Rivenbark v. Mart

112 N.E.3d 947

2018 Ohio 4072

Cliff RIVENBARK, Appellant

v.DISCOUNT DRUG MART, Appellee

No. 17CA0089-M

Court of Appeals of Ohio, Ninth District, Medina County.

Dated: October 9, 2018

CLIFF RIVENBARK, pro se, Appellant.

MICHAEL C. COHAN, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

CARR, Judge.

{¶ 1} Plaintiff-Appellant Clifford Rivenbark appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.

I.

{¶ 2} Mr. Rivenbark began working for Defendant-Appellee Discount Drug Mart ("Drug Mart") in 1999 in Drug Mart's manager training program. In 2002, Mr. Rivenbark sought treatment for worsening depression and was ultimately diagnosed with bipolar disorder. During this time period Mr. Rivenbark also began experiencing difficulties in his position and ultimately chose to be transferred to the Drug Mart warehouse in 2004 and began working as a stocker.

{¶ 3} In September 2007, Mr. Rivenbark went to Cleveland to pick up some Cavs tickets and, while he was in a crosswalk, he was struck by a car. Mr. Rivenbark sustained serious injuries, including fractures to his left tibia and fibula. Those leg injuries required surgical repair which included stabilization with screws and plates. Mr. Rivenbark utilized leave under the Family Medical Leave Act ("FMLA") and returned to work in early January 2008 without any restrictions.

{¶ 4} However, shortly after he returned to work, Mr. Rivenbark found it difficult to work an entire 40-hour work week as the work that he was doing was causing strain to his legs. Mr. Rivenbark also began to feel that he was being harassed and forced to do work that other employees in his position were not required to do. In December 2008, following a meeting with Mr. Rivenbark, the then director of human resources wrote Mr. Rivenbark a letter. In that letter, the director noted Mr. Rivenbark's concerns with respect to the duties of his job and their effects on his legs, and raised the issue of whether Mr. Rivenbark's injuries might affect his ability to perform the job or cause him to pose a threat to himself or a co-worker. The letter further informed Mr. Rivenbark that he would be placed on light duty until Drug Mart received a letter from his physician stating that he did not pose a direct threat to himself or others. Mr. Rivenbark's physician responded to the request and indicated that, with reasonable accommodation, Mr. Rivenbark could perform the job and not pose a direct threat to the safety of himself or others.

{¶ 5} Due to swelling in his legs, Mr. Rivenbark began using his break time to go to his car to elevate his leg. Because of that, Mr. Rivenbark was often a few minutes late back to work and would accumulate attendance points on his record. In order to address the issue, Mr. Rivenbark went to his doctor and got a handicap parking sticker to park closer and began using an unoccupied room to elevate his leg. In April 2009, Mr. Rivenbark's doctor submitted a note requesting that Mr. Rivenbark be given a few extra minutes to warm-up following a period of inactivity. Bob Waugh, the director of distribution at Drug Mart, who managed the warehouse, responded to Mr. Rivenbark's request for additional time to warm-up and stated that he would be granted an extra fifteen minutes of unpaid time at each lunch period that he may or may not need to use. That additional time was to be "applied toward [his] allotted FMLA time."

{¶ 6} In 2010, a position opened up for an order selector at the Drug Mart warehouse and Mr. Rivenbark applied for it. He knew that he had worked well with that supervisor in the past and was hoping to get away from some of the harassment he believed he was experiencing in the stocker position. As an order selector, Mr. Rivenbark was responsible for pulling the orders for a store and placing them into totes. Representatives from Drug Mart maintained that order selectors were to pull items for one store at a time; however, Mr. Rivenbark maintained there was no one way order selectors performed the job. In order to walk as little as possible given his injuries, from June 2010 to October 2010, Mr. Rivenbark pulled items for more than one store at a time.

{¶ 7} In the fall of 2010, Drug Mart management became aware that Mr. Rivenbark was pulling items for four stores at a time. When this was initially discovered, Mr. Rivenbark was instructed to only pull one store at a time. However, the management at Drug Mart reported the issue to human resources and discussions were had and it was agreed that Mr. Rivenbark could be allowed to pull two stores at a time. In addition, there were times when employees were sent to help Mr. Rivenbark, as was done with all employees. Mr. Waugh indicated that Mr. Rivenbark sometimes turned the help away, stating that he did not wish to have it.

{¶ 8} Mr. Rivenbark disputed that Drug Mart returned to allowing him to pull two stores at a time and maintained that that accommodation was removed in December 2010. Drug Mart representatives maintained that after the accommodation was reinstated, it was not taken away again.

{¶ 9} Irrespective, Drug Mart did request that Mr. Rivenbark provide documentation from his physician about his limitations and described the accommodation of pulling two stores as temporary. In December 2010, Mr. Rivenbark's physician sent a letter to Drug Mart human resources indicating that, under Mr. Rivenbark's "current work conditions he [could] get through the entire work day without much difficulty (very little pain and swelling). If there were to be a change in his work routine then this could cause increased pain and swelling. A change could also cause a decrease in his level of functioning. His accommodation should be continued[.]" The director of human resources responded to Mr. Rivenbark's physician in writing. The letter expressed that, based upon the doctor's reply, Drug Mart was uncertain what Mr. Rivenbark's physical limitations were. The letter mentioned that Mr. Rivenbark had relayed a concern about how much he could walk and requested that the physician indicate a percentage of time that Mr. Rivenbark could stand or walk in an eight hour day. In March 2011, Mr. Rivenbark's physician responded with a letter stating that it was his understanding that Mr. Rivenbark was walking frequently at work and that by the end of the week he was experiencing increased pain and swelling. The doctor expressed that it would be in Mr. Rivenbark's best interests to accomplish his work with the least amount of walking. Representatives of Drug Mart maintained that the doctor's responses were insufficient to document Mr. Rivenbark's limitations and restrictions.

{¶ 10} In May 2011, Mr. Rivenbark took his concerns to the president of the retail division of Drug Mart and had a meeting with him and the vice president of loss prevention and business development. Mr. Rivenbark asserted that he again requested that he be allowed to pull two stores at a time and informed them that he would be taking his concerns outside the company. According to Mr. Rivenbark, the vice president told Mr. Rivenbark that "[w]e're going to turn it around on you 180 degrees."

{¶ 11} In 2012, Mr. Rivenbark took several weeks of FMLA leave and also had multiple other absences. After Mr. Rivenbark was absent for a couple days near the end of July 2012, when he returned, he discovered that he was transferred to working in staging in the warehouse. Mr. Rivenbark's hours and pay were not decreased, but Mr. Rivenbark nonetheless viewed the transfer as a demotion and was not happy about it. Representatives of Drug Mart maintained that the transfer was necessary in light of the nature of the order selector job and Mr. Rivenbark's absences which negatively impacted the order selection process. In addition, the staging position involved less walking which Drug Mart believed was more in line with Mr. Rivenbark's limitations. However, Mr. Rivenbark found the position more physically challenging as it involved more lifting.

{¶ 12} Over the next few weeks, Mr. Rivenbark had multiple meetings with Drug Mart management and human resources employees where he expressed his displeasure with the transfer and the difficulties he was having in the new position, including a workplace injury. The human resources manager, Leigh Ring, met with Mr. Rivenbark on multiple occasions after his transfer to staging. According to Ms. Ring, Mr. Rivenbark was more angry, irrational, and unreasonable by the end of July 2012.

{¶ 13} On August 9, 2012, Mr. Rivenbark met with Ms. Ring again. During the encounter, Ms. Ring became frightened of Mr. Rivenbark and when he went to pull something out of his pocket, which turned out to be a letter, she became concerned it might be a gun. Ms. Ring described Mr. Rivenbark as becoming increasingly angry, accusatory, and animated. She indicated that Mr. Rivenbark flexed his muscles and also was tearing paper into tiny pieces and dropping the pieces on the desk. She indicated that his hands were trembling when he talked. At one point, Ms. Ring told Mr. Rivenbark that he was intimidating her but Mr. Rivenbark did not respond to the statement. Mr. Rivenbark's letter, which he prepared and read to Ms. Ring, detailed his frustration with Drug Mart's failure to grant his accommodation requests and expressed concern over possible future retaliation. Mr. Rivenbark indicated that he wanted a response within 10 days from Drug Mart so that he could pursue other action as necessary. Mr. Rivenbark did not yell at Ms. Ring or threaten her. Nonetheless, Ms. Ring felt afraid and reported the interaction to Mr. Waugh. Ultimately, Drug Mart terminated Mr. Rivenbark. Drug Mart maintained it did so based upon Mr. Rivenbark's intimidation of Ms. Ring on August 9, 2012. Mr. Rivenbark believed that Drug Mart terminated him for requesting accommodations. Mr. Rivenbark was also notified that he was no longer permitted on Drug Mart property.

{¶ 14} In 2013, Mr. Rivenbark...