Davison v. Roadway Exp., Inc., No. 3:07 CV 424.

• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
• Writing for the Court: Katz
• Citation: 562 F.Supp.2d 971
• Parties: Daniel G. DAVISON, Plaintiff, v. ROADWAY EXPRESS, INC., Defendant.
• Decision Date: 26 June 2008
• Docket Number: No. 3:07 CV 424.

562 F.Supp.2d 971 Daniel G. DAVISON, Plaintiff,
v.
ROADWAY EXPRESS, INC., Defendant. No. 3:07 CV 424. United States District Court, N.D. Ohio, Western Division. June 26, 2008. Opinion Denying Reconsideration August 8, 2008.

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John D. Franklin, R. Kevin Greenfield, Kera L. Croteau, Franklin & Greenfield, Toledo, OH, for Plaintiff.

Michael N. Chesney, Emily C. Fiftal, Frantz Ward, Cleveland, OH, William P. Dunn, YRC Worldwide, Inc., for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendant Roadway Express, Inc.'s motion for summary judgment (Doc. 37), Plaintiff Daniel Davison's response (Doc. 41), and reply (Doc. 44) and surreply (Doc. 47) briefs.

I. Background

Plaintiff was a line haul driver out of Defendant's Toledo, Ohio facility from approximately May 1995 until August 22, 2006. At all times, Plaintiff was represented by Teamsters Local 20, and the terms and conditions of his employment were governed by the Teamster's National Master Freight Agreement, the Central Region Over-the-Road Motor Freight Supplemental Agreement, and the Ohio Addendum (collectively, "the CBAs"). The CBAs do not allow the employer to discharge an employee for absence due to a work-related injury. Workers are protected extensively, except in certain circumstances, such as in the event of just cause termination or a voluntary quit. A "Leave of Absence" provision provides for leave in ninety day increments with the written permission of the company and the Union, including leave for inability to work due to proven sickness or injury. A "Health and Welfare Benefits" provision provides for twelve months of paid health and welfare benefits to employees who are off work due to work-related injury. The provisions require an employee missing work to

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provide the employer with adequate notice of the need for leave and for any extensions of leave. Another provision provides that an employee is considered to have voluntarily quit his or her employment if he or she fails to report for three consecutive working days without notifying the company.

A "Family and Medical Leave Act" provision guarantees that, at a minimum, employees will receive all leave guaranteed by the Family Medical Leave Act ("FMLA"). The provision explains the FMLA requirements and states that Roadway will not discipline employees for seeking or taking FMLA leave. It also states that all disputes arising under it shall be subject to the CBAs' grievance procedure. A "Worker's Compensation" provision in the CBAs likewise prohibits discipline of an employee for filing an on-the-job injury report, and states that disputes arising thereunder shall be submitted to the Joint Area Committee.

Plaintiff injured his back in an on-the-job truck accident on or about July 15, 2006. His supervisor Ronald Nietz accompanied Davison to the hospital and excused him from work for the following day. On July 17, Plaintiff saw Dr. Jerry Dombeck, a chiropractor, who issued documentation declaring Plaintiff unable to work through August 1, 2006, with an estimated return to work date of August 2, 2006. Plaintiff filled out a Physician's Report of Work Ability, which Dr. Dombeck signed and faxed to Roadway. Roadway granted Davison leave through August 1, 2006. Around that time, Dr. Dombeck also provided Defendant with the paperwork necessary for Plaintiff to receive worker's compensation benefits. Plaintiff was approved for worker's compensation a few weeks later, on August 15, 2007.

On July 31, 2006, Dr. Dombeck approved an extension of Plaintiff's leave until August 16, 2006. Dr. Dombeck's office apparently claimed to have faxed the extension to Defendant. However, on August 4, 2006, Nietz sent Plaintiff a letter requesting Davison contact the company within 72 hours because Defendant had no medical approval excusing his absence beyond August 1, 2006. Davison contacted Roadway to find out what to do. Roadway claimed not to have received a fax from Dr. Dombeck. Plaintiff then called Dr. Dombeck's office and requested that the office keep Roadway informed of his condition and work status. Dr. Dombeck's office agreed to do so, and subsequently faxed Nietz the approval of extension of leave until August 16.

On August 14 or 16, 2006, Dr. Dombeck extended Davison's leave until September 16, 2006. Plaintiff alleges that Dr. Dombeck assured Plaintiff that his office faxed the necessary information to Roadway. Plaintiff did not contact Roadway or his worker's compensation administrator Ghallagher Bassett regarding the renewed approval. Defendant Roadway claims that it did not receive the information from Dr. Dombeck at that time. Plaintiff has produced notes from Dr. Dombeck's office that appear to indicate that the office faxed the completed forms on August 16 and 22, 2006, but Plaintiff has been unable to produce the faxes themselves. On August 17 or 18, 2006, Roadway contacted Davison to inform him that there was a problem with his worker's compensation paperwork. Davison informed the caller that worker's compensation problems should be referred to his attorney. Defendant characterizes Plaintiff's response as stubborn and flippant. There is no evidence that Roadway attempted to contact Davison's attorney at that point. Other Roadway representatives attempted to contact Davison — Plaintiff recalls one additional phone call, from Mindy Egan, but

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Defendant claims others called. Roadway also contacted Plaintiff's worker's compensation administrator, who Defendant claims also tried to contact Plaintiff.

On August 22, 2006, Nietz sent a letter to Davison explaining that, due to his absence beyond the three days prescribed by the CBAs, Roadway considered Davison to have voluntarily quit his employment. Upon receiving the letter, Plaintiff contacted Dr. Dombeck, who assured Plaintiff that the information had been faxed. Roadway states that on August 24, Ghallagher Bassett received faxed information from Dr. Dombeck extending Plaintiff's leave through September 15, 2006.

Dr. Dombeck's notes of August 14, 2006 read: "No change for this condition as of yet. Relief of condition has only been temporary thus far. Suspected disc herniation of lumbar spine.... Patient is estimated to return to work on 8/16/06 however it looks as though this might be extended." Doc. 37-7, Ex. E at 18. The August 16 notes indicate slight improvement, continued treatment, and that "[a] C84 was signed today with estimated return to work on 9/16/06." Doc. 37-7, Ex. E at 17. The August 18 notes indicate "[n]o change from last visit." Doc. 37-7, Ex. E at 16. The August 22 notes from Dr. Dombeck's office state: "Estimated return to work 9/16/06.... [Defendant] claims to have not received C84 with [return to work] date 9/16/06. Faxed this information to [Defendant] today." Doc. 37-7, Ex. E at 15. The notes from August 25, 2006 state:

Patient[']s return to work estimation is 9/16/06. This is indicated on C84's sent to Gallagher Bassett, Roadway, [and Roadway employees] Ron [Nietz], Lois [Mason-Williams], and Trevor [Van Berkom]. Apparently Roadway is stating they have not received any information from this office or the patient[']s attorney and they are using this against the patient to terminate his employment. We are giving the patient copies of all records faxed to appropriate parties.

Doc. 37-7, Ex. E at 13. Notes from August 28 state that "C84 estimated [return to work] is 9/16/06. [Dr. Dombeck] tried contacting Gallagher Bassett on Friday however Mindy Egan is not available until Tuesday. I will be expecting a call from her on Tuesday." Doc. 37-7, Ex. E at 12. Notes indicate that Dr. Dombeck had not heard from Ghallagher Bassett as late as September 5, 2006.

Plaintiff filed a grievance with the Union on August 24, 2006. Roadway held a hearing and denied the grievance. Plaintiff appealed to the Ohio Joint Session, which held a hearing on October 18, 2006 and. upheld the denial. Plaintiff was also denied state unemployment compensation because he was considered to have voluntarily quit his job. He filed this suit on February 15, 2007.

II. Summary Judgment

Summary judgment is appropriate where "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). The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or

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more essential elements of the non-movant's claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED.R.CIVP. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Harris v....