Harrison v. Proctor & Gamble Distrib., LLC, Case No. 1:15–cv–514

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtTimothy S. Black, United States District Judge
Citation290 F.Supp.3d 723
Decision Date17 November 2017
Docket NumberCase No. 1:15–cv–514
Parties Beth HARRISON, Plaintiff, v. PROCTOR & GAMBLE DISTRIBUTING, LLC, Defendant.

290 F.Supp.3d 723

Beth HARRISON, Plaintiff,

Case No. 1:15–cv–514

United States District Court, S.D. Ohio, Western Division.

Signed November 17, 2017

290 F.Supp.3d 728

Katherine Daughtrey Neff, Randolph Harry Freking, Freking Myers & Reul LLC, Laura Welles Wilson, Freking & Betz, LLC, Cincinnati, OH, for Plaintiff.

Richard L. Moore, Matthew O. Wagner, Frost Brown Todd LLC, Cincinnati, OH, for Defendant.


Timothy S. Black, United States District Judge

This civil action is before the Court regarding Defendants' motion for summary judgment (Doc. 34) and responsive memoranda (Docs. 40, 44).


A. Factual Background

Plaintiff Beth Harrison has been an employee of Defendant The Procter & Gamble Company Distributing, LLC ("P&G") since 2000. Defendant has worked in several different departments at P&G and currently works in P&G's Trademark Licensing department. (Doc. 34, at 13)1 . However, for purposes of this suit, most relevant activity took place while Plaintiff was employed in P&G's U.S. Customs Compliance department as a customs broker from August 2011–May 2015.

For nearly all of Plaintiff's tenure with P&G, Plaintiff has been approved to take certified leave under the Family Medical Leave Act ("FMLA") as needed to care for her son, who suffers from a serious health condition that requires life-long care and

290 F.Supp.3d 729

can "flare up" intermittently and unpredictably. (Doc. 1, at 10). There was no significant friction between Plaintiff and Defendant arising from Plaintiff's taking FMLA leave for her son on an as needed basis before 2012. (Id. ).

The changing factor that appears to have been the catalyst for the conflict leading to this lawsuit was the arrival of a new manager in the U.S. Customs Compliance department, Barbara Konerman, in February 2012. (See Doc. 34, at 3). According to P&G, it was around this time that Plaintiff began having issues with attendance and with maintaining a consistent work schedule as required. (Id. at 4). Defendant alleges that "throughout 2012 and much of 2013, [Plaintiff's] availability was an issue." (Id. at 4). Plaintiff frequently notified Ms. Konerman that Plaintiff would be coming in late to work, leaving work early, or missing a work day entirely with very little notice, often same day notification. (See Doc. 34–1). It is undisputed that many of these absences were for FMLA reasons, including doctor's appointments for Plaintiff's son. However, Plaintiff also admitted to unilaterally deciding that she could arrive at work at varying hours, despite having received instructions to the contrary. (Doc. 29, at 34–37).

Barbara Konerman had a meeting with Plaintiff on August 6, 2013 to discuss the perceived problems with Plaintiff's unavailability during core work hours. (Doc. 34, at 3–4; Doc. 40–3, at 64). Plaintiff was instructed on the need to provide proper advance notification for FMLA absences in non–emergency situations. (Doc. 40–4, at 20). Additionally, as a result of her continued problems with unavailability, Plaintiff's ability to work from home was limited to one day per week. (Id. ). Typically, employees in the U.S. Customs Compliance department were permitted to work from home 40–50% of the time. (See Doc. 32, at 31–32).

P&G uses an annual employee performance rating system wherein each employee receives either a "1", "2", or "3" ranking, with a 1 indicating that the employee exceeded expectations, a 2 meaning an employee met expectations, and a 3 meaning an employee performed below expectations. (Doc. 34, at 3 fn. 2). The scores are distributed in a bell curve for each department. (Id. ). Plaintiff's annual review scores had varied in the years before her 2011–2015 stint in the U.S. Customs Compliance department. Plaintiff had earned a 3 ranking for the 2011 fiscal year, the year immediately preceding her transfer to U.S. Customs Compliance, reflecting her performance in the Baby Care Regulatory department. (Doc. 29, at 18). Plaintiff automatically received a 2 rating for the 2012 fiscal year as she had transferred to a new department. (Doc. 40–3, at 65). At the August 6, 2013 meeting referenced above, Plaintiff was informed that she would be receiving below a "2" rating for the 2013 fiscal year. (Doc. 40–3, at 64). Plaintiff was informed on October 18, 2013 that she had in fact received a 3 rating. (Doc. 34, at 5). As a result of her 3 rating, Plaintiff was placed on a Performance Improvement Plan ("PIP") on November 1, 2013. (Id. ; see also Part III.A.1.b, infra. ).

Following the negative feedback she received for fiscal year 2013, Plaintiff began seeking to transfer to another position within P&G. (Doc. 29, at 110–11). She also began to show signs of distress at work, including episodes where she lost control and cried at her desk for extended periods of time. (Id. at 120–23). Plaintiff had been encouraged by Barbara Konerman to apply for FMLA leave for herself based on excessive absences due to personal illness (Id. at 96, 110, 118), and in late November 2013 Plaintiff successfully applied for FMLA leave for her depression. (See id. at 118).

290 F.Supp.3d 730

As part of Defendant's continuing feedback regarding Plaintiff's perceived attendance issues, Ms. Konerman issued to Plaintiff a document titled "2014 Performance Expectations" on December 13, 2013. (Doc. 40–4, at 23). The document identified additional restrictions on Plaintiff's schedule and on how she would be able to use and report FMLA leave in the future. Plaintiff had previously been allowed to take unpaid leave for FMLA leave if she wanted to conserve her vacation time, but moving forward Plaintiff was required to use vacation time for her FMLA leave for the first 10 work days of absences, and could use unpaid time off afterwards. (Id. ). This change was not applied only to Plaintiff, and was in fact a reflection of a change in P&G company policy. (See Doc. 33, at 21–22 (deposition testimony of former HR manager Tayyib ("Ty") Rashid) ). P&G company policy also required any employee taking vacation time to take at least 4 hours at a time; accordingly, Plaintiff was required to use at least 4 hours of vacation time for any FMLA leave, no matter how long any particular appointment actually took. (Id. ). Plaintiff's work from home privileges were entirely revoked at this time. (Id. ). Additionally, the document required Plaintiff to be available to work from the "core hours" of 9:00 a.m.–5:30 p.m. as opposed to her previous core hours of 9:00 a.m.–3:00 p.m. (Id. ).

Defendant continued to have concerns regarding Plaintiff's non–FMLA absences and her failure to timely report anticipated FMLA appointments. Of particular note was an instance on December 16, 2013, when Plaintiff requested leave to attend a funeral on December 19, 2013. (Doc. 34, at 7). Plaintiff's request stated that she would be attending a "visitation, funeral, and burial" on the 19th. (Doc. 29–1, at 82). Plaintiff's leave request was granted. (Id. ). The visitation and funeral service in question was actually held on the evening of the 18th. (Id. at 83). Plaintiff did not attend any of the funeral related events on the 19th; during the time of the burial, Plaintiff was at home sending messages to a colleague in a different department at P&G inquiring about a transfer. (Id. at 84). This incident damaged Defendant's trust in Plaintiff's credibility. (Doc. 34, at 7).

On January 8, 2014, Ms. Konerman sent Plaintiff an email imposing an additional requirement on Plaintiff's use of FMLA leave. (Doc. 40–3, at 119). Moving forward, Plaintiff would be required to provide to P&G a note signed by a doctor for each FMLA appointment. The notes were required to contain the doctor's name, date of visit, time left, and time arrived. (Id. ).

Plaintiff's FMLA leave increased after she began taking FMLA leave for her own condition as well as her son's. Ms. Konerman accordingly informed Plaintiff on January 30, 2014 that a portion of Plaintiff's responsibilities would be reassigned to other employees in the U.S. Customs Compliance department in response. (Doc. 29–1, at 119). During that time period, Plaintiff was on FMLA leave approximately 25% of the time, and a proportionate percentage of her responsibilities were reassigned. (Id. at 125).

On February 2, 2014, in response to the reassignment of a portion of her responsibilities, Plaintiff contacted her HR representative at P&G, Ty Rashid, to claim that Ms. Konerman was retaliating against her for taking FMLA leave. (Id. ). Mr. Rashid and Tracy Stanton, an HR Administrator at P&G, met with Plaintiff on February 4, 2014, to discuss her concerns. (Doc. 34, at 8–9). Plaintiff outlined her concerns regarding her decrease in work responsibilities, her newly imposed requirement to use vacation time for FMLA leave, and her belief that her continued failure to successfully be reassigned to a new job at P&G was due to Ms. Konerman's retaliation for FMLA use. (See Doc. 33–1, at 15–20 (Tracy

290 F.Supp.3d 731

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