The opinion of the court was delivered by: Judge Thomas M. Rose
ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. DOC. 18.
Pending before the Court is Motion for Summary Judgment of Defendants Select Industries Corporation and Mike Dankworth. Doc. 18. Therein, Defendants request that the Court enter judgment for Defendants on Plaintiff's claims that Defendants have violated the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., Ohio's Prompt Pay Act, Ohio Rev. Code § 4113.15, and Ohio public policy. Defendants further seek a declaration that Plaintiff has failed to fully mitigate her damages. Because a jury construing the evidence in the light most favorable to Plaintiff could find in her favor on the FMLA claim, Defendants' motion will be denied on this claim. Because Plaintiff admits that she has not complied with the contractual prerequisites of the bonus referral system, the fruits of which she claims are owed to her, and because the Ohio Prompt Pay Act does not extend to bonuses, the motion will be granted with regard to the claimed violation of the Ohio Prompt Pay Act. Because Ohio does not recognize a cause of action for violation of Ohio public policy by virtue of violating the FMLA, Defendants' motion will be granted with regard to this claim. Because there is a genuine issue of material fact concerning the question of whether Plaintiff fully mitigated her damages, Defendants' request for a declaration in this area will be denied.
Defendant Select Industries hired Plaintiff Alice M. Jones as a Machine Operator on September 30, 1996. See Complaint, ¶7. Once Jones became eligible for leave under the Family and Medical Leave Act ("FMLA") in September 1997, Jones began to use intermittent FMLA leave to care for her seriously ill nephew, Jeffrey Love, for whom she acted in loco parentis.
In May 2000, Jones received and signed for a copy of Select's Employee Handbook, which explained Select's policies on absenteeism and leaves of absence. (See Jones Depo. at 45, Ex. 1-2). Select's absenteeism policy used a point system for tracking employee attendance. Under this system, an employee is assessed 1/2 point for time away from work of four hours or less, including arriving late or leaving early (the threshold is five hours if the employee is on a ten-hour shift). (Jones Depo. at 48, Ex. 3). Employees are assessed 1 point for time away from work greater than four hours (five hours for a ten-hour shift). Id. Failure to appropriately clock in or out results in a 1/2 point under the policy. Id. If an employee serves thirty days without receiving any points, 1 point is deducted from their absence points. Id. Certain absences, including FMLA-protected ones, are counted as "excused" under the policy and do not carry any point penalties. However, the policy states that "chronic or patterned excused absences" may be reviewed and, if warranted, such absences "may be changed to unexcused." (Jones Depo. at 48, Ex. 3; see also Barr Depo. at 15, 19-21).
Based on the point system, Select's attendance policy calls for the following corrective actions as absences accumulate within a rolling twelve-month period:
Number of Points Action Taken
3 Counsel associate concerning policy and document discussion
4 Written reprimand/document 5 Final written warning 5 Termination/document (Jones Depo. at 48, Ex. 3; Barr Depo at 15.)
By the end of May 2001, Jones had accumulated 3.5 points. (Barr Depo. at 45, Ex. 2.1) By the end of June 2002, she had 4 points, and by the end of July her points had increased to 4.5. In August, Plaintiff received an additional 1/2 point, bringing her total to 5, putting her in danger of a final written warning. In light of her record, her supervisor, Defendant Mike Dankworth, met with her on September 24, 2001 to discuss her attendance record. (Barr Depo. at 45, 47-48, Ex. 2.) By the time of the meeting on September 24, 2001, Jones's attendance chart indicated 4.5 points, though Barr later testified that, due to the decision to excuse previously unexcused incidents, it should have been only 4 points. (Barr Depo. at 49, Ex. 2.) Dankworth warned Plaintiff at this meeting that failure to improve in this area would lead to further disciplinary action, up to and including termination. (Dankworth Depo. 30, Ex. 4.)
There followed a 30-day period where Jones received no points, prompting her total to drop to 3.5, and then again to 2.5 by the end of December, 2001. (Barr Depo. at Ex. 2.) By the end of calendar year 2001, Jones had 2.5 absentee points on her record. January 2002 continued her good attendance, so that she had 1.5 points by the end of January 2002. (Barr Depo. at 51, Ex. 2.)
After 1 point was reduced from her record on February 4, 2002 for another period of 30 days with no points, on February 11, 2002 and then again on February 12, 2002, Jones failed to punch in to the time clock properly, resulting in a 1/2 point penalty for each offense. Thus, at the end of February, Jones absentee points were again at 1.5. Id. On March 9, 2002 and March 23, 2002, Jones was absent from work for non-FMLA or other excused reasons, which caused her absentee points to reach 3.5. Id. Jones was both late and failed to punch in on April 13, 2002. Dankworth charged her with 1/2 point for these offenses. (Dankworth Depo. at 23-24.) She failed to punch in again on April 15, 2002, causing accumulated points to reach 4.5. (Barr Depo. at 53.)
Due to Jones' continued attendance problems, Dankworth met with her on April 17, 2002. During this meeting, Dankworth issued Jones a second written warning indicating that continued failure to correct her attendance issues would result in further disciplinary action, up to and including termination. Jones responded to the warning by telling Dankworth that she did not agree with her accumulated points because she believed that she had turned in medical documentation to relieve her from working on Saturdays when she needed to care for her nephew. Dankworth, who was her immediate supervisor, had no knowledge of any such documentation and he agreed to ask Human Resources to review their files and agreed that he would also look through Jones' personnel file to determine her exact number of absentee points. Jones' files were reviewed and no such medical documentation existed.*fn1 (Jones Depo. at 122-125, Ex. 6; Dankworth Depo. at 36-38.)
On April 18, 2002, the day after Dankworth spoke to her about her excessive absenteeism, Jones missed work. While Jones had asked for time off for one hour to attend a house inspection, she missed the entire day. This brought her point total up to 5.5, mandating termination under the Attendance Policy. (Barr Depo. at 53, Ex. 2, Ex. 8.) In view of Jones' points, Select decided to terminate her on May 13, 2002. (Barr Depo. at 55.)
Jones refers to § 6.1.14 of the Select attendance policy as evidence that Select's supervisors can convert FMLA leave into unexcused leave that warrants points under Select's policy. Doc. 22 at 6, § 6.1.14. None of the points that required Jones's termination, however, were created by the conversion of excused absences into unexcused ones. Barr Depo. at 19. Jones admits that she was never assessed points for FMLA-covered absences. Jones Depo. 119-21.
While Select's policy describes termination as an action that "will be taken" when excessive points are accumulated, the testimony of Barr and Dankworth leaves the impression that Dankworth had discretion in whether or not to terminate Jones. See, e.g., Barr Depo. at 66-67. Similarly, it is not entirely clear who at Select had ultimate authority for deciding whether to terminate an employee. The deponents refer to the decision as Dankworth's, they also refer to his decision being subject to approval by a manager and Director of Human Resources Barr.
Jones describes the Select attendance policy as involving a judgment call to be made by a supervisor in deciding to terminate an employee. Doc. 22 at 4. Assuming the decision to terminate Jones is within the discretion of supervisor Dankworth, the question of whether Jones's use of FMLA leave affected the decision to terminate her presents a jury with a genuine issue of fact in light of Dankworth's testimony:
Q: Do you know how you came to the conclusion that she had chronic or patterned absences?
A: Yes, ma'am, just over the period of years that I have worked with Alice and that she had been in trouble several times with her attendance, as well as the whole scheme ...