Swint v. E.I. DuPont de Nemours & Co.

Lawrence Swint, Plaintiff, v. E.I. DuPont de Nemours and Co., Defendant.

Case No. 3:17-cv-631

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

March 31, 2020

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Lawrence Swint alleges Defendant E.I. DuPont de Nemours and Company discriminated against him on the basis of a disability — his addiction to drugs and alcohol. DuPont denies its actions were motivated by a discriminatory animus and seeks summary judgment on Swint's claim. (Doc. No. 30). Swint filed a brief in opposition, (Doc. No. 38), and DuPont filed a brief in reply. (Doc. No. 42). For the reasons stated below, I grant DuPont's motion.

II. BACKGROUND

Swint began working at DuPont's Toledo, Ohio facility in 1979, as a summer employee. He became a full-time employee at the Toledo facility, which was a satellite facility to another DuPont plant in Mount Clemens, Michigan, in 1983. He worked a variety of jobs, including as a resin operator. Resin is a hazardous and flammable liquid chemical used as an ingredient in automotive paint.

Around the same time as he began working for DuPont, Swint also became addicted to drugs and alcohol. Over the next 30 years, Swint periodically utilized DuPont's Employee Assistance Program ("EAP") to obtain counseling and treatment for his addiction. Swint entered his first treatment program in January 1986. Swint's supervisor at that time was Scott Landis, who subsequently transferred to the Mount Clemens facility. Landis informed Swint that one of the conditions of Swint's employment would be that Swint must submit to drug tests if DuPont had reason to believe Swint was under the influence of drugs or alcohol while at work.

Swint entered another substance abuse treatment program in June 1996, and again in November 1998. These efforts were unsuccessful, however, and Swint continued using drugs and alcohol.

In August 2003, Swint accidentally spilled solvent at work. While he avoided serious physical injuries, he began to suffer from anxiety as a result of the incident and again sought treatment through DuPont's EAP. Swint was on leave from work between January to May 2004 while seeking treatment.

In August 2005, Swint again sought treatment through the EAP. He returned to work but continued to struggle with his addiction and anxiety until March 2006, when another employee told Steve Black, Swint's supervisor at the time, that Swint had commented that he wished he was dead. Black required Swint to take a drug test, which was positive for THC. Swint then was given the option of choosing between participating in an inpatient treatment program or facing disciplinary consequences, up to and including termination. (Doc. No. 34 at 21).

Swint again chose treatment but this time was successful. He was released from the treatment program on April 11, 2006, to return to work and has maintained his sobriety since then. (Id. at 23). Swint was placed on probation for having illicit drugs in his system while at work, an act of serious misconduct under DuPont's employee Code of Conduct. (Doc. No. 31-3 at 16). Swint also signed a return-to-work agreement imposing certain requirements on his continued rehabilitation efforts. (Id. at 17).

On October 13, 2010, Swint received a written reprimand from Landis, who had returned to the Toledo facility as the plant manager, after Swint had failed to close a solvent overhead chain valve. (Doc. No. 35-10). The reprimand indicates proper opening and closing of process valves is a fundamental part of maintaining safe working conditions and notified Swint "that continued unsatisfactory performance [would] result in further corrective action being taken[,] up to and including termination." (Id.).

In January 2012, Ed Courtemanche, a registered nurse employed by DuPont, was notified that Swint had completed an assessment with an EAP counselor, who recommended Swint follow up with his primary care physician for "medication management" and attend three to four additional EAP sessions. (Doc. No. 31-3 at 18). On April 9, 2012, Courtemanche was notified Swint had successfully completed these recommendations. (Id. at 20).

On May 10, 2012, a tank wagon carrying resin from the Toledo facility arrived at the Mount Clemens facility. Upon its arrival, employees at the Mount Clemens facility noticed resin had leaked from one of the tank's manhole covers into the spill box around the cover and onto the ground. (Doc. No. 39-11 at 2). The cover was missing a rubber gasket, (Doc. No. 39-14 at 1), which typically is provided by the third-party company which owns the tank wagon. (Doc. No. 34 at 28). Swint had filled that tank wagon prior to its departure and acknowledged checking a box on a tank wagon inspection sheet indicating the gasket was in place. (Id. at 26-28).

Swint stated he often completed the inspection sheets prior to conducting the actual inspection because he knew the steps to be conducted. (Doc. No. 34 at 28). While he noticed the third-party company had failed to provide a gasket for the cover, he thought he could prevent any leaks by further tightening the lid. (Id.).

Landis met with Swint on the morning of May 11 to discuss Swint's inspection of the tank wagon. Landis informed Swint his job was in jeopardy as a result of noting on the inspection sheet that the gasket was ok but releasing the tank wagon for transit while knowing there was not actually a gasket in place. (Doc. No. 36-4 at 1). Swint was placed on paid leave following his meeting with Landis. (Doc. No. 31-1 at 23-24).

Later on May 11, after Swint met with Landis, Courtemanche sent Landis an email with the subject line "*Confidential: Info on Larry," containing a scanned attachment. (Doc. No. 31-3 at 21). Though the body of the email does not describe the contents of the attachment, Swint surmises Courtemanche forwarded Landis the April 9 letter summarizing Swint's completion of the EAP recommendations because the Bates numbers of the April 9 letter follow the Bates numbers of Courtemanche's email.¹ (See Doc. No. 31-3 at 19-21).

Landis provided the information and notes he had compiled following his meeting with Swint to management at the Mount Clemens facility. (Doc. No. 39-15). This information also was provided to DuPont's Global Ethics Committee, which concluded Swint had violated DuPont's Code of Conduct by misstating an official company record. (Doc. No. 39-17 at 2). Landis recalls that David Mosley, DuPont's human resources manager, and Joseph Campbell, the plant manager of the Mount Clemens facility and Landis' boss, instructed him to inform Swint his employment was being terminated. (Doc. No. 31-1 at 22).

Courtemanche was sent to Toledo on May 22 to participate in Swint's "exit interview from a medical support position." (Doc. No. 39-19 at 1). During the meeting with Landis and Courtemanche, Swint elected to resign in lieu of termination. (Doc. No. 41 at 31). The Global Ethics Committee concurred in the decision to provide Swint with the option to resign in lieu of termination. (Doc. No. 39-18 at 3).

III. STANDARD

Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the nonmovant's favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if its resolution might affect the outcome of the case under the governing substantive law. Rogers v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).

IV. ANALYSIS

Swint claims DuPont discriminated against him on the basis of his addiction to drugs and alcohol, in violation of Ohio Revised Code § 4112.02. That statute prohibits an employer from terminating or otherwise discriminating against any person on any matter directly or indirectly related to the person's employment "because of" the person's disability. Ohio Rev. Code § 4112.02(A).

Swint may establish a prima facie case of discrimination by showing (1) he is disabled, (2) he was discharged at least in part because of his disability, and (3) he could "safely and substantially perform the essential functions of [his] job" even though he has a disability. Markham v. Earle M. Jorgensen Co., 741 N.E.2d 618, 627 (Ohio Ct. App. 2000) (citing Hazlett v. Martin Chevrolet, Inc., 496 N.E.2d 478 (1986)). An employer acts "because of" an employee's disability when that disability was the reason the employer decided to take the challenged action. Lewis v. Humboldt, 681 F.3d 312, 318 (6th Cir. 2012) (citing Gross v. FBL Fin. Servs., 557 U.S.167, 174-75 (2009)).²

If the plaintiff establishes a prima facie case, the defendant must offer a legitimate, nondiscriminatory reason for terminating the plaintiff's employment. Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1183 (6th Cir. 1997). The plaintiff then must demonstrate the defendant's justification was pretextual. Blazek v. City of Lakewood, Ohio, 576 F. App'x 512, 516 (6th Cir. 2014). The plaintiff may establish pretext by showing the defendant's proffered reason (1) had no basis in fact, (2) did not actually motivate the defendant's action, or (3) was insufficient to motivate the defendant's action. Id. (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F3d 876, 883 (6th Cir. 1996)).

A. SWINT'S PRIMA FACIE CASE

Swint successfully establishes the first prong of his prima facie case. See, e.g., Hood v. Diamond Prods., Inc., 658 N.E.2d 738, 742 (Ohio 1996) (citing Hazlett, 496 N.E.2d at 479, for the conclusion that addictions to drugs and alcohol are disabilities under Ohio law)....