Potoma v. Cleveland Clinic Foundation

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LYDIA POTOMA, ) CASE NO. 1:23-cv-01153

)

Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN

)

v. )

)

THE CLEVELAND CLINIC ) MEMORANDUM OPINION

FOUNDATION, et al., ) AND ORDER

)

Defendants. )

Defendants The Cleveland Clinic Foundation (“CCF”) and Jerilyn Hagan (“Hagan”)

moved this Court for summary judgment. (Doc. 21.) Plaintiff Lydia Potoma (“Potoma”)

opposed the motion (Doc. 24), and Defendants replied (Doc. 29). For the reasons that follow,

Defendants’ Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Factual Background

CCF is a healthcare organization headquartered in Cleveland, Ohio. (Doc. 21-1 at ¶ 4.)

In July 2012, Potoma began working for CCF as a Registered Nurse. (Doc. 40-1 at 4093.) In

2019, she completed her graduate program and became an Advanced Practice Registered Nurse

(“APRN”). (Id. at 4105–06.) As an APRN, Potoma could see and treat patients but had to work

with a collaborating physician. (Id. at 4121–22; Doc. 21-1 at ¶ 8.)

In January 2020, Potoma joined the Older Adult Behavior Health (“Geropsych”) inpatient

unit as the only APRN. (Doc. 40-1 at 4141.) In this role, Hagan, the Manager for the Behavior

Health Advanced Practice Providers, supervised Potoma. (Id. at 4107, 4113; Doc. 35-1 at 2715–

16.) Though Hagan supervised Potoma, they worked at separate locations. (Doc. 24 at 805–06.)

Dr. Justin Havemann served as Potoma’s collaborating physician in the unit, but was not her

direct supervisor. (Doc. 40-1 at 4122.) APRNs were expected to meet certain expectations like

reporting to work between 8:00 a.m. and 5:00 p.m., following department policies, attending

bimonthly “huddles,” and working with a multidisciplinary team of social workers, medical

providers, nurses, physicians, and therapists. (Doc. 40-1 at 4153, 4163; Doc. 21-8 at ¶ 3.)

APRNs were also expected to complete competencies, receive vaccinations, follow COVID-19

protocols, respond to emails, and complete provider’s notes after appointments. (Doc. 21 at

190.)

Depending on patient needs and other factors like the COVID-19 pandemic, the

Geropsych unit treated patients on both an inpatient and outpatient basis. (Doc. 40-1 at 4134–36;

Doc. 35-1 at 2816–18.) In June 2020, Potoma expanded her practice to include outpatient work.

(Doc. 40-1 at 4134.) Until March 2022, she spent approximately 75% of her time on inpatient

work and the remaining 25% on outpatient work. (Id. at 4140.) If Potoma was absent,

administrative assistants rescheduled her outpatient appointments. (Id. at 4217.)

Potoma was diagnosed with postural orthostatic tachycardia syndrome (“POTS”). (Doc.

24 at 804.) This condition can cause lightheadedness, brain fog, fatigue, difficulty with physical

exertion, blurry vision, palpitations, tremors, nausea, and anxiety. (Id.) In 2019, Potoma was

also diagnosed with anxiety. (Id.) Starting in 2014, Potoma was approved for both intermittent

and continuous FMLA leave. (Doc. 40-1 at 4249; see, e.g., Doc. 40-14.) When she experienced

symptoms of POTS, Potoma’s intermittent leave was approved for one to two days a week.

(Doc. 24 at 805.) With respect to diagnosed sleep apnea, she had the option to arrive to work up

to 90 minutes late. (Doc. 25 at ¶ 7.) If her symptoms took longer to resolve, Potoma could take

continuous FMLA leave. (Doc. 24 at 805.) She renewed her FMLA paperwork for intermittent

leave annually between 2014 and 2022 and as necessary upon taking continuous leave. (Doc.

40-1 at 4159; Doc. 25 at ¶ 7.)

CCF’s Absence Management Office (“AMO”) approved and administered FMLA and

short-term disability leave. (Doc. 36-1 at 3185–86.) CCF required employees using FMLA

leave to “follow established department notice and procedural requirements to provide

notification of an absence or lateness related to an approved FMLA leave.” (Doc. 35-5 at 3022.)

During her employment, Potoma took FMLA leave several times. (Doc. 40-1 at 4208.)

According to Potoma, because Hagan did not work in the same hospital and “played no role in

ensuring that Potoma’s patients on the inpatient unit were covered in the event of her absence,”

CCF’s policy did not require her to inform Hagan of her absences. (Doc. 24 at 806; Doc. 40-1 at

4217.) Instead, Potoma understood the department’s policy required her to notify the

administrative assistant at the hospital where she worked. The administrative assistant would

enter her absence into Kronos, a timekeeping system CCF used to track FMLA. (Doc. 40-1 at

4217.) Potoma would also notify Dr. Havemann, and Dr. Ryan Rajaram, another physician who

also covered her patients. (Doc. 24 at 806.) Hagan testified she, rather than an administrative

assistant, was responsible for entering and coding absences in Kronos. (Doc. 40-9 at 4569; Doc.

35-1 at 2783.) According to Hagan, the department’s policy required employees to inform her of

any absences without necessarily disclosing the underlying conditions or details of FMLA leave.

(Doc. 35-1 at 2798, 2813; Doc. 40-20 at 4608; Doc. 36-1 at 3186.)

In May 2020, Hagan communicated the absence policy to the nurses and physician

assistants she supervised:

In light of everything that is going on, I thought it would be a good idea to review

the CALL OFF policy.

 Please call 216.636.1925 as soon as you know you will not be in. This is

available 24.x7. This team will contact your first two scheduled patients.

 Contact your administrative assistant and/or front-desk team

(Doc. 35-13.) This policy was reiterated in December 2021. (Doc. 35-39.)

Between October 2020 and December 2021, Potoma took a series of continuous FMLA

leaves. The first leave period was October 8–18, 2020. (Doc. 40-14.) The second leave period

was April 28, 2021 to June 17, 2021. (Doc. 40-15.) And the third leave period was December

1–19, 2021. (Doc. 40-17.) Potoma was also placed on involuntary leave between January 27,

2022 and March 22, 2022. (Doc. 21-1 at ¶¶ 19–20.) During this fifteen-month period, Potoma

had several encounters with her colleagues and supervisors that form the basis of her retaliation

and discrimination claims.

On October 12, 2020, during Potoma’s first continuous leave, Hagan emailed Potoma

about her failure to respond to emails and calls, copying both Dr. Havemann, and Daniel

Karchmer, an administrator, and Hagan’s supervisor. (Doc. 32-3 at 2133.) Dr. Havemann

responded Potoma had been sick. (Doc. 32-5 at 2136.) Karchmer warned:

Failure to communicate at all (including repeated failures to attend required team

meetings) after repeated outreach from a direct manager often results in either a

welfare check by police at the request of a department or corrective action, or

termination. This has happened with others, so it’s not something to be taken

lightly.

(Id. at 2135.) Karchmer further stated if Potoma failed to reply, “we can begin big-time

corrective action.” (Doc. 32-4 at 2134.) That day, Potoma responded, detailing her responses to

the emails and stating she had not received any calls. (Doc. 32-3 at 2132–33.) Potoma explained

she mistakenly believed the AMO informed Hagan about her FMLA absences, and told Hagan

her “absence may be prolonged.” (Doc. 32-7.) The police did not perform a welfare check and

Potoma was not disciplined for failure to communicate.

On November 12, 2020, Potoma contacted HR to report Hagan harassed her and

threatened her with termination and a welfare check. (Doc. 32-10.) Potoma spoke to Diane

Robinson, an HR Business Partner, about Hagan’s inquiries into Potoma’s medical conditions

and threats. (Doc. 36-1 at 3215–16.) Robinson set up a meeting between Potoma and Karchmer.

(Id. at 3226.) Prior to the meeting, Karchmer contacted Potoma, emphasizing the department’s

policy on attending huddles. (Doc. 32-2.) Potoma also testified Karchmer warned her about the

tone of her emails and failure to communicate with Hagan could result in termination. (Doc. 40-

1 at 4290.) At the meeting, Karchmer dismissed Hagan’s behavior as “water under the bridge.”

(Id. at 4289.) Separately, Robinson warned Hagan about asking for details about employees’

FMLA leave. (Doc. 36-1 at 3233, 3237.) Moving forward, Hagan copied Robinson on

correspondence regarding Potoma’s attendance. (Id. at 3240–41.)

In December 2020 or January 2021, Hagan called Potoma and asked about POTS,

wanting “to know why POTS caused [Potoma] to take FMLA leave and when [she] would be

returning.” (Doc. 25 at ¶ 9.) Potoma had not disclosed her POTS diagnosis and was not aware

how Hagan learned of her diagnosis. (Id.) In her deposition, Hagan testified Potoma shared her

POTS diagnosis with her. (Doc. 35-1 at 2780–81.) This conversation prompted Potoma to

consult with the AMO about how much information she needed to share with Hagan. (Doc. 40-1

at 4300.)

On April 22, 2021, Potoma notified Hagan, Dr. Havemann, two administrative assistants,

and a social worker she would be out of the office until further notice. (Doc. 40-12.) On May 7,

2021, Potoma submitted her application for continuous FMLA leave. (Doc. 24 at 810.) In May,

Potoma received a professional practice evaluation for the period of January to May 2021. (Doc.

35-25.) Her peers rated her as “superior” or “good” in some categories like assessment of

patients and completing appropriate documentation. (Id.) For other categories like “timely,

appropriate, and concise communication,” “effective as a member of the interdisciplinary

healthcare team,” and “physical/mental ability to safely render care,” Potoma was rated as “fair”

or “poor.” (Id.) This review also recommended additional monitoring or proctoring to address

charts showing Potoma was “prescribing/refiling medications that are outside of a Psychiatric

Mental Health[] Nurse Practitioner’s scope of practice.” (Id.) Hagan discussed this comment

with Dr. Havemann who clarified he oversaw patients in those cases and “agreed with Potoma’s

practices.” (See Doc. 35-1 at 2837–39.) Hagan recommended Potoma’s practice be more

closely monitored. (Id. at 2834.) No further action was taken.

While Potoma was on her second continuous leave, the Geropsych department hired

another nurse practitioner, Peter Swauger. (Doc. 40-1 at 4305–06.) According to Dr.

Havemann, Vice President Brian Tilow proposed replacing Potoma with Swauger. (Doc. 38-1 at

3679.) Tilow testified Swauger was not hired to replace Potoma, but simply to assist with

inpatient care. (Doc. 30-1 at 1490.) Swauger did not stay with the Geropsych unit permanently.

(Id.) Potoma returned to work in the same position in June 2021.

On August 20, 2021, Potoma was exposed to COVID-19 and left work early. (Doc. 24 at

812.) On August 23, 2021, she emailed Hagan, Dr. Havemann and Dr. Rajaram she would not

be at work. (See Doc. 30-7; Doc. 30-6.) That day, Dr. Rajaram contacted Hagan and Tilow

expressing frustration with Potoma’s communication and concerns Potoma had exceeded her

authority by instructing another physician, Dr. Molly Do, to cover her patients. (Doc. 30-6.) To

Dr. Rajaram, Potoma’s poor communication skills are “dangerous and can impact patient care.”

(Id.) Hagan stated, “the chain of command/communication is a chronic issue again[.]” (Doc.

30-7 at 1593.) For his part, Dr. Havemann explained Potoma’s contact with Dr. Do and took

some responsibility for the miscommunication. (Id.) Potoma was not subject to discipline

relating to this incident.

Later that week, Hagan emailed Robinson about transferring Potoma to a call

center/triage role. (Doc. 30-20 at 1654.) This role required reviewing patient records and

providing guidance to triage patient care. (Doc. 35-1 at 2854–56; Doc. 31-1 at 1735–36.) There

was no reduction in pay or benefits, but Potoma could choose to work remotely. (Doc. 31-2.)

Typically, an APRN with Potoma’s experience would not work in a triage position. (Doc. 36-1

at 3264–65.) According to Potoma, this role would be “less prestigious [and] less challenging.”

(Doc. 24 at 813.) Robinson counseled Hagan to use a two-fold approach that emphasized “the

need to care for her patients and giving her the time to care for herself[,] not blaming her taking

FMLA which she can use.” (Doc. 30-20 at 1654.)

On August 30, 2021, Dr. Leopoldo Pozuelo, Chair of the Psychiatry and Psychology

Department, met with Potoma and gave her a letter stating she was being “temporarily

transferr[ed] [] to the Triage position with the Behavior Health Center.” (Doc. 31-2.) The letter

explicitly referenced Potoma’s “need to take intermittent leave” and stated it was “starting to

affect patient care, disrupting inpatient service and requiring the canceling of numerous

outpatient appointments.” (Id.)

Following the meeting, Potoma contacted CCF’s human resources and legal departments

about the transfer. (Doc. 31-6.) She accused Dr. Pozuelo, Robinson, and Hagan of retaliation

for her use of FMLA leave. (Doc. 35-1 at 2862; Doc. 31-1 at 1814–15; Doc. 36-1 at 3320.)

Ultimately, Dr. Pozuelo and Robinson concluded they “had no documentation [] to confirm the

amount of time [Potoma] was taking off in Kronos” to support their contention that patient care

was being disrupted. (Doc. 36-1 at 3271; Doc. 31-1 at 1746–48.) Together, Dr. Pozuelo,

Robinson, Hagan, and Potoma agreed the transfer would not occur. (See Doc. 36-1 at 3271.)

On September 17, 2021, Tilow, Dr. Rajaram, a manager, and others met to “understand

what is currently happening with the providers on this unit and how each of them interface with

the multidisciplinary team.” (Doc. 30-8.) Neither Potoma nor Dr. Havemann were present. (Id.)

At this meeting, the group listed expectations regarding working with the multidisciplinary team,

daily documentation of Potoma’s attendance, timing for calling out, and establishing the unit’s

leadership. (Id.) Tilow’s summary also included a number of negative comments about

Potoma’s performance, including her relationships with social workers and other nurses and

coverage issues. (Id.) After this meeting, Karen Hogan, the Director of Behavioral Health

Sciences, who worked at the same hospital as Potoma, started sending daily attendance reports.

(See Doc. 30-10.)

On September 28, 2021, Tilow and Dr. Rajaram met with Potoma. (Doc. 30-21.)

Tilow’s summary again included a number of negative comments on Potoma’s performance,

including her failure to work with the interdisciplinary team, arrival to work between 10:00–

10:30 a.m., and lack of communication. (Id.) Tilow concluded with “the caregivers are in a hard

spot with not knowing the FMLA restrictions. At the end of the day, we are to take care of

patients in a world class way. We are clearly underperforming.” (Id.) On October 14, 2021,

Potoma contacted Tilow to inform him she intended to resign. (Doc. 30-24 at 1666.)

In November 2021, Potoma called Hogan, expressing she believed CCF had become a

hostile work environment and was considering taking legal action. (Doc. 30-11.) Later that

month, Potoma took a scheduled vacation from November 22, 2021, to November 26, 2021.

(Doc. 30-12 at 1623.) She then took a third continuous FMLA leave from December 1, 2021, to

December 19, 2021. (Doc. 40-17.) During this absence, Potoma sent daily emails to Hagan and

Dr. Havemann regarding her attendance. (Doc. 33-9.)

On December 3, 2021, Potoma emailed Robinson, Hagan, Dr. Pozuelo, Tilow, and

others, complaining of disability discrimination. (Doc. 40-19.) She felt she was “being treated

differently because of [her] disability and for taking FMLA leave.” (Id.) Besides summarizing

the events above, Potoma complained she was told it “must be nice to have the luxury of taking

FMLA.” (Id.) She also stated Tilow threatened her with demotion at a meeting on September

19, 2021, imposed an official report time, expanded list of people to notify about FMLA leave,

and commented colleagues may hold a grudge against her for her absences. (Id.) Potoma also

shared she suffered a medical emergency that day, and felt the expectation to contact her

supervisor during that time was unfair. (Id.) According to Potoma, CCF was mischaracterizing

and therefore “wasting” her FMLA benefits, and she requested her leave be treated as

intermittent, rather than continuous. (Id.) She concluded by stating she “enjoy[s] working with

the Cleveland Clinic and [] like[s] the work.” (Id.)

Early on December 15, 2021, Potoma sent an email stating she would be out of the office

on December 14, 2021. (Doc. 40-27.) She asserted the date in her email was a typo. (Doc. 24 at

818.) To Defendants, Potoma communicating her absence “after the majority or entirety of the

workday had passed” “was not out of character.” (Doc. 21 at 192.) Cathie Patrick, an

administrative assistant, did not interpret the email to mean Potoma would be absent on

December 15, 2021, and did not reschedule that day’s patients. (Doc. 34-1 at 2566–68.)

The predictable happened. One of Potoma’s patients arrived for their appointment on

December 15, 2021, and she was not present to see them. (Doc. 34-3.) After realizing Potoma

was not present, Patrick cancelled Potoma’s remaining patients for the day. (Doc. 34-16.) Later

that day, Dr. Rajaram emailed Hagan, Tilow, Dr. Pozuelo, and others with the subject line “the

ongoing issues with LP.” (Doc. 40-26.) Dr. Rajaram noted Potoma was on her fourth week of

leave and stated “[n]o one received any notification that Lydia would be away today.” (Id.) Dr.

Rajaram concluded “Lydia is not fit to see patients. I do not believe she should be allowed to see

patients.” (Id. (emphasis omitted).) Potoma was not disciplined for this incident.

Potoma returned to work on December 20, 2021. (Doc. 24 at 820.) On December 23,

2021, Dr. Havemann discovered a Critical Lab Report from December 9, 2021 that had not been

properly addressed. (Id.) Dr. Havemann believed Patrick mishandled this report in a deliberate

attempt to undermine Potoma. (Id. at 821.)

In November 2021, the Center for Medicare and Medicaid Services issued a rule

requiring employers like CCF to mandate COVID-19 vaccinations. (Doc. 21-1 at ¶ 14.) CCF

required employees to be vaccinated by January 27, 2022. (Id. at ¶ 15.) Potoma requested an

extension of time to receive the vaccination. (Doc. 40-22.) In January 2022, her request was

denied. (Doc. 21-1 at ¶ 18.) Potoma took an unpaid leave of absence starting January 27, 2022.

(Doc. 24 at 821; Doc. 21 at 194.) On March 21, 2022, Potoma submitted a religious exemption

for the COVID-19 vaccine, which was granted. (Doc. 40-25.) She returned to work on March

23, 2022. (Doc. 24 at 821; Doc. 21 at 194.)

Upon her return, Potoma met with Hagan to review expectations and discuss changes to

the unit. (Doc. 30-18.) At this time, Hagan informed Potoma she would perform solely

outpatient work. (Id.) According to Defendants, the unit implemented this change because Dr.

Havemann and Dr. Rajaram left the unit, leaving no physicians with whom Potoma could

collaborate. (Doc. 24 at 195.) Potoma felt this role was not a good fit and asked about an open

inpatient APRN position advertised on CCF’s website. (Doc. 30-18.)

On March 31, 2022, Potoma submitted a third written complaint to Hagan, Dr. Pozuelo,

Tilow, Robinson, and others, detailing harassment and retaliatory conduct. (Doc. 30-3.) Potoma

felt the meeting she had upon her return to work and the list of expectations was “an attempt to

catch [her] off guard or to require things [] that are not possible in that time frame as a means to

justify firing [her] in the future.” (Id.) Potoma also detailed another instance of sabotage by

Patrick regarding her schedule. (Id.) Potoma felt she was “being treated differently based on

[her] disability and for taking FMLA.” (Id.)

In April 2022, Potoma took leave and called out from work. (See Doc. 35-47.) That

month, CCF considered a “first step of corrective action” for failure to follow the procedures

discussed in the March 2022 meeting. (Id.) CCF did not pursue this measure after determining

Potoma called the proper number about her absence, but later than expected. (See id.)

Potoma resigned on May 19, 2022. (Doc. 24 at 823; Doc. 21 at 198.) Sometime in 2023,

she reapplied to work at CCF as an APRN. (Doc. 21 at 198.)

B. Procedural History

On June 8, 2023, Potoma commenced this action asserting FMLA retaliation against CCF

and Jerilyn Hagan (Count 1), disability discrimination in violation of the ADA against CCF

(Count Two), disability discrimination in violation of Ohio Rev. Code 4112.02(A) against CCF

(Count Three), retaliation in violation of the ADA against CCF (Count Four), and retaliation in

violation of Ohio Rev. Code 4112.02(I) against CCF (Count Five). (Doc. 1.)1 Defendants timely

moved for summary judgment on all claims. (Doc. 21.) Summary judgment is now fully

briefed.

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).

1 The counts in the complaint are mistakenly numbered in that Count Two is labeled Count Three

and so forth. The Court addressed them here as if properly numbered in sequential order. (See

Doc. 1 at 21.)

“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. ANALYSIS

A. FMLA Retaliation

The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave in any

twelve-month period for qualifying medical or family reasons. Coulter v. Deloitte Consulting

L.L.C., 79 Fed. App’x 864, 866 (6th Cir. 2003) (citing 29 U.S.C. § 2612(a)(1)). An employer

may not retaliate against an employee who exercises his or her rights under the FMLA. Id.

(citing 29 U.S.C. § 2615).

1. Direct Evidence of FMLA Retaliation

A plaintiff may prove his or her FMLA retaliation claim through direct or indirect

evidence and need only prove retaliation through one of those methods. Kline v. Tenn. Valley

Auth., 128 F.3d 337, 348–49 (6th Cir. 1997). “Direct evidence . . . must establish not only that

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

that the manager acted on that predisposition.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,

707 (6th Cir. 2008) (citation and quotation omitted).

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) (citations omitted).

“No inferences are required; the illegal animus is ‘explicitly expressed.’” Laws v. HealthSouth

N. Ky. Rehab. Hosp. Ltd. P’ship, 508 Fed. App’x 404, 408 (6th Cir. 2012). In contrast, “[i]f

evidence requires the jury to infer a fact, it is not direct evidence.” Anthony v. United Tel. Co. of

Ohio, 277 F.Supp.2d 763, 775 (N.D. Ohio 2002) (citing Manzer v. Diamond Shamrock Chems.

Co., 29 F.3d 1078, 1081 (6th Cir. 1994)).

Such evidence is rare. See Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998)

(“Rarely will there be direct evidence from the lips of the defendant proclaiming his or her []

animus.”). Direct evidence “would take the form, for example, of an employer telling an

employee, ‘I fired you because you are disabled.’” Smith v. Chrysler Corp., 155 F.3d 799, 805

(6th Cir. 1998); see also Laderach v. U-Haul of Nw. Ohio, 207 F.3d 825, 829 (6th Cir. 2000)

(supervisor’s statements that “he would not promote [plaintiff] to the repair shop manager

position because of her sex” and “women are not mechanically inclined” were direct evidence of

gender discrimination). In this context, direct evidence of retaliation would be an explicit

statement from Defendants that they fired Potoma for exercising her FMLA rights. See Mitchell

v. Madison Dist. Pub. Schs., No. 23-cv-10472, 2024 WL 4884412, at *2, 2024 U.S. Dist. LEXIS

214231, at *5 (E.D. Mich. Nov. 25, 2024) (citing Imwalle v. Reliance Med. Pros., Inc., 515 F.3d

531, 544 (6th Cir. 2008)).

Potoma argued she has “direct evidence of retaliatory/discriminatory harassment.” (Doc.

24 at 827–28 (citing Broska v. Henderson, 70 Fed. App’x 262 (6th Cir. 2003)).) In her

opposition, Potoma lists fifteen purported examples of direct evidence of retaliation:

1. Hagan’s persistent requirement that Potoma contact her every time Potoma

used FMLA, even though the established, and pre-existing, call-off policy for

Hagan’s department did not include that requirement. Furthermore, as substantiated

by Robinson, Nurse Practitioners can and do enter their own attendance data into

KRONOS, and within Potoma’s department at Marymount, the established practice

was to have an administrative assistant enter attendance data, including FMLA

usage.

2. Hagan’s persistent and intrusive inquiry about Potoma’s private health

information.

3. Tilow’s suggestion that Potoma should be replaced by Pete Swauger while

she was on FMLA, because he wanted someone who would show up to work and

take care of patients.

4. Hagan’s explicit attempt to transfer Potoma to a less prestigious, call center

role, because Potoma’s use of approved FMLA was allegedly disrupting patient

care and causing cancellation of appointments.

5. Hagan’s false statements to Pozuelo and Robinson, to justify the transfer,

that Potoma had accrued excessive absences.

6. Tilow convening a meeting to discuss “concerns of Lydia not showing up

to work.”

7. Tilow appointing a Director of Nursing to surveil Potoma’s attendance, who

then also enlists her subordinates to report on Potoma’s whereabouts. Potoma was

then informed by a nurse that other nursing staff are discussing her medical

conditions and her use of FMLA.

8. Tilow directly confronting Potoma about how her disabilities (anxiety and

POTS) impacted her performance and interaction with the team and imposes new

and unique standards that apply only to Potoma, such as calling him and the nurse

manager when she will be absent.

9. Tilow telling Potoma that FMLA is a luxury and she should not be surprised

if her coworkers hold a grudge against her for taking FMLA.

10. Rajaram’s wide publication of overblown accusations about the effects of

Potoma’s absence during an approved leave and defamatory remarks about

Potoma’s professionalism and ability to serve patients.

11. Pozuelo thanking Rajaram for his defamatory email instead of disciplining

him. (Pozuelo p.158, Ex.96)

12. Hagan’s false statement that she was unaware of Potoma’s absence in the

face of Rajaram’s defamatory statements.

13. Defendant’s refusal to address Cathy Patrick’s mishandling of Potoma’s

appointments.

14. Hagan’s transfer of Potoma to a full-time outpatient role allegedly justified

by the fact that, with Haveman[n] gone, Potoma would not have a collaborating

physician, yet informing her that Pozuelo would be her collaborating physician for

her outpatient practice.

15. Hagan’s transfer of Potoma to a full-time outpatient role even though there was

a vacant inpatient role posted for which Potoma was qualified.

(Doc. 24 at 827–28.)

These examples are not direct evidence of retaliation because none “contain any explicit

expression of unlawful anti-FMLA animus.” See Madison Dist. Pub. Schools, 2024 WL

4884412, at *3, 2024 U.S. Dist. LEXIS 214231, at *5 (citing Laws, 508 Fed. App’x at 408).

Moreover, each example requires an inference connecting these incidents to Potoma’s use of

FMLA leave. Because this evidence only inferentially supports Potoma’s claim of retaliation, it

is not direct evidence of FMLA retaliation. Accordingly, Potoma must proceed under the

McDonnell Douglas framework that applies when a plaintiff relies on indirect evidence of

retaliation.

2. Indirect Evidence of Retaliation

a. The McDonnell Douglas Framework

When a plaintiff brings claims of retaliation or discrimination based on indirect evidence,

the McDonell Douglas burden-shifting test applies. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Under this tripartite test, the plaintiff must first establish a prima facie

case of discrimination by a preponderance of the evidence. Id.; 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.

Because Potoma relies on indirect evidence, the Court applies the McDonnell Douglas

test to all five of her claims. See Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 395 (6th

Cir. 2017) (holding ADA discrimination claims are analyzed under the McDonnell Douglas

framework); see also Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014) (“Because

Rorrer does not claim to have direct evidence of retaliation, this Court analyzes his claim for

ADA retaliation using the McDonnell–Douglas burden-shifting approach.”); Skrjanc v. Great

Lakes Power Serv. Co., 272 F.3d 309, 313–16 (6th Cir. 2001) (applying McDonnell Douglas

framework to FMLA retaliation claim); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.

1992) (holding the McDonnell Douglas framework applies to Ohio Statutes).

b. Elements of FMLA Retaliation

The elements of a prima facie case of FMLA retaliation are: (1) the plaintiff availed

herself of a protected right under the FMLA; (2) she suffered an adverse employment action; and

(3) a causal connection existed between the exercise of her FMLA rights and the adverse action.

Skrjanc, 272 F.3d at 314. The parties do not dispute Potoma satisfied the first element of her

prima facie case. The parties dispute whether Potoma suffered an adverse employment action

and causation. (See Doc. 21 at 204.)

c. Adverse Action and Constructive Discharge

An adverse employment action is “a materially adverse change in the terms and

conditions of a plaintiff’s employment.” Spees v. Jame Marine, Inc., 617 F.3d 380, 391 (6th Cir.

2010) (alterations omitted). These actions are “typically marked by a ‘significant change in

employment status,’ including ‘hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.’” Id.

Potoma points to two adverse employment actions: constructive discharge and severe or

pervasive harassment. (Doc. 24 at 827–30.) Starting with constructive discharge, an adverse

employment action occurs when “an employer discriminates against an employee to the point

such that his ‘working conditions become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.’” Green v. Brennan, 578 U.S. 547,

555 (2016). When an employee resigns under such circumstances, the resignation is treated as

“tantamount to an actual discharge.” Id. To show constructive discharge, a plaintiff must prove

“that he was discriminated against by his employer to the point where a reasonable person in his

position would have felt compelled to resign” and he must actually resign. Id. To establish these

components, a plaintiff must show “(1) the employer deliberately created intolerable working

conditions, as perceived by a reasonable person; and (2) the employer did so with the intention of

forcing the employee to quit.” Gobsin v. Jefferson Cnty. Comm’rs., 725 Fed. App’x 377, 387-88

(6th Cir. 2018).2

“[I]ntolerability is a demanding standard.” Tchankpa v. Ascena Retail Grp., 951 F.3d

805, 814 (6th Cir. 2020); see also Yanick v. Kroger Co. of Mich., No. 23-1439, 2024 WL

1856680, at *7, 2024 U.S. App. LEXIS 10563, at *18 (6th Cir. Apr. 29, 2024) (“Intolerability is

2 The Sixth Circuit acknowledged the components of constructive discharge as stated in Green

“arguably conflict[] with the subjective intent requirement still used by this Circuit.” Tchankpa

v. Ascena Retail Grp., Inc., 951 F.3d 805, 817 n.3 (6th Cir. 2020). To date, the Sixth Circuit has

not decided whether Green abrogated the Sixth Circuit’s test. Id. The Sixth Circuit has recently

affirmed district court decisions applying the subjective intent requirement. See Yanick v.

Kroger Co. of Mich., No. 23-1439, 2024 WL 1856680, at *7, 2024 U.S. App. LEXIS 10563 at

*18 (6th Cir. Apr. 29, 2024) (affirming district court’s grant of summary judgment on disability

discrimination and retaliation claims where the district court “required employees to show their

employer deliberately created the intolerable conditions”); see also Cooper v. Dolgencorp, LLC,

93 F.4th 360, 373 (6th Cir. 2024) (“Constructive-discharge claims require courts to examine

‘both the employer’s intent and the employee’s objective feelings.’”).

a high bar.”). Whether a reasonable person would have felt compelled to resign “depends on the

facts of each case.” Logan v. Denny’s Inc., 259 F.3d 558, 559 (6th Cir. 2001). When making

this determination, courts consider the factors below “singly or in combination”:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) reassignment to work under a

younger supervisor; (6) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (7) offers of early retirement

or continued employment on terms less favorable than the employee’s former

status.

Id. As the Sixth Circuit’s use of “singly” implies, one factor can establish constructive

discharge. See Jemison v. AFIMAC Glob., 645 F.Supp.3d 781, 800 (N.D. Ohio 2022) (collecting

cases). The parties do not dispute Potoma resigned. Therefore, only the intolerable working

conditions are disputed. Of the factors listed above, only the sixth factor appears to apply.3 To

find badgering, harassment or humiliation effectuated a constructive discharge, “it must be

pervasive enough to significantly alter the plaintiff’s working conditions.” Id.

Potoma cited her “feeling of helplessness after a year and a half” of “relentless scrutiny,

open hostility, threats of discipline, demotion, and termination, direct insults to her

professionalism and ability to practice, lack of routine support from administrative staff, and

changes in her scope of practice” as support for her constructive discharge. (Doc. 24 at 829.)

Potoma also argued she reasonably believed “Defendants were never going to improve her

working conditions in response to her concerns.” (Id. at 830.) Potoma directs the Court to

emails detailing incidents with various supervisors and colleagues to support her argument. (See

Doc. 21 at 195 (summarizing these incidence); see also Doc. 40-19; Doc. 40-23; Doc. 40-29.)

3 Plaintiff argued the “scope of her practice” changed when she switched to solely outpatient

work. (Doc. 24 at 806.) However, she does not argue this was a “reduction in job

responsibilities” or “reassignment to menial or degrading work” such that these factors apply to

her constructive discharge claim.

Incidents like reviewing expectations, discussing coverage during Potoma’s FMLA leave,

and adjusting her workload to meet departmental needs are the type of “subjective discontent”

that the Sixth Circuit held was insufficient to show constructive discharge in Tchankpa, 951 F.3d

at 814. Moreover, negative feedback like Dr. Rajaram’s December 15, 2021 email was similarly

dismissed in Tchankpa. See id. (“[C]riticism and negative feedback do not suffice, especially

when contained to a few isolated incidents.”); see also Groening v. Glen Lake Cmty. Schs., 884

F.3d 626, 631 (6th Cir. 2018) (“[T]his circuit has repeatedly held that an employer’s criticism of

an employee does not amount to constructive discharge—especially when the employer’s

criticism is limited to a few isolated incidents[.]”); Caslin v. Gen. Elec. Co., 696 F.2d 45, 46 (6th

Cir. 1982) (holding negative feedback that “in no way jeopardized plaintiff’s job” did not show

constructive discharge even though “it did indicate there was little likelihood of further

advancement”). Likewise, Hagan and Tilow’s inquiries into Potoma’s use of FMLA leave are

not intolerable working conditions calculated to encourage resignation. See Brady v. Potter, 476

F.Supp.2d, 745, 759 (N.D. Ohio 2007) (“insisting that [the plaintiff] identify the anticipated

duration of her requested FMLA leave” “can hardly be construed as intolerable working

conditions or as harassment calculated to encourage her resignation”).

The parties do not dispute Potoma’s working relationships with her colleagues were

contentious. (See Doc. 40-1 at 4390–91.) However, the emails on which Potoma relies to

establish a genuine issue of material fact with respect to badgering, harassment or humiliation

are insufficient as a matter of law. Potoma has not shown she was constructively discharged.

Moving to severe or pervasive harassment, 4 Potoma must show the harassment was

4 Severe or pervasive harassment is typically addressed as an adverse employment action in the

Title VII context. See Akers v. Alvey, 338 F.3d 491, 498 (6th Cir. 2003) (discussing severe and

pervasive harassment under Title VII in a sexual and racial discrimination context). At the same

“sufficiently severe or pervasive to alter the conditions of [her] employment and create an

abusive working environment.” Broska, 70 Fed. App’x at 269 (quoting Harris v. Forklift Sys.,

Inc. 510 U.S. 17, 21 (1993)). The conduct must be “severe or pervasive enough to create an

environment that a reasonable person would find hostile or abusive, and the victim must

subjectively regard that environment as hostile and abusive.” Id. The Supreme Court has “made

it clear that conduct must be extreme to amount to a change in the terms and conditions of

employment[.]” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Courts must

“consider the totality of circumstances in determining whether the harassment was sufficiently

severe and pervasive.” Strickland v. City of Detroit, 995 F.3d 495, 506 (6th Cir. 2021).

Two Sixth Circuit cases offer guidance on this point: Morris v. Oldham County Fiscal

Court, 201 F.3d 784 (6th Cir. 2000) and Akers v. Alvey, 338 F.3d 491 (6th Cir. 2003). In Morris,

the Sixth Circuit held the plaintiff demonstrated severe or pervasive harassment by showing her

supervisor visited her workplace fifteen times and called her thirty times solely to harass her;

drove to her workplace multiple times where he sat in his truck and making faces at her;

followed her home and gave her “the finger”; destroyed the television she watched at work; and

threw roofing nails onto her home driveway several times. Morris, 201 F.3d at 793. The Sixth

Circuit concluded this conduct was “more than simple teasing, offhand comments, and isolated

incidents.” Id.

In contrast, the Sixth Circuit held the plaintiff in Akers had not established severe or

pervasive harassment. There, the plaintiff made a complaint for sexual harassment against her

time, the Sixth Circuit has “often relied on Title VII precent to analyze FMLA retaliation

claims.” Slusher v. United States Postal Serv., 731 Fed. App’x 478, 480 n.2 (6th Cir. 2018)

(quoting Hunter v. Valley View Loc. Sch., 579 F.3d 688, 691 (6th Cir. 2009)); see also Bell v.

Prefix, Inc., 321 Fed. App’x 423, 428 n.2 (6th Cir. 2009) (“We often rely on other employment

discrimination law to fill the gaps in our FMLA case law.”).

supervisor and was removed from his supervision. 338 F.3d at 499. Thereafter, the former

supervisor refused to speak to her; instructed employees to ignore her; withheld mail and

memoranda; and criticized her work. Id. at 494, 499. The Sixth Circuit concluded the post-

complaint activity did not establish severe and pervasive harassment because it was short and

relatively mild. Id. at 499. The “simple teasing” or “offhand comments” the plaintiff endured

did not meet the standard of egregiousness established in Morris. Id.

In Broska, which Potoma cited in her opposition, the plaintiff complained of harassment

following a complaint of discrimination. 70 Fed. App’x at 264. The harassment involved

supervisors reviewing his work more intensely and critically. Id. The Sixth Circuit noted the

plaintiff did “not claim he was bothered away from work [] or on his breaks,” nor that “his

supervisors physically intimidated him or subjected him to verbal abuse.” Id. at 270. The

plaintiff acknowledged that “it was the job of his supervisors to physically inspect his manual

work.” Id. Taken together, the Sixth Circuit found these circumstances were not so hostile and

abusive such that they altered the conditions of employment and dismissed the claim. Id.

The harassment Potoma complained of is more like Akers and Broska than Morris.

Potoma’s evidence falls into three general categories: more intense and critical supervision,

offhand comments and isolated incidents, and proposed, but not implemented actions. To start,

Potoma was required to contact Hagan every time she used FMLA leave, rather than follow the

“established, and pre-existing, call-off policy for Hagan’s department.” (Doc. 24 at 827.)

Similarly, Tilow “impose[d] new and unique standards that apply only to Potoma, such as calling

him and the nurse manager when she will be absent.” (Id. at 815–16, 827.) Tilow appointed a

director to surveil Potoma’s attendance, but did not do so for other nurses. (Id. at 815, 827.)

These incidents are like the complaints rejected in Broska, 70 Fed. App’x at 269–70. Potoma

has not denied that it was Hagan and Tilow’s responsibility to monitor her attendance and ensure

coverage for patients. See id.; see also Rinehart v. PNC Bank, N.A., 219 F.Supp. 682, 700–01

(S.D. Ohio 2016) (finding no harassment where supervisor’s conduct was “requiring [p]laintiff to

perform tasks or work times that were within her job duties”).

Next, Potoma cited several comments or isolated incidents as evidence of severe or

pervasive harassment. She highlighted Tilow’s comments about FMLA being a “luxury” and her

colleagues holding a grudge against her. Potoma also cited Tilow and Hagan’s inquiries into her

disabilities’ effect on her job performance as evidence of harassment. Tilow’s comments are the

type of “offhand comments” and “simple teasing” discussed in Akers, 338 F.3d at 499. See also

Faragher, 524 U.S. at 788 (holding the standards of hostility are demanding to “ensure that Title

VII does not become a ‘general civility code’”). Questions about Potoma’s disabilities were

isolated incidents, not a regular occurrence. (See Doc. 25 at ¶ 9 (discussing a single phone call);

see also Doc. 40-19 at 4604 (discussing a single conversation).) Potoma has not shown these

conversations were outside the bounds of her supervisors’ duties. See Bobnar v. AstraZeneca,

672 F.Supp.3d 475, 479–80 (N.D. Ohio 2023) (noting that under EEOC guidance, employers

may ask questions that are “not likely to elicit information about a disability” like “asking an

employee whether he can perform job functions, among other questions”).

Last, Potoma argued several threatened actions constitute harassment. First, she cited

Tilow’s suggestion she be replaced while she was on FMLA leave. (Doc. 24 at 811–12, 827.)

Tilow also threatened to demote her in September 2021. (See Doc. 40-19 at 4604; Doc. 30-1 at

1491–92.) Next, she highlighted the transfer to a less prestigious or challenging triage role. (Id.

at 812–14, 827.) Karchmer also threatened Potoma with a “welfare check” by police and

termination after Hagan accused her of failing to communicate. (Id. at 807–08, 809.) None of

these actions were implemented. Potoma was not replaced. Tilow did not demote her. She was

not transferred. She was not terminated, nor did the police perform a welfare check at her house.

At no point was she disciplined, put on a performance improvement plan, or given a negative

performance evaluation. These threats or warnings are not severe or pervasive harassment. See

Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (finding no adverse employment

action in a threat to transfer positions because “the proposed actions challenged here were never

implemented”).

Unlike Morris, Potoma has not argued anyone physically intimidated or verbally abused

her. Potoma likewise has not shown she was “bothered away from work” or on her breaks.

Looking at the totality of the circumstances, she has not shown she was harassed in retaliation

for invoking her FMLA rights. Instead, Potoma was never denied FMLA leave or formally

disciplined, and she maintained the same position at the same pay with the same benefits.

Potoma has not shown that the conditions of her employment were altered such that she suffered

an adverse employment action. Accordingly, Potoma has not established this element of her

prima facie case of FMLA retaliation.

d. Causal Connection

Even if Potoma was constructively discharged or suffered severe or pervasive

harassment, she has not shown a causal connection between the adverse employment action and

her use of FMLA leave. A plaintiff can establish causation by “proffer[ing] evidence sufficient

to raise the inference that [the] protected activity was likely the reason for the adverse action.”

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007).

Potoma addresses causation and pretext together. (See Doc. 24 at 831 (citing Kirilenko-

Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 668 (6th Cir. 2020) (“The same

evidence can support both a finding of causation for the plaintiff's prima facie case of retaliation

and a finding of pretext.”)).) First, she argued Hagan relied on “false justification” to transfer

Potoma to a triage role, and the real motivating factor was Potoma’s FMLA leave. (Id.) Second,

Potoma emphasized “disparate treatment between Potoma and her similarly situated co-

workers.” (Id. (citing Fischer v. United Parcel Serv., Inc., 390 Fed. App’x 465, 468 (6th Cir.

2010)).) By being asked to adhere to a set schedule, she was treated differently than other

APRNs, who could “set their own schedules according to the needs of their patients,” allowing

them to arrive later or take half-days at their discretion. (Id. at 831–32.) She also argued Hagan

tracked her attendance but did not monitor other nurses in the same manner. (Id. at 832.)

Starting with the transfer to a triage role, Potoma has not proffered evidence sufficient to

raise an inference that her FMLA leave was the likely reason. The letter about the transfer

explicitly references Potoma’s “need to take intermittent leave” and stated her leave was

“starting to affect patient care, disrupting inpatient service and requiring the canceling of

numerous outpatient appointments.” (Doc. 30-2.) However, Dr. Pozuelo testified his motivation

was to “better address the patient care gaps” and find a position that was “feasible for Lydia to

do in the interim that she could still see patients, take care of them, but not in a position where it

would be as disruptive.” (Doc. 31-1 at 1713, 1733.) Hagan testified the transfer was “to address

a need that we had in our department” and they offered the position to other APRNs. (Doc. 35-1

at 2854; see Doc. 31-1 at 1730 (stating the triage position was not created for Potoma).)

Robinson also testified the role “would allow [Potoma] to take better care of herself when she

needed time off [] and [] would lessen the disruption with patient care[.]” (Doc. 36-1 at 3258.)

Once it was clear Potoma did not want to transfer and suspected her FMLA leave played

a role in this decision, Dr. Pozuelo, Robinson, Hagan, and Potoma agreed the transfer would not

occur. At most, this decision shows that once Defendants realized that Potoma’s transfer could

raise an inference of FMLA retaliation, they abandoned the plan. Perhaps if Defendants had

followed through with the transfer, Potoma could establish a causal connection between the

transfer and her intermittent leave. That said, those are not the facts here.

Next, to be similarly situated in this context, the comparators “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.” Morton v. Greater Cleveland Reg’l Transit Auth., No.

23-3660, 2024 WL 2765835, at *5, 2024 U.S. App. LEXIS 13062, at *16 (6th Cir. May 30,

2024) (quoting Russell v. Univ. of Toledo, 537 F.3d 596, 607 (6th Cir. 2008)). This standard

does not require comparators to be “identical in every way” but merely “similarly situated in all

relevant respects.” Id. (citing Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir.

2016)).

Potoma’s four comparators are APRNs supervised by Hagan who she claims could

deviate from a set schedule: Laura Barbee, Dierdre Raimey, Bankpang Obi-Akatchak, and

Laurel Shanley. (See Doc. 24 at 832.) The record reflects that Obi-Akatchak is not similarly

situated in all relevant respects because she was a “consult liaison” who treated patients

throughout “the rest of the hospital.” (Doc. 41-at 4309.) Unlike Potoma, Obi-Akatchak’s work

was not confined to a specific unit, and Obi-Akatchak’s schedule accommodated Dr.

Havemann’s availability. (Id. at 4310.) The record also reflects that Barbee was disciplined for

failure to communicate her absences or failing to work a full or consistent schedule. (Doc. 21-8

at ¶ 10.) Barbee’s discipline for similar conduct undermines Potoma’s argument of disparate

treatment. If anything, Potoma benefited from more flexibility than her peers.

Likewise, Potoma’s comparisons to Raimey and Shanley do not establish disparate

treatment. According to Potoma’s testimony, Laurel Shanley had a mandatory reporting time.

(Doc. 40-1 at 4310–11 (“Q: And were you saying that Laurel Shanley doesn’t have a mandatory

report time? A: Well, she would. She’s outpatient.”).) Raimey “requested a different schedule

due to her family commitments” and coordinated with Hagan regarding her arrival and departure

times. (Doc. 21-8 at ¶ 5.) In contrast, Potoma did not request an accommodation, and did not

coordinate with Hagan about her schedule. (Id. at ¶ 6.) There is insufficient evidence to show

disparate treatment in mandatory schedules based on comparisons to other APRNs.

As for the increased monitoring of Potoma’s attendance, she has shown that Hagan and

Tilow took specific efforts to document her absences in particular. (See Doc. 30-21.) Even so,

Potoma has not shown that any other APRNs engaged in the same conduct as her: failing to

communicate absences, work a full schedule, or attend interdisciplinary huddles. Without this

information, the Court cannot find disparate showing causation.

Because Potoma has not shown that she suffered an adverse employment action, or that

any action was causally connected to her FMLA rights, the Court need not determine whether

CCF has a legitimate nondiscriminatory reason for any action. But, even if she had, her claim

would still be subject to summary judgment for the reasons below.

3. Legitimate Nondiscriminatory Reason

Defendants’ burden at this stage is 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).

Rather, the burden is satisfied if Defendants explain what they have done or “‘produc[e]

evidence of legitimate nondiscriminatory reasons.’” Burdine, 450 U.S. at 256 (quoting Bd. of

Trs. of Keene St. Coll. v. Sweeney, 439 U.S. 24, 25, n.2 (1978)). Simply stated, Defendants

“need not prove a nondiscriminatory reason for [their decision] but need merely to articulate a

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

Defendants argue Potoma’s “refusal to follow the Clinic’s FMLA policy, embrace the

multidisciplinary model of patient care, communicate regarding her absences, and follow the

expectations for APRNs” justified monitoring Potoma’s attendance and scrutinizing her

performance. (Doc. 29 at 1344.) Hagan’s concerns about Potoma’s performance and attendance

are well documented. (See Doc. 21 at 187–88; see also Doc. 40-1 at 435; Doc. 35-25

(performance evaluation showing poor and fair marks in certain areas).) Some of Hagan’s

concerns predated her knowledge that Potoma used FMLA leave. (Doc. 31 at 204–05.) Thus,

Defendants have sufficiently stated a nondiscriminatory reason for any adverse employment

action Potoma experienced. See Bashaw v. Majestic Care of Whitehall, No. 24-3292, 2025 WL

700169, at *5, 2025 U.S. App. LEXIS 5130, at *1 (6th Cir. Mar. 5, 2025) (“Unauthorized

absences from work are a valid reason for termination.”) (citations omitted); Imwalle, 515 F.3d

at 546 (“Poor performance is a legitimate, nondiscriminatory reason.”).

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

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 took an adverse

employment action. Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting

Chen v. Down Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).

As noted above, Potoma relies on the same evidence to establish both causation and

pretext. (See Doc. 24 at 831.) Potoma has not shown Defendants lacked support for the few

actions they did take to address performance, communication, and attendance issues. A jury

could not reasonably reject Defendants’ explanation that supervisors discussed Potoma’s

attendance and communication out of concern for meeting CCF’s standards for patient care. As

such, Potoma has not shown Defendants’ legitimate nondiscriminatory reason was pretextual.

B. Disability Retaliation

The ADA provides, in relevant part, that “[n]o covered entity shall discriminate against a

qualified individual with a disability because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of employment.” Talley

v. Fam. Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008) (quoting 42 U.S.C. §

12112(a)). Ohio’s state discrimination laws are similar to the ADA. See City of Columbus Civ.

Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206 (Ohio 1998) (“The federal Americans with

Disabilities Act (ADA) is similar to the Ohio handicap discrimination law.”). Accordingly, the

Sixth Circuit has held “analysis of claims made pursuant to the Americans with Disability Act

applies to claims made pursuant to the Ohio Revised Code § 4122.02[.]” Jakubowski v. Christ

Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010). Therefore, the Court will discuss Potoma’s ADA

and state law claims together for counts two, three, four, and five.

1. Direct Evidence

As with her claim of FMLA retaliation, Potoma argued she has shown direct evidence of

disability retaliation. (Doc. 24 at 826–28.) Her arguments in support of her disability retaliation

claim suffer from the same deficiencies as her FMLA retaliation claim. The examples of direct

evidence Potoma cites do not reference her disabilities or any activity protected by the ADA.

See Hughes v. Henry Ford Health Sys., No. 17-10436, 2018 WL 3956362, at *6, 2018 U.S. Dist.

LEXIS 139596, at *17 (E.D. Mich. Aug. 17, 2018) (holding plaintiff lacked direct evidence of

disability retaliation where none of the supposed evidence references plaintiff’s disabilities).

Therefore, Potoma’s claim must proceed under the McDonnell Douglas burden shifting

framework.

2. Indirect Evidence

a. Prima Facie Case of Disability Retaliation

The elements of a prima facie case for disability retaliation are similar to the elements of

an FMLA retaliation claim. Potoma must show: “(1) she engaged in protected activity under the

ADA, (2) her employer was aware of that activity, (3) she suffered an adverse employment

action, and (4) a ‘causal connection’ existed between the protected activity and the adverse

action.” Williams, 847 F.3d at 396 (citing Rorrer, 743 F.3d at 1046).

The parties do not dispute that Potoma engaged in a protected activity under the ADA

and that CCF knew of that activity. As with her FMLA retaliation claim, the parties dispute

whether Potoma suffered an adverse employment action and whether that action was causally

connected to her ADA rights. (See Doc. 29 at 1342.)

b. Adverse Employment Action

For the same reasons Potoma failed to demonstrate that she was constructively

discharged for her FMLA retaliation claim, Potoma has failed to show she suffered an adverse

employment action for her disability retaliation claim. “The ADA does not prohibit all verbal or

physical harassment in the workplace” but is instead “directed only at discrimination because of

a disability.” Johnson v. City of Mason, 101 F. Supp. 2d 566, 576–77 (S.D. Ohio 2000) (citing

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). When a plaintiff complains

of incidents of immature behavior, personality conflicts, and favoritism that are not necessarily

related to the plaintiff’s disabilities, the Court cannot find constructive discharge to support a

claim of disability retaliation. See id. Here Potoma has not shown that any of the incidents that

purportedly made her work environment intolerable were related to her disabilities. For this

reason, and those discussed above, she has not shown that she was constructively discharged or

faced any other adverse employment action.

For her claim that severe or pervasive harassment constitutes an adverse employment

action, Potoma has not cited an authority that permits the Court to apply language from a Title

VII hostile work environment claim to a disability retaliation claim. Instead, the Sixth Circuit

has held it has “no license” to import tests from Title VII into the ADA. Lewis v. Humboldt

Acquisition Corp., Inc., 681 F.3d 312, 317 (6th Cir. 2012). Accordingly, the Court will not

consider whether Potoma has shown severe or pervasive harassment constituted an adverse

employment action for her disability retaliation claim.

c. Causal Connection

As with her FMLA retaliation claim, Potoma attempts to show causation through

disparate treatment. However, she has not established that the nurses to which she compares

herself were not disabled. See Hoffman v. O’Malley, 849 Fed. App’x 535, 539 (6th Cir. 2021)

(affirming grant of summary judgment of an ADA discrimination claim because the plaintiff

“failed to present to the district court evidence on the disability status of any of the employees

she alleged were treated more favorably than her”). Potoma has not met her burden with respect

to two elements of her prima facie case.

d. Legitimate Nondiscriminatory Reason and Pretext

Even if Potoma had carried her burden of establishing a prima facie case, her claim

would still fail at the remaining steps of the McDonnell Douglas framework. As with her FMLA

retaliation claim, Defendants have shown there was a legitimate nondiscriminatory reason for the

actions it took to address Potoma’s performance, communication, and attendance issues. (See

Doc. 29 at 1344.) Likewise, she has not shown that a jury could reasonably reject Defendants’

concern for patient care as the reason for the limited steps they did take.

C. Disability Discrimination

In her opposition, Potoma clarifies her disability discrimination claim is based on a

disparate treatment theory. (Doc. 24 at 825.) To state a prima facie case of disability

discrimination, Potoma must demonstrate: “(1) she has a disability, (2) she is ‘otherwise

qualified for the position, with or without reasonable accommodation,’ (3) she ‘suffered an

adverse employment decision,’ (4) her employer ‘knew or had reason to know’ of her disability,

and (5) she was replaced or her position remained open.” Williams, 847 F.3d at 395. The parties

do not dispute that Potoma has a disability, is otherwise qualified for her position, and CCF knew

of her disability. As such, the only elements in dispute are whether Potoma suffered an adverse

employment action and whether she was replaced or her position remained open.

1. Adverse Employment Action

As with her FMLA and ADA retaliation claims, Potoma has not shown she suffered an

adverse employment action.

2. Replacement

Even if Potoma had suffered an adverse employment action, she has not met her burden

with respect to her prima facie case of disability discrimination. When an employee was not

terminated, a plaintiff can establish the fifth element of his or her prima facie case of disability

discrimination by showing “similarly situated non-protected employees were treated more

favorably.” Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007). As discussed with respect to

causation and disparate treatment, Potoma’s comparisons to other nurses fail to show that they

were similarly situated, non-protected, or treated more favorably.

IV. CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary Judgment (Doc. 21) is

GRANTED in its entirety.

IT IS SO ORDERED.

of

Date: March 28, 2025 BRIDGET MEEHAN-BRENNAN

UNITED STATES DISTRICT JUDGE

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