Brown v. Duke Energy Corp.
| Decision Date | 31 March 2019 |
| Docket Number | Case No. 1:13cv869 |
| Parties | Nancy J. Brown, Plaintiff, v. Duke Energy Corporation, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This matter is before the Court upon Defendant Duke Energy's Motion for Summary Judgment. (Doc. 40). Plaintiff Nancy Brown filed a Response (Doc. 57) and Defendant filed a Reply (Doc. 63). The parties provided additional briefing on Plaintiff's request for adverse inferences as a discovery sanction. (Docs. 66, 68, 70).
The facts of this case are largely undisputed. Plaintiff is a Caucasian female born in 1962. (Doc. 1, ¶ 10). Plaintiff has been partially deaf since childhood. Plaintiff also has severe allergies, including an allergy to mold. Plaintiff began her employment with Defendant in May of 2007. In September of 2010, she was hired into the position of Billing Supervisor. In that position, she reported to Paige Adams. Adams, in turn, reported to Billing Director Greg Cranford, who was located in Charlotte, North Carolina.
During the summer of 2011, a conflict arose between Plaintiff and Adams over Plaintiff's efforts to discipline three employees supervised by Plaintiff: Terrell Williams, Darnell McGee, and Chris Elliot. (Doc. 37, Nancy Brown Dep. at 42, PAGEID# 3329). Williams and McGee are African American; Eliot is Caucasian. Plaintiff believed that Adams was trying to protect them. (Id. at 96, PAGEID# 3383). Plaintiff raised her concerns with Adams. (Id. at 43, PAGEID# 3330). Plaintiff also raised her concerns with Cranford. (Id.) Plaintiff met with Melissa Feldmeier, who was an in-house attorney for Defendant. (Id.) Plaintiff explained to Feldmeier that she believed Adams was preventing her from reprimanding these employees because they were male and African American. (Doc. 29, Melissa Feldmeier Depo. at 13, PAGEID# 1959). Feldmeier referred the matter to investigation. (Id. at 17, PAGEID# 1963). As a result of the investigation, Adams was transferred to another position. (Id. at 28-29, PageID 1974-75). After Adams was transferred, Tiffany Moore1 assumed Adams' role of Mass Market Manager. (Doc. 20, Greg Cranford Dep. at 44, PAGEID# 318).
In January of 2012, Plaintiff began having sinus infections due to mold in her office building. (Brown Dep. at 24, PAGEID# 3311). Plaintiff asked Moore for an air filter for her office, but did not receive one. (Id.)
Plaintiff had been using Moore's administrative assistant, Michelle Basch, to help her proofread her written communications. (Doc. 36, Moore Dep. at 46, PAGEID# 2855). However, at some point, Moore told Basch that she needed to prioritize her own deadlines over the proofreading work she was doing for Plaintiff. (Moore Dep, at 48, PAGEID# 2857).
Plaintiff began taking notes about her interactions with Moore. (Doc. 38-1, PAGEID# 3969). Plaintiff wrote that during a meeting on June 6, 2012, Moore told Plaintiff that because she had "been missing work to go to doctors and [because she was] sick,"Moore "did not know if she was going to discipline me or put me on FMLA." Doc. 38-1, PAGEID# 3970).
Moore became concerned that Plaintiff had some work performance issues. (Doc. 36, Tiffany Moore Dennison Dep. at 57, PAGEID# 2866). Specifically, Plaintiff had a lot of time out of the office, had communication problems, and had trouble "seeing the big picture."2 (Id. at 60-61, PAGEID# 2869-2870). Moore contacted Bernadette Toebbe in the Human Resources Department about these issues. (Id.) Moore worked with Toebbe on developing a Performance Improvement Plan ("PIP"). (Id. at 68, PAGEID# 2877). Moore and Toebbe had decided to give Plaintiff the PIP at the same time as her mid-year performance appraisal. (Id. at 149, PAGEID# 2958).
The PIP focused on three areas for improvement: availability, communication skills, and focusing on what matters most. (Doc. 57-4 at PAGEID# 8014). The PIP also outlined what Plaintiff needed to do to improve in each of those areas. (Id.) Under "availability," the PIP states that (Doc. 57-4, PAGEID# 8014). The PIP also notes that "[t]here has been and excessive amount of non-FMLA absenteeism, late arrivals and/or early departures from January through June,2013." (Id.) The PIP then lists seventeen occasions when Plaintiff was out for sickness, doctors' appointments, a CT scan or gum surgery. (Doc. 57-4, PAGEID# 8014-8015).
In the mid-year performance appraisal, one of Plaintiff's competencies was "Communicating with Impact." (Doc. 37-1, PAGEID# 3741). Under "Areas for Improvement" it states:
This continues to be a struggle. Nancy has made improvement on her weekly updates, and is doing a better job of keeping me in the loop on items, but still has a hard time with what items need to be brought to my attention (this goes back in part to seeing how her team fits into the big picture). Her spelling errors also have improved over the last few months, however, the amount of misspelled words and grammatical errors is still unacceptable. A recent example of this was in an email to HR in regards to an employee knocking on Nancy's door; Nancy wrote "interpret" when it should be "interrupt" several times throughout the correspondence-Nancy recognizes her challenges in written communication and is working to improve via classes. Now, she should focus on taking what she learns during her classes and apply them to her day to day activities. Nancy needs to proofread her work more closely prior to sending emails, documents, etc. When In question of a meaning of a specific word Nancy either needs to look the word up or ask others for guidance.
(Doc. 37-1, PAGEID# 3741).
A meeting to discuss Plaintiff's mid-year performance appraisal and the PIP was scheduled for July 19, 2012. (Doc. 22, Moore Dep. at 367, PAGEID# 2262). However, on the morning of July 19th, Plaintiff cancelled the meeting because she was going to the doctor. (Doc. 23, Brown Dep. at 272, PAGEID# 3559; Doc. 37-1 at PAGEID# 3734). Plaintiff went out on FMLA leave that same day, and returned on September 24, 2012. (Id.)
On September 25th, Moore delivered Plaintiff's mid-year performance appraisal and placed her on the PIP. (Doc. 36, Moore Dep at 147, PAGEID# 2956; Doc. 37-1, PAGEID# 3738). Plaintiff requested a review of her mid-year performance appraisal andthe PIP. (Doc. 29-1, Feldmeier Dep. Ex. 58, PAGEID# 2052-2083). Plaintiff claimed that the performance issues were never brought to her attention before the mid-year performance appraisal and the PIP. (Doc. 37-1, PAGEID# 3771). Defendant's HR Business Partner, Georgia Curley, conducted the investigation on behalf of James Rainer, Vice-President of Revenue Services. (Doc. 29-1, Felmeier Dep. Ex. 59, PAGEID# 2084). The decision to administer the PIP and the 2012 mid-year performance appraisal was upheld. (Id.)
On September 28, 2012, Plaintiff reported to Cranford that she felt "harassed again." (Doc. 36-1, PAGEID# 3201-3202).
In October of 2012, Duke Energy began a reorganization of the company as the result of its merger with Progress Energy. (Cranford Dep. at 63, PAGEID# 337). Defendant reduced the number of Billing Supervisors in Charlotte, North Carolina from three to two. (Doc. 36, Moore Dep. at 168, PAGEID# 2977). Defendant did not conduct interviews for the Billing Supervisor positions in Charlotte. (Doc. 36, Moore Dep. at 169, PAGEID# 2978). However, Cranford decided to open up Plaintiff's Billing Supervisor position for interviews. (Cranford Dep. at 66-67, PAGEID# 340-41). Plaintiff was notified on October 1, 2012 that she could interview for her own position as Billing Supervisor. (Doc. 38-1, PAGEID# 3908).
Plaintiff was one of six candidates who interviewed for the Cincinnati Billing Supervisor position. (Cranford Dep. at 170). Plaintiff's interview took place on October 3, 2012. (Doc. 36-1, PAGEID# 3138). Cranford conducted the interviews along with Georgia Curley and Kevin King, who was replacing Moore as manager for Mass Market Billing. (Cranford Dep. at 80, 169, PAGEID# 354, 443). King testified that before he tookover Moore's position as Mass Market Billing Manager, Moore discussed Plaintiff with King. (Doc. 46, Kevin King Dep. at 31, PAGEID# 5305). Moore told King that Plaintiff was on a PIP, but King does not know if that was before Plaintiff's interview. (King Dep. at 78, PAGEID# 5352).
The interviewers used a worksheet to score each candidate based on certain qualifications, such as customer service experience, and written and oral communication skills. (Cranford Dep. at 169-170, 173-174, PAGEID# 443-444, 447-448; Doc. 35-1, PAGEID# 2748). Some qualifications were given more weight than others when calculating the scores of the candidates. (Cranford Dep. at 177, PAGEID# 451). The interviewers discussed and agreed upon the final scores for each of the candidates. (Cranford Dep. at 169, PAGEID# 443). The candidates were ranked based on their scores. (Cranford Dep. at 171, PAGEID# 445). Plaintiff was ranked fifth out of the six candidates. (Doc. 35-1, PAGEID# 2748). Based on this process, King recommended Ryan Champness for the position. (Cranford Dep. at 169, PAGEID 443). Both Crawford and Curley agreed with King's decision. (Id.)
Plaintiff was informed at the end of October that she had not been hired into the Billing Supervisor position, and she had until November 30, 2012 to find another position within the company. (Doc. 37, Brown Dep. at 297, PAGEID# 3584). Plaintiff applied for several positions within the company. Plaintiff also applied for intermittent FMLA leave to allow her to get allergy shots during the day. (Doc. 37,...
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