United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, United States District Judge
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 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.
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.
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.
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.
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.
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.
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.
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.
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
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
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
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.
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
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.
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.
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:
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. § 1746 or a sworn affidavit
certifying that (1) the ...