Lead Opinion
OPINION
Waste Management of Ohio, Inc. asks its employees to follow a simple policy: if there is an incident on the job, report it immediately by obtaining and completing a single-page form describing the details. If an employee ignores this policy, Waste Management warns that it can terminate him. William Sharp says that he suffered a back injury while working on his trash-collection route for Waste Management. Rather than report the alleged injury in accordance with company policy, he filed nothing with Waste Management. When Waste Management heard about Sharp’s related workers’ compensation claim six months later, it asked him to fill out the required one-page report. But he refused—twice.
Waste Management terminated Sharp. He then sued Waste Management and two of its managers, James Profitt and Barry Saunders. He claims, in part, that his termination was retaliation for exercising his workplace rights under state and federal law, including the Americans with Disabilities Act and the Family and Medical Leave Act. The district court granted summary judgment for Waste Managеment. We AFFIRM.
I
William Sharp worked at Waste Management, a waste removal services company in Montgomery County, Ohio, from 2007 to 2012 as a residential-route truck driver. Drivers like Sharp follow a daily route to pick up curbside residential trash. The position is physically demanding and dangerous. Drivers operate a 40-ton truck and haul heavy loads off the curb. Due to the risks presented both to employees and the public, Waste Management publishes safety rules in its Employee Handbook and holds regular training sessions to discuss safety problems as they arise.
One safety rule in the Handbook requires employees “to report all work-related injuries, accidents, near misses, and any health or safety hazards ... immediately to [their] supervisor.” R. 42-1, Handbook, Page 120. To comply with the rule, employees must obtain and complete an incident report form. The report itself is a one-page document. Besides asking for the date, time and location of the incident, the report also asks the employee to describe whatever problem he encountered. This information allows Waste Management to investigate incidents to determine how they might be avoided in the future and how the company should respond to any possible workers’ compensation claims.
If an employee does not report an injury, the Handbook provides consequences: the “[fjailure to [report] will result in corrective action up to and including termination.” Id. The Handbook also lists the “progressive corrective action steps” that management will generally take when workers violate safety rules. Id. at 121. According to Profitt, a Waste Management manager, an injury that would serve as the predicate for a workers’ compensation claim is the kind “that should be reported.” R. 33, Profitt Dep., PID 406.
In January 2012, Sharp again suffered a work-related injury. This time, he says that his “raincoat got caught on the joy stick,” and he fell from his truck and twisted his leg. Id. at 99. Once more, he completed an incident form as required by the policy, and he gave it to his new manager, Barry Saunders. He says that his earlier conversation with Krieger, however, still deterred him from filing for workers’ compensation. Krieger no longer worked for Waste Management at this point—it fired him for failing to report a subordinate’s workplace injury. Saunders, it turns out, had informed management that Krieger shirked his reporting duty.
The incident at issue in this case allegedly happened on March 27, 2012. On that day, Saunders was out of the office, leaving Ken Lane as the supervisor in charge. Sharp claims that while, out on his route he encountered two large tree stumps that a customer had left curbside for pick up. He called Lane over the radio to ask what to do, and Lane responded “they ha[ve] to go, nothing is staying behind.” Id. at 108. After lifting the first stump, Sharp says, he felt an “explosion of pain” in his back. Id. at 103. He still lifted the second stump, however, and continued to work for about six hours.
At no point after this alleged injury did Sharp ever file the required incident report.
At this point, Waste Management approved Sharp’s fourth FMLA leave in five-year employment, but it was still unaware that his back problems were supposedly work-related. Sharp had surgery in May 2012, but he states that he remained unsure what to dо about workers’ compensation. His wife claims to have tried calling Saunders and other high-level employees at Waste Management several times from April through July to discuss the matter.
Sharp returned to work on August 6, 2012, with restrictions from his doctor. No one made negative comments to him about his leave and Waste Management accommodated his return. Sharp followed a “work hardening program” under which he was given time to gradually return to his normal responsibilities. Waste Management honored his restrictions, and Sharp returned to driving his route while another employee loaded the waste.
On the morning of October 23, Saunders ■met with Sharp in his office. Sharp says he acknowledged having filed for the workers’ compensation and stated that although his March injury was work-related, he had been afraid to inform Waste Management. Saunders sent Sharp on his route and then spoke to Profitt about how to handle an incident report for something that happened over six months ago. Later that day, Sharp spoke over the radio with Saunders, Profitt, and Busch. During the call, Sharp alleges that Saunders ordered him to pull over because he was “not fit to be behind the wheel of a truck.” Id. at 126. Saunders disputes this allegation saying that Sharp himself actually declared that he was not “fit to be behind the wheelf.]” R. 29, Saunders Dep., PID 210.
When Sharp returned, he met once more with Saunders. Sharp alleges that Saunders was “ranting and raving” about the workers’ compensation claim. During the meeting, Saunders handed Sharp an incident report form and asked him to fill it out. Sharp says that he saw the document but thought it related to his workers’ compensation claim or was a termination notice. Instead of looking at the form, Sharp demanded to take the document home so he could consult with his attorney. When Sharp refused to complete the form, Saunders told him to leave the office and to not report back the next day.
In the meantime, Sharp consulted his attorney, who then drafted a letter to Waste Management' asserting that it had constructively discharged Sharp and that his termination violated his rights under four state and federal laws. On October 26, Sharp delivered the letter to Saunders. At that point, Saunders left his office to get Profitt. When they returned, they asked' Sharp for a second time to complete an injury report. Sharp replied that he would only do so with his attorney present. At that point, Saunders and Profitt told him to leave.
Saunders and Profitt contacted Busch and forwarded her the attorney’s letter. Waste Management officials decided to terminate Sharp on October 29 and notified him on November 2. According to Waste Management, it terminated Sharp for failing to report his wоrk-related injury and for refusing to complete an incident report form.
After his termination, Sharp sued Waste Management, Profitt, and Saunders. The parties filed cross-motions for summary judgment in June 2014. The district court granted Waste Management’s motion and denied Sharp’s in September. This appeal followed.
II
We review a grant of summary judgment de novo. Chen v. Dow Chem. Co.,
Ill
Sharp challenges the district court’s grant of summary judgment on five claims: (1) Ohio Workers’ Compensation Retaliation; (2) Wrongful Discharge in Violation of Public Policy; (3) ADA Disability Discrimination; (4) ADA Retaliation Claims; and (5) FMLA Retaliation. We start with his state law claims then proceed to the federal claims. But both his state and federal retaliation claims share a common flaw: Sharp fails to show that a genuine dispute exists as to whether Waste Management’s reasons for terminating him are pretextual. We discuss the issue in relation to his workers’ compensation claim, but the reasoning applies equally to the federal retaliation claims we discuss later.
A
Sharp claims that Waste Management retaliated against him for filing a workers’ compensation claim. What he ignores in coming to this conclusion, however, is, how he violated—willfully and on multiple occasions—a company policy that contemplates termination as a punishment. Ultimately, this fact proves fatal to showing any genuine dispute on whether the reasons for his firing are pretextual. Whether he makes out even a prima facie case of a retaliatory motive is doubtful. But we need only discuss the issue as background.
1
Ohio courts apply the same McDonnellr-Douglas burden-shifting framework that is used to analyze federal retaliation and discrimination claims. See, e.g., Onderko v. Sierra Lobo, Inc.,
Ohio law prohibits employers from “tak[ing] any punitive action against any employee because the employee filed a claim ... under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of employment with that employer.” Ohio Revised Code § 4123.90. To establish a prima facie retaliation case, Sharp must show three things: (1) that he engaged in protected activity; (2) that Waste Management took an adverse employment action; and (3) that a causal link existed between his protected activity and the adverse employment action taken by Waste Management. See Onderko,
To show prima facie causation, Sharp relies on the timing of his termination, Krieger’s alleged warning about workers’ compensation, and Saunders’s “hostile” reaction to Sharp’s filing. His first point offers little support for causation in this context. As the Ohio Supreme Court has cautioned: “Because a discharge could be for reasons other than those related to workers’ compensation, such as ... a disregard by the employee for the employer’s safety rules, ... no presumption of retaliation arises from the fact that an employee is dischаrged soon after an injury.” Sutton,
His next point might provide some support, but the statements have questionable value. Sharp’s and his wife’s statements that Krieger warned Sharp against filing for workers’ compensation—something Krieger denies—happened over two years before his firing. This is simply too “isolated” in time from the termination decision to merit consideration. See Gerding v. Girl Scouts of Maumee Valley Council, Inc., No. L-07-1234,
This leaves Saunders’s “ranting and raving” and a supposed statement that Sharp “had no right” to file a workers’ compensation claim. Under the causation prong, courts can take into account “a reasonable suspicion that the injury was not job related[.]” Sutton,
2
If the evidence estаblishes a prima facie case, it does so just barely. But a prima facie case does not end our analysis. Waste Management offers two legitimate reasons for Sharp’s termination: breaking safety rules and insubordination. Sharp first failed to report an alleged injury for over six months, then refused to complete an incident report when asked twice by his. managers. Thus, to survive summary judgment, Sharp must show a genuine dispute over pretext. “A plaintiff can show pretext in three interrelated ways.” Chen,
Sharp channels his arguments into these elements so we address them as such. He first claims that Waste Management’s reasons have “no basis in fact.” This requires showing “more than a dispute over the facts upon which his discharge was based” but also that the employer did not “honestly believe” in its proffered reason. Braithwaite v. Timken Co.,
Given that Waste Management’s reasons have a factual basis, Sharp has to try a different tack. So he claims there is a dispute as to whether these reasons really motivated his termination. He argues that he can show this with evidence that Waste Management did not apply its disciplinary policy uniformly. In certain cases, we have found that “[ejvidence that the progressive-discipline policy asserted as a rationale for an employee’s termination was not uniformly applied is evidence of pretext.” Lamer v. Metaldyne Co. LLC, 240 Fed.
Sharp tries to cram his facts into the mold created by Lamar's holding. As an initial matter, however, Waste Management’s Handbook states that “each situation will be evaluated on a case-by-case basis and may result in escalating the progressive corrective action to a higher level, up to and including termination of employment on the first or second offense.” R. 42-1, Handbook, at 36. So unlike Lamar, Sharp cannot point to any guaranteed response to his multiple overt acts of insubordination.
Instead, he collects disparate anecdotes about employees that Waste Management disciplined for inapposite conduct and then proceeds to make unreasonable inferences. He cites the written warnings made out to four employees for violating safety rules and then notes that Waste Management never produced a written incident report from those employees during discovery. As he notes, none were terminated. In presenting this supposed comparator evidence, however, Sharp ignores key differences. In each cited case, Waste Management learned about the incident between three and fourteen days later—not six months later. Further, the four never actually refused a manager’s request to complete an injury report. To infer pretext from these four incidents is not reasonable, and they create no genuine dispute as to whether Waste Management applied its policy to Sharp in a way that shows pretext.
Sharp next says that everyone shirked reporting duties, so a jury could infer that Waste Management lied about its reasons for firing him. We have held that a plaintiff can show pretext if the “conduct for which he was disciplined and eventually terminated was common and accepted рractice before and after his termination.” Hale v. ABF Freight Sys., Inc.,
As additional evidence on this argument, Sharp draws our attention to what he terms “incentives” for underreporting. Managers must hide incidents, Sharp figures, because Waste Management disciplines them when their crew has too many accidents and gives them bonuses when it has fewer accidents. But there is nothing nefarious about Waste Management holding supervisors accountable for their subordinates’ safety records. It creates no inference that managers actually shirk their reporting duties or that it would be tolerated. And Sharp offers only one example which does not particularly help him: Krieger. When Krieger failed to report an injury, Saunders—a fellow manager—informed upper management and completed a written report at management’s request. Waste Management terminated Krieger over the incident. Sharp’s evidence allows no reasonable inference that Waste Management encouraged or permitted non-re
In his final attempt to show pretext, Sharp claims that his conduct was insufficient to warrant termination. When “other employees ... were not fired even though they were engaged in substantially identical conduct to that which the employer contends motivated its discharge,” a jury can infer pretext. Blizzard v. Marion Technical Coll.,
Sharp produces no equivalent situation that allows such an inference on retaliation, He identifies one employee that received a minor reduction from the default discipline policy provided for in the Handbook. In that case, the employee drove well over the speed limit but received only a final written warning instead of a final written warning and a three-day suspension. But insubordination is different in kind from mere negligence. Sharp’s refusal to complete the form when asked to twice by his supervisors is not “identical” or even similar conduct to poor driving. Sharp has not created a genuine dispute as to whether Waste Management’s reasons for firing him were merely a pretext for unlawful termination. Thus, both his workers’ compensation retaliation claim and his federal retaliation claims fail.
B
Sharp next claims the district court erred in granting summary judgment to Waste Management on his Ohio public policy claim. The district court held Sharp could show no dispute over two elements: causation or a lack of an overriding justification for his termination. We agree with this holding because Sharp ultimately relies less on Ohio’s public policy as it stands but rather on its unwarranted extension to his facts.
In order to make out a public-policy tort claim, a plaintiff must show four elements. First, that “a clear public policy exists manifested in a state or federal constitution, in statute or administrative regulation, or in the common law (the clarity element).” Sutton,
The Ohio Supreme Court has recognized “that an employer’s discharge of an employee for consulting a lawyer would violate public policy.” Chapman v. Adia Services., Inc.,
Importantly, however, it is a policy against terminating an employee “solely for consulting an attorney.” Boyd,
To the extent Sharp contends that Waste Management terminated him solely for seeing an attorney, this is simply unsupported by the evidence. The comments Sharp cites on this element—such as Saunders’s statement that “no one” gets a lawyer for workers’ compensation—all came in response to his desire to consult an attorney before filling out an incident report. The comments allow no inference that Waste Management terminated him solely because he consulted an attorney outside the workplace about his possible legal claims.
Further, Sharp gave Wаste Management legitimate reasons to terminate him. His actions—never filing an incident report for six months and then refusing to at all—implicated not only Waste Management’s legitimate interest in maintaining managerial authority but also its more specific interest in ensuring compliance with safety rules. The latter interest is certainly legitimate here considering that Waste Management operates in “an inherently dangerous industry.” Sharp,
To the extent Sharp believes, however, that Ohio public policy actually grants him a right to consult an attorney before completing basic paperwork, this is a remarkable proposition. Unsurprisingly, he can cite no authority for it. Ohio never gave him a right to ask his attorney for help with his one-page incident report.
IV
Sharp’s other retaliation claims and his discrimination claims arise under federal law, specifically the ADA and the FMLA. Like his Ohio retaliatiоn claim, they are subject to the McDonnell-Douglas burden-shifting framework. See Donald v. Sybra, Inc.,
To make out a prima facie case of discrimination under the ADA, an empioyee must be “disabled.” Whitfield v. Tennessee,
Sharp cites a single incident that he claims amounts to ADA discrimination on this theory. On October 23, 2012, just after Sharp met with Saunders about his workers’ compensation claim, Sharp alleges that Saunders told him to pull his truck over because Sharp was “unfit” to be behind the wheel. This statement does not show that Waste Management mistakenly believed that Sharp had a “substantially limiting impairment.” See § 12102(3)(B). Waste Management and Saunders knew about his workers’ compensation claim and his alleged work-related injury when they sent him on his normal route that day. In fact, it knew about his back injury for months and let him drive his routes. These comments create no genuine dispute over whether Waste Management regarded Sharp as “disabled.”.
B
Next, Sharp argues that his termination resulted from the letter he provided to Saunders from his attorney listing his ADA claims. To prove an ADA retaliation claim, a plaintiff must show (1) that he engaged in a protected activity; (2) the employer knew of that activity; (3) the employer took an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. Rorrer v. City of Stow,
To show causation, Sharp relies on his termination’s timing in relation to the letter and agаin on the four employees who supposedly never reported incidents. As stated, timing shows little about causation here. And again, the four employees he cites are inapposite—none actually refused to complete an injury report. Sharp’s evidence creates no genuine issue as to whether Waste Management would have retained him had he not exercised rights under the ADA. In any event, he. still fails to create a genuine dispute over pretext.
C
Finally, Sharp argues that Waste Management violated his rights under the FMLA. The FMLA broadly prohibits employers from interfering with employees’ rights under the statute. Edgar v. JAC Prods., Inc.,
Sharp simply repeats his argument that his attorney’s letter to Waste Management, which referred to the FMLA, “triggered” his termination. To establish a pri-ma facie case of retaliation, a plaintiff must
It is likely that causation in this analysis means actual or “but-for” causation. In University of Texas Southwestern Medical Center v. Nassar, — U.S. —,
On this standard, Sharp has not made out a prima facie case. The letter’s timing does little to create a genuine dispute given the context in which Wastе Management terminated him.
V
Defendants are entitled to summary judgment on each of Sharp’s claims. For the foregoing reasons, we AFFIRM.
Notes
. In fact, Sharp submitted insurance paperwork stating that his injury was not even work-related. Sharp maintains that the injury did happen at work, but all four medical providers he saw agreed to omit that fact because Sharp feared losing his job.
. The parties originally disputed whether an "injury on the job” constituted an element of this claim, and we held this case in abeyance pending the Ohio Supreme Court's ruling in Onderko.
. The dissent says that it is a mischaracterization to call Sharp's actions "refusals.” But he was presented with the form and then said he would not fill it out unless he could take it to an attorney, This may be a conditional refusal, but it is still a refusal. The dissent finds Sharp’s actions reasonable and protected by the law. We read the case law to say otherwise. See part III.B (discussing Sharp’s public policy claim).
. The dissent asserts that Sharp actually reported this incident. As stated before, however, Waste Management required employees to report incidents by obtaining and filing a one-page report. Sharp merely presents testimony that he mentioned his injury to Saunders and Lane and then tried to call various managers. But he knew how he had to report injuries under Waste Management’s policy. And he never had problems doing so in the past. At any rate, Sharp's testimony, even if credited as "reporting” the incident, still shows no dispute as to whether Waste Management honestly believed that he failed to report his incident. See Sharp v. Waste Mgmt., Inc.,
. See Part III.A.2.
. Sharp argued in the district court that Waste Management terminated him due to his potential future FMLA leaves. This is an FMLA entitlement theory of liability. Sharp has not briefed this issue, but it has no merit. Under an FMLA entitlement theory, a plaintiff must establish, among other things, that the employer "denied the employee FMLA benefits to which he or she was entitled.” Edgar v. JAC Products, Inc.,
Dissenting Opinion
Circuit Judge, dissenting.
Because there are genuine disputes of material fact relevant to each of Sharp’s claims, the district court erred by granting defendants’ motion for summary judgment. Affirming the district court, the majority makes a crucial factual mistake in its opening sentence, which leads to several incorrect conclusions. The majority begins by stating that Waste Management imposes “a simple policy: if there is an incident on the job, report it immediately by obtaining and completing a single-page form describing the details.” Maj. Op. at 441. Contrary to this assertion, it is not an undisputed fact that Waste Management requires employees to report injuries by completing
I. BACKGROUND
Plaintiff-Appellant William Sharp alleged that Defendants-Appellees James Profitt, Barry Saunders, and Waste Management of Ohio engaged in workers’ compensation retaliation, Family Medical Leave Act (FMLA) retaliation, Americans with Disabilities Act (ADA) retaliation, and a violation of the Ohio public policy forbidding termination of an employee for consulting a lawyer. Defendants sought summary judgment on all claims. R. 41 (Def.’s Mot. for Summ. J. at 1). Sharp filed a response arguing that there were genuine disputes of material fact and that the case should proceed to trial. R. 49 (Opp. to Def.’s Mot. for Summ. J. at 59-60) (Page ID #1805-06). Sharp also filed a motion for partial summary judgment on the public-policy claim. R. 43 (Pl.’s Mot. for Partial Summ. J. at 34) (Page ID #1457).
The district court’s order and the majority opinion incorrectly apply the summary-judgment standard. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movаnt is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[0]n summary judgment the inferences to be drawn from the underlying facts .., must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
Contrary to these well-established rules, the majority construes the facts in favor of the defendants and against Sharp. Correct application of these rules leads to the conclusion that there are genuine disputes of material fact that a jury should resolve.
II. WORKERS’ COMPENSATION RETALIATION
Sharp alleges that Waste Management fired him in retaliation for filing a workers’ compensation claim, in violation of Ohio Rev. Code § 4123.90. The majority correctly explains that workers’ compensation retaliation claims are governed by the McDonnell-Douglas burden-shifting framework. Glenn v. Hose Master, L.L.C.,
The majority determines that defendants are entitled to summary judgment because Sharp cannot show that there is a genuine dispute over pretext. According to the majority, Waste Management had two legitimate reasons for firing Sharp—his “fail[ure] to report an alleged injury for over six months” and his “refus[al] to complete an incident report when asked twice by his managers”—and Sharp cannot show that these reasons are pretextual. Maj. Op. at 446. Yet Sharp contests both that he failed to report an injury and that he refused to complete an incident report. In determining that Sharp’s testimony does not create a genuine dispute of material fact, the majority at best draws inferences against Sharp and at worst mischaracter-izes his statements.
First, Sharp says that he did report the alleged injury. Sharp attests that he “told Saunders that [he] had injured [his] back lifting tree stumps on [his] route,” but that Saunders responded that Sharp’s injury was out of his hands. Sharp Aff. at ¶ 12. Sharp also attests that, “in addition” to speaking directly with Saunders, Sharp and his wife “made numerous attempts to inform Defendants by telephone” of the injury. Sharp Aff. at ¶¶ 13-14,18.
Discussing Sharp’s testimony, the majority states, “Sharp says that because he attempted to report the incident for three months, Waste Management’s contention that he never reported the incident is simply untrue.” Maj. Op. at 446. This statement does not accurately reflect Shаrp’s testimony. It seems to ignore altogether Sharp’s statement that he told Saunders about the injury. Otherwise, it incorrectly characterizes Sharp’s statement that he told Saunders about the injury but Saunders did not want to hear about it as an attempt to report the injury, rather than an actual report that Saunders disregarded.
The majority defends its conclusion that Sharp never reported the incident, despite telling Saunders about it, by arguing that Sharp was required to report the injury in a specific way—namely, by filling out a written incident report. Maj. Op. at 446 n.4. This argument fails because the record does not indicate that only written incident reports satisfy the reporting requirement. Instead, the record suggests that verbal reports satisfy the reporting requirement.
The Waste Management Employee Handbook addresses safety in two different sections. In the “General Work Rules” section, the handbook says, “Failing to immediately report to the Company any accident involving property damage or injuiy of any kind whether or not the employee is at fault” could result in corrective action, including termination. R. 43-17 (Employee Handbook at 37, 39) (Page ID #1514, 1516). In the “Safety Policy” section, the handbook says, ‘You are instructed to report all work-related injuries, accidents, near misses, and any health or safety hazards, including violations of safety procedures, immediately to your supervisor. Failure to do so will result in corrective action up to and including termination.” Id. at 35 (Page ID #1512). The only specific guidance the .handbook gives employees about how to report injuries is specifying that they must report injuries “to [their] supervisor.” Id. The handbook does not specify any particular method for reporting injuries to supervisors—in particular, it makes no mention of incident reports.
On the other hand, nothing in the record suggests that an employee fails to report an injury unless he submits an incident report. Based on the record before us, one reasonable inference is that submitting an incident report is an additional requirement that employees must complete after reporting injuries. And while the handbook is' explicit that an employee can be terminated for failing to report an injury to a supervisor, it does not even suggest that an employee can be terminated for failing to fill out paperwork about an injury after reporting it.
The testimony of another Waste Management Employee supports this inference. Anthony Bohman discussed an occasion where he hurt his shoulder on the job. He explained that he “talked to James Profitt when we got back to the shop. I told him what happened and I told about my injury.” R. 39 (Bohman Dep. at 25) (Page ID #755). When asked, “Did you ask him for an incident report form?” Boh-man responded, “I was reporting an incident. That’s what would trigger for him to hand out the incident report form.” Id. (emphasis addеd). This testimony suggests that Waste Management employees understood company policy to define “reporting” an injury to mean verbally informing a supervisor of the injury, and regarded filling. out an incident report as a step that occurred after reporting the injury. This understanding makes sense in light of the Employee Handbook’s emphasis on reporting injuries, on the one hand, and the Handbook’s failure to even mention written incident reports, on the other.
Because at this stage we must credit Sharp’s testimony and draw reasonable inferences in his favor, because one reasonable inference (and, frankly, the most reasonable inference) is that verbally reporting an injury to a supervisor constitutes reporting the injury, and because Sharp testified that he verbally reported his injury to his supervisor, the majority errs by determining that Sharp did not report his injury.
The majority’s argument that “Sharp’s testimony, even if credited as ‘reporting’ the incident, still shows no dispute as to whether Waste Management honestly believed that he failed to report his incident,” also fails. Maj. Op. at 446 n.4. It is reasonable to infer that Waste Management managers knew that their policy defined reporting as verbal reporting. It is also reasonable to infer that Saunders knew that Sharp had verbally reported the incident to Saunders. At the summary-judgment stage, we must draw these inferences in favor of Sharp rather than rushing to apply the honest-belief rule.
Second, Sharp says that he did not refuse to complete an incident report. Sharp attests that when Saunders asked him to fill out a document, which he “concluded ... was related to workers comp.,” he “told Saunders that [he] would be glad to fill it out if [he] could take it home and consult with [his] attorney.” Sharp Aff. at ¶¶ 36-37. He attests that after Saunders admonished him for consulting an attorney about workers’ compensation, Saunders told Sharp to leave and not come back to work. Id. at ¶¶ 38-41.
The majority characterizes this exchange as Sharp’s refusal to fill out the
When not mischaracterized or impermis-sibly construed in defendants’ favor, Sharp’s testimony that he told Saunders about his injury and said he would fill out the paperwork after talking with an attorney creates a genuine issue of material fact as to whether defendants had a legitimate reason to fire Sharp. This factual dispute makes summary judgment inappropriate.
There are additional disputes of material fact as to pretext, which also make summary judgment inappropriate. As evidence of pretext, Sharp points to examples of other employеes who failed to report incidents and were not fired. He says these examples provide evidence that Waste Management did not uniformly apply its policy and that his conduct did not warrant termination. The majority correctly acknowledges that the Sixth Circuit has found the non-uniform application of a disciplinary policy to be evidence of pretext. Maj. Op. at 446 (citing Lamer v. Metaldyne Co. LLC,
Similarly, the majority incorrectly concludes that Waste Management’s possible incentive for supervisors to underreport injuries does not create a factual dispute as to pretext. There is no dispute that Waste Management disciplines supervisors when their crews have too many accidents and gives supervisors bonuses when their crews have few accidents. The majority, with no evidentiary support, asserts that this system “creates no inference that managers actually shirk their reporting duties or that it would be tolerated.” Maj. Op. at 447. Whether supervisors underre-port injuries is another question that a jury, not this court, should answer.
Because there are numerous disputes of fact that a jury should resolve, the district court’s grant of summary judgment on the workers’ compensation retaliation claim should be reversed.
III. ADA DISCRIMINATION AND RETALIATION AND FMLA RETALIATION
The majority also asserts that there are no facts alleged that would allow a jury to conclude that defendants violated Sharp’s ADA or FMLA rights. Contrary to this assertion, there are several disputed material facts relevant to these claims. For the
The McDonnell-Douglas burden-shifting framework applies to Sharp’s ADA and FMLA claims. As to the ADA claims, there are disputes of material fact relevant to the first step of the framework, whether Sharp can make out a prima facie case of ADA retaliation or a prima facie case of disability discrimination.
Addressing Sharp’s ADA retaliation claim, the majority again dismisses as “in-apposite” Sharp’s examples of other employees who failed to report incidents in accordance with Waste Management’s policy but were not fired. Maj. Op. at 450. Again, whether or not these examples could convince a jury that defendants treated Sharp differently than other employees should be up to a jury.
The majority also says that the timing of Sharp’s termination—just after Waste Management received a letter from Sharp’s attorney outlining his potential legal claims, including ADA claims—cannot raise an inference that Sharp was fired in retaliation for exercising his ADA rights. Maj. Op. at 450. To support this view, the majority reiterates its view that there is no dispute that Sharp failed to report his injury and refused to fill out workers’ com.pensation- paperwork. It indicates that these facts render the timing irrelevant. Other than again incorrectly asserting that these two facts are not disputed, the majority provides no explanation for why the timing of Sharp’s termination could not support a jury finding of ADA retaliation.
As for the disability-discrimination claim, the majority also asserts that Sharp’s testimony that Saunders said Sharp was not fit to drive does not show that Saunders regarded Sharp as disabled. The majority mentions that Saunders let Sharp drive before telling him he was unfit to drive. From that fact, it concludes that Saunders’s statement could not mean he regarded Sharp as disabled. Maj. Op. at 450. Weighing Saunders’s past acts more heavily than his statement draws an inference in favor of defendants.
Thеre are also disputes of material fact relevant to, whether Sharp can make out a prima facie case for FMLA retaliation. Addressing Sharp’s FMLA retaliation claims, the majority simply reiterates its assertions that the timing of Sharp’s termination is not sufficient evidence of causation and that Sharp cannot show that Waste Management’s reasons for firing him were pretext. Maj. Op. at 451. As discussed above, these assertions either glide over questions that should be answered by a jury or mischaracterize Sharp’s evidence.
Because there are material factual disputes, the district court’s grant of summary judgment on these claims should be reversed.
IV. PUBLIC-POLICY CLAIM
Finally, the majority argues that defendants are entitled to summary judgment on Sharp’s Ohio public-policy claim. Although both parties moved for summary judgment on this claim, there is a genuine dispute of material fact and summary judgment is not appropriate.
Sharp argues that Waste Management fired him for consulting an attorney. It is a violation of Ohio public policy to fire an employee for consulting an attоrney. Chapman v. Adia Servs., Inc.,
The majority asserts that defendants’ comments telling Sharp he cannot consult
The district court’s grant of summary judgment on the public-policy claim should be reversed as neither party is entitled to summary judgment on this claim.