[Cite as Geter v. Dept. of Rehab. & Corr., 2018-Ohio-4148.]

{¶1} On July 19, 2018, defendant filed a motion for summary judgment pursuant 

to Civ.R. 56(B). With leave of court, plaintiff filed a response in opposition on August 

16, 2018. On August 23, 2018, defendant filed a motion for leave to file a reply, which 

was filed on August 30, 2018. Upon review, defendant’s motion for leave to file a reply 

is GRANTED. The motion for summary judgment is now before the court for a non-oral 

hearing pursuant to L.C.C.R. 4(D). 

{¶2} Civ.R. 56(C) states, in part, as follows: 

{¶3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

GERALD L. GETER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2016-00642JD 

Judge Patrick M. McGrath 

Magistrate Holly True Shaver 

DECISION 
Case No. 2016-00642JD -2- DECISION 

{¶4} In 1995, plaintiff began his employment as a Corrections Officer (CO) for 

defendant at the Ohio Reformatory for Women (ORW). Plaintiff was a member of a 

collective bargaining unit. Defendant has two disciplinary tracks: performance and 

attendance. On December 11, 2014, plaintiff entered into a two-year Last Chance 

Agreement (LCA) as a result of multiple attendance policy violations, which took place 

between 2010 and 2014. The LCA stated that plaintiff would be subject to removal for 

“any and all future violations of the Standards of Employee Code of Conduct 

Attendance-Based Standards Track.” (Exhibit 5 to plaintiff’s December 19, 2016 

deposition.) 

{¶5} Plaintiff suffers from diabetes, bi-polar disorder, insomnia, and high blood 

pressure. Plaintiff takes medication for his conditions, one of which is Seroquel, a sleep 

aid. On October 23, 2015, plaintiff worked first shift as scheduled and completed his 

shift at approximately 2:30 p.m. Later that day, plaintiff was called for a voluntary 

overtime shift. After first shift, plaintiff had taken a low dose of Seroquel in an attempt to 

get some sleep. According to plaintiff, if he had refused the overtime shift, he would 

have violated his LCA. Plaintiff reported to work for third shift and was assigned to 

perimeter patrol, during which time his duties included driving a vehicle around the 

perimeter of ORW to look for any suspicious activity. Two COs are assigned to 

perimeter patrol during a shift. Plaintiff was issued a handgun which was secured in a 

holster on his person, and a shotgun secured in the trunk of his vehicle. During third 

shift, the other CO who was also assigned to perimeter patrol reported to the shift office 

that she had not seen plaintiff’s vehicle making security rounds for twenty minutes. 

After searching for his vehicle, Lieutenants David Rispress and Laura Perna found 

plaintiff’s vehicle parked on a gravel road with the lights off and the engine idling. When 

they approached his vehicle, they found plaintiff asleep. After observing plaintiff for 

approximately five minutes, Lt. Perna knocked on the car window and woke him up. 

Plaintiff was removed from his post and was told to report to the Captain’s office. 
Case No. 2016-00642JD -3- DECISION 

Plaintiff was then told to visit the infirmary for a medical examination. Defendant asserts 

that plaintiff was ordered to report to a different post within the building for the 

remainder of his shift. Plaintiff asserts that he was given the choice of either reporting 

to the other post or going home. After visiting the infirmary, plaintiff left the institution. 

{¶6} Plaintiff was issued two notices of termination on two separate bases: 

(1) sleeping in a perimeter vehicle while on duty, a performance violation, and 

(2) leaving the institution without permission, an attendance violation and a violation of 

his LCA. After an investigation and a hearing, plaintiff’s employment was terminated on 

January 19, 2016. 

{¶7} Plaintiff asserts that once he began taking intermittent Family and Medical 

Leave Act (FMLA) leave for his disabilities, he was targeted for removal and harassed. 

For example, plaintiff asserts that Roger Keller, a human resources employee, revoked 

his FMLA leave after it had been granted for a hospitalization that occurred in August 

2015. In addition, plaintiff asserts that Keller called him a “lazy piece of shit” and a 

“motherfucker” when he provided him with FMLA paperwork, and that Keller kept a “hit 

list” of employees who were on FMLA leave in the scheduling office. Plaintiff argues 

that the reasons given for his termination were a pretext for disability discrimination 

because he was not sleeping, but, rather, he “passed out” as a result of a diabetic 

episode and taking Seroquel to treat his bi-polar disorder. Defendant asserts that it is 

entitled to summary judgment on all of plaintiff’s claims. 

Disability Discrimination 

{¶8} R.C. 4112.02 provides, in pertinent part, that: “It shall be an 

unlawful discriminatory practice: (A) For any employer, because of the * * * disability 

* * * of any person, to discharge without just cause, to refuse to hire, or otherwise to 

discriminate against that person with respect to hire, tenure, terms, conditions, or 

privileges of employment, or any matter directly or indirectly related to 

employment.” In Ohio, “federal case law interpreting Title VII of the Civil Rights Act of 
Case No. 2016-00642JD -4- DECISION 

1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases 

involving alleged violations of R.C. Chapter 4112.” Plumbers & Steamfitters Joint 

Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981). To 

prevail in an employment discrimination case, a plaintiff must prove discriminatory intent 

and may establish such intent through either direct or indirect methods of proof. Ricker 

v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998), citing Mauzy v. 

Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996). In the absence of the direct method 

of proof of discrimination, a plaintiff may indirectly demonstrate discriminatory intent 

using the analysis provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

{¶9} To establish a prima facie case of discriminatory discharge, a plaintiff must 

show that: (1) he is disabled, (2) he was otherwise qualified for the position, with or 

without reasonable accommodation, (3) he suffered an adverse action, (4) the employer 

knew or had reason to know of his disability, and (5) he was replaced or the job 

remained open.” Hartman v. Ohio DOT, 10th Dist. Franklin No. 16AP-222, 2016-Ohio5208, ¶ 18, citing Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th 

Cir.2012). As stated in Hartman, supra, the elements of a prima facie case can vary 

based on the circumstances of the case. See Demyanovich v. Cadon Plating & 

Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir.2014) (stating the elements as “(1) he is 

disabled, (2) he is otherwise qualified to perform the essential functions of a position, 

with or without accommodation, and (3) he suffered an adverse employment action 

because of his disability.”) 

{¶10} Defendant concedes for purposes of argument only, that plaintiff has stated 

a prima facie case of disability discrimination. “If the plaintiff establishes a prima facie 

case, then the burden of production shifts to the employer to present evidence of ‘a 

legitimate, nondiscriminatory reason’ for the employer’s rejection of the employee.” 

Williams v. City of Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 12. Defendant has 

produced evidence to show that plaintiff had been issued an LCA for attendance issues 
Case No. 2016-00642JD -5- DECISION 

at the time of his termination, and that one reason he was terminated was for leaving 

the institution without permission after he was examined at the infirmary. Defendant 

has also provided evidence to show that plaintiff was found sleeping in his perimeter 

vehicle. Part of the investigation of that incident included interviews, witness 

statements, and a hearing. Thus, even construing the evidence most strongly in 

plaintiff’s favor, the court finds that defendant has met its burden of production that it 

had legitimate, nondiscriminatory reasons to terminate plaintiff’s employment. 

{¶11} “If the employer meets its burden of production, ‘the plaintiff must then 

have an opportunity to prove by a preponderance of the evidence that the legitimate 

reasons offered by the defendant were not its true reasons, but were a pretext for 

discrimination.’” Id. at ¶ 14, quoting Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 

248, 253 (1981). “To establish pretext, a plaintiff must demonstrate that the proffered 

reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged 

conduct, or (3) was insufficient to warrant the challenged conduct. Dews v. A.B. Dick 

Co., 231 F.3d 1016, 1021 (6th Cir.2000). Regardless of which option is chosen, the 

plaintiff must produce sufficient evidence from which the trier of fact could reasonably 

reject the employer’s explanation and infer that the employer intentionally discriminated 

against him. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003). A reason 

cannot be proved to be a pretext for discrimination unless it is shown both that the 

reason was false, and that discrimination was the real reason. St. Mary’s Honor Ctr. v. 

Hicks, 509 U.S. 502, 515 (1993).” Knepper v. Ohio State Univ., 10th Dist. Franklin No. 

10AP-1155, 2011-Ohio-6054, ¶ 12. “The ultimate burden of persuading the trier of fact 

that the defendant intentionally discriminated against the plaintiff remains at all times 

with the plaintiff.” Burdine, supra, at 253. 

{¶12} Regarding whether the proffered reason for plaintiff’s termination had no 

basis in fact, plaintiff asserts that he was given the option to either return to a different 

post or go home after his medical evaluation, thus, he was not absent without leave. 
Case No. 2016-00642JD -6- DECISION 

Plaintiff also argues that he “passed out” because of either his disabilities or the 

medication he takes, so he was not sleeping. Essentially, plaintiff disputes the facts as 

found during defendant’s investigation. However, plaintiff must “provide more than a 

simple denial of the conduct giving rise to the discharge.” Wigglesworth v. Mettler 

Toledo Int’l. Inc., 10th Dist. Franklin No. 09AP-411, 2010-Ohio-1019, ¶ 19. In addition, 

a “bare assertion” that defendant’s reasons have no basis in fact “fails to create a 

genuine issue of material fact” for summary judgment purposes. Hall v. Ohio State 

Univ. College of Humanities, 10th Dist. Franklin No. 11AP-1068, 2012-Ohio-5036, ¶ 36. 

Accordingly, plaintiff has not presented evidence from which the court can infer that the 

proffered reason for his termination had no basis in fact. 

{¶13} Plaintiff asserts that defendant’s stated reasons for terminating his 

employment were insufficient because plaintiff asserts that he had permission to leave 

the institution after he went to the infirmary, and that no one gets fired for sleeping on 

the job. To support his arguments, plaintiff asserts that Lt. Rispress lied when he stated 

that plaintiff did not have permission to go home. Plaintiff also mentions names of other 

employees who have fallen asleep on the job but have not been disciplined. However, 

the disciplinary grid for performance track violations specifically states that the first 

offense of sleeping on duty may result in either a two-day fine, suspension or working 

suspension, or a removal. (See Exhibit 1 to plaintiff’s December 19, 2016 deposition, 

Bates Nos. ORW 002417, ORW 002414.) Therefore, even construing the evidence 

most strongly in favor of plaintiff, and even if Lt. Rispress was mistaken when he stated 

that plaintiff had left the institution without permission, the only reasonable conclusion is 

that plaintiff’s conduct, by falling asleep in the perimeter vehicle, warranted his 

termination. Moreover, “[s]o long as the employee’s misconduct is related to the 

performance of [his] job, an employer may discipline or terminate the employee even if 

[his] misconduct was caused by [his] disability.” Sper v. Judson Care Ctr. Inc., 29 

F.Supp.3d 1102, 1110 (S.D. Ohio 2014). Accordingly, the court finds that plaintiff has 
Case No. 2016-00642JD -7- DECISION 

failed to produce sufficient evidence from which the court can reasonably reject the 

employer’s explanation and infer that the employer intentionally discriminated against 

plaintiff. 

{¶14} Lastly, plaintiff asserts that the proffered reasons for his termination did not 

actually motivate defendant’s conduct, because Keller had a discriminatory animus 

toward him for using FMLA leave for his disabilities. Plaintiff points to Keller’s remarks 

of calling him a “motherfucker” and a “lazy piece of shit.” Despite these alleged 

comments, Keller testified that he was not a decision-maker in plaintiff’s termination. In 

addition, defendant filed the affidavit of Ronette Burkes, who avers, in part: 

{¶15} “2. I am employed by Defendant as the Warden at the Ohio Reformatory 

for Women (ORW). I have held this position since November 2013. In this role, I am the 

appointing authority and responsible for making all employee hiring and discipline 

decisions, including termination. 

{¶16} “3. In December 2015, I issued two notices of termination to Gerald Geter, 

a correctional officer at the time. He had engaged in two separate and distinct rule 

violations and termination was warranted under either one independently. One basis for 

termination was his violation Employee Conduct Rule 10: Sleeping on duty. Two 

supervisors observed him sleeping in the perimeter vehicle. This is a performance track 

infraction and termination was warranted because of the severity of the situation. A 

separate and independent basis for termination was violation of Rule 3G: Leaving the 

work area/post/facility without the permission of a supervisor. He was on a last chance 

agreement and this attendance track infraction violated that agreement. Attached 

hereto as Exhibit A are true and accurate copies of the Notices that were issued to 

Mr. Geter. 

{¶17} “4. These two incidents were investigated by Captain Josette Okereke and 

she recommended further action. Roger Keller was not involved in the investigation and 

I did not consult or speak with him about this matter when making my decision to issue 
Case No. 2016-00642JD -8- DECISION 

the two notices of termination. My decision was not based on any disability that 

Mr. Geter may have, or his need to take FMLA leave.” (Emphasis added.) 

{¶18} Construing the evidence most strongly in plaintiff’s favor, the only 

reasonable conclusion is that defendant’s stated reasons for terminating plaintiff were 

not pretextual. Accordingly, defendant is entitled to summary judgment on plaintiff’s 

claim of disability discrimination. 

FMLA

{¶19} The FMLA makes it “unlawful for any employer to interfere with, restrain, or 

deny the exercise of or the attempt to exercise, any right provided under this 

subchapter.” 29 U.S.C. 2615(a). Two distinct theories of recovery arise under these 

statutes: the “interference” theory, and the “retaliation” theory. See Arban v. West 

Publishing Corp., 345 F.3d 390, 400-401 (6th Cir. 2003.) 

{¶20} For an interference claim, a plaintiff must establish that: “(1) he was an 

eligible employee, (2) defendant was a covered employer, (3) he was entitled to leave 

under the FMLA, (4) he gave defendant notice of his intent to take leave, and (5) the 

defendant denied him FMLA benefits or interfered with FMLA rights to which he was 

entitled.” Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 482 (6th 

Cir. 2010). The employer’s intent is not a relevant part of the interference inquiry. 

Arban, at 401. However, “interference with an employee’s FMLA rights does not 

constitute a violation if the employer has a legitimate reason unrelated to the exercise of 

FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Prods., 443 F.3d 

501, 508 (6th Cir.2006). 

{¶21} Plaintiff asserts that Keller “revoked” his request for FMLA leave after it had 

been approved for a hospitalization that occurred in August 2015. Exhibit F to plaintiff’s 

May 21, 2018 deposition is a notice, dated September 15, 2015, from Keller which 

sought “sufficient certification” to support his request for FMLA leave beginning on 

August 27, 2015. Once that paperwork was received, plaintiff’s FMLA leave was 
Case No. 2016-00642JD -9- DECISION 

granted. (Defendant’s Ex. I.) Defendant points to its Exhibits G, H, I, and J to show that 

every time that plaintiff requested FMLA leave and filled out the certification forms 

correctly, he was granted leave. Construing the evidence most strongly in plaintiff’s 

favor, the only reasonable conclusion is that defendant did not deny plaintiff his FMLA 

benefits or interfere with his FMLA rights. Accordingly, plaintiff’s FMLA interference 

claim fails as a matter of law. 

{¶22} Under the retaliation theory “the employer’s motive is relevant, and the 

issue is whether the employer took the adverse action because of a prohibited reason 

or for a legitimate nondiscriminatory reason.” Hodgens v. Gen. Dynamics Corp., 144 

F.3d 151, 160 (1st Cir.1998.) The court applies the burden-shifting test articulated in 

McDonnell Douglas, supra, to retaliation claims under the FMLA. Skrjanc v. Great 

Lakes Power Serv. Co., 272 F.3d 309, 315-16 (6th Cir.2001.) Plaintiff can establish a 

prima facie case of FMLA retaliation by showing that (1) he availed himself of a 

protected right under the FMLA by notifying defendant of his intent to take leave, (2) he 

suffered an adverse employment action, and (3) that there was a causal connection 

between the exercise of his rights under the FMLA and the adverse employment action. 

Id., at 314. If plaintiff satisfies these three requirements, the burden shifts to defendant 

to proffer a legitimate, nondiscriminatory rationale for discharging the employee. Id. at 

315. 

{¶23} Plaintiff asserts that Keller had a discriminatory animus toward him 

because he availed himself of FMLA leave. Specifically, plaintiff points to his own 

testimony and the testimony of Shavelle Little to show that Keller called plaintiff a “lazy 

piece of shit” and a “motherfucker,” when Keller “threw” a packet of papers at him 

regarding his FMLA certification. Even assuming these facts as true, plaintiff has not 

provided evidence to show a causal connection between the exercise of his rights under 

the FMLA and his termination. For the same reasons that plaintiff’s disability 

discrimination claim fails, his claim of FMLA retaliation fails, because Keller was not a 
Case No. 2016-00642JD -10- DECISION 

decision-maker in plaintiff’s termination. Thus, plaintiff has failed to present evidence 

from which the court can infer a causal connection between the exercise of his FMLA 

rights and his termination. 

{¶24} Lastly, although plaintiff did not specifically argue that Keller’s comments 

were direct evidence of discrimination, construing the evidence most strongly in 

plaintiff’s favor, the only reasonable conclusion is that Keller’s comments are not direct 

evidence of discrimination. “Direct evidence is evidence that, if believed, requires the 

conclusion that unlawful discrimination was at least a motivating factor in the employer’s 

actions.” Ceglia v. Youngstown State Univ., 10th Dist. Franklin No. 14AP-864, 2015-

Ohio-2125, ¶ 16. “[D]irect evidence of discrimination does not require a factfinder to 

draw inferences in order to conclude that the challenged employment action was 

motivated at least in part by prejudice against members of the protected group.” 

Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003). The only reasonable 

conclusion is calling plaintiff a “motherfucker” does not require the conclusion that he 

was terminated because of his disabilities or because he took FMLA leave. Moreover, 

Keller’s comment that plaintiff was a “lazy piece of shit” does not require the conclusion 

that he was terminated for his disabilities or for taking FMLA leave. Finally, plaintiff has 

not presented evidence to rebut defendant’s affidavit from Burkes showing that Keller 

was not a decision-maker in plaintiff’s termination. Accordingly, summary judgment 

shall be rendered in favor of defendant on all of plaintiff’s claims. 

 

 PATRICK M. MCGRATH 

Judge 
[Cite as Geter v. Dept. of Rehab. & Corr., 2018-Ohio-4148.]

{¶25} A non-oral hearing was conducted in this case upon defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. All previously scheduled events are VACATED. Court 

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 

 

 PATRICK M. MCGRATH 

Judge 

 

Filed September 26, 2018 

Sent to S.C. Reporter 10/12/18

GERALD L. GETER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2016-00642JD 

Judge Patrick M. McGrath 

Magistrate Holly True Shaver 

JUDGMENT ENTRY