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Ellis v. Buzzi Unicem USA

May 16, 2007


The opinion of the court was delivered by: Chief Judge Curtis L. Collier


On March 10, 2006 plaintiff Jasper Ellis ("Plaintiff") filed a complaint in the Chancery Court for Hamilton County, Tennessee, against defendants Buzzi Unicem USA ("Buzzi" or "Defendant"), General Portland Inc. Pension Plan, the Administrator of the General Portland Inc. Pension Plan, Pension Plan for Hourly Compensated Employees of Signal Mountain Cement Company, L.P., 2000 Restatement, and the Administrator of the Pension Plan for Hourly Compensated Employees of Signal Mountain Cement Company, L.P. (collectively, "Defendants")*fn1 (Court File No. 1-3). On April 21, 2006, the matter was removed to this Court (Court File No. 1) under the Court's diversity and original jurisdiction.*fn2 The complaint alleges one claim for retaliatory discharge arising from Plaintiff's exercise of his workers compensation rights, and a second claim for intentional infliction of emotional distress (Court File No. 1-3).

Before the Court is a motion to dismiss and for summary judgment (Court File No. 12) filed by Defendants on March 13, 2007. Plaintiff timely responded (Court File No. 15) and Defendants replied (Court File No. 20). This motion is now ripe for review. In his response to the motion to dismiss, Plaintiff agreed all Defendants except for Buzzi should be dismissed from this matter (Court File No. 15, p. 25). Therefore, General Portland Inc. Pension Plan and the Pension Plan for Hourly Compensated Employees of Signal Mountain Cement Company, L.P., 2000 Restatement, and the Administrators of each respective plan, will be DISMISSED for failure to state a claim. Fed. R. Civ. P. 12(b)(6). For the following reasons, summary judgment will be GRANTED in favor of Buzzi on the claims against it. This Court will GRANT Defendants' motion (Court File No. 12).


Plaintiff is a Tennessee citizen and member of United Steel Workers of America, Local No. 9-1, f/k/a United Cement, Lime, and Gypsum Workers International Union, Local No. 1 ("Union") (Court File No. 1-3, ¶ 7; Court File No. 15, p. 6). Buzzi is a Delaware corporation in the cement manufacturing business with a facility in Chattanooga (Court File No. 13, ¶ II.1).

Plaintiff worked for Buzzi for over 20 years (Court File No. 15, p. 2). On March 16, 2004, Plaintiff sustained a job-related injury, a hernia (Court File No. 1-3, ¶¶ 1-8; Court File No. 15, p. 2). Plaintiff allegedly reported the injury to his foreman, who allegedly failed to prepare an injury report, and then reported the injury to his personal doctor. Plaintiff then reported the injury to his safety supervisor, who prepared a report and sent Plaintiff to several "company" doctors (Court File No. 15, p. 2). Plaintiff was finally treated by Dr. Zellender, who performed surgery and permitted Plaintiff to return to work with no restrictions (id. at 3). Buzzi allegedly required Plaintiff to obtain a second opinion (id.).*fn3 On October 27, 2004, Dr. Barnett (apparently Plaintiff's treating physician) released Plaintiff back to work, subject to a permanent 40-pound lifting restriction (Court File No. 12-3, p. 5).

Under the Collective Bargaining Agreement ("CBA") between Buzzi and the Union, which governed Plaintiff's employment, his seniority permitted Plaintiff to "bump" into a job which could accommodate his lifting restriction (Court File No. 1-3,¶ 10). However, Buzzi allegedly refused to provide a list of jobs for which Plaintiff was qualified, and then "proceeded to place un-necessary lifting restrictions on all jobs that should have been available to Plaintiff Ellis, those restrictions not having been in place before" he requested accommodation (id. at ¶ 14; Court File No. 15-3, p.7). Defendant counters that, in 2002-03, Buzzi hired an independent consultant to develop descriptions for union jobs at the Chattanooga facility (Court File No. 13, ¶ 3). The consultant prepared a job description for the Mechanical Maintenance II/welder repairman position (Plaintiff's position when he was injured) which required an ability to lift and carry up to 100 pounds (id. at ¶¶ 3-4). Plaintiff's permanent 40-pound restriction did not satisfy the job description for welder repairman or any other union position for which he was qualified (id. at ¶¶ 6-7). In fact, all position categories at the facility -- except one, which was filled by employees more senior than Plaintiff -- have lifting requirements of at least 75 pounds (id. at ¶ 11).*fn4

Plaintiff claims to have been informed by Larry Miller ("Miller"), president of the Union, that Buzzi would permit Plaintiff to retire on disability if he waived his right to file suit for workers compensation benefits. However, Plaintiff refused to waive his right (Court File No. 1-3, ¶¶ 12-13; Court File No. 15, p. 4; Court File No. 15-3, p. 8). Plaintiff was told by Miller that Plaintiff would be terminated if he did not agree (Court File No. 15, p. 4). Despite this threat, on January 27, 2005, Plaintiff filed a lawsuit in state court under the Tennessee Workers' Compensation Act (id.).

Plaintiff's lifting restriction precluded him from every job available in his bargaining unit (id. at 3-4; Court File No. 13, p. 3). Plaintiff applied for disability retirement benefits; his application was denied. Plaintiff received a letter dated March 10, 2005 which notified him that he was fired effective February 28, 2005 (Court File No. 1-3, ¶ 15).*fn5 Plaintiff then filed this suit, asserting two causes of action: (1) retaliatory discharge from exercise of his workers' compensation rights and (2) intentional infliction of emotional distress (id. at ¶¶ 18-19).

Defendant admits that Plaintiff applied for disability retirement benefits which were denied, Plaintiff's employment was "terminated," and Plaintiff/Plaintiff's Union filed a grievance under the CBA (Court File No. 12-3, p. 26; Court File No. 13, ¶¶ 8-10). An arbitration hearing was held on March 15, 2006 (Court File No. 13, ¶ 11). The arbitrator's decision upheld the denial of Plaintiff's disability claim. The arbitrator concurred that there were no union jobs to which Plaintiff's seniority allowed him to bump (id. at ¶ 12). Notably, Plaintiff's status was converted to "layoff" rather than full "termination" under the CBA (Court File No. 12-4, p. 63).*fn6

Plaintiff notes, the parties to arbitration were (1) Buzzi and (2) the Union (Court File No. 15, p. 9-14). Plaintiff's version of the facts (see Court File No. 15) argues, though lifting restrictions might have been formally in place prior to his injury, such restrictions were not enforced until his case (id. at 4). Plaintiff claims "prior to his termination, Buzzi did not adhere to or apply the lifting requirements in its job description and, in fact, encouraged all employees to obtain assistance in lifting loads" (id.). Miller's affidavit states, prior to Plaintiff's injury, he "had never been provided with Buzzi's written job description that had lifting requirements that exceeded Ellis' restriction, although if they truly existed that would be something one would expect the Union to receive." (Court File No. 15-3, p. 7.) Moreover, Plaintiff asserts, even if job descriptions were developed in 2002-03 Buzzi "never checked" to see if the consultant's descriptions matched the actual work, i.e. if the employees could do or were actually doing the work as described (id. at 5). Citing the deposition of George Garcia, Buzzi's Vice President of Manufacturing ("Garcia"), Plaintiff claims (1) Buzzi is unaware if its employees are actually qualified for the positions in which they are employed when compared to the written job descriptions, and (2) Buzzi is unaware if any employee "has ever been disqualified or terminated for the inability to perform his or her job based upon the written job descriptions" (id.) (citing Court File No. 15-3, p. 14, lines 2-7).

Finally, Plaintiff offers evidence which he believes will demonstrate Buzzi's safety policy discourages employees from attempting to lift too much (his affidavit, Miller's affidavit, and Garcia's deposition).*fn7 Plaintiff argues that his lifting restriction is, as a practical matter, irrelevant to his job performance (id. at 4-5). Plaintiff alleges that "Buzzi had other employees with lifting restrictions working in jobs with descriptions that included written lifting requirements that exceeded their restrictions" (id. at 8). Buzzi contests this in its reply (Court File No. 20).


Defendant moves for summary judgment on the claims against it under Fed. R. Civ. P. 56 (Court File No. 12, p. 1). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the burden rests on the movant to conclusively show no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court must view the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). It is the Court's duty to determine if the non-movant has presented sufficient evidence to raise issues of fact; however, the Court does not weigh evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).

At the same time, the purpose of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fed. R. Civ. P. 56 (advis. comm. notes) (1963). The movant must demonstrate the absence of a genuine issue of material fact, but the non-movant is not entitled to a trial solely on the basis of its allegations. The non-movant must submit significant probative evidence to support its claim. Celotex, 477 U.S. 317, 324 (1986). A scintilla of evidence is not enough; the non-movant must present evidence sufficient for a jury to reasonably find for its side. Liberty Lobby, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The movant is entitled to summary judgment if the non-movant fails to make a satisfactory showing on an essential element of its case for which it bears the burden of proof. Celotex, 477 U.S. at 323. It is the Court's role to decide if a fair-minded jury could return a verdict for the non-moving party, or if "the evidence . . . is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).



Defendant asserts that Plaintiff is precluded from litigating his retaliatory discharge claim because "each and every fact that Plaintiff alleges and relies on in the instant lawsuit has already been argued before, considered by, and decided upon by the arbitrator" (Court File No. 13, p. 5).*fn8 However, Defendant fails to argue the essential, underlying issues decided upon, as a necessary part of the arbitrator's decision, were the same, and that is the basis four-part test for issue preclusion:

(1) The issue precluded must be the same issue involved in the ...

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