Alexander v. Trilogy Health Services, LLC
ORDER THAT: (1) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 22 ) IS DENIED; AND (2) PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT (Doc. 23 ) IS GRANTED. Signed by Judge Timothy S. Black on 10/23/2012. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
TRILOGY HEALTH SERVICES, LLC,
Case No. 1:11-cv-295
Judge Timothy S. Black
ORDER THAT: (1) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Doc. 22) IS DENIED; AND (2) PLAINTIFF’S PARTIAL MOTION FOR
SUMMARY JUDGMENT (Doc. 23) IS GRANTED
This civil action is before the Court on the parties’ cross motions for summary
judgment (Docs. 22, 23) and responsive memoranda (Docs. 25, 26, 27, 28).
Plaintiff Tasha Alexander filed this civil action against Defendant Trilogy Health
Services, alleging claims for: (1) pregnancy discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. and Ohio Revised Code Chapter 4112
(Counts II and III); (2) disability discrimination under the Americans with Disabilities
Act, 42 U.S.C. § 12112 et seq. and Ohio Revised Code Chapter 4112 (Counts IV and V);
and (3) interference under the Family Medical Leave Act, 29 U.S.C. § 2617 (Count I).
Plaintiff moves for partial summary judgment on the disability discrimination and FMLA
claims and Defendant moves for summary judgment on all claims.
Trilogy is a large health services company that operates 68 nursing homes and
other residential care facilities in Ohio, Kentucky, Indiana, Michigan, and Illinois.
Plaintiff Tasha Alexander began working for Trilogy on May 6, 2009, as a licensed
practical nurse (“LPN”) at Trilogy’s Triple Creek facility in Cincinnati, Ohio. (Doc. 21 at
10). Plaintiff received her nursing license in 2009, but had worked in the health care field
as a state tested nurse’s aide for a number of years. (Id. at 10-13). After graduating from
nursing school, Plaintiff found an opportunity with Trilogy at Triple Creek Retirement
Community. (Id. at 24). In her position, Plaintiff reported directly to the Assistant
Director of Nursing at the Triple Creek facility, Cheryl Henderson. (Id. at 30). Melanie
Crozier served as the Director of Nursing at Triple Creek during Plaintiff’s tenure. (Doc.
20 at 8).
At the outset of Plaintiff’s employment with Trilogy, the Company gave her
training on its policies and procedures. (Doc. 21 at 15-23). Plaintiff signed for and
received Trilogy’s Employee Handbook. (Id. at 15-23). The Handbook set forth the
Company’s Attendance Policy which notes that “an employee must notify the supervisory
as far in advance as possible, but not later than (4) fours before the scheduled starting
time if the employee expects to be late or absent.” (Id., Ex. 2 at 19). Trilogy’s
Disciplinary Action Policy in the Employee Handbook states that upon a fourth
disciplinary offense, an employee would be terminated “as deemed appropriate in the sole
discretion of the Company.” (Id. at 16). The Handbook also noted that to initiate FMLA
leave, employees were required to obtain information from its Human Resources
personnel. (Id. at 43). Trilogy also posted information regarding FMLA leave in posters
in the employee break room at its Triple Creek location. (Doc. 19 at 12).
On January 25, 2010, Plaintiff received an initial Employee Counseling Record
Form (“Employee Counseling”) because she had “not maintained [an] acceptable
attendance record” and had accumulated thirteen occurrences, seven for being late to
work and six for being absent from work. (Doc. 21 at 24, 31, Ex. 19).
On April 24, 2010, Cheryl Henderson, Triple Creek’s Assistant Director of Health
Services, wrote: “Tasha is a wonderful nurse, loves her residents, and her team. Tasha is
a team player. . . . She follows direction [and] pays attention to details. Tasha leads by
example [and] always encourages her co-workers. Tasha is a very well rounded nurse,
that truly lives the Trilogy culture. She is a devoted staff member.” (Doc. 18, Ex. 1).
Plaintiff substantially improved her attendance in the Spring of 2010. (Id. at 12).
Pursuant to company policy, her attendance record was wiped clean on her one-year
anniversary with Trilogy, May 6, 2010. (Doc. 18 at 41; Doc. 17 at 25).
Plaintiff learned that she was pregnant in or about May 2010, and informed
Trilogy soon after. (Doc. 23, Ex. 1 at ¶ 2; Doc. 18 at 21-22). At about the same time,
another nurse at Triple Creek, Stephanie Ware, also became pregnant. (Doc. 18 at 23).
Ms. Ware and Plaintiff shared a position, performing the same job on different days. (Id.
at 22). Plaintiff and Ms. Ware each worked the night shift as the sole nurse on two wings
at Triple Creek. They were responsible for the care of approximately 30 residents – often
without any support from nursing aides. (Doc. 24 at 11; Doc. 23, Ex. 1 at ¶ 3). Both
were scheduled to take maternity leave at the same time. (Doc. 24 at 16-17).
In June 2010, Trilogy hired a new Director of Health Services at Triple Creek,
Melanie Crozier. (Doc. 20 at 8). The Director of Health Services was responsible for
overseeing all aspects of the nursing department, including personnel issues, clinical
issues, family concerns, and regulatory compliance. (Id. at 10). Shortly after Ms. Crozier
started at Triple Creek, Plaintiff was subjected to a number of disciplinary actions,
including actions dated July 8, 2010, August 5, 2010, and August 18, 2010. (Id. at 26, 28,
and 54). The ultimate result of these three warnings was that Plaintiff was placed on a
final written warning. (Id. at 42; 55-56).
Specifically, on July 8, 2010, Plaintiff received an Employee Counseling for giving
a resident the wrong mediation. (Doc. 21 at 33-34, Ex. 20). In that instance, Plaintiff left
the incorrect medicine at the bedside of a resident. (Id., Ex. 20). The resident realized
Plaintiff’s mistake before taking the medication. (Id.) In completing the Employee
Counseling for this incident, Ms. Henderson noted that it was a “Written Warning due to
severity.” (Doc. 18). In both the January and July 2010 disciplinary actions, Trilogy
indicated to Plaintiff that further violation of work rules/policies could result in her
termination. (Doc. 21 at 34).
On August 5, 2010, Plaintiff received another Employee Counseling when she
failed to give a resident pain medication, after the resident had requested it two times.
(Doc. 21 at 34, Ex. 21). In that Employee Counseling, Plaintiff acknowledged her
mistake and handwrote on the Counseling that she would show improvement: “Pain
medication will be given in a timely manner.” (Id.) On August 18, 2010, Trilogy
initiated another Employee Counseling for Plaintiff taking several hours to respond to a
resident complaining of chest pain. (Id. at 35, Ex. 22). Crozier indicated that the August
18, 2010 Counseling was Plaintiff’s: “Final Written Warning.” (Id.) In response,
Plaintiff told Crozier that she could not handle her workload. (Id.) Crozier agreed to
move Plaintiff to a different hall and shift. (Id.) In the two August Employee
Counselings, Trilogy continued to note that further violation of the rules could result in
termination. (Doc. 21 at 35).
August 23, 2010
On August 23, 2010, Plaintiff was scheduled to work beginning at 7:00 p.m.
(Doc. 21 at 36). She was also scheduled to attend an in-service training meeting that
afternoon, which was set to begin at 2:30 p.m. (Id.) Although Plaintiff had been feeling
ill that day, she drove to the facility for the training meeting. (Id. at 36-37). She clocked
in at 2:33 p.m., but the meeting had already started and she was excluded from it. (Doc.
23, Ex. 2; Doc. 21 at 36). She then went to speak with Cheryl Henderson, the Assistant
Director of Health Services, about her shift that evening. She informed Ms. Henderson
that she was feeling ill, and that her son was also sick, so she would not be able to work
her shift that evening, which was scheduled to begin at 7:00 p.m. (Doc. 21 at 36-37).
Ms. Henderson noted that Plaintiff appeared to be preeclamptic that day. (Doc. 23, Ex. 1
at ¶ 4; Doc. 18 at 62). After speaking with Ms. Henderson, Plaintiff clocked out at 2:55
p.m. (Doc. 23, Ex. 2)
August 24, 2010
The next day, August 24, 2010, Plaintiff had a regularly-scheduled examination
with her obstetrician at 4:00 p.m. (Doc. 21 at 38). She had been feeling better than the
day before and planned on working her regularly-scheduled shift that evening at 7:00 p.m.
(Id. at 39). During the examination, testing revealed that Plaintiff had an elevated protein
level in her urine and that her blood pressure was 180/100, which was dangerously high.
(Doc. 21 at 39; Doc. 18 at 67; Doc. 23, Ex. 3 at ¶ 3). Based on the test results, Plaintiff’s
physician instructed her not to report to work that evening, placed her on medication, and
sent her for additional testing. (Doc. 21 at 39-40).
Before she underwent the additional testing, Plaintiff called Ms. Henderson to
inform her that her physician had instructed her not to work that evening due to high
blood pressure. (Doc. 21 at 40; Doc. 18 at 64-65). Plaintiff called off at 4:50, outside the
four hour requirement, so Henderson and Crozier noted the call-off as a violation of the
rule. (Doc. 21 at 41, Doc. 20 at 50). Plaintiff’s physician prepared a work excuse, which
an office assistant sent to Triple Creek via facsimile that evening, stating that Plaintiff
could not work “due to elevated BP in pregnancy.” (Doc. 19, Ex. 31; Doc. 23, Ex. 5 at
August 25, 2010
The following day, Plaintiff was scheduled for a slate of testing both with her
obstetrician and with an independent testing facility. Plaintiff placed a call to Ms.
Dressler, Triple Creek’s AP Payroll Coordinator, to request the necessary paperwork to
take FMLA leave. (Doc. 21 at 44). Ms. Dressler informed Plaintiff that she needed to
obtain the requisite FMLA paperwork from Trilogy’s third-party FMLA administrator,
Matrix. (Id.) Plaintiff maintains that Ms. Dressler informed her that she needed to visit
Matrix’s website to obtain the paperwork.1 (Id.) Plaintiff visited the website, but was
unable to locate the proper paperwork. (Id. at 44-45). The proper method for contacting
Matrix was through a telephone number, not a website, and no FMLA paperwork was
available on Matrix’s website. (Doc. 17 at 9).
Trilogy’s handbook contained an FMLA policy requiring its employees to provide
written notice of their need for a leave of absence, but the policy contained in the
handbook was not the policy in effect at that time. (Doc. 17 at 21). Although the policy
in the handbook directs employees to contact the facility’s business office to obtain the
necessary FMLA request form, Trilogy had changed its policy when it retained a thirdparty FMLA administrator. Trilogy did not, however, update its employee handbook or
provide any other notice to its employees of the new procedure for requesting FMLA
leave through Matrix. (Doc. 17 at 23; Doc. 19 at 12).
Ms. Dressler testified that she has no independent recollection of her conversation with
Plaintiff on August 24, 2010. (Doc. 17 at 29).
August 26, 2010
On August 26, 2010, Ms. Crozier, Triple Creek’s Director of Health Services, and
Ms. Henderson, Triple Creek’s Assistant Director of Health Services, called Plaintiff to
discuss her absence on August 24, 2010. (Doc. 21 at 46). Ms. Crozier informed Plaintiff
that her failure to give four hours of notice for her absence on August 24, 2010,
constituted a voluntary resignation of her position. (Doc. 21 at 46; Doc. 20 at 62; Doc.
18, Ex. 10). Ms. Crozier then asked Plaintiff to come into the facility to discuss the
matter, but Plaintiff declined to do so because her obstetrician did not clear her to return
to work until the following day. (Doc. 23, Ex. 1 at ¶ 5). According to Ms. Crozier,
Plaintiff stated: “there’s no point [to coming in to the facility] because the decision’s
already been made.” (Doc. 20 at 46).
Ms. Crozier testified that she told Plaintiff she was taking her off the schedule and
would suspend her pending an investigation of her failure to provide more than four hours
of notice of her inability to work on August 24, 2010. (Doc. 20 at 41, 46). Trilogy
suspended Plaintiff and initiated an investigation. (Doc. 21 at 50; Doc. 20 at 63). Trilogy
did not terminate Plaintiff at that point, nor did it consider her to have resigned by
refusing to come into the facility. (Doc. 20 at 63). That same day, Plaintiff applied to the
Ohio Department of Job and Family Services to receive unemployment compensation
benefits. (Doc. 21 at 61).
Ms. Crozier and Plaintiff agree that Plaintiff stated during that August 26, 2010,
telephone call that she was protected under the Pregnancy Discrimination Act and that she
was taking a leave of absence under the FMLA. (Doc 20 at 52-53).
Following her telephone conversation with Ms. Crozier on August 26, Plaintiff
submitted a plea for assistance to Trilogy’s compliance department via email. She wrote
Hello. My name is Tasha Ott and I am a LPN at Triple Creek
Retirement Community. On 8-23-10 & 8-24-10 I was forced to
call off of my shift due to a serious medical condition. My
physician actually removed me from duty until 8-27-10. I am
blessed to be five months pregnant but unfortunately I have
developed extremely high blood pressure. My blood pressure on
the days in question was stroke level at 180/100. As such my
obstetrician believed that my life as well as the baby’s were in
danger enough to remove me from duty to start me on medication.
Today I returned to my doctor and my blood pressure continues to
be high and my lab work came back confirming kidney damage.
Today, 8-26-10, I was also fired for not giving 4 hours notice when
my physician removed me from duty. I explained that since my
appointment was not until 4 p.m. I could not predict four hours in
advance that my physician would remove me from duty. Melanie,
our DHS, replied that was basically to [sic] bad because the policy
states that I have to give four hours notice. I asked her if all
employees were held to this practice and she didn’t know the answer
to that. I then asked her about the fact that I had a physicians [sic]
order due to a life threatening medical condition relating to my
pregnancy, she replied it didn’t matter. I then told her that I had
read the Pregnancy Discrimination Act of 1978 and that this was a
violation of my rights. Especially considering that I know that the
other employees of the facility are not held to this policy. Therefore
it is a direct violation of Title VII of the civil rights act of 1964. I
am able to provide documentation from my physician regarding my
health and unavoidability of my call off. I have been with this
company since May of 2009. I could never have imagined that I
would be punished for having a child with my husband and
(Doc. 20, Ex. 17). Trilogy received this email on August 26, 2010, and subsequently
initiated an investigation. (Doc. 19 at 19).
Linda Lawrence, a member of Trilogy’s employer relations support team,
conducted the investigation for Trilogy. (Doc. 19 at 18). At the outset of her
investigation, Ms. Lawrence twice remarked that she had concerns that Plaintiff was
suspended due to a pregnancy-related absence. On August 26, 2010, Ms. Lawrence wrote
in an email to one of Trilogy’s divisional vice presidents: “I have concerns that she was
pregnant.” (Doc. 19, Ex. 29). And the following day, Ms. Lawrence wrote again to the
same individual: “Neither of us were aware of the high blood pressure pregnancy until
after the fact. Upon investigation if this is indeed true, we may need to bring her back.”
(Id., Ex. 30). It is undisputed, however, that Ms. Henderson, Triple Creek’s Assistant
Director of Nursing, was aware of the high blood pressure pregnancy at the time.
On or about September 3, 2010, Ms. Lawrence called Plaintiff to request a
physician’s note explaining her absence. (Doc. 19 at 16-17). Ms. Lawrence received that
note on September 7, 2010, via facsimile transmission directly from Plaintiff’s physician.
(Id. at 17). It was the same note the physician’s office had sent to Triple Creek on August
24, 2010, stating that Plaintiff was under care from August 23, 2010 to August 27, 2010
“due to elevated BP in pregnancy.” (Doc. 23, Ex. 4).
According to Ms. Lawrence, the remainder of her investigation consisted of a
discussion with Melanie Crozier. (Doc. 19 at 18-19). Trilogy never again contacted
Plaintiff to obtain her version of events, to request a more complete physician’s statement,
or to lift her suspension. (Id. at 18, 33). Ms. Crozier acknowledged that an employee’s
only obligation once suspended is to contact Trilogy’s corporate office, which Plaintiff
did immediately. (Doc. 21 at 47). However, she noted that on August 23 and 24, 2010,
Plaintiff called off two days in a row and when she put Plaintiff on suspension pending an
investigation, Plaintiff replied: “don’t bother, the end result will be the same.” (Doc. 20,
Ultimately, Trilogy concluded its investigation and terminated Plaintiff effective
October 26, 2010. (Doc. 17, Ex. 25). Trilogy considered Plaintiff to have abandoned her
job because it never received FMLA paperwork. (Doc. 19 at 33). On October 22, 2010,
Plaintiff filed a Charge with the Equal Employment Opportunity Commission (“EEOC”)
which was dismissed by the EEOC on March 31, 2011. On May 6, 2011 Plaintiff filed
the present lawsuit.
STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
fo law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of showing, by
identifying specific evidence in the record, “including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials,” that there exists no genuine dispute of material fact. Fed. R. Civ. P.
56(c)(1)(A); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the movant meets
its burden, it is then the opposing party’s duty to “set forth specific facts showing there is
a genuine [dispute] for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
see also Fed. R. Civ. P. 56(a).
The requirement that the dispute be “genuine” is emphasized. “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson, 477 U.S. at 247-48. Therefore, “[t]he mere existence of a scintilla of evidence
in support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.
Furthermore, the non-moving party may not merely rely on its pleadings, but must
“produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
“Weighing of the evidence or making credibility determinations are prohibited at
summary judgment - rather, all facts must be viewed in the light most favorable to the
non-moving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007). A court’s obligation at the summary judgment stage is to determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
Pregnancy Discrimination (Counts II and III)
Plaintiff alleges that she was discriminated against on the basis of her pregnancy in
violation of state and federal law.2
The Pregnancy Discrimination Act (“PDA”) amended Title VII to specify that sex
discrimination under Title VII includes discrimination on the basis of pregnancy. 42
U.S.C. § 2000e(k). By incorporating the PDA into Title VII, Congress manifested its
belief that discrimination based on pregnancy constitutes discrimination based upon sex.
The PDA requires that “one affected by pregnancy, childbirth or related medical
conditions shall be treated the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or inability to work.” 42 U.S.C.
§ 2000e(k). As the Sixth Circuit has held, “[w]omen who are affected by pregnancy,
childbirth or related medical conditions are required to be treated the same, for all
employment purposes, as other persons not so affected but who are similar in their ability
or inability to work.” Tysinger v. Police Dep’t of the City of Zanesville, 463 F.3d 569,
572 (6th Cir. 2006). “[T]he Pregnancy Discrimination Act does not require preferential
treatment for pregnant employees. Rather, it mandates that employers treat pregnant
employees the same as nonpregnant employees who are similarly situated with respect to
their ability to work.” Id. at 575.
Claims brought under Ohio Rev. Code 4112 are analyzed identically to claims brought
under Title VII. Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 471-71 (6th Cir.
Prima facie case
In order to establish a prima facie case of pregnancy discrimination, Plaintiff must
show: (1) that she was pregnant; (2) that she was qualified for her job; (3) that she was
subjected to an adverse employment action; and (4) that there is a causal connection
between her pregnancy and the adverse employment action. Tysinger, 463 F.3d at 573.3
In the absence of direct evidence, a plaintiff may also satisfy the fourth element by
showing that she was treated less favorably than other employees similar in their ability or
inability to work. Id. at 573-74. “[T]o satisfy the fourth element, [Plaintiff] is required to
demonstrate that another employee who was similar in her or his ability or inability to
work received the benefits denied to her.” Id. Defendant only challenges the fourth
element – that there is a nexus between Plaintiff’s pregnancy and the adverse employment
If plaintiff establishes a prima facie case of discrimination, the burden of
production shifts to the defendant to articulate a legitimate non-discriminatory reason for
its decision. Reeves v. Swift Transp. Co., 446 F.3d 637, 641 (6th Cir. 2006). Plaintiff
then has the burden of showing that the articulated reason is in reality a pretext for illegal
“The prima facie requirement for making a Title VII claim ‘is not onerous,’ and poses
‘a burden easily met.’” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000).
Temporal proximity between an employer’s learning of an employee’s pregnancy
and an adverse employment action taken with respect to that employee, is sufficient to
support an inference of pregnancy discrimination. Asmo v. Keane, Inc., 471 F.3d 588,
594 (6th Cir. 2006). However, “proximity alone may not survive summary judgment . . .
nor does it necessarily imply causation.” Chandler v. Specialty Tires of Am., 283 F.3d
818, 826 (6th Cir. 2002).
Plaintiff’s annual review, completed in April 2010, one month before Plaintiff
informed Defendant she was pregnant, stated: “Tasha is a wonderful nurse, loves her
residents, and her team. Tasha is a team player . . . She follows direction [and] pays
attention to details. Tasha leads by example [and] always encourages her co-workers.
Tasha is a very well rounded nurse, that truly lives the Trilogy culture. She is a devoted
staff member.” (Doc. 18, Ex. 1). Plaintiff informed Trilogy that she was pregnant one
month later in May 2010, and she was suspended in August 2010 – approximately three
months later. Additionally, Plaintiff was the subject of three performance based
disciplinary actions in the span of one month (July 8, 2010, August 5, 2010, and August
18, 2010). Prior to the first disciplinary action, Plaintiff had only received one
disciplinary action for attendance, and it had been expunged from her record.
Accordingly, the Court finds that these facts support an inference of pregnancy
discrimination, that when considered in the aggregate with all other evidence (see infra),
supports a prima facie case for pregnancy discrimination.
Plaintiff also alleges that Defendant made negative comments about her pregnancy
and related medical conditions.
Melanie Crozier, Triple Creek’s Director of Health Services, allegedly commented
during a meeting that she was “concerned’ that both Plaintiff and another nurse,
Stephanie Ware, were both pregnant and due to take maternity leave at approximately the
same time. (Doc. 26, Ex. N at ¶ 3). Ms. Ware and Plaintiff shared a position, performing
the same job on different days. Ms. Crozier allegedly expressed concern about not having
a sufficient number of nurses when both Plaintiff and Ms. Ware were on maternity leave.
(Id.) Ms. Ware noted that based on her experience, the facility would have faced a
staffing problem if both she and Plaintiff were on maternity leave at the same time. (Doc.
24 at 16).
Ms. Ware also testified that Cheryl Henderson, Triple Creek’s Assistant Director
of Health Services, made numerous negative comments about Plaintiff’s pregnancy and
related absences. Ms. Henderson allegedly commented that she did not believe Plaintiff’s
absences were actually due to her pregnancy-related illness, but rather that Plaintiff was
simply truant and using her pregnancy as an excuse. (Doc. 24 at 12-13). Ms. Ware noted
that Ms. Henderson told her that Plaintiff would not be employed with Triple Creek much
longer. (Id. at 13). Ms. Henderson also allegedly told Ms. Ware that she had been
encouraged to terminate Plaintiff, and that as a result, management was “watching her
closely” and “everything she was doing was going on to record because they had to have
the paper trail in order to get rid of her.” (Id. at 14).4 Ms. Ware acknowledged:
So was your – Every time you heard Cheryl or other management
discuss getting rid of Tasha, it was always in conjunction with them
discussing her pregnancy?
(Id. at 14-15).
Defendant maintains that even if Henderson’s alleged comments were true, they
merely suggest Henderson had contemplated staffing numbers. Moreover, if Henderson’s
“concern” related to low staffing on the night shift, she would not be motivated to
suspend or terminate Plaintiff, because she would need the help in staffing.
Taken in the light most favorable to the nonmoving party, the Court finds that
these comments constitute evidence of a motivation to discipline Plaintiff because of her
With respect to Ware’s comments regarding Triple Creek management creating a paper
trail to terminate Plaintiff, she also testified that the Company took this action generally for other
employees as well:
She [Ms. Henderson] had said it about several other people also, but just in
general that, you know, to fire someone we need to have a paper trail.
So when she told you, she told you that when other people were terminated, they
also needed a paper trail to do those terminations as well?
(Doc. 24 at 24).
Pattern of terminating pregnant employees
Evidence that other persons in the same protected class also suffered adverse
employment actions is relevant to demonstrate a discriminatory animus. Geiger v. Pfizer,
Inc., No. 2:10cv106, 2012 U.S. Dist. LEXIS 11599, at *8-9 (S.D. Ohio Apr. 15, 2009).
Trilogy also terminated Ms. Ware, who was pregnant. Like Plaintiff, Ms. Ware found
herself subject to a number of disciplinary actions in rapid succession. (Doc. 24 at 19).
Ms. Ware was also terminated by Ms. Crozier, the same person who terminated Plaintiff.
(Doc. 20 at 90-91). Trilogy terminated two pregnant employees in two months.
Defendant argues that Stephanie Ware’s termination does not evidence a
motivation to terminate Plaintiff based on her pregnancy. “‘[M]e too’ evidence is
relatively unwelcome in this Circuit.” Geiger, 2009 U.S. Dist. LEXIS 34982, at *23. See
also Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156-57 (6th Cir. 1988) (finding that a
plaintiff generally must show that the same actors, reasons, and other circumstances were
involved in order for such evidence to be admissible). Additionally, Defendant maintains
that Lawrence terminated Plaintiff from its system, and not Ware, so the same actors were
not involved. Moreover, Defendant claims that the circumstances for Ware’s termination
are significantly different from Plaintiff’s. Crozier allegedly terminated Ware after she
and Ware had an argument about Ware’s alleged bad attitude and Ware threw a
disciplinary action (piece of paper) at her. (Doc. 20 at 90, 96; Doc. 24 at 20).
Still, based on the circumstances and temporal proximity, reasonable minds could
conclude that Trilogy terminated Ms. Ware and Plaintiff because of their pregnancies.
Similarly situated employees
Additionally, Plaintiff argues that four “similarly-situated” non-pregnant
employees were treated more favorably than her: Catherine Reed, Trisha Detherage, Sally
Otis, and Stacy Moonitz. Defendant’s records establish policy violations by these
employees without discipline:
Trilogy employee Catherine Reed called at 10:50 p.m. to notify the
company that she would be tardy for an 11:00 p.m. shift on February 17,
2017. She was not disciplined. (Doc. 23, Ex. B-4).
Trilogy employee Trisha Detherage called at 7:10 p.m. to notify the
company that she was unable to work an 11:00 p.m. shift on December 7,
2010. She was not disciplined. (Id.)
Trilogy employee Sally Otis called at 10:55 p.m. to notify the company that
she would be tardy for an 11:00 p.m. shift on February 17, 2010. She was
not disciplined. (Id.)
Ms. Ware, who was responsible for taking calls from Trilogy employees who
called in absent or tardy, testified that employees often called off with less than four hours
of notice. (Doc. 24 at 7, 10). Ms. Ware testified that to her knowledge, no employees
were even disciplined for not calling in four hours in advance of a shift if they intended to
be late or absent. (Id. at 10). Plaintiff testified that she fielded a call from an employee,
Stacy Moonitz, who called off of work less than one hour before her shift was to begin
due to a headache, but did not receive any discipline. (Doc. 21 at 54). In fact, Defendant
admitted that it has never disciplined any LPN at the Triple Creek facility for violating
this rule. (Doc. 23, Ex. B-10).
Defendant maintains that Plaintiff was “treated the same as all non-pregnant
employees who violated Trilogy’s policies with regard to resident care.” (Doc. 22 at 17).
Specifically, Defendant claims that Reed and Otis’ circumstances are not materially
similar to Plaintiff because their call-ins related to being late for the shift, not calling off
entirely. Rutherford v. Britthaven, Inc., No. 10cv5783, 2011 U.S. App. LEXIS 25806, at
*10-11 (6th Cir. 2011) (“The individuals with whom the plaintiff seeks to compare [her]
treatment must have dealt with the same supervisor, have been subject to the same
standards and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer’s treatment
of them for it.”). Moreover, Defendant argues that Plaintiff set forth no evidence that the
identified employees were similarly situated in all relevant aspects. Specifically, there is
no evidence that the employees had limitations on their ability to work, like Plaintiff.
Again, considering all of these facts in the aggregate, Plaintiff has proffered
sufficient facts to support a causal connection between her pregnancy and the adverse
employment action. Accordingly, Plaintiff has alleged a prima facie case of pregnancy
Legitimate non-discriminatory reason for termination
Once plaintiff articulates a prima facie case, “[t]he burden that shifts to the
defendant . . . to rebut the presumption of discrimination by producing evidence that the
plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory
reason . . . To accomplish this, the defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for the plaintiff’s rejection.” Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Defendant maintains that Plaintiff was terminated because she provided poor care
to the residents of Triple Creek, had multiple attendance violations, and after August 26,
2010, never spoke to anyone at Triple Creek again, applying for unemployment benefits
that same day. (Doc. 27 at 1).5 Additionally, Defendant alleges that Crozier suspended
Plaintiff pending an investigation, yet Plaintiff told her not to “bother” and did not meet
with Crozier. Defendant considered Plaintiff to have abandoned her position, so it
terminated her in its system on October 26, 2010 for the exclusive reason: “Job
Accordingly, the Court finds that Defendant has proffered a legitimate
nondiscriminatory reason for Plaintiff’s termination.
A plaintiff can establish pretext in three ways – by showing that the proffered
justification: (1) had no basis in fact; (2) did not actually motivate the decision, e.g., was
not the actual reason; or (3) was insufficient to warrant the decision. Upshaw v. Ford
Motor Co., 576 F.3d 576, 586 (6th Cir. 2009).
However, Plaintiff did speak to Linda Lawrence, in Human Resources at Trilogy’s
home office, after August 26, 2010. (See Doc. 27 at 5).
First, Plaintiff argues that Defendant’s proffered legitimate, non-discriminatory
justification for suspending her is not based in fact. On the evidence, reasonable minds
could so conclude.
Defendant proffered as its sole legitimate non-discriminatory justification for
suspending Plaintiff: “Plaintiff’s poor performance in violation of Trilogy’s care and
attendance standards was a legitimate, non-discriminatory reason for Crozier’s suspension
of Plaintiff (while she initiated an investigation).” (Doc. 22 at 25). However, Defendant
did not cite to any admissible evidence for the proposition that it actually took any
adverse action against Plaintiff for those reasons. Specifically, Ms. Crozier testified that
her decision to suspend Plaintiff was motivated by Plaintiff’s failure to provide four hours
of notice for her absence on August 24, 2010 – although she indisputably informed Ms.
Henderson that she could not report to work because her blood pressure was elevated and
her physician had instructed her not to work that evening. (Doc. 20 at 24). In fact, Ms.
Henderson, Triple Creek’s Assistant Director of Health Services, admitted that being
diagnosed with high blood pressure was an excusable reason for an employee to call off
of work less than four hours before the scheduled beginning of a shift. (Doc. 18 at 7677).6 Additionally, Ms. Cozier testified that, Plaintiff had not accumulated enough
occurrences under Defendant’s attendance policy to warrant any discipline, much less
suspension or termination as of August 26, 2010, the day she was suspended. (Id. at 686
Defendant’s attendance policy states that the rule may not apply if a valid excuse is
provided. (Doc. 20, Ex. 20).
Second, Plaintiff has identified evidence that Defendant was motivated by other
factors when construed in her favor – specifically, the negative comments made about
Plaintiff’s pregnancy and related health conditions.
Therefore, considering all of the facts in the light most favorable to Plaintiff, she
has alleged sufficient facts to maintain a claim for pregnancy discrimination. However,
disputed facts still remain. Accordingly, Defendant’s motion for summary judgment on
the pregnancy discrimination claims is denied.
Disability Discrimination (Counts IV and V)
Next, Plaintiff alleges that she was subjected to an adverse employment action
when Defendant denied her “a reasonable accommodation” of a short period of leave for
her “chronic hypertension,” in violation of the ADA8 and Ohio’s anti-discrimination
statute.9 (Doc. 1 at ¶¶ 39, 41, 42, 46, 48, 49).
Defendant argues that the pretext argument fails because it did not terminate Plaintiff
for her performance and attendance problems – it terminated Plaintiff exclusively for her “Job
Abandonment.” However, that does not resolve the issue with respect to Plaintiff’s suspension –
there is no legitimate non-discriminatory reason for Defendant’s adverse employment action
“Courts are to conduct an individualized inquiry and under appropriate circumstances, a
medical leave of absence can constitute a reasonable accommodation.” Cehrs v. Ne. Ohio
Alzheimer’s Research Ctr., 155 F.3d 775, 782-83 (6th Cir. 1998)
Federal and state disability discrimination claims are subject to the same evidentiary
standards and may be evaluated concurrently. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195,
201 (6th Cir. 2010).
The ADA defines “discrimination” to include “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).10 The McDonnell-Douglas
burden-shifting analysis does not apply to Plaintiff’s disability claims because “claims
premised upon an employer’s failure to offer a reasonable accommodation necessarily
involve direct evidence (the failure to accommodate) of discrimination.” Kleiber v.
Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). In such cases, the
employer’s intent is not determinative. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1182 (6th Cir. 1996). “When an ADA plaintiff premises [her] claim upon direct
evidence, we jettison the familiar McDonnell Douglas burden-shifting framework
applicable in indirect-evidence cases . . . and we analyze the claim under the following
The plaintiff bears the burden of establishing that he or she is disabled.
The plaintiff bears the burden of establishing that he or she was ‘otherwise
qualified’ for the position despite his or her disability: (a) without
accommodation from the employer; (b) with an alleged ‘essential’ job
requirement eliminated; or (c) with a proposed reasonable accommodation.
The ADA defines “disability” as “a physical or mental impairment that substantially
limits one or more major life activities of such individual[.]” 42 U.S.C. § 12102(1). It is
undisputed that Plaintiff suffered from preeclampsia. (Doc. 23, Ex. D at ¶ 3). Preeclampsia is
a physiological disorder that affects the cardiovascular and urinary systems. 29 C.F.R.
§ 1630.02(h)(1). Plaintiff must also demonstrate that her impairment substantially limited one of
her major life activities or the operation of a major bodily function. 42 U.S.C. § 12102(2).
Plaintiff’s preeclampsia substantially limited the operation of her circulatory and urinary
functions because it caused her blood pressure to reach a dangerous 180/100 and protein levels in
her kidneys to rise to dangerous levels as well. (Doc. 23, Ex. D at ¶ 4).
The employer will bear the burden of proving that a challenged job criterion
is essential, and therefore a business necessity, or that a proposed
accommodation will impose an undue hardship under the employer.”
Kleiber, 485 F.3d 869.
Defendant does not challenge that Plaintiff suffered from a disability or that she
was otherwise qualified for her position as a nurse at Triple Creek. Rather, Defendant
maintains that it had no obligation to provide Plaintiff with a reasonable accommodation,
because Plaintiff simply never asked for one. Plaintiff has the initial burden to request a
reasonable accommodation. Tubbs v. Formica Corp., 107 F. Appx. 485, 488-89 (6th Cir.
2004) (an employee’s failure to accommodate claim must be dismissed if the employee
fails to identify and request such reasonable accommodations).
Plaintiff alleges that she required a brief leave of absence to stabilize her
pregnancy-related hypertension. Plaintiff maintains that she requested a three-day leave
of absence as an accommodation when she called Cheryl Henderson on August 24, 2010,
to inform her that she could not work that evening due to pregnancy-related hypertension.
Plaintiff maintains that she told Ms. Henderson: “my blood pressure is extremely high and
my doctor wants me off of work tonight. She’s going to release me back on the 27 th .”
(Doc. 21 at 39-40). Ms. Henderson describes the conversation as follows:
Okay. Do you recall receiving a call from Tasha from her doctor’s office
saying that she couldn’t work one evening cause her blood pressure was too
I remember Tasha calling me, not her doctor’s office calling me, or where
she was, I couldn’t tell you. But she told me her blood pressure was up, and
they had taken her off. And I said, okay, feel better; and marked it down.
(Doc. 18 at 64).
Did she tell you that she – her doctor had advised her not to work for a few
days at that time?
(Id. at 65). Accordingly, Ms. Henderson’s testimony does not support Plaintiff’s
allegation that she requested “a short, three-day leave of absence as an accommodation.”
However, in addition to requesting an accommodation from Ms. Henderson,
Plaintiff claims that a physician’s note was faxed to Trilogy on August 24, 2010, stating
that she was unable to work from August 23, 2010 until August 27, 2010, “due to
elevated BP in pregnancy.” (Doc. 23, Ex. E at ¶ 3). A request for accommodation from a
physician triggers an employer’s obligation to provide an accommodation. Trepeka v. Bd.
of Educ., 28 Fed. Appx. 455, 459 (6th Cir. 2002). Plaintiff also sent an email to
Defendant’s compliance department on August 26, 2010, which stated: “On 8-23-10 & 824-10 I was forced to call off of my shift due to a serious medical condition. My
physician actually removed me from duty until 8-27-10.” (Doc. 23, Ex. G).
An employee does not need to invoke any specific words or use any “talismanic
language” in order to properly request an accommodation. Id. Nor does the request need
to be in writing. Taylor v. Phoenixville School Dist., 184 F.3d 296, 313 (3rd Cir 1999).
“What matters under the ADA are not formalisms about the manner of the request, but
whether the employee . . . provides the employer with enough information that, under the
circumstances, the employer can be fairly said to know of both the disability and desire
for an accommodation.” White v. Honda of Am. Mfg., Inc., 191 F. Supp.2d 933, 950
(S.D. Ohio 2002).
It is clear that Defendant knew Plaintiff was suffering from a disability.11 It is also
clear that Defendant knew Plaintiff was precluded from working due to this disability
until August 27, 2010. (Doc. 23, Ex. G). Accordingly, Plaintiff was subjected to an
adverse employment action (suspension or termination) when Defendant denied her a
“reasonable accommodation” (short period of leave) for her preeclampsia in violation of
the ADA. These facts are not disputed.
Therefore, Plaintiff’s motion for summary judgment on the disability
discrimination claims are granted.
FMLA Interference (Count I)
To establish a prima facie claim for FMLA interference, Plaintiff must show:
(1) she is an eligible employee; (2) the defendant is an employer; (3) the employee was
entitled to leave under the FMLA; (4) the employee gave the employer notice of her
For example: (1) Plaintiff informed her supervisor, Cheryl Henderson, that she was
pregnant in the summer of 2010 (Doc. 18 at 21); (2) Plaintiff discussed her high blood pressure
with her supervisor on multiple occasions (Id. at 63); Plaintiff had previously missed work to
undergo treatment for her high blood pressure (Id. at 13); (3) Ms. Henderson, a former OB/GYN
nurse, independently formed the opinion that Plaintiff was suffering from preeclampsia based on
her appearance and her reported high blood pressure (Id. at 63); and (4) Ms. Henderson admitted
that Plaintiff specifically told her that she could not work on August 24, 2010 because “her blood
pressure was up, and [her doctor] had taken her off of work.” (Id. at 64).
intention to take leave; and (5) the employer denied the employee FMLA benefits to
which she was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.
2003). Defendant challenges the third and fifth elements of Plaintiff’s claim.
Whether Plaintiff was entitled to leave
An expecting mother is entitled to FMLA leave for incapacity due to pregnancy.
29 C.F.R. § 825.120(a)(4). The FMLA defines “incapacity” as the “inability to work,
attend school or perform other regular daily activities due to the serious heath condition,
treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.113(b).
Defendant argues that Plaintiff was not entitled to FMLA leave because she “never
applied for it.” (Doc. 22 at 28). See, e.g., Brady v. Potter, 476 F.Supp.2d 745, 758 (N.E.
Ohio 2007) (the employee could not state a claim for FMLA interference because she
failed to complete her certification forms despite being provided with a reasonable period
of time to do so).
However, the FMLA does not require that employees “apply” for FMLA leave, it
only requires that employees provide employers with “sufficient information for an
employer to reasonably determine whether the FMLA may apply to the leave request.”
29 C.F.R. § 825.303(b). The notice requirement is a “relatively easy burden to satisfy.”
Edwards v. Dialysis Clinic, Inc., 423 F. Supp.2d 789, 795 (S.D. Ohio 2006). Plaintiff
provided sufficient notice when she told Ms. Henderson she was unable to work due to
her elevated blood pressure and because her physician instructed her not to work.12 An
employee may be required to follow more onerous employer-mandated procedures for
requesting leave, but only if it is:
clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer’s
proper posting of the required notice at the worksite where the
employee is employed and the employer’s provision of the required
notice in either an employee handbook or employee distribution, as
required by Section 825.3000.
29 C.F.R. § 825.304(a).
Here, Plaintiff was not required to follow any employer-mandated procedures
because she did not have actual notice of the FMLA notice requirements. (Doc. 17 at 23;
Calling in ‘sick’ without providing more information will not be
considered sufficient notice to trigger an employer’s obligation under
the Act. The employer will be expected to obtain any additional
required information through informal means. An employee has an
obligation to respond to an employer’s questions designed to determine
whether an absence is potentially FMLA-qualifying. Failure to
respond to reasonable employer inquiries regarding the leave request
may result in denial of FMLA protection if the employer is unable to
determine whether the leave is FMLA-qualifying. 29 C.F.R. § 825.303(b).
Here, however, Plaintiff could not complete or even initiate Defendant’s FMLA process, when it
was not in writing as required. When Defendant requested information about Plaintiff’s absence,
she forwarded a letter from her doctor. She was never asked for additional documentation. In
fact, Ms. Crozier admitted that she did not ask Plaintiff for medical documentation of her need
for leave during the August 26, 2010 conversation in which Plaintiff was suspended. (Doc. 20 at
92). Plaintiff even offered to provide medical documentation of her need for leave during the
conversation. (Id. at 43). Defendant also argues that Plaintiff told Ms. Crozier to not “bother”
suspending her or investigating her absence. (Doc. 25 at 14). Plaintiff does not recall making
this comment. (Doc. 21 at 50, Doc. 19 at 18). However, even if she did make the comment,
Defendant still suspended her and conducted an investigation. (Doc. 21 at 50, Doc. 19 at 18).
Moreover, if Plaintiff did not want her job, she would not have contacted Defendant’s
compliance department to speak with Ms. Lawrence about her absence.
Doc. 19 at 12).13 Defendant admits that it did not inform its employees in writing of the
procedure for obtaining FMLA leave. (Doc. 17 at 23; Doc. 19 at 12).14
Defendant fails to make any argument opposing Plaintiff’s assertion that its failure
to notify its employees, in writing, of its process for requesting FMLA leave, prohibited it
from denying Plaintiff’s leave for not following that procedure. 29 C.F.R. § 825.304(a)
In all cases, in order for the onset of an employee’s FMLA leave to
be delayed due to lack of required notice, it must be clear that the
employee had actual notice of the FMLA notice requirements. This
condition would be satisfied by the employer’s proper posting of the
required notice at the worksite where the employee is employed and
the employer’s provision of the required notice in either an employee
handbook or employee distribution, as required by Section 824.300.
Defendant formerly self-administered its employees’ FMLA leave, and the handbook
directed employees to obtain a form from the human resource department to notify the
company of the intent to take FMLA leave. (Doc. 23, Ex. K). However, by August 2010,
Defendant had contracted with Matrix, an independent company to administer FMLA
leave, but failed to update the employee handbook. Defendant simply relied on its human
See, e.g., Sons v. Henry Cnty., No. 1:05cv516, 2006 U.S. Dist. LEXIS 79604, at *25
(S.D. Ind. Oct. 31, 2006) (“It would be unfair to allow an employer to deny FMLA leave for
failure to follow its usual and customary notice requirements if the employer never tried to make
its employees aware of its particular requirements.”).
Defendant argues that Plaintiff knew other employees, including her own sister, who
had received FMLA from Trilogy and returned to work. (Doc. 21 at 25, 28). However, this does
not change the fact that Defendant’s FMLA policy was not in writing as required. Plaintiff
cannot be expected to rely on information from other employees who took FMLA leave in the
past. The regulations require that Plaintiff have written notice of the existing policy.
resource representatives to notify employees of the new procedure verbally. (Doc. 17 at
10). Verbal notice is insufficient as 29 C.F.R. § 825.304(a) requires employers to notify
employees of the FMLA notice requirements by posting them in the workplace 15 and in
the employee handbook.16
Defendant also claims that Plaintiff was not entitled to FMLA leave because she
never “began, pursued, or completed the FMLA certification process.” (Doc. 22 at 29).
The regulations implementing the FMLA clearly provide:
An employer may require that an employee’s leave to care for the
employee’s covered family member with a serious health
condition, or due to the employee’s own serious health condition
that makes the employee unable to perform one or more of the
essential functions of the employee’s position, be supported by a
certification issued by the health care provider of the employee or
the employee’s family member . . . An employer must give notice
of a requirement for certification each time a certification is
required; such notice must be written notice whenever required
by § 825.300(c). 29 C.F.R. § 825.305(a).
According to 29 C.F.R. § 825.300(c), the notice of the requirement for certification must
Defendant was required to post the procedure for contacting Matrix in the workplace.
(Doc. 19 at 12). Defendant argues that it generally posted FMLA information in the workplace.
(Doc. 25 at 13). However, Defendant only posted the “federal” posters, which are disseminated
by the Department of Labor, and say nothing about contacting a specific person or entity or
“applying” for FMLA leave. (Doc. 19 at 12). Defendant’s employer relations support manager
admitted that Defendant did not post any information concerning Matrix in the workplace. (Id.)
Defendant contends that Ms. Dressler “directed” Plaintiff to contact Matrix, but verbal
notice is insufficient. Moreover, although Defendant has presented an affidavit from Ms.
Dressler in which she swears she spoke with Plaintiff and “directed” her to contact Matrix, she
testified in her deposition that she had no recollection of the call or conversation with Plaintiff.
(Doc. 17 at 28). A party cannot create a genuine issue of material fact by contradicting her own
previous sworn testimony in an affidavit after a motion for summary judgment has been filed.
Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997).
be provided to the employee in writing within five business days of the time the employee
requests FMLA leave or the employer acquires knowledge that an employee’s leave may
be for a FMLA qualifying reason. The employer is also required to furnish the employee
with the certification form. 29 C.F.R. § 825.300(c)(3). Again, Defendant failed to
provide Plaintiff with notice of the certification process.
Accordingly, Plaintiff has submitted sufficient evidence to establish that she was
eligible for FMLA benefits.
Whether Trilogy denied Plaintiff the FMLA rights to which she
Defendant’s assertion that Plaintiff cannot establish the fifth element of her claim
is based solely on its position that Plaintiff was not entitled to FMLA benefits. As
discussed supra, because Defendant’s argument that Plaintiff was not entitled to leave
fails, so too must its argument that it did not deny Plaintiff rights to which she was
Whether Defendant denied Plaintiff FMLA rights
Having stated a prima facie case, Plaintiff claims that she was entitled to
reinstatement upon the conclusion of her leave. 29 C.F.R. § 825.214.
Plaintiff was scheduled to return to work on August 27, 2010, which was her next
scheduled work day, but on August 26, 2010, Ms. Crozier informed her that she had been
removed from the schedule and suspended. In response, Plaintiff contacted Defendant
through its compliance department and requested assistance. Defendant contacted
Plaintiff on one occasion, requesting a physician’s note documenting her need for leave,
which she provided. However, Defendant never contacted Plaintiff again and after
concluding its investigation on October 26, 2010, terminated her.
Accordingly, Defendant violated the FMLA by failing to reinstate Plaintiff to her
same position or an equivalent position upon the conclusion of her leave. Therefore,
Plaintiff is entitled to judgment as a matter of law.17
For the reasons stated here:
Defendant’s motion for summary judgment (Doc. 22) is DENIED; and
Plaintiff’s motion for partial summary judgment on her disability
discrimination and FMLA claims (Doc. 23) is GRANTED.
Plaintiff’s claim for pregnancy discrimination remains pending for trial.
IT IS SO ORDERED.
s/ Timothy S. Black
Timothy S. Black
United States District Judge
Date: October 23, 2012
“[I]nterference with an employee’s FMLA rights does not constitute a violation if the
employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the
challenged conduct.” Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2006). Defendant fails
to present any legitimate reason for denying Plaintiff FMLA leave, aside from the argument that
Plaintiff did not request FMLA leave. This reason is not “unrelated to the exercise of FMLA
rights” and therefore does not suffice.