Woodruff v. Ohio Dep't of Transp.

KENNY WOODRUFF, Plaintiff, v. OHIO DEPARTMENT OF TRANSPORTATION, Defendant.

Case No. 1:18-cv-853

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 9, 2021

Cole, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff Kenny Woodruff brings this action against defendant Ohio Department of Transportation (ODOT) alleging claims of disability discrimination and failure to provide a reasonable accommodation under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Rehabilitation Act). This matter is before the Court on ODOT's motion for summary judgment on all of plaintiff's claims (Doc. 61) and plaintiff's motion for partial summary judgment on his failure to provide a reasonable accommodation claim (Doc. 66). The parties have filed responses and replies thereto. (Docs. 69, 71-73). For the following reasons, the Court recommends that defendant's motion be granted in part and denied in part and that plaintiff's motion be denied.

I. Background

The following facts are undisputed except where noted. Plaintiff was employed as a highway technician (HT) for ODOT. HTs perform highway maintenance and construction inspection duties, as well as services related to snow, ice, and flooding. All HTs are required to obtain and maintain a Commercial Driver's License (CDL), which is necessary to many of the position's functions, such as operating dump trucks and construction trailers. ODOT hired plaintiff in 2009 and ultimately promoted him to the level of HT3 in April 2017. At District 9, plaintiff reported to one of two Transportation Managers, who in turn reported to County Manager/Transportation Administrator Craig Stout. The primary events giving rise to this action occurred after plaintiff's promotion and transfer to the District 9 garage.

A. Federal regulation related to HTs

The HT position is subject to U.S. Department of Transportation drug testing regulations (49 C.F.R. § 40.1 et seq.) and Federal Motor Carrier Safety Administration regulations (49 C.F.R. § 382 et seq.). (See also ODOT correspondence, Doc. 61-6 at PAGEID 1628). Commercial motor vehicle operators are subject to drug testing:

In the interest of commercial motor vehicle safety, the Secretary of Transportation shall prescribe regulations that establish a program requiring motor carriers to conduct preemployment, reasonable suspicion, random, and post-accident testing of operators of commercial motor vehicles for the use of a controlled substance in violation of law or a United States Government regulation. . . .

49 U.S.C. § 31306(b)(1)(A). "Controlled substance" in this section is defined by reference to the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 802(6)), and 21 C.F.R. § 1308.12(b)(1) identifies Oxycodone and Oxymorphone as Schedule II controlled substances. Effective January 1, 2018, the U.S. Department of Transportation revised its rules to add opioids to the panel of drugs subject to testing. 49 C.F.R. § 40.85(d). Federal regulations also state:

No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non-Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver's medical history and has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle.

49 C.F.R. § 382.213(b). "Safety-sensitive functions" are further defined to include "[a]ll time spent at the driving controls of a commercial motor vehicle in operation" as well as time relatedto inspecting, servicing, condition, repairing, or obtaining assistance related to a commercial motor vehicle. Id. at § 382.107.

ODOT employee drug test results are forwarded from the testing lab to a Medical Review Officer (MRO), a physician certified to review drug test results. Upon the presentation of a valid prescription, the MRO will issue a negative test result (i.e., negative for illegal drug use); however, if use of the substance creates a safety concern, the MRO is to note the safety risk if the employee is unwilling to either discontinue or change his prescription. See 49 C.F.R. § 40.135(e).¹

B. Plaintiff's drug testing and medical review

Plaintiff was involved in a motorcycle accident in August 2014. He suffered a shoulder injury, which is the disability alleged in this action. (See Doc. 1 at PAGEID 2). Plaintiff's pain management physician prescribed Percocet, a synthetic opioid, to manage his resulting shoulder pain. In September 2017, plaintiff tested positive for cocaine on a random drug test. The next month, plaintiff entered into a "Drug Free Workplace Last Chance Agreement," wherein he agreed to follow-up drug testing.

On April 5, 2018, plaintiff was subjected to a random drug test, which was positive for Oxycodone/Oxymorphone. Plaintiff presented Dr. Brian Heinen, his MRO, with a validprescription for the opioid but would not agree to discontinue or change his prescription medication. Dr. Heinen therefore labeled plaintiff "negative" for illegal drug use but also a "safety risk." Upon learning this on April 11, 2018, County Manager Stout immediately picked up plaintiff from his work site and drove him back to the District 9 garage. ODOT provided plaintiff with a letter to give to his physician, which explained that ODOT was "require[d] . . . to ensure [plaintiff] is fit for duty and able to perform the safety sensitive duties of his position without risk of injury/accident to himself or others in the performance of these duties" given his prescription medication and dosage. (Doc. 44-1 at PAGEID 482). The letter further explained that plaintiff would not be permitted to perform any safety sensitive duties without a confirming "medical opinion that Mr. Woodruff would not be a threat to himself or others in the performance of these duties or the operation of this equipment as a result of the medication and dosage." (Id.).

With review of plaintiff's prescription underway, plaintiff asked ODOT Labor Relations Officer Janet Page to be brought back to work "do[ing] something that is not safety sensitive. . . ." (Doc. 61-6 at PAGEID 1627) (email from Ms. Page summarizing her May 10, 2018 conversation with plaintiff). Plaintiff also testified that he requested of County Manager Stout and Ms. Page that his work be limited to inspection, garage/shop duties, or computer work that would not raise safety concerns. (See Pl.'s Dep., Doc. 44 at PAGEID 207, 209, 276-77).

Plaintiff had been under the care of a pain management clinic, including certified nurse practitioner (CNP) Sarah Brown. CNP Brown provided a letter in response to ODOT's request. In pertinent part, it stated:

[Plaintiff] denies any impairment in cognition with the medication and he has signed a contract with us agreeing not to drive or operate heavy machinery under the influence of his pain medication. [Plaintiff] is ok to return to work without restrictions as long as he continues to deny any impairment in cognition with hispain medication, and as long as his employer is aware of his current medications and in agreement for patient to continue his current job responsibilities on his current regime.

(Doc. 44-1 at PAGEID 486).

ODOT determined that this letter did not satisfy the requirement in 49 C.F.R. § 382.213(b) (confirmation from a licensed medical practitioner that plaintiff's medication would "not adversely affect [plaintiff's] ability to safely operate a commercial motor vehicle") and notified plaintiff accordingly. Plaintiff did not obtain another note from his pain management clinic or other licensed medical practitioner.

Having failed to alleviate ODOT's safety concerns, effective May 14, 2018, ODOT placed plaintiff on administrative leave and directed him to submit to an independent medical examination (IME) consistent with Ohio Admin. Code § 123:1-30-03. (Doc. 44-1 at PAGEID 490). In anticipation of the IME, ODOT sent the examining physician, Dr. Seth Vogelstein, a letter outlining its specific objectives:

1. Is there credible, medical evidence to support [plaintiff's] inability to safely perform the duties of his position while continuing his current regimen of medication; and 2. Can you specifically state that the Percocet medication [plaintiff] is prescribed will not adversely affect his ability to safely operate a Commercial Motor Vehicle in accordance with CFR Part 382.213?

(Doc. 61-1 at PAGEID 1629). On July 17, 2018, Dr. Vogelstein examined plaintiff. In response to these questions, he stated:

It is my medical opinion that there is credible medical evidence to support [plaintiff's] inability to safely perform his work duties if he does in fact continue his current pain medication regimen.

While [plaintiff] did sign a narcotic contract with his pain physician, there is never a guarantee that he will always take his medications as prescribed. Any alterations in this regard, would result in significant mood alteration or impairment that would interfere with his ability to perform his work duties, especially those that are safety sensitive. In my medical opinion, an alternativepain management regimen is necessary and indicated in this case, if [plaintiff] wishes to continue to perform his current work duties.

. . .

For the same reason as discussed above, I cannot state with any reasonable degree of medical probability, that [plaintiff] will not be adversely affected in regard to safely operating motor vehicle, if he continues his current medication management, in the form of Percocet. In this regard, I do agree with the MRO, who originally evaluated this case. It is my medical opinion that it is appropriate for there to be safety concerns in this situation, if [plaintiff] continues his current pain regimen, including oxycodone/Percocet.

(Doc. 61-6 at PAGEID 1603).

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