Van Leer v. University Contracting Company LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

AMBER VAN LEER, ) Case No. 1:20-cv-387

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge Thomas M. Parker

)

UNIVERSITY CONTRACTING )

COMPANY, LLC d/b/a )

UNIVERSITY MANOR, )

)

Defendant. )

)

OPINION AND ORDER

Amber Van Leer worked as a licensed practical nurse for University

Contracting Company, LLC, which does business as University Manor. During her

employment, Ms. Van Leer suffered from chronic and pervasive eczema, which forced

her to take leave under the Family and Medical Leave Act. When that leave ended

in October 2019, Ms. Van Leer did not show up to work her first scheduled shift, and

University Manor terminated her employment.

Plaintiff sued, alleging her employer violated various anti-discrimination and

anti-retaliation provisions of federal and State law and that it committed several

employment-related torts. After removal and following discovery, University Manor

now moves for summary judgment. (ECF No. 19.) On June 30, 2021, the Court held

oral argument on the motion. For the reasons that follow, there is no dispute of

material fact about Plaintiff’s claims, and University Manor is entitled to judgment

as a matter of law. Therefore, the Court GRANTS the motion.

STATEMENT OF FACTS

Defendant University Contracting Company, LLC, operating as University

Manor, staffs and runs a nursing facility that provides respite, short-term, long-term,

and hospice care to its residents. Plaintiff Amber Van Leer worked for University

Manor from 2014 until her termination in October 2019. The gravamen of her

complaint relates to her return from leave, which she took due to an eczema flare-up

that directly preceded her termination. She alleges she was discriminated against

because of her eczema and retaliated against for taking leave in the first place.

A. Ms. Van Leer’s Employment with University Manor

Ms. Van Leer began working for University Manor in 2014 as a State-tested

nursing assistant, or STNA. (ECF No. 31-1, PageID #115.) In this role, Ms. Van Leer

took “care of the patients or residents,” including tasks related to hygiene, safety,

cleanliness, and feeding, among other duties. (Id.) As an STNA, Ms. Van Leer did

not work a normal schedule; rather, she worked on an “as-needed” basis. (Id., PageID

#117.) She left for “a brief period” to complete nursing school, but rejoined University

Manor thereafter. (Id. at PageID #115.)

In August 2016, University Manor promoted Ms. Van Leer to “nurse,” as a

licensed nurse practitioner, or LPN. (Id.) This promotion came with an increase in

pay, hours, and responsibility. (Id., PageID #140.) As for Ms. Van Leer’s new work

schedule, University Manor published each schedule for the upcoming month in

advance, usually toward the middle or end of the prior month. (Id., PageID #124.)

For example, the schedule for October 2019 was published sometime around mid-

September. The schedules were “printed out and put in a folder,” and they were

available to the nurses on each floor. (Id.) As a general matter, Ms. Van Leer

remembered the calendars were “usually on the unit” and agreed that she “always”

knew where to find it. (Id.) As for her specific schedule, Ms. Van Leer worked a two-

week rotation, which required her to work alternating weekends. (Id.) A “W” on the

schedule meant Ms. Van Leer was supposed to work, and a “slash” meant she was off.

(Id., PageID #124–25.; see also, e.g., ECF No. 13-7, PageID #193–200 (2019 work

schedules).) A “V” stood for vacation, meaning she was not scheduled to work because

she requested the day off. (ECF No. 13-1, PageID #126.)

Ms. Van Leer also suffers from severe eczema, particularly on her hands. (Id.,

PageID #140.) During a flare-up, her skin becomes cracked and inflamed, her joints

swell, and often these cracks produce open sores. (Id.) The openings themselves swell

and itch, causing excruciating pain. (Id.) Sometimes these flare-ups result in

Ms. Van Leer’s hands becoming visibly bloody or covered with pus. (Id.) During these

flare-ups, Ms. Van Leer’s pain registers a ten on a scale from zero to ten, with ten

being the most painful. (Id.) She stated that “anywhere she was affected” would

become inflamed and that she suffers insatiable “itching from the inside” that is not

remedied by any topical ointment. (Id.) Occasional flare-ups make it difficult for

Ms. Van Leer to complete at least some of her job duties. (Id.)

B. FMLA Leave

Toward the end of September 2019, Ms. Van Leer’s eczema flared up. (ECF

No. 13-1, PageID #127.) The pain became unbearable, and she sought care from both

her primary care physician and a dermatologist. (Id.; ECF No. 13-8, PageID #203.)

Eventually Ms. Van Leer requested, and University Manor approved, leave under the

Family and Medical Leave Act, which began on September 28, 2019. (ECF No. 13-1,

PageID #127.) When she went on FMLA leave, one of her supervisors, Darlene Rose,

informed Ms. Van Leer that University Manor would hold her job open, but that it

could not guarantee her the same schedule upon return. (Id., PageID #142.) At the

time she went on leave, Ms. Van Leer was scheduled to work every Thursday, just as

she had each previous month that year. (Id., PageID #126; ECF No. 13-7, PageID

#201.)

C. End of Leave and Return to Work

Ms. Van Leer’s leave ended a few weeks later. Her FMLA paperwork says her

end date for her period of incapacity was October 17, 2019. (ECF No. 13-9, PageID

#206.) A doctor’s note dated September 30, 2019 states, “Please excuse Amber Ms.

Van Leer from work September 26 2019 until October 17 2019. SHe is currently under

my care. Any questions please fell free to contact me [sic passim].” (ECF No. 13-8,

PageID #203.) A second note dated October 11, 2019, says, “AMBER VANLEER has

been under my care from 9/26/2019 to 10/16/2019 and will be able to return to work

on 10/17/19[.]” (ECF No. 13-10, PageID #208.) Ms. Van Leer agrees that she was on

leave from October 1, 2019, through and including, October 16, 2019. (ECF No. 13-1,

PageID #143.)

Ms. Van Leer provided this second letter, the one clearing her to return to

work, to University Manor. (Id., PageID #128.) She remembered giving the letter to

someone at University Manor, but does not recall to whom or when. (Id., PageID

#142.) Ms. Van Leer’s supervisor, Darlene Rose, recalls that Ms. Van Leer “hand

deliver[ed]” the return to work letter to her on the Friday before October 17, 2019,

which was the following Thursday. (ECF No. 15-1, PageID #311.) Accordingly,

University Manor was aware that Ms. Van Leer’s physician cleared her to return to

work on October 17, 2019. According to the October 2019 schedule, Ms. Van Leer was

scheduled to work that day, which was signified by the “W” that appeared by her

name. (ECF No. 13-7, PageID #202.) Ms. Van Leer did not come to work on October

17, 2019, and did not call in to let University Manor know she would not be there.

(ECF No. 13-1, PageID #129.)

D. Ms. Van Leer’s Termination

University Manor has a “no-call no-show” termination policy, meaning if an

employee does not show up for work and does not call in before the start of her shift,

she is summarily terminated. (Id., PageID #121.) Over the course of three years,

Rose recalled that fifty-eight employees besides Ms. Van Leer were fired for violating

this specific policy. (ECF No. 17-1, ¶ 7, PageID #358; ECF No. 17-2, PageID #360–65.)

Ms. Van Leer knew about the policy because it applied to her both as an STNA and

as an LPN. (ECF No. 13-1, PageID #121.) The policy is also included in University

Manor’s employee handbook. (ECF No. 13-3, PageID #179.) Ms. Van Leer received

a copy of that policy on April 5, 2016 and acknowledged that she received and read it.

(ECF No. 13-1, PageID #121.) The policy did not change during her employment. (Id.)

Based on this policy, when Ms. Van Leer did not come in for work on October

17, 2019, Rose reported this fact to University Manor’s director of nursing, Sadiqa

Mills. (ECF No. 15-1, PageID #313.) Mills then tried to call Ms. Van Leer “twice” or

“three times,” to no avail. (Id.) Later that day, Rose went to another supervisor, Jean

Hollenbeck, who also called Ms. Van Leer, but could not reach her. (Id.)

The next day, October 18, 2019, Hollenbeck was able to get ahold of Ms. Van

Leer and initially told her to come in the next day she was scheduled to work—

October 19—so they could discuss the no-show. (ECF No. 14-1, PageID #267.) After

they hung up, Hollenbeck walked to Mills’ office where the two discussed the phone

call Hollenbeck had with Ms. Van Leer. (Id., PageID #267.) Upon hearing that

Hollenbeck told Ms. Van Leer to report the next day, Mills provided her opinion that

Ms. Van Leer should be terminated for a no-call, no-show violation, there was no need

for her to come in, and she suggested Hollenbeck call Ms. Van Leer back and inform

her of this decision. (ECF No. 16-1, PageID #350.) Hollenbeck agreed, called Ms. Van

Leer back, and informed her of her termination. (Id., PageID #350–51; ECF No. 14-1,

PageID #267.) Hollenbeck recognized the policy for no-call, no-show violations

permits “no leniency” and “if you don’t call, you don’t show up, you lose your job.”

(ECF No. 14-1, PageID #267.)

Ms. Van Leer remembers these calls similarly, that Hollenbeck called her on

October 18, 2019, asking if she would come in the next day. (ECF No. 13-1, PageID

#129–30.) She also recollected Hollenbeck calling back a second time, approximately

fifteen minutes later, and saying “basically . . . that it was brought to her attention

that [Ms. Van Leer] was supposed to be present at work on October 17th,” that she

had not appeared, and her employment was terminated. (Id., PageID #130.)

University Manor also provided Ms. Van Leer a letter regarding her

termination. (Id., PageID #130; ECF No. 13-11, PageID #209.) It is signed by two

individuals—Mills and Hollenbeck—and dated October 18, 2019. (ECF No. 13-11,

PageID #209.) The reason for her termination, according to the letter, is she failed to

return from FMLA or other leave. (Id.) Ms. Van Leer recalled that the letter

indicated the last day she worked “was actually the date of [her] FMLA leave,” which

she “questioned” but could not recall if she worked that day or not. (ECF No. 13-1,

PageID #130–31.) She did agree that she was able to work on October 17, 2019, with

no restrictions. (Id., PageID #131.) She maintains, however, she was not “given a

chance to return” after her FMLA leave ended. (Id.)

STATEMENT OF THE CASE

No one disputes that Ms. Van Leer did not report to work on October 17, 2019.

At bottom, the parties disagree whether Ms. Van Leer was supposed to work that

day. Plaintiff maintains that, because Rose told her that after her leave her schedule

might not be the same and because the schedule showed Ms. Van Leer with a “W”

even while she was on FMLA leave, the calendar was inaccurate. (ECF No. 13-1,

PageID #142–44.) Plaintiff argues the schedule, looking backward, was not accurate

for October 1 through October 16 because it showed a “W,” listing her as working,

when in fact she was on leave. (Id., PageID #143.) Therefore, Ms. Van Leer

maintains she did not have notice that she was expected to work on October 17, 2019.

(Id., PageID #143–44.) Further, Plaintiff argues that, because each schedule said

“SUBJECT TO CHANGE” in handwriting across the top, it left doubt regarding

whether she had to work on October 17, 2019. (Id., PageID #142.) University Manor

believed Ms. Van Leer was scheduled to work on October 17, 2019, and she failed to

show up. (ECF No. 19-1, PageID #385 (collecting testimony).) These competing

positions form the basis for the parties’ dispute.

In January 2020, Plaintiff sued University Manor in State court for

discrimination under the Americans with Disabilities Act and Section 4112 of the

Ohio Revised Code and for unlawful retaliation under the Family and Medical Leave

Act. (ECF No. 1-1, ¶¶ 38–69, PageID #11–14.) She also asserted two State-law

claims: one tort claim for negligent training, retention and supervision and another

statutory claim for alleged failure to produce employment records. (Id., ¶¶ 70–80,

PageID #14–15.) Defendant removed the action, promptly answered, and the parties

began discovery.

A. Defendant’s Motion for Summary Judgment

Defendant seeks summary judgment on each of Plaintiff’s five claims. (ECF

No. 19.) On the ADA, Defendant does not dispute that Plaintiff satisfies her prima

facie showing, but does believe it had a legitimate, non-discriminatory reason for

firing her, i.e., that she violated the company’s no-call, no-show policy. (ECF No. 19-1,

PageID #389.) Defendant maintains there is no circumstantial evidence, and

certainly no direct evidence, in the record to indicate its reason for firing Ms. Van

Leer was a pretext for discrimination of any kind, let alone because of her medical

condition (eczema). (Id., PageID #390–91.) Further, Defendant argues the “honest

belief rule” applies. (Id., PageID #391.)

With respect to the FMLA, Defendant agrees the same framework applies.

Without disputing that Plaintiff satisfies her prima facie case, Defendant argues

there is no direct or circumstantial evidence of unlawful retaliation. (Id., PageID

#392–93.) It maintains the reason for terminating Ms. Van Leer was legitimate,

nondiscriminatory, and not retaliatory, but instead resulted from violation of its well-

established policy. (Id., PageID #393.) Again, Defendant argues its “honest belief”

insulates it from liability on this claim. (Id., PageID #393.)

Because both the ADA and FMLA claims fail, Defendant argues the State-law

negligent training, supervision, and retention claim fails too. (Id., PageID #394–95.)

Finally, regarding the failure to produce employment and wage-and-hour documents,

Defendant maintains Ms. Van Leer is able to access these documents herself through

its online employment portal, or at least she could have for several months following

her employment with the company. (Id., PageID #396.)

B. Plaintiff’s Opposition

Plaintiff opposes summary judgment on each claim. (ECF No. 22.) On the

ADA claim, she argues there are genuine issues of material fact concerning why

University Manor fired her, including that (1) its decision has no basis in fact because

she was told to come in on October 19, 2019; (2) the no-call no-show did not actually

or sufficiently motivate the termination; and (3) University Manor’s “honest belief”

was not so honestly held. (Id., PageID #466–69.)

On the first point, Plaintiff argues “there is no basis in fact that Defendant

terminated [her] for purportedly missing work on October 17th” because it scheduled

her “to work on October 19th.” (Id., PageID #467.) She argues that, “at the very

least, the date Plaintiff was scheduled to work after her FMLA leave is a genuine

issue of material fact for a jury to decide.” (Id., PageID #468.) As to whether

University Manor’s reason actually or sufficiently motivated her termination,

Plaintiff maintains it could not have because she was scheduled to work on

October 19. (Id.) On the third point, that University Manor’s honest belief was not

so honestly held, Plaintiff argues her former employer’s decision was not “reasonably

informed and considered” because it was rendered only fifteen minutes after

“scheduling [her] to work on October 19th[.]” (Id., PageID #469–70.) Plaintiff relies

largely on the same facts to argue her FMLA claim should also go to a jury, “because

a genuine issue of material fact exists regarding whether” University Manor’s reason

for firing her was pretextual. (Id., PageID #473–74.) Because the FMLA and ADA

follow the same framework, Plaintiff’s “pretext arguments . . . are the same[.]” (Id.)

As for negligent training, retention, and supervision, Plaintiff argues that,

because University Manor and its employees (whom she did not name in this suit)

violated the ADA and FMLA, factual disputes preclude summary judgment.

Specifically, she argues that University Manor employees “received zero Relias

trainings on disability discrimination or the FMLA.” (Id., PageID #477 (emphasis

omitted).) Plaintiff reiterates that University Manor was statutorily obligated to

inform her of her schedule after her FMLA leave ended, and it failed to do so. (Id.)

Finally, on the records-production claim, Plaintiff argues that she did not have access

to hours worked, even if she could access her payroll stubs through the online portal.

(Id., PageID #478.) Also, she argues that her ability to access the documents using

the online portal is an exception without legal support and not an escape from liability

for University Manor. (Id.)

ANALYSIS

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

On a motion for summary judgment, the Court must view evidence in the light most

favorable to the non-moving party. Kirilenko-Ison v. Board of Educ. of Danville

Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

On a motion for summary judgment, the moving party has the initial burden

of establishing that there are no genuine issues of material fact as to an essential

element of the claim or defense at issue. Street v. J.C. Bradford & Co., 886 F.2d 1472,

1479–80 & n.12 (6th Cir. 1989); Chappell v. City of Cleveland, 584 F. Supp. 2d 974,

988 (N.D. Ohio 2008). After discovery, summary judgment is appropriate if the

non-moving party fails to establish “an element essential to that party’s case and

upon which that party will bear the burden of proof at trial.” Tokmenko v.

MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)).

To determine whether a genuine dispute about material facts exists, it is not

the Court’s duty to search the record; instead, the parties must bring those facts to

the Court’s attention. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th

Cir. 1996). “The party seeking summary judgment has the initial burden of informing

the court of the basis for its motion” and identifying the portions of the record “which

it believes demonstrate the absence of a genuine issue of material fact.” Tokmenko,

488 F. Supp. 3d at 576 (citing Celotex Corp., 477 U.S. at 322). Then, the nonmoving

party must “set forth specific facts showing there is a genuine issue for trial.” Id.

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “When the moving

party has carried its burden under Rule 56(c), its opponent must do more than simply

show there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co., 475 U.S. at 586.

If a genuine dispute exists, meaning “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” summary judgment is not

appropriate. Tokmenko, 488 F. Supp. 3d at 576 (citing Anderson, 477 U.S. at 250).

However, if “the evidence is merely colorable or is not significantly probative,”

summary judgment for the movant is proper. Id. The “mere existence of some factual

dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,

477 U.S. at 247–48).

I. Plaintiff’s FMLA and ADA Claims

“Although the factual scenarios that give rise to an FMLA or ADA cause of

action may often coincide, the legal entitlements that flow from these facts will differ.”

Chandler v. Specialty Tires of America, Inc., 283 F.3d 818, 825 (6th Cir. 2002) (citing

Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001)) (noting that “[t]he ADA and

the FMLA have divergent aims, operate in different ways, and offer disparate relief”).

On the one hand, the “FMLA protects an employee from adverse action as a result of

[her] taking leave for a serious medical condition.” Chandler, 283 F.3d at 825.

Conversely, the ADA “prohibits employers from discriminating against qualified

individuals with disabilities.” Joostberns v. United Parcel Servs., Inc., 166 F. App’x

783, 798 (6th Cir. 2006). Nevertheless, the same analytical framework applies to both

claims.

A plaintiff may prove discrimination or retaliation claims under either statute

in one of two ways. First, a plaintiff may present direct evidence, which amounts to

“smoking gun” evidence of discrimination or retaliation “that explains itself.” Gohl v.

Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 683 (6th Cir. 2016). But direct evidence

is rare. See Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (“It is

the rare situation when direct evidence of discrimination is readily available . . . .”).

If it exists, however, direct evidence allows a plaintiff to avoid altogether the second

method of proving her case. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985).

Second, more commonly, a plaintiff may prove discrimination or retaliation

with indirect or circumstantial evidence. This method uses the familiar burden-

shifting framework announced in McDonnell-Douglas v. Green, 411 U.S. 792, 802–06

(1973). Jaszczyszyn v. Advantage Health Physician Network, 504 F. App’x 440, 447

(6th Cir. 2012) (applying McDonnell-Douglas to FMLA retaliation claims); Edgar v.

JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (same); Joostberns, 166 F. App’x

at 498 (applying McDonnell-Douglas to ADA discrimination claim). This framework

does not shift the burden of proof between the parties; instead, it shifts the burden of

production. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Watson v. Fort

Worth Bank & Tr., 487 U.S. 977, 986 (1988) (noting “these shifting burdens are meant

only to aid courts and litigants in arranging the presentation of evidence[,]” but that

the ultimate burden of proof remains “at all times with the plaintiff”).

This familiar framework first requires a plaintiff to satisfy the prima facie

elements for a particular claim. But “[t]he plaintiff’s burden to establish a prima

facie case is light, one easily met and not onerous.” Willard v. Huntington Ford, Inc.,

952 F.3d 795, 808 (6th Cir. 2020) (cleaned up). “The sole function of the prima facie

stage of the burden-shifting framework is to raise a rebuttable presumption of

discrimination” that eliminates “the most common nondiscriminatory reasons for the

employer’s treatment of the plaintiff, such as the plaintiff is unqualified for the

position or not a member of the protected group.” Id. (cleaned up).

For an ADA discrimination claim, a plaintiff must demonstrate that she: (1) is

disabled; (2) is otherwise qualified to perform the essential functions of her position,

with or without an accommodation; and (3) suffered an adverse employment action

because of her disability. Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d

419, 433 (6th Cir. 2014). “The plaintiff’s disability must be a ‘but-for’ cause of the

adverse employment action.” Id. (citing Lewis v. Humboldt Acquisition Corp., 681

F.3d 312, 321 (6th Cir. 2012) (en banc)).

For an FMLA retaliation claim, a plaintiff must show that: “(1) she availed

herself of a protected right under the FMLA by notifying [her employer] of her intent

to take leave; (2) she suffered an adverse employment action; and (3) there was a

causal connection between the exercise of her rights under the FMLA and the adverse

employment action.” Edgar, 443 F.3d at 508. The burden to show a “causal

connection” is “minimal” and needs to amount only to “some credible evidence that

enables the court to deduce that there is a causal connection between the retaliatory

action and the protected activity.” Seeger, 681 F.3d at 283.

Where, as here, an employee satisfies this initial prima facie showing, the

burden of production shifts to the employer to provide a legitimate, non-

discriminatory reason for its actions. See Kirilenko-Ison, 974 F.3d at 661 (analyzing

an ADA discrimination claim); Edgar, 443 F.3d at 508 (assessing an FMLA

retaliation claim). Plaintiff does not challenge whether Defendant has done so—

conceding that University Manor’s termination of Ms. Van Leer based on its no-call,

no-show policy is a legitimate non-discriminatory reason.

Instead, the parties dispute the third step of the McDonnell-Douglas

framework. At this stage, to satisfy her burden and avoid summary judgment,

Plaintiff must identify a genuine dispute of material fact demonstrating that her

termination amounts to pretext for discrimination or retaliation that the ADA or

FMLA prohibits. She may do so by showing that University Manor’s decision (1) had

no basis in fact, (2) did not actually motivate her firing, or (3) was insufficient to

warrant termination. See Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir.

2020) (citing Hostettler v. College of Wooster, 895 F.3d 844, 858 (6th Cir. 2018)). These

categories provide a “convenient way of marshalling evidence,” but need not be

followed rigidly. Id. Instead, they help guide the ultimate inquiry: whether Plaintiff

can “show both that the employer’s proffered reason was not the real reason for its

action, and that the employer’s real reason was unlawful.” EEOC v. Ford Motor Co.,

782 F.3d 753, 767 (6th Cir. 2015) (en banc) (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000)).

Because many of Plaintiff’s arguments regarding her FMLA and ADA claims

overlap, including Defendant’s reliance on its honest belief, the Court begins its

analysis there.

I.A. The Honest-Belief Defense

Under this first way of showing pretext—that an employment decision has no

basis in fact—an employer benefits from a presumption about its honest belief, which

can render an inference of pretext unwarranted. Seeger, 681 F.3d at 285. This rule

applies with equal force in the ADA and FMLA contexts. Smith v. Towne Props. Asset

Mgmt. Co., 803 F. App’x 849, 853 (6th Cir. 2020) (holding the plaintiff “cannot win on

her FMLA claim for the same reason she cannot win on her ADA claim—because she

can’t show pretext.”). The “key inquiry” to whether the belief is honestly held is

whether the employer made a “reasonably informed and considered decision” before

taking the action. Michael v. Caterpillar Fin. Serv. Corp., 496 F.3d 584, 598–99 (6th

Cir. 2007) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)); see

also Smith, 803 F. App’x at 851–52 (discussing the honest belief rule and the

employer’s investigation, holding it was more than adequate and “pretty much takes

care of the ADA claim”).

“As long as an employer has an honest belief in its proffered nondiscriminatory

reason for discharging an employee, the employee cannot establish that the reason

was pretextual simply because it was ultimately shown to be incorrect.” Majewski v.

Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citation

omitted); see Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 322–23 (6th Cir.

2019) (discussing the employer’s honest belief); Tingle v. Arbors at Hillard, 692 F.3d

523, 530 (6th Cir. 2012) (employee simply argued she was “not guilty of the conduct

that led to . . . her ultimate termination.”). Instead, to overcome an employer’s honest

belief, a plaintiff must “put forth evidence which demonstrates that the employer did

not honestly believe in the proffered non-discriminatory reason for its adverse

employment action.” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 286 (6th Cir. 2012)

(quoting Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001)).

A plaintiff must “show ‘more than a dispute over the facts upon which the

discharge was based.’” Seeger, 681 F.3d at 285 (quoting Braithwaite, 258 F.3d at

493–94). One way to do so involves proffering facts to the contrary, like an “error on

the part of the employer that is ‘too obvious to be unintentional[,]’” id. (quoting Smith,

155 F.3d at 807), or that the employer’s pre-termination investigation was not

“reasonably informed and considered,” Hale v. Mercy Health Partners, 617 F. App’x

395, 399 (6th Cir. 2015). However, an employer’s investigation “need not be perfect

in order to pass muster under the rule.” Hale, 617 F. App’x at 399 (quoting Loyd v.

Saint Joseph Mercy Oakland, 766 F.3d 580, 591 (6th Cir. 2014)). “When an employer

reasonably and honestly relies on particularized facts in making an employment

decision, it is entitled to summary judgment on pretext even if its conclusion is later

shown to be mistaken, foolish, trivial, or baseless.” Chen v. Dow Chem. Co., 580 F.3d

394, 401 (6th Cir. 2009).

Plaintiff argues University Manor “did not make a reasonably informed and

considered decision before terminating” her. (ECF No. 22, PageID #469.) She notes

“no more than fifteen minutes had elapsed between” Hollenbeck’s two calls—one

telling Ms. Van Leer to come in on October 19, and the other firing her. Plaintiff

contends these facts show that “the only reasonable inference to draw is” Hollenbeck

“investigated nothing at all” such that termination of Ms. Van Leer did not constitute

a reasonable and informed decision. (Id., PageID #470.) Defendant responds that

University Manor’s investigation was adequate and that Hollenbeck, Rose, and Mills,

at different points leading up to the termination decision, each investigated whether

Ms. Van Leer was a no-show by comparing her return to work notice to the October

schedule. (ECF No. 23, PageID #485.)

The record before the Court fails to support Plaintiff’s argument and shows

that there is no genuine dispute of fact about University Manor’s decision to fire

Ms. Van Leer or the process by which it reached that decision. First, University

Manor has a written no-call, no-show termination policy Ms. Van Leer was subject to

and aware of. (ECF No. 13-1, PageID #121; ECF No. 13-2, PageID #164; ECF

No. 13-3, PageID #178–80.) Under the policy, there is no progressive discipline—

even one violation of the rule results in “immediate termination.” (ECF No. 13-3,

PageID #179.) University Manor regularly enforces this policy. (ECF No. 17-1, ¶ 7,

PageID #358; ECF No. 17-2, PageID #360–65.)

Second, the record demonstrates that Hollenbeck’s decision to terminate

Ms. Van Leer was sufficiently reasoned and considered following her discussion with

Mills. After hanging up with Ms. Van Leer, Hollenbeck went to see Mills in her office,

who confirmed there was “no leniency” in the no-call, no-show policy. (ECF No. 16-1,

PageID #350.) The pair concluded that Ms. Van Leer’s failure to come to work on

October 17, without prior excuse, violated this policy and warranted termination.

(Id., PageID #350–51.) Even viewing the facts in a light most favorable to Plaintiff,

no facts—disputed or otherwise—call into question University Manor’s honest belief

that Ms. Van Leer was able to work, available to work, no longer on leave, and did

not show for her scheduled shift.

The cases on which Plaintiff relies do not change this outcome. She points first

to Kurtzman v. University of Cincinnati, No. 1:09-cv-580, 2012 WL 1805486, at *13

(S.D. Ohio May 17, 2012), as an analogous case denying summary judgment where

an employer failed to investigate before firing an employee. (ECF No. 22, PageID

#470.) In Kurtzman, however, the magistrate judge raised the honest-belief defense

sua sponte in the report and recommendation. 2012 WL 1805486, at *13. In

addressing objections to that report and recommendation, the court determined that

“the record contain[ed] no evidence” the employer conducted “any investigation, much

less a reasonable one” and the employer’s honest belief did not hold. Id. Further, the

employee pointed to evidence that the employer was “unaware of many relevant

details and did not conduct a reasonable investigation.” Id. These facts in Kurtzman

stand in marked contrast to the record here.

Plaintiff also argues her case is identical to Jones v. Elmwood Centers, Inc.,

2014 WL 1761567, at *6 (N.D. Ohio Apr. 30, 2014). (ECF No. 22, PageID #471.) But

several factual differences are readily apparent. Most notably, in Jones, the policy

pursuant to which the employee was terminated was not written, had not been

discussed with her, and had not formed the basis of any prior disciplinary action. Id.

In contrast, University Manor had a written no-call, no-show policy, Ms. Van Leer

knew the policy existed and that it applied to her, and University Manor enforced

this rule often. Unlike in Jones, Ms. Van Leer had ample opportunity to confirm the

details about her return before her leave ended.

For all these reasons, Plaintiff cannot defeat Defendant’s honest belief, and the

record contains no genuine disputes of material fact that would allow a reasonable

jury to return a verdict for Plaintiff.

I.B. The FMLA Claim

Even setting aside the honest-belief defense, the record demonstrates that

University Manor is entitled to a summary judgment on Plaintiff’s FMLA claim. In

relevant part, the Family and Medical Leave Act provides eligible employees “as

many as twelve weeks of leave” per year if the employee has, among other things, “a

‘serious health condition that makes the employee unable to perform the functions of

the position of such employee.’” Chandler, 283 F.3d at 825 (quoting 29 U.S.C.

§ 2612(a)(1)(D)). Additionally, the statute mandates that employers “restore the

employee to her prior position or an equivalent position upon return from leave.” Id.

(citing 29 U.S.C. § 2614(a)(1)).

The FMLA’s anti-retaliation provision, 29 U.S.C. § 2615(a)(2), prohibits

“discriminat[ion] against any individual for any practice made unlawful” by the Act.

Id. This includes “retaliatory discharge for taking leave.” Marshall v. The Rawlings

Co., 854 F.3d 368, 376 (6th Cir. 2017) (quoting Arban v. West Publ’g Corp., 345 F.3d

390, 403 (6th Cir. 2003)). “In other words, a retaliation claim is about whether the

employer took some adverse action against an employee after they availed themselves

of their FMLA rights, not about whether the employee’s FMLA rights were impeded

in the first place.” Schobert v. CSX Transp., 504 F. Supp. 3d 753, 806 (S.D. Ohio

2020) (citing Marshall, 854 F.3d at 376).

Plaintiff does not allege that University Manor interfered with her ability to

take leave. Her claim maintains Defendant fired her instead of allowing her to return

to work following her leave. To carry her burden, Plaintiff must point to a genuine

dispute of material fact that University Manor’s reliance on its no-call, no-show policy

to justify its decision to terminate Ms. Van Leer was a pretext. In doing so, Plaintiff

can rely on any circumstantial evidence, including that University Manor’s reason

“had no basis in fact, did not motivate the termination, or was insufficient to warrant

the termination.” Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012).

I.B.1. Plaintiff’s Arguments

Plaintiff makes three arguments that University Manor’s decision to terminate

Ms. Van Leer was pretextual. Each fails.

First, Plaintiff argues that University Manor “would not have scheduled

Plaintiff to work on October 19th” unless it had an illicit motive for her termination.

(ECF No. 22, PageID #468.) Construing the record in the light most favorable to

Plaintiff, the evidence does not support this argument. After failing to report to work

on October 17, Hollenbeck initially told Ms. Van Leer to report to work on October 19

so “maybe” the two could “discuss” the absence. (ECF No. 14-1, PageID #267.) After

Hollenbeck conferred with Mills, however, the two decided the no-call, no-show policy

required terminating Ms. Van Leer’s employment. (Id.) That policy, as Rose

separately recalled, was the impetus for fifty-eight terminations in three years. (ECF

No. 17-1, ¶ 7, PageID #358; ECF No. 17-2, PageID #360–65.) These facts leave no

room for a reasonable jury to find for Plaintiff at trial.

Second, in a passing footnote separate from her argument about pretext,

Plaintiff suggests that 29 C.F.R. § 825.300(c)(1)(vi) places an affirmative duty on

employers to inform employees returning from FMLA leave when they are next

scheduled and supposed to return to work. (ECF No. 22, PageID #464 n.3.) The

section Plaintiff cites is titled “Employer notice requirements” and does appear to

place an affirmative duty on employers to provide certain notices to employees.

29 C.F.R. § 825.300. In particular, Section 825.300(c)(1)(vi) requires an employer to

“provide written notice . . . each time the eligibility notice is provided” under

Subsection (b). Id. § 825.300(c)(1). Subsection (b) requires providing notice to

employees “when an employee requests FMLA leave, or when the employer acquires

knowledge that an employee’s leave may be for an FMLA-qualifying reason[.]” Id.

§ 825.300(b)(1). Even then, Subsection (c)(1)(vi) only requires providing notice to an

employee about her “rights to maintenance of benefits during the FMLA leave and

restoration to the same or equivalent job upon return from FMLA leave.” Id.

§ 825.300(c)(1)(vi). It then cites Section 825.214, which provides, as a general rule

that, “[o]n return from FMLA leave, an employee is entitled to be returned to the

same position that the employee held when leave commenced,” or to an equivalent

one, and that the right to reinstatement exists “even if the employee has been

replaced or his or her position has been restructured to accommodate” the FMLA

absence.

In other words, this regulation requires notice to an employee of her rights

during FMLA leave, the obligations on the employee, and the consequences of a

failure to meet those obligations. Contrary to Plaintiff’s suggestion, this notice

requirement does not establish an affirmative duty on an employer “to communicate

a return to work date” to an employee returning from leave. (ECF No. 22, PageID

#464 n.3.)

Third, Plaintiff argues Rose “told [her] not to rely on” the October 2019

schedule because the document had “subject to change” written across the top. (ECF

No. 22, PageID #472.) This fact, assuming its truth, does not support a reasonable

inference of pretext. Ms. Van Leer admits she did not check the October 2019

schedule when she dropped off paperwork relating to her return to work. (ECF

No. 13-1, PageID #129.) Ms. Van Leer agreed she could have done so (id.) and that

she knew how the schedule worked (id., PageID #123–24). Yet Plaintiff maintains

she could not rely on the schedule because Rose indicated the words “subject to

change” meant that nurses and staff could not “go by” that document, and Ms. Van

Leer “understood from Rose’s explanation about the FMLA that Plaintiff could not

rely on the October 2019 schedule.” (ECF No. 22, PageID #463 (citing ECF No. 15-1,

PageID #318–19.)

This argument depends on misreading the testimony in the record. For

example, what Rose recalled was not that Ms. Van Leer could not rely on the schedule

regarding her own work schedule, but that the schedule did not reflect any post-

publication changes. (ECF No. 15-1, PageID #318.) That is, an employee could look

at the schedule and see when she was supposed to work. To be sure, the calendar

might not be accurate in one of two circumstances: (1) when an employee called off

or took vacation after the schedule was published, or (2) when University Manor

changed an employee’s shift (which required two-weeks’ notice). (Id., PageID #319.)

The record contains no evidence that either circumstance applies here. If one or the

other did, Ms. Van Leer would know she was not supposed to report to work because

she would have either called off or received notice if University Manor had changed

her schedule. (Id., PageID #322.) The record shows Ms. Van Leer was scheduled to

work on October 17, 2019, and neither reason the schedule might not be accurate

applied to her. (ECF No. 13-7, PageID #202.) Therefore, the words “subject to

change” on the schedule do not create a dispute of fact. Further, there is no

evidence—and Plaintiff does not argue—that University Manor changed her October

2019 schedule without notice. The record demonstrates that a reasonable jury could

not rule in Plaintiff’s favor.

I.B.2. Plaintiff’s Authorities

Plaintiff argues her situation is “more identical to Applegate v. General

Aluminum, Civ. No. 1:05-cv-41, 2006 WL 8451991 (N.D. Ind. Mar. 30, 2006).” (ECF

No. 22, PageID #475.) There, the employee was subject to an attendance policy that

required him to notify his supervisor of any absence “as far in advance as possible” or

at least “30 minutes prior to the beginning” of the shift. 2006 WL 8451991, at *2.

After several probations for absenteeism, the employee took FMLA leave. He was

cleared to return to work, but the next day was put on probation again for excessive

absenteeism. When that probation ended, the employee was scheduled to work a few

days later, but was fired after the employer claimed the employee was absent and

failed to call off according to the attendance policy. The employee brought a claim for

retaliation for taking FMLA leave.

In Applegate, the plaintiff argued that he was not informed of his shift change.

Also, he maintained that the notice he provided under the attendance policy would

have been timely had he received proper notice and substantiated FMLA leave for

the particular day at issue with a doctor’s note. Based on those facts and sequence of

events, the court denied summary judgment on the FMLA claim because the

employee’s “attendance had actually been improving” and further it was “puzzling”

why the employer placed the employee on probation the day after he returned from

leave. Id. at *5. As for the “no-call no-show” there, the record demonstrated that the

employee “called in (late) on the date he was cited as being ‘no call, no show,’ was told

to return to work first shift” the next day, did so, and “presented a doctor’s note when

he returned” but was terminated anyway. Id.

Based on Applegate, Plaintiff argues that “enforcing a zero-tolerance

attendance policy . . . raise[s] an inference of retaliation.” (ECF No. 22, PageID

#475–76.) But the facts in Applegate differ materially from those here. First, the

employee in Applegate was not subject to a zero-tolerance policy, but one enforced

with progressive discipline. Applegate, 2006 WL 8451991, at *2. In contrast,

University Manor has a zero-tolerance attendance policy and regularly enforces it.

Second, the employee in Applegate provided some evidence about a discrepancy

regarding his shift on November 1. Here, in contrast, Plaintiff knew she was

scheduled to work, and there was no confusion or dispute about that fact. Finally,

the employee in Applegate substantiated his absence on the disputed day with proper

certification, something Ms. Van Leer did not do here.

Moreover, the Sixth Circuit holds that temporal proximity between the end of

leave and termination alone does not demonstrate pretext. “Unlike its role in

establishing a prima facie case, the law in this circuit is clear that temporal proximity

cannot be the sole basis for finding pretext.” Donald, 667 F.3d at 763; see also Judge

v. Landscape Forms, Inc., 592 F. App’x 403, 410 (6th Cir. 2014) (quotation omitted).

Instead, “suspicious timing is a strong indicator of pretext . . . only when

accompanied by some other, independent evidence of discrimination or retaliation.”

Parkhurst v. American Healthways Servs., LLC, 700 F. App’x 445, 451 (6th Cir. 2017)

(cleaned up). Even considering the timing of Ms. Van Leer’s termination on the day

she was to return to work does not support her retaliation claim without more. The

record does not contain more evidence from which a jury could find in her favor,

entitling Defendant to summary judgment on Plaintiff’s claim for FMLA retaliation,

even if the honest-belief defense were unavailable.

I.C. Disability Discrimination

Plaintiff claims University Manor discriminated against her because of her

eczema, in violation of both the Americans with Disabilities Act and parallel

provisions of State law. Federal and State laws prohibiting disability discrimination

are analyzed together. See, e.g., Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201

(6th Cir. 2010). Ohio courts also look to the federal standard for guidance when

interpreting State law in this context. City of Columbus Civ. Serv. Comm’n v.

McGlone, 82 Ohio St. 3d 569, 573, 1998-Ohio-410, 697 N.E.2d 204, 206–07 (1998).

Although Plaintiff admits that her FMLA and ADA claims overlap to a great

extent (ECF No. 13-1, PageID #131), the two laws are different. See Chandler, 283

F.3d at 825 (“Although the factual scenarios that give rise to an FMLA or ADA cause

of action my often coincide, the legal entitlements that flow from these facts will

differ.”). As with Plaintiff’s claims under the Family and Medical Leave Act, the

parties look past Plaintiff’s prima facie case and Defendant’s legitimate

nondiscriminatory justification and focus their arguments on pretext. On this point,

Plaintiff bears the burden of showing that University Manor’s real reason for

terminating her was “because of” or “but for” her disability. See Darby v. Childvine,

Inc., 964 F.3d 440, 444–45 (6th Cir. 2020) (citing Lewis, 681 F.3d at 321; Donald, 667

F.3d at 763).

Plaintiff comes forward with no evidence that would allow a reasonable jury to

find that anyone at University Manor discriminated against her because of her

eczema. Beyond the arguments relating to the FMLA claim, which Plaintiff largely

adopts to support her ADA claim (ECF No. 22, PageID #467), Plaintiff points to no

facts in the record demonstrating that Mills, Rose, Hollenbeck, or anyone else at

University Manor discriminated against her, let alone because of her eczema.

As the non-moving party, Plaintiff must identify some genuine dispute

regarding a material fact in the record to submit her ADA claim to a jury. She has

not done so. Accordingly, University Manor is entitled to summary judgment on the

ADA discrimination claim. Because the State discrimination claim rises and falls

with its federal counterpart, University Manor is entitled to summary judgment on

that claim as well.

II. Plaintiff’s Separate State-Law Claims

Plaintiff asserts two claims under Ohio law, one for negligent training,

retention, and supervision, and the other for University Manor’s alleged failure to

produce employment records. Because exercising supplemental jurisdiction over

these claims will aid the efficient disposition of the parties’ dispute, and none of the

exceptions apply, see 28 U.S.C. §§ 1367(a), (c)(1)–(4), the Court exercises jurisdiction

over Plaintiff’s remaining State-law claims.

II.A. Negligent Training, Retention, and Supervision

To prevail on this claim, a plaintiff “must show that an accused employee be

individually liable for a tort against” her before being allowed to seek “recovery

against the employer.” Colston v. Cleveland Pub. Libr., 522 F. App’x 332, 338 (6th

Cir. 2013) (citing Strock v. Pressnell, 38 Ohio St. 3d 207, 217, 527 N.E.2d 1235, 1244

(1988)). That is, “to maintain an action against the employer, a third party must

allege that one of the employees is individually liable for a tort.” Greenberg v. Life

Ins. Co. of Va., 177 F.3d 507, 517 (6th Cir. 1999).

Plaintiff has not alleged any individual has liability for a tort, let alone named

any individual as a defendant here. Plaintiff argues that “the employees aided and

abetted the disability discrimination” in violation of Section 4112.02(J) of the Ohio

Revised Code. (ECF No. 22, PageID #477.) But Plaintiff failed to name any employee

of University Manor as a defendant, let alone assert a claim for an unlawful

discriminatory practice under Section 4112.02. (See ECF No. 1-1, ¶¶ 52–59, PageID

#12–13.) And there is no individual liability under the ADA. See Wathen v. General

Elec. Co., 115 F.3d 400, 404 n.6 (6th Cir. 1997) (noting that there is no individual

liability under Title VII, the ADEA, or the ADA). Therefore, neither State nor federal

disability discrimination claims can form the basis of a negligent training, retention,

or supervision claim.

As for the FMLA, Plaintiff did not assert a claim for violation of the Family

and Medical Leave Act against any employee of University Manor. To be sure,

Plaintiff argues that “the employees also violated [Section] 104 of the FMLA” by not

restoring her to her previous position. (ECF No. 22, PageID #477.) But that is not

enough to assert a claim for violation of Section 4112.02. In any event, even assuming

a private right of action against an individual for an FMLA violation, see Mitchell v.

Chapman, 343 F.3d 811, 830 n.22 (6th Cir. 2003) (“This interpretation underlies our

prior determination that the FMLA extends individual liability to private-sector

employees.”), Plaintiff failed to assert a claim against any particular employee of

University Manor. Without a predicate for this claim, an allegation from which a

jury could find an individual liable, University Manor is entitled to judgment as a

matter of law.

II.B. Failure to Produce Records

Plaintiff claims that University Manor failed to produce records in violation of

Article II, Section 34a of the Ohio Constitution and Section 4111.14(F)–(G) of the Ohio

Revised Code. That constitutional provision and its enabling statute require

employers to “maintain a record of the name, address, occupation, pay rate, hours

worked for each day worked, and each amount paid” for every employee going back

at least three years from the “last date the employee was employed by the employer.”

Ohio Rev. Code § 4111.14(F). The statute also requires an employer to provide these

records “without charge” to the requesting employee or someone acting on the

employee’s behalf. Id. § 4111.14(G). The employer must do so within “thirty business

days,” an agreed-to “alternative time period,” or “as soon as practicable” if providing

the records would “cause a hardship on the employer under the circumstances.” Id.

§ 4111.14(G)(3)(a)–(b).

Section 4111.14(G) of the Revised Code and Article II, Section 34a of the Ohio

Constitution provide employees a private right of action when an employer fails to

produce, upon request, certain employment records in a timely manner. Clark v.

Shop24 Global, LLC, No. 2:12-cv-802, 2014 WL 60071, at *3 (S.D. Ohio Jan. 7, 2014).

A plaintiff may also seek damages: “If an employee is forced to file suit to obtain the

requested records, the employer must pay reasonable attorneys’ fees and costs.” Lacy

v. Reddy Elec. Co., No. 3:11cv-52, 2013 WL 3580309, at *15 (S.D. Ohio July 11, 2013)

(emphasis added).

Plaintiff asserts in her complaint that in November 2019, “a person acting on

behalf of Plaintiff” requested documents and records from University Manor. (ECF

No. 1-1, ¶ 76, PageID #15.) On summary judgment, Defendant argues Ms. Van Leer

had access to her employment records through the company’s online payroll portal.

(ECF No. 19-1, PageID #396.) Plaintiff argues her access to that portal, Ultipro, does

not substitute for University Manor’s obligations under State law and, in any event,

did not provide all of the information the statute mandates an employer provide.

(ECF No. 22, PageID #478.) Defendant counters that “there is no reason why

providing access to payroll records through an internet-based application cannot”

satisfy its obligation under the statute. (ECF No. 23, PageID #489.)

The parties do not cite, and the Court has not located, any authority discussing

whether providing records that contain the information required by

Section 4111.14(F) through an online portal discharges an employer’s constitutional

and statutory duties. But the Court need not decide this question or predict how the

Ohio Supreme Court may resolve it, because Plaintiff fails to carry her burden on

summary judgment. “Rule 56 places an affirmative duty on the nonmovant to cite to

‘particular parts of materials in the record’ to establish that a particular fact cannot

be supported or is genuinely disputed.” Emerson v. Novartis Pharms. Corp., 446 F.

App’x 733, 734 (6th Cir. 2011) (quoting Fed. R. Civ. P. 56(c)(1)). “District courts need

not independently comb through the record and establish that it is bereft of a genuine

issue of material fact before granting summary judgment.” Id. (citing Chicago Title

Ins. Corp. v. Magnusun, 487 F.3d 985, 995 (6th Cir. 2007)).

Although Plaintiff’s complaint alleges a violation of Ohio law regarding the

production of documents, on summary judgment Plaintiff may not rest on her

pleadings alone. Anderson, 477 U.S. at 248-49. Instead, she must identify specific

facts that support those allegations. She fails to do so. For example, Plaintiff points

to no evidence that she requested the documents in the first place, whether she made

such a request before or after filing suit, or that she filed suit to obtain these records.

Because Plaintiff does not come forward with evidence that Ms. Van Leer requested

her employment records and hours worked from University Manor in the first place,

summary judgment is appropriate.

CONCLUSION

For the foregoing reasons, University Manor is entitled to summary judgment

on all of Ms. Van Leer’s claims. Accordingly, the Court GRANTS University Contract

Company, LLC’s motion (ECF No. 19) and DIRECTS the Clerk to enter judgment

accordingly.

SO ORDERED.

Dated: July 9, 2021

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

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