Ellis v. Buzzi Unicem USA

293 F. App'x 365
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 24, 2008
Docket07-5660
StatusUnpublished
Cited by12 cases

This text of 293 F. App'x 365 (Ellis v. Buzzi Unicem USA) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Buzzi Unicem USA, 293 F. App'x 365 (6th Cir. 2008).

Opinions

OPINION

McKEAGUE, Circuit Judge.

Defendant Buzzi Unicem USA (“Buzzi”) employed plaintiff Jasper Ellis until his discharge in February of 2005. After his discharge, Ellis sued, alleging one claim for retaliatory discharge arising from the exercise of his workers’ compensation rights and a second claim for intentional infliction of emotional distress (“IIED”). The district court determined that Ellis failed to create a genuine issue of material fact as to both claims and therefore granted summary judgment for Buzzi. Upon review of the applicable law and record, we AFFIRM the district court’s grant of summary judgment in favor of Buzzi.

BACKGROUND

Buzzi employed Ellis as a welder repairman (formally “Mechanical Maintenance II”) in the Buzzi cement manufacturing plant in Chattanooga, Tennessee. As a [366]*366welder repairman, Ellis was responsible for welding and patching equipment and structures in the cement plant. Ellis was represented by Local 9-1 of the United Steel Workers of America (“Local 9-1”), and the terms and conditions of his employment were governed by a collective bargaining agreement (“CBA”) between Buzzi and Local 9-1.

On March 16, 2004, Ellis suffered a job related injury. Ellis claims he reported the injury to his foreman, who allegedly failed to prepare an injury report. On his own initiative, Ellis was examined by his family doctor, who diagnosed Ellis with a hernia. Ellis then reported the injury to his safety supervisor, who prepared an injury report and referred Ellis to several “company” doctors for treatment. Ellis ultimately was treated by Dr. Zellender, who performed surgery and returned Ellis to work with no restrictions. Buzzi allegedly required plaintiff to obtain a second opinion. On October 27, 2004, Ellis’ physician, Dr. Barnett, released Ellis back to work, subject to a permanent 40-pound lifting restriction. Ellis claims

Buzzi conveniently elected to adopt Dr. Barnett’s finding, even though Plaintiff felt he could do his previous job and even though Dr. Zellender’s assessment was more accurate. Dr. Zellender’s accuracy was later confirmed when Plaintiff was evaluated by a subsequent physician who determined that he did not need to have any restrictions.

Appellant’s Br. at 4 (internal citations omitted). However, Ellis has not submitted the affidavit or testimony of any doctor attesting to the above.

Prior to the events at issue, it is undisputed that Buzzi hired an independent consultant to develop job descriptions for the Chattanooga facility. The development of these job descriptions began in late 2002, and they subsequently were implemented in May 2003. Under the Buzzi job description for Mechanical Maintenance II, a welder repairman required an ability to lift and carry up to 100 pounds.

According to the applicable CBA, an employee found to be ineligible for a given position would be eligible for any position for which he had seniority by “bumping” or “rolling” into the available slot. However, Ellis’ permanent 40-pound lifting restriction did not satisfy the job description for welder repairman or any other union position for which Ellis was qualified and had seniority. Ellis shared this understanding, and elected to pursue retirement disability benefits:

Q: As you sit here, Mr. Ellis, can you identify any position within the Bargaining Unit that you could perform with a 40-pound lifting restriction?
[Ellis]: Well, since the Company put restrictions on ever job out here, I don’t think so.
Q: Okay. Let me ask you the question again, though. Can you identify any position — put aside what the company has or has not done. Can you identify any position within the Bargaining Unit that you believe you can perform with a 40-pound lifting restriction?
[Ellis]: No, there’s not.
Q: That is, to your understanding the positions within the Bargaining Unit that exist all require regular lifting in excess of your 40-pound lifting restriction; is that correct?
[Ellis]: That’s correct.
Q: In light of the proposed stipulation of the Union with respect to the issue at hand today, let me ask you the following. Do you wish to secure disability retirement benefits from the Company?
[367]*367[Ellis]: Yes.

J.A. 129.

Nonetheless, some job descriptions in the record, see J.A. 64-109, have lifting requirements less than 40-pounds. See, e.g., J.A. 90, 100 (“Small Endloader Operator” and “Track Excavator” have a 15-pound lifting requirement). However, Ellis did not offer evidence that he was qualified for these positions or that he had seniority over employees currently occupying these positions and therefore the district court assumed that Ellis was not qualified for these positions either by training or seniority. J.A. 357-58 n. 4. While Ellis now disagrees with the district court’s conclusion in this respect, see Appellant’s Br. at 24 n. 5, we need not address the issue here. See United States v. Phinazee, 515 F.3d 511, 520 (6th Cir.2008) (“Because issues adverted to on appeal in a perfunctory manner unaccompanied by some effort at developed argument are deemed waived, we need not address the issue.” (internal quotations and citations omitted)).1

Prior to the resolution of Ellis’ claim for disability retirement benefits, Ellis was informed by Larry Miller, president of Local 9-1, that Buzzi would agree to retire Ellis on disability if he waived his right to file suit for workers’ compensation benefits. J.A. 230, 261-62. Referring to a meeting between Miller and George Garcia, the Vice President of Manufacturing at Buzzi, Ellis stated:

Larry Miller met with Mr. Garcia and he called me and told me that they would retire me, give me 20 weeks back pay if I would sign off on workmen’s comp. And this was a meeting that Larry Miller had with George [Garcia].

J.A. 262. Ellis declined to waive his right to file for workers’ compensation, and instead filed a lawsuit in state court for workers’ compensation benefits on January 27, 2005. Additionally, after discussions with Buzzi did not resolve Ellis’ demand for retirement disability benefits, Local 9-1 initiated two grievances on Ellis’ behalf under CBA. Ellis, represented by Local 9-1, ultimately did not prevail in seeking an award of disability retirement benefits. On March 15, 2006, a hearing was held before an impartial arbitrator. By award dated June 20, 2006, the arbitrator found that Ellis did not have “sufficient seniority to bump into [a] position” which could accommodate a 40-pound lifting restriction, J.A. 122, and that Ellis was not entitled to retirement disability benefits under the CBA. J.A. 124.

Buzzi notified Ellis that he was terminated effective February 28, 2005 by letter dated March 10, 2005. The arbitration award converted Ellis’ status to “layoff’ rather than full “termination.” J.A. 124. The district court found the distinction to be insubstantial for purposes of a retaliatory discharge claim, JA. 369, and that finding is not challenged on appeal. J.A. 369. The termination letter makes no mention of workers’ compensation, but it does center on the issue of Ellis’ permanent lifting restriction:

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Bluebook (online)
293 F. App'x 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-buzzi-unicem-usa-ca6-2008.