United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY: (1) GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DOC. 25); (2) DIRECTING THAT
JUDGMENT BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST
PLAINTIFF; AND (3) TERMINATING THIS CASE ON THE COURT'S
Michael J. Newman United States Magistrate Judge
civil consent case is before the Court on the motion for
summary judgment filed by Defendant Repacorp, Inc.
(“Repacorp”). Doc. 25. Plaintiff Robert Sloan
(“Sloan”) filed a memorandum in opposition. Doc.
28. Thereafter, Repacorp filed a reply. Doc. 31. The Court
has carefully considered all of the foregoing, as well as all
Rule 56 evidence submitted by the parties on summary
judgment. Accordingly, Defendant's motion is ripe for
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact and that the movant is entitled
to summary judgment as a matter of law. Fed.R.Civ.P. 56;
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). “Summary judgment is only
appropriate ‘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.'” Keweenaw Bay
Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (quoting Fed.R.Civ.P. 56(c)). “Weighing of the
evidence or making credibility determinations are prohibited
at summary judgment -- rather, all facts must be viewed in
the light most favorable to the non-moving party.”
“a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on
allegations or denials in its own pleading[.]”
Viergutz v. Lucent Techs., Inc., 375 F. App'x
482, 485 (6th Cir. 2010) (citation omitted). Instead, the
party opposing summary judgment has a shifting burden and
“must -- by affidavits or as otherwise provided in this
rule -- set out specific facts showing a genuine issue for
trial.” Id. (citation omitted). Failure
“to properly address another party's assertion of
fact as required by Rule 56(c)” could result in the
Court “consider[ing] the fact undisputed for purposes
of the motion.” Fed.R.Civ.P. 56(e)(2).
“there is no duty imposed upon the trial court to
‘search the entire record to establish that it is
bereft of a genuine issue of material fact.'”
Buarino v. Brookfield Twp. Trustees, 980 F.2d 399,
404 (6th Cir. 1992) (citations omitted). Instead, “[i]t
is the attorneys, not the judges, who have interviewed the
witnesses and handled the physical exhibits; it is the
attorneys, not the judges, who have been present at the
depositions; and it is the attorneys, not the judges, who
have a professional and financial stake in case
outcome.” Id. at 406. In other words,
“the free-ranging search for supporting facts is a task
for which attorneys in the case are equipped and for which
courts generally are not.” Id.
support of their arguments on summary judgment, the parties
rely on the deposition testimony of Sloan; the deposition
testimony of Repacorp's President, Tony Heinl; and
exhibits attached thereto. Docs. 23-24. In addition to
deposition testimony, the parties also rely on testimony
taken under oath and elicited from Sloan, Heinl, and Repacorp
Plant Manager Gary Parrott during an appeals hearing before
the Ohio Unemployment Compensation Review Commission on July
25, 2014. Doc. 25-1. The Court has carefully considered all
of the foregoing Rule 56 evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Unless otherwise stated, the following are
the undisputed facts of the case.
action arises from Sloan's employment with Repacorp.
See generally doc. 1. Repacorp is a company that
manufactures labels for other companies and uses heavy
machinery for the printing of such labels. Doc. 25 at PageID
245-46. Sloan worked for Repacorp from March 7, 2007 until
February 28, 2014. Doc. 24-1 at PageID 74. The parties have
different perspectives at to why Sloan's employment
ended; Sloan contends he was fired (id. at PageID
84), whereas Repacorp contends that Sloan abandoned his job
(doc. 23-1 at PageID 53-54).
his employment with Repacorp, Sloan worked as a production
manager. Doc. 25-1 at PageID 269. In that role, Sloan worked
with, and around, Repacorp's heavy machinery, which
included presses and rewinders. Id. at PageID 274.
In total, Sloan worked on the machinery approximately ten to
twenty percent of his workday. Id. There is no
dispute that the machinery Sloan worked with and around was
very dangerous. See doc. 24-1 at PageID 78; doc.
25-1 at PageID 283, 296. Sloan himself stated that the work
environment at Repacorp was dangerous, especially if one does
not have his or her “head in the game.” Doc. 24-1
at PageID 78. In fact, Sloan testified that, “[i]f
you're not careful, those presses will kill you.”
of the dangerous work environment at the Repacorp facility,
Repacorp maintains an employee handbook that requires all
employees to notify management if they are taking
nonprescription or prescription medication. See doc.
25-1 at PageID 277, 286. Sloan understood that testing
positive for non-prescription mediation, or otherwise taking
such medication, could result in his termination.
Id. at PageID 277.
his employment with Repacorp began, Sloan experienced
significant pain in his back and neck. Doc. 24-1 at PageID
70. Between 2006, i.e., the year prior to his
hiring, and the time of his termination in 2014, Sloan took
prescription medication to cope with his neck and back pain.
Doc. 24-1 at PageID 70-74, 80-81. Beginning in approximately
June or July 2013, Sloan started taking prescription morphine
medication. Doc. 25-1 at PageID 273. Specifically, Sloan was
then prescribed 30 mg of time-released morphine, and 15 mg of
instant release morphine he took twice a day. Id.
dispute, Sloan did not tell his supervisors at Repacorp that
he was taking prescription morphine until the day of his
termination. Id. at PageID 273-74; see also
doc. 24-1 at PageID 79. Sloan admits that, at least on one
occasion, he abused his prescription morphine at work. Doc.
24-5 at PageID 146; see also doc. 24-1 at PageID
104. In November 2013, Sloan disclosed to a co-worker that,
during work hours, he had “just cut 1 of [his]
[m]orphine time release pills so [he could] get the medicine
into [his] system faster.” Id. Sloan admits
that “cutting” his morphine pill was not in
accordance with his doctor's prescription and that such
conduct could be viewed as an abuse of the prescribed
medication. Doc. 24-1 at PageID 104.
addition to taking prescription morphine, Sloan also admitted
to taking non-prescribed Vicodin, an opiate pain medication,
on at least two occasions at work. See infra. In
2013, Sloan received a non-prescribed Vicodin pill from a
co-worker and took it during work hours. Doc. 24-1 at PageID
80, 113-15. In February 2014, Sloan also disclosed in an
email to a co-worker that he took one of his mother's
Vicodin pills for which he had no prescription. Doc. 24-1 at
PageID 80-81. On February 10, 2014, an employee allegedly
told Sloan's immediate supervisor, Gary Parrott,
that Sloan requested a Vicodin from the employee a few weeks
earlier -- an accusation Sloan disputes. Doc. 25-4 at PageID
hearing the allegation that Sloan solicited Vicodin from a
co-worker, Parrott informed Repacorp's President, Tony
Heinl, about the employee's alleged statement. Heinl
immediately removed Sloan from the manufacturing floor and
sent him for a drug test that same day, i.e.,
February 10, 2014. Doc. 25-2 at PageID 363. Sloan voluntarily
submitted to the drug test,  which was positive for
hydrocodone, i.e., the opiate found in Vicodin.
See doc. 25-5 at PageID 411; see also doc.
24-1 at PageID 80, 83. While Sloan denies having asked his
co-worker for Vicodin, he admits he otherwise took
non-prescribed Vicodin that led to his positive drug test,
and does not challenge the positive drug test result. Doc.
24-1 at PageID 115.
was not immediately terminated for testing positive for
non-prescription Vicodin and, when asked why, Heinl testified:
[B]ecause I'm too damn nice. That's the reason. I
should have said no, but I was trying to keep, let him keep
his job because we had invested a lot of time in [Sloan] and
[Sloan] ha[d] invested a lot of time in the company, so I
tried to work with him as much as I could[.]
Doc. 25-1 at PageID 293. Repacorp referred Sloan to its
Employee Assistance Program (“EAP”) on February
17, 2014. Doc. 24-1 at PageID 83-84, 110; doc. 25-1 at PageID
referral, Sloan's EAP coordinator requested that he
provide certain information from his physician, namely:
whether he was permitted to work as a production manager as a
result of his medical condition; whether there were any
limitations on his ability to work after receiving treatment
for his condition; a list of his current medications; and
whether the medications prescribed impact Sloan's ability
to concentrate on the job. Doc. 24-1 at PageID 110. On that
same day (February 17, 2014), Repacorp placed Sloan on paid
leave pending receipt of information from his
physician. Doc. 25-1 at PageID 282. ...