McDonald v. MT. Perry Foods, Inc.

Decision Date02 August 2011
Docket NumberCase No. C2:09-CV-0779
PartiesJOHN MCDONALD, Plaintiff, v. MT. PERRY FOODS, INC., Defendant.
CourtU.S. District Court — Southern District of Ohio


Magistrate Judge King


Plaintiff John McDonald has brought claims under state and federal law against his former employer, Defendant Mt. Perry Foods, Inc., for his allegedly unlawful termination in March 2009. The matter is now before the Court on the Parties' cross-motions for summary judgment (Docs. 17 & 18). For the reasons that follow, the Court DENIES the Plaintiff's motion and GRANTS in part and DENIES in part the Defendant's motion.


McDonald worked for Mt. Perry Foods, Inc. ("Mt. Perry") as a truck driver from April 24, 2007, until his discharge on March 16, 2009. While delivering goods to Michigan on June 26, 2008, McDonald's truck went off-road, and he injured his neck and shoulders. The following day, McDonald sought the treatment of Dr. Richard Shaw, a chiropractor with Zanesville Chiropractic. Dr. Shaw took x-rays of McDonald, identified a subluxation of the spine, and began a course of treatment that included manual manipulation of the spine to correct the subluxation. Dr. Shaw treated McDonald continuously through the date of his termination but did not x-ray McDonald's spine after June 27, 2008.

Although Dr. Shaw filed a First Report of Injury with the Bureau of Workers'Compensation ("BWC") on June 28, 2008, McDonald did not file a formal workers' compensation claim at the time of his injury. Instead, Mt. Perry paid for McDonald's medical care out-of-pocket through an internal program in which it paid the first $1,000 of expenses for work-related injuries directly to keep its workers' compensation premiums low. McDonald learned of this program from John Largent, Vice President of Operations at Mt. Perry, who was responsible for authorizing the payments to Zanesville Chiropractic.

At the initial visit, Dr. Shaw recommended that McDonald take time off of work. Nevertheless, McDonald did not miss any work from June 26, 2008 until January 5, 2009. According to McDonald, he was able to work despite his continuing pain because Mt. Perry accommodated his request for assistance with some of his more arduous tasks. Mt. Perry denies that McDonald ever asked for assistance due to his injuries or that any assistance was provided.

In August 2008, McDonald had a conversation with Kay Evans, the office manager and on-site human resources contact, about the possibility of taking leave. McDonald inquired whether there was any way for him to take medical leave while receiving full or partial compensation. McDonald recalls that Evans told him that he could take leave under the Family and Medical Leave Act; she added that the leave would be unpaid, and Mt. Perry could not guarantee that his position would be available to him when he returned. Evans recalls, in contrast, that they spoke about FMLA leave but that they did not talk about whether he would have a job when he returned. Because the leave was unpaid, McDonald decided not to take it.

McDonald's condition worsened until, in December 2008, Dr. Shaw and Largent agreed that McDonald should be placed on light duty. Dr. Shaw faxed a Physician's Report of Work Ability that stated that McDonald had to avoid bending over and more than occasional twisting, squatting, or reaching below the knee. On January 5, 2009, McDonald reported for his first day of light duty, which consisted of scooping cookies onto cookie sheets. McDonald discovered thatthe assignment required him to bend over a 3-foot table, to twist while placing the cookie sheet into a rack, and to stoop to place the trays onto the bottom levels of the rack. According to McDonald, the assignment caused him a severe headache and pain in his shoulders and neck.

McDonald called his chiropractor, but neither Dr. Shaw nor his partner, Dr. David Black, who also occasionally treated McDonald, was available. McDonald spoke instead with Stephanie Stackhouse, who scheduled McDonald for an appointment on the following day. Before McDonald left Mt. Perry around noon, he tried to locate his light-duty supervisor or Largent but was only able to speak with Tina Monroe, Transportation Supervisor for Mt. Perry, and Evans. According to McDonald, he told Monroe and Evans that he was leaving work on his chiropractor's advice. Monroe and Evans admit that they spoke with McDonald about his decision to leave early but deny that he told them that he was leaving because of his injury. Regardless, Largent has testified that he learned that day that McDonald had called his chiropractor before leaving. Later that afternoon, Dr. Black, on behalf of Dr. Shaw, faxed Mt. Perry a note excusing McDonald from work from January 5, 2009 through February 5, 2009.

McDonald claims that he communicated with Mt. Perry several times and through several different channels during the period he was on leave. According to McDonald, Dr. Black faxed a note to Mt. Perry on February 3, 2009 excusing McDonald from work from February 6, 2009 until March 6, 2009. On March 4, 2009, Dr. Black extended McDonald's leave for another month, or until April 8, 2009. Dr. Shaw completed a Physician's Report of Work Ability that released McDonald to return to work without restrictions as of March 13, 2009; Evans received this form at Mt. Perry on March 13, 2009.

McDonald also alleges that he spoke with Monroe and Evans during the period he was absent from work. He claims that he spoke with Monroe on three separate occasions about his medical status, about returning his rented uniform, and about his return to work, respectively.During his conversation with her about his return to work, conducted over the phone on March 13, 2009, Monroe told him that she would contact him about his assignment and where he should report for duty. McDonald claims that he spoke with Evans four times about topics including his medical status, insurance, the uniforms, and the date of his expected return.

Mt. Perry challenges most of these allegations. According to Mt. Perry, McDonald's original return-to-work date of February 5 passed without any communication from McDonald. Nor do Monroe or Evans support most of McDonald's claims. Monroe states, in an affidavit attached to the Defendant's response to the Plaintiff's motion, that she spoke with McDonald once about his final paycheck. She continues that she subsequently tried to contact him several times but that he did not return her messages. Evans likewise states, in an affidavit attached to the Defendant's response to the Plaintiff's motion, that she did not talk with McDonald about his medical status or his return to work. She claims that she spoke with McDonald's girlfriend once about health insurance and to either McDonald or his girlfriend once about the return of McDonald's uniform and company keys.

On Monday, March 16, 2009, McDonald received a letter of termination from Largent. The letter, dated March 17, 2009, communicated that Mt. Perry hired a replacement driver after it received McDonald's chiropractor's fax excusing him from work for one month. His position, therefore, was no longer open, and his discharge was effective March 16, 2009. Employee records reflect that Mt. Perry hired a new driver on January 12, 2009.

Meanwhile, McDonald initiated a workers' compensation claim with the BWC. He filed his formal claim on January 5, 2009 and filed an application for temporary total disability on January 15, 2009. The BWC denied his claim on January 29, 2009; McDonald appealed. While pursuing his claim with the BWC, McDonald submitted a report dated June 30, 2009 from Dr. Shaw indicating that the dates of McDonald's disability were January 6, 2009 through July 30,2009. Ultimately, McDonald settled the claim with Mt. Perry on July 29, 2010.

McDonald filed his complaint in this Court against Mt. Perry on September 4, 2009, alleging the following claims: (1) violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; (2) violation of the anti-retaliatory provision of the Ohio Workers' Compensation Act, Ohio Rev. Code Ann. § 4123.90; and (3) violation of Ohio public policy. McDonald and Mt. Perry each moved for summary judgment on all counts on December 15, 2009. The Court heard oral argument on the motions, and the matter is now ripe for decision.


Summary judgment is proper if "there is no genuine issue as to any material fact [such that] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). But "summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant therefore has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. But the non-moving party "may not rest merely on allegations or denials in its own pleading." Fed. R. Civ. P. 56(e)(2); see also Celotex, 477 U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The non-moving party must present "significant probative evidence" to show that there is more than "some metaphysical doubt as to the material facts." Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993). The standard of review forcross-motions of...

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