SARA LIOI, District Judge.
Before the Court is a motion for summary judgment filed by defendant Federal Express Corp. ("defendant" or "Federal Express"). (Doc. No. 37.) Plaintiff Georgiann Bare ("plaintiff" or "Bare") has filed a brief in opposition (Doc. No. 44), to which defendant has replied. (Doc. No. 45.) Also before the Court is plaintiff's motion to amend the complaint and defendant's opposition thereto. (Doc. Nos. 60, 66.)
Bare began working as a courier for Federal Express
On August 2, 2007, Bare injured her back and neck at work. Greg Barkdull ("Barkdull") then became Bare's Human Capital Management Program ("HCMP") manager.
In or about December 2008, Bare reached maximum medical improvement through her workers' compensation program and was released to return to work with a 20-pound lifting restriction. On January 26, 2009, Barkdull informed Bare that her medical leave of absence would be exhausted on April 17, 2009.
Thereafter, Barkdull sent Bare several mailings listing the only job openings at FedEx Express, each requiring a 75-pound lifting capacity. Bare advised Barkdull of her medical restrictions and capabilities, but never asked whether any of the available jobs could be restructured or changed to fit within her work restrictions. Further, Bare did not express any interest in these open positions, nor did she apply for the posted positions.
Instead, Bare requested a transfer to FedEx Custom Critical ("Custom Critical").
On June 2, 2009, having exhausted her available medical leave time and not having advised FedEx Express that she was able to return to work without restrictions, Barkdull terminated Bare's employment pursuant to the company's Medical Leave of Absence Policy.
On December 15, 2010, Bare filed a complaint against defendants FedEx Express Corp. and Federal Express in the Court of Common Pleas, Summit County, Ohio, alleging disability discrimination in violation of Ohio Rev.Code § 4112.02 et seq. (Doc. No. 1-1.) On January 19, 2011, defendants removed the action to this Court based on diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441. (Doc. No. 1.)
On March 16, 2011, the Court held a case management conference pursuant to notice and in accordance with Fed.R.Civ.P. 16. Following this conference, the Court issued a case management plan and trial order ("CMPTO") adopting April 4, 2011, the date proposed by the parties, as the deadline for amending pleadings. (See Joint Report of Parties' Planning Meeting [Doc. No. 64] at 64; CMPTO [Doc. No. 12] at 67.) Additionally, the Court adopted the parties' proposed fact-discovery cut-off date of November 11, 2011, as well as their proposed summary judgment-briefing schedule. (Id.) Subsequent to a motion by plaintiff, the Court amended its scheduling order, extending fact discovery until December 19, 2011 and resetting summary judgment deadlines such that briefing would be completed by February 27, 2012. (See Plaintiff's Motion to Continue All Deadlines [Doc. No. 26]; Amended CMPTO [Doc. No. 27].) The deadline for amending the pleadings remained unchanged. (Id.) This case is currently set for trial on September 4, 2012. (Doc. No. 55.)
On January 23, 2012, defendant filed the instant motion for summary judgment. As of February 27, 2012, the parties had completed briefing on the motion for summary judgment in compliance with the Court's amended CMPTO. On August 1, 2012, plaintiff moved to amend her complaint.
Fed.R.Civ.P. 15(a) provides that when a party is required to seek leave of court in order to file an amended pleading, "lease shall be freely given when justice so requires." The Supreme Court has explained:
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
However, when, as here, the deadline for amending pleadings established by the Court's scheduling order has passed, the Sixth Circuit has made clear that, "a plaintiff must first show good cause under Rule 16(b) for failure earlier to seek leave to amend" and the Court "must evaluate prejudice to the nonmoving party `before a court will consider whether amendment is proper under Rule 15(a).'"
The Sixth Circuit has held that,
Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.2002) (internal citations and quotation marks omitted).
Here, plaintiff's motion to amend first seeks to drop FedEx Express Corporation, a previously dismissed party, from the caption of the complaint. In its response brief, defendant submits that such an amendment is unnecessary because FedEx Express has already been dismissed with prejudice by Court order. The Court agrees with defendant, and finds that the proposed amendment to "remove" a previously dismissed party is wholly unnecessary.
Plaintiff next seeks leave to amend her complaint to "clarify" her allegation that defendant failed to investigate possible reasonable accommodations at the FedEx Express in Akron, Ohio. The proposed amendment alleges that, "Defendant Federal Express Corporation, through their Supervisor, Greg Barkdull, further failed to investigate any possible reasonable accommodations at the FedEx Express in Akron, Ohio." (See Proposed First Amended Complaint [Doc. No. 60-1] at 1040.) Plaintiff contends that the amendment will not prejudice defendant, nor will it "create harassment or undue delay[,]" noting that "this failure to investigate issue has been fully discussed, litigated, and discovered by the parties," has been addressed in the pending summary judgment briefs, and has been "expressly listed" in the parties' joint status reports filed with the Court.
Defendant has filed her motion to amend nearly 16 months since the deadline for amendments has passed, more than eight months since the close of fact discovery, more than five months since the conclusion of summary judgment briefing, and one month before the scheduled jury trial. Plaintiff admits in her motion that she has been aware of the factual predicate for her requested amendment since at least the close of discovery, yet she offers no explanation for her delay in seeking an amendment, and pronounces that the defendant will not be prejudiced by the amendment.
As defendant points out, this will be the third time that plaintiff has changed her theory of the case. In her original complaint, plaintiff alleged that, due to her lifting limitations, Federal Express should have placed her in a position at Custom Critical. But, in her response to the summary
The Sixth Circuit has held numerous times, in similar situations, that a district court's denial of a motion to amend the complaint does not constitute an abuse of discretion. See Commerce Benefits Grp., Inc. v. McKesson Corp., 326 Fed.Appx. 369, 376 (6th Cir.2009) (upholding district court's denial of leave to amend after close of discovery and filing deadline for dispositive motions because plaintiff could not explain its delay in bringing claims it knew of since lawsuit's inception and addition new claims would prejudice defendants at such late stage of litigation); Jimkoski v. State Farm Mut. Auto. Ins. Co., 247 Fed. Appx. 654, 660-61 (6th Cir.2007) (no abuse of discretion when district court denied motion to amend filed eight days before start of trial where defendant would have been prejudiced if court permitted amendment); Miller v. Admin. Office of Courts, 448 F.3d 887, 898 (6th Cir.2006) ("Because the discovery deadline had already passed and the deadline for filing dispositive motions on the issue of immunity was imminent, the defendants would have been prejudiced if a further amendment had been permitted by the district court."); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (holding that district court did not abuse its discretion where it determined that plaintiffs failed to show good cause to amend complaint after dispositive motion deadline); Duggins v. Steak `N Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999) ("At least one Sixth Circuit decision has held that allowing amendment after the close of discovery creates significant prejudice, and other Circuits agree.").
The Court concludes that plaintiff has not established good cause required for modification of the case scheduled under Rule 16(b), that amendment at this late stage of the litigation would unduly prejudice defendant, and that even if the Court permitted the amendment, such amendment would be futile. Accordingly, plaintiff's motion to amend is
Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted, "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."
In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir.1990), impliedly overruled on other grounds by Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determining whether a factual issue is "genuine" requires considering the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict[.]" Id. at 252, 106 S.Ct. 2505.
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D.Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.
Federal Express has moved for summary judgment asserting Bare has not proven a prima facie case of discriminatory discharge or failure to accommodate. The complaint alleges Bare's termination and Federal Express's failure to accommodate Bare's lifting restriction constitute unlawful discrimination in violation of the Ohio Civil Rights Act, Ohio Rev.Code § 4112.02 et seq., which provides in relevant part:
Ohio Rev.Code § 4112.02(A).
The Ohio Supreme Court recognized in Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St.2d 192, 197, 421 N.E.2d 128 (1981), that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) sets forth the formula courts should rely upon in evaluating claims of discrimination under Ohio Rev.Code § 4112.02. The burden shifting established in McDonnell Douglas, and later clarified by Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is divided into three stages.
At the first stage, plaintiff must prove a prima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. It is well settled that to establish a prima facie case of disability discrimination under Ohio Rev.Code § 4112.02, plaintiff must prove that: (1) she has a disability; (2) adverse action was taken by Federal Express, at least in part, because of her disability; and (3) even though she had a disability, she could have safely and substantially performed the essential functions of the job in question with or without reasonable accommodation. Hood v. Diamond Prods., 74 Ohio St.3d 298, 302, 658 N.E.2d 738 (1996) (citing Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281, 496 N.E.2d 478 (1986)).
If plaintiff establishes a prima facie case, the burden then shifts to defendant to "articulate some legitimate, nondiscriminatory reason" for the adverse employment action. Id. (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). See Plumbers, 66 Ohio St.2d at 197, 421 N.E.2d 128. If defendant meets this burden, the final stage requires plaintiff to prove that the proffered reason was merely a pretext for unlawful discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Pretext is established by a direct showing that "a discriminatory reason more likely motivated the employer or [by an] indirect[ ] ... showing that the employer's explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. 1089. See also, Kline v. TVA, 128 F.3d 337, 342-43 (6th Cir.1997).
Federal Express maintains it is entitled to summary judgment on Bare's claims because she is unable to establish a prima facie case of discriminatory discharge. Further, Federal Express argues it had nondiscriminatory reasons for terminating Bare and that Bare cannot demonstrate pretext or discriminatory animus or intent. These arguments are well taken.
Under Ohio law, "disability" is defined as:
Ohio Rev.Code § 4112.01(A)(13). The parties dispute whether Bare's impairment substantially limits a major life activity.
The term "substantially limits" is not defined in the Ohio statutes or regulations, but it is defined by federal regulations. Under federal regulations, the term "substantially limit[ed]" means "[u]nable to perform a major life activity that the average person in the general population can perform," or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the
Here, Bare claims her permanent lifting restriction severely limits her ability to bend and squat and to engage in many household chores, including lifting a turkey at Thanksgiving. Numerous courts have held physician imposed lifting restrictions, at least equal to, or in excess of, the one imposed on Bare, do not, in and of themselves, constitute substantially limiting physical impairments. See, e.g., McDonald v. City of New York, 786 F.Supp.2d 588, 609 (E.D.N.Y.2011) (holding a 20-pound lifting restriction does not constitute a physical impairment that substantially limits a major life activity); id. (collecting cases); Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3d Cir.2000) (same with respect to 10-pound lifting restriction); Sadinsky v. EBCO Mfg. Co., 134 Ohio App.3d 54, 730 N.E.2d 395 (Ohio Ct.App.1999) (holding an employee's inability to lift more than 30 to 40 pounds did not substantially limit his ability to engage in ordinary daily activities).
Moreover, although Bare indicated she does "not push the limit" imposed by her physician, she admitted that but for her physician imposed lifting restriction, she could continue to perform her job as a courier on her former assigned route. (Doc. No. 41 at 736-38.) Bare's claim that her impairment is substantially limiting is further belied by her admissions that she can occasionally lift more than 20 pounds, performs yard work and housework, does stretching and bending exercises, works out with weights, and rides a stationary bicycle. (Id.) Accordingly, the Court concludes plaintiff has not shown she has a legally cognizable disability. See Overfield v. H.B. Magruder Memorial Hosp., Inc., No. 3:10CV2038, 2012 WL 243341, at *8 (N.D.Ohio Jan. 25, 2012) (finding no cognizable disability where plaintiff "had to be careful with her arm" but could "fix her hair, dress herself, do laundry, go grocery shopping, rake leaves, cut the grass, and other varied activities").
Even assuming that Bare has presented sufficient evidence of a disability, she has not make out a prima facie case of disability discrimination because she has not demonstrated she could safely and substantially perform her job's essential functions with or without a reasonable accommodation. There is no dispute that the courier position has a minimum 75-pound lifting requirement and that the essential functions of the job cannot be performed with a 20-pound lifting restriction. Further, it is undisputed there were no open jobs at Federal Express that could accommodate a 20-pound lifting restriction during the relevant time frame. Indeed, Bare admits she cannot lift 75-pounds and that the 75-pound requirement was an essential function of the courier job and each of the other open positions that Barkdull identified. (Doc. No. 41 at 693-94.) Accordingly, by Bare's own testimony and by her own doctor's orders, she was not qualified
Bare contends, nonetheless, that she could continue working at Federal Express with an accommodation. For example, she suggests she was capable of performing in a light duty capacity.
Moreover, even if Bare had asked for a light duty assignment, Federal Express was under no obligation to place Bare permanently in light duty work or to create a position for her when one did not exist. Hoskins v. Oakland Cnty. Sheriff's Dept., 227 F.3d 719, 729-31 (6th Cir.2000) ("It is well established ... that an employer is not obligated to create a position not then in existence.") (citing Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998)). Bare has not shown there were any openings at Federal Express in which she could have performed the aforementioned tasks. Nor was Federal Express required to continue to retain Bare on leave until a position she might be qualified for opened up. Scott v. Univ. of Toledo, 137 Ohio App.3d 538, 543, 739 N.E.2d 351 (Ohio Ct.App.2000) (holding although reassignment to an available related vacant position is a reasonable accommodation, this does not include keeping employee on indefinite leave of absence until such a position becomes available); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir.1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir.2012) ("While it is true that employers may be required, as a reasonable accommodation, to transfer a disabled employee to a vacant position for which he or she is qualified, employers are under no duty to keep employees on unpaid leave indefinitely until such position opens up.").
Further, while job restructuring may be a reasonable accommodation in
Finally, even assuming arguendo that Bare has made out a prima facie case of disability discrimination, her discriminatory discharge claim fails for the additional reason that Federal Express has articulated a legitimate, nondiscriminatory reason for terminating her, which has not been refuted by a showing of unlawful pretext. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Once an employer articulates a legitimate, nondiscriminatory reason for its action, "the plaintiff must then show that the reason given by the employer is pretextual in order to prevail." Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir.1999) (citations omitted). A plaintiff may show pretext by establishing "by a preponderance of the evidence ... [that defendant's proffered reasons] (1) ... had no basis in fact, (2)... did not actually motivate [Bare's] discharge, or (3) ... were insufficient to motivate discharge." Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994), overruled on other grounds by Geiger v. Tower Auto., 579 F.3d 614 (6th Cir.2009) (citations and internal quotation marks omitted).
Here, Federal Express justifies Bare's termination on the basis that she exhausted her available leave time, could not report to work or perform any open jobs at Federal Express with the restrictions imposed by her physician, and did not even express an interest in any open jobs, with or without accommodations during the relevant period. These are each legitimate, nondiscriminatory reasons for termination. See e.g., Mullet v. Wayne-Dalton Corp., 338 F.Supp.2d 806, 817 (N.D.Ohio 2004) (holding termination of an employee who is unable to return to work and has exhausted available leave under an employer's policy is a legitimate, nondiscriminatory reason for termination); Hillery v. Fifth Third Bank, No. 2:08-CV-1045, 2010 WL 1963408, at *8 (S.D.Ohio May 17, 2010) (employee's own failure to apply for posted position provided a legitimate, nondiscriminatory reason for not promoting employee).
In response, Bare has offered no evidence to dispute Federal Express's legitimate, nondiscriminatory reason and makes no arguments regarding pretext. As a result, defendant is entitled to summary judgment on plaintiff's discriminatory discharge claim. Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 511 (6th Cir.2004) (summary judgment is appropriate when the plaintiff fails to produce evidence from which a jury could reasonably conclude that the employer's reasons were pretextual).
Bare also maintains Federal Express failed to reasonably accommodate her alleged disability. Under Ohio law, "[a]n employer must make [a] reasonable
In order to establish a prima facie failure to accommodate claim, plaintiff must show that: (1) she has a disability; (2) she is otherwise qualified for the position, with or without reasonable accommodation; (3) defendant knew or had reason to know about her disability; (4) she requested an accommodation; and (5) defendant failed to provide the necessary accommodation. Myers v. Cuyahoga Cnty., Ohio, 182 Fed.Appx. 510, 515 (6th Cir.2006) (citing DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir.2004)).
As outlined above, even assuming Bare is disabled, she has failed to demonstrate that she was otherwise qualified for a position at Federal Express. Further, there is simply no evidence that Bare ever requested a reasonable accommodation. Nor has she shown that Federal Express failed to make a good faith effort to assist her in identifying a reasonable accommodation.
The record is clear that although Barkdull notified Bare of every open position at Federal Express, Bare never expressed an interest in any of the open positions, much less requested any of the positions be restructured to accommodate her lifting restriction. Barkdull communicated with Bare about her leave of absence requirements and her physical limitations, he informed her of all open positions at Federal Express up until the time of her termination, he explained some positions could be restructured to accommodate her work restrictions, and instructed she should contact him if she had an interest in any of the open positions; but she did not do so.
Notwithstanding her failure to request an accommodation at Federal Express, Bare contends she subsequently requested a reasonable accommodation when she asked Barkdull to transfer her to an open position at Custom Critical. As discussed above, however, Bare concedes that Federal Express could not have forced Custom Critical to hire plaintiff and that Federal Express and Custom Critical are legally separate entities. Thus, Federal Express was under no legal obligation to place plaintiff at this separate company and, therefore, Bare has not met her burden in establishing a failure to accommodate. Accordingly, defendant is entitled to summary judgment on plaintiff's failure to accommodate claim.
For all of the foregoing reasons, plaintiff's motion for leave to amend her complaint is
Bare relies on two Seventh Circuit cases for the proposition that when an employee advises an employer of restrictions and indicates a desire to keep working, the employee has made a sufficient request for an accommodation. Bare's reliance on these cases, however, is misplaced. Bare states that Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130 (7th Cir.1996), stands for the proposition that an employer's liability was triggered by its failure to provide reasonable accommodation in response to an employee informing it of her disability. Beck held, however, that the "[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for [a] breakdown[]" in the interactive process. Beck, 75 F.3d at 1135-36. In Beck, the court held that the plaintiff was responsible for the breakdown in the process due to her failure to give the employer any indication of what specific accommodations were necessary. Similarly, here, Bare failed to suggest, or even inquire about the availability of, any specific accommodation.
Next, Bare relies on Miller v. Illinois Dep't of Corr., 107 F.3d 483 (7th Cir.1997), for the proposition that simply asking for continued employment is a sufficient request for an accommodation. The Seventh Circuit concluded in Miller, however, that, "[e]ven if an employee who ... becomes disabled while employed says to the employer, `I want to keep working for you — do you have any suggestions?' the employer has a duty under the [ADA] to ascertain whether he has some job that the employee might be able to fill." Miller, 107 F.3d at 486-87 (ultimately affirming judgment for the defendant because the plaintiff only expressed interest in reassignment to a job that did not exist, and did not evince any interest in "jobs the essential duties of which [might have been] within her ability to perform") (emphasis added). Thus, in that case, the plaintiff did more than just suggest that he wanted to continue working; he asked whether the employer had any suggestions in this regard. Here, there is no indication in the record that Bare ever asked Barkdull if he had any suggestions that would enable her to return to work in any open positions, much less that he denied a request for specific assistance in identifying jobs for which she could qualify. Ultimately, as the Sixth Circuit noted in Burns, supra, even those Seventh Circuit decisions that require employers to make an affirmative effort to locate jobs for disabled employees still place the onus on a plaintiff to propose an alternate job for which she might otherwise be qualified. Burns, at 258 (citing DePaoli v. Abbott Labs., 140 F.3d 668, 675 (7th Cir.1998) (approving of the employer's affirmative effort to accommodate the plaintiff with a reassignment, but finding insufficient the plaintiff's general request that the employer reassign her to a job that "accommodated her medical restrictions"); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 680-81 (7th Cir.1998) (affirming summary judgment with respect to those plaintiffs who failed to show they were qualified for reassignment)).