Pollitt v. Roadway Exp., Inc.
| Decision Date | 27 September 2002 |
| Docket Number | No. C-3-00-426.,C-3-00-426. |
| Citation | 228 F.Supp.2d 854 |
| Parties | Paul D. POLLITT, Plaintiff, v. ROADWAY EXPRESS, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Marc David Mezibov, Christian A. Jenkins, Sirkin Pinales Mezibov & Schwartz, Cincinnati, OH, for Plaintiff.
Robert Joseph Hollingsworth, Curtis L. Cornett, Cors & Bassett LLC, Cincinnati, OH, for Defendant.
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. # 10)
In the underlying case, Plaintiff Paul D. Pollitt claims that his employer, Defendant Roadway Express, Inc. ("Roadway"), discriminated against him on the basis of his age and disability. He pleads four claims for relief. In Count One, he alleges age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). In Count Two, he alleges disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). In Count Three, he alleges age and disability discrimination in violation of Ohio Rev. Code § 4112.01, et seq. Finally, in Count Four, he alleges retaliation in violation of the ADEA, the ADA, and Ohio Rev.Code § 4112.01, et seq. Contending that the facts do not support a finding of discrimination or retaliation on its part, Roadway now moves for summary judgment. (See Doc. # 10.)
In early January, 1999, after a nearly 17-year health-related hiatus from all work, Pollitt notified his employer, Roadway, that he was fit to return to work as of February 1 of that year. Having had very little contact with Pollitt over the course of the preceding 17 years, and in light of his previous health problems, Roadway expressed skepticism as to his fitness for employment. What ensued was a 17-month dispute over whether Pollitt had provided Roadway with sufficient medical evidence of his fitness for duty. Exacerbating the dispute was the fact that Roadway had removed Pollitt from its seniority list in the early 1990s, on the assumption that he was no longer employed with the company. On June 28, 2000, Pollitt was reinstated to his former position with his original seniority.
The question presented by his Complaint (Doc. # 1) is whether that 17-month "delay" was the product of age or disability-based animus, on the part of Roadway, or was, rather, merely the result of Roadway's legitimate expectation that he provide a detailed accounting of his health, with particular regard for the specific injuries for which he had applied for workers' compensation benefits during his extended period of unemployment.
For the reasons which follow, the Court finds that there are genuine issues of material fact, such that reasonable persons could disagree on whether Roadway discriminated against Pollitt on the basis of age and/or disability. Accordingly, Roadway's Motion for Summary Judgment shall be OVERRULED as it relates to Pollitt's discrimination claims. As it relates to Pollitt's retaliation claim, the Court finding no genuine issue of material fact with respect thereto, Roadway's Motion shall be SUSTAINED.
Roadway is an international freight delivery company. (Blackert Depo. at 22.) Beginning in March of 1959, Pollitt was employed as a pickup and delivery driver ("P & D driver") and dock worker at Roadway's Dayton terminal. (Id. at 23; Pollitt Depo. at 27.) As a P & D driver, his job duties included picking up and delivering freight from and to customers in the Dayton area. (Blackert Depo. at 23-24.) Although Roadway as a whole employed its own interstate truck drivers (known as over-the-road carriers), its drivers working out of the Dayton terminal were exclusively local P & D drivers. (Id. at 22-23.)
At all relevant times, Robert Blackert was the manager of Roadway's Dayton terminal (Id. at 7), and John Ferrone was a Roadway manager of labor relations, serving as a Roadway regional vice president of labor relations until around 1995, and thereafter as the vice president of labor relations for the entire Roadway organization. (Ferrone Depo. at 5.) Pollitt, as with all employees in his position, was a member of the Teamsters Union, and the terms of his employment were set forth in a collective bargaining agreement known as the National Master Freight Agreement and Central Region Local Cartage and Over-the-Road, Motor Freight Supplemental Agreement ("CBA"). (Pollitt Depo. at 27-28; Ferrone Depo. at 8 & Ex. 20.) Labor disputes arising under the CBA were to be decided by the Ohio Joint State Grievance Committee ("OJSGC"). Pension and unemployment welfare benefits were offered by the Teamsters through the union's Central States Health and Welfare Plan ("Central States Fund"). (Pollitt Depo. at 141.)
While at Roadway, Pollitt suffered two serious industrial accidents. The first occurred in 1978 and resulted in his obtaining workers' compensation benefits and missing work for about a year. (Id. at 132-33.) The second occurred in 1981, again resulting in his filing for workers' compensation and having to miss work for about a year. (Id. at 134-36, 140.) Not long after his return to work in or around March of 1982, Pollitt's physician instructed him to take off work indefinitely, which he did, until he began working for Roadway again in June of 2000. (Id. at 137.) He continued to receive workers' compensation benefits until some time in 1986 or 1987. (Id. at 154-55.) At some point in the 1980s, Pollitt applied for and received disability benefits through the Central States Fund, and continued to receive such until around the time he returned to work for Roadway in June of 2000. (Id. at 141-45, 372.) He also received Social Security disability benefits ("SSD") (id. at 147), and continued to receive such for about nine months after his return to work. (Id. at 148, 372.) During his absence, he was considered totally and permanently disabled. (Id. at 371-72.)
Between 1982 and 1989, Pollitt, then living in Florida, did not work, and did not engage in any rigorous physical activity, on account of his physical condition. (Id. at 157-60.) On several occasions during that time, he contacted Blackert. (Id. at 41 & 44; Blackert Depo. at 5, 7-8.) These contacts concerned workers' compensation issues, and Blackert told him to communicate exclusively with Roadway's workers' compensation department and the company's attorneys.1 (Pollitt Depo. at 41-46, 173-74.) In June of 1986, Pollitt filed a claim for permanent and total disability benefits through the Ohio workers' compensation system. (Id. at Ex. 16, at Bates-stamped doc. # s 02327-02329.) For reasons not explained to the Court, the Ohio Industrial Commission did not rule on this claim until 1994. (Id.) In 1991, at the suggestion of Roadway, Pollitt visited a Dr. Schneider, in St. Petersburg, Florida, who recommended that he try to rehabilitate himself. (Id. at 160-64.) Dr. Schneider identified 17 separate ailments of which Pollitt complained, and stated that it was his medical opinion that Pollitt was "permanently and totally impaired." (Id. at Ex. 6, at Bates-stamped doc. # s 03043-03045.)2 However, Dr. Schneider opined that only 25% of Pollitt's physical impairments was related to his two prior work-related industrial accidents, and that, therefore, he was not totally disabled on account of his work-related injuries. (Id.) On the basis of Dr. Schneider's medical opinion and report, the Industrial Commission, in 1994, denied Pollitt's 1986 benefits claim for permanent and total disability benefits. (Id. at Ex. 16, at Bates-stamped doc. # 02329.) Therefore, Pollitt did not undergo rehabilitation at that time. (Id. at 162 & 164.)
Meanwhile, also in the early 1990s, Roadway management was directed by its workers' compensation department to remove Pollitt from its seniority list. (Blackert Depo. at 37-39.) Under Article 43 of the CBA, an employee's seniority can be broken only by "discharge, voluntary quit, normal retirement, or more than a five (5) year layoff." (Ferrone Depo. at Ex. 20, at 168.) There is no dispute that Pollitt was never discharged or laid off, and Roadway has no documentation that he ever quit or retired. (Id. at 13-15; Blackert Depo. at 74 & 76.) There is also no question that Roadway never notified Pollitt that his name had been removed from the seniority list. (Ferrone Depo. at 13-15; Pollitt Depo. at 178 & 182.) Roadway management simply "assumed" that its workers' compensation department had a bona fide reason for directing it to remove him in such fashion. (Ferrone Depo. at 13.)
In 1995, another physician, Dr. Ronald Grove, recommended that Pollitt receive physical rehabilitation, but he was again denied workers' compensation benefits. (Pollitt Depo. at 164-65.) In 1998, although he did not receive workers' compensation benefits to cover the cost,3 Pollitt began rehabilitation treatment, which continued until the end of 1998, at which time Dr. Ronald Grove released him with a clean bill of health and permission to return to work beginning February 1, 1999. (Id. at 165-70 & Ex. 5, at Bates-stamped doc. # 02012.)4
Upon receiving his medical release, Pollitt contacted his union representative, Doug Davis, who in turn told him to contact Blackert. (Id. at 174-75.) At Blackert's request, Pollitt faxed him a copy of Dr. Ronald Grove's release, but did not hear back from him before February 1. (Id. at 176, 178.) Of his own volition, on January 26, 1999, Pollitt received and passed a physical evaluation from a medical group regularly utilized by Roadway for purposes of evaluating the fitness of its drivers and assuring they satisfy certain conditions imposed upon truck drivers by the Ohio Department of Transportation. (Id. at 178-80; Blackert Depo. at 59-60 & Ex. 3.) Then, on February 1, he reported to work at Roadway, where he was told by Blackert that he had been taken off the...
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