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Lowes v. Baldwin

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

December 30, 2019

Shari Lowes, Plaintiff,
Dallas Baldwin, Defendant.

          Deavers Chief Magistrate Judge.



         This 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.


         Shari 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.)

         Ms. 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. 47-3.)

         In 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.)

         Beginning 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. 105:21-25.)

         In 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.)

         A few 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.)

         Based 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. 75:9-14.)

         The 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.)

         A. The FCSO's Leave Policies

         During 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.)

         The 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.)

         The 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.)

         The 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.)

         B. Shari Lowes's Disciplinary History

         Between 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.)

         Ms. 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 leave.” (Id.)

         Around 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.)

         On 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.

         On 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. 234:18-235:4.)

         Prior 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.

         The 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.)

         On June 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.)

         When Ms. Lowes was asked when she had requested an accommodation rather than being marked AWOL, she responded with the following answers:

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, ...

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