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Fleming v. The Ohio Bell Telephone Co.

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

June 21, 2018

JODI FLEMING, Plaintiff,


          CHRISTOPHER A. BOYKO, United States District Judge

         This matter is before the Court on Defendant The Ohio Bell Telephone Company's (“Defendant” or the “Company”) Motion to Dismiss and for Sanctions (ECF DKT # 13). For the following reasons, the Court grants Defendant's Motion and dismisses the above-captioned case.

         This case arises out of Defendant's alleged failure to accommodate and retaliation against Plaintiff Jodi Fleming (“Plaintiff”). Plaintiff asserts claims under the Americans with Disabilities Act (“ADA”), including Disability Discrimination; Failure to Accommodate; Interference, Coercion and Intimidation and Retaliation Based on Disability Discrimination.

         Background Facts

         Plaintiff alleges the following facts in her First Amended Complaint (“FAC”): Plaintiff worked for Defendant as a Service Representative. FAC ¶ 14. In March 2011, Plaintiff began experiencing shoulder and wrist pain and asked her Attendance and Safety Manager, Roxanne Yost (“Yost”), for an ergonomic keyboard tray to help with the pain, which the Company failed to provide. FAC ¶¶ 16-17, 19.

         On July 21, 2011, Plaintiff was diagnosed with severe bilateral carpal tunnel syndrome, chronic right mononeuropathy and chronic C5-6 radiculopathy. FAC ¶ 20. These conditions substantially limited Plaintiff's ability to perform daily tasks and type on a keyboard (one of Plaintiff's job duties) without accommodations. FAC ¶¶ 21-25. Immediately after receiving these diagnoses, Plaintiff submitted a written request to Defendant for an ergonomic keyboard and chair. FAC ¶ 30. Defendant failed to provide these accommodations until the end of September 2011. FAC ¶¶ 31-32.

         Furthermore, when the accommodations were given, Yost placed Plaintiff's desk in the corner of the office in retaliation, isolating Plaintiff and requiring Plaintiff to walk across the office to check her phone. FAC ¶¶ 33-35. Yost also instructed Plaintiff not to email the Company's Accommodation Specialist again, which Plaintiff understood to mean that she was not to request additional accommodations. FAC ¶¶ 36, 38-39.

         Plaintiff's condition worsened from months of working without accommodations. FAC ¶ 40. On October 11, 2011, Plaintiff informed Yost she would be requesting further accommodations and Yost informed Plaintiff that the Company would not be accommodating Plaintiff any further. FAC ¶¶ 41, 43. As a result, Plaintiff went on short-term disability on October 11, 2011. FAC ¶ 44.

         Because of her carpal tunnel syndrome, Plaintiff had hand surgery on February 1, 2012, a second hand surgery on April 25, 2012 and a shoulder surgery on July 25, 2012. FAC ¶¶ 45-47. As part of her treatment, Plaintiff attended rehabilitation multiple times each week. FAC ¶ 48.

         On November 28, 2012, Plaintiff was removed from payroll and placed on a disability leave of absence (“DLOA”). FAC ¶ 50. This caused Plaintiff's medical insurance to be cancelled. FAC ¶ 52. Furthermore, Plaintiff's DLOA had been backdated to October 19, 2012, so Plaintiff's medical bills between October 19 and November 28, 2012 were not covered by insurance. FAC ¶¶ 51, 54. Plaintiff's lack of medical coverage further exacerbated her condition because she could not afford to complete rehabilitation. FAC ¶ 55. Plaintiff alleges that it is against Company policy to move employees from short term disability to DLOA and Plaintiff should have received accident disability benefits instead of being placed on DLOA. FAC ¶¶ 56, 59. Accident disability benefits would have continued to pay Plaintiff's salary and benefits, including medical insurance, until Plaintiff fully recovered. FAC ¶ 61.

         On April 1, 2013, Plaintiff submitted accommodation paperwork to the Company requesting half-days and ergonomic equipment. FAC ¶ 63. Plaintiff's supervisor, James Tench, (“Tench”) informed Plaintiff that these accommodations would not be fulfilled. FAC ¶ 64. On April 5, 2013, Plaintiff completed an Equal Employment Opportunity Commission (“EEOC”) intake questionnaire. FAC ¶ 65. Defendant was allegedly made aware of this action on April 5, 2013. FAC ¶ 66. Plaintiff attempted to return to work on April 10, 2013, but Tench told her not to come back to work until she was no longer disabled. FAC ¶¶ 67-68.

         Plaintiff filed a charge of discrimination (“Charge I”) with the EEOC on July 18, 2013. FAC ¶ 69. On January 12, 2017, the EEOC issued a determination letter (the “January 12th Letter”) regarding Charge I, which stated:

Charging Party alleges she was subjected to a hostile work environment and denied a reasonable accommodation on the basis of her race, black, sex, female, age, 48, disability, and in retaliation for participating in protected activity in violation of Title VII, the ADEA, and the ADA.
The investigation revealed that Charging Party was subjected to a hostile work environment and retaliated against on the basis of disability in violation of the ADA. Upon requesting and requiring leave as a reasonable accommodation based on disability, Charging Party was not provided full consideration for the most beneficial disability-related leave program. This lack of full consideration ultimately led to the Charging Party receiving the least beneficial disability-related leave.
Based on the foregoing, I have determined there is reasonable cause to believe that the available evidence establishes a violation of the ADA. The Commission makes no findings as to the other allegations.
Charging Party may file a lawsuit on these issues against the Respondent in federal court. The lawsuit must be filed within 90 days of receipt of this determination or the right to sue based on these issues will be lost.
However, with regard to the violation finding under the ADA, note that upon finding reasonable cause that unlawful employment practices have occurred, the Commission attempts to eliminate the alleged unlawful practices by informal methods of conciliation. Conciliation is Respondent's opportunity to voluntarily remedy the unlawful employment practices found to have occurred. Ultimately, any conciliation agreement must be acceptable to the Commission. The Respondent will be contacted by a Commission representative to discuss conciliation.
If Respondent fails to engage in conciliation, or if the Commission determines, in its sole discretion, that conciliation has failed, the Director will inform the parties and advise them of the court enforcement alternatives available to aggrevied persons and the Commission.

Emphasis original). Mot. Dismiss Ex. 7. On June 9, 2017, the EEOC sent Plaintiff a “Notice of Right to Sue (Conciliation Failure)” (the “June 9th Letter”) for Charge I. See Mot. Dismiss Ex. 8.

         Plaintiff has filed four other charges with the EEOC that do not form the foundation of this case. See Mot. Dismiss Ex. 2-5. Plaintiff, acting pro se, has also filed three other lawsuits in connection with her employment with the Company.

         Plaintiff's first lawsuit (“Fleming I”), filed January 25, 2016, alleged Racial Discrimination in Violation of Title VII of the Civil Rights Act (“Title VII”), Age Discrimination in Violation of the Age Discrimination in Employment Act (“ADEA”), Reprisal for Engaging in Protected Activities, Violation of the Rehabilitation Act of 1973, and Hostile and Abusive Work Environment. See Fleming v. Tench, No. 1:16-cv-00185 at ECF DKT # 1. Fleming I was voluntarily dismissed without prejudice at Plaintiff's request on April 25, 2016. See id., at ECF DKT # 17.

         Plaintiff's second lawsuit (“Fleming II”) did not name the Company as a defendant. See Fleming v. Hogan, No. 1:16-cv-00688 at ECF DKT # 1. Instead, Fleming II named Plaintiff's labor union as a defendant. See Id. Therefore, both parties contend that Fleming II is unrelated to the current action. Fleming II was dismissed sua sponte by this Court for failure to state a claim. See Id. at ECF DKT # 5.

         Plaintiff's third lawsuit (“Fleming III”) named the Company as a defendant and alleged all the same claims as Fleming I with the addition of claims under the Heath Insurance Portability and Accountability Act (“HIPAA”) and the Consumer Safety Protection Act. SeeFleming v. AT&T Corp., No. 1:17-cv-00898 at ECF DKT # 4. This Court found that Plaintiff “has demonstrated a pattern of vexatious litigation justifying an order preventing further harassment of Defendants and abuse of the judicial process.” Id. at 2. Accordingly, the Court dismissed Fleming III under section 1915(e) and enjoined Plaintiff from filing any new lawsuits without seeking and obtaining leave of the Court:

Jodi Fleming is enjoined from filing any new lawsuits or other documents without seeking and obtaining leave of court in accordance with the following:

         1. She must file a “Motion Pursuant to Court Order Seeking Leave to File” with any document he [sic] proposes to file and she must attach a copy of this Order to it.

2. As an exhibit to any motion seeking such leave, she must also attach a declaration which has been prepared pursuant to 28 U.S.C. ยง 1746 or a sworn affidavit certifying that (1) the ...

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