.C. 12112 et seq. (ADA) or Ohio’s
anti-discrimination statute, R.C. 4112, are subject to the same evidentiary standards
and may be evaluated concurrently. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195,
201 (6th Cir.2010). In order to establish a claim for disability discrimination, the plaintiff
must first establish that he is “disabled” within the meaning of the ADA. McKay v.
Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir.1997). The Americans With
Disabilities Act Amendments Act of 2008 (ADAAA) applies in cases where the alleged
discriminatory acts occurred after January 1, 2009. Milholland v. Sumner County Bd. of
Educ., 569 F.3d 562, 566-567 (6th Cir.2009).
       {¶33} Under the ADAAA, “disability” means:
       {¶34} “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
       {¶35} “(B) a record of such an impairment; or
       {¶36} “(C) being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. 12102(1).
Case No. 2015-00020                        -10-                                   ENTRY


        {¶37} Although plaintiff contends that two unnamed psychologists told him he had
signs of alcoholism, he testified that Dr. Hoke neither expressed concern about
plaintiff’s use of alcohol nor diagnosed him as an alcoholic. Furthermore, plaintiff has
not submitted any evidence to show that his alcohol use substantially limits a major life
activity.
        {¶38} Based upon the undisputed evidence, the only reasonable conclusion is
that plaintiff’s alleged alcoholism does not constitute a disability under the ADAAA.
Furthermore, the evidence presented does not support an inference that plaintiff was
removed from his position, at least in part, because of the alleged disability. In his
motion for summary judgment, plaintiff admits that there is no evidence that his alleged
alcoholism affected his job performance.       (Page 18.)    Therefore, plaintiff failed to
demonstrate a genuine issue of material fact with regard to a prima facie case of
disability discrimination.
        {¶39} Even if plaintiff’s alcoholism were a disability, he was terminated pursuant
to the terms of the CBA for failure to maintain a Class A CDL. The U.S. 6th Circuit
Court of Appeals has noted that “there is a distinction between taking an adverse job
action for unacceptable misconduct and taking such action solely because of a
disability, even if the misconduct is “caused” by the disability. Martin v. Barnesville
Exempted Village School Dist. Bd. Of Educ., 209 F.3d 931, 934-935 (6th Cir.2000),
citing Maddox v. University of Tennessee, 62 F.3d 843, 847 (6th Cir.1995). “The ADA
specifically provides that an employer may hold an alcoholic employee to the same
performance and behavior standards to which the employer holds other employees
“even if any unsatisfactory performance is related to the alcoholism of such employee,”
thereby clearly distinguishing the issue of misconduct from one’s status as an alcoholic.
42 U.S.C. § 12114(c)(4).” Id.
        {¶40} Plaintiff admitted that no one at ODOT ever told him either that it was
believed he was an alcoholic or that he was being terminated for that reason. (Plaintiff’s
Case No. 2015-00020                         -11-                                    ENTRY


deposition, pages 100-101.) Based upon the evidence, the court finds that defendant
had a legitimate, non-discriminatory reason to terminate plaintiff’s employment.
Furthermore, plaintiff has not presented any evidence which supports an inference that
the legitimate reasons offered by ODOT were not its true reasons, but were a pretext for
discrimination.    Therefore, defendant is entitled to judgment as a matter of law on
plaintiff's disability claim.
        {¶41} For the foregoing reasons, and construing the facts most strongly in
plaintiff’s favor, the court finds that there is no genuine issue as to any material fact and
that defendant is entitled to summary judgment as a matter of law.             Accordingly,
defendant’s motion for summary judgment shall be granted and plaintiff’s motion for
summary judgment shall be denied.




                                                PATRICK M. MCGRATH
                                                Judge
[Cite as Hilbert v. Ohio Dept. of Transp., 2016-Ohio-1256.]




THOMAS HILBERT                                          Case No. 2015-00020

        Plaintiff                                       Judge Patrick M. McGrath
                                                        Magistrate Anderson M. Renick
        v.
                                                        JUDGMENT ENTRY
OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant



        {¶42} A non-oral hearing was conducted in this case upon both plaintiff’s and
defendant’s motions for summary judgment. For the reasons set forth in the decision
filed concurrently herewith, defendant’s motion for summary judgment is GRANTED,
plaintiff’s motion for summary judgment is DENIED and judgment is rendered in favor of
defendant. All previously scheduled events are VACATED. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.



                                                          PATRICK M. MCGRATH
                                                          Judge

cc:
John H. Forg, III                                       Peter E. DeMarco
P.O. Box 72                                             Timothy M. Miller
West Chester, Ohio 45071-0072                           Assistant Attorneys General
                                                        150 East Gay Street, 18th Floor
                                                        Columbus, Ohio 43215-3130

Filed February 24, 2016
Sent To S.C. Reporter 3/24/16
