Allman v. Walmart, Inc., 073020 FED6, 19-4220

Docket Nº:19-4220
Opinion Judge:RONALD LEE GILMAN, Circuit Judge.
Party Name:Joe B. Allman, Plaintiff-Appellant, v. Walmart, Inc., Defendant-Appellee.
Attorney:Michael T. Conway, MICHAEL T. CONWAY AND COMPANY, Brunswick, Ohio, for Appellant. Alison M. Day, Benjamin W. Mounts, LITTLER MENDELSON, P.C., Columbus, Ohio, for Appellee.
Judge Panel:Before: GILMAN, BUSH, and READLER, Circuit Judges.
Case Date:July 30, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Joe B. Allman, Plaintiff-Appellant,

v.

Walmart, Inc., Defendant-Appellee.

No. 19-4220

United States Court of Appeals, Sixth Circuit

July 30, 2020

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:18-cv-00369-Sarah Daggett Morrison, District Judge.

ON BRIEF:

Michael T. Conway, MICHAEL T. CONWAY AND COMPANY, Brunswick, Ohio, for Appellant.

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

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

OPINION

RONALD LEE GILMAN, Circuit Judge.

Joe B. Allman was employed as a commercial truck driver by Walmart, Inc. After Allman's supervisors required him to wear a continuous positive airway pressure (CPAP) machine at night based on medical reports that Allman had sleep apnea, he resigned. Allman has alleged that he was in fact constructively discharged from Walmart due to its requirement that he wear the CPAP machine. He also claims that Walmart retaliated against him by requiring him to wear the device, in violation of Ohio Revised Code Annotated § 4112.02(I), and that he was wrongfully terminated in violation of Ohio public policy.

The district court granted summary judgment in favor of Walmart with respect to Allman's retaliation claim and granted Walmart's motion to dismiss Allman's wrongful-termination claim. For the reasons set forth below, we AFFIRM the judgment of the district court.

I.

BACKGROUND

A.

Factual background

1.

Department of Transportation (DOT) regulations and Walmart's sleep- apnea program

Walmart's requirement that Allman wear a CPAP machine is based on federal law. Federal regulations require commercial truck drivers to be "medically certified as physically qualified" to operate commercial motor vehicles. 49 C.F.R. § 391.41(a)(1)(i). A driver is not physically qualified if he or she has an "established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely." 49 C.F.R. § 391.41(b)(5). "Respiratory dysfunction" includes sleep apnea, which is listed under the "conditions that interfere with oxygen exchange and may result in incapacitation." 49 C.F.R. Pt. 391, App. A (E)(3).

Drivers must undergo an annual medical examination in order to be certified as "physically qualified." 49 C.F.R. § 391.41(a)(3). With exceptions not pertinent here, "the medical examination must be performed by a medical examiner listed on the National Registry of Certified Medical Examiners." 49 C.F.R. § 391.43(a).

Against this regulatory backdrop, Walmart promulgated a sleep-apnea program for its commercial truck drivers in 2013. Walmart contracted with a company called "SleepSafe Drivers" (SleepSafe) to oversee this initiative. Under the program, drivers are screened for sleep-apnea risk factors during their annual DOT medical examination and may be referred for further evaluation and treatment on this basis. Walmart provides these benefits without cost to its drivers.

2.

Allman's employment with Walmart

Allman began working as a driver for Walmart in 2006. During Allman's medical examination in 2013, physician assistant David Burton determined that Allman was at risk for sleep apnea and referred him for a sleep study. Allman asserts that the referral was based solely on his body-mass index and neck circumference. But Allman had noted several risk factors for sleep apnea in his intake form during the visit. He marked, for example, that he had diabetes and high blood pressure, and he checked the box indicating that he experienced "[s]leep disorders, pauses in breathing while asleep, daytime sleepiness, loud snoring."

Allman subsequently underwent a sleep study conducted by Advanced Home Medical, a SleepSafe contractor, and was diagnosed with sleep apnea. Pursuant to Walmart's sleep-apnea program, Allman was then instructed to wear a CPAP machine for four hours each night when sleeping in his truck. But Allman found that wearing the device caused him "trouble." Specifically, he experienced dry mouth from wearing the CPAP machine, as well as headaches and nosebleeds. He complained about the pain and discomfort caused by the device to his supervisor, John Coburn; to a Walmart manager, Jesse Judge; and to a SleepSafe employee, Sean Knight.

After several weeks of trying to use the CPAP machine, Allman's compliance wavered. Knight, who remotely monitored Allman's use of the device, informed Allman that he was not in compliance with Walmart's sleep-apnea program and warned Allman that he would not be allowed to drive unless he wore the CPAP machine. Allman was thereafter suspended twice for not complying with Walmart's requirement. Each time that Allman was suspended, he was required to wear the CPAP machine for five consecutive nights in order to return to his duties.

In February 2014, Allman independently sought out a second sleep study at Adena Hospital. The results of this sleep study, in contrast to the study by Advanced Home Medical, showed that Allman did not have sleep apnea. After receiving this negative result, Allman stopped wearing the CPAP machine. He also informed his supervisor, Coburn, that he no longer needed to use the device.

In response, Walmart manager Judge instructed Allman to undergo another DOT medical examination in order to be recertified to drive. Allman returned to physician assistant Burton for the exam on March 5, 2014. When Allman showed Burton the results of the Adena Hospital sleep study, Burton issued Allman a new DOT certification card without conducting an independent examination.

Despite Allman's DOT recertification, Walmart Operations Safety Manager James Murphy instructed Allman to participate in a third sleep study. According to Allman, Murphy explained that the doctor who had performed Allman's sleep study at Adena Hospital was not board certified, and he requested that Allman undergo another sleep study arranged by SleepSafe. (Allman disputes Murphy's assertion that the doctor was not board certified, but he provided no evidence that the doctor was listed on the National Registry of Certified Medical Examiners.) Allman subsequently underwent a third sleep study at Mid Ohio Sleep Center on March 7, 2014, resulting in a second diagnosis of sleep apnea. A SleepSafe representative then instructed Allman to wear the CPAP machine for eight hours a night, seven days a week, and both Murphy and Knight informed Allman that he would need to wear the machine for three consecutive nights in order to return to work.

But Allman still refused to wear the CPAP machine. Coburn then requested that Allman take the conflicting sleep studies to a second DOT medical examiner, who would evaluate the reports. Allman was given seven days to do so. Rather than comply with the request, Allman instead resigned from his employment with Walmart.

B.

Procedural background

Allman filed suit against Walmart in the United States District Court for the Southern District of Ohio. His claims are all premised on alleged violations of Ohio state law, with jurisdiction based on diversity of citizenship. Allman asserted claims for (1) discrimination based on perceived or claimed disability, in violation of Ohio Revised Code Annotated §§ 4112.02(A) and 4112.99; (2) retaliation, in violation of Ohio Revised Code Annotated § 4112.02(I); and (3) wrongful termination, in violation of Ohio's public policy requiring safe workplaces. As the case progressed, Allman voluntarily dismissed his discrimination claim. The district court subsequently granted summary judgment in favor of Walmart on the retaliation claim, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and it dismissed the wrongful-termination claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II.

ANALYSIS

A. Standard of review

We review the district court's grant of summary judgment de novo. Keith v. County of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Likewise, "[w]e review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6)." First Am. Title Co. v. Devaugh, 480 F.3d 438, 443 (6th Cir. 2007). Rule 12(b)(6) provides that a complaint may be dismissed for "fail[ing] to state a claim upon which relief can be granted." We construe the complaint in the light most favorable to the plaintiff and determine whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

B. Disability-retaliation claim

Allman contends that Walmart retaliated against him because of his complaints about having to wear the CPAP machine, in alleged violation of Ohio Revised Code Annotated § 4112.02(I). He argues that, although Walmart did not actually terminate him from his position, Walmart told him that he would be fired if he did not wear the device. Allman thus argues that the CPAP requirement resulted in his constructive discharge. He further contends that Walmart was not acting out of an interest to protect the public on...

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