[Cite as Geter v. Dept. of Rehab. & Corr., 2018-Ohio-4148.]




GERALD L. GETER                                        Case No. 2016-00642JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Holly True Shaver
       v.
                                                       DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant

        {¶1} On July 19, 2018, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). With leave of court, plaintiff filed a response in opposition on August
16, 2018. On August 23, 2018, defendant filed a motion for leave to file a reply, which
was filed on August 30, 2018. Upon review, defendant’s motion for leave to file a reply
is GRANTED. The motion for summary judgment is now before the court for a non-oral
hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
Case No. 2016-00642JD                        -2-                                  DECISION


       {¶4} In 1995, plaintiff began his employment as a Corrections Officer (CO) for
defendant at the Ohio Reformatory for Women (ORW). Plaintiff was a member of a
collective bargaining unit. Defendant has two disciplinary tracks: performance and
attendance.    On December 11, 2014, plaintiff entered into a two-year Last Chance
Agreement (LCA) as a result of multiple attendance policy violations, which took place
between 2010 and 2014. The LCA stated that plaintiff would be subject to removal for
“any and all future violations of the Standards of Employee Code of Conduct
Attendance-Based Standards Track.”          (Exhibit 5 to plaintiff’s December 19, 2016
deposition.)
       {¶5} Plaintiff suffers from diabetes, bi-polar disorder, insomnia, and high blood
pressure. Plaintiff takes medication for his conditions, one of which is Seroquel, a sleep
aid. On October 23, 2015, plaintiff worked first shift as scheduled and completed his
shift at approximately 2:30 p.m.      Later that day, plaintiff was called for a voluntary
overtime shift. After first shift, plaintiff had taken a low dose of Seroquel in an attempt to
get some sleep. According to plaintiff, if he had refused the overtime shift, he would
have violated his LCA. Plaintiff reported to work for third shift and was assigned to
perimeter patrol, during which time his duties included driving a vehicle around the
perimeter of ORW to look for any suspicious activity.           Two COs are assigned to
perimeter patrol during a shift. Plaintiff was issued a handgun which was secured in a
holster on his person, and a shotgun secured in the trunk of his vehicle. During third
shift, the other CO who was also assigned to perimeter patrol reported to the shift office
that she had not seen plaintiff’s vehicle making security rounds for twenty minutes.
After searching for his vehicle, Lieutenants David Rispress and Laura Perna found
plaintiff’s vehicle parked on a gravel road with the lights off and the engine idling. When
they approached his vehicle, they found plaintiff asleep. After observing plaintiff for
approximately five minutes, Lt. Perna knocked on the car window and woke him up.
Plaintiff was removed from his post and was told to report to the Captain’s office.
Case No. 2016-00642JD                            -3-                                   DECISION


Plaintiff was then told to visit the infirmary for a medical examination. Defendant asserts
that plaintiff was ordered to report to a different post within the building for the
remainder of his shift. Plaintiff asserts that he was given the choice of either reporting
to the other post or going home. After visiting the infirmary, plaintiff left the institution.
       {¶6} Plaintiff was issued two notices of termination on two separate bases:
(1) sleeping in a perimeter vehicle while on duty, a performance violation, and
(2) leaving the institution without permission, an attendance violation and a violation of
his LCA. After an investigation and a hearing, plaintiff’s employment was terminated on
January 19, 2016.
       {¶7} Plaintiff asserts that once he began taking intermittent Family and Medical
Leave Act (FMLA) leave for his disabilities, he was targeted for removal and harassed.
For example, plaintiff asserts that Roger Keller, a human resources employee, revoked
his FMLA leave after it had been granted for a hospitalization that occurred in August
2015. In addition, plaintiff asserts that Keller called him a “lazy piece of shit” and a
“motherfucker” when he provided him with FMLA paperwork, and that Keller kept a “hit
list” of employees who were on FMLA leave in the scheduling office. Plaintiff argues
that the reasons given for his termination were a pretext for disability discrimination
because he was not sleeping, but, rather, he “passed out” as a result of a diabetic
episode and taking Seroquel to treat his bi-polar disorder. Defendant asserts that it is
entitled to summary judgment on all of plaintiff’s claims.

Disability Discrimination
       {¶8} R.C.    4112.02     provides,   in     pertinent   part,    that: “It   shall   be   an
unlawful discriminatory practice: (A) For any employer, because of the * * * disability
* * * of any person, to discharge without just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges   of employment,       or any     matter     directly   or    indirectly    related   to
employment.” In Ohio, “federal case law interpreting Title VII of the Civil Rights Act of
Case No. 2016-00642JD                       -4-                                 DECISION


1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases
involving alleged violations of R.C. Chapter 4112.”       Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981). To
prevail in an employment discrimination case, a plaintiff must prove discriminatory intent
and may establish such intent through either direct or indirect methods of proof. Ricker
v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998), citing Mauzy v.
Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996). In the absence of the direct method
of proof of discrimination, a plaintiff may indirectly demonstrate discriminatory intent
using the analysis provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       {¶9} To establish a prima facie case of discriminatory discharge, a plaintiff must
show that: (1) he is disabled, (2) he was otherwise qualified for the position, with or
without reasonable accommodation, (3) he suffered an adverse action, (4) the employer
knew or had reason to know of his disability, and (5) he was replaced or the job
remained open.” Hartman v. Ohio DOT, 10th Dist. Franklin No. 16AP-222, 2016-Ohio-
5208, ¶ 18, citing Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th
Cir.2012). As stated in Hartman, supra, the elements of a prima facie case can vary
based on the circumstances of the case.           See Demyanovich v. Cadon Plating &
Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir.2014) (stating the elements as “(1) he is
disabled, (2) he is otherwise qualified to perform the essential functions of a position,
with or without accommodation, and (3) he suffered an adverse employment action
because of his disability.”)
       {¶10} Defendant concedes for purposes of argument only, that plaintiff has stated
a prima facie case of disability discrimination. “If the plaintiff establishes a prima facie
case, then the burden of production shifts to the employer to present evidence of ‘a
legitimate, nondiscriminatory reason’ for the employer’s rejection of the employee.”
Williams v. City of Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 12. Defendant has
produced evidence to show that plaintiff had been issued an LCA for attendance issues
Case No. 2016-00642JD                          -5-                               DECISION


at the time of his termination, and that one reason he was terminated was for leaving
the institution without permission after he was examined at the infirmary. Defendant
has also provided evidence to show that plaintiff was found sleeping in his perimeter
vehicle.   Part of the investigation of that incident included interviews, witness
statements, and a hearing.       Thus, even construing the evidence most strongly in
plaintiff’s favor, the court finds that defendant has met its burden of production that it
had legitimate, nondiscriminatory reasons to terminate plaintiff’s employment.
       {¶11} “If the employer meets its burden of production, ‘the plaintiff must then
have an opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.’” Id. at ¶ 14, quoting Texas Dept. of Comm. Affairs v. Burdine, 450 U.S.
248, 253 (1981). “To establish pretext, a plaintiff must demonstrate that the proffered
reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct. Dews v. A.B. Dick
Co., 231 F.3d 1016, 1021 (6th Cir.2000). Regardless of which option is chosen, the
plaintiff must produce sufficient evidence from which the trier of fact could reasonably
reject the employer’s explanation and infer that the employer intentionally discriminated
against him. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003). A reason
cannot be proved to be a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993).” Knepper v. Ohio State Univ., 10th Dist. Franklin No.
10AP-1155, 2011-Ohio-6054, ¶ 12. “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Burdine, supra, at 253.
       {¶12} Regarding whether the proffered reason for plaintiff’s termination had no
basis in fact, plaintiff asserts that he was given the option to either return to a different
post or go home after his medical evaluation, thus, he was not absent without leave.
Case No. 2016-00642JD                        -6-                                 DECISION


Plaintiff also argues that he “passed out” because of either his disabilities or the
medication he takes, so he was not sleeping. Essentially, plaintiff disputes the facts as
found during defendant’s investigation. However, plaintiff must “provide more than a
simple denial of the conduct giving rise to the discharge.” Wigglesworth v. Mettler
Toledo Int’l. Inc., 10th Dist. Franklin No. 09AP-411, 2010-Ohio-1019, ¶ 19. In addition,
a “bare assertion” that defendant’s reasons have no basis in fact “fails to create a
genuine issue of material fact” for summary judgment purposes. Hall v. Ohio State
Univ. College of Humanities, 10th Dist. Franklin No. 11AP-1068, 2012-Ohio-5036, ¶ 36.
Accordingly, plaintiff has not presented evidence from which the court can infer that the
proffered reason for his termination had no basis in fact.
       {¶13} Plaintiff asserts that defendant’s stated reasons for terminating his
employment were insufficient because plaintiff asserts that he had permission to leave
the institution after he went to the infirmary, and that no one gets fired for sleeping on
the job. To support his arguments, plaintiff asserts that Lt. Rispress lied when he stated
that plaintiff did not have permission to go home. Plaintiff also mentions names of other
employees who have fallen asleep on the job but have not been disciplined. However,
the disciplinary grid for performance track violations specifically states that the first
offense of sleeping on duty may result in either a two-day fine, suspension or working
suspension, or a removal. (See Exhibit 1 to plaintiff’s December 19, 2016 deposition,
Bates Nos. ORW 002417, ORW 002414.) Therefore, even construing the evidence
most strongly in favor of plaintiff, and even if Lt. Rispress was mistaken when he stated
that plaintiff had left the institution without permission, the only reasonable conclusion is
that plaintiff’s conduct, by falling asleep in the perimeter vehicle, warranted his
termination.   Moreover, “[s]o long as the employee’s misconduct is related to the
performance of [his] job, an employer may discipline or terminate the employee even if
[his] misconduct was caused by [his] disability.” Sper v. Judson Care Ctr. Inc., 29
F.Supp.3d 1102, 1110 (S.D. Ohio 2014). Accordingly, the court finds that plaintiff has
Case No. 2016-00642JD                        -7-                                  DECISION


failed to produce sufficient evidence from which the court can reasonably reject the
employer’s explanation and infer that the employer intentionally discriminated against
plaintiff.
        {¶14} Lastly, plaintiff asserts that the proffered reasons for his termination did not
actually motivate defendant’s conduct, because Keller had a discriminatory animus
toward him for using FMLA leave for his disabilities. Plaintiff points to Keller’s remarks
of calling him a “motherfucker” and a “lazy piece of shit.”          Despite these alleged
comments, Keller testified that he was not a decision-maker in plaintiff’s termination. In
addition, defendant filed the affidavit of Ronette Burkes, who avers, in part:
        {¶15} “2. I am employed by Defendant as the Warden at the Ohio Reformatory
for Women (ORW). I have held this position since November 2013. In this role, I am the
appointing authority and responsible for making all employee hiring and discipline
decisions, including termination.
        {¶16} “3. In December 2015, I issued two notices of termination to Gerald Geter,
a correctional officer at the time. He had engaged in two separate and distinct rule
violations and termination was warranted under either one independently. One basis for
termination was his violation Employee Conduct Rule 10:            Sleeping on duty.     Two
supervisors observed him sleeping in the perimeter vehicle. This is a performance track
infraction and termination was warranted because of the severity of the situation. A
separate and independent basis for termination was violation of Rule 3G: Leaving the
work area/post/facility without the permission of a supervisor. He was on a last chance
agreement and this attendance track infraction violated that agreement.             Attached
hereto as Exhibit A are true and accurate copies of the Notices that were issued to
Mr. Geter.
        {¶17} “4. These two incidents were investigated by Captain Josette Okereke and
she recommended further action. Roger Keller was not involved in the investigation and
I did not consult or speak with him about this matter when making my decision to issue
Case No. 2016-00642JD                       -8-                                 DECISION


the two notices of termination.       My decision was not based on any disability that
Mr. Geter may have, or his need to take FMLA leave.” (Emphasis added.)
       {¶18} Construing the evidence most strongly in plaintiff’s favor, the only
reasonable conclusion is that defendant’s stated reasons for terminating plaintiff were
not pretextual. Accordingly, defendant is entitled to summary judgment on plaintiff’s
claim of disability discrimination.

FMLA
       {¶19} The FMLA makes it “unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided under this
subchapter.” 29 U.S.C. 2615(a). Two distinct theories of recovery arise under these
statutes: the “interference” theory, and the “retaliation” theory. See Arban v. West
Publishing Corp., 345 F.3d 390, 400-401 (6th Cir. 2003.)
       {¶20} For an interference claim, a plaintiff must establish that: “(1) he was an
eligible employee, (2) defendant was a covered employer, (3) he was entitled to leave
under the FMLA, (4) he gave defendant notice of his intent to take leave, and (5) the
defendant denied him FMLA benefits or interfered with FMLA rights to which he was
entitled.” Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 482 (6th
Cir. 2010). The employer’s intent is not a relevant part of the interference inquiry.
Arban, at 401.     However, “interference with an employee’s FMLA rights does not
constitute a violation if the employer has a legitimate reason unrelated to the exercise of
FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Prods., 443 F.3d
501, 508 (6th Cir.2006).
       {¶21} Plaintiff asserts that Keller “revoked” his request for FMLA leave after it had
been approved for a hospitalization that occurred in August 2015. Exhibit F to plaintiff’s
May 21, 2018 deposition is a notice, dated September 15, 2015, from Keller which
sought “sufficient certification” to support his request for FMLA leave beginning on
August 27, 2015.      Once that paperwork was received, plaintiff’s FMLA leave was
Case No. 2016-00642JD                       -9-                                 DECISION


granted. (Defendant’s Ex. I.) Defendant points to its Exhibits G, H, I, and J to show that
every time that plaintiff requested FMLA leave and filled out the certification forms
correctly, he was granted leave. Construing the evidence most strongly in plaintiff’s
favor, the only reasonable conclusion is that defendant did not deny plaintiff his FMLA
benefits or interfere with his FMLA rights. Accordingly, plaintiff’s FMLA interference
claim fails as a matter of law.
       {¶22} Under the retaliation theory “the employer’s motive is relevant, and the
issue is whether the employer took the adverse action because of a prohibited reason
or for a legitimate nondiscriminatory reason.” Hodgens v. Gen. Dynamics Corp., 144
F.3d 151, 160 (1st Cir.1998.) The court applies the burden-shifting test articulated in
McDonnell Douglas, supra, to retaliation claims under the FMLA.           Skrjanc v. Great
Lakes Power Serv. Co., 272 F.3d 309, 315-16 (6th Cir.2001.) Plaintiff can establish a
prima facie case of FMLA retaliation by showing that (1) he availed himself of a
protected right under the FMLA by notifying defendant of his intent to take leave, (2) he
suffered an adverse employment action, and (3) that there was a causal connection
between the exercise of his rights under the FMLA and the adverse employment action.
Id., at 314. If plaintiff satisfies these three requirements, the burden shifts to defendant
to proffer a legitimate, nondiscriminatory rationale for discharging the employee. Id. at
315.
       {¶23} Plaintiff asserts that Keller had a discriminatory animus toward him
because he availed himself of FMLA leave.         Specifically, plaintiff points to his own
testimony and the testimony of Shavelle Little to show that Keller called plaintiff a “lazy
piece of shit” and a “motherfucker,” when Keller “threw” a packet of papers at him
regarding his FMLA certification. Even assuming these facts as true, plaintiff has not
provided evidence to show a causal connection between the exercise of his rights under
the FMLA and his termination.         For the same reasons that plaintiff’s disability
discrimination claim fails, his claim of FMLA retaliation fails, because Keller was not a
Case No. 2016-00642JD                        -10-                                DECISION


decision-maker in plaintiff’s termination. Thus, plaintiff has failed to present evidence
from which the court can infer a causal connection between the exercise of his FMLA
rights and his termination.
       {¶24} Lastly, although plaintiff did not specifically argue that Keller’s comments
were direct evidence of discrimination, construing the evidence most strongly in
plaintiff’s favor, the only reasonable conclusion is that Keller’s comments are not direct
evidence of discrimination. “Direct evidence is evidence that, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Ceglia v. Youngstown State Univ., 10th Dist. Franklin No. 14AP-864, 2015-
Ohio-2125, ¶ 16. “[D]irect evidence of discrimination does not require a factfinder to
draw inferences in order to conclude that the challenged employment action was
motivated at least in part by prejudice against members of the protected group.”
Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003).                The only reasonable
conclusion is calling plaintiff a “motherfucker” does not require the conclusion that he
was terminated because of his disabilities or because he took FMLA leave. Moreover,
Keller’s comment that plaintiff was a “lazy piece of shit” does not require the conclusion
that he was terminated for his disabilities or for taking FMLA leave. Finally, plaintiff has
not presented evidence to rebut defendant’s affidavit from Burkes showing that Keller
was not a decision-maker in plaintiff’s termination. Accordingly, summary judgment
shall be rendered in favor of defendant on all of plaintiff’s claims.




                                            PATRICK M. MCGRATH
                                            Judge
[Cite as Geter v. Dept. of Rehab. & Corr., 2018-Ohio-4148.]




GERALD L. GETER                                        Case No. 2016-00642JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Holly True Shaver
       v.
                                                       JUDGMENT ENTRY
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶25} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.            For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. Court
costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                                    PATRICK M. MCGRATH
                                                    Judge

Filed September 26, 2018
Sent to S.C. Reporter 10/12/18
