Bates v. University Hospitals Health System, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NARTISHA BATES, ) CASE NO. 1:22-CV-2269

)

Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN

)

v. )

)

UNIVERSITY HOSPITALS HEALTH ) MEMORANDUM OPINION

SYSTEM, INC., ) AND ORDER

)

Defendant. )

Before the Court is Defendant University Hospitals Health System, Inc.’s (“UHHS” or

“Defendant”) motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. (Doc. No. 17.) Plaintiff Nartisha Bates (“Bates” or “Plaintiff”) opposed the motion

only as to her Title VII race discrimination claims (Counts 5 and 6), Title VII retaliation claims

(Counts 7 and 8), and Family Medical Leave Act (“FMLA”) retaliation claim (Count 10). (Doc.

No. 21.) UHHS timely replied in support of its motion. (Doc. No. 24.) For the reasons stated

herein, Defendant’s motion for summary judgment is GRANTED.

I. BACKGROUND

A. Facts

In October 2018, UHHS hired Bates as a Revenue Cycle Supervisor in its Revenue

Cycle-Revenue Integrity Department. (Doc. No. 21 at 261; Doc. No. 21-1 at 283, ¶ 1.)1

Plaintiff’s responsibilities included “supervising the day to day operations of the assigned patient

accounts ‘to ensure the productive and timely submission and resolution of insurance and/or

patient claims for all hospital and physician services.’” (Doc. No. 21 at 261; Doc. No. 17-1 at

1 For ease and consistency, record citations are to the electronically stamped CM/ECF document

and PageID# rather than any internal pagination.

214.) Plaintiff supervised a team of twenty to twenty-five employees, which met weekly. (See

Doc. No. 21 at 261; see also Doc. No. 17-2 at 323, ¶ 7; Doc. No. 17 at 128.) Plaintiff was also

tasked with regularly completing audit reports for her subordinate employees as a means of

assessing competency, identifying issues, and addressing any deficiencies through coaching or

training. (Doc. No. 17 at 129-30; Doc. No. 17-2 at 233, ¶ 11.)

In August 2019, Kelly Thomascik became Plaintiff’s supervisor. (Doc. No. 17 at 128;

Doc. No. 17-2 at 231, ¶ 3.) Unlike Plaintiff’s previous supervisor, Thomascik attended and

assisted Plaintiff with weekly team meetings. (See Doc. No. 17 at 128.) While attending these

meetings, Thomascik “observed that Plaintiff was ineffective in running her weekly team

meetings.” (Doc. No. 17-2 at 232, ¶ 7.) Specifically, Thomascik noted Plaintiff was

“confrontational with employees, favored African American employees, and was unwilling or

unable to enforce Defendant’s policies and requirements with respect to African American

employees.” (Id.) According to Thomascik, Plaintiff “would either delay reporting performance

issues for African American employees or outright fail to report the issues at all.” (Id.)

Thomascik did not attend weekly meetings for other Revenue Cycle Supervisors. (Id. ¶ 8.) In

April 2020, Thomascik positively reviewed Plaintiff’s performance for the 2019 performance

year. (Doc. No. 22 at 325.) Plaintiff was rated an effective contributor for both her job specific

competencies and performance expectations. (Id.)

In 2020, Plaintiff “began having issues” with certain employees on her team. (Doc. No.

21 at 261; Doc. No. 21-1 at 283, ¶ 4.) One employee, Ashley Djukic, submitted an anonymous

complaint about Plaintiff. (Doc. No. 17 at 129; Doc. No. 17-1 at 157.) According to Plaintiff,

Djukic was struggling with her workload and was exhibiting “insubordinate behavior.” (Doc.

No. 21 at 261-62; Doc. No. 21-1 at 283, ¶ 4.) In response, Plaintiff expressed her concerns to

Thomascik and sought permission to issue a disciplinary action against Djukic. (Doc. No. 21-1

at 283, ¶ 5.) Thomascik denied the request to pursue such an action. (Id.)

In August 2020, Plaintiff forwarded communications between Plaintiff, Djukic, and

another biller, Laureese Shotwell, to Wesley Haymon, a human resources generalist. (Doc. No.

21 at 262; Doc. No. 22 at 342.) Plaintiff complained to Haymon that Thomascik “was showing a

discriminatory racial bias or preference towards Djukic, based on her race[.]” (Doc. No. 21-1 at

283, ¶ 6.)

In October 2020, Plaintiff again requested to discipline Djukic for insubordination. (See

Doc. No. 17-1 at 217-21.) According to Thomascik, Plaintiff sought to issue a final written

warning to Djukic and refused to conduct weekly meetings due to Djukic’s alleged conduct.

(Doc. No. 17-2 at 232, ¶ 10.) Thomascik denied Plaintiff’s proposed disciplinary measure,

stating that she had “not observe[d] any behavior from Djukic that warranted any discipline, let

alone a final written warning.” (Id.) After Thomascik declined to discipline Djukic, Plaintiff

again raised concerns of race discrimination while meeting with Thomascik. (Doc. No. 21 at

263; Doc. No. 21-1 at 284, ¶ 7.) Thomascik relayed Plaintiff’s comments about race

discrimination to her supervisor, Chelsea Pishnery, the Director of Revenue Integrity and Billing.

(See Doc. No. 21-3 at 300.) On October 14, 2020, Pishnery contacted Haymon stating that she

had “some concerns about how [Plaintiff] handled a meeting with [Thomascik]” and was further

“concerned on how [Thomascik] was treated and how [Plaintiff] is continuing to treat certain

members of her team.” (Doc. No. 22 at 360-61.)

In October 2020, Haymon met with Thomascik and Pishnery regarding placing Plaintiff

on a performance improvement plan (“PIP”). (Doc. No. 17-2 at 233, ¶ 14; Doc. No. 21-1 at 284,

¶ 9; Doc. No. 17-3 at 237-28, ¶¶ 4-5.) Together, Haymon, Thomascik and Pishnery decided that

Plaintiff would not be placed on a PIP at that time and that Thomascik would continue to meet

with and coach Plaintiff regarding her performance and leadership skills. (Doc. No. 21-1 at 284,

¶ 9; Doc. No. 21-2 at 291-92; Doc. No. 17-2 at 233, ¶ 14.) On October 20, 2020, Thomascik sent

Plaintiff an email following up on the previous week’s meeting and discussing leadership

training programs. (Doc. No. 22 at 365-67.) In response, Plaintiff stated that her team “has

underlying racial issues that continue to be ignored” and suggested “[t]he team in its entirety

needs to be interviewed on this matter[].” (Id. at 362-65.)

According to Defendant, Plaintiff “also began to exhibit productivity issues in 2020” and

continuing into 2021. (Doc. No. 17 at 129-32; Doc. No. 17-2 at 233, ¶¶ 11, 15; Doc No. 17-3 at

238, ¶ 6.) Specifically, Plaintiff failed “to timely submit employee audits or outright failing to

submit them at all.” (Doc. No. 17 at 130.) Because the timely submission of audit reports “was

the most important function of Plaintiff’s position,” Thomascik and Plaintiff discussed

performance issues during their weekly meetings. (Id.; see also Doc. No. 17-2 at 233, ¶ 11.)

In March 2021, Thomascik approached Plaintiff about her failure to submit audit reports

for January and February 2021. (Doc. No. 17 at 131; Doc. No. 17-2 at 233, ¶¶ 15-16; Doc. No.

17-1 at 226.) Thomascik further informed Plaintiff that if the audit reports were not sent, “we

will be discussing an improvement plan to ensure these are completed monthly.” (Doc. No. 17-1

at 226.) According to Plaintiff, she timely submitted these reports, but in a different format than

Thomascik requested. (Doc. No. 21-1 at 284, ¶ 10; see also Doc. No. 17-1 at 224.)

Also in March 2021, Thomascik discussed placing Plaintiff on a PIP with Pishnery and

Haymon starting “sometime in April or May of 2021.” (Doc. No. 17-2 at 234, ¶ 17.) Pishnery,

Haymon and Thomascik “discussed [] and ultimately approved the plan in April or May of

2021.” (Id.; Doc. No. 17-3 at 238, ¶ 7.) On April 13, 2021, Plaintiff received her 2020

performance review, which identified her as an effective contributor for both her job specific

competencies and performance expectations. (Doc. No. 22 at 326.)

In April 2021, Plaintiff, who suffers from “various medical conditions, including deep

venous thrombosis, as well as uterine bleeding,” was injured while moving office furniture.

(Doc. No. 21-1 at 284, ¶¶ 11-12.) Consequently, Plaintiff was hospitalized from April 19 to April

25, 2021, and again from April 28 to May 11, 2021. (Id. ¶¶ 12, 13; Doc. No. 22 at 332.)

Between April 2021 and October 2021, Plaintiff sought and was granted intermittent FMLA

leave. (Doc. No. 21-1 at 284, ¶ 12.)

On May 28, 2021, Thomascik met with Plaintiff and provided her with a PIP. (Doc. No.

17-2 at 234, ¶ 18; see also Doc. No. 17-1 at 227-29.) The PIP identified two areas for

improvement: (1) leadership requirements and (2) operational concerns. (Doc. No. 17-1 at 227-

29.) For leadership requirements, the PIP listed the following expectations in relevant part:

The expectation is that you will have a set start time and a set work location

schedule (schedule may change based upon business need). Any changes to start

time or use of flex-time needs to be pre-approved by leadership.

You will provide timely responses to Manager/Director communications via

email/jabber. The expectation is that responses should be within 2 hours or the

same business day as applicable.

(Id. at 227.) For operational concerns, the PIP listed these expectations:

Daily Focus Reports will be completed each day and sent to staff no later than 9am.

Reports will follow the documented Standard Operating Procedure that was given

on 5/12/2021.

Staff Productivity Reports will be completed and sent out to staff and leadership bi-

weekly by Wednesday at 5pm. These reports will take into consideration the staff

exception time to show true productivity in accordance to the RCM Productivity

and Quality Policy. These reports will be uploaded onto the Revenue Integrity

SharePoint site for further tracking/reporting.

Staff Quality Reviews will be completed and sent out to staff by the 8th of each

month to review previous month accounts as selected via the Quadax randomized

sample report. These reports will be uploaded onto the Revenue Integrity

SharePoint site for further tracking/reporting. Reports will be reviewed with staff

monthly to ensure real time feedback. Quality scores will be calculated as average

by quarter as documented in the RCM Productivity and Quality Policy.

(Id. at 228.) The PIP set a sixty-day period of time to show improvement in these two areas.

(Id.) Plaintiff was also required to meet with Thomascik regularly to discuss her performance

and strategies for improvement. (Id.)

Within weeks of being placed on the PIP, Plaintiff’s medical conditions worsened. (Doc.

No. 21-1 at 285, ¶ 16.) Plaintiff went on medical leave from June 10 to June 22, 2021. (Id.) As

provided by the PIP, Plaintiff met with Thomascik on June 25, 2021, and July 2, 2021. (Doc. No.

22 at 391-93, 394-98.) At these meetings, Thomascik and Plaintiff discussed Plaintiff’s progress

towards meeting the PIP’s goals. (Doc. No. 17-2 at 234-35, ¶ 19.) According to Thomascik,

Plaintiff “became increasingly aggressive towards [Thomascik] during the PIP process.” (Id. at

234, ¶ 18.) Thomascik testified that during one of their meetings, Plaintiff threw a notepad

towards her and slammed her office door. (Id.; Doc. No. 21-2 at 294.) Plaintiff also likened her

treatment throughout the PIP process to the death of George Floyd. (Doc. No. 17-2 at 234, ¶ 18.)

According to Thomascik, “Plaintiff’s performance issues continued and she was unable

to satisfy many areas of the PIP.” (Id. at 235, ¶ 20; see also Doc. No. 22 at 436-37 (discussing

PIP goals and progress).) To Plaintiff, when she met with Thomascik on July 2, 2021, “despite

having been on the PIP for just over 30 days and missing nearly half that time for medical

reasons,” Plaintiff “had already met several of the alleged ‘goals’ set forth in the PIP.” (Doc. No.

21-1 at 285, ¶ 18; see also Doc. No. 22 at 394-98.)

On July 7, 2021, Plaintiff reported discriminatory bias regarding discipline to Haymon, as

well as UHHS President Cliff Mergerian. (Doc. No. 22 at 402-04.) On the same day, a Human

Resources (“HR”) representative responded to Plaintiff, informing her that Amy Wing, the

Director of HR, was assigned to investigate Plaintiff’s complaint. (Id. at 409-10.) Also on July

7, 2021, Kathy LeBrew, the Vice President of Revenue Cycle reached out to Wing directly. (Id.

at 409.) LeBrew informed Wing that she had “met with Kelly Thomascik [sic]” and “assured

[Thomascik] that you and the H/R team would intervene to review the documentation on file and

course of action as a result of [Plaintiff’s] performance and bad behaviors.” (Id.)

According to Plaintiff, no one, including Wing, followed up with her regarding her

complaint. (Doc. No. 21-1 at 285, ¶ 20.) Wing stated she reviewed Plaintiff’s complaint but

could not recall any responsive actions or any documentation of her investigative process. (Doc.

No. 21-5 at 311-13.) The record reflects that on July 2, 2021, Haymon contacted Defendant’s

FMLA administrator, Reed Group, inquiring whether Plaintiff’s absences on certain days were

approved for FMLA leave. (Doc. No. 22 at 419-20.) Wing was copied on this email. (Id.) On

July 15, 2021, Wing contacted Reed Group to inquire about the status of Plaintiff’s FMLA leave.

(Id. at 417.) In this email, Wing stated that “[i]t seems that we are giving her so much time to get

paperwork in” and that “[Plaintiff] has been missing a lot of work and technically none of this is

approved, although we are operating as if it is for now.” (Id.)

Following Plaintiff’s July 2021 complaint, Defendant relocated Thomascik’s office and

installed a “panic button” on her new desk. (Doc. No. 21-2 at 294-96.) Thomascik also altered

her work schedule and met with Plaintiff virtually for the remainder of Plaintiff’s employment.

(Doc. No. 17-2 at 234, ¶ 18.)

On July 13, 2021, Plaintiff underwent an additional medical procedure. (Doc. No. 21-1

at 285-86, ¶ 21.) Plaintiff went on FMLA leave from July 13, 2021, to August 24, 2021. (Id.)

Plaintiff also sought to take intermittent FMLA leave for various dates from June to November

2021. (Id.) On August 9, 2021, Plaintiff provided Defendant a return to work note for August

30, 2021. (Doc. No. 22 at 340, 423.) When Plaintiff provided this note to UHHS, she also

informed Wing that she would be “applying for other positions.” (Id. at 423.)

On August 12, 2021, Pishnery reached out to Wing to discuss how to handle Plaintiff’s

PIP and ask if “we [should] continue with the documented conversations and weekly

touchbases.” (Id.) Wing replied that Pishnery should “continue with documented and discussed

performance issues” because “[p]erformance is separate from attendance.” (Id.) Another

member of HR stated “[i]t sounds like we would give her an additional 30 days from when she

returns.” (Id. at 422.) Wing agreed that Plaintiff “would still have another 30 days since we

have to review her performance while she is at work.” (Id.) On August 26, 2021, Pishnery and

Thomascik discussed Plaintiff’s return to work and remaining FMLA leave. (Id. at 433-34.)

In mid-September, Thomascik learned from Reed Group that Plaintiff intended to take

additional FMLA leave. (Id. at 444.) On September 16, 2021, Plaintiff and Thomascik

discussed Plaintiff’s productivity reports and other aspects of Plaintiff’s position via email. (Id.

at 446.) On September 17, 2021, Plaintiff and Thomascik met to discuss Plaintiff’s progress on

her PIP. (Doc. No. 21-1 at 286, ¶ 22; Doc. No. 22 at 450.) Plaintiff and Thomascik did not meet

in the latter half of September 2021 or October 2021 to discuss her progress on the PIP. (Doc.

No. 21 at 271; Doc. No. 21-2 at 297.)

On November 8, 2021, Plaintiff was terminated. (Doc. No. 22 at 331.) The stated

reasons for Plaintiff’s termination were:

Failure to meet the expectations set forth in the Performance Improvement Plan

previously provided including;

meeting established deadlines for reporting; all daily focus reports

including Documentation focus and Daily Account Reports are to be

sent by 9am;

timely response to emails; responses to emails were outside of the

expected timeframe -leadership emails are to be responded to within

2 hours or same business day;

ensuring a positive team work environment; [and]

professional and constructive communication within team and other

groups.

(Id.)

B. Procedural History

On December 16, 2022, Plaintiff filed her complaint and asserted the following ten

causes of action: (1) disability discrimination in violation of Americans with Disabilities Act

(“ADA”); (2) disability discrimination in violation of R.C. § 4112.02; (3) failure to

accommodate under the ADA; (4) failure to accommodate under R.C. § 4112.01; (5) race

discrimination in violation of 42 US.C. § 2000e-2; (6) race discrimination in violation of R.C. §

4112.02; (7) retaliation in violation of 42 U.S.C. § 2000e-2; (8) retaliation in violation of R.C. §

4112.01; (9) unlawful interference with Family Medical Leave Act (“FMLA”) rights; and (10)

retaliation in violation of the FMLA. (Doc. No. 1.)

Defendant timely answered. (Doc. No. 9.) On December 1, 2023, Defendant moved for

summary judgment on all causes of action. (Doc. No. 17.) Plaintiff opposed summary judgment

only as to Counts 5 through 8, and 10. (Doc. No. 21.) Plaintiff did not oppose summary

judgment on Counts 1 through 4 and 9. Defendant timely replied in support of the motion.

(Doc. No. 24.)

II. LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense—or the

part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

“Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories,

and affidavits show there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. The moving party bears the burden of showing that no

genuine issues of material fact exist.” Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021)

(citations and quotations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A “material” fact is one that “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a genuine dispute of

material fact exists if the evidence is such that a reasonable jury could return a verdict for the

non-moving party. Abu-Joudeh v. Schneider, 954 F.3d 842, 849-50 (6th Cir. 2020) (additional

citations and quotations omitted).

“Once the moving party satisfies its burden, the burden shifts to the nonmoving party to

set forth specific facts showing a triable issue of material fact.” Queen v. City of Bowling Green,

Ky., 956 F.3d 893, 898 (6th Cir. 2020) (quotation and citations omitted). “[O]n summary

judgment the inferences to be drawn from the underlying facts...must be viewed in the light most

favorable to the party opposing the motion.” United States v. Diebold, 369 U.S. 654, 655 (1962);

see also Kalamazoo Acquisitions, L.L.C. v. Westfield Ins. Co., 395 F.3d 338, 342 (6th Cir. 2005).

A party asserting or disputing a fact must cite evidence in the record or show that the

record establishes the absence or the presence of a genuine dispute. See Fed. R. Civ. P. 56(c) and

(e). Rule 56 further provides that “[t]he court need consider only” the materials cited in the

parties’ briefs. Fed. R. Civ. P. 56(c)(2); see also Street v. J.C. Bradford & Co., 886 F.2d 1472,

1479-80 (6th Cir. 1989) (“The trial court no longer has the duty to search the entire record to

establish that it is bereft of a genuine issue of material fact.”).

“Where the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). However, the Court’s role is not to make credibility

determinations or “weigh” conflicting evidence. Payne v. Novartis Phar Corp., 767 F.3d 526,

530 (6th Cir. 2014); Arban v. W. Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003). “The ultimate

question is whether the evidence presents a sufficient factual disagreement to require submission

of the case to the jury, or whether the evidence is so one-sided that the moving parties should

prevail as a matter of law.” Payne, 767 F.3d at 530.

III. COUNTS TO WHICH PLAINTIFF OPPOSES SUMMARY JUDGMENT

As referenced above, Plaintiff has opposed summary judgment only on five of the ten

counts asserted in her complaint. The Court will begin by addressing the counts to which she

states an opposition.

A. Discrimination (Counts 5 and 6)

Plaintiff alleges race discrimination pursuant to Title VII and 42 U.S.C. 2000e-2 as well

as Ohio Rev. Code § 4112.01. (Doc. No. 1, at 11-12 (Counts 5 and 6).) Both parties agree that

these claims should be analyzed together because federal case law interpreting Title VII applies

to actions brought under Ohio Rev. Code § 4112.01. (Doc. No. 17 at 144-45 (analyzing Counts 5

and 6 together); Doc. No. 21 at 279-81 (same).) See Birch v. Cuyahoga Cnty. Prob. Ct., 392 F.3d

151, 163 (6th Cir. 2004) (“[F]ederal case law applying Title VII is generally applicable to cases

involving 4112 of the Ohio Civil Rights Act.”); see also Hamilton v. Sysco Food Servs. of

Cleveland, Inc., 866 N.E.2d 559, 564 (Ohio Ct. App. 2006) (collecting cases). The parties do not

dispute that Plaintiff’s claims can only be proven with circumstantial evidence. (See Doc. No.

17, at 140; see also Doc. No. 21 at 275, 277-80.) Circumstantial evidence is “proof that does not

on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable

inference that discrimination occurred.” Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642,

652-53 (6th Cir. 2012). Discrimination claims based on circumstantial evidence must be

analyzed under the McDonnell Douglas framework. Upshaw v. Ford Motor Co., 576 F.3d 576,

584 (6th Cir. 2009).

1. McDonnell Douglas Burden-Shifting Framework

Under this tripartite test, the plaintiff must first establish a prima facie case of

discrimination by a preponderance of the evidence. McDonnel Douglas Corp. v. Green, 411 U.S.

792, 802 (1973); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981). If done, the

burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason

for the adverse employment action. Burdine, 450 U.S. at 253. Should the defendant carry that

burden, the plaintiff must prove that the stated justification is pretext for discrimination. Id.

Throughout this entire process, the burden of persuasion remains on the plaintiff to demonstrate

intentional discrimination. Id.

2. The Prima Facie Case

The burden of establishing a prima facie case of discrimination “is not onerous.” Id. The

plaintiff must only demonstrate that she (a) was a member of a protected class, (b) was qualified

for the position, (c) suffered an adverse employment action, and (d) was replaced by someone

outside of the protected class or was treated less favorable than a similarly situated employee

outside of her protected class. Briggs v. Univ. of Cincinnati, 11 F.4th 498, 508 (6th Cir. 2021);

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000).

a. Protected Class and Adverse Action

The parties agree that Plaintiff is a member of a protected class and that her termination

was an adverse employment action. (See Doc. No. 17 at 144; Doc. No. 21 at 279-80.) In her

opposition brief, however, Plaintiff—for the first time in this litigation—includes the PIP as

another adverse action. (See Doc. No. 21 at 274.)

A plaintiff cannot “amend [her] complaint in an opposition brief or ask the court to

consider new allegations (or evidence) not contained in the complaint.” Bates v. Green Farms

Condominium Assoc., 958 F.3d 470, 484 (6th Cir. 2020). The Federal Rules of Civil Procedure

“provide for liberal notice pleading at the outset of litigation because ‘[t]he provisions for

discovery are so flexible’ that by the time a case is ready for summary judgment, ‘the gravamen

of the dispute [has been] brought frankly into the open for inspection by the Court.’” Tucker v.

Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005). However,

“[o]nce a case has progressed to the summary judgment stage, [] ‘the liberal pleading standards’”

under the Federal Rules are inapplicable. Id. (citing 10A Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp.2005) (“A non-moving

party plaintiff may not raise a new legal claim for the first time in response to the opposing

party’s summary judgment motion. At the summary judgment stage, the proper procedure for

plaintiffs to assert a new claim is to amend the complaint in accordance with Rule 15(a).”)).

To Defendant, Plaintiff did not raise the PIP as an adverse action in either her

discrimination or retaliation claims and even then, it was only when she filed her brief in

opposition to summary judgment. (Doc. No. 17 at 143.) In contrast, Defendant acknowledges

that Plaintiff did allege the PIP in connection with her FMLA claim. (See Doc. No. 17 at 143;

see also Doc. No. 1 at 15 (Count 10).) However, this allegation demonstrates that the PIP was

well known to her at the time she filed her complaint. Tucker, 407 F.3d at 789 (citing Sherman v.

Ludington, No. 91-3936, 1992 WL 158878, at *1 (6th Cir. July 7, 1992) and Stemler v. City of

Florence, 126 F.3d 856, 872 (6th Cir. 1997)).

Discovery has long since concluded. Plaintiff could have sought to amend her complaint,

but she did not. Asserting new theories in an opposition brief impermissibly amends the

complaint. Bates, 958 F.3d at 484. Such an “amendment” at this stage of the litigation would

subject UHHS to unfair surprise without any meaningful opportunity to conduct discovery

specific to the newly asserted theory or fully address it in their summary judgment briefing.

Tucker, 407 F.3d at 788; see also Henderson v. Chrysler Grp., 610 Fed. App’x 488, 494 (6th Cir.

2015) (holding that a plaintiff waived an argument “because her complaint did not provide [the

defendant] with sufficient notice that her retaliation claim was based in, in part” on protected

activity not alleged in the complaint). As such, the Court will consider the arguments as pleaded.

Termination was pleaded as an adverse in Plaintiff’s discrimination, retaliation, and FMLA

claims. The PIP was pleaded as an adverse action only as to Plaintiff’s FMLA claim. Because

the parties do not dispute that termination is an adverse employment action, this element is met.

b. Qualifications

To establish her qualifications for the position at this stage, Plaintiff must demonstrate

that she satisfied the employer’s “objective” qualifications. Upshaw, 576 F.3d at 58. This

inquiry recognizes that “specific qualifications will vary depending on the job in question,” but

should focus on “education, experience in the relevant industry, and demonstrated possession of

required skills. Wexler v. White’s Fine Furniture, Inc. 317 F.3d 564, 575-76 (6th Cir. 2003) (en

banc).

In its motion, UHHS states that Bates was not qualified because her performance

deteriorated, and she failed to meet the requirements of the PIP. (Doc. No. 17 at 141-42.)

Plaintiff responds that challenges to qualifications cannot be premised on performance because

doing so conflates the distinct stages of the McDonnel Douglas test. (Doc. No. 21 at 279-80.)

The Sixth Circuit once considered whether a plaintiff was performing to the employer’s

satisfaction at the prima facie stage. See Dews v. A.B. Dick Co., 231 F.3d 1016, 1022 (6th Cir.

2000); see also Strickland v. Federal Express Corp., 45 Fed. App’x 421,424 (6th Cir. 2002). But

that changed in 2003 when the Sixth Circuit issued its en banc decision in Wexler. There, the

Sixth Circuit held that “[a]t the prima facie stage, a court should focus on a plaintiff’s objective

qualifications to determine whether [] she was qualified for the relevant job” rather than focus on

her performance.” 317 F.3d at 575; see also Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579,

587-88 (6th Cir. 2002) (“Under the McDonnell Douglas test, concerns about [a plaintiff’s]

performance are more appropriately raised as part of the second and third steps . . .”) (internal

quotations omitted).

UHHS’s challenge hinges on performance, not Bates’ objective qualifications. In her

opposition brief, Bates asserts that she met the objective qualifications for the job since being

hired by UHHS in October 2018. (Doc. No. 21 at 280.) In reply, UHHS abandons its argument

that Bates has not met this element of the prima facie case because of Bates’ performance

concerns. (See Doc. No. 24.) For these reasons, the Court finds that Plaintiff has demonstrated

her objective qualifications for the position and satisfied this element of her prima facie case.

c. Less Favorable Treatment

In the fourth and final consideration in the prima facie analysis requires Plaintiff to

demonstrate that she was replaced by someone outside of her protected class or was treated less

favorably than a similarly situated employee outside of her protected class. Briggs, 11 F.4th at

508. Plaintiff does not dispute that she was replaced by another African American employee.

(Doc. No. 21 at 280.) Instead, she points to two Caucasian employees, Thomascik and Djukic to

show her treatment by UHHS was less favorable. (Id. at 280-81.)

Employees are considered similarly situated if a plaintiff can prove that “all of the

relevant aspects of [the] employment situation are nearly identical to those of the employees who

[she] alleges were treated more favorably.” Campbell v. Hamilton Cnty., 23 Fed. App’x 318, 325

(6th Cir. 2001); see also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.

1998) (a plaintiff must “demonstrate that he or she is similarly-situated to the non-protected

employee in all relevant respects”) (emphasis in original).

[T]o be deemed “similarly-situated,” the individuals with whom the plaintiff seeks

to compare his/her treatment must have dealt with the same supervisor, have been

subject to the same standards and have engaged in the same conduct without such

differentiating or mitigating circumstances that would distinguish their conduct or

the employer’s treatment of them for it.

Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992); see also Johnson v. Ohio Dept. of

Pub. Safety, 942 F.3d 329, 331 (6th Cir. 2019) (“Although other factors may also be relevant

depending on the facts of each case, Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 610

(6th Cir. 2019), the Mitchell factors are generally relevant.”).

Supervisors. Pishnery supervised Thomascik. (Doc. No. 17 at 130.) Thomascik

supervised Plaintiff (id. at 128), and Plaintiff, in turn, supervised Djukic. (Id. at 129.) Plaintiff’s

“supervisor in common theory” is not sufficient to establish that she, Thomascik and Djukic are

similarly situated in this way. (See Doc. No. 21 at 280-81.) Instead, the employees must share

the same direct supervisor. See Johnson, 942 F.3 at 332 (finding two officers were not similarly

situated in part because they had different direct supervisors even though the same director

ratified disciplinary measures); see also Morton v. Greater Cleveland Reg’l Transit Auth., No.

1:21-cv-01986, 2023 WL 11796396, at *6 (N.D. Ohio July 14, 2023) (“[T]he question is not

whether Morton and Rivera shared supervisors somewhere up the chain of command, but

whether they had the same ‘direct supervisors.’”) (citing Johnson, 942 F.3 at 332). Here, the

undisputed evidence shows that Plaintiff, Thomascik, and Djukic each had different direct

supervisors and are therefore not similarly situated in this respect.

Standards. In addition to having different direct supervisors, all three employees held

different positions at UHHS. Plaintiff was a Revenue Cycle Supervisor (Doc. No. 21-1 at 283, ¶

1), Thomascik was a Corporate Billing Manager (Doc. No. 17-2, at 231, ¶ 3), and Djukic was a

Biller 2 (Doc. No. 21 at 261). That each held a different position is also not disputed. (Doc. No.

21 at 280 (arguing “even though both employees held different job positions than Bates, that

does not defeat the test”).) There is no evidence on the record establishing “that such different

positions, or the duties and responsibilities required of the holders of these jobs, are sufficiently

similar so as to render them ‘comparable’ positions.” Mitchell, 964 F.3d at 583 n. 5. Construing

the inferences to be drawn from these facts in Plaintiff’s favor, as the Court must when

considering a Rule 56 motion, the only reasonable inference is that the standards applicable to

each employee differed.

Conduct. “In the disciplinary context, [the Sixth Circuit has] held that to be found

similarly situated, the plaintiff and [her] proposed comparator must have engaged in acts of

‘comparable seriousness.’” Wright v. Murray Guard, Inc. 455 F.3d 702, 710 (6th Cir. 2006)

(citing Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002) (applying the Ercegovich

approach to a Title VII claim) (quoting McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 283

n.11 (1976)). Thus, Plaintiff must prove that she and the white employees she identified engaged

in acts of comparable seriousness to her own.

Plaintiff argues that Thomascik “overrode Bates’ decision-making ability” by not

allowing her to “discipline Djukic or otherwise manage her in in the same way [Bates] managed

other employees.” (Doc. No. 21 at 280.) By doing this, Thomascik acted as Djukic’s direct

supervisor, something Thomascik did not do with respect to Shotwell, an African American

employee also under Plaintiff’s supervision. (See id.) The email exchanges between Djukic and

Shotwell are summarized in Plaintiff’s factual summary. (See also id. at 262.)

This argument fails for several reasons. First, Plaintiff has not introduced evidence that

she was treated differently than other Revenue Cycle Supervisors, let alone that those

supervisors’ management or disciplinary decisions were not evaluated by Thomascik. Second,

Plaintiff’s argument involves Thomascik’s decision that neither Djukic (a Caucasian employee)

nor Shotwell (an African American employee) would be disciplined for their heated email

exchange. (See id.; see also Doc. No. 22 at 407; Doc. No. 17-1 at 218.) To Plaintiff, Thomascik

treated these two employees differently by preventing Djukic from being disciplined while also

characterizing Shotwell’s email responses as “not great.”2 (Doc. No. 21 at 262.) But

Thomascik’s response demonstrates that these employees were treated the same: neither were

disciplined. Third, this incident and Thomascik’s response do not provide any evidence that

Plaintiff and Thomascik engaged in acts of comparable seriousness for which Plaintiff alone was

disciplined.

For these reasons, Plaintiff has not met her burden of demonstrating a prima facie case,

but, even if she could, her claim must be summarily dismissed for the reasons set forth below.

3. Legitimate, Nondiscriminatory Reason

UHHS’s burden at this stage is simply to “clearly set forth, through the introduction of

admissible evidence, the reasons” for the adverse action. Burdine, 450 U.S. at 255. This burden

does not require that the employer “persuade the Court that it was actually motivated by the

proffered reasons[.]” Campbell v. Norfolk S. Corp., 876 F. Supp. 2d 967, 982 (N.D. Ohio 2012)

2 Other than this comment, Plaintiff presents no evidence that Shotwell was either disciplined or

faced any negative employment consequences for her role in this email exchange.

(citing Burdine, 450 U.S. at 254.). Rather, the burden is satisfied if UHHS “‘explains what [it]

has done’ or ‘produc[es] evidence of legitimate nondiscriminatory reasons.’” Burdine, 450 U.S.

at 256 (quoting Board of Trustees of Keene St. College v. Sweeney, 439 U.S. 24, 25, n.2 (1978)).

Simply stated, UHHS “need not prove a nondiscriminatory reason for [its decision] but need

merely to articulate a valid rationale.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996).

UHHS states that Plaintiff’s poor performance led to her termination. (Doc. No. 17 at

142.) In support, UHHS cites testimony from Plaintiff, Thomascik and Pishnery that Bates did

not satisfy the conditions of her PIP. (See id. at 136; see also Doc. No. 17-1 at 230 (discussing

expectations in the PIP that were not met).) UHHS further argues that under Sixth Circuit

precedent, “performance issues and failing to satisfy the PIP” constitute “non-discriminatory

reason[s] for an adverse action.” (Id. at 142 (citing Bacon v. Honda of Am. Mfg., Inc., 192 Fed.

App’x 337, 344-45 (6th Cir. 2006) and Becker v. Elmwood Local Sch. Dist., 519 Fed. App’x 339,

343 (6th Cir. 2013)).) For her part, Plaintiff does not dispute that she failed to satisfy several

requirements of the PIP. (See Doc. No. 17-1 at 165-68;3 see also Doc. No. 21 at 275 (noting that

Bates satisfied “several aspects” but not the entirety of the PIP).) As such, UHHS has

sufficiently stated a nondiscriminatory reason for terminating Plaintiff.

4. Pretext

To prove pretext, the plaintiff may show that the employer’s reason for the adverse action

either: (a) has no basis in fact, (b) did not actually motivate the employer’s actions, or (c) was an

insufficient motivator for the employer’s actions. Miles v. S. Cent. Hum. Res. Agency, Inc., 946

3 In her deposition, Plaintiff made several concessions, including that the expectation that she

would have a set work schedule “did not work out” (Doc. No. 17-1 at 166); that there was “no

way” she could respond to emails within two hours as outlined in the PIP (id.); and that she

completed the Daily Focus Reports in timely manner “[f]or the most part” but there was “no

possible way” for her to do so every day (id. at 167; see also id. at 169 (stating “[t]here were

times where there was justification” for missing deadlines).)

F.3d 883, 888 (6th Cir. 2020). “Ultimately the plaintiff must produce ‘sufficient evidence from

which a jury could reasonably reject [the employer’s] explanation of why it fired her.’” Brown v.

Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting Chen v. Down Chemical Co.,

580 F.3d 394, 400 (6th Cir. 2009)) (bracketed language omitted).

In an effort to satisfy her burden at this stage, Plaintiff argues that “Thomascik, the

central figure involved in the race discrimination allegations by Bates [e.g., the treatment of

Djukic and Shotwell] was also the ‘same actor’ who terminated Bates employment.” (Doc. No.

21 at 281.) Again, Shotwell was not disciplined, and neither was Djukic. And even if Shotwell

were disciplined while Djukic was not, Plaintiff has not shown how this would be sufficient

evidence to refute that her termination was because she underperformed in the position. Instead,

the undisputed facts are: Plaintiff was failing to meet critical components of her employment; she

was placed on a PIP in an effort to improve her performance; she failed to meet all requirements

of the PIP; and the failure to do so is a legitimate basis for termination. Thus, Plaintiff’s

opposition does not, as it must, provide any evidence to support that UHHS’s stated reason for

termination was false, not causally connected, or was an insufficient reason to terminate her.

For these reasons, Plaintiff’s discrimination claims (Counts 5 and 6) are dismissed.

B. Retaliation (Counts 7 and 8)

UHHS moved for summary judgment on Plaintiff’s retaliation claims. (Doc. No. 17 at

143-44.) Again, both parties agree that these claims should be analyzed together under the

McDonnell Douglas burden shifting framework. (Id. at 140, 144; Doc. No. 21 at 277.) See also

Allman v. Walmart, Inc., 967 F.3d 566, 571 (6th Cir. 2020) (“[R]etaliation claims under Ohio law

are analyzed the same way as under federal law.”); Rorrer v. City of Stow, 743 F.3d 1025, 1046

(6th Cir. 2014) (citing A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir.

2013)) (holding that like discrimination claims, retaliation claims premised on circumstantial

evidence are subject to the McDonnell Douglas framework).

To establish a prima facie case of retaliation, a plaintiff must produce evidence showing

that (a) she engaged in protected activity; (b) the employer was aware of the protected activity;

(c) the employer took an action that was materially adverse to the employee; and (d) there is a

causal connection between the employee’s protected activity and the employer’s adverse action.

Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 343-44 (6th Cir. 2021).

Employers are prohibited from discriminating against any employee “because he [or she]

has opposed any practice made unlawful by this title.” Id. at 343 (quoting 42 U.S.C. § 2000e-

3(a)) (alterations omitted). To “oppose” means “to resist or antagonize; to contend against to

confront; resist; withstand.” Id. at 344 (quoting Crawford v. Metro Gov’t of Nashville &

Davidson Cnty., 555 U.S. 271, 276 (2009)) (alterations omitted). Protected activities include

“complaining to anyone (management, unions, other employees, or newspapers) about allegedly

unlawful practices; [and] refusing to obey and order because the worker thinks it is unlawful

under Title VII.” Id. at 344-45 (quoting Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 721 (6th

Cir. 2008)). The employee’s complaint need not be “lodged with absolute formality, clarity, or

precision” but does need to go beyond a “vague charge of discrimination.” Id. at 345 (quoting

Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015)). In sum, an

employee “must allege facts that she opposed unlawful [employer] practices in a reasonable

manner and with a reasonable and good faith belief” that those practices violated the law. Id. at

346.

Inferences to be drawn from the underlying facts must be drawn in Plaintiff’s favor. As

such, the Court finds that the first two elements of the prima facie case (that Plaintiff engaged in

protected activity and that UHHS was aware of this protected activity) are met. The third

element, that being her termination was an adverse action, is not in dispute. Thus, the Court

evaluates whether Bates can show the requisite causal connection.

“[A] plaintiff making a retaliation claim under Title VII must establish [] her protected

activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). Here, Bates must demonstrate that but for her

raising concerns about race discrimination, she would not have been terminated. There is no

dispute that Bates expressed concern that employees were being treated differently because of

their race.4 But also undisputed is Bates’ failure to submit required audit reports, a critical

function of her job. (Doc. No. 17 at 130; see Doc. No. 17-2 at 233, ¶ 11; see also Doc. No. 17-1

at 214 (describing “conducting routine staff audits for productivity and tracking results” as 20%

of a Revenue Cycle Supervisor’s duties).) Further, as discussed above, Bates conceded in her

deposition that she did not satisfy the requirements of the PIP. (See Doc. No. 17-1 at 165-68.)

Bates likewise conceded that a PIP is a tool to address an employee who needs to improve his or

her performance and that failure to meet the requirements of a PIP is a legitimate basis for

discharge. (See id. at 156, 169). Given these admissions, Plaintiff cannot demonstrate that her

communications about discriminatory practices were the but-for cause of her termination.

4 The factual dispute appears to be (a) how many times Bates expressed concerns, and (b) when

the concerns were raised. (Compare Doc. No. 17 at 143 (asserting Bates’ October 2020

Complaint was not protected activity) with Doc. No. 21 at 273 (arguing Bates engaged in

protective activity multiple times, including October 2020).) For purposes of evaluating

causation in this instance, these disputed facts are not material. Drawing all inferences in

Plaintiff’s favor, these factual disputes do not alter the causation analysis given Bates’

admissions, the PIP opportunity, and ultimate termination after her job performance did not

improve.

Even assuming Plaintiff could establish her prima facie case, UHHS stated a legitimate,

non-discriminatory reason for discharge. With the burden then shifting to Plaintiff, for the

reasons stated above—her concessions as to performance and the failure to satisfy the PIP’s

stated requirements—she cannot establish, and no jury could conclude, that UHHS’s stated

reasons for discharge were pretextual. For these reasons, Plaintiff’s retaliation claims (Counts 7

and 8) are dismissed.

C. FMLA Retaliation (Count 10)

To establish FMLA retaliation, Bates must show that “[s]he engaged in FMLA protected

activity, [UHHS] knew that [s]he was exercising [her] FMLA rights, [UHHS] subsequently took

an adverse employment action against [her], and there was a causal connection between the

protected activity and the adverse action.” Render v. FCA U.S. LLC, 53 F.4th 905, 920 (6th Cir.

2022) (quoting Redlin, 921 F.3d at 616). This claim is also assessed under the McDonnell

Douglas burden-shifting framework. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315

(6th Cir. 2001).

1. The Prima Facie Case

There is no dispute about the first three elements of the prima facie case: Bates engaged

in protected activity by taking her leave, UHHS was aware Plaintiff invoked her FMLA rights,

and she suffered an adverse employment action (the PIP and termination). 5

5 On reply, UHHS asserts for the first time that Plaintiff’s FMLA retaliation claim fails because

she was “not an ‘eligible employee’ at the time of discharge.” (Doc. No. 24 at 462.) Defendant

claims that Plaintiff was not an eligible employee because she had already exhausted her FMLA

leave. (Id.) The cases Defendant cites do not support this definition of “eligible employee” and

instead address FMLA retaliation claims brought by employees who did not qualify for FMLA

protection, rather than employees who exhausted their FMLA leave at the time of termination.

(See id. (citing Humenny v. Genex Corp., Inc., 390 F.3d 901, 905 (6th Cir. 2005); Coen v. Sybron

Dental Specialties, 1 Fed. App’x 386, 389 (6th Cir. 2001); and Davis v. Michigan Bell Tel. Co.,

543 F.3d 345, 354 (6th Cir. 2008)).) Moreover, “it is well-established that a party cannot raise

The disputed element of the prima facie case is causation. To satisfy the causation

element at this stage in the burden-shifting framework, “the plaintiff must produce sufficient

evidence from which one could draw an inference that the employer would not have taken

adverse action against the plaintiff had the plaintiff not engaged in the protected activity[.]”

Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003).

Temporal proximity is relevant when assessing causation. See Stein v. Atlas Indus., Inc.,

730 Fed. App’x 313, 319 (6th Cir. 2018) (discussing when temporal proximity establishes

causation); see also Ritenour v. Tenn. Dep’t of Hum. Servs., 497 Fed. App’x 521, 533 n. 10 (6th

Cir. 2012) (discussing Sixth Circuit law on temporal proximity as evidence of causation). As

such, the relevant time period begins when “an employer learns of a protected activity” and

extends to the adverse action. Bush v. Compass Grp. USA, Inc., 683 Fed. App’x 440, 452 (6th

Cir. 2017).

Plaintiff focuses on the following timeline: Plaintiff informed Thomascik that she needed

to take FMLA leave on or around April 19, 2021. (Doc. No. 21-1 at 284, ¶ 12) On May 28,

2021, Plaintiff was placed on a PIP. (Id. at 285, ¶ 14.) Turning to Plaintiff’s termination,

Thomascik and Pishnery became aware that Plaintiff intended to seek additional FMLA leave in

mid-September 2021. (Doc. No. 21 at 271 (citing Doc. No. 22 at 444-45); see also Doc. No. 22

at 446.) Less than two months later, Plaintiff was terminated. (Doc. No. 17-1 at 230.)

What Plaintiff does not address, however, is that Thomascik first considered placing

Bates on a PIP six months before Bates’ first FMLA leave. Bates also does not dispute she was

informed that her deficient performance would result in a PIP one month before she first took

new issues in a reply brief; he can only respond to arguments raised for the first time in the

opposition.” In re FirstEnergy Corp. Sec. Litig., 316 F.Supp.3 581, 599 (N.D. Ohio 2004) (citing

United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002)).

FMLA leave. (Doc. No. 17-2, 233-34, ¶¶ 14, 16; Doc. No. 17-3 at 238, ¶¶ 5, 7; Doc. No. 21-2 at

291.)

The official decision to place Bates on a PIP was made in April or early May 2021, with

Thomascik circulating a draft PIP on May 19, 2021, (Doc. No. 22 at 298; Doc. No. 21-2 at 292)

and implementing the PIP on May 28, 2021. (Doc. No. 21-1 at 285.) While Bates suggests that

she should not have been placed on the PIP at all, she does not refute that Thomascik both

considered a PIP and notified Bates of the possibility of a PIP prior to her FMLA leave. The fact

that Thomascik, Pishnery, and Haymon moved forward with the plan to place Bates on a PIP

either the same month, or shortly after Plaintiff took FMLA leave does not establish a causal

connection between the PIP and Plaintiff’s protected activity. See Reynolds v. Extendicare

Health Servs., Inc., 257 Fed. App’x 914, 919-20 (6th Cir. 2007) (holding that consistent with

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), “it is not appropriate to view placing [an

employee] on [a] PIP as being causally related [] because the PIP decision had been made prior

to the protected action”); see also Muhammad-Smith v. Psychiatric Sols. Inc., 877 F.Supp. 3d

552, 558 (N.D. Ohio 2012) (applying the Sixth Circuit’s logic in Reynolds to an FMLA

retaliation claim).

As for termination, Plaintiff took FMLA-authorized absences during the PIP period.

(Doc. No. 21-1 at 285, ¶¶ 16-18, 21.) Plaintiff was terminated after using continuous and

intermittent FMLA leave. (Id. at 286, ¶ 22.) Thus, while there is no causal connection between

the PIP and Plaintiff’s use of FMLA time, Plaintiff’s termination after using FMLA leave is

sufficient to demonstrate a causal connection sufficient to support the low threshold of

demonstrating her prima facie case.

2. Legitimate, Non-Discriminatory Reason for the Adverse Action

Again, Defendant has stated a legitimate, non-discriminatory reason for termination:

Plaintiff’s deficient performance and her acknowledged failure to meet the PIP’s requirements.

3. Pretext

Again, it is Bates’ burden to show that “the proffered reason (1) has no basis in fact, (2)

did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant

the challenged conduct.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (quoting

Dews, 231 F.3d at 1021).

In arguing that her failure to complete the PIP’s requirements was insufficient to warrant

termination, Plaintiff asserts—without authority—that an employee’s progress on some elements

of a PIP is sufficient to show that later termination was pretextual. (See Doc. No. 21 at 276-77.)

But Plaintiff has failed to submit evidence, as she must, that the acknowledged performance

deficiencies did not, on their own, warrant discharge. Instead, she testified that her failure to

perform all of the requirements of the PIP was a legitimate basis for termination. (Doc. No. 17-1

at 169 (acknowledging that an employee who failed to meet a performance improvement plan

would be subject to discharge)).

Plaintiff also argues that Defendant intended to “progress her through the PIP and then

terminate her employment accordingly.” (Doc. No. 21 at 279.) But this argument is belied by

the record. When Plaintiff returned to work in late August 2021, members of the Human

Resource Department and Thomascik extended her PIP period by thirty additional days to

account for Plaintiff’s approved leave time. (Doc. No. 22 at 422.) The record reflects that the

PIP period was extended even further to allow Bates over sixty days after returning from FMLA

leave to complete the PIP. (Doc. No. 17-2 at 235-36, ¶ 23.) All told, Plaintiff spent over five

months on a PIP before she was terminated. (See Doc. No. 22 at 331; Doc. No. 17-2 at 234, ¶¶

18, 20; Doc. No. 21-1 at 285, ¶ 14, 286, ¶ 22.) Plaintiff concedes that she did not meet several

PIP requirements, and her failure to do so was grounds for UHHS to terminate her employment.

(Doc. No. 17-1 at 166, 167, 168-69.) For these reasons, Plaintiff cannot demonstrate that UHHS’

stated reason for termination was pretextual and this claim is dismissed as a matter of law.

VI. COUNTS TO WHICH PLAINTIFF HAS STATED NO OPPOSITION TO

SUMMARY JUDGMENT

A. Legal Standard

The party moving for summary judgment “always bears the burden of demonstrating the

absence of a genuine issue as to material facts.” Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.

1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). This burden applies

“regardless if an adverse party fails to respond.” Id. A district court “cannot grant summary

judgment in favor of a movant simply because the adverse party has not responded.” Id.

Instead, “[t]he court is required, at a minimum, to examine the movant’s motion for summary

judgment to ensure that he has discharged that burden.” Id.; see also Delphi Auto. Sys., LLC v.

United Plastics, Inc., 418 Fed. App’x 374, 381 (6th Cir. 2011) (holding a movant was not entitled

to summary judgment simply because the other party failed to respond); Advisory Committee

Note on 1963 Amendment to Subdivision (e) of Fed. R. Civ. P. 56 (explaining that the

amendment was not “designed to affect the ordinary standards applicable to the summary

judgment motion,” and that “[w]here the evidentiary matter in support of the motion does not

establish the absence of a genuine issue, summary judgment must be denied even if no opposing

evidentiary matter is presented”).

B. Disability Discrimination (Counts 1 and 2)

Title I of the ADA provides in relevant part that “[n]o covered entity shall discriminate

against a qualified individual on the basis of disability in regard to . . . discharge of employees . .

. job training, and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a).

In order to establish a prima facie case of disability discrimination, Plaintiff must demonstrate

that she is (1) disabled; (2) otherwise qualified for the position and sought; and (3) excluded

from the position under circumstances that raise a reasonable inference of unlawful

discrimination. Pesterfield v. Tenn. Valley Auth., 941 F.2d 437, 441 (6th Cir. 1991).

In her complaint, Bates alleged that her deep vein thrombosis, anemia, and hypertension

constitute disabilities and that UHHS “perceived Bates as being disabled based on the conditions

she suffered from.” (Doc. No. 1 at 7, ¶¶ 73-75.) UHHS moved for summary judgment arguing,

among other things, that Bates was not disabled because her conditions were temporary, and she

was “cleared to return to work without restriction in August 2021.” (Doc. No. 17 at 141.)

A “disability” is a (1) a physical or mental impairment that substantially limits one or

more of the major life activities of the employee; (2) a record of such an impairment; or (3) being

regarded as having such an impairment. 42 U.S.C. § 12102(2). “Short-term temporary

restrictions on major life activities are generally not disabilities under the ADA.” Hein v. All

American Plywood Co., Inc., 232 F.3d 482, 487 (6th Cir. 2000); see also Roush v. Weastec, Inc.,

96 F.3d 840, 844 (6th Cir. 1996) (holding that plaintiff’s temporary kidney condition was not a

disability under the ADA).

Ohio law similarly defines disability as a “physical or mental impairment that

substantially limits one or more major life activities, including the functions of caring for one’s

self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

working; a record of a physical or mental impairment; or being regarded as having a physical or

mental impairment.” R.C. § 4112.01(A)(13); see also Bare v. Federal Exp. Corp., 886 F.Supp.2d

600, 609 (N.D. Ohio 2012). When considering whether a plaintiff has established a disability,

Ohio courts have held that impairments that are “minor and of short duration” or “transitory and

minor” are insufficient. Long v. KeltanBW, Inc., -- N.E. 3d --, 2024 WL 3064540, at *5 (Ohio

8th Dist. June 20, 2024); see also Thomas v. PNC Bank N.A., 2018-Ohio-4000, 2018 WL707882,

at *3 (Ohio 8th Dist. Sept. 27, 2018).

Bates returned to work without limitation in August 2021 after taking all requested (and

approved) FMLA leave. (Doc. No. 17-1 at 163.) There is no evidence that Bates’ conditions

interfered with any of her life activities after being cleared to work without restriction. As such,

Bates is not disabled for purposes of maintaining a disability discrimination claim, and these

counts are dismissed as a matter of law. 6

C. Failure to Accommodate (Counts 3 and 4)

To establish a prima facie case of disability discrimination for failure to accommodate, a

plaintiff must show that:

(1) she is disabled within the meaning of the Act; (2) she is otherwise qualified for

the position, with or without reasonable accommodation; (3) her employer knew or

had reason to know about her disability; (4) she requested an accommodation; and

(5) the employer failed to provide the necessary accommodation.

Myers v. Cuyahoga Cnty., 182 Fed. App’x 510, 515 (6th Cir. 2006).

UHHS argues that these claims fail for the same reason her disability discrimination

claim fails. First, Bates was not disabled. Second, “the only accommodation [Plaintiff]

6 See Siefert v. Liberty Twp., No. 4:22-cv-1453, 2023 WL 4904036, at *4 (N.D. Ohio July 31,

2023) (“Under the McDonnell Douglas framework, Plaintiff must first establish all elements of

his prima facie case.”) (emphasis added); Long, 2024 WL 3064540 at *3 (“A failure to establish

all of the elements of a prima facie case is fatal to a disability discrimination claim.”).

requested was leave for her April 2021 injury and that Defendant granted all requested leave.”

(Doc. No. 17 at 138.) As stated above, Bates’ conditions were temporary and insufficient to

demonstrate any persistent interference with any major life activity. Indeed, she was cleared to

work without restriction. Moreover, there is also no evidence that Bates was denied a requested

accommodation.

Thus, Plaintiff’s failure to accommodate claims are dismissed as a matter of law.

D. Interference with FMLA Rights (Count 9)

“The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each

year if, among other things, an employee has a ‘serious health condition that makes the employee

unable to perform the functions of the position of such employee.’” Walton v. Ford Motor Co.,

424 F.3d 481, 485 (6th Cir. 2005) (quoting 29 U.S.C. § 2612(a)(1)(D)).

To succeed on a FMLA interference claim, a plaintiff must demonstrate that:

(1) he [or she] was an eligible employee; (2) the defendant was an employer as

defined under the FMLA; (3) the employee was entitled to leave under the FMLA;

(4) the employee gave the employer notice of his [or her] intention to take leave;

and (5) the employer denied the employee FMLA benefits to which he [or she] was

entitled.

Id. For FMLA interference claims—which are also sometimes referred to as entitlement

claims—“the issue is simply whether the employer provided its employees the entitlements set

forth in the FMLA.” Id. (quoting Arban, 345 F.3d at 401).

UHHS does not contest that Plaintiff has proven the first four elements of her FMLA

interference claim. Instead, UHHS highlights that it granted all of Bates’ requested FMLA leave.

(Doc. No. 17 at 145.) Bates did not oppose UHHS’ motion for summary judgment with respect

to this claim.

The record reflects that UHHS did not deny Plaintiff any FMLA benefits to which she

was entitled. Therefore, Plaintiff’s interference claim fails as a matter of law.

V. CONCLUSION

For all of the reasons stated herein, Defendant University Health System, Inc.’s motion

for summary judgment (Doc. No. 17) is GRANTED in its entirety.

IT IS SO ORDERED. .

of her

Date: September 26, 2024 DGET MEEH RENNAN

UNITED STA’ DISTRICT JUDGE