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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joe Allman, 

Plaintiff, : Case No. 2:18-cv-369

v. Judge Sarah D. Morrison

: Chief Magistrate Judge Elizabeth P. Deavers

Walmart Inc.,

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF No. 

35.) Plaintiff filed a Memorandum in Opposition to the Motion (ECF No. 42), and Defendant 

filed a Reply (ECF No. 43). The matter is now ripe for decision.

I. BACKGROUND AND STATEMENT OF THE FACTS

Federal law requires that individuals who drive commercial motor vehicles must be 

“medically certified as physically qualified to do so . . . .” 49 C.F.R. § 391.41(a)(1)(i) (2019). A 

person is not “physically qualified” if he or she has an “established medical history or clinical 

diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a 

commercial motor vehicle safely . . . .” Id. § 391.41(b)(5). Sleep apnea can be one such 

“respiratory dysfunction.” Id. Pt. 391, App. A (E)(3).

In order for a driver to be “medically certified” he or she must have a medical 

examination. Id. § 391.41(a)(3). This medical examination generally must be conducted by a 

medical examiner listed on the National Registry of Certified Medical Examiners (the 

“Registry”). Id. § 391.43(a). The medical examiners on this Registry must meet specific 

requirements—for example, they must “[b]e knowledgeable of the specific physical and mental 
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demands associated with operating a commercial motor vehicle” and of the surrounding 

regulatory requirements. Id. § 391.43(c). If during a driver’s medical examination a “medical 

examiner detects a respiratory dysfunction[] that in any way is likely to interfere with the 

driver’s ability to safely control and drive a commercial motor vehicle, the driver must be 

referred to a specialist for further evaluation and therapy.” Id. Pt. 391, App. A (E)(3).

Turning to the facts of the case at bar, Plaintiff Joe Allman began working as a truck 

driver for Defendant Walmart Inc. (“Walmart”) in October 2006. (Joe Allman Dep., 9:12–13, 

13:1–4, ECF No. 33.) In this position, Mr. Allman was required to have an annual medical exam

according to the regulatory scheme outlined above. (Id. 24:2–11.)

In 2013, Walmart instituted a sleep apnea policy through which Walmart would pay for 

sleep apnea screening and any necessary medical equipment for its truck drivers. (Id. 21:16–19, 

23:4–24:1.) This program was overseen by a company called SleepSafe Drivers (“SleepSafe”). 

(Id. 30:10–17.)

Around the time that this policy was instituted, Mr. Allman went for his 2013 medical 

exam and was examined by a physician’s assistant, David Burton. (Id. 25:11–16, 27:15–24.) Mr. 

Allman filled out a form in conjunction with this exam, and in response to the question of 

whether he had any “[s]leep disorders, pauses in breathing while asleep, daytime sleepiness, [or] 

loud snoring,” he answered “yes.” (Id. 26:3–10; ECF No. 33-1, at 9.) Based on the answer to this 

question, as well as Mr. Allman’s body mass index and neck circumference, Mr. Burton referred 

Mr. Allman for a sleep study to be tested for sleep apnea. (Id. 28:12–29:6.)

Mr. Allman subsequently underwent a sleep study conducted by Advanced Home 

Medical (“AHM”), a company that contracts with SleepSafe. (Id. 30:18–22; James Murphy Dep. 

63:14–16, ECF No. 34.) After this initial sleep study, AHM diagnosed Mr. Allman with sleep
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apnea and gave him a Continuous Positive Airway Pressure (“CPAP”) machine. (Allman Dep.

29:24–30:14, 32:18–20; ECF No. 33-1, at 20.) AHM instructed Mr. Allman to wear the machine 

for four hours per night when sleeping in his truck. (Allman Dep. 32:21–33:10.) This aligns with 

Walmart’s policy, which required Mr. Allman to use the machine for four hours per night for 

seventy percent of his sleeping nights. (Murphy Dep. 38:10–39:4.)

Mr. Allman tried using the CPAP machine, but he found the air pressure to be too high. 

(Allman Dep. 33:14–16, 41:4–15.) The machine interfered with his sleep and caused him to 

suffer adverse symptoms, such as severe headaches, nosebleeds, and dry mouth. (Id. 42:12–16.) 

Mr. Allman complained about the difficulties he was having to his supervisor, John Coburn; 

another Walmart manager, Jesse Judge; and to Sean Knight, a SleepSafe employee. (Id. 41:23–

42:2, 44:18–45:14, 57:17–58:4; Murphy Dep. 18:1–3.) Walmart told Mr. Allman that if he did 

not use the CPAP machine as he was instructed, he would not be permitted to drive. (Allman 

Dep. 33:1–7.)

Eventually, Walmart deemed Mr. Allman to be out of compliance with these instructions 

and told him that he would be suspended if he did not use his CPAP machine as instructed. (Id.

41:7–11.) The first time Mr. Allman was suspended for noncompliance, he was told that he 

needed to use the CPAP machine for five days in a row to drive again. (Id. 46:7–19.) He 

complied, and he was able to return to work. (Id. 46:14–22.) However, while Mr. Allman tried to 

use the machine, he repeatedly failed to meet Walmart’s requirements. (Id. 54:16–19.)

In February 2014, Mr. Allman underwent another sleep study, this time of his own 

accord, at Adena Hospital, and the doctor performing the study told Mr. Allman that he did not 

have sleep apnea. (Id. 60:2–21.) After receiving these test results on February 26, 2014, Mr. 

Allman permanently stopped wearing the CPAP machine. (Id. 61:4–6, 62:13–15.) Mr. Allman 
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subsequently provided the results of this test to Walmart. (Id. 61:7–9.) In response, James 

Murphy, Walmart’s Operations Safety Manager, contacted Mr. Allman and told him that 

Walmart wanted Mr. Allman to undergo another sleep study. (Id. 62:16–23.) Mr. Allman claims 

that Walmart disputed whether the doctor who performed the test at Adena Hospital was “board 

certified.” (Id. 65:6–14.) Mr. Allman insists that his doctor was board certified in sleep medicine. 

(Id. 65:21–66:9.) Walmart agrees that it questioned the validity of the test results but claims to 

have requested another sleep study not because it disputed the results necessarily but because the 

results conflicted with AHM’s findings. (Murphy Dep. 69:21–70:19.)

On March 7, 2014, Mr. Allman went for another SleepSafe sleep study, after which 

SleepSafe representatives concluded again that Mr. Allman had sleep apnea and told him that he 

would need to wear the CPAP machine every night for eight hours per night. (Allman Dep. 79:3–

5, 80:18–81:2; ECF No. 33-1, at 40.) Mr. Murphy subsequently told Mr. Allman that he would 

need to wear the CPAP for three consecutive nights before he could return to work and that he 

needed to take another sleep apnea test on account of the mixed results. (Allman Dep. 87:9–23, 

88:11–24.) Mr. Allman did not comply with these instructions. (Id. 90:7–10.)

On April 2, 2014, Mr. Allman reported to his work location, but Mr. Coburn told him that 

he was not permitted to work because he had not worn his CPAP machine as instructed. (Id.

91:15–92:10.) Mr. Allman then returned his CPAP machine to Walmart because he did not 

believe he had sleep apnea and therefore did not need the CPAP machine. (Id. 92:15–93:24.) In 

doing so, Mr. Allman knew that he would not be permitted to return to work because Walmart 

believed that he did have sleep apnea and was insisting on him using the CPAP machine. (Id.

93:19–24; ECF No. 33-1, at 45.) After turning in the CPAP machine, Mr. Allman removed his 
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personal items from work and left behind his uniform. (ECF No. 33-1, at 45.) This was the last 

day that Mr. Allman reported for work. (Allman Dep. 96:20–97:2.)

Over the next two weeks, Mr. Allman had three conversations with John Coburn. (Id.

95:11–96:14.) During one of these conversations, Mr. Coburn told Mr. Allman that he had seven 

days to take the conflicting reports from his February 2014 and March 2014 sleep studies to a 

third-party doctor designated by Walmart. (Id. 97:22–98:22.) It was expected that this doctor 

would examine these conflicting reports and determine which report should be credited—that is, 

determine whether Mr. Allman had sleep apnea. (Id. 98:2–6, 100:21–101:1; ECF No. 33-1, at 

46.) Mr. Allman was aware that he would be fired if he did not follow these instructions. 

(Allman Dep. 101:2–14.) Nevertheless, he refused to comply, and on April 21, 2014, Mr. Allman 

resigned his position. (Id. 101:23–24, 105:5–8.)

Mr. Allman does not believe that Walmart was trying to get him to quit or to prevent him 

from working. (Id. 108:13–24.) Rather, Mr. Allman acknowledges that Walmart was convinced 

that he had sleep apnea, a conclusion with which he vehemently disagreed. (Id. 93:22–24.)

On July 17, 2018, Mr. Allman filed an Amended Complaint against Walmart, alleging 

disability discrimination (Count One), retaliation (Count Two), and wrongful termination (Count 

Three) in violation of Ohio public policy. (Amended Compl., ECF No. 11.) On February 11, 

2019, this Court granted Walmart’s motion to dismiss Count Three. (ECF No. 31.) 

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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 

movant has the burden of establishing there are no genuine issues of material fact, which may be 

achieved by demonstrating the nonmoving party lacks evidence to support an essential element 
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of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, 

Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir.1993). The burden then shifts to the 

nonmoving party to “‘set forth specific facts showing that there is a genuine issue for trial.’” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56). When 

evaluating a motion for summary judgment, the evidence must be viewed in the light most 

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970).

A genuine issue exists if the nonmoving party can present “significant probative 

evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” 

Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir. 1993). In other words, “summary 

judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for 

the nonmoving party.” Anderson, 477 U.S. at 248; accord Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when 

the evidence could not lead the trier of fact to find for the non-moving party). 

III. ANALYSIS

Walmart has moved for summary judgment on both Counts One and Two. (ECF No. 35.) 

However, after Walmart filed its motion, Mr. Allman voluntarily dismissed Count One. (ECF 

No. 40.) Accordingly, Walmart’s Motion for Summary Judgment as to Count One is DENIED

as moot.

Turning to Count Two, Mr. Allman has brought a claim of disability retaliation under 

state law. Ohio Rev. Code Ann. § 4112.02(I) (West 2019). To make out a prima facie case of 

disability retaliation, a plaintiff must prove that he engaged in protected activity, he suffered an 

adverse employment action, and there is a causal link between the protected activity and the 

adverse employment action. Johnson v. Univ. Hosps. Physician Servs., 617 F. App’x 487, 492 
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(6th Cir. 2015). Once the plaintiff has established a prima facie case, the burden shifts to the 

defendant to produce evidence of a legitimate nondiscriminatory reason for termination. Id. If the 

defendant satisfies that burden, the plaintiff must prove that the defendant’s proffered 

explanation is pretextual. Id.

The Court begins with the first element of the prima facie case—protected activity. 

Ohio’s anti-retaliation statute mirrors the Title VII retaliation statute. Compare Ohio Rev. Code 

Ann. § 4112.02(I) (“It shall be an unlawful discriminatory practice . . . [f]or any person to 

discriminate in any manner against any other person because that person has opposed any 

unlawful discriminatory practice defined in this section or because that person has made a 

charge, testified, assisted, or participated in any manner in any investigation, proceeding, or 

hearing . . . .”), with 42 U.S.C. § 2000e-3(a) (2018) (“It shall be an unlawful employment 

practice for an employer to discriminate against any of his employees . . . because he has 

opposed any practice made an unlawful employment practice by this subchapter, or because he 

has made a charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or hearing under this subchapter.”). Accordingly, retaliation claims under Ohio law 

are analyzed the same way as under federal law. Mengelkamp v. Lake Metro. Hous. Auth., 549 F. 

App’x 323, 329–30 (6th Cir. 2013).

The Ohio retaliation statute (like Title VII) contains what is known as a “participation

clause” and a “opposition clause.” Id. at 330. Mr. Allman never alleges that he engaged in any 

conduct falling within the participation clause (i.e., that he made any formal charges of 

discrimination or participated in any investigation). As a result, his claim can only fall within the 

confines of the opposition clause.
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The scope of the opposition clause is narrower than the scope of the participation clause. 

Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (“[F]ederal 

courts have generally granted less protection for opposition than for participation in enforcement 

proceedings.”). “‘[T]he opposition clause does not protect all opposition activity.’” Id. (quoting 

Holden v. Owens-Illinois, Inc., 793 F.2d 745, 751 (6th Cir. 1986)). An employee’s activity is 

protected by the opposition clause if he has “‘opposed any unlawful discriminatory practice.’” 

Mengelkamp, 549 F. App’x at 330 (quoting Ohio Rev. Code Ann. § 4112.02(I)). “An employee 

is not protected when he violates legitimate rules and orders of his employer, disrupts the 

employment environment, or interferes with the attainment of his employer’s goals.” Booker, 

879 F.2d at 1312. In opposing an apparently discriminatory practice, the employee must “have a 

good faith belief that the practice is unlawful.” Id. at 1312–13.

Under the opposition clause, the term “oppose” carries its ordinary meaning. Crawford v. 

Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009). It means, for example, to 

resist or antagonize. Id. Mr. Allman has established that he complained about Walmart’s sleep 

apnea policy—at least as it was applied to him—and the Court assumes that this constitutes 

sufficient “opposition” to fall within the opposition clause.

As for the second component of the clause, the conduct that the plaintiff is opposing must 

be conduct that the plaintiff reasonably believes, in good faith, to be unlawful. Braun v. Ultimate 

Jetcharters, LLC, 828 F.3d 501, 512 (6th Cir. 2016). The relevant question is not whether the 

policy necessarily is unlawful. Id. The plaintiff “must ‘actually believe that the conduct 

complained of constituted a violation of relevant law’ and ‘a reasonable person in the same 

factual circumstances with the same training and experience as the aggrieved employee’ would 

believe that the conduct complained of was unlawful.” Yazdian v. ConMed Endoscopic Techs., 
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Inc., 793 F.3d 634, 646 (6th Cir. 2015) (quoting Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 

797, 811 (6th Cir. 2015)).

Mr. Allman argues that his complaints about his forced use of the CPAP machine 

constitute protected activity because of an employee’s right to refuse a disability accommodation 

under § 12201(d) of the Americans with Disabilities Act (“ADA”). However, Mr. Allman has 

presented no evidence that he “actually believed” that Walmart’s insistence that he use the CPAP 

machine violated the ADA.

Indeed, Mr. Allman has presented zero evidence that he ever told Walmart that he 

thought its policy was unlawful, or that he ever even alleged that Walmart’s policy was 

discriminatory. (Allman Dep. 21:2–7.) Mr. Allman only ever complained that he should not be 

required to use the machine because he did not believe he had sleep apnea and because the 

machine caused him to suffer adverse side effects. This does not demonstrate that Mr. Allman 

acted under a good faith belief that Walmart’s sleep apnea policy was unlawful. Instead, Mr. 

Allman’s argument smacks of ex post facto rationalization. The record evidence shows that Mr. 

Allman never complained that he had a right to refuse the CPAP machine under the ADA until 

the commencement of this litigation.

Mr. Allman’s conduct makes quite clear that he did not believe that the practice was 

unlawful but rather he only disputed whether it applied to him. Mr. Allman’s obstreperous 

refusal to use the CPAP machine stemmed only from his insistence that he did not have sleep 

apnea and his disdain for the machine. This is evidenced by Mr. Allman’s refusal to cooperate 

with Walmart’s requests after receiving the diagnosis from Adena Hospital that he did not have 

sleep apnea. Mr. Allman’s stubborn insistence that his doctors were right and the doctors hired 

by Walmart were wrong does not demonstrate that he acted in good faith. This is particularly so 
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when Walmart gave Mr. Allman a chance to go to another doctor to reconcile the conflicting 

medical reports, and Mr. Allman flat-out refused. This is evidence of insubordination, not 

protected opposition.

Even assuming that Mr. Allman had a good-faith belief that Walmart’s policy violated 

§ 12201(d) of the ADA and that his conduct constituted protected activity, his argument under 

§ 12201(d) still fails to demonstrate the causal link between the protected activity and the 

adverse employment action. To prove a causal link, the plaintiff must prove that “but for” his 

protected activity Walmart would not have taken the alleged adverse employment action. See 

Equal Emp’t Opportunity Comm’n v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015).

Mr. Allman argues that because Walmart’s sleep apnea policy was itself discriminatory 

under § 12201(d), Walmart cannot rely on the policy as a reason for disciplining him or 

threatening his termination. (Def. Resp. to Mot., at 22, ECF No. 42.) This argument ignores one 

of the regulations associated with § 12201(d), which specifically says that if an “individual 

rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to 

enable the individual to perform the essential functions of the position held or desired, and 

cannot, as a result of that rejection, perform the essential functions of the position, the individual 

will not be considered qualified.” 29 C.F.R. § 1630.9(d) (2019).

Because Mr. Allman had a clinical diagnosis of sleep apnea, federal regulations deemed 

him not “physically qualified” to operate a commercial motor vehicle. Regardless of whether Mr. 

Allman took another test resulting in a diagnosis that he did not have sleep apnea1

, based on the 

uncontested facts, it was reasonable for Walmart to take the steps that it did to ensure its 

 1 Mr. Allman presents no evidence that this test would qualify under federal law, because federal 

regulations require that the medical examination be conducted by a medical examiner listed on the Registry. Mr. 

Allman has not presented any evidence that the doctor who conducted this test is listed on this Registry.
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compliance with the federal regulations surrounding the qualifications of commercial drivers. 

See Butler v. Wash. Metro. Area Transit Auth., 275 F. Supp. 3d 70, 82 (D.D.C. 2017) (holding 

that defendant’s sleep apnea policy struck “an eminently reasonable balance between the 

individual interests of employees with disabilities and the safety standards” required by federal 

law); cf. Pena v. City of Flushing, 651 F. App’x 415, 421 (6th Cir. 2016) (“‘The ADA is a shield 

against discrimination on the basis of disability; it is not a sword enabling employees who are 

not, in fact, substantially limited in any major life activity to refuse reasonable requests’ by their 

employers and then use that statutorily-grounded request to plead a[n ADA] claim.” (quoting 

Haulbrook v. Michelin N. Am., 252 F.3d 696, 705 (4th Cir. 2001))). Notably, Mr. Allman 

recognizes that Walmart genuinely believed that he had sleep apnea. (Allman Dep. 93:19–24.) 

The sincerity of Walmart’s belief is further borne out by Walmart’s instruction to Mr. Allman to 

take the conflicting medical reports to another doctor in an apparent effort to reconcile the 

conflicting medical evidence and settle the matter. And it follows that Walmart genuinely 

believed that it needed to ensure that Mr. Allman’s assumed sleep apnea was being managed in 

compliance with federal regulations.

It is this Court’s role to assess whether Walmart’s demand that Mr. Allman use his CPAP 

machine was a demand that the company could legitimately make, not whether it was the best 

decision or the correct decision or even a fair decision. It is not this Court’s role to “sit as a 

‘super-personnel department,’ second-guessing management decisions.” Hardesty v. Kroger Co., 

758 F. App’x 490, 496 (6th Cir. 2019) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 960 

(8th Cir. 1995)).

Mr. Allman has not offered sufficient evidence to prove that he opposed what he believed 

in good faith to be an unlawful discriminatory practice, so he has not proven that he engaged in 
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any “protected activity.” Nor has Mr. Allman proven that his allegedly protected activity was the 

“but for” cause of the alleged adverse employment action. Accordingly, he cannot establish a 

prima facie case of retaliation. His claim thus fails, and the Court need not proceed any further in 

the retaliation analysis. Based on Mr. Allman’s lack of evidence to support these essential 

elements of his claim, Walmart is entitled to summary judgment.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment is

GRANTED as to Count Two and DENIED as moot as to Count One.

IT IS SO ORDERED.

/s/ Sarah D. Morrison 

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE