Powell-Pickett v. A.K. Steel Corporation
Filing
59
ORDER granting 37 Motion for Summary Judgment; granting 53 Motion to Strike; granting 55 Motion for Leave to File. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 10/24/12. (mee)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CIVIL ACTION NO. 2010-336 (WOB-JGW)
ANGELA POWELL-PICKETT
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
AK STEEL CORPORATION
DEFENDANT
This matter is before the Court on the motion of defendant
for summary judgment (Doc. 37), the motion of defendant to
strike the declaration of plaintiff Angela Powell-Pickett (Doc.
53), and the motion of plaintiff for leave to file the
declaration of Lucy Freeman (Doc. 55).
The Court heard oral argument on these motions on September
20, 2012, and thereafter took them under submission (Doc. 58).
Having reviewed this matter further, the Court now issues
the following Memorandum Opinion and Order.
Factual and Procedural Background
On February 28, 2006, defendant AK Steel Corporation’s
collective bargaining agreement with the Armco Employees
Independent Federation expired, and AK Steel lawfully locked out
the union.
to Doc. 37.
Amy Hull Declaration at ¶¶ 1, 2, attached as Ex. B
Plaintiff Angela Powell-Pickett, an African-
American female, was hired as a temporary replacement worker on
May 3, 2006.
Id. at ¶ 3.
Prior to her employment, Plaintiff
was required to pass a physical examination and complete a
medical history questionnaire.
Id.
In part, the medical
history questionnaire asks the applicant for any prior medical
issues and any prior workplace injuries.
Id. at Attachment 1.
Plaintiff did not list any prior medical issues or any prior
workplace injuries.
Id.
A number of former AK Steel employees
describe the medical examination process as “rushed” or
“hurried.”
See Joe Lee Quarles Declaration at ¶ 6 – Doc. 51;
Bryant Pickens Declaration at ¶ 4 – Doc. 47-1; Anthony Webb
Declaration at ¶ 6.
Additionally, Plaintiff, and other former
employees, state that a nurse assisting the medical examinations
advised the prospective employees to only include five (5) years
of medical history.
See Deposition of Angela Powell-Pickett, Volume
III at 70; Quarles Decl. at ¶ 6; Pickens Decl. at ¶ 4.
AK Steel has various steel manufacturing “lines” that
require inspection, and the lines run days, nights, and
weekends.
Plaintiff worked on the “pickler” line.
Inspectors
like Plaintiff reported to the “shift manager/supervisor,” who
in turn reported to William Belding, a higher-level supervisory
manager.
1
See William Belding Declaration at ¶¶ 1-3 - Doc. 54-
1
The declarants and parties refer to Belding with different titles. (See,
e.g., Doc. 37 at 4 (“supervisor in the inspector group”); Belding Decl. at ¶
1 (“Manager-Product Integrity”); Webb Decl. at ¶ 3 (“Department Manager of
Quality Control”)).
2
2; Webb Decl. at ¶ 7.
“Shift manager” is AK Steel’s “first
level salaried position.”
See Doc. 37 at pg. 3.
The lockout lasted until March 15, 2007, when a new
collective bargaining agreement was reached and the regular
employees began to return to the steel mill.
Hull Decl. at ¶ 2.
On July 8, 2007, Plaintiff reapplied to be hired as a regular
full-time employee, and Belding selected her for hire.
remained working in her same “inspector” capacity.
She
See, e.g.,
Complaint at ¶ 15; Doc. 35-3 at 46-54 (Exhs. 32-35); Belding
Decl. at ¶ 3; Webb Decl. at ¶¶ 8-9.
As part of her application
to become a full-time employee, Plaintiff asserts that she was
required to take a new physical.
Doc. 47 at pg. 6.
Plaintiff
claims that she disclosed her medical issues to the doctor at
this second physical examination. Id.
Shortly after she became a full-time employee, in September
2007, Plaintiff applied to Belding for a shift-manager position.
Doc. 35-3, Ex. 36.
It was around this same time that Plaintiff
claims she began to experience racial and sexual discrimination
at AK Steel.
Specifically, the declarations submitted by
Plaintiff describe three specific instances of harassment
towards Plaintiff: (1) an incident where an unidentified co-
3
worker ran his fingers through Plaintiff’s hair;2 (2) co-workers
placed a bottle of urine on an air conditioner above Plaintiff’s
work station so the bottle would leak on her;3 and (3) a noose
made out of electrical tape was placed above Plaintiff’s chair.4
As for specific comments, Anthony Webb, a former shift manager
at AK Steel, recalls that after the strike ended, shift manager
Tim Swindell called Plaintiff “Buckwheat” and this manager and
another spread rumors that Plaintiff formerly worked as a
“hooker in Alaska.”
Webb Decl. at ¶ 13.
Lucy Freeman, a former
temporary worker at AK Steel, stated that, after the strike
ended, racially derogatory comments appeared on the wall of the
“unisex bathroom in the manager’s area . . . ‘nigger,’ ‘go back
to Africa,’ ‘monkeys.’” Lucy Freeman Declaration at ¶ 10.
Lastly, Bryant Pickens, who, like Plaintiff, was later hired as
a regular employee, asserts that, while he was a temporary
2
See Pickens Decl. at ¶ 11 (“complained about his touching her hair [and]
[w]hen she told the supervisor he merely laughed. This was common knowledge
among the workers and I heard the supervisor . . . joking about it with
others.”); Freeman Decl. at ¶ 8 (“supervisory level male running his hands
through her hair”).
3
See Pickens at ¶ 13 (“bottles of urine being secretly placed on an air
conditioner above where [she] was seated so it would splash on her when
operations would shake the chamois.”); Freeman Decl. at ¶ 8 (“a bottle of
urine was placed in the dropped ceiling above [Plaintiff’s] workstation . .
.causing us to think the liquid dripping down on her (and me) was from the
air conditioning . . .”).
4
See Pickens Decl. at ¶ 13; see also Freeman Decl. at ¶ 8 (“a noose was
placed in [Plaintiff’s] work booth”).
4
worker, “Caucasian supervisors, as well as Department Manager
Bill Belding, frequently ma[de] racially derogatory statements
loud enough for black African American workers (like myself) to
hear.”
Pickens Decl. at ¶ 11.
Pickens does not specify the
nature of these comments and, in particular, does not mention
what Belding said.
In late November of 2007, Plaintiff alleges that Belding
altered her work schedule and she was demoted to the position of
“floater.”
See Doc. 1 at ¶ 22; Hull Decl. at ¶ 6.
Shortly
thereafter, on January 18, 2008, Belding awarded the shiftmanager position Plaintiff had applied for to Ramenia Chisholm,
an African-American female who was also a former temporary
worker. Belding Decl. at ¶ 2; Hull Decl. at ¶ 5.
That same day,
Plaintiff lodged a complaint with AK Steel’s Ethics Hotline
alleging Belding passed over her due to favoritism for Chisholm.
Hull Decl. at ¶ 5; Powell-Pickett Depo. Volume III at 82
(stating that Belding discriminated against her because, “[h]e
trained Ramenia”).
Amy Hull, a representative in AK Steel’s
Labor Relations Department, states that AK Steel conducted an
investigation and found no merit to the complaint. Id.
5
On March 27, 2008, Plaintiff filed an EEOC charge.5
¶ 6.
Id. at
According to Hull’s declaration and an email attachment
that summarizes Plaintiff’s “issues,” her EEOC charge included
complaints about scheduling, not being selected for the shiftmanager position, and retaliation for lodging a complaint with
the Ethics Hotline.
Id. at ¶¶ 5-7; Belding Decl. (Ex. A, email
from Belding dated 11/12/2008 and from Hull dated 10/6/08).
A
few months after Plaintiff filed her EEOC charge, Anthony Webb
sent an email to Bill Belding, Greg Glodowski, and Kelly
Higgins, reporting a number of complaints on Plaintiff’s behalf.
Doc. 48-2.
These complaints all referenced Plaintiff’s
perceived unfairness in scheduling.6
Id.
5
There is some ambiguity in the record as to when Plaintiff filed her EEOC
charge. See Hull Decl. at ¶ 6 (claiming that Plaintiff filed her EEOC charge
on March 27, 2008); Complaint at ¶ 22 (stating Plaintiff filed an EEOC charge
in March of 2008); compare Powell-Pickett Decl. at ¶ 7 (claiming she filed
her EEOC charge on December 6, 2007). Plaintiff confirmed in her responsive
memorandum that she filed her first EEOC charge “[a]fter the promotion of Ms.
Chisholm.” See Doc. 47 at pg. 9. Chisholm’s promotion occurred on January
18, 2008, which indicates that the date of the filing of the EEOC charge was
March 27, 2008.
6
Webb’s email stated:
Angela Powell-Pickett says she feel (sic) she is not being
treated fairly.
She want (sic) to know why she is consistantly
(sic) scheduled on #5 Pickler, which pays less than any other
unit.
A unit which don’t
(sic) run half the time.
She also
want (sic) to know why she is and has been bounced around, when
there are six people with less seniority. She also want (sic) to
know why she has to request a long weekend off when other
inspectors are granted one automatically.
She said she did not
ask for two O.B.P. days.
She asked to be scheduled off.
She
said, while considering not having constructive training in the
department, she has done everything AK has asked of her in
inspecting on the other units with no problems.
6
On September 12, 2008, Plaintiff submitted a request for
leave under the Family Medical Leave Act (FMLA). See Doc. 48-4.
Plaintiff’s doctor recommended FMLA leave from 9/10/2008 until
9/26/2008 because Plaintiff’s daughter had surgery to repair an
ACL tear in her knee.
Id.
Plaintiff’s doctor also recommended
intermittent FMLA leave for 6 additional months so that
Plaintiff could take her daughter to and from physical therapy
appointments.
Id.
The doctor suggested that Plaintiff would
need the intermittent leave 1-2 times per month for 6 months.
Id.
Plaintiff claims that she was thereafter denied FMLA leave
for that purpose.
See Doc. 47 at pg. 12; Webb Decl. at ¶ 32.
On September 30, 2008, Plaintiff complained directly to
Hull that she was being harassed and retaliated against because
she was a replacement worker. See Hull Decl. at ¶ 7.
Hull
states that she met again with Plaintiff on October 3, 2008, so
that she could further understand Plaintiff’s complaints.
Id.
Hull asserts that she investigated the complaints, and on
December 22, 2008, she informed Plaintiff that she had not
uncovered a violation of any policy.
Id.
Eventually, on January 27, 2009, the EEOC invited Plaintiff
and AK Steel to a mediation in reference to the charge she had
filed in March of 2008.
See Hull Decl. at ¶ 8.
At this
mediation, the parties executed a settlement where Plaintiff
7
agreed not to initiate a lawsuit and AK Steel agreed the EEOC
proceedings “will not be held against her regarding future
assignments and career development.”
Id., Ex. 2.
Beginning February 27, 2009, Plaintiff took a leave of
absence based on Dr. Terrence Conti’s assessment that several
physical and mental conditions would render her “totally
disabled” for a month, but “able to return to work 3/28/09.”
Doc. 35-3 at 3 (Ex. 10).7
She also “applied for benefits under
the company’s Sickness & Accident policy.”
Complaint at ¶ 24.
Prior to her return to work, and pursuant to AK Steel’s policy,
a company physician examined Plaintiff on March 23, 2009.
Hull Decl. at ¶ 9.
See
At this examination, Plaintiff disclosed to
the examining physician that she had a thyroid issue and that
she previously had a cyst removed.
Id.
Additionally, Plaintiff
disclosed a prior work-related injury she had sustained while
employed with General Electric.
Id.
Shortly after being notified of the inconsistencies in the
medical questionnaire, Plaintiff was suspended and, on April 15,
2009, AK Steel terminated her for the same reason.
Soon
thereafter, Plaintiff filed a charge with the EEOC in regards to
her termination from AK Steel.
Plaintiff’s union also
7
Dr. Conti diagnosed her with “irritable bowel syndrome, chronic back pain,
spinal stenosis, and anxiety neurosis.” (Doc. 35-3 at 3).
8
challenged AK Steel’s decision to terminate her, but it did not
take the matter to arbitration.
Id. at ¶¶ 11-13; see also
Complaint, ¶¶ 27-29.
According to Hull, during the almost decade preceding
Plaintiff’s termination, AK Steel has discharged a total of
twenty-nine employees for “falsification.”
This group includes:
twenty-one white males; six white females; one African-American
male; and one African-American female, Plaintiff.
See Hull
Decl. ¶ 10; Doc. 54-1 at 1-2, ¶ 2 (“Hull Supp. Decl.”) compare
Pickens Decl., ¶ 7 (“While working at AK Steel, I had regular
contact with numerous temporary employees and none were
questioned, disciplined or terminated because of any
discrepancies with their job application process.”).
On May 24, 2010, Plaintiff filed this action, alleging
she was treated less favorably, subjected to harassment and
retaliation, and ultimately terminated based on her race,
gender, disability, and/or protected activity.
Her fifteen-
count Complaint raises claims under various federal statutes,
Ohio’s counterparts to those statutes, and for breach of an EEOC
settlement agreement. See Doc. 1.
A year after filing the
Complaint and one request for an extension of the discovery
deadlines by Plaintiff, the parties were scheduled to take
Plaintiff’s deposition on June 26, 2011.
9
See Doc. 9; Deposition
of Angela Powell-Pickett Volume I.
During Plaintiff’s first
deposition, defense counsel immediately began to ask Plaintiff
questions regarding some inconsistencies in Plaintiff’s
recently-filed bankruptcy petition.
After only approximately a
half-hour, Plaintiff took a break, fainted, and was taken to the
hospital.
See Plf. Depo. at 23, 28.
On September 7, 2011, Plaintiff’s counsel was granted leave
to withdraw.
See Doc. 18.
The Court also ordered Plaintiff to
notify it on or before November 7, 2011, whether she had
obtained new counsel or intended to proceed pro se.
Id.
After
receiving a letter from Plaintiff stating she was unable to
obtain new counsel, the Court ordered on November 3, 2011, that
Plaintiff would proceed pro se.
See Doc. 19.
Shortly
thereafter, Defendant sent Plaintiff two letters offering dates
to resume her deposition.
See Doc. 21, attachment 1.
After
receiving no response, Defendant sent Plaintiff a Notice of
Deposition for November 23, 2011.
Id., attachment 2.
failed to appear for this deposition.
Plaintiff
Id.
Shortly thereafter, Plaintiff filed a Motion to Appoint
Counsel.
See Doc. 22.
On December 13, 2011, the Court denied
the motion and ordered Plaintiff to participate in discovery,
including appearing at her deposition.
See Doc. 24.
The
parties agreed on December 20, 2011, and Plaintiff appeared, pro
10
se, at this deposition.
Volume III.
Id; See also Powell-Pickett Depo.
At this deposition, defense counsel questioned
Plaintiff about inconsistencies in her bankruptcy petition and
other prior misrepresentations to the Ohio Department of Job and
Family Services.
See id. at 39-60. Additionally, during this
deposition, defense counsel introduced Exhibit 8 and used it to
establish that she was discharged on an earlier date than what
she represented in her bankruptcy filing.
Id. at 34-36.
Exhibit 8 to Plaintiff’s deposition consists of an undated,
handwritten list of reasons why Plaintiff believes she was
subjected to discrimination, harassment, and retaliation.
Doc. 35-3 at 1 (Exh. 8) (“Plf. Exhibit 8”).
See
As the deposition
continued, defense counsel asked Plaintiff about the bases for
each of her specific claims. See id. at 61-85.
Plaintiff
responded substantively to some questions, but mostly was
uncooperative and responded that she “could not recall at this
time” the basis for her claims.
Id.
Plaintiff’s second counsel entered his appearance on
January 3, 2012, and the Court ordered the discovery deadline
extended until February 29, 2012.
See Doc. 26; Doc. 31.
Defendant filed its Motion for Summary Judgment on March 14,
2012, and Plaintiff, after receiving extensions, filed her
response on May 10, 2012.
See Doc. 37; Doc. 47.
11
In addition to
her response, Plaintiff also filed declarations from Anthony
Webb (Doc. 48), Bryant Pickens (Doc. 47-1), Joe Lee Quarles
(Doc. 51), and herself (Doc. 50).
Shortly thereafter, Defendant
filed its reply in support of summary judgment and a motion to
strike Plaintiff’s affidavit.
See Doc. 53; Doc. 54.
Approximately five weeks later, Plaintiff filed a motion for
leave to file the declaration of Lucy Freeman in support of its
memorandum in opposition to summary judgment, to which Defendant
filed a response.
See Doc. 55; Doc. 56.
On September 20, 2012, the Court held oral argument on all
pending motions, and thereafter took them under submission.
At
oral argument, Plaintiff abandoned her disability claims under
Counts IX and X.
ANALYSIS
1) DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S DECLARATION
Defendant argues that paragraphs 5-17 of Plaintiff’s
declaration should be struck because they contradict her
deposition and attempt to create an issue of fact that did not
previously exist. See Doc. 53.
Specifically, Defendant points
to pages 81-85 of Plaintiff’s deposition where Plaintiff
continuously states that “[she] [doesn’t] recall” the bases for
her claims.
Id. at pgs. 1-4.
12
A party cannot create a disputed issue of material fact by
filing a declaration that contradicts the party's earlier
deposition testimony. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448
F.3d 899, 906 (6th Cir. 2006); see also Reid v. Sears, Roebuck &
Co., 790 F.2d 453, 460 (6th Cir.1986) (establishing the general
principle).
The inquiry for admissibility of a post-deposition
affidavit in the Sixth Circuit is twofold.
See, e.g., O'Brien
v. Ed Donnelly Enters., Inc., 575 F.3d 567, 593 (6th Cir. 2009).
The Court must first determine if Plaintiff’s declaration
“directly contradicts” her deposition testimony and, if so,
whether she “provides a persuasive justification for the
contradiction.”
F.3d at 593.
Aerel, 448 F.3d at 908; see also O’Brien, 575
If the declaration is not directly contradictory
or if a Plaintiff gives a sufficient justification, then the
only basis to strike the declaration is if the Court determines
that it “constitutes an attempt to create a sham fact issue.”
Id. (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
1986)(internal quotations omitted)).
Citing to the Tenth Circuit decision in Franks, the Court
in Aerel noted that the existence of a sham fact issue turns on
“whether the affiant was cross-examined during [her] earlier
testimony, whether the affiant had access to the pertinent
13
evidence at the time of [her] earlier testimony or whether the
affidavit was based on newly discovered evidence, and whether
the earlier testimony reflects confusion [that] the affidavit
attempts to explain.” Id.
Although she has not filed a formal response to Defendant’s
Motion to Strike her declaration, Plaintiff argued in her
response to Defendant’s Motion for Summary Judgment,
“. . .that [the] deposition needs some
context. [Plaintiff] was alone (sic) without
counsel and against a seasoned and talented
attorney who took full advantage of the
unequal position by hammering through the
first
half
of
the
deposition
at
discrepancies in [a] medical record of a
doctor who has shut his practice and
disappeared and a bankruptcy [petition]
[and] went to great effort to cast . . .
aspersions
on
[her]
character
for
truthfulness.”
Doc. 47 at pg. 1.
Plaintiff also directs the Court’s attention
to Exhibit 8 of her deposition, which is a handwritten list of
allegations and statements regarding Plaintiff’s claims, arguing
that Defendant should have cross-examined her about each of the
allegations on this document.
Id. at 1-2.
Although the Court takes note that Plaintiff was
unrepresented at this deposition, Plaintiff’s reason for
contradicting her deposition testimony is not a persuasive
justification.
As noted in the procedural history of this case,
14
this was not Plaintiff’s first attempted deposition in this
matter.
Additionally, the questions asked by defense counsel
were direct, pointed questions about what evidence Plaintiff had
to support her numerous claims.
Moreover, as evidenced by
Exhibit 8 to her deposition, Plaintiff’s assertions in her
declaration were not based on newly discovered evidence.
document was fragmented and unorganized.
The
In essence, the
Plaintiff’s continual answering, “[I] don’t recall” to questions
designed to clarify her own testimony amount to a refusal to
testify.
If Plaintiff knew the bases for her claims, she “was
required to say so at [her] deposition when [she] was
specifically questioned on the subject.” Preston v. Clayton
Homes, Inc., 167 F. App'x 488, 491-92 (6th Cir. 2006)(citation
omitted); see also Peck v. Bridgeport Machines, Inc., 237 F.3d
614, 619 (6th Cir. 2001)(excluding plaintiff’s statement as
contradictory when he testified in his deposition that he had no
other opinions regarding the defendant’s duty to warn).
Thus, the factors outlined in Aerel weigh in favor of the
Defendant.
Therefore, paragraphs 5-17 of Plaintiff’s
declaration are hereby ordered struck from the record.
15
2) PLAINTIFF’S CLAIM FOR RACIALLY HOSTILE WORK ENVIRONMENT
Federal and Ohio hostile work environment claims are
analyzed identically.
See, e.g., Satterfield v. Karnes, 736 F.
Supp. 2d 1138, 1157 (S.D. Ohio 2010); Young v. Dayton Power and
Light Co., No. 1:11–cv–119, 2012 WL 1680100, at **4-5 (S.D. Ohio
May 14, 2012). To succeed, Plaintiff must establish that: (1)
she is an African-American, (2) was subjected to unwelcome
racial harassment, (3) the conduct constituting harassment was
based on race; (4) the harassment created a “hostile work
environment” as that phrase is defined; and (5) there is a basis
to impose liability on AK Steel.
See, e.g., Clay v. United
Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007) (citing
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)).
Defendant does not take issue with whether the conduct in fact
occurred, and instead focuses on the fourth and fifth elements.
There are slightly different standards for evaluating
whether an employer is liable for a hostile work environment. In
the case of a harassing co-worker, “[a]n employer is liable if
it knew or should have known of the charged . . . harassment and
failed to implement prompt and appropriate corrective action.”
Clark v. United Parcel Serv., Inc., 400 F.3d 341, 348 (6th Cir.
2005) (citing Hafford v. Seidner, 183 F.3d 506, 513 (6th. Cir.
1999) (internal quotation marks omitted)).
16
By contrast, “an
employer is vicariously liable for an actionable hostile work
environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Id. (citing
Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999)).
a. Supervisor Harassment
Here, the allegations of supervisor harassment include
Pickens’ contention that Belding “frequently” made “racially
derogatory” comments loudly enough for employees to overhear
(Pickens Decl. at ¶ 11); Webb’s contention that Swindell, a
shift manager, referred to Plaintiff as “Buckwheat” (Webb Decl.
at ¶ 13); and the allegations that an unknown supervisor ran his
fingers through Plaintiff’s hair. See Pickens Decl. at ¶ 11.
A “hostile work environment plaintiff needs to allege
sufficient specificity as to the time, place, and context of
alleged discriminatory statements to create a genuine issue of
material fact.”
Reynolds v. Federal Express Corp., No. 09–2692–
STA–cgc, 2012 WL 1107834, at *13 (W.D. Tenn. Mar. 31,
2012)(citation omitted).
Pickens’ bald assertion that Belding
would “frequently” make “racially derogatory” remarks lack the
specificity required to establish a hostile work environment.
Additionally, Plaintiff states in her deposition that she felt
Belding discriminated against her “[b]ecause [she] was a
replacement worker.”
Powell-Pickett Depo. at 81.
17
There is no
allegation that Plaintiff felt Belding discriminated against her
because of her race.
The remaining allegations of supervisor harassment are not
sufficiently severe or pervasive to find a hostile work
environment based on supervisor conduct.
Occasional offensive
utterances are not sufficiently severe or pervasive to create a
hostile work environment. Grace v. USCAR, 521 F.3d 655, 679 (6th
Cir. 2008); see also Williams v. CSX Transp. Co., Inc., 643 F.3d
502, 513 (6th Cir. 2011) (finding that “calling Jesse Jackson
and Al Sharpton ‘monkeys’ and saying that black people should go
back to where [they] came from are certainly insensitive,
ignorant, and bigoted. But they more closely resemble a mere
offensive utterance than conduct that is physically threatening
or humiliating.”)(internal quotations and further citation
omitted); Valentine-Johnson v. Roche, 386 F.3d 800, 814 (6th
Cir. 2004) (holding that one incident of touching was not
sufficiently frequent, severe, physically threatening, or
humiliating to constitute a hostile work environment even though
coupled with sexually suggestive comments).
b. Co-Worker Harassment
An employer is vicariously liable for co-worker harassment
of which it knew or should have known if it failed to take
appropriate remedial action, i.e., if its response manifests
18
indifference or unreasonableness. Gallagher v. C.H. Robinson
Worldwide, Inc., 567 F.3d 263, 276 (6th Cir. 2009) (citing
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir.
2008); McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir.
2005)).
To establish that the employer “knew or should have
known” of the co-worker harassment, the plaintiff need not
necessarily have reported it to a supervisor.
citation omitted).
Id. (further
Where harassment is pervasive, knowledge may
be imputed to the employer.
Id. (further citation omitted).
Plaintiff has offered no evidence herself, or through her
declarants, that she reported either the incident involving the
bottle of urine or the incident involving a noose made of
electrical tape to anyone at AK Steel.
An employer is deemed to
have notice of harassment reported to any supervisor or
department head who has been authorized - or is reasonably
believed by a complaining employee to have been authorized - to
receive and respond to or forward such complaints to management.
Gallagher, 567 F.3d at 277 (citing Bombaci v. Journal Community
Pub. Group. Inc., 482 F.3d 979, 984 (7th Cir. 2007)).
AK Steel
annually distributes its Equal Opportunity Policy Statement
which prohibits discrimination in hiring, training, promotion,
and the like, and specifically provides that “[h]arassment is
not tolerated in the workplace and violators are subject to
19
appropriate discipline.”
Doc. 54-1 at 4.
That policy also
requires violations to be reported “immediately” to specified
human resource personnel or to a “hotline.”
Id.
It is
undisputed that Plaintiff had used this “hotline” in January of
2008 to report her allegation that she was discriminated against
in regards to AK Steel’s decision not to promote her.
However,
Plaintiff has offered no evidence that she reported either the
urine or noose incident to anyone in management or through use
of AK Steel’s “hotline.”
Plaintiff and her declarants do assert
that Plaintiff complained, but their statements refer to
Plaintiff’s complaint about an unidentified supervisor touching
her hair, or their statements lack specificity altogether about
Plaintiff’s alleged complaints.8
The remaining allegations of racial harassment are not
pervasive enough to impute liability to AK Steel.
The remaining
allegations include when Plaintiff was called “Buckwheat”; an
unidentified co-worker running his fingers through Plaintiff’s
hair; the derogatory comments Pickens alleges were made by
Belding; and the racial graffiti written on the walls of a
unisex bathroom.
Initially, it should be noted that Plaintiff
8
See Quarles Decl. at ¶ 8 (“Management was certainly aware. . .”); Freeman
Decl. at ¶ 8 (. . .”male running his fingers through her hair. Angela
reported this incident. . . [s]he reported other incidents. . .”); Pickens
Decl. at ¶ 11 (“Angela complained about him touching her hair.”); Webb Decl.
at ¶ 11, 13 (“. . .when Angie would complain. . .”, “Angie first complained.
. . after Ms. Chisholm was given a shift manager job. . .”).
20
has offered no evidence that she was aware of the alleged racial
graffiti written on the walls of a unisex bathroom, nor does
Lucy Freeman state that this graffiti was reported to anyone.
See Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000)
(concluding that evidence was not relevant to the plaintiff's
hostile-work-environment claim because there was no evidence
that the plaintiff was aware of the conduct at the time).
Moreover, the allegations with regards to Belding and
Plaintiff’s handwritten document attached as Exhibit 8 to her
deposition lack specificity in regards to time, place, or
frequency of the alleged occurrences.
The Court cannot use this
allegation as a basis to find that the racial harassment was so
pervasive as to impute liability to AK Steel.
See Cooper, 742
F.Supp.2d at 956; see also Ladd v. Grand Trunk W. R.R., Inc.,
552 F.3d 495, 501 (6th Cir. 2009) (“[Plaintiff] has alleged that
she was subject to derogatory sex-based comments on a daily
basis, but without specifics it is difficult to adjudge their
severity.”).
Each of the other allegations, although severe as they may
be, was only alleged to have happened to Plaintiff or, in the
case of the urine bottle and the noose, in her immediate work
space.
Furthermore, besides the declarants’ conclusory
statements that AK Steel was a “hostile work environment” and
21
Lucy Freeman’s allegations of racial graffiti, no other
declarant asserts any occurrences of racial harassment in the
workplace.
The fact that this steel plant employs nearly 2,000
people, combined with the isolated nature of these remaining
allegations, does not allow for a finding that knowledge of
these allegations can be imputed to AK Steel.
Therefore, Plaintiff cannot establish the fifth element
required for a showing of a racially hostile work environment.
Thus, there are no issues of material fact upon which a
reasonable jury could find that Plaintiff has established a
prima facie case for a racially hostile work environment.
c. Sufficiently severe or pervasive work environment
Even if Plaintiff was able to show that Defendant knew or
should have known of the harassment, Plaintiff cannot establish
that the alleged harassment was sufficiently severe or pervasive
so as to alter the conditions of her work environment.
Under
the fourth prong outlined above, the applicable “test for a
hostile work environment has both objective and subjective
components.” Williams v. Gen. Motors Corp., 187 F.3d 553, 566
(6th Cir. 1999).
In order to establish the subjective
component, Plaintiff must “subjectively perceive the environment
to be abusive.”
Id. (citing Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)).
22
At her deposition, Plaintiff testified that she “[did not]
recall” the bases for her claim that she was harassed because of
her race.
See Powell-Pickett Depo. at 85.
Without any evidence
establishing that she subjectively perceived the environment at
AK Steel to be abusive, Plaintiff cannot prove a prima facie
case for racially hostile work environment.
Therefore, Plaintiff also cannot establish the fourth
element required for a showing of a racially hostile work
environment.
Thus, there are no issues of material fact upon
which a reasonable jury could find that Plaintiff has
established a prima facie case for a racially hostile work
environment.
3) PLAINTIFF’S CLAIM FOR SEXUALLY HOSTILE WORK ENVIRONMENT
“Hostile work environment claims based on racial harassment
are reviewed under the same standard as those based on sexual
harassment.”
National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116 n. 10 (2002); see also Jackson v. Quanex Corp., 191
F.3d 647, 658 (6th Cir. 1999) (same). To determine whether
harassment is sufficiently severe or pervasive to constitute a
hostile work environment, the court must consider the totality
of circumstances. Williams, 187 F.3d at 562 (citing Harris, 510
U.S. at 23). However, for a sexually hostile work environment
claim, the third prong of the prima facie case requires the
23
plaintiff to establish that the harassment was based on sex.
See, e.g., Randolph v. Ohio Dept. Of Youth Services, 453 F.3d
724, 733-34 (6th Cir. 2006).
To establish that conduct was “based on her sex,” a
plaintiff “must show that but for the fact of her sex, she would
not have been the object of harassment.” Williams, 187 F.3d at
565 (citing Henson v. City of Dundee, 682 F.2d 897, 904 (11th
Cir. 1982)).
In this case, the declarations submitted by
Plaintiff indicate that the harassment was targeted at all
African-Americans, not specifically females.
See Webb Decl. at
¶ 12 (“racial differences made things worse.
It was an
extremely hostile work environment.”); Pickens Decl. at ¶ 11
(“frequently make racially derogatory statements loud enough for
black African-American workers to hear. . .”); Quarles Decl. at
¶ 8 (“I decided not to reapply because of what I perceived as a
racially hostile environment.”); Freeman Decl. at ¶ 10 (“[o]n
the wall were many racially derogatory comments directed at
blacks. . .”).
The only alleged incidents which could be considered as
“based on her sex” were the unknown supervisor running his hands
through Plaintiff’s hair, and a rumor that Plaintiff was
previously a “hooker in Alaska.” See Pickens Decl. at ¶ 11; Webb
Decl. at ¶ 13.
These two incidents are not sufficiently severe
24
or pervasive so as to constitute a sexually hostile work
environment.
See, e.g., Valentine-Johnson v. Roche, 386 F.3d
800, 814 (6th Cir. 2004) (holding that one incident of touching
was not sufficiently frequent, severe, physically threatening,
or humiliating to constitute a hostile work environment even
though coupled with sexually suggestive comments).
Therefore, Plaintiff cannot show that the alleged sexual
harassment was “sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working
environment.”
Williams, 187 F.3d at 560, 562.
Thus, there are
no issues of material fact upon which a reasonable jury could
find that Plaintiff has established a prima facie case for a
sexually hostile work environment.
4) PLAINTIFF’S CLAIMS FOR RACE AND GENDER DISCRIMINATION
To make a prima face showing of discrimination, Plaintiff
must establish that she (1) is a member of the protected class;
(2) suffered an adverse employment action; (3) was qualified for
the position; and (4) was replaced by someone outside the
protected class or was treated differently than similarlysituated, non-protected employees.
Lattimore v. Wild Flavors,
Inc., No. 2:09-cv-023-WOB-JGW, 2012 WL 208078, at *10 (E.D. Ky.
Jan. 23, 2012) (and cases cited therein); see also, e.g., Henry
25
v. Delta Air Lines, No. 2:10–cv–00009–WOB–JGW, 2011 WL 3444089,
at *7 (E.D Ky. Aug. 8, 2011) (same).
Plaintiff alleges three types of “adverse action” –
promotion, scheduling, and termination.
Termination qualifies
as “adverse,” as does “failing to promote, reassignment with
significantly different responsibilities, or a decision causing
a significant change in benefits.”
Spees v. James Marine, Inc.,
617 F.3d 380, 391 (6th Cir. 2010) (internal quotations and
citations omitted).
Here, the declarants assert that the lines
and shifts to which an employee was assigned affected the amount
of money the employee could make.
consequences also qualify.
Less favorable financial
See Santana v. U.S. Tsubaki, Inc.,
632 F. Supp. 2d 720, 722 (N.D. Ohio 2009) (citing White v.
Burlington Northern & Santa Fe Railway Co., 310 F.3d 443, 450
(6th Cir. 2002), for the proposition that “material adverse
change includes a termination in employment, a demotion
evidenced 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”).
a. Promotion
To establish a prima facie discrimination claim concerning
the denial of a promotion, a plaintiff must show: (1) that he or
26
she is a member of a protected class; (2) that he or she applied
for and was qualified for the promotion; (3) that he or she was
considered for and denied the promotion; and (4) other employees
of similar qualifications who were not members of the protected
class received promotions.
Leadbetter v. Gilley, 385 F.3d 683,
690 (6th Cir. 2004)(further citation omitted).
Since Plaintiff has put forth no evidence to meet the
fourth prong above, she cannot establish a prima facie case for
race or gender discrimination in regards to her promotion.
Ramenia Chisholm, who is the same race and gender as the
plaintiff, received the promotion to shift manager.
In arguing
that she was discriminated against in regards to AK Steel’s
failure to promote her, Plaintiff points to the fact that
Chisholm is currently no longer employed as the shift manager.
However, Plaintiff’s argument that Defendant selected Chisholm
for the shift manager position because it knew there was a
likelihood that she would fail in that position is rank
speculation.
Not only does Plaintiff offer no evidence to
support this contention, Defendant has proffered undisputed
evidence that Chisholm is still employed at AK Steel and she
voluntarily left the shift manager position so she could work as
a day-shift employee.
See Belding Affidavit at ¶ 2.
27
Therefore, Plaintiff cannot establish a prima facie case in
regards to her claim that AK Steel’s failure to promote her to
shift manager was motivated by race or gender.
b. Scheduling
Plaintiff contends that, in November of 2007, Bill Belding
demoted her to a “floater,” and scheduled her in a way that was
punitive or inconsistent with how others were treated and/or
resulted in less pay.
According to Plaintiff, her demotion to
floater “removed” her from an unspecified position that a white
male then filled.
Presumably this male was Keith Higgins, the
only person mentioned by name as having replaced Plaintiff.9
There is no indication that Defendant disputes any of the first
three elements of the prima facie case.
Thus, construing all
reasonable inferences in favor of Plaintiff, she can establish a
prima facie case for race and gender discrimination.
However, Plaintiff has not rebutted Defendant’s legitimate,
non-discriminatory reason for Plaintiff’s alleged demotion.
Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008)
9
Plaintiff has not been entirely clear about when she alleges that some of
her duties were reassigned to Higgins. Plaintiff’s Complaint provides that
the “late 2007” removal and assignment as a “floater” was accompanied by
replacement with an unidentified “less qualified Caucasian male.” Complaint
at ¶ 21. Plaintiff’s declaration, however, states that Higgins replaced her
in “January 2009,” not 2007. See Powell-Pickett Decl. at ¶ 10 (“In January
2009, I was replaced by Keith Higgins (white male) less qualified; less
seniority, Caucasian male.”).
28
(citing Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th
Cir. 2001)).
A plaintiff may establish that an employer's
stated reason for its employment action was pretextual by
showing that the reason (1) had no basis in fact, (2) did not
actually motivate the challenged conduct, or (3) is insufficient
to explain the challenged conduct.
Upshaw v. Ford Motor Co.,
576 F.3d 576, 586 (6th Cir. 2009) (citation omitted). The
plaintiff must produce “sufficient evidence from which the jury
could reasonably reject [the defendant's] explanation and infer
that the [defendant] intentionally discriminated against [her].”
Id.
(citing Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.
2003)) (alteration in original). “The jury may not reject an
employer's explanation ... unless there is a sufficient basis in
the evidence for doing so.”
Id. (citation omitted).
Defendant asserts that Plaintiff’s training as a full-time
employee required her to be trained on a number of different
“lines.”
In regards to this issue, Bill Belding stated:
Powell-Pickett was never a ‘floater’ when
she was employed as an inspector.
We did
not have floaters in inspection. During the
lockout,
temporary
replacement
workers
brought in as inspectors generally were
required only to work one of the various
inspection lines.
Powell-Pickett was an
inspector on the Pickler line.
The company
did not want to invest the time or training
during the lockout to make sure that these
temporary inspectors knew all of the phases
of the inspection jobs.
Once the lockout
29
ended, I selected Powell-Pickett to be
employed as a regular, full-time employee.
But as a regular, full-time employee, she
had to learn more than just the Pickler line
inspection and so we had her training on a
number of different lines.
Maybe she
thought this was ‘floating,’ but this is the
way that we train all our new inspectors.
See Belding Decl. at ¶ 3.
Since Defendant has proffered a
legitimate, non-discriminatory reason for Plaintiff’s altered
work schedule, the burden shifts to Plaintiff to show that this
reason was pretext for race or gender discrimination.
This is where Plaintiff’s claim for race and/or gender
discrimination based on the changes in her schedule fails.
Plaintiff has proffered no evidence from which a jury could
reasonably reject Defendant’s explanation and infer that the
Defendant intentionally discriminated against her.
In fact,
Plaintiff explicitly stated in her deposition that she believed
Belding discriminated against her because she was a replacement
worker.
See Powell-Pickett Depo. Volume III at 81. Thus,
Plaintiff’s lack of evidence coupled with her own statement
regarding Belding’s motivation for his alleged discrimination
provides no basis upon which a jury could reasonably reject
Defendant’s legitimate, non-discriminatory reason for the change
in Plaintiff’s work schedule.
30
Therefore, Plaintiff cannot establish that Defendant’s
legitimate, non-discriminatory reason for the change in her work
schedule was pretext for race or gender discrimination.
c. Termination
Similar to Plaintiff’s claim for race and gender
discrimination in AK Steel’s failure to promote her, Plaintiff
cannot establish the fourth prong of a prima facie case for
discrimination in regards to her termination.
Plaintiff cannot
prove that she was replaced by an individual outside her
protected class or that she was treated differently than a
similarly-situated individual.
Defendant has identified 29
individuals, the majority of which are Caucasian males, who were
also terminated for falsification on the pre-hire medical
questionnaire and other documents.
See Hull Decl. at ¶ 10;
Supplemental Hull Decl. at ¶ 2.
However, even if Plaintiff was able to establish a prima
facie case of race and/or gender discrimination, she again could
not rebut Defendant’s legitimate non-discriminatory reason for
her termination by showing that it was pretext. Russell v. Univ.
of Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (citing Newman v.
Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001)).
By basing her pretext argument on the allegations that a
company nurse instructed her to only include any medical or
31
work-injury history within the past five (5) years and the
allegation that she included her full history on a subsequent
application, Plaintiff is alleging that AK Steel’s reason for
her termination has no basis in fact.10
Her primary focus on the
nurse, however, is misplaced, because an issue of fact about the
nurse’s instruction does not undermine the fact that Plaintiff’s
initial medical questionnaire contains omissions.
The “honest
belief” doctrine precludes Plaintiff from establishing pretext
simply because AK Steel may have relied on a falsification that
proves “incorrect.”
See, e.g,. Steele v. Oasis Turf & Tree,
Inc., 1:10-CV-769-HJW, 2012 WL 3028514 at *10 (S.D. Ohio July
25, 2012); Henry, 2011 WL 3444089, at *10.
Plaintiff’s allegation that she told a company physician
about the omitted conditions, and filled out another
questionnaire that has since gone missing, stands in the same
10
Plaintiff maintains she failed to fully disclose her prior health issues
and work injuries because the nurse who was supervising the applicants
specifically told them to only report their medical history and any workrelated injuries which occurred within the past five (5) years. Plaintiff’s
Complaint, her testimony, and her declarants support this contention. See
Complaint, ¶¶ 12-14; Pickens’ Decl. at ¶ 4, 6; Powell-Pickett Depo. at 68;
Quarles Decl. at ¶ 6; Webb Decl. at ¶ 6.
Plaintiff also maintains that when she was hired as a permanent worker,
she underwent another physical examination by a company physician, and told
him about her thyroid and . . . conditions. Complaint, ¶¶ 16-17 (“Plaintiff
again completed a medical history questionnaire . . . . The doctor who
assisted Plaintiff . . . gave [her] a different instruction with regard to
the time frame for reporting. Consequently, Plaintiff reported a 1999 back
injury and a thyroid condition that was treated in the early 1990s.”).
32
posture.
Not only is this allegation unsupported,11 if the later
documentation listing certain conditions is missing, then AK
Steel would not have been privy to it when uncovered the
falsification.
To the extent Plaintiff is suggesting the later
documents are missing because AK Steel intentionally destroyed
the evidence, the allegation is conclusory and rank speculation,
and insufficient to raise a genuine issue of fact.
“Although
the summary judgment standard requires that evidence of record
be viewed in the light most favorable to the nonmoving party, it
does not require that all bald assertions and subjective
unsupported opinions asserted by the nonmoving party be adopted
by a court.”
Steele, 2012 WL 3028514, at *9; see also
Lattimore, 2012 WL 208078 at *13.
Therefore, Plaintiff cannot establish a prima facie case of
age or race discrimination based on her discharge.
Additionally, if Plaintiff could establish a prima facie case,
she would not be able to establish that Defendant’s legitimate,
non-discriminatory reason for her discharge was pretext.
5) PLAINTIFF’S CLAIMS FOR RETALIATION
To make a prima facie case of retaliation, Plaintiff must
establish that she: (1) engaged in activity protected by Title
11
Lucy Freeman, the only one of Plaintiff’s declarants who remained as a
permanent employee after the strike, does not support this assertion.
Freeman only says that she “had to go through another physical” and “may have
filled out more forms.” Freeman Decl., ¶ 7 (emphasis added).
33
VII; (2) AK Steel knew of the exercise of her civil rights; (3)
it took an employment action adverse to her; and (4) there is a
causal connection between the protected activity and the adverse
employment action.
See Lattimore, 2012 WL 208078, at *16 (and
cases cited therein).
Plaintiff can establish the first three elements without
dispute.
The protected activities Plaintiff engaged in were:
(1) her complaint to AK Steel’s Ethics Hotline on January 18,
2008; (2) her EEOC charge filed on March 27, 2008; (3) her
complaint to AK Steel’s Labor Relations representative Amy Hull
on September 30, 2008; and (4) the EEOC settlement agreement
reached between Plaintiff and AK Steel on January 27, 2009.
Similar to the analysis for race and gender discrimination,
Plaintiff alleges three types of “adverse action” – promotion,
scheduling, and termination.
a. Promotion and Scheduling
Plaintiff cannot establish a causal connection between her
protected activities and the alleged adverse actions relating to
the promotion of Chisholm or Belding’s scheduling decisions.
A
showing of causal connection through circumstantial evidence
requires proof that (1) the decision maker responsible for
making the adverse decision was aware of the protected activity
at the time that the adverse decision was made, and (2) there is
34
a close temporal relationship between the protected activity and
the adverse action. See, e.g., Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001).
Plaintiff asserts that she was demoted to the position of
“floater,” in November of 2007.
However, Plaintiff engaged in
no alleged protected activity prior to November of 2007.
Thus,
there cannot be a causal connection between any of Plaintiff’s
protected activities and her alleged demotion to “floater.”
Additionally, Defendant made the decision to promote
Chisholm over Plaintiff on January 18, 2008.
This event was
what prompted Plaintiff to engage in her first protected
activity when she lodged a complaint with AK Steel’s Ethics
Hotline.
Again, Plaintiff had not engaged in any protected
activity prior to Defendant’s decision to promote Chisholm.
Thus, there cannot be a causal connection between any protected
activity and AK Steel’s decision to not promote Plaintiff.
b. Termination
The Court has already established in section 4(c), supra,
that Plaintiff cannot establish that Defendant’s legitimate,
non-discriminatory reason for her termination was pretext for
race or gender discrimination.
Plaintiff similarly cannot
establish that Defendant’s reason for her termination was a
pretext for retaliation.
Therefore, Plaintiff’s claim for
35
retaliation based on her termination is subject to summary
judgment.
6) PLAINTIFF’S CLAIM UNDER FMLA
Plaintiff clarifies that her FMLA claim is not based on a
retaliation theory, nor is it based on any injury or disability
to Plaintiff.
See Doc. 47 at pg. 12; see also Powell-Pickett
Depo. at 83-84 (when defense counsel asked why Plaintiff
believed AK Steel fired her due to “family medical leave,” she
did not “recall saying that,” and insisted that she was fired in
“retaliation” for filing an EEOC charge).
It is based on the
leave Plaintiff requested in the Fall 2008 to assist her
daughter.
Id.
On her FMLA certification form dated September 12, 2008,
and signed by an orthopedist, Plaintiff requested leave for a
finite period of sixteen days between September 10th and
September 26th to deal with the surgery and immediate aftermath.
There is no dispute that she requested, was granted, and took
that leave.
See Doc. 48-4 at 4-5.
The narrow basis for the
claim is Plaintiff’s request for the unspecified “intermittent”
leave on the FMLA form.
Id. at 5.
The form stated that for six
months after the surgery, Plaintiff would need to transport her
daughter one to two times per month for matters such as “office
36
visits, testing, xrays, . . . physical therapy, medications.”
Doc. 48-4 at 5.
Plaintiff believes she was denied leave due to her gender
or race because white males were allowed to use intermittent
leave to help family members.
Doc. 47 at pg. 12.
In response
to Belding’s October 1st inquiry, however, about Plaintiff’s
“restrictions / FMLA status for the next week,” Kelly Nelson
stated Plaintiff “has not been granted FMLA and will not be
until/unless she can provide medical certification for her need
to be off.
The certification that we have on file just allowed
her to be off until Sept 26 and then intermittent leave to take
her daughter to physical therapy.”
See Powell-Pickett Decl.,
AK00974.
“Among other things, to state and prevail on a claim for
FMLA ‘interference,’ the employee must have been entitled to
leave, notified the employer of his or her intention to use the
FMLA leave, and be denied the leave.”
920 (and cases cited therein).
Laws, 828 F. Supp. 2d at
Employees are entitled to take
leave to care for a child’s serious medical condition, 28 U.S.C.
§ 2612(a)(1)(C), and that leave can be intermittent so long as
it is medically necessary, id., § 2612(b)(1).
In requesting
this leave, employees must consider the employer’s schedule and
provide sufficient notice.
37
In any case in which the necessity for leave
under subparagraph (C) . . . of subsection
(a)(1) of this section . . . is foreseeable
based on planned medical treatment, the
employee—
(A) shall make a reasonable effort to
schedule the treatment so as not to disrupt
unduly the operations of the employer . . .;
and
(B) shall provide the employer with not less
than 30 days’ notice, before the date the
leave is to begin, . . . except that if the
date of the treatment requires leave to
begin in less than 30 days, the employee
shall provide such notice as is practicable.
Id. § 2612(e)(2)(A)-(B); see also 29 C.F.R. § 832.303(f)
(“Intermittent leave or leave on a reduced leave schedule must
be medically necessary due to a serious health condition or a
serious injury or illness.
An employee shall advise the
employer, upon request, of the reasons why the
intermittent/reduced leave schedule is necessary and of the
schedule for treatment, if applicable.
The employee and
employer shall attempt to work out a schedule for such leave
that meets the employee's needs without unduly disrupting the
employer's operations, subject to the approval of the health
care provider.”).
Plaintiff makes no allegation, and nothing in the record
shows, that she submitted any request for intermittent leave for
a particular date for a particular reason within that six-month
38
window, much less a timely one.
Nothing in the record
establishes that AK Steel approved Plaintiff to take
intermittent leave at any time during the six months without
requesting or properly documenting it.
As such, she fails to
establish a prima facie case of FLMA “interference.”
Laws, 828
F. Supp. 2d at 920.12
7) PLAINTIFF’S CLAIM FOR BREACH OF CONTRACT
Plaintiff’s claim for breach of contract is based on the
EEOC settlement agreement in which Plaintiff agreed not to
initiate a lawsuit and AK Steel agreed the EEOC proceedings
“will not be held against her regarding future assignments and
career development.”
To prove a breach of contract claim, a
plaintiff must show “the existence of a contract, performance by
the plaintiff, breach by the defendant, and damage or loss to
the plaintiff.”
Nilavar v. Osborn, 738 N.E.2d 1271, 1281 (Ohio
App. 2000) (citing Doner v. Snapp, 649 N.E.2d 42, 44 (Ohio App.
1994)).
Since Plaintiff cannot establish that AK Steel
terminated her in retaliation for the EEOC proceedings, she
cannot establish that Defendant breached the EEOC settlement
agreement.
12
See also, e.g., Anderson v. Avon Prods., Inc., 340 F. App’x 284 (6th Cir.
2009) (“The problem with Anderson's claim is that Avon did not deny his
request for FMLA leave. . . . Anderson had not submitted any FMLA
paperwork”); Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723 (6th Cir.
2003) (“To invoke the protection of the FMLA, an employee must provide notice
and a qualifying reason for requesting the leave.”).
39
Therefore, there are no issues of material fact upon which
a reasonable jury could hold AK Steel liable for breach of
contract.
Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,
IT IS ORDERED as follows:
1.
Defendant’s motion for summary judgment (Doc. 37) be,
and it is, hereby GRANTED;
2.
Defendant’s motion to strike Plaintiff Powell-
Pickett’s Declaration (Doc. 53) be, and it is, hereby GRANTED;
3.
Plaintiff’s motion for leave to file declaration of
Lucy Freeman in support of Plaintiff’s memorandum in opposition
to summary judgment (Doc. 55) be, and it is, hereby GRANTED; and
4.
A separate judgment shall enter concurrently herewith.
This 24th day of October, 2012.
40
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