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Cook v. Federal Reserve Bank of Cleveland

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

June 17, 2019

Erica Cook, Plaintiff,
v.
Federal Reserve Bank of Cleveland, Defendant.

          OPINION & ORDER

          JUDGE MICHAEL R. BARRETT

         This 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).

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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).

         On June 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. (Id.)[1]

         On June 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. 18-14).[2]

         On June 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, 18-17).

         On the 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).

         On June 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).[3] 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).[4] 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).

         In a 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).

         On July 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.

         (Doc. 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).[5] 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.

         (Doc. 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.)

         On July 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.” (Id.)

         In a 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).

         However, 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).[6] 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# 1035).

         Leber recommended that Defendant terminate Plaintiff's employment because she was absent on July 15th in violation of her probation. (Doc. 19-3, PAGEID# 1460).[7]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).

         On July 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).

         Plaintiff 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.

         II. ANALYSIS

         A. Summary Judgment Standard

         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). 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).

         B. ...


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