The opinion of the court was delivered by: Sandra S. Beckwith Senior United States District Judge
Before the Court is the Defendants' motion for summary judgment. (Doc. 40) Plaintiff opposes the motion (Doc. 67), and Defendants have filed a reply. (Doc. 69) Defendants seek judgment on Plaintiff's claims that they discriminated and retaliated against her in violation of the Family and Medical Leave Act, and on the basis of her race, national origin and age, in violation of Ohio Rev. Code 4112.02. For the following reasons, the Court grants in part and denies in part Defendants' motion.
Christine Hoff-Pierre was born in Nigeria. She moved to the United States in 1986 and is a naturalized citizen. She obtained a degree in health information technology, and is certified as a Registered Health Information Technician, which she describes as requiring two years of training and successfully passing a certification examination. She began working for University Hospital in August 2000 as a Coder/Abstractor II, and earned a promotion to Coder III in 2004. Coders generally assign code numbers to various procedures that are documented in medical records, for purposes of reimbursement and statistical reports. Coder III employees are required to code inpatient records, a task that requires more skill than a Coder I or II position. The Hospital developed a test at some point to determine eligibility for promotion to Coder IV, for which the employee must be able to code any type of hospital record (inpatient, outpatient, or emergency room).
Wiletta Reese supervised Hoff-Pierre from her initial hire until sometime in early 2006. Reese was generally satisfied with Hoff-Pierre's performance. The Hospital used a three-level rating system, in which total points earned on an evaluation between 351 to 450 equaled a rating of "exceptionally effective;" a total point score of 251 to 350 points merited an "effective" rating; and employees below 250 points were rated "less than effective." For her November 2005 evaluation, Reese gave Hoff-Pierre a total of 290 points, rating her an "effective" employee, and praising her for her flexibility and initiative.
At some point in mid-2006, Jeanine Klein, a Caucasian, became Hoff-Pierre's new manager after Reese was demoted. Hoff-Pierre testified that sometime that summer, Klein asked her "if monkeys swing from trees" in Hoff-Pierre's native country, and if her city was made of mud. (Hoff-Pierre Dep. Vol. I at 56) Hoff-Pierre claims that she was offended by the remarks. Hoff-Pierre also testified that Klein singled her out and chastised her and another African-American employee for socializing with each other during work hours. Klein screamed at Hoff-Pierre on one occasion while Hoff-Pierre was talking to a doctor on the telephone, mistakenly believing that Hoff-Pierre was on a personal call. And she overheard Klein tell another Caucasian coding employee that Klein did not like "University Hospital employees," whom Hoff-Pierre asserts are predominately African-American.
Klein completed Hoff-Pierre's 2006 annual evaluation, giving her 255 total points, 35 points lower than the prior year. She received lower scores in areas covering respect, integrity, teamwork, assisting others with inquiries, and effective customer service. (Hoff-Pierre Dep. Ex. 10) Klein wrote that Hoff-Pierre needed to "be more receptive to change."
Hoff-Pierre and another African-American employee, Lovina Adeola, expressed their concerns about Klein and the deteriorating departmental environment to Rick Hinds, the Hospital's CFO. Hinds had ultimate managerial responsibility for the coding department. On August 28, 2006, Hoff-Pierre met with Hinds; according to an email that Hinds sent that day to Kathy Monroe (Klein's superior and head of the Medical Records Department) and to Hoff-Pierre, they had discussed Hoff-Pierre's concerns about the Hospital's decision to eliminate an incentive bonus program for coders, and the department's heavy reliance on contract staff. Hoff-Pierre suggested some alternatives for meeting the overtime needs of her department. (Hoff-Pierre Dep. at 237-38 and Exh. 43; Hinds Dep. at 12-14 and Ex. 1)
After this discussion with Hoff-Pierre, Hinds held a staff meeting sometime in December 2006, which Hoff-Pierre believed was for the purpose of addressing her concerns about Klein. Hinds started the meeting by discussing departmental productivity goals, and Hoff-Pierre asked if the meeting would address the issues she had brought to his attention. Another Caucasian employee (Karen Kasselman) then told Hoff-Pierre "Well, I think you don't like Jeanine [Klein] because she is white." When Reese tried to respond to Kasselman, Hoff-Pierre testified that Kasselman got up and approached her, putting her hands on or near her face in a threatening manner. (Hoff-Pierre Dep. at 27-31) Reese testified that she remembered the meeting, and believed that Kasselman acted unprofessionally. She recalled that Kasselman and Hoff-Pierre were in a heated conversation during that meeting, but she did not recall that Kasselman or Hoff-Pierre made any racial comments. (Reese Dep. at 31-32) Hoff-Pierre and Reese believe that Kasselman was not reprimanded or disciplined for her conduct.
Klein completed Hoff-Pierre's 2007 evaluation in December, and assigned her an overall score of 193 points, an overall rating of less than effective. (Hoff-Pierre Ex. 11) In remarking on her score for "integrity," Klein stated that Hoff-Pierre "will deny wrong doing, such as when she frequently challenged the credential status of a co-worker. She acknowledges conflict and seeks resolution. For example, she requested staff meetings to include the department director and VP, which was done. However, Christine failed to attend more than a couple of these monthly meetings. Christine does not follow proper lines of communication, skipping over the manager and department director and instead going to the VP." Klein also rated Hoff-Pierre as less than effective in assigning codes, noting that she did not meet minimum quality standards, and failed to meet quantity and quality expectations. In commenting on her abilities to provide customer service and work with co-employees, Klein stated that Hoff-Pierre had been on an extended medical leave.
On May 21, 2006, Hoff-Pierre picked up a large stack of medical records. They started to slip from her grasp, and when she attempted to grab them she felt a sharp pain from her shoulder down her arm. (Hoff-Pierre Exh. D3, accident report) Janet Stiens, a Hospital case worker for short-term disability claims, told Reese that Hoff-Pierre was placed on "modified duty" for the period June 20 to June 26, 2006, due to restrictions of not lifting, pushing or pulling with her right arm. Reese testified that she told Stien that Hoff-Pierre could complete all her essential job duties within those restrictions, and Hoff-Pierre returned to her job. (Reese Dep. at 48) In September 2006 Hoff-Pierre was told she needed surgery on her left shoulder to remove a tumor, and the Hospital approved her request for intermittent leave of absence from September 14 to September 26. Stiens wrote to Hoff-Pierre and to Klein (who was by then Hoff-Pierre's manager) that FMLA leave was approved "for time off but not job protection." (Hoff-Pierre Dep. Ex. D16) Hoff-Pierre returned to her normal job in early October without restrictions.
In August 2007, Hoff-Pierre needed surgery on her right shoulder, apparently as a sequel to the workplace injury she sustained in June 2006. She was approved for workers compensation/FMLA leave from August 7 through August 31, with an estimated return date of September 1. Her physician initially placed her on restrictions of no overhead work, no lifting greater than one pound with her right arm, and no repetitive activity. (Abanto Dep. Ex. 5) The repetitive activity restriction was listed by early October.
Lou Abanto was her workers compensation case manager. He testified that if an employee returning from medical leave could not perform their usual job duties, he would attempt to place the employee in a modified job assignment. That time would not count against an employee's 12-week FMLA leave time, but would be counted against the employee's available FMLA job protection period. If the employee could perform their regular job despite any restrictions, FMLA leave and job protection were not impacted. Abanto did not ascertain whether Hoff-Pierre's restrictions permitted her to return to her usual position, and he left that decision to her department manager. Sheila Kendall, the Director of Employee Health and Assistance and head of Abanto's department, testified that her department was not involved in determining whether an employee could perform their regular job within restrictions, as that decision was made by the department managers. (Kendall Dep. at 37) Similarly, Mike Webster who was a Hospital HR manager, testified that the standard practice of Employee Health department was to send the employee's manager an email asking whether the manager could accommodate the employee's light duty restrictions. If the department could not do so, then the standard practice is for Employee Health to try to find a modified light duty position. (Webster Dep. at 15)
Kathy Monroe testified that she did not determine whether Hoff-Pierre could perform her normal job duties in August 2007. When Klein was asked who made the decision that Hoff-Pierre could not return to her job given her restrictions, she responded "If anybody, it would have been, like, employee health because they would have assessed if we could meet the restrictions and determine that we were unable to meet it." (Klein Dep. at 66) Klein described her role as "the assessment of the coding position, whether or not she could meet the restrictions. I would not have encouraged it or said where she could work." (Klein Dep. at 69)
In any event, when Hoff-Pierre returned to work with restrictions, she was assigned to a "light duty" job in the telecommunications department. Over the next few months she also worked in Air Care and in the Business Center. She testified that she did not ask for assignment to any of these positions, but that "Lou [Abanto] just called me and told me that they had found somewhere for me to go on modified duty, and that's where I went." (Hoff-Pierre Dep. at 117) Her "light duty" jobs were no more physically onerous or demanding on her than her usual coding job. Hoff-Pierre's salary was paid by the coding department during this time.
On October 9, Judy Henning (a Hospital case facilitator in the Employee Health group) emailed Kathy Monroe, with copies to Klein and Jeanette Gosselin,*fn1 stating that Hoff-Pierre's physician extended her current restrictions through December 1.
Henning stated: "From 9/19/07 through 10/28/07, Christine is under FMLA for job protection. However, with this extension, Christine will exhaust all FMLA from 10/29/07 through 12/1/07, no job protection. After consulting with HR Dept. you can post her position." (Hoff-Pierre Exh. D18) Henning sent a letter to Hoff-Pierre the same day giving her the same information; the letter states that "time spent in this modified duty is recognized under the FMLA for job protection, not for your eligible 12 weeks off of work. However, with this extension, you will exhaust all FMLA from 10/29/07 through 12/1/07, no job protection." (Id.) On or about November 8, Klein filled Hoff-Pierre's job by hiring Lisa Maxberry, an internal candidate who was then a Coder II. (Klein Dep. at 89-90)
Laura Fickinger works in the Hospital's HR department. On November 15, Fickinger emailed Webster and told him that Hoff-Pierre's coding position had been posted and filled, but that Klein and Monroe were concerned that Hoff-Pierre might try to return to the department on December 3 even though her job was no longer available to her. Fickinger stated that "the only open positions are Coder IV's, which she can test for to see if she is qualified. What is the best way to handle the situation?" (Klein Exh. 12) Webster then wrote to Hoff-Pierre the next day and told her that her department intended to post her position and replace her. Webster stated that Hoff-Pierre's "medical leave of absence FMLA protection ended October 29, 2007. Your department needs to staff this position in order to meet business needs. At such point that you are able to return to work, please contact Human Resources...". (Hoff-Pierre Ex. D20)
Klein testified that it was Kathy Monroe who made the decision to fill Hoff-Pierre's position. (Klein Dep. at 71) But Monroe testified that, while she knew the procedures to follow in order to do that, she did not recall deciding to post and fill Hoff-Pierre's position. (Monroe Dep. at 58-59) Klein could not recall talking to Monroe about leaving the position open until Hoff-Pierre was released from any physical restrictions. (Klein Dep. at 92) Fickinger testified that she was told the coding department wanted to fill ...