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Harrison v. Proctor & Gamble Distributing, LLC

United States District Court, S.D. Ohio, Western Division

November 17, 2017



          Timothy S. Black, United States District Judge.

         This civil action is before the Court regarding Defendants' motion for summary judgment (Doc. 34) and responsive memoranda (Docs. 40, 44).


         A. Factual Background

         Plaintiff Beth Harrison has been an employee of Defendant The Procter & Gamble Company Distributing, LLC (“P&G”) since 2000. Defendant has worked in several different departments at P&G and currently works in P&G's Trademark Licensing department. (Doc. 34, at 13)[1]. However, for purposes of this suit, most relevant activity took place while Plaintiff was employed in P&G's U.S. Customs Compliance department as a customs broker from August 2011-May 2015.

         For nearly all of Plaintiff's tenure with P&G, Plaintiff has been approved to take certified leave under the Family Medical Leave Act (“FMLA”) as needed to care for her son, who suffers from a serious health condition that requires life-long care and can “flare up” intermittently and unpredictably. (Doc. 1, at 10). There was no significant friction between Plaintiff and Defendant arising from Plaintiff's taking FMLA leave for her son on an as needed basis before 2012. (Id.).

         The changing factor that appears to have been the catalyst for the conflict leading to this lawsuit was the arrival of a new manager in the U.S. Customs Compliance department, Barbara Konerman, in February 2012. (See Doc. 34, at 3). According to P&G, it was around this time that Plaintiff began having issues with attendance and with maintaining a consistent work schedule as required. (Id. at 4). Defendant alleges that “throughout 2012 and much of 2013, [Plaintiff's] availability was an issue.” (Id. at 4). Plaintiff frequently notified Ms. Konerman that Plaintiff would be coming in late to work, leaving work early, or missing a work day entirely with very little notice, often same day notification. (See Doc. 34-1). It is undisputed that many of these absences were for FMLA reasons, including doctor's appointments for Plaintiff's son. However, Plaintiff also admitted to unilaterally deciding that she could arrive at work at varying hours, despite having received instructions to the contrary. (Doc. 29, at 34-37).

         Barbara Konerman had a meeting with Plaintiff on August 6, 2013 to discuss the perceived problems with Plaintiff's unavailability during core work hours. (Doc. 34, at 3-4; Doc. 40-3, at 64). Plaintiff was instructed on the need to provide proper advance notification for FMLA absences in non-emergency situations. (Doc. 40-4, at 20). Additionally, as a result of her continued problems with unavailability, Plaintiff's ability to work from home was limited to one day per week. (Id.). Typically, employees in the U.S. Customs Compliance department were permitted to work from home 40-50% of the time. (See Doc. 32, at 31-32).

         P&G uses an annual employee performance rating system wherein each employee receives either a “1”, “2”, or “3” ranking, with a 1 indicating that the employee exceeded expectations, a 2 meaning an employee met expectations, and a 3 meaning an employee performed below expectations. (Doc. 34, at 3 fn. 2). The scores are distributed in a bell curve for each department. (Id.). Plaintiff's annual review scores had varied in the years before her 2011-2015 stint in the U.S. Customs Compliance department. Plaintiff had earned a 3 ranking for the 2011 fiscal year, the year immediately preceding her transfer to U.S. Customs Compliance, reflecting her performance in the Baby Care Regulatory department. (Doc. 29, at 18). Plaintiff automatically received a 2 rating for the 2012 fiscal year as she had transferred to a new department. (Doc. 40-3, at 65). At the August 6, 2013 meeting referenced above, Plaintiff was informed that she would be receiving below a “2” rating for the 2013 fiscal year. (Doc. 40-3, at 64). Plaintiff was informed on October 18, 2013 that she had in fact received a 3 rating. (Doc. 34, at 5). As a result of her 3 rating, Plaintiff was placed on a Performance Improvement Plan (“PIP”) on November 1, 2013. (Id.; see also Part III.A.1.b, infra.).

         Following the negative feedback she received for fiscal year 2013, Plaintiff began seeking to transfer to another position within P&G. (Doc. 29, at 110-11). She also began to show signs of distress at work, including episodes where she lost control and cried at her desk for extended periods of time. (Id. at 120-23). Plaintiff had been encouraged by Barbara Konerman to apply for FMLA leave for herself based on excessive absences due to personal illness (Id. at 96, 110, 118), and in late November 2013 Plaintiff successfully applied for FMLA leave for her depression. (See Id. at 118).

         As part of Defendant's continuing feedback regarding Plaintiff's perceived attendance issues, Ms. Konerman issued to Plaintiff a document titled “2014 Performance Expectations” on December 13, 2013. (Doc. 40-4, at 23). The document identified additional restrictions on Plaintiff's schedule and on how she would be able to use and report FMLA leave in the future. Plaintiff had previously been allowed to take unpaid leave for FMLA leave if she wanted to conserve her vacation time, but moving forward Plaintiff was required to use vacation time for her FMLA leave for the first 10 work days of absences, and could use unpaid time off afterwards. (Id.). This change was not applied only to Plaintiff, and was in fact a reflection of a change in P&G company policy. (See Doc. 33, at 21-22 (deposition testimony of former HR manager Tayyib (“Ty”) Rashid)). P&G company policy also required any employee taking vacation time to take at least 4 hours at a time; accordingly, Plaintiff was required to use at least 4 hours of vacation time for any FMLA leave, no matter how long any particular appointment actually took. (Id.). Plaintiff's work from home privileges were entirely revoked at this time. (Id.). Additionally, the document required Plaintiff to be available to work from the “core hours” of 9:00 a.m.-5:30 p.m. as opposed to her previous core hours of 9:00 a.m.-3:00 p.m. (Id.).

         Defendant continued to have concerns regarding Plaintiff's non-FMLA absences and her failure to timely report anticipated FMLA appointments. Of particular note was an instance on December 16, 2013, when Plaintiff requested leave to attend a funeral on December 19, 2013. (Doc. 34, at 7). Plaintiff's request stated that she would be attending a “visitation, funeral, and burial” on the 19th. (Doc. 29-1, at 82). Plaintiff's leave request was granted. (Id.). The visitation and funeral service in question was actually held on the evening of the 18th. (Id. at 83). Plaintiff did not attend any of the funeral related events on the 19th; during the time of the burial, Plaintiff was at home sending messages to a colleague in a different department at P&G inquiring about a transfer. (Id. at 84). This incident damaged Defendant's trust in Plaintiff's credibility. (Doc. 34, at 7).

         On January 8, 2014, Ms. Konerman sent Plaintiff an email imposing an additional requirement on Plaintiff's use of FMLA leave. (Doc. 40-3, at 119). Moving forward, Plaintiff would be required to provide to P&G a note signed by a doctor for each FMLA appointment. The notes were required to contain the doctor's name, date of visit, time left, and time arrived. (Id.).

         Plaintiff's FMLA leave increased after she began taking FMLA leave for her own condition as well as her son's. Ms. Konerman accordingly informed Plaintiff on January 30, 2014 that a portion of Plaintiff's responsibilities would be reassigned to other employees in the U.S. Customs Compliance department in response. (Doc. 29-1, at 119). During that time period, Plaintiff was on FMLA leave approximately 25% of the time, and a proportionate percentage of her responsibilities were reassigned. (Id. at 125).

         On February 2, 2014, in response to the reassignment of a portion of her responsibilities, Plaintiff contacted her HR representative at P&G, Ty Rashid, to claim that Ms. Konerman was retaliating against her for taking FMLA leave. (Id.). Mr. Rashid and Tracy Stanton, an HR Administrator at P&G, met with Plaintiff on February 4, 2014, to discuss her concerns. (Doc. 34, at 8-9). Plaintiff outlined her concerns regarding her decrease in work responsibilities, her newly imposed requirement to use vacation time for FMLA leave, and her belief that her continued failure to successfully be reassigned to a new job at P&G was due to Ms. Konerman's retaliation for FMLA use. (See Doc. 33-1, at 15-20 (Tracy Stanton's notes of the meeting)). Plaintiff also generally stated her belief that Ms. Konerman was “aggressive” toward Plaintiff and generally unwilling to accommodate Plaintiff's need for FMLA leave. (Id.). Mr. Rashid explained that Plaintiff's decrease in workload was necessary given her FMLA leave removing her from work for a significant portion of the time and that Plaintiff's 3 rating and ongoing PIP were significant factors affecting her ability to be hired at a transfer position. (Id.). Mr. Rashid also agreed to Plaintiff's request that he be present at future meetings between Plaintiff and Ms. Konerman regarding Plaintiff's performance. (Id.). Plaintiff indicated at the end of this meeting that her concerns had been addressed by Mr. Rashid. (Id.). XXXXX

         Shortly afterwards, Jason Hall, Barbara Konerman's supervisor, transitioned Plaintiff from reporting to Ms. Konerman to reporting directly to him. (Doc. 33-1, at 27). This was done out of concern for both Plaintiff and Ms. Konerman, who was becoming increasingly distressed by the difficulties associated with managing Plaintiff. (Doc. 31, at 28). Plaintiff was in favor of this transition when informed on February 14, 2014. (Doc. 33-1, at 27). However, Plaintiff reiterated her suicidal thoughts to Mr. Hall in a meeting on February 18. (Id. at 28).

         Due to XXXXX, as well as the results of a recent audit demonstrating that Plaintiff's work product was deficient in multiple ways, Plaintiff was sent out for a fitness-for-duty exam on March 4, 2014. (Doc. 34, at 11). As part of her exam, Plaintiff was interviewed in detail by an independent examiner, Dr. Chris Modrall, Ph. D. (Doc. 40-3, at 174). Dr. Modrall prepared a detailed report for P&G based on this interview, as well as a discussion between Dr. Modrall and Plaintiff's treating therapist, Valerie Wevers, LPCC. (Id. at 174-88). Dr. Modrall's report stated her opinion that Plaintiff should not return to work immediately as a result of her emotional fitness. (Id. at 185). The report suggested that Plaintiff go on short term disability until a future evaluation deemed her fit to return. (Id. at 186). The report also stated that “it would be beneficial to let [Plaintiff] transfer to another position given Plaintiff's ingrained distrust of Ms. Konerman and Mr. Hall. (Id. at 187). Following the exam, Plaintiff left work and entered into a treatment center for two to three weeks. (Doc. 29, at 356). Plaintiff returned to work on June 25, 2014.

         On March 26, 2014, while Plaintiff was on her leave of absence, she contacted Ty Rashid and requested an accommodation in the form of a transfer to another department, citing Dr. Modrall's statement that such a move would be beneficial. (Doc. 33-1. at 109- 10). Mr. Rashid responded that, as Plaintiff was still able to perform the essential duties of a customs broker despite her disability, it was P&G's position that a transfer was not an appropriate accommodation for disability status. (Id. at 109). Mr. Rashid requested that Plaintiff communicate with her doctor and contact him if there were any accommodations she required to perform her role as a customs broker. (Id.). Plaintiff reiterated her desire to transfer, but requested no other accommodations. (Id.).

         Additionally while Plaintiff was on leave, she made a complaint through P&G's employee complaint line. (Doc. 29, at 195-96). This prompted Defendant to initiate a second investigation into Plaintiff's allegations of discrimination and retaliation for use of FMLA leave. The investigation was conducted by P&G HR executive Lisa Thorner, who interviewed Ms. Konerman, Mr. Hall, Mr. Rashid, and others. Ms. Thorner's investigation returned the same results as the initial investigation conducted by Mr. Rashid-while P&G conceded that “there were things that could have been managed better” with respect to Plaintiff's feedback and disciplinary measures, no discrimination, harassment, or retaliation took place. (Doc. 35-1, at 36).

         Following Plaintiff's return to work on June 25, 2014, Plaintiff's PIP was closed in order to give Plaintiff a fresh start. (Doc. 31, at 12). Plaintiff was given a 3 rating for the 2014 fiscal year due to her ongoing performance issues, including several performance issues in her work that had been discovered during her leave of absence. (Doc. 34, at 12). Plaintiff was offered the opportunity to receive an “out of cycle” performance rating six months into the new fiscal year to give her an early opportunity to demonstrate improved performance and increase her chances of transferring to another department within P&G. (Doc. 29-1, at 147). At the six-month out of cycle rating, Plaintiff was upgraded to a 2 ranking in recognition of her improved performance. (Doc. 29, at 188). Plaintiff was then able to transfer to the Trademark Licensing department at P&G where she works today. (Id. at 317-18). Plaintiff remains qualified for FMLA leave (for her son's medical condition as well as her own), which she takes as needed. (Id.).

         B. Procedural History

         Plaintiff filed the complaint commencing this civil action on August 6, 2015. (Doc. 1). The complaint raises claims of FMLA retaliation, FMLA interference, and disability discrimination in violation of O.R.C. § 4112. (Id. at 7-8). Following discovery, Defendant filed the instant motion for summary judgment on August 11, 2017. (Doc. 34). That motion is now ripe for review.


         A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (1986).

         III. ANALYSIS

         A. Disability Discrimination Claim

         Plaintiff alleges that Defendant's actions following her increased need to take FMLA leave for her own disability amounted to disability discrimination in violation of Ohio Revised Code § 4112.02(A). (Doc. 1, at 8).

         The Supreme Court of Ohio has held that Ohio courts may look to cases and regulations interpreting the federal Americans with Disabilities Act (“ADA”) in interpreting the Ohio antidiscrimination statutes. Columbus Civ. Serv. Comm., 82 Ohio St.3d at 573, 697 N.E.2d at 206-07. The elements of a prima facie case under the ADA are virtually identical. Gamble v. JP Morgan Chase & Co., Case No. 16-6488, 2017 WL 1908187, at *4 (6th Cir. May 9, 2017) (citing Whitfield v. Tennessee, 639 F.3d 253, 258- 59 (6th Cir. 2011)); Taylor v. Phoenixville School Dist. 184 F.3d 296, 3063d Cir. 1999). Both utilize the familiar burden-shifting analysis delineated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Accordingly, the burden is initially on a plaintiff employee to provide a prima facie case for discrimination. If the plaintiff does so, the burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for its actions. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer's offered nondiscriminatory reasons for acting were merely pretext for discrimination. See McDonnell, 411 U.S. at 802-03.

         To establish a prima facie case of disability discrimination, Plaintiff must demonstrate (1) that she was disabled, (2) that an adverse employment action was taken by her employer, at least in part, because the individual was disabled, and (3) that the person, though disabled, can safely and substantially perform the essential function of the job in question. Columbus Civ. Serv. Comm. v. McGlone, 697 N.E.2d 204, 206 (Ohio 1998). For purposes of this motion, it is undisputed that Plaintiff, who suffers from depression, is disabled as defined by Ohio antidiscrimination statutes and the ADA.

         1. Plaintiff cannot make a prima facie case of disability discrimination

         a. Plaintiff has shown a dispute of material fact regarding whether Defendant was aware of her disability sufficient to satisfy that factor of a prima facie case

         Defendant's motion to for summary judgment argues that Plaintiff cannot establish a prima facie case of disability discrimination because there is no evidence that P&G or any or Plaintiff's superiors at work knew she was disabled. (Doc. 34, at 18). While an employer can be given constructive notice that an individual is disabled without receiving an actual diagnosis based on that individual's behavior, “[t]he fact that an employee is generally sickly or possesses a constitution that is prone to illness is not enough to bring that employee within the protection of the ADA.” Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 881-82 (6th Cir. 1996). Defendant argues that it was only put on constructive notice that Plaintiff may be suffering a disability after XXXXX , and that none of Plaintiff's actions prior to that could fairly put P&G on notice that she was suffering from depression. (Doc. 44, at 8).

         However, the evidence on the record raises a genuine dispute of material fact that would allow a jury to conclude that Defendant had constructive notice of Plaintiff's disability as early as October 2013, before many of Defendant's allegedly discriminatory actions. Plaintiff had been known to break down, lose control, and cry at her desk on several occasions in the fall of 2013. (See Doc. 40, at 19-20; Doc. 40-4, at 1). Plaintiff's immediate supervisor, Barbara Konerman, was also informed about XXXXX in October 2013. (Doc. 32, at 12). XXXXX was relayed to Ms. Konerman's supervisor, Jason Hall. (Id.; see also Doc. 42, at 3). These facts individually may not have been sufficient to give constructive notice of Plaintiff's depression, but together they raise at least enough of a factual dispute for a reasonable juror to conclude that P&G should have known Plaintiff was disabled.

         b. Defendant took no adverse employment action against Plaintiff

         Plaintiff's disability discrimination claim must be dismissed because the evidence before the Court demonstrates beyond a genuine dispute of material fact that Defendant took no employment actions against Plaintiff as a result of her disability that could be considered adverse under O.R.C. § 4112.

         Plaintiff's memorandum in opposition to Defendant's motion for summary judgment identifies several actions taken by Defendant that were allegedly adverse actions motivated by Plaintiff's disability. The allegedly adverse employment actions are as follows:

1) Plaintiff received a “3” rating on her annual performance evaluation in the 2013/2014 Fiscal Year;
2) Plaintiff did not receive a raise from August 2012 until August 2015;
3) Plaintiff was placed on a Performance Improvement Plan (PIP) by Defendant on November 1, 2013;
4) At one point, Plaintiff's immediate supervisor forbid Plaintiff from working at home even though other employees in Plaintiff's department were permitted to do so up to 50% of the time;
5) Beginning in late 2013, Defendant began requiring Plaintiff to use four hours of paid vacation time whenever she had an FMLA absence, regardless of the length of the absence. Prior to this, Defendant had allowed Plaintiff to use unpaid off time to handle these absences, and only as much as was required.
6) Beginning in December 2013, Defendant required Plaintiff to present a doctor's note to the P&G Health Center after every FMLA appointment.
7) Approximately 20% of Plaintiff's work responsibilities were reassigned.

(See Doc. 40, at 13-17). It is undisputed that Plaintiff never received a demotion in title or a reduction in salary during the time period in question.

         Although each of the actions listed above is undoubtedly “adverse” in a general sense, that does not necessarily mean they merit intervention from the Court pursuant to O.R.C. § 4112. Adverse employment actions that are actionable under antidiscrimination laws are those “of the magnitude of a termination of employment, a demotion, a decrease in salary, or a material loss of benefits.” Worthy v. Materials Processing, Inc., 433 Fed.Appx. 374, 375 (6th Cir. 2011). “[N]ot everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.” Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). Employment actions causing humiliation, hurt feelings, and bruised egos therefore do not rise to the level of an adverse employment action. Id.

         None of Defendant's actions raised in Plaintiff's response to the motion for summary judgment rises to the level of an adverse action under O.R.C. § 4112. The Court shall address each of Defendant's actions in turn.

         1) Plaintiff received a “3” rating on her annual performance evaluation in the 2013/2014 Fiscal Year;

         P&G uses an annual employee performance rating system wherein each employee receives either a “1”, “2”, or “3” ranking, with a 1 indicating that the employee exceeded expectations, a 2 meaning an employee met expectations, and a 3 meaning an employee performed below expectations. (Doc. 34, at 3 fn. 2). The scores are distributed in a bell curve. (Id.). Plaintiff was assigned a 3 rating in both her 2013 and 2014 fiscal year evaluation; the latter took place after Plaintiff had taken off work from March 4, 2014 to June 25, 2014 to receive treatment for her depression. (Doc. 31, at 8). Plaintiff's immediate supervisor, Barbara Konerman, testified at her deposition that Plaintiff was assigned a 3 rating because she was the poorest performer in the U.S. Customs Compliance department, specifically citing unreliability and lack of dependability with regard to attendance, customer service, and productivity. (Doc. 32, at 11).

         A negative performance evaluation unaccompanied by a demotion, decrease in pay, or other adverse change in the material terms and conditions of employment is not an adverse employment action. Primes v. Reno, 190 F.3d 765, 767 (6th Cir. 1999). Plaintiff argues that by receiving a 3 rating she was completely foreclosed from receiving any raises or performance share economic incentives. However, the evidence before the Court demonstrates beyond a dispute of material fact that this is not the case. Tayyib Rashid, who worked for P&G as a human resources manager during the period implicated by the complaint, testified during his deposition regarding the relationship between an employee's performance evaluations and his or her ability to receive pay raises:

Q: …What if you are a three rated, do you know whether you can receive a pay raise if you were rated a three?
A: It depends. Typically if you are rated a three, the way that P and G pays their people is there are different rating scales and different salary ranges within those rating scales. If someone has been historically rated a two and all of a sudden they are rated a three, then they are probably being overpaid according to their rating.
So that means they can get a raise, yes. It is probably going to take a while depending on what they have been paid historically compared to where they are on the rating scale on the pay scale now.
So if they still have room based on the three rating, if they still have room, then potentially yes, but if they are rated or been paid kind of high towards the upper end of the two rated spectrum and all of a sudden three rated, ...

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