Fisher v. Airgas USA, LLC

659 F.Supp.3d 828

Murray FISHER, Plaintiff, v. AIRGAS USA, LLC, et al., Defendants.

CASE NO. 1:21-cv-829

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

Signed March 2, 2023

Michael T. Conway, Brunswick, OH, for Plaintiff.

Alyson A. Terrell, Ulmer & Berne, Columbus, OH, Gregory C. Djordjevic, Michael N. Ungar, Ulmer & Berne, Cleveland, OH, Trevor J. Hardy, Littler Mendelson, Cleveland, OH, Katherine Tyler Pearlstone, Husch Blackwell, Kansas City, MO, Sonia N. Anderson, Husch Blackwell, Denver, CO, Sonni F. Nolan, Husch Blackwell, St. Louis, MO, for Defendants Airgas USA, LLC, Airgas, Inc.

MEMORANDUM OPINION AND ORDER

BRIDGET MEEHAN BRENNAN, UNITED STATES DISTRICT JUDGE

Before the Court is a motion for summary judgment filed by Defendants Airgas USA, LLC and Airgas, Inc. (collectively "Airgas"). (Doc. No. 46.) Plaintiff Murray Fisher opposed this motion (Doc. No. 49), and Airgas filed a reply brief in support (Doc. No. 53). Also before the Court are Airgas' partial motion to dismiss (Doc. No. 37) and Plaintiff's motion to strike (Doc. No. 48).

For the reasons that follow, the motion for summary judgment (Doc. No. 46) is GRANTED, Airgas' partial motion to dismiss (Doc. No. 37) is DENIED as moot, and Plaintiff's motion to strike (Doc. No. 48) is DENIED.

I. Background

A. Undisputed Facts

Plaintiff is a resident of Ohio, and Airgas is headquartered in Pennsylvania. (Doc. No. 29-1 at PageID 155.)

1. Plaintiff's Employment at Airgas

Airgas hired Plaintiff as a Technician in October 2019. (Plaintiff's Dep., Doc. No. 46-2 at PageID 310.) Plaintiff's direct supervisor at Airgas was Kristopher Majors, who held the title of Operations Manager. (Id. at PageID 311; see also Technician Job Description, Doc. No. 46-3 at PageID 342.) Plaintiff's duties included interacting with combustible gasses and operating power tools and machinery, including saws and drills. (Doc. No. 46-2 at PageID 316, 337-38.) Airgas also required Plaintiff to operate motor vehicles during working hours. (Id. at PageID 338.)

Airgas employees were subject to a drug testing program. (Employee Handbook, Doc. No. 46-5 at PageID 367-68.) This program required potential employees to undergo a preliminary drug test. (Doc. No. 46-2 at PageID 314-15.) Employees were then selected for random drug tests. (Doc. No. 46-5 at PageID 367.) Airgas contracted with HireRight - an independent third-party vendor - to implement its drug testing program. (Lowery Aff., Doc. No. 46-1 at PageID 306.) In doing so, HireRight randomly selected employees for drug testing, administered the drug test, and then sent the results back to Airgas. (Id.; see also Doc. No. 46-2 at PageID 315, 320-21.) The Airgas employee handbook informed employees that violating the company's drug policies "may result in immediate termination." (Doc. No. 46-5 at PageID 374.) In practice, when an employee tested positive for a prohibited substance, Airgas would agree to retest the employee's specimen once. (Lowery Dep., Doc. No. 49-2 at PageID 542-43.) If the retest also came back positive, Airgas would terminate the employee. (Id.) The employee handbook explicitly stated that marijuana was a prohibited substance at Airgas. (Doc. No. 46-5 at PageID 368.)

As an Airgas employee, Plaintiff was subject to the drug testing program and was aware that use of a prohibited substance may result in immediate termination. (Plaintiff's Affirmation of Airgas Policies, Doc. No. 46-4 at PageID 345.) Before he attended orientation, Airgas required Plaintiff to take a drug test. (Doc. No. 46-2 at PageID 314.) The results of this test indicated that Plaintiff had not taken a substance prohibited by Airgas. (See id.)

2. Plaintiff's Cancer Diagnosis and Medical Leave

In November 2019, Plaintiff was diagnosed with liver cancer. (Id. at PageID 319.) Plaintiff informed his supervisor, Mr. Majors, of this diagnosis. (Id.) In August 2020, Plaintiff requested two disability accommodations: medical leave and time off to attend doctors' appointments. (Id. at PageID 333, 336.) Airgas granted these requests. (Id.) Plaintiff underwent surgery on August 12, 2020, and Airgas granted Plaintiff leave until October 7, 2020, to recover. (ADA Accommodation Letter, Doc. No. 46-6 at PageID 416; Doc. No. 46-2 at PageID 333.)

Plaintiff returned to work on October 15, 2020. (Doc. No. 46-2 at PageID 334.) He was tasked with the same duties he performed prior to his leave. (Id.)

On October 24, 2020, Plaintiff began to use a legal hemp product called Free Hemp. (Id. at PageID 322-23.) Plaintiff decided to take Free Hemp after receiving recommendations from peers and researching the product's potential benefits. (Id. at PageID 324-25, 327-28.) Based on these representations, he determined that the product would alleviate cancer-related pain. (Id. at PageID 327.) To accomplish this, he ingested more than half a teaspoon of Free Hemp daily. (Id. at PageID 326.) Hemp was not illegal, nor did Airgas prohibit its use. (See Doc. No. 46-5 at PageID 367-68.) See 7 U.S.C. § 1639o; 21 U.S.C. § 802; Ohio Rev. Code § 928.01.

3. Plaintiff's Termination

In November 2020, Mr. Majors was notified that Plaintiff was randomly selected for a drug test. (Notice of Drug Test Email, Doc. No. 46-7 at PageID 420.) Plaintiff took the drug test, and the results represented that his specimen was positive for marijuana. (Doc. No. 46-2 at PageID 330-31; Doc. No. 49-2 at PageID 514.) Soon after being notified of the results, Plaintiff communicated to William Lowery, a Human Resources Director at Airgas, and George Zoret, HireRight's Medical Review Officer, that he was using a legal hemp product, which caused him to test positive for marijuana. (Plaintiff's Emails to Lowery, Doc. No. 49-5 at PageID 691; Plaintiff's Emails to Zoret, Doc. No. 49-5 at PageID 684-85.) Plaintiff did not inform Airgas of his use of Free Hemp prior to being selected for the November 2020 drug test. (Doc. No. 46-2 at PageID 323.)

Plaintiff requested that his specimen be retested, which Airgas granted. (Doc. No. 46-2 at PageID 331; Doc. No. 46-5 at PageID 690.) Airgas also agreed to delay Plaintiff's termination until the retest was complete. (Doc. No. 46-2 at PageID 331; Doc. No. 49-5 at PageID 691-92.) The second test represented that Plaintiff had used marijuana. (Doc. No. 46-2 at PageID 331.)

Airgas formally terminated Plaintiff on December 9, 2020.¹ (Doc. No. 29-1 at PageID 158.) Airgas informed Plaintiff that the reason for his termination was his positive drug test. (Id.) On December 15, 2020, Plaintiff emailed Mr. Lowery a request for reinstatement. (Plaintiff Reinstatement Email, Doc. No. 46-9 at PageID 428.) Plaintiff reiterated that he only used legal hemp products - never marijuana - which did not violate Airgas' drug policies. (Id. at PageID 427-28; see also Plaintiff Aff., Doc. No. 49-1 at PageID 479.) HireRight's Chief Medical Officer and Managing Director of Transportation - Dr. Todd Simo - reviewed Plaintiff's drug test results and stated that the positive marijuana result could not be explained by Plaintiff's use of a legal hemp product. (Dr. Simo Aff., Doc. No. 46-10 at PageID 431.) Sherrie Shiflett - the Vice President of Human Resources at Airgas - responded to Plaintiff's reinstatement email by stating that Airgas had consulted with Dr. Simo who confirmed that the drug test was not caused by legal hemp.² (Doc. No. 46-9 at PageID 426-27.) Ms. Shiflett reiterated Airgas' decision to terminate Plaintiff via email on December 21, 2020. (Id. at PageID 427.)

Prior to his termination, Plaintiff aptly performed his job duties at Airgas. (Majors Dep., Doc. No. 49-6 at PageID 703-04.) Mr. Majors recommended that Plaintiff not be terminated. (Id. at PageID 705.)

B. Procedural Background

On March 18, 2021, Plaintiff initiated this action against Airgas and Mr. Majors in the Cuyahoga County, Ohio Court of Common Pleas. (Doc. No. 1-1.) On April 20, 2021, Defendants removed the case to this Court because complete diversity existed between the parties, and the amount in controversy exceeded $75,000.00. (Doc. No. 1.) On June 9, 2021, the Court dismissed all claims against Mr. Majors without prejudice. (Doc. No. 10.) On May 2, 2022, the Court granted Plaintiff's motion for leave to file first amended complaint. (Doc. No. 35.) The amended complaint contains four counts: failure-to-accommodate, disability discrimination, wrongful termination in violation of Ohio public policy, and Ohio law "duty to warn." (Doc. No. 29-1.) On May 16, 2022, Airgas filed a motion to dismiss the duty to warn claim in Plaintiff's amended complaint (Doc. No. 37), which Plaintiff opposed on June 16, 2022 (Doc. No. 40). On July 18, 2022, Airgas moved for summary judgment on all four claims in Plaintiff's amended complaint. (Doc. No. 49.)

II. Discussion

A. Standard of Review

A motion for summary judgment must be granted "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The ultimate question is whether the evidence presents a sufficient factual disagreement to require submission of the case to a jury, or whether the...