Anderson v. Procopy Techs., Inc.
| Decision Date | 29 May 2014 |
| Docket Number | Case No. 1:11–cv–912–HJW. |
| Citation | 29 A.D. Cases 1748,23 F.Supp.3d 880 |
| Parties | Jeremy ANDERSON, Plaintiff, v. PROCOPY TECHNOLOGIES, INC., dba Prosource, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Stephen E. Imm, Katz Greenberger & Norton, Cincinnati, OH, for Plaintiff.
Felix John Gora, Rendigs Fry Kiely & Dennis LLP, Cincinnati, OH, for Defendant.
Pending is the defendant's “Motion for Summary Judgment” (doc. no. 22), which plaintiff opposes. Defendant has submitted proposed findings of fact and conclusions of law, which plaintiff has highlighted as true, false, or irrelevant (doc. no. 34). The Court held a hearing on May 14, 2014, at which counsel presented oral arguments. Having carefully considered the record, including the parties' briefs, exhibits, proposed findings, oral arguments, and applicable authority, the Court will grant the motion for the following reasons:
I. Background and Procedural History
ProCopy Technologies, Inc. (“ProSource”) is a small Ohio company that sells copy machines.1 ProSource hired Jeremy Anderson for the position of “warehouse clerk” (“Proposed Findings,” doc. no. 34, ¶ 5). He started working there on December 1, 2008 and was the only warehouse clerk in the warehouse (¶ 5). He reported to the logistics manager Dale Schneider, who supervised the warehouse (If 7). Anderson's resumé indicated he had prior experience operating a forklift (doc. no. 25–2 at 2). ProSource sent Anderson for additional forklift training during his first week on the job, and he obtained a forklift operating permit on December 9, 2008 (Proposed Findings, doc. no. 34, If 9; see also, doc. no. 25–5, Portman Training Center, “Operator Safety Training” class). In addition to keeping computerized inventory and warehouse records, Anderson's responsibilities included unloading copiers from arriving trucks, putting the copiers in the warehouse in stacks up to twenty feet high, and pulling them from the stacks for delivery to customers (And. Dep. at 99–100, 283; see also, Ex. 9 ProSource job description). He drove a forklift 3–4 days of each week (Proposed Findings, doc. no. 34, If 10), and by his own estimate, used a forklift for approximately 7.5 hours each week . He received additional on-the-job training on driving, deliveries, and the paperwork required for deliveries (And. Dep. at 148).
During 2009, ProSource was short several delivery drivers ). Beginning in January 2010, Anderson began serving as a back-up driver . He began attending drivers' meetings ). In April of 2010, he signed a document entitled “New Employee Set Up Sheet” (doc. no. 25–14), which listed his job as “driver/warehouse” and indicated he was being given a company cell phone in connection with such position (Proposed Findings, doc. no. 34, ¶ 13). Anderson acknowledges that in 2010 he was doing “deliveries on a back-up basis” in addition to his warehouse duties . The number of drivers fluctuated during this time period, but ProSource hired several more drivers that year and generally had 3–4 people for deliveries (And. Dep. at 150, indicating that by spring 2010, ProSource had four drivers). As a back-up driver in 2010, Anderson made deliveries between January and May 27, 2010, on 29 days to over 60 locations/customers (doc. no. 25–16 at 1–36).2
ProSource kept written records of its deliveries, including the names of the drivers/assistants who made the deliveries, the names and locations of the customers, the “in/out” time for the delivery and service, the vehicle mileage, and other pertinent information (Proposed Findings, doc. no. 34, ¶ 16). Plaintiff does not dispute that these records are generally accurate ). Plaintiff has submitted nearly 700 pages of delivery records for the various drivers (doc. no. 35, Ex. B, Parts I–VII).
In late May 2010, Anderson told his supervisor that he could not drive at all due to a diagnosed medical condition (“epilepsy ”) (And. Dep. at 185 and Ex. 17).3 He also told Melanie Hyden in the HR department (And. Dep. at 186 “I had a note with me and I went to her office and informed her of the situation.”). He acknowledges that he had experienced “a few” seizures at work (Id. at 203). Anderson gave his employer a doctor's note, dated May 27, 2010, restricting him from driving (Id. at 189).4 In the note, Dr. Sheetal Malik, M.D., indicates “Mr. Anderson may not drive a motor vehicle until he completes his evaluation/testing and has his follow up in the office to discuss the results on 6/11/10” (doc. no. 25–17, doctor's note).
As Anderson was temporarily restricted from driving delivery vehicles and from operating a forklift, ProSource had him continue doing the parts of his job that he could still do, such as keeping warehouse records on the computer and moving any ground-level machines with a manual jack. ProSource also utilized him as a non-driving assistant in some two-person deliveries (Kimberly Dep. at 33 “It was more efficient to send one person than to send two” but indicating that some deliveries needed two people). ProSource had Ricky Kimberly (a summer employee who stayed and did not return to college) drive the delivery truck, with Jeremy assisting (doc. no. 25–16 at 36–68, records of “Ricky + Jeremy” deliveries from May 27 to August 10, 2010). During this time period, these two employees made deliveries on 20 days to approximately 50 different locations/customers. As Anderson was medically restricted from operating the forklift, he could not unload any double-stacked copy machines from arriving trucks, nor could he stack them in the warehouse. In order to pull orders for copier machines that were stacked in the warehouse, ProSource had to have other employees operate the forklift. This was in addition to their own jobs. ProSource had to pay employees overtime in order to cover Anderson's duties in the warehouse that required the use of a forklift (Siefert Dep. at 120). When he needed to get copiers ready for delivery to customers, Anderson was able to use a “hand jack” to move any copiers that were at ground level.
Anderson suggested to ProSource that his restriction was only temporary. On June 11, 2010, he sent an email to Chris Shersky, VP at ProSource, advising that “I still cannot drive; however, at this time it's just for a few weeks and I will get another EEG performed on June 25th and hopefully I will be able to resume normal duties” . His hope that his medical restriction would last for only “a few weeks” did not work out. On June 24, 2010, a second letter from Dr. Malik indicated that Anderson was still “restricted from operating a motor vehicle and other heavy machinery until further notice” (Proposed Findings, doc. no. 34, ¶ 21; doc. no. 25–19, letter). On July 13, 2010, Dr. Malik again indicated that Anderson was (doc. no. 25–21, letter). On August 16, 2010, Dr. Malik once again indicated that Anderson was on August 23, 2010 (doc. no. 25–22, letter). When that date arrived, ProSource was given a doctor's note indicating that Anderson (doc. no. 25–23).5 As the doctor's note indicated that Anderson was not cleared to drive a truck or operate a forklift for at least another three months, ProSource placed him on FMLA leave on August 24, 2010 and sent him home ). The FMLA certification by Anderson's health care provider indicated that the “duration” of plaintiff's epilepsy was “chronic” and that he was restricted from operating any heavy machinery or driving vehicles (doc. no. 25–24).
On September 12, 2010, Anderson sent an email to Melanie Hyden, HR Director, indicating that he did not want to be on FMLA leave and would not be submitting the paperwork she had provided (doc. no. 25–26). He indicated that he wanted to continue working “as I was before August 24th.” Ms. Hyden then asked him to meet in order to discuss the matter. At the meeting with Hyden and Chris Shersky (Vice–President of ProSource) on September 30, 2010, Hyden reminded Anderson that he was on FMLA leave for a serious medical condition and could not drive. Anderson insisted that he did not want to be on FMLA leave. He “informed” them that in his opinion he could do his job with a hand jack,6 but they indicated that he could not do the essential functions of his job with such manual device (And. Dep. at 232–33 “I remember Chris telling me that I was not able to do my job with a pallet jack”). They advised Anderson that the medical documentation reflected that he continued to be restricted from driving vehicles or operating forklifts. Anderson acknowledges he did not request any sort of accommodation from ProSource . Chris Shersky indicated he hoped Anderson would return to work there and encouraged him to reapply (Shersky Dep. at 33 “I wanted him to get better ... we wanted him to come back to work for us”).
On October 6th, HR Director Hyden sent an e-mail to Anderson reiterating that “your FMLA leave started on 8/24/2010 and ... you...
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