2003 Ohio 7039 | Ohio Ct. App. | 2003
{¶ 2} Schugel is a trucking company that carries general commodities. Schugel contracted with Kellogg's to provide trucking services for the delivery of goods, including food, between Kellogg's plant in Zanesville and its facility in Worthington. It is undisputed both companies deemed it important that this "shuttle run" operate timely and continuously 24 hours a day, five days a week.
{¶ 3} Plaintiff was hired as a truck driver for defendant Schugel in March 1996 and was assigned to drive Kellogg's shuttle run. Plaintiff initially was supervised by Aronhalt, who was then the terminal manager for Schugel. In October 1998, Debra White assumed the position of terminal manager and became plaintiff's supervisor, following Aronhalt's departure from Schugel's employment to work as a logistics manager and supervisor for Kellogg's at its Zanesville plant.
{¶ 4} The record indicates that, on August 7, 2001, White mailed plaintiff a letter on behalf of Schugel reprimanding plaintiff for not keeping his truck refueled. The letter advised plaintiff that "any future acts of negligence will result in suspension or possible termination of employment."
{¶ 5} According to plaintiff, he became ill on Sunday, August 26, 2001, and left a message for White that he would not be coming to work on Monday, August 27, 2001, due to the illness. After plaintiff spoke personally to White on Monday morning to confirm he would not be in to work that day due to illness, plaintiff's wife drove him from their home in Newark to Consolidated Personnel Corporation ("CPC") in Columbus, where plaintiff completed an employment application for a truck driver position. The record reflects that in addition to applying for employment at CPC on August 27, plaintiff had also applied for employment with Kellogg's in late spring or early summer 2001, and with Pilot Corporation sometime between August 16-22, 2001.
{¶ 6} Later on Monday, August 27, plaintiff again telephoned White and told her he would not be in to work on Tuesday, August 28 because he was still too sick to work. After plaintiff did not show up on the shuttle run on Tuesday morning, August 28, 2001, Aronhalt telephoned White to see if there might be a problem. Upon being informed by White that plaintiff had called in sick, Aronhalt told White that on the previous Friday, August 24, at least two of Kellogg's employees heard plaintiff complain about Schugel and tell them he was quitting, or thinking of quitting, his employment with Schugel. The employees were warehouse/dock workers at Kellogg's; Aronhalt supervised them, and they regularly had contact with plaintiff when he picked up and dropped off loads. One of the employees had worked for Kellogg's for 15 years and was second in command in the warehouse.
{¶ 7} On Tuesday morning, plaintiff also purportedly went to a doctor, who diagnosed plaintiff as having an upper respiratory infection, specifically sinusitis, and gave plaintiff a release to go back to work the following Monday, September 3. According to plaintiff, the doctor prescribed three medications for defendant to take for his condition: an antibiotic, an antihistamine, and Tylenol 3 with codeine, a narcotic. After seeing the doctor, plaintiff telephoned White around noon on Tuesday. He informed her that he had been to a doctor, he was taking narcotic drugs that prohibited him from operating a motor vehicle, and he would be out for the remainder of the week. According to plaintiff, White stated that was "fine," agreed plaintiff should not be driving a truck if he was taking narcotic medication, and requested plaintiff to give her a copy of the doctor's note when he returned to work; White contended she requested that plaintiff send her a copy of the doctor's note immediately. It is undisputed that White then asked plaintiff if a rumor she heard, that he was thinking of quitting, was true. Plaintiff denied the rumor was true and told White that if he were going to quit he would be man enough to tell her to her face, to which White responded, "Oh, okay."
{¶ 8} At approximately 4:30 p.m. that same day, White received a fax from CPC (1) informing her plaintiff was seeking employment with the company, and (2) requesting verification of his employment with Schugel. According to White, at that point she began to believe that plaintiff was not sick and intended to quit his employment with Schugel, based upon (1) her receipt of the request for verification of employment that was signed on a day plaintiff was purportedly too ill to come to work, (2) the information she received from Aronhalt that plaintiff intended to quit, and (3) plaintiff's failure to provide her with a copy of his medical release.
{¶ 9} On Wednesday, August 29, purportedly in accordance with company policy to be followed when an employee leaves the company, White instructed the payroll department to mail plaintiff's paycheck to him rather than direct deposit it on Thursday, August 30. Plaintiff and White did not communicate on August 30. White stated she would have redirected the payroll department to direct deposit plaintiff's paycheck on Thursday if she heard from him on that day. White contends plaintiff's failure to call her on Thursday, as she claimed she instructed him to do, confirmed her belief that plaintiff intended to or had in fact quit his job with Schugel.
{¶ 10} After discovering his paycheck was not direct deposited on August 30, plaintiff telephoned White on Friday, August 31 and left a message inquiring about his pay. Because White was off work on Friday and the following Monday for the Labor Day weekend, she did not receive plaintiff's phone message until Tuesday, September 4. On that Tuesday, White returned plaintiff's call and informed him that Schugel decided to replace plaintiff on the shuttle run with someone more reliable. White made a statement to the effect that if plaintiff was well enough to apply for employment with another company the previous week, he was well enough to come to work. According to White, her statement reflected her belief that plaintiff was not really sick, as he had claimed.
{¶ 11} Nevertheless, it is undisputed White informed plaintiff he was still employed with Schugel and, although he would not be driving the shuttle run, he could have another position with the company as an over-the-road truck driver. In response, plaintiff flatly refused any other position, and he did not return to work with Schugel. According to plaintiff, his loss of the shuttle run position, together with the failure of Schugel to direct deposit his paycheck, meant his employment with Schugel was terminated, despite the offer of other truck driver positions with Schugel. According to Schugel and White, plaintiff terminated his employment voluntarily.
{¶ 12} Within a week, plaintiff received job offers from CPC and Pilot Corporation. Plaintiff accepted a truck driver job with Pilot Corporation and commenced employment there on Monday, September 10, 2001, just six days after he last spoke with White.
{¶ 13} On January 22, 2002, plaintiff filed a complaint alleging: (1) Schugel and White unlawfully discriminated against plaintiff by terminating his employment because he was "disabled" due to his upper respiratory infection, in violation of R.C.
{¶ 14} Plaintiff appeals, assigning the following errors:
I. The trial court erred by granting summary judgment in favor of appellees J R Schugel Trucking Company and Debra White.
II. The trial court erred by granting summary judgment in favor of appellees J R Schugel Trucking Company and Debra White [sic, Chris Aronhalt and Kellogg's Company].
{¶ 15} Because plaintiff's assignments of error arise out of the trial court's rulings on motions for summary judgment, we view the dispositions independently and without deference to the trial court's determinations. Brown v. Scioto Cty. Bd. of Commrs. (1993),
{¶ 16} Under Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996),
{¶ 17} Plaintiff's first assignment of error asserts that the trial court erred in granting defendants Schugel's and White's summary judgment motion as to plaintiff's claims for (1) employment discrimination on the basis of a disability, and (2) wrongful discharge based on public policy.
{¶ 18} Regarding the employment discrimination claim, plaintiff first contends the trial court erroneously held as a matter of law that plaintiff's upper respiratory illness was not a "disability" within the meaning of R.C.
{¶ 19} Discrimination in employment on the basis of a disability is prohibited by R.C.
It shall be unlawful discriminatory practice:
(A) For any employer, because of the * * * disability * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
{¶ 20} Not every physical or mental condition from which a person suffers constitutes a disability. See Maloney v. Barberton CitizensHosp. (1996),
{¶ 21} To establish a prima facie case of discrimination under R.C.
{¶ 22} Because Ohio's handicap discrimination law is similar to the federal Americans with Disabilities Act ("ADA"), Ohio courts may look to cases and regulations interpreting the ADA for guidance in interpreting Ohio's law. McGlone, at 573; DeBolt, at 486.
{¶ 23} Similar to Ohio's definition of "disability" in R.C.
{¶ 24} In the present case, plaintiff neither alleged nor presented evidence that his upper respiratory infection was anything more than a short-term or temporary physical impairment, or that it had any adverse long-term residual effects. In fact, the record reflects plaintiff received a medical release to return to work just over a week after he first became ill, and he started a new job as a truck driver with Pilot Corporation just one week after his medical release to return to work.
{¶ 25} Because plaintiff had a short-term upper respiratory infection for which he was placed on work restrictions for a period of one week, plaintiff has not demonstrated that he had a physical impairment which "substantially limited" a major life activity, as required to establish a "disability" under R.C.
{¶ 26} Plaintiff further contends that, even if his upper respiratory infection were not a physical impairment that substantially limited a major life activity, he was, nevertheless, "disabled" for purposes of R.C.
{¶ 27} Initially, the fact that an employer honors an employee's medical restrictions does not necessarily infer that the employer regarded the employee as "disabled." Johnson, at 574; Maloney, at 378. Moreover, it is well-established that a person who seeks the protections of R.C.
{¶ 28} The United States Supreme Court has observed that "[w]hen Congress enacted the ADA, it recognized the federal safety rules would limit application of the ADA as a matter of law." Albertson's, Inc. v.Kirkingburg (1999),
{¶ 29} In this case, plaintiff specifically alleged, and presented evidence that (1) his physician prescribed narcotic medication for plaintiff and advised plaintiff that it would adversely affect plaintiff's ability to safely drive a commercial motor vehicle, and (2) White expressly agreed plaintiff should not drive a truck for Schugel while taking such medication. (Complaint, Count I, ¶ 3.) Moreover, plaintiff did not demonstrate that Schugel and White would not allow plaintiff to return to work as a truck driver, other than as the shuttle run driver, when his physician released him to return to work. To the contrary, the evidence demonstrates White offered plaintiff continued employment as a truck driver for Schugel upon his release to return to work after his one-week illness, but plaintiff refused the offer. At most, the evidence shows White and Schugel regarded plaintiff as having a short-term physical impairment that temporarily interfered with his ability to drive a truck for Schugel. The evidence does not reflect that defendants treated plaintiff as having a "substantially limiting" physical impairment within the meaning of R.C.
{¶ 30} Accordingly, the trial court correctly granted summary judgment to defendants White and Schugel on plaintiff's claim that they discriminated against him on the basis of a disability in violation of R.C.
{¶ 31} Plaintiff next asserts the trial court erred in granting summary judgment on plaintiff's claim against defendants White and Schugel for wrongful discharge in violation of public policy as expressed in R.C.
{¶ 32} To succeed on a claim for wrongful discharge in violation of public policy, the plaintiff must first demonstrate that a "`clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity
element).'" Wiles v. Medina Auto Parts,
{¶ 33} Arguably, the clarity element is satisfied because R.C.
{¶ 34} Regarding the jeopardy element, the Ohio Supreme Court stated in Wiles, at ¶ 15:
An analysis of the jeopardy element necessarily involves inquiring into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful-discharge claim. * * * [T]here is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society's interests. * * * In that situation, the public policy expressed in the statute would not be jeopardized by the absence of a common-law wrongful-discharge action in tort because an aggrieved employee has an alternate means of vindicating his or her statutory rights and thereby discouraging an employer from engaging in the unlawful conduct.
(Citations omitted.)
{¶ 35} We conclude, as did the trial court, that the absence of a wrongful discharge action in this case would not jeopardize the public policy expressed in R.C.
{¶ 36} Having concluded summary judgment was properly granted against plaintiff's claims of employment discrimination on the basis of a disability pursuant to R.C.
{¶ 37} Plaintiff's second assignment of error asserts the trial court erred in granting summary judgment to defendants Aronhalt and Kellogg's on plaintiff's defamation claim. Specifically, plaintiff contends the trial court erred in holding there were no genuine issues of material fact that (1) the statement at issue was not false or defamatory, and (2) the subject statement was protected by the qualified privilege of "common business interest" and thus was not actionable, even if it was false and defamatory.
{¶ 38} The alleged defamatory statement consisted of defendant Aronhalt's statement to defendant White to the effect that plaintiff had told other Kellogg's employees that he intended to terminate his employment with Schugel or was thinking about terminating his employment with Schugel. The dispositive question here is whether the statement Aronhalt made to White, concerning plaintiff's alleged intention to quit his employment with Schugel, was qualifiedly privileged.
{¶ 39} Statements between parties concerning a common business interest may be protected by a qualified privilege. Evely v. Carlon Co.,Div. of Indian Head, Inc. (1983),
{¶ 40} Plaintiff argues the "common business interest" privilege is inapplicable because (1) Schugel and Kellogg's are unrelated entities except for their contractual relationship, and (2) White and Aronhalt did not have the same employer when the subject statement was made. Plaintiff's argument is not well-taken.
{¶ 41} Courts in Ohio have found a "common business interest" privilege exists where two entities share a mutual business interest, even if (1) the entities are not "related" other than having a common business interest, or (2) the person making the statement and the recipient of the statement do not have the same employer. See Smith v. Ameriflora 1992,Inc. (1994),
{¶ 42} Here, Schugel and Kellogg's had a contractual business relationship pursuant to which Schugel provided a trucking service for Kellogg's between its Zanesville plant and its Worthington facility. Both companies considered it important that the shuttle operate timely. Thus, defendants Aronhalt and White had a common business interest in sharing information, such as plaintiff's possibly quitting Schugel's employment that might impact the continued, smooth operation of the shuttle run.
{¶ 43} Defendants' evidence demonstrates that Aronhalt's statements to White were made in good faith; plaintiff did not present evidence to dispute that conclusion. The evidence indicates Aronhalt's statements to White were based on information his subordinates provided to him; Aronhalt relayed them to White, only after plaintiff failed to show up on the shuttle run for two days after he allegedly expressed thoughts of quitting. Further, plaintiff did not present evidence disputing defendants' evidence that Aronhalt's statements to White were made in a reasonable manner, to a proper person, for the legitimate business purpose of ensuring the continued smooth operation of the shuttle run, which Aronhalt, on behalf of Kellogg's, had a right to do. Hahn, at 249. Thus, even if we accept plaintiff's contention that the subject statements by Aronhalt to White were false and defamatory, the statements were qualifiedly privileged based on a common business interest between defendants Schugel/White and Kellogg's/Aronhalt.
{¶ 44} Plaintiff cannot overcome the privilege that protects Aronhalt's statements, because he failed to present evidence showing that Aronhalt's statements to White were made with actual malice, that is, with knowledge that the statements were false or that he acted with reckless disregard as to their truth or falsity. Hahn, at paragraph two of the syllabus; Jacobs, at 116. It is not sufficient for a plaintiff "to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity.'" Jacobs, at 119, quoting Dupler v. Mansfield Journal (1980),
{¶ 45} Based on the foregoing, we conclude the trial court did not err in granting summary judgment on plaintiff's defamation claim, and plaintiff's second assignment of error is overruled.
{¶ 46} Having overruled plaintiff's two assignments of error, we affirm the judgment of the trial court dismissing plaintiff's claims against defendants.
Judgment affirmed.
Brown and Sadler, JJ., concur.
