Ferguson v. Univ. Hosp. Health Sys., Inc.

[Cite as Ferguson v. Univ. Hosp. Health Sys., Inc., 2022-Ohio-3133.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
RICHARD FERGUSON, :
Plaintiff-Appellant, :
No. 111137
v. :
UNIVERSITY HOSPITALS :
HEALTH SYSTEM, INC.,
:
Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 8, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-933188
Appearances:
Nilges Draher LLC and Christopher J. Lalak; Max W.
Thomas, LLC and Max W. Thomas, for appellant.
Perez & Morris LLC, Kerin Lyn Kaminski and Karen L.
Giffen, for appellee.
EILEEN A. GALLAGHER, J.:
Plaintiff-appellant Richard Ferguson appeals an order of the Cuyahoga
County Court of Common Pleas granting summary judgment on his claims in favor
of defendant-appellee University Hospitals Health System, Inc., d.b.a. University
Hospitals Portage Medical Center.1
The trial court did not commit reversible error when it failed to set forth
detailed reasoning for its decision, and University Hospitals was entitled to
summary judgment. We therefore affirm.
I. Factual and Procedural Background
Based on the record before us,2 the material facts of this case are not in
genuine dispute.
We refer to University Hospitals Health System, Inc. as “University Hospitals” or
1
“UH.” When referring specifically to UH’s Portage Medical Center facility, formerly
known as Robinson Memorial Hospital, we use that specific entity’s former name —
“Robinson” — for clarity.
2 Ferguson’s brief in opposition to the motion for summary judgment in the trial
court refers to an “Exhibit A” to the brief, which the brief describes as an affidavit by
Ferguson. The exhibits to Ferguson’s opposition brief include documents labeled as
exhibits to such an affidavit. University Hospitals’ reply brief in the trial court also briefly
refers to such an affidavit. But it does not appear that any affidavit by Ferguson was ever
filed in the trial court, either on the public docket or under seal, and no such affidavit is
contained in the record on appeal. Ferguson filed the affidavit’s exhibits, and he filed an
Exhibit B to the brief in opposition; but based on the appellate record he does not seem
to have filed an “Exhibit A” — the affidavit itself. It is the appellant’s duty to ensure the
completeness of the record on appeal. E.g., O’Donnell v. Northeast Ohio Neighborhood
Health Servs., 8th Dist. Cuyahoga No. 198541, 2020-Ohio-1609, ¶ 75, fn. 6 (“The
appellant has a duty to ensure that the record relating to his or her assignments of error
is complete.”); Pietrangelo v. Hudson, 2019-Ohio-1988, 136 N.E.3d 867, ¶ 22 (8th Dist.)
(“It is the appellant’s duty to ensure that this court is provided with all of the information
needed to decide an assignment of error.”) Accordingly, we must presume that any such
affidavit was not filed, and the trial court did not consider any such affidavit. We make
our decision in this matter based on a thorough review of the Civ.R. 56(C) materials in
the record; those materials do not include an affidavit from Ferguson.
A. Ferguson worked for Robinson Memorial Hospital, which
merged with University Hospitals
Richard Ferguson worked as a registered nurse at Robinson Memorial
Hospital (“Robinson”) in Ravenna, Ohio, for over twenty years. He was competent
at his job, well-liked by his colleagues and his supervisors gave him good
performance reviews. In late 2015, Ferguson was working eight-hour shifts as a
“floater” staff nurse on the floor of the hospital’s Medical-Surgical department. He
“floated” between the Medical-Surgical department’s two floors based on any given
day’s patient complexity and staffing levels.
The job description for a staff nurse in the Medical-Surgical department
lists education, licensure and experience requirements. In addition, the description
identifies that a staff nurse’s major responsibilities include, among other things,
“adhere[nce] to organizational policy and procedure.” The job description does not
specifically identify the hours or shifts a staff nurse must work. A previous version
of the job description, attached to Ferguson’s brief in opposition in the trial court,
identified that this responsibility includes, among other things, “adhere[nce] to the
attendance policy” and “adhere[nce] to scheduled work hours as per department
and hospital policy and procedures.”
University Hospitals acquired Robinson in 2015 and assumed
management of the facility. Robinson’s vice president of human resources testified
that the merger with University Hospitals “was a long, involved process” of changing
to UH’s policies, procedures and systems. He described the transition as a “very,
very challenging time.” Ferguson described that there was a lot going on during the
transition, there was some confusion and Robinson’s employees and managers had
to learn “a protocol and a procedure for every little thing.” Among other changes,
University Hospitals converted Robinson to a new definition of full-time
employment and changed the facility’s nurse-staffing model.
Prior to the merger, Robinson Memorial Hospital defined full-time
employment to include those employees hired to work 32 to 40 hours per week, and
Robinson’s Medical-Surgical department operated on an eight-hour-shift model for
nurse staffing. University Hospitals, on the other hand, required employees to work
at least 35 hours per week to be considered full-time and generally used a 12-hour-
shift model for nurse staffing at its hospitals.
In late 2015, University Hospitals announced that Robinson would be
adopting UH’s definition of full-time status effective January 1, 2016. To accomplish
this change, UH communicated that Robinson’s various departments would
immediately reevaluate staffing models to incorporate more positions working at
least 35 hours per week. UH also announced that current Robinson employees hired
to work between 32 and 34 hours per week would be “grandfathered” and retain full-
time status — with the accompanying benefits of a full-time position — until
December 31, 2016. An employee would no longer be “grandfathered” if the
employee began working more than 35 hours per week or less than 32 hours per
week.
In addition to this change, which affected all Robinson employees,
Robinson converted to UH’s 12-hour-staffing model for nurses. In late 2015, the
Medical-Surgical department announced that it would require all its nurses to work
12-hour shifts because of the merger. Most registered nurses would be working all
12-hour shifts immediately after the effective date of the transition and all weekend
shifts would be 12 hours. The department communicated that there may be a limited
number of “combo” shifts available, where nurses would work some eight-hour
shifts on weekdays (Monday through Friday) and 12-hour shifts on weekends
(Saturday and Sunday). The department intended this “combo” shift to be
temporary, either phased out through attrition or when the department was ready
to switch those positions to 12-hour shifts. As nurses working the “combo” shift
vacated those positions for one reason or another, the department would eliminate
those positions. The department ultimately phased out these “combo” shifts by the
end of 2016.
After the effective date of the transition — January 1, 2016 — the
Medical-Surgical department did not permit any nurse to continue working all
eight-hour shifts.3 In fact, a nurse manager in the department averred that she was
not aware of any nursing unit at Robinson that retained an all-eight-hour shift after
the transition.
3 Ferguson heard that one nurse remained on an all-eight-hour-shift schedule after
the transition, but he could not provide details about that alleged situation, and he
testified that “[u]nfortunately it could be gossip.” Robinson’s nurse managers in the
Medical-Surgical department averred that no nurses in the department continued to work
all eight-hour shifts, testimony that is consistent with UH’s communications about the
change and other documentary evidence in the record. Ferguson points to no evidence in
the record that would demonstrate a genuine dispute as to whether any nurses in the
department worked all eight-hour shifts after the transition.
B. Ferguson requested an accommodation to work all eight-hour
shifts and his doctor confirmed that he could not work longer
than eight hours without experiencing pain and fatigue
In late November or early December 2015, after receiving notice of the
change to 12-hour shifts, Ferguson made a request to Neil Everett — Robinson’s vice
president of human resources — that University Hospitals permit him to continue
working all eight-hour shifts. Ferguson felt that 12-hour shifts would be too long for
him because he has a clubbed foot, and if he works longer than eight hours, he gets
what he described as a “sciatic-type” pain in his leg and has difficulty ambulating.4
Everett conferred with nursing supervisors at Robinson about
Ferguson’s request. The nursing supervisors confirmed that all the nursing
positions in the Medical-Surgical department required 12-hour shifts.
Ferguson began working all 12-hour shifts after January 1, 2016.
Everett informed Ferguson by email on January 5 that all department
nursing positions involved 12-hour shifts. He told Ferguson that Ferguson could
submit a formal Americans with Disabilities Act (“ADA”) request for an
accommodation. Everett attached a letter describing what UH needed to evaluate
the request. Among other things, Ferguson needed to complete a form to “allow us
to engage in an interactive process and to discuss your disability and/or medical
condition with you” and have a health-care provider complete a certification form
4 There is a dispute about whether Ferguson initially requested to remain on eight-
hour shifts as a medical accommodation. Everett testified that Ferguson initially
requested eight-hour shifts for nonmedical reasons, including pet-care responsibilities.
At the summary-judgment stage, we resolve that dispute in Ferguson’s favor.
“and describe how your medical condition affects your ability to perform the
essential functions of your position.”
Ferguson understood from his conversations with Everett that, if he
completed all the paperwork, “it shouldn’t be a problem” to move Ferguson back to
an all-eight-hour-shift schedule because he had “been a good employee and worked
there for 22 years.”
Ferguson completed the paperwork around January 14, 2016.
Specifically, he completed a request-for-reasonable-accommodation form stating
that “working 12 hours is just too long of a day for me standing.” Ferguson requested
to “work 8 hours instead of 12 hours,” and he stated that the need for an
accommodation would be permanent. Ferguson also executed an authorization for
his treating physician — Dr. Edward F. Jastrzemski — to provide “any necessary
medical information” to University Hospitals “in order that it may evaluate my
request for a reasonable accommodation * * *.”
Dr. Jastrzemski signed a provider-certification form around January
18, describing that “walking/standing for extended periods of time create
ambulatory difficulty” for Ferguson. He indicated his opinion that Ferguson’s
disability affects Ferguson’s ability to perform any one of the essential functions of
his job, and specifically described that “walking or standing for more than 8 hrs a
day can cause discomfort when ambulating.” Dr. Jastrzemski indicated that there
was an accommodation that would allow Ferguson to perform the essential
functions of the job: “limit work day to 8 hours.”
C. UUH considered the request, concluded that it could not
accommodate all eight-hour shifts and offered Ferguson a
“combo” shift
After receiving Ferguson’s formal request for accommodation,
University Hospitals again investigated whether the Medical-Surgical department
could reasonably accommodate an all-eight-hour-shift schedule for Ferguson.
Specifically, Everett worked with the Medical-Surgical department leadership to see
if the department could accommodate having Ferguson work all eight-hour shifts.
The department determined that it could not accommodate an all-eight-hour shift
in its staffing model.
Chassidy Jones, a nurse manager in the Medical-Surgical department,
averred as follows about the challenges of accommodating Ferguson’s request:
Scheduling eight-hour shifts on a 12-hour staffing model is disruptive
to staffing and continuity of care to patients. When the eight-hour shift
nurse leaves for the day, another nurse must cover the shift for the
remaining four hours. If there is no available nurse, the nurse-to-
patient ratio increases and patient care suffers.
Sherry Sommers, another nurse manager in the department,
similarly averred that “Medical-Surgical could not accommodate all eight-hour
shifts, and patient care would have suffered if it had.” Everett testified as to his
understanding from the Medical-Surgical department leadership of the challenges
of accommodating Ferguson the way Ferguson requested:
Once you move to that model, it’s, from a nursing perspective, it’s really
critical that we have all the handoffs report at the end of the shift to the
next shift. You can’t have those like during the shift.
That’s communication on the condition of your mother, you know, to
the next nurse that’s taking over care for her. It has to be very
organized. It’s very regimented. You can’t have people coming and
going, nurses who are providing the care coming and going during a
shift.
Ferguson agreed that, if he were to work eight hours in a 12-hour
staffing model, another nurse on the floor would likely have to pick up his patients
when he left at the end of his shift. Ferguson testified that he does not know of any
nurses that work four-hour shifts. He testified that normally he had no more than
five patients per shift, and he continued as follows:
Q: So [the other nurses on the floor] would have a full complement of
patients and then have to pick up one of yours for four hours, correct,
one or two of yours?
FERGUSON: Correct.
Q: How many nurses usually worked on the floor?
FERGUSON: It depends on acuity how many, what the census is like.
Anywhere, I would think, from three to five.
Q: So if it happens to be a day when there [are] three nurses working
and you leave, the other two would have to pick up three or two
patients, right?
FERGUSON: Right.
Q: In addition to the patients they already have, correct —
FERGUSON: Correct.
Q: — for four hours? Then if there [are] five, each person would have
to pick up one patient, right, for four hours?
FERGUSON: Right.
Ferguson testified that in over 22 years as a nurse, there were only
three or four times where, during one of his eight-hour shifts, he was called upon to
fill in for someone else for just two or three hours.
In addition to being told that the department could not accommodate
all eight-hour shifts for Ferguson, during his conversations with nursing
supervisors, Everett was told that the Medical-Surgical department already
informally accommodated Ferguson in two ways. Ferguson disputes both claims to
some extent.
First, Everett was told that the department did not schedule Ferguson
on two consecutive days between Monday and Friday. Ferguson admits that “quite
some time” before the merger he had told his department that he preferred not to
work three consecutive days — not two — and his department had accommodated
that request. The department continued to avoid scheduling Ferguson for three
consecutive days after the switch to 12-hour shifts.
Second, Everett was told that Ferguson’s coworkers administered IVs
to Ferguson’s patients and helped him with his workload. Ferguson admits that he
“wasn’t the best IV starter,” but says that he “hung all my own IVs.” Ferguson denies
that anyone helped manage his workload.
Everett met with Ferguson on February 5, 2016 and explained that he
had met with the leadership in the Medical-Surgical department. He explained that
the department leadership had determined that they could not reasonably
accommodate an all-eight-hour-shift schedule for Ferguson. Everett discussed with
Ferguson that Ferguson could bid on other nursing vacancies at University
Hospitals — at Robinson and throughout UH’s other facilities.5 Ferguson told
Everett that he preferred to remain at Robinson; he did not want to commute to
another UH entity. Everett informed Ferguson that the Medical-Surgical
department had four “combo” shift schedules, comprised of eight-hour shifts during
the week and 12-hour shifts every other weekend. There was a pending vacancy in
one of those positions, and while the department’s plan was to eliminate these
“combo” shifts through attrition (eliminating a position when the position was
vacated for one reason or another), Everett informed Ferguson that a nurse manager
and the director of nursing had offered that Ferguson could take that “combo”
position to better meet Ferguson’s needs. Ferguson initially accepted the “combo”
position, but a few days later he changed his mind and turned down the position.
Ferguson testified that at the time he accepted the position, he had not fully thought
it through.
After this meeting, Everett drafted a letter to Ferguson “to provide an
update on your recent request for accommodation and to request continuing our
discussion on your needs * * *.” Everett went on vacation, and no one sent the draft
letter to Ferguson. The draft letter in the record has a date of March 15. The final
version, which Everett sent to Ferguson on April 8, appears identical to the draft but
for the date. Between Everett’s drafting this letter and his sending it to Ferguson,
5 Ferguson admits that Everett told him he was eligible for and should look for
other positions at Robinson and throughout UH that may meet Ferguson’s physical
restrictions. The extent of Everett’s assistance beyond that, and the number and quality
of available vacancies at the time, are disputed.
Dr. Jastrzemski sent more information to University Hospitals about Ferguson’s
condition.
Specifically, on March 30, Dr. Jastrzemski transmitted a return-to-
work authorization form to University Hospitals. On that form, he stated that
“[patient] has clubbed foot, [patient] cannot work more than 8 hrs.” Dr. Jastrzemski
authorized Ferguson to return to work with significant limitations, including that he
must work at least one-half of the shift sitting and could not lift greater than eleven
to twenty pounds. Dr. Jastrzemski wrote that these restrictions are in effect
permanently. Ferguson acknowledged at deposition that, by this form, Dr.
Jastrzemski was certifying to UH that he could only return to work if these
restrictions were met. Ferguson further testified that these restrictions were not
compatible with the job he was doing as a staff nurse:
Q: That certainly doesn’t describe the job you had as a floater, does it?
FERGUSON: As a staff nurse, no.
Q: Because you’re standing and walking more than that, correct?
FERGUSON: Correct.
Q: It says no lifting greater than 11 to 20 pounds, and that again
certainly doesn’t describe your job as, what do you call it, a floor nurse?
FERGUSON: Yes.
Q: So you agree that doesn’t describe what you did. You had to lift
more than the 11 to 20 pounds, right?
FERGUSON: (Indicating.)
Q: Yes?
FERGUSON: Yes.
Q: That there should be no repetitively bending and stooping. I don’t
know, do you repetitively bend and stoop when you’re working as a
floor nurse?
FERGUSON: Yes.
D. University Hospitals placed Ferguson on administrative leave
and referred him for a fitness-for-duty evaluation, continuing
to seek either medical clearance or some accommodation that
would allow Ferguson to work 12-hour shifts
Everett’s April 8, 2016 letter to Ferguson included a summary of the
steps University Hospitals had taken up to that point to consider Ferguson’s request,
including summarizing the two alleged informal accommodations Everett
understood were in place. The letter also said the following:
At this point you have submitted physician documentation stating that
you have restrictions preventing you from working 12-hour shifts and
* * * allowing you to continue to work your schedule could compromise
your health, patient safety or patient care. In order for UH Portage to
allow you to continue to work your current 12-hour schedule, we must
have physician documentation stating you can perform the essential
functions of your Staff Nurse position at your current schedule; with or
without reasonable accommodation. This can be obtained at our cost
by sending you to a fitness-for-duty exam for an objective evaluation of
your current physical status. If you are unable to perform the essential
functions of your job, we may need to place you in medical leave of
absence status. I would like to meet with you at your earliest
convenience to discuss the situation, the fitness for duty exam and
discuss the possibility of finding other reasonable accommodations
that may satisfy your physical restrictions and allow you to continue to
work in your Staff Nurse position.
By this time, Ferguson had been working 12-hour shifts without
incident or complaint for several months. Ferguson acknowledged at deposition
that he understood that University Hospitals was not independently claiming he
could not perform the essential functions of his position, but rather Ferguson’s own
doctor was saying so:
Q: He’s telling you, look, this isn’t really what we’re saying. This is a
result of what your doctor has told us, right?
FERGUSON: Right.
Ferguson never asked Dr. Jastrzemski to change his assessment of
Ferguson’s physical needs. Ferguson never discussed with the doctor whether any
other accommodation would be acceptable other than working all eight-hour shifts.
On April 18, 2016, Everett met with Ferguson and informed Ferguson
in person that University Hospitals received documentation from Dr. Jastrzemski
that necessitated that Ferguson be off work until a fitness-for-duty evaluation could
be completed. Everett informed Ferguson that UH was placing Ferguson on leave
and would pay him pending a determination on his fitness for duty. University
Hospitals pays employees for up to 30 days pending the results of a fitness-for-duty
evaluation.
University Hospitals made a mandatory referral of Ferguson to UH’s
Employee Assistance Program around April 20 for this fitness-for-duty evaluation.
Ferguson understood that the referral arose out of what Dr. Jastrzemski had said
about Ferguson’s medical limitations and UH’s resulting concern about whether
Ferguson was fit for duty as a staff nurse.
Ferguson met with UH’s Employee Assistance manager Jill Fulton on
April 22. All employees referred to Employee Assistance undergo a toxicology
screening, regardless of the reason for the referral. Fulton averred that in this
meeting Ferguson told her that he “had issues walking and standing and could not
work a 12-hour shift.” Her intake notes reflect that Ferguson denied performance
issues at work, denied ever being sent a letter addressing performance issues and
denied being issued corrective action for performance issues. Her intake notes
reflect that UH would, as a next step, send a fitness-for-duty letter to Ferguson’s
doctor to reevaluate the concerns.
The same day, Fulton attempted to call Everett about Ferguson’s claim
that Ferguson had not received certain letters, leaving a voicemail. Fulton expressed
concern in an email that “[i]f the employee did receive these documents, my concern
is either denial or cognitive issues.”
On April 25, Everett followed up on Fulton’s voicemail by email,
informing her that Ferguson was correct; Ferguson had not received the draft letter
due to, among other things, Everett’s vacation. Everett informed her that he had
met with Ferguson, covered everything in the draft letter with him, went over the
new medical information received from Ferguson’s doctor and told him that he
would need a fitness-for-duty exam. Everett assured Fulton “that [Ferguson]
indicated that he understood why we are requiring the exam in our conversation.”
Everett also told Fulton that Jones was supposed to have sent her information about
the “performance concerns.” Fulton responded to Everett five minutes later, asking
whether Ferguson ever received a performance-improvement plan or corrective
action from his manager.
On April 26, UH’s Employee Assistance staff followed up with Dr.
Jastrzemski to ask “for confirmation of the restrictions you initially provided.” UH
also asked the doctor “to comment on Mr. Ferguson’s ability to perform the essential
functions of his job.” UH informed Dr. Jastrzemski in the letter that Ferguson was
“very well-liked,” there were minimal complaints about him, he reported being able
to hang IV fluids and care for his patient load and he had been working 12-hour
shifts. But UH said that Ferguson “needs to be medically cleared prior to returning,”
and if the doctor felt that Ferguson will need to be out of work for medical reasons,
UH would provide a Family and Medical Leave Act (“FMLA”) form and short-term-
disability paperwork.
The same day, Dr. Jastrzemski transmitted an FMLA physician
certification to University Hospitals, repeating that Ferguson “may work up to 8
hours daily” and “has difficulty standing on feet over 8 hrs per day.”6
E. University Hospitals approved Ferguson’s FMLA leave, denied
his short-term-disability request and continued to suggest
potential accommodations
On May 2, Fulton referred the matter back to the human-resources
department and notified Ferguson that his doctor did not change his return-to-work
recommendation.
6It is not clear which of these communications went out first on April 26; that is to
say, whether Dr. Jastrzemski was responding to UH’s letter, or whether UH’s letter was
in response to Dr. Jastrzemski’s FMLA form. If UH’s letter went out after UH received
the FMLA form, there is no evidence that Dr. Jastrzemski responded to the letter.
Ferguson began approved FMLA leave on May 21. The leave ran to
July 30, 2016.7
On May 23, Ferguson’s counsel sent a letter to Everett complaining
about University Hospitals’ approach to considering Ferguson’s request for
accommodation and advocating that University Hospitals return Ferguson to work
“as a full-time RN working four 8-hour shifts per week.”
On June 14, Ferguson signed a short-term-disability-claim form
identifying Dr. Jastrzemski as the “physician who advised you off work.” Ferguson
wrote “involuntary leave r/t fitness for duty” in the margins. He submitted the form
to University Hospitals for consideration.8
By letter dated June 14,9 University Hospitals inquired of Dr.
Jastrzemski as follows:
Can Richard work a 12-hour shift with some form of accommodation,
for example: additional or longer breaks/rest periods, some type of
mobility device or other options that we can consider?
What risk(s) does it pose to Richard if he works 12-hour shifts?
Could he work a combination of 8- and 12-hour shifts?
Are there any other options you could recommend if 12-hour shifts are
the only work shifts available?
7 It is not clear how or whether UH communicated this change in leave status to
Ferguson in May. As discussed below, University Hospitals sent Ferguson a letter in
August 2016 informing him that it had approved his request for FMLA leave from May 21
to July 30, 2016.
8For an unknown reason, “Nursing Oncology” is written in the margin next to the
“Employee Information” section of the form.
9 For an unknown reason, the letter refers to Ferguson seeking an accommodation
for a position in “Nursing Oncology.”
Are there any other possible accommodations that you can suggest that
would allow Richard to work?
Ferguson is copied on the letter. Ferguson and Dr. Jastrzemski never
discussed UH’s suggested accommodations. They never discussed, for example,
whether periodic rest breaks would help Ferguson. They never discussed what the
risks would be if Ferguson continued working 12-hour shifts.
By letter dated June 21, Dr. Jastrzemski responded as follows:
I believe that longer breaks or rest periods will not likely benefit the
employee/patient. He becomes fatigued after weightbearing for 8
hours. I am not certain whether a mobility device would be helpful for
Richard. I firmly believe that working an 8-hour shift, as has been his
regimen for the past several years, would be the best accommodation
for him. If working a 12-hour shift is required, a functional capacity
evaluation may be helpful, although this would not likely assess
endurance.
Ferguson testified at deposition that he agreed with his doctor’s
assessment that longer rest breaks or rest periods would not help him. Dr.
Jastrzemski never suggested to Ferguson that he undergo a functional-capacity
evaluation, and Ferguson never obtained one.
Fulton explained that UH would send an employee for a functional-
capacity evaluation if Employee Assistance and the employee’s medical provider
were to disagree about whether an employee can perform their job. She averred that
there was no need for a functional-capacity evaluation here “because [Ferguson’s]
medical provider stated that he needed certain accommodations that University
Hospitals could not provide.”
By letter dated July 7, Everett informed Ferguson that “[t]hrough
conversations with you and your physician we have been unable to determine any
accommodations that would allow you to return to your 12-hour shift schedule.” As
a result, “we are ending your Administrative (paid) Leave status effective today * * *
as there is no reason to continue it.” Everett informed Ferguson that he would need
to request FMLA leave to maintain his employment status. Everett told him that if
he took FMLA leave and was subsequently cleared to work 12-hour shifts in his
position, Ferguson would be able to do so. Everett reminded Ferguson that he could
also use the FMLA time to search for and bid on another UH position. And Everett
informed Ferguson that Ferguson could apply for short-term disability if he was
eligible for that benefit.
Everett informed Ferguson on July 26 that Everett had spoken with
Jones and Val Hennessy, Robinson’s director of nursing, about Ferguson’s request
to explore options for a shift less than 12 hours long that would cover peak workload
hours. Everett informed Ferguson that Jones and Hennessy had assessed whether
it would be possible to accommodate such a “bridge nurse” position, but ultimately
determined that no bridge nurse was needed in the unit and “the nurses on the unit
are better utilized for the standard 12-hour shift.” Everett explained the challenges
of nurse staffing to Ferguson as follows:
Considerable effort goes into ensuring that we have trained staff ready
when needed for patient care, without over-staffing to patient volumes.
It is a challenging balancing act where staff can become unhappy very
quickly if they are sent home due to low volume/work load or mandated
to pick-up during periods of high volumes.
By letter dated August 12, 2016, University Hospitals informed
Ferguson that his request for FMLA leave had been approved with a start date of
May 21 and a return-to-work date of July 30, 2016. The letter states that if Ferguson
does not return to work at the end of the FMLA leave, his position would no longer
be secure. The letter informed Ferguson that if it was medically necessary to extend
the leave, the leave could be converted to a medical leave of absence, but “it is your
responsibility to ensure that you and/or your health care provider submit additional
objective medical documentation to us supporting your extended disability request.”
On September 2, 2016, Dr. Jastrzemski transmitted a physician
statement in support of Ferguson’s claim for short-term disability. The doctor again
repeated that Ferguson “is unable to work over 8 hours per day.” He wrote that he
had advised Ferguson “to maintain present work schedule of 8 hours per day.” He
described Ferguson’s treatment plan as “may work 8 hours per day.” He listed
Ferguson’s restrictions as “may work full time, 8 hours per day, 12-hour shifts are
not recommended.” He identified the duration of these restrictions as “lifetime.”
On September 12, 2016, University Hospitals informed Ferguson by
letter that the information provided by Dr. Jastrzemski “does not support ‘total
disability’ as defined under the UH Plan Document,” and therefore UH was not
approving Ferguson’s application for short-term-disability benefits. The letter
informed Ferguson that he could submit additional medical documentation for
consideration within 180 days.
University Hospitals claims that Ferguson voluntarily resigned by
failing to return to work after his leave expired. Ferguson claims that University
Hospitals placed him on an unpaid, involuntary leave and never let him come back
to work, effectively terminating him. University Hospitals changed Ferguson’s
employment status in its system on September 6, 2019.
Since leaving University Hospitals, Ferguson worked in various part-
time positions, then moved to a nursing position at a hospital. In that role, he
worked 12-hour shifts for a little over a year before shifting to eight-hour shifts.
F. Ferguson filed suit, and the court granted University Hospitals
summary judgment
Ferguson filed a three-count complaint in June 2020 alleging that
University Hospitals violated the Ohio Civil Rights Act, R.C. Chapter 4112 et seq., in
its treatment of him. Specifically, Ferguson alleged that (1) University Hospitals
took an adverse employment action against Ferguson as a result of an actual or
perceived disability, (2) University Hospitals failed to reasonably accommodate his
disability and (3) University Hospitals’ termination of Ferguson’s employment
constituted retaliation for his request for reasonable accommodation.
University Hospitals filed a motion for summary judgment and
Ferguson filed a brief in opposition. The trial court granted the motion, stating its
reasoning in two sentences:
Defendants’ [sic] Motion for Summary Judgment, filed 08/12/2021, is
granted. The Court, having considered all the evidence and having
construed the evidence most strongly in favor of the non-moving party,
determines that reasonable minds can come to but one conclusion, that
there are no genuine issues of material fact, and that Defendants [sic]
are entitled to judgment as a matter of law as to all claims.
Ferguson appealed, raising the following two assignments of error for
review:
First Assignment of Error: The trial court committed reversible error
by granting University Hospitals’ motion for summary judgment
without addressing any of Ferguson’s arguments to the contrary and
without providing any legal reasoning or rationale for its conclusion.
Second Assignment of Error: The trial court erred in granting
University Hospitals’ motion for summary judgment as disputes of
material fact exist with respect to Ferguson’s disability discrimination,
retaliation, and failure to accommodate claims.
II. Law and Analysis
A. First Assignment of Error
Ferguson contends that the trial court’s order granting summary
judgment has impermissibly turned this court “into the trial court on appeal.”
Ferguson argues that reversal is warranted because the parties have raised
numerous arguments and alternative arguments in their summary-judgment
briefing, relying on hundreds of pages of evidence, and the trial court’s order does
not identify which of those arguments and what specific evidence were dispositive
to the court’s conclusions.
In Ferguson’s view, the lack of detail leaves ambiguity about why the
trial court ruled the way it did and he suggests that this ambiguity also leaves doubt
about whether the court adequately considered Ferguson’s arguments. As an
example of why he believes the trial court’s order is improper, Ferguson relates that
University Hospitals argued at the trial-court level that Ferguson failed to establish
that he was disabled, an element of his claims. University Hospitals has conceded
that point for purposes of this appeal. By way of this example, Ferguson essentially
asks how — in the absence of more detail from the trial court — this court would
know if the sole reason the trial court granted summary judgment was that it
accepted UH’s argument on this now-conceded element.
Because our review of the trial court’s order is de novo, it would not
matter if that were so.
Our review of a trial court’s grant of summary judgment is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We
review the evidence “as if for the first time.” Argabrite v. Neer, 149 Ohio St.3d 349,
353, 2016-Ohio-8374, 75 N.E.3d 161. We afford no deference to the trial court’s
decision and independently review the record to determine whether summary
judgment is appropriate. It is as if the motion and evidence therein is first reviewed
at the appellate level. Grafton at 105; Agrabrite at ¶ 14. There is no requirement
under Civ.R. 56 that a trial court provide reasons for its decision. Sterling Contr.
LLC v. Main Event Ent., LP, 8th Dist. Cuyahoga No. 110965, 2022-Ohio-2138, ¶ 12
(citing Medina ex rel. Jocke v. Medina, 9th Dist. Medina No. 20CA0044-M, 2021-
Ohio-4353, ¶ 22). And, because a motion for summary judgment does not involve
factfinding, there is no requirement for findings of fact under Civ.R. 52. Id.(citations omitted).
The cases Ferguson cites in support of his first assignment of error do
not compel a different result.
For example, the U.S. Supreme Court in Kent v. United States held,
among other things, that a juvenile court’s order waiving jurisdiction over a minor
must contain a statement of the reasons motivating the waiver to comply with due-
process standards and the District of Columbia’s Juvenile Court Act. 383 U.S. 541,
561, 86 S.Ct. 1045, 47 L.Ed.2d 84 (1966). The court was not passing on appellate
review in general; it decided what was required of juvenile courts in the unique
context of waiving jurisdiction under the Juvenile Court Act.
There is some support for Ferguson’s position among Ohio Courts of
Appeals decisions. Panels in the Ninth and Eleventh Districts have reversed grants
of summary judgment because the trial court did not detail reasons for those
decisions. See Cty. Risk Sharing Auth. Inc. v. State, 11th Dist. Geauga No. 2021-G-
0014, 2022-Ohio-164, ¶ 15; Mourton v. Finn, 9th Dist. Summit No. 26100, 2012-
Ohio-3341, ¶ 8–9; Covender v. State, 9th Dist. Lorain No. 18CA011355, 2019-Ohio-
3715, ¶ 8–10; cf. Dugan v. McDonald, 11th Dist. Trumbull No. 2019-T-0073, 2020-
Ohio-1441, ¶ 23 (affirming summary judgment where the trial court’s entry
“includes sufficient detail as to the basis for its decision * * *.”). Panels in the Fourth
and Tenth Districts have also reversed when a trial court considered an argument
under an erroneous legal standard or did not consider an argument briefed by the
parties, decisions which suggest that an appellate court needs to know the trial
court’s reasons for a summary judgment to provide meaningful review. See Lang v.
Holly Hill Motel, Inc.,10 4th Dist. Jackson No. 05CA, 2005-Ohio-6766, ¶ 22–23;
Stratford Chase Apts. v. Columbus, 137 Ohio App.3d 29, 32–33, 738 N.E.2d 20(10th Dist.2000). Finally, a panel in the Seventh District reviewed a grant of
summary judgment without remand, but strongly encouraged trial courts to explain
their reasoning because “[t]he trial court’s judgment entry and reasoning are part of
the de novo review process” and “the trial court’s analysis often has a persuasive
effect during appellate review.” Scassa v. Dye, 7th Dist. Carroll No. 02CA0779,
2003-Ohio-3480, ¶ 21.
With due respect to, and after consideration of, these nonbinding
conclusions, there is no reason to remand in this case.
This line of cases largely relies on the Ohio Supreme Court’s opinion
in Murphy v. Reynoldsburg, 65 Ohio St. 3d 356, 604 N.E.2d 138 (1992). In Murphy,
the court reversed a summary judgment when the trial court admittedly ruled solely
based on the parties’ oral argument, without reviewing the summary-judgment
briefing or the evidence in the record. Murphy at 360. Murphy makes clear that
Civ.R. 56(C) requires the trial court to “thoroughly examine all appropriate
materials filed by the parties before ruling on a motion for summary judgment.” Id.If the trial court fails to do so, Murphy says there is reversible error notwithstanding
that an appellate court would review the judgment de novo. Id. Murphy says
10 After the Ohio Supreme Court’s decision in Argabrite — 149 Ohio St.3d 349, 2016-
Ohio-8374, 75 N.E.3d 161 — a panel of the Fourth District questioned its conclusion in Lang
v. Holly Hill. See Hoffman v. Gallia Cty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-
Ohio-9192, ¶ 27 fn. 4.
nothing about how extensively a trial court — after thoroughly examining all
appropriate material — must explain its decision to grant summary judgment.
Here, no party asserts, let alone demonstrates, that the trial court
failed to adequately consider any Civ.R. 56(C) material.11 The trial court specifically
stated that it was granting summary judgment “having considered all the evidence
and having construed the evidence most strongly in favor of the nonmoving party
* * *.” We see no reason to conclude that the trial court failed to follow the mandate
of Civ.R. 56(C).
Failing to set forth reasons for summary judgment is not equivalent
to granting summary judgment without first considering all the appropriate
materials and, therefore, Murphy does not compel reversal here.
As we held in Sterling Contr. LLC v. Main Event Ent., LP, 8th Dist.
Cuyahoga No. 110965, 2022-Ohio-2138, ¶ 13:
“Meaningful” appellate review occurs through resolution of the
appellate arguments based on the applicable standard. * * * The trial
court’s decision, even if reasons for it were offered in the record, cannot
be considered persuasive, much less dispositive, since we provide the
trial court’s decision no deference.
To hold otherwise would cut against longstanding appellate practice
in the state. Outside of our district, panels in the Fourth, Fifth, Ninth, Tenth and
11 Ferguson claims that the trial court granted summary judgment “without
addressing any of Ferguson’s arguments to the contrary and without providing any legal
reasoning or rationale for its conclusion.” To the extent that Ferguson is claiming that
the trial court failed to adequately consider any Civ.R. 56(C) material — as opposed to
merely failing to address its consideration of Ferguson’s arguments in a written opinion
— he has not attempted to show what evidence the trial court did not adequately consider.
Eleventh Districts have also held that there is no general requirement under Civ.R.
56 or 52 that a trial court provide reasons for granting summary judgment. See, e.g.,
Shafer v. Russ Newman Ins. Agency, 4th Dist. Highland No. 12CA11, 2013-Ohio-
885, ¶ 8; Portfolio Recovery Assocs., LLC v. Dahlin, 5th Dist. Knox No. 10-CA-
000020, 2011-Ohio-4436, ¶ 57; Medina ex rel. Jocke v. Medina, 9th Dist. Medina
No. 20CA0044-M, 2021-Ohio-4353, ¶ 22; Ferdinand v. Hamilton Local Bd. of Edn.,
17 Ohio App.3d 165, 172, 478 N.E.2d 835 (10th Dist.1984); Birmingham Assoc. v.
Strauss, 11th Dist. Geauga No. 2012-G-3111, 2013-Ohio-4289, ¶ 24. Appellate
panels across the state have substantively heard appeals of summary judgment in
the absence of a written trial-court opinion.12 We have also routinely done so, even
after Murphy. E.g., Smith v. Bd. of Cuyahoga Cty. Commrs., 8th Dist. Cuyahoga
No. 86482, 2006-Ohio-1073, ¶ 29; Jackson v. Huppert, 8th Dist. Cuyahoga No.
97764, 2012-Ohio-2934, ¶ 12–22; Kirby v. Clark Refining & Marketing, Inc., 8th
Dist. Cuyahoga No. 85127, 2005-Ohio-2736, ¶ 13.
12See Riley v. Supervalu Holdings, Inc., 1st Dist. Hamilton No. C-040668, 2005-
Ohio-6996; Hines v. Gary Bryant Constr., 2d Dist. Montgomery No. 14937, 1995 Ohio App.
LEXIS 2589 (June 23, 1995); Marion Plaza, Inc. v. Fahey Banking Co., 3d Dist. Marion
No. 9-2000-59, 2001 Ohio App. LEXIS 793 (Mar. 6, 2001); Shafer v. Russ Newman Ins.
Agency, 4th Dist. Highland No. 12CA11, 2013-Ohio-885; Nelson v. Hill, 5th Dist. Knox No.
10-CA-17, 2011-Ohio-2510; Burns v. Burns Iron & Metal Co., 6th Dist. Sandusky No. S-12-
024, 2013-Ohio-2024; Cannell v. Taylor Rental Ctr., 7th Dist. Mahoning No. 94 C.A. 1,
1995 Ohio App. LEXIS 1359 (Mar. 31, 1995); Manning v. Avon Lake, 9th Dist. Lorain No.
06CA008958, 2008-Ohio-1000; Bodnar v. Hawthorn of Aurora L.P., 11th Dist. Portage
No. 2006-P-0002, 2006-Ohio-6874; Geier v. Crum, 12th Dist. Brown No. CA91-10-016,
1992 Ohio App. LEXIS 3679 (July 13, 1992).
A trial court’s mere failure to set forth detailed reasons for granting
summary judgment is simply not a basis for reversal. We, therefore, overrule
Ferguson’s first assignment of error.
That said, we strongly encourage trial courts to explain a decision to
grant summary judgment in a written opinion. Appellate courts do not afford these
opinions any deference, but an opinion facilitates our review and allows litigants to
focus their arguments before us. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250, fn. 6, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“In many cases * * * findings are
extremely helpful to a reviewing court.”); Scassa v. Dye, 7th Dist. Carroll No.
02CA0779, 2003-Ohio-3480, ¶ 21 (“[T]he trial court’s explanation of why it is
granting summary judgment can only be helpful in reviewing the decision.”).
Providing a written opinion also “helps to promote confidence in the justice system
to those who otherwise might feel that their case was given no consideration.”
CitiMortgage, Inc. v. Tillman, 9th Dist. Lorain No. 17CA011090, 2018-Ohio-629,
¶ 16 (Callahan, J., dissenting).
B. Second Assignment of Error
Ferguson contends that there are genuine disputes of material fact
with respect to each of his claims and, therefore, the trial court erred in granting
summary judgment in favor of University Hospitals.
Ferguson asserted claims of disability discrimination, failure to
accommodate and retaliation pursuant to the Ohio Civil Rights Act, R.C. 4112.02(A).
Under R.C. 4112.02(A), it is “an unlawful discriminatory practice” “[f]or any
employer, because of the * * * disability * * * of any person, to discharge without just
cause, to refuse to hire, or otherwise to discriminate against that person with respect
to hire, tenure, terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.” R.C. 4112.02(A). Because
discrimination claims under federal law — including the ADA and Title VII of the
Civil Rights Act of 1964 — are analogous to claims under the Ohio Civil Rights Act,
we may look to federal cases interpreting federal discrimination laws to assist us in
interpreting Ohio law. See Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d
569, 573, 697 N.E.2d 204 (1998); McGuire v. Newark, 5th Dist. Licking No. 2019
CA 00095, 2020-Ohio-4226, ¶ 96 (“Federal case law regarding Title VII * * *
generally applies to R.C. Chapter 4112 violations, including retaliation claims.”).
As discussed above, we review summary-judgment rulings de novo
applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56, summary judgment is
appropriate when no genuine issue exists as to any material fact and, in viewing the
evidence most strongly in favor of the nonmoving party, reasonable minds can reach
only one conclusion that is adverse to the nonmoving party, entitling the moving
party to judgment as a matter of law.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record that demonstrate their
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–93,
662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
judgment is not appropriate; if the moving party meets this burden, the nonmoving
party has the reciprocal burden to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
Summary judgment is appropriate if the nonmoving party fails to meet this burden.
Id.
1. Disability Discrimination
To establish the prima facie case of disability discrimination under
R.C. Chapter 4112(A), a plaintiff must show that: (1) they were disabled; (2) the
employer took an adverse employment action against them at least in part because
they were disabled and (3) though disabled, they can safely and substantially
perform the essential functions of the job in question. E.g., Anderson v. AccuScripts
Pharm., LLC, 8th Dist. Cuyahoga No. 110261, 2022-Ohio-1663, ¶ 44 (citation
omitted); see also Hood v. Diamond Prods., 74 Ohio St.3d 298, 302, 658 N.E.2d
738 (1996). If the plaintiff establishes a prima facie case, the burden shifts to the
employer to “articulate some legitimate, nondiscriminatory reason” for the adverse
employment action. Anderson at ¶ 44 (citing Greer-Burger v. Temesi, 116 Ohio
St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14). If the employer articulates a
nondiscriminatory reason, the burden shifts back to the plaintiff to show “that the
proffered reason was not the true reason” for the adverse employment action. Id.(citation omitted).
University Hospitals concedes, for purposes of this appeal, that
Ferguson was disabled.
The parties dispute whether working 12-hour shifts was an essential
function of Ferguson’s position. Even viewing the evidence most strongly in
Ferguson’s favor, reasonable minds could only conclude that it was an essential
function.
While the job description for the position does not specifically state
that staff nurses must work 12-hour shifts, it does identify that a staff nurse’s major
responsibilities include, among other things, “adhere[nce] to organizational policy
and procedure.” Moreover, a previous version of the job description, which
Ferguson attached to his briefing in the trial court in support of his argument,
specifically identified that this responsibility includes, among other things,
“adhere[nce] to the attendance policy” and “adhere[nce] to scheduled work hours as
per department and hospital policy and procedures.”
Beyond the job description, it is clear that University Hospitals views
a Medical-Surgical staff nurse’s ability to work 12-hour shifts as an essential function
of the job. Every nurse in the Medical-Surgical department worked 12-hour shifts
after the merger with UH, and even those “combo shift” positions that included
some eight-hour shifts were phased out within a year of the merger. The
department’s nurse managers and the facility’s vice president of human resources
described that scheduling an all-eight-hour shift in the 12-hour staffing model that
existed after the merger would be disruptive to staffing schedules and would
negatively affect continuity of care for patients. Everett described to Ferguson the
“[c]onsiderable effort” that goes into ensuring adequate staffing to cover patient
needs without over-staffing, and the employee-morale issues that can arise when
there is imbalance in the staffing.
We do not give “blind deference” to University Hospitals’ staffing
judgment — E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 765 (6th Cir.2015) — but we
also recognize the unique challenges UH faces in staffing its 24-hour Medical-
Surgical department. See, e.g., Laurin v. Providence Hosp., 150 F.3d 52, 59–60 (1st
Cir.1998) (“[A] 24-hour hospital unit imposes exceptional nurse-scheduling
demands upon the hospital-employer. * * * The 24-hour hospital unit setting thus
affords a particularly compelling context in which to defer to rational staffing
judgments by hospital employers based on the genuine necessities of the hospital
business.”).
Here, Ferguson does not point to evidence in the record that would
create a genuine dispute about UH’s staffing judgment. He does not explain how
the hospital could have reasonably fit one nurse working eight-hour shifts into its
staffing model. In his deposition, he testified that he did not know how it could be
done:
Q: * * * I’m asking how did you see that could possibly work. This is
what you were asking for, right? This is what you wanted the hospital
to do. How did you want them to do it?
FERGUSON: That’s not — that’s not up to me. That’s up to
management and administration.
***
Q: Who would work when you came in for eight and left in a 12-hour
shift program? How would they fill those other hours?
FERGUSON: That’s — I don’t know. That’s not my problem.
Ferguson does not offer any further explanation in his summary judgment or appeal
briefing; he simply says that it could have been done. As discussed above at
paragraph 21, Ferguson admitted that other nurses on his floor would likely have
had to add his patients to their full patient loads when he left at the end of his shift.
All the nurses in Ferguson’s department were required to work 12-
hour shifts after the merger, without exception. UH’s department supervisors
explained why UH could not fit an eight-hour shift into that model without creating
uneven coverage and negatively affecting patient care and Ferguson could not
explain how UH was supposed to do so, either. Therefore, based on the record
before us we find that working 12-hour shifts was an essential function of Ferguson’s
position. See Mattingly v. Univ. of S. Fla. Bd. of Trs., 931 F.Supp.2d 1176, 1184
(M.D. Fla. 2013) (working 12-hour rotating shifts was an essential function of being
a patrol officer in a police department where all such officers worked 12-hour shifts,
with no exceptions, and “[s]horter shifts * * * would have disrupted the rotation for
other officers and forced [the department] to deny shift preferences, change work
schedules, * * * and limit the flexibility of the patrol division to respond to its
operational needs and provide for public safety”).
University Hospitals disputes that it took an adverse employment
action against Ferguson, instead arguing that Ferguson voluntarily resigned. It
further disputes that Ferguson could safely and substantially perform the essential
functions of his job, considering his doctor’s opinion that he could not work 12-hour
shifts without pain and fatigue. Ferguson argues that University Hospitals
effectively terminated him by placing him on leave and not allowing him to return
to work. He further argues that he could safely and substantially work 12-hour
shifts, albeit with discomfort. Even assuming that Ferguson could meet his burden
to show a genuine dispute as to these elements of his prima facie case, University
Hospitals is still entitled to summary judgment.
University Hospitals articulated a legitimate, nondiscriminatory
reason for placing Ferguson on administrative leave and not allowing him to return
to work until he obtained medical clearance to work 12-hour shifts, with or without
an accommodation. University Hospitals took these steps because (1) working 12-
hour shifts was an essential function of being a staff nurse in the Medical-Surgical
department and (2) Ferguson and his physician repeatedly told UH that Ferguson
could not work more than eight hours without becoming pained and fatigued to the
point of having difficulty ambulating and no accommodation could help him do so.
Ferguson indicated in his initial formal request in January 2016 that
“working 12 hours is just too long of a day for me standing.” Dr. Jastrzemski certified
that “walking/standing for extended periods of time create ambulatory difficulty”
for Ferguson. He checked the box indicating his opinion that Ferguson’s disability
affects Ferguson’s ability to perform any one of the essential functions of his job. He
described that “walking or standing for more than 8 hrs a day can cause discomfort
when ambulating.”
On March 30, 2016, Dr. Jastrzemski stated his opinion that Ferguson
“cannot work more than 8 hrs.” As discussed above at paragraph 28, Dr.
Jastrzemski opined on the limitations under which Ferguson was cleared to work,
and Ferguson admitted that these limitations were not compatible with the staff-
nurse position.
Nine days after receiving this form, UH informed Ferguson that Dr.
Jastrzemski’s opinions give UH concern that allowing Ferguson to continue working
12-hour shifts “could compromise your health, patient safety or patient care.”
Ferguson testified that he understood that UH’s concern came from what Dr.
Jastrzemski said about his medical condition and restrictions, but Ferguson never
took steps to change Dr. Jastrzemski’s assessment of his needed work limitations.
When Ferguson met with UH’s Employee Assistance staff, he again
reported that he “had issues walking and standing and could not work a 12-hour
shift.” University Hospitals reached out to Dr. Jastrzemski about the doctor’s
opinion, telling the doctor that Ferguson had been working 12-hour shifts with
minimal complaints but “needs to be medically cleared prior to returning.” Dr.
Jastrzemski again repeated his medical opinion that Ferguson “has difficulty
standing on feet over 8 hrs per day.”
On May 23, Ferguson’s counsel wrote to University Hospitals, again
stating that “the longer shifts cause[] him ambulatory difficulty and discomfort.”
In June, University Hospitals sought additional information from Dr.
Jastrzemski, asking for details about what risks Ferguson faces if he continues
working 12-hour shifts and asking the doctor if there were any possible
accommodations that would allow Ferguson to work 12-hour shifts. Ferguson is
copied on the letter, but he never discussed any of UH’s suggested alternatives with
his doctor. Instead, Dr. Jastrzemski responded and repeated that “longer breaks or
rest periods will not likely benefit the employee/patient. He becomes fatigued after
weightbearing for 8 hours.”
Even after University Hospitals stopped paying Ferguson and told
him he needed to apply for FMLA leave, UH indicated that if Ferguson were cleared
to work 12-hour shifts in his position, Ferguson would be able to do so. Ferguson
still did not approach Dr. Jastrzemski to get clearance to work 12-hour shifts, or even
to discuss whether there was some accommodation that could make 12-hour shifts
work for him. Indeed, in September 2016 Dr. Jastrzemski repeated his opinions
that Ferguson “is unable to work over 8 hours per day” and “12 hour shifts are not
recommended.”
Ferguson now states that he can safely and effectively work 12-hour
shifts, it is just uncomfortable and difficult for him. That may or may not be true;
he did work 12-hour shifts for several months at UH, and then he did again for a
little over a year at another hospital. But the argument ignores that Ferguson, his
doctor and his counsel clearly — and at every opportunity — told University
Hospitals that Ferguson could not work longer than eight hours at a time, and they
proposed no accommodation that would allow him to work more than eight hours
at a time. They repeatedly told University Hospitals that Ferguson experiences pain,
becomes fatigued and has difficulty ambulating after working for more than eight
hours. Ferguson was in a direct patient-care role; he routinely had to lift and move
patients, among other things. Whether or not Ferguson was successfully working
12-hour shifts, University Hospitals had a legitimate concern for its patients’ safety
— and for Ferguson himself — considering Dr. Jastrzemski’s opinions and
Ferguson’s own statements about his medical condition.
University Hospitals proposed several different accommodations to
Ferguson, none of which Ferguson or his doctor indicated would alleviate their
concerns. Before Dr. Jastrzemski firmly opined on March 30 that Ferguson could
not work any 12-hour shifts and would have to work under significant limitations
incompatible with the staff-nurse position, University Hospitals proposed holding
one of the “combo” shifts open, which would have Ferguson working some eight-
hour shifts during the week (at least temporarily). After Ferguson declined, and his
doctor opined again that Ferguson could not work over eight hours at all, University
Hospitals proposed giving Ferguson longer rest breaks. When these proposed
accommodations did not alleviate the concerns, UH asked the doctor if there was
anything at all that would allow Ferguson to work 12-hour shifts. Ferguson and Dr.
Jastrzemski did not even talk about what might work and they certainly never
proposed any accommodation to UH beyond allowing Ferguson to work all eight-
hour shifts.
Even viewing the evidence most strongly in Ferguson’s favor,
reasonable minds could only conclude that University Hospitals had compelling
reason to believe that allowing Ferguson to continue working 12-hour shifts in his
staff nurse position was not medically authorized by Ferguson’s physician and put
himself, and UH’s patients, at risk. That proffered reason for placing Ferguson on
leave and not allowing him to return pending medical clearance is legitimate and
nondiscriminatory.
Ferguson argues that this stated reason was mere pretext. A plaintiff
can demonstrate pretext by showing that the proffered reason (1) has no basis in
fact, (2) did not actually motivate the defendant’s challenged conduct or (3) was
insufficient to warrant the challenged conduct. Regardless of which option is
chosen, the plaintiff must produce sufficient evidence from which the trier of fact
could reasonably reject the employer’s explanation and infer that the employer
intentionally discriminated against him. E.g., Knepper v. Ohio State Univ., 10th
Dist. Franklin No. 10AP-1155, 2011-Ohio-6054, ¶ 12. At this step, the employee
must show both that the employer’s reason was false and that discrimination was
the real reason. E.g., Kenner v. Grant/Riverside Med. Care Found., 2017-Ohio-
1349, 88 N.E.3d 664, ¶ 29 (10th Dist.). The employee must show more than mere
conjecture that the employer’s stated reason is a pretext for the court to deny the
employer’s motion for summary judgment. E.g., Powers v. Pinkerton, Inc., 8th Dist.
Cuyahoga No. 76333, 2001 Ohio App. LEXIS 138, ¶ 11. (Citation omitted.)
Ferguson argues that there are 12 facts that would allow a reasonable
factfinder to determine that UH’s stated reason was pretext. We have carefully
considered each, and they individually and collectively do not present a sufficient
basis from which a reasonable factfinder could find pretext. The arguments fall into
several categories, which we deal with in turn.
Ferguson’s first argument is that a reasonable factfinder could find
pretext based on University Hospitals’ consideration of Ferguson’s performance on
the job. Ferguson contends that he had no performance issues and his performance
was not reasonably related to his request for an accommodation, so UH should not
have been considering his performance in the first place in connection with his
request. He further argues that UH mischaracterized his performance by alleging
two “informal accommodations” that Ferguson was supposedly already receiving to
help him do his job. The evidence relevant to these allegations are discussed above
at paragraphs 23–25.
Even viewing the evidence in Ferguson’s favor, no reasonable
factfinder could find pretext from UH’s consideration of Ferguson’s performance.
Everett testified that an employee’s performance is always considered during UH’s
consideration of a reasonable-accommodation request, and Ferguson offers no
evidence to challenge that testimony. Among other reasons, Everett testified that if
an employee is having difficulties because of a “physical situation,” those difficulties
could manifest themselves in documented performance issues. Therefore, while
documented performance issues are “[n]ot as relevant as * * * some of the other
indicators regarding the request,” UH routinely includes a consideration of
performance issues when it evaluates accommodation requests.
Moreover, it is clear from UH’s communications with Ferguson —
and Ferguson acknowledged at deposition — that the reason UH sent Ferguson for
a fitness-for-duty evaluation, placed him on leave and did not allow him to return
was that Ferguson’s doctor did not medically clear Ferguson to work 12-hour shifts.
The decision was not the result of any alleged performance issues. UH’s April 8
letter states that the doctor’s opinions about Ferguson’s medical condition led to
concerns about Ferguson’s and patient safety, and Ferguson testified that he
understood that the letter resulted from his doctor’s medical opinion. When
Employee Assistance reached out to Ferguson’s doctor to discuss his fitness for duty,
they specifically noted that Ferguson denied performance issues, had been working
12-hour shifts with minimal complaints and was well-liked. When Employee
Assistance referred the matter back to the human-resources department, Fulton
notified Ferguson that his doctor did not change his return-to-work
recommendation. In UH’s communications with Ferguson and Dr. Jastrzemski
after the fitness-for-duty exam, the discussion focuses solely on why Ferguson could
not work 12-hour shifts and what possible accommodations would allow Ferguson
to work 12-hour shifts. No reasonable factfinder could find pretext from these facts.
Ferguson’s second argument is that a reasonable factfinder could
find pretext from the circumstances surrounding Everett’s April 8 letter indicating
that UH had concerns about Ferguson’s fitness for duty. Specifically, Ferguson
points out that Everett drafted the letter in February, before Dr. Jastrzemski’s
March 30 statement of Ferguson’s limitations. He points out that the Employee
Assistance staff conducting the fitness-for-duty examination apparently had a copy
of this drafted, but-unsent, letter and stated that Ferguson may be in “denial” or
have “cognitive issues” because Ferguson said he did not receive the letter. He
argues that these facts show a coordinated plan to drum up false reasons for
terminating him.
Even viewing the evidence in Ferguson’s favor, no reasonable
factfinder could find pretext from the undisputed facts. When Everett drafted this
letter, Ferguson’s doctor had already indicated that Ferguson’s medical condition
caused him difficulty ambulating and discomfort after working for longer than eight
hours. The doctor confirmed this opinion and went even further in limiting
Ferguson’s work conditions before the letter was finalized and sent. That alone is
fatal to any finding of pretext. But there is no basis beyond mere conjecture to find
pretext based on the letter’s timing or the discussion of the letter in the fitness-for-
duty examination either. Ferguson does not dispute that Everett went on vacation
after drafting the letter and by the time Employee Assistance spoke with Ferguson
about the letter, the final draft had been sent out and Everett had discussed the
letter’s contents with Ferguson, in person. After the examination, Everett confirmed
to Employee Assistance that Ferguson was correct when he said he did not receive
the draft letter. No reasonable factfinder could find pretext from these facts.
Ferguson’s third argument is that a reasonable factfinder could find
pretext because Everett denied at his deposition and by affidavit that Ferguson’s first
request for an accommodation was due to a disability. Everett explained at
deposition that Ferguson’s initial request had to do with nonmedical reasons and at
some point, before January 5, Ferguson came back to Everett and said he physically
could not work over eight hours a day. Everett presumed that the request had to do
with Ferguson’s noticeable issue with his gait. While there is a factual dispute about
why Ferguson initially requested his accommodation, Everett and UH have
consistently admitted that Ferguson made a request for a disability accommodation.
As early as January 5, 2016, Everett provided Ferguson ADA paperwork to process
his request. UH communicated back-and-forth with Ferguson’s doctor for months
to see if there was some reasonable accommodation that would allow Ferguson to
work 12-hour shifts. No reasonable factfinder could draw an inference of pretext
from Everett’s disputed claim about the content of Ferguson’s first request.
Ferguson’s fourth argument is that a reasonable factfinder could find
pretext because it was unreasonable for UH to read Dr. Jastrzemski’s January and
March 2016 medical forms as requiring Ferguson’s immediate removal from his job,
when UH admits that Ferguson had been working 12-hour shifts without complaint
from January through April. Contrary to Ferguson’s argument, it is not inconsistent
for UH to acknowledge that Ferguson was working 12-hour shifts without incident
while at the same time claiming that the information Dr. Jastrzemski provided
caused them concern about his safety and patient safety. Even if University
Hospitals’ administrators subjectively believed that Ferguson could safely do the job
and was malingering, UH was not required to bear the risk of being incorrect.
Considering the information Dr. Jastrzemski provided — and
Ferguson’s acknowledgment that the work limitations Dr. Jastrzemski dictated were
not compatible with his position — no reasonable factfinder could find that
University Hospitals’ stated reasoning for its actions were false or that UH was
actually motivated by discrimination.
Ferguson’s fifth argument is that a reasonable factfinder could find
pretext because Ferguson was subjected to drug testing and “psychological
examination” during his fitness-for-duty evaluation. As for drug testing, it is
undisputed that all employees referred to Employee Assistance undergo toxicology
screening. As for the content of the examination, there is no firsthand account of
the examination in the record from Ferguson’s point of view. Based on Fulton’s
notes, though, she used a standard intake form during the meeting. In completing
this form, she noted that Ferguson denied psychological issues and she indicated
her observation that Ferguson’s thoughts, orientation, mood, affect, intellectual
level, memory, insight and judgment were all normal and appropriate. Fulton was
concerned about Ferguson’s claim that he had not received Everett’s letter but
Everett confirmed to her that Ferguson was correct in that regard. There is no
evidence suggesting that University Hospitals took any adverse action against
Ferguson based on alleged psychological issues. No reasonable factfinder could
infer pretext from the nature of this examination, based on this record.
Finally, Ferguson argues that a reasonable factfinder could infer
pretext from University Hospitals’ decisions to allow certain employees to be
“grandfathered in” to full-time status and to allow certain nurses to retain some
eight-hour shifts on the “combo shift.” Ferguson essentially argues that if University
Hospitals could afford that flexibility, there is no legitimate reason that UH could
not afford Ferguson the flexibility of allowing him to work all eight-hour shifts, and
UH’s refusal to do so must, therefore, be motivated by discrimination. University
Hospitals’ policy of “grandfathering” at Robinson related to how many hours per
week an employee needed to work to be considered full-time through the end of
2016; it had nothing to do with the length of employees’ shifts. As for the “combo
shift,” Ferguson does not explain why the existence of this shift would allow
Ferguson to reasonably work all eight-hour shifts. No reasonable factfinder could
find pretext from these facts.
While each argument for pretext fails on its own merits for the
reasons discussed above, we also note that each is further and fatally undercut by
the undisputed fact that University Hospitals repeatedly told Ferguson that he could
return to work — working 12-hour shifts — if only he received medical clearance to
do so. No reasonable factfinder would conclude that UH’s stated reason for its
actions was false, did not actually motivate UH’s conduct or was insufficient to
warrant the conduct. Ferguson has thus failed to demonstrate a genuine issue of
material fact that could lead a reasonable factfinder to conclude that UH’s
legitimate, nondiscriminatory reason for its actions was mere pretext.
We, therefore, overrule Ferguson’s second assignment of error as it
relates to the summary judgment on Ferguson’s disability-discrimination claim.
2. Failure to Accommodate
Under Ohio law, “[a]n employer must make reasonable
accommodation to the disability of an employee * * *, unless the employer can
demonstrate that such an accommodation would impose an undue hardship on the
conduct of the employer’s business.” E.g., Anderson v. Ohio Bell Tel. Co., 8th Dist.
Cuyahoga Nos. 106992 and 107399, 2018-Ohio-5237, ¶ 6 (Citation omitted); Ohio
Adm.Code 4112-5-08(E)(1). “Whether an accommodation is reasonable is a mixed
question of law and fact.” Ohio Civ. Rights Comm. v. Case W. Res. Univ., 76 Ohio
St.3d 168, 178, 666 N.E.2d 1376 (1996).
A plaintiff claiming a failure to accommodate bears the initial burden
to show that (1) they are disabled; (2) they are otherwise qualified for the position
(with or without a reasonable accommodation); (3) their employer knew or had
reason to know about the disability; (4) they requested an accommodation and
(5) the employer failed to provide the necessary accommodation. Stewart v. Bear
Mgt., 2017-Ohio-7895, 98 N.E.3d 900, ¶ 21 (5th Dist.). If the employee makes this
prima facie showing, the burden of production shifts to the employer to show that
the accommodation would constitute an undue hardship. Mosby-Meachem v.
Memphis Light, Gas & Water Division, 883 F.3d 595, 603 (6th Cir.2018).
Here, Ferguson has not established his prima facie case because he
has not shown that he is otherwise qualified for the staff-nurse position with, or
without, a reasonable accommodation.
As we discussed above at paragraphs 80–84, working 12-hour shifts
is an essential function of being a staff nurse in University Hospitals’ Medical-
Surgical department. Every staff nurse in the Medical-Surgical department worked
12-hour shifts after January 1, 2016. Whether or not Ferguson could, in fact, work
12-hour shifts safely and effectively, his own chosen physician would not medically
clear him to do so. When University Hospitals proposed various accommodations,
including longer rest breaks, Ferguson and his physician did not report that those
proposals would alleviate their health concerns or propose any accommodations
that could allow Ferguson to work 12-hour shifts. Therefore, Ferguson was not
qualified for his staff nurse position, with or without reasonable accommodation.
See Szabla v. St. John Hosp., Case No. 09-13042, 2011 U.S. Dist. LEXIS 94703, 19–
20 (E.D. Mich. Aug. 24, 2011) (employee not qualified for a hospital position
requiring 12-hour shifts where she was medically restricted from working 12-hour
shifts); Boitnott v. Corning, Case No. 7:06-CV-0030, 2010 U.S. Dist. LEXIS 59269,
29–34 (W.D. Va. June 15, 2010) (where employee could not work the rotating 12-
hour shifts required of a maintenance engineer, the employee was not qualified and
“the ADA did not require [the employer] to tailor a new schedule” for the employee);
Kallail v. Alliant, Case No. C10-0063, 2011 U.S. Dist. LEXIS 51705, 30–50 (N.D.
Iowa May 13, 2011) (employee’s medical restriction requiring a permanent eight-
hour day shift rendered her unable to carry out the essential functions of a position
requiring rotating shifts that included 12-hour shifts).
Ferguson’s only requested accommodation was to work all eight-
hour shifts. He acknowledged that the accommodation would likely involve other
staff nurses picking up his patients in addition to their own full patient loads for four
hours after the end of his shift. This is not a reasonable accommodation and
University Hospitals was not required to assign other nurses to cover Ferguson’s
patients for four hours at the end of each of his shifts in order to accommodate him.
See White v. Std. Ins. Co., 529 Fed.Appx. 547, 550 (6th Cir.2013) (request to work
part-time not reasonable when doing so would require other employees to pick up
the plaintiff’s accounts for four hours at the end of every shift); Green v. BakeMark
USA, 683 Fed.Appx. 486, 493 (6th Cir.2017) (employer not obligated to bring in
“other operations managers to work part of the day” for an employee who requested
to work part-time).
Even if Ferguson could have established his prima facie case,
University Hospitals’ department supervisors discussed the various ways in which
accommodating Ferguson would negatively affect the department — both its staff
and its patients. Ferguson, by contrast, points to no evidence establishing that the
accommodation would not have been an undue hardship.
Having found that Ferguson was not qualified for the staff nurse
position and did not propose a reasonable accommodation, and that Ferguson’s
requested accommodation would have imposed an undue hardship on University
Hospitals, even it had been reasonable, we overrule Ferguson’s second assignment
of error as it relates to the summary judgment on Ferguson’s disability-
discrimination claim.
3. Retaliation
To establish a prima facie case for Ohio Civil Rights Act retaliation,
Ferguson must establish that (1) he engaged in protected activity; (2) his employer
knew of his participation in the protected activity; (3) he suffered an adverse
employment action and (4) a causal link existed between the protected activity and
the adverse action. Johnson v. Cleveland City School Dist., 8th Dist. Cuyahoga No.
94214, 2011-Ohio-2778, ¶ 67, citing Willie v. Hunkar Laboratories, Inc., 132 Ohio
App.3d 92, 107–108, 724 N.E.2d 492 (1st Dist.1998); see also Johnson v. Univ.
Hosp. Physician Servs., 617 Fed.Appx. 487, 492 (6th Cir.2015). Once a plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse action. Id. If the employer
does so, the burden shifts back to the plaintiff to show that the articulated reason
was a pretext. Id.Ferguson claims that he engaged in protected activity by requesting
a reasonable accommodation for his disability, and he says University Hospitals
retaliated against him for doing so by placing him on involuntary leave and not
allowing him to return to work, essentially terminating him.
Requesting a reasonable accommodation for a disability is a
protected activity. Johnson v. Cleveland City School Dist., 8th Dist. Cuyahoga No.
94214, 2011-Ohio-2778, ¶ 68; see also A.C. ex rel. J.C. v. Shelby Cty. Bd. of Edn., 711
F.3d 687, 698 (6th Cir.2013) (“Both this circuit and most others agree that requests
for accommodation are protected acts” under the ADA). Here, Ferguson did request
an accommodation for a disability, and University Hospitals knew about his request.
Even assuming that Ferguson could meet the other elements of his prima facie case,
though, University Hospitals is entitled to summary judgment. Ferguson’s claim
fails for the same reason his discrimination claim fails — University Hospitals had a
legitimate, nondiscriminatory reason for taking the actions it did, and Ferguson has
not identified a genuine issue of material fact that would allow a reasonable
factfinder to reject UH’s explanation and find pretext.
As further stated above at paragraphs 86–96, University Hospitals
took the actions it did because Ferguson and his physician informed the hospital
that Ferguson could not work more than eight hours without becoming pained and
fatigued to the point of having difficulty ambulating, and because UH could not
reasonably accommodate all eight-hour shifts for Ferguson. University Hospitals
told Ferguson that Ferguson could return to work, working 12-hour shifts, if
Ferguson were medically cleared to do so. As discussed above at paragraphs 97–
109, Ferguson has not identified sufficient evidence in the record from which a
reasonable factfinder could find that UH’s stated reason was pretext. Therefore —
even viewing the evidence most strongly in Ferguson’s favor — reasonable minds
could only conclude that University Hospitals had a legitimate, nonretaliatory
reason for taking the actions it took regarding Ferguson.
We, therefore, overrule Ferguson’s second assignment of error as it
relates to the summary judgment on Ferguson’s retaliation claim.
III. Conclusion
Having overruled each of Ferguson’s assignments of error for the
reasons stated above, we affirm the trial court’s summary judgment in favor of
University Hospitals.
It is ordered that the appellee recover from the appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
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EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, A.J., and
EMANUELLA D. GROVES, J., CONCUR