The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon Defendant USF Holland Inc.'s Motion for Summary Judgment (Doc. 11), Plaintiff James Matheson's Memorandum in Opposition thereto (Doc. 15) and Defendant's Reply (Doc. 19). Also before the Court is Defendant's Motion to Strike (Doc. 20), Plaintiff's Memorandum in Opposition thereto (Doc. 21) and Defendant's Reply (Doc. 26).
In 1988, Defendant hired Plaintiff to work as a truck driver. (Doc. 25, James Matheson Depo. at 42) Defendant provides less-than-truckload delivery services. (Doc. 11, Ex. 1, Tom West Aff. ¶ 1) At all relevant times, Plaintiff has been a member of Teamsters Local Union No. 100. (Matheson Depo. at 43)
In 1998, Plaintiff began to use most of his FMLA leave each year. (Id. at 32) In 2002 and 2003, it was necessary for Plaintiff to take FMLA leave to help care for his daughter. (Id. at 31) Plaintiff used all his available personal, vacation, and FMLA leave in both of these years. (Id. at 34) In his deposition, Plaintiff stated that his FMLA leave requests were always approved. (Id. at 123) However, Plaintiff claims that members of Defendant's management retaliated against him for taking leave. Plaintiff claims that Kerry Klinger, Defendant's Regional Manager, told Plaintiff on several occasions that he would fire Plaintiff if he could, and that Plaintiff would never see his pension. (Id. at 108, 109) Plaintiff also claims that in June of 2005, Tom West, Defendant's Labor Manager, began to criticize Plaintiff's work and make him jump through extra hoops to get his absences counted as FMLA leave. (Id. at 103, 104)
On January 21, 2004, Plaintiff injured his knee at work. (West Aff. ¶ 1) Plaintiff applied for, and received workers compensation benefits for this injury. (Id.) Plaintiff claims that in retaliation, David Botos, Defendant's Terminal Manager at the time, began to assign older trucks to Plaintiff. (Doc. 15-3, Matheson Aff. ¶ 7) On March 5, 2004, Plaintiff went to the dispatch office to discuss the problem with Misty Carroll, the clerk responsible for assigning vehicles. (Matheson Depo. at 69) Plaintiff and Carroll yelled and cussed at one another. (Id. at 73) Plaintiff then clocked out for the day. (Id. at 76) Carroll reported that Plaintiff degraded her, referred to her as ignorant, and told her that she was a nobody because she was not in management. (West Aff., Ex. 1) Defendant terminated Plaintiff for engaging in sexual harassment. (Matheson Depo. at 83) Plaintiff grieved his termination. (Id. at 81) An agreement was reached whereby Plaintiff's termination was converted to a three-day suspension, with back pay for the days he missed. (Id. at 51)
On September 14, 2004, Plaintiff was standing in the terminal yard with several other employees. (Id. at 92) One of the employees yelled over to supervisor to ask him if he could write, after the supervisor replied that he could "even spell," the employee yelled back, "then spell cocksucker." (Id. 92, 96; Ex. 7) The supervisor blamed Plaintiff, and Defendant sought a disciplinary hearing. (Id., Ex. 7) Plaintiff denied that he made the comment. (Id. at 96) Defendant issued Plaintiff a warning letter. (Matheson Aff., Ex. H) In his deposition, Plaintiff admitted that he knew who made the statement, but chose to not disclose this information to Defendant. (Matheson Depo. at 97)
On December 20, 2004, Defendant brought formal disciplinary proceedings against Plaintiff based on his attendance record. (Matheson Depo. at 101) Plaintiff explains that Defendant stated that the had fifteen instances of tardiness or absence in a one-year period, but claims that Defendant had previously overlooked such conduct. (Id. at 103) Plaintiff was suspended for one day. (Matheson Aff., Ex. 1)
In April of 2005, Plaintiff was suspended for three days. (Matheson Depo. at 116-17) The suspension was based on three incidents. First, on January 25, 2005, Plaintiff was involved in an accident with another driver while driving one of Defendant's trucks. (Id. at 110) Defendant's Safety Department determined that the accident was preventable. (West Aff. ¶ 11) Plaintiff claims that other employees have only received warning letters for single accidents which Defendant has categorized as preventable. Next, on February 28, 2005, Plaintiff strained his back while at work. (Id. 111) Defendant's workers compensation department contacted Plaintiff regarding the injury. Plaintiff claims that the investigator accused him of faking his injury. (Id. at 112) The investigator reported that Plaintiff was rude and insubordinate on the phone. (West Aff. ¶ 11)*fn1 Specifically, the investigator reported that Plaintiff ended the conversation by saying "you're a real bitch." (West Aff., Ex. 2) Plaintiff claims that in the past, Defendant would only issue a warning letter for such behavior. Finally, Plaintiff had an unauthorized absence. (Matheson Depo. at 115) Plaintiff acknowledges that he was not on FMLA leave at the time, and he did not have a doctor's note excusing his absence. (Id.)
Plaintiff grieved this three-day suspension. (Id. at 117) On the grievance form, Plaintiff stated that "because of my Union involvement I am being held at a different standard [sic] than the other employees." (Id., Ex. 11) The grievance proceeded to the state grievance level, and the hearing panel ruled in favor of Defendant. (Id. at 119; West Aff. ¶ 10)
After filing this action, Plaintiff was terminated based on a failure to disclose certain medical conditions and medications on a questionnaire for his Department of Transportation questionnaire. (Matheson Aff. ¶ 37) Plaintiff grieved his termination, but his termination was upheld at the state hearing panel level. (Id. ¶ 41)
In his Complaint, Plaintiff brings three claims against Defendant: (1) retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(2); (2) retaliation for filing a workers compensation claim in violation of Ohio Rev. Code § 4121.90; and (3) intentional infliction of emotional harm.
Defendant agues that Plaintiff's Memorandum of Law opposing its Motion for Summary Judgment relies on inadmissible evidence in order to create an issue of fact for trial. Defendant argues that (1) Plaintiff's affidavit contradicts his prior deposition testimony; (2) Plaintiff relies on hearsay evidence; and (3) the Affidavits of Mark Miller and Clifford Patterson and their accompanying exhibits are based on documents not produced to Defendant during the course of discovery, despite the fact that the documents are responsive to proper discovery requests. Defendant also argues that this Court should also strike any reference to Plaintiff's termination. Defendant argues that Plaintiff had the opportunity to amend his Complaint to include allegations relating to his termination, but instead raises the issue for the first time in his opposition to Defendant's Motion for Summary Judgment.
It is well-settled that a party who has been examined at length at deposition cannot create a genuine issue of material fact by later submitting an affidavit that contradicts previously sworn testimony. Penny v. United Parcel Serv., 128 F.3d 408, 416 (6th Cir.1997); Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). Defendant argues that the following statements in Plaintiff's affidavit contradict his earlier deposition testimony: (1) that management opposed his taking "so much time off;" (2) that Defendant's Regional Manager and Labor Manager opposed his taking time off; (3) that Plaintiff began to take FMLA leave in 2002 and 2003; (4) that his workers compensation claim injury occurred on January 21, 2004 when he injured his knee; (5) that he was assigned older trucks due to a workers compensation injury; and (6) that the one-day suspension he received for attendance problems was improper.
While affidavits containing mere conclusions have no probative value, see In re Arnold, 76 B.R. 109, 110 (Bkrtcy. S.D.Ohio 1987), citing, Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 (5th Cir.1973) and Gordon v. Terry, 684 F.2d 736, 744 (11th Cir.1982), this is not a basis upon which to exclude an affidavit. The Court finds that Plaintiff's statements regarding management's opposition to taking time off are conclusions and do not necessarily contradict his deposition testimony. Therefore, the Court will not strike these statements.
Plaintiff does not appear to contest that he began to use FMLA leave before 2002, and the Court notes that Plaintiff did testify that he began to use FMLA leave in 1998. (Matheson Depo. at 35) Therefore, Plaintiff's statement in his affidavit will be stricken to the extent that it implicates that Plaintiff used FMLA leave for the first time in 2002.
The Court will not strike Plaintiff's reference to his January 21, 2004 injury. While Plaintiff's Complaint fails to mention this injury, the affidavit of Tom West, Defendant's current Labor Manager, notes that Defendant has a record of Plaintiff ...