[Cite as Moscato v. Ohio State Univ., 2013-Ohio-3631.]



                                                         Court of Claims of Ohio
                                                                                      The Ohio Judicial Center
                                                                              65 South Front Street, Third Floor
                                                                                         Columbus, OH 43215
                                                                               614.387.9800 or 1.800.824.8263
                                                                                          www.cco.state.oh.us

ELAINE MOSCATO

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY, et al.

       Defendants

Case No. 2011-06552

Magistrate Anderson M. Renick

DECISION OF THE MAGISTRATE

        {¶ 1} Plaintiff brought this action alleging claims of both age and disability
discrimination, and violation of her rights under the Family and Medical Leave Act
(FMLA), 29 U.S.C. 2611 et seq. The issues of liability and damages were bifurcated
and the case proceeded to trial on the issue of liability.1
        {¶ 2} In August 2002, plaintiff began her employment as a teacher at the
Nisonger Center at The Ohio State University (OSU). The Nisonger Center’s Early
Childhood Education program (ECE) serves students with developmental disabilities. In
January 2010, Sara Thiessen (nka Sara Thomson) became plaintiff’s supervisor when
she was appointed as Interim Coordinator at the Nisonger Center.                              Prior to her
appointment, Thiessen had worked as a teacher at the Nisonger Center.
        {¶ 3} In the summer of 20102, plaintiff was diagnosed with a thyroid condition and
her treating physician recommended surgical removal of the organ. Plaintiff testified
that she delayed the surgery so that she could teach during the first two weeks of the
school year while her new students adjusted to school.                        The thyroid surgery was
performed on September 14, and plaintiff returned to work on September 24, earlier

        1
         Plaintiff’s February 7, 2013 motion to file a surreply is GRANTED.
Case No. 2011-06552                              -2-                                  DECISION

than her doctor had recommended. Plaintiff’s physician subsequently informed her that
a biopsy showed evidence of cancer and that additional medical care was necessary,
including blood tests and radiation treatment.
       {¶ 4} On or about October 10, plaintiff informed Thiessen of the cancer diagnosis
and she notified Thiessen that she would need time off for occasional medical
appointments, including an extended absence in December to receive radiation
treatments. Both plaintiff and Thiessen acknowledged that Thiessen was responsible
for scheduling substitute teachers. Michael Moscato, plaintiff’s husband, testified that
he communicated with Kim Oyer, the human resources (HR) representative for the
Nisonger Center, regarding plaintiff’s medical treatment and sick leave required to
attend medical appointments. (Plaintiff’s Exhibit 10.) Plaintiff testified that her physician
scheduled periodic appointments to conduct blood tests and that, on occasion,
Thiessen questioned the need for such appointments and inquired whether they were
“an emergency.” On October 18, after plaintiff responded that her medical treatment
was indeed an emergency, Thiessen sought advice from Maureen Meck, an HR
administrator, regarding plaintiff’s requests for leave. Thiessen informed Meck that she
didn’t “know what to do with this situation.”            (Plaintiff’s Exhibit 21.)   Meck advised
Thiessen that she “should allow [plaintiff] to go” and that Thiessen should “develop a
policy and procedure for emergencies.” (Plaintiff’s Exhibit 22.)
       {¶ 5} On October 21, Thiessen informed Oyer that plaintiff had talked to certain
coworkers “in a negative way” and that plaintiff had “threatened to file a complaint”
against her.    (Plaintiff’s Exhibit 23.)      On October 29, Thiessen issued two written
reprimands and placed plaintiff on a performance improvement plan (PIP). According to
documents related to the first reprimand, plaintiff had engaged in “discourteous
treatment of ECE property and children” by being “rough” with a wagon and “grabbing”
and “pulling” children by their arms. (Defendants’ Exhibit H.) Specifically, Thiessen

       2
       Unless otherwise stated, all dates referenced herein shall refer to 2010.
Case No. 2011-06552                         -3-                               DECISION

stated that she had observed plaintiff lift a child by holding both of the child’s hands up
over the child’s head. In the second written reprimand, Thiessen states that plaintiff
exhibited mistreatment towards coworkers, such as yelling on occasion and
commenting to a paraprofessional, “I can change diapers faster than you.” (Defendants’
Exhibit I.)    Both reprimands noted that “continued neglect of duty may result in
progressive corrective action up to and including termination.” On November 1, plaintiff
wrote a response to the reprimands in which she denied both mistreating coworkers and
“grabbing” a child. (Plaintiff’s Exhibit 11.) Plaintiff’s response included a letter from
Rachel Kemper, RN, an employee of defendants’ James Cancer Hospital, who
requested that the decision to reprimand plaintiff for yelling be reconsidered based upon
her opinion that as a complication of plaintiff’s thyroid (throat) surgery, plaintiff had
“difficulty controlling the tone and volume of her voice.” Thiessen wrote a reply to
Kemper’s request for reconsideration wherein she stated that the reprimand was
prompted not only by yelling and tone of voice, but also by plaintiff’s attitude and body
language. According to Thiessen, there had “been a pattern of this type of behavior for
the past 9 months.” (Plaintiff’s Exhibit 11, page 434.) In the PIP, Thiessen noted that
another incident of discourteous treatment of children would result in immediate
termination.
       {¶ 6} On November 17, Marc Tasse, Ph.D., Director of the Nisonger Center,
presented plaintiff with a letter notifying her that she had been placed on administrative
leave “pending a fact-finding investigation” as a result of being observed on November
10, “mishandling a child in her care.” (Plaintiff’s Exhibit 11.) According to an email from
Janine Oden-Thomas, an OSU HR consultant, a decision to terminate plaintiff’s
employment had been made by 9:18 a.m. on November 17. (Plaintiff’s Exhibit 38, page
15.) On November 29, Dr. Tasse signed a letter notifying plaintiff that her employment
had been terminated, wherein he noted the issues addressed in the written reprimands
and PIP, including mistreatment of a paraprofessional, supervisor, and discourteous
treatment of property and children. (Plaintiff’s Exhibit 8.)
Case No. 2011-06552                            -4-                               DECISION



DISABILITY DISCRIMINATION
A. Reasonable accommodation
       {¶ 7} Plaintiff alleges that defendants denied her “a reasonable accommodation”
of leave to attend her medical appointments, in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. 12112 et seq. and Ohio’s anti-discrimination statute,
R.C. 4112.    “Courts are to conduct an individualized inquiry and under appropriate
circumstances,    a     medical   leave   of    absence   can   constitute   a   reasonable
accommodation.” Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782-83
(6th Cir. 1998). Federal and state disability discrimination claims are subject to the
same evidentiary standards and may be evaluated concurrently. Jakubowski v. Christ
Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010).
       {¶ 8} The ADA defines “reasonable accommodation” to include:
       {¶ 9} “(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
       {¶ 10} “(B) job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the provision
of qualified readers or interpreters, and other similar accommodations for individuals
with disabilities.” 42 U.S.C. 12111(9); Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 868
(6th Cir. Ohio 2007).
       {¶ 11} Unlike claims based upon an adverse employment action, claims premised
upon an employer’s failure to offer a reasonable accommodation necessarily involve
direct evidence (the failure to accommodate) of discrimination. Therefore, if the court
accepts the employee’s version of the facts, no inference is required to conclude that
the employee has discriminated against plaintiff. Kleiber, supra at 868. To succeed on
her disability discrimination claim, plaintiff must show the following: (1) that she was
Case No. 2011-06552                          -5-                               DECISION

disabled; (2) that defendant was aware of the disability; and (3) that she was an
otherwise qualified individual with a disability in that she satisfied the prerequisites for
the position and could perform the essential functions of the job with or without
accommodation. Pflanz v. Cincinnati (2002), 149 Ohio App.3d 743, 2002-Ohio-5492, ¶
13; Johnson v. Cleveland City Sch. Dist., 443 F. App’x 974, 982-83 (6th Cir. 2011).
Ohio’s statute is modeled after the ADA, and Ohio courts will “look to the ADA and its
interpretation by federal courts for guidance in interpreting the Ohio statute.” Columbus
Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 573, 1998-Ohio-410.
       {¶ 12} The ADA defines “discrimination” to include “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.” 42 U.S.C. 12112(b)(5)(A). The ADA defines “disability” as
“a physical or mental impairment that substantially limits one or more major life activities
of such individual[.]” 42 U.S.C. 12102(1).
       {¶ 13} It is undisputed that plaintiff suffered from cancer and that she experienced
physical limitations as a result of the disease and her thyroid surgery. Plaintiff testified
that she experienced difficulty regulating the tone and volume of her voice and that as a
result of her cancer and medical treatment, she experienced symptoms including
extreme fatigue, emotional swings, and constant pain from an aggravation of her
preexisting fibromyalgia condition. Plaintiff testified that, beginning at the time of her
surgery, she required help from her teaching assistant to perform physically demanding
aspects of her job, including lifting children.
       {¶ 14} Defendants contend that plaintiff failed to prove that she suffered a
disability under the ADA. In order to establish a claim for disability discrimination, the
plaintiff must first establish that she is “disabled” within the meaning of the ADA. McKay
v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997). The Americans
With Disabilities Act Amendments Act of 2008 (ADAAA) applies in cases where the
alleged discriminatory acts occurred after January 1, 2009.         Milholland v. Sumner
County Bd. of Educ., 569 F.3d 562, 566-67 (6th Cir. 2009).
Case No. 2011-06552                         -6-                                DECISION



       {¶ 15} Under the ADAAA, “disability” means:
       {¶ 16} “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
       {¶ 17} “(B) a record of such an impairment; or
       {¶ 18} “(C) being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. 12102(1).
       {¶ 19} “In contrast to the pre-amendment statute, under the ADAAA, a plaintiff
proceeding under the ‘regarded as’ prong only has to prove the existence of an
impairment to be covered under the Act; she no longer is required to prove that the
employer regarded her impairment as substantially limiting a major life activity.” Wells
v. Cincinnati Children’s Hospital Medical Center, 860 F.Supp.2d 469, 478 (S.D.Ohio,
WD, 2012). A physical impairment includes “[a]ny physiological disorder or condition, *
* * or anatomical loss affecting one or more body systems, such as * * * respiratory
(including speech organs),” immune or lymphatic.              Id., 29 C.F.R. 1630.2(h).
Furthermore, the Tenth District Court of Appeals has recently observed that “chronic
conditions that cause periodic flare-ups ‘may constitute a disability if [the flare-ups]
occur with sufficient frequency and are of sufficient duration and severity to substantially
limit a major life activity.’” Camp v. Star Leasing Co., 10th Dist. No. 11AP-977, 2012-
Ohio-3650, ¶ 57, quoting Brown v. BKW Drywall Supply, Inc., 305 F.Supp.2d 814, 826-
27 (S.D.Ohio 2004).
       {¶ 20} The question of whether an individual has a disability under this part
“should not demand extensive analysis.” ADAAA Section 2(b)(5). There is no question
that plaintiff’s surgery and cancer treatment negatively impacted her overall physical
and emotional condition, including her difficulty speaking and pain from flare-ups of her
chronic fibromyalgia. Moreover, defendants have acknowledged that Scott Prenger,
M.D., a physician who examined plaintiff, determined that plaintiff had a “permanently
Case No. 2011-06552                        -7-                                DECISION

disabling” condition as of September 2010, the month plaintiff’s thyroid surgery was
performed. (Defendants’ Exhibit AA.) Based upon the evidence presented, the court
finds that plaintiff has proven by a preponderance of the evidence that her condition,
including the impact of the required medical treatment, substantially limited her in the
major life activity of working.
       {¶ 21} Defendants next contend that plaintiff failed to prove that she was qualified
to perform her job duties at the time in question. However, “the qualification prong turns
on the objective qualities of the [employee], not a subjective belief on the part of the
employer that the work product was deficient.” Gaglioti v. Levin Group, Inc., 6th Cir. No.
11-3744, LEXIS 25625 (Dec. 13, 2012).         The standard for determining whether an
employee is qualified for a position is whether the plaintiff “present[s] credible evidence
that his or her qualifications are at least equivalent to the minimum objective criteria
required for employment in the relevant field.” Wexler v. White’s Fine Furniture, Inc.,
317 F.3d 564, 576 (6th Cir. 2003).
       {¶ 22} Oyer acknowledged that, as of August 20, 2010, after approximately eight
years of employment, plaintiff did “not have any complaints in her personnel file.”
(Plaintiff’s Exhibit 3.)   Indeed, on September 20, just weeks before her job was
terminated, Dr. Tasse informed plaintiff that she had received a raise in her salary
based, in part, on “individual performance relative to last year’s objectives and
leadership competencies.” (Plaintiff’s Exhibit 7.) Thus, the court finds that plaintiff was
qualified for the purposes of her discrimination claim.
       {¶ 23} There is no dispute that defendants knew of plaintiff’s need for medical
treatment and that plaintiff requested time off for medical appointments, including
radiation treatment that was scheduled for December.            Therefore, the question
becomes whether defendants failed to make reasonable accommodations for her
disability. Plaintiff contends that OSU failed to engage in a meaningful dialogue with her
to determine the best means of accommodating her disability.
Case No. 2011-06552                        -8-                                 DECISION

       {¶ 24} “An employee who needs an accommodation because of a disability has
the responsibility of informing her employer.” EEOC v. Chevron Phillips Chem. Co., 570
F.3d 606, 621 (5th Cir. 2009), citing Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th
Cir. 1996).   “[T]he duty of an employer to make reasonable accommodations also
mandates that the employer interact with an employee in a good faith effort to seek a
reasonable accommodation.” Shaver v. Wolske & Blue, 138 Ohio App.3d 653, 664
(2000).   The employer must engage in an “in-teractive process,” which includes “a
meaningful dialogue with the employee to find the best means of accommodating [the]
disability.” Id., quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005).
“When an employer does not engage in a good faith interactive process, that employer
violates the ADA-including when the employer discharges the employee instead of
considering the requested accommodations.” Id., citing Cutrera v. Bd. of Supervisors of
La. St. Univ., 429 F.3d 108, 113 (5th Cir. 2005). “An employer may not stymie the
interactive process of identifying a reasonable accommodation for an employee’s
disability by preemptively terminating the employee before an accommodation can be
considered or recommended.” Cutrera at 113.
       {¶ 25} Although plaintiff contends that defendants never engaged in a meaningful
dialogue with her regarding an accommodation for her medical appointments, it is
undisputed that plaintiff was granted leave for every medical appointment that occurred
during her employment with defendants. There were instances when Thiessen asked
plaintiff whether her request for leave was “an emergency,” or otherwise inquired about
the nature of the medical appointments; however, Thiessen ultimately granted plaintiff’s
leave requests. Accordingly, the court finds that plaintiff cannot prevail on her claim that
defendants failed to accommodate her disability.


B. Adverse employment action (termination)
Case No. 2011-06552                        -9-                                 DECISION

      {¶ 26} Plaintiff’s remaining discrimination claims [disability and age], which are
based upon being subjected to an adverse employment action, are analyzed through
the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Plaintiff must put forward a prima facie case of discrimination under
the relevant statute. Mauzy v. Kelly Servs., Inc., 75 Ohio St. 3d 578, 1996-Ohio-265.
Plaintiff can establish a prima facie case for disability discrimination by showing: (1)
that she was disabled; (2) that an adverse employment action was taken at least in part
because of the disability; and (3) that she could safely and substantially perform the
essential functions of the job despite her disability. Turner v. Shahed Enters., 10th Dist.
No. 10AP-892, 2011-Ohio-4654, ¶ 13.
      {¶ 27} As stated above, plaintiff has proved that she was disabled and that she
substantially performed the essential functions of her teaching job.          Much of the
evidence presented by plaintiff focused on the temporal proximity between plaintiff’s
disability and defendants’ disciplinary actions which led to the termination of her
employment. Most notably, soon after Thiessen and Oyer learned that plaintiff had the
thyroid surgery which led to her cancer diagnosis, Thiessen requested assistance in
documenting problems with plaintiff’s interactions with others so that those incidents
could be used in considering plaintiff’s future employment. On September 8, Thiessen
asked Oyer whether she should “just keep track of all these complaints” concerning
plaintiff “so that when it comes time to ask teachers to come back the following school
year, we can take these complaints into consideration when we are making our decision
on who we want/don’t want to return?”         (Plaintiff’s Exhibit 20.)   Oyer replied that
teachers were “regular employees” and that Thiessen did not have “an option to decide
if they come back next year or not.” Id. However, Oyer advised Thiessen that she
would need to go through “the proper process to replace a non-producing employee
through coaching and PIP process which you are starting with [plaintiff] this year
beginning with her P-3 goals you are developing now.” Oyer further advised Thiessen
Case No. 2011-06552                          - 10 -                              DECISION

to add a requirement in plaintiff’s P-3 evaluation that plaintiff “‘receive no more than 2
complaints a year,’ this way you already have one.” Id.
       {¶ 28} Although Thiessen understood that plaintiff was being treated for cancer
and that she would be required to attend numerous medial appointments prior to
undergoing radiation therapy in December, neither Thiessen nor the assigned HR
specialist (Oyer) met with plaintiff either to discuss her medical condition and offer
assistance or to plan for required medical leave.        Rather, the evidence shows that
Thiessen expressed concern about how to handle plaintiff’s medical leave and Thiessen
inquired on at least two occasions whether plaintiff’s appointments were emergencies.
On October 18, plaintiff responded to one such inquiry from Thiessen and informed her
that the appointment to determine her cancer “level” was an emergency, whereupon
Thiessen contacted Meck for HR support and exclaimed “I don’t know what to do with
this situation because I know she’s going through a difficult time.” (Plaintiff’s Exhibit 21.)
Three days later, on October 21, Thiessen expressed concern to Oyer that plaintiff was
“talking to [several coworkers] in a very negative way” and that plaintiff had “threatened
to file a complaint” against Thiessen. (Plaintiff’s Exhibit 23.) On October 27, Thiessen
again notified Oyer of concerns regarding the way plaintiff spoke in front of coworkers.
(Plaintiff’s Exhibit 24.) Oyer suggested that “[w]e can approach it by saying that several
co-workers have complained about the way she is speaking to them and that we will no
longer tolerate it and will write her up each time there is a complaint.” Id. On the same
date, Thiessen informed the HR department that she observed plaintiff lift a child by the
child’s arms and that she intended to confer with Oyer “to see if [Thiessen] can write
[plaintiff] up for this action.”   Id.   Thiessen subsequently gave plaintiff two written
reprimands.
       {¶ 29} Based upon the evidence, the court finds that plaintiff has established that
the termination of her employment was taken, at least in part, because of her disability
and that she has established a prima facie case of disability discrimination.
Case No. 2011-06552                         - 11 -                               DECISION

       {¶ 30} Once a plaintiff has established a prima facie case, the burden of
production shifts to the employer to articulate legitimate, non-discriminatory reasons for
the challenged action.       Mauzy, at 1276.         If the employer articulates such non-
discriminatory reasons, the burden shifts back to plaintiff 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. Knepper v. Ohio State Univ., 10th Dist.
No. 10AP-1155, 2011-Ohio-6054, ¶ 12.          To meet her burden, plaintiff must submit
evidence that an employer’s proffered reason (1) had no basis in fact, (2) did not
actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant
the challenged conduct. Id., citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.
2000). Under any of the three options, a plaintiff must produce sufficient evidence from
which the court could reasonably reject defendant’s explanation and infer that defendant
intentionally discriminated against her. Knepper at ¶ 12, citing Johnson v. Kroger Co.,
319 F.3d 858, 866 (6th Cir.2003); Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725
(6th Cir. 2012).
       {¶ 31} Defendants maintain that plaintiff’s “lengthy history of poor performance”
was a legitimate, non-discriminatory reason for the decision to terminate her
employment.        According to defendants, Thiessen issued the written reprimands to
plaintiff after it became apparent that plaintiff’s “bad behavior” was escalating rather
than improving. Defendants also contend that they had no choice but to terminate
plaintiff’s employment after she failed her PIP by improperly lifting a child.
       {¶ 32} Upon review of the testimony and evidence, the court finds that defendants
have articulated legitimate reasons for their actions. Therefore, the burden shifts back
to plaintiff to prove by a preponderance of the evidence that defendants’ stated
justification was mere pretext for impermissible discrimination. Boyd v. Ohio Dept. of
Mental Health, 10th Dist. No. 10AP-906, 2011-Ohio-3596, ¶ 27.
       {¶ 33} Although defendants argue that plaintiff had a lengthy history of poor
performance, as stated above, Oyer related that, during plaintiff’s eight years of
Case No. 2011-06552                       - 12 -                              DECISION

employment with defendants prior to her cancer diagnosis, she had performed her
teaching duties without receiving any formal complaints in her personnel file.
Defendants reference incidents that were not memorialized in plaintiff’s personnel file
which they argue are indicative of plaintiff’s poor performance; however, the only reason
stated in the letter which placed plaintiff on administrative leave pending a “fact-finding
investigation” was being “witnessed mishandling [of] a child.”
      {¶ 34} Dr. Tasse testified that he did not participate in any fact-finding
investigation and that he believed HR was responsible for conducting the investigation.
Oyer testified that she was not involved in an investigation, though “it would have been
nice to be included.” Oyer believed that either “central HR” or OSU Medical Center’s
HR department would conduct an investigation.         Oden-Thomas testified that it was
“standard” to conduct a fact-finding investigation when placing an employee on
administrative leave; however, she did not know who was in charge in this case. Oden-
Thomas further testified that an HR representative, such as Oyer, should have had a
discussion with plaintiff regarding whether her medical condition impacted her
performance.    The court notes that there is no evidence of any such conversation
regarding plaintiff’s medical condition and treatment, or how the disease and treatment
might impact plaintiff’s work performance and temperament.
      {¶ 35} Moreover, even if the court was persuaded that any fact-finding
investigation occurred, the evidence established that such investigation did not include
an interview of either plaintiff or any other witnesses. As noted above, an email from
Janine Oden-Thomas indicates that the decision to terminate plaintiff’s employment had
been “approved’ by 9:18 a.m. on November 17, the morning that plaintiff was placed on
administrative leave. Furthermore, those who were involved in the decision to terminate
plaintiff’s employment were generally unaware of any prior incidents of plaintiff’s “poor
performance.”
Case No. 2011-06552                        - 13 -                               DECISION

       {¶ 36} The decision makers were also unaware of certain information which was
both known to Thiessen and Oyer and would have been relevant to a fact-finding
investigation, but was not disclosed to Dr. Tasse or other employees who were involved
in the decision to fire plaintiff. Most significantly, Dr. Tasse and other employees who
participated in the decision-making process testified that they were not aware that
Thiessen had informed Oyer that plaintiff had threatened to file a complaint against her
before Thiessen issued the written reprimands and the PIP.            Dr. Tasse was also
unaware that plaintiff had accused Thiessen of not understanding her medical condition
“basically implying that [she had] no sympathy.” (Plaintiff’s Exhibit 31.) Oyer testified
that she was aware of several complaints regarding Thiessen’s questions about
plaintiff’s medical leave, but Oyer did not recall whether she met with plaintiff to discuss
those concerns.     Thiessen also failed to inform those who were involved in the
administrative action that plaintiff had submitted an FMLA request.
       {¶ 37} The evidence showed that Thiessen was the only witness to the two
“improper lifting” incidents which were the stated basis for placing plaintiff on
administrative leave. Thiessen testified that she witnessed the first incident on October
27, several days after plaintiff was asked to confirm that her medical appointments were
“emergencies.” On the same date, Thiessen recorded her observations of plaintiff’s
teaching performance, recording comments on plaintiff’s body language and
enthusiasm; however no mention was made of improper lifting of a child. Thiessen
observed the second incident on November 10, five days after plaintiff submitted her
FMLA request for intermittent medical leave. (Plaintiff’s Exhibit 35.)
       {¶ 38} Initially, Thiessen did not report the incident in writing. After plaintiff was
placed on administrative leave, Thiessen was instructed to prepare a written report,
wherein she stated that she observed plaintiff “begin” to lift the child out of a wagon.
Thiessen testified that during the second incident, she observed plaintiff lifting the
child’s left arm, and that she did not recall what happened after the arm was lifted.
Although Thiessen testified that she was concerned for the child’s safety, she did not
Case No. 2011-06552                         - 14 -                               DECISION

intervene at the time of either incident, nor did she speak to plaintiff about her
November 10 observation until plaintiff had been placed on administrative leave.
       {¶ 39} In contrast to Thiessen’s differing versions of the November 10 incident,
plaintiff adamantly denied lifting a child by the arms on either occasion. Plaintiff also
testified that she was certain the male student who Thiessen believed had been lifted
from the wagon on November 10 was never in the wagon that day inasmuch as he
seldom rode in the wagon, and two girls who were present that day required the use of
the wagon.    The court finds that Thiessen’s testimony regarding the November 10
incident was not credible and inconsistent with her earlier versions of the event.
       {¶ 40} Furthermore, “[a]n employer’s changing rationale for making an adverse
employment decision can be evidence of pretext.” Thurman v. Yellow Freight Sys., Inc.,
90 F.3d 1160, 1167 (6th Cir. 1996). Inconsistent reasons given by key decision-makers
as to the reason for the firing can provide evidence of pretext. Tinker v. Sears, Roebuck
& Co., 127 F.3d 519, 523 (6th Cir. 1997).
       {¶ 41} Although Thiessen and Dr. Tasse testified about concerns with plaintiff’s
performance, defendants’ HR staff who reviewed and processed the approval of the
termination believed the sole reason for the action was the incident involving lifting the
child. As stated above, mishandling of a child was the sole reason stated for placing
plaintiff on administrative leave. (Plaintiff’s Exhibit 4.) Furthermore, affidavits filed in a
related Equal Employment Opportunity Commission action do not refer to any poor
performance exhibited by plaintiff prior to the time of the incidents that were addressed
in the written reprimands.      (Plaintiff’s Exhibit 29.)   Inasmuch as plaintiff had no
complaints in her personnel file prior to her illness, the court finds defendants’
contention that plaintiff had a long history of poor performance which justified the
termination of her employment is not supported by the evidence. Moreover, plaintiff’s
testimony that her cancer diagnosis and treatment caused significant changes in her
emotional and physical condition was credible and compelling. There is no doubt that
Case No. 2011-06552                         - 15 -                            DECISION

plaintiff’s medical condition had a negative impact on her work performance and it is
likely that some of the performance concerns noted by Thiessen in the weeks following
plaintiff’s thyroid surgery, such as plaintiff’s temperament and the vocal difficulties
addressed in Nurse Kemper’s letter, were related to plaintiff’s battle against cancer.
       {¶ 42} Based upon the evidence, the court is persuaded by a preponderance of
the evidence that neither improper lifting of a child nor “poor performance” actually
motivated the decisions to place plaintiff on administrative leave and terminate her
employment, but were a pretext for discrimination. Accordingly, the court finds that
plaintiff has proved her claim of disability discrimination.


FMLA
       {¶ 43} 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.   See Arban v. W. Publ. Corp., 345 F.3d 390, 400-401 (6th Cir. 2003)
(explaining the entitlement and retaliation theories of recovery under the FMLA). The
employer’s intent is not a relevant part of the entitlement inquiry under 2615. Arban, at
401 “Under the retaliation theory (also known as the discrimination theory), in contrast,
the employer’s motive is an integral part of the analysis.         See Hodges [v. Gen.
Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998)] (explaining that in retaliation cases,
‘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’). The employer’s motive is relevant because retaliation claims impose liability
on employers that act against employees specifically because those employees invoked
their FMLA rights. See Kauffman v. Fed. Express Corp., 426 F.3d 880, 885 (7th Cir.
2005) (observing that the retaliation theory applies where a company seeks to punish
an employee ‘for exercising rights or opposing an unlawful procedure’).” Edgar v. JAC
Prods., 443 F.3d 501, 508 (6th Cir. Mich. 2006).
Case No. 2011-06552                        - 16 -                             DECISION

         {¶ 44} The court applies the burden-shifting test articulated in McDonnell
Douglas, supra, to retaliation claims under the FMLA.         Id.; Skrjanc v. Great Lakes
Power Serv. Co., 272 F.3d 309, 313-16 (6th Cir. 2001) (applying the burden-shifting
analysis to an FMLA-retaliation suit).     Plaintiff can make out a prima facie case of
discrimination by showing that (1) she availed herself of a protected right under the
FMLA by notifying defendant of her intent to take leave, (2) she suffered an adverse
employment action, and (3) that there was a causal connection between the exercise of
her rights under the FMLA and the adverse employment action. Id.; Skrjanc at 314. If
plaintiff satisfies these three requirements, the burden shifts to defendant to proffer a
legitimate, nondiscriminatory rationale for discharging the employee. Skrjanc at 315.
         {¶ 45} The parties have stipulated that plaintiff completed the FMLA form that she
obtained from defendants’ HR department and that plaintiff’s physician, Ravi Dhawale,
M.D., certified the leave request on November 5. (Plaintiff’s Exhibit 35.) Thiessen
testified that she was aware that plaintiff was submitting an FMLA request and she
acknowledged that she received a copy of the request in her mailbox.                  Oyer
acknowledged that the FMLA request was “an OSU record.” Based upon the evidence,
the court finds that plaintiff exercised rights afforded by the FMLA and that she was
discharged from her employment; however, the parties disagree on whether there was a
causal connection between her exercise of rights and the adverse employment action.
         {¶ 46} The court may look to the temporal proximity between the adverse action
and the protected activity to determine whether there is a causal connection. Harrison
v. Metro Govt. of Nashville & Davidson Cty., Tenn., 80 F.3d 1107, 1118-1119 (C.A.6,
1996).     “‘The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be very close.’” Id., quoting Clark Cty. School Dist. v. Breeden, 532 U.S.
268, 273 (2001). The Sixth Circuit Court of Appeals has held that closeness in time is
Case No. 2011-06552                        - 17 -                             DECISION

only one indicator of a causal connection and that temporal proximity, standing alone, is
not enough to establish a causal connection for a retaliation claim.          Spengler v.
Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. Ohio 2010); Skrjanc at 317.
However, when combined with other evidence of retaliatory conduct, temporal proximity
is enough to establish a causal connection. Id.
         {¶ 47} It is undisputed that plaintiff informed defendants that she would require
intermittent medical leave, including an extended period of time in December for
radiation treatment.    Plaintiff testified that she would typically submit medical leave
requests by completing the required documents and submitting them to Thiessen.
Plaintiff signed the FMLA documents on November 2, and the medical certification was
signed on November 5. Inasmuch as plaintiff was placed on administrative leave on
November 17 and the decision to terminate her employment was made on or before
that morning, the court finds that the close temporal proximity between the FMLA
request and the termination supports an inference of causation.
         {¶ 48} Thiessen testified that she received plaintiff’s completed FMLA forms, but
that she did not take any action on the request because she believed that Oyer was
aware of the request and was working with plaintiff to process the documents. Thiessen
conceded that she did not provide any information regarding the FMLA request to
anyone involved in the administrative leave fact-finding investigation. Defendants’ HR
personnel testified that such information should have been disclosed during the fact-
finding process. The court finds that the failure to consider plaintiff’s FMLA request, or
to provide that information during the fact-finding investigation, combined with temporal
proximity, is sufficient evidence of causality to establish a prima facie case for her FMLA
claim.
         {¶ 49} Thiessen was responsible for obtaining teachers to substitute for plaintiff
while she was on medical leave and the evidence shows that by mid-October,
coordinating plaintiff’s time off for medical treatment had become a burden for Thiessen.
When Thiessen sought guidance from Meck and confided that she didn’t “know what to
Case No. 2011-06552                        - 18 -                               DECISION

do with this situation” regarding plaintiff’s intermittent medical leave, Meck advised
Thiessen to grant the leave requests and “develop a policy and procedure for
emergencies.” (Plaintiff’s Exhibit 22.) During cross-examination, Thiessen admitted
that she did not develop such a policy before plaintiff was terminated. Furthermore, as
discussed above, neither Thiessen nor Oyer engaged in a meaningful discussion with
plaintiff regarding either the impact of her medical condition or a plan for her intermittent
medical treatment. For the foregoing reasons, the court finds that defendants’ stated
justification for the disciplinary action against plaintiff was mere pretext and not the true
reason for the decisions to ignore her FMLA request and terminate her employment.
Accordingly, the court finds that plaintiff has proved that defendants violated her rights
under the FMLA.


AGE DISCRIMINATION
       {¶ 50} Plaintiff’s claim of age discrimination may be proven either by direct
evidence of discrimination or through the burden-shifting analysis set forth in McDonnell
Douglas, supra.     Plaintiff has not presented direct evidence of age discrimination.
Under either the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.
623(a)(1) or R.C. 4112.02(A), to make out a prima facie case of age discrimination,
where no direct evidence is available, plaintiff must demonstrate that she: “(1) was a
member of the statutorily protected class, i.e., was at least 40 years old at the time of
the discrimination, (2) was discharged, (3) was qualified for the position, and (4) was
replaced by, or the discharge permitted the retention of, a person of substantially
younger age.” Knepper v. Ohio State Univ., 10th Dist. No. 10AP-1155, 2011-Ohio-
6054, ¶ 11, citing Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-
723, at paragraph one of the syllabus.
       {¶ 51} The court has found that plaintiff was qualified for the position and there is
no dispute that plaintiff was over the age of 40, and that she was discharged. Thiessen
Case No. 2011-06552                        - 19 -                              DECISION

testified that defendants hired a teacher who was under 30 years of age and that the
teacher subsequently took over plaintiff’s position.      Therefore, the court finds that
plaintiff has presented sufficient evidence to meet her modest burden of proving a prima
face case of age discrimination.
       {¶ 52} However, an employer cannot be liable for age discrimination “whenever
its reason for firing an employee over the age of 40 is improper in any respect.”
(Emphasis in original) Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993), citing
McDonnell Douglas, supra. “For example, it cannot be true that an employer who fires
an older black worker because the worker is black thereby violates the ADEA. The
employee’s race is an improper reason, but it is improper under Title VII, not the ADEA.”
Id.
       {¶ 53} Although plaintiff argues that defendants had a practice of replacing older
teachers with substantially younger teachers, Thiessen testified that many of the former
teachers had either retired or resigned their position and that she interviewed
prospective teachers who were over 40 years of age. The court notes that defendants’
records show that plaintiff was the only employee Thiessen supervised who had her
position involuntarily terminated. (Plaintiff’s Exhibit 33.) Based upon the evidence, the
court finds that the actions which led to the termination of plaintiff’s employment were
related to her health conditions and the resulting medical treatment. In short, the court
finds that plaintiff has failed to prove that defendants’ decision to terminate her
employment was motivated by her age.
       {¶ 54} For the foregoing reasons, judgment is recommended in favor of plaintiff
on her claims of disability discrimination and violation of her rights under the FMLA.
       {¶ 55} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
Case No. 2011-06552                        - 20 -                            DECISION

any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                           _____________________________________
                                           ANDERSON M. RENICK
                                           Magistrate

cc:


Emily M. Simmons                              Gilbert J. Gradisar
Eric A. Walker                                501 South High Street
Assistant Attorneys General                   Columbus, Ohio 43215
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

James A. Meaney
7507 Ravens Nest Court
Columbus, Ohio 43235

004
Filed March 27, 2013
To S.C. Reporter August 22, 2013
