United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
A. Sargus Jr. United States District Judge
matter is before the Court on Defendant Molina Healthcare,
Inc.'s ("Defendant") Motion for Summary
Judgment (ECF No. 26). Plaintiff Richard Redick
("Plaintiff) has responded (ECF No. 28) and Defendant
has replied (ECF No. 29). Thus, the motion is ripe for
review. For the reasons that follow, Defendant's Motion
for Summary Judgment (ECF No. 26) is DENIED.
is a healthcare company headquartered in Long Beach,
California. (Def.'s Mot. Summ. J. at 3, ECF No. 26.)
Plaintiff commenced employment with Defendant on April 2,
2012, in Defendant's Columbus, Ohio office. (Redick Dep.
50:21-23; Ex. 1, ECF No. 23.) Defendant hired Plaintiff as an
end user support specialist. (Id. at Ex. 1.)
Plaintiffs employment was at-will for an indefinite term.
(Id.) Plaintiffs duties were akin to that of
information technology ("IT") personnel. (See
Id. at 67:8-71:4.) His duties included removing and
installing software, protecting patient health information,
and fulfilling Defendant's employees' and
clients' other technological needs. (See Id. at
Plaintiffs 2012 annual performance evaluation, Plaintiffs
overall performance was listed as "meets
expectations." (Id. at Ex. 7.) The 2012
evaluation included positive comments about Plaintiff, such
• Great to work with;
• Can do attitude;
• All incidents assigned to him are resolved or
escalated in a timely manner;
• Can be counted on when overtime is needed;
• Adapts well; and
• Excellent customer service feedback each month.
(Id.) The evaluation also noted Plaintiff needs
improvement in logging tickets for each call. (Id.)
Plaintiff remained in this role from April of 2012 until June
of 2015. (Id. at 62:4-7.)
of 2015, Defendant posted a job application for supervisor of
IT for its east coast region. (Id. at 62:4-20.)
Defendant interviewed and hired Plaintiff for the position.
(Id. at 62:15-23.) This promotion came with a pay
raise and the duty to manage a team of technicians.
(Id. at 62:24-25; Redick Aff. ¶ 5, ECF No.
28-2.) Plaintiffs supervisor in this new position was Patrick
Lee. (Redick Aff. ¶ 31.) When first hired as a
supervisor, Plaintiff managed a team of ten or eleven people.
(Id. at ¶¶ 27-28.)
2016 feedback forms contained positive feedback, much like
his 2012 performance evaluation. (See Redick Dep.
Exs. 10, 11.) This feedback included:
• Always willing to step in to assist on any issue or
• Trying to provide the best service possible;
• Looks for opportunities to improve the processes and
• Very good at keeping his direct reports informed of
any new or changing information;
• Eager to take on new assignments;
• Not afraid to try new ideas;
• Willing to accept constructive feedback; and
• Works hard on his personal weaknesses.
(Id.) In addition, the feedback forms noted
Plaintiff "[s]ometimes deflects questions," and
"has been guilty of pointing fingers in heated
September of 2016, Mr. Lee created a "Supervisor's
Memo to File" ("SMF") for Plaintiffs records.
(Id. at Ex. 9.) Defendant's supervisors create
these files "to document informal verbal counseling or
reminders regarding minor first-time offenses."
(Id.) In contrast, "Disciplinary Action
Notices," ("DAN") are created to document
"serious violations of company policy [or] repeated
performance problems." (Id.) Plaintiffs
September 2016 SMF recorded an occasion when Plaintiff failed
to follow the chain of command to report a process issue.
(Id.) The form noted that Plaintiff
"acknowledged he should have followed the '[c]hain
of [c]ommand' and will going forward."
the end of 2016, Doctor Neil Richard diagnosed Plaintiff with
type 2 diabetes. (Redick Dep. 33:6-8, 34:13-35:16; Redick
Aff. ¶ 8.) Dr. Richard completed Plaintiffs medical
paperwork. (Id.) Plaintiff submitted the paperwork
to Defendant's Leave of Absence ("LOA")
department to apply for leave under the Family and Medical
Leave Act ("FMLA"). (Id. at 77:18- 23;
Redick Aff. ¶ 8.) The LOA department approved FMLA leave
for Plaintiff and notified him of an upcoming meeting to
discuss the details. (Redick Dep. 81:4-15.) Mr. Lee, still
Plaintiffs supervisor at this time, was also informed of, and
invited to, the meeting. (Id.) About ten minutes
after Plaintiff received notice of the upcoming meeting, Mr.
Lee called Plaintiff. (Id. at 81:16- 23.) Mr. Lee
noted that Plaintiff had not informed him he was requesting
FMLA leave and asked for details. (Id. at 81:16-23.)
Mr. Lee also asked if Plaintiff was going to abuse his FMLA
leave, like another agent in their office, by taking
"all kinds of time off." (Id. at 82:1-7.)
Plaintiff stated it was for a medical condition and he would
not abuse it. (Id.) Plaintiff, feeling like Mr.
Lee's questioning intruded into his privacy, reported the
incident to the human resources ("HR") director.
department approved FMLA leave for Plaintiff on an
intermittent basis effective February of 2017 through
February of 2018. (Redick Aff. ¶ 14.) Plaintiff was
entitled to leave at a rate of one hour up to one day per
episode, up to two times per week. (Id; Pl.'s
Resp., Ex. 3.) He was also required to notify his supervisor
of any medical appointments as far in advance as possible.
(Id.) Additionally, the LOA department required
Plaintiff to record his FMLA usage on monthly
"intermittent tracking" logs, have his supervisor
sign the logs, and submit the logs to the LOA department.
(Redick Aff. ¶ 24; Pl.'s Resp., Ex. 4.) Plaintiff
followed all of these requirements when he took leave for
dizziness, nausea, fatigue and other similar symptoms.
(Redick Dep. 83:25, 85:17-25, 86:16-25.)
the LOA department primarily handles Defendant's
employees' FMLA leave, the members of the HR department
are also aware of employees' FMLA leave. (See
Klaus Dep. 29:6-10, ECF No. 27.) Gregory Klaus,
Defendant's HR manager from June or July of 2016 to
October of 2018, testified that the HR department had
knowledge of employees' FMLA leave approval or
disapproval, as well as the parameters the employee had to
follow. (Id. at 8:22-24, 9:13-15, 29:6-10.) In
addition, the supervisors had knowledge of their subordinates
FMLA leave because they were required to sign the monthly
tracking logs. (Redick Aff. ¶¶ 24-25, 34-35;
Manassero Dep. 10:12-18, ECF No. 24.)
of 2017, Plaintiff began reporting to a new supervisor, Alex
Manassero. (Manassero Dep. 9:25-10:1.) Mr. Manassero worked
in Long Beach, California, and thus, was not physically
located in the same office as Plaintiff. (Id. at
10:5-10.) Mr. Manassero knew Plaintiff used intermittent FMLA
leave for a medical condition but did not know the details
about the medical condition. (Id. at 10:11-18.) Mr.
Manassero testified that when he received the position Mr.
Lee "brought [him] up to speed," and they
"discussed [Mr. Lee's] experience with
[Plaintiff]." (Id. at 12:25-13:3.) Mr. Lee told
Mr. Manassero that Plaintiff "needed mentoring,"
because "[h]e frequently would [not] take
accountability." (Id. at 13:5-12.)
of 2017, Defendant implemented a reduction in workforce
called "Project Nickel." (Redick Dep. 87:9-16.)
Plaintiff had both independent contractors and employees
working in his department. (Id. at 87:21-25.)
Project Nickel resulted in the elimination of many
independent contractor positions. (Id. at 88:1-4.)
After Project Nickel, Plaintiff had only four full-time staff
working in his department, two in Columbus and two in
Michigan. (Redick Aff. ¶ 28.) Mr. Klaus testified
Project Nickel was "an adjustment for a number of teams
to do the same work[, ] or more[, ] work with less
resources." (Klaus Dep. 38:12-17.)
August 4, 2017, Mr. Manassero met with Plaintiff to discuss
issues in Plaintiffs performance. (Redick Aff. ¶ 36.)
Then on August 8, 2017, Mr. Manassero issued Plaintiff his
first DAN, listing the performance issues discussed at their
August 4 meeting. (Id; Pl.'s Resp., Ex. 16.)
This was Plaintiffs first formal discipline. (Redick Aff.
¶¶ 39-40.) The DAN stated "final
warning." (Pl.'s Resp., Ex. 16.)
first issue listed on the DAN was "inappropriate
behavior," described as "being too loud and using
curse words with a subordinate." (Manassero Dep.
17:1-7.) Matthew Bachman, a supervisor in another department
near Plaintiffs department, had previously emailed Plaintiff
regarding this concern. (Redick Dep. Ex. 12; 109:9-24;
Manassero Dep. 17:16-22.) The subordinate Mr. Bachman
mentioned was Michael Bennet. (Id. at 100:25-101:2.)
Plaintiff states he took "immediate action" by
meeting with Mr. Bennet and Mr. Bachman to discuss the noise
issues. (Redick Aff. ¶ 37; Manassero Dep. 31:7-11.)
second issue listed on the DAN stated that Plaintiff
"failed to deliver coaching to his team" in May of
2017, June of 2017, and July of 2017. (Redick Dep., Ex. 16.)
Plaintiff testified he did not have access to the internet
system required to log the coaching. (Id. at
119:16-25.) Instead, Plaintiff was using older manual forms
to log his coaching. (Id. at 120:2-10.) Plaintiff
had notified Mr. Manassero of this problem and his use of
manual forms. (Pl.'s Resp., Ex. 15.)
third issue on the DAN was availability. (Redick Dep. Ex.
16.) The DAN stated "[d]uring normal business hours
Plaintiff puts up an auto away message in his email."
(Id.) It also stated that "[i]t is
management's [sic] responsibility to be available and
responsive during working hours and when on call after
hours." (Id.) Plaintiff states he
"immediately stopped using the [o]ut of [o]ffice'
email replies [when] management told [him] this was an
issue." (Redick Aff. ¶ 51; see also Redick
Dep. 134:3-19.) Plaintiff explained that he used these emails
to communicate to others he would respond within the required
time frame. (Id.)
the DAN listed "lack of follow through," stating
that Plaintiff had failed to complete a required training.
(Redick Dep. Ex. 16.) In response to the DAN, Plaintiff
submitted a rebuttal to Mr. Klaus and noted "I feel that
my FMLA is being used against me." (Redick Aff.
September of 2017,  Mr. Manassero filed a SMF that detailed
several issues in Plaintiffs performance. (Pl.'s Resp.,
Ex. 11.) The issues were: (1) tickets left in Plaintiffs
team's queue for a month without being answered; (2) Mr.
Bennet's failure to read the details in a ticket before
asking a customer a question; (3) Plaintiff failing to
follow-up with a customer after-hours; and (4) Mr. Bennet
emailing a customer inappropriately. (Id.) Mr.
Manassero spoke informally with Plaintiff regarding these
issues. (Redick Aff. ¶ 62.) Plaintiff did not know that
Mr. Manassero filed this discussion as a SMF. (Id.)
September of 2017, Plaintiff took intermittent FMLA leave on
the 5th, 12th, 21st, 25th, and 26th. (Pl.'s Resp., Ex.
5.) On September 26, 2017, Mr. Manassero emailed Mr. Klaus
recommending immediate termination and stating, "Mr.
Redick cannot perform his job duties." (Klaus Dep. Ex.
1.) In response, Mr. Klaus asked for "concrete
examples" of Plaintiffs deficiencies. (Id.) Mr.
Manassero and Mr. Klaus exchanged further emails, discussing
Plaintiff and Mr. Bennet. (Id.) In one email, Mr.
Klaus expressed concern about holding Plaintiff accountable
as a manager for Mr. Bennet's behavior without holding
Mr. Bennet accountable as well. (Id.) On September
29, 2017, Mr. Klaus told Mr. Manassero that the HR department
was "supportive of [Mr. Manassero's] request for
October 5, 2017, Plaintiff took FMLA leave. (Redick Aff.
¶ 65.) He returned to work on October 6, 2017.
(Id. at ¶ 66.) Defendant terminated ...