United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
MICHAEL R. BARRETT
matter is before the Court upon Defendant Federal Reserve
Bank of Cleveland's Motion for Summary Judgment. (Doc.
15). Plaintiff Erica Cook filed a Response in Opposition
(Doc. 27); and Defendant filed a Reply (Doc. 28). Plaintiff
was then granted leave to file a Sur-reply (Doc. 33).
Erica Cook began her employment with Defendant Federal
Reserve Bank of Cleveland on September 8, 2015. (Doc. 18-1,
Erica Cook Dep., PAGEID# 915). Plaintiff worked as a Law
Enforcement Officer, which required her to carry a firearm
while on duty. (Id. at PAGEID# 917).
has suffered from migraines since 2004. (Id. at
PAGEID# 932). In the early part of 2016, Plaintiff's
migraines began to get worse. (Id. at PAGEID# 930).
Plaintiff's migraines would vary in intensity. At times,
Plaintiff would have to lay in bed in a dark room. (Doc.
18-4, Erica Cook Dep. PAGEID# 1081). However, at other times,
Plaintiff would only have a mild headache. (Id.)
Plaintiff was not able to predict whether a mild headache
would turn into a more severe migraine. (Id. at
PAGEID# 1081-82). Plaintiff did not feel she could safely
carry a firearm when suffering from these unpredictable
migraines. (Id. at PAGEID# 1082).
7, 2016, Plaintiff was given an oral notice for absenteeism.
(Doc. 18-11). As part of Defendant's progressive
disciplinary action, Plaintiff was notified that she had been
absent a total of fifty-six hours since November 30, 2015;
and an additional hour of absence prior to November 30, 2016
would result in her being placed on a written warning.
16, 2016, Plaintiff sought treatment for her migraines from
her primary care physician, Dr. Heidi Yount. (Doc. 18-2,
Erica Cook Dep., PAGEID# 982). Dr. Yount wrote a “Work
Note, ” which stated that Plaintiff may return to work
with no restrictions on June 21, 2016. (Doc.
20, 2016, Plaintiff called Dr. Yount's office because her
migraines were getting worse and the medication Dr. Yount
prescribed was not working. (Doc. 18-15). The next day,
Plaintiff called Dr. Yount's office again and asked to be
referred to a neurologist. (Id.) Plaintiff explained
that her brother also has migraine headaches and a
neurologist had performed a spinal tap on him to relieve the
pressure. (Id.) While Dr. Yount noted that a spinal
tap is not a common method to treat migraines, Dr.
Yount's office sent the referral to the neurologist on
June 22, 2016. (Id.) However, because that neurology
group did not accept Plaintiff's insurance, later, on
July 5, 2016, Dr. Yount's office sent the referral to the
Neurology Department at Ohio State University. (Docs. 18-16,
evening on June 20th, Plaintiff called Defendant and stated
that she needed to be off work the next day because she had
to have a spinal tap done. (Doc. 18-29, PAGEID# 1313).
21, 2019, Plaintiff had a discussion with Deborah Keener, one
of Defendant's Human Resources Generalists, about taking
additional time off for her migraines. (Doc. 19-1, Deborah
Keener Dep., PAGEID# 1353-54). Keener recalls that Plaintiff
explained that she would need to have some type of procedure.
(Id. at PAGEID# 1353). On that same day, Keener sent
short-term disability (“STD”) paperwork to
Plaintiff by regular mail. (Id. at PAGEID# 1356;
Doc. 18-22). In her cover letter, Keener stated that the
documents must be returned by July 7, 2016. (Doc.
18-22). Plaintiff faxed the STD paperwork to Dr.
Yount's office on July 2, 2016. (Doc. 18-23). Plaintiff
thought Dr. Yount had submitted the STD paperwork to
Defendant on July 6th. (Doc. 18-2, PAGEID#
990). However, Plaintiff later learned that
Keener had not received her paperwork; and on July 8, 2016,
Plaintiff called Dr. Yount's office inquiring about her
short-term disability paperwork. (Doc. 18-17). Dr.
Yount's office told Plaintiff that she needed to schedule
a follow up visit because “we have nothing in the chart
about [patient] not working.” (Doc. 18-17). Plaintiff
called again on July 12, 2016 about her disability forms.
(Id.) That same day, Dr. Yount's office faxed
the first page of the forms to Defendant. (Doc. 18-25). On
the form, Dr. Yount did not answer question number five:
“Does this condition render the employee incapacitated
from doing his/her job?” (Doc. 18-25). However, Dr.
Yount answered “no” to question number six:
“Is the employee presently medically able to
work.” (Doc. 18-25). In response to the question,
“[i]s this a chronic medical condition that may render
the employee medically unable to work in the future, ”
Dr. Yount responded “no.” (Doc. 18-25). Dr. Yount
wrote that she anticipated that Plaintiff would be able to
return to work on September 6th, but it could be sooner.
(Doc. 18-25). Dr. Yount explained that for Plaintiff to
return to work, “[h]er migraine headaches must be under
better control.” (Doc. 18-25). Dr. Yount also wrote
that Plaintiff was “awaiting neurology appt for
additional treatment.” (Doc. 18-25).
letter dated July 12, 2016, Defendant sent Plaintiff a
written warning for attendance. (Doc. 18-12). The letter
states that Defendant sent short term disability paperwork to
Plaintiff on June 21, 2016, but Defendant had not
“received any paperwork from [her] doctor to
substantiate [her] absence.” (Id.) The letter
warned Plaintiff that she would face “additional
disciplinary action, ” including termination, if she
did not return to work on July 13, 2016. (Id.)
Plaintiff did not receive this letter until after July 13th.
(Doc. 18-2, PAGEID# 980).
13, 2016, Keener faxed the STD paperwork back to Dr. Yount.
In the cover sheet, Keener explains:
I am faxing back the Short Term Disability paperwork you
completed on Erica. We are seeking clarification to question
#6. Based on the information on your faxed response we
received this morning, the responses to question #6 are
inconsistent with the information you provided. Please
confirm whether Erica is presently medically unable to work
and what date she is or was able to return to work.
18-26, PAGEID# 1218). Dr. Yount returned the paperwork that
same day with one revision. (Doc. 18-26, PAGEID# 1219). Dr.
Yount answered “no” to question number five:
“Does this condition render the employee incapacitated
from doing his/her job?” (Id. at PAGEID#
1221). Dr. Yount also included a handwritten note
on the fax cover sheet stating:
[Patient] was seen by Dr. Yount on 6-16-16. [Patient] was
told she could return to work 6-21-16. [Patient] made
decision to stay off work [due to] migraines being so bad and
requested referral to neurology, but our office was not aware
that she had not returned to work. She has a [follow up] appt
for re-eval 7/15.
18-26, PAGEID# 1219). That same day, Plaintiff left a
voicemail message for Keener explaining that she was aware
that Dr. Yount's office had sent updated STD paperwork,
but that there was a miscommunication between Dr. Yount and a
nurse in her office. (Doc. 19-2, PAGEID# 1399). Plaintiff
explained further that while Plaintiff was keeping the nurse
updated, the nurse had not been communicating the information
to Dr. Yount. (Id.)
14, 2016, Plaintiff called Dr. Yount's office to ask
about the disability forms. (Doc. 18-17). A message log
showing the communication between Dr. Yount and her staff
shows that Dr. Yount's staff told Dr. Yount that
Plaintiff wanted to speak to Dr. Yount directly because she
could lose her job. (Id.) Dr. Yount responded:
“Our office never told her to stay off work, so the
forms has [sic] been completed as I am to at this time. Will
re-address her forms at her appt tomorrow.”
Progressive Disciplinary Action Form dated July 14, 2016,
Defendant gave Plaintiff written notice that she had failed
to meet the terms of her Written Warning; and she was being
placed on probation for absences on July 13th and 14th. (Doc.
18-27). Plaintiff did not receive this form until after
Defendant terminated her employment. (Doc. 18-3, PAGEID#
1032). However, Plaintiff was told about the notice in a
phone conference that same day. The phone conference was with
Keener, Mike Leber, James Duncanson, Janet Reed James. (Doc.
19-4, PAGEID# 1464). Duncanson was Plaintiff's immediate
supervisor. Leber was acting manager of Cincinnati's Law
Enforcement Unit. Keener told Plaintiff that if she did not
return to work on July 15th, her employment would be
terminated. (Doc. 18-3, PAGEID# 1034-35). Plaintiff asked if
she could use vacation time, but was told no. (Doc. 19-4,
PAGEID# 1464). Plaintiff stated that she would report to work
the next day. (Doc. 19-2, PAGEID# 1414).
at 10:04 p.m. on the night of July 14th, Plaintiff called
Defendant to say that she would not be in to work on July
15th. (Doc. 18-29, PAGEID# 1323). Later that night, at 11:52
p.m., Plaintiff was admitted to the Wayne Healthcare
Emergency Department for a severe migraine. (Doc. 18-2,
PAGEID# 999; Doc. 18-18). Plaintiff called Defendant again at
12:48 a.m. and told the duty officer that she had just been
released from the hospital. (Doc. 18-29, PAGEID# 1323).
Plaintiff explained that she was disoriented due to a
sedative she had been given so that she could not remember if
she had already called. (Doc. 18-29, PAGEID# 1323). Plaintiff
did not return to work on July 15th. (Doc. 18-3, PAGEID#
recommended that Defendant terminate Plaintiff's
employment because she was absent on July 15th in violation
of her probation. (Doc. 19-3, PAGEID# 1460).Leber's
recommendation was adopted. (Doc. 19-14, PAGEID# 1499).
However, Leber never saw the STD paperwork sent by Dr. Yount;
he was only told that there was incomplete information. (Doc.
20-1, Michael Leber Dep., PAGEID# 1563).
15, 2016, Plaintiff saw Dr. Yount. (Doc. 18-20). Dr. Yount
wrote a “Work Restriction” note stating that
Plaintiff is not able to return to work at this time and she
should remain off work through September 6, 2016. (Doc.
18-21). Dr. Yount also faxed the STD paperwork to Defendant
on July 15, 2016. (Doc. 18-24, PAGEID# 1206). On question
number five, Dr. Yount checked the box “yes” and
indicated that her previous answer of “no” was an
error. (Id.) Dr. Yount completed a
“Certification” as part of the STD paperwork and
stated that Plaintiff was not “[p]hysically capable of
performing the essential functions of the job.”
(Id.) Dr. Yount stated that Plaintiff became
incapacitated as a result of her condition on July 15, 2016.
(Id.) When Plaintiff contacted Keener in September
about returning to work, she was told that she was not
eligible for re-hire. (Doc. 19-2, PAGIED# 1435).
claims a failure to accommodate in violation of the Americans
with Disability Act, 42 U.S.C. § 12101, et seq.
Defendant has moved for summary judgment on this claim.
Summary Judgment Standard
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). In determining whether genuine
factual issues exist, this Court must “draw all
reasonable inferences in favor of the nonmoving party”
without “mak[ing] credibility determinations or
weigh[ing] the evidence”-indeed, the Court “must
disregard all evidence favorable to the moving party that the
jury is not required to believe.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).