The opinion of the court was delivered by: Magistrate Judge Norah McCann King
This is an employment action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Ohio Revised Code ("O.R.C.") §§ 4112.02, 4112.99 in which Michael E. Morgan ("plaintiff") claims that he has been subjected to discrimination on account of his mental disability, and that he was retaliated against for having filed a charge of disability discrimination. With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Defendant's Motion for Summary Judgment, Doc. No. 30, and on Defendant's Motion to Strike Portions of Plaintiff's Affidavit, Doc. No. 41. For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED and Defendant's Motion to Strike is DENIED as moot.
Plaintiff is an employee of Masterfoods USA, Inc., ("defendant" or "Masterfoods"), formerly Kal Kan Foods, Inc. Complaint ¶ 2; Plaintiff's Deposition ("Pl. Dep.") at 42, attached as Exhibit A to Defendant's Motion for Summary Judgment.*fn1 Plaintiff began his employment with defendant in November 2000 as a Zone 12 Lid Feed Operator making $14.42 per hour. Complaint ¶ 2; Pl. Dep. at 42, 45. Positions at Masterfoods are classified into "Zonal categories" based on levels of experience and job responsibilities. Deposition of James Abbott*fn2 ("Abbot Dep.") at 23, Exhibit E. Zone one is the highest category. Id. Compensation is commensurate with Zone classifications. See id.
Shortly after plaintiff began his employment with defendant, he informed defendant that he had a history of depression and that he was taking medication and participating in psychotherapy and counseling sessions to assist him in coping with the condition. Plaintiff's Affidavit ("Pl. Aff.") ¶¶ 5-7,attached to Response in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Memorandum Contra"). In the summer and fall prior to being hired at Masterfoods, plaintiff underwent approximately 18 electroshock treatments, which "helped [him] to deal with depression." Id. ¶ 8. Plaintiff has been told by his doctors that he "will need to continue regular counseling for the rest of [his] life." Id. ¶ 7. However, plaintiff's "work performance has been good throughout [his] employment" with Masterfoods Id. ¶ 2.
In September 2002, plaintiff was assigned to the position of Zone 10 Flex Packaging Intermediate on a temporary basis. See Complaint ¶ 7; Exhibit D. Plaintiff worked in that position until May 2003. See Complaint ¶ 7. Plaintiff was paid $16.45 per hour for the Zone 10 position from his start date through January 26, 2003. See Exhibit D. On January 26, 2003, however, plaintiff's pay was reduced to $15.45 per hour. See Exhibit H. Defendant contends that its personnel manager, Edmond Michael Falk, III, reduced plaintiff's pay because plaintiff had inadvertently been paid more than company policy permitted. See Edmond Michael Falk III Deposition ("Falk Dep.") at 7, Exhibit I. The policy upon which defendant relies requires that employees temporarily assigned to higher Zonal categories receive fifty cents more per hour per higher Zone. See Falk Dep. at 62-66; Exhibit H; Pl. Dep. at 217. By this calculation, plaintiff's pay increase should have been $1.00 per hour more than his regular rate of pay, or $15.42 per hour, instead of the $16.45 per hour that he was initially paid.
Plaintiff asserts that he was doing well in the temporary position, and that he "enjoyed the position and wanted to stay in it." Pl. Aff. ¶ 12. Plaintiff's psychiatrist wrote a letter to defendant indicating that plaintiff's mental condition had improved since his assignment to the new position; the psychiatrist expressed his opinion that plaintiff would benefit by a permanent assignment to the position. See id.; Exhibit 7 attached to Complaint.Moreover, plaintiff alleges that the policy on which defendant relies is not applicable to him and that the relevant policy "clearly states that a person on a temporary assignment can have his salary increased all the way up to the level of the regular employees in those positions if the Area Manager and the Personnel Manager sign off on such an increase." Pl. Aff. ¶ 13 and Exhibit 8 attached thereto. Plaintiff insists that the real motivation for the reduction in his pay was discrimination based on his depression. See Complaint ¶ 10.
On June 6, 2003, plaintiff filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging "disability discrimination by defendant for its failure to pay him appropriately" in the temporary Zone 10 position. Id. ¶ 11.
From mid-October 2003 to mid-February 2004, plaintiff was on an approved medical leave of absence because of his depression. See Complaint ¶ 12. Upon his return to work, plaintiff alleges, he "was repeatedly threatened by his new supervisor that she was going to give him a formal reprimand for excessive absenteeism." Id. ¶ 13. Plaintiff alleges that this threat was also discriminatory in nature and was made in retaliation for his having filed the charge with the EEOC. See id.
In 2004, plaintiff also applied for, i.e., "bid," on two jobs. He alleges that he was denied the positions because his manager, Cheryl Kirchofer, refused to approve the bids, citing plaintiff's poor attendance. Id. ¶ 14. However, plaintiff complains that one of his co-workers, who did not have "mental health problems," was treated more favorably than plaintiff with regard to being awarded jobs on which he bid. See id. ¶ 15. Plaintiff alleges that Ms. Kirchofer's actions were also discriminatory and were taken in retaliation for plaintiff's having filed the disability discrimination charge with the EEOC. See id. ¶ 16.
In March 2004, a slicer machine on which plaintiff was working "jammed." Pl. Aff. ¶ 16. Plaintiff alleges that this machine jammed routinely and that, like other workers, he used a metal bar to attempt to "unjam" the machine but that the bar "became lodged down in the machine."
Id. Defendant launched a formal investigation into the incident which, plaintiff contends, was done in retaliation for his having filed the June 2003 EEOC charge. See id.
On September 22, 2004, plaintiff filed this action.
In February 2005, Ms. Kirchofer evaluated plaintiff's work and characterized his attendance as unacceptable. Plaintiff believes that she unfairly rated his work because "[m]any areas [he] had previously been rated well in, and which [he] would later be rated well in, were marked as unsatisfactory." Id. ¶ 15.
Plaintiff claims that he "was unfairly branded as a problem employee due to [his] depression" and that the Area Manager commented "that if it were up to him he'd fire" plaintiff. Id. ¶ 17. Plaintiff also characterizes this treatment as discriminatory and retaliatory.
II. STANDARD FOR SUMMARY JUDGMENT
The standard for summary judgment is well established. This standard is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). Pursuant to Rule 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact . . . ." Id. In making this determination, the evidence "must be viewed in the light most favorable" to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party "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 (1986). The "mere existence of a scintilla of evidence in support of the [opposing party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252.
The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record which demonstrate "the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). "Once moving party has proved that no material facts exist, non-moving party must do more than raise metaphysical or conjectural doubt about issues requiring resolution at trial." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986)).
Asserting claims under the ADA and Ohio law, plaintiff alleges that he has been discriminated against because of his depression and that he has been retaliated against for having filed a charge of disability discrimination with the EEOC on June 6, 2003. The same standards applicable to plaintiff's ADA claims apply to his claims under Ohio law, O.R.C. § 4112.02(A). See Cloke v. West Clermont Local Sch. Dist. Bd. of Educ., 409 F. Supp.2d 927, 933 (S.D. Ohio 2006) (J. Rice) (citing Burns v. Columbus, Dep't of Pub. Safety, Div. of Police, 91 F.3d 836, 842 (6th Cir. 1996) and Columbus Civil Serv. Comm'n v. McGlone, 82 Ohio St.3d 569 (1998)).
A. Disability Discrimination
In a case such as this, where a plaintiff seeks to establish his case indirectly without direct proof of discrimination, the plaintiff must first establish a prima facie case of discrimination by showing that:
1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.
Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996). If the plaintiff is unable to point to at least a factual dispute as to any one of these elements, summary judgment in the defendant's favor is warranted. See id. at 1185-86 ("If the plaintiff fails to establish a predicate fact necessary to create the presumption of unlawful intent,...the 'burden' never shifts to the defendant."). Otherwise, the defendant must "offer a legitimate nondiscriminatory explanation for its action." Id. If the defendant satisfies this burden of production, the plaintiff must introduce evidence showing that the proffered explanation is pretextual, and that the real reason for the action was discrimination. See id. The plaintiff at all times retains the ultimate burden of persuasion. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
In the case sub judice, defendant contends that plaintiff cannot meet his burden of establishing a prima facie case of disability discrimination because he cannot show that he is disabled as that term is defined under the ADA. See ...