Shockley v. Correctional Healthcare Companies, Inc.
Filing
46
ORDER granting 31 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 3/30/18. (ba)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Jennifer Shockley,
Plaintiff,
Case No. 1:16cv599
Judge Michael R. Barrett
v.
Correctional Healthcare
Companies, Inc.,
Defendant.
OPINION & ORDER
This matter is before the Court upon Defendant Correctional Healthcare Company
Inc.’s Motion for Summary Judgment. (Doc. 31). Plaintiff Jennifer Shockley filed a
Memorandum in Opposition (Doc. 35) and Defendant filed a Reply (Doc. 36). Plaintiff
then filed a Sur-reply (Doc. 40) and Defendant filed a Response to Plaintiff’s Sur-reply
(Doc. 45).
I.
BACKGROUND
Defendant contracts with correctional facilities to provide healthcare services to
inmates. Defendant provided nursing coverage to the inmates at the Warren County Jail
(“Jail”). Plaintiff began working as a Licensed Practical Nurse (“LPN”) in the Jail in 2013.
Plaintiff was first employed by Defendant’s predecessor, Premier Healthcare, and was
then employed by Defendant when it entered into the contract to provide healthcare
services for the Jail.
Under the terms of the contract with the Jail, Defendant must maintain at least one
nurse on duty at all times. (Doc. 27, Mary Ann Wollet Dep. at 13-14). Defendant
generally schedules only one nurse per shift. (Wollet Dep. at 13-14). At the Jail, nurses
are responsible for (a) passing medication, (b) charting, (c) responding to patient sick
calls, (d) checking inmates’ blood sugars at scheduled intervals and (e) checking inmate
health records and medications in “pre-booking” to determine if he or she was medically
acceptable to the jail. (Doc. 35-2, Jennifer Shockley Aff. ¶¶ 10-12). Nurses also serve
as first medical responders at the Jail.
(Wollet Dep. at 24).
When nurses are
dispensing medication, they are always accompanied by at least one officer. (Shockley
Aff. ¶ 17, Wollett Dep. at 16). An officer is also stationed outside the infirmary when a
nurse is examining an inmate. (Shockley Aff. ¶ 19-21; Wollett Dep. at 17).
In 2015, the nurses employed by Defendant, including Plaintiff, complained that
Defendants hired additional nurses at higher hourly rates than the existing staff. (Doc.
30, Jennifer Shockley Dep. at 31-32, 138).
In response, Defendant increased hourly
rates for existing nurses to make up for wage inflation. (Doc. 31-6, Mary Ann Wollet Aff.
¶ 17).
On August 11, 2015, Plaintiff requested the paperwork for FMLA pregnancy leave.
(Doc. 28-1 Angela Stevens Dep., Ex. 1). On August 26, 2015, Defendant approved
Plaintiff’s request for intermittent FMLA leave based on a certification prepared by
Plaintiff’s OB/GYN, Dr. William Dorsey. (Doc. 35-2, Ex. C). On the certification form,
Dr. Dorsey explained that Plaintiff was pregnant, that she was seeing a perinatologist due
to her advanced maternal age, that she complained of occasional heart palpitations and
that Dr. Dorsey had referred her to an endocrinologist. (Id.)
On the same day that her FMLA leave was approved, Plaintiff left her shift early
because she was not feeling well. (Shockley Dep. at 85; Stevens Dep. at 29, 31). The
symptoms stemmed from a heart condition which had been diagnosed in 2000.
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(Shockley Dep. at 46-47, 52). Plaintiff had previously informed her supervisor, Sylvia
Lawson, about her condition. (Shockley Dep. at 53).
The next day, Angela Stevens, Defendant’s Human Resource Specialist, informed
Plaintiff that Defendant required more information about her heart condition. Stevens
explained that while Plaintiff’s OB/GYN could complete FMLA paperwork for her
maternity leave and pregnancy related conditions, he could not provide certification for
Plaintiff’s heart condition. (Shockley Dep. at 84-85; Stevens Dep. at 35, 39-40; Stevens
Aff. ¶ 10.) Stevens informed Plaintiff that she could not return to work until she submitted
the additional certification.
Plaintiff told Stevens that she was going to see a specialist regarding her heart
condition.
(Shockley Dep. at 73-74, 98-99; Doc. 31-7, Angela Stevens Aff. ¶ 11).
Plaintiff later reported to Stevens that the specialist would not complete the FMLA
paperwork, and Dr. Matthew O’Connell, her primary care doctor, would complete the
paperwork instead. (Stevens Aff. ¶ 11). Dr. O’Connell had been treating Plaintiff for her
heart condition since at least 2012. (Shockley Dep. at 61-62). In the FMLA paperwork
completed by Dr. O’Connell on September 4, 2015, Dr. O’Connell explained that Plaintiff
had a “lifetime condition” that caused “s[hortness] o[f] b[reath],” “chest pain,”
“lightheaded[ness],” “high risk of falls,” “syncope” (temporary loss of consciousness), and
“low blood pressure.” (Doc. 30-2, Shockley Dep. Ex. 13.)
Defendant informed Plaintiff that it would be providing Dr. O’Connell with additional
information regarding her specific duties at the Jail, and that Defendant was holding her
out of work pending further information regarding her heart condition. (Stevens Aff., ¶
13).
Defendant provided Dr. O’Connell with a copy of the job analysis and a job
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description for the LPN position, and requested that Dr. O’Connell provide additional
information regarding Plaintiff’s medical condition. (Stevens Aff., ¶ 14). On September
18, 2015, Dr. O’Connell completed the paperwork from Defendant. (Doc. 28-1, Exs. 10,
11).
Dr. O’Connell stated that Plaintiff could not return to work full time without
restrictions. (Id.) Dr. O’Connell reiterated his initial response on the FMLA certification
and stated that Plaintiff needs to “leave [work] when she becomes symptomatic.” (Id.)
Plaintiff maintains that she submitted two letters to Defendant showing that she
was able to return to work: a September 14, 2015 letter from Dr. Susan Galbraith, an
endocrinologist; and a September 16, 2015 letter from Dr. Brian Schwartz, a cardiologist.
(Doc. 35-2, Ex. E). Plaintiff also maintains that she submitted a September 15, 2015
letter from Dr. O’Connell which states: “My patient, Jennifer Shockley, has not been
medically disabled or pulled off work by me from August 26th, 2015 to present. She has
not been medically disabled since 05/20/2015, which was for an unrelated injury.” (Doc.
35-2, Ex. E).
Defendant claims that it never received these letters.
However,
Defendant explains that even if it did receive the letters, it would not have changed its
determination that because of her heart condition, Plaintiff posed a potential risk to
herself, the inmates and the officers in the Jail.
Based on the information provided by Dr. O’Connell, Defendant determined that
Plaintiff was not qualified to provide direct-patient care at the Jail. Defendant explains
that if a nurse working in the Jail needs attention because of dizziness, loss of
consciousness or a fall, the officer accompanying the nurse would have to choose
between leaving his or her post to attend to the nurse, leaving inmates, medication and
medical equipment unattended, or to leave the nurse unattended while the officer
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maintained security. (Wollet Dep. at 63-64).
Defendant informed Plaintiff she could not return to work in her previous position,
but offered Plaintiff a temporary clerical position at the Jail. (Shockley Dep. at 119-120).
Plaintiff did not accept this position.
Defendant states that it terminated Plaintiff’s employment on January 6, 2016.
(Shockley Dep., Ex. 16). However, Plaintiff maintains that Defendant terminated her as
early as August 27, 2015 – when Defendant would not allow her to return to work – or
September of 2015 – when Defendant refused to allow her to return to work after being
provided with letters from her doctors stating that she was able to return to work. Plaintiff
points out that she began receiving unemployment benefits in November of 2015. (Doc.
35-1, PAGEID #1362).
Plaintiff brings the following claims (1) violations of the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.; (2) violation of the Pregnancy Discrimination
Act (“PDA”), 42 U.S.C. §2000e(k); (3) pregnancy discrimination under Ohio Revised
Code § 4112.01(B); (4) discrimination and failure to accommodate in violation of the
Americans with Disability Act, 42 U.S.C. § 12101, et seq.; (5) disability discrimination in
violation of Ohio Revised Code § 4112.01, et seq; (6) “disparate treatment;” and (7)
violation of the Equal Pay Act, 29 U.S.C. §206(d).
II.
ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56(a) 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
5
an absence of evidence to support the non-moving party’s case.
Catrett, 477 U.S. 317, 325 (1986).
Celotex Corp. v.
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).
B. Family Medical Leave Act
Under the FMLA, an eligible employee is entitled to twelve weeks of leave each
year “[b]ecause of a serious health condition that makes the employee unable to perform
the functions of [the employee’s] position.” 29 U.S.C. § 2612(a)(1)(D). The FMLA
makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise” any FMLA provision. 29 U.S.C. § 2615(a)(1). The FMLA also
prohibits an employer from “discharg[ing] or in any other manner discriminat[ing] against
any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. §
2615(a)(2). The Sixth Circuit has recognized two discrete theories of recovery under the
FMLA: “(1) the so-called “interference” or “entitlement” theory arising from § 2615(a)(1),
and (2) the “retaliation” or “discrimination” theory arising from § 2615(a)(2).” Seeger v.
Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012). The Sixth Circuit has
explained:
Although we have held that a claim for retaliatory discharge is cognizable
under either theory, the requisite proofs differ. The interference theory has
its roots in the FMLA's creation of substantive rights, and “[i]f an employer
interferes with the FMLA-created right to medical leave or to reinstatement
following the leave, a violation has occurred,” regardless of the intent of the
employer. Arban, 345 F.3d at 401. The central issue raised by the
retaliation theory, on the other hand, is “whether the employer took the
adverse action because of a prohibited reason or for a legitimate
nondiscriminatory reason.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508
(6th Cir. 2006) (citation and internal quotation marks omitted). In contrast
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to the interference theory, “[t]he employer's motive is relevant because
retaliation claims impose liability on employers that act against employees
specifically because those employees invoked their FMLA rights.” Id.
Id. at 282 (footnote omitted).
Plaintiff brings FMLA claims under both the interference and retaliation theories.
The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) applies to both interference and retaliation claims which are based on
circumstantial evidence. Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012).
A plaintiff establishes a prima facie case of interference under the FMLA by
showing that: (1) she was an FMLA-eligible employee, (2) the defendant was an
“employer” as defined under the FMLA, (3) she was entitled to FMLA leave, (4) she gave
the employer notice of her intention to take leave, and (5) the employer denied the
employee FMLA benefits to which she was entitled. Wallace v. FedEx Corp., 764 F.3d
571, 585 (6th Cir. 2014) (citing Edgar v. JAC Prod., Inc., 443 F.3d 501, 507 (6th Cir.
2006)). Because the FMLA is not a strict-liability statute, the employee also must show
that the employer’s violation caused him or her harm. Edgar, 443 F.3d at 507-508.
A plaintiff establishes a prima facie case of retaliation under the FMLA by showing
that: “(1) she availed herself of a protected right under the FMLA by notifying [the
defendant] of her intent to take leave, (2) she suffered an adverse employment action,
and (3) that there was a causal connection between the exercise of her rights under the
FMLA and the adverse employment action.” Edgar, 443 F.3d at 508.
“A plaintiff’s burden in establishing a prima facie case is not intended to be an
onerous one.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir.
2001).
However, in her Response to Defendant’s Motion for Summary Judgment,
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Plaintiff merely repeats the prima facie elements under the interference theory, and states
in a conclusory fashion that she has established a prima facie case. (Doc. 35, PAGEID
#1329-1330). Rather than parse through the record on its own, the Court will assume for
the sake of argument that Plaintiff has established a prima facie case under both the
interference and retaliation theories her FMLA claim.
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
employer “to articulate a legitimate, nondiscriminatory reason for [plaintiff's] discharge.”
Skrjanc, 272 F.3d at 315. If the employer “articulates such a reason, then [the plaintiff]
has the burden of showing that the articulated reason is in reality a pretext to mask
discrimination.” Id.
A plaintiff establishes pretext “by showing that the proffered reason had no basis in
fact, did not motivate the termination, or was insufficient to warrant the termination.”
Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Where the employer can
demonstrate an honest belief in its proffered reason, however, the inference of pretext is
not warranted. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012)
(quoting Joostberns v. United Parcel Servs., Inc., 166 F. App'x 783, 791 (6th Cir. 2006)).
However, the Sixth Circuit has questioned whether the “honest belief” rule should
be applied to FMLA interference claims.
Tillman v. Ohio Bell Telephone Co., 545
Fed.Appx. 340 (6th Cir. 2013); see also Banks v. Bosch Rexroth Corp., 610 F. App'x 519,
533 (6th Cir. 2015) (explaining that the district court properly limited its application of the
honest belief rule to its analysis of the plaintiff’s retaliation claims).
Accordingly,
Defendant has only argued that the honest belief rule applies to Plaintiff’s FMLA
retaliation claim, and has not argued that the honest belief rule applies to Plaintiff’s FMLA
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interference claim.
In response to Plaintiff’s interference claim, Defendant explains that it placed
Plaintiff on continuous, rather than intermittent, FMLA leave because it had a reasonable
belief that Plaintiff posed a “direct threat” to herself and others in the workplace.
Defendant explains that for the same reason, it did not restore Plaintiff to her position at
the end of her FMLA leave period.
It is at this point, the Court notes that there is some justifiable confusion between
Plaintiff’s FMLA and ADA claims. Whether Plaintiff was a direct threat is important to the
analysis under Plaintiff’s ADA claims and will be discussed there. There is no dispute
that Plaintiff was already approved for a period of FMLA leave based on her pregnancy
when she left work early on August 26, 2016. There is also no dispute that Defendant
permitted Plaintiff to take that approved FMLA leave. While Plaintiff points out that her
approved FMLA leave was for intermittent leave, and not continuous leave, “[t]he FMLA
says nothing about an employer's ability to ‘force’ an employee to take such leave, and
such forced leave, by itself, does not violate any right provided by the FMLA.” Sista v.
CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006); see also Wysong v. Dow
Chemical, 503 F.3d 441, 449-450 (6th Cir. 2007) (explaining that “an employer who
forces an employee to take leave may create a claim under the FMLA,” however to
maintain such a claim, a plaintiff must “allege also that she later requested FMLA leave,
but that [the employer] refused, based on the fact that she had already used up her
available FMLA leave.”).
In addition, the FMLA does not require an employer to reinstate an employee “who
would have lost his position even if he had not taken FMLA leave.” See 29 C.F.R. §
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825.216(a) (“An employee has no greater right to reinstatement . . . than if the employee
had been continuously employed during the FMLA leave period. 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.”).
Here, after approving Plaintiff for FMLA leave based on her pregnancy, Defendant
required additional information regarding Plaintiff’s heart condition.
In response to
Defendant’s request for information, Dr. O’Connell, Plaintiff’s primary care specialist,
explained that Plaintiff had a “lifetime condition” that caused “s[hortness] o[f] b[reath],”
“chest pain,” “lightheaded[ness],” “high risk of falls,” “syncope” (temporary loss of
consciousness), and “low blood pressure.” (Doc. 30-2, Shockley Dep. Ex. 13.) After
receiving information about Plaintiff’s job duties, Dr. O’Connell explained that Plaintiff
could not return to work full time without restrictions and would need to “leave [work] when
she becomes symptomatic.”
(Doc. 28-1, Exs. 10, 11).
Defendant determined that
someone with this condition and work restriction could not provide direct-patient care to
the inmates at the Jail. Therefore, Defendant did not restore Plaintiff to her previous
position based on a legitimate reason which was not related the exercise of her rights
under the FMLA.
Plaintiff has not shown that this proffered reason had no basis in fact, did not
motivate the termination, or was insufficient to warrant the termination. Plaintiff relies on
the letters from Dr. Galbraith, an endocrinologist, and Dr. Schwartz, a cardiologist, to
show that she was able to return to work. Defendant claims it did not receive these
letters.
However, for purposes of summary judgment, the Court must assume
Defendant received these letters. Dr. Galbraith states that the diagnosis is “Thyroid
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disease in pregnancy” and “is okay” “from an endocrinology standpoint to return to work.”
(Doc. 35-2, Ex. E). Dr. Schwartz states: “It is my medical opinion that Jennifer Shockley
has no restrictions and may return to work.” (Id.) Dr. Schwartz provides no additional
information and his opinion conflicts with the opinion of Dr. O’Connell, who stated that
Plaintiff must be able to “leave [work] when she becomes symptomatic.” A third letter –
Dr. O’Connell’s September 15, 2015 letter – does not mention this restriction or Plaintiff’s
“lifetime condition.” Instead, in this letter, Dr. O’Connell states that he had not pulled
Plaintiff off work except for an “unrelated injury” in May of 2015.
The Sixth Circuit has explained “that once an employee submits a statement from
her health care provider which indicates that she may return to work, the employer's duty
to reinstate her has been triggered under the FMLA.” Brumbalough v. Camelot, 427
F.3d 996 (6th Cir. 2005). However, the FMLA regulations also provide: “If the employee
is unable to perform an essential function of the position because of a physical or mental
condition . . . the employee has no right to restoration to another position under the
FMLA.” 29 C.F.R. § 825.216(c). Defendant determined that Plaintiff could not perform
the essential functions of her position based on Dr. O’Connell’s September 18, 2015,
opinion that Plaintiff needs to “leave [work] when she becomes symptomatic.”
Dr.
O’Connell’s opinion was made after Defendant provided him with a copy of the job
analysis and a job description for the LPN position. Even though Dr. O’Connell stated
that Plaintiff could return to work, it was not without restriction. Defendant determined
that the restriction meant that Plaintiff could not perform an essential function of her
position because Defendant’s contract with the Jail required Defendant to provide
continuous nursing coverage. Plaintiff does not dispute that continuous coverage by a
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nurse was required, and acknowledges if she left her shift early, she was obligated to find
coverage for the remainder of her shift. (Shockley Dep. at 78). The Court concludes
that Plaintiff has not shown that Defendant’s reason for failing to restore Plaintiff to her
previous position were pretextual. Instead, under the FMLA regulations, Plaintiff did not
have a right to restoration.
Turning to Plaintiff’s claim of retaliation under the FMLA, Defendant explains that it
had an “honest belief” that Plaintiff’s heart condition rendered her unable to perform her
duties as a LPN at the Jail.
The Sixth Circuit has explained the honest belief rule as follows:
We have adopted the honest belief rule, reasoning that it is not in the
interests of justice for us to wade into an employer's decisionmaking
process. Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99
(6th Cir. 2007). It is instead the employer's belief, and whether it is
informed and nondiscriminatory, with which we are concerned. We do not
require that the employer arrived at its decision in an “optimal” matter, id. at
599, but that it “reasonably relied on the particularized facts that were
before it at the time the decision was made.” Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (internal quotation
marks omitted).
Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012). Defendant explains that it
communicated with Plaintiff about her heart condition, sent a job analysis to Dr.
O’Connell, and after receiving the information from Dr. O’Connell, determined that
Plaintiff could not return to a position requiring direct-patient care at the Jail. Plaintiff
argues that it was not reasonable for Defendant to rely on this information, and Defendant
should have conducted a medical examination of Plaintiff.
The FMLA regulations provide that an employer “may have a uniformly applied
practice or policy that requires each such employee to receive certification from the health
care provider of the employee that the employee is able to resume work.” 29 U.S.C. §
12
2614 (c).
However, there is nothing in the FMLA regulations which would require
Defendant to conduct a medical examination to show that Plaintiff was able to return to
work.
In fact, the regulations provide that “[n]o second or third opinions on a
fitness-for-duty certification may be required.” 29 C.F.R. § 825.312(b). Moreover, the
Court notes that Defendant offered Plaintiff a position which would allow her to return to
work, albeit temporarily. This evidence would seem contrary to a retaliatory motive.
Accord Wells v. Cincinnati Children's Hosp. Med. Ctr., 860 F. Supp. 2d 469, 486–87 (S.D.
Ohio 2012) (granting summary judgment on the plaintiff’s FMLA retaliation claim in part
because “the record shows that CCHMC worked diligently to find another placement for
Plaintiff once she returned from FMLA leave-behavior that substantially dissipates any
inference of a retaliatory motive.”). The Court concludes that Plaintiff has not shown that
Defendant’s proffered reason for not restoring her to her previous position was pretext for
retaliation.
Therefore, there is no genuine dispute as to any material fact and Defendant is
entitled to summary judgment on Plaintiff’s FMLA claim.
C. Pregnancy Discrimination Act
Title VII forbids employers to discriminate against employees “because of . . . sex.”
42 U.S.C. § 2000e–2(a)(1). The Pregnancy Discrimination Act added a provision to Title
VII’s definitions section:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their ability or inability to work.....
42 U.S.C. § 2000e(k). Federal caselaw interpreting the PDA is generally applicable to
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claims brought pursuant to Ohio Revised Code § 4112.01(B), Ohio's analogue to the
PDA. Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 471 (6th Cir. 2005).
Therefore, the analysis of Plaintiff’s PDA claim also applies to her pregnancy
discrimination claim under Ohio law.
Plaintiff has not presented any direct evidence of pregnancy discrimination.
Where a plaintiff relies upon indirect evidence of pregnancy discrimination to prove her
claim, the plaintiff “first has the burden of proving a prima facie case of discrimination; if
she is successful, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions; finally, the plaintiff has the opportunity to prove
that the proffered reason is pretextual.” Latowski v. Northwoods Nursing Ctr., 549 F.
App'x 478, 483 (6th Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
To establish a prima facie case of pregnancy discrimination, a plaintiff must show
that “(1) she was pregnant, (2) she was qualified for her job, (3) she was subjected to an
adverse employment decision, and (4) there is a nexus between her pregnancy and the
adverse employment decision.” Tysinger v. Police Dep't of City of Zanesville, 463 F.3d
569, 573 (6th Cir. 2006) (quoting Prebilich-Holland v. Gaylord Entertainment Co., 297
F.3d 438, 442 (6th Cir. 2002)).
Plaintiff again repeats the elements of this prima facie case and states in a
conclusory fashion that she has met her burden.
(Doc. 35, PAGEID #1334).
Conclusory allegations are not evidence and are not adequate to oppose a motion for
summary judgment. Miller v. Aladdin Temp-Rite, LLC, 72 F. App'x 378, 380 (6th Cir.
2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d
14
695 (1990)). Even if the Court were to grant Plaintiff the benefit of the doubt as to the first
three elements, there is nothing in the record to support a finding that Plaintiff has
satisfied the fourth element of the prima facie case.
“A plaintiff can prove the fourth element of the prima facie case through
comparison to ‘another employee who is similarly situated in her or his ability or inability to
work [and] received more favorable benefits.’” Latowski v. Northwoods Nursing Ctr., 549
F. App'x 478, 483 (6th Cir. 2013) (quoting Ensley–Gaines v. Runyon, 100 F.3d 1220,
1226 (6th Cir. 1996)).
However, Plaintiff has not presented any evidence of
similarly-situated employees.
The only evidence in the record of a nexus between
Plaintiff’s pregnancy and her termination is temporal proximity, but that alone cannot
prove pretext. Asmo v. Keane, Inc., 471 F.3d 588, 598 (6th Cir. 2006) (citing Arban v. W.
Publ‘g Corp., 345 F.3d 390, 403 (6th Cir. 2003)).
Therefore, there is no genuine dispute as to any material fact and Defendant is
entitled to summary judgment on Plaintiff’s claim of discrimination under the Pregnancy
Discrimination Act and Ohio law.
D. Americans with Disability Act
The Americans with Disabilities Act, as amended by the Amendments Act of 2008
(“ADAAA”), makes it unlawful for an employer to “discriminate against a qualified
individual on the basis of disability 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). The
ADA defines the term “discriminate” to include “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
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disability” unless the employer “can demonstrate that the accommodation would impose
an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).
Plaintiff asserts two basis of liability under the ADA: (1) wrongful termination; and
(2) failure to accommodate.
Plaintiff has also brought claims for discrimination under Ohio law.
Because
Ohio's disability discrimination law parallels the ADA, the same analytical framework
applies to Plaintiff’s claims under Ohio Revised Code § 4112.02 and § 4112.99.
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (citing Wysong v. Dow
Chemical Co., 503 F.3d 441, 450 (6th Cir. 2007); City of Columbus Civil Serv. Comm'n v.
McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204, 206-07 (1998)). Therefore, the analysis
of Plaintiff’s ADA claims also resolves her state law discrimination claims. Id. (citing
Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 452 n.4 (6th Cir. 2004)).
E. ADA wrongful termination claim
Under the ADA, a plaintiff can prove a claim for discrimination based on wrongful
termination through direct or indirect evidence. Ferrari v. Ford Motor Company, 826
F.3d 885, 891 (6th Cir. 2016). Here, Plaintiff has not produced any direct evidence of
discrimination, and instead relies on indirect evidence. When analyzing a discrimination
claim based on indirect evidence of discrimination, courts use the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016) (citing Monette v. Elec. Data
Sys. Corp., 90 F.3d 1173, 1179-182 (6th Cir. 1996)).
Under this approach, the initial burden is on the plaintiff to make out a prima facie
case of discrimination by demonstrating that “(1) he or she is disabled; (2) otherwise
16
qualified for the position, with or without reasonable accommodation; (3) suffered an
adverse employment decision; (4) the employer knew or had reason to know of the
plaintiff's disability; and (5) the position remained open while the employer sought other
applicants or the disabled individual was replaced.” Barlia v. MWI Veterinary Supply,
Inc., No. 17-1185, 2018 WL 327448, at *4 (6th Cir. Jan. 9, 2018) (quoting Whitfield v.
Tennessee, 639 F.3d 253, 259 (6th Cir. 2011)).
If the plaintiff establishes a prima facie case of discrimination under the ADA, then
the burden shifts the defendant to offer a legitimate, nondiscriminatory reason for the
adverse employment action. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099,
1105 (6th Cir. 2008). If the defendant makes that proffer, then the burden shifts back to
the plaintiff to show by a preponderance of the evidence that the defendant’s proffered
reason is merely a pretext for discrimination. Id.
1. Disabled
The ADA defines a “disability” as “a physical or mental impairment that
substantially limits one or more of the major life activities” of an individual. 42 U.S.C. §
12102(2)(B). A person may also be considered disabled under the ADA if they are
“regarded as having such an impairment.” 42 U.S.C. § 12102(2)(C). The ADA provides
that the definition of disability “shall be construed in favor of broad coverage of
individuals....” 42 U.S.C. § 12102(4)(A). 1
1
As the Sixth Circuit has explained, the law governing the definition of “disabled” under the ADA
has been recently altered:
Having concluded that the courts were defining “disability” too narrowly, Congress
amended the ADA in 2008 to state that the term should be construed “in favor of
broad coverage ..., to the maximum extent permitted by the [ADA's] terms.” 42
U.S.C. § 12102(4)(A); ADA Amendments Act (“ADAAA”), Pub. L. No. 110-325, § 2,
122 Stat. 3553 (2008). Moreover, Congress explicitly rejected a number of
17
Plaintiff claims that she was disabled during the time she was employed by
Defendant and Defendant regarded her as being disabled. Plaintiff explains that she is
claiming a disability based on her pregnancy, not her heart condition. Defendant does
not challenge this element of the prima facie case.
2. Otherwise qualified
The term “qualified individual” means an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires. 42 U.S.C. § 12111. Defendant argues that Plaintiff
was not qualified for her position because she posed a direct threat to herself, the inmates
at the Jail and other employees at the Jail.
A disabled individual is not “qualified” for a specific employment position if he or
she poses a “direct threat” to the health or safety of others which cannot be eliminated by
a reasonable accommodation. Wurzel v. Whirlpool Corp., 482 F. App'x 1, 11 (6th Cir.
2012) (quoting Estate of Mauro v. Borgess Medical Center, 137 F.3d 398 (6th Cir. 1998));
see also Holiday v. City of Chattanooga, 206 F.3d 637, 647 n. 4 (6th Cir. 2000).
“There are four factors to be considered in a direct-threat analysis: (i) the duration
of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the
standards formulated by the Supreme Court, such as the requirement that the
impairment be “permanent or long-term” to qualify as a disability under the ADA.
42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when active.”); ADAAA §
2(b)(4) (stating that a purpose of ADAAA is to “reject ... standards enunciated by
the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002),” which included the requirement
that an impairment's impact be “permanent or long-term” to qualify as a
“substantial limitation”). Congress also cautioned that “the question of whether an
individual's impairment is a disability ... should not demand extensive analysis.”
ADAAA § 2(b)(5).
Barlia v. MWI Veterinary Supply, Inc., No. 17-1185, 2018 WL 327448, at *4 (6th Cir. Jan. 9, 2018).
18
potential harm will occur, and (iv) the imminence of the potential harm.” Id. The Sixth
Circuit has explained:
Whether an employer properly determined that a person poses a direct
threat, for purposes of the ADA, depends on “the objective reasonableness
of [the employer's] actions.” Bragdon v. Abbott, 524 U.S. 624, 650, 118
S.Ct. 2196, 141 L.Ed.2d 540 (1998). An employer's determination that a
person cannot safely perform his job functions is objectively reasonable
when the employer relies upon a medical opinion that is itself objectively
reasonable.
See, e.g., Holiday, 206 F.3d at 645-46; Darnell v.
Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir. 2005). A medical opinion
may conflict with other medical opinions and yet be objectively reasonable.
Bragdon, 524 U.S. at 650, 118 S.Ct. 2196 (“A health care professional who
disagrees with the prevailing medical consensus may refute it by citing a
credible scientific basis” for doing so).
Michael v. City of Troy Police Dep't, 808 F.3d 304, 307 (6th Cir. 2015).
Defendant explains that the essential functions of Plaintiff’s job included: (1)
responding to health emergencies within standard guidelines, (2) being alert at all times
and paying close attention to details, and (3) working under stress on a regular or
continuous basis. (Shockley Dep., Ex. 12). Defendant states that Plaintiff could not
perform these essential job functions and posed a direct to herself, the inmates at the Jail
and other employees at the Jail. Defendant relies on Plaintiff’s “lifetime” heart-related
symptoms, including the risk that she could lose consciousness without warning and Dr.
O’Connell’s work restriction that Plaintiff must be able to leave work when symptomatic.
Mary Ann Wollett, Defendant’s Regional Manager of Operations, testified that
[I]n a corrections environment, there is a large risk for a security breach for
the person, for the inmates, for the staff if any one of [Plaintiff’s symptoms]
would take place…[Y]ou have proposed a risk to the officer, you’ve
proposed a risk to the patient, and worse maybe, you’ve proposed a risk to
[the nurse] as a person. If she falls out and becomes incapacitated, you’ve
got rapists, you’ve got murderers sometimes. You’ve got sharps, you’ve got
needles...[A] high risk for falls…alone [makes a nurse] so vulnerable inside
a secure environment. And a loss of consciousness could be detrimental
for patients, for security.
19
(Wollet Dep. at 63-64).
The Court finds that the record shows that Defendant conducted an individualized
inquiry into Plaintiff’s actual medical condition, and the impact that condition might have
on her ability to perform the job of LPN at the Jail. The risk assessment was based on
medical evidence because it was based on the opinion of Dr. O’Connell who had been
treating Plaintiff for her heart condition since at least 2012. While Plaintiff argues that her
supervisor, Sylvia Lawson, could cover shifts when Plaintiff needed to leave work, “the
ADA does not require employers to accommodate individuals by shifting an essential job
function onto others.” Hoskins v. Oakland Cnty. Sheriff's Dep't, 227 F.3d 719, 729 (6th
Cir. 2000). The Court concludes that Defendant’s determination that Plaintiff posed a
direct to herself, the inmates at the Jail and other employees at the Jail was objectively
reasonable. 2
Therefore, the Court concludes that there is no genuine issue of material fact, and
Defendant is entitled to summary judgment on Plaintiff’s claims under the ADA and Ohio
law.
F. Equal Pay Act
To establish a prima facie case under the Equal Pay Act, 29 U.S.C. § 206 et seq.,
the plaintiff must show that the defendant pays different wages to employees of the
opposite sex “for equal work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working conditions.” Equal
Employment Opportunity Commission v. Romeo Community Schools, 976 F.2d 985, 987
2
Given this conclusion, the Court finds it is unnecessary to address Plaintiff’s failure to
accommodate claim under the ADA and Ohio law.
20
(6th Cir.1992) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct.
2223, 41 L.Ed.2d 1 (1974)). Plaintiff states that her Complaint asserts that she received
different pay for similar work performed by a male nurse in the Jail and she was retaliated
against for having raised the issue. However, in response to a motion for summary
judgment, the nonmoving party cannot rest on its pleadings, but must present some
“specific facts showing that there is a genuine issue [of material fact] for trial.” Celotex
Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Plaintiff has attached email correspondence
from July 29, 2015 and August 26, 2015 where she requested job grade and salary pay
range for her job. (Doc. 35-1, PAGEID# 1368, 1369). These emails do not show that
Defendant pays different wages to employees of the opposite sex. These emails also do
not show retaliation.
Plaintiff was only requesting pay information.
While there is
evidence in the record that Plaintiff, along with other nurses complained about their pay in
2015, “[c]omplaining about one's pay is not statutorily protected; complaining about
discriminatory pay is.” Crowder v. Railcrew Xpress, 557 F. App'x 487, 492 (6th Cir.
2014) (quoting Shrader v. Palos Anesthesia Assocs., S.C., No. 01C 2450, 2004 WL
2167909, at *8 (N.D.Ill. Sept. 24, 2004)).
Therefore, there is no genuine dispute as to any material fact and Defendant is
entitled to summary judgment on Plaintiff’s claim under the Equal Pay Act.
III.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that Defendant Correctional
Healthcare Company Inc.’s Motion for Summary Judgment (Doc. 31) is GRANTED; and
21
there appearing to be no more matters for decision before this Court, this matter is
CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge
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