United States District Court, S.D. Ohio, Eastern Division
Elizabeth Preston Deavers Magistrate Judge
OPINION AND ORDER
A. ARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
Barker's Employment History with Paccar
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
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).
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,
Paccar's Policy for Taking FMLA Leave
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
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 ##
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:
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
• 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
(Employee Handbook at 13 [ECF No. 32-2, Ex. 10, PAGEID ##
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
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
(Perkins Dep. at 26:12-24).
Barker's Medical Issues
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"),
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).
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
(Pl. Dep. at 115:14-21). And, when asked about anything
additional that Lewis had told him about the FMLA process,
[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
A. No, ma'am.
(Pl. Dep. at 117:7-16).
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).
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
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
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).
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).
Paccar's Sexual Harassment Policy
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
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
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
A I do not recall that being reported.
Q Do you know the name Charles Newberry?
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 ...