Opinion
Case No. 3:01 CV 7536
September 25, 2002
ORDER
This is an employment discrimination case. Plaintiff Ricky G. Shirey brings claims under the Ohio public policy exception as embodied in the federal Family and Medical Leave Act (FMLA) and Ohio's anti-handicap discrimination statutes. This court has jurisdiction pursuant to 28 U.S.C. § 1331, 1332. Pending is defendant Pepperidge Farm Incorporated's (Pepperidge Farms) motion for summary judgment. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Mr. Shirey worked for Pepperidge Farm as a line mechanic, a job which entailed some heavy labor. He was injured on the job after attempting to lift a seventy pound item on July 11, 1998. As a result of the injury, he had back surgery in February, 1999, and October, 2000.
Plaintiff last worked for the defendant on September 15, 1998. He was taken off work by his doctor on September 17, 1998. On that date, he received a form from the defendant that advised him disability leave counted against the twelve week leave period established under the FMLA. The form also stated: "Pepperidge Farm will apply its Disability and Medical Leave Policies to allow employees disabled by serious health conditions to continue on leave status for up to one year from the date their original absence commenced." Plaintiff's signature on the form acknowledged that he had read and understood the form.
Pepperidge Farm's leave of absence policy provides that any combination of excused leave-including FMLA and medical leave-may not exceed twelve months. It also provides that a medical leave of absence may not exceed one year from the date of commencement of absence due to disability and that after twelve months leave of absence, the employee's job will be posted, thereby terminating the incumbent's employment.
Dr. Pradist Satayathum, the surgeon who performed plaintiff's first back surgery, stated plaintiff could return to "regular work" starting April 26, 1999. Dr. Satayathum then extended the medical leave until August 30, 1999. On August 19, 1999, Dr. Satayathum again extended plaintiff's medical leave, stating that plaintiff could return to "regular work" starting October 25, 1999. Dr. Satayathum's opinion was used to support the plaintiff's request for worker's compensation, which he received in the form of payments for temporary total disability while he was on medical leave from Pepperidge Farms.
In connection with plaintiff's worker's compensation claim, Pepperidge Farms requested an independent medical examination of plaintiff. On August 12, 1999, plaintiff was examined by Dr. Paul C. Martin. Dr. Martin concluded plaintiff had reached his maximum medical improvement. Also, Dr. Martin viewed a videotape that allegedly depicts plaintiff participating in activities inconsistent with significant lower back limitations; plaintiff had told Dr. Martin that he was unable to perform activities seen on the tape. Dr. Martin concluded that plaintiff was able to return to his former position at Pepperidge Farms without restrictions. Dr. Martin's opinion, however, was not disclosed to plaintiff until plaintiff brought this lawsuit.
Between September 17, 1998, and October 25, 1999, plaintiff never informed Pepperidge Farms, in writing, that he was able to return to work in any capacity. Plaintiff maintains, however, that he told several of defendant's employees, including the company nurse, that he could return to work with limitations. He also reportedly asked other employees about the availability of "light duty." On September 9, 1999, Pepperidge Farms sent plaintiff written notice that he would be terminated as of September 16, 1999, for having exceeded the one year maximum leave period. Plaintiff acknowledges having received this notice. Plaintiff then brought this suit claiming his discharge violated the public policy embodied in the FMLA and Ohio's disability discrimination statute. Pepperidge Farms has filed a motion for summary judgment on both claims.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must 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(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION I. Ohio Public Policy as Embodied in the FMLA
Plaintiff claims his discharge was unlawful because it violated the public policy protecting employees against discharge due to health considerations under the FMLA. Plaintiff's claim, however, fails as a matter of law.
In his opposition brief to defendant's motion for summary judgment, plaintiff remarks on alleged defects in the defendant's manual regarding its description of the FMLA. Plaintiff is not claiming, however, that the FMLA itself was violated. Thus, any technical defects in how the FMLA is described or might have been implemented by the company are not relevant or material. Plaintiff's claim is, rather, that his discharge pursuant to the defendant's general leave policy somehow violated Ohio public policy, as embodied in the federal FMLA.
Ohio recognizes a four-part test to determine wrongful discharge in violation of public policy. The elements of a public policy tort are that:
(1) a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element);
(2) dismissing employees under the circumstances like those involved in plaintiff's dismissal would jeopardize the public policy (the jeopardy element);
(3) the plaintiff's dismissal was motivated by conduct related to the public policy (the causation element); and
(4) the employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).
Collins v. Rizkana, 73 Ohio St.3d 65, 69-70 (1995).
The Supreme Court of Ohio has recently concluded that Ohio does not recognize a cause of action for wrongful discharge in violation of public policy when the cause of action is based solely on a discharge in violation of the FMLA. Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 2002 Ohio LEXIS 1995, at *15 (Aug. 28, 2002). "Simply put, there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society's interests." Id.; 2002 Ohio LEXIS 1995, at *11. The court found that the FMLA has a combination of compensatory and equitable remedies that are sufficiently comprehensive to ensure that the public policy embodied in the FMLA will not be jeopardized by the absence of the tort claim for wrongful discharge in violation of public policy. Id., 2002 Ohio LEXIS 1995, at *14-15.
II. Ohio's Disability Discrimination Statute
Plaintiff also alleges defendant's discharge of plaintiff constituted an unlawful discriminatory practice in violation of the provisions of § 4112 et seq. of the Ohio Revised Code. Under O.R.C. § 4112.02(A), it is unlawful "[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."
The Supreme Court of Ohio has urged courts to look to the federal Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), for guidance in interpreting Ohio's prohibition on disability discrimination. City of Columbus Civil Serv. Comm'n v. McGlone, 82 Ohio St.3d 569, 573 (1998) ("The federal Americans with Disabilities Act (`ADA') is similar to the Ohio handicap discrimination law. . . . We can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law.").
Under the ADA, an employee may support a claim of disability discrimination using either direct evidence or indirect evidence. In this case, plaintiff has not come forward with any direct evidence of disability discrimination. Thus, plaintiff must prove a prima facie case of employment discrimination using circumstantial evidence under the burden shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A prima facie case under the ADA requires a plaintiff to establish that 1) he or she is disabled; 2) he or she is otherwise qualified for the position; 3) he or she 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 disabled individual was replaced. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1990) (citations omitted).
If the plaintiff establishes a prima facie case of employment discrimination under the ADA, the burden shifts to defendant to articulate a non-discriminatory reason for plaintiff's discharge. Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). Then, plaintiff must show that this reason is a pretext. Id.
A. Prima Facie Case: Otherwise Qualified for the Position
Under the second element of the prima facie case, a "qualified individual with a disability" is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also O.A.C. § 4112-5-02(K). The relevant time for determining whether the plaintiff is a "qualified individual with a disability" is at the time of discharge. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996). The inquiry, thus, will be based on plaintiff's condition on September 16, 1999.
Plaintiff has failed to make out a prima facie case of disability discrimination under the ADA. Because plaintiff was not released by his doctor to return to work, he did not meet the second requirement that he be qualified to perform the essential functions of the job. See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (finding "because [plaintiff] was not released by her doctor to return to work, she has not met the second requirement that she be qualified to perform the essential functions of the job"). As stated in Tyndall v. Nat'l Educ. Ctrs. Inc., 31 F.3d 209, 213 (4th Cir. 1994), "[a]n employee who cannot meet the attendance requirements of the job at issue cannot be considered a `qualified' individual protected by the ADA. . . In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis." See also Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994) (holding that "coming to work regularly" is an "essential function"); Santiago v. Temple Univ., 739 F. Supp. 974, 979 (E.D.Pa. 1990) ("An employee of any status, full or part time, cannot be qualified for his position if he is unable to attend the workplace to perform the required duties because attendance is necessarily the fundamental prerequisite to job qualification.").
Plaintiff did not meet the attendance requirements of his job because he was unable to work over an extended period of time. At the time of his discharge on September 16, 1999, plaintiff had been on leave of absence for one year, and his physician had removed him totally from work through October 25, 1999. Thus, plaintiff was not qualified for the position at the time of his termination. As discussed above, attendance is a prerequisite to job qualification under the ADA. If a plaintiff cannot attend work, he cannot perform the essential functions of his employment. Accordingly, he has failed to make out a prima facie case and is entitled to no protection under the ADA.
Contrary to plaintiff's argument, it is irrelevant that Pepperidge Farm's doctor found plaintiff able to return to work. It was completely reasonable for Pepperidge Farms to rely on plaintiff's doctors opinion of plaintiff's condition because Dr. Satayathum was the best judge of plaintiff's condition. Had plaintiff and his surgeon believed plaintiff could return to work, they should have told the defendant so, before the defendant's leave had gone past the one year limit.
Plaintiff's arguments that the leave policy was ambiguous and he did not know he was going to be terminated are equally irrelevant. Even if plaintiff did not know about the one year policy while he was actively employed by Pepperidge Farms, the form he signed-the signature acknowledged that he read and understood the document-on September 17, 1998, specifically stated "Pepperidge Farm will apply its Disability and Medical Leave Policies to allow employees disabled by serious health conditions to continue on leave status for up to one year from the date that their original absence commenced." Furthermore, plaintiff has failed to show that even if he was unaware of the policy, how this makes him "otherwise qualified" for the position.
In his affidavit, Plaintiff also argues that he could have performed his job if he had known Dr. Martin opined plaintiff was able to work and he had the accommodation of a lift table. Thus, plaintiff appears to be arguing, under ADA language, he was "otherwise qualified" because he could perform the essential functions of his job with reasonable accommodation. Shirey claims he could use the lifting device, put in use shortly after he was injured, to minimize the heaviest lifting associated with his position.
Under the ADA, however, an individual claiming disability discrimination bears the "initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable." Monette 90 F.3d at 1183. See also Marcum v. Consolidated Freightways, 48 F. Supp.2d 721, 727 (N.D.Ohio. 1999) (noting that the individual must show he or she can perform the job with reasonable accommodation). In this case, plaintiff has not produced any evidence that he informed Pepperidge Farms that he was able to return to work within the one year limit, nor does he produce any evidence to show he could return to work with his proposed accommodation.
Plaintiff alleges that at some point prior to his discharge, he told the plant nurse that Dr. Satayathum had released him to return to work with restrictions of no lifting in excess of twenty pounds and no standing or walking for more than two hours per day. Plaintiff, however, has failed to document that his doctor ever told him this; the only documentation Pepperidge Farms received from Dr. Satayathum stated that Shirey was treated and still unable to work. Plaintiff, moreover, has no evidence that he communicated these restrictions to defendant.
In any event, plaintiff admitted in his deposition that he could not perform the essential functions of his line mechanic job with these restrictions. Plaintiff stated that his job required lifting of more than twenty pounds on a daily basis, and that, on average, he was off his feet about twenty to thirty minutes every hour in the eight hour (or more) days that he worked. (Plaintiff's Dep. at 40-43).
Finally, plaintiff has failed to support the accommodation argument with anything other than his own affidavit. Several courts have declared that "self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (citation omitted); see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Syvongxay v. Henderson, 147 F. Supp.2d 854, 859 (N.D.Ohio. 2001); Wolfe v. Village of Brice, 37 F. Supp.2d 1021, 1026 (S.D.Ohio 1999) ("Self-serving affidavits, alone, are not enough to create an issue of fact sufficient to survive summary judgment.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995)).
Because plaintiff has not supplemented his claims with any evidence other than his own self-serving affidavit, he cannot defeat a motion for summary judgment. He has not shown that his doctor, who had repeatedly reported to Pepperidge Farms that Shirey was incapable of performing any work throughout his leave period, would have agreed that he was medically capable of returning to his job under altered conditions. Also, the plaintiff has not substantiated that he informed the defendant that he was able to return to work in any capacity.
Because plaintiff fails to raise a genuine issue of material fact about whether he was qualified to perform his job requirements, he has not established a prima facie case of employment discrimination under the ADA. Therefore, summary judgment in favor of the defendant is appropriate.
B. Legitimate Non-Discriminatory Reason and Pretext
If plaintiff had satisfied his burden of providing a prima facie case, the burden would be on the defendant to provide a non-discriminatory reason for the employment decision. Cehrs, 155 F.3d at 779. Once defendant provided such a reason, the burden would shift back to plaintiff, who would have to demonstrate that the proffered explanation is a pretext for discrimination. Id. An employee can show pretext through evidence that employer's proffered reason had no basis in fact, did not actually motivate its decision, or never was used in the past to discharge an employee. Kocsis, 97 F.3d at 884.
Even if plaintiff had proved a prima facie case, defendant has produced several documents showing that it terminated plaintiff pursuant to its absence policy. Defendant, therefore, has satisfied its burden of providing a non-discriminatory reason for terminating plaintiff. Plaintiff offers no evidence that defendant's proffered reason falls under any of the Kocsis factors. Thus, even if plaintiff had met his prima facie case, he has not met his burden of proof.
CONCLUSION
It is, therefore,
ORDERED THAT Pepperidge Farm's motion for summary judgment hereby is granted.
So ordered.