[Cite as Abrigg v. Mercy Med. Ctr., 2011-Ohio-2112.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                               JUDGES:
JOANN ABRIGG                                           :       Hon. W. Scott Gwin, P.J.
                                                       :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellant            :       Hon. Patricia A. Delaney, J.
                                                       :
-vs-                                                   :
                                                       :       Case No. 2010-CA-00182
MERCY MEDICAL CENTER, ET AL                            :
                                                       :
                     Defendant-Appellee                :       OPINION




CHARACTER OF PROCEEDING:                                   Civil appeal from the Stark County Court of
                                                           Common Pleas, Case No. 2009CV03423



JUDGMENT:                                                  Affirmed




DATE OF JUDGMENT ENTRY:                                    May 2, 2011


APPEARANCES:

For Plaintiff-Appellant                                    For Defendant-Appellee

DAVID A. VANGAASBEEK                                       DAVID DINGWELL
1303 West Maple Street, Ste. 104                           220 Market Avenue South, 8th Fl.
North Canton, OH 44720                                     Canton, OH 44702
[Cite as Abrigg v. Mercy Med. Ctr., 2011-Ohio-2112.]


Gwin, P.J.

        {¶1}    Plaintiff-appellant JoAnn Abrigg appeals a summary judgment of the Court

of Common Pleas of Stark County, Ohio, entered in favor of defendants-appellees

Mercy Medical Center, Connie Smith, and Jami Offenberger. Appellant assigns four

errors to the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED BY GRANTING APPELLEES’ MOTION

FOR SUMMARY JUDGMENT ON THE GROUNDS THAT APPELLANT WAS NOT

SUFFERING FROM A “SERIOUS HEALTH CONDITION” AS REQUIRED BY THE

FAMILY AND MEDICAL LEAVE ACT (29 USC SEC. 2601 ET SEQ) BECAUSE

APPELLANT PROVIDED SUFFICIENT MEDICAL EVIDENCE AND PERSONAL

TESTIMONY THAT WOULD CREATE A GENUINE ISSUE OF MATERIAL FACT ON

THIS ISSUE.

        {¶3}    “II. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

JUDGMENT ON THE GROUNDS THAT APPELLANT DID NOT GIVE APPELLEES

SUFFICIENT NOTICE AS TO THE NEED FOR MEDICAL LEAVE UNDER THE

FAMILY AND MEDICAL LEAVE ACT (29 USC SEC. 2601 ET SEQ).

        {¶4}    “III. THE TRIAL COURT ERRED IN THIS PARTICULAR CASE IN THAT

IT REQUIRED APPELLANT TO PROVIDE SUFFICIENT CERTIFICATION FROM THE

HEALTH CARE PROVIDER THAT APPELLANT HAS A SERIOUS MEDICAL

CONDITION, EVEN WHEN APPELLEES DID NOT SUPPLY THE NECESSARY

DOCUMENTS TO APPELLANT AND WHERE THE EVIDENCE SHOWED THAT

APPELLANT DID NOT KNOW THE STRICTURES AND REQUIREMENTS OF THE

FAMILY AND MEDICAL LEAVE ACT.
Stark County, Case No. 2010-CA-00182                                                   3


      {¶5}   THE TRIAL COURT ERRED BY GRANTING APPELLEES’ MOTION FOR

SUMMARY JUDGMENT ON THE ISSUE OF AGE DISCRIMINATION IN THAT THERE

WAS A GENUINE ISSUE OF MATERIAL FACT AND APPELLEES WERE NOT

ENTITLED TO JUDGMENT AS A MATTER OF LAW.”

      {¶6}   The trial court made findings of fact in its judgment entry. The court found

appellant was an at-will employee of appellee Mercy. Appellant began working for

Mercy in 1984, holding various positions within the Patient Account Department. Her

final job was reimbursement specialist, where she worked from 2006 until she was

terminated in 2008. Appellees Offenberger and Smith are supervisors in the Patient

Account Department.

      {¶7}   The Patient Account Department is responsible for monitoring and

collecting all Mercy’s outstanding bills for health-related services and goods.

Reimbursement specialists collect on the outstanding bills by monitoring and following

up on pending insurance and health plan payments. The work involves making phone

calls, sending letters, and reviewing and analyzing various insurance and health plan

agreements between insurers and Mercy.

      {¶8}   The court found during her employment with Mercy, appellant was

reprimanded on several occasions regarding her job performance and productivity. In

August 2007, appellant went on vacation and another employee assisted with her work.

The employee discovered problems in appellant’s work, which she reported to appellee

Smith and Offenberger. When appellant returned from vacation, Smith and Offenberger

met with her, gave her a warning, and placed her on probation for a period of 90 days.
Stark County, Case No. 2010-CA-00182                                                   4


They also put a performance improvement plan in place which set specific goals for

appellant to improve her productivity.

      {¶9}   During the meeting, appellant informed appellee Smith and Offenberger

she was having some “female problems” which included on-going bleeding.        Appellant

informed Smith and Offenberger she was considering taking medical leave. The court

found although she mentioned this, appellant never inquired about medical leave.

Appellant informed Smith and Offenberger that her doctor had told her her condition

was normal and would resolve itself.

      {¶10} The trial court found appellant never discussed any type medical leave

with her physician while she was employed with Mercy. The court found she never took

any medical leave because of her condition. Appellant never missed any work or

requested time off, although she had time available which she could have taken.

      {¶11} In November 2007, when the 90 day probation period was over, Smith and

Offenberger met with appellant to extend her probationary period another sixty days.

On February 4, 2008, Smith and Offenberger evaluated appellant’s performance again,

and decided her productivity was still unsatisfactory. Smith then recommended to the

Human Resources Vice President that appellant’s employment be terminated.            The

court found appellant was 58 years old at the time Mercy terminated her employment.

Mercy then replaced appellant with a 50 year old woman.

      {¶12} Civ. R. 56 states in pertinent part:

      {¶13} “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
Stark County, Case No. 2010-CA-00182                                                    5


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. A summary

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.”

      {¶14} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio

St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio

St. 3d 321. A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.

When reviewing a trial court’s decision to grant summary judgment, an appellate court

applies the same standard used by the trial court, Smiddy v. The Wedding Party, Inc.

(1987), 30 Ohio St. 3d 35. This means we review the matter de novo, Doe v. Shaffer,

90 Ohio St.3d 388, 2000-Ohio-186.

      {¶15} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the
Stark County, Case No. 2010-CA-00182                                                        6


record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist. Id.

       {¶16} Appellant’s statement in compliance with Loc. App. R. 9 (A)(4) alleges five

genuine issues of material fact exist, making summary judgment inappropriate: (1)

whether appellant was suffering from a serious health condition which would trigger the

requirements of the Family and Medical Leave Act; (2) whether appellant gave sufficient

notice to appellees that she was suffering from a serious health condition which would

trigger the requirements of the Family and Medical Leave Act; (3) whether appellees

interfered with appellant’s ability to obtain a medical certification stating she was entitled

to leave under the Family and Medical Leave Act; (4) whether appellees discriminated

against appellant because of her age; and (5) whether appellant’s replacement was

substantially younger than appellant.

       {¶17} 29 U.S.CA Section 2612 sets out the requirements for leave under the

Family and Medical Leave Act (FMLA). It provides an eligible employee shall be entitled

to a total of 12 work weeks of leave during any 12 month period for certain enumerated

conditions, including   “(D). *** a serious health condition that makes the employee

unable to perform the functions of the position of the employee.”

       {¶18} In order to substantiate her claim of interference with her application for a

FMLA leave, appellant must show all of the following: (1) she was eligible for FMLA

protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave

under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5)
Stark County, Case No. 2010-CA-00182                                                     7

her employer denied her FMLA benefits to which she was entitled. Hoge v. Honda of

America Manufacturing, Inc. (6th Circuit 2004), 384 F. 3d 238. Pursuant to 29 USC

Sections 2615 and 2617, the FMLA provides employees with a private cause of action

to recover damages if an employer interferes with the employee’s exercise of FMLA

rights. “Interference” means either that the employer interfered with the employee’s right

to take medical leave, or the employer failed to reinstate the employee to the same or

equivalent position upon return to work. The employer’s motivation for interfering is

irrelevant. Id.

       {¶19} The trial court found it was undisputed appellant was an eligible employee

and appellees were employers. The trial court found appellant had not come forward

with evidence she provided sufficient notice to Mercy of her intent to take leave and did

not present evidence Mercy denied her FMLA rights.            The trial court also found

appellees did not terminate appellant’s employment because of her age.

                                               I.

       {¶20} In her first assignment of error, appellant argues the court erred in finding

she had demonstrated she was suffering from a serious health condition because she

provided medical evidence and personal testimony regarding her condition.

       {¶21} U.S.C. Section 2612 defines the term “serious health condition” as an

illness, injury, impairment, or physical or mental condition that involves in-patient care

in a hospital, hospice, or residential medical care facility, or continuing treatment by a

health-care provider. The court found there was no evidence appellant was an in-

patient in a hospital, hospice, or residential medical care facility during the period from
Stark County, Case No. 2010-CA-00182                                                   8


August 2007 to February 2008. Although she did have surgery for her condition, this

occurred in May, 2008, after Mercy terminated her employment.

       {¶22} The term “continuing treatment by a health-care provider” is also defined

in the Code of Federal Regulations, Title 29 Section 825 (B) Section 825.800:

       {¶23} “(1) Incapacity and treatment. A period of incapacity of more than three

consecutive, full calendar days, and any subsequent treatment or period of incapacity

relating to the same condition, that also involves:

       {¶24} “(i) Treatment two or more times, within 30 days of the first day of

incapacity, unless extenuating circumstances exist, by a health care provider, by a

nurse under direct supervision of a health care provider, or by a provider of health care

services (e.g., physical therapist) under orders of, or on referral by, a health care

provider; or

       {¶25} “(ii) Treatment by a health care provider on at least one occasion, which

results in a regimen of continuing treatment under the supervision of the health care

provider.

       {¶26} “(iii) The requirement in paragraphs (1)(i) and (ii) of this definition for

treatment by a health care provider means an in-person visit to a health care provider.

The first in-person treatment visit must take place within seven days of the first day of

incapacity.

       {¶27} ***

       {¶28} “(3) Chronic conditions. Any period of incapacity or treatment for such

incapacity due to a chronic serious health condition. A chronic serious health condition

is one which:
Stark County, Case No. 2010-CA-00182                                                     9


       {¶29} “(i) Requires periodic visits (defined as at least twice a year) for treatment

by a health care provider, or by a nurse under direct supervision of a health care

provider;

       {¶30} “(ii) Continues over an extended period of time (including recurring

episodes of a single underlying condition); and

       {¶31} “(iii) May cause episodic rather than a continuing period of incapacity (e.g.,

asthma, diabetes, epilepsy, etc.).

       {¶32} ***

       {¶33} “(5) Conditions requiring multiple treatments. Any period of absence to

receive multiple treatments (including any period of recovery therefrom) by a health care

provider or by a provider of health care services under orders of, or on referral by, a

health care provider, for:

       {¶34} ***

       {¶35} “(ii) A condition that would likely result in a period of incapacity of more

than three consecutive full calendar days in the absence of medical intervention or

treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical

therapy), kidney disease (dialysis).”

       {¶36} “(6) Absences attributable to incapacity under paragraphs (2) or (3) of this

definition qualify for FMLA leave even though the employee or the covered family

member does not receive treatment from a health care provider during the absence,

and even if the absence does not last more than three consecutive full calendar days.“

       {¶37} The trial court found there was no evidence appellant missed any work

because of her condition, or that she was under a regimen of continuing treatment by a
Stark County, Case No. 2010-CA-00182                                                   10


health care provider. The court noted during the time in question, appellant’s physician

had informed her condition was normal and the bleeding would eventually stop, and

appellant informed Smith and Offenberger of this.

      {¶38} Appellant alleges she did not miss any work because she scheduled her

medical treatments on her days off, but when she was at work, she was impaired

because of her condition and her need for pain medication. At the time of the meeting,

even though her doctor had informed her her condition would resolve itself, appellant

believed she would need a hysterectomy. Appellant argues she provided records under

seal for the court’s inspection regarding her doctor’s long regimen of conservative care

for her medical condition.

      {¶39} We agree with appellant the trial court was incorrect when it found there

was no evidence she was not under the continuing care or treatment of her physician

during the time in question.     However, appellant must present evidence on all the

elements of her cause of action. Because of our findings in II and III infra, we find this

issue is moot.

                                             II & III.

      {¶40} In her second assignment of error appellant argues the court erred in

finding she had not given appellees notice of her intent to take FMLA leave. In her third

assignment of error, appellant argues the court was incorrect in finding she did not

provide them with the necessary information that would cause them to believe appellant

was entitled to medical leave.    The court found appellant never requested medical

leave, although she did mention to Smith and Offenberger she was thinking about a
Stark County, Case No. 2010-CA-00182                                                    11


medical leave. Appellant testified it was her own idea not to request time off during her

probationary period.

         {¶41} “[A]n employer ***has a right to be notified of the existence of the serious

health condition as soon as practicable. The requirement of notice is not satisfied by the

employee's merely demanding leave. He must give the employer a reason to believe

that he's entitled to it. Collins v. NTN-Bower Corp., 272 F.3d at 1008; Stoops v. One Call

Communications, Inc., 141 F.3d 309, 312-13 (7th Cir.1998); Satterfield v. Wal-Mart

Stores, Inc., 135 F.3d 973, 977 (5th Cir.1998).” Aubuchon v. Knauf Fiberglass (7th

Circuit 2004), 359 F. 3d 950.

         {¶42} Mercy requires its employees to provide certification for leave under the

FMLA 29 USCA Section 2613 (a) defines “sufficient certification” as demonstrating: the

date on which the serious health condition commenced; the probable duration of the

condition; the appropriate medical facts within the knowledge of the healthcare provider

regarding the condition; and a statement that the employee is unable to perform the

functions of the employee’s position because of the condition.

         {¶43} Appellant argues she did not know the procedure to follow and appellees

did not provide her with the necessary information on how to go about qualifying for

leave.     However, appellant admitted Smith and Offenberger told her to see the

Employee Health Division of the Department of Human Resources to discuss leave.

Appellant argues that once an employer is told of a medical condition afflicting the

employee, the employer should attempt to get the necessary documents to the

employee to apply for medical leave. Aubuchon, supra; Browning v. Liberty Mutual

Insurance Company (8th Circuit 1999), 178 F. 3d 1043 [“Under the FMLA, the
Stark County, Case No. 2010-CA-00182                                                  12


employer's duties are triggered when the employee provides enough information to put

the employer on notice that the employee may be in need of FMLA leave. The

employee need not specifically mention FMLA leave, but must state that leave is

needed, and the statement should be made within one or two business days.”].

      {¶44} Appellant alleges in August 2007, Offenberger asked appellant if she was

thinking of going on medical leave, and in response, appellant asked Offenberger

whether Offenberger wanted appellant to go on medical leave.          Appellant alleges

Offenberger told her she did not want her to go on leave because the department was

very busy at the time. Appellant argues this demonstrates Offenberger knew of her

situation but did not give her the necessary information and assistance, and this is why

appellant did not supply the necessary medical certification.

      {¶45} However, appellant testified in her deposition her doctor would not have

certified her for medical reasons in August of 2007. Appellant stresses her medical

records show she was suffering from bleeding and pain at the time, and reasonable

minds could differ on this issue. We do not agree. While her medical records do show

she was suffering from a medical condition, appellant admitted she would not have

been able to secure the necessary certification from her doctor during the time in

question.

      {¶46} We find while reasonable minds could differ regarding whether appellees

failed to give appellant the necessary information for her to apply for leave,

nevertheless, appellant stated she would not have been able to get medical certification.

We conclude the trial court did not err in granting summary judgment to appellees on

appellant’s FMLA claim. In order to prevail, appellant had to come forward with
Stark County, Case No. 2010-CA-00182                                                    13


evidence on all five elements of her cause of action, and the evidence in the record

demonstrates she could not do so.

       {¶47} The second and third assignments of error are overruled.

                                               IV.

       {¶48} In her fourth assignment of error, appellant argues the trial court erred in

granting appellees’ motion for summary judgment on the issue of age discrimination.

       {¶49} The trial court found appellant admitted in her deposition she had no

direct evidence of age discrimination. The trial court correctly set out the elements for a

prima facie case of age discrimination where there is no direct evidence of the

discrimination: (1) she was a member of a statutorily protected class; (2) her

employment was terminated; (3) she was qualified for the position; and (4) she was

replaced by, or her firing permitted the retention of, a person of substantially younger

age. R.C. 4112.14. “Substantially younger age” cannot be absolutely defined, and must

be determined under the particular circumstances of the case. Coryell v. Bank One

Trust Company, N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, 803 N.E.2d 781, syllabus

by the court, paragraph 1. Trial courts are vested with the discretion to determine,

based on the circumstances of the case, whether an employee is substantially younger

than a protected employee. Id.

       {¶50} The trial court found there was no dispute that appellant was a member of

the statutory protected class because of her age. The court also found there is no doubt

appellant was qualified for the position and Mercy terminated appellant’s employment.

However, the court found appellant was not replaced by a person substantially younger

than herself.
Stark County, Case No. 2010-CA-00182                                                  14


      {¶51} Appellant’s replacement was eight years younger than appellant. The

court found because her replacement was fifty years old, she was also a member of the

protected class. Whether the replacement is a member of the protected class is not

relevant. Coryell, supra at paragraph 19.

      {¶52}    The court found over half of the Patient Accounts Department were over

the age of fifty, and during the time appellee Smith worked at Mercy, at least four other

persons younger than appellant were terminated based on poor performance.

      {¶53} The trial court found even if it assumed appellant’s replacement was

substantially younger than she, appellant could not prevail on her age discrimination

claim. If the employee demonstrates a prima facie case for age discrimination, the

burden then shifts to the employer to demonstrate a legitimate non-discriminatory basis

for the employee’s termination. If the employer does so, then the burden shifts back to

the employee to demonstrate that the basis for the termination was pretextual. See

McDonnell Douglas Corporation v. Green (1973), 411 U.S. 792; Coryell, supra, syllabus

by the court, paragraph 2.

      {¶54} The trial court found Mercy terminated appellant’s employment for lack of

productivity and poor job performance, which it found to be a legitimate non-

discriminatory reason for her discharge. The court found appellant had not met her

burden of producing evidence this was only a pretext for firing her, and the real

motivation was discrimination.

      {¶55} While we are not persuaded that reasonable minds could not differ on the

question of whether appellant’s replacement was substantially younger than she, we

agree with the trial court Mercy came forward with sufficient evidence of a non-
Stark County, Case No. 2010-CA-00182                                                   15


discriminatory reason for appellant’s firing, and appellant did not rebut that evidence to

show the reason was only pretextual. We conclude the trial court did not err in

determining appellant could not prevail on her age discrimination claim.

      {¶56} The fourth assignment of error is overruled.

      {¶57} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. PATRICIA A. DELANEY



WSG:clw 0407
[Cite as Abrigg v. Mercy Med. Ctr., 2011-Ohio-2112.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


JOANN ABRIGG                                           :
                                                       :
                           Plaintiff-Appellant         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
MERCY MEDICAL CENTER, ET AL                            :
                                                       :
                                                       :
                        Defendant-Appellee             :       CASE NO. 2010-CA-00182




   For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN

                                                           _________________________________
                                                           HON. WILLIAM B. HOFFMAN

                                                           _________________________________
                                                           HON. PATRICIA A. DELANEY
