Sosby v. Miller Brewing Co.

• Decision Date: 12 October 2005
• Docket Number: No. 1:02CV837.,1:02CV837.
• Citation: 415 F.Supp.2d 809
• Parties: Karen SOSBY, Plaintiff, v. MILLER BREWING CO., Defendant.
• Court: U.S. District Court — Southern District of Ohio

Page 809

415 F.Supp.2d 809

Karen SOSBY, Plaintiff, v. MILLER BREWING CO., Defendant.

No. 1:02CV837.

United States District Court, S.D. Ohio, Western Division.

October 12, 2005.

COPYRIGHT MATERIAL OMITTED

Mark Joseph Byrne, Jacobs, Kleinman, Seibel McNally—1, Cincinnati, OH, for Plaintiff.

Jeffery L. Van Way, Baker & Hostetler LLP, Cincinnati, OH, Ronald Gordon Linville, Baker & Hostetler-2, Columbus, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

WATSON, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 31) Plaintiff has filed a Memorandum in Opposition. (Doc. 38) Defendant has filed a Reply. (Doc. 41) This matter is now ripe for review.

I. FACTUAL BACKGROUND

Plaintiff was last employed by Defendant in their Trenton, Ohio brewery as a forklift driver. (Sosby Depo. at 80) On May 14, 1998, Plaintiff suffered a back injury on the job. (Id. at 91-92). Plaintiff was treated in the emergency room where she reported that she had problems with her back in the past, and was being treated by Dr. Gula, her orthopaedic physician. (Sosby Depo. Ex. 9). Plaintiff did not immediately miss any work due to the injury. (Id. at 92) However, Plaintiff continued to suffer back pain, and on July 8, 1999 Dr. Gula required that she take off from work until further notice. (Sosby Depo, Ex. 10; Sosby Depo. at 93) Shari Moler, Defendant's workers' compensation manager, FMLA manager, and transitional work manager, contacted Plaintiff to attempt to persuade her to get a second opinion from a company-paid physician to determine the extent of her injuries. (Moler Depo. at 18; Moler Depo., Ex. 1) Plaintiff initially refused to see a company-paid physician, but later changed her mind. (Id., Ex. 1) On August 23, 1999, Plaintiff saw Dr. Staley, who concluded that Plaintiff could return to work without any restrictions. (Id.) After receiving Dr. Staley's report, Moler contacted Dr. Gula four times in an attempt to find out if Plaintiff could return to work with restrictions to her regular job duties (Id.) Dr. Gula released Plaintiff to return to work on November 1, 1999 with restrictions on lifting, bending and squatting. (Id.) These restrictions were approved by her team for thirty days. (Id.)

Upon returning to work, Plaintiff met with her team before she began working her shift. (Sosby Depo. at 96)¹ Plaintiff testified in her deposition that although she was aware that she had work restrictions, she was unaware of what the actual restrictions were. (Id. at 106-107) Plaintiff states that she was instructed by Don Belfort, her team manager, to perform her regular job duties, which she proceeded to do without complaint. (Id.) After a couple of hours, Plaintiff developed pain in her foot. (Id. at 97).² In an Accident/Incident Report, Plaintiff stated that the injury to her foot occurred while she was walking from the team room to the glass warehouse. (Sosby Depo. Ex. 13) However, in her deposition, Plaintiff testified that the pain in her foot had been present since the 1998 back injury and was aggravated when she was climbing on and off of her forklift on November 1, 1999. (Sosby Depo. at 119)³ Plaintiff explained that she told Rick Wilson, the Material Services Department Manager, that her back was hurting and she was having a hard time walking. (Id. at 121)⁴ Plaintiff testified that she then complained to Moler that she had back pain and trouble walking because Defendant had requested that her doctor release her to work again before she was ready. (Id. at 121) Moler informed Plaintiff that it was Dr. Gula and not Defendant who had released her to return to work. (Id. at 118, 121)

Plaintiff continued to work the rest of her shift on November 1st and also reported for work as scheduled on November 2nd. (Id. at 121-22) Shortly thereafter, Plaintiff went to the hospital for treatment of her foot injury. (Id. at 122-23) On November 8, 1999, Dr. Gula saw Plaintiff for her foot injury and restricted her from work until further notice. (Id. at 124; Sosby Depo. Ex. 14). Dr. Gula released Plaintiff to return to work without any restrictions on January 3, 2000. (Id., Ex. 14)

In February of 2000, Plaintiff claims she re-injured her left foot while working, but did not complete any workers' compensation or short-term disability paperwork because she did not want to miss any work. (Sosby Depo. at 133) Defendant provided Plaintiff with a special parking pass to reduce the distance that she would have to walk in order to accommodate her injury. (Id.)

Also in February of 2000, Plaintiff and Moler discussed the company's position that Plaintiff's November 1999 injury was not work-related because Plaintiff had listed on the injury report that the injury occurred when she was walking in the plant. (Id. at 138) Moler gave Plaintiff examples of injuries which would be work-related, such as one which occurs while climbing on or off of a forklift. (Moler Depo., Ex. 1; Sosby Depo. at 136) Plaintiff denies that Moler specifically mentioned such an injury. (Sosby Depo. at 136)

On March 3, 2000, Plaintiff suffered a foot sprain while she was getting down off of her forklift. (Id. at 140, 145-47) Plaintiff reported to co-workers that she experienced immediate pain and swelling that was much worse than previous injuries. (Id. at 148) X-rays taken in the emergency room revealed no fracture, and Plaintiff's foot did not show any heat, redness, or swelling. (Id. at 155; Ex. 20). The emergency room physician released Plaintiff to return to work with light duty restrictions and recommended that she follow up with Dr. Gula. (Id.) Plaintiff did not return to work and did not return Moler's phone calls inquiring about her status. (Sosby Depo. at 157; Moler Depo. Ex. 1 at 12) On March 10th, Moler reached Plaintiff by phone and asked her to undergo an evaluation by the company physician, but Plaintiff did not do so. (Sosby Depo. at 161-63; Moler Depo. at 94-95)

Moler was suspicious of Plaintiff's latest injuries for various reasons, including the emergency room records which contradicted Plaintiff's claim of swelling in her foot, and the fact that Plaintiff's leave coincided with vacations of her husband and her sister, who were also employed by Defendant. (Moler Depo at 84, 64-65, 87) Moler ordered surveillance of Plaintiff's home between March 10 and 14, 2000. (Moler Depo. at 88; Sosby Depo. Ex. 5) The surveillance showed that Plaintiff was not at home. (Moler Depo. at 88) On March 22, 2000, Moler rejected Plaintiffs workers' compensation claim for the March 3, 2000 injury because she felt that the claim was manufactured. (Id. at 106) Moler explained that test results from the hospital were contradictory to the symptoms that Plaintiff reported. (Id.; Ex. 1, at 10)

On March 29, 2000, Plaintiff filed a discrimination claim with the OCRC, alleging that Defendant denied her worker's compensation claim because of her race, sex, and disability; and Defendant forced her to do work in violation of her doctor's restrictions. (Sosby Depo. Ex. 25)

On April 6, 2000, Plaintiff underwent an independent medical examination by Dr. David Randolph at Defendant's request. (Moler Depo. at 114-18) Dr. Randolph concluded that Plaintiffs claimed injuries and her medical treatment were inconsistent with her description of the March 3, 2000 accident. (Id. at 120-21)

Moler testified that Plaintiff's refusal to see a company physician and Dr. Randolph's report further raised suspicions that Plaintiff's workers' compensation claim may have been fraudulent. (Id. at 124) Moler ordered another round of surveillance of Plaintiffs home that began on May 6, 2000. (Id. at 130) During the surveillance, Plaintiff was seen working in her yard for over three hours. (Doc. 31, Ex. 3) Plaintiff was observed carrying flats of flowers, carrying yard tools from the garage to the front yard, bending at the waist planting flowers and picking weeds for several minutes at a time without standing up, watering her garden while standing and walking, and working on her hands and knees for several minutes at a time. (Id.)

On May 19, 2000, Dr. Gula extended Plaintiffs medical leave to June 5, 2000. (Sosby Depo., Ex. 5) Dr. Gula stated that Plaintiff was unable to perform any and all job duties. (Id.)

On May 22, 2000, Plaintiff wrote a letter to the OCRC to withdraw her complaint against Defendant, stating that she was unable to obtain legal representation and received legal counsel that the statute of limitations had run. (Id., Ex. 29) On June 5, 2000, Plaintiff returned to work with no restrictions. (Id., Ex. 5; Id. at 160) Plaintiff s discrimination charge was officially withdrawn with the OCRC on July 12, 2000. (Id., Ex. 31)

A workers' compensation hearing was held on August 8, 2000 for Plaintiffs March 3, 2000 injury. (Id., Ex. 21) Plaintiff was only aware of the March surveillance, and only learned of the May surveillance during the hearing. (Id. at 168-69; Id., Ex. 24) When questioned during the hearing, Plaintiff testified that she was "completely in bed" and did not do any yard work between the time of her injury in March 2000 and her return to work on June 5, 2000. (Id., Ex. 21)⁵

On August 25, 2000, Steve Mellott, the Human Resources Manager at the Trenton brewery, advised the union that Defendant intended to terminate Plaintiff upon her conviction for workers' compensation fraud. (Moler Depo., Ex. 1) However, Mellott learned soon thereafter that the State of Ohio was unlikely to fully prosecute Plaintiff for workers' compensation fraud; and even if it did, prosecution would be a prolonged process and conviction was not guaranteed. (Id. at 18-19, 32-33). Because of the uncertainty of whether the matter would be prosecuted, Mellott instructed Thomas Mobley, Employee Relations Manager for Defendant, to begin an internal investigation. (Id.) The investigation was meant to give Plaintiff an opportunity to explain her testimony at the August 8, 2000 hearing...