Rorrer v. City of Stow & William Kalbaugh

• Decision Date: 26 February 2014
• Docket Number: No. 13–3272.,13–3272.
• Citation: 743 F.3d 1025
• Parties: Anthony RORRER, Plaintiff–Appellant, v. CITY OF STOW and William Kalbaugh, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

743 F.3d 1025

Anthony RORRER, Plaintiff–Appellant,

v.CITY OF STOW and William Kalbaugh, Defendants–Appellees.

No. 13–3272.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 22, 2014.

Decided and Filed: Feb. 26, 2014.

ARGUED:Dennis R. Thompson, Thompson & Bishop Law Offices, Akron, Ohio, for Appellant. Frank Scialdone, Mazanec, Raskin & Ryder, CO., L.P.A., Cleveland, Ohio, for Appellee City of Stow. R. Scot Harvey, Fisher & Phillips LLP, Cleveland, Ohio, for Appellee Kalbaugh.

ON BRIEF:Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop Law Offices, Akron, Ohio, for Appellant. Frank Scialdone, Neil S. Sarkar, Mazanec, Raskin & Ryder, Co., L.P.A., Cleveland, Ohio, for Appellee City of Stow. R. Scot Harvey, Roland J. De Monte, Fisher & Phillips LLP, Cleveland, Ohio, for Appellee Kalbaugh.

Before: CLAY and DONALD, Circuit Judges; MAYS, District Judge. ^*

OPINION

BERNICE B. DONALD, Circuit Judge.

Plaintiff–Appellant Anthony Rorrer appeals the district court's order granting summary judgment on his claims against the City of Stow, Ohio for disability discrimination and impermissible retaliation under the Americans with Disabilities Act (ADA), similar discrimination claims under Ohio law, ¹ and First Amendment retaliation under 42 U.S.C. § 1983. Rorrer also appeals the district court's dismissal of his First Amendment retaliation claim against City of Stow Fire Chief William Kalbaugh and an order limiting the scope of discovery. Additionally, Rorrer seeks to have his case assigned to a different district judge on remand. For the following reasons, we AFFIRM the district court's dismissal of Rorrer's First Amendment retaliation claim against Kalbaugh and grant of summary judgment on Rorrer's First Amendment and ADA retaliation claims against the City of Stow. We REVERSE the district court's grant of summary judgment to the City of Stow on Rorrer's ADA and Ohio discrimination claims and REMAND those claims for trial before a different district judge.

I.

Rorrer actively worked as a firefighter for the City of Stow (“the City” or “Stow”) Fire Department (“Department”) from May of 1999 until July of 2008. On July 4, 2008, Rorrer injured his right eye in a bottle-rocket accident unrelated to his work as a firefighter, losing all vision in his right eye as a result. The City then terminated Rorrer because of his disability, known as monocular vision.

A. Rorrer's Initial Termination

On September 18, 2008, the surgeon who operated on Rorrer's eye, Dr. Singh, cleared Rorrer to return to work without restriction. Rorrer arranged a return-to-work physical with the office of Dr. Moten, the City's official Department physician. On September 25, 2008, Rorrer arrived at Dr. Moten's office for his appointment, but Dr. Moten was not there. Dr. Moten's colleague, Dr. Henderson, examined Rorrer. In 2008, Dr. Henderson would see patients for Dr. Moten approximately one day every other month. According to Dr. Moten, Dr. Henderson has the same training as Dr. Moten and is equally familiar with the regulations governing whether a firefighter is medically qualified to work. After examining Rorrer for approximately 15 minutes, Dr. Henderson told Rorrer he should be able to return to duty without restriction. Dr. Henderson qualified this statement by saying that Rorrer should “just be aware of possible limitations as [Rorrer] adjust[s] to [his] new vision.” In an “Office Note” on Dr. Moten's letterhead, dated September 25, 2008, Dr. Henderson wrote:

I will release [Rorrer] to go back to work. I have cautioned him doing the kind of work he does, especially using a self-contained breathing apparatus and sometimes driving at high speeds due to his work as a paramedic, I have advised him to enter into this work with caution and to be quick to obtain the assistance of his colleagues.

Rorrer called Chief Kalbaugh after his appointment. When Rorrer told Chief Kalbaugh that the doctor released him to work without restrictions, Chief Kalbaugh sounded surprised and stated, “Released? With no restrictions?” Chief Kalbaugh then asked, “Did you see Moten?” Rorrer told Chief Kalbaugh that Dr. Moten was unavailable and that Dr. Henderson had examined him instead. Rorrer intended to return to work on September 28, 2008, his next scheduled work day, but Chief Kalbaugh was “adamant” that Rorrer not return until October 1, 2008, so that “this [could be] sorted out.”

Shortly after ending his telephone call with Rorrer, Chief Kalbaugh called and left a message at Dr. Moten's office, stating that he wanted a copy of the form that cleared for work “the monocular firefighter who was seen by your office earlier today.” Dr. Moten returned Chief Kalbaugh's call later that afternoon and told Chief Kalbaugh that there had been a “mistake,” that Rorrer was “unfit to return to work because he was totally blind in his right eye[,] and that his office would promptly send a revised form to this effect.”

Chief Kalbaugh called Rorrer at 3:02 p.m. the same afternoon and stated that “a terrible mistake had been made” and that Rorrer should call Dr. Moten. Rorrer called Dr. Moten, who told Rorrer that he “was sorry” for the “confusion” but that Rorrer could not return to work because the “fire regs” would not allow it.

B. The Department's Guidelines and the Essential Functions of a Firefighter

The parties dispute which guidelines the Department used for determining a firefighter's qualifications and the position's essential functions. Chief Kalbaugh testified that the City terminated Rorrer because his monocular vision prevented him from performing an essential function of the firefighter position, National Fire Protection Association (“NFPA”) guideline 1582–9.1.3(10): “Operating fire apparatus or other vehicles in an emergency mode with emergency lights and sirens” (“Job Task 10”). The NFPA guidelines list Job Task 10 under the heading, “Essential Job Tasks.” NFPA guideline 1582–9.12.3.1 states that monocular vision “compromises the [firefighter's] ability to safely perform essential [J]ob [T]ask 10.” Chief Kalbaugh further testified, “Stow has always used and relied on the [NFPA] guidelines as a standard for Stow's firefighters.” Rorrer disputes that the Department ever “adopted” the NFPA guidelines and claims that the City's reference to the NFPA here is mere pretext.

On March 1, 2010, Ryan Lemmerbrock, an attorney for the firefighters' union, sent a letter to Brian Reali, the Stow Law Director, questioning the appropriateness of applying the NFPA guidelines to Rorrer's situation. Quoting implementation provisions of the NFPA to which the City had not adhered, Lemmerbrock stated that “to the Union's knowledge, the City or the [Stow Civil Service Commission] has never adopted the NFPA standards. Section 1.3 of the NFPA standards” requires that fire departments adopt a “phase-in schedule for compliance with specific requirements, if needed.” Lemmerbrock continued quoting the NFPA, stating that “[t]he fire department shall incorporate the comprehensive occupational medical program's risk management pla[n] as required by NFPA 1500.” Lemmerbrock concluded:

Again, to the Union's knowledge, none of the above requirements have been met in order to apply any of the NFPA standards to the Stow Fire Department. Furthermore, application of the NFPA standard to the bargaining unit member is a mandatory subject of bargaining, and application of the NFPA standards has never been bargained with the Union.

In his deposition, Mark Hodson, president of the Stow firefighters' union, testified that he did not believe the City had ever adopted the NFPA. Aaron Packard, a Lieutenant in the Department, likewise stated in a sworn declaration that the City had never adopted NFPA 1582 and added that firefighters were not required to take annual physicals as mandated by those guidelines.

Dr. Moten, as the Department's official physician, was obliged to apply the Department's medical guidelines to firefighters. In a telephone call with Dr. Moten, Rorrer asked Dr. Moten several times what “fire regs” Dr. Moten was referring to when he stated that the regulations would not allow Rorrer to return to work. Dr. Moten told Rorrer that he had found “literature on line [sic]” the night before that formed the basis of his decision, but Dr. Moten never mentioned the NFPA guidelines by name.

When deposed by Rorrer's counsel, Dr. Moten had similar difficulty identifying what “fire regs” governed his opinion on Rorrer's fitness to work. Rorrer's counsel asked Dr. Moten what standards he was obligated to follow when evaluating a firefighter's fitness to work, and Dr. Moten responded, “the department regulations.” Rorrer's counsel pressed Dr. Moten on the issue:

Question: Which department regs?

Dr. Moten: The Fire's.

Question: For the City of Stow?

Dr. Moten: Yes.

Question: Any other regs?

Dr. Moten: The Fire regs.

Question: Well that can be anything. What do you mean, Fire regs? Be specific. I want to know exactly what you're talking about.

Dr. Moten: Let me look.

At that point, counsel for the City intervened and asked to “go off the record a second.” When the deposition restarted, Dr. Moten stated, “The NFPA.” Rorrer's counsel then asked Dr. Moten if he knew what “NFPA stands for,” and Dr. Moten stated that he did not. Dr. Moten went on to say Chief Kalbaugh gave him the NFPA standards in 2003 around the time that Dr. Moten became the Department's official physician.

Rorrer's counsel proceeded to question Dr. Moten on what portions of the NFPA he had reviewed. Dr. Moten responded, “I read the medical context of them. And that's the part that usually applies to the work I do.” Rorrer's counsel then asked Dr. Moten what “medical context” meant, and he responded, “That's the exam portion, the requirements of the physicals.” Before Dr. Moten could answer the next question, counsel for the City intervened again, asking, “[B]efore we do this line of inquiry, can we go off the record a second...