Richard Broyles v. Kasper Machine Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0241n.06

No. 12-3464
FILED
UNITED STATES COURT OF APPEALS Mar 07, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

RICHARD BROYLES,

Plaintiff-Appellant,

v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
KASPER MACHINE CO., et al., SOUTHERN DISTRICT OF OHIO

Defendants,

and

IMS DELTAMATIC GROUP; IAC SIDNEY,
LLC,

Defendants - Appellees.
/

BEFORE: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Richard Broyles appeals the district court’s grant of

summary judgment to Defendants IMS Deltamatic Group (“Deltamatic”)1 and IAC Sidney LLC

(“IAC”), in connection with a workplace accident suit. Plaintiff’s claims against Deltamatic were

defective product design under Ohio Revised Code § 2307.75 and failure to warn under § 2307.76.

His action against his employer, IAC, was for workplace intentional tort under § 2745.01. For the

following reasons, we AFFIRM the district court’s grant of summary judgment.

1
There is some confusion in the record as to whether this Defendant’s correct name is “IMS
Deltamatic Group” or “IMS Deltamatic Spa.” For the sake of consistency, we refer to this party
throughout as “IMS Deltamatic Group.”
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BACKGROUND

A. Factual Background

Plaintiff was a supervisor at the IAC facility and had worked there since 1998.2 He was in

charge of Bay 26, the area in which the accident occurred, and was responsible for ensuring its

smooth operation, enforcing safety procedures, halting production when necessary, performing minor

troubleshooting tasks on machinery, and contacting maintenance when problems with the machine

arose. He did not, however, have any mechanical, in-service-maintenance, or engineering training,

and was never a member of the maintenance department.

1. The Bay 26 Machine

Located in Bay 26 was a carpet-forming machine that was manufactured by Deltamatic to

mold and cut carpet and plastic for vehicle flooring. Shaped like the letter “P,” the machine’s

manufacturing process started at the base of the “P” and moved up to the circle. At the end of the

line, pieces of molded carpet and plastic were secured by clamps and placed onto an automated

“carousel” or turntable that stood approximately two to three feet from the factory floor. This

carousel formed the circle of the “P.” It had three workstations: at station one, molded carpet

sections were transported from the line onto the carousel; at station two, three robotic arms cut

excess material from the floor pieces via jets of water; and at station three, employees removed the

molded pieces from the carousel and took them to another area for further processing. The carousel

rotated from one station to the next once every minute.

2
Plaintiff started at the facility under its previous owners, Lear Corporation, and continued
to work at the facility through the 2007 change in ownership to IAC. (R. 83, Pl.’s Dep., at 49–50.)

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There were several safety measures in place for Bay 26. First, the machine came

accompanied by a 4,000-page manual, which contains a page cautioning users as follows: “During

maintenance phases, the turntable structure presents an impact, trip and falling hazard. (a) Do not

walk on the turntable structure; (b) always check at each safety reset that no person or objects are

present within the protected area. The access of the turntable zone is forbidden to the operator.” (R.

82, Ex. 11, Safety Manual, at p. 33.) Though Plaintiff asserts that he never saw the manual, he

admitted in his deposition that he was fully aware that the carousel presented an impact, trip and

falling hazard. Second, to prevent access to the restricted area of the machine, the carousel was

surrounded by a wire fence equipped with two interlocking doors, which caused the carousel to stop

if the doors were opened.

Third, at the one opening in the fence where operators removed the molded pieces at station

three, the floor was painted yellow and guarded by two sensory devices, a “SICK eye” and a “light

curtain.” The light curtain stopped the carousel if its light beam was broken, and the SICK eye

sounded an alarm if someone approached the yellow area where the light curtain was located. Once

the light curtain was activated, the machine could be turned on only when the area of the light curtain

was clear and an operator manually pressed a reset button. In normal operation, operators would

continuously reset the operation after retrieving the molded pieces from station three. Fourth,

Deltamatic provided two large warning signs that were located near this restricted area in Bay 26

which read: “Notice: No Employees Beyond this Point” and “Warning: Do Not Climb On Carousel

While Machine is Running.” (R. 82, Ex. 10.) Lastly, IAC implemented a “lockout/tag-out”

procedure that required employees to shut down malfunctioning equipment before performing any

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maintenance or service. Plaintiff was trained in this procedure. All of these features and warnings

were in place and functioning on the day of his accident. Plaintiff was aware of all of them at the

time of his injury, except for the equipment manual.

However, the Bay 26 machine was not 100% hazard free. The space between the carousel

and the fencing was large enough for a person to stand inside the restricted area past the light curtain

and walk the perimeter of the machine without coming into contact with it. Deltamatic’s

experienced technicians often stood in this area while the light curtain was disengaged and remained

in the restricted area while the carousel was reset in order to perform maintenance on the machine

while it was in operation. IAC employees at all levels, including Plaintiff, similarly walked in the

restricted perimeter area of Bay 26 past the light curtain despite the warning signs, and inspected the

machine while it was in operation. Several IAC employees had even stepped onto the carousel on

occasion.

2. The Accident

On February 19, 2008, Plaintiff was informed that the Bay 26 machine was having problems

with misfeeding the molded pieces. He believed he knew the reason for the malfunction because he

had experienced a similar problem in the past. He called the maintenance department about the

problem, but entered the restricted area of the carousel to diagnose the problem before maintenance

arrived. Notably, Plaintiff failed to use either the interlocking gates, the lockout procedures, or his

inherent authority as supervisor to halt production. Plaintiff admitted that he expected the operators

to continue to reset the operation and allow the carousel to continue its normal rotation process while

he was in the restricted area.

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Initially, Plaintiff simply walked the perimeter of the carousel to observe the problem, but

after standing behind the machine for approximately five minutes and watching it continue in

operation, he decided to climb up onto the carousel to jiggle either a clamp on the machine or the

carpet. Though the operators knew Plaintiff was in that area, they also knew he could stand in the

area without contacting the machine. Plaintiff did not advise the operators that he would be getting

onto the carousel nor did he tell them to stop production at any point. Consequently, the operators

continued resetting the machine even as Plaintiff decided to climb onto the carousel.

Upon seeing Plaintiff for the first time on top of the carousel, but having already reset the

operation, one of the operators yelled to him that the carousel was about to rotate. Plaintiff

attempted to get off the machine before the rotation but lost his balance and fell when the carousel

moved in its ordinary fashion. Tragically, Plaintiff’s fall caused a serious injury to his spine,

paralyzing him from the waist down. He was provided workers’ compensation benefits for his

injuries.

B. Procedural History

Plaintiff filed a products-liability suit against Defendant Deltamatic, the machine

manufacturer, and Kasper Machine Company3 in the Court of Common Pleas in Shelby County,

Ohio. Plaintiff’s action was removed to the district court where, after two amended complaints, he

asserted four product-liability claims against Deltamatic: 1) manufacturing defect, 2) failure to

3
Plaintiff’s claims against Kasper Machine Company were dismissed with prejudice in June
2011 after the parties reached a settlement agreement. (R. 70.)

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conform to a material representation, 3) inadequate warning, and 4) design defect. He also asserted

one claim against his employer, Defendant IAC: 5) workplace intentional tort.

Plaintiff’s defective-design claim was supported by the depositions of two experts, Dr. Steve

Kramer and Vern Mangold, Jr., both of whom testified that Plaintiff’s accident was proximately

caused by inadequate safety design features in the Bay 26 machine. Specifically, Kramer testified

that had a light curtain similar to the one installed at the opening at station three been installed over

the carousel, Bay 26 would have been inoperable while someone was standing atop the carousel to

repair it. Mangold testified that had the machine been equipped with a device that permitted Plaintiff

to control Bay 26’s operation while standing within the restricted area, he would have been able to

prevent the inadvertent resetting of the operation that caused the carousel to move.

Defendants moved for summary judgment on all claims. In his response, Plaintiff abandoned

claims one and two against Deltamatic. On March 30, 2012, the district court granted summary

judgment to Defendants on the remaining claims. The district court found that Plaintiff failed to

establish proximate cause to survive summary judgment on the product liability claims because he

failed to read the warning signs and deliberately avoided existing safety features; and Plaintiff failed

to show that IAC specifically intended to injure him for purposes of establishing the workplace

intentional tort claim. Plaintiff timely filed a Notice of Appeal on April 16, 2012.

DISCUSSION

This Court reviews de novo a district court’s grant of summary judgment, drawing all

reasonable inferences in favor of the non-moving party. Martin v. Cincinnati Gas & Elec. Co., 561

F.3d 439, 443 (6th Cir. 2009). But where “the movant shows that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law,” summary judgment

should be granted. Fed. R. Civ. P. 56(a). Specifically, summary judgment is proper when the

nonmoving party fails to establish an essential element of its case. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). In a diversity action, we apply state law and adopt the principles of the state’s

highest court. See Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 617 (6th Cir. 1998).

But where that court has not spoken, this Court will consider the principles announced by the state’s

other appellate courts for guidance unless it is shown that the state’s highest court would decide the

issue differently. Id. Upon a showing from the movant that there are no longer any disputed facts,

Celotex, 477 U.S. at 322, the non-moving party must go beyond the content of its pleadings to set

forth specific facts indicating the existence of a genuine issue, Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). We now turn to analyze each of Plaintiff’s claims on appeal.

A. “Failure to Warn” Claim

To prove a “failure to warn” claim, a plaintiff must establish “(1) a duty to warn against

reasonably foreseeable risks; (2) breach of this duty; and (3) an injury that is proximately caused by

the breach.” Graham v. Am. Cyanaimid Co., 350 F.3d 496, 514 (6th Cir. 2003) (applying Ohio law).

This basic tort principle has been codified in Ohio Revised Code § 2307.76, which provides

specifically that a products liability claim may arise under a theory of inadequate warning or

instruction if “at the time of marketing, [] when [the product] left the control of its manufacturer,”

or “at a relevant time after it left the control of its manufacturer,” there was a duty to warn and a

breach of that duty. Id. § 2307.76(A)(1) and (2).

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Whether a manufacturer that has provided a warning breached its duty turns on whether the

existing warning was adequate in both its content and display. See Hisrich v. Volvo Cars of North

America, Inc., 226 F.3d 445, 452–53 (6th Cir. 2000) (citing Seley v. G.D. Searle & Co., 423 N.E.2d

831, 837 (Ohio 1981)). The warning must “disclose[] all inherent risks” and make the product safe

when used as directed. Boyd v. Lincoln Elec. Co., 902 N.E.2d 1023, 1030 (Ohio Ct. App. 2008).

It must also be displayed in such a manner that a typical product user would observe and appreciate

the warning. See Hisrich, 226 F.3d at 453 (finding that “form, manner of expression, or lack of

exigency” were relevant to the inquiry); see e.g., Boyd, 902 N.E.2d at 1030 (finding that warnings

in obscure places on packaging, which were rarely if ever seen by typical welder, did not absolve a

manufacturer of liability); Freas v. Prater Constr. Corp., Inc., 573 N.E.2d 27, 31–32 (Ohio 1991)

(noting that warnings in instruction manuals may not suffice in every case).

The proximate cause inquiry turns on whether adherence to the existing warning would have

prevented the plaintiff’s injury. “Ohio law is clear that where a plaintiff fails to read and/or follow

clear instructions, and where the accident would not have happened had the plaintiff followed the

instructions, the plaintiff’s failure to adequately warn claim fails for lack of the requisite proximate

cause.” Wade v. Diamant Boart, Inc., 179 F. App’x 352, 355–56 (6th Cir. 2006) (hereinafter “Wade

II”) (collecting Ohio cases).

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Even assuming there was a duty,4 Plaintiff has not made a sufficient showing that the two

large warning signs posted in Bay 26: 1) would not have prevented his injury if followed; or, 2) were

inadequate in form or manner of expression. See Boyd, 902 N.E.2d at 1030. It is clear that

Plaintiff’s fall and ultimate injury would not have occurred had he followed the warnings not to enter

the restricted area or stand on the carousel while the machine was in operation. Moreover, it is

apparent that the above-mentioned warning signs were fairly large and posted in Bay 26 in plain

view prior to and on the day of Plaintiff’s accident. Indeed, Plaintiff admits to seeing the signs

posted in the area. Thus, Plaintiff has failed to set forth specific facts to support his assertion that

the warnings provided were inadequate.

Plaintiff, however, argues that the conduct of Deltamatic technicians—who were observed

accessing the restricted area in contradiction of the posted signs—amounted to “anti-warnings” that

prevented him from appreciating the explicit warning signs. We find this argument unconvincing.

As an initial matter, this argument belies common sense; technicians with specialized training are

expected to access machinery in a way that Plaintiff, who lacked such training, could not. Moreover,

the case Plaintiff relies on, Cooley v. Lincoln Electric Co., 776 F. Supp. 2d 511 (N.D. Ohio 2011),

for his argument is inapposite. In Cooley, the district court found a jury verdict reasonable in light

of evidence that showed that: 1) the defendant intentionally provided inadequate warnings that failed

to warn about the then-known health risk of manganese poisoning associated with welding fumes

4
There is no duty to warn where the danger is “open and obvious” to product users or is a
matter of common knowledge. Ohio Rev. Code at § 2307.76(B). Because we decide this case on
the other two prongs of the failure-to-warn test, we assume without deciding that Deltamatic had a
duty in this case.

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to prevent a decline in sales; and 2) the defendant purposely minimized the impact of its already

insufficient warnings by providing explicit “anti-warnings,” asserting in its own publication that the

welding fumes were not harmful. See id. at 538–40. In the instant case, there is no evidence of an

intent to gloss over a legitimate health risk, or even evidence of a reason to do so. Plaintiff proffers

no evidence of an inadequate warning or explicit “anti-warning.” Deltamatic employees did not

instruct Plaintiff or any other IAC employees to access the restricted area in the manner in which

Plaintiff accessed the area, nor is there evidence to support the notion that Deltamatic intended to

undermine the clear messages in its posted warnings. What Plaintiff argues is that Deltamatic should

be liable for his failed attempt to imitate the conduct of trained workers, despite clear and adequate

warning signs discouraging such behavior. There is simply no case law to support his position.

Moreover, Plaintiff’s claim fails for lack of proximate cause. Plaintiff admitted to seeing the

posted signs in the area but failed to adhere to the clear instruction not to stand on the carousel. Cf.

Wade II, 179 F. App’x at 355–56. Accordingly, we find that the district court properly granted

summary judgment to Deltamatic on this claim.

B. Defective Design Claim

A manufacturer may be liable for defective design upon a showing that there was a

“foreseeable risk associated with [the] design or formulation” of its product that exceeded the

benefits of such design, Ohio Rev. Code § 2307.75(A)–(C), and that such risk was the direct and

proximate cause of the plaintiff’s injury, State Farm Fire & Gas Co. v. Chrysler Corp., 523 N.E.2d

489, 493 (Ohio 1988). However, a manufacturer cannot be liable if a plaintiff’s harm is caused by

an inherent, unavoidable characteristic of the product that cannot be eliminated without significantly

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compromising its usefulness, Ohio Rev. Code § 2307.75(E), or if at the time of manufacture, there

was not a feasible alternative design or formulation available to prevent plaintiff’s injury, id. §

2307.75(F).

With respect to proximate cause, the inquiry for defective-design claims is distinct from that

of failure-to-warn claims; a failure to follow clear instructions is not always dispositive of lack of

proximate cause for the former. Wade II, 179 F. App’x at 356. While such a finding may decide

some defective-design cases, “[t]he proper result in any given case depends upon the extent to which

the plaintiff can demonstrate that the suggested alternative design would have prevented the injury.”

Id. at 357. Where there is no conceivable way the alternative design would have prevented the

injury, the claim should fail for lack of proximate cause. See id. at 357–58 (discussing Sheets v.

Schmidt & Assoc., Inc., No. C-020726, 2003 WL 21414790 (Ohio Ct. App. June 20, 2003), and

Freas, 573 N.E.2d at 31–32). But where the alternative design almost certainly would have

prevented an injury, the proximate cause inquiry is preserved for the jury. See id. (discussing Knitz

v. Minster Mach. Co., 432 N.E.2d 814, 819 (1982)); cf. Roberts v. RMB Ents., Inc., 967 N.E.2d

1263, 1274–75 (Ohio Ct. App. 2011) (finding that summary judgment should be granted only “where

no facts are alleged [to] justify[] any reasonable inference that the acts or failure of the defendant

constitute[d] the proximate cause of the injury”) (emphasis added).

Notwithstanding, foreseeability is still an essential part of proximate cause. Mussivand v.

David, 544 N.E.2d. 265, 272 (Ohio 1989). The injury “under the surrounding circumstances of the

particular case might, and should have been foreseen or anticipated by the [manufacturer] as likely

to follow [its] negligent act.” See Jeffers v. Olexo, 539 N.E.2d 614, 617 (Ohio 1989) (citation and

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internal quotation marks omitted); see also Gay v. O.F. Mossber & Sons, Inc., No 2008-P-0006,

2009 WL 1743939, at *17 (Ohio Ct. App. June 19, 2009) (finding plaintiff’s evidence “that the

inclusion of one additional safety feature ‘might have’ prevented the accident” was insufficient

where “other safety devices were not utilized and numerous . . . safety rules were not obeyed”)

(emphasis added).

Relying on Wade v. Diamant Boart, Inc., 374 F. Supp. 2d 586, 590 (N.D. Ohio 2005)

(hereinafter “Wade I”), rev’d in part by Wade II, 179 F. App’x at 358, and several failure-to-warn

cases the district court found:

There is no reason to believe that the addition of one more tool to stop the carousel
would have changed Plaintiff’s conscious decision not to use the tools available to
shut down Bay 26. There is no way to design a machine that could guard against a
person aware of its danger but determined to bypass safety features. Even Plaintiff’s
expert, Kramer, who proposed the alternative design of an overhead light curtain,
acknowledged that his proposed design would not have prevented a decision to
bypass existing security features. . . . Because Plaintiff was aware of the danger and
still chose to bypass the safety measures designed to prevent it, the lack of any
additional safety devices suggested by the experts did not proximately cause the
accident.

Broyles v. Kasper Mach. Co., 865 F. Supp. 2d 887, 899 (S.D. Ohio 2012). Plaintiff urges that the

district court committed reversible error in relying on Wade I to decide the proximate-cause issue

for the defective design claim since that case was partially overturned by this Court in Wade II,

specifically for its disposition on this very defective design issue.

To be sure, Wade II held that a failure to follow instructions will not suffice in every case.

179 F. App’x at 356. But the district court’s decision did not rely on Plaintiff’s failure to read the

posted warnings to grant summary judgment on this claim. Rather, the court concluded that one

cannot design a safety feature to prevent an intentional disregard of the safety feature. We would

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not hesitate to support this finding had not Dr. Steve Kramer proffered an alternative design—the

light curtain above the carousel—that almost certainly would have prevented Plaintiff’s injury,

despite Plaintiff’s best efforts. See Wade II, 179 F. App’x at 356. The argument of whether standing

atop the carousel was foreseeable would seem best left to a jury.

But even assuming proximate cause, Plaintiff’s claim nonetheless fails because he assumed

the risks of his injury. See Carrel v. Allied Prods. Corp., 677 N.E.2d 795, 800 (Ohio 1997).

Assumption of the risk is an affirmative defense to a products liability claim. Id.. “[T]o bar recovery

of damages, the defendant must establish that the plaintiff knew of the condition, that the condition

was patently dangerous, and that the plaintiff voluntarily exposed himself or herself to the

condition.” Id. This defense is not available when the plaintiff’s conduct is required in “the normal

performance of his job duties and responsibilities.” See Cremeans v. Wilmar Henderson Mfg. Co.,

566 N.E.2d 1203, 1207–08 (Ohio 1991). But where the plaintiff’s actions are wholly voluntary, or

even contrary to the his employer’s instruction, training, and notice, or common sense of the risks

involved with his actions, the action should be barred. See Knopp v. Dayton Machine Tool Co., No.

03-CO-60, 2004 WL 2913950, at *6–7 (Ohio Ct. App. Dec. 8, 2004) (finding that plaintiff assumed

the risk because he was not expressly required to clean operating machine, and his conduct was

contrary to warnings previously received); Westover v. White Storage & Retrieval Sys., Inc., No.

19845, 2000 WL 1639030, at *3–4 (Ohio Ct. App. Nov. 1, 2000) (finding that plaintiff assumed the

risk because he was not given an instruction to remove guard that he knew could injury him).

Plaintiff was not ordered to stand on top of the carousel to troubleshoot the operating

machine prior to the maintenance worker’s arrival. He was actually provided training to the

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contrary; the lockout procedure required him to turn off the machine before troubleshooting.

Moreover, Plaintiff fully understood the risks of his actions. He instructed employees to steer clear

of the restricted area because of the risk of harm. He even admitted in his deposition that he knew

that standing on the carousel presented a risk of falling, which was the precise result of his actions.

Despite knowing the associated risks, Plaintiff intended that the operation of the machine in Bay 26

continue while he inspected it before maintenance arrived.

Thus, notwithstanding any alleged defective design, Plaintiff assumed the risks of his actions

in bypassing every existing safety precaution and not complying with company procedures to

voluntarily engage in conduct that he admittedly knew could result in his injury. This finding

supports the district court’s grant of summary judgment.

C. Workplace Intentional Tort Claim

An employer may be liable for an intentional tort under Ohio law when “the plaintiff proves

that the employer committed the tortious act with the intent to injure another or with the belief that

the injury was substantially certain to occur.” Ohio Rev. Code § 2745.01(A). “‘[S]ubstantial

certainty’ means that an employer acts with deliberate intent to cause an employee to suffer an injury,

a disease, a condition, or death.” Id. § 2745.01(B). Notwithstanding, there is a rebuttable

presumption of employer intent upon a showing of the “deliberate removal . . . of an equipment

safety guard or deliberate misrepresentation of a toxic or hazardous substance . . . if an injury or an

occupational disease or condition occurs as a direct result.” Id. § 274501(C).

Since the briefing in this case, the Ohio Supreme Court has clarified the law in this area to

Plaintiff’s disadvantage. In order to receive the benefit of the rebuttable presumption that an

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employer acted with deliberate intent to cause the plaintiff’s injury, a plaintiff must establish that the

employer made a “deliberate decision to lift, push aside, take off, or otherwise eliminate [a] guard

from the machine.” Hewitt v. L.E. Myers Co., 981 N.E.2d 795, 802 (Ohio 2012). “[A]n employer’s

failure to train or instruct an employee on a safety procedure does not constitute the deliberate

removal of an equipment safety guard.” Id. at 801. In the absence of deliberate removal, a plaintiff

must establish that the employer acted with specific intent to injure him. Houdek v. ThyssenKrupp

Materials N.A., Inc., No. 2011-1076, ---N.E.2d ---, 2012 WL 6553603, at *6 (Ohio Dec. 6, 2012).

The Houdek court rejected the argument that the intent inquiry was an objective one satisfied

by an employer’s mere knowledge of a hazardous condition. See id. An injury resulting from such

negligence would typically be covered by worker’s compensation, which Plaintiff has already

received. See Zuniga v. Norplas Indus. Inc., 974 N.E.2d 1252, 1256 (Ohio Ct. App. 2012) (stating

that a workers’ compensation claim is the exclusive remedy for workplace injuries, except for those

that go “beyond mere negligence or even wanton behavior”). Indeed, the Houdek court found that

evidence of a defendant employer’s extremely deficient safety procedures was insufficient to

establish a deliberate intent to injure. The court stated:

[A]t most, the evidence show[ed] that th[e] accident may have been avoided had
certain precautions been taken. However, because this evidence [did] not show that
[the defendant] deliberately intended to injure [the plaintiff], pursuant to [Ohio Rev.
Code §] 2745.01, [the defendant] is not liable for damages resulting from an
intentional tort.

Id.

Plaintiff in the case at bar admits that “there is no evidence of a deliberate, subjective intent

by IAC management to injure Plaintiff, nor an express order that a safety mechanism be bypassed

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or safety policy not followed.” (Pl.’s Br. 14–15.) Moreover, Plaintiff failed to make any showing

that IAC deliberately removed a safety feature from the machine prior to his accident. Indeed, all

of the safety features that were in place before Plaintiff’s accident were in place at the time of his

accident. The argument that IAC failed to enforce its own safety procedure not only runs contrary

to Plaintiff’s own testimony about his enforcement role as supervisor, but it also has no bearing on

this analysis. See Hewitt, 981 N.E.2d at 801.

Consequently, the district court properly granted summary judgment to IAC on this claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court granting summary

judgment to Defendants Deltamatic and IAC.

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