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Sloan v. Repacorp, Inc.

United States District Court, S.D. Ohio, Western Division

February 27, 2018

ROBERT SLOAN, Plaintiff,
REPACORP, INC., Defendants.


          Michael J. Newman United States Magistrate Judge

         This 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 decision.


         A 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.” Id.

         Once “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).

         Finally, “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.


         In 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.

         This 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).

         Throughout 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.” Id.

         Because 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.[1] 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.

         Before 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.

         Without 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.

         In 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, [2] that Sloan requested a Vicodin from the employee a few weeks earlier -- an accusation Sloan disputes. Doc. 25-4 at PageID 409.

         Upon 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, [3] 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.

         Sloan was not immediately terminated for testing positive for non-prescription Vicodin[4] 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 270.

         Upon 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.[5] Doc. 25-1 at PageID 282. ...

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