[Cite as Taylor v. Ohio Dept. of Jobs & Family Servs., 2011-Ohio-1852.]

                                                        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




JOY TAYLOR

        Plaintiff

        v.

OHIO DEPARTMENT OF JOBS AND FAMILY SERVICES

        Defendant
        Case No. 2008-05974

Judge Joseph T. Clark
Magistrate Lewis F. Pettigrew

JUDGMENT ENTRY




        {¶ 1} On January 25, 2011, the magistrate issued a decision recommending
judgment for defendant.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” On February 3, 2011, plaintiff timely filed her objections.
        {¶ 3} Plaintiff brought this action alleging interference with her rights under the
Family and Medical Leave Act of 1993 (FMLA), as well as disability discrimination under
R.C. 4112.02, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of
1973.
        {¶ 4} In her FMLA claim, plaintiff alleges that an employee of defendant,
Antoinette Franklin, improperly denied her request for FMLA leave during a telephone
conversation on February 12, 2008. According to the magistrate’s decision, Franklin
testified that she did not deny plaintiff’s FMLA request, and that she instead asked
Case No. 2008-05974                         -2-                      JUDGMENT ENTRY

plaintiff to furnish additional information inasmuch as plaintiff’s FMLA certification form
was incomplete.      The magistrate found that Franklin’s testimony concerning the
February 12, 2008 conversation was more credible than plaintiff’s, that Franklin did not
deny plaintiff’s FMLA request, and that plaintiff failed to prove any interference with her
rights under the FMLA.
       {¶ 5} With respect to plaintiff’s claims of disability discrimination, the magistrate
found that plaintiff failed to establish any of the elements required of a prima facie case.
       {¶ 6} Although plaintiff’s objections are not specifically enumerated, one of her
main arguments is that the magistrate improperly applied the law pertaining to her
FMLA claim by failing to consider 29 C.F.R. 825.305(c). In its current form, 29 C.F.R.
305(c) states, in part, that when an employer finds that an employee has submitted an
incomplete or insufficient FMLA certification form, the employer shall “state in writing
what additional information is necessary to make the certification complete and
sufficient.” Plaintiff asserts that defendant failed to comply with this regulation inasmuch
as her certification was found to be incomplete on February 12, 2008, but defendant did
not provide written notice of what additional information was needed until February 25,
2008, when plaintiff asked Franklin for a written response to the FMLA request.
       {¶ 7} The version of 29 C.F.R. 825.305(c) which was in effect at all times
relevant did not include the requirement that an employer state in writing what additional
information is necessary to make an FMLA certification complete and sufficient. As the
magistrate noted, the federal regulations concerning the FMLA were revised
subsequent to the events at issue in this case and, inasmuch as administrative
regulations are presumed to apply prospectively, the revised regulations do not apply in
this case. See Randolph v. Grange Mut. Cas. Co., 185 Ohio App.3d 589, 2009-Ohio-
6782, ¶33. Accordingly, this objection is not well-taken.
       {¶ 8} Plaintiff also objects to several factual findings made by the magistrate,
including his finding that Franklin’s testimony concerning the telephone conversation
Case No. 2008-05974                          -3-                        JUDGMENT ENTRY

was more credible than plaintiff’s testimony, and his finding that plaintiff failed to
establish that she was disabled for the purposes of her disability discrimination claims.
       {¶ 9} Civ.R. 53(D)(3)(b)(iii) states: “An objection to a factual finding, whether or
not specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
supported by a transcript of all evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. * * * The objecting
party shall file the transcript or affidavit with the court within thirty days after filing
objections unless the court extends the time in writing for preparation of the transcript or
other good cause. If a party files timely objections prior to the date on which a transcript
is prepared, the party may seek leave of court to supplement his objections.”
       {¶ 10} To the extent that plaintiff’s objections pertain to factual findings made by
the magistrate, plaintiff was required to support her objections with a trial transcript.
Plaintiff’s failure to file a transcript leaves the court unable to review the alleged errors in
the magistrate’s factual findings.
       {¶ 11} Upon review, the court determines that there is no error of law or other
defect evident on the face of the magistrate’s decision. Therefore, the objections are
OVERRULED and the court adopts the magistrate’s decision and recommendation as
its own, including findings of fact and conclusions of law contained therein. Judgment is
rendered in favor of defendant. 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.



                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:
Case No. 2008-05974               -4-                   JUDGMENT ENTRY


Douglas R. Folkert                 Kendall D. Isaac
Assistant Attorney General         341 South Third Street, Suite 10
150 East Gay Street, 18th Floor    Columbus, Ohio 43215
Columbus, Ohio 43215-3130

RCV/cmd
Filed March 23, 2011
To S.C. reporter April 12, 2011
