Yarberry v. Gregg Appliances, Inc.

JOHN YARBERRY, Plaintiff, v. GREGG APPLIANCES, INC., Defendant

Case No. 1:12-cv-611-HJW

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

September 16, 2014

ORDER

Pending are the parties' cross-motions for summary judgment (doc. nos. 40, 41). Pursuant to this Court's Order (doc. no. 12), the proponent of each motion has filed proposed findings of fact and conclusions of law, which the opponent has highlighted as true, false, or irrelevant (doc. no. 47 at 19-33, defendant's highlighting; doc. no. 48-1 at 1-13, plaintiff's highlighting). After hearing oral arguments, and after additional "supplemental" briefing, the Magistrate Judge entered a Report and Recommendation ("R&R") on April 8, 2014, recommending that defendant's motion be granted, and that plaintiff's motion be denied (doc. no. 56). Plaintiff sought, and was granted, leave to file "excess pages." Plaintiff then filed objections (doc. no. 61), and defendant responded (doc. no. 62). Having fully considered the record, including the parties' briefs, exhibits, proposed findings, objections, and applicable authority, the Court agrees with the Magistrate Judge's recommendations. The Court will therefore overrule the objections, adopt the R&R, grant the defendant's motion, and deny the plaintiff's motion, for the following reasons:

I. Background

The Magistrate Judge has already recited the facts of this case in considerable detail (doc. no. 56 at 1-7), and those facts are incorporated herein by reference. Notably, the parties do not dispute the relevant facts. Rather, they dispute each other's proposed conclusions of law.

To summarize, plaintiff John Yarberry ("Yarberry") was hired on October 25, 2010, to work for defendant Gregg Appliance, Inc. ("hhgregg") as a sales associate in Cincinnati, Ohio. In February 2011, he entered the company's manager-in-training program. After finishing such training, he became an "Electronic Sales Manager." He subsequently accepted a transfer to the position of Appliance Sales Manager at the store in Cranberry, Pennsylvania. He received hhgregg's Associates Handbook and acknowledged in writing that "I understand that as a term and condition of my employment, I am to comply with and abide by the policies in the handbook" (doc. no. 43-1 at 33).

On August 1, 2011, he worked his first day at the Cranberry store. That evening, at 12:38 a.m. (i.e. early on August 2), Yarberry sent the first of several text messages to Regional Manager Brett Edger. At approximately 2:15 a.m., Yarberry entered the store while it was closed, disarmed the alarm, and locked himself inside. He proceeded to the manager's office, accessed the store safe, roamed around the store, played games or watched videos on store computers for several hours, and attempted to sleep on a Tempur-Pedic display mattress. Yarberry remained inside the store into the early hours of August 2, 2011. He sent additionaltext messages to Mr. Edger at 2:23 a.m., 2:28 a.m., and 3:55 a.m. The gist of these messages is that he was "stressed out" by personal problems (from moving and getting engaged) and was at the store because he couldn't sleep.¹

For example, in his 2:28 email, Yarberry stated "hey man, my fiance is driving me crazy over every little dollar I've spent this week." He complained that he couldn't use the spa at the hotel where he was staying and that he couldn't fall asleep (doc. no. 36-1 at 1). He closed by saying "call me if you need me." In his email at 3:55 a.m., he stated "I'm at the store because I can't sleep" and "I'm gonna leave the store now and I might screw up the alarm" (Id. at 2). He closed his email by saying "call me when you wake up and we'll get coffee."

When Mr. Edger first read Yarberry's messages at 6:00 a.m. that morning, he became concerned and tried to reach Yarberry by telephone. Yarberry responded by text message at 6:14 a.m., asking Edger to call him. At 6:35 a.m., Yarberry tried to leave the store without re-arming the alarm. He sent an email to five employees, indicating that "the alarm is going off because I don't know how to stop it" (doc. no. 36-1 at 3). He panicked and left the store with the alarm sounding. Between 6:38 a.m. and 7:21 a.m., Edger and Yarberry texted back and forth several times. Yarberry indicated he was sleep-deprived, was sick, and was not coming in to work. In response, Edger suggested that Yarberry seek medical attention if he thought he needed it.

Todd Zimmerman, the National Asset Protection Manager for hhgregg, was alerted about Yarberry's behavior. After viewing surveillance video footage of the incident, Zimmerman advised Edger to contact Yarberry about taking a drug screen test. Edger did this, but Yarberry refused (responding "No" by text message). Zimmerman then telephoned Yarberry to speak with him and investigate the situation. According to Zimmerman, Yarberry said that Edger "stressed" him out. Zimmerman indicates that Yarberry refused to stop talking and refused to cooperate with the investigation. Zimmerman, who suspected Yarberry might be intoxicated, suspended Yarberry's employment pending further investigation. He asked HR to arrange a drug screen test. That afternoon at 2:50 p.m., Yarberry took such test, with negative results (doc. no. 36-1 at 9). When Edger tried to contact Yarberry by phone about the test, Yarberry hung up on him (doc. no. 36 at 36).

At 12:22 p.m. on August 3, 2011, Zimmerman sent the report of his investigation to Ms. Cynthia Bush, Associate Relations Manager for hhgregg. His report recommended that Yarberry not have access to any stores because he had not used his access responsibly and had refused to cooperate in the investigation. Ms. Bush reviewed this report, Yarberry's emails and text messages, and his personnel file. She determined that Yarberry should be discharged because his afterhours behavior in the store and failure to cooperate in the investigation demonstrated a lack of professional judgment and violated various company policies. (Bush Dep. at 62 "Q: It was your decision? A: That was my decision.").She did not determine the cause of his conduct. At 1:03 p.m. on August 3, 2011, she sent an email to Edger, advising him that Yarberry should be discharged. She provided the necessary paperwork. Mr. Edger attempted to personally advise Yarberry of his termination but was unable to reach him. He then completed the termination paperwork at 4:52 p.m. that day.

At 5:00 p.m. the same day, Yarberry sent an email to several employees (but not to Ms. Bush, Mr. Edger, or Mr. Zimmerman) apologizing for his behavior and advising that he was now hospitalized in the Western Psychiatric Institute and Clinic. He did not mention any diagnosis.

The termination letter of August 3, 2011 went out the next morning by "overnight mail." It specifically indicated that Yarberry had been terminated for disarming the store at 2:15 a.m., locking himself in the building, entering the safe, playing on computers, and failing to cooperate in hhGregg's investigation, in violation of "the company's detrimental behavior, failure to cooperate, safety and other policies, procedure and practices" (doc. no. 36-1 at 11, 22).

On August 8, 2011, plaintiff's father sent an email to various employees (but again, not to Ms. Bush, Mr. Edger, or Mr. ZImmerman) stating that Yarberry might be released from the psychiatric hospital in a few days, but mentioning no diagnosis. After a manager forwarded the email to HR, Ms. Bush telephoned Yarberry's father to advise that Yarberry's employment had already been terminated (doc. no. 48-1, ¶ 38).

Plaintiff was released on August 12, 2011. That day, psychiatrist Dr. MichaelMarcsisin sent Ms. Bush a letter, indicating that Yarberry had been committed for treatment of a "manic episode." He opined that it had started in mid-July, resulted from Bipolar I Disorder, and that the manic episode "likely led to his unusual behaviors." On August 16, 2011, Yarberry asked to be reinstated based on the doctor's letter.² Ms. Bush advised him that the termination decision stood.

Plaintiff filed a charge of disability discrimination with the EEOC on November 16, 2011 (doc. no. 43-1 at 1-2). Plaintiff received a Notice of Rights letter from the EEOC on July 2, 2012 (Id. at 3). On August 10, 2012, Yarberry filed a one-count federal complaint, alleging "disability discrimination" under the Americans with Disabilities Act ("ADA"), at 42 U.S.C. § 12112.³ He seeks compensatory and punitive damages, attorney fees, costs, and other relief. After discovery concluded, the parties filed cross-motions for summary judgment. Both motions, as well as the plaintiff's objections to the R&R, have been extensively briefed and are ripe for consideration.

II. Summary Judgment

Rule 56(a) of the Federal Rules of Civil provides in relevant part:

A party may move for summary judgment, identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

Rule 56(c)(1) further provides that:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Under Rule 56, the moving party bears the burden of proving that no genuine dispute of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Id. at 587. A party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing...