United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
Michael R. Barrett United States District Judge.
matter is before the Court upon Defendant Correctional
Healthcare Company Inc.'s Motion for Summary Judgment.
(Doc. 31). Plaintiff Jennifer Shockley filed a Memorandum in
Opposition (Doc. 35) and Defendant filed a Reply (Doc. 36).
Plaintiff then filed a Sur-reply (Doc. 40) and Defendant
filed a Response to Plaintiff's Sur-reply (Doc. 45).
contracts with correctional facilities to provide healthcare
services to inmates. Defendant provided nursing coverage to
the inmates at the Warren County Jail (“Jail”).
Plaintiff began working as a Licensed Practical Nurse
(“LPN”) in the Jail in 2013. Plaintiff was first
employed by Defendant's predecessor, Premier Healthcare,
and was then employed by Defendant when it entered into the
contract to provide healthcare services for the Jail.
the terms of the contract with the Jail, Defendant must
maintain at least one nurse on duty at all times. (Doc. 27,
Mary Ann Wollet Dep. at 13-14). Defendant generally schedules
only one nurse per shift. (Wollet Dep. at 13-14). At the
Jail, nurses are responsible for (a) passing medication, (b)
charting, (c) responding to patient sick calls, (d) checking
inmates' blood sugars at scheduled intervals and (e)
checking inmate health records and medications in
“pre-booking” to determine if he or she was
medically acceptable to the jail. (Doc. 35-2, Jennifer
Shockley Aff. ¶¶ 10-12). Nurses also serve as first
medical responders at the Jail. (Wollet Dep. at 24). When
nurses are dispensing medication, they are always accompanied
by at least one officer. (Shockley Aff. ¶ 17, Wollett
Dep. at 16). An officer is also stationed outside the
infirmary when a nurse is examining an inmate. (Shockley Aff.
¶ 19-21; Wollett Dep. at 17).
2015, the nurses employed by Defendant, including Plaintiff,
complained that Defendants hired additional nurses at higher
hourly rates than the existing staff. (Doc. 30, Jennifer
Shockley Dep. at 31-32, 138). In response, Defendant
increased hourly rates for existing nurses to make up for
wage inflation. (Doc. 31-6, Mary Ann Wollet Aff. ¶ 17).
August 11, 2015, Plaintiff requested the paperwork for FMLA
pregnancy leave. (Doc. 28-1 Angela Stevens Dep., Ex. 1). On
August 26, 2015, Defendant approved Plaintiff's request
for intermittent FMLA leave based on a certification prepared
by Plaintiff's OB/GYN, Dr. William Dorsey. (Doc. 35-2,
Ex. C). On the certification form, Dr. Dorsey explained that
Plaintiff was pregnant, that she was seeing a perinatologist
due to her advanced maternal age, that she complained of
occasional heart palpitations and that Dr. Dorsey had
referred her to an endocrinologist. (Id.)
same day that her FMLA leave was approved, Plaintiff left her
shift early because she was not feeling well. (Shockley Dep.
at 85; Stevens Dep. at 29, 31). The symptoms stemmed from a
heart condition which had been diagnosed in 2000. (Shockley
Dep. at 46-47, 52). Plaintiff had previously informed her
supervisor, Sylvia Lawson, about her condition. (Shockley
Dep. at 53).
next day, Angela Stevens, Defendant's Human Resource
Specialist, informed Plaintiff that Defendant required more
information about her heart condition. Stevens explained that
while Plaintiff's OB/GYN could complete FMLA paperwork
for her maternity leave and pregnancy related conditions, he
could not provide certification for Plaintiff's heart
condition. (Shockley Dep. at 84-85; Stevens Dep. at 35,
39-40; Stevens Aff. ¶ 10.) Stevens informed Plaintiff
that she could not return to work until she submitted the
told Stevens that she was going to see a specialist regarding
her heart condition. (Shockley Dep. at 73-74, 98-99; Doc.
31-7, Angela Stevens Aff. ¶ 11). Plaintiff later
reported to Stevens that the specialist would not complete
the FMLA paperwork, and Dr. Matthew O'Connell, her
primary care doctor, would complete the paperwork instead.
(Stevens Aff. ¶ 11). Dr. O'Connell had been treating
Plaintiff for her heart condition since at least 2012.
(Shockley Dep. at 61-62). In the FMLA paperwork completed by
Dr. O'Connell on September 4, 2015, Dr. O'Connell
explained that Plaintiff had a “lifetime
condition” that caused “s[hortness] o[f]
b[reath], ” “chest pain, ”
“lightheaded[ness], ” “high risk of falls,
” “syncope” (temporary loss of
consciousness), and “low blood pressure.” (Doc.
30-2, Shockley Dep. Ex. 13.)
informed Plaintiff that it would be providing Dr.
O'Connell with additional information regarding her
specific duties at the Jail, and that Defendant was holding
her out of work pending further information regarding her
heart condition. (Stevens Aff., ¶ 13). Defendant
provided Dr. O'Connell with a copy of the job analysis
and a job description for the LPN position, and requested
that Dr. O'Connell provide additional information
regarding Plaintiff's medical condition. (Stevens Aff.,
¶ 14). On September 18, 2015, Dr. O'Connell
completed the paperwork from Defendant. (Doc. 28-1, Exs. 10,
11). Dr. O'Connell stated that Plaintiff could not return
to work full time without restrictions. (Id.) Dr.
O'Connell reiterated his initial response on the FMLA
certification and stated that Plaintiff needs to “leave
[work] when she becomes symptomatic.” (Id.)
maintains that she submitted two letters to Defendant showing
that she was able to return to work: a September 14, 2015
letter from Dr. Susan Galbraith, an endocrinologist; and a
September 16, 2015 letter from Dr. Brian Schwartz, a
cardiologist. (Doc. 35-2, Ex. E). Plaintiff also maintains
that she submitted a September 15, 2015 letter from Dr.
O'Connell which states: “My patient, Jennifer
Shockley, has not been medically disabled or pulled off work
by me from August 26th, 2015 to present. She has not been
medically disabled since 05/20/2015, which was for an
unrelated injury.” (Doc. 35-2, Ex. E). Defendant claims
that it never received these letters. However, Defendant
explains that even if it did receive the letters, it would
not have changed its determination that because of her heart
condition, Plaintiff posed a potential risk to herself, the
inmates and the officers in the Jail.
on the information provided by Dr. O'Connell, Defendant
determined that Plaintiff was not qualified to provide
direct-patient care at the Jail. Defendant explains that if a
nurse working in the Jail needs attention because of
dizziness, loss of consciousness or a fall, the officer
accompanying the nurse would have to choose between leaving
his or her post to attend to the nurse, leaving inmates,
medication and medical equipment unattended, or to leave the
nurse unattended while the officer maintained security.
(Wollet Dep. at 63-64).
informed Plaintiff she could not return to work in her
previous position, but offered Plaintiff a temporary clerical
position at the Jail. (Shockley Dep. at 119-120). Plaintiff
did not accept this position.
states that it terminated Plaintiff's employment on
January 6, 2016. (Shockley Dep., Ex. 16). However, Plaintiff
maintains that Defendant terminated her as early as August
27, 2015 - when Defendant would not allow her to return to
work - or September of 2015 - when Defendant refused to allow
her to return to work after being provided with letters from
her doctors stating that she was able to return to work.
Plaintiff points out that she began receiving unemployment
benefits in November of 2015. (Doc. 35-1, PAGEID #1362).
brings the following claims (1) violations of the Family and
Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601, et seq.; (2) violation of the
Pregnancy Discrimination Act (“PDA”), 42 U.S.C.
§2000e(k); (3) pregnancy discrimination under Ohio
Revised Code § 4112.01(B); (4) discrimination and
failure to accommodate in violation of the Americans with
Disability Act, 42 U.S.C. § 12101, et seq.; (5)
disability discrimination in violation of Ohio Revised Code
§ 4112.01, et seq; (6) “disparate
treatment;” and (7) violation of the Equal Pay Act, 29
Standard of Review
Rule of Civil Procedure 56(a) provides that summary judgment
is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party has the
burden of showing an absence of evidence to support the
non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party
has met its burden of production, the non-moving party cannot
rest on his pleadings, but must present significant probative
evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49 (1986).
Family Medical Leave Act
the FMLA, an eligible employee is entitled to twelve weeks of
leave each year “[b]ecause of a serious health
condition that makes the employee unable to perform the
functions of [the employee's] position.” 29 U.S.C.
§ 2612(a)(1)(D). The FMLA makes it “unlawful for
any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise” any FMLA
provision. 29 U.S.C. § 2615(a)(1). The FMLA also
prohibits an employer from “discharg[ing] or in any
other manner discriminat[ing] against any individual for
opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). The Sixth
Circuit has recognized two discrete theories of recovery
under the FMLA: “(1) the so-called
“interference” or “entitlement”
theory arising from § 2615(a)(1), and (2) the
“retaliation” or “discrimination”
theory arising from § 2615(a)(2).” Seeger v.
Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th
Cir. 2012). The Sixth Circuit has explained:
Although we have held that a claim for retaliatory discharge
is cognizable under either theory, the requisite proofs
differ. The interference theory has its roots in the
FMLA's creation of substantive rights, and “[i]f an
employer interferes with the FMLA-created right to medical
leave or to reinstatement following the leave, a violation
has occurred, ” regardless of the intent of the
employer. Arban, 345 F.3d at 401. The central issue
raised by the retaliation theory, on the other hand, is
“whether the employer took the adverse action because
of a prohibited reason or for a legitimate nondiscriminatory
reason.” Edgar v. JAC Prods., Inc., 443 F.3d
501, 508 (6th Cir. 2006) (citation and internal quotation
marks omitted). In contrast to the interference theory,
“[t]he employer's motive is relevant because
retaliation claims impose liability on employers that act
against employees specifically because those employees
invoked their FMLA rights.” Id.
Id. at 282 (footnote omitted).
brings FMLA claims under both the interference and
retaliation theories. The burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) applies to both interference and retaliation
claims which are based on circumstantial evidence. Donald
v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012).
plaintiff establishes a prima facie case of interference
under the FMLA by showing that: (1) she was an FMLA-eligible
employee, (2) the defendant was an “employer” as
defined under the FMLA, (3) she was entitled to FMLA leave,
(4) she gave the employer notice of her intention to take
leave, and (5) the employer denied the employee FMLA benefits
to which she was entitled. Wallace v. FedEx Corp.,
764 F.3d 571, 585 (6th Cir. 2014) (citing Edgar v. JAC
Prod., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). Because
the FMLA ...