Harrigan v. Dana Corp., Case No. 3:07 CV 3769.

612 F.Supp.2d 929

Christopher HARRIGAN, Plaintiff, v. DANA CORPORATION, Defendant.

Case No. 3:07 CV 3769.

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

March 31, 2009.

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Erik G. Chappell, Lyden, Liebenthal & Chappell, Sylvania, OH, for Plaintiff.

Margaret J. Lockhart, Meghan A. Anderson, Cooper & Walinski, Toledo, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

INTRODUCTION

This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. No. 20), Plaintiff's Opposition (Doc. No. 23), and Defendant's Reply (Doc. No. 29).¹ This case involves alleged violations of the Family Medical Leave Act ("FMLA"), Americans with Disabilities Act ("ADA"), Age Discrimination in Employment Act ("ADEA"), and Employee Retirement Income Security Act ("ERISA").

Prior to deciding Defendant's Motion for Summary Judgment, the Court must address two preliminary matters. Pending are Plaintiff's Motion to Strike portions of Amber Brandeberry's ("Brandeberry") affidavit (Doc. No. 22), Defendant's Opposition (Doc. No. 27), and Plaintiff's Reply (Doc. No. 30), as well as Defendant's Motion to Strike portions of Plaintiff's affidavit (Doc. No. 28), Plaintiff's Opposition (Doc. No. 31), and Defendant's Reply (Doc. No. 32).

For the reasons below, Defendant's Motion for Summary Judgment is granted in part and denied in part, Plaintiff's Motion to Strike is denied, and Defendant's Motion to Strike is granted in part and denied in part.

BACKGROUND

After employing Plaintiff for a year as a temporary worker, Defendant hired Plaintiff as a full-time balancer in 1998. At that time, Plaintiff became a member of the United Auto Workers' Union ("UAW" or "Union"), subject to the Collective Bargaining Agreement ("CBA").

The CBA entitles an employee with seniority who is unable to work due to injury or illness to sick leave not to exceed six months without renewal. The CBA requires the employee to substantiate his leave by providing "satisfactory evidence of [his] condition" within seven days of his absence² (Doc. No. 20., Ex. 1). If an employee "fails to procure an approved leave" within seven days, the CBA presumes that he "voluntarily quit" unless the employer finds the delay to be for "good and sufficient reasons"³ (id.).

The CBA also addresses Defendant's FMLA policy⁴ which does not modify the notice requirements for employees seeking medical leave.

For an employee to take leave under Defendant's Short Term Disability ("STD") plan, the employee's physician must complete an STD form. Employees procure this form by downloading it from the Internet or contacting the Dana Employee Service Center ("DESC"), which then faxes the form to the employee's physician. Although Defendant's local Human Resources ("HR") Department previously faxed forms directly to an employee's physician, it no longer does so and instead relies on the DESC.

Plaintiff has a degenerative hereditary condition called familial spastic paraparesis. Plaintiff has had this condition since birth, but began experiencing symptoms about ten or fifteen years ago. His symptoms include leg shakes, jerks, spasms, cramps, and back pain. Plaintiff has an altered gait, bowed legs, and pigeon toes. He cannot walk quickly or for long distances without difficulty. Although Plaintiff initially controlled his symptoms with muscle relaxers, he stopped using them due to their unpleasant side effects and now only uses Advil to treat the condition.

Plaintiff's condition has not restricted his ability to work as a balancer, except by requiring him to take short-term medical leave when his symptoms worsened.

On April 27-28, 2006, Plaintiff failed to report to work. On May 2, 2006, he contacted Defendant's HR Department and requested that it fax STD forms to his physician, Dr. Rao. (At that time, Defendant's HR Department faxed STD forms directly to an employee's physician.) On May 13, 2006, Dr. Rao submitted Plaintiff's STD forms noting that Plaintiff was unable to work from April 26, 2006 to May 8, 2006.⁵

Despite Plaintiff's failure to provide medical certification within seven days, Defendant approved his leave. According to Defendant, it did so because Plaintiff had advised Defendant's HR Department that he was seeking short-term leave within seven days of his absence and explained the reason for providing his forms in an untimely manner.

Plaintiff applied for another leave from June 27, 2006 through July 24, 2006. After he notified Defendant's HR Department that he was seeking leave and obtained the necessary STD forms from DESC, Defendant approved his leave.

The events underlying this lawsuit began on September 6, 2006, when Plaintiff's symptoms worsened once again. According to Plaintiff's affidavit: "I called the employee call in line at Dana and left a message identifying myself and stating that I would need short term medical leave because I was unable to come to work" (Harrigan Aff. ¶ 10). On September 11, 2006 and September 12, 2006, Plaintiff contacted DESC to request STD forms but could not get through due to DESC's technical difficulties.

On September 13, 2006, Plaintiff reached a DESC representative and asked that STD forms be faxed to his physician, Dr. Sanders. The STD forms never arrived, so on September 15, 2006, Plaintiff contacted DESC again and repeated his request. On September 20, 2006, Plaintiff faxed his completed medical certification to Defendant. During Plaintiff's absence, Defendant never contacted him to inquire about the status of his absence from work.

Meanwhile, by September 18, 2006, twelve days after Plaintiff's initial telephone message, Defendant had not received Plaintiff's medical documentation or any other notification as to his whereabouts.⁶ Consequently, HR Manager Brandeberry followed CBA directives, found that Plaintiff voluntarily quit, and provided UAW with twenty-four hours written notice that Defendant intended to terminate Plaintiff's employment for failing to timely procure approved leave. Upon receiving Brandeberry's notice, UAW's steward told Brandeberry that he thought Plaintiff had quit.

On September 19, 2006, Brandeberry sent Plaintiff a letter advising him his employment was terminated. However, Brandeberry sent this letter to the wrong address, so Plaintiff only learned of his termination when he tried to return to work on September 25.

At the time of his termination, Plaintiff was forty-two years old.

The Union filed a grievance complaining of Plaintiff's termination, but Defendant denied the grievance due to Plaintiff's failure to follow up his first telephone message with an explanation for his absence. The Union declined to pursue Plaintiff's grievance to arbitration, and Plaintiff next filed charges of discrimination based on age and disability with the Equal Employment Opportunity Commission ("EEOC") against Defendant and the UAW. The EEOC dismissed both charges. This lawsuit followed.

PRELIMINARY MATTERS

Plaintiff's Motion to Strike Based on Hearsay

The Court may consider an affidavit on a motion for summary judgment if, among other requirements, it "set[s] forth such facts as would be admissible in evidence" at the time of trial. FED. R. CIV. P. 56(e). The Court cannot consider statements in an affidavit if they are inadmissible hearsay. North Am. Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1283 (6th Cir. 1997).

Plaintiff contends that two statements in Brandeberry's affidavit constitute inadmissible hearsay which the Court must strike. See Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F.Supp.2d 948, 954 (S.D.Ohio 2000).

First, Plaintiff moves to strike Brandeberry's statement: "The Union Steward told me he thought Mr. Harrigan had quit. The Union Steward told me that they tried to call Harrigan about the notice but could not reach him" (Brandeberry Aff. ¶ 10).

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FED.R.EVID. 801(c). Here, Defendant does not offer the union steward's statement to prove the truth of the matter asserted; namely, that Plaintiff quit or the UAW could not reach him. Instead, it offers his statement to prove Brandeberry's motive and state of mind: specifically, that Brandeberry did not know that Plaintiff was seeking STD leave. Regardless of its truth, the statement supports Defendant's claim that Brandeberry did not know the reason for Plaintiff's absence. Therefore, the statement is admissible.

Plaintiff also seeks to exclude Brandeberry's statement: "I did not hear from Mr. Harrigan in response to the notice" (Brandeberry Aff. ¶ 10). This statement is not hearsay, but rather an admissible firsthand statement.

Therefore, the Court denies Plaintiff's Motion, as neither challenged statement constitutes inadmissible hearsay.

Defendant's Motion to Strike Based on Conflicting Testimony

A post-deposition affidavit is inadmissible if it directly contradicts the non-moving party's prior sworn testimony. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908-09 (6th Cir.2006). However, when an attorney has "not directly questioned" the deponent about an issue, the party should not be prevented from "fill[ing in] a gap left open by the moving party." Id. at 907.

Defendant asks the Court to strike Paragraphs 4, 10, and 23 of Plaintiff's affidavit, claiming that these statements contradict Plaintiff's previous sworn deposition testimony. Because Paragraphs 4 and 10 of Plaintiff's affidavit do not directly contradict his deposition, the Court denies Defendant's Motion as to these statements. However, Defendant's Motion is granted as to Paragraph 23.

Defendant seeks to strike Paragraph 4 of Plaintiff's affidavit, where he states: "[D]ue to the hard concrete floors at Dana, I requested a...