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Shockley v. Correctional Healthcare Companies, Inc.

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

March 30, 2018

Jennifer Shockley, Plaintiff,
Correctional Healthcare Companies, Inc., Defendant.

          OPINION & ORDER

          Michael R. Barrett United States District Judge.

         This 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).

         I. BACKGROUND

         Defendant 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.

         Under 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).

         In 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).

         On 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.)

         On the 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).

         The 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 additional certification.

         Plaintiff 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.)

         Defendant 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.)

         Plaintiff 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.

         Based 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).

         Defendant 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.

         Defendant 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).

         Plaintiff 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 U.S.C. §206(d).

         II. ANALYSIS

         A. Standard of Review

         Federal 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).

         B. Family Medical Leave Act

         Under 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).

         Plaintiff 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).

         A 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 ...

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