Musil v. Gerken Materials, Inc.Musil v. Gerken Materials, Inc.
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Matthew B. Bryant and Daniel I. Bryant, for appellant.
Roy A. Hulme and Brittany H. Asmus, for appellees.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Lawrence J. Musil, Jr., appeals the judgment of the Lucas County Court of Common Pleas, granting summary judgment to appellee, Gerken Materials (“Gerken”), on appellant’s claims of disability discrimination and retaliation and denying his motion for leave to amend his complaint. For the reasons that follow, we affirm.
{¶ 2} Appellant had been employed by Gerken since 2008 as a laborer, primarily responsible for keeping the plant clean and operational. On Friday, October 13, 2017, while at work, appellant was punched in the face by a co-worker, Richard McCance (“McCance”). Appellant left work and sought medical treatment for his injuries, which included a headache, sore neck, and bruising. On October 18, 2017, appellant returned to work, but ceased working at the instruction of his family physician, Dr. Salem, on November 10, 2017, after being diagnosed with Post Traumatic Stress Disorder (“PTSD”) from the altercation.
{¶ 3} From November 10, 2017, until January 10, 2018, appellant was granted a medical leave under the Family Medical Leave Act (“FMLA”), which allowed for 12 weeks of job-protected leave for eligible employees which Gerken’s leave policy mirrored. Appellant requested and was granted an extension of his medical leave until January 26, 2018. However, on January 25, 2018, appellant sent a note to Gerken from his physician, stating that he was unable to return to work until March 7, 2018. Later, appellant stated that he still was not able to return back to work even as of the time of his deposition on October 22, 2018.
{¶ 4} On February 2, 2018, Gerken sent appellant a termination letter due to his inability to return to work, stating that if he was released from his restrictions and recovered sufficiently to return to work, he would be considered for available positions.
{¶ 6} On July 31, 2019, the trial court entered its judgment denying appellant’s motion for leave to amend, and granting Gerken’s motion for summary judgment. In denying the motion for leave to amend, the trial court found that the motion raised “a spectre of prejudice” since it was filed after Gerken moved for summary judgment. In addition, the court found that Gerken would be prejudiced by the possible need for additional discovery, new motions for summary judgment, and rescheduling of the trial date. Further, the court found that the motion for leave to amend was untimely, noting that it was filed more than a year after the original Complaint was filed, more than eight months after discovery was substantially completed, more than a month after the motion for summary judgment deadline, almost seven
{¶ 7} Turning to the motion for summary judgment, the trial court found that appellant lacked evidence to show disability discrimination, specifically in relation to the third element, which requires a showing that appellant could safely and substantially perform the essential functions of the job with or without an accommodation. See Matasy v. Youngstown Ohio Hosp. Co., LLC, 2017-Ohio-7159, 95 N.E.3d 744 (7th Dist.); Betosky v. Abbott Laboratories, 10th Dist. Franklin No. 96APE03-373, 1996 WL 531934 (Sept. 19, 1996); Kocijan v. S & N, Inc., 8th Dist. Cuyahoga No. 80414, 2002-Ohio-3775. Regarding the retaliation claim, the trial court found that appellant failed to establish a prima facie case of retaliation because appellant’s request for continued medical leave does not constitute a protected activity under
II. Assignments of Error
{¶ 8} Appellant has timely appealed the trial court’s July 31, 2019 judgment, and now asserts three assignments of error for our review:
The Lucas County Court of Common Pleas erred when it determined that Plaintiff was not qualified for his position, as Appellant could perform his work with a reasonable accommodation, despite Defendant’s inflexible disability policy, when granting Appellee Gerken Materials, Inc.’s Motion for Summary Judgment as to Plaintiff’s claim of disability discrimination under Ohio Law. - The Lucas County Court of Common Pleas erred when it concluded that requesting an accommodation for medical leave is not protected activity in granting appellee Gerken Materials, Inc.’s Motion for Summary Judgment as to Plaintiff’s retaliation claim under Ohio law.
- The Lucas Country Court of Common Pleas erred when it concluded that Plaintiff could not amend his complaint under Ohio Civil Rule 15 even though it gave the option to oppose the Motion for Summary Judgment or seek leave to file an amended complaint, given there was ample time to complete discovery before the deadline, in support of additional claims only revealed during discovery.
III. Analysis
{¶ 9} We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). A de novo review requires an independent
A. Disability Discrimination
{¶ 10} In appellant’s first assignment of error, he argues that the trial court erroneously determined that Gerken was entitled to summary judgment on the disability discrimination claim. Specifically, appellant argues that he was qualified for the position and could have performed his work with a reasonable accommodation.
{¶ 11} Pursuant to
{¶ 12} If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the employer satisfies this burden, the burden shifts back to the plaintiff to show “that the proffered reason was not the true reason for the employment decision.” Id., quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
{¶ 13} The third element is the focus of this appeal. As to the third element, an employee may satisfy it by showing that he could have performed the essential functions of the job with a reasonable accommodation if necessary, but the employee has the burden of requesting that accommodation. Bowers v. Swagelok Co., 8th Dist. Cuyahoga No. 87192, 2006-Ohio-3605, ¶ 46; Crosier v. Quikey Mfg. Co., Inc., 9th Dist. Summit No. 19863, 2001 WL 196511, *6 (Feb. 28, 2001).
{¶ 14} Appellant argues that, in determining he failed to establish the third element of his disability discrimination claim, the trial court relied too heavily on Matasy, 2017-Ohio-7159, 95 N.E.3d 744, which appellant claims is distinguishable from the present matter because there the plaintiff violated the collective bargaining agreement by turning in the medical certification agreement late and sought unreasonable medical
{¶ 15} In addition, appellant presents several other arguments as to why the record demonstrates that he could safely and substantially perform the essential functions of the job with an accommodation. First, appellant argues that Gerken’s medical leave policy is discriminatory because it requires employees to be 100 percent healthy in order to return back to work. See Henderson v. Ardco, Inc., 247 F.3d 645, 653-54 (6th Cir.2001); accord Wysong v. Dow Chemical Co., 503 F.3d 441, 453 (6th Cir.2007); Watts v. United Parcel Service, 378 Fed.Appx. 520, 530 (6th Cir.2010). Second, appellant reasons that the determination of whether an individual was “qualified” is determined at the time the decision to terminate is made, and that Gerken prematurely terminated appellant in violation of the ADA and Ohio law by not engaging in an interactive process or providing a reasonable accommodation. Third, he argues that the individual who made the decision to terminate his employment did not even know appellant’s job description. Finally, he argues that there was no showing that his continued leave would have been a hardship for appellee.
{¶ 16} We find appellant’s arguments unconvincing and unrelated to the issue. Here, appellant failed to establish the third element of a disability discrimination claim because he provided no evidence that he can safely and substantially perform the essential functions of the job in question. Assuming for purposes of our analysis that a four-week extension of his medical leave is a reasonable accommodation, appellant has
{¶ 17} Accordingly, appellant’s first assignment of error is not well-taken.
B. Retaliation
{¶ 18} In appellant’s second assignment of error, he argues that the trial court erroneously granted summary judgment in favor of Gerken on his retaliation claim. Specifically, appellant argues that the trial court erred in determining that a request for a
{¶ 19} It is an unlawful discriminatory practice “[f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.”
{¶ 20} Appellant claims that requesting a reasonable accommodation in the form of a medical leave is a protected activity under
{¶ 22} Accordingly, appellant’s second assignment of error is not well-taken.
C. Motion for Leave to Amend the Complaint
{¶ 23} Finally, in appellant’s third assignment of error, he argues that the trial court erred in denying him leave to amend his complaint. A trial court’s denial of a motion for leave to amend a pleading will not be reversed absent an abuse of discretion. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996). An abuse of discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 24} Pursuant to
{¶ 25} Motions to amend should be refused if there is a showing of bad faith, undue delay, or undue prejudice to the opposing party. Leo v. Burge Wrecking, LLC, 2017-Ohio-2690, 89 N.E.3d 1268, ¶ 10 (6th Dist.). “Factors for the trial court to consider include whether the movant makes a prima facie showing of support for the new matters
{¶ 26} “[W]here a motion for leave to file an amended complaint is not timely tendered and there is no apparent reason to justify the delay, a trial court does not abuse its discretion in denying the amendment.” Leo at ¶ 10, quoting Vitek v. Wilcox, 6th Dist. Williams No. WM89 000004, 1990 WL 174163, *6 (Nov. 9, 1990). In considering the timeliness of a motion, the trial court should look at the prejudice of delay on the non-moving party. Id. Filing a motion to amend a complaint in response to a summary judgment motion has been found to “raise the spectre of prejudice * * * a plaintiff should not be allowed to sit by and then bolster up their pleadings in answer to a motion for summary judgment.” Frankel at ¶ 18, quoting Pintagro v. Sagamore Hills Twp., 9th Dist. Summit No. 25697, 2012-Ohio-2284, ¶ 22.
{¶ 27} In this case, the trial court not only found that appellant’s motion for leave to amend raised the “spectre of prejudice” because it was filed in response to Gerken’s
{¶ 28} In conjunction with its finding of prejudice, the trial court additionally found that appellant’s motion was untimely. Specifically, the trial court noted that the motion was filed more than a year after the original Complaint was filed, more than eight months after discovery was substantially completed, more than a month after the motion for summary judgment deadline, almost seven weeks after Gerken filed its Motion for Summary Judgment, and just two months before the trial date. The court also noted that appellant did not offer any reason for his delay.
{¶ 29} Upon this record, we cannot say that the trial court acted arbitrarily, unreasonably, or unconscionably when it denied appellant’s motion for leave to amend. In arguing against this result, appellant asserts that Gerken would not be prejudiced by the trial court’s granting of his motion for leave to amend because the deadline for discovery had not yet passed, and little, if any, additional discovery was required. However, despite the fact that the discovery period remained open, substantially all of the discovery had been completed by the end of October 2018. Thus, appellant knew of the facts giving rise to his amended complaint for more than eight months before filing his motion, and appellant has not offered any explanation for his delay. Moreover, we agree
{¶ 30} Accordingly, appellant’s third assignment of error is not well-taken.
IV. Conclusion
{¶ 31} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.