Reed v. PPG Industries Ohio, Inc.
Filing
27
Opinion & Order signed by Judge James S. Gwin on 11/21/18 granting defendant's motion for summary judgment on all claims for the reasons set forth in this order. (Related Doc. 19 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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ARNOLD REED,
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Plaintiff,
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vs.
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PPG INDUSTRIES OHIO, INC.,
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Defendant.
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Case No. 1:18-cv-707
OPINION & ORDER
[Resolving Doc. 19]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case, Plaintiff Arnold Reed alleges that Defendant PPG Industries Ohio, Inc.
fired him because he was sick. Reed says his firing violated the Family Medical Leave Act
and Ohio law. Defendant responds that it fired Plaintiff for being a lousy employee.
For the following reasons, the Court GRANTS Defendant’s motion for summary
judgment.
I.
Background
With this lawsuit, the Plaintiff claims that Defendant PPG fired him because he used
rights under the FMLA for a urinary tract condition.
Around 2014, Plaintiff’s urethra collapsed.1 As a result, he claims he is more likely
to suffer urinary tract infections, which can turn into serious general infections.2 Plaintiff
alleges that vomiting and fever usually precede these infections, and typically need two to
three days of hospitalization to resolve. 3 Plaintiff also suffers from hip dislocations 4 and
1
Doc. 23 at 4.
Reed Dep. Tr. at 117. The Court pauses to note that Plaintiff also describes frequent hip dislocations in his
complaint. Doc. 1 at ¶ 12. However, it appears that none of his claims have anything to do with that condition.
3
Reed Dep. Tr. at 117, 197.
4
Doc. 1 at ¶ 12.
2
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Gwin, J.
alcoholism.5 However, his claims in this case center solely on his urinary tract condition.
Defendant PPG employed Plaintiff for thirty-one years.6 Beginning in 2015, Plaintiff’s
employment took a turn for the worse. In April 2015, Plaintiff arrived at work after drinking
alcohol.7 And, over the next few years, Plaintiff continued to struggle with alcoholism, twice
attending rehabilitation programs.8 At the close of 2015, Plaintiff’s year-end performance
review rated him as “marginal” and indicated he “ha[d] been a low performer through the
year.”9
In 2016, Plaintiff incurred more unexcused absences.10 These 2016 absences, caused
Defendant PPG to give a October 17, 2016, written warning.11 At the end of 2016, Plaintiff
received another “marginal” performance review, which described more work errors.12
Then, in 2017, Plaintiff missed work on March 21, March 22, April 10, and April 11.13
Plaintiff alleges his urinary tract condition caused these absences.14 After these absences,
Defendant PPG gave Plaintiff a May 2, 2017, written warning.15 After receiving this written
warning, Plaintiff then incurred two more unexcused absences in June 2017,16 which led to
a July “last chance” meeting.17 On December 13, 2017, Plaintiff missed work again.18 Near
the same time, Plaintiff allegedly insubordinately refused a directed task.19 Plaintiff denies
5
Reed Dep. Tr. at 137–44.
Id. at 40.
7
Id. at 136–37.
8
Id. at 137–44.
9
Doc. 19-3 at 81–83.
10
Reed Dep. Tr. at 166.
11
Doc. 19-3 at 91.
12
Id. at 86–90.
13
Id. at 92.
14
Doc. 23 at 6.
15
Doc. 19-3 at 92.
16
Technically, one of these “absences” occurred when Plaintiff left work early without authorization. Reed Dep.
6
Tr. 66.
17
Reed Dep. Tr. at 63–67.
Id. at 193–94.
19
Doc. 19-5 at ¶ 9.
18
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Gwin, J.
this.20 On December 18, 2017, Defendant fired Plaintiff, citing, among other things, his
many absences.21
In March 2018, Plaintiff sued PPG.22 He claims that Defendant fired him because of
his urinary tract condition in violation of the Family Medical Leave Act (“FMLA”) and Ohio
law.23 On September 4, 2018, Defendant moved for summary judgment on all claims.24
II.
Discussion
The Court grants summary judgment if the movant demonstrates that there is no
genuine dispute of material fact and he is entitled to judgment as a matter of law.25 A
genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party.26 The Court views the evidence, and draws all reasonable inferences, in the
light most favorable to the non-moving party.27
A. Family Medical Leave Act Claim
The FMLA gives employees the right to unpaid medical leave for serious health
conditions.28 Plaintiff claims that the FMLA covered his urinary tract condition and that this
urinary tract condition caused him to miss work five times in 2017. He argues that
Defendant’s decision to fire him—in part because of these absences—unlawfully interfered
with his FMLA rights.
To survive summary judgment, Plaintiff must establish a prima facie case for FMLA
20
Reed Dep. Tr. at 193.
Doc. 19-5 at ¶ 11.
22
Doc. 1.
21
23
Id.
24
Doc. 19. Plaintiff opposed. Doc. 23. Defendant replied. Doc. 25.
Fed. R. Civ. P. 56(a).
26
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
27
See, e.g., Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018).
28
29 U.S.C. § 2612(a)(1)(D).
25
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Gwin, J.
interference.29 This prima facie showing requires Plaintiff to show he gave Defendant
notice of his intention to take FMLA leave.30 Specifically, Plaintiff must give the Defendant
information reasonably adequate to make clear to Defendant that Plaintiff was leaving work
for a serious health condition covered by the FMLA.31
As an initial matter, the Court doubts that Plaintiff’s urinary tract condition is a
serious medical condition covered by the FMLA. In his deposition, Plaintiff Reed testified
that his condition does not impact any of his life activities except when he is suffering from
an outbreak of his condition.32 Further, he approximated that his urinary tract condition
has only flared up three times in the last four years.33
Additionally, it appears unlikely that the five claimed absences were due to his
urinary tract condition. At his deposition, Plaintiff testified that, when his condition flares
up, he usually requires two to three days of hospitalization, extensive antibiotics, and
bloodwork.34 And he stated further that “by the time [his condition] shows itself, [he’s] in
the hospital.”35 Yet, it does not appear that Plaintiff was hospitalized, received antibiotics,
or had bloodwork completed for any of his five claimed absences.36
The Court need not resolve either of those issues, however, because Plaintiff failed
to give the Defendant notice that he missed work due to his urinary tract condition.
First, Plaintiff claims a urinary tract condition caused his March 22, 2017 absence.37
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
Id.
31
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004).
29
30
32
Reed Dep. Tr. at 118–19.
Id. at 118. Federal regulations define a serious chronic health condition as requiring at least two health care
visits per year. 29 C.F.R. § 825.115(c)(1).
34
Id. at 118–19.
35
Id. at 117.
36
Id. at 169 (Plaintiff testifying he does not recall if he missed work for medical reasons on March 22, March 23,
April 10, or April 11); Id. at 194–95 (Plaintiff testifying that he never saw a doctor for his December 13, 2017, absence).
37
Doc. 23 at 6.
33
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However, he has offered no evidence in support of that argument. To the contrary, when
asked on deposition whether he had missed work that day for medical reasons, Plaintiff
testified that he could not recall.38 Additionally, Plaintiff has offered no other evidence that
he notified Defendant he was absent because of an FMLA-qualifying event, or even that he
was sick.
Second, Plaintiff alleges his March 23, 2017 absence resulted from a urinary tract
condition.39 Defendant’s records indicate that on March 23, 2017, Plaintiff complained of
nausea and vomiting and then left work.40 It is true that Plaintiff testified in his deposition
that he frequently suffers from nausea and vomiting before the onset of the urinary tract
condition.41 However, Plaintiff has produced no evidence to indicate that Defendant knew
this.42 At deposition, Plaintiff testified that he does not recall whether he ever told his
supervisors about his urinary tract condition.43 And he gives no evidence specifically tying
the March 23, 2017, nausea to his urinary tract condition.
Without prior notice that nausea and vomiting were symptoms of Plaintiff’s urinary
tract condition, there was no way for Defendant to know that Plaintiff was suffering from a
FMLA covered serious medical condition.44
Third, Plaintiff also claims his urinary tract condition caused his April 10, 2017
38
Reed Dep. Tr. at 169.
Doc. 23 at 6.
40
Doc. 23-6 at 90.
41
Reed Dep. Tr. at 197.
42
Plaintiff does allege, without support, that he “verbally notified PPG of [his] ongoing chronic condition following
his urethral repair.” Doc. 23 at 12. He does not, however, claim that he notified Defendant of the symptoms related to
that condition.
43
Reed Dep. Tr. at 120–21.
44
See Brenneman, 366 F.3d at 429 (holding that an employee telling his employer that he had to miss work
because he was having problems with his insulin pump was insufficient notice of an FMLA-qualifying event); 29 C.F.R. §
825.303(b) (noting that merely calling in sick is generally insufficient).
39
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Gwin, J.
absence.45 However, he offers no evidence to support this claim. And when asked at
deposition whether he missed work on April 10, 2017, for medical reasons, he said he
could not recall.46 In fact, documentary evidence Plaintiff submitted indicates that he
missed work that day for a “family emergency”—not for any urinary tract condition. 47
Further, Plaintiff shows no evidence that he notified Defendant he was absent on April 10,
2017, because of a serious medical condition.
Fourth, Plaintiff alleges his urinary tract condition caused his April 11, 2017,
absence.48 But Plaintiff again does not show that he notified Defendant that he was absent
because of his condition.
Finally, Plaintiff missed work on December 13, 2017. It is unclear whether Plaintiff
claims that this absence was because of his urinary tract condition. In his complaint,
Plaintiff alleges his condition caused absences around April 2017, but never mentions
December.49 In his brief, Plaintiff states that, on December 13, he was feverous and
nauseous, “symptoms that once again suggest[ed] an outbreak of [his] chronic health
condition.”50 This falls short of an actual allegation that Plaintiff was then suffering from his
urinary tract condition.
No matter. Even if Plaintiff is claiming his urinary tract condition caused his
December 13, 2017 absence, he never told Defendant he was missing work for an FMLAqualifying condition. That day, Plaintiff texted his supervisor and stated that he was sick
45
Doc. 23 at 6.
Reed Dep. Tr. at 169.
47
Doc. 23-7 at 37.
48
Doc 23 at 6.
49
Doc. 1 at ¶ 16.
50
Doc. 23 at 8.
46
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and would not be coming in.51 When asked for more information, he stated: “[i]f you have
to know fever and throwing up.”52 But, as discussed supra, merely pointing to fever and
vomiting was insufficient to provide Defendant with notice of an FMLA-qualifying event.53
In his brief, Plaintiff argues that—even if he failed to notify Defendant specifically for
each absence—Defendant’s medical department “had acquired actual knowledge of an
FMLA qualifying event” when it obtained his medical records in November 2017. 54 This is
apparently because the medical records mention that Plaintiff “has chronic issues with
urinary tract infections.”55 This argument fails at several turns.
For one, Plaintiff was required to notify Defendant he was absent because of an
FMLA-qualifying condition “as soon as practicable.” 56 Certainly, Plaintiff’s indirect
disclosure of his urinary tract condition some seven months after he missed work would
not count.
Second, the November 2017 medical records make only a tangential reference to
chronic urinary tract infections in a document otherwise relating to Plaintiff’s complaints of
chest pain.57
Finally, the medical records only state that Plaintiff has chronic urinary tract
infections. They do not show that vomiting, fever, or nausea are symptoms of these
infections. They do not indicate that this a serious medical condition. And they do not
show that this urinary tract condition caused Plaintiff’s March and April 2017 absences.
51
52
53
Doc. 19-3 at 99.
Id.
See Brenneman, 366 F.3d at 429; 29 C.F.R. § 825.303(b).
54
Doc. 23 at 12.
Doc. 23-6 at 94.
56
29 C.F.R. § 825.303(a).
55
57
Id.
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Defendant PPG’s possession of Plaintiff’s November 2017 medical records did not give
adequate notice that Plaintiff’s absences were due to a serious medical condition.
Independent of the above, Plaintiff claims that Defendant violated the FMLA by
failing to provide him with notices of FMLA eligibility.58 Federal law requires an employer
to provide their employee with a notice of their FMLA eligibility after the employer
“acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.”59
However, as discussed supra, Defendant had not acquired such knowledge. Thus, its duty
to provide Plaintiff an eligibility notice had not been triggered.
The Court grants summary judgment for Defendant on Plaintiff’s FMLA claims.
B. Ohio Disability Discrimination Claim
In his complaint, Plaintiff alleged that his urinary tract condition is a disability under
Ohio law.60 He further claimed that Defendant fired him because of this disability in
violation of Ohio law.61 That is, however, the last ink Plaintiff expends in service of that
claim. In his opposition to summary judgment, he does not argue that he is disabled under
Ohio law or that Defendant fired him for a disability.62
When a plaintiff fails to address a claim in response to a motion for summary
judgment, the Plaintiff abandons the claim.63 The Court grants summary judgment for
Defendant on Plaintiff’s claim for disability discrimination under Ohio law.
C. Ohio Retaliation Claim
Plaintiff took paid medical leave on November 7–8, 2017, although he does not
58
Doc. 23 at 14.
29 C.F.R. § 825.300(b)(1).
60
Doc. 1 at ¶ 34.
61
Id. at ¶ 40.
62
Doc. 23.
59
63
Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013).
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recall why.64 He claims that Defendant fired him, in part, because he took this medical
leave and that his firing was unlawful retaliation under Ohio law.65
Ohio law prohibits any person from discriminating “against any other person
because that person has opposed any unlawful discriminatory practice.”66 To establish a
prima facie claim for retaliation, Plaintiff must demonstrate: (i) he was engaged in a
protected activity, (ii) Defendant knew he was engaged in that activity, (iii) Defendant took
an adverse employment action against Plaintiff, and (iv) there was a causal connection
between the protected activity and adverse action.67
To begin, “taking medical leave does not constitute opposition to an unlawful
discriminatory practice.”68 Thus, by the text of the statute, Plaintiff’s allegations do not state
a violation of Section 4112.02(I).
Moreover, Plaintiff has given no evidence to prove a causal link between his
November medical leave and his December firing. Instead, he argues only that “the
temporal proximity between [Plaintiff’s] November 2017 request for leave and his
termination [demonstrates] . . . a causal link.”69 Hardly. Temporal proximity alone is
insufficient to survive summary judgment.70
Thus, the Court grants summary judgment for Defendant on Plaintiff’s claim for
retaliation under Ohio law.
64
Reed Dep. Tr. at 104–05.
Doc. 23 at 19.
66
Ohio Rev. Code § 4112.02(A).
67
Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007).
68
La Fond v. NetJets Inc., No. 2:17-cv-526, 2018 WL 4352776, *6 (S.D. Ohio Sep. 12, 2018).
69
Doc. 23 at 19.
70
See Chandler v. Specialty Tires of Am. (Tenn.), Inc. , 283 F.3d 818, 826 (6th Cir. 2002).
65
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III.
Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s motion for summary
judgment on all claims.
IT IS SO ORDERED.
Dated: November 21, 2018
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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