Kovac v. Superior Dairy, Inc.

998 F.Supp.2d 609

Terry KOVAC, Plaintiff,

v.SUPERIOR DAIRY, INC., Defendant.

Case No. 5:12–CV–1467.

United States District Court,

N.D. Ohio,

Eastern Division.

Feb. 12, 2014.

Amanda M. Paar, David L. Dingwell, Elizabeth A. Raies, Tzangas, Plakas & Mannos, Canton, OH, for Plaintiff.

Keith L. Pryatel, Jaime U. Kolligian, Kastner, Westman & Wilkins, Akron, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

This matter is before the Court on defendant's motion for summary judgment. (Doc. No. 27.) Plaintiff has filed a response (Doc. No. 39), and defendant has filed a reply (Doc. No. 40). The summary judgment motion is fully briefed and is ripe for adjudication.

I. FACTUAL BACKGROUND

“[I]t is about the only thing you can do to not go out of your mind.... [Y]ou stand there and watch bottles come down at you.... [I]f you got tired of standing, you sit. When you got tired of sitting, you stood.” (Beamer Dep., Doc. No. 33 at 1410–12.) For the employees of defendant Superior Dairy, Inc. (“Superior Dairy”), working leak check numbed the senses. When plaintiff Terry Kovac (“Kovac”) refused to perform this apparently unenviable task, plaintiff was summarily terminated. The law lacks a remedy for refusing a tedious task. Defendant does not violate the Americans with Disabilities Act Amendments Act of 2008 (“ADA”) by terminating an employee who refuses to surrender to tedium.

Over twenty years ago, a drunk driver struck plaintiff's motorcycle and severed plaintiff's right leg. (Kovac Dep., Doc. No. 28 at 841.) Though his leg was reattached, plaintiff has undergone over thirty operations on his leg, resulting in chronic foot drop, leg length discrepancy, a change in gait, and severe pain. (Doc. No. 39 at 1736.) At the time of the incident giving rise to this lawsuit, plaintiff's most recent surgery occurred in 2007. (Kovac Dep. at 846.)

Barbara Green, Superior Dairy's director of human resources, hired Kovac in 2006 as a dock worker, in which capacity he continued to work until December 14, 2010, the date of his termination. (Green Dep., Doc. No. 29 at 1128.) Superior Dairy processes, pasteurizes, bottles, and distributes milk, cheese, and ice cream products. The company employs “about 210” workers in its Canton, Ohio manufacturingplant, most of whom are unionized workers governed by a collective bargaining agreement. (Green Dep. at 1091–92.) The employees work in one of four plant departments: (1) laboratory, (2) distribution, (3) ice cream, or (4) milk. ( Id. at 1093.) Each department contains a variety of jobs, allocated to employees through a bidding system based on seniority within the department. Plaintiff joined the milk department in the job known as “dock worker.” ( Id. at 1128.) Dock workers are assigned to various tasks, depending on the plant's needs and the shift in which the employees work. Tasks include “load[ing] and unload[ing] trucks, pull[ing] things off the line, stag[ing] them for loading ... [,] a leak check job, ... [and] mov[ing] the trailers back and forth in and out of the docks.” (Shaffer Dep., Doc. No. 30 at 1231–32.) Management posted tasks for each employee in the dock worker job a week in advance. Two important dock worker tasks, for purposes of this motion, are yard dog and leak check.

Yard dog ¹ principally involves driving semi-trailers stocked with Superior Dairy's products from the plant situated on one side of Navarre Road to the “staging area” on the other side of the road, where employees in the distribution department picked up the trailers for delivery to Superior Dairy customers. Both the dock area and the staging area are outdoors, and dock workers therefore perform the yard dog task in inclement weather. While standing on an elevated grate attached to the frame of the yard dog, the dock worker attaches and detaches air brakes and lighting hoses from the yard dog to the trailer. (Undercoffer Dep., Doc. No. 31 at 1326.) The dock worker must alight from the vehicle from time to time to open and close the trailer doors. ( Id. at 1327.) When the dock worker reaches the staging area, he detaches the air brake and lighting hose, and uses a hand crank to lower the trailer's legs. (Kovac Dep., Doc. No. 28 at 884.) Additionally, a dock worker performing yard dog must document information about the trailer in a log and check temperatures in the plant and in the trailer. ( Id. at 884–85.) All dock workers performing yard dog must possess a Commercial Driver's License (CDL). Kovac performed this task without complications.

When performing the leak check task, a dock worker stands next to a conveyor belt that moves up to two lines of milk containers past the dock worker. The dock worker inspects the containers for leaks. The dock worker removes the leaking containers from the conveyor belt and places them on a pallet located several steps behind the dock worker. The number of leakers removed by dock workers in an eight-hour shift varies, with reports ranging from “a few dozen” containers (Undercoffer Dep. at 1310), to “100 leakers” (Beamer Dep. at 1413), to “one to two pallets” consisting of 224 containers each. (Smith Dep., Doc. No. 32 at 1374.) Each container weighs around eight pounds. (Undercoffer Dep. at 1308.) The dock worker does not and cannot control the conveyor belt. (Green Dep. at 1156.) Occasionally, the pal letizer that stacks the containers breaks down. Because the dock worker does not control the conveyor belt, the belt continues to move and the dock worker, assisted by whomever is nearby, stacks the gallons on pallets by hand. The conveyor belt moves eighty containers every minute. (Kovac Dep. at 926.)

Plaintiff performed the leak check task for one half hour before the day he was terminated. On this occasion, plaintiff performed leak check as described above for buttermilk, which moved down the conveyor belt at a slower pace than the milk. (Kovac Dep. at 919–20.) Plaintiff did not use a stool during the half hour and felt that the pace was too strenuous on his leg. ( Id. at 921.) Additionally, plaintiff, along with other dock workers, assisted on the leak check task when the machine malfunctioned. Plaintiff was unable to perform the leak check task for an entire shift because Superior Dairy did not allow dock workers to use stools when performing leak check, and plaintiff could not stand for an entire eight-hour shift without a break. (Green Dep. at 1141.) The dock workers' close proximity to hundreds of leaking milk containers exposed stools to bacteria, which could accumulate in the stool over time. ( Id.) This safety directive notwithstanding, several Superior Dairy dock workers performed the leak check task using chairs (Undercoffer Dep. at 1307) and/or “three milk crates turned upside down with a foam pad ... taped to the top” (Smith Dep. at 1370; see also Beamer Dep. at 1410.) When performing leak check from a seated position, dock workers watch and wait for a leaking container, stand up or lean over the conveyor belt to grab the leaker, and stand up to walk two or three steps to the pallet to place the leaker on the pallet. (Beamer Dep. at 1411–12.)

As stated above, plaintiff underwent surgery on his right leg in summer 2007. A July 13, 2007 letter from plaintiff's treating physician, Dr. Curtis R. Noel, summarized plaintiff's work restrictions following this surgery. Plaintiff could “[l]ift 100 pounds occasionally, 50 pounds frequently[,]” “walk 4 out of 8 hours[,]” “sit 6 out of 8 hours[,]” and “[o]ccasionally climb, bend, and squat,” though only “infrequently[.]” (Doc. No. 27–4 at 399.) Dr. Noel also gave the following permanent work restrictions: “[n]o climbing ladders [,]” “[n]o push or pull more than 50 pounds[,]” and “1 hour or less” of “continuous work on feet[.]” ( Id.) In response to Superior Dairy's requests for clarification of the above restrictions, Dr. Noel stated that Kovac could be on his feet for four hours, but would need a break before being on his feet for another four hours. ( Id. at 400.) Though Kovac could climb in and out of a semi-truck, Dr. Noel specified that Kovac could not climb ladders and could not tolerate more than three to four steps at a time. ( Id. at 400, 403.) Given these restrictions, Dr. Noel “believe[d] [Kovac] can do the dock worker job. If it doesn't require frequent bending/kneeling and if he doesn't have to push/pull > 50 lbs frequently.” ( Id. at 401.)

Superior Dairy gave plaintiff reduced hours on his return from the 2007 surgery, and plaintiff worked his way back to full-time hours as a dock worker. (Kovac Dep. at 848–49.) Superior Dairy reviewed the work restrictions with Kovac and determined which tasks in the dock worker position plaintiff could perform. (Green Dep. at 1131–32.) Given his work restrictions, plaintiff felt he could perform all dock worker tasks except line operator, in which the dock worker takes milk off the line. (Kovac Dep. at 919.) The leak check task did not exist in the plant until 2009. (Green Dep. at 1134.) Later, Superior Dairy accommodated an additional restriction, scheduling plaintiff for two days off after five continuous days of work. (Doc. No. 27–8 at 558.) At some point after the 2007 surgery, plaintiff's supervisor assigned plaintiff the line operator task, and plaintiff performed the task for three days before plaintiff asked to be taken off that task. (Kovac Dep. at 923–34.) Superior Dairy accommodated this request. (Green Dep. at 1137.)

In 2008 and 2009, plaintiff's family physician, Dr. Dennis C. McCluskey, prescribedplaintiff the narcotics oxycodone and OxyContin for plaintiff's leg pain.² (McCluskey Dep., Doc. No. 35 at 1583–84.) At the end of 2009, Superior Dairy ordered Dr. Richard Reichert to examine plaintiff, wanting another opinion on plaintiff's restrictions and concerned that plaintiff “would act like he wasn't really totally aware of his surroundings[.]” (Green Dep. at 1164.) Plaintiff tested positive for narcotics, and Superior...