Bare v. Fed. Express Corp., Case No. 5:11–cv–120.

• Decision Date: 15 August 2012
• Docket Number: Case No. 5:11–cv–120.
• Citation: 886 F.Supp.2d 600
• Parties: Georgiann BARE, Plaintiff, v. FEDERAL EXPRESS CORP., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

886 F.Supp.2d 600

Georgiann BARE, Plaintiff,

v.FEDERAL EXPRESS CORP., et al., Defendants.

Case No. 5:11–cv–120.

United States District Court,

N.D. Ohio,

Eastern Division.

Aug. 15, 2012.

Michael A. Creveling, Creveling & Creveling, Fairlawn, OH, for Plaintiff.

P. Daniel Riederer, Federal Express Corporation, Memphis, TN, Thomas R. Crookes, Ashley M. Manfull, Vorys, Sater, Seymour & Pease, Akron, OH, for Defendants.

MEMORANDUM OPINION & ORDER

SARA LIOI, District Judge.

Before the Court is a motion for summary judgment filed by defendant Federal Express Corp. (“defendant” or “Federal Express”). (Doc. No. 37.) Plaintiff Georgiann Bare (“plaintiff” or “Bare”) has filed a brief in opposition (Doc. No. 44), to which defendant has replied. (Doc. No. 45.) Also before the Court is plaintiff's motion to amend the complaint and defendant's opposition thereto. (Doc. Nos. 60, 66.) ¹ For the reasons that follow, plaintiff's motion to amend is DENIED and defendant's motion for summary judgment is GRANTED.

I. BACKGROUND

Bare began working as a courier for Federal Express ² in August 1991 at Federal Express's Akron, Ohio station. During orientation, Bare received a copy of the Federal Express Employee Handbook and became familiar with Federal Express's policies prohibiting discrimination, harassment, and retaliation, as well as Federal Express's complaint procedures ³ and its Medical Leave of Absence Policy, which provides employees time off from work if they are medically unable to return to work. Couriers are responsible for timely package pickup and delivery and are required to lift 75 pounds unassisted on a regular and consistent basis.

On August 2, 2007, Bare injured her back and neck at work. Greg Barkdull (“Barkdull”) then became Bare's Human Capital Management Program (“HCMP”) manager.⁴ Initially, Bare was diagnosed with a cervical and lumbar injury and given a 5–pound lifting restriction. In September 2007, Bare was treated by an orthopedic surgeon and given a 20–pound ⁵ lifting restriction, which prevented Bare from performing her job as a courier. Bare was able to return to light duty work temporarily through Federal Express's Temporary Return to Work Policy.⁶ Once Bare exhausted her temporary placement under the policy, she took a Workers' Compensation/Medical Leave of Absence.

In or about December 2008, Bare reached maximum medical improvement through her workers' compensation program and was released to return to work with a 20–pound lifting restriction. On January 26, 2009, Barkdull informed Bare that her medical leave of absence would be exhausted on April 17, 2009.⁷ Barkdull further explained that Bare had to secure a job prior to the end of her medical leave, that she would have placement preference for any open jobs, and that certain jobs could be restructured depending on the location, staffing, and other operational considerations. Barkdull also encouraged her to ask about possible accommodations.

Thereafter, Barkdull sent Bare several mailings listing the only job openings at FedEx Express, each requiring a 75–pound lifting capacity. Bare advised Barkdull of her medical restrictions and capabilities, but never asked whether any of the available jobs could be restructured or changed to fit within her work restrictions. Further, Bare did not express any interest in these open positions, nor did she apply for the posted positions.

Instead, Bare requested a transfer to FedEx Custom Critical (“Custom Critical”).⁸ Bare testified that Barkdull told her “it was against company policy” to help her get a job at Custom Critical, another wholly-owned subsidiary of FedEx Corporation. (Doc. No. 41 at 695.) Barkdull testified that he could not place Bare in a position at Custom Critical because it is a separate company operating with its own policies and procedures, and he is only able to place employees within Federal Express. (Doc. No. 40 at 485–86.) Further, Barkdull had been advised not to interact with other FedEx operating companies because they have their own set policies and procedures. ( Id. at 487.)

On June 2, 2009, having exhausted her available medical leave time and not having advised FedEx Express that she was able to return to work without restrictions, Barkdull terminated Bare's employment pursuant to the company's Medical Leave of Absence Policy.

On December 15, 2010, Bare filed a complaint against defendants FedEx Express Corp. and Federal Express in the Court of Common Pleas, Summit County, Ohio, alleging disability discrimination in violation of Ohio Rev.Code § 4112.02 et seq. (Doc. No. 1–1.) On January 19, 2011, defendants removed the action to this Court based on diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441. (Doc. No. 1.) ⁹ The complaint alleges that plaintiff requested the reasonable accommodation of being allowed to apply for a regular full time job within her physical abilities at a “sister Federal Express Corporation subsidiary, the Custom Critical plant in Akron, Ohio[.]” (Doc. No. 1–1 at 7.) Further, the complaint alleges that plaintiff was unable to apply for jobs in the other Federal Express locations, as each job required lifting exceeding her restriction, and that Barkdull refused to allow plaintiff to post for jobs at the Custom Critical location despite there being “numerous jobs” open that she was qualified to perform without accommodation. ( Id.) The complaint asserts that allowing plaintiff to apply for jobs at the Custom Critical subsidiary would not have been an undue hardship on defendant and that the “denial of posting was done in whole or relevant part due to Plaintiff's known disability.” ( Id.)

On March 16, 2011, the Court held a case management conference pursuant to notice and in accordance with Fed.R.Civ.P. 16. Following this conference, the Court issued a case management plan and trial order (“CMPTO”) adopting April 4, 2011, the date proposed by the parties, as the deadline for amending pleadings. ( See Joint Report of Parties' Planning Meeting [Doc. No. 64] at 64; CMPTO [Doc. No. 12] at 67.) Additionally, the Court adopted the parties' proposed fact-discovery cut-off date of November 11, 2011, as well as their proposed summary judgment-briefing schedule. ( Id.) Subsequent to a motion by plaintiff, the Court amended its scheduling order, extending fact discovery until December 19, 2011 and resetting summary judgment deadlines such that briefing would be completed by February 27, 2012. ( See Plaintiff's Motion to Continue All Deadlines [Doc. No. 26]; Amended CMPTO [Doc. No. 27].) The deadline for amending the pleadings remained unchanged. ( Id.) This case is currently set for trial on September 4, 2012. (Doc. No. 55.)

On January 23, 2012, defendant filed the instant motion for summary judgment. As of February 27, 2012, the parties had completed briefing on the motion for summary judgment in compliance with the Court's amended CMPTO. On August 1, 2012, plaintiff moved to amend her complaint.

II. PLAINTIFF'S MOTION TO AMEND

Fed.R.Civ.P. 15(a) provides that when a party is required to seek leave of court in order to file an amended pleading, “lease shall be freely given when justice so requires.” The Supreme Court has explained:

In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

However, when, as here, the deadline for amending pleadings established by the Court's scheduling order has passed, the Sixth Circuit has made clear that, “a plaintiff must first show good cause under Rule 16(b) for failure earlier to seek leave to amend” and the Court “must evaluate prejudice to the nonmoving party ‘before a court will consider whether amendment is proper under Rule 15(a).’ ” ¹⁰Commerce Benefits Grp., Inc. v. McKesson Corp., 326 Fed.Appx. 369, 376 (6th Cir.2009) (quoting Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003)). “Consequently the Court is permitted to examine the standard factors governing amendments under Rule 15(a) only if it is satisfied that the date for the filing of a motion for leave to amend is properly extended under the good cause provisions of Rule 16(b).” Craig–Wood v. Time Warner N.Y. Cable LLC, No. 2:10–cv–906, 2011 WL 4829687, at *2 (Oct. 6, 2011), reconsideration denied,2012 WL 346686 (S.D.Ohio Feb. 2, 2012).

The Sixth Circuit has held that,

[t]he primary measure of Rule 16's ‘good cause’ standard is the moving party's diligence in attempting to meet the case management order's requirements.... Another relevant consideration is possible prejudice to the party opposing the modification.

Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.2002) (internal citations and quotation marks omitted).

Here, plaintiff's motion to amend first seeks to drop FedEx Express Corporation, a previously dismissed party, from the caption of the complaint. In its response brief, defendant submits that such an amendment is unnecessary because FedEx Express has already been dismissed with prejudice by Court order. The Court agrees with defendant, and finds that the proposed amendment to “remove” a previously dismissed party is wholly unnecessary.

Plaintiff next seeks leave to amend her complaint to “clarify” her allegation that defendant failed to investigate possible reasonable accommodations at the FedEx Express in Akron, Ohio. The proposed amen...