Opinion

Nuttall v. Progressive Parma Care Center, LLC.

Court
District Court, N.D. Ohio
Filed
Dec 15, 2021
Cited by
0 cases
Authority
More cited than 28.0%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KELLY NUTTALL, ) CASE NO.: 1:20-CV-1266

)

Plaintiff, )

) JUDGE DONALD C. NUGENT

v. )

)

PROGRESSIVE PARMA CARE CENTER, ) MEMORANDUM OPINION AND

LLC dba PARMA CARE CENTER, ) ORDER

)

Defendant. )

This matter is before the Court on the Motions for Summary Judgment of Defendant,

Progressive Parma Care Center, LLC (“Parma Care Center” or “Defendant”) (ECF #18) and

Plaintiff, Kelly Nuttall “Ms. Nuttall” or “Plaintiff’?) (ECF #20). Both parties filed Briefs in

Opposition (ECF #21 and #22) and Defendant filed a Reply in Support of its Motion. (ECF #23).

After careful consideration of the issues and a full review of the filings and all relevant authority,

Defendant Parma Care Center’s Motion for Summary Judgment (ECF #18) is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND!

Plaintiff, Ms. Nuttall was employed as an Activities Director by Defendant, Parma Care

Center, a residential skilled nursing facility, beginning on or around January 21, 2016. (Johnson

Dep., p. 13; Nuttall Dep., p. 54). The Activities Director is an active member of an interdisciplinary

team and is required to continuously interact with residents and staff and attend resident care

conferences. (Nuttall Dep., pp. 51-53). The Activities Director’s responsibilities include planning

1 The facts as stated in this Memorandum Opinion and Order are taken from the parties’ submissions. Those material

facts that are controverted and supported by deposition testimony, affidavit, or other evidence are stated in the light

most favorable to the non-moving party.

and conducting resident council meetings and functions, recruitment, scheduling, supervision, and

additional organization of events and activities. (/d.). Pursuant to Ohio law, skilled nursing

facilities are required to employ an activities program staff member. (See Ohio Admin. Code 3701-

17-08(E)(1); Johnson Decl. § 14).

Mr. Matthew Johnson (“Mr. Johnson”) oversees Parma Care Center’s operations as its

Executive Director and served as Plaintiffs direct supervisor during the course of her employment

with Defendant. (Johnson Dep., p. 14; Johnson Decl. | 4). Parma Care Center is an employer

covered by the Family and Medical Leave Act (the “FMLA”) and provides its employees,

including Ms. Nuttall, with a general notice and explanation of FMLA leave in its Employee

Handbook. Defendant also keeps a Federal Notice of Employee Rights posted in the facility in a

communal work area. (Johnson Decl. { 5-6). Parma Care Center’s FMLA policy is overseen by

Mr. Johnson and Ms. Davis, Defendant’s Director of Human Resources. (Davis Dep., p. 13;

Johnson Dep., p. 48).

In 2020, Parma Care Center was impacted by COVID-19 and implemented necessary steps

and procedures in order to minimize COVID-19’s impact on its staff and residents. Mr. Johnson

testified that Defendant proactively acquired personal protective equipment (“PPE”) for all staff

members and underwent regular infectious-disease inspections by the Ohio Department of Health,

acquiring only passing scores in compliance with state standards. (Johnson Dep., pp. 38-40;

Johnson Decl. J 13).

In late March of 2020, Ms. Nuttall was exposed to a patient at Parma Care Center who had

contracted COVID-19. (Nuttall Dep., p. 63; Nuttall Decl. 2). Shortly afterward, Plaintiff testified

she began experiencing COVID-19 symptoms and was examined by her physician, Dr. Dhia

Aldoori, MD, on March 30, 2020, during a virtual visit using video-conferencing software. (Nuttall

Dep., 66-67; Nuttall Decl. § 4). Dr. Aldoori diagnosed Ms. Nuttall with a viral upper respiratory

tract infection and advised her to stay home for ten days. (Nuttall Dep., pp. 72, 78, 87-89; 91).

Over the course of her illness, Plaintiff was not prescribed any medication and was never tested

for COVID-19 or COVID-19 antibodies. She was instructed to monitor symptoms and take over-

the-counter medications as needed. (Nuttall Dep., pp. 66, 105). After her doctor’s visit, the

Cuyahoga County Board of Health issued an Order of Isolation to Plaintiff, advising that pursuant

to state law, she was to quarantine until “deemed non-communicable by the Health Commissioner

and therefore no longer pose[d] a substantial threat to the health of the public.” (Nuttall Decl.

On the same day, Ms. Nuttall notified Defendant by phone and Mr. Johnson by text that

she was instructed to quarantine for ten days. (Nuttall Dep., pp., 72, 78, 91; Johnson Dep., p. 41-

42; Johnson Decl. § 7). On April 3, 2020, Ms. Nuttall emailed Ms. Davis inquiring how to proceed

with her absence, and Ms. Davis advised she use available sick or vacation time and file for

unemployment. (Davis Dep., p. 14-16); Nuttall Dep. p. 119).? On April 7, 2020, Ms. Nuttall

contacted her doctor while still self-quarantining, and requested a letter be sent to Defendant

directing she be permitted to continue quarantine as she did not feel comfortable returning to work

? The isolation order recommends isolation until symptom free for 72 hours, or 7 days since symptoms first appeared.

Defendant argues that Ms. Nuttall does not know the exact date of the onset of symptoms, and if her systems first

appeared on March 30, 2020, at the latest, April 6, 2020 was the date the seven-day isolation period ordered by the

Board of Health isolation order ended and April 9, 2020 would have been the end date for her Doctor’s recommended

ten-day self-quarantine.

3 Ms. Davis testified that Ms. Nuttall corresponded with her via email, inquiring “If I use my vacation days up and

I’m still on isolation, do I file for unemployment?” (Davis Dep., p. 15). Ms. Nuttall now alleges in her briefings that

at or around this time, she proved a “serious health condition” and notice to take FMLA leave, triggering Defendant’s

obligation to provide her with requisite FMLA documentation. Ms. Nuttall also alleges that, unbeknownst to her,

Defendant intended to replace her no later than three days after learning for her need of absence, as Mr. Johnson

testified to the authenticity of an April 2, 2020 advertisement for the role of Activities Director. (Johnson Dep. pp.

106-107).

because her immune system was low. (Nuttall Dep., pp. 92-93).4 Dr. Aldoori did not send the

requested correspondence. (Davis Dep., p. 16).

The record shows that on April 10, 2020, Ms. Nuttall communicated via email to Mr.

Johnson her concerns regarding contracting COVID-19 and her hesitancy to return to work,

inquiring which duties could be performed from home. (Nuttall Dep., pp. 106; 113-115; Johnson

Dep. pp. 48-50, 108-110).° On April 16, 2020, Ms. Nuttall sent an email to Mr. Johnson, informing

him that she had not yet been cleared to return to work and a follow-up appointment with her

physician was pending. (Nuttall Dep., pp. 113-114). On April 17, 2020, Plaintiff had a virtual

follow-up examination with Dr. Aldoori and was advised that she was cleared to return to work.

(Nuttall Dep., p. 114; Nuttall Decl. 4 9).°

The record does not show any instance of Plaintiff explicitly requesting to take FMLA

leave before her upper respiratory tract infection diagnosis or during her period of illness and self-

quarantine. (Johnson Dec. § 11). Defendant argues Plaintiff remained at home after the expiration

of both her seven-day isolation period and ten-day self-quarantine, did not provide documentation

for remaining at home, and failed to express intent to return to work upon being cleared by her

physician on April 17, 2020. Plaintiff argues she notified Mr. Johnson on April 17, 2020 by

voicemail of her clearance and intent to return, and on April 21, 2020, Mr. Johnson informed

4 Ms. Nuttall wrote: “I don’t feel I am ready to return to work. You had me out for 10 days. My work isn’t very

cooperative and I would need a note to be out of work any additional time” (Nuttal Dep., p. 93).

> In Summer 2019, during which time period Ms. Nuttall was unable to report to work due to a back injury and

completed FMLA paperwork related to the injury, she was ultimately instructed not to take FMLA leave and was

instead advised to work from home. (Nuttall Decl. 11).

6 Ms. Nuttall alleges that shortly after she was cleared to return to work, Mr. Johnson sent her an email informing her

that her position was no longer available and that she could apply for the assistant to the Activities Director role. Mr.

Johnson testified that if Ms. Nuttall had wanted to remain in the Activities Director role, “she would be here. So no,

I give her an opportunity for something that she’s obviously expressed no desire in doing.” (Johnson Dep.,

Plaintiff that a replacement for the Activities Director position had been found and suggested she

apply for the role of the Director’s assistant. (Nuttall Dep., pp. 114-117; Johnson Dep., pp. 92-94).

In August of 2020, Defendant ultimately filled the position of Activities Director. (Johnson Dep.,

p. 34).

Plaintiff brought her action for interference under the FMLA against Defendant Parma

Care Center on June 9, 2020, alleging that she suffered a “serious health condition” entitling her

to FMLA leave, and Defendant’s failure to provide her with the requisite FMLA notices and a

period of FMLA leave interfered with her statutory rights, directly resulting in her termination.

(Complaint, ECF #1, JJ 18-23).

On August 30, 2021, Defendant and Plaintiff filed cross motions for summary judgment

pursuant to Fed. R. Civ. P. 56 (ECF #18 and #20), wherein Defendant argues Ms. Nuttall cannot

prove the elements of a claim for interference because Plaintiff did not suffer a FMLA-qualifying

condition, she neither requested nor gave notice of an intent to take FMLA leave, and Defendant

never interfered with or denied Plaintiff her rights under the statute. Ms. Nuttall argues her case is

a straightforward violation of the FMLA; Defendant did not recognize Plaintiff's illness as a

“serious health condition” entitling her to leave, it failed to provide her with the FMLA requisite

written notice and a period of FMLA-leave, and these failures resulted in a denial of FMLA rights.

On September 28, 2021, Defendant filed an Opposition to Plaintiff's Motion for Summary

Judgment (ECF #21) and on September 29, 2021, Plaintiff filed an Opposition to Defendant’s

Motion for Summary Judgment. (ECF #22). Defendant filed a Reply in Support of its Motion on

October 12, 2021. (ECF #23). Plaintiff did not file a reply.

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the court is satisfied “that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED.

R. Civ. P. 56(a); Provenzano v. LCI Holdings, Inc., 663 F.3d 806 (6" Cir. 2011). The burden of

showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment 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 affidavits, if any,’ which it believes

demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” only if its resolution will affect

the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Determination of whether a factual issue is “genuine” requires consideration of the applicable

evidentiary standards. Although evidence may be presented in support of a summary judgment

motion, the moving party need not support its motion with affidavits or similar materials that

negate the non-mover’s claim(s) if they can otherwise show an absence of evidence supporting the

non-mover’s case. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 788 (6" Cir. 2000). The

court will view the summary judgment motion in the light most favorable to the party opposing

the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment should be granted if a party who bears the burden of proof at trial does

not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941

(6" Cir. Ohio 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a

scintilla of evidence in support of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d

476, 479 (6" Cir. Much. 1996) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence

presented is “merely colorable” and not “significantly probative,” the court may decide the legal

issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil

cases involving summary judgment, the court must decide “whether reasonable jurors could find

by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Jd. at 252.

Once the moving party has satisfied its burden of proof, the burden then shifts to the

nonmoving party. The nonmoving party may not simply rely on its pleadings, but must “produce

evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t

of Transp., 53 F.3d 146, 149 (6" Cir. Ky. 1995). FED. R. Civ. P. 56(e) states:

When a motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere allegations or denials of

the adverse party’s pleading, but the adverse party’s response, by affidavits or

as otherwise provided in this rule, must set forth specific facts showing that there

is a genuine issue for trial.

The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as

an automatic grant of summary judgment, where otherwise appropriate. Id.

As a general matter, the district judge considering a motion for summary judgment is to

examine “[o]nly disputes over facts that might affect the outcome of the suit under governing law.”

Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh

material evidence to determine the truth of the matter. Jd. at 249. The judge’s sole function is to

determine whether there is a genuine factual issue for trial; this does not exist unless “there is

sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Jd.

In sum, proper summary judgment analysis entails “the threshold inquiry of determining

whether there is the need for a trial — whether, in other words, there are any genuine factual issue

that properly can be resolved only by a finder of fact because they may reasonably be resolved in

favor of either party. Anderson, 477 U.S. at 250.

B. The Family and Medical Leave Act (“FMLA”)

The Court has thoroughly and exhaustively reviewed the claims raised by Ms. Nuttall in

this action, the parties’ Motions for Summary Judgment, the responsive briefings, the record, and

all relevant authority. The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the

“FMLA”) entitles eligible employees to a total of twelve (12) weeks of leave per year for various

reasons, including “a serious health condition that makes the employee unable to perform the

functions” of his or her position. 29 U.S.C. § 2612(a)(1)(D).

The Act entitles an eligible employee who takes leave under § 2612 for the intended

purpose of the leave to be reinstated upon his or her return from leave to the position held prior to

the leave or to an equivalent position. § 2614(a)(1). “The right to reinstatement guaranteed by 29

U.S.C. § 2614(a)(1) is the linchpin of the entitlement theory because ‘the FMLA does not provide

leave for leave’s sake, but instead provides leave with an expectation [that] an employee will return

to work after the leave ends.’” Edgar v. JAC Prods., 443 F.3d 501, 507 (6" Cir. Mich. 2006).

i. Prima Facie Case for Interference

The interference provision of the FMLA makes it “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise any right provided in [the Act.].”

29 U.S.C. § 2615(a)(1). A prima face case of FMLA interference requires the plaintiff to show:

(1) he is an eligible employee; (2) the defendant is an employer as defined in the Act; (3) he was

entitled to leave under the FMLA; (4) he gave defendant notice of his intention to take leave; and

(5) the defendant denied him FMLA benefits to which he was entitled. Donald v. Sybra, Inc., 667

F.3d 757, 761; citing Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6" Cir. 2006).

Parma Care Center does not dispute that Plaintiff is an eligible employee and that

Defendant is a covered employer. Defendant does argue that Plaintiff was not entitled to FMLA

leave in March or April of 2020 because she did not suffer an FMLA-qualifying condition and

failed to provide adequate notice to her employer of any intent to take FMLA leave for her period

of self-quarantine. Because Plaintiff failed to make the requisite showing, Defendant argues it had

no additional notice obligations with respect to eligibility and Plaintiff cannot show any instance

where Defendant denied, restrained, or otherwise interfered with Ms. Nuttall’s FMLA rights.

Finally, Defendant argues it had no obligation to restore Ms. Nuttall to the Activities Director role.

Ms. Nuttall refutes Defendant’s position, arguing: (1) her March 2020 diagnosis and

quarantine were a “serious health condition” entitling her to FMLA leave and she provided

Defendant with sufficient notice of her intent to take FMLA leave for this illness; (2) Defendant’s

failure to provide her with an FMLA eligibility notice and related paperwork in March of 2020

interfered with her rights under the statute; and (3) Defendant acted unlawfully and denied her

FMLA rights to which she was entitled by failing to restore her to the position of Activities

Director.

For the reasons that follow, the Court finds Ms. Nuttall fails to prove the essential elements

of a prima facie case for interference and Defendant is entitled to summary judgment as a matter

of law.

1. Plaintiff’s Entitlement to FMLA Leave

Pursuant to the FMLA, an eligible employee is entitled to leave for, among other things, a

serious health condition that makes the employee unable to perform their job, or to care of a spouse

or parent who has a serious health condition. 29 U.S.C. § 2612. A plaintiff cannot establish a prima

facie case of FMLA interference without first demonstrating that she suffered from a “serious

health condition.” See Morris v. Family Dollar Stores of Ohio, Inc., 320 F.App’x 330, 337 (6

Cir.). “Not all medical problems are subject to the FMLA. It is a plaintiff's burden to establish that

medical problems are severe enough to warrant the FMLA protection.” See Lackey v. Jackson

Cnty., 104 F.App’x 483, 490 (6" Cir. 2004).

The FMLA defines “serious health condition” as an illness, impairment, or physical or

mental condition that involves “inpatient care in a hospital, hospice, or residential medical care

facility” or “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). A serious

health condition involving “continuing treatment by a health care provider” includes any one or

more of the following:

(a) Incapacity and treatment. “a period of incapacity of more than three

consecutive, full calendar days, and any subsequent treatment or period of

incapacity relating to the same condition, that involves:”

(1) Treatment of two or more times, within 30 days of the first day of

incapacity...by a health care provider;

(2) Treatment by a health care provider on at least one occasion, which

results in a regimen of continuing treatment under the supervision of

the health care provider;

(3) The requirements in paragraphs (a)(1) and (2)...for treatment by a

healthcare provider means an in-person visit to a health care provider.

The first (or only) in-person treatment visit must take place within

seven days of the first day of incapacity.

29 C.F.R. § 825.115. The FMLA defines “incapacity” as the “inability to work, attend school or

perform other regular daily activities due to the serious health condition, treatment therefore, or

recovery therefrom.” 29 C.F.R. § 825.114(a)(2)().

Parma Care Center argues that Ms. Nuttall cannot prove she was entitled to FMLA-

protected leave because she did not suffer a “serious health condition” within the meaning of the

statute. “Whether an illness qualifies as a serious health condition under the FMLA is a legal

question which the court must determine.” Alston v. Sofa Express, Inc., No. 2:06-cv-0491, 2007

U.S. Dist. LEXIS 79719, 2007 WL 3071662, at *8 (S.D. Ohio Oct. 19, 2007). “A plaintiff may

not avoid summary judgment on this issue by simply alleging his illness to be a serious health

condition.” Jd.

Federal regulations generally exclude (unless complications arise) conditions like the

“common cold, the flu, ear aches, upset stomach...” as they do not meet the definition of a “serious

health condition” and thus do not qualify for FMLA leave. 29 C.F.R. § 825.113(d). While an order

to isolate or quarantine with respect to COVID-19 may seemingly appear to qualify as an instance

intended for protection by the FMLA, the U.S. Department of Labor has clearly stated that

currently, federal law generally “does not require employers to provide paid leave to employees

who are absent from work because they are sick with COVID-19, have been exposed to someone

with COVID-19, or are caring for someone with COVID-19.” U.S. Department of Labor.’

With respect to Plaintiffs upper respiratory diagnosis, “[a] regimen of continuing

treatment that includes the taking of over-the counter medications such as aspirin, antihistamines,

or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated

without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of

continuing treatment for purposes of FMLA leave.” 29 C.F.R. § 825.113(c).

During her ten-day quarantine period, Plaintiff had one virtual visit with her physician and

was never prescribed medication; rather, she was advised to monitor her symptoms, rest, and take

over-the-counter medication as needed. While Ms. Nuttall had concerns regarding returning to

work because of the potential for COVID-19 exposure and spread, and requested a note permitting

https://www.dol.gov/agencies/whd/fmla/pandemic#:~:text=Currently%2C%20federal%20law%20generally%20doe

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her to prolong her self-quarantine, her doctor never sent the requested correspondence, and she

was cleared to return to work on April 17, 2020.

The Court finds, based on the record and regulatory guidance, that a diagnosis of an upper

respiratory infection is not a qualifying event contemplated by the FMLA. However, Plaintiff does

raise a genuine issue with respect to her physician-directed period of self-quarantine. A “serious

health condition” involves either “inpatient care...” or “continuing treatment by a health care

provider.” 29 U.S.C. § 2611.11. Plaintiff alleges she satisfies her burden of proving a condition

“involving continuing treatment” because she received treatment twice by her health care provider

within 30 days of the onset of her incapacity as her quarantine constitutes “a period of incapacity

of more than three, consecutive, full calendar days.” 29 C.F.R. § 825.115(a). While “treatment”

has generally referred to an “in-person visit” to a health care provider, Plaintiff directs the Court’s

attention to the Department of Labor’s guidance determining that in light of the COVID-19

pandemic, telemedicine may satisfy the regulatory requirement of an “in-person visit.”*

As “incapacity” requires a showing of the “inability to work, attend school or perform other

regular daily activities due to the serious health condition...”, Plaintiff raises a legitimate question

as to whether her period of quarantine rendered her incapacitated for purposes of performing her

essential work duties.? While the Court is inclined to find, based on the applicable guidance and

8 Plaintiff raises the argument that she carries her burden with respect to the requirement that she received treatment

twice by a health care provider within 30 days of the onset of incapacity, arguing that in light of the circumstances

surrounding COVID-19, the Department of Labor has determined that telemedicine may satisfy the regulatory

requirement of an in-person visit as it “typically involves face-to-face examinations or treatment of patients by remote

video conference...”. Available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_8.pdf.

Defendant argues the U.S. Department of Labor Bulletin No. 2020-8, referenced by Plaintiff was not issued until

December of 2020, months after the alleged “serious health condition” at issue, and no such guidance existed at the

time of her illness.

° Mr. Johnson testified during his deposition: “If you can’t be there, you can’t provide face-to-face activities, which

is an essential part of that position.” (Johnson Dep. pp. 89-90).

the record, that Ms. Nuttall did not suffer a qualifying “serious health condition” entitling her to

FMLA leave, the Court finds Plaintiff raises a genuine issue of material fact with respect to her

physician ordered self-quarantine.

2. Plaintiff's Notice to Defendant to Take FMLA Leave

Even accepting the contention that Plaintiff's March 2020 illness qualifies as a “serious

health condition” under the FMLA, the Court agrees Defendant is entitled to summary judgment

as a matter of law because Ms. Nuttall did not provide Defendant with sufficient notice of an intent

to take FMLA leave in Spring of 2020 and further cannot show how Defendant restrained, denied,

or otherwise interfered with Plaintiff's exercise of rights under the FMLA.

In order to invoke the protection of the FMLA, an employee must provide notice and a

qualifying reason for requesting leave. Brohm v. JH Props, Inc., 149 F.3d 517, 523 (6" Cir. Ky.

1998). An employer seeking leave “must give the employer enough information to reasonably

conclude that an event described in the FMLA § 2612(a)(1) has occurred.” Wallace v. FedEx

Corp., 764 F.3d 571, 586 (6 Cir. 2006). The Sixth Circuit has noted that where the ‘Plaintiff does

not expressly request [FMLA] leave, the critical question is whether the information imparted to

the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a

serious health condition.” Wanner v. Under Armour, Inc., 2020 U.S. Dist. LEXIS 239659 (quoting

Rentz v. Hosp., 195 F. Supp. 3d 933, 941 (E.D. Mich. 2016).

Here, Defendant argues Plaintiff did not reasonably apprise it of any alleged intent to take

FMLA leave. Plaintiff communicated minimal detail regarding her diagnosis and her need to

quarantine, a request Defendant found appropriate and therefore approved. The record does not

show Ms. Nuttall ever provided Defendant with any degree of detail or specificity; she did not

allege her symptoms were atypical, particularly severe, or any anticipation of prolonged symptoms

or illness such that she would remain home past the expiration of her quarantine. In fact, she

testified that she was able to perform some job responsibilities while working remotely at home.

Further still, Plaintiff advised Defendant that her symptoms had resolved, and she was

cleared by her physician to return to work on April 17, 2020. While Defendant expressed

apprehension regarding the virulence of COVID-19 and potential for spread at the facility while

completing her quarantine, Defendant could not have reasonably been expected to conclude that

these remarks were Plaintiff's request to take FMLA leave, or to believe that concern regarding

COVID-19 is a FMLA-qualifying event. Defendant does not argue that Plaintiff failed to comply

with any particular policy, but rather maintains that based on the information Ms. Nuttall did

provide, Defendant could not have reasonably ascertained under the circumstances that Plaintiff

sought FMLA leave.

Defendant’s position is further bolstered by the fact it provided Plaintiff with FMLA

paperwork in the Summer of 2019. Under 29 C.F.R. § 825.300(b)(1), an employer must notify an

employee of FMLA eligibility “[w]hen an employee requests FMLA leave, or when the employer

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

“Employee eligibility is determined (and notice must be provided) at the commencement of the

first instance. However, “[i]f, at the time an employee provides notice of a subsequent need for

FMLA leave during the applicable 12-month period due to a different FMLA-qualifying reason,

and the employee’s eligibility status has not changed, no additional eligibility notice is required.”

29 C.F.R. § 825.300(b)(3).

Plaintiff does not demonstrate how Defendant’s failure to provide FMLA paperwork again

in March of 2020 restrained or otherwise interfered with her ability to pursue FMLA leave. “An

employer’s failure to comply with the notice requirements of the FMLA only supports a cause of

action where the inadequate notice effectively interferes with plaintiff's statutory rights.” Fink v.

Ohio Health Corp., 139 Fed.Appx. 667, 671 (6" Cir. 2005). The record shows Ms. Nuttall had

knowledge of her eligibility since late Summer of 2019 and was familiar with the FMLA process

of completing paperwork. Plaintiff testified that she received and completed FMLA paperwork for

this prior injury in August of 2019. (Nuttall Dep., pp. 54-55). As this timeframe occurred within

12 months of her upper respiratory infection diagnosis, and Plaintiff's eligibility status was

unchanged, Parma Care Center appropriately believed it had no obligation to once again provide

a notice of eligibility under 29 C.F.R. § 825.300(b)(3).

Plaintiff fails to prove she provided sufficient notice of her intent to take FMLA leave in

March of 2020, and even if she had, the Court cannot find that Ms. Nuttall’s rights were interfered

with as a matter of law. Because Defendant had no notice obligations under 29 C.F.R. § 825.300,

Plaintiff cannot argue that Defendant needed to provide an additional rights and responsibilities

notice under 29 C.F.R. § 825.300(c) or a designation notice under 29 C.F.R. § 825.300(d) because

it reasonably concluded leave was not being sought for a FMLA-qualifying event. Finally, Parma

Care Center was not required to request medical certification from Plaintiff because it never

questioned the appropriateness of Plaintiffs quarantine and permitted her to quarantine as many

days as required by her physician. (Nuttall Dep. pp. 70, 78).°

The Court finds Defendant was reasonable in concluding that Plaintiff did not seek leave

under the FMLA for her illness in March of 2020. Accordingly, Defendant did not fail to meet any

notice requirements under the statute, and Plaintiff cannot show any interference with or denial of

rights resulting therefrom. Because Plaintiff did not prove she qualified for protections under the

10 can employer may require that an employee’s leave [...] due to the employee’s own serious health condition [...]

be supported by a certification issued by the health care provider of the employee.” 29 C.F.R. § 825.305(a). An

employer should make such a request within five business days after leave commences, or the request can be made

later “if the employer has reason to question the appropriateness of the leave or its duration.” 29 C.F.R. § 825.305(b).

FMLA, the Court need not address her allegation that Defendant was required to permit her to

return to the role of Activities Director after her leave. Plaintiff fails to prove her prima facie case

for interference under the FMLA and the Court grants summary judgment in favor of Defendant.

I. CONCLUSION

For the foregoing reasons, the Court finds Defendant is entitled to summary judgment on

Ms. Nuttall’s FMLA interference claim. The Motion for Summary Judgment filed by Defendant,

Parma Care Center (ECF #18) is hereby GRANTED. This case is hereby TERMINATED. All

other pending motions are terminated.

IT IS SO ORDERED.

DONALD C. NUGENT

Senior United States Distiugt Judge

DATED: Nabe 4, Wu

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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