Whitten v. Fenner Dunlop Conveyor Sys. & Servs., Inc., Case No. 1:11cv889
| Decision Date | 26 July 2013 |
| Docket Number | Case No. 1:11cv889 |
| Parties | ROBERT WHITTEN et al, Plaintiffs, v. FENNER DUNLOP CONVEYOR SYSTEMS AND SERVICES, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiffs Robert Whitten and Daryl Spencer ("Plaintiffs") bring this action through counsel against Defendant Fenner Dunlop Conveyor Systems and Services, Inc., ("Fenner") asserting claims for disability discrimination and wrongful termination in violation of Ohio Rev. Code § 4112.02(A) and § 4113.01. This matter is now before the Court on Defendant Fenner's motion for summary judgment and supporting attachments and depositions (Doc. 40, Ex. 1-2; Docs. 30-37); Defendant's proposed undisputed facts (Doc. 41); and Plaintiffs' memorandum contra and supporting attachments and affidavits, including their response to Defendant's undisputed facts. (Doc. 43, Exs. 1-23, Docs. 44-46). Defendant's motion for summary judgment has been referred to the undersigned for initial consideration and a report and recommendation. 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, I now recommend that the Defendant's motion for summary judgment be GRANTED.
Fenner's business is the service and repair of conveyor belts installed in mines owned by third-party energy companies. Fenner's roster of Field Service Technicians travel to mines located primarily in Pennsylvania and West Virginia to service and repair industrial conveyor belts. (Doc. 40, Ex. 1, Affidavit of Dennis Edward Tate ¶2.)
Spencer and Whitten were employed by the Defendant, Fenner, at its Sabina, Ohio. They were hired in May and August of 2007 respectively by Fenner's predecessor Conveyor Services. (Doc. 41 at ¶ 2; 43 at pg.1). They were hired initially to serve as helpers on splice jobs, and in this role, they were required to do whatever the senior man asked or told them to do. Id.; (Doc. 32 Whitten Dep. p. 34). In their role as helpers, each also received on-the-job training and experience on how to perform a splice. (Doc. 33, Spencer Dep. p. 18; Doc. 32, Whitten Dep. p. 34). Both performed well and were each eventually promoted by Defendant to the position of technician. (Spencer Dep. p. 19; Whitten Dep. p. 37). Their official title was Tech 2. (Machak Dep. p. 23).
The service work is usually performed on weekends and nights when the mines are able to shut down portions of their elaborate conveyor belting system. (Spencer Dep., at 20; Whitten Dep. at 41). While there is no regular schedule for these jobs, since they occur as mines need their conveyor belts serviced, Fenner employees are usually notified during the workweek of the job site where they will be working that weekend. (Spencer Dep. 21). Since the mines generally need to get a belt up and running again as soon as possible to avoid disrupting operations, Fenner crews remainon the job as long as necessary to complete the repair work, taking anywhere from four hours to more than 20 hours. (Doc. 37, Machak Dep. at 19; Spencer Dep. 17.)
The planning for a job begins when a mine sends Fenner, through its sales representatives, a work order. (Doc. 34, L. Tate Dep. 22). Based on the extent of the work order, Fenner schedules a lead employee—a crew leader—and an appropriate number of technicians. (L. Tate Dep. 22). The crew for each job is usually three to five employees, including the crew leader. (Doc. 35, D. Tate Dep., at 9). A job begins with the crew's drive to the mine, which is paid time. (L. Tate Dep. 22). Usually, the crew takes turns driving and sleeping while they travel to the mine. (L. Tate Dep. 22).
If the work order indicates that the job will be an extended job, meaning that it will likely take more than 12 hours of work within the mine, Fenner schedules a relief crew to replace the original crew after 12 hours. (Machak Dep. 24; L. Tate Dep. 22-25; Spencer Dep. 22; Whitten Dep. 30-31, 46-47). Jobs that are expected to take less than 12 hours can often take longer, however, if the technicians encounter unanticipated delays at the mine site, such as power outages, water disruptions, or transportation issues. (L. Tate Dep. 22-23; D. Tate Dep. 14; Spencer Dep. 22). In those cases, since the job was not anticipated to take more than 12 hours, no relief crew will have been scheduled, and the original crew remains in the mine and completes the job. (L. Tate Dep. 22-23; Spencer Dep. 21). If the crew believes that the job will take much more than 12 hours and no relief crew is scheduled, they may call any number of Fenner managers to request a relief crew. (D. Tate Dep. 15-16; Machak Dep. 47; Spencer Dep. 25).
While there is no set company policy limiting the length of shifts, Fenner adopted a policy that requires employees who have worked for more than 16 consecutive hours to rest at a hotel for 10 hours before driving home. (D. Tate Dep. 30; Machak Dep. 46; Pl. Exh. 2). This policy is based upon a Department of Transportation ("DOT") regulation requiring such a rest period for those employees who drive commercial vehicles. Id. Fenner's employees, however, typically drive non-commercial trucks to job sites and thus are usually not subject to the DOT regulation. Id. Nevertheless, Fenner pays for hotel rooms on all jobs involving travel, to ensure crews sufficiently rest before traveling home. (Spencer Dep. 26; Whitten Dep. 50-51).
While the crew is in the mine working at their job site, a CONSOL mine employee is assigned to escort them. (Gilbert Dep. 16; Spencer Dep. 34; Whitten Dep. 71). The mine's union protocol calls for a unionized mine employee, sometimes referred to as a "babysitter" by Fenner crews, to escort Fenner crews through the mine and remain with them the entire time they work at a job site. (Gilbert Dep. 16; Spencer Dep. 34; Whitten Dep. 71-72). The escort generally stays within 10 to 20 feet of the crew so that he can see and hear the crew to make sure that they are working consistently and safely. (Spencer Dep. 42). Fenner employees are trained to refrain from voicing complaints or concerns to the mine escort, as the mine escort is an employee of Fenner's customer. (Gilbert Dep. 36; Spencer Dep. 35). Further, there is some friction between the miners, who are unionized, and Fenner's employees, who are not. (Gilbert Dep. 36; Spencer Dep. 35; Whitten Dep. 72-73). Accordingly, the job description for service technicians expressly requires them to "act professionally while traveling or while in the field." (Tate Aff. ¶2, Appendix A, job description).
In the event that Fenner employees have concerns at a job site, they are instructed to address these complaints internally within the company. Indeed, a laminated list of phone numbers of various Fenner employees, which includes members of management, is given to every employee, technician and crew leader alike. .
Prior to joining Fenner, both plaintiffs were diagnosed with bipolar disorder, a fact that they freely shared with their coworkers in casual conversation. (Spencer Dep. 14; Whitten Dep. 21-23, 24-25). As a result of their conditions, Plaintiffs would experience fluctuating mood swings resulting in periods of over-excitement and mania and periods of depression. (Spencer Dep. p. 15; Whitten Dep. pp. 19-20). Both would routinely become stressed out by the requirements of their jobs, especially if things went wrong, and would need to step away from the conveyor belt they were repairing and collect themselves. Id. Whitten testified that he talked openly about his bipolar disorder during "casual conversations" with his co-workers. (Doc. 32 at 23). Whitten testified that that he asked Butch Widget, a scheduler for Fenner, not to be scheduled with certain people Whitten did not get along with, including David Gilbert. (Doc. 32 at 24). Whitten testified that he never made any other requests. Id. Spencer's testimony also states in relevant part:
Both plaintiffs also testified that due to their bipolar disorder, they would occasionally become angry or frustrated and needed time to calm down. (Spencer Dep. 15, 27; Whitten Dep. 28-29). They also both testified that when that occurred, they were free to walk away from the belt they were working on until they had settled down. (Spencer Dep. 15; Whitten Dep. 98-99). In fact, they testified that they had done that on numerous occasions. Id.
The controversy of the instant case began on September 16, 2011 when the Plaintiffs were notified of a job the following day at a CONSOL mine in Blacksville, West Virginia to perform a splice in a conveyor line. (Doc. 41 at ¶ 12; Doc 43 at 6). On this particular job, and despite Whitten's request not to be scheduled with Gilbert, Gilbert was assigned as the lead man on the crew. (Spencer Dep. pp. 40, 50).
On Saturday, September 17, 2011, Plaintiffs and Gilbert reported to Defendant's Sabina location at 4:00 p.m. and proceeded to make the roughly five-and-a half-hour drive to the Blacksville mine together. (Gilbert Dep. pp. 11, 14; Spencer Dep. pp. 29-31). Defendant had scheduled this particular splice job in the past and estimated that itwould take between 12 and 14 hours to complete. (Machak Dep. p. 40). Thus, per company policy, no relief crew was scheduled. Id. at p. 41.
The five and a half-hour drive from Ohio to West Virginia was without incident, but once the crew reached the job site, they...
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