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Barker v. Paccar, Inc.

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

August 27, 2019

JAMES BARKER, Plaintiff,

          Elizabeth Preston Deavers Magistrate Judge



         This matter is before the Court on Defendant Paccar, Inc. D/B/A Kenworth Truck Company's ("Defendant" or "Paccar") Motion for Summary Judgment. (ECF No. 28). Plaintiff responded (ECF No. 36) and Paccar replied (ECF No. 37). Accordingly, this matter is ripe for review. For the reasons stated herein, Paccar's Motion for Summary Judgment (ECF No. 28) is GRANTED.


         A. Background

         On April 13, 2018, Plaintiff James Barker ("Barker" or "Plaintiff) commenced this action. On May 2, 2018, Barker filed a five-count Amended Complaint against his former employer, Defendant Paccar, Inc. d/b/a Kenworth Trucking ("Paccar" or "Defendant") and David Lewis ("Lewis") the assistant human resources manager for Paccar. The Amended Complaint alleges: 1) wrongful termination based on age discrimination, in violation of Ohio Rev. Code §§ 4112.02 and 4112.99; 2) Family Medical Leave Act ("FMLA") retaliation; 3) FMLA interference; 4) workers' compensation retaliation, in violation of Ohio Rev. Code § 4123.90; and 5) wrongful termination in violation of public policy (“Greeley claim"). (Am. Compl. ¶¶ 55-112 [ECF No. 7]). Plaintiff has dismissed this action against Lewis. (See ECF No. 27). Thus, Barker only pursues these claims against Paccar.

         B. Barker's Employment History with Paccar

         Barker is a former employee of Paccar. He was 58 years old on October 18, 2017, when Paccar terminated his employment. Paccar manufactures medium and heavy-duty trucks. Paccar operates a heavy truck assembly plant in Chillicothe, Ohio, known as Kenworth Truck Company. Paccar first hired Barker as an assembly specialist on May 30, 2006; however, Barker was laid off on February 2, 2007. (Pl. Dep. at 34:1-5 [ECF No. 32]). Paccar recalled Barker on October 1, 2010; and in 2011 Paccar promoted Barker to Team Lead in the Engine Trim Department. (Id. at 34:20-22, 40:17-41:1). As Team Lead, Barker oversaw between ten to twelve other employees; and in the months prior to his termination, six of the workers he oversaw were female. (See Id. at 44:20-24). Barker was charged with assigning tasks to the employees he oversaw. (See Id. at 44:3-11). Barker did not, however, have the authority to discipline the workers in the Engine Trim Department. (Id. at 82:7-12).

         When assigning employees to work in certain areas on certain tasks, Barker had to ensure they had the requisite training to work on that task; but Barker did not take an employee's preference into consideration when assigning jobs. (Pl. Dep. at 52: 20-23: see also Perkins Dep. at 22:18-23:7 [ECF No. 38-1]). Barker's direct supervisor, Harry Perkins ("Perkins") interacted with Barker on a daily basis since 2013, and trusted Barker in his ability to assign workers to certain jobs. (Perkins Dep. at 12:11-21).

         Prior to his termination, Barker never received formal discipline and his performance evaluations were regularly good. (See Perkins Dep. at 17:3-17, 22:1-6; Rigsby Dep. at 63:4-8 [ECF No. 31]). Further, before the alleged events leading up to his termination, neither Perkins nor Dave Lewis ("Lewis"), the human resources representative for the second shift, received any sexual harassment complaints about Barker. (Lewis Dep. at 41:13-18 [ECF No. 30]; Rigsby Dep. at 17:9-17, 63:4-8; Perkins Dep at 15:23-16:14). And, to Perkins' knowledge, Barker got along with the Engine Trim employees; Perkins further stated that he had no reason to believe that the female employees in the Engine Trim Department were afraid of Barker. (Perkins Dep. at 38:20- 23, 39:14-17).

         C. Paccar's Policy for Taking FMLA Leave

         If a Paccar employee's need for FMLA leave was foreseeable, Paccar had the following policy:

If leave is foreseeable, the employee must give notice as soon as practicable, preferably at least 30 days in advance....
When an employee seeks leave for the first time for an FMLA qualifying event, the employee need not expressly assert FMLA rights or even mention the FMLA.
* * *
If an employee does not have a reasonable excuse for failing to give notice, leave may be delayed until proper notice has been given. When planning medical treatment, the employee must consult with their supervisor and make a reasonable effort to schedule leave so that it does not unduly disrupt the Company's operations.

(FMLA Guidelines at 6-7 [ECF Nos. 32-1-32-2, Ex. 9, PAGEID ## 662-75]).

         Paccar's Employee Handbook for employees who worked at Kenworth Chillicothe also contains information about the process for obtaining approval for FMLA leave and for what reasons an individual could take FMLA leave:

         The following conditions apply to FMLA leave:

• FMLA for your own health condition will be paid using available sick time (40 hours), then all available vacation including birthday and floating holiday. If additional time is needed it will be unpaid time.
• If you are taking Family Medical Leave for the birth or placement of a child, or to care for an immediate family member, you must first take all accrued vacation as part of you [sic] FMLA benefit then no pay will be utilized.
• An approved disability of more than three days for your own serious health condition will be considered as FMLA leave.
• You are required to provide 30 days advance notice of the need to take FMLA leave if the leave is foreseeable.
• You are required to provide a medical certification, issued by a health care provider.
• Your health care coverage will continue while you are on FMLA leave provided you pay the required monthly contribution.

(Employee Handbook at 13 [ECF No. 32-2, Ex. 10, PAGEID ## 676-703]).

         And Lewis's testimony generally mirrored the FMLA procedure outlined in the Employee Handbook and FMLA Guidelines:

Q All right. Generally, what would be the procedure if an employee did want to request FMLA?
A They would present to Medical to get FMLA paperwork, short-term disability and FMLA paperwork.
Q They would do that through Medical, they wouldn't do that through you?
A No. I don't have anything to do with that. I can recommend them for employees to go over there but I don't have anything to do with handing out of the paperwork.

(See Lewis Dep. at 23:20-24:4). Perkins testified similarly:

Q What is your understanding of how the FMLA process works?
A It's federal regulated, and you apply to it through Medical is about all I know. Other than you have to have so many hours of work in before you can qualify for it.
Q So a little more specifically. If an employee wanted to take FMLA leave, based on your understanding do they go to HR? Do they go to Medical? Where do they get the paperwork?
A I believe they have to go get it from the nurse. I would send you to Medical. I don't know what happens after that.

(Perkins Dep. at 26:12-24).

         D. Barker's Medical Issues

         In July 2017, Barker visited a physician, who diagnosed him with a stress fracture from walking on concrete. (Pl. Dep. at 111:8-20). Barker testified that he spoke with Lewis, Perkins, Charles Newberry ("Newberry"), [1] and Dan Tatman ("Tatman") about his foot pain before he went to the doctor. (Pl. Dep. at 111:19-112:8, 112:23-113:1). Barker spoke with each of these individuals about his foot pain on several occasions. (Id. at 113:18-114:2, 115:3-5; see Perkins Dep. at 25:3-14). Barker generally told these four individuals the same thing: he was experiencing severe pain in his foot; the pain was at its worst when he awoke; and that the pain worsened while he was at work. (Id. at 112:13-18; 113:9-14; 114:3-12; 115:3-9). Barker states that he also showed Lewis documentation from his physician regarding his foot pain. (Id. at 150:11-24). Further, Lewis testified that in August 2017, Plaintiff approached him and:

He told me that he had an issue with his foot. I don't remember what the issue was. He had an issue with his foot. It may require surgery. He asked me if it did could I set up a light duty assignment for him. I said I could look into that, but did he want to consider short-term disability to heal. He said he didn't want to do the FMLA thing. He insisted that he wanted light duty. I asked him - I told him I would pursue that. I asked him if he had surgery would he have to wear one of those - a boot cast, one of those plastic boots. The reason for that was that would impact where I could place him in the plant in a light duty assignment. He said he thought he would. I told him that I had to have some conversations with the facility coordinator and I would get back to him.

(Lewis Dep. at 22:7-23). This conversation between Lewis and Barker was one of two or three in which the two discussed Barker's injury. (See Pl. Dep. at 115:3-5).

         Barker submits:

I asked [Lewis] on two or three different occasions what I needed to do to [for FMLA leave] - what it would take or how it worked. He said well -- he told me I would have to come in early someday and get with the nurse and - on day shift and get all the paperwork filled out, said there was an extensive amount of paperwork that had to be filled out and had to be approved.

(Pl. Dep. at 115:14-21). And, when asked about anything additional that Lewis had told him about the FMLA process, Barker testified:

[Lewis was] just alluding to it being a long, drawn out process, a lot of paperwork has to be filled out. He also - at one point I asked him or was talking about my foot injury, and I said yeah - I said boy, it's really getting worse. And he said well, you're not getting any younger. He did allude to that comment.
And he was constantly asking me how much longer I had to go to retire. I was probably asked that, I would say, four to five times at least throughout our conversations.

(Pl. Dep. at 117:20-118:5). Barker testified further about the conversations he had with Lewis.

Q. At the time that you were speaking with Mr. Lewis about your foot injury, did you ever refer to any PACCAR policies and procedures regarding requesting FMLA leave?
A. Just asking what needed to be done, what paperwork needed to be done and such. Not specifics no.
Q. So you didn't actually look at the policies; is that right?
A. No, ma'am.

(Pl. Dep. at 117:7-16).

         Barker, however, never spoke with the nurse about FMLA leave because: "I just never got the opportunity to come in early to speak with her about it, to make the arrangements to make an appointment to do that." (Pl. Dep. at 115:22-116:4). Barker was farther questioned about who interfered with him applying for FMLA:

Q. Okay. Did anyone at PACCAR actively take steps to prevent you from applying for FMLA leave?
A. Not to prevent me, but kind of deter me, yes.
Q. What do you mean by that?
A. By alluding to it as being a long, drawn out process and a lot of paperwork and making it sound really tough.
Q. And that was Dave Lewis?
A. Yes, ma'am.
Q. And that's all he did to discourage you from filing for FMLA leave?
A. Pretty much, yes.

(Pl. Dep. at 152:4-17).

         Lewis submits that he never told Barker that the FMLA process was complicated or that the process was drawn-out. (Lewis Dep. at 27:19-24). And that others at Paccar have taken FMLA leave before, including Mike Murphy ("Murphy") and Tambra Pfeifer ("Pfeifer").

         Barker was also aware that other Paccar employees had taken FMLA leave. (Pl. Dep. at 115:22-116:4; 119:7-120:6). He also knew that Murphy had taken FMLA leave. (See Id. at 129:5- 17). But Barker states that Lewis referred to these individuals as "FMLA people." (See Pl. Dep. at 144:15-24, 145:15-23). Barker further testified:

Mike was another case that» everyone seemed like they could not wait to get rid of Mike. Mike had several health issues. He had -- I believe he had a hip replacement or a knee replacement, one, and then he had back trouble, and he was - he was referred to as one of the FMLA people.
And I know -I know the occasion that he did get terminated, that Dave come [sic] out on the floor and said well, Mike won't be back anymore, said we've gotten rid of him.

(Pl. Dep. at 129:7-17). Barker also stated that Lewis told him that: "[Murphy] had taken off so many times within like his three or four years of employment, that if he averaged that, if he worked there until he retired, then his time off would be like 40 times that he would have taken off the entire time he was there" (Id. at 139:20-25).

         Lewis contradicts Barker. While Lewis submits that he spoke with Murphy "about his fitness for duty[, ]" and that they "talked about his manageable time and his unmanageable time missed," and that Lewis noted that Murphy "was on track to miss a lot of time if he worked his entire career at Kenworth[, ]" Lewis states that Murphy is still employed at Paccar. (Lewis Dep. at 33:6-17).

         Barker was also aware that another employee, Tambra Pfeifer ("Pfeifer"), in the Engine Trim Department had been approved to take FMLA leave and had, in fact, taken FMLA leave. (Pl. Dep. at 57:10-16; 57:20-58:7). Pfeifer is no longer employed at Paccar. (Id. at 145:24-146:1; Lewis Dep. at 36:22-37:2).

         E. Paccar's Sexual Harassment Policy

         Paccar's sexual harassment policy is as follows:

Sexual harassment consists of verbal or physical acts of a sexual nature that result in a tangible employment action or conduct that interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment. Some examples of conduct that may be considered sexual harassment include offensive or unwelcome sexual advances including physical contact; requests or demands for sexual favors; unwelcome verbal comments or jokes of a sexual nature; displays of sexually suggestive objects or pictures in the workplace.

(Def. Policy Bulletin at 1 [ECF No. 32-1, Ex. 7 PAGEID ## 642-43]). Barker was aware of Paccar's sexual harassment policy as, on multiple occasions in 2017, Barker reported to his managers, Perkins and Newberry, two Engine Trim Department employees-Erica Meeks ("Meeks") and Jamie Blackburn ("Blackburn")-for making sexual comments while at work. (See Pl. Dep. at 69:25-74:12, 76:18-78:3). Barker testified that he was uncomfortable around Meeks and Blackburn and avoided being around them while alone because they frequently made sexual comments. (Id. at 81:15-19). Barker, however, did not have the authority to discipline either Blackburn or Meeks. He claims that he simply reported them for their conduct. (See Id. at 82:7- 12). Perkins testified regarding whether Barker ever reported Meeks or Blackburn for sexual harassment:

Q All right. I'm going to ask you if you recall somewhere around mid-2017 if [Barker] came to you and reported that Erica Meeks had made some comments of a sexual nature on the floor?
A I'm going to say I do not recall that.
Q So during [Barker's] testimony he talked about a time where Erica Meeks was on the line talking about essentially having sex with a couple of guys and he indicated that he reported that to you and you guys talked about that. Do you recall that?
A I do not recall that being reported.
Q Do you know the name Charles Newberry?
A Yes.
Q Do you know if [Barker] ever reported that sexual talk from Erica Meeks to Mr. Newberry?
A I do not.
Q Did you and Mr. Newberry ever talk ...

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