Neely v. Benchmark Family Servs.

• Decision Date: 20 April 2015
• Docket Number: Case No. 3:13-cv-415
• Parties: David Neely, Plaintiff, v. Benchmark Family Services., Defendant.
• Court: U.S. District Court — Southern District of Ohio

David Neely, Plaintiff, v. Benchmark Family Services., Defendant.

Case No. 3:13-cv-415

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

April 20, 2015

Judge Thomas M. Rose

ENTRY AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, (DOC. 23), AND TEMINATING CASE.

Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. 23.) Therein, Defendant requests that the Court award summary judgment on all of Plaintiff's claims stemming from Plaintiff's dismissal from employment with Defendant six months after his hire. Plaintiff's federal claims are for disability discrimination and retaliation. Because Plaintiff cannot prove he was disabled and was not engaged in protected conduct, both of these claims fails. Plaintiff's state law claims are similarly without merit.

I. Background

Plaintiff David Neely claims to have experienced sleeping problems including only getting only 2 to 3 hours of restful sleep per night, falling into micro sleeps during the day, and snoring, from adolescence to the present. (Doc. 26-1, Pl. Ex.1, Affidavit of David Neely.) Neely affies that from 2002 to 2005, he sought treatment from his family physician, Dr. Shah. (Doc. 26-1, Pl. Ex.1.) From 2009 to 2012, he sought treatment from a new family physician, Dr. Froelich. Dr.Froelich prescribed Concerta partially for Plaintiff's sleep issues. She also prescribed Synthroid for hypothyroidism and to increase energy levels.

In April 2010, at Dr. Froelich's referral, Neely was evaluated by Dr. George Burton, a specialist who deals with sleep issues, at Kettering Medical Center. According to a letter from Dr. Burton to Dr. Froelich, Plaintiff "has absolutely horrible sleep hygiene, sleeping basically when he feels like it, but usually going to bed around 3 a.m. and sleeping through till 1 p.m." (Report Dr. Burton, Doc. 23-9 at 1, PAGEID 218.) Dr. Burton further states, "It is clear that [Plaintiff] is poorly disciplined in both his sleep hygiene, and his taking of medication, as well as his food consumption." (Id. at 3, PAGEID 220). Dr. Burton's "impression" was that Plaintiff "has poor sleep hygiene, insufficient sleep syndrome, and probable obstructive sleep apnea." (Id. at 6, PAGEID 222). Dr. Burton ruled out physiological conditions including orthopnea or paroxysmal nocturnal dyspnea, narcolepsy, insomnia, parasomnia, restless leg syndrome, cataplexy, hynagogic or hypnopomic hallucinations, automatic behavior or sleep paralysis. (Id. at 1, 3, PAGEID 218, 220). Dr. Burton recommended a "free T4 and TSH study as well as a polysomnogram, and [maintaining] a sleep log." (Doc. 26-1, at 12, PAGEID 273.) There is no evidence Plaintiff followed this advice, declining to allow Dr. Burton's impression to mature into a diagnosis.

Seven months later, on December 5, 2011, Defendant Benchmark Family Services hired Neely. At this time, Neely was self-treating himself by taking supplements and drinking coffee. (Doc. 26-1.) Within two weeks he was promoted to Support Administrator. Unlike a Support Specialist, as Support Administrator he was able to "manage support operations and support specialist," reported directly to the Chief Information Officer. (See Job Descriptions of SupportSpecialist and Support Administrator, Doc. 26-1). There was no increase in compensation or benefits as a result of this change. (Id.)

Shortly after being moved to Support Administrator, Benchmark Family Services began taking issue with Plaintiff's performance in the office and on the job. (Hanrahan Affidavit, Doc. 23-15 at 2, PAGEID 236). Benchmark Family Services describes these issues as slow response times to IT work orders; lack of attention to job duties, including being unaware of new IT work orders coming in; failure to close tickets out and lack of knowledge in the process of closing out IT work orders. (Id; see also Exhibit H, Verbal Reprimand, Doc. 23-6, PAGEID 210.) Another employee affied that, when not actively working on tickets, Plaintiff was often seen playing on his phone, playing games or doing other non-work related things. (Id.) Plaintiff, by means of affidavit, denies this. Defendant contends, that Plaintiff was having issues with staying awake while at work and would often be found sleeping at his desk or would fall asleep during meetings. (Id.) Plaintiff asserts by means of personal affidavit that these were micro-sleeps caused by a sleep disorder.

During the first several months of his employment, Neely mentioned to Jason Hanrahan and Ryan Darling, two members of Benchmark Family Services management, that he had a sleeping disorder which caused him to suffer fatigue and experience micro sleeps. (Doc. 26-1.) Darling suggested he take some supplements, "so it's not an issue." (Id.) When Neely explained he was trying to treat the issue himself, Darling replied, "Well, try to hurry up with that." (Id.)

Plaintiff's supervisors, over the course of several months, discussed these issues with Plaintiff. (Hanrahan Affidavit, Doc. 23-15 at 2, PAGEID 236.)

19. As early as March 2012, Ryan Darling and I started noticing that Plaintiff would fall asleep while at work.

20. Employees were finding it difficult to work with Mr. Neely sleeping while at his desk or in meetings.

21. Mr. Neely's sleeping was a distraction during meetings and/or trainings both within the IT Department and within BFS as a whole.

22. Mr. Darling and/or I would have to step in and put an end to employees who were making comments directed to Mr. Neely's sleeping all the time while at work, which interfered with our ability to do our jobs.

23. Mr. Darling and/or I discussed this issue with Mr. Neely numerous times between at least March 2012 and May 2012.

24. Mr. Neely was sound asleep, often times requiring someone to wake him up or to do something that would wake him up, not just dropping his head and waking up immediately.

25. Mr. Neely would often be asleep for at least five to ten minutes before being woken up.

26. Mr. Neely would always respond that he thought he had a sleep disorder.

27. Mr. Darling and/or I would request that Mr. Neely provide us with documentation of his sleep disorder, and also recommendations from his treating physician on accommodations in the work place.

28. During Mr. Neely's entire tenure of employment and during the entire EEOC investigation process, we received no documentation of Mr. Neely having a disability or any request for accommodations.

(Doc. 23-15, at 3, PAGEID 237.) Plaintiff, who apparently was not deposed, denies this by means of an affidavit, asserting he suffered from micro sleeps that did not affect his performance.

Plaintiff did not seek medical treatment while employed at Benchmark Family Services. (See Answer to Admission Request #6, Doc. 23-10, PAGEID 224.)

On May 25, 2012 Neely received a "Verbal Reprimand" for alleged performance issues and for "continually fall[ing] asleep during the workday, trainings and meetings." (Exhibit H of Defendant's Motion, Doc. 23-6, PAGEID 210.) The reprimand stated it was issued for lack of urgency surrounding tickets and other work performance related issues. (Id.) It claims Plaintiff had the highest average response time of the entire IT team, with his response time being almost double that of anyone else in the IT Department. (Id.) It claims that, in the three months preceding his reprimand, others in the IT Department had to pick up his slack in assigning work orders, or alerting Plaintiff that there were work orders to be assigned. (Id.) Plaintiff had trouble remembering between the various domains and networks that the IT managed, and had problems troubleshooting and correcting issues with printers. (Id.) The verbal reprimand informed Plaintiff he was returning to the Support Specialist position, and his introductory period was extended an additional six months. (Id.; see also Exhibit "A".)

When Benchmark Family Service confronted Neely with the reprimand on May 25, Neely claimed again that a sleeping disorder caused fatigue and micro sleeps. Darling appeared frustrated by his statement and responded, "Whatever. You're still falling asleep." Neely disagreed with Darling about the merit of the alleged performance issues and about his sleeping disorder causing a disruption with his work. He also complained about the decision to demote him. Neely was demoted to his original position of Support Specialist and no longer was responsible for managing the team of support staff.

The following week, Neely spoke to his supervisor Jason Hanrahan about the demotion and write up. (Doc. 26-1.) He told Hanrahan he disagreed with the demotion and was quite shocked to have received it. He further complained to Hanrahan, "I don't feel it was fair to use my sleeping issues against me like that." Hanrahan stated he agreed to the Verbal Reprimandsigned by Darling. After the meeting, Neely claims to have sent messages to a human resources manager to discuss his dissatisfaction with the write up, demotion and discrimination. He claims to have never received a response.

The following week at work following Plaintiff's demotion, Plaintiff's co-workers perceived a bad attitude with his supervisors and other staff members. (Exhibit I; Affidavit Hanrahan; Affidavit Jeffers; Affidavit Merchant.) His co-workers attest to Neely being argumentative with supervisors and other members of the Department. (Id.) They also claim Neely was argumentative with a supervisor regarding department procedures. When asked by others in the Department to work on tickets, he would be grumpy or tell them to contact the Supervisors of the Department as it was "their" problem, not his. (Affidavit Jeffers; Affidavit Merchant; Affidavit Hanrahan.)

On June 1, 2012, Benchmark Family Services terminated Neely's employment. (Doc. 23-7, PAGEID 216.) Neely filed a complaint with the EEOC, receiving a right to sue letter on September 18, 2013.

On December 13, 2013, Plaintiff filed a complaint that conflates six distinct claims into "Count I."...