Oszust v. Westrock Services, Inc.

Filing 41

ORDER granting 38 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Kimberly A. Jolson on 3/17/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES M. OSZUST,
Plaintiff,
v.

Civil Action 2:15-cv-2950
Magistrate Judge Jolson

WESTROCK SERVICES, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Westrock Services, Inc.’s Motion for
Summary Judgment. (Doc. 38). For the reasons that follow, the Motion is GRANTED.
I.

BACKGROUND
Most of the facts relevant to this case are undisputed and are summarized as follows.

Plaintiff is a former employee of WestRock Services, Inc., a paper and packaging manufacturer.
(Doc. 1 at ¶ 2). Despite Plaintiff’s work as a union employee at Defendant’s paper mill in
Coshocton, Ohio for over twenty years (Doc. 35, PAGEID #: 122), his relationship with
Defendant was less than stellar.

In Plaintiff’s view, Defendant “treated [him] like dirt”

beginning in 1992 or 1993 (Doc. 35, PAGEID #: 126–127; see also Doc. 36, PAGEID #: 224
(testifying that Defendant “always” treated him “like crap”), and Defendant represents that
Plaintiff had “a documented history of unacceptable behavior” (Doc. 36-3, PAGEID #: 303).
This employment action arises from Plaintiff’s assertion that he suffers from diabetes and
back problems that require him to avoid “overly-stressful situations” and sedentary positions for
long periods of time. (Doc. 1 at ¶¶ 10, 12). Plaintiff also suffered a heart attack in October

2013. (Doc. 35, PAGEID #: 124). On November 14, 2013, Defendant informed Plaintiff that he
would be promoted from the position of Pulp Mill Operator Helper, a position which he had for
approximately seven years, to the position of Pulp Mill Operator. (Doc. 36, PAGEID #: 259–60;
Doc. 1 at ¶ 13).
The Pulp Mill Operator position was not new to Plaintiff. Indeed, he had requested and
received training for the Pulp Mill Operator position and had worked in that position for
approximately six weeks in spring 2013 while another employee had a medical issue. (Doc. 35,
PAGEID #: 138, 141). Pulp Mill Operators earn $1 more per hour than Pulp Mill Operator
Helpers (id., PAGEID #: 138), and Plaintiff was next in line for a mandatory promotion under
the union contract (Doc. 38-1, PAGEID #: 412 at ¶ 3). After learning of the promotion, Plaintiff
contacted the company nurse, stating that the Pulp Mill Operator position’s physical and mental
demands would have an adverse impact on his health. (Doc. 1 at ¶ 14). The nurse referred
Plaintiff to management. (Id. at ¶ 15).
Plaintiff then complained to management, reiterating that the Pulp Mill Operator position
would cause him to suffer physical and mental stress and was too sedentary given his health
conditions.

(Id. at ¶¶ 16–17).

Plaintiff alleges generally that Defendant denied him a

“reasonable accommodation” and a “medical freeze” but failed to provide him with any
explanation for its decision. (Id. at ¶ 18).
Despite his objections, Plaintiff began work as a Pulp Mill Operator on November 18,
2013. (Id. at ¶ 19). Plaintiff claims that his first shift caused him to suffer job-related stress and
anxiety and diabetes-related symptoms including back and leg pain, blurred vision, lack of
concentration, and headaches. (Id. at ¶¶ 19–20). Plaintiff reported to work the next day despite
little sleep. (Id. at ¶¶ 20–21).

2

Plaintiff began to experience shortness of breath and back and leg pain during his second
shift. (Id. at ¶ 21). With a co-worker watching his post, Plaintiff “walked outside of his office in
an attempt to breathe fresh air and stretch his legs and back.” (Id. at ¶ 22). Plaintiff explains that
“[i]mmediately after leaving the office,” he suffered a stress-related syncopal episode, during
which he lost consciousness and fell down stairs. (Id. at ¶¶ 23–24). Plaintiff was hospitalized
following the incident. (Id.).
Plaintiff sought to return to work on January 6, 2014, after obtaining a release from his
doctor. (Id. at ¶ 25). Plaintiff claims that Defendant refused to allow him to return to work. (Id.
at ¶ 26).

During that time, Defendant required Plaintiff to have an independent medical

examination (“IME”) to assess his ability to return to work. (Doc. 38-1, PAGEID #: 412–13 at
¶ 4). The IME was conducted by Dr. Sushil Sethi, who opined Plaintiff was unable to return to
work. (Doc. 38-1, PAGEID #: 413 at ¶ 4; Doc. 36-5, PAGEID #: 317–22). Defendant met with
Plaintiff to inform him of Dr. Sethi’s opinion. (Doc. 38-1, PAGEID #: 413 at ¶ 4; Doc. 35-14,
PAGEID #: 214–15).
Plaintiff returned to work on June 6, 2014 (Doc. 38-1, PAGEID #: 413 at ¶ 4), which he
claims was allowed only because he hired an employment attorney (Doc. 1 at ¶¶ 26–28). Six
days later, on June 12, 2014, Plaintiff had a verbal altercation with John Cullison, his union
representative. (Id.; Doc. 36, PAGEID #: 256). On June 24, 2014, Defendant held a discipline
meeting during which Plaintiff signed a “last chance agreement” that cited the nine incidents of
his unacceptable behavior.

(Doc. 36-3, PAGEID #: 303–304).

Plaintiff understood the

agreement to mean that he “would be terminated if any future work issues arose.” (Doc. 1 at
¶ 29).

3

Plaintiff submitted his retirement paperwork less than three weeks later on July 12, 2014.
(Doc. 36, PAGEID #: 223; Doc. 36-4, PAGEID #: 313). He selected a retirement date of
September 28, 2014—over ten weeks later—so he would receive all of his vacation pay. (Id.).
Plaintiff claims that he retired on September 28, 2014, “[d]ue to the unbearable stress, hardship,
and pressure” Defendant placed on him. (Doc. 1 at ¶ 30).
Plaintiff filed the instant lawsuit against Defendant on October 27, 2015, asserting five
claims. (Id.). In Count I, Plaintiff claims that Defendant acted with a “deliberate intent to
injure” him because management was aware of his medical conditions but nonetheless required
him to work as a Pulp Mill Operator. (Id. at ¶¶ 31–37). In Counts II and III, Plaintiff asserts that
Defendant constructively discharged him and discriminated against him. (Id. at ¶¶ 38–47, ¶¶ 48–
60). Further, Plaintiff claims he retired on September 28, 2014, because he believed “his
termination was imminent.”

(Id. at ¶¶ 45–46, ¶¶ 58–59).

In Count IV, Plaintiff claims

retaliatory discharge. (Id. at ¶¶ 61–69). Finally, Defendant alleges intentional infliction of
emotional distress. (Id. at ¶¶ 70–83).
II.

LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 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 that demonstrate “the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see id. at
255 (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be

4

drawn in [her] favor.” (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970))). A
genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (explaining that “genuine” amounts to more than “some metaphysical
doubt as to the material facts”). Consequently, the central issue is “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.” Anderson, 477 U.S. at 251–52.
III.

DISCUSSION
A.

Count I: Deliberate Intent to Injure

In Count I, Plaintiff asserts a cause of action under Ohio Revised Code § 2745.01, which
governs intentional tort claims against employers. That statute provides, in relevant part:
(A) In an action brought against an employer by an employee . . . for damages
resulting from an intentional tort committed by the employer during the
course of employment, the employer shall not be liable unless the plaintiff
proves that the employer committed the tortious act with the intent to injure
another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts
with deliberate intent to cause an employee to suffer an injury, a disease, a
condition, or death.
Ohio Revised Code § 2745.01(A), (B).
Although § 2745.01(A) appears to provide for two distinct bases for liability—(1) where
the employer acted “with the intent to injure another” and (2) where the employer acted “with the
belief that the injury was substantially certain to occur”—§ 2745.01(B)’s definition of
“substantially certain” limits liability to circumstances where the employer acts “with the intent
to injure another” or “with deliberate intent to cause an employee to suffer an injury, a disease, a
condition, or death.”

Rudisill v. Ford Motor Co., 709 F.3d 595, 603 (6th Cir. 2013).

5

Consequently, tort-law remedies for workplace injuries in Ohio are limited to those resulting
from the employer’s deliberate intent to injure.

Id.

For all other workplace injuries, the

employee’s sole avenue of redress is the worker’s compensation system. Id. (quoting Houdek v.
ThyssenKrupp Materials N.A., Inc., 134 Ohio St. 3d 491, 497 (2012)); see also Stetter v. R.J.
Corman Derailment Servs., LLC, 125 Ohio St. 3d 280, 290 (Mar. 30, 2010) (stating that
“workers’ compensation recovery is a meaningful remedy for workers whose injuries result from
conduct committed with an intent less than deliberate intent, such as conduct that is
reckless….”). A plaintiff bears the burden of producing evidence of the employer’s deliberate
intent to injure. Rudisill, 709 F.3d at 608.
Plaintiff claims two pieces of evidence prove that Defendant promoted him to Pulp Mill
Operator with the “deliberate intent” to cause him “injury, disease, a condition, or death.” First,
Plaintiff relies on a November 4, 2014, letter from Dr. Jeffrey M. Cochran, his orthopedist.
Referencing Plaintiff’s back injuries, Dr. Cochran recommended that Plaintiff “remain in the job
position he has currently.” (Doc. 38-1, PAGEID #: 416). Dr. Cochran further stated, “I do not
recommend that [Plaintiff] have any job that requires him to be in one position, especially sitting
all day long.” (Id.). Second, Plaintiff relies on a telephone call he had with Defendant’s General
Manager Steve Devlin on November 14, 2013. (Doc. 38-1, PAGEID #: 419). During that call,
Plaintiff expressed that, due to his “heart issues, diabetes etc.,” his promotion to Pulp Mill
Operator would “kill him.” (Id.).
According to Plaintiff’s argument, it “is absurd to state that an employer with actual
notice from a doctor and the client of a medical risk does not act with intent to harm when it
intentionally disregards it and subjects the employee to the condition.” (Doc. 39, PAGEID #:
438). In other words, Plaintiff infers that, because Defendant allegedly disregarded his health

6

restriction and nonetheless promoted him, it acted with deliberate intent to cause him harm.
(Id.). This Court disagrees and finds that neither piece of evidence, alone or in combination, is
sufficient to demonstrate that Defendant deliberately intended to injure Plaintiff by promoting
him to the Pulp Mill Operator Position.
As an initial matter, Defendant’s decision to promote Plaintiff was not based on its intent
to injure, but instead because he was next in line for a mandatory promotion under the union
contract. (Doc. 38-1, PAGEID #: 412 at ¶ 3). Further, the record demonstrates that Defendant
took affirmative steps to prevent problems that could arise in the new position. Upon receipt of
the orthopedist’s letter and numerous complaints from Plaintiff, Defendant discussed how to
accommodate his medical conditions. In an affidavit, Defendant’s Human Resources Manager
Christopher Fisher states, “it was no problem for the company for Mr. Oszust to move around the
control room and/or do stretching exercises as he worked as an operator, and we communicated
this through Mr. Cullison (Plaintiff’s union representative), and I did not communicate anything
to the contrary to anybody.” (Id.).
There is also a series of emails dated November 14, 2013—the day Plaintiff learned of
the promotion—which consider his complaints. Defendant’s nurse Gwen Miller states in an
email to Mr. Fisher, “I advised him (Mr. Oszust) that we had discussed the change of activity
with the move up and we’re going to advise him to talk with Dr. Cochran about appropriate
stretches that would be helpful.” (Id., PAGEID #: 418). In another email, Mr. Devlin states that
he told Plaintiff he would not consider freezing him in his current position until proper medical
documentation was in place or until the company was certain it could not provide him reasonable
accommodations. (Id., PAGEID#: 419). That same day, Mr. Fisher stated in an email to
numerous company personnel:

7

I feel we could reasonably accommodate the doctor’s suggestions. Charlie is only
required to be sitting at the panel 10-15 minutes each hour while he collects data
and possibly up to 45 minutes at a time if he is starting up or shutting down the
pulpmill. Otherwise he would be able to get up, stretch, if needed and walk
around in front of the panel. He could also contact his doctor to get some
suggested stretches or exercises if needed.
Id.
Moreover, despite Plaintiff’s complaints concerning potential risk to his heart, Plaintiff
had received a clean bill of health, with no restrictions, from his cardiologist. (Doc. 36, PAGEID
#: 227). Plaintiff provided no additional medical documentation to demonstrate to Defendant
that the added stress of being switched to Pulp Mill Operator would be detrimental to his health.
(Doc. 38-1, PAGEID#: 419). Indeed, Defendants were confident that Plaintiff could fulfill the
position because he had done so for six weeks in spring 2013. (See Doc. 36, PAGEID #: 260).
Based on the forgoing, Plaintiff fails to satisfy his burden of producing evidence of
Defendant’s deliberate intent to injure him. Indeed, the evidence demonstrates that Defendant
did not believe that promoting Plaintiff to Pulp Mill Operator was substantially certain to cause
him injury.

Consequently, Defendant’s Motion for Summary Judgment on Count I of the

Complaint is GRANTED.
B.

Counts II and III: Constructive Discharge and Disability Discrimination

In Count II, Plaintiff alleges that he was constructively discharged by Defendant.
However, “[c]onstructive discharge is not itself a cause of action, but rather a means of proving
the element of an adverse employment action where the employee resigns instead of being
fired.” Johnson v. AK Steel Corp., No. 1:07-CV-291, 2008 WL 2184230, at *11 (S.D. Ohio May
23, 2008) (citing Corbett v. Harvey, No. 2:06-CV-761, 2008 WL 731487, *11–12 (S.D. Ohio
2008)); see also Pozsgai v. Ravenna City Schools Bd. of Educ., No. 5:10CV2228, 2012 WL
1110013, at *11 (N.D. Ohio Mar. 30, 2012) (finding that a claim for constructive discharge is not

8

“a standalone entitlement for relief”). Consequently, Plaintiff must allege a broader claim for
employment discrimination. Starks v. New Par, No. 98-1300, 1999 WL 357757, at *5 (6th Cir.
May 11, 1999) (citing Kroll v. The Disney Store, 899 F. Supp. 344, 347 (E.D. Mich. 1995)).
Here, Plaintiff brings a disability discrimination claim in Count III.
Because constructive discharge is not an independent cause of action, Defendant’s
Motion for Summary Judgment is GRANTED as to Count II of the Complaint. The Court shall
consider Plaintiff’s allegations regarding his constructive discharge within the context of Count
III.
Count III fails to satisfy basic pleading standards. Specifically, Rule 8(a)(2) of the
Federal Rules of Civil Procedure requires a complaint to set forth “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Count III fails to identify any statute or
law that is the basis for the cause of action. Hence, it not discernable whether Plaintiff is
attempting to bring claims under state or federal law, and his claim is subject to dismissal on this
basis.
In opposing summary judgment, Plaintiff suggests, but doesn’t state outright, that his
disability discrimination claim may have been brought under Ohio law. (See Doc. 39 at 13; id. at
n.12). Assuming Plaintiff brings Count III under Ohio’s anti-discrimination statute in Chapter
4112 of the Ohio Revised Code, his claim is analyzed under the same standards applicable to
claims brought under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”).
See Johnson v. JPMorgan Chase & Co., 922 F. Supp. 2d 658, n.6 (S.D. Ohio Feb. 6, 2013)
(noting that “Ohio disability discrimination law generally applies the same analysis as the ADA”
and Ohio courts “look to regulations and cases interpreting the ADA for guidance in their
interpretation of Ohio law”) (citation and alterations omitted). In order to establish a prima facie

9

case of disability discrimination, a plaintiff must show (1) he has a disability; (2) that he is
“otherwise qualified” for the job; and (3) that defendant either refused to make a reasonable
accommodation for his disability or made an adverse employment decision regarding him solely
because of his disability. Brantley v. Cinergy Corp., No. 1:01CV378, 2007 WL 2462652, at *24
(S.D. Ohio Aug. 27, 2007) (citing Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997)).
Defendant argues that Plaintiff fails to satisfy the first and third prongs.
1.

Whether Plaintiff Suffers From A Disability Under The Relevant Law

The ADA defines disability as having “a physical or mental impairment that substantially
limits one or more major life activities,” having “a record of such an impairment,” or “being
regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)–(C). Plaintiff’s Complaint
alleges that he is disabled due to diabetes and back problems. (Doc. 1 at ¶ 49). In its Motion for
Summary Judgment, Defendant cites Plaintiff’s deposition testimony in support of its argument
that Plaintiff does not satisfy the definition of disabled. (Doc. 38 at 20–21). The relevant
testimony states:
Q. Have you ever considered your diabetes to be a disability?
A. Never.
Q. You have back problems, right?
A. I do.
Q. Do you consider the back problems to be a disability?
A. No.
Q. Do they limit you in your day-to-day life?
A. No.
Q. Does your diabetes limit you in your day-to-day life?
A. No.
Q. Has it ever?
A. No.
Q. Has your back ever limited you in your day-to-day life?
A. Well, before I had the surgery, it did.
Q. But not since you had surgery?
A. No.

10

(Doc. 36, PAGEID #: 247).

Defendant argues that “[n]o jury could find that Plaintiff is

substantially limited when he himself says that he never has been.” (Doc. 38 at 21).
Although Plaintiff states “[c]learly this argument is somewhat absurd on its face,” some
courts have considered whether a plaintiff regards himself disabled. See, e.g., Kocsis v. MultiCare Mgmt., 97 F.3d 876, 884 (6th Cir. 1996) (stating that plaintiff’s deposition testimony shows
that she did not belief her health problems “limited her activity in any way. By her own
admission, therefore, she does not have an impairment that limits her major life activities”)
(footnote omitted); Brunskill v. Kansas City S. Ry. Co., No. 06-205-CV-W-REL, 2008 WL
413281, at *23 (W.D. Mo. Feb. 12, 2008) (noting that “Plaintiff does not consider himself
disabled and does not believe that his color perception deficiency limits his ability to perform
daily tasks”); Wells v. Huish Detergents, Inc., No. 1:98CV-131-R, 1999 WL 33603335, at *5
(W.D. Ky. Nov. 30, 1999) (“In fact, [plaintiff] reports that he does not consider himself disabled
today.”). Perhaps more significantly, Plaintiff points to no evidence demonstrating that he meets
the definition of disabled.

Instead, Plaintiff makes general statements concerning his

impairments. (See, e.g., Doc. 39 at 15–16 (“there is clear evidence in this case that Plaintiff does
have back problems and is a diabetic”); id. at 16 (claiming that sitting causes his blood sugar to
rise and causes pain and stiffness in his back and legs)).
Plaintiff mentions just one piece of evidence in claiming that he satisfies the definition of
disabled—Dr. Cochran’s November 4, 2014 letter, which he states contained a “clear restriction”
that prevented him “from working in a sedentary position.” (Id. at 16). However, “to be
regarded as substantially limited in the major life activity of working, one must be regarded as
precluded from more than a particular job.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516,
523 (1999) (citing 29 C.F.R. § 1630.2(j)(3)(i) (“The inability to perform a single, particular job

11

does not constitute a substantial limitation in the major life activity of working”)). Plaintiff’s
perspective, which is supported by Dr. Cochran’s letter, is that he could have effectively resumed
work as a Pulp Mill Operator Helper. (See, e.g., Doc. 39 at 17 (explaining Plaintiff requested to
return to work and there is no question that was cleared by his orthopedist and cardiologist)).
Thus, Plaintiff is not substantially limited in the major life activity of working.
Stated simply, Plaintiff has failed to direct this Court to any evidence demonstrating that
his impairment substantially limits one or more of his major life activities, that he had a record of
such an impairment, or was being regarded as having such an impairment. See 42 U.S.C.
§ 12102(1)(A)–(C). Thus, Plaintiff fails to establish that he suffers from a disability under the
relevant law.
2.

Whether Defendant Made An Adverse Employment Decision Because
Of His Disability

Even if Plaintiff were able to prove that he suffered from a disability, he also must show
that Defendant made an adverse employment decision because of his disability. Plaintiff appears
to parse constructive discharge and “other adverse employment actions” allegedly taken against
him as a result of his disabilities. (See, e.g., Doc. 39 at 16 (“Plaintiff has clearly presented
evidence to support a constructive discharge. On top of that, there is evidence of several other
‘adverse employment actions’ taken as a result of his disabilities.”)). Thus, the Court will do the
same in determining if there is a genuine issue of material fact.
a.

Constructive Discharge

To prove a claim for constructive discharge, Plaintiff “must show that working conditions
would have been so difficult or unpleasant that a reasonable person in [his] shoes would have felt
compelled to resign.” Kocsis, 97 F.3d at 887. Plaintiff must also demonstrate that Defendant
acted intentionally and with intent for him to resign. Aslept v. Honda of Am. Mfg., Inc., No.
12

3:11-cv-395, 2013 WL 2417980, at *6 (S.D. Ohio June 3, 2013). In applying that standard, the
Court may consider the presence of the following factors, either alone or in combination: (1) a
demotion; (2) a reduction in salary; (3) a reduction in job responsibilities; (4) a reassignment to
menial or degrading work; (5) a reassignment to work under a younger supervisor; (6) badgering,
harassment, or humiliation by the employer calculated to encourage the employee’s resignation;
or (7) offers of early retirement or continued employment on terms less favorable than the
employee’s former status. Id. (citing Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001)).
“Feelings of the employee alone cannot establish a constructive discharge; the
constructive discharge issue depends upon the facts of each case and requires an inquiry into the
intent of the employer and the reasonably foreseeable impact of the employer’s conduct upon the
employee.” LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 382 (6th Cir. 1993) (internal
quotations and citations omitted).

In other words, Plaintiff’s interpretation of Defendant’s

actions is not evidence. Spence v. Potter, No. 1:07-cv-526, 2010 WL 518179, at *12 (S.D. Ohio
Feb. 3, 2010) (citing LaPointe, 8 F.3d at 382)). Further, “the manner in which an employer
criticizes an employee’s job performance, such as following rules, has been found insufficient to
establish constructive discharge.” Id. (citing Smith v. Henderson, 376 F.3d 529, 534 (6th Cir.
2004); Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002) (discussing cases and finding no
constructive discharge where employee contended he was unfairly criticized and placed on
performance improvement plan); Caslin v. Gen. Elec. Co., 696 F.2d 45, 47 (6th Cir. 1982)
(same); Bielert v. N. Ohio Prop., 863 F.2d 47 (6th Cir. 1988) (“An employer does not
constructively discharge an employee simply by advising him that he must be productive in order
to retain his new job.”)).

13

Plaintiff points to two specific events to support his constructive discharge claim. (Id. at
13–15; but see Doc. 36, PAGEID #: 224 (Plaintiff’s testimony that the “last chance agreement”
was the only reason he retired)). First, Plaintiff cites his promotion to Pulp Mill Operator despite
Dr. Cochran’s letter indicating that he was unable to perform a sedentary job. (Doc. 39 at 14).
Second, Plaintiff cites Defendant’s requirement that he sign a “last chance agreement” stating
that he would be terminated if any future work issues arose. (Id.).
The evidence demonstrates that Defendant promoted Plaintiff from Pulp Mill Helper to
Pulp Mill Operator due to a mandatory promotion or “forced move up” required by Plaintiff’s
union contract. (Doc. 38-1 at ¶ 3; Doc. 35, PAGEID #: 140). And even if the promotion hadn’t
been forced, Plaintiff had lobbied for the position. (Doc. 38-1 at ¶ 3; see also Doc. 35, PAGEID
#: 141 (Plaintiff’s testimony that he wanted the training and job)). Further, as discussed supra,
Defendant addressed how to accommodate Plaintiff’s medical conditions and concluded that he
could do the job successfully if he were able to move around the control room and/or do
stretching exercises.

(Doc. 38-1, PAGEID #: 412).

Thus, the evidence does not support

Plaintiff’s position that Defendant promoted him with intent for him to resign. See Aslept, No.
3:11-cv-395, 2013 WL 2417980, at *6. To the contrary, the evidence demonstrates Defendant’s
belief that Plaintiff could work successfully as Pulp Mill Operator. (See id.).
As to the “last chance agreement,” the evidence demonstrates that Defendant asked
Plaintiff to sign it after he had been involved in a number of incidents that Defendant deemed
unacceptable (Doc. 36-3, PAGEID #: 303), the most recent of which was a verbal altercation on
June 12, 2014 with his union representative (Id.; Doc. 36, PAGEID #: 256). Plaintiff described
that incident as follows:
He got up in my face and started wagging his finger. And I told him—I said,
“John, you better back your ass up.” He backed up and started to walk away.
14

And I just kind of muttered to myself, “What a piece of shit.” He heard me. He
come running back on me. “What did you say? What did you say?” I said,
“John, you get out of my face. I’m telling you right now, get out of my face.” He
backed up, and I said, “I called you a piece of shit.” He walked out the door.
And then, he come back in and said something. And I said, “Oh, just go on your
way John. You’re no good.”
(Doc. 36, PAGEID #: 256). Although Plaintiff disagrees with Defendant’s position that his
behavior was unacceptable (id., PAGEID #: 246), Plaintiff signed the agreement with his union
representative present and after having discussed it with him. (Id., PAGEID #: 246; Doc. 36-3,
PAGEID #: 303).
Plaintiff offers no evidence to support his position that Defendant made him sign the “last
chance agreement” with the intent to cause him to resign. He likewise fails to offer evidence
demonstrating that Defendant should have reasonably foreseen that Plaintiff would resign based
on the “last chance agreement.” To the contrary, the evidence demonstrates that the “last chance
agreement” was based on work-related incidents in which Defendant found Plaintiff’s behavior
to be unacceptable. That alone is insufficient to prove constructive discharge. See, e.g., Agnew,
286 F.3d at 310 (finding that employer’s criticism and institution of performance improvement
plan do not constitute objectively intolerable conditions).
b.

Other Adverse Employment Actions

Plaintiff again points to two specific events to support his argument that Defendants took
other adverse employment actions against him. First, Plaintiff claims that Defendant “attempted
to disallow [him] from coming back to work” after he suffered the syncopal episode in
November 2013. (Doc. 39 at 16). Next, Plaintiff asserts that, after the “last chance agreement”
was signed, Defendant instructed employees “to watch [him] closely in an effort to catch any slip
up.” (Id. at 14).

15

Even if Plaintiff were able to establish a prima face case of employment discrimination
showing that Defendant’s decision to disallow him to return to work for a period of time was an
adverse employment action, the burden would then shift to Defendant to articulate a legitimate,
nondiscriminatory reason for its decision. Reid v. Rexam Beverage Can Co., 434 F. Supp. 2d
500, 505 (N.D. Ohio 2006). If Defendant is able to articulate a legitimate, nondiscriminatory
reason, the burden would then shift back to Plaintiff to demonstrate pretext. Id.
The record reflects that the syncopal episode in November 2013 came shortly after
Plaintiff had suffered a heart attack in October 2013. (Doc. 35, PAGEID #: 124). In Mr.
Fisher’s affidavit, he explains that these two medical incidents, in addition to Plaintiff’s pending
worker’s compensation claim, prompted Defendant to use its common procedure of having an
IME to assess Plaintiff’s ability to return to work. (Doc. 38-1, PAGEID #: 412–13 at ¶ 4). Dr.
Sethi performed the IME and determined that Plaintiff was unable to return to work. (Id.,
PAGEID #: 413 at ¶ 4). Defendant met with Plaintiff to inform him of Dr. Sethi’s opinion. (Id.).
Mr. Fisher states:
Almost two months after the meeting, I received a letter from a lawyer
representing Mr. Oszust, stating that Mr. Oszust should be allowed to return to
work. As soon as Mr. Oszust provided clearance from his cardiologist, he was
returned to work on June 6, 2014.
(Id.). Finally, Mr. Fisher adds that he deals with lawyers regularly as Defendant’s Human
Resources Manager, and he had no concerns with Plaintiff seeking legal counsel to assist him in
this matter. (Id.).
Thus, Defendant has proffered a legitimate, nondiscriminatory reason for refusing
Plaintiff’s return to work—its belief that doing so could be a threat to Plaintiff’s health. Further,
Defendant has substantial evidence to support this reason based on Dr. Sethi’s findings. Plaintiff
cannot satisfy his burden of proving pretext for a discrimination claim by, “without more,
16

questioning the employer’s business judgment.” Reid, 434 F. Supp. 2d at 506–507. Because
Plaintiff offers nothing more than his own opinion and speculation that Defendant’s proffered
reason is a pretext, his claim based on a delayed return to work fails. (See, e.g., Doc. 39 at 16–17
(arguing that “a reasonable jury may not believe that defendant was suddenly concerned about
plaintiff’s health when it refused to allow plaintiff to come back to work. This is particularly so
when the decision to prevent [him] from returning was based on a report from a hired gun doctor
selected to make this very opinion.”)).
Plaintiff’s claim of an adverse employment action based on Defendant’s alleged
instruction for employees to watch him is likewise deficient. Defendant took no disciplinary
action against Plaintiff between the “last chance agreement” and his retirement. (Doc. 36,
PAGEID #: 225). Co-worker monitoring does not constitute an adverse employment action
unless Plaintiff presents evidence that it was materially adverse to his job status. See Monaco v.
Quest Diagnostics, Inc., No. 08-2500-KHV, 2010 WL 3843622, at *10 (D. Kansas Sept. 24,
2010) (citing Tapia v. City of Albuquerque, 170 F. App’x 529, 534 (10th Cir. 2006)). Because
Plaintiff fails to present evidence that co-worker monitoring was materially adverse to his job
status, he fails to demonstrate an adverse employment action on this basis.
Based upon the foregoing, Plaintiff fails to establish a prima face case of disability
discrimination.

Specifically, Plaintiff fails to demonstrate that his back pain and diabetes

constitute a disability under the relevant law and that Defendant made an adverse employment
decision regarding him solely because of his disability. See Brantley, No. 1:01CV378, 2007 WL
2462652, at *24. Moreover, even if Plaintiff were able to establish a prima face case of
employment discrimination showing that Defendant’s decision to disallow his to return to work
for a period of time was an adverse employment action, Defendant has articulated a legitimate,

17

nondiscriminatory reason for its decision that Plaintiff has not shown to be a pretext for
discrimination.

Thus, Defendant’s Motion for Summary Judgment on Count III of the

Complaint is GRANTED.
C.

Count IV: Retaliatory Discharge

“Without a showing of circumstances supporting a factual issue regarding [Plaintiff’s]
claim of constructive discharge, no discharge exists to support [Plaintiff’s] wrongful-discharge
claim, and it too fails.” Aslept, 2013 WL 2417980, at *10 (quoting Keller v. Allstate Ins. Co., 146
F. App’x 764, 766 (6th Cir. 2005)). Indeed, the evidence demonstrates that Plaintiff retired
voluntarily—he was under no deadline to retire, picked his own retirement date, and gave over
two months’ notice so he would receive all of his vacation pay. (Doc. 38 at 17). Thus,
Plaintiff’s wrongful termination claim is without merit and Defendant’s Motion for Summary
Judgment on Count IV of the Complaint is GRANTED. Aslept, 2013 WL 2417980, at *10.
(“Because he voluntarily resigned, Plaintiff cannot maintain a claim for wrongful termination.”).
D.

Count V: Intentional Infliction of Emotional Distress

Finally, in order to state a claim for intentional infliction of distress under Ohio law, the
plaintiff must plead that:
(1) the defendant intended to cause emotional distress or knew or should have
known that its conduct would result in serious emotional distress to the
plaintiff; (2) defendant’s conduct was extreme and beyond all possible bounds
of decency and was such that it can be considered as utterly intolerable in a
civilized community; (3) defendant’s conduct was the proximate cause of
plaintiff’s psychic injury; and (4) plaintiff’s emotional distress was serious
and of such a nature that no reasonable person could be expected to endure it.
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008). Even
construing the facts in the light most favorable to Plaintiff, he fails to raise a genuine issue of
material fact concerning outrageous conduct or serious emotional distress to survive Defendant’s

18

Motion for Summary Judgment. See Dooley v. Wells Fargo Bank, Nat. Ass’n, 941 F. Supp. 2d
862, 869 (S.D. Ohio Apr. 19, 2013). Further, the claim is also deficient based on Plaintiff’s
failure to cite to any evidence demonstrating that he indeed suffered a psychic injury. See
Williams v. Nice, 58 F. Supp. 3d 833, 840 (N.D. Ohio Sept. 30, 2014); (see, e.g., Doc. 35,
PAGEID #: 125 (Plaintiff testifying that he has never seen a psychiatrist, psychologist, or
counselor)). Therefore, Defendant’s Motion for Summary Judgment on Plaintiff’s claim of
intentional infliction of emotional distress is GRANTED.
IV.

CONCLUSION
For the reasons stated, Defendant’s Motion for Summary Judgment is GRANTED.

(Doc. 38). The Clerk is DIRECTED to enter judgment in favor of Defendant and against
Plaintiff. This case is TERMINATED.
IT IS SO ORDERED.

Date: March 17, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

19