United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. UNITED STATES DISTRICT JUDGE
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
Executive Assistant Position
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.)
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.)
Building Department Administrative Assistant
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.)
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.)
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. 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.)
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.)
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.
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.)
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,
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.
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.
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.
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.