McQuain v. Ebner Furnaces, Inc., 1:98 CV 1386.

• Decision Date: 17 June 1999
• Docket Number: No. 1:98 CV 1386.,1:98 CV 1386.
• Citation: 55 F.Supp.2d 763
• Parties: Keith A. McQUAIN, Plaintiff, v. EBNER FURNACES, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

55 F.Supp.2d 763

Keith A. McQUAIN, Plaintiff, v. EBNER FURNACES, INC., Defendant.

No. 1:98 CV 1386.

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

June 17, 1999.

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Thomas S. Kot, Armbruster & Kelley, Akron, OH, Katherine Hart Smith, Akron, OH, for plaintiff.

David T. Andrews, Evelyn P. Schonberg, Ross, Brittain & Schonberg, Cleveland, OH, for defendant.

MEMORANDUM OPINION AND ORDER

NUGENT, District Judge.

This matter comes before the Court on Defendant's Motion for Summary Judgment. For the reasons stated below, Defendant's Motion for Summary Judgment (Document # 17) is GRANTED. Plaintiff's federal law claims, and OHIO REV. CODE § 4112 claim, are DISMISSED. Plaintiff's state law claim under OHIO REV. CODE § 4123.90 is REMANDED to the state court for further proceedings.

Factual and Procedural History¹

Plaintiff, Keith McQuain, filed this civil action against Defendant, Ebner Furnaces, alleging that Defendant violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; OHIO REV.CODE §§ 4112.02(A), 4112.99 (disability discrimination); and OHIO REV.CODE § 4123.90 (workers' compensation retaliation).

Plaintiff began working for Defendant on July 2, 1989, as a receiving clerk in the shipping and receiving department. (McQuain Dep. at 34.) Plaintiff checked incoming shipments and stored the contents on shelves. (McQuain Dep. at 34-35.) He was put in charge of receiving in 1991. (McQuain Dep. at 37.) In this capacity, Plaintiff unloaded delivery trucks, opened the boxes and unloaded the contents, checked the orders for accuracy and damage, stored the contents on shelves, recorded the location of the contents, delivered parts within the company, and occasionally made interstate deliveries. (McQuain Dep. at 37-38.) Plaintiff was required to lift items of up to 150 pounds, on average, two or three times per day and items over 50 pounds fifty or sixty times per day. (McQuain Dep. at 40.)

Plaintiff suffered an accident while unloading a delivery when nine bottles of welding fuel fell on Plaintiff from the lift gate of a delivery truck on August 3, 1993. (McQuain Dep. at 50-53.) Plaintiff returned to work within one week. (McQuain Dep. at 55.) Plaintiff's doctors discovered, in October 1993, that as a result of the accident Plaintiff had two crushed vertebrae and four ruptured disks. (McQuain Dep. at 57.) In November 1993, Plaintiff's doctors notified Defendant that Plaintiff could not perform any heavy lifting at his job. (McQuain Dep. at 59.) Plaintiff's physician placed him under restrictions of no bending, stooping, reaching, pushing, pulling, or lifting anything over twenty pounds. (McQuain Dep. at 62.) However, his pain worsened and on January 26, 1994, Plaintiff took his first extended leave of absence in order to undergo surgery, which resulted in Plaintiff being placed in a body cast. (McQuain Dep. at 57-69.)

Plaintiff was well enough to return to work on August 29, 1994, in a part-time capacity; he worked four hours per day as a quality control inspector. (McQuain Dep. at 83, 88.) Defendant had filled Plaintiff's former position in the receiving department. (McQuain Dep. at 81.) Plaintiff, however, admitted that he could no longer do certain aspects of that job, such as the physical lifting and carrying over 50 pounds. (McQuain Dep. at 81.) Defendant offered Plaintiff a new part-time position in the quality control department, which Plaintiff accepted. (McQuain Dep. at 82-83.) The duties of this new position included clerical work, physically checking parts and purchase orders, filing of requisitions and certifications, and inspecting and testing the incoming steel. (McQuain Dep. at 83-87.) The lifting involved in this position did not exceed 30 pounds. (McQuain Dep. at 83.) After six weeks on this new job, in October 1994, Plaintiff experienced further problems with his leg and back. (McQuain Dep. at 91-93.) Plaintiff's doctor recommended that Plaintiff should not continue working; as a result, Plaintiff took his second leave of absence. (McQuain Dep. at 92-93.) The second leave lasted for seven months; from October 1994 to circa May 1995. (McQuain Dep. at 93.)²

In January 1995 (while Plaintiff was still out on leave), Defendant, in consultation with the Bureau of Workers' Compensation, created another position for Plaintiff called an installation clerk. (Weigand Dep.Ex. 5.) Defendant described the position to Plaintiff's doctors in a letter dated March 16, 1995. (Weigand Dep.Ex. 6, 7.) Plaintiff did not immediately take the job because he was recovering from surgery. (McQuain Dep. at 135.)

As noted above, seven months after taking a leave of absence from the quality inspector position (circa May 1995), Plaintiff returned to work. (McQuain Dep. at 93.) He performed clerical work in three departments: quality control, production, and installation. (McQuain Dep. at 93-95.) Plaintiff's duties included filing, answering the phone, and computer input. (McQuain Dep. at 95.) Plaintiff started working four hours per day, three days per week, progressing to six hours per day, five days per week. (McQuain Dep. at 96.) Thereafter, Plaintiff experienced further problems with his leg muscles, back, and other work-related stress. (McQuain Dep. at 98-100.) The work-related stress was due to the claimed behavior of fellow workers, who allegedly had been instructed not to talk to Plaintiff, but rather to isolate him and humiliate him so that he would quit. (McQuain Dep. at 101-13.) Pursuant to his doctor's recommendation, Plaintiff took a third leave of absence. (McQuain Dep. at 100.) The third leave of absence lasted until July 1996. (McQuain Dep. at 141.)

Plaintiff again returned to work in July of 1996 in the position of installation clerk. (McQuain Dep. at 141; Weigand Dep. at 64; Weigand Dep.Ex. 10.) In this position, Plaintiff had walking and carrying limitations. (Weigand Dep.Ex. 10.) Within four months, on November 8, 1996, Plaintiff went on his fourth leave. (Weigand Dep.Ex. 8.) This was the third position that Plaintiff had since his injury: he left the part-time quality control position because of pain to his leg and back; he could not perform the clerical work position even on a part-time basis; and, he could not sustain the work in the position of installation clerk — a job created especially for him by Defendant and the Bureau of Workers' Compensation. In 1997, Defendant continued to pay Plaintiff wage continuation in lieu of paying workers' compensation because Defendant believed that it was more cost effective for it to do so. (Weigand Dep. 69-70; Weigand Dep. Ex. 10.)

In early 1997, Plaintiff allegedly told several of Defendant's management personnel that he wanted to return to work. (McQuain Dep. at 147-48.) In June 1997, Plaintiff allegedly provided Defendant with a doctor's note allowing Plaintiff to return to work with certain restrictions. (McQuain Dep. at 148.) Defendant informed Plaintiff on September 5, 1997, that as of September 1, 1997, it would count his medical leave as "qualified medical leave under the provisions of the Family and Medical Leave Act." (McQuain Dep. at 145-46; McQuain Dep.Ex. 8, 9.)

By October 7, 1997, Plaintiff notified Mark Weigand, Human Resources Manager, that he could return to work forty hours per week with an accommodation of light duty or sedentary work. (Weigand Dep.Ex. 10; McQuain Dep. at 149; Weigand Dep. at 90-92.) Defendant stated that there were no positions open at that time. (Weigand Dep. at 94.) Plaintiff claims that he handed a medical report to Mr. Weigand in the first week of October (McQuain Dep. at 149). Defendant, however, contends that Plaintiff handed Mr. Weigand the report on October 28, 1997 — the date which is time-stamped on Defendant's copy of the report. (Weigand Dep. Ex. 10, 18.) The medical report, dated October 6, 1997, stated that Plaintiff's restrictions were permanent. According to the report, Plaintiff could sit for four hours per day; stand for three hours per day; could occasionally bend, squat, crawl, climb, and reach; could never lift over 50 pounds, but could lift 11-50 pounds occasionally and 5-10 pound frequently; could never carry over 26 pounds, but could carry 5-25 pounds occasionally; could not use his hands in repetitive action in pulling and pushing arm controls; and, could not use his feet in repetitive movements of leg controls. (Weigand Dep.Ex. 18.) At this time, Defendant considered Plaintiff to be out on leave under FMLA. (Weigand Dep. at 92-93.)

Defendant examined "very closely and viewed heavily" Plaintiff's medical report. Mr. Weigand testified that "the main thing was, did we have a job open that met the limitations and, you know, that was really the driving factor." (Weigand Dep. at 100.) On November 4, 1997, Plaintiff called Jim O'Brien, the Vice President of Operations, regarding his return-to-work status with Defendant. (Weigand Dep. at 98.) After reviewing the medical release from Plaintiff's doctor and considering Plaintiff's physical limitations, Defendant determined that Plaintiff would not be able to return to his position in shipping and receiving, and there were no other positions available for a person with Plaintiff's qualifications. (Weigand Dep. at 109-10.)

On December 9, 1997, Defendant wrote to Plaintiff stating that as of November 30, 1997, Plaintiff's employment was terminated. (McQuain Dep.Ex. 12.) On December 30, 1997, Plaintiff filed a charge of disability discrimination with the Ohio Civil Rights Commission (OCRC) and the Equal Employment Opportunity Commission (EEOC). The EEOC issued Plaintiff a right to sue letter on April 21, 1998. Plaintiff filed suit in state court on May 15, which Defendant removed to federal court on June 16, 1998. Defendant filed its Motion for Summary Judgment on February 26, 1999. Plaintiff filed a...