Kelly v. Account Control Technology, Inc.

Filing 19

ORDER granting in part and denying in part 15 Motion for Summary Judgment. Signed by Judge Susan J. Dlott on 8/22/18. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THOMAS KELLY,
Plaintiffs,
v.
ACCOUNT CONTROL
TECHNOLOGY, INC.,
Defendant.

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Case No. 1:17-cv-320
Judge Susan J. Dlott
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

This matter is before the Court on Defendant’s Motion for Summary Judgment (Doc. 15).
Plaintiff opposes the motion (Doc. 16), and Defendant replied (Doc. 17). For the reasons that
follow, the Defendant’s Motion will be GRANTED in part and DENIED in part.
I.

BACKGROUND

A. Facts
Defendant Account Control Technology (“ACT”) operates a debt collection call center
located in Mason, Ohio. (Defendant’s Proposed Undisputed Facts, Doc. 18-2 at ¶ 1; Plaintiff’s
Response to Defendant’s Proposed Undisputed Facts, Doc. 16-1 at ¶ 1.) Plaintiff Thomas Kelly
worked for ACT as a Collections Manager from 2012 until his termination effective March 17,
2017. (Doc. 18-2 and Doc. 16-1 at ¶¶ 2 and 67.) Kelly reported to Operations Manager, Mike
Havrilla, and Havrilla reported to Director of Operations, Junior Sanchez. (Doc. 18-2 and Doc.
16-1 at ¶¶ 3–4.) As part of his normal responsibilities, Kelly managed a team of hourly debt
collections employees. (Doc. 18-2 and Doc. 16-1 at ¶ 8.)
Kelly first requested leave pursuant to the Family and Medical Leave Act, 29 U.S.C. §§
2601, et seq. (“FMLA”), to address a skin cancer issue in 2014. (Kelly Dep., Doc. 14 at PageID
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661–62.) According to Kelly, Sanchez told him that he had missed too much work over the
medical issue, explained that Kelly needed to be at work to get his team to goal, and advised
Kelly to “think hard about [his] priorities and whether [he] was making the right decisions to
help [his] career at ACT” as Sanchez “would hate to lose [him] as [he] was a good employee.”
(Kelly Dec., Doc. 16-3 at ¶ 7.) Because he feared losing his job, Kelly did not complete the
FMLA paperwork process or go to his remaining medical appointment. (Doc. 14 at PageID
662.)
In May 2016, Kelly again requested FMLA leave, this time for back pain from an earlier
car accident, and ACT ultimately approved use of intermittent leave consistent with his
physician’s recommendation. (Holton Dec., Doc. 13-2 at PageID 307; Doc. 14 at PageID 394,
661–62.) Sanchez and Claudia Holton, an ACT Human Resources Generalist, allegedly advised
Kelly that if he “decided to use FMLA, [his] hourly pay and [his] bonuses would be prorated for
every – every hour, every minute [he] took of FMLA.” (Doc. 14 at PageID 480.) ACT lost his
initial FMLA paperwork, but Kelly completed a second set and asked his physician to resubmit
it. (Id. at PageID 505.) As Kelly began taking physician-recommended time off for his back
pain, Havrilla tried to write him up. Kelly protested the write up, informed Havrilla it was
proper FMLA leave, and threatened to employ an attorney. (Id. at PageID 505–06.) Havrilla
told him not to sign the write up and informed Kelly the next day that ACT now said it had
obtained his FMLA paperwork. (Id. at PageID 506.) Around August 2016, Kelly informed
Holton that he would need back surgery at some point in the future, and she sought assistance in
obtaining insurance approval. (Doc. 13-2 at PageID 324.)

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In February 2017, Kelly informed Havrilla that he finally intended to get back surgery
and began trying to prepare other managers to help cover his workload while he was on medical
leave. (Doc. 14 at PageID 501–02.) Once Kelly informed Havrilla about the surgery, ACT
“started auditing all of [his] work.” (Id. at PageID 489.) According to Kelly, ACT then began
“going back and looking at training forms, basically my daily – everything I do every day and
every month. Stuff that we never – never was looked at prior to me turning in FMLA
paperwork.” (Id.) Kelly emailed Havrilla, “It also feels like since I mentioned I’d be needing
surgery soon, I’ve been singled out for something every couple of days.” (Id. at PageID 575.)
According to Kelly, “Apparently people had been talking about me for eight months, my
employees, and nothing was brought to my attention, but once FMLA paperwork was filed, then
it became a problem.” (Id. at PageID 622.)
Also in February 2017, according to Holton, “We began an investigation into Thomas
Kelly.”1 (Doc. 13-2 at PageID 354.) On February 17, 2017, Holton reported to Sanchez that
Kelly changed a subordinate’s time cards on certain dates because her time cards did not
coincide with her security badge swipes. (Id. at PageID 329). Sanchez immediately responded
(adding Havrilla to the email), “Just like I thought and told you last night! See below, I want
Written Warnings issued for Tom and Points assessed to [the subordinate] with a Written
Warning for failing to follow policy!” (Id.) Holton then expanded the audit back to August
2016 and found multiple discrepancies between the time cards Kelly edited and the times the
employee’s badge swipes indicated she had worked. (Id. at PageID 326, 332–33.) Kelly’s

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Holton does not state the reason she and Sanchez began the investigation into Kelly, but she does note that she also
audited the records for Kelly’s colleague, Edward Thurman, at the same time. (Doc. 13-2 at PageID 308.) The
record does not indicate what, if anything, happened to Thurman as a result of his audit.

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inaccurate edits to the subordinate’s time cards resulted in the subordinate sometimes being
overpaid, sometimes underpaid, and sometimes permitted her to avoid disciplinary “points”
when she was late or missed work. (Doc. 13-2 at PageID 354.)
When asked about the time card discrepancies, Kelly insisted that he validated the time
cards exactly as the ACT human resources representative instructed. (Doc. 14 at PageID 531.)
ACT required him to validate the employee time cards at the end of every week. (Id. at PageID
528.) Because the time card system frequently malfunctioned, employee time cards were
sometimes blank or missing information. (Id. at PageID 528–30.) When that happened, he
would “click a button . . . and then when you reclick it, it will populate to what was put in
Monday as the schedule.” (Id. at PageID 537–38.)
During the first week of March 2017, Holton exchanged multiple emails with Kelly,
Havrilla and Sanchez identifying time card/badge swipe discrepancies for Kelly’s edits to the
subordinate’s time records. (Doc. 13-2 at PageID 311.) On March 3, 2017, another of Kelly’s
subordinates—Bill Lowe—“came to” Havrilla and Holton “with complaints about Kelly’s
management.” (Id. at PageID 312.) On March 7, 2017, at Holton’s request, Lowe provided a
lengthy written statement about inappropriate and/or threatening comments Kelly allegedly made
in the workplace, including that he told a female subordinate he had “12 inches” for her during
discussions of a Valentine’s Day “love box,” and that he hoped Havrilla “got in a car wreck and
died.” (Id. at PageID 312.)
On March 9, 2017, Havrilla asked Kelly to meet with him, Sanchez, and Holton. (Doc.
14 at PageID 507.) At that meeting, Kelly was read a list of allegations against him, including
inappropriate sexual comments to his subordinates, disparaging comments about Havrilla, and
disparities between his time card validations and the employee’s badge swipes. (Id. at PageID
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508–12.) When Holton mentioned the time card issue, Kelly “basically explained that at that
time, I did exactly what [the human resources representative] told me to do. I’d been doing it for
the last six months. Nobody’s ever said it was wrong. All of the sudden, it is.” (Id. at PageID
577–78.) Kelly further stated that ACT looked only at one employee they believed he favored,
but he encouraged them to look at all of his subordinates as he validated all time cards using the
same method as instructed by human resources. (Id. at PageID 543.) Finally, Kelly stated that
an employee asked him why Havrilla “wants [Kelly] gone so bad” as he “pulled [her] off the
floor again to ask more questions about you . . . [and she] felt like [Havrilla] was fishing for dirt
on [Kelly.]” (Id. at PageID 546.)
The next day—March 10, 2017—Kelly left for a prearranged vacation to Florida. (Id. at
PageID 579.) On the day he was scheduled to return to work, Kelly received a “Notice to
Employee as to Change in Relationship” via courier stating, “Involuntary Termination – Tom,
your employment with ACT is ending effective today, 3/17/2017, for falsification.” (Doc. 13-2
at PageID 356 (emphasis omitted).)
Kelly testified at deposition that, as a manager, he previously had been asked to help
ACT do something similar to another employee. According to Kelly, Rebecca Montgomery, a
former ACT employee, was diagnosed with cancer, and she told her manager she would need
FMLA time to get treatment. (Doc. 14 at PageID 516, 619–20.) “[F]rom that point on there was
a problem. And it was get rid of her, get rid of her, get rid of her, and she was gone.” (Id. at
PageID 619.) Shortly after Montgomery had been terminated, Sanchez pulled Kelly and another
manager into his office and told them they “needed to come up with backdated notes, backdated
coaching sheets, so it looked like this wasn’t a first offense and we had paper trails, so that firing
her would look legitimate.” (Id. at PageID 516–17.) “[A]fter she was let go, when we were told
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to falsify the document, that’s how I know that it was based on cancer, because I was told to
falsify documents.” (Id. at PageID 620.)
B. Procedural Posture
Kelly initiated this action alleging that ACT interfered with his rights under the Family
and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”), and ultimately terminated him for
taking FMLA leave. ACT now moves for summary judgment, contending that there is no causal
connection between Kelly’s FMLA leave and his termination and that Kelly was terminated for
falsifying an employee’s time records and making inappropriate comments in the workplace.
II.

SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if “there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to
show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with
affidavits or other proof or by exposing the lack of evidence on an issue for which the
nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322–24 (1986). In responding to a summary judgment motion, the nonmoving party may not
rest upon the pleadings but must “present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986).
A court’s task is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the
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light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor
Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists
when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir.
2014) (“A dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could
return a verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted).
Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at
248. “The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
III.

ANALYSIS
The FMLA provides two distinct avenues for recovery: “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 Telephone Co., LLC, 681 F.3d 274, 282
(6th Cir. 2012). In this case, Kelly claims that ACT interfered with his FMLA rights by
threatening to terminate him or reduce his pay if he used FLMA leave and retaliated against him
for using FMLA leave by terminating his employment.
A. Interference or Entitlement Claim
Pursuant to the FMLA, “It shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise” the rights provided by the FMLA. 29 U.S.C. §
2615(a)(1). “Interfering with the exercise of an employee's rights would include, for example,
not only refusing to authorize FMLA leave, but discouraging an employee from using such
leave.” 29 C.F.R. § 825.220(b). “The interference theory has its roots in the FMLA’s creation
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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.” Seeger, 681 F.3d at 282 (quoting Arban v. West Publ’g Corp., 345 F.3d 390, 401
(6th Cir. 2003)).
However, “Employees seeking relief under the entitlement [also called the interference]
theory must therefore establish that the employer's violation caused them harm.” Edgar v. JAC
Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006). The FMLA “provides no relief unless the
employee has been prejudiced by the violation.” Id. (quoting Ragsdale v. Wolverine World
Wide, Inc., 535 U.S. 81, 89 (2002)).
In the case at bar, Kelly testified that Sanchez threatened to terminate his employment
and reduce his salary and bonuses if he took FMLA leave. (Kelly Dec., Doc. 16-3 at ¶ 7; Doc.
14 at PageID 480.) In addition, ACT “lost” his first set of FMLA paperwork, and Havrilla
threatened to write him up for taking proper FMLA leave. (Doc. 14 at PageID 505–06.)
However, once he resubmitted the paperwork, ACT granted him all the FMLA leave to which he
was entitled for his back problems, and Havrilla rescinded the disciplinary action. (Id. at PageID
503, 506.) Thus, it appears that Kelly was not actually harmed by ACT’s alleged attempts to
interfere with Kelly’s FMLA rights.
It is true that Kelly claims he did not complete the FMLA paperwork process in 2014 and
skipped his skin cancer-related medical appointment due to Sanchez’ threats to his job. (Doc. 14
at PageID 662.) However, Kelly’s complaint raises only events in 2016 and 2017 related to
Kelly’s back issues (probably for statute of limitations reasons). Because the missed medical
appointment and decision not to pursue FMLA leave in 2014 are outside the scope of this case,
they cannot serve as the harm required for Kelly’s FMLA interference claim here.
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In addition, while termination may support an interference claim in some circumstances,2
it does not appear that it applies here and Plaintiff has not argued that it does. (See Doc. 16 at
PageID 690.) Accordingly, ACT is entitled to summary judgment on Kelly’s interference claim.
B. Retaliation Claim
“When evaluating FMLA retaliation claims in the absence of direct evidence, courts
employ the McDonnell Douglas burden-shifting framework.” Stein v. Atlas Ind., Inc., 730 F.
App’x 313, 319 (6th Cir. 2018); Seeger, 681 F.3d at 283. Under this framework, Kelly must
show that: (1) he exercised an FMLA-protected right; (2) ACT knew he exercised the right; (3)
Kelly suffered an adverse employment action; and (4) a causal connection exists between Kelly’s
protected activity and the adverse employment action. Stein, 730 F. App’x at 318–19; Seeger,
681 F.3d at 283. “The burden of proof at the prima facie stage is minimal; all the plaintiff must
do is put forth some credible evidence that enables the court to deduce that there is a causal
connection between the retaliatory action and the protected activity.” Seeger, 681 F.3d at 283
(quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 20017)).
In the case at bar, the parties agree that Kelly exercised an FMLA-protected right; ACT
knew he exercised the right; and Kelly suffered an adverse employment action. The only issue
in making his prima facie case, then, is whether a causal connection exists between Kelly’s
protected activity and his termination.
For purposes of establishing causation, “[I]n certain distinct cases where the temporal
proximity between the protected activity and the adverse employment action is acutely near in
time, that close proximity is deemed indirect evidence such as to permit an inference of

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See Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274 (6th Cir. 2012).

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retaliation to arise.” Seeger, 681 F.3d at 283 (quoting DiCarlo v. Potter, 358 F.3d 408, 421 (6th
Cir. 2004)). “Without more, however, temporal proximity only suffices to make a plaintiff’s
prima facie case where the adverse employment action occurs ‘very close in time after an
employer learns of a protected activity.’” Stein, 730 F. App’x at 319 (quoting Seeger, 681 F.3d
at 284). Once a significant period of time has elapsed, a plaintiff must present additional
evidence of retaliatory motive to establish the causal connection necessary to make his prima
facie case. Id. (affirming summary judgment for defendant where ten weeks elapsed between
plaintiff’s FMLA leave and termination where plaintiff presented no additional evidence of
retaliation); see also Bush v. Compass Group USA, Inc., 683 Fed. Appx. 440 (6th Cir. 2017)
(affirming dismissal where ten weeks elapsed between FMLA notice and termination) and
Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007) (holding three-month lapse between
plaintiff’s FMLA leave request and termination on the day of her scheduled return established a
causal connection when paired with other evidence of retaliatory motive).
In the case at bar, Kelly requested FMLA leave for back pain, and his request was
approved in August 2016. (Doc. 13-2 at PageID 307.) While Claudia Holton knew in August
2016 that Kelly may eventually need back surgery—and, in fact, tried to help him obtain
insurance approval—Kelly made it clear that he intended at that time to manage his back
problem medically rather than taking time off for surgery. (Id. at PageID 324–25.) It was not
until February 2017 that Kelly informed Havrilla that he finally intended to get back surgery and
began trying to prepare other managers to help cover his workload while he was on medical
leave. (Doc. 14 at PageID 501–02.) Once Kelly informed Havrilla about the surgery, ACT
began “going back and looking at training forms, basically my daily – everything I do every day

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and every month. Stuff that we never – never was looked at prior to me turning in FMLA
paperwork.” (Id. at PageID 489.)
Holton admits that in February 2017, ACT “began an investigation into Thomas Kelly”
for unspecified reasons. (Doc. 13-2 at PageID 354.) ACT investigated and then terminated
Kelly less than five weeks after he announced his intention to take FMLA leave for surgery. In
this situation, temporal proximity alone may be enough to establish causation. See Stein v. Atlas
Indus., Inc., 730 Fed. Appx. 313 (6th Cir. 2018); see also Seeger, 681 F.3d 283–84 (eight-week
gap between protected activity and adverse employment action sufficient to establish prima facie
case). However, Kelly offered additional evidence that Sanchez previously made veiled threats
to Kelly’s continued employment (Doc. 16-3 at ¶ 7) and threatened to prorate his pay if he took
FMLA leave (Doc. 14 at PageID 480), and others warned Kelly not to tell Sanchez he was
having surgery because he would be terminated (Id. at PageID 622). Thus, Kelly has satisfied
the minimal burden of proof necessary to establish his prima facie case.
Once a plaintiff has established a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. Seeger, 681
F.3d at 284. In the case at bar, ACT has undoubtedly articulated a legitimate, nondiscriminatory
reason for Kelly’s termination. ACT offers substantial evidence that Kelly failed to ensure the
accuracy of a subordinate’s time cards, and, in fact, Kelly admits that he used the “double click”
method of substituting a subordinate’s scheduled work time for missing punch ins and punch
outs. ACT’s official policies state, in part, “Altering, falsifying, tampering with time clock
records, or recording time on another employee’s time sheet is against company policy and is
grounds for immediate termination.” (Doc. 14-1 at PageID 677 (emphasis omitted).) In
addition, Bill Lowe and other employees reported inappropriate sexual and disparaging
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comments in the workplace that would also constitute a legitimate, nondiscriminatory reason for
Kelly’s termination. (Doc. 13-2 at ¶¶ 38, 42, 44, and 47.) Accordingly, ACT has met its burden.
If the defendant meets its burden of proof, the burden then shifts back to the plaintiff to
produce evidence demonstrating that the defendant’s proffered reason is a pretext for
discrimination. Seeger, 681 F.3d at 285. “A reason cannot . . . be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the real reason.”
Id. (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). As the Courts in this
Circuit have explained:
Unlike its role in establishing a prima facie case, “the law in this
circuit is clear that temporal proximity cannot be the sole basis for
finding pretext.” Donald, 667 F.3d at 763. However, “suspicious
timing is a strong indicator of pretext when accompanied by some
other, independent evidence.” Bell v. Prefix, Inc., 321 Fed. Appx.
423, 431 (6th Cir. 2009) (citation and internal quotation marks
omitted). A plaintiff may establish pretext by showing that the
employer’s proffered reasons (1) have no basis in fact; (2) did not
actually motivate the action; or (3) were insufficient to warrant the
action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
“Whichever method the plaintiff employs, he always bears the
burden of producing sufficient evidence from which the jury could
reasonably reject [the defendant’s] explanation and infer that the
defendant [ ] intentionally discriminated against him.” Clark, 424
Fed. Appx. at 474 (citation and internal quotation marks omitted).
Seeger, 681 F.3d at 285.
In the instant case, Kelly offered evidence that ACT human resources instructed him to
use the “double click” method of correcting time cards with missing information, that he had
been following that procedure for the many months since he had been instructed to do so, and
that both his superiors and the human resources department had no problem with him using that
method to reconcile missing time card information until he requested FMLA time for back
surgery. (Doc. 14 at PageID 577–78, 538–41.) In addition to the suspicious timing of ACT’s
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investigation into Kelly beginning the same week Kelly informed Sanchez that he intended to
take FMLA surgical leave, Bill Lowe suddenly “came to” Havrilla and Holton to complain about
comments apparently made months earlier. (Doc. 13-2 at ¶ 47; Doc. 14 at PageID 622
(“Apparently people had been talking about me for eight months, my employees, and nothing
was brought to my attention, but once FMLA paperwork was filed, then it became a problem.”))
Also, a new associate informed Kelly during the relative time period that “Mike [Havrilla] pulled
me off the floor again to ask more questions about you. When I asked what – when I asked what
about, she said – she said she felt like he was fishing for dirt on me.” (Doc. 14 at PageID 546.)
Finally, Kelly offered evidence that Sanchez had asked him to falsify and backdate documents so
that ACT could terminate a colleague who had been diagnosed with cancer before she could take
FMLA leave for cancer treatment. (Doc. 14 at PageID 516–17, 619–20.) While the Court notes
that ACT vehemently denies these allegations, Kelly has offered enough evidence from which a
jury could reasonably reject ACT’s explanation for his termination and infer that ACT
intentionally discriminated against him. Accordingly, Kelly has preliminarily established
pretext, and ACT’s Motion for Summary Judgment on Kelly’s retaliation claim must be denied.
IV.

CONCLUSION
For the foregoing reasons, ACT’s Motion for Summary Judgment (Doc. 15) is

GRANTED on Kelly’s interference claim pursuant to 29 U.S.C. § 2615(a)(1) but DENIED on
Kelly’s retaliation claim pursuant to 29 U.S.C. § 2615(a)(2).
IT IS SO ORDERED.
Dated: 8/22/18______

S/Susan J. Dlott____________________
Judge Susan J. Dlott
United States District Court

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