Wylie v. Arnold Transp. Services, Inc.

• Decision Date: 25 September 2006
• Docket Number: No. 3:05cv183.,3:05cv183.
• Parties: Larry WYLIE, Plaintiff, v. ARNOLD TRANSPORTATION SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

494 F.Supp.2d 717

Larry WYLIE, Plaintiff, v. ARNOLD TRANSPORTATION SERVICES, INC., et al., Defendants.

No. 3:05cv183.

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

September 25, 2006.

COPYRIGHT MATERIAL OMITTED

Lucas W. Wilder, Dayton, OH, for Plaintiff.

Alison Day Hall, Littler Mendelson PC, Columbus, OH, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION' FOR SUMMARY JUDGMENT (DOC. # 12); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

At the age of 52, Plaintiff began his employment with Defendant Arnold Transportation Services, Inc. ("Defendant"),¹ on September 13, 2004, as a yard jockey in the truck yard of the Elder Beerman Distribution Center located in Fairborn, Ohio.² Among other duties, a yard jockey is required to back trucks up to the docks and set them up for delivery. Sharon Fidler ("Fidler"), Plaintiff's supervisor, noticed immediately that he had serious problems backing up trucks and that he was not able to keep up with the required pace of the work in the truck yard. Moreover, given that September through November is the busiest time of the year at the Elder Beerman Distribution Center, Fidler decided that Defendant could not continue to train Plaintiff in the hope that his performance would improve sufficiently to permit him to become an adequate yard jockey. As a consequence, Defendant decided to remove Plaintiff from that position, and Fidler, offered him the opportunity of training to become a truck driver for Defendant.

Plaintiff accepted that offer and, on September 20, 2004, he became a trainee for the position of truck driver.³ As such a trainee, Plaintiff drove with Mark Truitt ("Truitt"), a trainer employed by Defendant. Based upon his observations when he rode with Plaintiff, Truitt concluded that Plaintiff would need to improve in a number of areas, before he could be considered to be a safe driver. Indeed, Truitt stated in a report to his superiors that Plaintiff had problems driving in the proper lane and backing up the truck, and, in addition, would become visibly nervous and panic when required to drive in traffic. Truitt also reported that Plaintiff refused to drive in large cities. After Truitt had reported his observations to superiors, Defendant decided to terminate Plaintiff as a trainee for a truck driver position, because it concluded he was an unsafe driver. As a consequence, Plaintiffs two-plus weeks as an employee of Defendant ended on October 1, 2004.

On October 7, 2004, an unidentified male called Defendant's office in Jacksonville, Florida, and said that the Plaintiff was going to the Elder Beerman Distribution Center in Fairborn with a gun. As a result of that telephone call, Glenn Guest ("Guest"), Defendant's Director of Corporate Human Relations, informed Defendant's employees at the Distribution Center and in Dayton, management of Elder Beerman and the Fairborn Police Department about the telephone call. The Fairborn Police Department, in turn, informed the Xenia Police Department of the telephone call, since Plaintiff lived in the latter municipality. Guest also telephoned Plaintiff, to tell him about the anonymous telephone call and to warn him not to go to the Elder Beerman facility, since officers from the Fairborn Police Department would be looking for him. Officers from the Xenia Police Department visited Plaintiff, questioning him and his neighbors. Plaintiff told Guest and those officers that he did not know who had made the telephone call and denied that he was going to the Elder Beerman Distribution Center with a gun. Plaintiff was not arrested or otherwise detained by police officers.

After he had been discharged by the Defendant, Plaintiff submitted an employment application, for a position as a truck driver, to U.S. Express. Since he had listed Defendant as a former employer, U.S. Express contacted Defendant as part of the application process. The Defendant informed Plaintiffs potential, future employer that it had discharged him because it did not consider him to be a safe truck driver. Plaintiff was not hired by U.S. Express.

In his Complaint,⁴ Plaintiff sets forth three claims for relief, to wit: 1) a claim of age discrimination under Ohio law, predicated upon the theories that Defendant transferred him from the position of yard jockey to that of trainee truck driver and that Defendant discharged him because of his age (First Claim for Relief); 2) a claim of defamation per se under the common law of Ohio, predicated upon the assertions that the Defendant falsely stated that he was not a safe truck driver and that he was going to the Elder Beerman Distribution Center with a gun (Second Claim for Relief); and 3) a claim of defamation per quod under the common law of Ohio, predicated upon the same assertions (Third Claim for Relief).⁵

This case is now before the Court on Defendant's Motion for Summary Judgment (Doc. # 12). As a means of analysis, the Court will initially set forth the standards which are applicable to every such motion, following which it will turn to the parties' arguments in support of and in opposition to the instant such motion.

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6 th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6 th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the factfinder. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). See also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to...