Lowe v. Hamilton County Department of Job & Family Services et al
ORDER THAT DEFENDANTS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (Doc. 139 ) IS DENIED. Signed by Judge Timothy S. Black on 5/29/12. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
UNEEK VIRGINIA LOWE,
HAMILTON COUNTY DEPARTMENT :
OF JOB AND FAMILY SERVICES, et al., :
Case No. 1:05-cv-117
Judge Timothy S. Black
ORDER THAT DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY
JUDGMENT (Doc. 139) IS DENIED
This civil action is before the Court on Defendants’1 supplemental motion for
summary judgment (Doc. 139) and the parties’ responsive memoranda (Docs. 142, 143).
Defendants move for summary judgement on Plaintiff’s remaining claims: Counts I
(disability discrimination - ADA), III (FMLA retaliation), IV (retaliation - Title VII and
ADA), V (Ohio disability discrimination), and VII (Ohio retaliation).
PROCEDURAL POSTURE AND BACKGROUND FACTS
Plaintiff Uneek Lowe alleges that her former employer, Hamilton County
Department of Job and Family Services (“HCJFS”), denied her reasonable
accommodations for her disability2 and retaliated against her for filing discrimination
complaints. (Doc. 2).
Defendants include Hamilton County and Hamilton County Board of County
Plaintiff was diagnosed with depression, Attention Deficit Hyperactivity Disorder
(“ADHD”), and severe anxiety. (Doc. 41 at 13-15).
Plaintiff was hired by HCJFS as an Eligibility Technician on January 20, 2000.
(Doc. 94, Ex. E, ¶ 2, Attachment 1). She was primarily responsible for interviewing
applicants/recipients to determine their eligibility for public assistance. (Id., ¶ 5,
Attachment 2). Plaintiff was ultimately terminated on July 7, 2005 for gross misconduct,
dishonesty, insubordination, neglect of duty, absence without leave, and failure of good
behavior. (Id., Attachment 191).
Over the course of a seven-year long litigation, the Court has decided two motions
for summary judgment, and the case has been on interlocutory appeal to the Sixth Circuit.
It is now before the Court on a third motion for summary judgment.
PLAINTIFF’S REQUEST TO STRIKE PORTIONS OF DEFENDANTS’
SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
“A motion to strike is a drastic remedy that should be used sparingly and only
when the purposes of justice require.” Driving Sch. Assoc. of Ohio v. Shipley, No.
1:92cv83, 2006 U.S. Dist. LEXIS 66018, at *1 (N.D. Ohio Sept. 15, 2006).
After the initial discovery period closed, Defendants sought leave to obtain
Plaintiff’s social security disability file.3 The Court granted Defendants’ motion for
“This information goes to several central issues in this case, including but not limited
to, judicial estoppel, whether or not Plaintiff is a qualified individual with a disability under the
ADA, whether there is a discrepancy between Plaintiff’s statement in pursuing benefits from the
SSA that she was totally disabled and her ADA claim that she could perform the essential
functions of her position, as well as to issues of backpay and frontpay.” (Doc. 135 at 4). See
also Moody v. Honda of America Mfg., Inc., No. 2:05cv880, 2006 U.S. Dist. LEXIS 43092, at
*16 (S.D. Ohio 2006) (although in a discrimination case evidence concerning the employee’s
medical ability to continue to work may not be relevant to the issue of whether the employer
violated the law, it may be relevant to the scope and extent of relief available to the employee).
leave to conduct additional discovery and to file a supplemental motion for summary
judgment “to address all issues fairly affected by the documentation Defendants
ultimately receive from the SSA.” (Doc. 135 at 4).
Plaintiff moves to strike portions of Defendants’ supplemental motion (Doc. 139)
and proposed undisputed facts (Doc. 145), because: (1) the records relied upon in the
supplemental motion have been available to Defendants since before discovery began;
and (2) are outside the scope of this Court’s grant of leave to file a supplemental motion.
Specifically, Plaintiff argues that Defendants have had access to the facts upon which
they now file this supplemental motion since approximately October 2007, when Plaintiff
provided Defendants a broad release to obtain the records. (Doc. 148 at 4).4
This Court finds the argument to be a moot point, as Chief Judge Dlott permitted
the additional discovery and filing of the supplemental motion. (Id. at 7). Additionally,
Defendants’ arguments do “address issues fairly affected by the documentation . . . from
the SSA.” (Doc. 135 at 4). Therefore, the content of the supplemental motion is within
the scope articulated by the Court. Moreover, in consideration of the well established
legal principal that cases should be decided on the merits and not on procedural
technicalities, the Court will consider all of the facts and arguments presented.
Plaintiff requested her file from Social Security, but never received it. (Id. at 5). Still,
Plaintiff maintains that Defendants had notice of the fact that she applied for disability and
should have bought a motion to compel or obtained the documents themselves prior to this stage
in the litigation. (Id.)
UNDISPUTED FACTS 5
The Court incorporates herein the facts articulated in the February 19, 2009 Report
and Recommendation. (Doc. 106 at 1-11).
At the time of her termination, Plaintiff earned an annual salary of
$30,098.00. (Doc. 139, Ex. 15).
Plaintiff received disability benefits from Liberty Mutual. (Id., Ex. 17A-D).
Plaintiff received disability benefits from the State of Ohio Public
Employees Retirement System. (Id., Ex. 18).
Plaintiff received disability benefits from the Social Security
Administration. (Id., Ex. 19A-D).
To SSA, Plaintiff averred she was disabled, and that the disability began on
July 9, 2004. (Id., Ex. 22).
Dr. Bingham informed the State of Ohio, Rehabilitation Services
Commission (“Ohio RSC”), that Plaintiff’s ability to tolerate work-place
stressors was “very poor.” (Id., Ex. 26).
Plaintiff averred to Ohio RSC that, due to her depression, “every day it’s
hard to function,” and that she is “always tired and have low energy.” (Id.,
On January 3, 2005, Plaintiff averred to Ohio RSC that she needed SSDI
because she was no longer able to work. (Id., Ex. 29).
SSA found that Plaintiff was “unable to perform her past work,” and that
she “should have minimal interaction with others.” (Id., Exs. 38, 39).
See Docs. 144 and 145. Plaintiff points out, and the Court acknowledges, that
Defendants did not timely file their Proposed Statement of Undisputed Facts. While Defendants
should be cognizant of Court procedures, the Court declines to strike the late-filed document.
Additionally, it is unclear whether the facts that Plaintiff requests be stricken are disputed.
Ultimately, the Court concludes that whether or not these facts are disputed is irrelevant to the
Court’s final analysis, but for purposes of this section, considers them disputed.
Plaintiff was initially denied SSDI, and in April 2005, she filed a Request
for Reconsideration, stating “I believe the evidence supports a total
disability finding.” (Id., Ex. 40).
Dr. Lahnier averred to SSA that Plaintiff “can’t expect herself to function in
an environment like a state or federal welfare program.” (Id., Ex. 42).
In June of 2005, Plaintiff averred to SSA that she was “not able to take care
of self,” that she gets lost and confused when driving, and often loses things
of importance. (Id., Ex. 46).
Dr. Bingham averred to Ohio RSC that Plaintiff had poor people skills, was
unable to work and unable to handle any type of stress. (Id., Ex. 47).
Plaintiff wanted SSDI “so that I can get away from stress of working.” (Id.,
The SSA found that Plaintiff’s condition prevented her from doing work
which requires “working closely with others.” (Id., Ex. 50).
In a Request for Hearing before the SSA, Plaintiff states “I believe that I am
disabled.” (Id., Ex. 53).
Plaintiff reported to Dr. Bernfield that she was not able to work due to pain
and depression, and this statement was filed with SSA in support of her
SSDI claim. (Id., Ex. 55).
Plaintiff attempted to work part time in March of 2006 (20 hours per week),
and had to quit because of her disability. (Id., Ex. 58).
In 2007 Plaintiff requested a hearing with the SSA claiming she was
“unable to work.” (Id., Ex. 67).
In a Treatment Progress Note offered in support of Plaintiff’s application
for SSDI, it is noted that Plaintiff “agreed she’s not ready to return to
work.” (Id., Ex. 68).
To SSA, Dr. Bernfield noted that Plaintiff had been taking some classes and
she “thinks it is too much for her.” (Id., Ex. 69).
In a Psychiatric Review conducted by SSA it was determined that Plaintiff
“is hostile and aggressively verbally” and that she “does evidence a severe
mental disorder, which would severely limit her ability to work and carry
out her normal daily activities.” (Id., Ex. 70).
The SSA awarded Plaintiff benefits, with an onset of her disability
established as July 9, 2004, because she could not work with the general
public, part time or otherwise. (Id., Exs. 71, 72).
Plaintiff worked 16 hours per week for Macy’s beginning December 2007
and went on a medical leave of absence beginning January 2008, from
which she never returned. (Id., Exs. 58, 74A, 74B).
Plaintiff informed SSA that she had to quit this part time position because it
was “impossible with my multiple disabilities. (Id., Ex. 75).
Plaintiff stated to Ohio RSC that her disability seriously limits her “work
tolerance” and interpersonal skills in terms of employability. (Id., Ex. 80).
To SSA, Dr. Bernfield reported Plaintiff “can be verbally aggressive” and
“later regrets what she said.” (Id., Ex. 84).
Dr. Merz reported a “heated conversation” he had with Plaintiff when he
suggested that she was not disabled, and that Plaintiff “had disagreed
angrily and hung up the phone.” (Id., Ex. 85).
Plaintiff admitted to SSA that she had been having anger issues and
outbursts, including an occasion on which she had applied for a position at
LensCrafers, became threatening towards the staff, and the police were
called. (Id., Ex. 68, 86).
Dr. Bernfield reported to the SSA that Plaintiff’s anger had surfaced again
and Thoma Sutton called the police on Plaintiff because she was harassing
them, and that Plaintiff had an angry outburst at school during which she
“got in [another student’s] face.” (Id., Exs. 87, 88).
Plaintiff admitted to SSA that she “gets angry easily,” and that “she was
surprised at her rage.” (Id., Exs. 89, 90).
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 25152.
Disability Discrimination (Counts I and V)6
The ADA7 provides that “[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a).
To establish a prima facie case of disability discrimination based upon indirect
evidence of discriminatory motive, a plaintiff must show: (1) she is an individual with a
disability; (2) she is “otherwise qualified” for the position, with or without reasonable
accommodation; (3) she suffered an adverse employment action; (4) the employer knew
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).
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
or had reason to know of her disability; and (5) after termination, the position remained
open, or the employee was replaced by a non-disabled employee.8 Hopkins v. Elec. Data
Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999). The second element is the only issue in
Prima Facie Case
Plaintiff has the burden to prove qualified individual status. Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). The ADA defines a “qualified individual
with a disability as a disabled person ‘who can perform the essential functions’ of her job,
including those who can do so only ‘with reasonable accommodation.’” Id. at 801. To
establish the second element of her prima facie case, Plaintiff need only demonstrate that
she was objectively qualified for the position. Wexler v. White’s Fine Furniture, Inc., 317
F.3d 564, 574-76 (6th Cir. 2003). This inquiry should focus on Plaintiff’s education,
experience in the relevant industry, and demonstrated possession of the required general
skills. Id. at 576. This Court must evaluate Plaintiff’s qualifications and performance
before the events that prompted her discharge. Cline v. Catholic Diocese of Toledo, 206
It may not be necessary to show that the replacement employee is not disabled.
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186, n. 11 (6th Cir. 1996). “[D]isabilities are
diverse,” and “replacement of one disabled individual with another disabled individual does not
necessarily weaken the inference of discrimination against the former individual that arises
through establishment of the five [elements of the prima facie case].” This last element will
vary, depending on the precise facts of the case before the court. Id.
F.3d 651, 662-63 (6th Cir. 1999).9
Plaintiff submitted evidence that she had been satisfactorily performing her
position with HCJFS for several years before the events leading to her termination. (Doc.
103, Attachment 3, ¶ 2). In fact, Plaintiff received progressive raises and promotions, and
received bonuses for food stamp accuracy. (Id. at ¶ 4). Additionally, Plaintiff’s coworkers spoke highly of her. Supervisor Michael Shea recalls Plaintiff doing “a good
job” (Doc. 122 at 9), supervisor Kelly Draggoo found Plaintiff to be “very kind,” “well
spoken, and eager to learn” (Doc. 118 at 12, 22), and supervisor Stephanie Smith was
generally satisfied with the quality and quantity of Plaintiff’s work and with her problem
solving skills, decision-making skills and judgment. (Doc. 41 at 29-30).
However, Defendants argue that Plaintiff is estopped from establishing her
qualifications. Specifically, Defendants claim that the representations made by Plaintiff
and her physicians to obtain numerous disability benefits from Liberty Mutual, the State
of Ohio Public Employees Retirement System (“OPERS”),10 and the Social Security
Defendants argue that the actual holding in Cline is, “[w]hen assessing whether a
plaintiff has met her employer’s legitimate expectations at the prima facie stage of a termination
case, a court must examine plaintiff’s evidence independent of the nondiscriminatory reason
‘produced’ by the defense as its reason for terminating plaintiff.” 206 F.3d at 662. “The
defendant’s nondiscriminatory reason [cannot be used] to assess whether the plaintiff met his
prima facie case.” Id. While the Court agrees with this interpretation, it nonetheless finds that in
order to examine Plaintiff’s evidence independent of Defendants’ nondiscriminatory reason, it
must evaluate Plaintiff’s qualifications and performance before the events that prompted her
discharge. As this Court previously held, Defendants arguments focus on facts that transpired
during the events that prompted her discharge. (Doc. 106 at 18).
A “disability” for purposes of OPERS disability benefits means “presumed permanent
mental or physical incapacity for the performance of a member’s present duty or similar service
that is a result of a disabling condition.” O.A.C. § 145-2-21(A)(1); Ohio Rev. Code §§ 145.35,
Administration (“SSA”),11 among others, preclude her from contending that she is a
qualified individual with a disability.12
In Cleveland v. Policy Management Systems, the Supreme Court considered this
very issue, holding that plaintiffs who filed for SSDI were not automatically estopped
from establishing that they were qualified employees under the ADA. 526 U.S. at 805.
The Court rejected the Fifth Circuit’s conclusion that the plaintiff was judicially estopped
from asserting that she was a qualified individual with a disability for purposes of her
ADA claim, because she consistently represented to the SSA that she was totally disabled.
Id. at 800. “[W]hen the SSA determines whether the individual is disabled for SSDI
purposes, it does not take the possibility of ‘reasonable accommodation’ into account, nor
need an applicant refer to the possibility of reasonable accommodation when she applies
for SSDI.” Id. Therefore, “an ADA suit claiming that the plaintiff can perform her job
with reasonable accommodation may well prove consistent with an SSDI claim that the
plaintiff could not perform her own job (or other jobs) without it.” Id.
“Reasonable accommodation” includes job restructuring, part-time or modified
work schedules, reassignment to a vacant position, and acquisition or modification of
In order to be “disabled” for SSDI purposes, an applicant must be incapable of
performing her “past relevant work,” and she must be found unable to perform any other job
existing in significant numbers in the nation’s economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§§ 404.1520(e)-(f), 404.1560(b)-(c)
Plaintiff has collected in excess of $170,000.00 in disability benefits from August 2004
through December 2010 from these three agencies. (See Doc. 139 at Ed 17A-D, 19A-2).
equipment or devises. 42 U.S.C. § 12111(8). Under the ADA, employers are required to
reasonably accommodate disabled individuals, unless the accommodation imposes an
undue hardship.13 42 U.S.C. § 12112(b)(5). Failure to reasonably accommodate an
employee with a disability is unlawful under the ADA. Id. An ADA plaintiff “bears the
initial burden of proposing an accommodation and showing that that accommodation is
objectively reasonable.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir.
2007). Generally, a disabled employee’s request for an accommodation triggers an
employer’s duty to participate in the interactive process to attempt to identify an
appropriate accommodation. EEOC v. Convergys Mgmt. Group, 491 F.3d 790, 795 (8th
Cir. 2007). It is, however, the employee who bears the burden of proving sufficient
information to establish that she has a qualifying impairment that requires
accommodation. Id. at 796.
Next, Defendants argue that the statements made by Plaintiff and her physicians at
all relevant times show that she was totally, permanently, and continuously disabled from
July 2004 through 2010, and that no modification to her job would have enabled her to
work. (Doc. 139 at 5-12). For example, in March 2005, Dr. Bingham noted that Plaintiff
An “undue hardship” is defined as “an action requiring significant difficulty or
expense, when considered in light of the factors set forth in subparagraph (B).” 42 U.S.C.
§ 12111(1)(A). These factors include: (1) the nature and costs of the accommodation needed;
(2) the overall financial resources of the facility involved in providing the accommodation;
(3) the overall financial resources of the covered entity; and (4) the type of operation of the
covered entity, including the composition, structure and functions of its workforce. 42 U.S.C.
was totally disabled from her occupation and any other work, and that no modifications
could be made to her job that would allow her to work. (Doc. 139, Ex. 37).
Plaintiff maintains that she would have been able to return to work by March or
April 2005 with the accommodation of a part-time schedule for approximately 30 days.14
(Doc. 91 at 242, 247, 294-95). However, Defendants denied her request. (Id. at 207,
214-15). In fact, in 2007, Plaintiff began clerical work for Jobs Plus, and continued to do
so until the time of her deposition taken in November 2007, demonstrating that she was
not totally or permanently disabled for ADA purposes.15 (Doc. 91 at 231-32). While
Defendants point to specific evidence that Plaintiff was totally disabled, Plaintiff provides
evidence of the evolving nature of her disability. Feldman v. Am. Mem’l Life Ins. Co.,
196 F.3d 783, 790 (7th Cir. 1999) (“the severity of a disability may change over time such
that an individual was totally disabled when she applied for SSDI, then later was a
Defendants argue that a part-time schedule was unreasonable. “HCJFS has never
allowed a Program Technician 2 to work part time, for any reason.” (Doc. 139 at 15). Had
Plaintiff requested a part-time schedule indefinitely, the Court may have been persuaded that
such an accommodation would cause an “undue hardship.” However, Plaintiff only asked for a
30 day accommodation, which appears reasonable on its face.
Defendants argue that this allegation is a fabrication, because, in 2008, SSA asked
Plaintiff to account for all work since March of 2006, and Plaintiff mentioned nothing about any
work in 2007 for Jobs Plus. (Doc. 139, Ex. 58). On this same document, Plaintiff informed SSA
that: (1) she had worked for FACS Group from December 10, 2007 through January 23, 2008 for
16 hours per week, but had to quit because of her medical condition; and (2) she worked for
Today’s Staffing in March of 2006 for 20 hours per week, but had to quit because of her medical
condition. (Id.) Accordingly, Defendants maintain that Plaintiff has not worked more than a few
weeks since July 2004. This is a disputed issue of fact. Additionally, Defendants argue that it is
irrelevant whether Plaintiff could work in 2007, two years after her termination. While the Court
agrees that Plaintiff’s ability to work in 2007 is generally irrelevant, it does indicate that Plaintiff
was not permanently disabled.
qualified individual at the time of the employment decision disputed in an ADA suit.”).16
The Court is troubled by the significant record evidence that Plaintiff was “totally
disabled” from July 2004-2010. (Doc. 139 at 5-12).17 However, given the conflicts in the
medical and record evidence, and drawing all reasonable inferences in Plaintiff’s favor, a
jury could conclude that had Defendants allowed her to work part-time for 30 days in
March or April of 2005, she would have been able to return to work. (Doc. 142 at 9).
Whether Plaintiff was permanently disabled, and the period during which she was
disabled, are disputed issues of material fact. Plaintiff presents sufficient facts to
establish that she was qualified for her position, and estoppel principles do not preclude a
jury from hearing her ADA claim.
Legitimate, non-discriminatory reasons for termination
Once a plaintiff has established a prima facie case, the burden of production shifts
to the defendant to “articulate some legitimate, nondiscriminatory reason” for the
employee’s adverse employment action. Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th
In Feldman, the Seventh Circuit emphasized that “the Court in Cleveland decided that
judicial estoppel ought not apply merely because an individual has applied for or received SSDI
benefits.” 196 F.3d 783, 791. Similarly, in Motley v. New Jersey State Police, the Third Circuit
recognized Cleveland’s holding that an application for SSDI benefits does not preclude an
individual from being a qualified individual under the ADA. 196 F.3d 160, 164 (1999). Like in
Feldman, the court found for the defendant because the plaintiff did not attempt to explain the
differences between his application for SSDI benefits and his ADA claim. Id. at 166-67.
For example, Dr. Bingham averred that, as of July 9, 2004, Plaintiff was “totally
disabled” from her regular and any other occupation. (Doc. 144, Ex. 21). On December 30,
2004, Dr. Bingham averred that Plaintiff continued to be “totally disabled.” (Id., Ex. 27). In
May 2005, Dr. Lahnier averred to SSA that Plaintiff “can’t expect herself to function in an
environment like a state or federal welfare program.” (Id., Ex. 42).
Cir. 2001) (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the defendant carries
this burden, the plaintiff must then “prove that the proffered reason was actually a pretext
for invidious discrimination.” (Id.)
Defendants have offered multiple non-discriminatory reasons for Plaintiff’s
termination. (See Doc. 139, Ex. 16).18 Most compellingly, Defendants maintain that
Plaintiff was terminated for a verbal altercation with her supervisor, Stephanie Smith, on
June 30, 2004, during which Plaintiff accused her supervisor of losing several case
records and called her a liar. (Doc. 94, Ex. E). Plaintiff refused to leave Ms. Smith’s
office, and continued to argue in a loud, aggressive, argumentative tone until a sheriff’s
deputy was summoned. (Id. at ¶¶ 7-13).19 In fact, an independent arbitrator described
Plaintiff’s participation in the June 30 altercation as “confrontational, yelling, demanding,
a ‘madwoman,’ argumentative, derogatory, disruptive, and disrespectful.” He determined
that the June 30 incident warranted termination in and of itself:
Plaintiff was allegedly terminated for: (1) utilizing her position as an employee of the
Department of Job and Family Services to conduct personal business on June 29, 2004; (2) a
verbal altercation with her supervisor on June 30, 2004; (3) on July 2, 2004, she failed to notify
her supervisor of her absence within a half-hour of her start time, and when she arrived to work
at 4:00 p.m. and was told to leave by her supervisor, she refused to do so; (4) on July 9, 2004, she
called her supervisor a liar; (5) on July 13 and 14, 2004, she failed to notify her supervisor of her
absence within a half-hour of her start time; (6) on May 2, 3, and 4, 2005, she failed to report to
work or to notify her supervisor of her absence within a half-hour of her start time. (Id.)
In Plaintiff’s application for SSDI benefits she admitted “at work I would lose
documents or forget that I found something then accuse my supervisor of lying.” (Doc. 139, Ex.
[The Grievant] should have known that her actions on June 30 th
would be totally unacceptable in her workplace and would violate
fundamental, inherent standards of conduct on the job. She should
have known that her actions were so extraordinary that she was
engaging in severe misconduct and that her actions could lead to
discipline, including discharge.
(Doc. 92, Ex. E, Attachment 35 at 32-35). Accordingly, Defendants have submitted
sufficient evidence of a legitimate, non-discriminatory reason for Plaintiff’s termination.
Whether Defendants’ proffered reason for terminating Plaintiff was
actually a pretext for discrimination
To establish pretext, a plaintiff must demonstrate “that the proffered reason (1) has
no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or
(3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d
1016, 1021 (6th Cir. 2000). The first type of proof requires that Plaintiff show that the
basis for the selection never happened or is factually false. (Id.) The second type of
proof consists of a demonstration that “an illegal motivation was more likely than [the
reasons] offered by the defendant.” (Id.) The third type of proof consists of evidence that
other non-disabled employees who were otherwise similarly situated to Plaintiff were not
selected. (Id.) When an employer offers “multiple reasons for discharging a plaintiff, the
plaintiff need only discredit one of the proffered reasons.” Smith v. Good Samaritan
Hosp., Case No. 1:06cv207, 2007 U.S. Dist. LEXIS 48304, at *19 (S.D. Ohio July 3,
Defendants allege that Plaintiff’s confrontation with Ms. Smith constituted gross
misconduct which allowed them to skip disciplinary steps before proceeding to
termination. However, Joseph Gagliardo, Human Resources Manager for HCJFS,
testified that Plaintiff’s conduct should not have constituted “gross misconduct.” (Doc.
119 at 16). Plaintiff, as a union employee, was subject to a progressive discipline policy
including written warning, written reprimand, suspension, and termination. (Id. at 12).
Pursuant to the contract, only conduct that would “put a child at risk” allows these steps
to be skipped. (Id. at 16-17). Here, these steps were skipped, despite any indication that
the alleged reasons for Plaintiff’s termination would “put a child at risk.” In fact, at the
time Plaintiff went on leave in July 2004, Ms. Smith was not aware of any process or
efforts to terminate Plaintiff for the June 30 incident. (Doc. 92 at 13-14). Ms. Smith did
nothing to discuss the possibility of disciplining Plaintiff, although she had the authority
to initiate discipline against her. (Id. at 57). Although Plaintiff worked after her
confrontation with Ms. Smith, she did not receive a written warning or any other
discipline short of termination as a result of the confrontation. (Doc. 103, Ex. 4 at ¶ 2;
Doc. 120 at 30). Accordingly, Plaintiff argues that a jury could reject any reasons
articulated by Defendants for which Plaintiff did not receive progressive discipline.
Defendants maintain that the determination of what constitutes gross misconduct
must be made on a case-by-case basis. (Doc. 119 at 16-17). While Mr. Gagliardo noted
that the contract alluded to an act that “put a child at risk” as being gross misconduct, the
CBA states that “[d]iscipline will be applied in a progressive and uniform manner, except
in instances wherein the employee is found guilty of gross misconduct.” (Doc. 94, Ex. E).
The CBA does not define “gross misconduct” or provide examples of what constitutes
gross misconduct. Moreover, Mr. Gagliardo played no role in Plaintiff’s termination.
(Doc. 119 at 11; Doc. 142 at 13). The arbitrator, whose job it was to interpret the CBA
and decide if Plaintiff’s confrontation with her supervisor amounted to gross misconduct,
determined that the June 30, 2004 incident warranted termination in and of itself. (Doc.
94, Ex. E at 32-35).
Plaintiff also argues that her termination document (“Order of Removal”) only
included two incidents (June 29 and June 30) as the reasons for her termination. (Doc.
120 at 21-22). However, an Order of Removal must include all of the reasons for
termination. Defendants maintain that Plaintiff’s original Removal Order, executed on
July 6, 2005, did not include all the reasons for her termination due to a clerical error.
(Doc. 94 at 6; Ex. E at ¶ 34). At the direction of the arbitrator that heard Plaintiff’s
grievance of her termination, an Amended Order of Removal was executed on March 16,
2006.20 (Doc. 139, Ex. 16). Still, a jury could conclude that the additional reasons were
simply attempts by Defendant to manufacture reasons for Plaintiff’s termination.21
The Amended Removal Order cites seven incidents which allegedly caused her
termination. (See Doc. 139, Ex. 16).
Additionally, Plaintiff argues that Defendants failed to identify the decision maker,
which proves pretext. However, by statute, the decision maker is the Director of the HCJFS, and
the Director signed off on the Orders of Removal. (Doc. 143 at 2).
The conflicting proof and the inferences that can be drawn therefrom raise genuine
issues of material fact that preclude the granting of summary judgment. Although the
Court struggled with this analysis, ultimately, the facts and inferences presented by
Defendants do not sufficiently diminish the contrary evidence to the point that “it is so
one-sided that [Defendant] must prevail as a matter of law.” Anderson, 477 U.S. at 252.
Ultimately, the Court determines that Plaintiff has offered sufficient evidence toward
Retaliation (Counts III, IV, VII)22
Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating
against an employee who has “opposed” any practice by an employer made unlawful
under Title VII. 42 U.S.C. § 2000e-3(a). It also prohibits retaliation against an employee
who has “participated” in any manner in an investigation under Tile VII. Id.
A prima facie case of retaliation requires a plaintiff to demonstrate that: (1) she
engaged in activity protected by the ADA or ADEA; (2) the defendant knew of the
exercise of her protected rights; (3) the defendant subsequently took an adverse
employment action against the plaintiff or subjected the plaintiff to severe or pervasive
retaliatory harassment; and (4) there was a causal connection between the plaintiff’s
Plaintiff claims that Defendant terminated her employment because of her protected
activity in violation of FMLA (Count III), the ADA and Title VII (Count IV), and Ohio Revised
Code Chapter 4112 (Count VII). State and federal retaliation claims can be considered together state law claims survive or fail with federal claims. Skrjanc v. Great Lakes Power Serv. Co., 272
F.3d 309, 314 (6th Cir. 2001).
protected activity and the adverse employment action. Barrett v. Whirlpool Corp., 556
F.3d 502, 516 (6th Cir. 2009). The fourth prong is the only issue in dispute.
In order to prove a causal connection, “plaintiff must simply produce evidence
sufficient to create an inference of causation. Whether the two events happened in short
succession or whether a long period of time elapsed between them can be relevant to that
inquiry, but it is not dispositive.” McCart v. Univ. of Cincinnati Found., No. 1:08cv656,
2010 U.S. Dist. LEXIS 34406, at *1, 16-18 (S.D. Ohio Apr. 7, 2010). The Sixth Circuit
has repeatedly held that “cases that have permitted a prima facie case to be made based
on the proximity of time have all been short periods of time, usually less than six months.
Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000) (finding plaintiff did not
establish a prima facie case of retaliation and affirming summary judgment; “the fact of
temporal proximity alone was not particularly compelling, because the plaintiff’s
retaliation case was otherwise weak, and there was substantial evidence supporting the
defendant’s version of the events”).23
Plaintiff first requested accommodations under the ADA in May of 2003, filed
internal discrimination complaints in September 2003 and May 2004, and charges of
discrimination with the EEOC in June and December of 2004. (Doc 93). She used
See, e.g., Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004)
(holding that the plaintiff established a causal connection when termination occurred within three
months of protected conduct). Compare with Anderson v. Avon Prod., Inc., 340 Fed. Appx. 284,
288 (6th Cir. 2009) (no causal connection where six months separated the plaintiff’s use of
FMLA leave and the adverse employment action).
FMLA leave in 2001 through 2004, the last occurrence on August 26, 2004. (Doc. 94,
Ex. A). In August 2004, the physician to whom Defendants referred Plaintiff, determined
in a “fitness for duty” examination that Plaintiff was unable to perform the essential
functions of her job, placing her on medical leave.24 Then, on January 11, 2005, Plaintiff
filed another charge with the OCR alleging retaliation. Four days later, Defendants
rejected Plaintiff’s request to return to work part-time for a month and then full-time
thereafter. (Doc. 142 at 15).
Defendants argue that there is no evidence that any physician requested that
Plaintiff be allowed to return to work part-time for a month in January 2005. Rather, on
January 10, 2005, Dr. Morse certified on Plaintiff’s behalf that she was “healthy” and
could return to work on January 17, 2005, with no restrictions. (Doc. 94, Ex. A).
Additionally, Defendants point out that Plaintiff used FMLA leave from 2001 through
2003 with no consequence, and the disciplinary proceedings against Plaintiff, which
included infractions for which she was ultimately terminated, were begun prior to her last
Despite Defendants’ argument to the contrary, Plaintiff has submitted sufficient
facts to evidence that she was subjected to a series of adverse actions, each occurring
after she engaged in protected activity. As this Court previously held, these facts
Defendants argue that Dr. Cobb’s evaluation cannot be considered an adverse action
because Plaintiff herself requested a medical leave prior to Dr. Cobb’s determination and
Plaintiff’s own physician confirmed the need for the leave. (Doc. 94, Ex. E; Doc. 139, Exs. 1-3).
establish a triable issue as to a causal connection between the protected activity and the
adverse employment action. (See Doc. 106 at 27).
For the reasons articulated in Sections V.A.2-3, Defendants has established a
legitimate, nondiscriminatory reasons for termination and Plaintiff has alleged sufficient
facts from which a jury could infer pretext. Accordingly, Plaintiff’s claims for retaliation
Backpay, Front Pay, and Reinstatement
Finally, Defendants argue that Plaintiff cannot recover back pay, front pay, or
reinstatement, because she was found totally and permanently disabled by the SSA and
OPERS as of July 2004 and February 2005, respectively, dates which pre-date her
termination. “We find it anomalous that an employee can claim to be permanently and
totally disabled, obtain a certification to that effect, and collect sickness and disability
payments, and, at the same time, seek to force his employer to reinstate him to his former
position with back pay for time lost.” Brotherhood of R.R Signalmen v. Louisville &
Nashville R.R. Co., 688 F.2d 535, 537 (7th Cir. 1982).25 While this Court does not
disagree, whether Plaintiff was totally disabled to the point that she could not work with a
reasonable accommodation is a disputed issue of fact.26 Accordingly, until a jury
considers the conflicting evidence, the Court cannot make a determination on this issue.
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3rd Cir. 1976) (periods when a
plaintiff is unemployable because of illness should be deducted from backpay).
This issue was discussed in the Court’s previous decision. (See Doc. 106 at 34)
(“Whether Plaintiff was disabled prior to her termination is a disputed issue of material fact
which precludes summary judgment as to the amount recoverable for lost pay.”).
For the reasons stated above, Defendants’ motion for summary judgment (Doc.
139) is DENIED.
IT IS SO ORDERED.
s/ Timothy S. Black
Timothy S. Black
United States District Judge
Date: May 29, 2012
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