United States District Court, S.D. Ohio, Eastern Division
Deavers Chief Magistrate Judge.
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion for
Summary Judgment. (ECF No. 36.) Plaintiff filed a Memorandum
Contra to the Motion (ECF No. 47), and Defendant filed a
Reply (ECF No. 48). The matter is now ripe for decision.
STATEMENT OF THE FACTS
Lowes began working at the Franklin County Sheriff's
Office (“FCSO”) in 2004, and at the time of her
termination on July 20, 2017, she worked as a deputy. (Shari
Lowes Dep. 52:15-17, 55:6-10, ECF Nos. 28-29.) Defendant
Dallas Baldwin was the Franklin County Sheriff at the time of
Ms. Lowes's termination. (Amended Compl. ¶ 7, ECF
No. 18; Lowes Dep. 263:10-15.)
Lowes has suffered from post-traumatic stress disorder
(“PTSD”) since December 2012, and she was
formally diagnosed in winter 2013. (Lowes Dep. 42:6-12,
213:1-10.) While the severity of her illness has ebbed at
times-to the point where she thought she might have been
cured-Ms. Lowes's diagnosis was reaffirmed as recently as
2016. (Id. 96:13-97:25.) Ms. Lowes's PTSD caused
her to have asthma and frequent migraines. (Id.
42:13-16; 108:19:23.) She also had a more difficult time
dealing with stress than the average person. (Id.
98:25-99:5.) For example, during stressful times, Ms. Lowes
found it difficult to engage in daily activities, including
taking a shower. (Id. 98:18-24.) She contends that
her PTSD impeded her ability to come to work on occasion and
that it may have impeded her ability to work at times, too.
(Id. 119:11-24; Shari Lowes Aff. ¶ 4, ECF No.
April 2013, Ms. Lowes requested and was granted permission to
take intermittent leave pursuant to the Family and Medical
Leave Act (“FMLA”) for migraines and for
stress/anxiety. (Lowes Dep. Ex. 10, ECF No. 30, at 1-7;
id. Ex. 11, ECF No. 44-6.) Based on the information
provided by Ms. Lowes's doctors, the FCSO allowed Ms.
Lowes to take intermittent leave for one to two days at a
time one to two times each week (for her stress/anxiety) or
every two weeks (for her migraines). (Id. Ex. 10,
11.) Neither FMLA designation contained an expiration date.
(Id.) In October 2013, Ms. Lowes requested and was
granted permission to take intermittent FMLA leave for her
PTSD one to two times per month for one to ten days at a time
until January 18, 2014. (Id. 111:10-17; id.
Ex. 12, ECF No. 30, at 8-17.) Ms. Lowes continued to use FMLA
leave in the following years, including in 2016. (Annetta
Rogers Aff. ¶ 4, ECF No. 36-2.)
in approximately 2015, Ms. Lowes worked the first shift at
one of the FCSO jails. (Lowes Dep. 56:22-57:21.) In that
position, Ms. Lowes was supervised by Corporal Joseph Brown,
Corporal Melissa Ford, Sergeant Mandy Rennie, and Lieutenant
Greg Goodrich. (Id. 58:12-20, 104:11-105:9.) Ms.
Lowes sought to switch to the third shift, because she
thought that making this change would be better for her PTSD.
(Id. 57:9-13.) At some point in 2016, Ms. Lowes
informed Corporals Brown and Ford that she had PTSD and that
her current work assignment was exacerbating her condition,
and she requested a different work assignment. (Id.
58:12-20, 104:7-105:20.) In response, Corporals Ford and
Brown said that they would do what they could. (Id.
February 2017, Ms. Lowes told Sergeant Rennie and Lieutenant
Goodrich that she had PTSD, and she again requested a
different work assignment. (Id. 65:5-14,
103:25-104:6.) Ms. Lowes ultimately received a different work
assignment, although she believes that she was given a less
desirable assignment and that she was given a different
assignment not because of her PTSD but because she was
disliked. (Id. 128:18-129:8, 179:15-180:22.)
months later, after a vacancy arose, Ms. Lowes applied and
was hired for a position on the third shift. (Id.
65:15-23.) Ms. Lowes worked the third shift from spring 2017
until the time of her termination. (Id. 56:17-19,
64:8-9.) After moving to the third shift, Ms. Lowes told
Sergeant Shelley Stonerook and Sergeant Deb Thompson, her new
supervisors, that she had PTSD. (Id. 106:18-21.)
on Ms. Lowes's job description, her job as a deputy could
only be carried out while physically present at the jail.
(Id. Ex. 2, ECF No. 44-1.) Her job description said
nothing about minimum attendance requirements, but it did
require compliance with the FCSO rules and regulations.
(Id.) Ms. Lowes understood that one of her job
duties was that she had to come to work. (Id.
FCSO has emphasized the importance of consistent attendance
by its deputies. If there are not enough deputies on a shift,
FCSO employees generally must work overtime by either staying
late or coming in early. (Id. 73:19-25.) This has a
negative impact on the safety of the facility as well as on
jail administration and the budget. (Michael Flynn Aff.
¶ 5, ECF No. 36-1.) Sometimes supervisors were denied
the ability to generate overtime, and a jail would need to
operate understaffed. (Lowes Dep. 74:19-21.)
The FCSO's Leave Policies
the relevant period of Ms. Lowes's employment all FCSO
employees requesting leave were required to fill out a
Request for Leave form (the “RFL”). (Id.
131:21-132:3; id. Ex. 13, ECF No. 44-7.) All RFLs
were required to be submitted in advance of the time off,
except for unforeseen sick leave. (Id. Ex. 13, at
1.) The RFL required that the employee requesting leave
specify the type(s) of leave and number of hours requested.
(Id. at 2.) All leave had to be approved by the
employee's supervisors. (Id. at 3.)
FCSO also had a policy specific to sick leave (the
“Sick Leave Policy”). (Id. Ex. 14, ECF
No. 30, at 20-25.) Pursuant to the Sick Leave Policy, an
employee returning to work after being out sick was obligated
to submit an RFL to request her leave retroactively.
(Id. at 22.) Section 3.5 of the Sick Leave Policy
said that an employee's “[a]ccrued sick
leave” equaled the amount “reported on the most
recent pay stub prior to the mark off less any subsequent
leave use.” (Id.)
Sick Leave Policy stated that employees who requested sick
leave but who did not have sufficient sick leave and
“mark[ed] off sick for a condition that [did] not
qualify under the FMLA” were “subject to
discipline for sick leave abuse.” (Id. at 23.)
The Sick Leave Policy also provided that other leave could
not be used in lieu of sick leave unless the employee took
leave “for an FMLA approved condition” or
received advance permission from the Sheriff. (Id.)
The FCSO warned its employees that those with “a
pattern of absenteeism [might] be subject to discipline up
[to] and including removal . . . .” (Id. at
24.) The FCSO denies having a policy of allowing employees to
use other types of leave in lieu of sick leave except for an
FMLA-qualifying condition, as specified in the Sick Leave
Policy. (Michael Flynn Dep. 159:16-23, ECF No. 46.)
2016-18 Collective Bargaining Agreement (the “FOP
CBA”) between the FCSO and the Fraternal Order of
Police (“FOP”), Ms. Lowes's union, outlined
additional rules governing sick leave for FCSO employees.
(Lowes Dep. Ex. 15, at 62-64, ECF No. 31.) Specifically, the
FOP CBA said that union members earned 4.6 hours of sick
leave “for eighty (80) or more hours while on active
pay status in a pay period.” (Id. at 63.) This
is in line with Ohio state law, which entitles county
employees to 4.6 hours of sick leave “for each
completed eighty hours of service.” Ohio Rev. Code Ann.
§ 124.38 (West 2019). The FCSO contends that sick leave
is not available for use until it appears on the
paycheck-that is, until payroll is run for the period during
which the sick leave was accrued. (Rogers Aff. ¶ 6.)
Like the Sick Leave Policy, the FOP CBA also stated that
other leave may not be used in lieu of sick leave unless the
employee's reason for taking leave “qualifie[d]
under the FMLA” or she received advance permission from
the Sheriff. (Lowes Dep. Ex. 15, at 64.)
Shari Lowes's Disciplinary History
August 2008 and December 2011, Ms. Lowes was disciplined six
times for sick leave abuse for being absent without
sufficient sick leave. (Id. Exs. 29-36, ECF No. 33,
at 1-25.) In fall 2013, the FCSO notified Ms. Lowes that she
was being disciplined for the seventh time for being absent
without sufficient sick leave. (Id. Ex. 37, ECF No.
33, at 26.) On December 16, 2013, Ms. Lowes, the FOP, and the
FCSO agreed to a Memorandum of Understanding whereby Ms.
Lowes received a fifteen-day suspension; however, the parties
agreed that Ms. Lowes would not need to serve the suspension
as long as she was not subject to discipline for unauthorized
absenteeism between October 6, 2013, and October 5, 2015.
(ECF No. 33, at 29-30.)
Lowes failed to make it through this period without incurring
another leave violation. In May 2014, she was notified of an
eighth allegation that she had been absent without sufficient
sick leave. (Lowes Dep. Ex. 39, ECF No. 33, at 31.) In lieu
of a suspension, Ms. Lowes, the FCSO, and the FOP entered
into a Last Chance Agreement on June 5, 2014 (the
“LCA”). (Id. at 32.) Pursuant to the
LCA, the parties agreed that “[i]f at any time before
May 27, 2017, the FCSO establishe[d] any future” sick
leave abuse violations “occurring between May 27,
2014[, ] and May 27, 2017, Deputy Lowes [would] be subject to
termination for said misconduct.” (Id.) The
parties further agreed that the LCA would be extended
“for any periods of leave in excess of thirty (30)
consecutive days including, but not limited to, vacation,
sick, disability, injury and Workers' Compensation
February 7, 2017, Ms. Lowes was notified that she was
ineligible for leave under the FMLA because she had worked
less than 1, 250 hours during the preceding twelve months.
(Id. 170:1-10; id. Ex. 16, ECF No. 32, at
1.) Ms. Lowes disagreed with this conclusion because she
claims that the time that she had to take off was not her
fault. (Id. 170:11-19.) Ms. Lowes is aware that one
must be eligible under the FMLA to be able to take FMLA
leave. (Id. 172:23-25.)
April 12, 2017, Ms. Lowes submitted an RFL requesting sixteen
hours of sick leave after being out of work the prior two
days. (Lowes Dep. Ex. 19, ECF No. 32, at 2.) On April 14,
2017, Ms. Lowes received her pay stub for the March 20, 2017,
to April 2, 2017, pay period, which showed her with a leave
balance of 21.671 hours of sick leave. (Compl. Ex. 2, ECF No.
1, at 20.) This leave balance did not account for the sixteen
hours of leave that Ms. Lowes had requested on April 12.
(Lindsay Rasey Dep. 65:22-66:10, ECF No. 43.) Subtracting
those hours would have resulted in a balance of 5.671 hours.
April 26, 2017, Ms. Lowes called off of her shift, which was
scheduled to begin at 11:00 p.m., due to a migraine resulting
from her PTSD. (Lowes Dep. 155:5-23, 353:4-15.) When Ms.
Lowes returned to work on her next scheduled work day, she
submitted an RFL requesting eight hours of sick leave for the
shift that she missed on April 26. (Id. Ex. 42, at
11, ECF No. 44-12.) Ms. Lowes affirmed on the RFL that her
absence was for an FMLA qualifying condition, although she
did not specify the condition. (Id.) Ms. Lowes did
not tell her supervisors or anyone in human resources that
her absence was due to her PTSD until her disciplinary
proceedings began. (Id. 157:21-158:18.) She is
unaware whether anyone in human resources or payroll knew
about the purpose of her absence. (Id.
to requesting sick leave for her absence on April 26, Ms.
Lowes consulted her pay stub from April 14, and based on the
information on that pay stub and the fact that another pay
period had since concluded on April 16, Ms. Lowes thought
that she had sufficient leave. (Id. 201:16-23.) Ms.
Lowes was under the belief that she earned her 4.6 hours of
sick leave at the end of each pay period (i.e., after having
worked eighty hours). (Id. 195:11-19, 202:2-8.) In
other words, according to Ms. Lowes, she believed that she
had earned an additional 4.6 hours of sick leave as of April
17 after the close of the April 16 period. Adding that to her
prior leave balance of 5.671 hours would have resulted in a
total leave balance of 10.271 hours.
FCSO disagreed, maintaining that sick leave accrues as of the
pay date. (Annetta Rogers Dep. 100:22-101:5, ECF No.
27.) The upshot of that would be that Ms. Lowes would not
have accrued her next 4.6 hours of sick leave until her next
pay date on April 28, 2017. (Rasey Dep. 41:23-43:9.)
According to the FCSO, that meant that as of April 26, 2017,
Ms. Lowes's total leave balance remained 5.671 hours.
Accordingly, the payroll department determined that Ms. Lowes
had insufficient leave (5.671 hours) to satisfy her RFL
(eight hours) and marked her as “AWOL” for
slightly over two hours. (ECF No. 33, at 34-35, 45.)
28, 2017, Ms. Lowes and FOP representatives attended a
pre-disciplinary meeting with representatives of the FCSO.
(Id. at 35.) At this meeting, Ms. Lowes told the
FCSO that she would do anything to keep her job, and her
union representative proposed an extension of the LCA in lieu
of termination. (Id.)
Ms. Lowes was asked when she had requested an accommodation
rather than being marked AWOL, she responded with the
I believe when I spoke with Lindsay [Rasey] in the preterm
hearing, it was made very clear that I have PTSD and
that's why I took that time off. At that point in time we
should have put the brakes on and what you've done here
should have been done then.
[A]ctually on the eDocs when I put that it was an
FMLA-approved condition. That's when there should have
been something that should have been flagged to someone to
say what's this about.
(Id. 168:24-169:4, 169:12-16.) Ms. Lowes made no
other request for an accommodation. (Id.
173:16-175:25.) She blames the FCSO and her supervisors for
failing to help her upon disclosure of her PTSD, or to ensure
her well-being. (Id. 264:8-265:15, ...