Gabbard v. Butler County, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

ANGELA GABBARD, : Case No. 1:23-cv-419

Plaintiff, Judge Matthew W. McFarland

v

BUTLER COUNTY, OHIO, et al.,

Defendants.

ORDER AND OPINION

This matter is before the Court on Plaintiff's Motion for Partial Summary

Judgment (Doc. 25) and Defendants’ Motion for Summary Judgment (Doc. 26). Both

matters have been fully briefed (See Docs. 25, 26, 27, 29, 31, 32). While Plaintiff requests

oral argument, the Court does not find oral argument “essential to the fair resolution” of

the motion. S.D. Ohio Civ. R. 7.1(b)(2). Thus, the matter is ripe for review. For the reasons

below, Plaintiff's Motion for Partial Summary Judgment (Doc. 25) is GRANTED IN

PART AND DENIED IN PART, and Defendants’ Motion for Summary Judgment (Doc.

26) is GRANTED IN PART AND DENIED IN PART.

FACTS

Plaintiff Angela Gabbard was employed as a Civil Clerk for the Butler County

Area Courts (“BCAC”). (Employee Information, Doc. 17-2, Pg. ID 215.) In September

2021, Plaintiff learned that she was pregnant. (Gabbard Dep., Doc. 17-1, Pg. ID 101.)

Plaintiff notified her supervisor, Tammy Brown, of her pregnancy in October 2021. (Id. at

Pg. ID 102; Brown Dep., Doc. 21-1, Pg. ID 843.) In April 2022, Julie Baldwin, the BCAC’s

Administrative Assistant responsible for managing employee leave, reached out to

Plaintiff to learn more about Plaintiff's potential leave. (Baldwin Email, Doc. 17-2, Pg. ID

288.)

E The BCAC Employee Policies

Three BCAC employee leave policies are relevant to Plaintiff's claims: the Sick

Leave Policy, the Leave Without Pay Policy, and the Unpaid Pregnancy-Related Leave

Policy.

The Sick Leave Policy permits mothers to use accrued sick leave for a period of

disability from pregnancy and childbirth. (Sick Leave Policy, Doc. 18-2, Pg. ID 510-11.) If

an employee wishes to extend their leave to care for the child, they must request

additional leave under the Leave Without Pay or the Family Medical Leave Act

(“FMLA”) policies. (Id.)

The Leave Without Pay Policy permits an employee to request unpaid leave for

any personal reason. (Leave Without Pay Policy, Doc. 17-2, Pg. ID 273.) The policy

specifically acknowledges that an employee may request unpaid leave for childcare

following birth. (/d.) Leave is approved at the discretion of the appointing authority. (Id.)

There is also an alternative to the Leave Without Pay Policy that applies to

employees seeking to take additional leave for childcare. (Unpaid Pregnancy-Related

Leave, Doc. 17-2, Pg. ID 271.) After exhausting accrued sick or vacation leave, the Unpaid

Pregnancy-Related Leave Policy allows an employee to request leave for pregnancy-

related purposes. (Id.) The policy includes the additional requirement that, within 30 days

of childbirth, the employee must provide a written medical certification confirming her

inability to work. (Id.) Failure to provide the medical certification is considered a

resignation. (Id.)

II. _—_‘ Plaintiff’s Leave

On May 11, 2022, Baldwin provided Plaintiff with various FMLA documents.

(WH-380-E, Doc. 17-2, Pg. ID 290-93; WH-381, Doc. 17-2, Pg. ID 294-97.) Among the

documents was a letter stating the WH-380-E form (“medical certification”) must be

completed and returned within 30 days; otherwise, Plaintiff's leave would be denied, and

Plaintiff would face disciplinary action. (Administrative Letter, Doc. 17-2, Pg. ID 289.)

The medical certification required Plaintiff to fill out medical information and also

needed to be signed by a health care provider. (WH-380-E, Doc. 17-2, Pg. ID 290-93.)

Plaintiff's last day of work was May 26, 2022. (Gabbard Dep., Doc. 17-1, Pg. ID

106.) She gave birth on June 1, 2022. (Id. at Pg. ID 131.) Plaintiff dropped off a medical

certification to her physician for completion on June 9, 2022. (Text Messages, Doc. 17-2,

Pg. ID 307.) Plaintiff's physician indicated that he would complete the medical

certification and send it to the BCAC. (Gabbard Dep., Doc. 17-1, Pg. ID 132.) Defendants

maintain that the medical certification was due the following day on June 10, 2022, which

was 30 days after Plaintiff received the form. (Baldwin Dep., Doc. 19-1, Pg. ID 683.) The

medical certification was not returned to Defendants by this date, and Plaintiff continued

taking leave. (Lovelace Dep., Doc. 20-1, Pg. ID 783.) In July 2022, Brown texted Plaintiff,

asking when she would return to work. (Text Messages, Doc. 17-2, Pg. ID 307.) Plaintiff

responded that she would return in September. (Id.)

On August 2, 2022, Linda Lovelace, a Court Administrator, sent Plaintiff a letter

stating that the BCAC had accepted Plaintiff's resignation. (Termination Letter, Doc. 17-

2, Pg. ID 310-11.) The letter states that Plaintiff voluntarily resigned because of several

factors, including cleaning out her desk before taking leave, failing to return FMLA

paperwork, and failing to follow BCAC procedure by not providing a written request

and medical certification to determine the length of Plaintiff's absence. Id. Plaintiff's

resignation was further effectuated by an order of Defendant Judge Robert H. Lyons’, the

BCAC’s administrative judge, which recognized Plaintiff's resignation. (Court Order,

Doc. 17-2, Pg. ID 309.) Eight days after Plaintiff's resignation, the BCAC received

Plaintiff's medical certification. (Lovelace Dep., Doc. 20-1, Pg. ID 786.)

PROCEDURAL HISTORY

On July 7, 2023, Plaintiff filed her Complaint against Defendants Butler County,

Ohio; Judges Robert Lyons, Kevin McDonough, and Courtney Caparella-Kraemer; and

the Butler County Commissioners, all appearing in their official capacities as elected

representatives of Butler County, Ohio. (Compl., Doc. 1, [{j 8-12.) Plaintiff brought claims

for Pregnancy Discrimination under federal and state law, FMLA Interference under

federal law, and Retaliation under federal and state law. (See id. at {| 38-60.) On August

23, 2023, Plaintiff stipulated to the dismissal of Defendants Butler County and the Butler

County Board of Commissioners. (Stipulation, Doc. 8, Pg. ID 31.) On August 12, 2024,

Plaintiff filed her Motion for Partial Summary Judgment on her Pregnancy

Discrimination and FMLA Interference claims. (See Plaintiff's Motion, Doc. 25.) The

following day, the remaining Defendants filed their Motion for Summary Judgment on

all of Plaintiff's claims. (See Defendants’ Motion, Doc. 26.)

LAW & ANALYSIS

When there is no genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law, the district court shall grant summary judgment.

Fed. R. Civ. P. 56(a). The moving party has the burden to conclusively show that no

genuine issue of material fact exists. Celotex Corp. v. Catrett,477 U.S. 317, 323

(1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party

meets that burden, then it becomes the nonmoving party’s responsibility to point to

specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). A court is under no obligation to search the record for genuine issues of

material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996).

Moreover, a “mere scintilla” of evidence in support of the nonmoving party’s

position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734

(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put

forward probative evidence on which a jury could reasonably reach a verdict in that

party’s favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the

nonmoving party fails to make the necessary showing for an element on which it has the

burden of proof, then the moving party is entitled to summary judgment. Celotex, 477

US. at 323. The Court will analyze whether summary judgment is appropriate on each

of Plaintiff's claims in turn.

I. Official Capacity

As an initial matter, Plaintiff brings her claims against the three remaining

defendants in their official capacities. (Compl., Doc. 1.) As they appear in their official

capacity, each remaining Defendant represents the BCAC. See Ward v. City of Norwalk, 640

Fed. App’x. 462, 464-65 (6th Cir. 2016) (finding that a lawsuit against Ohio municipal

court judges in their official capacities is treated as a suit against the municipal court).

Thus, the inclusion of more than one judge in this lawsuit is redundant. See Washington

v. State, No. 3:23-CV-301, 2023 U.S. Dist. LEXIS 91715, at *13-14 (M.D. Tenn. May 25, 2023);

Rayos v. Smith, No. 1:15-CV-1153, 2018 U.S. Dist. LEXIS 200158, at *2 (W.D. Mich. Nov. 27,

2018) (finding that claims against multiple defendants in their official capacities “are

functionally claims against the same entity”). As Defendant Judge Robert Lyons is the

BCAC’s Administrative Judge and has the sole authority to make employment decisions,

he is the only proper defendant. Defendants Judge Kevin McDonough and Judge

Courtney Caparella-Kraemer are hereby dismissed from this action.

II. Pregnancy Discrimination

Count I of Plaintiff's Complaint alleges that she experienced pregnancy

discrimination under the Pregnancy Discrimination Acts (“PDA”) of 42 U.S.C. § 2000e-5

and O.R.C. § 4112.02. (Compl., Doc. 1, 4 38-44.) Plaintiff's “federal and state pregnancy

discrimination claims are evaluated generally under the same substantive standards.”

Tysinger v. Police Dep't, 463 F.3d 569, 572 (6th Cir. 2006) (comparing 42 U.S.C. § 2000e and

O.R.C. § 4112.02). Both Plaintiff and Defendants move for summary judgment on

Plaintiff's pregnancy discrimination claim. (See Plaintiff's Motion, Doc. 25; Defendants’

Motion, Doc. 26.)

“Under the PDA provisions of Title VIL, discrimination of or on the basis of

pregnancy, childbirth, or related medical conditions is defined as a kind of sex

discrimination and is prohibited.” Tysinger, 463 F.3d at 572 (citing 42 U.S.C. § 2000e(k)).

A plaintiff can succeed on her discrimination claim under one of two frameworks. The

first framework applies when a plaintiff brings direct evidence of discriminatory intent.

Bent-Crumbly v. Brennan, 799 Fed. App’x. 342, 345 (6th Cir. 2020) “Direct evidence is that

evidence which, if believed, requires the conclusion that unlawful discrimination was at

least a motivating factor in the employer's actions.” Jacklyn v. Schering-Plough Healthcare

Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). A facially discriminatory employment

policy is one example of direct evidence. Million v. Warren Cty., 440 F. Supp. 3d 859, 869

(S.D. Ohio 2020). If the plaintiff succeeds and establishes a discriminatory gender policy,

“the case will turn on whether such overt disparate treatment is for some reason justified

under Title VII.” Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir. 1999).

Alternatively, when a plaintiff relies on circumstantial evidence of discrimination,

then the McDonnell Douglas burden shifting framework applies. Asmo v. Keane, Inc., 471

F.3d 588, 592 (6th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S, 792 (1973)).

At step one, an employee must make a prima facie showing of pregnancy discrimination

by demonstrating: “(1) [the plaintiff] was pregnant, (2) she was qualified for her job, (3)

she was subjected to an adverse employment decision, and (4) there is a nexus between

her pregnancy and the adverse employment decision.” Id. at 574. If the employee presents

a prima facie case, the “burden shifts to the employer to provide a legitimate,

nondiscriminatory reason for its adverse employment decision.” Id. at 792. Assuming the

employer is successful, the burden shifts back to the employee who must then show that

the employer’s reason was a pretext for discrimination. Id.

Here, Plaintiff moves for summary judgment on her pregnancy discrimination

claim by arguing that the BCAC’s Unpaid Pregnancy-Related Leave Policy facially

violates the PDA. (Plaintiff's Motion, Doc. 25, Pg. ID 950.) Defendants disagree, arguing

that Plaintiff lacks direct evidence because the policy is not discriminatory. (Defendants’

Motion, Doc. 26, Pg. ID 978-79.) The Court will first examine whether the BCAC’s Unpaid

Pregnancy-Related Leave Policy is facially discriminatory.

“A leave policy that facially discriminates on the basis of pregnancy constitutes

direct evidence of discrimination.” Huffman v. Speedway LLC, 21 F. Supp. 3d 872, 876 (E.D.

Mich. 2014); see also Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Relevant

to the analysis here, the BCAC maintained two policies: the Leave Without Pay Policy

and the Unpaid Pregnancy-Related Leave Policy. Both policies may apply to employees

on leave who have exhausted their accrued sick time. (Unpaid Pregnancy-Related Leave,

Doc. 17-2, Pg. ID 271; Leave Without Pay, Doc. 17-2, Pg. ID 273.) Specifically, the Leave

Without Pay Policy applies to all employees seeking unpaid leave and simply requires

the approval of the appointing authority. (Leave Without Pay, Doc. 17-2, Pg. ID 273.) The

Unpaid Pregnancy-Related Leave Policy, however, applies only to pregnant women and

imposes an additional requirement not included in the Leave Without Pay Policy.

(Unpaid Pregnancy-Related Leave, Doc. 17-2, Pg. ID 271.) This additional burden

requires that— within 30 days of the termination of pregnancy — the employee provide a

written statement from their physician stating when they may return to work. (Id.)

Conversely, there is no such requirement for employees under the Leave Without Pay

Policy. (Leave Without Pay, Doc. 17-2, Pg. ID 273.) Since the BCAC’s Unpaid Pregnancy-

Related Leave Policy places an additional burden for leave on pregnant employees, the

policy is facially discriminatory under the PDA.

Defendants argue that the Unpaid Pregnancy-Related Leave Policy is not

discriminatory because the Sick Leave Policy shares a similar restriction. (Defendants’

Response, Doc. 27, Pg. ID 1010.) The Sick Leave Policy outlines the conditions for which

an employee can use accrued sick leave and still receive pay while on leave. (See Sick

Leave, Doc. 18-2, Pg. ID 510-15.) Specifically, Defendants point to the Sick Leave Policy’s

requirement that a doctor’s note is needed when an employee has been absent for more

than three consecutive days. (Id. at Pg. ID 511.) This comparison is unpersuasive. The Sick

Leave Policy dictates an employee’s conduct while on paid sick leave. (Id. at Pg. ID 510.)

Once that leave is exhausted, the employee’s leave is then governed by either the Leave

Without Pay Policy or, if the employee is pregnant, the Unpaid Pregnancy-Related Leave

Policy. (Leave Without Pay, Doc. 17-2, Pg. ID 273; Unpaid Pregnancy-Related Leave, Doc.

17-2, Pg. ID 271.) Thus, the Sick Leave Policy is an inadequate comparison.

Having brought direct evidence of pregnancy discrimination, the analysis now

turns on whether the disparate impact of the Unpaid Pregnancy-Related Leave Policy is

justified under Title VII. See Reed, 184 F.3d at 599. “Title VII permits overt discrimination

in two situations: (1) if the disparate treatment is part of a legally permissible affirmative

action program, or (2) it is based on a bona fide occupation qualification.” Million v.

Warren Cty., 856 Fed. App’x. 1, 11 (6th Cir. 2021) (quotations omitted). Defendants,

however, fail to put forth any affirmative action program or bona fide occupation

qualification that would permit the Unpaid Pregnancy-Related Leave Policy’s overt

discrimination. Accordingly, Plaintiff is entitled to summary judgment on her pregnancy

discrimination claim.

III. FMLA Interference

Plaintiff's second claim is for FMLA interference. (Compl., Doc. 1, 4 46-53.) “The

FMLA enables employees covered by the Act to take up to twelve weeks of leave per year

for various specified purposes.” Bryson v. Regis Corp., 498 F.3d 561, 569 (6th Cir. 2007). At

the end of an employee’s leave, she must be reinstated to her position or a different

position with equal pay and employment conditions. Id. at 569-70. To make a prima facie

showing for FMLA interference, a plaintiff must demonstrate that (1) she was an eligible

employee; (2) the defendant was a covered employer; (3) that plaintiff was entitled to

FMLA leave; (4) the plaintiff gave the defendant notice of intent to take leave; and (5) the

defendant denied or interfered with the plaintiff's benefits to which she was entitled.

Render v. FCA US. LLC, 53 F.4th 905, 914 (6th Cir. 2022).

Similar to Plaintiff's pregnancy discrimination claim, the McDonnell Douglas

framework applies if Plaintiff relies on circumstantial evidence. Id. at 919. If Plaintiff has

direct evidence of FMLA interference, however, then McDonnell Douglas burden shifting

is inapplicable. Id. Direct evidence in this context is satisfied if Plaintiff establishes that

the BCAC denied her FMLA benefits to which she was entitled. Id. Both Plaintiff and

Defendants moved for summary judgment on Plaintiff's FMLA interference claim. (See

Plaintiff's Motion, Doc. 25; Defendants’ Motion, Doc. 26.) Defendants concede that

Plaintiff has satisfied the first four elements. (Defendants’ Motion, Doc. 26, Pg. ID 979.)

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Thus, the only dispute is whether the BCAC denied Plaintiff FMLA benefits to which she

was entitled.

The BCAC had a standard requirement that an employee on unpaid pregnancy

leave must provide, within 30 days of the termination of pregnancy, a medical

certification from her physician outlining the timeframe she is unable to work. (Unpaid

Pregnancy-Related Leave, Doc. 17-2, Pg. ID 271.) Plaintiff failed to provide this medical

certification within 30 days of childbirth and was accordingly terminated. (Court Order,

Doc. 17-2, Pg. ID 309.) Plaintiff argues that by denying her leave for failing to provide her

medical certification, the BCAC denied Plaintiff's FMLA benefits to which she was

entitled. (Plaintiffs Motion, Doc. 25, Pg. ID 945.) The FMLA states than an employer may

require a medical certification for FMLA leave when the employee: (1) has a serious

health condition rendering the employee unable to perform her job functions; (2) in order

to care for a spouse, child, or parent who has a serious health condition; or (3) to care for

a family servicemember. 29 U.S.C. § 2613(a); 29 U.S.C. § 2612(a); 29 C.F.R. § 825.305(a).

Plaintiff argues that she took leave to bond with her child and therefore the BCAC

was precluded from requiring a medical certification. (Notice of Eligibility & Rights and

Responsibilities; Doc. 17-2, Pg. ID 294; Lovelace Dep., Doc. 20-1, Pg. ID 772-73.) In

support, Plaintiff notes, among other things, that the FMLA forms Plaintiff received from

the BCAC stated that Plaintiff’s leave was for the birth of a child, not a serious health

condition. (Notice of Eligibility & Rights and Responsibilities, Doc. 17-2, Pg. ID 294.)

Plaintiff also notes that Lovelace testified that Plaintiff took leave for childbirth. (Lovelace

Dep., Doc. 20-1, Pg. ID 803.)

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Defendants alternatively argue that at least the initial phase of Plaintiff's leave was

for a serious health condition. (Defendants’ Response, Doc. 27, Pg. ID 1015-17.) Under the

FMLA, pregnancy is not a “per se” serious health condition. Whitaker v. Bosch Braking Sys.

Div., 180 F. Supp. 2d 922, 928 (W.D. Mich. 2001). Rather, “[w]hether an employee suffers

from a serious health condition under the FMLA is a question of law for the Court.”

Helmick v. Solid Waste Auth. of Cent. Ohio, No. 2:07-CV-912, 2009 U.S. Dist. LEXIS 19301, at

*17 (S.D. Ohio Mar. 10, 2009). The FMLA defines a “serious health condition” as a physical

condition that involves inpatient care in a medical facility or continuing treatment by a

health care provider. 29 U.S.C. § 2611(11). Here, Plaintiff received inpatient treatment for

her pregnancy and continued treatments by her doctor. (Completed Medical

Certification, Doc. 17-2, Pg. ID 314-15.) Thus, under statutory law, at least a portion of

Plaintiff's leave was for a serious health condition that prevented her from performing

her employee functions.

This conclusion also finds support in the regulatory framework. Specifically, 29

C.F.R. § 825.115(b) states that “any period of incapacity due to pregnancy, or for prenatal

care” can qualify as a serious health condition. Huffman v. Speedway LLC, 621 Fed. App’x

792, 798 (6th Cir. 2015). Plaintiff's physician specifically stated that he expected Plaintiff

to be incapacitated from June 1, 2022, through July 13, 2022. (Certification of Health Care

Provider, Doc. 17-2, Pg. ID 315.) Therefore, despite Lovelace’s testimony, under a plain

reading of both statutory and regulatory definitions, Plaintiff's leave was for a serious

health condition and the BCAC could require a medical certification.

The Court now turns to Defendants’ sovereign immunity defense. (Defendants’

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Reply, Doc. 32, Pg. ID 1148.) The Supreme Court has held that suits against states for

money damages under the FMLA’s serious health condition provision are barred by

sovereign immunity. Diaz v. Mich. Dep’t of Corr., 703, F.3d 956, 961 (6th Cir. 2013) (citing

Coleman v. Court of Appeals of Md., 566 U.S. 30, 33 (2012)). Accordingly, as even initially

raised and admitted by Plaintiff (Plaintiff's Response, Doc. 29, Pg. ID 1087), if her leave

was for her own serious health condition, the Court lacks subject matter jurisdiction over

Plaintiff's FMLA interference claim for money damages. Sherman v. Pub. Emps. Ret. Sys.,

No. 2:22-CV-4161, 2023 U.S. Dist. LEXIS 174092, at *15 (S.D. Ohio Sept. 28, 2023). Thus,

having determined that Plaintiff's leave was for a serious health condition, Plaintiff's

FMLA claims for monetary damages are barred.

Plaintiff argues for summary judgment under several different theories. Despite

the Eleventh Amendment barring Plaintiff's FMLA claims for monetary damages, it

“does not bar suits for equitable, prospective relief, such as reinstatement.” Diaz, 703 F.3d

at 964. As Plaintiff seeks reinstatement to her former position in addition to monetary

damages, the Court will address each of Plaintiff's arguments as to her equitable relief in

turn. (Compl., Doc. 1, Pg. ID 9.)

Plaintiff contends that her termination for failing to provide a medical certification

is unlawful because the Unpaid Pregnancy-Related Leave Policy is more stringent than

the FMLA’s requirements. (Plaintiff's Motion, Doc. 25, Pg. ID 945.) This argument is

unpersuasive. First, Plaintiff's position relies on the holding of Cavin v. Honda of America

Manufacturing, Inc., 346 F.3d 713, 720 (6th Cir. 2003). In Cavin, the Sixth Circuit concluded

that “employers cannot deny FMLA relief for failure to comply with their internal notice

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requirements.” Id. at 723. The language of 29 C.F.R. § 825.302(d) which underlies Cavin’s

holding, however, is no longer in effect. Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d

608, 614 (6th Cir. 2013). The regulation now states that “[w]here an employee does not

comply with the employer’s usual notice and procedural requirements, and no unusual

circumstances justify the failure to comply, FMLA-protected leave may be delayed or

denied.” 29 C.F.R. § 825.302(d). By failing to provide a medical certification in compliance

with the BCAC’s usual procedural requirement, Plaintiff must have had an unusual

circumstance to justify her failure; otherwise, the BCAC’s denial is proper. “The FMLA

regulations associate unusual circumstances with communication issues such as the

employee’s inability to reach a supervisor or designated employee.” Meeks v. Norfolk S.

Ry. Co., No. 1:20-CV-331, 2023 U.S. Dist. LEXIS 52442, at *26-27 (S.D. Ohio Mar. 27, 2024)

(quotations omitted).

Here, there is no evidence that Plaintiff could not provide her medical certification

to the BCAC due to a communication issue outside of her own control. Plaintiff gave the

medical certification to her physician to be completed on June 9, 2022, one day before it

was due to the BCAC. (Text Messages, Doc. 17-2, Pg. ID 307; Baldwin Dep., Doc. 19-1, Pg.

ID 683.) Then, the BCAC did not receive the certification until August 10, 2022.

(Certification of Health Care Provider; Doc. 17-2, Pg. ID 313; Lovelace Dep., Doc. 20-1,

Pg. ID 786.) Although Plaintiff did provide the medical certification to her physician

before the deadline, this is not the type of unusual circumstance contemplated in 29 C.F.R.

§ 825.302(d). Plaintiff's reliance on a third party is not compelling. Moreover, Plaintiff

does not provide evidence as to why she could not have provided the certification earlier

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or followed up with her physician to ensure timely delivery. Thus, the BCAC did not

violate the FMLA by enforcing its Unpaid Pregnancy-Leave Policy.

Plaintiff next seeks to establish that the Unpaid Pregnancy-Related Leave Policy

violates the FMLA because it has no notice provision. (Plaintiff's Reply, Doc. 31, Pg. ID

1124.) C.F.R. § 825.305(a) states that “[a]n employer must give notice of a requirement for

certification each time a certification is required; such notice must be written notice

whenever required by § 825.300(c).” Employers shall also provide a written notice

explaining the obligations of an employee and any consequences for failing to meet the

obligations. 29 C.F.R. § 825.300(c)(1). On May 11, 2022, Plaintiff received a letter from the

BCAC stating that the attached medical certification form must be completed and

returned, or Plaintiff's leave will be denied, and disciplinary action will be initiated.

(Administrative Letter, Doc. 17-2, Pg. ID 289.) The Court finds that the text of this letter

provided sufficient notice to Plaintiff under the FMLA.

Plaintiff further contends that she was wrongfully declined her FMLA benefits

because the BCAC did not provide notice that her leave was being denied. (Plaintiff's

Motion, Doc. 25, Pg. ID 949.) 29 C.F.R. § 825.300(d)(1) requires that “[w]hen the employer

has enough information to determine whether the leave is being taken for a FMLA-

qualifying reason (e.g., after receiving a certification), the employer must notify the

employee whether the leave will be designated and will be counted as FMLA leave.”

Plaintiff, however, did not provide her medical certification until long after the deadline.

The BCAC therefore did not have enough information to determine whether Plaintiff's

leave was for a FMLA-qualifying reason to trigger the notice requirement.

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Plaintiff next argues that even if the BCAC could require medical certification for

her pregnancy leave, that she was also simultaneously eligible for leave to bond with her

child and the FMLA does not require a certification for bonding. (Plaintiff's Response,

Doc. 29, Pg. ID 1092.) Although parents are entitled to FMLA leave to be with their

newborn child, 29 C.F.R. 825.120(a)(2), Plaintiff provides no appropriate authority

supporting that that an employee can be on FMLA leave simultaneously for more than

one reason. Plaintiff cites to 29 C.F.R. 825.300(b)(3), but nothing in that regulatory

provision backs Plaintiff's claim. Instead, it states that an employee does not have to

notify her employer when a subsequent need for FMLA develops while already on leave.

29 C.F.R. 825.300(b)(3). Accordingly, this argument is also not well taken.

Overall, the BCAC’s enforcement of its Unpaid Pregnancy-Leave Policy did not

interfere with Plaintiff's FMLA protections. Plaintiff's arguments in opposition have all

been unpersuasive. Thus, Defendants are entitled to summary judgment on Plaintiff's

FMLA interference claim.

Plaintiff also moves for liquidated damages on its FMLA interference claim.

(Plaintiff's Motion, Doc. 25, Pg. ID 948.) “If an employer violates an employee’s rights

under the FMLA, the employer is liable for . . . liquidated damages or ‘double damages’

equal to the compensatory damages plus the interest.” Chenoweth v. Wal-Mart Stores, Inc.,

159 F. Supp. 2d 1032, 1037 (S.D. Ohio 2001). Here, the BCAC did not interfere with

Plaintiff's FMLA rights, so Plaintiff is not entitled to liquidated damages.

IV. Retaliation

Defendants move for summary judgment on Plaintiff's retaliation claim.

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(Defendants’ Motion, Doc. 26, Pg. ID 1001.) Plaintiff, however, fails to address

Defendants’ arguments in her Response. (See Plaintiff's Response, Doc. 29.) “[A] plaintiff

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

motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 Fed. App’x. 368, 372 (6th

Cir. 2013). Accordingly, Defendants are entitled to summary judgment on Plaintiff's

abandoned retaliation claim.

CONCLUSION

Based on the foregoing, the Court ORDERS the following:

1. Defendants Judge Kevin McDonough and Judge Courtney Caparella-

Kraemer are DISMISSED;

2. Plaintiff's Motion for Partial Summary Judgment (Doc. 25) is

GRANTED IN PART AND DENIED IN PART;

3. Defendants’ Motion for Summary Judgment (Doc. 26) is GRANTED IN

PART AND DENIED IN PART;

4. Summary Judgment is ENTERED in favor of Plaintiff on her claim for

pregnancy discrimination;

5. Summary Judgment is ENTERED in favor of Defendants on Plaintiff's

claim for FMLA interference; and

6. Summary Judgment is ENTERED in favor of Defendants on Plaintiff's

retaliation claim.

IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By: ‘

JUDGE MATTHEW W. McFARLAND

18