Daugherty v. Sajar Plastics, Inc.

• Decision Date: 16 October 2008
• Docket Number: No. 06-4608.,06-4608.
• Parties: James DAUGHERTY, Plaintiff-Appellant, v. SAJAR PLASTICS, INC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

544 F.3d 696

James DAUGHERTY, Plaintiff-Appellant, v. SAJAR PLASTICS, INC, Defendant-Appellee.

No. 06-4608.

United States Court of Appeals, Sixth Circuit.

Argued: September 17, 2007.

Decided and Filed: October 16, 2008.

ARGUED: Richard N. Selby II, Dworken & Bernstein, Painesville, Ohio, for Appellant. Christine T. Cossler, Walter & Haverfield, Cleveland, Ohio, for Appellee. ON BRIEF: Richard N. Selby II, Dworken & Bernstein, Painesville, Ohio, for Appellant. Christine T. Cossler, Eric J. Johnson, Walter & Haverfield, Cleveland, Ohio, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Plaintiff James Daugherty appeals from the district court's order granting summary judgment in favor of his former employer, defendant Sajar Plastics, Inc., on his claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (2000), the Ohio Civil Rights Act ("OCRA"), OHIO REV.CODE § 4112.02, and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. For the reasons stated below, we affirm in part and reverse in part.

I.

In July 1999, James Daugherty began working for Sajar Plastics, Inc. ("Sajar") as a maintenance technician. Sajar manufactures plastic injection molding components for use in the medical and banking industries. According to the job description issued by Sajar, the general function of the maintenance technician position is to "maintain buildings and equipment in satisfactory condition and make repair[s] as necessary." The maintenance technician "performs [a] variety of crafts — electrical, hydraulics, pneumatics, welding, pipe fitting, troubleshoots and repairs all plant equipment, performs repairs on manufacturing facilities and office areas including: plumbing, light fixtures, electrical, mechanical, etc." In addition to the use of hand and power tools, the position requires the operation of dangerous machinery such as bandsaws, milling machines, power tools, forklift trucks, welders, drill presses, and overhead cranes. The physical demands of the job require "medium to heavy strength level," "frequent standing and walking, 9-10 hours a day, 2-3 hours at a time," and "frequent stooping, bending and kneeling, and climbing, occasional work in confined, tight or awkward spaces."

Daugherty experienced a back injury sometime in the 1980's that quieted but then flared up again in 2000 and 2001, while he was working at Sajar. Daugherty's physician, Dr. Peter Franklin, prescribed increasing doses of Oxycontin and Duragesic. When Daugherty first began to take the medication, he experienced disorientation and dizziness. He received a three-month reprieve from dangerous electrical work, during which time he developed a tolerance for the medication and no longer experienced these side effects. While at Sajar, Daugherty suffered from unpredictable episodes of increased back pain that temporarily rendered him unable to perform his job duties. He requested and always was granted intermittent FMLA leave, ranging from approximately two days to two weeks.

Daugherty alleges that his supervisors at Sajar expressed frustration about his intermittent leave time and unexpected absences related to his back problem. According to Daugherty, Human Resources Director Ronald Alexander purportedly told him in October 2003 that he faced the choice of either taking disability retirement or losing his job.

In November 2003, Daugherty requested and received an FMLA leave of more significant duration: one to two months. Contemporaneously with his leave request, Daugherty presented Sajar with a note from Dr. Franklin indicating that he would be able to return to work approximately two months later, on January 5, 2004. Daugherty alleges, however, that before taking his leave, Alexander warned him that "if I took that FMLA for that period of time, there would not be a job waiting for me, when I returned." Alexander disputes this claim.

Shortly after Daugherty took this FMLA leave, Sajar experienced a layoff. Along with positions in other departments Sajar needed to lay off one maintenance worker. Daugherty had the least seniority of the maintenance technicians, but because he was on FMLA leave, he was not laid off immediately. At the end of December 2003, however, Human Resources Manager Ranae Cozzone notified Daugherty that he would be placed on layoff status effective January 5, 2004, the day he was scheduled to return from leave. He was informed by management that he had been selected for layoff because he was lowest in seniority. Daugherty neither disputes that the layoff was legitimate nor that he was the least senior maintenance technician.

In February 2004, Sajar experienced an upturn in business and thus needed to hire another maintenance technician as soon as possible because of the increased workload. Alexander directed Cozzone to recall Daugherty. Alexander made Daugherty's return to work contingent upon a physical examination by Dr. Richard Altemus, a physician used by Sajar on a routine referral basis to perform drug screenings and pre-employment and post-accident examinations.¹ On February 17, 2004, Dr. Altemus examined plaintiff and, in a letter to Cozzone written on that same day, he opined:

In summary, Mr. Daugherty appeared fit with no apparent problems pertinent to his joints or back. He had no problems with the rigors of the physical examination. However, there were current medication patches affixed to his back and several residual stains of previous patches. The patient was forthcoming with his admission of daily Oxycontin oral medication and daily Duragesic (Fentanyl) transdermal medications. Both of these medications are Class II narcotics.

In my opinion, Mr. Daugherty would be able to successfully complete the duties commensurate with the job description provided me. But, because of the significant medication taken on a daily basis (both in type and strength), I do not feel comfortable in approving this man's reemployment at this time. The analgesics may mask the symptoms of a reinjury thus exacerbating his current disease or, more importantly, the amount of medication may cause an impairment of perception or judgment which might lead to an injury to himself or others.

In his deposition, Dr. Altemus further explained that he based his recommendation on the potential side effects of Daugherty's medications, his physical impairment, and Sajar's zero-drug policy applicable to narcotics as well as illegal drugs. Dr. Altemus testified that he ascertained the risks posed by Daugherty's medications by considering dosage levels, documentation in the Physicians' Desk Reference ("PDR"), the possible interaction between the Oxycontin and Duragesic patches, and Daugherty's job description. According to Dr. Altemus, based upon Daugherty's dosage levels, the PDR cautioned that either narcotic could impair his ability to operate heavy machinery, and further stated that individuals who combine Oxycontin and other narcotics could experience other dangerous side effects, such as profound sedation or coma. Dr. Altemus also opined that when Oxycontin is taken with other opiates, the individual may demonstrate syncope or a sudden loss of blood pressure and "you drop." Considering these factors, Dr. Altemus concluded that plaintiff was physically unable to perform those duties consistent with his job description because of "excessive medication" that "may mask symptoms and may impair judgment."

Alexander and Cozzone decided that Daugherty's medications placed Sajar at risk of liability for injury to Daugherty or his coworkers. Cozzone nonetheless called Daugherty and advised him that if he could provide documentation regarding a reduction in his medications, the company "would take a look at it." Approximately two weeks later, Daugherty supplied Sajar with a brief note from Dr. Franklin stating, "TO WHOM IT MAY CONCERN Mr. Daugherty is stable on long term opoid [sic] management for chronic pain and is able to do the same work he has been doing on this medication in recent years." The note neither addressed the amount of medication Daugherty was taking nor indicated that the dosage had been reduced.

On March 18, 2004, Daugherty called Cozzone and informed her that his physician had reduced his medication dosages. When Cozzone asked him to submit written confirmation from Dr. Franklin, Daugherty refrained from doing so upon the advice of his attorney. On March 26, 2004, Cozzone sent a letter to Daugherty advising him that Sajar needed a note from his physician on or before April 2, 2004, confirming the reduction in his medication; otherwise, "we will assume that you have no interest in returning to Sajar Plastics ... and you will not be eligible for any immediate opens [sic] that may occur." No such note was forthcoming from plaintiff or his physician. Consequently, in a letter dated April 22, 2004, Alexander informed Daugherty that Sajar had filled a maintenance position, which had opened between April 2 and April 19, with another technician:

As of this date, we still have not seen a note from your Physician. However, on or about April 5, 2004 you called our offices and left a voice mail message with Ranae Cozzone and requested her to call your Doctor direct for the information which we asked you to obtain.

Please understand, this office has requested twice, that you provide us with specific information relating to your medical condition. We are not going to gather this information for you.

As i[t] stands currently, this office has no information which changes your employment status. In fact, you were to supply this office with the above mentioned information on or before April 2, 2004. Here it is April 22, 2004, and you still have not provided anything to support your claim that you are able to return to work. Since our request to you for information from your Doctor, an opening has occurred during the period of April 2,...