Nolen v. Ohio Department of Rehabilitation and Correction

Filing 38

Memorandum Opinion and Order. ODRC's Motion for Summary Judgment 28 is granted in part and denied in part; summary judgment is granted on the interference claim and denied on the retaliation claim. Judge Jack Zouhary on 12/21/2018. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 3:17 CV 182

Andrew Nolen,
Plaintiff,
-vs-

MEMORANDUM OPINION AND ORDER
JUDGE JACK ZOUHARY

Ohio Department of Rehabilitation
and Correction,
Defendant.

Defendant Ohio Department of Rehabilitation and Correction (ODRC) moves for summary
judgment (Doc. 28); Plaintiff Andrew Nolen opposes (Doc. 31). This Court held a Record Hearing
in September 2018, with questions submitted to counsel in advance (Doc. 33). Following the hearing,
both parties submitted supplemental briefs (Docs. 36, 37).
BACKGROUND
Nolen began his career as a corrections officer with ODRC in 1997. The following year,
Nolen was assigned to Marion Correctional Institution, where he remained for almost two decades.
In September 2003, Nolen’s newborn son was diagnosed with spinal muscular atrophy -- a permanent
medical condition that interferes with motor function and muscle movement (Doc. 31 at 5). To this
day, Nolen’s son must use a power wheelchair to move around, he cannot sit up on his own, and he
must be observed while eating because he cannot swallow correctly (id.). During the nighttime, he
needs someone to manually lift him into bed and adjust him periodically throughout the night (id. at

11–12; Doc. 26 at 289). In the mornings, he needs someone to lift him from bed and put him into his
power chair (Doc. 26 at 242).
After his son’s diagnosis, Nolen began taking leave under the Family Medical Leave Act
(FMLA) to care for his son. He took two months of leave in the immediate wake of the diagnosis
and continued to take leave intermittently, as his son’s medical needs required. From 2005 through
2016, Nolen filed annual certifications with ODRC for authorization to take FMLA leave (see, e.g.,
Doc. 26-44; see also Doc. 26 at 48).
Like any prison, Marion Correctional Institution requires staff on site twenty-four hours a day,
so officers and lieutenants work in shifts. The first and second shifts occur during the daytime, and
the third shift takes place overnight. From 2010 to 2014, Nolen worked on third shift (see Doc. 26 at
28; Doc. 26-18 at 1). During that period, Nolen’s wife and daughters were able to provide nighttime
and morning care for Nolen’s son. Within that same timeframe, Nolen began taking on additional
responsibilities, joining special units like the hostage negotiation team and the security threat group
(Doc. 26 at 23–24). Being a member of these units required him to attend occasional trainings and
meetings away from the prison during work hours (id. at 294–95). Although these trainings and
meetings meant time spent away from Nolen’s regular duties, they still counted as hours Nolen spent
working for ODRC (id.). Anytime Nolen needed to attend an event offsite for one of these special
units, he obtained advance approval from his superiors (id. at 294).
In 2013, Nolen began reporting to Major Samuel Grisham. In Nolen’s first performance
review with Grisham, Grisham cautioned Nolen to “[w]atch [his] attendance” (Doc. 26-17 at 3).
Nolen asserts that, around that time, he had no attendance issues other than his FMLA leave to care
for his son (Doc. 31 at 7). In 2014, a lieutenant position became available, and Grisham encouraged
Nolen to apply (Doc. 26 at 81). Nolen assumed he would not get the job because of how often he
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needed to take leave to care for his son (see id.). But Grisham told Nolen that he should “stop using
[his son] as a crutch” and apply for the job (id.). In April 2014, Nolen was promoted to lieutenant
(Doc. 26-1 at 1), and in January 2015, he began working on second shift (Doc. 27-13 at 5).
A few weeks later, Nolen took three days of FMLA leave to care for his son while he was sick
(Doc. 26 at 278). When Nolen returned to work, he was called into a meeting with Captains Pamela
McBride and Edward Bernardo (id.). During this meeting, Nolen claims he was told Grisham wanted
him fired because of his FMLA use (id. at 279). In March 2015, Nolen again took leave to take his
son to a doctor’s appointment. That day, Grisham sent Nolen an email, asking him not to take off an
entire shift on short notice (Doc. 26-27 at 1). Later that year, in a meeting between Nolen and
Grisham, Grisham confirmed the earlier rumors -- according to Nolen, Grisham said he was trying to
fire Nolen because of his FMLA use (Doc. 26 at 196–98).
In February 2016, Nolen had another performance review. In the manager-comments section,
Grisham wrote, “I challenge Andrew to be more of an [sic] positive example by working hours
scheduled as he holds his staff accountable for the same actions” (Doc. 26-40 at 5). In the employeecomments section, Nolen responded, saying Grisham’s comment was “an obvious attempt at
addressing the use of FMLA hours” (id.). Nolen said, “[D]ue to my situation at home with my son[,]
I may have to take care of him at a moment[’]s notice” (id. at 5–6). Nolen added that, by that point,
it had been “almost a year” since he last took FMLA leave and all his leave had been “approved by
direct supervisor in advance” (id. at 6). Grisham did not respond to Nolen’s comment, and another
supervisor ultimately signed off on Nolen’s performance review (id.).
Just nine days after Nolen’s comment, Grisham sent an email announcing that, in two days,
Nolen will move to third shift and another lieutenant -- Lieutenant Thomas -- will move to second
(see id.; Doc. 26-41 at 2). Nolen responded that he needed to be on second shift so that he could
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provide nighttime and morning care for his son (id.). Although Nolen had previously been able to
work on third shift, Nolen’s daughters had since moved out of the house and Nolen’s wife had a back
injury that made it difficult for her to lift their son (id. at 1; Doc. 26 at 288). When Nolen was on
second shift, he would do all the lifting in the morning and night, moving his son in and out of the
power chair, and Nolen’s wife would care for him throughout the day (Doc. 26 at 288–89). Nolen
told Grisham that, on third shift, he would be unable to provide this necessary care (see Doc 26-41 at
1–2).
The shift transfer was delayed a few weeks but ultimately took effect in March 2016 (Doc.
26-42 at 1; Doc. 27-13 at 11). The following month, Grisham retired (Doc. 23 at 49). Nolen asked
his supervisors whether he could move back to second shift, but he was told to wait until Grisham’s
replacement was hired (Doc. 26 at 31–32). Finally, in June 2016, Nolen was called for a meeting
with Warden Jason Bunting and Captain Dan Straker. There, Bunting advised, “[S]o long as I’m a
warden here at Marion Correctional, you’ll be on third shift” (id. at 58). Straker then said, “[Y]ou
heard the warden . . . because of your attendance, I’m not going to put you back on second” (id. at
59).
To Nolen, this meant he was stuck on third shift permanently (id. at 293). In June 2016, Nolen
gave his two-weeks’ notice (Doc. 26-45). Nolen had been on third shift for three months by that
point and had not attempted to take any FMLA leave (Hrg. Tr. at 17–18). His last day of work was
July 8, 2016 (Doc. 26-45). In his resignation notice, next to “Reason of Resignation,” Nolen wrote
that he “needed to care for [his] disabled child” (id.).
LEGAL STANDARD
Under Federal Civil Rule 56(a), summary judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” This burden
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“may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). When considering a motion for summary judgment, this Court draws all inferences from the
record in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587–88 (1986). This Court does not weigh the evidence or determine the
truth of any matter in dispute; rather, it determines only whether there is sufficient evidence from
which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
DISCUSSION
FMLA Interference Claim
The FMLA entitles qualified employees to take up to twelve weeks of unpaid leave annually,
without fear of termination, when that leave is taken to care for a family member with a “serious
health condition.” 29 U.S.C. § 2612(a)(1)(C). The FMLA makes it unlawful “for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise” the right to take this leave.
29 U.S.C. § 2615(a)(1). If an employer interferes with this right, an employee can sue. 29 U.S.C.
§ 2617(a)(2). Here, to prevail on his interference claim, Nolen must establish: (1) he is eligible for
FMLA benefits; (2) ODRC is an employer subject to FMLA requirements; (3) Nolen was entitled to
leave under the FMLA; (4) Nolen gave ODRC notice of his intention to take leave; and (5) ODRC
denied Nolen the FMLA benefits to which he was entitled. Wysong v. Dow Chem. Co., 503 F.3d 441,
447 (6th Cir. 2008).
Here, the central dispute is the fifth element -- whether ODRC denied Nolen benefits (see
Doc. 28 at 19–20). ODRC argues Nolen “cannot establish an FMLA interference claim, because . . .
he was never denied the use of FMLA for over 10 years before his voluntary resignation” (id. at 20).
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Nolen concedes ODRC never directly denied any of his leave requests; instead, he tries to meet this
element by way of a discouragement theory. See 29 C.F.R. § 825.220(b). To establish the fifth
interference element through a discouragement theory, Nolen must show that either (1) he “tried to
assert h[is] FMLA rights and was discouraged,” or (2) ODRC’s “actions would have dissuaded a
similarly situated employee of ordinary resolve from attempting to exercise h[is] FMLA rights.” Vess
v. Scott Med. Corp., 2013 WL 1100068, at *2 (N.D. Ohio 2013). See also Golden v. New York City
Dep’t of Envtl. Prot., 2007 WL 4258241, at *3 (S.D.N.Y. 2007). Under either prong, however, Nolen
“must put forward evidence that [ODRC] actually interfered with h[is] FMLA leave.” Vess, 2013
WL 1100068, at *2. He must show that ODRC’s conduct, in fact, caused him to refrain from
requesting or using FMLA leave. Bonfiglio v. Toledo Hosp., 2018 WL 5761220, at *12 (N.D. Ohio
2018).
Nolen focuses on the objective prong and argues the totality of ODRC’s actions created an
atmosphere that would discourage a person of ordinary resolve from exercising FMLA rights (Doc.
31 at 17–18). Nolen cites several examples of actions that contributed to this discouragement,
including Grisham’s repeated comments about attendance, his statement that he wanted Nolen fired
because of FMLA use, Grisham’s knowledge that a third shift assignment would make it more
difficult for Nolen to care for his son, Grisham’s decision to move Nolen to third shift, and Bunting’s
decision to make that move permanent (id.).
At the September hearing, Nolen’s counsel argued these circumstances would discourage
reasonable employees from exercising FMLA rights due to fear that, if they took FMLA leave, ODRC
would make antagonistic changes to their work schedules or fire them (Hrg. Tr. at 10–11). For
causation, counsel acknowledged the record lacks direct evidence that Nolen “would have taken leave
on X day, but . . . was discouraged” (Hrg. Tr. at 19–20). Instead, he points to timing: “[A]fter
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[Grisham’s] comments . . . [Nolen] essentially stopped taking FMLA leave all together” (Hrg. Tr. at
19–20).
When determining whether a reasonable person in Nolen’s situation would be dissuaded from
taking leave, “[c]ontext matters.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006).
“The real social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple recitation of
the words used or the physical acts performed.” Id. (citation omitted).
By early 2016, Nolen had been taking intermittent FMLA leave for over a decade, and he
knew the law entitled him to that leave (see Doc. 26 at 279; Doc. 26-40 at 5). In all that time, he had
never been denied an FMLA leave request (Hrg. Tr. at 18). For several years during that time, Nolen
worked on third shift. Now, when Nolen found himself back on third shift, all that experience
suggests he would not hesitate to request leave. Yet he did not ask to take leave for over a year before
his resignation (see Doc. 26-40 at 5–6). Is that because he was discouraged? Or is that because he
simply did not need to take leave during that time?
Nolen argues he was discouraged by Grisham’s comments, but those comments must be taken
in context. This Court takes as true Nolen’s assertion that Grisham wanted to fire Nolen for taking
leave -- a fact Grisham denies (Doc. 23 at 32–33). But, as Nolen tells it, when he first heard that
comment, he also knew Captain McBride had told Grisham, “Sam, you can’t do that. That’s FMLA.”
(Doc. 26 at 279). Further, in the performance review, which was viewed by numerous supervisors,
Nolen showed no concern about pushing back on Grisham’s attendance comment, calling it an
“obvious attempt at addressing the use of FMLA hours” (Doc. 26-40 at 5–6). Regardless of what
Grisham may have wanted to do, Nolen offers no evidence that he actually feared he would be fired
if he took FMLA leave.
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Nolen also argues he was discouraged from taking FMLA leave by the shift transfer, but he
does not explain how. Assuming Nolen truly needed to be home at night to care for his son, then a
person of ordinary resolve in his situation would have been more likely to take FMLA leave on third
shift than on a daytime shift. At the time of his shift transfer, Nolen was nowhere near his annual
twelve-week limit on FMLA leave, yet he did not ask to take FMLA leave during the three months
he was on third shift (Hrg. Tr. at 9–10, 17–18; see also Doc. 27-13). A transfer to inconvenient
working hours may have constituted retaliation for earlier leave he had taken (discussed below), but
it did not discourage him from taking more FMLA leave.
The weakness in Nolen’s discouragement theory is highlighted by what happened after
Grisham retired -- two months before Nolen’s resignation. If Grisham was such a contributor to
Nolen’s discouragement, one would think Nolen would have taken FMLA leave after Grisham’s
retirement. Instead, with his main antagonist off the scene, Nolen simply “tried to make it work for
a period of time” on third shift, until he decided to resign (Hrg. Tr. at 18).
Nolen offers no evidence of need to take FMLA leave during his last few months of
employment. And by his own admission, he did not need any leave for the year between March 2015
and February 2016. As noted in his February 2016 performance review, “Due to my situation at
home with my son[,] I may have to take care of him at a moment[’]s notice. This being said[,] my
son has not been sick since the last time I had called off[,] which [was] almost a year” ago (Doc. 2640 at 5–6).
Nolen has not shown that a person of ordinary resolve in his situation would have been
discouraged from taking leave because he has not shown that he needed to take leave in the first place.
Evidence that Nolen stopped taking FMLA leave, without more, is insufficient to show ODRC’s

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actions interfered with his FMLA rights. Without sufficient evidence to meet the fifth element, Nolen
fails to demonstrate a genuine dispute of a material fact on his interference claim.
FMLA Retaliation Claim
Nolen argues his discharge was in retaliation for taking FMLA leave. To establish an FMLA
retaliation claim, Nolen must show: (1) he was engaged in an FMLA-protected activity; (2) ODRC
knew he was exercising his FMLA rights; (3) after learning of his exercise of FMLA rights, ODRC
took an adverse employment action; and (4) there was a causal connection between the protected
activity and the adverse employment action. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555–
56 (6th Cir. 2006). Nolen bears the burden of demonstrating those elements. Id. at 556. Here, only
the third and fourth elements are in dispute.
Adverse Employment Action
An adverse employment action is one that results in a “materially adverse change in the terms
and conditions of [plaintiff’s] employment,” typically characterized “by a decrease in wage or salary,
a less distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices that might be unique to a particular situation.” Hollins v. Atl. Co., Inc., 188 F.3d 652,
662 (6th Cir. 1999) (citation omitted). Nolen claims his transfer to third shift constituted an adverse
employment action because it amounted to a constructive discharge. See Logan v. Denny’s, Inc., 259
F.3d 558, 568 (6th Cir. 2001) (“Plaintiff may establish an adverse employment action by
demonstrating that she was constructively discharged.”). To demonstrate a constructive discharge,
Nolen must show that (1) ODRC “deliberately create[d] intolerable working conditions, as perceived
by a reasonable person,” and (2) ODRC did so “with the intention of forcing [Nolen] to quit.” Moore
v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999).

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To determine whether an employer deliberately created intolerable working conditions, the
Sixth Circuit looks for the following factors: (1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a
retaliating supervisor; (6) badgering, harassment, or humiliation by the employer calculated to
encourage the employee’s resignation; or (7) offers of early retirement or continued employment on
terms less favorable than the employee’s former status. See Logan, 259 F.3d at 569. This list of
factors is not exclusive, and this Court may consider other appropriate factors as it sees fit. Saroli v.
Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005) (citing Logan, 259 F.3d
at 570).
Here, Nolen argues one, and only one, of the enumerated factors is satisfied: there was an
offer of continued employment on terms less favorable than Nolen’s former status. Although Logan
recites seven factors, it is unclear whether only one factor alone can suffice for a constructive
discharge. But cases have held that a reasonable jury could find a constructive discharge where there
is evidence of just one factor and that evidence is particularly severe. See, e.g., Festerman v. County
of Wayne, 611 F. App’x 310, 320–21 (6th Cir. 2015) (holding that evidence of “combined hostility
from . . . officers and supervisors” created a triable fact question of objectively intolerable working
conditions); Benaugh v. Ohio Civil Rights Comm’n, 278 F. App’x 501, 512 (6th Cir. 2008) (noting
evidence of defendant’s failure to provide reasonable accommodation was sufficient to create a triable
fact question of objectively intolerable working conditions).
Nolen has produced sufficient evidence to satisfy the seventh factor. Grisham switched Nolen
to third shift and insisted on the switch after Nolen explained the assignment would make it difficult
for him to care for his disabled son (see Doc. 26-41). Nolen continued working for nearly three
months in an attempt to wait out the transfer and save his job. Then, only after Bunting permanently
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ratified Grisham’s act, did Nolen resign (Doc. 26 at 293). A reasonable jury could find that a
permanent transfer to third shift, where the timing of that shift prohibited Nolen from providing the
nighttime care his son required, amounted to the creation of intolerable working conditions.
As for the employer’s intention, Nolen has produced evidence that this permanent shift
transfer was calculated to encourage his resignation. Grisham allegedly wanted Nolen fired for his
use of FMLA leave. Grisham, and other ODRC managers, knew this shift transfer would work a
serious hardship on Nolen.

Grisham announced the shift transfer just over a week after the

contentious performance review, in which the comments centered around Nolen’s attendance and use
of FMLA. And a reasonable jury could find that Bunting’s decision to make the transfer permanent
was made with the intention of pushing Nolen out the door. This creates a genuine dispute whether
the permanent shift transfer was an adverse employment action.
Causation
For the fourth element, Nolen must establish a causal link between his use of FMLA leave
and the adverse employment action. A plaintiff can establish causation by either direct evidence or
circumstantial evidence. In the absence of direct evidence, retaliation claims are governed by the
McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). See also Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir. 1991).
“Although no one consideration is dispositive, ‘[a] causal link may be shown through knowledge
combined with closeness in time.’” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 381 (6th Cir.
2002) (alteration in original) (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir.
2000)). Once a plaintiff establishes a prima facie case for causation, the burden of production shifts
to the employer to “articulate some legitimate, nondiscriminatory reason” for its action. McDonnell
Douglas, 411 U.S. at 802. Plaintiff then must demonstrate “that the proffered reason was not the true
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reason for the employment decision.” Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th
Cir. 1990) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Nolen has established a prima facie case of causation between his use of FMLA leave and the
permanent shift transfer. Grisham put Nolen on third shift a mere nine days after he responded to
Grisham’s attendance comment in his performance review (see Doc. 26-40 at 5; Doc. 26-41 at 2).
And Bunting made the shift transfer permanent “because of [Nolen’s] attendance” (Doc. 26 at 59).
The burden shifts to ODRC to articulate a legitimate reason for the action. ODRC asserts
Nolen’s shift transfer was part of a larger personnel rotation, designed to give newly hired lieutenants
training opportunities in the daytime shifts (Doc. 28 at 15). ODRC produced evidence to support this
reasoning, including onboarding paperwork for two new lieutenants scheduled to begin work on
February 21, 2016 -- the same day Grisham originally set for the effective date of Nolen’s shift
transfer (Doc. 37-1 at 4–7).
The burden then shifts back to Nolen to demonstrate that ODRC’s proffered reason for the
transfer was pretextual. Nolen points out that Grisham’s email announcing the shift change merely
flip-flopped two lieutenants -- Nolen was to move from second to third and Thomas was to move
from third to second (Doc. 26-41 at 2). When asked how swapping two lieutenants created any
additional daytime room for new recruits, Grisham responded, “Management reasons.” (Doc. 36-2 at
11). None of the supplemental personnel documentation disproves Nolen’s assertion -- that flipflopping Nolen and Thomas had nothing to do with a larger change in personnel. A reasonable jury
could find that ODRC’s reason for the shift transfer was pretextual. It could infer that ODRC wanted
the transfer to result in Nolen’s resignation, and that ODRC accomplished its goal. This too creates
a genuine issue of material fact.

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CONCLUSION
ODRC’s Motion for Summary Judgment (Doc. 28) is granted in part and denied in part;
summary judgment is granted on the interference claim and denied on the retaliation claim.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
December 21, 2018

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