Wright v. Stagnaro Distrib.

OPINION & ORDER

Michael R. Barrett, United States District Court Judge

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Docs. 27, 31, 32) and Defendant's Motion for Summary Judgment (Docs. 28, 30, 33). For the reasons that follow, Plaintiff's Motion for Partial Summary Judgment will be DENIED and Defendant's Motion for Summary Judgment will be GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiff Johnie Wright, Jr. was first employed by Defendant Stagnaro Distributing, LLC^[1] as a delivery “route driver” in late 2014. (Wright Dep., Doc. 26 PAGEID 847-49 (12:1-14:3), PAGEID 878 (43:2-5)). He worked Monday through Friday. (Id. PAGEID 877-78 (42:7-43:15)). Wright was terminated for excessive absenteeism approximately two years later in 2016. (Id. PAGEID 865-66 (30:23-31:5), PAGEID 879 (44:7-17)).^[2] He

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was re-hired to the same position, however, but a different route, in March 2017. (Id. PAGEID 877-78 (42:22-43:1), PAGEID 879-80 (44:18-45:1), PAGEID 880 (45:7-12), PAGEID 881 (46:19-23), PAGEID 882 (47:13-15)). Upon re-hire, Wright worked Tuesday through Friday, with Monday off. (Id. PAGEID 877 (42:9-19), PAGEID 878 (43:16-22), PAGEID 880 (45:7-12)).

Chris Berkley and Tony Gladen^[3] supervise Stagnaro's drivers, dividing them between east and west routes. They oversee product leaving the warehouse, so they make sure that all drivers are on their trucks and driver helpers^[4] are assigned as needed. (Berkley Dep., Doc. 22 PAGEID 131-32 (7:12-8:25); see Lammers Dep., Doc. 24 PAGEID 466-67 (10:1-11:11)). Based on the location of his route, Wright was supposed to report to Gladen, but he sometimes would report to Berkley. According to Berkley, “me and Tony work hand-in-hand on setting trucks on a daily basis.” (Doc. 22 PAGEID 134 (10:9-23); see Doc. 26 PAGEID 876-77 (41:16-42:6)).

Berkley and Gladen report to John Lammers, Vice President of Operations - Ohio. (Doc. 22 PAGEID 133 (9:7-10); see Doc. 24 PAGEID 464-65 (8:13-9:10)). Lammers, who assumed that role in 2017, reports directly to General Manager Don Jakubowski. (Doc. 24 PAGEID 473-74 (17:4-18:2); Jakubowski Dep., Doc. 23 PAGEID 234 (8:1318)).

Ryan McDaniel is Stagnaro's HR and Safety Manager. (McDaniel Dep., Doc. 25 PAGEID 597 (8:2-9)).^[5] He replaced Andy Wimberg. (Doc. 23 PAGEID 235 (9:17-21);

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Doc. 24 PAGEID 479 (23:18-19)). Like Lammers, McDaniel also reports directly to Jakubowski. (Doc. 25 PAGEID 597 (8:14-16); Doc. 23 PAGEID 234 (8:13-20)).

Stagnaro's written policies on accident and injury reporting. Stagnaro's

Employee Handbook provides in pertinent part:

HEALTH AND SAFETY

EMPLOYEE SAFETY

Each employee is expected to obey safety rules and to exercise caution in all work activities. Employees must immediately report any unsafe condition to the appropriate supervisor. Employees, who violate safety standards, who cause hazardous or dangerous situations, or who fail to report, or where appropriate, remedy such situations may be subject to disciplinary action, up to and including termination of employment.

In the case of accidents that result in injury regardless of how insignificant the injury may appear employees should immediately notify the appropriate supervisor. Such reports are necessary to comply with laws and initiate insurance and worker's compensation benefit procedures. A safe work environment requires the cooperation of all employees

WORKERS' COMPENSATION POLICY ....

Every employee, part-time or full-time, is entitled to file a Workers' Compensation claim. If an employee is hurt on the job, the employee must first notify the employee's supervisor the same day. Ensuing injuries may not be certified if this is not done. A first report of injury will be filed with the Workers' Compensation insurance by the employee's supervisor. It is the responsibility of the employee to report any workplace injuries to his/her immediate supervisor. Failing to report can affect whether any benefits are paid.

(Doc. 26-1 PAGEID 1094, 1095 (emphases added)). Wright received a copy of the

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Employee Handbook when he was hired in 2014 and re-hired in 2017. (Doc. 26 PAGEID 851-52 (16:11-17:9), PAGEID 853-54 (18:7-19:11); Doc. 26-1 PAGEID 1108, 1109).

Stagnaro also has an Employee Safety Manual. As to reporting injuries, it states:

All work-related injuries must be reported to your supervisor or the Human Resources manager immediately. Failure to immediately report injuries can result in loss of Workers' Compensation benefits. After each medical appointment resulting from a work-related injury, you must contact your supervisor to discuss your progress. You must also give your supervisor any paperwork that you received at that appointment.^[6]....

Any work-related injury must be reported immediately to your supervisor and to Human Resources. A first report of injury form must be completed. Failure to promptly report an injury may result in disciplinary action.^[7]....

It is our goal to prevent work-related injuries from happening. We are always concerned when one of our employees is injured or ill due to a work-related condition. We believe that such absences cost both Stagnaro Distributing and its employees. We want our injured employees to get the best possible medical treatment immediately to assure the earliest possible recovery and return to work.... All work- related injuries should always be reported immediately to your supervisor no later than the end of the shift on which the injury occurs.^[8]....

You are encouraged to report any unsafe work practices or safety hazards encountered on the job. All accidents/incidents (no matter how slight) are to be immediately reported to the supervisor on duty.

A key factor in implementing this policy will be the strict compliance

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to all applicable federal, state, local, and Stagnaro Distributing policies and procedures. Failure to comply with these policies may result in disciplinary actions.^[9]

Wright received a copy of the Employee Safety Manual when he was hired in 2014 and acknowledged that the policies therein were still in effect at the time of his termination. (Se e Doc. 26 PAGEID 873 (38:3-20), PAGEID 876 (41:13-15); Doc. 26-1 PAGEID 1135).

Plaintiff's (2018) knee injury. In January 2018, “on a Friday maybe or Thursday, ” Wright twisted his knee during a delivery while maneuvering a keg of beer down some wooden steps. (Doc. 26 PAGEID 863 (28:21-22), PAGEID 865 (30:4-6), PAGEID 89596 (60:15-61:6)). Then-HR Manager Andy Wimberg noticed Wright limping when he returned to the warehouse. (Id. PAGEID 896 (61:2-16); see id. PAGEID 864-65 (29:2130:3), PAGEID 1015 (180:9-18)). Wright went to the doctor the following Monday and eventually was diagnosed with a torn right meniscus. (Id. PAGEID 896 (61:9-16), PAGEID 899-900 (64:17-65:1), PAGEID 900 (65:6-10)). He filed a workers' compensation claim as to this injury, which Stagnaro certified-that is, did not contest. (See id. PAGEID 896-97 (61:17-62:4); Doc. 26-1 PAGEID 1147).

A month or two after his knee injury, Wright requested intermittent leave under Stagnaro's policy in effect under the federal Family and Medical Leave Act (FMLA). (Doc. 26 PAGEID 902-03 (67:1-68:3); see id. PAGEID 864-65 (29:8-30:15)). His doctor recommended one-to-two days per month to address pain and swelling when Wright “overdid” it. (Id. PAGEID 903-04 (68:16-69:19);^[10] Doc. 26-1 PAGEID 1148-51). Wright

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described his requests for leave as “random.” (Doc. 26 PAGEID 904-05 (69:20-70:15) (“It would - most of the time if I had a bad knee, I would call at the proper time; call, hey, my knee is bothering me, I'm not going to make it in today. Or text. Or I would text my supervisor.”)). Wright could not recall whether he took the full amount of FMLA leave recommended in 2018. (Id. PAGEID 910-11 (75:23-76:20)). The year following, 2019, Wright's doctor again recommended one-to-two days of leave per month to address “flare ups.” (Id. PAGEID 914-16 (79:2-81:2); Doc. 26-1 PAGEID 1152-55). Wright recalled taking one-to-two days off each month in 2019. (Doc. 26 PAGEID 917 (82:4-23)). In 2020, Wright's doctor increased his recommendation from two days per month to (as many as) four days per month because it was “a better option, so to speak, than to be relying on the cortisone shot.” (Id. PAGEID 925-27 (90:15-92:2)^[11]; Doc. 26-1 PAGEID 1157-60).

Plaintiff's (2019) finger injury. Wright smashed his left middle finger “picking” a beer order on May 14, 2019. (Doc. 26 PAGEID 919-20 (84:10-85:23)).^[12] He did not “ask for workman's comp., ” but was nonetheless given a claim form to complete. (Id. PAGEID 920-24 (85:24-86:5); Doc. 26-1 PAGEID 1156). No claim was filed, though. (Doc. 26 PAGEID 922-23 (87:12-88:3)).

Plaintiff's (2020) foot injury. At the end of his shift on Thursday, March 12, 2020, Wright pulled a skid-that is, a hard plastic pallet-off his truck and a corner of it landed on top of his foot. (Id. PAGEID 963-64 (128:19-129:4), PAGEID 964 (129:13-18),

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PAGEID 965-67 (130:18-132:5)). The skid hit his big toe on his right foot. (Id. PAGEID 967 (132:13-21)). At the time he “[d]idn't think nothing of it” because it was “hurt kind of like stubbing your toe against the, you know, table or something.” (Id. PAGEID 964 (129:2-4)).^[13] Wright did not immediately report the injury. (Id. PAGEID 969 (134:1321)). But because he knew the next day, Friday, was going to be “a real busy day” on his route-including, apparently, delivering to the bar where he hurt his knee in 2018-Wright decided to take an FMLA day. (Id. PAGEID 964 (129:5-10) (“That Friday I took off for my knee because that was the...