Bibb v. Cuyahoga County Board of Developmental Disabilities

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sileena Bibb, ) CASE NO. 21-cv-2235

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

vs. )

)

Cuyahoga County Board of ) Memorandum of Opinion and Order

Developmental Disabilities, )

)

Defendant. )

INTRODUCTION

This matter is before the Court upon Defendant’s Motion for Summary Judgment (Doc.

13). This case asserts violations of the Family Medical Leave Act (“FMLA”) and the Families

First Coronavirus Response Act (“FFCRA”). For the reasons that follow, the motion is

GRANTED to the extent Count Two asserts a claim for denial of leave under the FFCRA and

DENIED in all other respects.

FACTS

Plaintiff Sileena Bibb brings this action against Defendant Cuyahoga County Board of

Developmental Disabilities. Plaintiff worked for the Defendant in various capacities since 2008,

initially as a Direct Care Summer Specialist Substitute. Beginning in 2011, she worked as a full-

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time Adult Program Specialist. From 2014 to 2019, she worked as a Habilitation Specialist at

one of Defendant’s Adult Activities Centers, a position which focused on providing direct care to

adults with developmental disabilities. Due to a change in state law, Defendant’s direct care

adult services programs were discontinued, and Plaintiff was notified that her position would be

eliminated. Staff whose positions were being eliminated were encouraged to seek other job

opportunities at Defendant.

Plaintiff applied for and was offered employment as a Developmental Specialist in

Defendant’s Early Intervention Department in March 2019. The primary function of this position

was to “coach, assess, promote, and encourage learning by enhancing routines in partnership with

parents/families, and team members that invite play, movement and active exploration in natural

environments; [and] assess development in a natural environment.” (Doc. 16-19 at 1449).

At all relevant times, Plaintiff’s employment was subject to a collective bargaining

agreement (“CBA”) between Defendant and a union, the Association of Cuyahoga County

Employees for Special Students. Under the CBA, Plaintiff’s employment as a Developmental

Specialist was subject to a two-year probationary period despite her prior service.

Plaintiff began training for her new position by shadowing her predecessor for about two

months in the spring of 2019. She officially began her employment as a Developmental

Specialist on June 10, 2019. She attended an orientation where she received a handbook

detailing job expectations, policies, and procedures.

Two months later, in August of 2019, Defendant appointed Kelly Rainey as Plaintiff’s

supervisor. Although she was an experienced Developmental Specialist, this was Rainey’s first

time serving in a supervisory role in an educational setting. Under the provisions of the CBA, all

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first-year employees received mentorship from an experienced employee. In September of 2019,

Developmental Specialist Emily Roll became Plaintiff’s mentor.

In May of 2020, Plaintiff requested intermittent FMLA leave to transport her father to

medical appointments. This request was approved on June 4, 2020.

Plaintiff testified that during the first fourteen months of her employment as a

Developmental Specialist, she had no indication that her performance was not going well. (Doc.

16-1 at 1065). She did not receive any written notification of concerns with her job performance.

Rainey shadowed Plaintiff monthly at client visits and offered feedback, including suggestions

and strategies. Plaintiff believed that “overall [Rainey] thought that when it came to the rapport

of my families I did pretty good.” (Id.)

However, Rainey testified that at least twice she observed that Plaintiff “was

uncomfortable building rapport,” and “was struggling to set up appointments for next visits with

families.” (Doc. 13-6 at 719). When she shadowed employees, Rainey was usually a silent

observer, but when she saw Plaintiff struggling, Rainey “jumped in ... and modeled strategies.”

(Id. at 718-19). After the visits, Rainey met with Plaintiff to discuss “what I felt she should

improve on and [offer] suggestions on tools and resources that she should tap into for future

visits to help build her confidence and her presentation of strategy.” (Id. at 719-20). In addition,

in an email dated July 14, 2020, Rainey asked Plaintiff why her undocumented time for the prior

month had been submitted one week late. (Doc. 16-11 at 1462). Another problem Rainey

identified was that Plaintiff was “putting her case notes in a non-billable section of [Defendant’s]

database where it should not be.” (Doc. 13-6 at 723). These entries caused billing errors which

had significant implications for Defendant, since its billing is pursuant to the Social Security Act

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and audited by the State of Ohio. During this period, Rainey had bi-monthly meetings with

Plaintiff where she offered “suggestions and strategies.” (Id. at 721).

Roll testified that she also observed Plaintiff on family visits two or three times. Roll

characterized Plaintiff’s job performance as “similar in terms and at the same level as [her]

previous mentees in terms of her professional communication.” (Doc. 17-3 at 1566-67). She

described Plaintiff as “professional” with the family and “engaged appropriately” with the child

during observations. (Id.)

On September 16, 2020, Rainey conducted Plaintiff’s first annual performance evaluation

in the Developmental Specialist position,1 and rated her “below expectations.” Plaintiff had self-

reviewed as part of the performance evaluation process, and rated herself “exceeds expectations”

in most areas and “meets expectations” in all others. Plaintiff had the right under the CBA to

submit written objections to the evaluation, but did not do so.

As required under the CBA, Plaintiff was placed on a Performance Improvement Plan

(“PIP”).2 The PIP was developed on September 3, 2020,3 and signed by Plaintiff on September

16, 2020. Plaintiff acknowledged that the late submission of time pointed out in Rainey’s July

1 Plaintiff notes she had met expectations in all her prior

performance reviews. These evaluations, however, were for

positions with significantly different duties, and the referenced

evaluations occurred in 2015, 2016, and 2017.

2 This document is entitled “Staff Work Plan.” However, both

parties refer to it as a Performance Improvement Plan.

3 It is not clear who was involved in drafting the PIP. Defendant

states Plaintiff’s union representative was “involved in the initial

implementation of the plan,” but this is not fully supported by the

cited testimony. Plaintiff testified that her union representative

“initially” had “knowledge of” her PIP. (Doc. 13-2 at 476-77).

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14, 2020 email was “the catalyst at saying I’m going on an improvement plan.” (Doc. 16-11 at

1462). The PIP had an anticipated end date of November 30, 2020. The stated purpose of the

PIP was for Plaintiff to “increase the frequency of visits, complete a more efficient data entry

process, improve her spelling and grammar skills, and increase her confidence in her practice and

her ability to provide clear strategies to the families on her caseload.” (Doc. 13-4 at 660). The

PIP initially had five goals:

1. Sileena will work with supervisor to increase the frequency of visits to her current

caseload and will implement strategies to increase direct services to individuals

such as partnering in evaluations and taking SSP cases.

2. Sileena will work with management to implement a more efficient data entry

process which includes entering phone calls and emails in real time, blocking off

time for note writing daily, and keeping better track of undocumented time.

3. Sileena will improve her spelling and grammar skills by seeking out strategies

such as spell/grammar check on documents before inputting them into the EBEI

database, emails, and all other professional documentation.

4. Sileena will work with EI management to identify trainings that will increase her

confidence in her practice and ability to provide clear strategies to the families on

her caseload and will be able to identify and then demonstrate how she intends to

use these in her practice.

5. Weekly check-ins with supervisor to ensure that the work plan is being followed

and areas of support needed are being identified quickly.

(Doc. 13-4 at 660).

On September 16, 2020, three additional goals were added to the PIP:

6. Sileena will update her Outlook Calendar every Friday for the following week.

She will include details of what she is working on hourly.

7. Sileena will work with EI management to create a predictable schedule that

balances virtual and in person visits.

8. Sileena will work in the office 3 days weekly in order for her to get her work done

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more efficiently and in a reasonable timeframe.

(Id. at 662-73).

Plaintiff used her previously requested FMLA leave on September 28 and 29, and

November 6 and 9, 2020.

Rainey was responsible for overseeing and evaluating Plaintiff’s progress under the PIP

and met with her weekly. Rainey also added weekly notations to the PIP describing resources

she had recommended and actions that Plaintiff was taking which related to the identified goals.

For example, Rainey recommended that Plaintiff use Grammarly to proofread her written work,

access professional training via YouTube, reach out to peers for support, and request to be added

to other Developmental Specialists’ cases.

On November 16, 2020, Defendant retrained Plaintiff on the database. Following the re-

training, Early Intervention Manager Erin Wladyka emailed Plaintiff stating:

Thank you for your time today! I hope the re-training on the database was helpful

and that you fully understand how to document information and where the

information in the database goes.

Please let me know if you need any further information now or in the future

regarding the use of the EBDI database.

(Doc. 16-24 at 1476).

On November 18, 2020, Rainey met with Plaintiff. Following the meeting, at 12:25 p.m.,

Rainey emailed Plaintiff stating:

Attached is your improvement plan that we reviewed today. We will close out your

improvement plan at our next meeting on 11/24/20 @ 9a.m.

(Doc. 15-4 at 911).

Twenty-nine minutes later, Rainey sent another email stating:

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I also want to let you know that as we discussed in today’s meeting that [sic] your

October productivity profile was over 100%, Erin/Sharon and I are reviewing your

contacts/and event reports to determine if there are more duplications. I know we

discussed this today, and you reached out to Lori for further clarification last week,

but I wanted to let you know that we will discuss this at our next improvement plan

meeting in further detail. You can also review this in the database to re-check that

you did not duplicate your data entry. Thank you.

(Id.).4

Rainey was questioned at deposition regarding her November 18, 2020 email:

Q: So as of Wednesday, November 18th, 2020, at 12:25 p.m., your intention was

to close out Miss Bibb's Performance Plan on 11-24?

A: Yes.

Q: Were you planning on firing her at that point?

A: No. If she did not meet the expectations of the Improvement Plan, I would

simply turn it over to HR and they would decide next steps. Would she have

probationary failed at that time if I had handed it over to HR? Yes, she would

have.

Q: So your decision to extend her Improvement Plan occurred after this email;

correct?

A: Yes.

(Doc. 13-6 at 725).

Rainey also testified that at the time she sent Plaintiff the email regarding closing out the

PIP, she “was not aware of ongoing concerns in the database,” and that these billing issues,

which she became aware of less than 30 minutes later, were “the biggest reason why we extended

the plan, because she needed more time to improve on her data entry and increasing her visits.”

4 Roll testified that these “overlap billing” errors were common and

difficult for specialists to correct because the system did not allow

them to see all their entries for the month.

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(Id. at 726, 728).

Approximately one hour after Rainey sent her second email to Plaintiff, Wladyka also

emailed Plaintiff regarding data entry:

I was looking into all of the contacts for October data and came across specific

examples of where you are entering duplicate entries into contacts. It was

discovered that for the initial evaluations you participated in you had entered a

separate contact note.... This is not necessary to do.

(Doc. 16-24 at 1475). She provided further explanation, then concluded:

Please respond to me by Friday, November 20th if you understand this or you need

additional clarification on this or any other database procedures. If I do not hear

back from you, I will assume that you fully understand how to document properly.

(Id.).

Plaintiff responded “I fully understand and moving forward will not duplicate.... I

appreciate the clarification.” (Id.).

On November 20, 2020, Plaintiff became sick with COVID. Between November 20 and

December 16, 2020, Plaintiff was either absent or working intermittent half days remotely due to

COVID. Therefore, no meeting was held on November 24, 2020. On November 30, 2020, she

again requested FMLA leave to care for her father. This was approved on December 11, 2020.

On December 16, 2020, Plaintiff resumed full-time work.

Rainey testified that because Plaintiff “was ill and there were upcoming holidays and she

needed more time to improve,” the PIP was extended, with a new anticipated end date of January

29, 2021. (Doc. 17-2 at 1556). A note added to the PIP stated that the PIP was extended “due to

holiday’s [sic] and illness” and would “resume 1/6/21.” (Doc. 16-23 at 1463). Rainey testified

that she informed Plaintiff of the extension sometime after she returned to work because “[s]he

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was off sick. I don’t reach out to staff when they are off.” (Id. at 1561).

On January 27, 2021, Rainey emailed Defendant’s Chief Human Resources Officer,

Christina Brown, regarding Plaintiff’s PIP:

Attached you will find SB’s final improvement plan. She has not met 3 goals,

partially met 2 goals (made progress), and met 3 goals on this plan over the last

four months. I have not sent the finally [sic] copy to SB to ask for her signature

yet. Please advise if you would like me to send this draft to her, and what next

steps are.

(Doc. 13-5 at 678).

Plaintiff took FMLA leave to care for her father on January 28 and February 1, 2021.

On February 3, 2021, Defendant notified Plaintiff that she failed her probationary period,

and her employment was terminated effective February 12, 2021. According to the PIP, she

failed to meet goals one, two, and seven, which related to increasing the frequency of her client

visits, implementing a more efficient data entry process, and creating a predictable schedule in

order to balance in-person and virtual visits.

Rainey testified that she assessed goal one as “not met” because Plaintiff was

“supplementing evaluations and shadow visits to meet the expected 70% productivity

expectation.” (Doc. 13-4 at 664). Rainey determined that Plaintiff failed to meet goal two

because she continued to make data-entry errors by recording her time in the wrong section on

the database. (Id. at 666). Rainey also assessed that Plaintiff did not meet goal seven, which

required her “to create a predictable schedule that balances the virtual and in-person visits.” (Id.

at 671).

Following her termination, Plaintiff filed an internal grievance, which was denied.

Plaintiff and the union took her case to arbitration. After briefing and a hearing, the arbitrator

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ruled in favor of Defendant.5

Plaintiff thereafter filed this lawsuit. The Amended Complaint contains two claims for

relief. Count One is a claim for retaliation under the FMLA. Count Two asserts two FFCRA

violations, i.e., denial of leave and retaliation. Defendant moves for summary judgment on both

counts, and plaintiff opposes the motion.

STANDARD OF REVIEW

Summary judgment is appropriate when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,

378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material

facts 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, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution

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

5 Although Defendant asserts that “an arbitrator ... found her FMLA

retaliation argument to be ‘misplaced’,” the cited affidavit is from

Defendant’s Chief Human Resources Officer. The arbitrator’s

decision, which is attached to the affidavit, does not address the

issues before this Court. The primary issue in arbitration was

whether Defendant had violated the CBA by failing to evaluate

Plaintiff within her first year of employment. He found that

Defendant had properly followed the procedure set forth in the

CBA, and had a right to fire Plaintiff without cause because she

was a probationary employee.

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Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate

that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip

Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The nonmoving party may not simply rely on

its pleading, 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, 150 (6th Cir. 1995).

The evidence, all facts, and any inferences that may permissibly be drawn from the facts

must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,

Inc., 504 U.S. 451, 456 (1992). However, “[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.” Anderson, 477 U.S. at 252.

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

does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d

937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence 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 (citation omitted).

ANALYSIS

Plaintiff asserts retaliation in violation of the FMLA and violation of the FFCRA.

Defendant acknowledges that it is subject to both the FMLA and the FFCRA.

1. Retaliation in violation of FMLA

In Count One, Plaintiff alleges that Defendant retaliated against her for engaging in

FMLA-protected activity. In order to establish a prima facie case of retaliation under the FMLA,

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a Plaintiff must show that: “(1) [s]he was engaged in a statutorily protected activity; (2)

[Defendant] knew that [s]he was exercising [her] FMLA rights; (3) [s]he suffered an adverse

employment action; and (4) a causal connection existed between the protected FMLA activity

and the adverse employment action.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283

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

Once a plaintiff has established a prima facie case, “the burden shifts to the defendant to

articulate a nondiscriminatory reason for its actions. The defendant bears only the burden of

production; the burden of persuasion remains with the plaintiff at all times.” Weigel v. Baptist

Hosp. of E. Tennessee, 302 F.3d 367, 377–78 (6th Cir. 2002) (citing Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981)).

If the defendant offers a nondiscriminatory reason for its actions, the burden shifts back to

the plaintiff to demonstrate that defendant’s asserted reason is pretext. “[A] plaintiff can show

pretext in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the

proffered reasons did not actually motivate the employer’s action, or (3) that they were

insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th

Cir. 2009). “To survive summary judgment, a plaintiff ‘must produce sufficient evidence from

which a jury could reasonably reject [the defendant’s] explanation of why it’ took an adverse

employment action against the plaintiff.” Redlin v. Gross Point Pub. School Sys., 921 F.3d 599,

612 (6th Cir. 2019) (quoting Chen, 580 F.3d at 400). “At the summary judgment stage, the issue

is whether the plaintiff has produced evidence from which a jury could reasonably doubt the

employer’s explanation. If so, her prima facie case is sufficient to support an inference of

discrimination at trial.” Id.

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(a) Prima Facie Case

Defendant does not dispute the first two elements of the prima facie case. Plaintiff both

applied for and took FMLA leave, which are statutorily protected activities, and Defendant was

aware of these activities.

It is undisputed that Plaintiff’s termination qualifies as an adverse employment action. In

her complaint, Plaintiff alleges that a number of other events occurring during the tenure of her

employment constitute adverse actions. For example, Plaintiff alleges that her negative

employment review, placement on the PIP, changes to the PIP, and extension of the PIP are

adverse actions. Although the parties spend considerable time in their briefing discussing

whether these actions are “adverse,” the Court need not address this issue. Simply put, plaintiff’s

termination alone is sufficient to satisfy this element of plaintiff’s prima facie case.

To satisfy the final element, “all the plaintiff must do is put forth 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 at 283 (6th Cir. 2012) (quoting Dixon v. Gonzales, 481

F.3d 324, 333 (6th Cir. 2007)). For the purposes of establishing a causal connection, the Sixth

Circuit has made clear that “[o]ur precedents stand for the principle that timing matters.” Seeger,

681 F.3d at 284 (quoting Clark v. Walgreen Co., 424 F. App’x 467, 473 (6th Cir. 2011) (per

curiam)).

Defendant argues that temporal proximity alone is not sufficient to establish a causal

connection between Plaintiff’s protected activity and her termination. Defendant asserts that,

despite the temporal proximity of the events at issue, Plaintiff cannot establish a causal

connection because there were legitimate reasons Defendant’s actions, the termination process

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was in accordance with the CBA, Plaintiff was being given assistance before and during the PIP,

and she could have been terminated on the original end date of the plan, had it not been extended.

Upon review, the Court rejects defendant’s argument. In the Sixth Circuit, temporal

proximity alone may be sufficient to satisfy the casual connection element of a prima facie case.

See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (“Where an adverse

employment action occurs very close in time after an employer learns of a protected activity,

such temporal proximity between the events is significant enough to constitute evidence of a

causal connection for the purposes of satisfying a prima facie case of retaliation.”). It is

undisputed that plaintiff requested FMLA leave on November 30, 2020, which was approved

December 11, 2020. On December 16, 2020, Plaintiff was informed of the decision to extend her

PIP until January 29, 2021. On January 28 and February 1, 2021, Plaintiff took FMLA leave.

On February 3, 2021, Plaintiff was notified she had failed the PIP and would be fired.® Because

the events happened so close in time, the Court assumes causal connection 1s satisfied, and

Plaintiff has established a prima facie case.

(b) Legitimate Reason

Defendant has provided a legitimate reason for terminating Plaintiff's employment.

Defendant asserts that Plaintiff failed her probationary period because she did not meet three of

the seven goals in her PIP.

(c) Pretext

Plaintiff argues that Defendant’s explanation for her termination was actually a pretext

6 It appears that the decision to fire Plaintiff was made on or before

January 27, 2021, when Rainey emailed Brown informing her that

Plaintiff had failed the PIP.

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for FMLA retaliation for the following reasons.

First, Plaintiff asserts that the extension of the PIP is suspicious. Plaintiff argues that

Rainey’s November 18, 2020 email to Plaintiff, which indicated that she intended to “close out”

the PIP early, i.e., on November 24, 2020, meant that Plaintiff had successfully completed the

goals. (Doc. 15-4 at 911). Although further database deficiencies came to Rainey’s attention

after the November 18 email, Rainey stated in the email that the alleged deficiencies were

discussed with Plaintiff at the meeting held earlier that day. (Id.). Although additional database

issues came to Defendant’s attention later that day, Plaintiff was simply notified by email of the

discrepancies and was asked whether she understood them. Plaintiff responded that she did

understand the issues and would not “duplicate” in the future. This could be interpreted by a trier

of fact to mean that the database errors were not significant enough to extend the PIP. It was the

extension that ultimately led to Plaintiff’s termination. Accordingly, taking the evidence in the

light most favorable to the Plaintiff, there is an issue of fact as to whether Defendant had

intended to close out the PIP early because Plaintiff had been successful in completing her goals.

Additionally, the PIP indicated that it was extended “due to holiday’s [sic] and illness.”

(Doc. 15-1 at 887). Rainey affirmed this in her deposition testimony. (Id. at 891). Yet she also

testified that “the biggest reason why we extended the plan, [was] because she needed more time

to improve on her data entry and increasing her visits.” (Id. at 887). Issues of fact exist as to the

reasons for the extension of the PIP.

Second, Plaintiff challenges the factual basis for Defendant’s assertion that she was

terminated because she failed to meet three of the PIP goals. Plaintiff argues that she in fact

partially met all three of the goals marked as “not met.”

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Goal one required Plaintiff to “work with [her] supervisor to increase the frequency of

visits to her current caseload and ... implement strategies to increase direct services ... such as

partnering in evaluations and taking SSP cases.” Plaintiff argues that this is a two-part goal, and

there is no dispute that she partnered in evaluations and offered her services on SSP cases.

Rainey acknowledged Plaintiff had fulfilled these elements of the goal, and testified she marked

the first goal “not met” because Plaintiff was not visiting her caseload “at the frequency that she

should have been visiting them.7” (Doc. 15-1 at 859-60). But, the January 20, 2021 note on the

PIP states that although Plaintiff scheduled frequent visits, “families often no show or cancel.”

Therefore, there is an issue of fact as to whether goal one could have been met.

Goal two required Plaintiff to “work with management to implement a more efficient data

entry process.” Emails from November 2020 make clear that Plaintiff had made data entry errors

the prior month. Defendant again points to the PIP as evidence that Plaintiff’s performance

remained deficient in December 2020 and January 2021. However, the notes relating to this goal

seem to indicate improvement. For example, the PIP states that in December, Plaintiff had “no

data entry questions.” On January 20, 2021, Rainey noted “No concerns” with Plaintiff’s data

entry. The January 27 note describes a database error that prevented Plaintiff from uploading

some documentation, but explains Wladyka identified this as “a database issue that is being

corrected.” Issues of fact remain as to the completion of this goal.8

7 The Court notes that neither the PIP nor the parties’ briefing

indicates what frequency of visits was sufficient to meet this goal.

8 An undated summary in the PIP notes relating to goal two states

that Plaintiff continued to make errors in December including

“routinely not billing for data entry and prep and paperwork when

she is the PSP.” (Doc. 13-4 at 665). However, this is not reflected

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Goal seven required Plaintiff to “work with EI management to create a predictable

schedule that balances virtual and in person visits.” It is undisputed that it was not possible to

create a schedule “balanced” between in-person and virtual visits in January 2021. The PIP notes

state that, in December 2020 and January 2021, Defendant was limiting all employees to “all

virtual visits ... no in person visits currently allowed” and concludes “this has balanced itself out

currently.” Rainey acknowledged that during that period there was “nothing to balance at that

point because there were no in-person visits.” (Doc. 17-2 at 1552). However, Rainey explained

that she marked this goal as “not met” because “[e]ven though we were not doing in-person

visits, she could have increased her virtual visits. And that was the expectation.” (Doc. 17-2 at

1551). Rainey’s PIP note also focused on the frequency of Defendant’s client visits, which is

relevant to PIP goal one, and did not indicate any deficiency in predictability or balance between

in-person and virtual visits which are central to this goal.

Plaintiff has introduced sufficient evidence from which a jury could conclude that

Defendant’s proffered reason for termination is pretext for FMLA retaliation. In particular,

issues of fact exist as to the reason for the extension of the PIP which led to Plaintiff’s

termination, and whether Plaintiff actually failed to meet three of the PIP goals.9

For these reasons, summary judgement is denied as to the FMLA retaliation claim.

2. Violations of FFCRA

in the PIP notes from December.

9 Plaintiff additionally argues that her database entry errors were

insufficient to warrant extension of the PIP and her resulting

termination because other employees who made similar errors were

not terminated. But, Plaintiff fails to demonstrate that these

unnamed employees were similarly situated to her.

17

As an initial matter, Defendant argues that it provided Plaintiff with all of the leave

required under the FFCRA. Plaintiff does not respond to this argument in any fashion.

Accordingly, the Court finds that Defendant is entitled to summary judgment on Count Two with

respect to Plaintiff’s claim for denial of leave. See, e.g., Brown v. VHS of Michigan, Inc., 545 F.

App’x 368, 372 (6th Cir. 2013) (“This Court’s jurisprudence on abandonment of claims is clear:

a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to

a motion for summary judgment.”).

The Court now turns to Plaintiff’s claim of FFCRA retaliation. Enacted in response to

the COVID-19 pandemic, the FFCRA is divided into multiple divisions containing separate

provisions. Pub. L. No. 116-127, 134 Stat. 178 (2020). Section 5104 of the FFCRA prohibits

makes it “unlawful for any employer to discharge, discipline, or in any other manner discriminate

against any employee who ... takes leave in accordance with this Act.” FFCRA, Pub. L. No.

116-127, 134 Stat. 178, 195 (March 18, 2020), see also 29 U.S.C. §§ 2601, 2620, 29 C.F.R. §

826.150(a). Under the FFCRA, an employer who discharges, disciplines, or discriminates

against an employee for taking protected leave “is considered to have violated section 15(a)(3) of

the FLSA.” 29 C.F.R. § 826.150(b)(2). Therefore, other courts have found that FFCRA

retaliation claims “may be brought under the FLSA.” Colombe v. SGN, Inc., 2021 WL 1198304

(E.D. Ky. Mar. 29, 2021) (quoting Kofler v. Sayde Steeves Cleaning Serv., Inc., 2020 WL

5016902, at *2 (M.D. Fla. Aug. 25, 2020)).

A prima facie case of retaliation under the FLSA requires that “the plaintiff [ ] prove that

(1) she engaged in protected activity under the FLSA; (2) her exercise of this right was known by

the employer; (3) the employer took an employment action adverse to her; and (4) there was a

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causal connection between the protected activity and the adverse employment action.” Pettit v.

Steppingstone, Center for the Potentially Gifted, 429 F. App’x 524, 530 (6th Cir. 2011) (citing

Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006)).

Defendant initially argues that Plaintiff is ineligible under the FFCRA because she

teleworked. According to Defendant, an employee is not eligible under the FFCRA if the

employee is able to telework while under quarantine. Defendant claims that since Plaintiff was

not eligible for leave under the FFCRA, she cannot file a claim for FFCRA retaliation. However,

Defendant acknowledges that “Plaintiff ... was fully out of work from November 23, 2020 to

December 4, 2020.” (Doc. 13-1 at 7, n.7). Further, Defendant acknowledges that this absence

was due to COVID, making Plaintiff eligible for leave under the FFCRA. Accordingly,

Defendant’s argument is rejected.

Next, Defendant asserts that Plaintiff failed to make a prima facie case because the

extension of the PIP was not an adverse employment action. For the same reasons set forth

above, the Court rejects this argument. Termination is indisputably an adverse employment

action. Causal connection is sufficiently demonstrated by the temporal proximity between

Plaintiff’s COVID-related absence, which ended December 16, 2020, and her termination on

February 3, 2021. Therefore, Plaintiff has established a prima facie case of FFCRA retaliation.

The Court again finds that Defendant has stated a legitimate, non-discriminatory reason

for Plaintiff’s termination, i.e., her failure to meet three of the PIP goals.

For the same reasons discussed in relation to Plaintiff’s FMLA retaliation claim, the

Court finds that there is a genuine issue of material fact regarding whether Defendant’s proffered

reason for termination is pretext for unlawful retaliation. Issues of fact exist as to whether

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Plaintiff in actuality failed to meet the three PIP goals. In addition, reasonable jurors could

disagree as to the reasons for the extension of the PIP, which directly led to Plaintiff’s

termination. In particular, a reasonable juror could conclude that Rainey’s testimony that the PIP

was extended “due to illness,” coupled with her termination shortly thereafter, shows that

Defendant terminated Plaintiff because she was out sick with COVID and not for a legitimate

business reason.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment is GRANTED to the extent

Count Two asserts a claim for denial of leave under the FFCRA and DENIED in all other

respects.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Dated: 11/8/22 Chief Judge

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