United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Deanna Smith brings this action against her former employer,
American Modern Insurance Group ("American Modern")
and Midland-Guardian Co. ("Midland"),
alleging claims of: (1) discriminatory discharge in violation
of the Americans with Disabilities Act, 42 U.S.C. §
12101 etseq. ("ADA") and the Ohio Civil
Rights Act, Ohio Rev. Code §4112.02, ef seq.
(together "Count I"), (2) retaliatory discharge for
taking leave under the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601 et seq.
("Count II"), and (3) discrimination on the basis
of gender in violation of the Ohio Civil Rights
Act, Ohio Rev. Code § 4112.02, et
seq. ("Count IV"). This matter is before the
Court on defendants' motion for summary judgment (Doc.
37), plaintiffs response in opposition (Doc. 45), and
defendants' reply memorandum (Doc. 48).
following facts are undisputed unless otherwise noted.
began her employment with defendant American Modern on
November 6, 1995 as an Adjuster Trainee. (Deposition of
Deanna Smith, ("Pltf. Depo.") Vol. I, Doc. 30 at
154). Plaintiff received regular raises over the years.
(Id. at 161). From January 2008 until the time of
her termination in January 2015, plaintiff held the position
of Litigation Specialist II. (Id. at 151). As a
Litigation Specialist II, plaintiff was responsible for (1)
coordinating the defense of lawsuits filed against
defendants' policy holders, (2) responding to policy
holders who informed defendants that lawsuits had been filed
against them, (3) timely assigning outside counsel to defend
lawsuits against policy holders that did not settle promptly,
(4) serving as a liaison between policy holders and defense
counsel to facilitate the litigation process, (5) promptly
issuing settlement payments on behalf of policy holders when
a settlement was reached, and (6) attempting to resolve
claims before lawsuits were filed. (Id. at 158,
2006 to 2012, in her duties as a Litigation Specialist and
later as a Litigation Specialist II, plaintiff reported to
Litigation Supervisor Kurt Groesch. (Id. at 157-58).
From 2010 to 2012, plaintiff also reported to Litigation
Supervisor Jody Blankenship. (Id. at 152; Deposition
of Jody Blankenship, Doc. 33 at 132-33). In 2012, plaintiff
began reporting directly to Ms. Blankenship. (Blankenship
Depo. at 17). Ms. Blankenship then reported to Mr. Groetsch,
who had been promoted to Casualty Manager. (Id. at
18). Mr. Groetsch, in turn, reported to Eric Hunziker,
Director of the Casualty Division. (Deposition of Kurt
Groetsch, Doc. 34 at 8-10; Deposition of Eric Hunziker, Doc.
35 at 7).
Plaintiffs Early Requests for Medical Leaves of
the course of her employment, plaintiff took several medical
leaves of absence, all of which were approved. Following two
surgeries, plaintiff returned to work without incident and
resumed the same job without a reduction in role, pay, or
benefits. (Pltf. Depo. Vol. I at 87-91). She was given as
much time as she needed to recover, and management allowed
her to work from home as an accommodation. (Id. at
2006, plaintiff had another surgery and took an additional
medical leave of absence. (Id.). Management allowed
plaintiff to take as much time off as needed and when she
returned to work, she resumed the same job, without a
reduction in role, pay, or benefits. (Id. at 93-94).
Defendants never denied any of plaintiff s leave requests or
requested accommodations, or discouraged plaintiff from
reporting her medical conditions. (Id. at 94, 210;
Pltf. Depo. Vol. II, Doc. 31 at 30).
Plaintiffs Job Performance in 2008-2011
January 21, 2008, Mr. Groetsch placed plaintiff on a 60-day
Performance Plan to address performance issues identified in
her 2007 performance review, which included issues such as
lack of attention to detail, poor decision quality,
inadequate planning, and failure to meet unit goals and
measures. (Doc. 37-5). Mr. Groetsch stated in the Performance
Plan: "[i]f your performance does not meet these
requirements and show sustained improvement, further
disciplinary action may be taken, up to and including a
development plan, probation and/or possible termination of
your employment." (Id. at 3). On June 15, 2010,
Mr. Groetsch placed plaintiff on a second 60-day Performance
Plan to address performance issues identified in her 2009
performance review. (Doc. 37-6). The Performance Plan
outlined areas needing attention, including sustained
improvement and consistency, attention to detail, decision
quality, planning, and time management. (Id.). Mr.
Groetsch warned plaintiff that "[s]hould [her]
performance not meet these requirements, demonstrate
consistent and sustained improvement, further disciplinary
action will be taken in the form of probation."
(Id. at 3).
April 4, 2011, Mr. Groetsch placed plaintiff on formal
probation as a result of her deficiencies in "the areas
of planning, reporting, decision making, and meeting file
quality standards." (Doc. 37-7 at 2). In an accompanying
memorandum, Mr. Groetsch made the following observations
about plaintiffs performance:
You have not demonstrated consistency in meeting deadlines...
. The reservation of rights letter was issued almost 60 days
after you were directed to issue the letter in the initial
With respect to decision quality, there were delays in making
decisions, as demonstrated with several coverage opinions,
most notably the handling of the [name redacted] case.
Productivity is negatively impacted by lack of focus, poor
organization and prioritization. . . . Your lack of
productivity was demonstrated in the [name redacted] claim,
in which a report from counsel was received but not reviewed
or reported by you for over 60 days.
You are not meeting our established reporting guidelines. An
example is securing pre-trial reports 60 days prior to trial.
This has not been done consistently, which can negatively
impact defense strategies, expense management, risk
management and indemnity paid.
(Id. at 2-3).
Groetsch warned plaintiff: "[i]f the necessary
improvements are not made, further disciplinary action, up to
and including termination of your employment at any time
during or following this plan will result."
(Id. at 4). On September 26, 2011, plaintiffs
probation period ended. (Pltf. Depo. Vol. I at 183; Pltf.
Depo. Vol. Ill. Doc. 32 at 72; Docs. 37-8, 37-9). Mr.
Groetsch noted that even though plaintiffs probation period
had ended, "If your performance declines or if you have
any performance issues in any area of your position, further
disciplinary action, up to and including immediate
termination will result." (Doc. 37-8). During plaintiffs
probation period, defendants granted her request for FMLA
leave from April 20, 2011 to June 5, 2011. (Docs. 37-10,
37-11, 37-12). Plaintiff testified that she was satisfied
with the way these FMLA requests were handled. (Pltf. Depo.
Vol. II at 56).
Ms. Blankenship becomes Plaintiffs Direct Supervisor
approximately 2012, Ms. Blankenship became plaintiffs direct
supervisor after Mr. Groesch was promoted to Casualty
Manager. (Pltf. Depo. Vol. I at 150; Groetsch Depo. at 8-10).
Plaintiff testified that Ms. Blankenship was helpful,
supportive, and "instrumental in [her] not being
fired" in 2010 and 2011 in connection with her placement
on a Performance Plan and probation. (Pltf. Depo. Vol. I at
183; Pltf. Depo. Vol. III at 44). Plaintiff considered Ms.
Blankenship to not only be her supervisor, but also a
personal "friend." (Pltf. Depo. Vol. I at 249).
received positive performance evaluations from Ms.
Blankenship in 2012 and 2013. (Doc. 44-1 at 4-16). In 2012,
plaintiff received an overall score of 3.7. (Id. at
16). In 2013, plaintiff received an overall score of 3.4.
(Id. at 4). Management conveyed to Litigation
Specialists that a "3" score is equivalent to an
"A" grade and a "4" score is equivalent
to an "A" grade. (Deposition of David Gifford,
Doc. 40 at 21-23; Deposition of Scott Wedemeyer, Doc. 41 at
18-19). In 2013, Ms. Blankenship stated that plaintiff had a
"very good" year and made several positive comments
about plaintiffs performance, including her coverage
analysis, file quality, ability to resolve claims, and sound
decision-making. (Doc. 44-1 at 4-11; Blankenship Depo. at
Plaintiffs Job Performance in 2014
2014, Ms. Blankenship held one-on-one monthly meetings with
the Litigation Specialists she supervised, including
plaintiff. During these monthly meetings, Ms. Blankenship
would provide feedback and constructive criticism to the
litigation specialists she supervised. (Blankenship Depo. at
60). As part of these monthly meetings, Blankenship would
generally provide a "Lit Scorecard" to the
litigation specialists. (Id. at 99-101). The
"Lit Scorecard" listed certain metrics that the
company tracked for each litigation specialist and reflected
whether goals were met. (Doc. 44-2; Deposition of David
Gifford, Doc. 40 at 33-36; Pltf. Declaration, Doc. 45-2 at
¶ 4). The scorecard measured the litigation
specialist's production rate (i.e., the ratio of claim
files closed) and the proper handling of claim files as
audited by American Modern. (Gifford Depo. at 33-35; Pltf.
Declaration at ¶ 4). Mr. Gifford, a Litigation
Specialist II with American Modem, testified that the
scorecard is a reflection of job performance. (Gifford Depo.
at 35). Ms. Blankenship, however, testified that the score
cards were neither "significant" nor "key
performance indicators" to the performance evaluations
of litigation specialists. (Blankenship Depo. at 101).
Plaintiffs 2014 "Lit Scorecard" indicated that her
overall production rate exceeded the company's goals.
(Id. at 102).
September 2014, plaintiff had a one-on-one meeting with Ms.
Blankenship to discuss her performance for the third quarter
of 2014. (Blankenship Depo. at 165). Ms. Blankenship
testified that her third quarter meeting notes contained both
positive and negative comments and that she reviewed these
comments with plaintiff at the meeting. (Id. at
165-66). With respect to the critical comments under the
"File Productivity and Time Management Section,"
she testified that "some of the negative comments are
issues that would pose a risk that would concern me a great
deal, particularly with Ms. Smith because they were the same
issues [plaintiff] had struggled with in the past."
(Id. at 166-67). Ms. Blankenship's third quarter
notes cited approximately six examples of plaintiff s poor
file productivity and time management. (Doc. 44-3 at 4).
Plaintiff denies defendants' version of the September
2014 meeting and does not recall Ms. Blankenship
communicating any specific performance deficiencies to her.
(Doc. 45-1 at 3) (citing Pltf. Declaration at ¶ 5). On
September 29, 2014, Ms. Blankenship emailed Mr. Groetsch and
Mr. Hunziker and attached a performance document highlighting
specific issues with plaintiffs performance to discuss at a
meeting the next day. (Groestch Depo. at 31-32; Doc. 37-14).
The document contained a list often specific examples of
plaintiff s performance issues in the areas of file
productivity and time management. (Doc. 37-14 at 2).
According to Ms. Blankenship, she met with Mr. Groestch and
Mr. Hunziker in September 2014 and recommended plaintiffs
termination based on her performance issues. (Blankenship
Depo. at 44). Ms. Blankenship testified that plaintiffs
performance "had deteriorated to a level that was
alarming" and "very concerning," which she
believed posed a risk to the company. (Id.). Ms.
Blankenship testified that Mr. Groetsch and Mr. Hunziker
accepted her recommendation. (Id. at 44-45).
However, Mr. Groetsch testified that he had not received a
recommendation from Ms. Blankenship to terminate plaintiff.
(Groetsch Depo. at 31).
Blankenship then met with Cindy Gillings, Senior Human
Resources Partner, in late September or early October to
discuss plaintiffs performance issues. (Blankenship Depo. at
43-46, Deposition of Cindy Gillings, Doc. 36 at 30).
According to Ms. Blankenship, she and Mr. Hunziker
collectively recommended to Ms. Gillings during the meeting
that plaintiff be terminated. (Blankenship Depo. at 46). Ms.
Gillings recalled discussing plaintiffs performance issues
with Ms. Blankenship only and did not recall whether Ms.
Blankenship recommended that plaintiff be terminated at that
meeting. (Gillings Depo. at 20-22). Ms. Gillings recommended
that Ms. Blankenship caution plaintiff that she must improve
her performance to management's satisfaction or risk
termination. (Blankenship Depo. at 47; Gillings Depo. at 21).
Blankenship met with plaintiff in early October to discuss
her performance. The parties dispute the details of the
meeting. According to defendants, Ms. Blankenship reviewed a
list of performance deficiencies and cautioned plaintiff that
she needed to "take [the list] seriously" and
"correct [the deficiencies] by the end of the
year." (Blankenship Depo. at 47-49). Plaintiff recalls
primarily positive feedback from her one-on-one meetings with
Ms. Blankenship, especially during the October 2014 meeting.
(Pltf. Depo. Vol. II at 77). Plaintiff states that she was
never warned that her job performance was deteriorating, her
performance needed to improve immediately, or that her job
was in jeopardy. (Pltf. Declaration at ¶ 5).
Plaintiff Requests FMLA Leave in December 2014
sOn December 2, 2014, plaintiff informed Ms. Blankenship that
she would be out of the office for an indeterminate amount of
time due to "health problems," including numbness
in her hands, feet, and lower legs. (Pltf. Depo. Vol. II at
57; Blankenship Depo. at 168-70). Plaintiffs last day in the
office was December 1, 2014. (Pltf. Depo. Vol. II at 57).
Management then approved plaintiff for FMLA leave from
December 2, 2014 through January 30, 2015. (Pltf. Depo. Vol.
II at 56-61; Doc. 37-15 at 1). The Human Resources Department
assisted plaintiff with questions concerning her FMLA leave
and she encountered no difficulties getting her FMLA leave
approved. (Pltf. Depo. Vol. 11 at 57-58). During the leave,
plaintiff also requested "a standing workstation to help
with . . . circulation for [her] feet." (Pltf. Depo.
Vol. I at 209-10). Plaintiffs managers granted her requested
accommodation. (Pltf. Depo. Vol. II at 69-72; Hunziker Depo
at 17; Groetsch Depo at 56-57). On December 8, 2014, Ms.
Blankenship reported to Mr. Groetsch and Mr. Hunziker that
plaintiff would be absent for at least 30 days because her
doctor believed she had nerve damage from diabetes. (Doc.
44-3 at 14). On January 5, 2015, Ms. Blankenship reported to
Mr. Groestch, Mr. Hunziker, and Ms. Gillings that plaintiff
was scheduled to undergo an MRI to determine if the numbness
was related to her diabetes, and Ms. Blankenship also
reported that plaintiff had been diagnosed with carpal tunnel
in her right arm. (Blankenship Depo. at 186-87; Doc. 44-4 at
3). On January 23, 2015, Ms. Blankenship reported to Mr.
Groetsch and Mr. Hunziker that plaintiff would be returning
to work on February 2, 2015. (Blankenship Depo. at 193; Doc.
44-4 at 6). A few days later, Ms. Blankenship reported to
them that plaintiff would miss an additional day of work on
February 6, 2015 to have a "procedure on her right
hand" for carpal tunnel syndrome. (Blankenship Depo. at
196-97; Doc. 44-4 at 10). Ms. Blankenship testified, however,
that she was not aware that plaintiff had a number of health
problems prior to plaintiffs termination. (Blankenship Depo.
Ms. Blankenship Obtains Access to Plaintiffs E-mail
plaintiff was on leave, on December 8, 2014, Ms. Blankenship
asked Ms. Gillings for access to plaintiffs email account.
Ms. Blankenship testified that she did not want to leave
plaintiffs files unattended indeterminately while she was on
leave. (Blankenship Depo. at 171-72, 180; Doc. 37-16 at 5).
This was the first time that Ms. Blankenship requested access
to a Litigation Specialist's email account. (Blankenship
Depo. at 172). While having access to plaintiffs email, Ms.
Blankenship perceived that plaintiffs performance had
deteriorated more than previously understood. (Id.
at 203; Doc. 37-17 at 2).
December 12, 2014, Ms. Blankenship emailed Mr. Groetsch and
Mr. Hunziker asking them to review an attached five-page
memorandum before a meeting scheduled for December 15, 2014.
(Doc. 37-17), Ms. Blankenship's memorandum sets forth 20
purported examples of plaintiffs performance deficiencies,
including alleged mistakes on insurance claims that she found
when handling plaintiffs files in her absence. (Doc. 37-1 at
13) (citing Blankenship Depo. at 198; Groetsch Depo. at
50-51; Hunziker Depo. at 20; Doc. 37-17). Plaintiff disputes
the contents of the memorandum, specifically with regard to
the alleged mistakes Ms. Blankenship claimed she made in
Claim Nos. 068235AA, 2612718, 068195AA, 2614807, 068432AA,
068389AA, 2508451, and 2253688/068192AA. (Doc. 45-1 at
11-18). Ms. Blankenship updated the contents of her
memorandum on December 29, 2014. (Doc. 37-18). Plaintiff
challenges the contents of the updated memorandum.
(See Doc. 45-1 at 11 -18).