Mowery v. Ohio State Univ. Med. Ctr.
| Decision Date | 23 March 2012 |
| Docket Number | Case No. 2010-08705 |
| Parties | RODNEY MOWERY Plaintiff v. THE OHIO STATE UNIVERSITY MEDICAL CENTER Defendant |
| Court | Ohio Court of Claims |
{¶1} Plaintiff brought this action alleging interference with his rights under the Family and Medical Leave Act of 1993 (FMLA), as well as disability discrimination under R.C. 4112.02.1 The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.
{¶2} On October 15, 2007, plaintiff began working as a registered nurse (R.N.) on the surgical floor of West Rhodes at The Ohio State University Medical Center (OSU). Plaintiff's duties included providing patient care, performing patient assessments, ensuring patient stability and otherwise providing for the patient's needs. Generally, plaintiff would care for five or six patients during his 12 hour shifts. Plaintiff testified that on June 15, 2009, his daughter disappeared and has not been found since. Plaintiff stated that as a result, he became depressed, causing him to lose sleep and become very fatigued. Plaintiff testified that he inquired about receiving FMLA coverage in thesummer of 2009 but did not seek physician approval or request FMLA coverage for depression at that time.
{¶3} On December 17, 2009, Kristie Henneman, Human Resources Consultant, notified plaintiff that Mary Lou Hauenstein, Nurse Manager, had requested "corrective action" as a result of plaintiff's "neglect of duty." (Defendant's Exhibit H-7.) A hearing was scheduled for December 30, 2009. On December 29, 2009, plaintiff sought medical treatment from his physician for his depression and fatigue. At the hearing, plaintiff presented an "OSU Medical Certification Statement" completed by his physician indicating that plaintiff would require "intermittent time off" as a result of his condition. (Defendant's Exhibit D-5.) The form also stated that plaintiff "[i]s medically unable to perform work from 11-9-09 through 3-8-10." On January 20, 2010, defendant requested additional information about plaintiff's condition and symptoms. (Defendant's Exhibit D-4.) Pursuant to defendant's request, on February 8, 2010, plaintiff provided a "Medical Certification of Health Care Provider for Employee's Serious Health Condition" indicating that plaintiff's condition commenced on November 9, 2009, and would likely end on April 5, 2010. The form also indicated that plaintiff may require time off at either the beginning of his shift or at the end of his shift. The form was approved when defendant issued the February 22, 2010 "Designation Notice." In the designation notice, nurse manager Katie Huth wrote "[p]lease note when using FMLA, you must notify department by call off times and complete application for leave form indicating usage of FMLA." (Defendant's Exhibit D-2).2 Plaintiff signed the designation notice on February 26, 2010.
{¶4} According to plaintiff's attendance summary, between January and May 2010, plaintiff was tardy eight times, received FMLA coverage on two other occasions, was ill twice, and used ten edit slips. Huth testified that edit slips are not to be used forFMLA coverage and are generally used to alter an employee's time when an employee forgets to clock in or does not take a lunch break. Employees are not to exceed eight edit slips in any six month period. Plaintiff was marked tardy on January 22, February 11, March 19, March 25, March 26, April 2, April 16, and May 1, 2010. (Plaintiff's Exhibit 7.) Plaintiff testified that he immediately called the charge nurse at OSU as soon as he knew he would not be able to arrive to work on time for each instance of tardiness. According to plaintiff, he called the charge nurse on January 15, February 11, February 24, March 15, March 25, March 26, and April 2, 2010; however, he was unable to recall with whom he spoke or the time the phone calls were made. Plaintiff also asserts that he completed an application for leave every time that he was tardy. Of the instances of tardiness that plaintiff alleges should be covered by the FMLA, defendant marked plaintiff tardy on February 11, March 25, March 26, and April 2, 2010.
{¶5} On May 18, 2010, Henneman notified plaintiff that Huth had requested corrective action be taken for his "Neglect of Duty, Inappropriate Conduct and Unsatisfactory Attendance." (Plaintiff's Exhibit 8.) A corrective action hearing was held on May 26, 2010, and it was subsequently determined that plaintiff had "demonstrated Neglect of Duty, Inappropriate Conduct and Unsatisfactory Attendance." (Plaintiff's Exhibit 9.) Plaintiff's employment was terminated on June 16, 2010.
{¶6} Plaintiff argues that defendant violated his FMLA rights by counting tardiness against him on occasions where such tardiness should have been covered under the FMLA, and then using those instances as the basis for his termination. Plaintiff further asserts that defendant discriminated against him in violation of R.C. 4112.02 by failing to accommodate his disability. Defendant argues that plaintiff was discharged for reasons unrelated to his FMLA leave and that he failed to follow OSU'spolicies and procedures in requesting FMLA leave. Defendant further argues that it reasonably accommodated plaintiff's condition.
{¶7} "The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year if, among other things, an employee has a 'serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Walton v. Ford Motor Co. (C.A.6, 2005), 424 F.3d 481, 485, quoting 29 U.S.C. 2612(a)(1)(D). FMLA leave may be taken by an eligible employee with a serious health condition "intermittently or on a reduced leave schedule when medically necessary." 29 U.S.C. 2612(b)(1).
{¶8} In order for an employee to establish that an employer interfered with his rights under the FMLA, the employee must show that: "(1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled." Walton, supra.
{¶9} "When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. 825.303(a). 29 C.F.R. 825.303(b). 29 C.F.R. 825.303(c).3
{¶10} The parties do not dispute that plaintiff was an eligible employee, that defendant was a covered employer, and that plaintiff was entitled to take intermittent FMLA leave for his depression. The parties disagree whether plaintiff gave timely notice of his intention to take leave on certain dates and whether defendant denied plaintiff FMLA benefits to which he was entitled.
{¶11} Plaintiff testified that he telephoned the charge nurse on duty as soon as he realized that he was going to be late because of his depression. Plaintiff explained that such a realization usually occurred when he would wake up after a restless sleep shortly before his shift would begin. Plaintiff also asserted that he completed the required forms every time his depression caused him to lose sleep and be late for work.
{¶12} Jody Robbins, R.N., who periodically served as a charge nurse, testified that a charge nurse performs the same duties as the other R.N.s and is also responsible for staffing assignments. Robbins stated that when a nurse was not coming in or would be coming in late, the nurse was required to call the charge nurse in advance, who would then record the information on the back of the daily assignment sheets.4 According to Robbins, the charge nurse would not know who was eligible for FMLAunless the nurse who was calling in personally informed her. Robbins testified that plaintiff would not call in late to the charge nurse and instead would simply show up late. Charge nurse Kandy Sollars also testified that any nurse who is late or absent is required to call the charge nurse in advance and that the charge nurse must record the information on the back of the daily assignment sheets. Sollars testified that plaintiff generally would not call in and would usually just show up late. Sollars stated that she recalled one instance where plaintiff called in to request FMLA leave in order to meet with an attorney. Sollars confirmed that a charge nurse would not know whether an employee was eligible for FMLA leave unless the employee said so during the conversation.
{¶13} Henneman testified that in order to receive FMLA coverage for tardiness, a nurse was required by defendant's policies to call the charge nurse three hours prior to his shift, and to subsequently complete a written ...
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