Johnson v. Royal Chemical Company, Ltd.

Filing 37

Opinion & Order signed by Judge James S. Gwin on 1/31/17 granting defendant's motion for summary judgment for the reasons set forth in this order. (Related Doc. 33 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------:
ERIC JOHNSON,
:
:
Plaintiff,
:
:
vs.
:
:
ROYAL CHEMICAL COMPANY, LTD., :
:
Defendant.
:
:
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CASE NO. 1:15-CV-2336

OPINION AND ORDER
[Resolving Doc. 33]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Eric Johnson, pro se, brings disability discrimination, intentional infliction of
emotional distress, breach of contract, “bad faith breach of contract,” and promissory estoppel
claims against his former employer, Defendant Royal Chemical Company, Ltd. (“Royal
Chemical”).1 Defendant moves for summary judgment as to all counts.2 For the following
reasons, this Court GRANTS Defendant’s motion for summary judgment.
I. Background
At its core, this case concerns whether Defendant Royal Chemical fired Plaintiff Johnson,
a former employee, because of his alleged disability or fired Johnson because of his work
absences.
Royal Chemical, a chemical blending company, hired Johnson in 1996 as a full-time
general laborer.3 After a 1998 workplace injury, Johnson occasionally experienced pain in his
left foot.4 Because of the pain, the company permitted Johnson to wear tennis shoes instead of
steel-toe boots. Royal Chemical manager Brian Schiavoni also provided Johnson with hard-

1

Doc. 8.
Doc. 33.
3
Doc. 33-2 at 10, 19-20.
4
Id. at 20-23.
2

Case No. 1:15-cv-2336
Gwin, J.
plastic caps and rubber covers for his tennis shoes.5 Johnson claims that a chemical product
spilled on his tennis shoes and burned him in 2008, but he did not miss work or seek medical
treatment afterwards.6
In 2009, Johnson began seeing Dr. Debra Thornton about his foot pain.7 On April 14,
2009, Dr. Thornton wrote Johnson a doctor’s note requesting six months of light-duty
restrictions for Johnson, including “[n]o prolonged standing or walking . . . [and] allow[ing] Mr.
Johnson to wear tennis shoes to work.”8 On July 23, 2009, Dr. Thornton placed Johnson on
temporary disability due to his foot pain.9
In September 2009, Dr. Thornton completed a Return to Work Authorization and
Johnson returned to Royal Chemical.10 The Authorization stated that Johnson could perform
clerical work and label making.11 Johnson worked in the company’s label room until late 2010,
when he returned to the production floor as a general laborer.12
On November 9, 2012, Johnson failed to come into work.13 He claims that he left a
voicemail with Royal Chemical that morning.14 Johnson never called in or returned to work
again.15 On November 12, 2012, Johnson mailed Royal Chemical a letter demanding that no one
from the company contact him, otherwise they would be liable for $500,000 “per occurrence of
contact.”16 Royal Chemical called Johnson the next day, but he did not return the call. 17

5

Id. at 11, 14.
Id. at 38.
7
Id. at 42.
8
Doc. 33-6.
9
Doc. 8 at ¶ 13.
10
Doc. 33-7; Doc. 33-2 at 44.
11
Id.
12
Doc. 33-2 at 49.
13
Id. at 55.
14
Id. at 56.
15
Id. at 57.
16
Doc. 33-8.
17
Doc. 33-9.
6

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Case No. 1:15-cv-2336
Gwin, J.
Royal Chemical’s employee handbook includes a no-call/no-show policy. Under the
policy, “[f]ailure to report to work or notify the company of your absence for three (3)
consecutive work days is considered an abandonment of position and a voluntary resignation.”18
Seemingly consistent with this absentee policy, Royal Chemical fired Johnson on November 14,
2012, for failing to call off or come into work on November 12, 13, and 14, 2012.19
Procedural History
On July 31, 2015, the U.S. Equal Employment Opportunity Commission issued Johnson
a Right to Sue letter.20 Johnson filed his complaint with this Court on November 13, 2015.21
Plaintiff Johnson brings six claims against Defendant Royal Chemical: (1) disability
discrimination in violation of 42 U.S.C. § 12112(a); (2) disability discrimination in violation of
Ohio Revised Code § 4112.02(A); (3) intentional infliction of emotional distress; (4) “bad faith
breach of contract”; (5) breach of contract; and (6) promissory estoppel.22
On December 16, 2016, Defendant Royal Chemical filed a motion for summary
judgment.23 Royal Chemical argues that Johnson fails to make a prima facie discrimination case,
and, even if he did, Royal Chemical had legitimate reasons for terminating him.24 Royal
Chemical also argues that there is insufficient evidence of “outrageous” or “extreme” conduct to
sustain an emotional distress claim.25 Finally, Royal Chemical argues that there were no

18

Doc. 33-5 at ¶ 12.
Doc. 33-9.
20
Doc. 8-1.
21
The case was originally before Judge Polster, but was reassigned to Judge Gwin on June 30, 2016, after Judge
Polster’s recusal. Doc. 15.
22
Doc. 8.
23
Doc. 33.
24
Id. at 10-12.
25
Id. at 14-15.
19

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Gwin, J.
agreements between Johnson and the company to support breach of contract or promissory
estoppel claims.26
II. Legal Standard
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’”27 The moving party must first demonstrate that there is an absence of a genuine dispute as
to a material fact entitling it to judgment.28 Once the moving party has done so, the non-moving
party must set forth specific facts in the record—not its allegations or denials in pleadings—
showing a triable issue.29 The existence of some doubt as to the material facts is insufficient to
defeat a motion for summary judgment.30 But the Court views the facts and all reasonable
inferences from those facts in favor of the non-moving party.31
The moving party may also meet its burden under Rule 56 by “demonstrating the absence
of evidence to support one of the essential elements of the nonmoving party’s claim.”32
III. Discussion
A. Disability Discrimination
Plaintiff Johnson brings disability discrimination claims under the Americans with
Disabilities Act (ADA) and Ohio Revised Code Chapter 4112.02(A).33 Because claims brought
under the ADA and O.R.C. § 4112.02(A) entail the “same legal analysis,”34 the Court addresses
Plaintiff’s state and federal disability discrimination claims together.

26

Id. at 16-20.
Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. Pro. 56(a)).
28
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
29
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
30
Id. at 586.
31
Killion, 761 F.3d at 580. (internal citation omitted).
32
Marie v. American Red Cross, 771 F.3d. 344, 351 (6th Cir. 2014) (citing Celotex, 477 U.S. at 322-25).
33
Doc. 8 at ¶¶ 30-42.
34
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004).
27

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Case No. 1:15-cv-2336
Gwin, J.
1. Failure to Provide Reasonable Accommodation
Plaintiff Johnson alleges that Defendant Royal Chemical failed to provide reasonable
accommodations.35
The ADA requires employers to make reasonable accommodations for known disabilities
unless doing so would result in an undue hardship to the employer.36 In order to establish a prima
facie case for failure to accommodate, a plaintiff must show that: “(1) [he] is disabled within the
meaning of the Act; (2) [he] is otherwise qualified for the position, with or without reasonable
accommodation; (3) [his] employer knew or had reason to know about [his] disability; (4) [he]
requested an accommodation; and (5) the employer failed to provide the necessary
accommodation.”37
Defendant Royal Chemical accommodated Plaintiff Johnson throughout his employment.
After Johnson injured his left foot in 1998, Royal Chemical accommodated him by allowing him
to sit when needed, to wear tennis shoes, and to perform temporary light-duty work in the
company’s label room.38 Similarly, after an alleged chemical burn in 2008, Royal Chemical
complied with a doctor’s note restricting Johnson to light-duty work until October 19, 2009.39 In
fact, Johnson completed light-duty work in the label room until at least late 2010.40 When asked
if Royal Chemical manager Brian Schiavoni ever refused one of his accommodation requests,
Johnson responded, “No. He gave me everything.”41

35

Doc. 8 at ¶ 35.
42 U.S.C. § 12112(b)(5)(A).
37
Johnson v. Cleveland City Sch. Dist., 443 F. App’x. 974, 982–83 (6th Cir. 2011).
38
Doc. 36-2 at 10-11, 19-20, 23-24, 27.
39
Doc. 33-2 at 49.
40
Id.
41
Id. at 6.
36

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Case No. 1:15-cv-2336
Gwin, J.
Plaintiff Johnson cannot identify a single accommodation that Royal Chemical failed to
provide him, and he therefore does not meet prong five of his prima facie case. Johnson’s
reasonable accommodation claim fails.
2. Discriminatory Discharge
Plaintiff Johnson also alleges that Royal Chemical terminated him because of his
disability.42
The ADA bars employers from terminating an employee “because of” the employee’s
disability.43 In the absence of direct evidence of discrimination, courts analyze ADA
discrimination claims following the McDonnell Douglas Corp. v. Green44 burden-shifting
framework. Under the McDonnell Douglas framework, a plaintiff must first set out a prima facie
case of discrimination.45 The employer must then “articulate some legitimate nondiscriminatory
reason” for its action.46 The burden finally returns to plaintiff to prove that the stated reason is a
pretext for disability discrimination.47 Because Johnson lacks direct evidence of discrimination,
the Court proceeds with the McDonnell Douglas framework.
A plaintiff may establish a prima facie case of disability discrimination under the ADA
by showing that: (1) he is a “disabled” person within the meaning of the Act; (2) he is otherwise
qualified to perform the essential functions of the position, with or without reasonable
accommodation; (3) he suffered an adverse employment decision due to his disability; and (4)
the employer knew or had reason to know of his disability.48 Defendant Royal Chemical
challenges Johnson’s ability to satisfy the second and third prongs of the prima facie case.

42

Doc. 8 at ¶¶ 34, 39-42.
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012) (en banc).
44
411 U.S. 792 (1973).
45
Williams v. Union Underwear Co., Inc., 614 F. App’x 249, 253 (6th Cir. 2015).
46
Id. at 253-54.
47
Id.
48
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999).
43

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Case No. 1:15-cv-2336
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Plaintiff Johnson cannot satisfy prong two of the prima facie case because Johnson was
not qualified to perform the essential functions of his position at Royal Chemical when he was
terminated. After his termination, Johnson petitioned the Bureau of Workers’ Compensation for
temporary total disability payments.49 Under Ohio law, “temporary total disability” is a disability
which prevents a worker from returning to his former position of employment.50 The Bureau
awarded him payments that dated back to November 12, 2012—the date Johnson stopped calling
in or showing up to Royal Chemical.51 Johnson testified that he was unable to perform any work
during November 2012, including the general laborer duties at Royal Chemical.52 By his own
admission, Plaintiff was not qualified to perform his job’s requirement, with or without
reasonable accommodation, when he was terminated.
Nor can Johnson satisfy prong three of the prima facie case. Johnson cannot establish a
nexus between his disability and Royal Chemical’s adverse employment decision. In lieu of
direct evidence of discrimination, a plaintiff can satisfy his prima facie case of discrimination by
presenting evidence “sufficient to support a reasonable inference” that his employer treated him
adversely because of the plaintiff’s disability.53 Johnson offers no evidence—direct or
circumstantial—supporting such an inference. In fact, Johnson’s termination happened because
Johnson unilaterally decided to stop coming in to work. Johnson violated the company’s threeday no-call/no-show attendance policy; his alleged disability was irrelevant to his termination.
Johnson has not established a genuine issue of material fact as to the reasons for his termination.

49

Doc. 33-2 at 106-07.
State ex rel. Ramirez v. Indus. Comm'n of Ohio, 433 N.E.2d 586, 588-89 (1982); see also Ohio R.C. § 4123.56.
51
Doc. 33-2 at 106-07 (“Q. So you could not have worked for Royal Chemical from November 2012 through
December 2013? A. No. I couldn’t. Q. Or anybody else, for that matter, because you were on total temporary
disability? A. Yes.”).
52
Id.
53
Williams v. Union Underwear Co., Inc., 614 F. App’x 249, 254-55 (6th Cir. 2015); cf. Mickey v. Zeidler Tool &
Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (holding that temporal proximity between employer learning of disability
and adverse employment action is sufficient to constitute evidence of causal connection for prime facie case).
50

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Case No. 1:15-cv-2336
Gwin, J.
B. Infliction of Emotional Distress
Plaintiff Johnson also brings an Ohio state law claim against Royal Chemical for
intentional infliction of emotional distress. To recover on an intentional infliction of emotional
distress claim, Plaintiff must prove four elements:
(1) that the actor either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress to the
plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go
“beyond all possible bounds of decency” and was such that it can be considered as
“utterly intolerable in a civilized community,” (3) that the actor’s actions were the
proximate cause of plaintiff's psychic injury, and (4) that the mental anguish
suffered by plaintiff is serious and of a nature that “no reasonable man could be
expected to endure it.”54
For the conduct to qualify as sufficiently extreme and outrageous, “[g]enerally, the case is one in
which the recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, Outrageous!”55
Plaintiff Johnson fails to show any outrageous conduct by Royal Chemical. He alleges
that Royal Chemical “intentional[ly], willful[ly], and wanton[ly]” injured him,56 but offers
insufficient evidence to substantiate these allegations. Johnson’s termination also fails to provide
grounds for an emotional distress claim. It is well established that wrongful termination of
employment alone is not “extreme and outrageous conduct” without an allegation of “something
more.”57 Even if Johnson’s termination were wrongful, Johnson does not offer any evidence of
additional extreme and outrageous conduct by Royal Chemical.
And even if Royal Chemical’s conduct were “outrageous,” Plaintiff Johnson’s claim fails
for an independent reason: Johnson offers no evidence that he suffered serious emotional

54

Pyle v. Pyle, 463 N.E.2d 98, 103 (Ohio App. Ct. 1983) (quoting Restatement (Second) Torts § 46 cmts. d, j
(1965)); see also Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995).
55
Yeager v. Local Union 20, Teamsters, 453 N.E.2d 666, 671 (Ohio 1983) (quoting Restatement (Second) Torts §
46, cmt. d (1965)).
56
Doc. 8 at ¶ 40.
57
Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999).

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Case No. 1:15-cv-2336
Gwin, J.
distress. Ohio courts have held that “[s]ummary judgment is appropriate when the plaintiff
presents no testimony from experts or third parties as to the emotional distress suffered and
where the plaintiff does not seek medical or psychological treatment for the alleged injuries.”58
There is no evidence supporting Johnson’s claims of “embarrassment, mental anguish, loss of
reputation, [and] loss of self-esteem” cited in the Amended Complaint.59 Johnson’s intentional
infliction of emotional distress claim fails.
C. Breach of Contract & Promissory Estoppel
Plaintiff Johnson finally makes claims for “bad faith breach of contract,” breach of
contract, and promissory estoppel.60 The Court construes Plaintiff’s “bad faith breach of
contract” claim as a claim for breach of the implied covenant of good faith and fair dealing. Each
claim essentially alleges that Royal Chemical violated a terms-of-employment agreement when it
terminated Johnson.
Johnson’s breach of contract claim loses because he cannot point to any contract that
Royal Chemical violated. To prevail on a breach of contract claim, a plaintiff must establish the
existence of a contract.61 Plaintiff alleges that his job application and a Return to Work
Authorization completed by his doctor are “implied contract[s]” that Royal Chemical violated
when it terminated him.62 There is no evidence that either of these documents involved an offer,
acceptance, meeting of the minds, or exchange of consideration.63 Without these elements, there
is no contract and Johnson’s breach of contract claim loses. Moreover, without a breach of

58

Crable v. Nestle USA, Inc., No. 86746, 2006 WL 1555405, at *9 (Ohio Ct. App. June 8, 2006).
See Doc. 8 at ¶ 46.
60
Id. at ¶¶ 51-65.
61
Moncrief v. Bohn, 9 N.E.3d 508, 514 (Ohio App. Ct. 2014).
62
Doc. 8 at ¶¶ 52-57.
63
See Kostelnik v. Helper, 770 N.E.2d 58, 61 (Ohio 2002).
59

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Case No. 1:15-cv-2336
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contract claim, Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing
cannot survive.64
Johnson’s promissory estoppel claim also loses because he cannot point to a promise by
Royal Chemical guaranteeing him a job. To prevail on a promissory estoppel claim, a plaintiff
must establish the existence of “a clear and unambiguous promise.”65 In the employment context,
the plaintiff must prove that the “employer made a discrete promise relating to job security.”66
Johnson’s Amended Complaint alleges that Royal Chemical promised him that “[he] would
continue to be employed.”67 But when asked about this alleged agreement, Plaintiff could only
testify that Royal Chemical promised to be a “harassment-free company,” to “resolve any safety
issues,” and to “have a safe environment.”68
Plaintiff Johnson provides no evidence that Royal Chemical specifically promised to
employ him in the future. Instead, all evidence indicates that Johnson’s employment was atwill.69 Because Johnson lacks a promise of future employment from Royal Chemical, the Court
grants summary judgment on his promissory estoppel claim.

See Frisch v. Nationwide Mut. Ins. Co., 553 F. App’x 477, 482 (6th Cir. 2014) (“Ohio law does not recognize a
standalone claim for breach of the implied covenant of good faith and fair dealing.”).
65
Baseball at Trotwood, LLC v. Dayton Professional Baseball Club, LLC, 204 F. App’x 528, 540 (6th Cir. 2006).
66
Dawson v. Qube Corp., 6 F. Supp. 2d 677, 680 (N.D. Ohio 1998).
67
Doc. 8 at ¶ 62.
68
Doc. 33-2 at 96-98.
69
Johnson’s 1996 employment application to Royal Chemical states the following: “In consideration of my
employment, I agree to conform to the company’s rules and regulations, and I agree that my employment and
compensation can be terminated, with or without cause, and with or without notice, at any time, at either my or the
company’s option.” Doc. 33-3 at 2.
64

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Case No. 1:15-cv-2336
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IV. Conclusion
For the foregoing reasons, this Court GRANTS Defendant Royal Chemical’s motion for
summary judgment.

IT IS SO ORDERED.

Dated: January 31, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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