Niles v. Nat'l Vendor Serv. Inc
| Decision Date | 28 September 2010 |
| Docket Number | No. 10AP-128,C.P.C. No. 07CVH08-10598,10AP-128 |
| Citation | 2010 Ohio 4610 |
| Parties | William Niles, Plaintiff-Appellant, v. National Vendor Services, Inc., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Demers & Adams, LLC, and Sharon Cason-Adams, for appellant.
Dinsmore & Shohl LLP, Michael S. Glassman, and Kelly L. Kauffman, for appellee.
(REGULAR CALENDAR).
APPEAL from the Franklin County Court of Common Pleas.
DECISION
{¶1} Plaintiff-appellant, William Niles ("Niles"), appeals from a decision of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, National Vendor Services, Inc. ("NVS").
{¶2} Niles initiated this action with a complaint alleging violations by his former employer, NVS, of the Ohio Civil Rights Act, R.C. 4112.02 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. 2917.
{¶3} NVS is a retail service company that for the period at issue provided stocking and merchandising services under contract with Lowe's Companies, Inc., the parent company of the well-known home improvement and hardware chain. NVS employees, commonly referred to as merchandisers in the industry and specifically titled as "service managers" by NVS, managed stock, arranged display products, and maintained signage according to written instructions provided by Lowe's. Niles began working for NVS as a service manager in October 2003, principally attending to the outdoor power equipment section of Lowe's stores.
{¶4} The complaint alleges that Niles took an approved medical leave from November 10, 2005 until January 21, 2006, because he had been diagnosed with hypertrophic cardiomyopathy of the left ventricle. On November 14, 2005, Niles received a surgically implanted defibrillator and pacemaker for this condition. The complaint further alleges that Niles was released by his physician to return to work on or about January 21, 2006, subject to his physician imposing a permanent lifting restriction prohibiting Niles from lifting more than 10 to15 pounds with his left (non-dominant) arm, with no corresponding restriction on his right arm.
{¶5} NVS formally terminated Niles on January 30, 2006 when NVS requested and received from Niles confirmation that the lifting restriction was permanent. NVS deemed that this physical restriction prevented Niles from performing the essential functions of his position.
{¶6} Count 1 of the complaint alleges that Niles, due to the above-described heart condition and other pre-existing ailments, was an individual with a disability as defined under R.C. 4112.01, and NVS committed unlawful discrimination when it failed to discuss an accommodation with Niles that would potentially allow him to return to work with his medical restrictions.
{¶7} Count 2 of the complaint alleges that NVS violated the FMLA because, upon his return from leave, Niles was entitled to be restored to his former position or one with equivalent pay, benefits, and other terms and conditions of employment. The complaint further alleges that NVS terminated Niles in retaliation for taking his statutorily-entitled leave under the FMLA.
{¶8} The trial court granted NVS's motion for summary judgment. The trial court found that Niles had failed to establish his prima facie claim for disability discrimination because he had not rebutted NVS's evidence that his lifting restrictions prevented him from performing the essential functions of his former position. The trial court also found that Niles had not presented evidence that NVS had refused to discuss an accommodation to allow Niles to work, nor that Niles had even sufficiently requested such an accommodation. Although these grounds sufficiently supported summary judgment on the R.C. Chapter 4112 claims, the court specifically declined to rely on the additional proposed ground that Niles had failed to preserve a genuine issue of material fact on the question of whether he was a disabled person as defined in the statute.
{¶9} With respect to the FMLA claim, the trial court found that his re-hire rights under the FMLA were ineffective because Niles was unable to perform the essentialfunctions of his position due to his physical condition, and the FMLA does not guarantee re-hire rights to a different position from the one from which leave was taken.
{¶10} Niles has timely appealed and brings the following four assignments of error:
{¶11} We initially note this matter was decided in the trial court by summary judgment, which under Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the non-moving party has no evidence to prove itscase. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. Rather, the moving party must point to some evidence that affirmatively demonstrates that the non-moving party has no evidence to support his or her claims. Id.
{¶12} An appellate court's review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Bard v. Soc. Natl. Bank, nka KeyBank (Sept. 10, 1998), 10th Dist. No. 97APE11-1497. Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445. As such, we have the authority to overrule a trial court's judgment if the record does not support any of the grounds raised by the movant, even if the trial court failed to consider those grounds. Bard.
{¶13} Appellant's first assignment of error asserts that the trial court erred in concluding that there remained no genuine issue of material fact on the question of whether Niles was physically unable to perform the essential functions of his former position with NVS. The FMLA grants eligible employees with a "serious health condition" the right to take as much as 12 weeks of unpaid leave in a 12-month period. 29 U.S.C. 2612(a)(1). An employee who takes such leave "shall be entitled, on return from such leave * * * to be restored by the employer to the position of employment held by the employee when the leave commenced[,] or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. 2614(a)(1). In enforcement of these leave rights, 29 U.S.C. 2615(a)(1) and (2) make it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA, or to "discharge or any othermanner discriminate against any individual for opposing any practice made unlawful" by the FMLA.
{¶14} The United States Court of Appeals for the Sixth Circuit accordingly recognizes two distinct theories for recovery under the FMLA: the "entitlement" or "interference" theory drawn from 29 U.S.C. 2615(a)(1), and a "retaliation" or "discrimination" theory based on 29 U.S.C. 2615(a)(2). Hoge v. Honda of Am. Mfg., Inc. (C.A.6, 2004), 384 F.3d 238, 244. In the present appeal, Niles argues under the interference theory. In order to make such a claim, Niles must establish that (1) he was an eligible employee, (2) NVS is a covered employer, (3) he was entitled to leave under the FMLA, (4) he gave NVS notice of his intent to take leave, and (5) NVS denied his right to be restored to the same position or a comparable one. Id.; Cavin v. Honda of Am. Mfg., Inc. (C.A.6, 2003), 346 F.3d 713, 719.
{¶15} Applicable regulations further define the conditions under which the right to reinstatement under 29 U.S.C. 2614(a)(1) can be exercised: "If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition * * *, the employee has no right to restoration to another position under the FMLA." 29 C.F.R. 825.216(c) (formerly codified at 29 C.F.R. 825.214(b)). Thus, if the employee is unable to perform the essential functions of the position or a comparable one when FMLA leave expires, the employee is not entitled to reinstatement. Reynolds v. Phillips & Temro Industries, Inc. (C.A.8, 1999), 195 F.3d 411, 414; Green v. Alcan Aluminum Corp. (C.A.6, 1999), 198 F.3d 245 ().
{¶16} In the present case the question is whether Niles was capable of performing, despite his lifting restrictions, the essential functions of his former position. NVS asserts that the evidence before the trial court in support of summary judgment was undisputed and that Niles could no longer perform the essential functions of his job. Mark Phipps, a former district manager for NVS, testified that the service manager position held by Niles would...
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