Bresser v. Total Quality Logistics, Inc.
Filing
47
OPINION AND ORDER denying 23 Defendant's Motion for Summary Judgment. The Court sets this matter for final pretrial conference on 7/30/2014 at 2:00 PM and for a four-day jury trial to commence on 8/19/2014, on an on-deck basis. Signed by Judge S Arthur Spiegel on 5/8/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRADLEY S. BRESSER,
Plaintiff,
v.
TOTAL QUALITY LOGISTICS,
Defendant.
:
:
:
:
:
:
:
:
:
:
:
NO. 1:12-CV-00720
OPINION & ORDER
This matter is before the Court on Defendant’s Motion for
Summary Judgment (doc. 23), Plaintiff’s Response (doc. 45), and
Defendant’s Reply (doc. 46). For the reasons indicated herein, the
Court DENIES Defendant’s motion.
I. BACKGROUND
Plaintiff Bradley Bresser (“Bresser”) began working with
Defendant Total Quality Logistics (“TQL”) in November 2005 (doc.
1).
TQL is a freight brokerage business that matches the needs of
businesses which ship products to truck drivers and carriers who
haul the freight (doc. 23).
Plaintiff started his job with TQL in
logistics support, moved to a broker role, and later, in 2007
returned
to
a
logistics
support
role
(docs.
1,
23,
46).
Plaintiff’s role essentially meant he served as a dispatcher,
communicating
with
truck
drivers,
account
executives,
and
supervisors to identify and solve problems with freight shipments
during night and weekend hours (docs. 23, 46).
Prior to starting with TQL, Plaintiff had been diagnosed
in 2002 with social anxiety disorder by Dr. Dagenbach, who treated
Plaintiff with medication and psychotherapy (doc. 45)1.
Plaintiff
remained on medication during his entire employment with TQL,
indicating that without such anti-anxiety medication, he would be
unable to work outside the home (Id.).
While working for TQL,
Bresser, whose last seven reviews from four different supervisors
were quite good, took efforts to work in secluded areas, claims he
increased his medication usage, and at one point even offered a coworker money to switch work stations to be in a more secluded area
(Id.).
Plaintiff contends that due to good performance, he was
given
the
privilege
of
working
from
home
(“telecommuting”)
beginning in 2008 (Id.). According to Defendant, working from home
was permitted on a trial basis so long as, under an agreement,
Plaintiff would improve in productivity by twenty percent (doc.
23).
Defendants indicate they warned Plaintiff previously, in
March 2010 that he was losing the privilege (Id.).
Plaintiff’s
supervisor Mark Funk reconsidered the decision after Plaintiff
expressed
he
would
following
summer
increase
his
his
supervisor
work
Beulah
volume
(Id.).
Runions
stated
By
in
the
an
evaluation that “[Plaintiff][h]as really gotten on board with the
1
The Court notes that in its Reply Defense Counsel refers to
Plaintiff’s “social anxiety” in quotes no less than thirteen
times. The Court takes judicial notice of the existence of such
a condition, which is explained by the National Institute of
Mental Health at http://nimh.nih.gov/health/topics/social-phobiasocial-anxiety-disorder/index.shtml, see also, American
Psychiatric Association. Social Anxiety Disorder, 300.23, pp.
202-08. In Diagnostic and Statistical Manual of Mental Disorders
(5th ed.), Arlington VA: American Psychiatric Publishing (2013).
-2-
direction the company is going...he demonstrates commitment and
dedication. . .Brad is second in highest calls handled” (doc. 45).
In March 2011, Defendant indicates Plaintiff was warned
for not following policy in having given certain information to a
truck driver, and for not reading notes associated with a shipment
(doc. 23).
In June, Plaintiff missed another note regarding a
shipment and improperly issued an electronic payment; later
Plaintiff missed an email regarding a shipment (Id.).
addressed
the
missed
notes
as
“coaching
issues,”
Runions
along
with
concerns regarding Plaintiff’s failure to store bills of lading in
an electronic system as per policy, and Plaintiff’s having provided
his phone extension to a truck driver, against policy (Id.).
Funk took note of Runions’ concerns, and after reviewing
Plaintiff’s call volume, decided that Plaintiff should no longer be
permitted to work from home (Id.).
Funk directed Runions to
prepare a formal written corrective action as well as to inform
Plaintiff he could not work from home (Id.).
In response to being advised he would have to report to
work at the office, Plaintiff sent an email on June 17, 2011 to
Mark Funk in which he first disclosed his social anxiety (Id.).
Plaintiff stated that prior to working from home, he placed file
folders on top of the office dividers where he worked in the
office, to shield himself from view due to serious anxiety (Id.).
Plaintiff
mentioned
the
Americans
with
Disabilities
Act
and
indicated that returning to the office would be “devastating.”
-3-
(Id.).
Given Plaintiff’s request for accommodation, Funk placed
Plaintiff in an isolated work station (Id.).
Plaintiff indicated
that he would try to work there but characterized the move as a
“temporary fix for the ultimate problem” (Id.).
Plaintiff
continued
to
communicate
with
Defendant
regarding accommodation and on June 28 he took his concerns to Gary
Carr, a former head of Plaintiff’s department, and the company’s
human resources representative Ms. Kramer (doc. 45). The next day,
Plaintiff expressed again to Carr that it was very difficult for
him to work at Defendant’s Edison facility, where he was assigned,
and Plaintiff requested a transfer if telecommuting could not be
reinstated (Id.).
On July 5, Defendant requested from Plaintiff a “medical
release,”
and
a
“current
psychologist (Id.).
assessment
of
your
condition
by
a
By email on July 8, 2011, Plaintiff rejected
proposed accommodations and refused further dialogue until he could
see a particular psychologist (Id.).
On July 16, Plaintiff gave
Defendant a letter from psychologist Phillip Hester that indicated
Dr. Hester had first treated Plaintiff in 2006, that Plaintiff had
resumed treatment, and that working in the office was “detrimental”
to Plaintiff’s progress (Id.).
Plaintiff ultimately proposed the
best accommodation for his condition to be returning to a workfrom-home arrangement (Id.).
According to Defendant, Plaintiff failed to follow policy
-4-
in July, including failing to call a broker about a driver needing
help in finding a pick-up location (Id.).
written warning over such failure (Id.).
Funk gave Plaintiff a
A week later, Funk found
that Plaintiff did not call a broker about a driver reporting he
was waiting for part of a load that was not yet available and he
had concerns about being over the weight limit (Id.).
Funk
indicates he concluded Plaintiff was not following policy, and he
therefore terminated Plaintiff’s employment as of July 18, 2011
(Id.).
Plaintiff
brought
his
Complaint
in
September
2012,
alleging Defendant violated the Americans with Disabilities Act and
Ohio Revised Code §§4112.02 and 4112.99 by 1)firing Plaintiff
because of his disability, or because it regarded him as disabled,
2) firing him in retaliation for seeking an accommodation of his
disorder; and/or 3) firing him in retaliation for expressing
opposition to what he believed was disability discrimination in his
workplace (doc. 1).
Defendant filed its motion for summary
judgment, contending Plaintiff does not have a disability and it
did not regard him as disabled, that Plaintiff cannot establish a
prima facie case of disability discrimination, and that Plaintiff
cannot
show
its
proffered
pretextual (doc. 23).
reasons
for
terminating
him
were
Plaintiff has filed his Response (doc. 45),
and Defendant its Reply (doc. 46) such that this matter is ripe for
the Court’s consideration.
-5-
II. STANDARD
A
grant
of
summary
judgment
is
appropriate
“if
the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any material fact and that the moving party
is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56;
see also, e.g., Poller v. Columbia Broadcasting System, Inc., 368
U.S. 464 (1962); LaPointe v. United Autoworkers Local 600, 8 F.3d
376, 378 (6th Cir.1993); Osborn v. Ashland County Bd. of Alcohol,
Drug Addiction and Mental Health Servs., 979 F.2d 1131, 1133 (6th
Cir.1992)(per curiam). In reviewing the instant motion, "this Court
must
determine
whether
the
evidence
presents
a
sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Patton
v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993), quoting in part
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
251-52
(1986)(internal quotation marks omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled. First, "a party seeking
summary judgment. . . bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the
absence of a genuine issue of
material fact[.]"
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); see also LaPointe, 8 F.3d at 378;
Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.
-6-
1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989).
The movant may do so by merely identifying that the non-
moving party lacks evidence to support an essential element of its
case.
See Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12
F.3d 1382, 1389 (6th Cir. 1993).
Faced with such a motion, the non-movant, after completion
of sufficient discovery, must submit evidence in support of any
material element of a claim or defense at issue in the motion on
which it would bear the burden of proof at trial, even if the moving
party has not submitted evidence to negate the existence of that
material fact.
See Celotex, 477 U.S. 317; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). As the “requirement [of the Rule]
is that there be no genuine issue of material fact,” an “alleged
factual dispute between the parties” as to some ancillary matter
“will not defeat an otherwise properly supported motion for summary
judgment.”
Anderson, 477 U.S. at 247-48 (emphasis added); see
generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d
1304, 1310 (6th Cir. 1989).
Furthermore, "[t]he mere existence of
a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant]."
Anderson, 477 U.S. at 252;
see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994).
Accordingly, the non-movant must present "significant probative
evidence" demonstrating that "there is [more than] some metaphysical
doubt as to the material facts” to survive summary judgment and
-7-
proceed to trial on the merits.
Moore v. Philip Morris Cos., Inc.,
8 F.3d 335, 339-40 (6th Cir. 1993); see also Celotex, 477 U.S. at
324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of his claims or defenses, "the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies."
Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.
1989)(internal
quotation
marks
omitted).
In
contrast,
mere
conclusory allegations are patently insufficient to defeat a motion
for summary judgment.
See McDonald v. Union Camp Corp., 898 F .2d
1155, 1162 (6th Cir. 1990).
The Court must view all submitted
evidence, facts, and reasonable inferences in a light most favorable
to the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970); United States v. Diebold, Inc., 369 U.S. 654
(1962).
Furthermore, the district court may not weigh evidence or
assess the credibility of witnesses in deciding the motion.
See
Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating
that no material facts are in dispute.
587.
See Matsushita, 475 U.S. at
The fact that the non-moving party fails to respond to the
motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate. See
-8-
Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-55 (6th
Cir. 1991).
III. DISCUSSION
A.
Applicable Law
The Americans with Disabilities Act (“ADA”) was enacted
to provide a “clear and comprehensive national mandate for the
elimination
disabilities.”
of
discrimination
against
42 U.S.C. § 12101(b)(1).
individuals
with
The ADA provides that no
covered employer shall discriminate against “a qualified individual
with a disability because of the disability of such individual” in
any of the “terms, conditions [or] privileges of employment.”
U.S.C. § 12112(a).
42
In order to establish a prima facie case of
disability discrimination, a plaintiff must show that (1) he is
“disabled” as contemplated by the ADA; (2) he is otherwise qualified
for the position, with or without reasonable accommodations for his
disability; and (3) he suffered an adverse employment decision as
a result of this disability. See, e.g., Mahon v. Crowell, 295 F.3d
585, 589 (6th Cir. 2002), Watson v. Ciena Healthcare Mgmt., No. 1115461, 2013 U.S. Dist. LEXIS 141872, *19-21 (E.D. Mich. August 13,
2013).
Should Plaintiff fail to establish a factual dispute as to
any one of these elements of his prima facie case, summary judgment
would be warranted in Defendant’s favor.
Merely having a physical
or mental impairment does not render one disabled under the ADA.
MX Group, Inc. V. City of Covington, 293 F.3d 326, 337 (6th Cir.
2002).
Rather,
the
Act
defines
-9-
a
disability
as
any
of
the
following:
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of
such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42
U.S.C.
§
12102(2).
“‘Major’
in
the
phrase
‘major
life
activities’ means important...and thus refers to those activities
that are of central importance to daily life;” the accompanying
regulations and interpreting federal courts have determined that the
term includes performing manual tasks, caring for oneself, walking,
seeing, hearing, speaking, breathing, learning, and
C.F.R. 1630.2(i).
working.
29
The question of whether a Plaintiff is regarded
as having such an impairment, under the third prong of the statute,
ordinarily is not one to be decided on summary judgment, as it
involves a determination of state of mind that is more appropriate
for the jury than for the judge.
Ross v. Campbell Soup Co., 237 F.
3d 701, 709 (6th Cir. 2001).
Once a Plaintiff establishes a prima facie case of
disability
discrimination,
Defendant
must
offer
nondiscriminatory reason for its adverse action.
a
legitimate
If the employer
satisfies this burden, then Plaintiff must produce evidence showing
the proffered explanation is pretextual.
Hendrick v. Western
Reserve Care System, 355 F.3d 444, 452-453 (6th Cir. 2004).
same
standards
applicable
to
Plaintiff’s
ADA
The
claim
apply to his claims under Ohio disability law, O.R.C. § 4112.02(A).
-10-
City of Columbus Civil Serv. Commission v. McGlone, 82 Ohio St.3d
569 (1998).
B.
The Parties’ Briefing
Defendant argues Plaintiff does not have a disability, and
that it did not regard him as disabled (doc. 23).
Defendant
proffers evidence that Plaintiff engaged in activity outside of
work, including working as a disc jockey (“DJ”), that shows he was
not limited in any major life activity (doc. 23).
Defendant
contends Plaintiff has no “record” of a disability based on the fact
that Plaintiff has held some eight different jobs requiring contact
with co-workers and the general public (Id.).
Defendant next attacks Plaintiff as unqualified, based on
its position that Plaintiff did not follow its policies (Id.).
Defendant argues Plaintiff cannot show anything beyond temporal
proximity to prove disability discrimination, because the facts show
he was under increased scrutiny before he revealed his social
anxiety disorder (Id.).
Defendant further argues Plaintiff cannot show its reasons
for his termination were pretext (Id.).
It claims Plaintiff cannot
overcome its honest belief regarding his noncompliance with company
policy (Id.).
Finally, it argues Plaintiff cannot show other
employees had a pattern of policy violations and were treated more
favorably (Id.).
Plaintiff responds that the objective evidence of his
employee evaluations show he was an outstanding employee for years,
-11-
and after he disclosed in June 2011 that he had a mental impairment
and sought accommodation, he was fired within thirty days (doc. 45).
Plaintiff indicates record evidence shows Funk was disdainful of
Plaintiff’s disability, regularly communicating to Ms. Kramer about
Plaintiff’s DJ work (Id.).
Plaintiff argues a jury could reasonably conclude he has
a disability, that without medication, substantially limits him in
working and in interacting with others (Id.).
Moreover, Plaintiff
contends he can prevail because he was regarded as disabled (Id.).
Plaintiff contends a reasonable jury could find he was qualified to
perform the essential functions of his job based on his track record
of good evaluations (Id.).
Plaintiff citing A.C. v. Shelby County Bd. Of Educ., 711
F.3d 687, 699 (6th Cir. 2013), Mickey v. Zeidler Tool & Die Co., 516
F.3d 516, 525 (6th Cir. 2008), contends the temporal proximity
between his asking for accommodation and his termination can be
enough to create an inference of a causal connection (Id.).
In any
event, Plaintiff argues, there is record evidence that others who
violated policy were not fired (Id.).
A reasonable jury could find
Defendant’s stated reason pretext, argues Plaintiff, because for one
thing it is categorically false that Plaintiff ever admitted he
failed to follow policy with the call Defendant used to justify the
termination (Id.). Plaintiff further contends that Defendant failed
to follow its regular process with warnings and suspension, skipping
over steps in Plaintiff’s case that it took with regard to other
employees
(Id.).
Plaintiff
names
-12-
others:
Ril
Beatty,
Joshua
Johnson, Briana Steele, Carl Roehm, and Randy Ehemann, all of whom
made mistakes but received more process, and were not terminated
(Id.). Plaintiff contends that a jury could note he got his seventh
straight excellent evaluation but then was fired six and a half
months later, and reasonably conclude his manager treated him worse
than his peers due to disdain for Plaintiff’s disability and
Plaintiff’s assertion of his legal rights (Id.).
Defendant replies that in its view, Plaintiff has failed
to proffer evidence regarding how his untreated social anxiety would
affect a major life activity (doc. 46).
Defendant cites to
deposition testimony in which Plaintiff himself indicated he did not
know, but that he would be “like a turtle without its shell” (Id.).
Defendant contends Plaintiff contradicted himself by stating in his
deposition it would be hard to know how he would be without
medication, while in his declaration he indicates he would get shaky
hands, would stutter, and would have a hard time making eye contact
(Id.).
Defendant further argues that Plaintiff’s case for being
regarded as disabled must fail because in his briefing Plaintiff
argues
Funk
viewed
his
condition
Plaintiff was disabled at all (Id.).
with
disdain,
not
believing
In the balance of its Reply,
Defendant reiterates its view that Plaintiff was not qualified, and
takes the position that an employer’s failure to follow every step
of a progressive discipline policy does not necessarily prove
pretext (Id.).
Finally, Defendant contends that though Plaintiff
cites to five other employees he “fails to provide any context for
their overall employment situation,” and “fails to show any of these
-13-
employees had the long history he had of making mistakes, committing
policy violations, blaming others, or inexplicably claiming that
shipments were not urgent” (Id.).
C.
Discussion
Having reviewed this matter, the Court does not find
Defendant’s motion well-taken.
A reasonable jury could find that
Plaintiff qualified as disabled due to his social anxiety disorder
which limits his ability to work and interact with others.
The
record shows Plaintiff has been treated for such condition for a
decade before filing his Complaint, that he was on medication, and
medical professionals indicated he would have challenges in an
office setting.
A jury could find such evidence shows Plaintiff
has a record of a disability.
Whether Defendant regarded Plaintiff
as disabled is also a jury question.
Ross, 237 F. 3d 701, 709.
Of course, a jury could, as Defendant contends, be persuaded that
Plaintiff functioned in social settings such as a DJ, thus rejecting
Plaintiff’s claim of disability.
The Court finds no genuine question that Plaintiff was
qualified to do his job.
Plaintiff worked for Defendant for more
than five years, receiving positive evaluations from four different
supervisors.
The focus at this stage of the analysis should be on
Plaintiff’s objective qualifications, such as his experience in the
particular type of work and demonstrated possession of the required
general skills.
See Wexler v. White’s Fine Furniture, Inc., 317
F.3d 564, 575-76 (6th Cir. 2003).
As the prima facie case is not
intended to be burdensome, searching analysis at this stage on
-14-
whether a plaintiff is “qualified” is improper.
McCrory v. Kraft
Food Ingredients, No. 94-6505, 1996 U.S. App. LEXIS 26305 *14 (6th
Cir. Oct. 3, 1996).
The Court further finds a factual dispute with regard to
the
telephone
termination.
call
Defendant
indicates
triggered
Plaintiff’s
Plaintiff contends it is categorically untrue that he
admitted to not following procedure, and proffers evidence that
Runions could not answer how Plaintiff had violated policy.
A jury
might find such reason offered for Plaintiff’s termination lacking
a basis in fact when the record shows other employees violated
policy and were not fired.
Plaintiff has signaled that some five
similarly-situated employees were treated differently, and a jury
might find Defendant’s proffered reason for his termination pretext.
A jury might find Defendants skipped steps in warning Plaintiff that
it accorded to others, such that it terminated him on a fast-track,
annoyed with his asserting rights with regard to his disability.
Finally, the Court finds well taken the position that Funk
may have viewed Plaintiff’s condition with disdain, based on email
comments regarding Plaintiff’s work as a DJ. The Court sees further
disdain by counsel in the Reply brief: referring to Plaintiff’s
“long history of policy mistakes” (when Plaintiff’s evaluations were
good
up
to
January
of
the
year
he
was
fired),
referring
to
Plaintiff’s “social anxiety” in quotes, arguing Plaintiff was not
qualified
for
his
job,
and
looking
for
a
contradiction
in
Plaintiff’s deposition. Plaintiff stated without his medication he
would be like a turtle without a shell. Such metaphor is consistent
-15-
with statements in his declaration.
IV.
CONCLUSION
The Court finds that a reasonable jury could find
Plaintiff qualified as disabled due to his social anxiety disorder.
His
firing
from
Defendant’s
employ
came
only
weeks
after
disclosed his condition to Defendant and sought accommodation.
he
A
jury could conclude Defendant retaliated against Plaintiff for
impermissible reasons, rather than for lack of compliance with
policy.
Accordingly, the Court DENIES
Summary Judgment (doc. 23).
Defendant’s Motion for
The Court further sets this matter for
final pretrial conference on July 30, 2014 at 2:00 P.M., and for a
four-day jury trial to commence on August 19, 2014, on an on-deck
basis.
SO ORDERED.
Dated: May 8, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
-16-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?