ORDER
This matter is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on January 30, 2015 a Report and Recommendation (Doc. 31). Subsequently, the plaintiff filed objections to such Report and Recommendation (Doc. 32) and defendants filed a response to the objections (Doc. 34).
The Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court doеs determine that such Recommendation should be adopted.
Accordingly, defendant’s motion for summary judgment (Doc. 25) is GRANTED. Defendant’s alternative motion for judgment on the pleadings (Doc. 25) is DENIED AS MOOT.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
I. Factual and Procedural Background
On August 7, 2013, through counsel, Plaintiff filed a complaint against three entities that he identified as his former “employer,” including the National Electrical Contractors Association, the International Brotherhood of Electrical Workers Local # 648, and the Butler County Electrical Joint Apprentice and Training Committee. (Doc. 1 at ¶ 10). Plaintiff subsequently dismissed without prejudice two of the Defendants, leaving only Butler County Electrical Joint Apprentice and Training Committee (hereinafter “Butler JATC”). Defendant Butler JATC successfully moved to dismiss, for failure to state a claim, three of five claims originally included in the complaint — wrongful termination under state law, intentional infliction of emotional distress, and violations of the Rehabilitation Act. (See Doc. 19). Defendant has now moved for summary judgment on the only two remaining claims against it, brought pursuant to the Americans with Disabilities Act. Defendant filed proposed undisputed facts in support of its motion, which the undersigned has largely accepted based upon Plaintiffs failure to dispute them.
Plaintiff began an apprenticeship with the Butler JATC in August 2010. Priоr to his apprenticeship, Plaintiff received an associate’s degree. Plaintiff also previously served in the United States Navy from 1998 until June 29, 2004, with an inactive obligation until June 29, 2006 at which time he was honorably discharged. It is undisputed that Plaintiff has irritable (obstructive) bowel syndrome, which he testified places no limitations on his activities. While unrelated to the claims asserted in this lawsuit, Plaintiff also has permanent nerve damage in his left leg, which limits his ability to exercise, but nothing else. Also unrelated to this lawsuit, Plaintiff suffers from hypertension, a condition that does not limit any activities.
The Committee of the Butler JATC is composed of six individual members, three of whom are appointed by the Internationаl Brotherhood of Electrical Workers, Local Union No. 648, and three of whom are appointed by the National Electrical Contractors Association, Cincinnati Chapter. The Butler JATC’s goal is to provide the electrical construction industry with the most highly trained and highly skilled workforce possible. It accomplishes that purpose through a rigorous five-year apprenticeship program that includes both classroom and on-the-job training. The Butler JATC views the classroom, hands-on training as just as important as on-the-job training. As part of the apprenticeship program, the JATC requires apprentices to attend, at a minimum, at least “180
Apprenticeship applicants are required to affirmatively state on their application that they are able and willing to attend all related classroom training. In his application, Plaintiff specifically affirmed that he was “able and willing to attend all related classroom training as required to complete [his] apprenticeship.” (Napier Decl. ¶ 26; Doc. 24-2 at PagelD 225, Day Depo. at Def. Ex. 10, Apprenticeship Application, Question 19). As рart of acceptance into the program, the apprentice also agrees to comply with all rules and policies issued by the JATC. One of those policies explains that all apprentices serve a probationary period during which they are not members of IBEW Local 648:
The first 2,000 hours of OJT [on-the-job training] and satisfactory performance in related classroom training during such time shall constitute the probationary period. During this period, the apprenticeship period may be cancelled by either party without the formality of a hearing.
Prior to the end of the probationary period, action must be taken on each probationary apprentice to end the probation, extend the probation, or cancel the apprenticeship agreement. All interested parties shall be notified of such action.
(Napier Decl. ¶ 17; Doc. 24-4 at PagelD 243-44, Day Depo. at Ex. 11, Training Standards Sec. XII). The JATC’s Statement of Policy reiterates the annual requirement of 180 hours of related coursework, as well as that all apprentices remain on probationary status during their first 2,000 hours of on-the-job training.
The JATC’s Statement of Policy includes a special note on absenteeism:
The committee has adopted a policy that three (3) absences from class requires an appearance before the Committee. It is at the discretion of the committee to forgive any absence from School. For each unexcused absence the apprentice will receive a 30 day penalty. After five (5) or more unexcused absences from class in .any one year the apprentice will be dropped from the program or required to repeat the year at the discretion of the committee. It is the responsibility of the apprentice to explain in writing why he was absent by the next class to his instructor.
(Napier Decl. ¶ 21; Doc. 24-5 at PagelD 263, Day Depo., Defs Ex. 12, Statement of Policy, p. 6, emphasis in original). The above policy remained in effect until September 11, 2011, when it was modified as follows:
There will be no excused absences. Each Apprentice will get one free night. The second absence will be a 30 day penalty, third absence will be 60 day penalty, fourth absence will be 90 day penalty & the fifth absence, you will be terminated from the program unless deemed otherwise by the committee.
(Napier Decl. ¶ 22; Doc. 23-7 at PagelD 175, Day Depo., at Defs Ex. 7, Day000008, New Absentee Policy). All apprentices, including Plaintiff, were given a copy of the new policy on or about August 30, 2011. Plaintiff also acknowledged both that he had received and that he had actually read the Training Standards and Statement of Policy prior tо starting his apprenticeship.
Plaintiff recalls missing 16 classes in his first and second years for a variety of reasons. Despite advising Butler JATC in
After March 1, 2011, Plaintiff missed two more classes during his first year of the program without providing any reason for his absences, in violation of the Statement of Policy. Butler JATC thereafter amended its absentee policy for the 2011-2012 school year. During Plaintiffs second year in the program, he missed a total of five classes. He did not report the reason for his absences by the next class, again in violation of the Statement of Policy. Instead, he was silent, and could not recall if all of the absences were related to his irritable bowel syndrome until he was called before the Committee a second time in February 2012. The record reflects that he notated a February 7, 2012 paper documenting the absences by stating that one absence was a “free day,” that two absences were due to his visiting his aunt and attending a funeral, and that two absences were “Illness due to disability.” (See Doc. 24-9, Exh. 16, PagelD 276).
In March 2012, Plaintiff remained in his probationary period because he had not yet completed 2,000 hours of on-the-job training. Butler JATC terminated Plaintiffs probationary apprenticeship on March 5, 2012. Although Plaintiff alleges that he was terminated because he took too many bathroom breaks, he has failed to submit any evidence to support that allegation. Instead, the evidence offered by Defendant unequivocally shows that his dismissal was based upon his chronic absenteeism. During the EEOC investigation,
Plaintiff understood that he was not an employee of the Butler JATC at the beginning of his apprenticeship, and testified that he does not disagree with that statement. It is undisputed that Butler JATC has never employed Plaintiff, has never paid him for any services, and has never issued him either an IRS Form W-2 or an IRS Form 1099.
II. Analysis
Defendant has filed a combined motion for summary judgment pursuant to Rule
A. Summary Judgment Standard
In a motion for summary judgment, a court “must view the facts and any inferences that can be drawn from those facts ... in the light most favorable to the nonmoving party.” Keweenaw Bay Indian Comm. v. Rising,
Under Rule 56, the moving party bears the initial burden of establishing an absence of evidence to support the nonmov-ing party’s case. Celotex Corp. v. Catrett,
B. Defendant’s Motion
Under the ADA, “employers are prohibited from discriminating against a qualified individual with a disability because of his or her disability in employment matters, such as hiring, advancement, and discharge.” Regan v. Faurecia Auto. Seating, Inc.,
1. Elements of Plaintiffs claims
In order to establish a failurе to accommodate claim, Plaintiff must show that: (1) he is disabled under the ADA; (2) he is otherwise qualified for the posi-. tion, with or without reasonable accommodation; (3) his employer knew or had reason to know about his disability; (4) he requested an accommodation; and (5) the employer failed to provide the necessary accommodation. See Johnson v. JPMorgan Chase & Co.,
A failure to accommodate claim “unavoidably ‘involve[s] direct evidence (the failure to accommodate) of discrimina-
tion’ because the employer necessarily relied on the worker’s disability in making decisions.” Cash v. Siegel-Robert, Inc., 548 Fed.Appx. 330 , 334,2013 WL 6231791 , at *4 (6th Cir. Dec. 3, 2013) (quoting Kleiber v. Honda of Am. Mfg., Inc.,485 F.3d 862 , 868-69 (6th Cir.2007)). Accordingly, the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,411 U.S. 792 ,93 S.Ct. 1817 ,36 L.Ed.2d 668 (1973) does not apply.
Kovac v. Superior Dairy, Inc.,
To the extent that Plaintiff also relies on direct evidence for his termination claim, Plaintiff is required to show: (1) he is disabled and (2) he is “otherwise qualified” for the position despite his dis-' ability: (a) without accommodation from the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. If he makes that preliminary showing, the employer must show (3) that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer. Monette v. Electronic Data Sys. Corp.,
However, unlike a failure to accommodate claim, a plaintiff alternatively may prove a discrimination claim under the ADA through indirect evidence. To the extent that Plaintiff is attempting to prove his termination claim through circumstantial evidence, the McDonnell Douglas burden-shifting approach applies. Under that approach, Plaintiff may establish his claim by showing that he:
(1) ... is disabled; (2)[is] otherwise qualified for the position, with or without reasonable accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason to know of the plaintiffs disability; and (5) the position remained open while the employer sought other applicants or the disabled. individual was replaced. The defendant must then offer a legitimate explanation for its action. If the defendant satisfies this burden of production, the plaintiff must introduce evidence showing that the proffered explanation is pretextual. Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times.
Hedrick v. W. Reserve Care Sys.,
2. Whether Butler JATC Was Plaintiffs Employer
As a threshold issue, Butler JATC argues that it is not and never was Plaintiffs “employer,” and that Plaintiff was never its “employee,” as defined under the Americans With Disabilities Act. See 42 U.S.C. §§ 12111(4), (5). Plaintiffs complaint repeatedly alleges that Defendant “terminated Plaintiffs employment,” and that he was “in the employment” of and/or “employed” by the Defendant. (See, e.g., Doc. 1 at 2; id. at ¶¶ 6, 10, 11, 12, 16, 20, 22, 23). Thus, while Plaintiffs complaint does not explicitly define Defendant as an “employer” as defined under the ADA, it very strongly implicitly does so. However, Plaintiff agreed in his deposition that he was not and never was employed by the Butler JATC. (Doc. 24 at PagelD 191-92, Day Depo. at 137-138).
Plaintiff also relies on the allegations in his complaint to “prove” that Defendant was his employer, but those allegations are clearly refuted by Plaintiffs sworn testimony and are not sufficient to defeat summary judgment. See McNeil v. Sonoco Products Co.,
Returning to the question of whether Defendant was Plaintiffs “employer,” or Plaintiff an “employee” of the Defendant, the undersigned concludes that the answer is “no” based upon the аffidavit presented by Defendant and Plaintiffs own sworn testimony. On the other hand— to the extent that Plaintiff is advocating for a second theory of liability — the determination of whether Defendant still may be held liable for Plaintiffs ADA claims as a “covered entity” under 42 U.S.C. § 12111(2), because Defendant constitutes a “joint labor-management committee,”. presents a closer issue. Though not cited by Plaintiff, the Equal Employment Opportunity Commission Compliance Manual (“EEOCCM”) provides some guidance that supports a theory of liability under the ADA for violations that may occur in apprenticeship programs. In EEOCCM section 2 — III,
3. Coverage of Training Program Applicants and Participants
An applicant to, or a participant in, á training or apprenticeship program is protected against discrimination with respect to admission to, or participation in, the training or apprenticeship program, regardless of whether the individual is an “employee.” Discrimination against a participant in an apprenticeship or training program that is required prior to employment, or that commonly leads to regular employment, also constitutes discrimination against an applicant for employment, and is prohibited because it has the effect of discriminatorily denying someone an employment opportunity-
2-111 COVERED PARTIES, EEOCCM s 2 — III (italics added).
Defendant protests vigorously that Plaintiff never articulаted any theory of liability against Defendant outside of alleging that it was Plaintiffs “employer,” and points out that Plaintiff failed to amend his complaint notwithstanding Defendant’s repeated denials that it was his “employer.” Defendant argues that Plaintiff should not be permitted to constructively amend his theory of liability at this late date in order to defeat summary judgment, because such amendment would be highly prejudicial to Defendant. The parties engaged in no discovery on the issue of whether Defendant could be held liable as an administrator of the apprenticeship program, or whether it is in fact a “covered entity” as a qualified joint labor-management committee.
The undersigned finds Defendant’s position to be persuasive, and therefore recommends summary judgment based on this threshold issue. “It is well-settled that a plaintiff may not expand [his] claims to assert new theories in response to summary judgment or on appeal.” Renner v. Ford Motor Co.,
3. Whether Plaintiff Is Disabled
Plaintiffs complaint alleges that Defendant discriminated against him based upon his irritable (obstructive) bowel syndrome, without any further elaboration as to how that cоndition limits his major life activities. The first element of a prima facie case for either an accommodation or discrimination claim under the ADA requires Plaintiff to prove that he is in fact “disabled” under the Act. In order to qualify as disabled for purposes of the ADA, Plaintiff must show that his condition “substantially limits” one or more of his “major life activities.” In its answer, Defendant specifically denied that Plaintiff was disabled and pointed out that Plaintiff “did not allege how he was disabled within the meaning- of the ADA,” and “did not allege any impairment whatsoever that substantially limits one or more major life activities.” (Doc. 20 at ¶ 52). For the same reason, Defendant now contends that Plaintiffs claims should be dismissеd under Rule 12(c).
Defendant argues in the alternative that uncontested evidence demonstrates that Plaintiffs condition does not impact his life activities. In fact, in his deposition, Plaintiff testified that his condition limits no life activities, including work activities. (Doc. 23 at PagelD 103, Day Depo. at 51-53). The undersigned agrees that Plaintiffs own testimony potentially provides
Plaintiff argues in his response that his complaint identifies “the limitations” that his obstructive bowel syndrome causes him. In ¶ 14 of his complaint, Plaintiff alleges that he “suffered episodic pain as a result of his disability having worsened; thereafter he sought an accommodation for excused absences in accordance with his physician’s request which were granted during his first year ...” (Doc. 1 at ¶ 14). In his response to Defendant’s motion, Plaintiff more expansively argues that his “episodic pain ... substantially limits Plaintiffs ability to work,” creating a “material question of fact.” (Doc. 26 at 7-8). However, at least arguably, Plaintiff cannot create an issue of fact by denying his own deposition testimony.
On the other hand, and while not cited by the Plaintiff, substantial authority exists that the functioning of the bowels should be considered to be a major life activity. In fact, relevant regulations specifically include bowel and bladder functions as major life activities. See 29 C.F.R. § 1630.2(i)(l)(i)-(ii); see also generally Workman v. Frito-Lay, Inc.,
4. Plaintiff was not “qualified” under the Act
The second element of Plaintiffs ADA claims requires him to show that he was “otherwise qualified” for the position. The central issue of this case is whether Plaintiffs absenteeism rendered him “unqualified” to continue in the apprenticeship program. Plaintiff argues that “no presumption should еxist that uninterrupted attendance is an essential job requirement, and ... that a medical leave of absence can constitute a reasonable accommodation under appropriate circumstances.” Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
However, Defendant persuasively argues that Cehrs is distinguishable, and that Plaintiffs excessive absenteeism alone demonstrates that he is not a “qualified” individual for the apprenticeship program under the Act. Cehrs involved an employee who “had not required an extended medical leave during the last eight years.” The plaintiff presented proof that her employer “routinely” granted medical leave to other employees, suggesting that her request was “reasonable” and would not have unduly burdened the employer. Id. at 783. Defendant points out that in other cases, the Sixth Circuit has held that “[a]n employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.” Gantt v. Wilson Sporting Goods Co.,
Here, the Defendant made abundantly clear that regular classroom attendance was required as an essential element of the apprenticeship program. The Defendant’s absenteeism policies specifically articulated the attendance requirements and likelihood of dismissal from the program if those requirements were not met. The Defendant required Plaintiff to appear be
In his response, Plaintiff argues, without citation to the record, that the Defendant granted him a reasonable accommodation by excusing his excessive absences his first year, but then “denied Plaintiff the same reasonable accommodations in the second year based on its new Absentee Policy starting from September 12, 2011.” (Doc. 26 at 9). In contrast to Plaintiffs unsupported argument, the record demonstrates that when Plaintiff was called before the Committee after his first year to explain his excessive absences, Plaintiff affirmatively represented that he required no accommodation by stating in writing: “I have NO physical restrictions or limitations that would prevent me from performing the assigned duties of my job.” (Doc. 24 at PagelD 193; Doc. 24-6 at PagelD 267; 25-2 at PagelD 317-18). None of the statements that he expressed in his letter to the Committee when he was first asked to explain his absences changed during his entire apprenticeship. (Id.) Defendant has offered additional evidence that during the meeting, Plaintiff promised to be more vigilant regarding his attendance at classes and specifically stated he needed no reasonable accommodation from Defendant. (Napier Decl. at ¶¶ 28-30). Plaintiff testified that no member of the Butler JATC ever said that the Committee was excusing any of his absences as a reasonable accommodation. (Doc. 24 at PagelD 189, Depo. at 127-128).
When Plaintiff was called before the Committee a second time in 2012 to explain his continued violations of the now-even-more-stringent absenteeism policy (amended September 2011), Plaintiff claimed that just two of his five absences were attributable to his alleged “disability.” By accumulating five absences from class during his second year, Plaintiff clearly violated the Defendant’s written policy. (Ex. 3, Napier Decl. ¶ 4). Plaintiff also violated the policy by failing to report the reason of any of his absences prior to the next class as required under the Statement of Policy. (Doc. 25-2 at PagelD 306, 309, Napier Decl. at ¶¶ 22, 32, 34). Plaintiff did not have a long history of consistent attendance like the plaintiff in Cehrs. When he was dismissed from the apprenticeship program for excessive absenteeism in March 2012, Plaintiff was still in his probationary period, having failed to complete 2000 hours of on-the-job training.
In his response, Plaintiff seems to argue that attendance at class was not an “essential” qualification because he allegedly
Plaintiff also contends that he has a claim of disparate treatment based upon the allegation in his complaint that Defendant “allowed accommodations for other employees who performed duties as apprentice electricians.” (Doc. 26 at 11). Other than pointing to the single and con-elusory allegation in his complaint, Plaintiff has offered no evidence that any other employee was treated differently under the absenteeism policy, much less a similarly situated employee. Defendant has specifically denied Plаintiffs unsupported allegation through affidavit. (Ex. 3, 2d Napier Decl. ¶ 7). Plaintiff not only has failed to offer any evidence to show that an issue of fact exists, but he testified at his deposition that he could not identify a single apprentice treated differently. (Doc. 23 at PagelD 106, Day Dep. 64).
The undersigned has concluded that Defendant is entitled to judgment as a matter of law based upon Plaintiffs failure to prove his prima facie case on either claim. Even if Plaintiff had cited record evidence to support a prima facie case on his termination claim, the Defendant still would be entitled to judgment because it has offered a legitimate non-discriminatory reаson for its actions (Plaintiffs excessive absenteeism in violation of its policy), and Plaintiff failed to offer any- evidence that Defendant’s reason was pretextual.
5. Construed Amendment to Assert FMLA Claim
In his response to Defendant’s motion for summary judgment, Plaintiff asserts that he sought FMLA leave based on his physician’s instructions, citing his complaint (Doc. 1 at ¶ 17). He argues that “Defendant failed to respond” to his alleged FMLA request (Doc. 26 at 11), and that “Defendant discriminated [against] Plaintiff by not granting leave under [the] FMLA.” (Doc. 26 at 11). However, Plaintiffs complaint does not set forth any claim under the FMLA, and it is far too late in the game to amend his complaint to assert a new Family Medical Leave Act claim at this time. See Renner,
Should any reviewing court disagree, the undersigned alternatively would find that Defendant is entitled to summary judgment on any such claim, because he has failed to present evidence on the essential elements of an FMLA claim. Plaintiffs failure of proof includes, but is not limited to, evidence that Butler JATC employed fifty or more employees, and that Plaintiff was employed by Defendant for 1,250 hours over any twelve-month pe-' riod. (See, contra. Doc. 28-1, 2d Napier Decl. at ¶ 5).
III. Conclusion and Recommendation
For the reasons stated, IT IS RECOMMENDED THAT Defendant’s motion for summary judgment (Doc. 25) be GRANTED, that Defendant’s alternative motion
NOTICE
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to this Report and Recommendation (“R & R”) within FOURTEEN (14) DAYS of the filing date of this R & R. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R & R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent’s objections within FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
Notes
. In response to a motion to summary judgment, Judge Dlott’s standing order (as well as that of the undersigned) requires the opposing party to formally identify, in writing, with appropriate citation to evidence of record, any "proposed undisputed facts” that is disputed. Plaintiff’s failure to do so technically waives any objection. See, e.g., Potter v. District of Columbia,
. The EEOC letter explained that the investigator intended to recommend dismissal of the charge based on evidence that Plaintiff was terminated for absenteeism, and the absence of any "evidence that you requested a reasonable accommodation.” (Doc. 24-14). The EEOC subsequently dismissed the charge and issued Plaintiff Notice of his Right to Sue.
. Given Plaintiff's focus on the alleged "employment” relationship, it is unclear to the undersigned whether Plaintiff is making the second, distinct argument.