Perdue v. Northern Can Systems, Inc.

935 F. Supp. 924, 5 Am. Disabilities Cas. (BNA) 1472, 1996 U.S. Dist. LEXIS 3283, 1996 WL 118492
CourtDistrict Court, N.D. Ohio
DecidedJanuary 24, 1996
DocketNo. 5:94 CV 2344
StatusPublished

This text of 935 F. Supp. 924 (Perdue v. Northern Can Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perdue v. Northern Can Systems, Inc., 935 F. Supp. 924, 5 Am. Disabilities Cas. (BNA) 1472, 1996 U.S. Dist. LEXIS 3283, 1996 WL 118492 (N.D. Ohio 1996).

Opinion

ORDER

SAM H. BELL, District Judge.

Presently before the court is Defendant Northern Can Systems, Inc.’s (Northern Can) motion for summary judgment. (Docket # 19.) Plaintiff Jerry A. Perdue’s underlying claim alleges that he was discharged and discriminated against “on the grounds of a handicap in violation of Ohio Revised Code Section 4112.99.” (Docket # 1 (attachment).) Plaintiff has filed his opposition to Defendant’s motion, as well as a supporting affidavit, (docket #s 22, 23), to which Defendant has replied. (Docket #24.) Defendant’s motion is now ripe for consideration.

Background

Plaintiff Perdue was hired as a janitor by Defendant Northern Can in November of 1988. He performed his regular duties until May 5, 1991, when Mr. Perdue suffered a back injury while working. Thereafter, on May 15, Mr. Perdue took a medical leave of absence which lasted until July 28,1991. He returned to work on July 29, albeit with light duty restrictions. Finally, on September 3, 1991, Mr. Perdue’s physician opined that on the following day, he could return to his full janitorial duties with no restrictions, and Mr. Perdue did so. For the following year Mr. Perdue performed his full duties at Northern Can’s facility, however, on September 2, 1992, he again requested and received a medical leave of absence due to back problems.

In January of 1993, Mr. Perdue returned to work on a “return to work contract” provided by the Ohio Bureau of Workers’ Compensation. {See Defendant’s motion for summary judgment, (docket # 19), ex. G.) Under the contract, Mr. Perdue was to work four hours per day for four weeks in return for his full wage, and the Rehabilitation Division agreed to reimburse Northern Can for the difference between Mr. Perdue’s actual time worked and the normal forty hour work [926]*926week. At the end of the first four weeks, Mr. Perdue was to increase his working day to six hours, again in return for a full week’s wage, and the Rehabilitation Division would again make up the difference to Northern Can.

Mr. Perdue alleges that during the first four weeks he was back on the job, his supervisor mistreated him by following him around with a note pad, and by leaving a washer on the floor to test Plaintiffs thoroughness. Plaintiffs supervisor allegedly provided him with positive verbal assurances, while at the same time “writing him up” for not doing his job.

On or about February 16, 1993, Mr. Per-due’s supervisor left him a note requesting that he scrub the floor in a lab room. He attempted to do so and apparently suffered another injury to his back while operating the floor scrubber. He consequently reported the injury and, once again, had to leave work. Mr. Perdue never returned to work for Northern Can. In a March 15, 1993 letter, Mr. Anthony Bogovieh, Defendant’s Personnel Director, informed Mr. Perdue that he was terminated from employment:

Based upon medical opinion, you do not possess the ability to return to work to perform your regular duties and, since you have been unable to work your normal job on a full-time basis since September, 1, 1992, and there are no reasonable accommodations available, we are terminating your employment effective March 1, 1993, consistent with our policy which grants a maximum leave of absence of six (6) months for a non-occupational or occupational disability.

(Docket # 19, ex. F.) The parties agree that Mr. Perdue is currently totally disabled. (Dockets # 22 at 3, # 19 at 13, & exs. J, P at 63.)

Plaintiff Perdue now claims that his physical and psychological disabilities were caused by his employer and by his attempt to return to work full-time, and that said disabilities “were aggravated by his discharge from employment.” (Docket # 22, at 3.) While Plaintiffs complaint seems to allege that his discrimination claim arises from his discharge, (see docket # 1, attachment), his response to Defendant’s motion for summary judgment alleges that Defendant failed to reasonably accommodate Plaintiffs disability while Mr. Perdue was still working for Northern Can. (Docket #22, at 5.) It now appears to be Plaintiffs belief that Northern Can drove him to his final, career-ending injury by failing to reasonably accommodate his disability.

In its motion for summaiy judgment, Northern Can understandably approached Plaintiffs claim as if it is one for discriminatory discharge. (See docket # 19.) Indeed, Plaintiffs filings with this court are sufficiently vague so as to readily allow such an interpretation and this court will accordingly address Plaintiffs claim as such. However, a very liberal reading of Plaintiffs complaint does allow for another interpretation, namely, that Northern Can failed to reasonably accommodate Mr. Perdue’s disability while he was on the job. In its reply to Plaintiffs motion in opposition to Defendant’s motion for summary judgment, Northern Can addresses Mr. Perdue’s arguments regarding accommodation, and this court will, therefore, also consider that aspect of Mr. Per-due’s claim.

Standard of Review

The Court of Appeals for the Sixth Circuit has summarized the standard of review governing motions for summary judgment under Federal Rule of Civil Procedure 56 as follows:

Summary judgment is appropriate where “there is no genuine issue of material fact ... and the moving party is entitled to judgment as a matter of law”.... [The] court must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party.
The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim.
“By its very terms, this standard provides that the existence of some alleged factual dispute between the parties will not [927]*927defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmov-ing party. If the disputed evidence “is merely colorable or is not significantly probative, summary judgment may be granted.”

LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993) (citations omitted). With this standard in mind, the court shall analyze the Defendant’s present motion.

Law and Analysis

“An aggrieved party may, pursuant to [Ohio] Revised Code § 4112.99, institute an independent civil action to seek redress for discrimination on the basis of physical disability.” Elek v. Huntington Nat’l Bank, 60 Ohio St.3d 135, 573 N.E.2d 1056 (1991); see also Pozzobon v. Parts for Plastics, Inc., 770 F.Supp. 376, 378 (N.D.Ohio, E.D.1991) (Bell, J.). To establish his claim of handicap discrimination, Mr.

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Related

Pozzobon v. Parts for Plastics, Inc.
770 F. Supp. 376 (N.D. Ohio, 1991)
Kent State University v. Ohio Civil Rights Commission
581 N.E.2d 1135 (Ohio Court of Appeals, 1989)
Hazlett v. Martin Chevrolet, Inc.
496 N.E.2d 478 (Ohio Supreme Court, 1986)
Elek v. Huntington National Bank
573 N.E.2d 1056 (Ohio Supreme Court, 1991)

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Bluebook (online)
935 F. Supp. 924, 5 Am. Disabilities Cas. (BNA) 1472, 1996 U.S. Dist. LEXIS 3283, 1996 WL 118492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perdue-v-northern-can-systems-inc-ohnd-1996.