O'Connor v. Nationwide Children's Hospital
ORDER denying 38 Plaintiff's Motion to Strike and granting 23 Defendant's Motion for Summary Judgment. Signed by Judge George C. Smith on 7/20/17. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:16-cv-357
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers
NATIONWIDE CHILDREN’S HOSPITAL,
OPINION AND ORDER
This matter is before the Court on Defendant Nationwide Children’s Hospital’s Motion
for Summary Judgment on Plaintiff Erin O’Connor’s remaining claim for violation of the Family
and Medical Leave Act, 29 U.S.C. §2601, et seq. (“FMLA”).1 The motion is fully briefed and
ripe for review. For the reasons that follow, the Court GRANTS Defendant’s Motion.
Defendant Nationwide Children’s Hospital (“Nationwide Children’s”) is a hospital
located in Columbus, Ohio, that is subject to the requirements of the Family and Medical Leave
Act (“FMLA”). Plaintiff, Erin O’Connor, is a 26 year-old female who was employed as a
preoperative technician with Nationwide Children’s. Plaintiff began her employment in January
of 2014 and was terminated effective November 16, 2015. (Doc. 8, Compl. ¶¶ 1–4). As a
preoperative technician, Plaintiff’s duties included: assisting hospital staff with the transport of
On November 9, 2016, the Court dismissed Plaintiff’s wrongful termination, battery, and
products liability claims. (See Doc. 10).
patients, setting up medical care equipment, maintenance of surgical equipment, and supporting
administration of anesthesia to patients. (Doc. 8, Compl. ¶ 1).
On March 19, 2015, Plaintiff suffered an injury to her shoulder while at work when a
freight elevator door shut on her. (Doc. 8, Compl. ¶ 6). Plaintiff first reported her injury in an
FRO-1 report dated March 20, 2015. (Id. at ¶ 8).
As a full-time employee, Plaintiff was entitled to benefits under the FMLA. She alleges
that “Defendant knowing the Plaintiff was required to be given FMLA leave for a serious health
condition delayed treatment and contested the Plaintiff’s workers’ compensation claim for her
shoulder injury.” (Id. at ¶ 9). Plaintiff filed a workers’ compensation claim following her
shoulder injury and the claim was “under investigation” as of March 30, 2015.” (Id. at ¶ 10).
Plaintiff’s injury was later deemed valid as reported on an FRO-1 created by Defendant dated
April 2, 2015, stating Plaintiff had a “crush injury, right shoulder.” (Id. at ¶ 11).
Plaintiff stated in her Complaint that “Defendant placed [her] on FMLA leave (29 USC
2601 et seq) given she met the requirements of FMLA Section 102(a)(1)(D) to wit: ‘because of a
serious health condition that makes the employee unable to perform the functions of the position
of such employee.’” (Doc. 8, Compl. ¶ 22). Plaintiff further states that she was “placed on
FMLA involuntarily by Defendant’s benefits administrators so that Defendant hospital would be
able to circumvent Ohio worker’s compensation statutes that prohibit retaliation against
employees by terminating them for being injured on the job by manipulating FMLA and hospital
leave policy.” (Id. at ¶ 23).
Plaintiff alleges that she was unable to return to work within the next six months because
of Defendant’s conduct in refusing to pay for or provide medical care to her. On September 9,
2015, Plaintiff was placed on contingent employee status, following the expiration of her FMLA
leave. (Doc. 8, Compl. ¶ 12). Plaintiff asserts that “[c]ontingent status at NCH is the functional
equivalent in practice of effecting a constructive discharge from employment on 9 SEP 2015.”
(Id. at ¶ 14). Plaintiff describes that she was placed on this status “immediately before she was
to receive corrective surgery allowing her to return to work, surgery that she paid for out of her
own pocket.” (Id. at ¶ 14). Nationwide Children’s ultimately terminated “Plaintiff’s
employment with a letter so advising her and dated 16 NOV 2015” because she had not returned
to work following her extensive leave period. (Id. at ¶ 4). Plaintiff argues that this was a
wrongful termination in violation of FMLA Section 107 (a)(1)(A)(i)(I) and/or (II). (Id. at ¶ 25).
In the Court’s November 9, 2016 Opinion and Order, all of Plaintiff’s claims against
Nationwide Children’s were dismissed except for the FMLA interference claim. (Doc. 10, Nov.
9, 2016 Opinion and Order). Plaintiff sought reconsideration of this Court’s Opinion and Order
which was denied on June 14, 2017. (See Docs. 21 and 36). Defendant now moves for summary
judgment on Plaintiff’s remaining FMLA claim.
II. STANDARD OF REVIEW
Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). The Court’s purpose in considering a summary judgment motion is
not “to weigh the evidence and determine the truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A
genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient
evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not
significantly probative,” however, is not enough to defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Cox v. Kentucky Dep’t
of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce
evidence that results in a conflict of material fact to be resolved by a jury”). In considering the
factual allegations and evidence presented in a motion for summary judgment, the Court must
“afford all reasonable inferences, and construe the evidence in the light most favorable to the
nonmoving party.” Id.
Defendant Nationwide Children’s Hospital has moved for summary judgment on
Plaintiff’s remaining FMLA claim. Defendant argues that Plaintiff had a serious medical
condition and she was unable to work, requiring her placement on FMLA leave. After receiving
notice of the expiration of her FMLA leave, Plaintiff never requested further FMLA leave to
satisfy the elements of an FMLA interference claim. Plaintiff responds that any such request
would have been futile but fails to provide any evidence in opposition to the motion for
November 9, 2016 Opinion and Order
In the Court’s prior ruling on Defendant’s Motion to Dismiss Plaintiff’s FMLA
interference claim, the Court held:
The allegations in Plaintiff’s Complaint are very sparse with respect to this claim.
She makes a conclusory statement that she was “placed on FMLA involuntarily”
and that she “was not required to accept FMLA leave benefits from NCH and
they were bestowed on her to effect a wrongful termination.” (Doc. 8, Compl.
¶¶ 23, 25). Further, Plaintiff does not specifically state that she requested FMLA
leave at a later date to make this claim ripe, but suggests that she may have.
However, at this stage in the proceedings, Plaintiff has sufficiently alleged that
she was placed on FMLA leave involuntarily in violation of her rights under the
FMLA. Accordingly, Defendant’s Motion to Dismiss Plaintiff’s FMLA claim is
(Doc. 10, Nov. 9, 2016 Opinion and Order).
Following the ruling, Defendant served Plaintiff with requests for admission to obtain
evidence, or lack thereof, to support a motion for summary judgment.
FMLA Interference Claim
Plaintiff alleged that Nationwide Children’s placed her on FMLA leave
involuntarily, violating her rights under the FMLA. She alleged in her Complaint that
“Defendant placed [her] on FMLA leave (29 USC 2601 et seq) given she met the requirements
of FMLA Section 102 (a)(1)(D) to wit: ‘because of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.’” (Doc. 8, Compl.
¶ 22). She also asserts that she “was required to be given FMLA leave for a serious health
condition.” (Id. at ¶ 9).
The FMLA entitles an “eligible employee” to up to twelve weeks of leave per year if he
or she has a “serious health condition” that prevents the employee from performing the functions
of his or her job. 29 U.S.C. § 2612(a)(1)(D); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th
Cir. 2005). In order to maintain an interference claim under the FMLA, Plaintiff must establish
that: (1) she was an eligible employee under the FMLA; (2) that Nationwide Children’s is an
employer as defined under the FMLA; (3) that she was entitled to leave under the FMLA; (4)
that she gave notice of her intention to take leave; and (5) that Nationwide Children’s denied
Plaintiff the FMLA benefits to which she was entitled. See Edgar v. JAC Prods., Inc., 443 F.3d
501, 507 (6th Cir. 2006). In assessing an interference claim, “the issue is simply whether the
employer provided its employee the entitlements set forth in the FMLA–for example, a twelveweek leave or reinstatement after taking a medical leave.” Id. at 506 (quoting Arban v. West
Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).
As discussed in the previous Opinion and Order, although Plaintiff’s FMLA claim was
not clearly pled, based on the allegations and her arguments in response, her claim was construed
as an involuntary leave claim, which is a type of FMLA interference claim. An involuntaryleave claim arises under 29 U.S.C. § 2615(a)(1) when: “an employer forces an employee to take
FMLA leave when the employee does not have a ‘serious health condition’ that precludes her
from working.” Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007). However, “the
employee’s claim ripens only when and if the employee seeks FMLA leave at a later date, and
such leave is not available because the employee was wrongfully forced to use FMLA leave in
the past.” Id.
Defendant argues that Plaintiff cannot dispute that she was eligible for, and was placed
on, FMLA leave. Plaintiff does not submit any arguments or documentation to dispute that she
had a serious health condition and was required to be given FMLA leave. Plaintiff has not
submitted any evidence whatsoever to counter Defendant’s Motion for Summary Judgment.
Defendant has submitted Plaintiff’s admissions in which she admits that she was unable to
perform her job duties from March 24, 2015–after the shoulder injury–until the end of her
employment in November 2015. (See Docs. 23-1 and 37-2).2
At no time during the course of this litigation has Plaintiff argued that she was able to
work and should not have been placed on FMLA leave. Nor has she alleged that she tried to
report to work and was told to go home. Plaintiff takes issue with being involuntarily placed on
FMLA, but if she had not been, Nationwide Children’s would have had grounds to terminate her
based on her attendance months earlier than the actual termination date.
Further, Defendant has submitted Plaintiff’s responses to the requests for admissions that
establish that Plaintiff did not request FMLA leave after September 7, 2015, and therefore, does
not have a ripe claim for FMLA interference. (See Doc. 23-1); Wysong, 503 F.3d at 449 (“claim
ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not
available because the employee was wrongfully forced to use FMLA leave in the past”).
Plaintiff responds first that she would have only needed 12 weeks of FMLA leave had
Defendant not denied her initial claim for worker’s compensation. (Doc. 29, Pl.’s Response at
8). In fact, Plaintiff repeatedly argues that Defendant delayed and denied her treatment. But the
Court is not privy to the Plaintiff’s worker’s compensation claim, nor is it relevant to Plaintiff’s
FMLA claim in this case. FMLA and worker’s compensation are two separate benefits available
to employees. Again, Plaintiff does not specifically argue that she didn’t need the FMLA leave,
but rather if the worker’s compensation claim had been resolved in a timely manner, then she
would not have exhausted her leave time. Defendant asserts that Plaintiff’s allegations regarding
The Court requested Defendant file the exhibits referenced in their motion and that filing is now
on the docket as Doc. 37. Plaintiff moved to strike Defendant’s filing, however, since the filing was
at the request of the Court, Plaintiff’s motion to strike (Doc. 38) is denied.
the worker’s compensation claim resemble a workers’ compensation retaliation claim, however,
Plaintiff has not asserted such a claim in this case.
Plaintiff responds to Defendant’s argument that she never requested FMLA leave
following the exhaustion of her FMLA leave on September 2, 2015, by arguing that it would
have been a futile act. (See Doc. 29). Plaintiff states that she “did not reapply for FMLA leave
because it is undisputed after the Defendant deemed her FMLA ineligible, she was
constructively discharged . . . and reapplication for FMLA leave benefits would have been a
futile act making any application of the ripeness holding in Wysong to the facts in this case out
of place.” (Id. at ¶ 8). Plaintiff relies on Weimer v. Honda of Am. Mfg., Case No. 2:06-cv-844,
2008 U.S. Dist. LEXIS 79637, at *5–6 (S.D. Ohio 2008) (Frost, J.), which stated “Wysong . . . is
distinguishable here. Wysong was concerned not with whether a plaintiff could argue that leave
was compelled or involuntary, but with when an involuntary-leave claim became ripe. [Wysong]
at 448-50. But Plaintiff is simply not asserting an interference claim for forced or involuntary
leave in this case. Rather, Plaintiff is asserting a claim for being discharged in contravention of
FMLA protections and argues that his use of FMLA leave was at least in part compelled.” Id.
(emphasis in original). However, Plaintiff has failed to provide any evidence in support of her
claims that she was forced to take FMLA leave or was somehow compelled. Therefore,
regardless of the analysis in either of the aforementioned cases, in this case, there is no evidence
to support Plaintiff’s FMLA interference claim.
Finally, Plaintiff has not submitted any admissible evidence, and instead relies only on
her initial pleadings. Plaintiff argues that “[n]o opposition motion affidavit is needed to
contradict evidence that does not show on its face conclusively what the Defendant says it does
as a matter of law. Defendant’s 7 page unsworn motion does not resolve any factual claims in
this case in any sense of the Rule 56 motion concept.” (Doc. 29, Pl.’s Resp. at 13). Despite
Plaintiff’s lengthy arguments in response to Defendant’s motion for summary judgment, she fails
to set forth any evidence to establish a genuine issue of material fact. She doesn’t even deny that
she was unable to work.
Resting on mere allegations or denials is not sufficient to counter summary judgment.
Schneider v. City of Springfield, 102 F. Supp. 2d 827, 831 (S.D. Ohio 1999) (Rice, J.). Rather,
the non-moving party must “present affirmative evidence on critical issues.” Guarino v.
Brookfield Twp. Trs., 980 F.2d 399, 403 (6th Cir. 1992). Accordingly, “[o]nce the burden of
production has shifted, the party opposing summary judgment cannot rest on its pleadings or
merely reassert its previous allegations. It is not sufficient to ‘simply show that there is some
metaphysical doubt as to the material facts’”, but instead, “‘Rule 56 requires the nonmoving
party to go beyond the pleadings and present some type of evidentiary material in support of its
position.’” Kumar v. Aldrich Chem. Co., 911 F. Supp. 2d 571, 583 (S.D. Ohio 2012) (Rose, J.)
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); and
Celotex Corp., 477 U.S. at 324).
The Court summarized in its previous Opinion and Order that Plaintiff’s allegations with
respect to her FMLA interference claim were sparse. Fully aware of this, Plaintiff still chose not
to submit any additional information to support her claim, not even an affidavit. Rather, she
chose to rely on the sparse allegations in her Complaint. Summary judgment must therefore be
entered against Plaintiff who failed to “establish the existence of an element essential to the
party’s case, and on which that party will bear the burden of proof at trial.” Schneider, 102 F.
Supp. 2d at 830 (quoting Celotex Corp., 477 U.S. at 322).
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary
Judgment (Doc. 23) and DENIES Plaintiff’s Motion to Strike (Doc. 38).
The Clerk shall remove Documents 23 and 38 from the Court’s pending motions list and
enter final judgment in favor of Defendant Nationwide Children’s.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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