Wysong v. Dow Chemical Co.

Decision Date01 October 2007
Docket NumberNo. 05-4197.,05-4197.
Citation503 F.3d 441
PartiesKimberly WYSONG, Plaintiff-Appellant, v. The DOW CHEMICAL COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Gary A. Reeve, Kennedy Reeve & Knoll, Columbus, Ohio, for Appellant. James M.L. Ferber, Littler Mendelson, Columbus, Ohio, for Appellee.


Gary A. Reeve, Kennedy Reeve & Knoll, Columbus, Ohio, Aaron B. Maduff, Maduff, Medina & Maduff, Chicago, Illinois, for Appellant. James M.L. Ferber, Alison Day Hall, Littler Mendelson, Columbus, Ohio, for Appellee.

Before: MERRITT and MOORE, Circuit Judges; COLLIER, Chief District Judge.*

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. COLLIER, D.J. (pp. ___-___), delivered a separate opinion concurring in part and dissenting in part.



Plaintiff-Appellant Kimberly Wysong ("Wysong") sued Defendant-Appellee The Dow Chemical Company ("Dow") after Dow terminated her employment. Wysong alleged that Dow violated her rights under both the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), and Ohio's anti-discrimination statute, OHIO REV.CODE § 4112.02, and also that Dow committed the state tort of wrongful discharge. The district court, 2005 WL 1972550, granted Dow's motion for summary judgment on all of Wysong's claims. Because the district court erred in its reasoning when it granted summary judgment to Dow on Wysong's FMLA claim, state anti-discrimination claim, and wrongful-discharge claim, we REVERSE the district court's judgment on these claims and REMAND to the district court for further proceedings in accordance with this opinion.


Wysong worked at Dow's Hanging Rock facility as an Operating Technician. Joint Appendix ("J.A.") at 295 (Wysong Dep. at 50). Her position involved placing raw material into a laminating machine. J.A. at 299 (Wysong Dep. at 85). The raw material came into Wysong's work area on pallets from the warehouse, and a fork truck (sometimes operated by Wysong) was used to load the laminating machine. Id. The machine had moving parts, and the operator could sustain serious injury if all safety precautions were not followed. J.A. at 301-02 (Wysong Dep. at 87-88).

In 2001, Wysong took 464 hours of paid medical leave, and in 2002, she took 783.5 hours of such leave. J.A. at 345 (Wysong Dep. at 163). The leave taken during this period was for various reasons: chronic neck and groin pain, a hernia operation, mononucleosis, a hysterectomy, and caring for an ill child. J.A. at 210-13, 303 (Wysong Dep. at 93; Miller Dep. at 22-24, 29). Wysong always received her full pay during these leaves. J.A. at 334-35 (Wysong Dep. at 152-53).

On February 7, 2003, Production Leader Dwight Miller ("Miller") issued Wysong a "Letter of Concern" stating that she had exhausted all of her paid medical leave and that if she required additional leave before accruing further leave time, she would have to use her vacation time or take leave without pay. J.A. at 362-63, 365 (Wysong Dep. at 189-90; Ltr. of Concern). Wysong was required to notify Miller and to obtain his approval prior to any further absences, including planned medical procedures. J.A. at 239, 362-63, 365 (Miller Dep. at 74; Wysong Dep. at 189-90; Ltr. of Concern). On February 17, 2003, Miller issued Wysong a "Last Chance Letter" stating that Wysong had reported to work late without prior notification, and that Dow would terminate Wysong for any further performance failure. J.A. at 366 (Last Chance Ltr.). There were no further conflicts between the parties until May 2003.

Although it is unclear how the conversation started, on May 13, 2003, Wysong conveyed that her neck had been bothering her to Dow's plant nurse, Janet Jones ("Jones"). J.A. at 221 (Miller Dep. at 40). Wysong did not request any time off work in conjunction with this incident. J.A. at 223 (Miller Dep. at 42). Jones reported Wysong's complaint to Environmental Health and Safety Director, Troy Dehoff ("Dehoff"). Dehoff in turn notified Miller, who contacted Dr. Teter, Dow's Regional Medical Director. J.A. at 221-22 (Miller Dep. at 40-41).

After speaking with Miller, Dr. Teter placed Wysong on work restrictions: she was not to lift, push, pull, or tug anything over five pounds. J.A. at 219-20 (Miller Dep. at 38-39). According to Dr. Teter, the restrictions were issued out of his concern that Wysong was currently having "neck trouble," and that she had missed a lot of work in the past that "may have been due to [a] previous neck [problem]." J.A. at 251-54 (Teter Dep. at 40-41, 43-44). Miller determined that he could not assign Wysong to a job comporting with the work restrictions imposed by Dr. Teter, and Miller called Wysong to tell her not to come into work. J.A. at 225-26 (Miller Dep. at 44-45).

In a letter dated May 15, 2003, Miller informed Wysong that her "request" for FMLA leave was approved, and that because she had previously exhausted most of her FMLA leave for that leave year, she was eligible for only three more days of FMLA leave. J.A. at 372 (Ltr. Re: Certification of Med. Leave). Wysong brought the letter back to Human Resources Partner Tom Hutson ("Hutson") explaining that she had not "requested" any leave. J.A. at 127 (Hutson Dep. at 40). Hutson reissued the letter, removing the language about her "request," but retaining the fact that Dow had put her on FMLA leave. Id.

Dow's Medical Review Board met to discuss Wysong's case. The Medical Review Board concluded and Wysong was informed that she would need to pass a functional capacity exam ("FCE") as a condition of returning to work. J.A. at 122-23, 227-29 (Hutson Dep. at 35-36; Miller Dep. at 46-48). An FCE is used to determine whether an employee is physically capable of performing a specific set of job duties. It consists of a series of tests, conducted by a physical or occupational therapist, and is intended to duplicate actions that the employee would perform at work. J.A. at 256-57 (Teter Dep. at 47-48).

On May 20, 2003, Wysong signed release forms authorizing Dow to obtain medical information from her treating physicians and providers. J.A. at 370-71 (Signed Authorization for Info. Forms). After reviewing Wysong's medical records (obtained as a result of the medical releases signed by Wysong), Dr. Teter found a comment by one of Wysong's treating physicians that Wysong was possibly exhibiting "drug-seeking behavior." J.A. at 262-63, 270-71, 352 (Teter Dep. at 54-55, 63-64; Wysong Dep. at 170). Dr. Teter took this to mean that Wysong was "drug dependen[t]."1 J.A. at 262-63, 270-71 (Teter Dep. at 54-55, 63-64).

Without consulting with any of Wysong's treating physicians, Dr. Teter decided that Wysong could not take the FCE unless she stopped taking all pain medication for two weeks. J.A. at 260-61 (Teter Dep. at 51, 53). In addition to being concerned about the safety risks associated with her taking narcotic drugs while working with the laminating machine and the fork truck, Dr. Teter believed that if Wysong took the FCE while taking these narcotics, the result of the test would be invalid. J.A. at 258, 265 (Teter Dep. at 49, 57). Wysong maintains that she refused to stop taking her pain medication for two weeks on the advice of one of her physicians. J.A. at 359 (Wysong Dep. at 177).

Because Wysong did not stop taking her pain medication, Dow refused to give her the FCE. J.A. at 373 (Ltr. Re: Extension of Med. Leave). On June 23, 2003, Dow placed Wysong on unpaid leave, effective July 7, 2003, "pending a release to work without restrictions" from both her physician and from Dow's medical department. Id. Wysong did not obtain any work releases, and on December 3, 2003, Dow terminated Wysong, basing the decision on its policy of terminating employees who are "on a medical leave of absence status for a continuous period of six months." J.A. at 360, 374 (Wysong Dep. at 178; Termination Notification Ltr.).

Wysong sued Dow in the district court alleging that Dow's conduct violated both the FMLA and Ohio's anti-discrimination statute, and also constituted wrongful discharge. The district court granted Dow summary judgment on all of Wysong's claims. This appeal followed.

A. Standard of Review

"We review de novo the district court's grant of summary judgment." Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir.1998). The district court's grant of summary judgment to Dow was proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [Dow] is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The district court must construe the evidence and draw all reasonable inferences in favor of Wysong, the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The crux of the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. FMLA Claim: Interference

The FMLA entitles qualifying employees to take up to twelve weeks of unpaid leave, without fear of termination, when the leave is taken for, inter alia, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1). A "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). There are two recovery theories available under the FMLA:...

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