The opinion of the court was delivered by: James L. Graham United States District Judge
This is a discrimination action filed by plaintiff Gary Watson against defendant Kraft Foods, his former employer. Plaintiff alleges that his employment was terminated in violation of the Americans With Disabilities Act of 1990("ADA"), 42 U.S.C. §12101, et seq. Plaintiff also claims that his employment was terminated in retaliation for filing a claim for workers' compensation, a violation of Ohio Rev. Code §4123.90.
This matter is before the court on the defendant's motion for summary judgment. Plaintiff, who is representing himself in this action, also filed a document styled as a motion for summary judgment in response to defendant's motion. The procedure for granting summary judgment is found in Fed. R. Civ. P. 56(c), which provides:
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 judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (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 nonmoving 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). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
The declarations, deposition testimony and documentary evidence on file reveal that the defendant operates a distribution center in Groveport, Ohio, known as the Columbus Mixing Center, where food products are received and compiled into customer orders. In February of 2004, plaintiff was hired for a full-time position as a forklift operator at the refrigerated facility of the Mixing Center. Plaintiff's position entailed operating a forklift to load and unload trucks and manually loading cases weighing five to thirty-five pounds onto pallets from ground level to seven feet. Plaintiff typically worked a ten-hour shift four days a week.
During his employment, plaintiff was disciplined on several occasions in accordance with defendant's corrective action policy. Possible disciplinary action included: (1) a corrective interview, used to inform the employee that a problem is beginning to surface; (2) a written warning, used to give the employee notice that continued misconduct might jeopardize his employment, and that a continued violation will result in a "day of decision" and termination; (3) a "day of decision" which involves a day off without pay, during which the employee must decide if he or she can meet the defendant's standards; if the employee answers "yes," the employee must submit a written plan outlining the actions the employee will take to correct the unacceptable behavior; and (4) termination, which takes into account the seriousness of the offense, previous actions of the employee, attitude and past performance.
Defendant measures the productivity of employees using a computer system known as WTO. This program monitors employee productivity, taking into account factors such as the type of task being performed, the time taken to complete the task, the distance traveled to complete the task, and the weight of the product involved in the task. The program also takes into account personal fatigue and delay, which includes factors such as the total amount of time the employee has worked on a particular day, restroom breaks, and delays caused by congestion in the work area where the task is being performed. Each forklift operator is required to meet minimum productivity requirements.
Plaintiff's performance fell below the minimum productivity requirements on a number of occasions, resulting in the imposition of discipline. Plaintiff was verbally counseled by his supervisor, Michael Dickerson, on March 29, 2004. On May 1, 2004, a corrective interview was conducted with plaintiff by Byron Howard, who held the position of Day Shift Supervisor and later Operations Advisor, when plaintiff's performance fell below the minimum requirements for the period between April 18-24, 2004. On October 16, 2004, a written coaching was issued to plaintiff by Vowe Menta, who held the position of Day Shift Supervisor, when plaintiff's performance fell below the minimum requirements for the period between October 3-9, 2004. On November 23, 2004, plaintiff was issued a written warning by Menta for the period between November 14-20, 2004. On December 28, 2004, plaintiff was issued a "day of decision" by Howard for the period between December 19-25, 2004, and was required to submit an improvement plan.
Defendant also documented incidents of accidents or unsafe conduct in which plaintiff was involved. On March 26, 2004, plaintiff improperly placed a pallet on top of another pallet, causing the top pallet to tip over, resulting in damage to thirteen cases of product. No discipline was imposed. On October 16, 2004, plaintiff improperly straightened a pallet, causing it to fall and damaging one case of product. No discipline was imposed. On December 16, 2004, plaintiff struck his elbow against a pole. No discipline was imposed, but plaintiff was recertified in proper procedures. Plaintiff was not treated for this injury until February 23, 2005, at which time he filed a workers' compensation claim against defendant.
On January 19, 2005, plaintiff broke a weld at the bottom of a support brace while operating his forklift. No discipline was imposed, but plaintiff was recertified in proper procedures. On January 29, 2005, plaintiff improperly placed a pallet on a rack, resulting in damage to three cases of product. Plaintiff was counseled on procedures for the correct placement of pallets. On March 5, 2005, plaintiff failed to properly secure a pallet, causing two cases of product to fall from the pallet. Plaintiff was given a verbal warning by Howard and counseled to be more careful. On April 2, 2005, plaintiff failed to secure a pallet, causing it to fall against another pallet. Plaintiff was issued a corrective interview by Howard for six safety infractions within the previous six months. Plaintiff was advised that the failure to improve his safety record will result in further disciplinary action, up to and including termination.
On May 20, 2005, Howard asked plaintiff to load empty pallets onto a Talon Logistics trailer, which is a trailer with a low ceiling. Forklift operators were trained to use a "cut-down" forklift with a shorter overhead guard protection fixture when loading Talon trailers because the standard forklifts had overhead guards which were too tall to enter the Talon trailers. The cut-down forklifts were clearly marked with a yellow stripe across the overhead guard. Defendant's policy on accidents and injuries requires employees to immediately report such incidents to a coach or advisor even if the injury appears to be insignificant or there is no property damage.
Pursuant to standard policy, plaintiff completed a pre-operation check list at the start of his shift on May 20th, certifying that the forklift he would be using that day was in proper working order and had no damage. Instead of using a cut-down forklift to load the pallets, plaintiff used a regular forklift. While approaching the Talon trailer, the forklift's overhead guard struck the Talon trailer's header, the area at the top of the trailer which houses the trailer's rear roll-up door. The forklift's headlights were located in the area where the forklift struck the trailer. Later that day, a co-worker informed plaintiff that a headlight on his forklift was broken. However, plaintiff waited until the end of his shift to report the broken headlight. When reporting the accident, plaintiff told Howard that the headlight on the forklift that he have been using that day was broken, and that he had no knowledge of who had broken the headlight. He did not inform Howard that he had struck a Talon trailer with his forklift.
Howard, Operations Leader Michael Clouse, and Safety Point Star Representative Thomas Wiegand conducted an investigation which revealed that plaintiff had not stated on the pre-operation checklist that a headlight on the forklift was broken. The investigation also revealed that the Talon trailer plaintiff was loading on May 20th had broken glass on the back edge of the tailgate, damage to its header where the forklift's overhead guard struck it, and damage to the side frame of its door opening at the same height as the broken headlight on the forklift. The investigators determined that plaintiff had struck the Talon trailer while using a standard rather than a cut-down forklift.
Howard contacted plaintiff at home and asked him why he had failed to note damage to the headlight on the checklist. Plaintiff responded that he had completed the checklist without carefully inspecting the forklift. Howard advised plaintiff that he was suspended from his employment based on the result of the accident investigation. He offered plaintiff the ...