UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID C. JOHNSON, 

Plaintiff, Case No. 2:12-cv-100

JUDGE GREGORY L. FROST

v. Magistrate Judge Norah McCann King

CITY OF PATASKALA,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of a motion for summary judgment

(ECF No. 19) filed by Defendant, the City of Pataskala (“Pataskala” or “the City”), a

memorandum in opposition (ECF No. 22) filed by Plaintiff, David C. Johnson, and a reply

memorandum (ECF No. 23) filed by Pataskala. For the reasons set forth below, the Court

GRANTS Pataskala’s motion for summary judgment. 

I. Background

Plaintiff, David C. Johnson, began working for Defendant, the City of Pataskala, in 2004. 

Johnson was eventually promoted to the position of Maintenance Utility Superintendent, a

position that included management of water plant maintenance, the supervision of other

employees, and preparing Operating Reports for the Ohio Environmental Protection Agency

(“Ohio EPA”). One of the requirement for Johnson’s position was that he hold a valid Ohio

EPA Class II Water Management Certification, which would enable him to submit monthly

operational reports for the City’s water plant that the Ohio EPA requires. Johnson held this

certification when he was hired and when he was promoted.

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In October and November 2010, the Ohio EPA notified Pataskala that the City had failed

to timely submit its operational reports. Pataskala City Administrator therefore counseled

Johnson during a December 13, 2010 performance assessment that Johnson needed to improve

the Ohio EPA reporting. In February and March 2011, however, Pataskala against received

notification of failure to timely submit the operating reports and to either issue a consumer notice

or provide information to the Ohio EPA that such a notice had been issued. In April 2011,

Boland placed a Memorandum into Johnson’s file related to Johnson’s failure to fulfill these job

duties. No improvement followed, and Johnson in fact eventually stopped submitting the reports

to the Ohio EPA.

Pataskala then received notice from the Ohio EPA in May 2011 that Johnson had allowed

his Class II Water Management Certification to lapse. One of the employees whom Johnson

supervised, Eric Winkler, had similarly allowed his Class I Certification to lapse. Johnson failed

to act to renew his own certification and failed to discipline or ensure that Winkler kept his

certification current.

In a May 19, 2011 letter, the Law Director for the City notified Johnson that he would be

placed on paid administrative leave as of May 23, 2011. Pataskala then held a pre-disciplinary

meeting on May 26, 2011, at which Johnson took full responsibility for failing to renew his Ohio

EPA certification. After Johnson declined the invitation to submit his resignation, the City

terminated his employment effective June 11, 2011.

After obtaining permission to sue from the Equal Employment Opportunity Commission

in January 2012, Johnson filed the instant action on February 1, 2012. In a two-count complaint

he asserts federal and state claims for disability discrimination related to his alcoholism. (ECF

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No. 1.) The City has filed a motion for summary judgment on all of Johnson’s claims, which is

ripe for disposition. (ECF No. 19.) 

II. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis 

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In his first claim, Johnson asserts disability discrimination in violation of Ohio Revised

Code 4112, while in his second claim, he asserts disability discrimination under the Americans

with Disabilities Act (“ADA”). Neither party argues here that an action for disability

discrimination under Ohio law entails a different legal analysis than that for disability

discrimination under the ADA. Thus, “because Ohio case law tends to suggest that it entails the

same legal analysis as that under the ADA, [this Court] will analyze plaintiff’s state and federal

discrimination claims . . . solely under the ADA.” Brenneman v. MedCentral Health Sys., 366

F.3d 412, 418 (6th Cir. 2004); Plant v. Morton Int’l, Inc., 212 F.3d 929, 936 (6th Cir. 2000)

(noting that Ohio case law seems to support the proposition that the ADA analysis applies to an

Ohio claim of disability discrimination). The Sixth Circuit has employed such an analytic

approach in disability discrimination litigation involving similar federal and state claims. See

Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012). 

The ADA prohibits discrimination against a “qualified individual on the basis of

disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To

establish a prima facie showing of disability-based discrimination under the ADA, a plaintiff

must establish:

1) that he or she is disabled; 2) is otherwise qualified for the job, with or without

“reasonable” accommodation; 3) suffered an adverse employment decision; 4) the

employer knew or had reason to know of his or her disability; and 5) after rejection

or termination, the position remained open or the individual was replaced. 

Leeper v. Verizon Wireless, No. 2:08-cv-0727, 2009 WL 5062097, at *3-4 (S.D. Ohio Dec. 16,

2009) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996) (internal

citations omitted)). Pataskala argues that it is entitled to summary judgment because Johnson

cannot make a prima facie showing. 

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There is no dispute over the first element. The ADA defines disability, with respect to an

individual, as a physical or mental impairment that substantially limits one or more major life

activities of such individual, a record of such an impairment, or being regarded as having such an

impairment. 42 U.S.C. § 12102(1)(A)-(C). Pataskala concedes that the fact that Johnson is an

alcoholic and that this condition meets the ADA definition of a disability. Therefore, for

purposes of this Opinion and Order, the Court assumes arguendo that Johnson is considered

disabled under the ADA.

Also not in dispute is the third element, which is whether Johnson suffered an adverse

employment action, the fourth element, which is whether Pataskala knew of Johnson’s

alcoholism, and the fifth element, which is whether Johnson was replaced after his termination. 

For purposes of its motion only, the City essentially concedes these points while maintaining that

Johnson’s termination was wholly unrelated to his disability.

The second element, whether Johnson is a qualified individual under the ADA, is in

dispute. That statutory scheme defines a “qualified” individual as 

[a]n individual who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such individual holds or desires.

For the purposes of this subchapter, consideration shall be given to the employer’s

judgment as to what functions of a job are essential, and if an employer has prepared

a written description before advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential functions of the job.

42 U.S.C. § 12111(8). Thus, Johnson can be considered “otherwise qualified” to be a

Maintenance Utility Superintendent only if he is able to perform the essential functions of that

position.

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The City argues that, regardless of any accommodation, Johnson was not otherwise

qualified because he lacked the requisite Ohio EPA certification necessary to hold his position

and fulfill its essential duties. Evidence in the record supports this proposition. 

Johnson’s job required the certification. A copy of the Maintenance Utility

Superintendent job description that Johnson had signed thus provides that possessing “all

relevant EPA certificates regarding treatment facilities” was a minimum requirement for entry to

the position. (ECF No. 18-1, at Page ID # 182.) Additionally, Johnson states in his deposition

that such certification was a requirement for applying for the Maintenance Utility Superintendent

position and that, in order for him to obtain the position, he had to confirm with Pataskala that he

held the Ohio EPA certification. (ECF No. 18-1, at Page ID # 163.) When asked whether he

understood that maintaining the certification was an ongoing job requirement, however, Johnson

responded, “I guess it wasn’t in the forefront of my mind.” (Id.) He subsequently testified that

he assumed that he had to keep his certification up to date. (Id. at Page ID # 166.)

This assumption was correct. Holding the required certification is a requirement for

submitting reports to the Ohio EPA. See Ohio Admin. Code 3745-7-02(A). Because Johnson’s

certification had lapsed–and despite the fact he was still within a period permitting renewal when

terminated–Johnson was unable to function as the operator of record of a public water system

and could not perform those activities requiring certification. See Ohio Admin. Code 3745-7-

15(D)(9) & (I). Johnson’s lack of certification therefore defeats his being regarded as a qualified

individual. 

The instant case is thus similar to Kinneary v. City of New York, a case in which the

Second Circuit Court held that a sludge boat captain whose captain’s license had expired was not

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an “otherwise qualified” individual and therefore could not make a claim under the ADA. 601

F.3d 151, 157 (2d Cir. 2010). Federal regulations subjected Kinneary, a captain employed by the

city Department of Environmental Protection, to random drug testing. Id. at 152-53. During a

drug test in 2001, he could not provide a sample within the time limit despite “drinking water

like crazy.” Id. The Coast Guard filed a complaint against Kinneary alleging that he refused to

submit to the drug test, and his license was suspended. Id. at 154. The Department of

Environmental Protection fired him for not possessing the requisite captain’s license. Id. at 155.

Kinneary filed suit under the ADA claiming that he was fired as a result of paruresis (shy

bladder syndrome). Id. at 153. The Second Circuit held that because Kinneary could not act as a

captain without his captain’s license, he could not perform an essential function of his job. Id. at

156. Because Kinneary could not perform an essential function of his job, he was not considered

a qualified individual and could not make a claim under the ADA. Id. at 157. The Sixth Circuit

has endorsed this analysis in disability discrimination claims in which credentialing, or holding a

license or certification, is a requirement of a plaintiff’s position. See Rosebrough v. Buckeye

Valley High Sch., 690 F.3d at 432.

Similar to the Kinneary scenario, this case involves the failure to hold a required

certification precluding a plaintiff from meeting the elements of his claims. An essential part of

being Maintenance Utility Superintendent is submitting the Ohio EPA reports, which in turn

requires holding the requisite certification. Johnson was unable to submit the reports because he

had let his certification expire. Therefore, Johnson could not perform an essential function of his

position and was consequently not a qualified individual under the ADA or analogous state law. 

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Johnson disagrees. He argues that he was able to perform the essential functions of his

job and asserts that the City does not terminate employees without his disability for the reason it

terminated him. Neither contention precludes summary judgment here.

The evidence before this Court establishes Johnson’s alcoholism, his ongoing efforts to

battle that condition while employed with Pataskala, and his apparently obtaining sobriety in

April 2011. It also establishes that Johnson let his certification lapse during that time. He

asserts, however, that this did not mean that he was not otherwise qualified for his job, with or

without an accommodation. Johnson reaches this position by arguing that the renewal of his

certification was not an essential job requirement and that, even if it were, he should have been

permitted to continue in his job with the accommodation that the City give him additional time in

which to renew his certification.

This Court disagrees with the suggestion that holding a valid certification was not an

essential component of Johnson’s job. He concedes that the lack of a valid certification meant

that he could not sign off on reports as the operator of record, but Johnson then dismisses that

fact by asserting that other individuals could and did sign off on the reports. His theory is that

the filing of reports was part of his job but not the point of his job. In other words, Johnson

argues that his inability to fulfill his duties does not mean that he could not do his job because

other individuals could have performed his duties for him. 

But as the City correctly points out, a qualified individual must satisfy any requisite jobrelated requirements and be able to perform his or her essential job functions, with or without an

accommodation. See 29 C.F.R. § 1630.2(m) (“The term ‘qualified,’ with respect to an individual

with a disability, means that the individual satisfies the requisite skill, experience, education and

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other job-related requirements of the employment position such individual holds or desires and,

with or without reasonable accommodation, can perform the essential functions of such

position.”). These are two requirements. Johnson failed to meet the first requirement (satisfying

the requisite skill, experience, education and other job-related requirements of the employment

position), regardless of whether signing off on and filing reports was an essential job function.

The fact that another individual later became qualified to do what Johnson could not or

that an individual was able to fill in for Johnson during his extended absences for treatment and

after his certification expired does not invalidate the certification requirements of his job or what

Johnson’s job entailed. His attempt at shifting the focus only to what he can attempt to explain

away is therefore unpersuasive. It is also unusual, as Pataskala suggests, that Johnson’s

“assertion that he could simply rely on his subordinates to fulfill his own Certification

requirements is a silly notion to [the City]. [Johnson] himself was required to maintain all

relevant Certifications–it would seem counterintuitive to require a subordinate to meet higher

qualifications than a supervisor.” (ECF No. 23, at Page ID # 616.)

Equally unpersuasive is Johnson’s argument that the City should have provided him with

an accommodation such as extending the time in which he could renew his certification

following his completion of treatment for alcoholism. Johnson never requested such an

accommodation until after his certification had lapsed, after he fell below the minimum criteria

to hold his position, after he was unable to fulfill an essential function of his job, and after he

was in the disciplinary process. Johnson thus wanted an accommodation after he was already

not “otherwise qualified” to hold his position. 

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Finally, Johnson cannot evade summary judgment by asserting that other individuals who

lacked his disability were treated differently for the same conduct for which he was terminated. 

His reliance on the fact that one of his subordinates lacked a certification and that the City did

not terminate that employee but imposed lesser discipline is unpersuasive because that individual

was not an operator of record when his certification lapsed. This distinguishes that employee

from Johnson, as does the fact that the subordinate employee had informed his supervisor of the

certification lapse, whereas Johnson hid his lapse until the City brought it to his attention. 

Similarly, the fact that Johnson’s supervisor was not disciplined for Johnson’s failure to maintain

certification does not point to disability discrimination. Johnson knew his subordinate lacked

certification and did nothing. Johnson’s supervisor learned that Johnson lacked certification and

held disciplinary proceedings that resulted in Johnson’s termination. Different circumstances

produced different treatment, which undercuts the vitality of Johnson’s premise.

No reasonable juror could infer from the evidence, even as construed in Johnson’s favor,

that Pataskala engaged in conduct amounting to disability discrimination. Johnson has failed to

point to a cause and effect in which any action by the City could reasonably be construed as

discriminating against him. He has failed to present a prima facie case for his discrimination

claims, and even if it is assumed he has and burden shifting would become applicable, the City

has presented a legitimate, non-discriminatory rationale for its decision to terminate his

employment that Johnson fails to puncture. Pataskala is therefore entitled to summary judgment.

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III. Conclusion

For the foregoing reasons, this Court GRANTS Pataskala’s motion for summary

judgment. (ECF No. 19.) The Clerk shall enter judgment accordingly and terminate this case

upon the docket records of the United States District Court for the Southern District of Ohio,

Eastern Division, at Columbus.

IT IS SO ORDERED.

/s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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