Appeal from Shelby County Common Pleas Court Trial Court No. 11CV000225
David A. Young and Kami D. Brauer for Appellant, Cross-Appellee
Deirdre G. Henry and J. Quinn Dorgan for Appellees, Cross-Appellants
(¶1} Plaintiff-Appellant, Mark Zwiebel ("Zwiebel"), appeals the judgment of the Shelby County Court of Common Pleas granting summary judgment in favor of Defendants-Appellees, Plastipak Packaging, Inc. and Rick Naegele (collectively hereinafter, "Plastipak") on his wrongful termination claim. On appeal, Zwiebel contends that the trial court erred in granting summary judgment when it found that he had failed to set forth a cause of action for wrongful discharge in violation of public policy. Plastipak has also filed a cross-appeal and raised three assignments of error. For the reasons set forth below, the judgment is affirmed.
(¶2} Zwiebel began working for Plastipak in 1985, when he was eighteen years old. At the time of his termination in 2011, Zwiebel was working as a production technician and was responsible for operating blow-molding machinery in the beverage department. Rick Naegele was Zwiebel's intermediate supervisor, a cell leader. Generally, each line of machines molds, labels and packages bottles that will be used to contain various food and beverage products. Zwiebel's job was to have hands-on operation of his assigned lines.
(¶3} Plastipak terminated Zwiebel on January 4, 2011, for incidents that occurred on December 30, 2010. Plastipak claims that Zwiebel, an "at-will" employee, was fired because he left his position on the factory line without ensuring that someone was there to cover for him. In fact, Plastipak claims that Zwiebel did this three times on the same shift: once, when he left to use the restroom; once when he left for lunch (during which time the machine jammed, causing approximately 100 bottles to fall and become contaminated); and again later in the day, when he left to take a break. Plastipak also maintains that it had no choice but to terminate Zwiebel because he had already received a "first and final communication" in March of 2010, for falsifying a report on a leak detector. A "communication" is a disciplinary action and, because of the seriousness of the 2010 offense, Zwiebel was subject to termination for any other workplace violation that might occur in the succeeding twelve months. Zwiebel acknowledged that he received this communication and that he understood its significance.
(¶4} Zwiebel asserts that he tried to find someone to cover for him when he went to the restroom but that he was not able to locate anyone to watch his line. He also claims that no official policy existed that would instruct a technician as to what he or she should do if they needed to use the restroom and that, in the past, he claims that he was not always required to find coverage when he left his line to use the restroom. Zwiebel's position is that his termination was against the public policy which requires employers to permit employees to use restroom facilities, subject to reasonable restrictions. He also maintains that his line leader had agreed to keep an eye on his line for him when he went to lunch.
(¶5} On December 30, 2010, Zwiebel clocked in at 7:10 for his twelve-hour shift. Employees who work twelve-hour shifts are entitled to take a 40 minute unpaid lunch break and three 10-minute paid breaks throughout the day. Although Zwiebel had operated most of the machines in his area of the factory, he was usually assigned to operate the blow molder located on Line 15. However, on this day, Zwiebel was assigned to run a newer Sidel blow molder located on Line 70, even though he had never previously operated this machine or received any training on it.
(¶6} At approximately 10:30 a.m., after working for over three hours without a break, Zwiebel needed to use the restroom. Because this was the first time he had operated Line 70 by himself, he looked for someone to watch his line while he used the restroom, but he claimed that he could not locate anyone. Therefore, Zwiebel, left the line for 3-5 minutes to use the restroom.
(¶7} When Zwiebel returned to Line 70, area leader Pemberton Lincoln and maintenance worker Alan Theison were waiting for him at Line 70, and were not happy that he had left his line unattended and without informing anyone. Theison asked Zwiebel where he had been and Zwiebel stated that he had gone to the restroom. Theison responded, "You walked off the f***ing line to go to the restroom!" Zwiebel then turned to Lincoln, his area leader,  and complained that he had been placed on Line 70 by himself without any utility workers, technicians, or anyone else to assist him and without any training. Lincoln was upset that Zwiebel had left his line unattended and reprimanded Zwiebel for leaving his machine without any coverage. (Zwiebel Depo. 94; Lincoln Depo. 18-20)
(¶8} Later, Zwiebel took a 10-minute break at approximately 11:00 and a co-worker relieved him during this break. At approximately 11:30 a.m., Zwiebel shut down Line 70 and worked at his usual machine on Line 15.
(¶9} At 2:30 Zwiebel was ready to go to lunch. He walked to Line 62 and stated to his line leader, Loretta Lowe, "I'm ready to go to lunch. Can you keep an eye on my line?" (Zwiebel Depo. 97, 99-100). Lowe responded that she was already watching two other lines at the time. (Lowe Depo. 12, 21) She testified that she did not tell him that he could not leave nor did she specifically state that she could not watch his line. (Id. at 12) There have been other times when she had watched three lines. (Id.) Zwiebel testified that he told Lowe that his line was already up and running and that all she had to do was keep an eye on it. He claims that she then said, "Go ahead and go to lunch." (Zwiebel Depo. 100)
(¶10} Naegele testified that Lowe had informed him that Zwiebel did not ask permission to go to lunch, but that he simply told Lowe he was leaving and then went to lunch. (Naegele Depo. 34). When Naegele informed Lincoln that Zwiebel had left his machine unattended again, Lincoln spoke with Lowe and claimed that Lowe said she was already watching two machines and she told Zwiebel that she could not watch his machine at that time. (Lincoln Depo. 27; Lincoln Affidavit ¶ 9, Ex. 9)
(¶11} That afternoon, Lincoln asked Naegele to send a "Communication Request" to Human Resources ("HR"), which was the procedure that was followed in order to have HR issue a formal communication. In the area on the form for "Suggested Action, " Naegele wrote "Whatever is appropriate for this violation according to his past history." At this point in time, Naegele and Lincoln claimed they were not aware of the fact that Zwiebel already had another final communication in his record. In fact, an HR assistant had sent an email stating this was the first communication.
(¶12} Later that same day, Naegele sent an email to Lincoln describing what he observed when Zwiebel took a break later that day:
Just wanted to let you know that [Zwiebel] walked off the line again for his last break at 5:15 pm. Did not tell anyone he was going, left four Utilities there by themselves.
Not sure if he just doesn't understand or what, but after both of us speaking with him today about it, now it just seems like he just doesn't care what we say or think.
Just wanted you to be aware of the fact that he did it again for the fourth time in one shift.
(Naegele Depo Ex. 1) Naegele claimed that this last incident was not mentioned in the communication because it occurred after he had already sent his request for communication to HR.
(¶13} On January 4, 2011, HR issued the following "Communication to Associate:"
Reason for Communication: This communication is being issued for failure to follow conduct policies as defined in the Plastipak Pkg. Associate Handbook. * * * As the Company seeks to maintain standards of associate conduct, you are being issued this communication for failure to follow orders or instruction of a Supervisor or any member of Supervision. On the morning of December 30, 2010 you walked off the machine you were working on and went to the restroom. You did not notify Leadership on Line 70 that you were leaving the Line. After this instance you were verbally counseled by the Manufacturing Leader. Later during the same shift you walked off Line 15, walked by the Team Leader and said to watch your Line you were going to lunch. The Team Leader replied that they could not watch the line at that time because they were already working Sidel 62 and the labeler [machine] and could not watch Line 15 as well. You kept walking and went to lunch anyway. While you were at lunch, Line 15 backed up due to a jammed bottle which caused over 100 bottles to be dropped to the floor until maintenance arrived and unjammed the bottle. You did not follow orders of the Production Manager or the Team Leader. Failure to follow orders or instructions of a Supervisor or any member of Supervision is subject to discharge.
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Action Taken: Due to already receiving a first and final communication and again violating Work Rules, Plastipak Packaging, Inc. has no other ...