James v. Kaiser Aluminum Fabricated Products, LLC et al

Filing 43

OPINION AND ORDER; Defendants motion for summary judgment [doc. 33] is GRANTED IN PART AND DENIED IN PART. The Court denies the motion for summary judgment as to plaintiffs FMLA interference and retaliation claims, and grants the motion as to her Ohio-law claim for retaliation. Signed by Judge James L Graham on 4/1/2013. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Andrea R. James,

:

Plaintiff,

:
:

v.
Kaiser Aluminum Fabricated Products,
Co., et al.
Defendant.

Case No. 2:11-cv-00847
Judge Graham
Magistrate Judge Abel

:
:

OPINION AND ORDER
This action arises from an employment dispute between the plaintiff, Andrea
James, and her employer, Kaiser Aluminum Fabricated Products, LLC (“Kaiser” or “the
company”).

This matter is before the Court on defendant’s motion for summary

judgment. Doc. 33. Plaintiff asserts three claims, two under the Family Medical Leave
Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601–2654, and one under Ohio Rev. Code § 4112.
For the reasons stated below, the Court denies the motion for summary judgment as to
both FMLA claims, and grants the motion for summary judgment on the state law claim.
I. Background
Plaintiff started work with defendant in July of 2003 as a production analyst at its
plant in Newark.

Doc. 28-1 at 24.

Employees at this plant belong to a local

Steelworkers’ union. Plaintiff soon moved into a utility operator position through the
plant’s bid-in process under the collective bargaining agreement. As a utility operator,
she operated machines associated with the plant’s remelt and finish-forge processes, and
performed related jobs like packing metal into boxes before shipping. Id. at 25–31.

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An issue arose between plaintiff and her employer in February 2010. According
to the collective bargaining agreement, job movement within the company depends on a
combination of employee preference and seniority. Doc. 37 at 11–12. Based on these
factors, defendant intended to move plaintiff into a midnight shift for the position of
utility operator in early February of 2010. Doc. 28-1 at 35–37. Shortly before doing so,
the company decided to adjust its staffing assignments and cancelled that particular shift
opening for all employees. Doc. 34 Ex. A ¶ 11. Soon thereafter, plaintiff overheard a
supervisor comment that plaintiff could not handle the job that had been cancelled. Doc.
28-1 at 38–39. Based on this comment, plaintiff filed an internal grievance for gender
discrimination on February 19, 2010. Doc. 28-2 at 8; doc. 34 Ex. A ¶ 9.
Plaintiff and the company agreed that she would drop her grievance, and that she
would receive additional training for the previously posted job. Doc. 28-1 at 40–42. She
reserved the right to re-file her grievance if no training occurred, id. at 42, but she did not
do so. Plaintiff did receive some training, but there is a disagreement about the amount.
Defendant contends she received 8 days of training, doc. 34 at 7, while plaintiff contends
some amount less, doc. 38 at 18. Plaintiff eventually moved to a day-shift position on
May 10, 2010. Doc. 28-1 at 53. Up until this point, plaintiff had been working during
the midnight shift, id. at 36, and the switch to a day-time job was one she wanted. Id. at
53. Despite the resolution of the grievance and the day-shift move, plaintiff avers that
she was treated differently after her grievance. Specifically, she claims that she was
watched more closely, was forced to submit a note of justification before leaving early
from work, and ultimately, that she was fired in March of the next year, 2011, in
retaliation for filing the internal grievance. Doc. 28-2 at 8–12; doc. 38 at 19.

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Plaintiff’s attendance resulted in additional friction with her employer.
Defendant’s attendance policy operates on the basis of a points system measured by what
the company calls “occurrences.” Doc. 34 Ex. A ¶ 15.

An employee receives an

occurrence for an unexcused absence, and half an occurrence for an unexcused late
arrival. Id. When an employee accrues ten occurrences, he or she is put on probation.
Once on probation, the employee will be discharged for receiving more than five
occurrences within the next twelve-month span. Id. ¶ 15. According to the collective
bargaining agreement’s “Justice and Dignity” clause, suspended or terminated employees
may continue to work while the union and the plant go through a final grievance process.
Id. ¶ 14. Two types of absences do not count against the employee in this system:
FMLA-approved absences, and those excused under the company’s sickness and accident
(“S&A”) benefits program. Id. ¶¶ 12, 15.
While working for defendant, plaintiff took leave for both approved and
unapproved reasons. She applied for and received FMLA-covered leave seven times
between August 2004 and September 2010; these periods of leave were related to
personal health issues and to the birth of and care for her daughter. Id. ¶ 19. Unrelated to
her approved leave, plaintiff was placed on attendance probation twice for a pattern of
unexcused absences: once from July 7, 2008 through October 17, 2009, and again from
December 18, 2009 until the official date of her termination, April 4, 2011. Doc. 28-1 at
67–68; doc. 34 Ex. A ¶ 30. On September 15, 2010, plaintiff failed to call off work and
was assessed an occurrence. This put her over the allowable limit of 15, and defendant
informed her that was being suspended for five days, pending her discharge. Doc. 28-2 at
39.

She filed a grievance and was allowed to continue working according to the

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collective bargaining agreement. Doc. 34 Ex. A ¶ 16. This grievance was pending until
the end of plaintiff’s employment with defendant. Id. Plaintiff had other attendance
issues as well. Although defendant’s attendance policy did not prohibit leaving work
early, Michael Schenk, who was plaintiff’s supervisor and the superintendent at
defendant’s Newark facility, felt that her frequent early departures interfered with her
productivity. Doc. 37 at 36–37. He thus directed plaintiff on May 21, 2010 not to leave
early unless for an emergency. Id. at 35; id. Ex. 4.
On September 22, 2010, plaintiff applied for FMLA-approved leave. Doc. 35-1 at
1–4. In keeping with the company’s procedures, plaintiff and her physician, Doctor
Jeremy Campbell, completed an FMLA-request form for leave relating to depression and
migraines. Doc. 36 at 14–15. The company granted the request, id. at 18, which
indicated that her migraines and depression would require ongoing medical treatment for
up to six months, doc. 35-2 at 2. Plaintiff says she dealt with migraines on a weekly basis
in September of 2010.

Doc. 28-1 at 71–72.

She describes her standard migraine

symptoms as “blurred vision, dizziness,” and her migraines would sometimes cause her
to vomit. Id. at 71. The severity of her migraines varied. Some were “severe” and, in
addition to her usual symptoms, rendered her unable to drive and caused her “to have to
sit in a dark room until they would go away.” Id. at 71. Some were less severe. These
were “somewhat tolerable,” “the headache just wasn’t as bad,” and they would
sometimes subside when plaintiff took her prescribed migraine medication. Id. at 72.
According to defendant’s procedure for calling off work, employees call in and
provide an explanation for their absence.

Doc. 37 at 15; see also doc. 36 at 26.

Specifically, employees call what defendant refers to as “the guard office.” Doc. 37 at

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15. The guard office then notifies superintendent Schenk of the absence and reason for
the absence. Id. at 15. After receiving notification from the guard office, Schenk makes
a notation of the absence and the explanation on a sheet that he turns in weekly to
defendant’s human-resources department. Id. The human-resources department (“HR”)
keeps Schenk informed as to which employees have received FMLA-approved leave.
Schenk was aware that plaintiff had FMLA-approved leave for migraine headaches. Id.
at 19. When the guard office notifies Schenk that an employee has called off work, he
makes the initial “determination whether it’s FMLA or if it’s [an] excused absence or
unexcused absence.” Id. at 20. Schenk reports that when employees call off work for an
FMLA-related condition, he writes an “F” on his attendance sheet—regardless of whether
the guards identify the reason for missing work as just “FMLA” in general, or if they say
“FMLA” and provide a specific condition (such as migraines). Id. at 21. Either way,
according to Schenk, employees that call in for an FMLA-approved condition typically
only identify “FMLA”—not the specific condition—as the reason for their absence. Id.
Plaintiff claims she developed a migraine on the evening of February 8, 2011.
Doc. 28-1 at 148. She called off work on February 9, 2011 using defendant’s call-off
work number. Id. at 92. When asked for the reason she gave she said, “I believe I said I
had a migraine.”

Id.

Schenk confirms that plaintiff used the company’s call-off

procedure on the 9th, and confirms that he marked an “F”—for FMLA—as the reason for
her absence that day. Doc. 37 at 25–26. She also called off work on February 10, 2011
and identified the reason as “FMLA.” Id. When asked in her deposition “FMLA based
on what,” she said she was “not sure if I left just FMLA or if I had said migraine. I don’t
really remember how I worded it.” Doc. 28-1 at 93. Schenk could not remember

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whether he talked to the guard on the 10th about plaintiff’s call that day, but reports that
his notes for the day reflect “that she was off for FMLA.” Doc. 37 at 27.
Plaintiff asserts that her migraine on the 9th, the first day she called off work, was
“a medium one” and bad “[e]nough to where [she] couldn’t go to work.” Id. at 93. She
also reports that this migraine continued with medium intensity on the 10th, and that it
did not subside until that evening. Id. at 92–93. Plaintiff went to the Newark Valley
Urgent Care (“NVUC”) on the 10th. She says she went to urgent care because she could
not get in to see her family physician so early in the morning. Id. at 97. She reported her
symptoms to the urgent-care physician, saying she “had a headache,” “was nauseated,”
and generally “didn’t feel good.” Id.; see also id. at 148–49. These symptoms match
plaintiff’s description of her typical migraine symptoms. Doc. 28-1 at 71–72. The
urgent-care patient-encounter form, which was signed by the attending physician, noted
that plaintiff complained of the following during her urgent-care visit: “a 2 day history of
sinus congestion, sore throat, headache, body aches, and vomiting….Andrea complains
of frontal/facial headaches. She complains of sinus pressure. Doc. 35-13 at 1. The
urgent-care physician treated her for “acute sinusitis.” Doc. 35-13 at 2.
Plaintiff returned to work the next day on Friday, February 11. Doc. 28-1 at 94.
She reports that she “went in and handed” a note from the urgent-care facility to Schenk,
“as soon as she walked in.” Id. at 95; see also doc. 37 at 29. Plaintiff had given Schenk
other doctor’s notes after returning from time away, doc. 28-1 at 96, but the company did
not require or request one for this absence, doc. 37 at 29–30. Plaintiff explains that she
provided the note as a way to cover her bases. Doc. 28-1 at 96. When asked why she felt
it necessary to do so, she said: “I’ve just kind of felt like I had been a target for so long, I

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was about to be off probation, and just was doing the right thing.” Id. Dated February
10, 2011, the note read: “Please be advised that Andrea James was seen for a medical
condition and is excused from work from Wed Feb 9, 2011 to Fri Feb 11, 2011
(inclusive).” Doc. 35-12. Plaintiff says she returned to work on Friday the 11th because
she felt “she couldn’t afford to be off a third day.” Doc. 28-1 at 148.
Soon after providing the note, plaintiff and Schenk had an additional exchange
about plaintiff’s health. Schenk was “lin[ing] [his] crews up for work” and maintains that
he asked plaintiff several questions in succession: “Are you dying? Are you okay? Are
you still sick?” Doc. 37 at 30. According to Schenk, plaintiff responded that it “was
Bob’s fault,” and that she was referring to “her stepfather.” Id. at 30–31. Bob Gallogly,
plaintiff’s stepfather, also works for defendant and has been employed there for forty
years. Doc. 28-1 at 112. Schenk reports that plaintiff then said the following to him
about her stepfather (with his own commentary interspersed): “If he would go get taken
care of when he was sick, then she coughed, meaning he had a cough, that’s how I took
it. And, I mean, she said, I wouldn’t catch it or get it or to that extent.” Id. at 30–31.
Plaintiff confirms that she spoke to Schenk that morning, and says she “believe[s] [she]
said something along the lines of ‘Wish my dad would cover up his cough’ or
something.” Doc. 28-1 at 94. Plaintiff’s counsel objected at her deposition to the line of
questioning that elicited this answer: “I’ll object to facts not in evidence. She didn’t say
it was about her absence; you asked what she discussed with [Schenk].” Doc. 28-1 at 95.
Her counsel also argues in his reply brief that it was not her intent to communicate that
her cough was the reason she missed work. Doc. 38 at 3; doc. 28-1 at 95.

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Schenk knew that plaintiff had called off for an FMLA-related reason, and
thought that her note and her comment about her stepfather’s cough were inconsistent
with an FMLA-related absence. Doc. 37 at 31. He then called the HR manager Jeff
Kirk. Doc. 36 at 27. Kirk reports that Schenk told him the following: that plaintiff had
brought in an excuse slip for her days out; that she had also “verbally told him the major
reason she missed you could blame on her stepfather”; and that Schenk wondered
whether her excuse slip and—from his perception—verbal excuse were “consistent with
her FMLA.” Id. Kirk asked Schenk to document the incident, id., and Schenk did so by
sending Kirk an e-mail at 9:23 a.m. that morning:
2/11/11
I was setting at my desk on 2/11/11 and around 6:30 am Andrea walked in my
office and put a Dr. excuse on my desk for her absents [sic] on 2/9/11 and
2/10/11. Later at just before 7:00 am I talked to her and gave her her shift
assignment and asked her if she was dying (meaning from her being sick) and
she said it was Bobs [sic] (her step dad) fault because if he would go to the Dr.
when he had a cough (she put her hand to her mouth and coughed) he would
not pass it around.
Mike....
Doc. 34 at Ex. B, Ex. 2. Schenk was asked in his deposition about his thoughts when
plaintiff handed her note to him the morning she returned to work, which led to the
following exchange:
Q: So when she handed you the return to work slip on the 11th, did you view
that as an opportunity to do something about it?
A: To do something about it?
Q: Uh-huh. Her attendance issue.
A: I was aware where she was at with her points, and I knew she couldn’t
have no more, and I knew that if we could get one more point, we could—we
could have her—we could give her five days suspension to discharge.

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Q: And that was your goal?
A: It was my goal to—yeah. She was a habitual absentee problem; and, you
know, they play the game—absentee control policy—they play the game with
points. She was one of the worst habitual absent problems I had, and I was
trying—I was paying attention—close attention to her, and my goal was to
stop it. I tried everything I could to stop it. And it takes a lot to get
terminated there for absenteeism.
Q: So when you couldn’t stop it, your goal was to get her out of there?
A: My goal was to make sure we followed the policy.
Q: Meaning what?
A: That she got points when she deserved them.
Doc. 37 at 37–38.
After Kirk got Schenk’s email, he “compared” plaintiff’s urgent-care absence slip
“back to her FMLA folder [and] did not see that [it] was consistent her FMLA.” Id.
Based on all of this information, Kirk decided to investigate plaintiff’s absence. Doc. 34
Ex. A ¶ 21. He “initiated an investigation by having the HR department contact the
[NVUC]…to clarify what the ‘medical condition’ identified in the doctor’s excuse was.”
Id. After the NVUC received a release form, Tanisha, the NVUC office manager, faxed
defendant a copy of the doctor’s excuse on February 11 with the following hand-written
message underneath: “Pt was seen for sinus infection.” Doc. 35-19 at 4; see also doc. 34
Ex. A ¶ 22. On February 15, 2011, after “talking further with Mr. Schenk, reviewing the
call off logs for February 9 and 10, 2010, [and] reviewing Ms. James’ [FMLA]
certification,” Kirk faxed the NVUC another note “asking whether Ms. James
complained of migraines or if she presented any migraine symptoms when she visited
their physician on February 10.” Id. ¶ 23.

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In his affidavit, Kirk notes that he took the steps he did because if plaintiff’s
“absence was unexcused...[it] would result in her discharge under the Attendance Control
Policy.” Id. He thus said he wanted to “be absolutely sure that her illness and/or
treatment [at the NVUC] did not relate to migraines.” Id. ¶ 24. He knew that if her visit
to the NVUC “did relate to migraines, then her absence would have been covered by her
FMLA certification, and it would be excused.” Id. The NVUC faxed Kirk a copy of
plaintiff’s medical records from her visit to the urgent-care center on February 10, 2011.
After reviewing them, he “noted that the records did not reflect any complaints about
migraines, any past history of migraines, or any diagnosis of migraines.” Id. ¶ 27. Based
on the information he received and on his communications with Schenk, Kirk came to the
following conclusions:
I concluded Ms. James’ absence was related to a sinus infection she
apparently caught from her step-father, and was not related to any alleged
migraine because there was no evidence or indication of migraines suffered by
Ms. James in her visit to the NVUC doctor. Accordingly, I concluded that
Ms. James absence was not related to a migraine and therefore was not
covered by her FMLA certification.
Id. The urgent-care report does not mention the word migraine. See doc. 35-13 at 1–3.
Kirk does not indicate whether he spoke to plaintiff as part of his investigation. When
asked in her deposition about why she did not mention migraines to the urgent-care
doctor, plaintiff said that she “wasn’t going to see him for a migraine.” Doc. 28-1 at 98.
She followed by saying, “I don’t need to go see an urgent care doctor for my migraines;
I’m already prescribed medication for that.” Id.
Because plaintiff was already on attendance probation at this time and had 14.5
points, id. ¶ 24, her unexcused absence put her over the allowable limit of 15, id. ¶ 27.
She was thus subject to discharge under the company’s attendance program. Id. In

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accordance with the program, plaintiff received a five-day suspension on February 15,
2011, which was to precede her termination. Doc. 36 at 25. According to Kirk, the
company withdrew the occurrence that led to defendant’s September 2010 discharge
“when the events resulting in her February 2011 discharge occurred because it did not
need both instances to support her termination.” Doc. 34 Ex. A ¶ 16.
Plaintiff disputed Kirk’s decision to terminate her employment and filed a unionbacked grievance. Plaintiff sent a letter to her regular physician, Dr. Jeremy Campbell,
on February 22, 2011 asking for his help. It read in full:
Dr. Campbell I really do need your help. I came to see you yesterday and you
changed my prescriptions for migraines. I am going to lose my job because
when I went to Urgent Care last week they forwarded my medical information
to Kaiser and said it did not state anywhere that I had a migraine. I knew I
had a migraine and the only reason why I went back is because of my mom
thinking I might be getting bronchitis. My daughter had her tonsils out a few
weeks ago and my mom thought since I was off for my FMLA/migraine that
maybe I should go to Urgent Care since I could not get into see you so that I
would not get my daughter sick. They are saying I lied.
Can’t you have two illnesses at the same time? They diagnosed me with
something viral possibly sinusitis, can sinusitis be misdiagnosed another name
for migraine? They ask me what pills I took on a daily basis and I forgot to
give them my migraine medicine because I only take that as needed. Can you
write me a note stating that you can have two illnesses and that I had
prescriptions for my migraines and that I did not need to come see you? I
hope this makes sense. I really do need my job and you are the only one that
can possible [sic] save it for me. I need this note by Friday or I will be fired.
Thanks
Andie James
Doc. 28-2 at 66. Dr. Campbell responded by sending a letter to Kaiser on February 25,
2011. Doc. 35-14. The letter discussed the possibility of a relationship between sinus
infections and migraines, and read in full: “My patient Andrea James has [sic] history of
migraines and is currently being treated with chronic migraine medications, [sic]

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migraines can be flared up by up [sic] by other medical conditions including sinus
infections.” Doc. 35-14. Kirk deemed the letter to be “speculative [and] gave it very
little weight” in coming to his final conclusion. Doc. 34 Ex. A ¶ 29. The union soon
withdrew her grievance, and James worked her last day at the company on March 30,
2011. Doc. 28-1 at 106.
Plaintiff brought this suit in the Licking County, Ohio, Court of Common Pleas
on August 23, 2011. She asserted the following five claims against defendant: (1) FMLA
interference; (2) FMLA retaliation; (3) gender discrimination under O.R.C. § 4112; (4)
retaliation under O.R.C. § 4112; and (5) breach of confidentiality under Ohio law relating
to the release of her medical records. Plaintiff also brought one claim for breach of
confidentiality against the NVUC for its role in sending her medical forms to defendant;
she dismissed this claim under Federal Rule of Civil Procedure 41(a).

Doc. 40.

Defendant timely removed the action to this Court on the basis of federal question
jurisdiction. Doc. 2.
Defendant moved for summary judgment on all five counts. Doc. 33. In response
to defendant’s motion, plaintiff dropped her Ohio gender-discrimination claim and her
breach-of-confidentiality claim. Doc. 38 at 3. Her FMLA claims for interference and
retaliation remain, as does her state law retaliation claim.
II. Standard of Review
Under Fed. R. Civ. P. 56(c), summary judgment is proper “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” See Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The

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moving party bears the burden of proving the absence of genuine issues of material fact
and its entitlement to judgment as a matter of law, which may be accomplished by
demonstrating that the nonmoving party lacks evidence to support an essential element of
its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.
2005).
The “mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986) (emphasis in original); see also Longaberger, 586 F.3d at 465.
“Only disputed material facts, those ‘that might affect the outcome of the suit under the
governing law,’ will preclude summary judgment.” Daugherty v. Sajar Plastics, Inc., 544
F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly, the
nonmoving party must present “significant probative evidence” to demonstrate that “there
is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh
evidence or make credibility determinations. Daugherty, 544 F.3d at 702; Adams v.
Metiva, 31 F.3d 375, 379 (6th Cir. 1994). Rather, in reviewing a motion for summary
judgment, a court must determine whether “the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. The evidence, all facts,
and any inferences that may permissibly be drawn from the facts must be viewed in the

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light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252; see

Dominguez v. Correctional Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).
III. Discussion
A. The FMLA Claims
Two of plaintiff’s claims arise under the FMLA. The basic purposes of the
FMLA include: (1) to help “balance the demands” of the workplace and those of families,
as well as to promote the economic stability of families, and (2) “to entitle employees to
take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1), (2). To those ends,
the FMLA allows a qualifying employee up to twelve weeks of unpaid leave each year
“[b]ecause of a serious health condition that makes the employee unable to perform the
functions” of his or her position. 29 U.S.C. § 2612(a)(1)(D); see also Walton v. Ford
Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
Plaintiff asserts claims for FMLA interference and for FMLA retaliation. Section
2615(a)(1) mandates that an employer not “interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided under” the FMLA. Further, § 2615(a)(2)
bars an employer from “discharg[ing] or in any manner discriminat[ing] against any
individual for opposing any practice made unlawful by” the FMLA. The Sixth Circuit
has recognized that this kind of “discrimination” includes “retaliation” for taking FMLA
leave. See, e.g., Arban v. W. Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003).

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1. Interference
To prevail on her interference claim under 29 U.S.C. § 2615(a)(1), plaintiff must
prove that: (1) she was an eligible employee; (2) the company was an employer as
defined under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave the
company notice of her intention to take leave; and (5) that the company denied her
FMLA benefits to which she was entitled. See Edgar v. JAC Products, Inc., 443 F.3d
501, 507 (6th Cir. 2006). The parties disagree on whether plaintiff was entitled to FMLA
leave and on whether defendant denied plaintiff’s FMLA-covered leave.
FMLA coverage extends to “a serious health condition that makes the employee
unable to perform the functions” of his or her position. 29 U.S.C. § 2612(a)(1)(D). The
FMLA further defines “serious health condition” as an “illness, injury, impairment, or
physical or mental condition that involves” either “inpatient care in a hospital, hospice, or
residential medical care facility,” § 2611(11)(A), or “continuing treatment by a health
care provider,” § 2611(11)(B).
The parties disagree on whether plaintiff’s absence in February of 2011 was
caused by a serious health condition within the meaning of the FMLA. Plaintiff submits
evidence from which a reasonable jury could conclude that the FMLA would cover her
migraines and depression. Doc. 28-1 at 70–73; doc. 35-2 at 1–4. Her doctor filled out
the company’s form for its FMLA certification process, and indicated that her migraines
and depression would require ongoing medical treatment for up to six months. Doc. 35-2
at 2. Defendant granted plaintiff’s request for FMLA coverage because of her migraines,
doc. 36 at 18, and does not dispute that the migraines are a serious health condition for

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purposes of the FMLA. Plaintiff testified to having migraines and to exhibiting what she
characterized as her standard migraine symptoms during her absences in February 2011.
Defendant argues that plaintiff’s absences from work in February of 2011 were
not for a migraine, but for another issue, a sinus infection. Doc. 34 Ex. A ¶ 27; see also
doc. 34 at 13. Plaintiff does not attempt to show that her sinus infection itself counted as
its own “serious health condition” deserving of FMLA coverage. Instead, the parties’
disagreement centers on whether plaintiff’s treatment for her sinus infection undercuts
her claim that she missed work due to a migraine, a condition for which the company had
already approved FMLA coverage. Plaintiff argues that a genuine issue of material fact
exists as to whether she was absent for an FMLA-covered illness. Doc. 38 at 10.
Plaintiff testified in her deposition that her migraine extended from February 8,
doc. 28-1 at 148, until the evening of February 10, id. at 93–94. She testified that she
identified “FMLA” as the reason for her absences when calling into defendant on the 9th
and 10th, id. at 92, which Schenk’s documents confirm, doc. 37 at 25–27. Additionally,
she points to the fact that she reported having a headache to the urgent-care doctor. Id. at
97; doc. 35-13 at 1. And she argues that some of the additional symptoms—specifically
vomiting and nausea—from the urgent-care “Patient Encounter” report, doc. 35-13 at 1–
3, match some of her standard migraine symptoms, doc. 28-1 at 72. She also puts forth
the note that her regular doctor sent to defendant asserting that she had a “history of
migraines,” was “currently being treated with chronic migraine medications,” and that
“migraines can be flared up…by other medical conditions including sinus infections.”
Doc. 35-14.

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In response to plaintiff’s argument that her sinus issues were related to her
migraines, defendant argues that she presents no affirmative evidence on this point, and
that her assertion is merely conclusory. Doc. 39 at 4–5. Defendant also argues that
plaintiff’s after-the-fact doctor’s note is speculative as to the connection between the
sinus infection and her migraines, as the doctor did not treat her for the issue at hand.
Doc. 34 at 15. Defendant further argues that her sinus issues and migraines were not
related by pointing to several parts of plaintiff’s deposition testimony: that she admitted
not mentioning past migraine issues to the urgent-care doctor, doc. 28-1 at 98; that she
admitted not telling the doctor that she had a migraine that day, id.; that she “wasn’t
going to see” the urgent-care doctor “for a migraine,” but “for other reasons,” id.; and
that she did not “need to go see an urgent care doctor for [her] migraines” because she
was “already prescribed medication for that,” id. Defendant also points to the urgent-care
report, which does not refer to migraines. Doc. 35-13 at 1–3. Finally, defendant cites the
urgent-care doctor’s stated diagnosis for the “medical condition” behind plaintiff’s visit:
a sinus infection. Doc. 35-13 at 2; doc. 35-19 at 8–10.
The evidence presents a genuine dispute of material fact on the issue of whether
plaintiff’s absences in February 2011 were caused by a serious medical condition under
the FMLA. A reasonable jury could find that they were.
The parties also disagree on the final element of the interference claim: whether
the company indeed denied her the FMLA leave to which she may have been entitled.
Defendant argues that it did not deny plaintiff’s leave because it let her take work off
initially and only terminated her after she returned. Doc. 34 at 11–12. This argument has
no merit. Plaintiff may state a claim for interference by alleging that the defendant

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“shortchange[d]” her leave, as she alleges defendant did here by counting one day of
absence as unexcused. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir.
2012).

Though defendant initially granted plaintiff’s requested FMLA leave, it

ultimately decided that it would categorize her absences in February 2011 as unexcused
and not as FMLA leave. See Haley v. Community Mercy Health Partners, No. 3:11-cv232, 2013 WL 322493, at *14 (S.D. Ohio Jan. 28, 2013) (holding that final element of an
interference claim was satisfied where the employer, despite initially granting plaintiff’s
requested FMLA leave, later refused “to categorize her leave as FMLA”). There is no
requirement that interference take the form of a prior denial of FMLA leave.
For the reasons stated above, the Court denies defendant’s motion for summary
judgment on plaintiff’s claim of FMLA interference.
2. Retaliation
Plaintiff claims that Kaiser violated 29 U.S.C. § 2615(a)(2) by retaliating against
her for taking what she claimed to be FMLA-approved leave on February 9 and 10 of
2011. This circuit “applies the familiar burden-shifting test articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to
retaliation claims under the FMLA.” Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th
Cir. 2006).
According to the burden-shifting approach, plaintiff must first establish a prima
facie retaliation claim. To do so she must show the following elements: (1) that she
engaged in an activity protected by the FMLA; (2) that her employer knew she exercised
her protected rights; (3) that her employer then took an employment action adverse to
her; (4) and that a causal connection exists between the protected activity and the adverse

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employment action. See Arban, 345 F.3d at 404. “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” each element of the claim. Dixon v. Gonzales, 481 F.3d 324, 333
(6th Cir. 2007). If she presents her prima facie case, the burden shifts to defendant to
provide a “legitimate, nondiscriminatory reason” for plaintiff’s discharge. Skrjanc v.
Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). If the employer can do
so, plaintiff then has an “opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext
for discrimination.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiff meets her prima facie burden. With respect to the first element, she has
put forth evidence that the FMLA covers her migraines, doc. 28-1 at 70–73; doc. 35-2 at
1–4; and she claims that migraines caused her to take leave for the time at issue. Plaintiff
also supports the remaining elements of her prima facie claim: the company granted her
initial FMLA-leave request and knew plaintiff cited this leave as the reason for her
absences on February 9 and 10, 2011, doc. 34 Ex. A ¶¶ 20–21; she was ultimately
terminated, which is an adverse employment action; and the close proximity in time
between her FMLA leave and termination satisfies the causal-connection requirement, id.
at ¶ 28.
In response, the company properly produces a legitimate, nondiscriminatory
reason for plaintiff’s discharge: the company’s belief that plaintiff’s leave was not
covered by her FMLA certification, and therefore was unexcused. Id. With the burden
shifted, plaintiff can demonstrate discriminatory pretext for her termination in one of
three ways: “by showing that the proffered reason (1) has no basis in fact, (2) did not

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actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant
the challenged conduct.” Dews v. A.B Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
In support of its proffered reason, however, defendant invokes the honest-belief defense.
Where an “employer can demonstrate an honest belief in its proffered reason…, the
inference of pretext is not warranted.” Seeger, 681 F.3d at 285 (quoting Joostberns v.
United Parcel Servs., Inc., 166 F.App’x. 783, 791 (6th Cir. 2006)). A successful honestbelief defense thus means that the falsity of the employer’s proffered reason makes no
difference. As long as the employer indeed holds an honest belief in its proffered reason,
“the employee cannot establish pretext even if the employer's reason is ultimately found
to be mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d 799, 806
(6th Cir. 1998).
Under the Sixth Circuit’s honest-belief rule, “[a]n employer's proffered reason is
considered honestly held where the employer can establish it reasonably reli[ed] on
particularized facts that were before it at the time the decision was made.” Seeger, 681
F.3d at 285 (quoting Joostberns, 166 F.App’x at 791). Establishing a proper honestbelief defense “does not automatically shield” defendant, as plaintiff has the “opportunity
to produce evidence to the contrary.” Seeger 681 F.3d at 286. Plaintiff can show that
defendant “failed to make a reasonably informed and considered decision before taking
its adverse employment action.” Chrysler Corp., 155 F.3d at 807–08. Or she could
“produce sufficient evidence from which the jury could reasonably reject [the
defendant’s] explanation and infer that the defendant[]…did not honestly believe in the
proffered nondiscriminatory reason for its adverse employment action.” Tingle v. Arbors

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at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012) (quoting Braithwaite v. Timken Co., 258
F.3d 488, 493–94 (6th Cir. 2001)).
Defendant asserts an honest belief that plaintiff’s time away from work was
unexcused because she was out for a condition not covered by the FMLA. Doc. 34 at 13.
The initial question is whether defendant reasonably relied on the “particularized facts”
before it in concluding that the FMLA did not cover plaintiff’s time off of work. Seeger,
681 F.3d at 285 (quoting Joostberns, 166 F.App’x at 791). The company avers that it
looked into plaintiff’s absences because of her own inconsistencies in reporting them.
Doc. 34 at 14. It sought and received a copy of the record from her urgent-care visit,
which made no mention of a migraine, Doc. 34 Ex. A ¶ 26; and it verified with the
NVUC that plaintiff was treated for a sinus infection, id. ¶ 22. Before coming to its final
decision, plaintiff had a chance as part of the company’s grievance process to present
defendant with additional evidence. She put forth the note from her regular physician,
which Kirk discredited because it did not speak to plaintiff’s condition on the days she
missed work. The company concluded that plaintiff misrepresented the reason for her
time away from work and subsequently terminated her employment.

The evidence

relating to the investigation conducted by defendant establishes that it was reasonable,
particularized, and thorough.

See Seeger 681 F.3d at 287 (proffered reason for

termination had reasonable basis in fact where employer conducted thorough
investigation in which plaintiff had an opportunity to submit additional information).
Plaintiff attempts to undercut this honest-belief defense. She first attacks the
quality of defendant’s investigation calling the investigation a “sham,” doc. 38 at 16.
Plaintiff contends that defendant should have consulted either plaintiff or her current

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physician or other physicians for additional information.

However, the company’s

decision-making process need not “be optimal or [leave] no stone unturned.” Chrysler
Corp., 155 F.3d at 807. Defendant did consider a note from plaintiff’s regular doctor – a
note it considered speculative. The Court may not “second guess the business judgment”
at issue, but must “simply evaluate whether the employer gave an honest explanation of
its behavior.” Hedrick, 355 F.3d at 462. Here, the defendant’s proffered reason for
termination has a basis in fact.
Plaintiff next argues that defendant did not honestly believe in its proffered
nondiscriminatory reason – that it did not actually motivate the termination of plaintiff.
Plaintiff’s supervisor, Mike Schenk, spoke about the company’s approach to plaintiff’s
absences on February 9 and 10 of 2011. He stated that he was frustrated with plaintiff’s
attendance, and with his inability to do anything about it because of the company’s
absentee policy. Doc. 37 at 37. He further testified that when plaintiff handed him her
urgent-care excuse for her absences, he “was aware where she was at with her
[attendance] points” and “that if we could get one more point, we could—we could have
her” terminated. Id. at 37–38. When asked if that was his goal, he replied, “yeah,” that
plaintiff “was one of the worst habitual absent problems” he had, that he was paying
“close attention to her” because “it takes a lot to get terminated there for absenteeism.”
Id. at 38. He finished this exchange in his deposition by saying that it was his “goal to
make sure we followed the policy” and that “she got points when she deserved them.” Id.
Schenk’s statement that it was at least in part his goal for plaintiff’s unexcused
time away from work to push her over the line toward termination undercuts defendant’s
honest-belief defense.

He made the statement in the context of calling plaintiff a

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“habitual absentee problem.” Doc. 37 at 48. His statement could thus support an
inference that defendant had an ulterior motive for terminating plaintiff, one caused by
plaintiff taking FMLA-protected leave. For this reason, it is evidence from which a “jury
could reasonably reject [the defendant’s] explanation and infer that defendant…did not
honestly believe in the proffered nondiscriminatory reason” for the termination. Tingle,
692 F.3d at 531 (quoting Braithwaite, 258 F.3d at 493–94)).
In sum, plaintiff has presented a prima facie claim for discrimination as well as
affirmative evidence to rebut defendant’s honest-belief defense that supports her claim
that she was discriminated against for exercising her rights under the FMLA. The Court
denies defendant’s motion for summary judgment as to this claim.
B. Retaliation under Ohio Law
Plaintiff’s remaining claim alleges that defendant retaliated against her in
violation of Ohio Revised Code § 4112. Section 4112.02(l) bars discrimination against a
person who: “has opposed any unlawful discriminatory practice defined in this section or
because that person has made a charge, testified, assisted, or participated in any manner
in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the
Revised Code.” Plaintiff asserts that defendant retaliated against her for filing an internal
grievance alleging gender discrimination. Doc. 3 at 10.
Analysis of potential violations under § 4112 tracks that applied in federal
discrimination cases. See, e.g., Little Forrest Med. Ctr. v. Ohio Civil Rights Comm’n, 61
Ohio St.3d 607, 609–10, 575 N.E.2d 1164, 1167 (Ohio 1991). In order to prevail,
plaintiff first must establish a prima facie case of retaliation. To do so, she has to prove
the following: (1) she engaged in a protected activity; (2) defendant was aware that she

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engaged in that activity; (3) defendant then took an adverse employment action against
her; and (4) a causal connection existed between the protected activity and the adverse
action. See Greer-Burger v. Temesi, 116 Ohio St.3d 324, 327, 879 N.E.2d 174, 180
(Ohio 2007).

The burden then shifts to defendant to “articulate some legitimate,

nondiscriminatory reason” for its actions. Id. (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). If defendant can do so, the burden shifts back to plaintiff to
show “that the proffered reason was not the true reason for the employment decision.”
Id. (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Plaintiff’s state-law retaliation claim falls into two parts.

She claims that

defendant retaliated against her for filing an internal gender-discrimination grievance by
terminating her employment and by taking additional non-termination employment
actions that were allegedly adverse. With respect to her non-termination examples,
defendant argues that the Court does not need to reach the burden-shifting issue because
plaintiff fails to meet her prima facie burden. Doc. 34 at 16. Specifically, the company
maintains that plaintiff cannot show that she experienced an adverse employment action.
Plaintiff provides several examples of alleged adverse employment actions that would, in
her argument, constitute retaliation under Ohio law: that defendant failed to train her for a
new position to the full extent of its promise to do so; that her bosses watched her more
closely after her grievance; and that she was not permitted to leave work early unless for
an emergency.
The Sixth Circuit has held that in order to be “adverse,” the employer’s actions
must be “materially adverse.” See, e.g., Bowman v. Shawnee State Univ., 220 F.3d 456,
461 (6th Cir. 2000) (quoting Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999)). This

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means that the actions at issue “must be more than a mere inconvenience or an alteration
of job responsibilities.” Id. For example, “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, [or] significantly diminished material responsibilities” might qualify as a
materially adverse action. Id.; see also Keeton v. Flying J, Inc., 429 F.3d 259, 265 (6th
Cir. 2005) (job transfer that results in a longer commute might qualify). Non-termination
adverse employment actions, in other words, must be “of the magnitude of a termination
of employment, a demotion, a decrease in salary, [or] a material loss of benefits.” Willis
v. Pennyrile Rural Elec. Co-op. Corp., 259 F. App’x 780, 783 (2008). On the other hand,
“de minimis employment actions are not materially adverse.” Bowman, 220 F.3d at 462
(quoting Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999)); see also Kocsis v. MultiCare Mgmt. Inc., 97 F.3d 876, 884 (6th Cir. 1996) (job reassignments that carry the same
salary and hours generally do not qualify as materially adverse). Applied here, plaintiff’s
non-termination examples of alleged adverse employment actions fail as a matter of law.
Plaintiff first asserts that she did not receive training to the extent Kaiser promised
as part of the agreement to drop her employment grievance. Even if true, receiving
somewhat less training than what was promised does not amount to a material change in
the terms of her employment. See, e.g., Vitt v. City of Cincinnati, 97 F.App’x 634, 639
(6th Cir. 2004) (no adverse employment action for failure to provide computer training or
failure to allow employee to attend seminars). Plaintiff’s retaliation claim thus fails
insofar as it relies on her not being trained to the full extent of a promise.
Plaintiff next claims that she felt like her supervisors watched her more closely
than the other employees; and that the company subjected her to treatment worse than

25

that of her peers by asking her questions about an absence upon her return. With respect
to her example about being watched closely, she admitted in her deposition to being
somewhat unsure as to whether her supervisors were indeed watching her or her
colleagues. Doc. 28-1 at 56. More importantly, plaintiff fails to put forth any evidence
for both claims regarding how watching her more closely or asking additional questions
might rise to the level of a materially adverse employment action. Additional supervision
and asking questions are also the kind of “de minimis employment actions” that “the
Sixth Circuit has consistently held…are not materially adverse.” Bowman, 220 F.3d at
462 (quoting Hollins, 188 F.3d at 662).
Plaintiff also claims that she was not allowed to leave work early unless for an
emergency or when she had her supervisor’s permission. While this might have made
plaintiff’s job slightly more difficult, it did not make it “significantly more difficult.”
Worthy, 433 F.App’x at 376. This is exactly the kind of “inconvenience” that does not
rise to the level of materially adverse. See Bowman, 220 F.3d at 461.
Plaintiff’s only adverse employment action is termination, which she claims came
in retaliation for filing an internal discrimination grievance.

Defendant argues that

plaintiff provides nothing more than a bald assertion that her termination came in
retaliation for the internal grievance. Part of plaintiff’s prima facie burden requires her to
provide some evidence of a causal connection between her internal discrimination
grievance and her termination. See Temesi, 116 Ohio St.3d at 327, 879 N.E.2d at 180.
Her termination example fails on this count.

She presents no evidence that her

termination had anything to do with her original sex-discrimination grievance a year
earlier. And “where some time elapses between when the employer learns of a protected

26

activity and the subsequent adverse employment action, the employee must couple
temporal proximity with other evidence of retaliatory conduct to establish causality.”
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). In this case,
plaintiff’s termination came over a year after her internal grievance. Given the lack of
causal evidence for the delay between her grievance and her termination, this claim fails
as a matter of law.
In sum, plaintiff has failed to meet her burden of establishing a prima facie claim
of retaliation under Ohio law as it applies to all of defendant’s alleged adverse
employment actions.

As for her termination example, it fails on causal-connection

grounds. Defendant is thus entitled to summary judgment on plaintiff’s retaliation claim
under Ohio law.
IV. Conclusion
For the reasons set forth above, defendant’s motion for summary judgment (doc.
33) is GRANTED IN PART AND DENIED IN PART. The Court denies the motion for
summary judgment as to plaintiff’s FMLA interference and retaliation claims, and grants
the motion as to her Ohio-law claim for retaliation.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
Date: April 1, 2013

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