King v. Aultman Health Found., 2009 Ohio 6277 (Ohio App. 11/30/2009)

• Decision Date: 30 November 2009
• Docket Number: No. 2009 CA 00116.,2009 CA 00116.
• Citation: 2009 Ohio 6277
• Parties: Brianne King, Plaintiff-Appellant, v. Aultman Health Foundation, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 1

2009 Ohio 6277

Brianne King, Plaintiff-Appellant, v. Aultman Health Foundation, et al., Defendants-Appellees.

No. 2009 CA 00116.

Court of Appeals of Ohio, Fifth District, Stark County.

Date of Judgment Entry: November 30, 2009.

Civil Appeal from the Court of Common Pleas, Case No. 2008 CV 02028.

Affirmed.

Katherine C. Hart Smith, Hart Smith Law Office, 1110 Key Building, 159 South Main Street, Akron, Ohio 44308, Cleveland, Ohio 44114-1304, for Plaintiff-Appellant.

Bruce Hearey, Ellen Toth, Kristin Ulrich Somich, Ogletree, Deakins, Nash, 4130 Key Tower, 127 Public Square, for Defendants-Appellees.

Before: Hon. Sheila G. Farmer, P. J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.

OPINION

WISE, J.

{¶1} Plaintiff-Appellant Brianne King appeals the April 10, 2009, judgment entry of the Stark County Court of Common Pleas granting summary judgment in favor of Defendants-Appellees Aultman Health Foundation, Aultman Hospital, Linda Griggs, Patricia Russell and David Dine on Appellant's claims of disability discrimination and false imprisonment.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On May 22, 2002, Appellant Brianne King began her employment with Appellee Aultman as a nurse aide. A nurse aide assists in providing patient care under the direction of a registered nurse and performs tasks such as assisting in the admission, discharge and transfer of patients, changing bed linens, bathing patients and providing general patient care.

{¶3} Appellant began working at Aultman on the Memorial 4 East floor. Her 2002 Performance Evaluation by her supervisor Unit Director Karen Chirumbulo notes that she had six (6) attendance occurrences in 2002 and that she needed to improve her attendance.

{¶4} In March of 2003, Aultman granted Appellant's request for a medical leave of absence for surgery. Appellant was off work from March 24, 2003 until May 5, 2003.

{¶5} On October 26, 2003, Appellant transferred to the Memorial 5 North floor. Her 2003 Performance Evaluation by her supervisor Unit Director Dine notes that her attendance "needs improvement."

{¶6} In February 2004, Appellant received a written warning relating to her attendance. This warning was signed by Appellant and Mr. Dine. Despite this warning Appellant again called off work on May 9, 2004 and May 12, 2004, and was suspended for three days as a result.

{¶7} On May 14, 2004, Aultman gave Appellant an undated written warning that if she called off work during the next four months her employment would be terminated.

{¶8} In May, 2004, Appellant was hospitalized at Aultman for an infection.

{¶9} In June, 2004, Appellant requested, and was granted, a medical leave of absence until August, 2004, for surgery.

{¶10} Appellant's 2004 Performance Evaluation again stated that Appellant needed to work on her attendance.

{¶11} In 2005, Appellant requested, and was granted, a medical leave of absence from February 27 until May 16, again for surgery.

{¶12} For the first time, in October of 2005, Appellant submitted a medical certification seeking intermittent leave under the federal Family and Medical Leave Act ("FMLA") for headaches and endometriosis, which was granted. The FMLA certifications from her physician, Robert Sliman, M.D., referred to intermittent leave being necessary in full-day increments.

{¶13} Appellant's 2005 Performance Review again warned her she needed to work on attendance.

{¶14} In March, 2006, Aultman gave Appellant a verbal warning for tardiness.

{¶15} In August, 2006, Appellant received another written warning for tardiness.

{¶16} In September, 2006, Aultman suspended Appellant for twenty-four (24) work hours (at least two full shifts) without pay for tardiness, and placed her on a six-month probationary period for her tardiness.

{¶17} Appellant's 2006 Performance Evaluation stated that her attendance was improving but she needed to get to work on time consistently.

{¶18} Appellant called off work again on January 9, 2007 and February 8, 2007.

{¶19} On March 19, 2007, Aultman gave Appellant a written "last chance" suspension for tardiness because she came to work late on February 24, March 2, March 15, and March 19, 2007.

{¶20} Appellant signed the March 19, 2007 suspension document, which stated:

{¶21} "This memo is to inform Brianne King that she is being suspended for tardiness. Brianne was suspended on September 26th of 2006 for tardiness and put on a 6 month probationary period. Since then, it was brought to my attention that Brianne came in late on February 24th (start time 10:00 am and didn't show up until 10:30 am), March 2nd (start time 6:00 am and came in at 6:15 am), March 15th (start time 6:00 am and came in at 6:15 am) and on March 19th (start time 6:00 am and came in at 8:00 am). I've talked to Brianne in the past regarding the importance of showing up to work on time and the effects it has on the unit. Since this is an ongoing issue with Brianne she will be suspended for a total of four 12 hour shifts starting March 20th, 2007 (3/20, 3/24, 3/25, and 3/29), and taken off of her 12 hours shifts beginning with the May 13th schedule. Brianne's probation will be extended until July 19th, 2007. If Brianne is late at all during that time she will be terminated."

{¶22} On April 12, 2007, Appellant was again late for work.

{¶23} On April 15, 2007, Mr. Dine left Memorial 5 North as Unit Director and became a staff nurse in medical intensive care. At that time, Linda Griggs stepped in as Interim Unit Director and became Appellant's supervisor.

{¶24} During the week of April 21, 2007, Interim Unit Director Griggs and Nicole Gemma, Clinical Associate Vice President and Ms. Griggs' direct supervisor, met with Appellant. At this time, Ms. Griggs warned Appellant her employment would be terminated if she was late to work again.

{¶25} Appellant's name was on the surgical division spreadsheet for May 8, 2007, for Memorial 5 North but she failed to show at work for her scheduled shift at 6:00 a.m. Several of the nurses on duty tried to contact her multiple times, but she did not answer. When Ms. Griggs arrived at work, she also called Appellant, leaving a voicemail message. After receiving the messages, Appellant called the Unit at approximately 10:30 a.m. stating that she forgot she was scheduled to work. She admitted she checked her schedule after hearing the messages on her cellular phone and realized she had volunteered to pick up the shift, but had forgotten. At that time, Appellant offered to come in; however, Ms. Griggs told her that Aultman had already found another staff member to cover the shift.

{¶26} Ms. Griggs asked Appellant to meet with her on May 9, 2007, in Ms. Gemma's office. Ms. Griggs asked Patty Russell, the Unit Director for another floor, to sit in on the meeting with Appellant. At this meeting, Ms. Griggs discussed Appellant's attendance problems and her prior warnings. Ms. Griggs then offered Appellant the option of resigning her employment with Aultman or being terminated. Appellant asked to take the resignation and termination forms home to consider; however, Ms. Griggs informed Appellant that she needed to decide whether she would resign or not before she left the hospital. Plaintiff-Appellant opted to resign, effective that day, May 9, 2007.

{¶27} On April 25, 2008, Plaintiff-Appellant Brianne King filed a Complaint with the Stark County Court of Common Pleas, alleging (1) discrimination based on disability under R.C. §§ 4112.02 and 4112.99 against Defendants-Appellees Aultman Health Foundation, Aultman Hospital, David Dine, Patricia Russell and Linda Griggs; (2) false imprisonment against Defendants-Appellees Aultman Health Foundation, Aultman Hospital, Patricia Russell and Linda Griggs; (3) invasion of privacy against Dr. Robert Sliman and Defendants-Appellees Aultman Health Foundation, Aultman Hospital and David Dine; and (4) breach of confidentiality against Dr. Sliman and Defendants-Appellees Aultman Health Foundation and Aultman Hospital.

{¶28} On May 16, 2008, Dr. Sliman filed an Answer and on May 22, 2008, he filed a Motion to Dismiss.

{¶29} By Judgment Entry filed June 25, 2008, Dr. Sliman's Motion to Dismiss was denied.

{¶30} On June 27, 2008, Defendants-Appellees answered.

{¶31} On January 7, 2009, Plaintiff-Appellant dismissed Dr. Sliman from the case.

{¶32} On February 20, 2009, Defendants-Appellees filed a Motion for Summary Judgment on all of Plaintiff-Appellant's claims.

{¶33} On March 18, 2009, Plaintiff-Appellant filed an Opposition to Defendants-Appellees' Motion for Summary Judgment.

{¶34} On March 25, 2009, Defendants-Appellees filed a Reply Brief in Support of Motion for Summary Judgment.

{¶35} On April 10, 2009, the trial court issued a Judgment Entry granting Defendants-Appellees' Motion for Summary Judgment on all claims.¹

{¶36} It is from this decision Appellant now appeals, assigning the following errors for review.

ASSIGNMENTS OF ERROR

{¶37} "I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF-APPELLANT'S CLAIM FOR DISABILITY DISCRIMINATION.

{¶38} "II. THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF-APPELLANT'S CLAIM FOR FALSE IMPRISONMENT."

Summary Judgment Standard

{¶39} We review Appellant's Assignments of Error pursuant to the standard set forth in Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

{¶40} "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the...