Brown v. Bkw Drywall Supply, Inc.

• Decision Date: 20 February 2004
• Docket Number: No. 2:02-cv-202.,2:02-cv-202.
• Citation: 305 F.Supp.2d 814
• Parties: John BROWN, Plaintiff, v. BKW DRYWALL SUPPLY, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

305 F.Supp.2d 814

John BROWN, Plaintiff, v. BKW DRYWALL SUPPLY, INC., Defendant.

No. 2:02-cv-202.

United States District Court, S.D. Ohio, Eastern Division.

February 20, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Tony C. Merry, Palmer Volkema & Thomas — 2, Columbus, OH, for Plaintiff.

Joseph Scott Streb, Columbus, OH, for Defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

In this employment discrimination case, Plaintiff, John Brown, alleges that Defendant, BKW Drywall Supply, Inc. ("BKW"), terminated his employment in violation of (1) the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"); (2) the Ohio Civil Rights Act, Chapter 4112 of the Ohio Revised Code ("Chapter 4112"); (3) the Family and Medical Leave Act, 29 U.S.C. § 2617 ("FMLA"); and (4) Ohio public policy as expressed in the ADA and Chapter 4112. This matter is before the Court on Defendant's Motion for Summary Judgment and on Plaintiff's Motion to Strike the Affidavit of Brad Ballantine. For the following reasons, the Court GRANTS the Motion for Summary Judgment and DENIES the Motion to Strike.

II. FACTS

BKW hired John Brown as a drywall stocker and driver on October 12, 1998.¹ His job entailed loading drywall products onto delivery trucks, driving to delivery sites, unloading the materials with a crane attached to the truck, and carting the material to various areas around the job site. On February 28, 2000, Brown was elevated to the position of dispatcher. Brown states that he requested and received a transfer to the dispatcher position because of his disability, loin pain hematuria syndrome ("LPHS"). Specifically, severe back pain and swelling in his feet made standing and walking difficult. Brown was awarded the dispatcher position by his friend and supervisor, then the on-site general manager of BKW, Joe Korpieski.² The dispatcher position involved coordinating orders for drywall products, helping drivers set up their loads, and ensuring the trucks got to the proper locations at the proper times.³

In mid-2000, Korpieski was terminated for theft. Korpieski had been purchasing parts for his personal drag racer on BKW's account at Napa Auto Parts. According to Tracy Hein, who generally oversaw operations at BKW at the time, Brown was involved to some degree in Korpieski's theft, but not to the extent that he was ever accused of or discharged for theft.

In August 2000, Scott Coppens was hired as the new on-site general manager. In September 2000, Brown missed a day of work due to an LPHS-related kidney biopsy. In November 2000, Brown was off work on approved medical leave for two-and-a-half weeks due to LPHS. According to Brown, he needed the leave "because my feet had swelled up so bad, I couldn't hardly walk." When he returned to work in November 2000, Brown had a return to work slip signed by his physician, Dr. W. Fred Miser, and dated November 20, 2000. This form allowed Brown to return to work without any restrictions.

When Brown returned from medical leave, Coppens asked him to quit and apply for long-term disability benefits.⁴ Brown refused: "I advised him I couldn't afford to. I said I could do my job." On January 4, 2001, Brown's employment was terminated, allegedly due to poor job performance. Approximately one week after the termination of his employment at BKW, Brown was hired by Hughs Building Supply to perform substantially the same sort of stocker work he initially did for BKW.

Hein, Coppens, and Plaintiff's co-worker/supervisor Larry Parker all testified at deposition as to various problems that they and others had with Plaintiff's job performance. In general, these problems centered on Plaintiff's perceived laziness and bad attitude. For example, Parker testified that Brown was viewed as "an excuse-laden slacker," and Hein testified that she received complaints that Brown "wasn't a team player."

Plaintiff's alleged disability is loin pain hematuria syndrome ("LPHS"), a disease characterized by severe pain in the loin or flank, accompanied by hematuria, defined as blood in the urine. There is some dispute regarding whether LPHS "constitutes a medically accepted clinical condition";⁵ however, there is no dispute that Brown has experienced certain symptoms, regardless of the diagnosis attached to those symptoms. According to Dr. Lee H. Hebert, a physician who treated Brown for a condition diagnosed as LPHS, to qualify for such a diagnosis, the patient must be suffering from "deep pain" in the kidney area. Muscle tenderness "because of muscle spasm is common." Also, "[t]he pain must have been present for 6 months or more and sufficiently severe to prompt their physician to prescribe narcotics." Brown takes high doses of narcotics daily, including 40 mg of Oxycontin twice a day and 5 mg of Oxycodone as needed for "breakthrough pain." He also takes Micardis, Lasix, and Spironolactone daily. Brown testified that these medications make him groggy most of the time. Hebert's medical judgment is that Brown's LPHS "caused him ... to be substantially disabled from standing or walking."

In a letter dated November 17, 2000, Hebert, a nephrologist at The Ohio State University, described to Miser, Brown's family physician, Hebert's findings regarding Brown's condition. After discussing a kidney stone passed by Brown and the results of a urinalysis, Hebert states, "[T]he patient's symptoms are dominated by the fact that he has dyspnea on exertion and low back pain."⁶ Hebert also states, "With respect to his loin pain hematuria syndrome, those symptoms seem to be under reasonably good control. Most of his pain now appears to be the result of an orthopedic syndrome undoubtedly related to his great weight [362 pounds] and abdominal girth which is putting excessive strain on his lower spine." Hebert concludes with, "[i]n summary, most of Mr. Brown's problems now appear to be related to his great weight gain and excessive dietary intake, particularly of salt and protein. Thus, central to the successful management will be to bring these conditions under control."

Defendant asserts that Brown never informed BKW of any disability and never requested any reasonable accommodation for a disability. Both Hein and Coppens, the two people directly involved in the decision to terminate Brown's employment, testified that they were unaware of any disability or medical condition that could be considered a disability. Brown points to testimony that he says supports the idea that Coppens was aware of Brown's condition:

Q. Did you have any conversations with John about his health, his medical condition?

A. Yes.

Q. Tell me about that.

A. John was just telling me that he was having some problems, some medical problems. His feet swelled up on occasions and that he had some medical problems, that's basically what it came down to. They were trying to diagnose him at the time, I guess.

Q. Did you ever learn what the diagnosis was?

A. No.

Q. But you did know that he had some medical problems and that they were struggling to find out precisely what?

A. Yes.

Hein testified that she knew that Plaintiff had been off on medical leave, but that she was not aware of any medical condition that Brown had. Brown testified that he gave a copy of a journal article on LPHS to Esther Kessler, BKW's office manager and bookkeeper, to read. Brown states that he talked to Coppens in December 2000 about the swelling of his feet. It is undisputed that BKW did not ever possess any documents addressing Brown's alleged disability, with the possible exception of return to work slips, all of which allowed Brown to return to work without any restrictions.

On April 23, 2001, Brown filed a Charge of Discrimination with both the Equal Employment Opportunity Commission ("EEOC") and the Ohio Civil Rights Commission ("OCRC"). On November 29, 2001, the OCRC issued a no probable cause finding on Brown's Charge. On March 5, 2002, Plaintiff filed a Complaint with this Court, seeking damages for violations of the ADA, Chapter 4112, the FMLA, and Ohio public policy. This matter is now before the Court on Defendant's Motion for Summary Judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. In addition, Plaintiff, pursuant to Rule 56(e), has filed a Motion to Strike the Affidavit of Brad Ballantine. The Affidavit of Brad Ballantine, chief operating officer ("COO") of BKW, was attached to Defendant's Motion.

III. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). To avoid summary judgment, the nonmovant "must do more than simply 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir.1993). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (finding summary judgment appropriate when the evidence could not lead a trier of fact to find for the nonmoving party).

In evaluating a motion for...