Partridge v. Cincinnati

Filing 25

ORDER denying 15 Motion for Summary Judgment; denying 20 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 11/23/11. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

James Michael Partridge,
Plaintiff,
v.

Case No. 1:10cv627

City of Cincinnati,

Judge Michael R. Barrett

Defendant.
OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Doc.
20) and Defendant’s Motion for Summary Judgment (Doc. 15). These motions are fully
briefed and are ripe for review.
I.

BACKGROUND
Plaintiff began working for the City of Cincinnati Water Works in 2001. (Doc. 14,

James Partridge Dep. at 8.) On April 5, 2009, Plaintiff was promoted to the position of
maintenance machinist.

(Partridge Dep. at 22.)

According to the Classification

Specification for this position, an employee is required to complete a six-month
probationary period. (Doc. 20, Ex. A.) The Classification Specification is set by the City’s
Civil Service Commission. (Id.)1 Due to an error, Plaintiff’s probationary period was

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According to the City’s website:

The Civil Service Commission (CSC) is a three member, independent appellant
board for classified civil service employees. Responsibilities of the Commission
include: screening processes used for employee selection; the classification and
minimum qualifications set for positions; review of personnel transactions such as
transfers, reinstatements, provisional, emergency and exceptional appointments;
and appellate functions for suspensions of more than 3 days, dismissals,
demotions, layoff and medical separation.

thought to be only four months. (Doc. 19, Denise Browning Dep. at 17-19.) During this
time, Plaintiff was first supervised by Ronald Lambert, and then Carl McMullen. (Partridge
Dep. at 40.) In turn, Lambert and McMullen report to Mark Smith. (Doc. 13, Mark Smith
Dep. at 7.)
During his probationary period, Plaintiff received two “On-the-Job Training Reports”
and a “Probationary Employee Progress Report.” (Docs. 11-4, 11-5, 11-6.)
The first Training Report was completed on May 5, 2009, and is signed by Lambert
and Plaintiff. (Doc. 11-5.) The Report states: “one month is not enough time to assess his
progress.

So far his work is okay.”

(Id.)

The Report also states: “has trouble

communicating with fellow employees . . . does not accept advise [sic] or take directions
well.” (Id.) The Report explains that Plaintiff can satisfactorily use hand tools, lathe, mill
and drill press. (Id.) However, the Report states that Plaintiff “needs more practice time
on jobs, equipment and crew leading,” but that when “offered Mike to stay in shop and
practice machine, he did not take advantage 3 times, made Mike stay 2 days and practice.”
(Id.)
The second Training Report was completed on June 10, 2009, and is signed by
Lambert and Plaintiff. (Doc. 11-6.) The Report states that Plaintiff has satisfactorily laid
out jobs and set up precision machine operation, but “has trouble directing crew . . . has
trouble maching [sic] . . . does not except [sic] advise [sic].” (Id.) Below Plaintiff’s
signature, is a note stating: “forced to sign in order to get copy under protest.” (Id.)
The Probationary Employee Progress Report was completed on June 11, 2009.

http://www.cincinnati-oh.gov/cityhr/pages/-4279-/
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(Doc. 11-4.) The Report includes a checklist, which shows that Plaintiff was “Satisfactory”
in two categories: (1) regular and prompt attendance and (2) doing as much work as
expected. (Id.) Plaintiff was marked as “Needs Improvement” on the remaining categories:
(1) getting along with other workers, (2) accepting criticism, (3) learning quickly and easily
and (4) the expected quality of work. Below Plaintiff’s signature is a note stating: “forced
to sign in order to get a copy under protest.” (Id.)
On July 13, 2009, Plaintiff underwent spinal surgery. The City approved a period
of leave beginning on June 29, 2009. (Browning Dep., Ex. 19.)
In a letter dated July 14, 2009, the City informed Plaintiff that he had a “failure of
probation” and would be returned to his former position of plant maintenance worker when
he returned from leave. (Doc. 11, Ronald Lambert Dep., Ex. 1.) Enclosed with the letter
was an “Annual Employee Performance Evaluation.” (Id.) The Performance Evaluation
is dated July 14, 2009. (Id.) The Evaluation includes seven categories, and an employee
can be rated as “does not meet expectations,” “meets expectations,” or “exceeds
expectations.” (Id.) One of the seven categories–supervisory skill–was marked as not
being applicable. (Id.) In the remaining six categories, Plaintiff was rated as meeting
expectations in the categories of quantity of work and attendance. Plaintiff did not meet
expectations in quality of work, rules and regulations, interpersonal skills, and customer
service delivery. (Id.) In each of these categories there is an explanation for the given
rating. (Id.) The explanation includes comments such as (1) “ . . . Mike was assigned jobs
and critical mistakes were made.” (2) “Mike has a problem directing the work of his
subordinates.” (3) “does not accept/head advise [sic] from his supervisor on proper
techniques.” (4) “There have been multiple occasions where Mike did not follow standard
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practices, procedures and policies with shop machinery.” (5) “Mike is very unwilling to
accept feedback from his supervisors.” (6) “Mike has trouble getting along well with his coworkers.” (Id.) Plaintiff was given an overall rating of “does not meet expectations.” (Id.)
When Plaintiff returned from his leave, he was placed back into his former position.
Plaintiff argues he was entitled to an additional ninety-eight days of the six-month
probationary period. Plaintiff claims that during that period of time, he could have proven
that he was qualified for the maintenance machinist position.
II.

ANALYSIS
A.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a), as amended on December 1, 2010, provides
that summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” The moving
party has the burden of showing an absence of evidence to support the non-moving party’s
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met
its burden of production, the non-moving party cannot rest on his pleadings, but must
present significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The
mere existence of a scintilla of evidence to support the non-moving party’s position will be
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.
B.

FMLA

Plaintiff’s sole claim is brought pursuant to the Family and Medical Leave Act of

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1993 (“FMLA”), which entitles eligible employees to take up to twelve work weeks of unpaid
leave annually for the onset of “a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D).
The FMLA provides that when an employee returns to work, the employee is entitled “to
be restored by the employer to the position of employment held by the employee when the
leave commenced;” or “to be restored to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(A)
and (B). Similarly, the FMLA provides that the taking of leave “shall not result in the loss
of any employment benefit accrued prior to the date on which the leave commenced.” 29
U.S.C. § 2614(a)(2).
Plaintiff has brought his claim under the FMLA based on the interference theory.
The “interference,” or “entitlement” theory as it is sometimes called, is derived from the
FMLA’s creation of substantive rights. Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th
Cir. 2003). If an employer interferes with the FMLA-created right to medical leave or to
reinstatement following the leave, a violation has occurred. Id. (citing King v. Preferred
Technical Group, 166 F.3d 887, 891 (7th Cir. 1999)).
For an interference claim, a plaintiff must establish: (1) he or she is an eligible
employee for purposes of the Act; (2) the defendant is an employer subject to the FMLA's
requirements; (3) the employee was entitled to FMLA leave benefits by virtue of meeting
certain criteria; (4) the employee provided adequate notice of his or her intent to invoke
FMLA leave benefits; and (5) the defendant denied the employee FMLA benefits to which
the employee was entitled. Wysong v. Dow Chemical Co., 503 F.3d 441, 447 (6th Cir.
2007) (citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)).
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The City argues that Plaintiff cannot satisfy the final element. The City cites the
applicable regulations, which provide that “[a]n employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the employee had
been continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216. Plaintiff
argues that he had a right to a six-month probationary period, which was to be tolled while
he was on leave.

The City does not dispute that the probationary period for the

maintenance machinist position is six months. (Doc. 6.) However, the City explains that
while the Civil Service Commission may set the length of the probationary period, each
department has the discretion to pass or fail an employee. The City also explains that it
can fail an employee at any time. See Ohio Rev. Code 124.27 (“If the service of the
probationary employee is unsatisfactory, the employee may be removed or reduced at any
time during the probationary period.”). The City states that Plaintiff failed probation due to
his poor work performance.
“‘[I]nterference with an employee’s FMLA rights does not constitute a violation if the
employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in
the challenged conduct.’” Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008) (quoting
Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2006)); see also Arban, 345 F.3d at 401
(“An employee lawfully may be dismissed, preventing him from exercising his statutory
rights to FMLA leave or reinstatement, but only if the dismissal would have occurred
regardless of the employee's request for or taking of FMLA leave.”).2 The Sixth Circuit has

2

As one district court has recently noted:

Generally, the employee bears the burden of establishing, by a preponderance of
the evidence, that he is entitled to the benefit he claims. Arban, 345 F.3d at 401.
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held that where an employer proffers such a legitimate reason, “the employee, in order to
establish the entitlement protected by § 2614(a)(1), must, in the course of establishing the
right, convince the trier of fact that the contrary evidence submitted by the employer is
insufficient and that the employee would not have been discharged . . . if he had not taken
FMLA leave.” Arban, 345 F.3d at 401 (quoting Rice v. Sunrise Express, 209 F.3d 1008,
1018 (7th Cir. 2000)).
While the City may have the discretion to end the probationary period at any time,
there is a genuine issue of material fact as to whether the City would have ended Plaintiff’s
probationary period if Plaintiff had been given more time to improve his performance. This
question is certainly complicated by the City’s erroneous assumption that Plaintiff’s
probationary period was only four months long. To support its position that Plaintiff failed
probation in this abbreviated period of time, the City relies on Plaintiff’s Training Reports
and Progress Report, along with the testimony of his supervisors. McMullen testified that
Plaintiff was “very argumentative.” (McMullen Dep. at 25.) McMullen also cited two

Where, as here, the benefit denied is reinstatement and the employer claims that
the employee would have been discharged even if he had not taken leave, the
regulations place the burden of proof on the employer. See 29 C .F.R. § 825.216(a)
(“An employer must be able to show that an employee would not otherwise have
been employed at the time reinstatement is requested in order to deny restoration
to employment.”). The Sixth Circuit has not directly addressed which party bears
the burden of proof under these circumstances. The majority of circuits that have
considered the issue, however, agree that the regulation validly shifts the burden
of proof to the employer. See Sanders v. City of Newport, ––– F.3d ––––, 2011 WL
905998, at *7 (9th Cir. Mar.17, 2011); Smith v. Diffee FordLincoln–Mercury, Inc.,
298 F.3d 955, 963 (10th Cir.2002); Throneberry v. McGehee Desha Cnty. Hosp.,
403 F.3d 972, 978–79 (8th Cir.2005); Strickland v. Water Works & Sewer Bd. of City
of Birmingham, 239 F.3d 1199, 1208 and n.11 (11th Cir.2001).
Winterhalter v. Dykhuis Farms, Inc., No. 1:10–CV–385, 2011 WL 2148524, *5 (W.D.Mich. May
31, 2011). This Court sees no reason to reach a different conclusion regarding the burden of
proof.
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instances where Plaintiff ruined the piece of work he was assigned to complete. (Id. at 1112, 13.) However, McMullen also stated that it was his belief after completing the June 11
Progress Report, that things were not “hopeless” for Plaintiff, but that he had some things
that he “probably need[ed] to work on.” (McMullen Dep. at 32-33.)
Moreover, Smith requested that Plaintiff’s probationary period be extended so that
Plaintiff could complete the full four months. (Smith Dep. at 36.) Denise Browning, who
was the human resources liaison for the department, responded by asking Smith whether
five or six days would make a difference in Plaintiff’s performance. (Id.) Smith discussed
the matter with Lambert and McMullen, and it was decided that another five or six days
would not make a difference. (Id.) However, Smith was not sure how the five or six day
calculation was made. (Id.)
Employers cannot use the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions. 29 CFR § 825.220(c). The
Sixth Circuit has explained that this negative-factor analysis is applicable in analyzing an
interference claim. Wysong v. Dow Chemical Co., 503 F.3d 441, 447 (6th Cir. 2007).3
Accordingly, “[i]f an employer takes an employment action based, in whole or in part, on

3

The Sixth Circuit explained that this iteration of the fifth element of an interferencetheory claim was a proper rephrasing:
Quoting a case from the U.S. District Court for the Southern District of Ohio,
Wysong argues that the fifth element of an interference-theory claim is that the
employer “somehow used the leave against her and in an unlawful manner, as
provided in either the statute or regulations.” Bradley v. Mary Rutan Hosp., 322
F.Supp.2d 926, 940 (S.D.Ohio 2004). Although this language is different from the
language used in Cavin, it does not conflict with Cavin, and, in fact, adds depth to
the fifth element articulated in Cavin.
503 F.3d at 447.
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the fact that the employee took FMLA-protected leave, the employer has denied the
employee a benefit to which he is entitled.” Id.
The City argues that it was not required to extend Plaintiff’s probationary period
because extensions are a matter of discretion under Rule 9, Section 1 of the Civil Service
Commission Rules:
If a probationary employee is absent because of illness for a substantial
portion of his probationary period, the Commission may extend his
probationary period by the number of working days not exceeding the length
of time he was absent.
(Browning Dep., Ex. 18 (emphasis added).) However, it is not clear whether the City did
not extend the probationary period because his supervisors believed Plaintiff was
incapable of improving his performance, or there was insufficient time to improve his
performance. Therefore, the Court finds that there is a genuine issue of material fact as
to whether the City used Plaintiff’s leave as a negative factor in the decision to not extend
his probationary period.
Plaintiff has cited a number of cases to stand for the proposition that probationary
time does not run while an employee is on FMLA. See, e.g., Martin v. Brevard County, 543
F.3d 1261 (11th Cir. 2008). However, this Court cannot accept this proposition as a
general rule. Instead, what these cases have held is that based upon the factual record,
there is a genuine issue of material fact as to whether the employees could have improved
their performance if given additional time. As the Eleventh Circuit explained:
Martin contends that the School District interfered with his right to
reinstatement by not renewing his contract. In response, the School District
argues that it terminated Martin for a reason wholly unrelated to his FMLA
leave: failure to fulfill his improvement plan. Even if that reason is true,
however, the record does not establish beyond dispute that the School
District would have discharged Martin had he not taken FMLA leave. In fact,
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the record is unclear: whether Martin would have been retained and his
contract renewed if he had been able to complete the final three-plus weeks
of his improvement plan is a matter of speculation. Martin was unable to
complete the plan as a result of his being-at least arguably-on proper FMLA
leave.
543 F.3d at 1267 (footnotes omitted). Likewise, in this instance, there is evidence on both
sides of the ledger, and whether Plaintiff would have been able to satisfactorily complete
the probation period is a matter of speculation. Therefore, the Court concludes that neither
party is entitled to summary judgment.
III.

CONCLUSION
Based on the foregoing, the Court it is hereby ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment (Doc. 20) is DENIED; and

2.

Defendant’s Motion for Summary Judgment (Doc. 15) is DENIED.

IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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