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Ebright v. City of Pickrington

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

March 27, 2018


          Elizabeth P. Deavers Magistrate Judge



         This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 15), Plaintiffs Memorandum in Opposition (ECF No. 16), and Defendant's Reply in Support. (ECF No. 19.) Plaintiff brings this action alleging that Defendant terminated her employment in violation of the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), and Ohio Revised Code § 4112. Defendant moves to dismiss all claims. For the reasons that follow, Defendant's Motion is GRANTED.

         I. BACKGROUND

         A. Executive Assistant Position

         Plaintiff, Wilma Ebright ("Ms. Ebright") began working for the city of Pickerington as a temporary employee on October 12, 2011. (Miller Aff. ¶ 2.) She served as a "floater" in various departments, engaging in administrative tasks such as answering phone calls, making copies, and directing customers. (Miller Dep. 25:4-8, ECF No. 14-2.) After successfully performing as a temporary employee, Ms. Ebright was given a full-time position of Administrative Assistant to the City Manager, William Vance ("Mr. Vance") on June 4, 2012. (Miller Aff. ¶ 3.) Ms. Ebright"s performance as executive assistant to Mr. Vance was reportedly less successful. (Vance Dep. 12:3-13, ECF No. 14-4.)

         Mr. Vance testified that Ms. Ebright made "tons of mistakes" and was not detail oriented. (Vance Dep. 12:3-13.) According to him, Ms. Ebright initially had more good days than bad, but she failed to set up meetings properly, coordinate his calendar correctly, or connect him with residents who made city service requests in a timely manner-all tasks important to her job. (Id; Vance Dep. 13:4-11, 14:8-11, 17:15-24, 18:1-6.) Ms. Ebright recognized her shortcomings, including her late production of the annual report which contained many mistakes. (Ebright Dep. 98:11-24, 99:1-6, ECF No. 14-1.) At that point, she requested a meeting where she asked for a clean slate. (Ebright Dep. 99:1-22.) During the meeting, Mr. Vance explained to Ms. Ebright that she "needed to be the rock of the department." (Ebright Dep. 99:10-23.) She stated "that he didn't want me - if I had anything to do in the building, I needed to do it in the morning. He didn't want me to leave my desk. He wanted me to be at my desk at all times unless I went to lunch, and if I did leave my desk I was to have my - what everyone at the office called my Wilmaberry so that he could be in contact with me at any point." (Ebright Dep. 99:10-19.)

         B. Building Department Administrative Assistant

         After a year of working together, an opening became available in the building department as an Administrative Assistant and Mr. Vance decided to reassign Ms. Ebright to that position. (Vance Dep. 18:7-24, 19:1-9 ("There was an opening in the building department, and 1 thought as opposed to being discharged, Wilma, you know, could appreciate a second opportunity to continue her tenure with the City of Pickerington.").) On May 20, 2013, Ms. Ebright was officially reassigned to work in the building department and was assigned to report to Sandra Whittington ("Ms. Whittington"), the building department manager. (Miller Aff. ¶ 4; Whittington Dep. at 11:5-7, ECF No. 14-3.)

         a. Training Period

         From May through July 2013, Ms. Ebright was in a "training period" in her new position with the building department. (Miller Dep. 29:12-22, 30:10-24, 31:1-13.) Ms. Ebright allegedly struggled with the computer system, was making mistakes, and had conflicts with coworkers. (Whittington Dep. 26:10-22, 30:10-24; Ebright Dep. 153:17-24, 188:1-24, 189:1-7.) According to Ms. Whittington, Ms. Ebright made mistakes and then was not approachable to discuss the mistakes but instead would become argumentative and confrontational. (Whittington Dep. 26:10-12.) However, on July 22, 2013, Ms. Ebright received a conditional offer of employment for the Building Department Administrative Assistant position, which included the contingency of a six-month probationary period. (Miller Aff. ¶ 5.)

         b. Probationary Period

         Ms. Ebright was offered Conditional Probationary Employment to begin on July 25, 2013. (Miller Dep. 76:13-19.) Based on Ms. Ebright's prior performance, Human Resources Director for the City of Pickerington, Lynn Miller ("Ms. Miller") and Ms. Whittington decided to implement "a development plan" to help Ms. Ebright improve. (Miller Dep. 18:15-24, 29:1- 24, 30:1-24, 31:1-9.) Ms. Miller and Ms. Whittington met with Ms. Ebright to establish the expectations of her position. (Ebright Dep. 143:3-l 1.) They determined that there would be monthly meetings to evaluate her progress, in addition to the standard three-month oral evaluation all probationary employees receive. (Ebright Dep. 155:3-19; Miller Aff. ¶ 5; Whittington Dep. 61:5-l 8.) Although formal written reviews are not customary for the building department, in August, Ms. Whittington and Ms. Miller each began documenting Ms. Ebright's performance in order to create a record of ongoing issues. (Whittington Dep. 45:14-23, 47:7-14; Miller Dep. 46:16-24, 47:1-4, 65:12-17.) Ms. Ebright also documented her office interactions. (Ebright Dep. 291:9-24, 292:1-7.) By all accounts, the documentation shows issues with Ms. Ebright's work performance and her relationship with coworkers.[1] Joe Henderson ("Mr. Henderson"), Development Services Director and Ms. Whittington's supervisor, testified that he observed Ms. Ebright act with hostility towards Ms. Whittington, including "[o]n multiple occasions I was able to observe and overhear conversations between Ms. Ebright and Ms. Whittington that I would call unprofessional for someone who is talking with their supervisor about work related topics." (Henderson Aff.r 2, ECF No. 15-2.)

         In the August monthly performance review meeting, Ms. Whittington noted Ms. Ebright had made "some positive strides towards accomplishing the department goals and expectations, " indicating improvements in Ms. Eblight's performance. (Whittington Dep. 43:11-22.) Additionally, Ms, Whittington provided Ms. Ebright with a list of six areas that still needed improvement. (Miller Aff. ¶ 7.) At this point in time, it came to Mr. Vance's attention that Ms. Ebright was having difficulties in her new position. (Vance Dep. 67:1-24; 68: 1-44.)

         In September 2013, Ms. Miller cautioned Ms. Ebright about her actions in the office because Ms. Ebright continued experiencing personal conflicts with coworkers and work performance issues. (Miller Dep. 104:5-24; 105:1-18; 106:15-24; 107:1-24; 108:1-3.) That month, Ms. Ebright requested a meeting with Mr. Vance to discuss the reasons he reassigned her to the building department. (Ebright Dep. 191:12-13.)

         On September 19, 2013, Mr. Vance, Ms. Ebright, and Ms. Miller met at Ms. Ebright's request. (Miller Aff. ¶ 10.) Mr. Vance explained that he reassigned her due to "poor performance." (Ebright Dep. 199:2-20.) Specifically, Ms. Ebright recalls that Mr. Vance told her that he transferred her because while she worked for him "I got worse, and if I didn't - right down here, 'If I am not getting better then I am getting worse."' (Ebright Dep. 199:12-14.) When asked by Mr. Vance why she was unhappy in her new position, Ms. Ebright was unable to provide an answer. Mr. Vance gave her the rest of the day off, with pay, to consider the question. (Ebright Dep. 193:9-24, 194:17-24, 195:1-24; Vance Dep. 20:1-24, 21:1-5.)

         The following day, September 20, 2013, Ms. Ebright met with Mr. Vance, Ms. Miller, and Mr. Henderson. (Ebright Dep. 200:15-17.) Ms. Ebright provided the group a list of issues to discuss. (Ebright Dep. 201:9-l 2.) From this meeting, it was apparent to Ms. Ebright that her job was in jeopardy. (Ebright Dep. 202: 18-23 (Q. "Did you get the impression from this meeting that your job was in jeopardy?" A. "Yes" Q. "Did you think you were going to be fired, maybe?" A. "At this point I did.").) Because Ms. Ebright expressed her desire to continue working at the City of Pickerington, Mr. Vance suggested she return to her department apologize to her coworkers, and approach her position with a positive attitude. (Ebright Dep. 201:9-24, 202:1-17, 212:15-24, 213:1-4; Vance Dep. 22:14-24, 23:1.)

         By this point in time, Ms. Whittington concluded she was not going to recommend that Ms. Ebright pass her six-month probationary period. (Whittington Dep. 47:3-14.) Mr. Vance also testified that he too concluded at this point Ms. Ebright was not successfully completing the probationary period. (Vance Dep. 38:21-24, 39:1-4.)

         Plaintiff missed work from September 25, 2013 through September 27, 2013, and then also missed work on September 30, 2013. On September 26, 2013, Ms. Ebright visited her doctor, Dr. Oberlander, because of 'tension headaches related to stress, " and pain associated with a degenerative disc. (Pl's Exhibit 12, ECF No. 16-12.) Dr. Oberlander diagnosed her with torticollis, episodic tension headaches, and anxiety. (Def.'s Exhibit 24, ECF No. 15-24.) After returning to work, on October 1, 2013 Ms. Ebright informed Ms. Miller that she needed to apply for Family Medical Leave, backdating to her absence from work on September 30, 2013, and Ms. Miller sent her the necessary paperwork. (Miller Dep. 68: 1-4.)

         On October 9, 2013, Dr. Oberlander provided further FMLA documentation. (Def.'s Exhibit 16, ECF No. 15-16.) The doctor noted that on occasion ''it would be medically necessary for [Ms. Ebright] to be absent" from work because of stress-related tension headaches. (Def.'s Exhibit 16.) Dr. Oberlander estimated that flare-ups could happen up to eight times over the year, lasting one to two days. (Def.'s Exhibit 16.) After receiving the initial documentation, Ms. Miller sought further medical support for the requested FMLA leave. (Def.'s Exhibit 17. ECF No. 15-17.)

         Ms. Ebright had an appointment on October 10, 2013, which was scheduled during her lunch hour. (Ebright Dep. 76:2-10.) Although the reasons are disputed, all parties agree Ms. Ebright left the office before her scheduled departure and did not return that day. (Ebright Dep. 53:9-11; Def.'s Exhibit 18, ECF No. 15-18.) Mr. Vance was informed of her departure when he visited the department in the afternoon of October 10 as part of his routine rounds. (Vance Dep. 28:6-15; 29:19-23; 40:10-24; 41:1-5; 67:1-3.) After learning of her "unexpected" absence, Mr. Vance placed Ms. Ebright on paid administrative leave that day. (Vance Dep. 29:13-18.)

         c. ...

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