Donithan v. Ohio Department of Rehabilitation & Correction

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Patricia Donithan,

Plaintiff, Case No. 2:21-cv-1136

vV. Judge Michael H. Watson

Ohio Department of Rehabilitation Magistrate Judge Vascura

& Correction,

Defendant.

OPINION AND ORDER

Ohio Department of Rehabilitation and Correction (“Defendant”) moves for

summary judgment on each of Patricia Donithan’s (“Plaintiff”) claims of retaliation

under the Family and Medical Leave Act (“FMLA”). Mot., ECF Nos. 59, 61.’ For

the following reasons, the Court GRANTS Defendant's motion.

I. FACTS

Plaintiff worked for Defendant from 1996 until 2021. Donithan Dep. 18:3-

9: 41:13-15, ECF No. 55. During the pertinent timeframe, Plaintiff worked as a

Records Management Supervisor, Document Management File Retention.

Donithan Dep. 38:22—42:7, ECF No. 55. Plaintiff's direct supervisor was

Administrative Officer 2 (“Assistant Chief’), Carolyn Young (“Young”). /d. at

1 ECF No. 59 was not compliant with the Court’s local requirement that documents be

submitted in a text-searchable format, see Notice, ECF No. 60. Accordingly, a

compliant version was resubmitted in ECF No. 61. The Court cites to ECF No. 61

throughout this Opinion and Order.

43:3-7; Bower Dep. 17:10-12, ECF No. 52; Young Dep. 16:8-24, ECF No. 51.

Young's direct supervisor was the Chief of Sentence Computation and Records

Management, Liann Bower (“Bower”). Donithan Dep. at 43:13-16, ECF No. 555;

Bower Dep. 14:4—5, ECF No. 52.

Plaintiff took FMLA leave in 2016, 2017, and 2018 to care for her father.

Id. at 63:19-24. Plaintiff applied for, but was denied, various promotions from

2017 through 2021. /d. at 64:16-65:16. She believes each promotion denial

was retaliation for taking FMLA leave. See generally, id. Additional facts are

discussed below, as necessary.

ll. © STANDARD OF REVIEW

The standard governing summary judgment is set forth in Federal Rule of

Civil Procedure 56(a), which provides: “The court shall grant summary judgment

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.”

The Court must grant summary judgment if the opposing party “fails to

make a showing sufficient to establish the existence of an element essential to

that party’s case” and “on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Van Gorder v.

Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007).

When reviewing a summary judgment motion, the Court must draw all

reasonable inferences in favor of the nonmoving party, who must set forth

specific facts showing there is a genuine dispute of material fact for trial, and the

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Court must refrain from making credibility determinations or weighing the

evidence. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 255 (1986).

The Court disregards “all evidence favorable to the moving party that the jury

would not be required to believe.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150-51 (2000). Summary judgment will “not lie if the dispute

about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248

(internal citations and quotation marks omitted); see a/so Barrett v. Whirlpool

Corp., 556 F.3d 502, 511 (6th Cir. 2009).

The Court is not “obligated to wade through and search the entire record

for some specific facts that might support the nonmoving party’s claim.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The Court

may rely on the parties to call attention to the specific portions of the record that

demonstrate a genuine issue of material fact. Wells Fargo Bank, N.A. v. LaSalle

Bank N.A., 643 F. Supp. 2d 1014, 1022 (S.D. Ohio 2009).

lil. ANALYSIS

Plaintiff alleges that FMLA retaliation is the reason she failed to obtain five

separate promotions: (1) a 2017 promotion to a Correction Record Sentence

Computation/Release Supervisor position; (2) a subsequent 2017 promotion to

Administrative Officer 2; (3)/(4) two 2018 promotions to Correction Record

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Sentence Computation Release Auditor Supervisor; and (5) a 2021 promotion to

Release Supervisor. Resp., ECF No. 67.

A. Untimely Claims

The first two instances of alleged retaliation involve promotions that were

filled in 2017. See, e.g., Kimbro Decl. JJ 10, 12, ECF No. 61-2; Kimbro Decl.,

ECF No. 61-3 at PAGEID ## 1345, 1353.

Defendant argues that retaliation claims based on these instances are

barred by the statute of limitations.?, Mot. Summ. J. 14-15, ECF No. 61.

As the Court noted in a prior Opinion and Order in this case:

Generally, there is a two-year statute of limitations for all FMLA

claims. 29 U.S.C. § 2617(c)(1) (“Except as provided in paragraph (2),

an action may be brought under this section not later than 2 years

after the date of the last event constituting the alleged violation for

which the action is brought.”). The statute of limitations is extended

to three years for willful violations, however. 29 U.S.C. § 2617(c)(2)

(“In the case of such action brought for a willful violation of section

2615 of this title, such action may be brought within 3 years of the

date of the last event constituting the alleged violation for which such

action is brought.”).

Op. and Order 4, ECF No. 35.

Plaintiffs original Complaint was filed on March 16, 2021, which falls

outside even the generous three-year statute of limitations. See Compl., ECF

2 Defendant also argues that Plaintiff did not raise claims based on these instances in

her Second Amended Complaint, failed to move to amend her complaint after discovery

to add these claims, and should therefore be barred from asserting them. Mot. Summ.

J. 14-15, ECF No. 61 (“Because Donithan did not mention either 2017 position in her

Second Amended Complaint, this Court should not consider them.”). Because the

claims are untimely, the Court need not consider that alternative basis for dismissal.

Case No. 2:21-cv-1136 Page 4 of 22

No. 1. Plaintiff offers no response to Defendant's statute of limitations argument,

and the Court finds that any retaliation claim based on a failure to promote that

occurred in 2017 is time-barred. Accordingly, the Court DISMISSES WITH

PREJUDICE Plaintiff's first two claims.

B. Timely Claims

The remainder of Plaintiff's claims are arguably timely and should therefore

be addressed on the merits.*

1. FMLA Retaliation

The FMLA states that it is “unlawful for any employer to discharge or in any

other manner discriminate against any individual for opposing any practice made

unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2); see also 29 C.F.R.

§ 825.220(c) (stating the FMLA “prohibits an employer from discriminating or

retaliating against an employee . . . for having exercised or attempted to exercise

FMLA rights.”). Thus, the FMLA “encompasses a retaliation theory.” Johnson v.

Fifth Third Bank, 685 F. App’x 379, 384 (6th Cir. 2017) (citation omitted).

When, as here, a plaintiff asserts a single-motive FMLA retaliation claim,’

the Court must determine whether that plaintiff relies on direct evidence or on

3 See Op. and Order 4~8, ECF No. 35 (discussing the timeliness of the 2018 claims and

declining to find at the motion to dismiss stage that the two-year limitations period

applied). Defendant did not address in its summary judgment motion whether the two-

or three-year limitations period applied to Plaintiffs claims based on the events in 2018,

and the Court therefore does not consider whether those claims are time-barred.

4 The Price Waterhouse and Desert Palace principles, as modified in White v. Baxter

Healthcare Corp., 533 F.3d 381 (6th Cir. 2008) to create a summary judgment standard

in mixed-motive Title Vil cases, likely apply to a summary judgment analysis of mixed-

motive FMLA retaliation claims. However, because Plaintiff never identifies her claim as

Case No. 2:21-cv-1136 Page 5 of 22

circumstantial evidence. This is because one analysis applies for plaintiffs who

offer direct evidence of retaliation, while the familiar McDonnell Douglas/Burdine

tripartite burden-shifting test applies for those who rely on circumstantial

evidence. E.g., Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir. 2012) (“There is no

doubt that this Court applies the McDonnell Douglas burden-shifting framework

to FMLA retaliation suits when the plaintiff produces indirect evidence of a causal

connection between the protected activity and the adverse employment action.”

(citations omitted)); Johnson, 685 F. App’x at 384 (analyzing single-motive FMLA

retaliation claim based on circumstantial evidence under McDonnell

Douglas/Burdine).

2. Direct versus Circumstantial Evidence

The parties here dispute whether Plaintiff has offered direct evidence, and,

therefore, they dispute Plaintiffs burden of proof on summary judgment. Thus,

the first issue the Court must determine is whether Plaintiff has produced direct

evidence that she was denied the promotions in 2018 and 2021 because she

took FMLA leave.

Plaintiff offers two statements that she contends constitute direct evidence

that FMLA retaliation is the real reason for her failure to obtain the 2018 and

a mixed-motive claim, never invokes Price Waterhouse/Desert Palace (and, instead,

refers to the McDonnell Douglas/Burdine framework), and emphasizes the distinction

between direct and circumstantial evidence, the Court treats this case as asserting only

single-motive FMLA retaliation claims. Cf. Hashem-Younes v. Danou Enters. Inc., 311

F. App’x 777, 779 (6th Cir. 2009).

Case No. 2:21-cv-1136 Page 6 of 22

2021 promotions. First, Plaintiff testified that in March of 2018, she and Young

discussed a new employee who would be joining Plaintiff's section. Donithan

Dep. 66:17-69:3; ECF No. 55. During that conversation, Young said something

along the lines of, “let’s look and see if she has an FMLA.” /d. at 69:4—-5. In

response, Plaintiff told Young that not all employees who have an FMLA

certification in place abuse it. /d. at 69:9-12. Young responded to Plaintiff's

statement with something like, “yes, but I’ve been burned too many times.” /d. at

69:12-13.

Second, Plaintiff provided an affidavit from a former co-worker, Julia

Kempher (“Kempher’), who overheard Bower and Young discussing Plaintiff.

According to Kempher's affidavit, Bower refused to permit Plaintiff to attend ’a

week or two of training” in 2015 because of Plaintiffs recent absences. Kempher

Aff. 1 6, ECF No. 67-4. When Young told Bower that the absences were FMLA-

related, Bower replied “No, | don’t care, she needs to be here if we're going to

reward her.” /d.

Plaintiff alleges that each statement is direct evidence of FMLA retaliation.

The Court disagrees.

“Direct evidence of discrimination ‘must establish not only that the plaintiff's

employer was predisposed to discriminate on the basis of [the FMLA], but also

that the employer acted on that predisposition.” Curry v. Brown, 607 F. App’x

519, 523 (6th Cir. 2015) (quoting Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,

707 (6th Cir. 2008)). “[G]eneral, vague, or ambiguous comments do not

Case No. 2:21-cv-1136 Page 7 of 22

constitute direct evidence of discrimination because such remarks require a

factfinder to draw further inferences to support a finding of discriminatory

animus.” Daugherty, 544 F.3d at 708 (citations omitted).

Here, neither statement amounts to direct evidence because neither

explicitly shows an improper motive for the specific, at-issue promotion denials in

2018 or 2021. Instead, even though the statements demonstrate animus toward

employees who take FMLA leave, a factfinder would need to infer that the

decisions not to promote Plaintiff in 2018 and 2021 were tainted by such animus.

For example, Bower's statement occurred in 2015 and therefore plainly does not

indicate without further inference any reason for decisions made in 2078 or 2027.

And Young’s statement referred to a third party and therefore also cannot show

without further inference why actions were taken with respect to Plaintiff. Cf,

Foster v. Michigan, 573 F. App’x 377, 393 (6th Cir. 2014) (singular statement

made not specifically about the plaintiffs, not in connection with an adverse

employment action, and three years before any evaluation was not direct

evidence for purposes of a § 1983 intentional discrimination claim); Griffin v.

Finkbeiner, 689 F.3d 584 (6th Cir. 2012) (“The fact that the statements do not

specifically mention Daugherty means only that they are not direct evidence of

discrimination; they could still be circumstantial evidence of discrimination.”

(citation omitted)); Blair v. Henry Filters, Inc., 505 F.3d 517, 524-25 (6th Cir.

2007), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S.

167 (2009) (statement that plaintiff was “too old” to handle an account was direct

Case No. 2:21-cv-1136 Page 8 of 22

evidence that age discrimination caused the plaintiff's removal from the account

but not that age discrimination caused the plaintiffs termination).

Because these statements require an additional inference, they are unlike

those the Sixth Circuit has labelled direct evidence. For example, in Daugherty,

a supervisor explicitly told Daugherty that he would lose his job if he used his

remaining FMLA leave. The plaintiff used the leave and was subsequently

terminated. The Circuit unsurprisingly found the supervisor's statement was

direct evidence because the threat “d[id] not indicate merely a general bias

against employees taking FMLA leave, but rather establishe[d] a clear

connection between Daugherty’s last FMLA leave and [the supervisor's] decision

to discharge Daugherty from his employment.” Daugherty, 544 F.3d at 708; cf.

Hunter v. Valley View Local Schs., 579 F.3d 688, 692-93 (6th Cir. 2009) (direct

evidence where the decisionmaker testified at deposition that the plaintiffs

absenteeism—due, in part, to FMLA leave—was one reason she placed the

plaintiff on involuntary leave).

As mentioned above, neither of these statements directly link animus

against FMLA users to Plaintiffs promotion denials. Thus, the Court concludes

that Plaintiff's timely claims should be analyzed under the McDonnell

Douglas/Burdine burden-shifting framework used for cases that rely on

circumstantial evidence. Cf. Tilley v. Kalamazoo Cty. Rd. Comm'n, 654 F. App’x

675, 683, 685 (6th Cir. 2016) (although termination letter could be read as

indicating that FMLA was a reason for the plaintiff's termination, it amounted to

Case No. 2:21-cv-1136 Page 9 of 22

circumstantial evidence because there was “no direct statement” that the FMLA

leave motivated termination); Curry, 607 F. App’x at 523 (statement that plaintiff

“needed to focus on her health problems, transfer to Burlington and it would be

less stressful” was not direct evidence that demotion and transfer were due to

FMLA leave); Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548

(6th Cir. 2004) (general statements from management “about the need to lower

the average of their workforce” not direct evidence that plaintiffs were fired

because of age discrimination); Hein v. All Am. Plywood Co., Inc., 232 F.3d 482,

489 (6th Cir. 2000) (“Although the Big Boy sales updates, the references to

‘weight limits,’ and the ‘Burger Boy’ nicknames might raise a genuine issue of

material fact as to Ludwinski’s predisposition towards weight discrimination, Hein

presented no evidence to connect Ludwinski’s alleged prejudice against heavier

individuals with his decision to fire Hein.”).

3. McDonnell Douglas/Burdine

To make out a prima facie case of FMLA retaliation pursuant to McDonnell

Douglas/Burdine, Plaintiff must prove that: “(1) she availed herself of a protected

right under the FMLA .. . ; (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 v. JAC Prods., Inc., 443

F.3d 501, 508 (6th Cir. 2006) (citations omitted).

With respect to the third prong, “[aJn employer’s motive is an integral part

of the analysis ‘because retaliation claims impose liability on employers that act

Case No. 2:21-cv-1136 Page 10 of 22

against employees specifically because those employees invoked their FMLA

rights.” Daugherty, 544 F.3d 696, 707 (6th Cir. 2008) (quoting Edgar, 443 F.3d

at 508). Evidence that “supports an inference’ that the adverse action was taken

because a plaintiff exercised FMLA rights is sufficient to establish a causal

connection for purposes of a prima facie case. Johnson, 685 F. App’x at 384-85

(internal quotations and citation omitted). Thus, “[e]stablishing a prima facie

case” of FMLA retaliation under McDonnell Douglas/Burdine “is easily met.”

Johnson, 685 F. App’x at 384—85 (internal quotations and citation omitted).

If a plaintiff establishes a prima facie case, the burden shifts to the

defendant to offer a legitimate, nondiscriminatory reason for the adverse action.

Edgar, 443 F.3d at 508 (citation omitted). If the defendant offers such a reason,

the burden shifts back to the plaintiff to establish a genuine dispute of material

fact that the legitimate, nondiscriminatory reason was pretext and that FMLA

retaliation was the real reason a defendant took the adverse action. Johnson,

685 F. App’x 385-86.

A plaintiff can demonstrate pretext by raising a genuine dispute of material

fact that either: (1) “the proffered reason{] had no basis in fact, (2) . . . the

proffered reason[] did not actually motivate the employer's action, or (3)... it

was insufficient to motivate the employer’s action.” /d. at 386 (cleaned up). “To

succeed, [the plaintiff] must put forth evidence which demonstrates that the

employer did not honestly believe in the proffered non-discriminatory reason for

Case No. 2:21-cv-1136 Page 11 of 22

its adverse employment action.” /d. (internal quotation marks and citation

omitted).

a. Analysis

For each of the three remaining promotions, Defendant admits that Plaintiff

availed herself of a protected right (using FMLA leave to care for her father) and

suffered adverse employment actions (failing to obtain the 2018 and 2021

promotions). But, Defendant argues that Plaintiff cannot establish a prima facie

case as to any of the three remaining promotions because there is no genuine

issue of material fact as to whether there was a causal connection between her

use of FMLA leave and her failure to obtain a promotion. Mot. Summ. J., ECF

No. 15-17. Moreover, Defendant argues that, if Plaintiff can establish a prima

facie case, it had a legitimate, nondiscriminatory reason for each promotion

denial, which Plaintiff is unable to rebut. /d. at 17-20.

The Court begins by determining whether Plaintiff offered evidence

sufficient for a prima facie case of FMLA retaliation as to each remaining

promotion.

As circumstantial evidence of causation, Plaintiff offers Young’s 2018

statement asking whether a different employee has ever taken FMLA leave,

Bower's 2015 refusal to permit Plaintiff to participate in weeks-long training

because of then-recent absences from the office, an affidavit from another

employee, Michelle Kountz (“Kountz’), who alleges that Young and Bower

interfered with Kountz’s attempts to take FMLA leave, and an unsupported

Case No. 2:21-cv-1136 Page 12 of 22

allegation that Bower, based on anti-FMLA animus, purposefully violated the

terms of a 2017 mediation out of a desire to make Plaintiff a less-credentialed

candidate for future promotions. See generally, Resp., ECF No. 67.

To determine whether this circumstantial evidence supports an inference

of causation, it is important to set forth Defendant's general procedure for filling

vacancies and to consider the undisputed evidence regarding how each at-issue

vacancy was filled in this case.

There is no dispute as to the general procedure for filling vacancies at

Defendant. The first relevant step was for Human Resources to post the

vacancy. Bower Dep. 42:5-6, ECF No. 52.° Once the application period closed,

Human Resources forwarded all applications (with required documents) to

Bower, and she or Young would screen each application and determine whether

the applicant met required minimum qualifications. /d. at 42:6—14. If an applicant

did not meet the minimum qualifications, they did not receive an interview. /d. at

44:4-8.

A Subject Matter Expert (“SME”) then reviewed for various criteria all

applications submitted by applicants who met minimum qualifications, and the

SME scored each application based on those criteria. Id. at 43:24-44:25. The

SME’s scores were used to determine which applicants received an interview,

and Human Resources scheduled those interviews. /d. at 42:14—-20; 44:22-25.

5 Bower's testimony as to this process is consistent with Defendant's policies during the

pertinent timeframes. See ECF No. 61-2 at PAGEID ## 1287-1300.

Case No. 2:21-cv-1136 Page 13 of 22

Those applicants selected for an interview then interviewed before a panel

of three. See jd. at 42:20-21. Bower would sometimes serve on an interview

panel; “it kind of depended on who was available and what position it was. So it

was different for . . . each position and what area it was in.” /d. at 42:20-25.

Young also served on some interview panels. Young Dep. 23:24—24:8, 26:1—5,

ECF No. 51.

Upon completion of the interviews, the panel would discuss the

interviewees amongst themselves and submit a recommendation to Bower as to

whom to hire. Bower Dep. 43:1-8, ECF No. 52. Bower was required to approve

the recommendation, and her approval ultimately determined “whether or not the

person [recommended by the panel] receive[d] the opportunity,” because she

had the power to “change the recommendation.” /d. at 43:19-23, 57: 6-13. But

Bower did not “really review anything” before signing off on a recommendation

and “never went against a panel’s recommendation” during her entire tenure as

Chief. /d. at 57:6-—13. Once Bower signed off on a panel’s recommendation, the

form was transferred to Human Resources because the Chief of Human

Resources “has the final signature on the positions.” /d. at 43:3-18; 50:15—

51:24.

1. 2018 Promotions

For both 2018 promotions, the SME was Donelle Cummins (“Cummins”).

Kimbro Decl. Jf] 14, 16, ECF No. 61-2 at PAGEID ## 1284-85; Rec. for

Personnel Selection, ECF No. 61-3 at PAGEID # 1361; Rec. for Personnel

Case No. 2:21-cv-1136 Page 14 of 22

Selection, ECF No. 61-4 at PAGEID # 1371. It is uncontested that, based on

Cummins’ scoring of the applications, Plaintiff received an interview for each

2018 position. Donithan Dep. 125:2—127:23, ECF No. 55.

The interview panel for both positions consisted of Cummins, Mary Oakley

(“Oakley”), and Bryan Byorth (“Byorth”). Kimbro Decl. J 14, 16, ECF No. 61-2 at

PAGEID ## 1284-85; Rec. for Personnel Selection, ECF No. 61-3 at PAGEID

# 1361; Rec. for Personnel Selection, ECF No. 61-4 at PAGEID # 1371. The

parties did not submit declarations or deposition transcripts from Oakley or

Byorth, but Cummins stated under oath that, after the interviews were conducted,

the panelists discussed “the candidates’ qualifications for the positions and not

the candidates’ FMLA status.” Cummins Decl. 7 10, ECF No. 61-1. Indeed,

Cummins averred that she was not even aware of Plaintiffs FMLA status at the

time of the interviews and recommendations and that Plaintiff's FMLA status did

not influence her recommendations for either of the 2018 promotions. /d. at Tf 9,

11. The panelists ultimately recommended Lucrecia Hager (“Hager”) and

Christopher Dunn (“Dunn”) for the two 2018 promotions. Rec.for Personnel

Selection, ECF No. 61-3 at PAGEID # 1361; Rec. for Personnel Selection, ECF

No. 61-4 at PAGEID # 1371.

Bower approved the panelists’ recommendations for the two 2018

promotions. /d. Again, although Bower had the authority to change the panel's

recommendations, she has “never” done so. Bower Dep. 57:3-13, ECF No. 52.

Case No. 2:21-cv-1136 Page 15 of 22

Plaintiff offers no evidence to contradict Cummins’ testimony that Cummins

was not aware of Plaintiffs FMLA status, that the panel did not discuss the same

when reaching their consensus candidates, and that Plaintiffs FMLA status did

not impact Cummins’ 2018 promotion decisions. Similarly, Plaintiff offers no

evidence that either Oakley or Byorth knew about, let alone considered, Plaintiff's

FMLA status when determining who to recommend for the 2018 promotions.

Rather, Plaintiffs causation theory is that Bower made the “final selection] for

the promotions at issue,” Resp. 5, ECF No. 67, and that Bower was biased

against Plaintiff.

But even assuming for the sake of argument that Bower harbored animus

against Plaintiff for using FMLA leave, Plaintiffs causation argument lacks merit.

Her argument is essentially that the panel recommended Hager and Dunn for

these positions, that the panel’s recommendations were not the result of FMLA

retaliation, but that FMLA retaliation is the reason Bower refused to change the

recommendations and exercise her authority to instead appoint Plaintiff to one of

the open positions. This is too attenuated an argument to satisfy even the low

barrier at summary judgment with respect to raising a genuine dispute of material

fact on causation. It simply does not raise an inference that FMLA retaliation is

the reason Plaintiff lost the two 2018 promotions, because no one with even

arguable animus “made” the decisions in the real sense of the word. The

“untainted” panel made the hiring decisions. Bower did not “dec[ide] on whom to

select for promotions” as Plaintiff maintains, Resp. 9, ECF No. 67; Bower simply

Case No. 2:21-cv-1136 Page 16 of 22

failed to override those untainted decisions. This conclusion on causation is

especially strong here, where Bower testified that she has never overridden a

panel’s recommendation.

Moreover, to the extent Plaintiff invokes temporal proximity to satisfy her

prima facie burden, she fares no better. First, Plaintiff fails to cite any evidence

concerning the specifics of when she took FMLA leave in relation to when the

2018 hiring decisions were made. She merely cites generally to the then-existing

FMLA certifications (one of which post-dates the 2018 hiring decisions). Resp.

10, ECF No. 67 (“Exhibit F are copies of some of the FMLA certifications for her

father.”) (emphasis in original); Certifications, ECF No. 67-6. Thus, the Court

cannot discern how much time passed between the taking of any given leave and

the promotion decisions. Second, regardless of the amount of time between the

two (or even considering her leave to be continuous due to the existence of an

ongoing certification), Plaintiff faces the same hurdle as above. There is simply

no indication anywhere in the-record that anyone on the panel knew about

Plaintiffs FMLA status. Logically, absent evidence of knowledge, temporal

proximity cannot support an inference of causation.

At bottom, Plaintiff has offered zero evidence that a single person involved

in the 2018 recommendation decisions even knew about Plaintiffs FMLA status,

let alone that her FMLA status was the true reason a panelist chose not to

recommend Plaintiff. Bower's inaction—her failure to override those

recommendations and promote Plaintiff instead—is insufficient to support an

Case No. 2:21-cv-1136 Page 17 of 22

inference that Plaintiff lost the promotions because of her FMLA status; she lost

the promotions because the unbiased panel recommended another candidate.

Plaintiff has thus failed to clear the admittedly non-onerous bar to establishing a

prima facie case of retaliation vis-a-vis the 2018 promotion denials, and

Defendant is entitled to summary judgment on those claims.

2. 2021 Promotion

For the 2021 promotion, Bower was the SME. Rec. for Personnel

Selection, ECF No. 61-4 at PAGEID # 1379. It is again undisputed that Plaintiff

received an interview for this promotion, Donithan Dep. 141:14-143:1, ECF No.

55, but the panel ultimately recommended Charity Kisor instead. Rec. for

Personnel Selection, ECF No. 61-4 at PAGEID # 1379.

The interview panelists for the 2021 promotion were Carmen Kimbro

(“Kimbro”), Cummins, and John Dong (“Dong”). Again, Cummins averred that

she was unaware of Plaintiffs FMLA status, that the panelists did not discuss

Plaintiffs FMLA status, that Plaintiff's status did not influence Cummins’ decision

with respect to the 2021 promotion. Cummins Decl. J] 9-11, ECF No. 61-1.

Kimbro also submitted a declaration and declared that she has “never been

made aware of the interviewees’ FMLA status” before an interview, “would not

know if and when an applicant has FMLA leave,” did not discuss any candidate’s

FMLA status in connection with the 2021 promotion recommendation decisions,

was not influenced by Plaintiff's FMLA status when determining who to

recommend for the 2021 promotion, and believed Plaintiff failed to “articulate,

Case No. 2:21-cv-1136 Page 18 of 22

during the interview, that she had the necessary experience for the position.”

Kimbro Decl. □□ 22-27, ECF No. 61-2. Dong also submitted a declaration, in

which he likewise averred that he was not aware of the FMLA status of any

candidate, that the panelists did not discuss any candidate’s FMLA status, that

Plaintiffs FMLA status did not influence his decision, and that he recommended

Kisor “because Kisor had recent experience and knowledge working with

offender releases, which [Plaintiff] did not have.” Dong Decl. ff] 3-8, ECF No.

59-6. Moreover, there is zero evidence that anything Bower did as SME affected

the panel’s selection of a candidate for recommendation.®

Plaintiff again fails to rebut this evidence with any evidence that Kimbro,

Cummins, or Dong knew of Plaintiffs FMLA status when they decided to

recommend Kisor over Plaintiff (and the other five interviewees) for the 2021

promotion. As Plaintiff cannot even show the panelists knew of her FMLA status,

she has necessarily produced no evidence that the panel’s recommendation was

based on FMLA retaliation.

Instead, as above, Plaintiffs causation theory rests on the fact that Bower

approved the recommendation rather than of exercising her authority to reject the

panel’s recommendation and instead appoint Plaintiff. Although Plaintiff's

argument ultimately fails for the same reasons addressed above, the Court

6 Instead, the evidence to which the Court was pointed suggests the opposite. See

Bower Dep.: 44:22—25, ECF No. 52 (Q: “Are the subject matter expert scores taken into

account when selecting a candidate?” A: “No. No. It’s just used for interview purposes

to determine who will receive interviews.”).

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discusses Plaintiffs evidence a bit more here, where Bower was involved in the

selection process as SME.

At this stage, Bower’s 2015 statement is circumstantial evidence that

Bower harbored an anti-FMLA animus’ despite her testimony that she did not

consider Plaintiffs FMLA status in connection with any at-issue promotion. See

Bower Dep. 67:1—5, ECF No. 52. Similarly, another employee averred that

Bower prevented her from exercising her FMLA rights. Kountz Aff., ECF No. 67-

14.

This circumstantial evidence of Bower’s anti-FMLA bias is ultimately a red

herring, however. As noted, Bower had two roles in the 2021 promotion

decision. First, as SME, she screened the applicants to determine who should

receive an interview—and Plaintiff received an interview. Next, she essentially

rubberstamped the panel’s recommendation. Thus, just as with the 2018

promotions, even considering that Bower was the SME in 2021, she cannot

reasonably be considered a “decisionmaker’ for purposes of that promotion. The

circumstantial evidence of Bower's anti-FMLA animus is therefore again

7 Plaintiff also references a 2017 mediation between Plaintiff and Bower and argues that

Bower violated the terms of that mediation. Resp. 16, ECF No. 67. She contends that

“Bower refused to participate in [Plaintiff's] efforts to enhance her chances of a

promotion to the Offender Release Section of the Bureau of Records Management” by

“intentionally . . . not follow[ing] through on the terms of the mediation because to do so

would have put her in a stronger position to obtain promotions.” /d. at 17. Plaintiff,

however, cites zero evidence that Bower violated the terms of the 2017 mediation—let

alone that she did so out of an anti-FMLA animus in order to ensure that Plaintiff would

be in a weak position vis-a-vis future promotions. As such, this instance is not

considered as circumstantial evidence to support Plaintiffs theory that Bower's years-

later decision not to override the panel’s recommendation was FMLA retaliation.

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insufficient to support an inference that FMLA retaliation is the reason Kisor

received the 2021 promotion instead of Plaintiff.

Additionally, Plaintiff cannot rely on temporal proximity for the same

reasons as addressed above. If the real decisionmakers were unaware of

Plaintiffs FMLA usage, the timing between her protected activity and the adverse

action cannot indicate the two are correlated.

For these reasons, Plaintiff has also failed to establish a prima facie case

with respect to the 2021 promotion, and Defendant is entitled to summary

judgment on that claim as well.

IV. CONCLUSION

Two of Plaintiffs claims are time-barred. As to the remaining claims,

Plaintiff has failed to offer evidence that would support an inference that Plaintiff's

FMLA usage is the reason she was denied the promotions. At bottom, the

evidence shows that the people who decided to promote a different candidate

over Plaintiff were not even aware of Plaintiffs FMLA status or usage. The only

evidence of anti-FMLA animus relates to Young and Bower. But Young was not

involved in any of the timely decisions. And, to the extent Young’s bias infected

Bower, Bower likewise was not a decisionmaker in the practical sense of the

word. Plaintiff's argument that Bower’s animus made her fail to override the

panels’ decisions is insufficient to raise a genuine dispute of material fact on

causation in these single-motive FMLA retaliation claims. As such, Defendant is

entitled to summary judgment on Plaintiffs claims. Defendant’s motion, ECF No.

Case No. 2:21-cv-1136 Page 21 of 22

59, is GRANTED. The Clerk shall enter judgment for Defendant and terminate

this case.

IT IS SO ORDERED. | | ch Nan

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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