Senter v. Hillside Acres Nursing Center of Willard, No. 3:03 CV 7638.

• Decision Date: 14 September 2004
• Docket Number: No. 3:03 CV 7638.
• Citation: 335 F.Supp.2d 836
• Parties: Mary Lou SENTER, Plaintiff, v. HILLSIDE ACRES NURSING CENTER OF WILLARD, INC., et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

335 F.Supp.2d 836

Mary Lou SENTER, Plaintiff, v. HILLSIDE ACRES NURSING CENTER OF WILLARD, INC., et al., Defendant.

No. 3:03 CV 7638.

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

September 14, 2004.

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Heather Love Carman, Goodrum & Carman, Sandusky, OH, for Plaintiff.

Dean E. Westman, Kastner, Westman & Wilkins, Lisa A. Kainec, Kastner, Westman & Wilkins, Akron, OH, for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendants' Motion for Partial Summary Judgment (Doc. No. 25). Plaintiff has filed a response (Doc. No. 26); Defendant, a reply (Doc. No. 28). For the reasons stated below, Defendants' motion will be granted in part and denied in part.

BACKGROUND

Taken in the light most favorable to Plaintiff, the facts are these. Plaintiff Mary Lou Senter applied to work at Hillside Acres Nursing Home (Hillside) in 1999.¹ In her application, Plaintiff stated she was looking for any kind of work and informed Hillside that she suffered from thrombophlebitis and vericose veins. Hillside hired Plaintiff on June 8, 1999, to work in its Housekeeping Department, which required Plaintiff to work in the areas of "housekeeping, laundry, apartments, bed washing, and personals." Plaintiff and her supervisor, Defendant Lois Hicks ("Hicks"), agree that Plaintiff could do the job.

On June 9, 1999, Hillside gave Plaintiff "Hillside Acres' Staff Handbook For Hourly Employees." This handbook provided that:

16.1 A staff member who has worked for Hillside Acres for at least twelve (12) months and for at least 1250 hours during the prior twelve (12) months may take up to twelve (12) weeks of unpaid family medical leave as required by the Family and Medical Leave Act of 1993 for the following reasons ... (iii) A serious health condition which renders the staff member unable to perform the functions of his or her position....

....

16.9 Staff members who return to work from a family medical leave of absence within or on the business day following the expiration of the twelve (12) weeks are entitled to return to their job or an equivalent position without loss of benefits or pay.

(Doc. No. 25, Exhibit F, pp. 14-15). This handbook also included a disclaimer stating:

This Handbook ... is not to be relied upon as a contract of employment, either actual or implied, a promise by Hillside, or as consideration for you to accept employment or to continue employment with Hillside. Hillside Acres Nursing Home reserves the right to change, add to, and delete provisions of this Handbook, without notice.

(Doc. No. 25, Exhibit F, p. 1). Additionally, Plaintiff signed a waiver acknowledging that:

This Handbook is presented for informational purposes only and can be changed by the company at any time with or without notice. This Handbook is not a contract, express or implied, between the employee and the Company, nor shall it be construed to create such a contract.

I further understand that my employment is at-will and thereby understand that my employment can be terminated at-will by the facility or myself and that such termination can be made with or without notice.

I hereby acknowledge that I have received and understand the employee policy handbook of Hillside Acres Nursing Home and also understand that these policies are subject to change at any time.

(Doc. No. 25, Exhibit I, p. 32).

When Hillside was purchased by Liberty Nursing Centers in 2001, Hillside issued a new employee handbook containing a materially similar Family and Medical Leave provision, which added that employees returning from family or medical leave "will be guaranteed" in lieu of the same or an equivalent position, "alternative employment assistance if the employee's position is eliminated or the employee is laid-off during the leave period." (Doc. No. 25, Exhibit H, p. 12). The second handbook contained a disclaimer reading:

The contents of this handbook are not all-inclusive and are presented as a matter of information only. While we believe wholeheartedly in the policies and procedures described here, they are not conditions of employment and are subject to change without notice.

(Doc. No. 25, Exhibit H, p. 1). Plaintiff also signed a new waiver, in which she acknowledged:

I understand that the information, policies, and benefits described [in the handbook] are subject to change, with or without notice. I further understand that in the event of a conflict between handbook information and official policy information, the policies supercede the handbook.

[E]ither I or Hillside Acres can terminate the employment relationship at will, with or without cause, at any time.

Furthermore, I acknowledge that this handbook is neither a contract for employment nor a legal document. I have had an opportunity to read the handbook and understand the policies and procedures.

(Doc. No. 25, Exhibit I, p. 33).

During her employment with Hillside, Plaintiff occasionally missed work due to various medical conditions. In all of those cases, Plaintiff was granted the leave she required and was put back to work when her doctors indicated she was able to return. When Plaintiff returned to work with temporary restrictions on her ability to scrub on her hands and knees and to use a buffer, Hillside allowed her to return to work and to perform all of her duties except the restricted ones.

In January 2002, Plaintiff developed an ulcerated sore the size of a silver dollar on her leg. On January 24, 2004, Plaintiff's doctor placed her in a boot wrap, told her to stay off her feet, and instructed her to take medical leave from work until March 11, 2002. The sore healed, and on April 5, 2002, Plaintiff's doctor issued her a return to work slip indicating she could resume working on April 15, 2002, with no restrictions.

Plaintiff spoke with Hicks and the Hillside Acres administrator, Defendant Randy Bee ("Bee"), who both suggested Plaintiff get a new return to work slip from her doctor. Plaintiff did so, and the doctor issued a new slip stating that Plaintiff could perform all her regular housekeeping duties except running the buffer/stripper. When Plaintiff presented the new slip to Hicks and inquired when she was to begin work, Hicks informed Plaintiff that Hicks had not made out the work schedule, and instructed Plaintiff to return later. When Plaintiff returned to find her name was not on the newly posted schedule, Hicks informed her that the schedule had already been made out but that Plaintiff could expect to be placed on the next two-week work schedule.

Hicks did not put Plaintiff on that schedule either, and when Plaintiff inquired as to why, Hicks told Plaintiff it was because the company was over its budget. When Plaintiff was not on the next two-week schedule, she again asked Hicks why she was omitted. This time Hicks told Plaintiff, "you can't come back because you need a sit-down job and because of your medical." (Doc. No. 25, Attachment 3, p. 107). Plaintiff then asked Hicks to put the reason in writing. Hicks indicated she needed to speak with Bee before doing so, and instructed Plaintiff to return the following Monday to receive the written note. When Plaintiff returned and requested the note from Hicks, Hicks claimed, "Oh, I didn't say that."

On May 13, 2002, Plaintiff filed a charge with the Ohio Civil Rights Commission ("OCRC"), claiming Hillside discriminated against her based on her age and disability. The OCRC issued a finding of "no probable cause." Plaintiff requested reconsideration, and OCRC's Regional Director affirmed the finding of "no probable cause."

Plaintiff filed suit on October 7, 2003 in Huron County, Ohio Common Pleas Court. While Plaintiff's Complaint does not clearly state the claims she purports to make, after careful scrutiny the Court discerns claims based on violations of the Family and Medical Leave Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act; violations of concomitant Ohio age and disability statutes; breach of contract; and, as the Court will discuss below, promissory estoppel. Defendants removed the case to this Court and filed a motion for partial summary judgment as to Plaintiff's breach of contract claims, federal and state "regarded as" disabled claims, and state law age discrimination claims (Doc. No. 25).

DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56Copr.. The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2541, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, ...