The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 14.) Plaintiff Alana Schirmer brought the following claims against her former employer, defendant Enerfab, Inc. ("Enerfab"), after Enerfab terminated her employment: disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA") and the Ohio Civil Rights Act, O.R.C. § 4112 et seq. ("Section 4112"); gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and Section 4112; retaliation in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (the "FMLA"), Title VII, and Section 4112; and breach of Ohio public policy. (Doc. 1.) Enerfab moved for summary judgment as to all of Schirmer's claims. (Doc. 14.) Schirmer then voluntarily dismissed her retaliation claims brought pursuant to Title VII and Section 4112. (Doc. 18 at 1.) Accordingly, the Court considers Enerfab's motion as to the remaining claims. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion. The Court grants the motion as it relates to Schirmer's gender discrimination and violation of Ohio public policy claims but denies the motion as it relates to Schirmer's disability discrimination and FMLA retaliation claims.
Enerfab is a manufacturing company that installs systems and provides and constructs pressure vessels and vessel components for the beverage, chemical, utility, and pharmaceutical industries. (Doc. 14 at 1.) Prior to a reorganization in September 2003, Enerfab had three divisions: the Fabrication Division, the Head Division, and the Process Systems Division. (Bell dep. at 15.) Alana Schirmer started working at Enerfab on August 9, 1999 as a secretary in the Head Division. (Compl. ¶ 7.) Approximately seven weeks later, Enerfab promoted Schirmer to the position of Purchasing Agent in which she did purchasing for the Head Division. (Schirmer dep. at 46.) Schirmer did not have any prior experience in purchasing or in Enerfab's industry. (Id. at 47.) In March 2000, Enerfab gave Schirmer the additional responsibility of doing some purchasing for the Process Systems division. (Id. at 48). In 2001, Schirmer was one of two Purchasing Agents reporting to Purchasing Manager Stephen Hammoor. (Hammoor dep. at 9-10.) The other Purchasing Agent, Jeff Albert, did purchasing for Enerfab's Fabrication Division. In October 2001, Enerfab eliminated Albert's position, and Schirmer assumed his duties. (Id. at 10-11, 13.)
In December 2002, Enerfab purchased the Brighton Head Company, owned by Trinity Industries, which was absorbed into Enerfab's Head Division. (Bell dep. at 10-11.) As a result of the Trinity purchase, Enerfab hired approximately 50 Trinity employees, including Lori Bertsch and Mark Mills. (Id. at 12-13.) Bertsch, who had been employed by Trinity for 13 years, became a Purchasing Agent for Enerfab's Head Division, and Schirmer continued to do purchasing for the Fabrication Division and to some extent the Process Division. (Bertsch dep. at 6-7, 21; Schirmer dep. at 103-04; Bell dep. at 21.) Mills had been the Director of Purchasing at Trinity and assumed the same role for Enerfab. In this position, Mills supervised Schirmer and Bertsch. (Mills dep. at 14.)
In or around April 2003, Schirmer began experiencing headaches and other symptoms that caused her to miss time from work. (Schirmer dep. at 133-135.) Due to her symptoms, Schirmer worked only two days in the month of April. (Id. at 134.) At the end of April, Schirmer returned to work without restrictions. (Id. at 136.) However, she continued to miss approximately one day of work per week. (Id. at 137.) Nevertheless, Schirmer continued to receive her full salary. (Id. at 136.) Near the end of April 2003, Schirmer told Hock, an Enerfab executive vice president, that she was undergoing testing to determine whether she had multiple sclerosis ("MS"). (Id. at 55; Hock dep. at 20.) Schirmer also told several Enerfab employees that she was experiencing health problems and that they might be attributed to MS. (Mills dep. at 26-27; Bertsch dep. at 24.) Schirmer's symptoms included vision problems, headaches, fatigue, and aches and pains. (Schirmer dep. at 134-136.)
At some point after April 2003 but before September 1, 2003, Schirmer requested FMLA paperwork from Enerfab's human resources director Mark Schoettmer. (Schirmer dep. at 95, Schoettmer dep. at 44-45.) However, Schirmer never completed the paperwork. (Schirmer dep. at 96-97.) Schirmer recalls that Schoettmer advised her to wait to fill out the paperwork until she needed more than one or two days off. (Schirmer dep. at 96.) Schoettmer denies telling Schirmer to wait to fill out the paperwork and testified that he told her to turn in the paperwork whenever she was ready to do so. (Schoettmer dep. at 44-45.) Schoettmer knew that Schirmer had missed some work because of headaches but he did not know whether Schirmer's health condition had been diagnosed. (Schoettmer at 45-46.)
In August 2003, Jeff Hock, executive vice president of the Fabrication and Head Divisions, and David Winnestaffer, executive vice president of the Process Division, consolidated the Fabrication and Process Divisions into a single Process Solutions Group. (Hock dep. at 8-9, Winnestaffer dep. at 35-36, Mills dep. at 52, Bell dep. at 20.) Enerfab CEO Wendell Bell also was involved in the decision to consolidate the two business groups. (Bell dep. at 14-15). The goal of the consolidation was to make the business more efficient and to offer the customer a "total solution" to their needs rather than offering them separate piping and tank systems. (Hock dep. at 8-9, Winnestaffer dep. at 35-36.)
At some point, Hock and Winnestaffer determined that Enerfab would have to terminate certain individuals. (Hock dep. at 12-14.) Human Resources Vice President Ken Reynolds helped implement the terminations. (Hock dep. at 14; Reynolds dep. at 16, 20, 24-25.) Prior to the consolidation, Schirmer was responsible for purchasing for the Fabrication Division and to some extent the Process Division, and Dan Downey also did some purchasing for the Process Division. (Schirmer dep. at 103-04; Winnestaffer dep. at 31.) Downey, an Enerfab employee since 1978, worked in Enerfab's Process Division where he handled sales and subcontracting and reported to Dave Winnestaffer. (Downey dep. at 14, 16.) Downey had previously worked in Enerfab's purchasing department from 1994 to 2001, managing the department for approximately five years. (Downey dep. at 13-14.)
Hock and Winnestaffer developed a proposed list of persons to be laid off as a result of the consolidation of the Fabrication and Process divisions and solicited feedback from managers. (Hock dep. at 14-15.) Hock sought input from Purchasing Director Mark Mills about the relative skill sets of Bertsch and Schirmer. (Hock dep. at 15, 17; Mills dep. at 53-57.) Bertsch had thirteen years experience in purchasing for the head industry (Bertsch dep. at 6-7) whereas Schirmer had four years of experience. Schirmer was a diligent worker, while Bertsch was strong in the areas of inventory management, CNC programming and had a larger knowledge of the carbon steel side of the business. (Mills dep. at 56.) Ultimately, Hock decided to terminate Schirmer, retain Bertsch in the purchasing department, and move Downey into the purchasing department from his former position in the Process Division. (Hock dep. at 18, Mills dep. at 66-67). In total, Enerfab eliminated five positions, including Schirmer's position and the positions of four male employees. (Reynolds dep. at 24-26, 34-35.) Enerfab terminated Schirmer on September 1, 2003. More than one year later, in October 2004, Schirmer's physician diagnosed her as having MS. (Schirmer dep. at 139.)
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party may support the 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "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). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The task of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. A genuine issue for trial exists when the evidence is not "so one-sided that one party must prevail as a matter of law." Id. at 252.
A. Statutory Discrimination and Retaliation Claims
Schirmer brings four claims against Enerfab: disability discrimination, gender discrimination, FMLA retaliation, and breach of Ohio public policy.*fn1 In order to establish a discrimination claim, a plaintiff must produce either direct or circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). Direct evidence is "evidence that proves the existence of a fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Schirmer presents no direct evidence that Enerfab unlawfully discriminated or retaliated against her on any of the alleged bases.*fn2 Therefore, she must make her case with indirect evidence under the burden- shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184-85 (6th Cir. 1996).
Under the McDonnell Douglas analysis, a plaintiff must first make a prima facie showing on the discrimination or retaliation claim. If the plaintiff makes such a showing, the burden shifts to the employer to show a nondiscriminatory reason for its employment decision. Monette, 90 F.3d at 1186; see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). If the employer satisfies this burden of production, then the plaintiff must prove by a preponderance of the evidence that the employer's proffered reason was not its true reason but was, in fact, a pretext for illegal discrimination or retaliation. Burdine, 450 U.S. at 256. The plaintiff retains the ultimate burden of persuasion at all times. Id.
Applying this analysis, Schirmer first must establish the prima facie elements of disability discrimination, gender discrimination, and FMLA retaliation. Because the elements of these claims differ, they will be discussed separately below. The remainder of the burden-shifting test is the same for each of the claims. That is, if Schirmer is able to establish a prima facie case on a claim, the burden of production shifts to Enerfab to provide a legitimate, nondiscriminatory reason for its decision to terminate Schirmer. If, on the other hand, Schirmer fails to establish a predicate fact necessary to create the presumption of unlawful intent, the burden never shifts to Enerfab. Monette, 90 F.3d at 1185.
In the event the burden of production does shift to Enerfab, it has asserted that it had a nondiscriminatory reason for Schirmer's termination, namely, that her termination was part of a corporate restructuring that resulted in a reduction in force ("RIF"). Because Enerfab has articulated a nondiscriminatory reason for terminating Schirmer, she must prove by a preponderance of the evidence that Enerfab's reason for terminating her was not, in fact, because of the restructuring but was a pretext for illegal discrimination or retaliation.
1. Disability Discrimination
Schirmer claims that she is disabled by multiple sclerosis, that Enerfab perceived her as disabled due to her multiple sclerosis, and that Enerfab discriminated against her by terminating her employment in violation of the ADA. (Doc. 1 at 3-4.) Enerfab counters that Schirmer is not disabled, that she was terminated because of a RIF, and that she cannot demonstrate that her termination was a pretext for unlawful disability discrimination. Schirmer asserts her disability discrimination claims both under the ADA and Ohio Revised Code § 4112.*fn3 Because both federal and Ohio disability discrimination actions require the same analysis, the Court will analyze ...