The opinion of the court was delivered by: Judge Michael R. Barrett
This matter came before the Court upon the filing of Defendant's Motion for Summary Judgment (Doc. 32) with exhibits attached as Doc. 33, 34, 35, and 36. Plaintiff filed a memorandum in opposition to the motion (Doc. 40). Defendant filed a reply brief in further support of its motion (Doc. 41). This matter is now ripe for review. Plaintiff's Complaint alleges violations of the Family Medical Leave Act (FMLA), Americans with Disability Act (ADA) and Ohio Revised Code Chapter 4112. However, Plaintiff, by way of a footnote in this Memorandum in opposition (Doc. 40, FN6) is not disputing Defendant's motion as to the ADA claim and Ohio Revised Code Chapter 4112. Therefore, the only claim remaining is Plaintiff's claim that Defendant violated the FMLA.
Plaintiff, a Batavia resident, was employed by Defendant from 1999 until August, 2003, most recently as a yard conductor (LaDuca Depo., p48-49). Plaintiff was relatively high on the conductor seniority roster (Id.) which provided him with the ability to have stable hours and required little travel (Talley Aff. ¶4). Defendant requires that its conductors eventually become engineers and to further that end, Defendant negotiated a provision in the applicable collective bargaining agreement whereby it can compel its employees to accept promotions into its LET (Locomotive Engineer Training) program. According to Defendant, one draw back of this program is that the seniority at the company is based upon time of service at a particular position not the length of time at the company. So a conductor high on the conductor seniority roster would be at the bottom of the engineer seniority roster upon completion of the LET program (Talley Aff. ¶8-9). This change in seniority will have an adverse impact on an employee's ability to determine job assignments and hours of work (Id.). If an employee fails to successfully complete the program or refuses to attend LET, he will be forfeiting his employment (Id.). On January 14, 2003 Plaintiff was informed that he would have to attend LET in McDonough, Georgia and have a physical examination (Talley Aff. ¶5, 8).
On January 22, 2003, on his way to work, Plaintiff was involved in an automobile accident that caused him to seek medical attention for back pain (LaDuca Depo., p 48-49). He was treated and released that same day with a prescription for pain medication (Id. at 105-106). On Friday, January 24, 2003 Plaintiff attended a previously scheduled physical examination to confirm his fitness for LET with Dr. Chuck Le in Cincinnati at the Bethesda Care Eastgate (Id. at 98-100). Plaintiff indicated at this appointment that he had not nor currently was suffering from a back injury or pain (Id. Exh. 19). Dr. Le found Plaintiff fit for duty with no restrictions (Id. at 102-103). Plaintiff did not return to work until the Monday following his accident, January 27, 2003 (Id., p 110-112). Despite, Plaintiff's attendance at this physical examination, Plaintiff claims to have been unable to work and unable to perform his regular daily activities, including vacuuming, from Wednesday, January 22 through at least Saturday January 25 (LaDuca Aff. ¶7-8).
At some point in late January or early February, Plaintiff saw his primary care physician, Dr. Walker, on two occasions as result of the accident. Dr. Walker referred Plaintiff to a chiropractor, Dr. Teece, who treated him three times. Dr. Teece then referred Plaintiff to Dr. Nayak, an orthopedic doctor. Plaintiff also saw Dr. Kramer to evaluate Plaintiff's need for surgery. Dr. Kramer concluded that Plaintiff was not a good candidate for surgery at that time. Plaintiff then returned to Dr. Nayak who he saw on February 26, March 24 and June 23, 2003. Dr. Nayak recommended physical therapy and then aquatic physical therapy. (Id. at p 120-124).
At Plaintiff's request to receive physical therapy for his back pain, Defendant excused Plaintiff from the February LET (Arrington Aff. ¶8). Plaintiff requested intermittent FMLA on February 13, 2003 (Strickland Depo. Ex. 12). This request was denied as Plaintiff had not worked the required hours in the prior 12 months to qualify for FMLA leave (Strickland Depo. Ex. 11 and p 52). Plaintiff then continued to perform his normal job duties without restriction through July, 2003 (LaDuca Depo. p 113-114, 121, 124-125).
On May 22, 2003, Plaintiff again requested intermittent FMLA leave believing that he had met the required number of hours to qualify (Strickland Depo. Ex. 16). Plaintiff received a medical certification form on June 2, 2003 which needed to be completed by Plaintiff's doctor and returned to Defendant before this FMLA leave could be approved (Id. and LaDuca Depo. p 134). On June 23, 2003 Plaintiff had an appointment with Dr. Nayak, his treating physician, to have the medical certification completed (LaDuca Depo. p 134-135). At that time Dr. Nayak wrote Plaintiff a prescription for aquatic physical therapy. However, this prescription did not specify when the physical therapy needed to be completed (LaDuca Depo. Ex. 29). Apparently unbeknownst to Plaintiff, his May FMLA request was also denied because Plaintiff had still not work the requisite number of hours (Strickland Depo. Ex. 1-3, Doc. 32, p15 n6).
On July 2, 2003, Plaintiff received an email from Defendant informing him that he would be expected to be at the LET program beginning August 4th (Id. p 30). On July 23, 2003 Defendant sent a letter to Plaintiff confirming the LET program and instructing him to report at the training center in McDonough, GA by 6:00pm on August 3, 2003. (Id. p 151 and Ex. 3). Also on July 23, 2003 Plaintiff sent an email to Defendant asserting that he would be on FMLA intermittent leave starting the first week of August and that he would not be able to attend the August LET (Id. Ex. 29). Based on Plaintiff's July 23rd email, the Lake Division Office of Defendant submitted a new FMLA leave request on July 24, 2003 on Plaintiff's behalf. Copies of the physical therapy prescription and the medical certification form were faxed in as well (Strickland Depo. p 66-68, 73-74).*fn1 The medical certification form was forwarded to Defendant's Medical Department staff nurse for further evaluation (Id. p79, 81). Strickland asserts that he called Plaintiff and requested permission to speak to his doctor which Plaintiff denied (Id. at p109-111). Plaintiff, however, assets that this is not true (DaLuca Aff. ¶19-22).
On July 28, 2003 Defendant sent Plaintiff a letter denying the requested FMLA leave based upon the certification provided by Dr. Nayak (Strickland Depo. Ex. 23).
Specifically, the letter stated, "The medical certification form provided by your physician states that you are not incapacitated. Based upon the information provided this does not qualify as a serious medical illness. In addition, the certification form indicates the condition began in January and was expected to last 4-6 months." Also, on July 28th,
Plaintiff scheduled his physical therapy appointments (Id. at 161). After learning that his FMLA request was denied, Plaintiff did not cancel the scheduled physical therapy appointments (Id. at 167). However, on the evening of July 29th, Plaintiff did request clarification from Strickland, via email, as to what additional information would be necessary and asserting that he would be able to obtain such additional information (Strickland Depo. Ex. 7). Strickland did not respond to this email as he only worked a portion of the day on July 30th and then was off the rest of that week. (Id. at 126).
On July 30, 2003 Defendant called Plaintiff to confirm his attendance at LET. Plaintiff expressed concern about his ability to drive to Georgia. Defendant responded by giving Plaintiff the rest of the week off with pay to make the trip to Georgia (DaLuca Depo. p 157-159). Despite the additional time off of work, Plaintiff waited until August 3 to begin his journey to Georgia (Id. at 163). Plaintiff drove for approximately two and a half hours before stopping because of back pain. Plaintiff called his girlfriend who, along with her son, came and picked up Plaintiff (Id.).*fn2 Plaintiff called Defendant to notify them of his failure to reach Georgia at approximately 6:00pm on August 3, several hours after he arrived back home. (Id. at 165-166). Plaintiff was immediately suspended, with benefits but without pay, for not following instructions (Id.). Plaintiff admits that he was never seen by a doctor after aborting his drive to Georgia (Id. at 123, 167).
On August 7, 2003 Plaintiff was notified that a formal investigative hearing was scheduled for August 13 to determine why he failed to appear for LET (Talley Aff. ¶11). Plaintiff requested that this hearing be rescheduled (LaDuca Depo. Ex. 37). The hearing was reset for September 4, 2003 at Plaintiff's request. On September 2, 2003 Plaintiff again requested that the hearing be rescheduled to October 22 ...