Shelton v. City of Cincinnati
| Decision Date | 01 November 2012 |
| Docket Number | Case No. 1:11-cv-381 |
| Parties | ROBERT SHELTON, Plaintiff v. CITY OF CINCINNATI, et al., Defendants |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Plaintiff Robert Shelton brings this action alleging employment discrimination and retaliation against his employer, the City of Cincinnati ("City") and the City's former Fire Chief, Robert Wright ("Wright"). The matter is before the Court on defendant Wright's motion for summary judgment (Doc. 22), plaintiff's opposing memorandum (Doc. 31), and Wright's reply in support of the motion (Doc. 33), and upon the City's motion for summary judgment (Doc. 24), plaintiff's opposing memorandum (Doc. 30), and the City's reply in support of its motion. (Doc. 32).
Plaintiff has been employed by the City as a firefighter since February of 1995. (Pltf. Depo. at 8). Defendant Robert Wright served as Chief of the City's Fire Department until his retirement in January 2011. (Wright Depo. at 6). The last day on which Wright reported to work was on or around November 8, 2010. (Id. at 6-7).
Plaintiff was diagnosed with diabetes prior to beginning his employment with the City. He disclosed his diabetes to the City's Employment Health Service ("EHS") in 1994 during a pre-employment health screening. (Pltf. Depo. at 11).
A Labor-Management Agreement (LMA) in effect between the City and the local union at all relevant times governed the process for returning a firefighter to duty following certain absences. (Doc. 22 at 9, citing LMA at § 28.6).1 Pursuant to the process, the Fire Department can require a member who has missed three or more continuous tours on account of sickness with pay ("SWP") to be evaluated by EHS prior to returning to duty. (Doc. 30-2 at 3). The Fire Department can likewise require a firefighter who has used SWP for a specified condition, including pneumonia, to undergo an EHS exam prior to returning to work. (Id.). EHS makes the determination as to whether an individual can perform the functions of a firefighter. (Ronald Texter2 Depo. at 59). In ascertaining an individual's fitness for duty, the focus is on whether the employee can perform his job safely and without harming himself or others. (Dr. Ariff Mehter, M.D., Depo. at 35). According to Dr. Mehter, the City's full-time EHS physician since July 2004, EHS is limited to requesting whatever medical records are relevant to ascertaining a member's fitness for duty when performing its evaluation. (Mehter Depo. at 6-7, 34).
Section 32.8 of the LMA, "Limited Duty," provides that members "who suffer temporary disabilities from on or off duty injuries may, upon recommendation of the EHS physician, be placed on limited duty." (Doc. 23, Exh. 11). The member may submit for consideration medical records from his personal/treating physician regarding the limited duty determination, and the EHS physician is required to include and consider recommendations submitted by the personal/treating physician regarding the limited duty determination. (Id.). The decision to offermedical limited duty is made by the EHS physician. (Texter Depo. at 51). An individual assigned to light duty is paid his regular pay. (Texter Depo. at 59).
Pursuant to § 28.12 of the LMA, if the EHS physician determines that the member should be medically separated and the member's treating physician disagrees, the City and the member will mutually select a third physician to resolve the disagreement. (Doc. 23, Exh. 11). The third physician's decision "shall be submitted to the Department Head or his designee for consideration in determining whether medical separation is appropriate." (Id.). The third-physician review process set forth in § 28.12 of the LMA was the procedure by which a firefighter could challenge a light-duty assignment. (Texter Depo. at 39-41).
1. February 2004 hypoglycemic episode
Plaintiff had a hypoglycemic episode while working at a two-alarm fire scene in February 2004. (Mehter Depo. Exh. 54). He felt weak and was told he had "mental status changes." (Id.). When examined by Dr. Mehter the following day, the episode was found to be resolved and plaintiff was returned to full duty. (Id.).
2. August 2004 - October 2005 illnesses and hypoglycemic episode
In August of 2004, plaintiff took a leave of absence from work under the Family and Medical Leave Act (FMLA) and SWP for surgery on his uvula and palate. (Mehter Depo. Exh. 67, p. 2; Pltf. Depo. at 19-20). When plaintiff was ready to return to work, he presented a note from his doctor to EHS. (Pltf. Depo. at 20). The EHS records indicate that plaintiff telephoned on December 14, 2004, and stated he was having some problems with his blood sugar and chest pain. (Mehter Depo. Exh. 67, p. 2). Plaintiff reported he had seen his primary care physician and had undergone a stress test, which was normal, and his blood pressure had been elevated butwas now 122/80 after his medication was readjusted. (Id.). Plaintiff stated he wanted to return to work and he had a note from his doctor. (Id.). He was advised he needed to get his records and to sign releases, and he was informed he would probably be put on limited duty until the records were received. (Id.). Plaintiff was placed on limited duty effective December 16, 2004.3 (Doc. 23, Exh. 2).
During early 2005, plaintiff was in contact with EHS on several occasions concerning the release of his medical records. (Mehter Depo. Exh. 67, p. 3). Plaintiff refused to release some of the requested medical records as he did not believe they were pertinent to the fitness-for-duty examination. (Doc. 23, Exhs. 2, 3). On January 19, 2005, plaintiff filed a formal grievance based on EHS's refusal to release him to return to work despite the information provided by his treating physicians. (Doc. 23, Exh. 2; Pltf. Depo. at 13-14).
On April 4, 2005, Texter advised plaintiff that the EHS physician could not make an informed opinion regarding plaintiff's fitness for duty without the full release of plaintiff's medical records pertinent to his absence from work beginning August 19, 2004. (Doc. 23, Exh. 4). Texter asked plaintiff to sign a release for that period and informed plaintiff that his refusal to cooperate made it unreasonable to expect the Fire Department to maintain his limited duty status indefinitely during the conflict with EHS. (Id.). Texter further stated:
Texter advised plaintiff that he could use his accrued leave time while the matter was being resolved; plaintiff would not be offered any duty status until released as "fit for duty" by the City physician; and he would therefore be carried in a leave without pay status after his leave time had been exhausted and until the matter was finally resolved. (Id.). Texter strongly urged plaintiff to reconsider his position on providing the necessary documentation to the City physician so that the matter could be resolved. (Id.). On October 6, 2005, the Fire Department and the local union entered into an agreement that resolved plaintiff's grievance and permitted plaintiff to return to limited duty so long as he provided EHS with all of the requested medical records. (Doc. 23, Exh. 5).
In October of 2005, plaintiff experienced a hypoglycemic event while in his automobile on his way to work. (Mehter Depo. Exh. 61). Plaintiff had skipped breakfast because he was "running late" and intended to eat at work, and he lost consciousness at an intersection. (Id.). He did not have an accident and reported afterwards to his physician, Dr. Kenneth Kreines, M.D., that he since understood the importance of never delaying a meal. (Mehter Depo. Exh. 58). In the wake of that incident, the Fire Department requested that plaintiff be given "a complete physical examination concerning his general health condition as related to his most recent incident of incapacitation, in light of his documented medical history. . . ." (Mehter Depo. Exh. 59). EHS physician Dr. William Kelley, M.D., issued an opinion on November 21, 2005, stating that he had received the office records from plaintiff's attending physician and it was Dr.Kelley's medical opinion that plaintiff (Mehter Depo. Exh. 60). Dr. Kelley opined that plaintiff should be able to commence restricted duty when cleared for it by his attending physician. (Id.).
In response to Dr. Kelley's opinion, plaintiff submitted a letter from his treating physician, Dr. Kreines, dated November 30, 2005. (Mehter Depo. Exh. 58). Dr. Kreines stated that plaintiff had Type II diabetes of approximately 13 years duration for which he was treated with insulin. Dr....
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