Dayton, Ohio - Disability Discrimination and FMLA lawyer represented Plaintiff-Appellant with appealing a summary judgment on her disability discrimination and FMLA claims.

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-Ohio2767, ¶ 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 DaytonWalther 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 flareup 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.

Brentlinger’s assignment of error having been overruled, the judgment of

the trial court is affirmed