Brentlinger v. Winsupply, Inc.

[Cite as Brentlinger v. Winsupply, Inc., 2022-Ohio-1779.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
HOPE BRENTLINGER :
:
Plaintiff-Appellant : Appellate Case No. 29283
:
v. : Trial Court Case No. 2020-CV-1611
:
WINSUPPLY, INC. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 27th day of May, 2022.
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DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 West Second Street, Suite 2101,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
MARY E. LENTZ, Atty. Reg. No. 0043985 & MARTIN A. FOOS, Atty. Reg. No. 0065762,
109 North Main Street, Suite 500, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
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LEWIS, J.
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{¶ 1} Plaintiff-Appellant Hope Brentlinger (“Brentlinger”) appeals from the trial
court’s order granting summary judgment to Defendant-Appellee Winsupply, Inc.
(“Winsupply”) on her disability discrimination and Family and Medical Leave Act (“FMLA”)
interference claims.
I. Facts and Course of Proceedings
{¶ 2} Brentlinger was diagnosed with Crohn’s Disease around 2004 or 2006.
December 10, 2020 Deposition of Hope Brentlinger (“Brentlinger Depo.”), p. 60. At the
time of her diagnosis, Brentlinger was working for a company called Dempsey. She
applied for and was approved for FMLA leave in order to allow her to undergo a resection
due to her Crohn’s disease. Id. at 64. During her nine years at Dempsey, Brentlinger
had worked in the payroll and human resources departments. Part of her job
responsibilities included providing FMLA paperwork to any employees who were
requesting FMLA leave. If any employees missed work for three or more consecutive
days at Dempsey and had not yet requested FMLA paperwork, Brentlinger would seek
out the employees and get the paperwork to them. Id. at 22-28. She left her
employment at Dempsey in 2010. Id. at 22-23.
{¶ 3} Brentlinger then worked approximately for four years at Millat Industries in
the payroll and human resources department. Id. at 15-16. As part of her duties,
Brentlinger handled all of the FMLA paperwork but did not make the decision as to
whether the FMLA leave was granted or denied. Id. at 17-18.
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{¶ 4} In October 2016, Brentlinger began her employment at Winsupply as a
payroll administrator. Annette Turner hired Brentlinger and was her supervisor at
Winsupply. Id. at 44-45. Brentlinger’s co-workers, including Turner, were aware that
she had been diagnosed with Crohn’s disease. Id. at 60. According to Brentlinger, she
was sick every day in 2019 with “flare-ups” due to Crohn’s disease. Id. at 113. Despite
this, she did not request any accommodations at work to help with the flare-ups. Id. at
119. Moreover, she did not miss more than two consecutive days because of a Crohn’s
flare-up. Id. at 158-59. Rather, Brentlinger was able to work through her flare-ups. Id.
at 159. She did, however, attribute most of her tardy arrivals and missed days of work
in 2019 to her Crohn’s disease flare-ups. Id. at 94.
{¶ 5} Brentlinger had a May 20, 2019 appointment with Dr. Barde, her Crohn’s
disease specialist, who informed her that he wanted her to begin a treatment soon on
Humira, if the treatment was approved by her health insurance. Id. at 74. Brentlinger
had a follow-up appointment with Dr. Barde scheduled for June 10, 2019. She requested
FMLA paperwork from her co-worker, Heather Bosron, at least two times before this
appointment. Id. at 73-76. Further, Brentlinger testified that she spoke with her
supervisor, Turner, between May 20 and June 10, 2019, about possibly needing to
request FMLA leave in case there were side effects from using Humira. Id. at 72-73, 77-
78. Turner did not recall any such conversation. April 19, 2021 Deposition of Annette
Turner, p. 18-19.
{¶ 6} Brentlinger did not feel well on June 10, 2019, and rescheduled her doctor’s
appointment to June 17, 2019. Brentlinger Depo., p. 136. On the morning of June 12,
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2019, she sent a text message to Turner letting her know that she would be arriving late
to work due to some car troubles. Id. at 150. Turner texted Brentlinger to call her.
During their subsequent telephone conversation, Turner informed Brentlinger that she
was being terminated from employment due to excessive absences and payroll errors.
Id. at 151-52.
{¶ 7} On April 2, 2020, Brentlinger commenced an action against Winsupply
alleging that Winsupply had improperly interfered with her FMLA leave and that
Winsupply had discriminated against her based on her disability. On March 19, 2021,
Winsupply filed a motion for summary judgment, contending that Brentlinger had failed to
show that she was incapacitated from a serious medical condition under the FMLA and
that she had a disability under Ohio law.
{¶ 8} On September 23, 2021, the trial court granted Winsupply’s motion for
summary judgment and dismissed the two claims. According to the trial court,
Brentlinger had failed to establish that she was entitled to FMLA leave. In particular, the
trial court concluded that she had failed to create a genuine issue of material fact
regarding whether she was incapacitated within the meaning of the FMLA due to a chronic
serious health condition. Regarding the disability discrimination claim, the trial court
found that Brentlinger had not established a genuine issue of material fact that she was
disabled, that Winsupply fired her due to a disability, and that despite her disability she
could still safely perform the essential functions of her job.1 September 23, 2021 Order,
1
Brentlinger does not raise any assignments of error on appeal regarding the dismissal
of her disability discrimination claim. Therefore, we will not address the trial court’s
denial of Brentlinger’s disability discrimination claim in this Opinion.
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p. 9, 12.
{¶ 9} Brentlinger filed a timely notice of appeal from the trial court’s grant of
summary judgment to Winsupply.
II. The Trial Court Did Not Err In Granting Winsupply’s Motion for Summary
Judgment
{¶ 10} Brentlinger’s sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT RULED THAT APPELLANT COULD
NOT ASSERT A FMLA INTERFERENCE CLAIM.
{¶ 11} Pursuant to Civ.R. 56, summary judgment is proper where: (1) a case
presents no genuine dispute as to any material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) construing the evidence most strongly in favor of the
non-moving party, reasonable minds can reach only one conclusion, which is adverse to
the non-moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375
N.E.2d 46 (1978). The substantive law of the claim or claims being litigated determines
whether a fact is “material.” Herres v. Millwood Homeowners Assn., Inc., 2d Dist.
Montgomery No. 23552, 2010-Ohio-3533, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs.,
Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
{¶ 12} Initially, the movant bears the burden of establishing the absence of any
genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798 (1988). The movant may rely on evidence of the kinds listed in Civ.R. 56(C) for this
purpose. Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-
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3197, ¶ 5, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If
the movant meets its burden, then the non-moving party bears a reciprocal burden to
establish, as set forth in Civ.R. 56(E), that the case presents one or more genuine issues
of material fact to be tried. Id. at ¶ 6. Like the movant, the non-moving party may not
rely merely upon the allegations or denials offered in the pleadings but must be able to
present evidentiary materials of the types listed in Civ.R. 56(C). Dresher at 293. On
appeal, a trial court’s ruling on a motion for summary judgment is reviewed de novo.
Dalzell at ¶ 6, citing Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-
2767, ¶ 42.
{¶ 13} The FMLA entitles an eligible employee to 12 work weeks of unpaid leave
during any 12-month period for a serious health condition that causes the employee to be
unable to perform her job responsibilities and functions. 29 U.S.C. 2612(a)(1)(D). The
FMLA prohibits an employer from interfering with, restraining, or denying an employee’s
exercise of the employee’s rights under the act. 29 U.S.C. 2615(a)(1).
{¶ 14} To prevail on an FMLA interference claim, a plaintiff must establish that (1)
she is an eligible employee; (2) the defendant is an employer; (3) the employee was
entitled to leave under the FMLA; (4) the employee gave the employer notice of her
intention to take leave; and (5) the employer denied the employee FMLA benefits to which
she was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003).
The trial court based its summary judgment decision on Brentlinger’s failure to establish
a genuine issue of material fact as to whether she was entitled to leave under the FMLA.
{¶ 15} In order to be entitled to benefits under the FMLA, a plaintiff must establish
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“the objective existence of a serious health condition.” Jarvis v. Gerstenslager Co., 9th
Dist. Wayne Nos. 02CA47, 02CA48, 2003-Ohio-3165, citing Bauer v. Varity Dayton-
Walther Corp., 118 F.3d 1109 (6th Cir.1997). A “serious health condition” is defined as
“an illness, injury, impairment, or physical or mental condition that involves” either
inpatient care in a medical care facility or “continuing treatment by a health care provider.”
29 U.S.C. 2611(11). Pursuant to 29 C.F.R. 825.115, a serious health condition involving
continuing treatment by a health care provider includes one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than three
consecutive, full calendar days, and any subsequent treatment or period of
incapacity relating to the same condition * * *:
***
(c) Chronic conditions. Any period of incapacity or treatment for such
incapacity due to a chronic serious health condition. A chronic serious
health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment
by a health care provider, or by a nurse under direct supervision of a health
care provider;
(2) Continues over an extended period of time (including recurring episodes
of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g.,
asthma, diabetes, epilepsy, etc.).
***
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{¶ 16} The trial court found that Brentlinger had failed to create a genuine issue of
material fact that she was incapacitated within the meaning of the FMLA due to a chronic
serious health condition. “The term incapacity means inability to work, attend school or
perform other regular daily activities due to the serious health condition, treatment
therefore, or recovery therefrom.” 29 C.F.R. 825.113(b). In its September 23, 2021
Order (p. 8-9), the trial court stated, in part:
Brentlinger claims to have Crohn’s disease and in her deposition
testimony she states that she also has fibromyalgia, a pseudotumor,
alcoholism, and depression. The existence of her medical conditions are
not in dispute. The issue is whether Brentlinger was incapacitated within
the meaning of the statute due to a chronic serious health condition.
Brentlinger has provided no evidence other than her own testimony to show
she was incapacitated. She has not provided any affidavits or testimony
from medical professionals regarding her conditions and whether her
conditions required her to miss work. She never even asked her physician
for a statement regarding her need to miss work. She has not produced
an expert report or deposed any experts regarding her conditions and the
need for time off from work. Additionally, she testified that she was able to
work through her Crohn’s flare-ups. Brentlinger cannot rely solely on her
unsupported testimony to establish the fact she was incapacitated. To
prevail on a claim of FMLA interference, she must show that she was
incapacitated due to a chronic serious health condition and she cannot do
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so.
{¶ 17} Brentlinger concedes in her appellate brief that she “needed to provide proof
of a healthcare provider that her Crohn’s disease was a serious health condition that
required periodic visits with a medical provider.” Brentlinger Appellate Brief, p. 8. She
did not do so. But she contends that “[a]ll of this information would have been included
and provided by her physician on the FMLA certification paperwork she repeatedly sought
from” Bosron. Id. at 8-9. In short, Brentlinger argues that Winsupply’s failure to provide
FMLA paperwork to her prevented her from getting the necessary information from her
medical provider to establish her entitlement under the FMLA. Winsupply responds that
the trial court’s judgment was correct because Brentlinger “has produced no medical
records, medical certification, expert or expert report or affidavit showing that she was
suffering from a serious medical condition or unable to work.” Winsupply Appellate Brief,
p. 9.
{¶ 18} Typically, “ ‘a plaintiff’s own testimony, standing alone, is insufficient to
prove incapacity under the FMLA, and * * * a plaintiff’s own assertions regarding the
severity of her medical condition are insufficient to establish a serious health condition.’ ”
(Emphasis sic.) Barger v. Jackson, Tennessee Hosp. Co., LLC, 92 F.Supp.3d 754, 764-
65 (W.D. Tenn.2015), quoting Hyldahl v. Michigan Bell Tel. Co., 503 Fed.Appx. 432, 439
(6th Cir.2012). See also Reinwald v. Huntington Natl. Bank, 684 F.Supp.2d 975, 982
(S.D. Ohio 2010) (holding that competent medical evidence would be required to establish
that the pain plaintiff suffered as a result of the Lupron injection was sufficiently severe to
render her unable to work). Further, “ ‘[t]he possibility that a person can work removes
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FMLA protection.’ ” Jarvis, 9th Dist. Wayne Nos. 02CA47, 02CA48, 2003-Ohio-3165, at
¶ 24, quoting Cole v. Sisters of Charity of the Incarnate Word, 79 F.Supp.2d 668, 672
(E.D.Texas1999). And whether an employee can perform other regular daily activities
may be relevant to a determination of whether she is incapacitated. Id. at ¶ 24.
{¶ 19} Brentlinger testified that she never missed more than three consecutive
days from work. Brentlinger Deposition, p. 62-63. Further, she admitted that she had
not been receiving any medical treatment for Crohn’s disease since her last doctor’s
appointment in 2019, and that she had never pursued the Humira treatment beyond one
injection. Id. at 112-113, 125, 132. Brentlinger stated that the worst of the flare-ups of
her Crohn’s disease had happened in the beginning of 2019. Id. at 113. But she
conceded that she never missed more than two consecutive days of work due to a flare-
up and that she typically had been able to work while having a flare-up. Id. at 158-59.
Brentlinger did testify that Dr. Barde told her prior to her scheduled June 10, 2019
appointment that he would fill out the FMLA forms. Id. at 80. However, she never
submitted anything to the trial court from Dr. Barde stating that she suffered from a serious
medical condition or was incapacitated from working due to that condition.
{¶ 20} Based on a review of the record before us, we believe the trial court correctly
found that Winsupply met its initial burden to show that there was an absence of a genuine
issue of material fact regarding whether Brentlinger was entitled to FMLA leave and that
Brentlinger failed to come forth with the necessary medical evidence to satisfy her
reciprocal burden on summary judgment. Consequently, Brentlinger’s sole assignment
of error is overruled.
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III. Conclusion
{¶ 21} Brentlinger’s assignment of error having been overruled, the judgment of
the trial court is affirmed.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
David M. Duwel
Mary E. Lentz
Martin A. Foos
Hon. Susan D. Solle