Swanson v. Senior Resource Connection

• Decision Date: 24 February 2003
• Docket Number: No. C-3-01-472.,C-3-01-472.
• Citation: 254 F.Supp.2d 945
• Parties: Benita SWANSON, Plaintiff, v. SENIOR RESOURCE CONNECTION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

254 F.Supp.2d 945

Benita SWANSON, Plaintiff, v. SENIOR RESOURCE CONNECTION, Defendant.

No. C-3-01-472.

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

February 24, 2003.

COPYRIGHT MATERIAL OMITTED

Benita Swanson, Karen T Dunlevey, Bieser, Greer & Landis, Dayton, OH, Jennifer Lee Stueve, Bieser, Greer & Landis, Dayton, OH, for Plaintiff.

Thomas Lucyan Czechowski, Green & Green, Dayton, OH, for Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC.# 9)

RICE, Chief Judge.

This is an employment discrimination lawsuit that was originally filed in the Common Pleas Court of Montgomery County, Ohio, and removed to this Court on account of the Complaint (attached to Doc. # 1) stating a federal claim. (Doc. # 1.) See 28 U.S.C. § 1331 (federal question jurisdiction) & § 1441(a) & (b) (general removal jurisdiction). The Plaintiff is Benita Swanson, and the Defendant is Swanson's former employer, Senior Resource Connection ("SRC"). Four counts (designated as "Claims for Relief) were plead in the Complaint. Swanson's First Claim for Relief arises under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA"). Her Second Claim for Relief arises under the discrimination law of Ohio, Ohio Rev.Code § 4112.01, et seq. This count actually alleges two different theories of discrimination: discrimination because of a disability and discrimination in the form of SRC's alleged failure to accommodate said disability. Swanson's Third Claim for Relief arises under Ohio public policy. Her Fourth Claim for Relief states a claim for intentional infliction of emotion distress, under the common law of Ohio.

SRC now moves for summary judgment. (See Doc. # 9.) For the reasons which follow, the Court will SUSTAIN SRC's Motion as to Swanson's Fourth Claim for Relief, and OVERRULE same as to the First and Second Claims for Relief. Swanson has stated at page 19 of her Memorandum in Opposition (Doc. # 14) that she is withdrawing her Third Claim for Relief, arising under Ohio public policy, and will be filing a stipulation of dismissal forthwith. Accordingly, the Court need not rule on this claim, but will direct Swanson to proceed with said filing as stated.

I. Factual Background¹

Benita Swanson was hired by SRC in 1998 as a volunteer coordinator. Her immediate supervisor was Nanci McGuire. The Director of Human Resources was Mary Carl. As of August of 2000, she was receiving positive job performance evaluations and regular merit increases. (Carl Depo. at 78-83.) Notwithstanding her adequate job performance, between April 5, 1999, and January of 2000, Swanson was charged with eight excessive absences by SRC, necessitating counseling from McGuire on the matter of improving her attendance record. (McGuire Aff., Doc. # 9 at Ex. A., H 7.) In early 2001, Swanson began experiencing symptoms of fatigue, stress, weight loss, lack of motivation and sleeping disruptions, all of which had an impact on her work. (Swanson Aff., Doc. # 14 at Ex. 2, H 1.) On January 3, 2001, McGuire issued Swanson a written reprimand because of continued absenteeism and tardiness. (McGuire Aff. 119.) On April 18, 2001, McGuire issued her another written reprimand, noting therein that since February 1, she (Swanson) had been tardy nineteen times and absent without approval seven times, and that, as a result, her next infraction would constitute grounds for her termination. (Id. 1110.)

On April 19, 2001, Dr. Meenakshi Patel diagnosed Swanson as suffering from depression. (Patel Aff., Doc. # 14 at Ex. 4, H 5.) It was Dr. Patel's professional opinion that Swanson's depression substantially limited her ability to sleep and work, but that with treatment, her difficulties could be alleviated. (Id. HI 9 & 10.) Dr. Patel prescribed medication for Swanson, scheduled a follow-up appointment for May 7, and directed her to take leave from work during the two-week interim. (Id. ¶7para;6 & 7.) On April 20, Swanson arrived on time to work and requested two week's leave as directed by Dr. Patel. (Swanson Aff. 11113 & 4.) She completed the necessary paperwork, and was informed by Carl that she would be granted leave through May 7, 2001, as allowed by the FMLA. (Id. 14; see also Doc. # 14 at Ex. 7.) The FMLA leave form which Carl issued to Swanson indicated that leave was being granted so that Swanson could care for "a serious health condition," but that she would be required to furnish a medical certification of her condition by May 7. (Doc. # 14 at Ex. 7.)

On April 24, 2001, Swanson received a letter from Carl informing her that she had been terminated, effective April 20. (Swanson Aff. K 5; see also Doc. # 14 at Ex. 6.) Carl informed Swanson that SRC was terminating her because she had not reported absent from work on April 23 or made arrangements for how her work assignments then in progress were to be handled. (Swanson Aff. H 5; Doc. # 14 at Ex. 6.) According to Carl, Swanson was "required" under the FMLA to call SRC on her first day of FMLA leave to inform it that she would not be in, and her failure to do so "negate[d] the FMLA authorization." (Swanson Aff. ¶ 5 Doc. # 14 at Ex. 6.) Carl also indicated that at the time she (Carl) authorized the FMLA leave, she had been unaware of Swanson's most recent reprimand from McGuire, and that FMLA leave could not be authorized "after the fact" without a physician's full authorization form completed in advance. (Swanson Aff. ¶ 5; Doc. # 14 at Ex. 6.) At the time in question, Swanson was unaware of any SRC policy requiring an employee to call in on his or her first day of FMLA leave to state that he or she would not be in, and she does not remember anyone at SRC instructing her to do as much. (Swanson Aff. 112.)

On advice of family and friends, who had warned of possible negative side effects, Swanson was hesitant to take the medication she had been prescribed until she had had the opportunity to discuss these issues with Dr. Patel. (Id. H 11.) Left unemployed, however, she was unable to afford continued health care insurance coverage and, consequently, treatment by Dr. Patel. (Id. f 12.)

After discussing the standard for ruling on motions for summary judgment, the Court will consider the arguments of the parties.

II. Standards Governing Motions for Summary Judgment

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always 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.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "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, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

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 to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., All U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if 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. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson,...