[Cite as Mowery v. Ohio State Univ. Med. Ctr., 2012-Ohio-1246.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

RODNEY MOWERY 

 Plaintiff 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2010-08705 

Judge Clark B. Weaver Sr. 

DECISION

{¶1} Plaintiff brought this action alleging interference with his rights under the 

Family and Medical Leave Act of 1993 (FMLA), as well as disability discrimination under 

R.C. 4112.02.1

 The issues of liability and damages were bifurcated and the case 

proceeded to trial on the issue of liability. 

{¶2} On October 15, 2007, plaintiff began working as a registered nurse (R.N.) on 

the surgical floor of West Rhodes at The Ohio State University Medical Center (OSU). 

Plaintiff’s duties included providing patient care, performing patient assessments, 

ensuring patient stability and otherwise providing for the patient’s needs. Generally, 

plaintiff would care for five or six patients during his 12 hour shifts. Plaintiff testified that 

on June 15, 2009, his daughter disappeared and has not been found since. Plaintiff 

stated that as a result, he became depressed, causing him to lose sleep and become 

very fatigued. Plaintiff testified that he inquired about receiving FMLA coverage in the 

 1

On July 11, 2011, plaintiff filed an amended complaint eliminating plaintiff’s claims based upon 

gender, hostile work environment, and disparate treatment. 
Case No. 2010-08705 - 2 - DECISION

summer of 2009 but did not seek physician approval or request FMLA coverage for 

depression at that time. 

{¶3} On December 17, 2009, Kristie Henneman, Human Resources Consultant, 

notified plaintiff that Mary Lou Hauenstein, Nurse Manager, had requested “corrective 

action” as a result of plaintiff’s “neglect of duty.” (Defendant’s Exhibit H-7.) A hearing 

was scheduled for December 30, 2009. On December 29, 2009, plaintiff sought 

medical treatment from his physician for his depression and fatigue. At the hearing, 

plaintiff presented an “OSU Medical Certification Statement” completed by his physician 

indicating that plaintiff would require “intermittent time off” as a result of his condition. 

(Defendant’s Exhibit D-5.) The form also stated that plaintiff “[i]s medically unable to 

perform work from 11-9-09 through 3-8-10.” On January 20, 2010, defendant requested 

additional information about plaintiff’s condition and symptoms. (Defendant’s Exhibit D4.) Pursuant to defendant’s request, on February 8, 2010, plaintiff provided a “Medical 

Certification of Health Care Provider for Employee’s Serious Health Condition” 

indicating that plaintiff’s condition commenced on November 9, 2009, and would likely 

end on April 5, 2010. The form also indicated that plaintiff may require time off at either 

the beginning of his shift or at the end of his shift. The form was approved when 

defendant issued the February 22, 2010 “Designation Notice.” In the designation 

notice, nurse manager Katie Huth wrote “[p]lease note when using FMLA, you must 

notify department by call off times and complete application for leave form indicating 

usage of FMLA.” (Defendant’s Exhibit D-2).2

 Plaintiff signed the designation notice on 

February 26, 2010. 

{¶4} According to plaintiff’s attendance summary, between January and May 

2010, plaintiff was tardy eight times, received FMLA coverage on two other occasions, 

was ill twice, and used ten edit slips. Huth testified that edit slips are not to be used for 
Case No. 2010-08705 - 3 - DECISION

FMLA coverage and are generally used to alter an employee’s time when an employee 

forgets to clock in or does not take a lunch break. Employees are not to exceed eight 

edit slips in any six month period. Plaintiff was marked tardy on January 22, February 

11, March 19, March 25, March 26, April 2, April 16, and May 1, 2010. (Plaintiff’s 

Exhibit 7.) Plaintiff testified that he immediately called the charge nurse at OSU as soon 

as he knew he would not be able to arrive to work on time for each instance of 

tardiness. According to plaintiff, he called the charge nurse on January 15, February 

11, February 24, March 15, March 25, March 26, and April 2, 2010; however, he was 

unable to recall with whom he spoke or the time the phone calls were made. Plaintiff 

also asserts that he completed an application for leave every time that he was tardy. Of 

the instances of tardiness that plaintiff alleges should be covered by the FMLA, 

defendant marked plaintiff tardy on February 11, March 25, March 26, and April 2, 2010. 

{¶5} On May 18, 2010, Henneman notified plaintiff that Huth had requested 

corrective action be taken for his “Neglect of Duty, Inappropriate Conduct and 

Unsatisfactory Attendance.” (Plaintiff’s Exhibit 8.) A corrective action hearing was held 

on May 26, 2010, and it was subsequently determined that plaintiff had “demonstrated 

Neglect of Duty, Inappropriate Conduct and Unsatisfactory Attendance.” (Plaintiff’s 

Exhibit 9.) Plaintiff’s employment was terminated on June 16, 2010. 

{¶6} Plaintiff argues that defendant violated his FMLA rights by counting 

tardiness against him on occasions where such tardiness should have been covered 

under the FMLA, and then using those instances as the basis for his termination. 

Plaintiff further asserts that defendant discriminated against him in violation of R.C. 

4112.02 by failing to accommodate his disability. Defendant argues that plaintiff was 

discharged for reasons unrelated to his FMLA leave and that he failed to follow OSU’s 

 2

Katie Huth began working as the nurse manager in February 2010. Huth replaced interim nurse 

manager Lindsey Holstien who had replaced Hauenstein approximately one month earlier. 
Case No. 2010-08705 - 4 - DECISION

policies and procedures in requesting FMLA leave. Defendant further argues that it 

reasonably accommodated plaintiff’s condition. 

 

INTERFERENCE WITH FMLA RIGHTS

{¶7} “The FMLA entitles qualifying employees to up to twelve weeks of unpaid 

leave each year if, among other things, an employee has a ‘serious health condition that 

makes the employee unable to perform the functions of the position of such employee.’” 

Walton v. Ford Motor Co. (C.A.6, 2005), 424 F.3d 481, 485, quoting 29 U.S.C. 

2612(a)(1)(D). FMLA leave may be taken by an eligible employee with a serious health 

condition “intermittently or on a reduced leave schedule when medically necessary.” 29 

U.S.C. 2612(b)(1). 

{¶8} In order for an employee to establish that an employer interfered with his 

rights under the FMLA, the employee must show that: “(1) he was an eligible employee; 

(2) the defendant was an employer as defined under the FMLA; (3) the employee was 

entitled to leave under the FMLA; (4) the employee gave the employer notice of his 

intention to take leave; and (5) the employer denied the employee FMLA benefits to 

which he was entitled.” Walton, supra. 

{¶9} “When the approximate timing of the need for leave is not foreseeable, an 

employee must provide notice to the employer as soon as practicable under the facts 

and circumstances of the particular case.” 29 C.F.R. 825.303(a). “An employee shall 

provide sufficient information for an employer to reasonably determine whether the 

FMLA may apply to the leave request. * * * When an employee seeks leave due to a 

qualifying reason, for which the employer has previously provided the employee FMLAprotected leave, the employee must specifically reference either the qualifying reason 

for leave or the need for FMLA leave. Calling in ‘sick’ without providing more 

information will not be considered sufficient notice to trigger an employer’s obligations 

under the Act. The employer will be expected to obtain any additional required 
Case No. 2010-08705 - 5 - DECISION

information through informal means.” 29 C.F.R. 825.303(b). “[A]n employee must 

comply with the employer’s usual and customary notice and procedural requirements for 

requesting leave, absent unusual circumstances. For example, an employer may 

require employees to call a designated number of a specific individual to request leave. 

* * * If an employee does not comply with the employer’s usual notice and procedural 

requirements, and no unusual circumstances justify the failure to comply, FMLAprotected leave may be delayed or denied.” 29 C.F.R. 825.303(c).3

 

{¶10} The parties do not dispute that plaintiff was an eligible employee, that 

defendant was a covered employer, and that plaintiff was entitled to take intermittent 

FMLA leave for his depression. The parties disagree whether plaintiff gave timely 

notice of his intention to take leave on certain dates and whether defendant denied 

plaintiff FMLA benefits to which he was entitled. 

{¶11} Plaintiff testified that he telephoned the charge nurse on duty as soon as 

he realized that he was going to be late because of his depression. Plaintiff explained 

that such a realization usually occurred when he would wake up after a restless sleep 

shortly before his shift would begin. Plaintiff also asserted that he completed the 

required forms every time his depression caused him to lose sleep and be late for work. 

{¶12} Jody Robbins, R.N., who periodically served as a charge nurse, testified 

that a charge nurse performs the same duties as the other R.N.s and is also responsible 

for staffing assignments. Robbins stated that when a nurse was not coming in or would 

be coming in late, the nurse was required to call the charge nurse in advance, who 

would then record the information on the back of the daily assignment sheets.4

 

According to Robbins, the charge nurse would not know who was eligible for FMLA 

 3

Former 29 C.F.R. 825.303 was amended on November 17, 2008, and the revised version 

became effective January 16, 2009. 4

The daily assignment sheets were not introduced into evidence at trial. Counsel for plaintiff 

asserts in his closing argument that such assignment sheets were not produced in discovery despite 
Case No. 2010-08705 - 6 - DECISION

unless the nurse who was calling in personally informed her. Robbins testified that 

plaintiff would not call in late to the charge nurse and instead would simply show up late. 

Charge nurse Kandy Sollars also testified that any nurse who is late or absent is 

required to call the charge nurse in advance and that the charge nurse must record the 

information on the back of the daily assignment sheets. Sollars testified that plaintiff 

generally would not call in and would usually just show up late. Sollars stated that she 

recalled one instance where plaintiff called in to request FMLA leave in order to meet 

with an attorney. Sollars confirmed that a charge nurse would not know whether an 

employee was eligible for FMLA leave unless the employee said so during the 

conversation. 

{¶13} Henneman testified that in order to receive FMLA coverage for tardiness, a 

nurse was required by defendant’s policies to call the charge nurse three hours prior to 

his shift, and to subsequently complete a written application for leave. Henneman 

stated that the three-hour policy is subject to a reasonableness standard and that it was 

adopted for reasons other than FMLA notification. According to Henneman, the threehour policy is designed to ensure the proper staffing levels for patient care. Henneman 

stated that she would not expect the employee to state the reason for being tardy in the 

phone call to the charge nurse. Henneman testified that FMLA leave forms are to be 

turned in to the nurse manager. 

{¶14} Plaintiff submitted applications for leave for January 15, February 4, 

February 24, and March 4, 2010. Although plaintiff testified that he submitted 

applications for leave for every instance of tardiness, he was unable to produce copies 

of applications for January 22, February 11, March 19, March 25, March 26, April 2, 

April 16, and May 1, 2010. Plaintiff did request FMLA leave for January 15 and 

February 24, 2010, and his requests were approved. Plaintiff’s February 4, 2010 

 

being responsive to plaintiff’s discovery request; however, no motion to compel such discovery was 
Case No. 2010-08705 - 7 - DECISION

application for leave due to sickness was also approved. Plaintiff submitted two 

applications for leave for March 4, 2010. The first application is for 12 hours of leave 

pursuant to FMLA. There is no indication whether such request was approved. 

(Defendant’s Exhibit B-6.) The second application requested 12 hours of leave due to 

fever and nausea, and it is marked “approved” and is designated as “ill time,” rather 

than FMLA. (Defendant’s Exhibit B-7.) 

{¶15} Huth testified that a search of defendant’s records reveals that plaintiff did 

not submit leave applications for January 22, February 11, March 19, March 25, March 

26, and April 2, 2010. According to Huth, the three-hour call off policy was for 

attendance purposes only, and plaintiff was never denied FMLA coverage for failing to 

strictly adhere to the policy. 

{¶16} Hauenstein testified that plaintiff struggled with tardiness issues while she 

was the nurse manager. Hauenstein explained that eight or more instances in a six 

month period may lead to corrective action, or discipline. Hauenstein stated that an 

employee’s attendance record was considered to be part of an employee’s annual 

performance review. According to plaintiff’s first performance review, plaintiff was tardy 

49 times during his first 12 months at OSU, well beyond the limit of eight for each six 

month period. (Defendant’s Exhibit E-2.) Hauenstein testified that plaintiff’s attendance 

problems did not improve after his first employee performance review. Indeed, plaintiff 

was repeatedly disciplined for his attendance issues. He received reprimands for his 

attendance issues on April 7, 2008, July 22, 2008, July 8, 2009, and July 31, 2009. On 

December 12, 2009, Hauenstein requested corrective action regarding plaintiff’s 

attendance and performance issues. The request notes that plaintiff has been tardy 14 

times in the previous six months. (Defendant’s Exhibit H-9.) Plaintiff’s performance 

review dated October 8, 2009, notes that plaintiff was tardy 41 times between October 

 

made. 
Case No. 2010-08705 - 8 - DECISION

2008 and October 2009. According to the May 13, 2010 “Corrective Action Request,” 

Huth sought to discipline plaintiff because of incomplete documentation, violation of 

safety protocols, conduct unbecoming of an OSU employee, poor attendance, and 

exceeding the edit slip threshold. (Defendant’s Exhibit H-3.) As a result, plaintiff’s 

employment was terminated on June 16, 2010. 

{¶17} The court concludes that plaintiff did not request FMLA leave on January 

22, February 11, March 19, March 25, March 26, and April 2, 2010. The court finds that 

plaintiff neither called the charge nurse nor completed the applications for leave to 

request FMLA coverage of his tardiness. Indeed, the court is persuaded by the 

testimony of charge nurses Robbins and Sollars who testified credibly that plaintiff failed 

to call the charge nurse prior to arriving late for his shift. Furthermore, plaintiff’s 

testimony that he called the charge nurse every time he was going to be tardy and that 

he completed the applications for leave in every instance is not credible. Indeed, 

plaintiff’s testimony made no mention of two of the dates that he was marked tardy, 

January 22 and March 19, 2010, and included a date on which he was not tardy, March 

15, 2010. Plaintiff failed to produce copies of applications for leave he claims to have 

submitted and failed to provide any evidence corroborating his claims that he called the 

charge nurse whenever he wished to use FMLA coverage. Accordingly, plaintiff has not 

proven his FMLA interference claim by a preponderance of the evidence. 

DISABILITY DISCRIMINATION

{¶18} R.C. 4112.02 states, in part: 

{¶19} “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.” 
Case No. 2010-08705 - 9 - DECISION

{¶20} In similar fashion, the Americans with Disabilities Act (ADA) provides, at 42 

U.S.C. 12112(a): 

{¶21} “No covered entity shall discriminate against a qualified individual on the 

basis of disability 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.” 

{¶22} The Rehabilitation Act, which prohibits discrimination against the disabled 

in federally funded programs, provides at 29 U.S.C. 794(a): 

{¶23} “No otherwise qualified individual with a disability in the United States * * * 

shall, solely by reason of her or his disability, be excluded from the participation in, be 

denied the benefits of, or be subjected to discrimination under any program or activity 

receiving Federal financial assistance * * *.” 

{¶24} To establish a prima facie case of discrimination under the ADA or 

Rehabilitation Act, plaintiff must demonstrate “that [he is or is] perceived to be 

handicapped within the definitions of each of the acts, that [he is] otherwise qualified for 

the job, and that [he was] discriminated against on the basis of [his] disability.” Andrews 

v. State of Ohio (C.A.6, 1997), 104 F.3d 803, 807. Under the Rehabilitation Act, a 

plaintiff must also demonstrate that the defendant receives federal funds. Id. 

{¶25} “To establish a prima facie case of handicap discrimination [under R.C. 

4112.02], the person seeking relief must demonstrate (1) that he or she was 

handicapped, (2) that an adverse employment action was taken by an employer, at 

least in part, because the individual was handicapped, and (3) that the person, though 

handicapped, can safely and substantially perform the essential functions of the job in 

question.” Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 1998-

Ohio-410. 

{¶26} Given the similarity between the ADA, the Rehabilitation Act, and Ohio law 

regarding disability discrimination, the analysis of such claims is essentially the same. 
Case No. 2010-08705 - 10 - DECISION

See Andrews, supra; Cox v. True N. Energy, LLC (N.D.Ohio 2007), 524 F.Supp.2d 927, 

943; Canady v. Rekau & Rekau, Inc., Franklin App. No. 09AP-32, 2009-Ohio-4974, ¶32. 

{¶27} For his prima facie case, plaintiff alleges that: 1) his depression constituted 

a disability; 2) he could have performed the essential functions of his job if defendant 

had accommodated his request for FMLA leave; and 3) he suffered an adverse 

employment action when he was terminated. 

{¶28} With respect to the first element of plaintiff’s prima facie case, 42 U.S.C. 

12102(1) defines “disability” for purposes of the ADA as: 

{¶29} “(A) a physical or mental impairment that substantially limits one or more 

major life activities of such individual; 

{¶30} “(B) a record of such an impairment; or 

{¶31} “(C) being regarded as having such an impairment * * *.” 

{¶32} Plaintiff contends that his depression substantially limited one or more of 

his major life activities, thus constituting a disability. “When determining whether an 

individual is substantially limited in performing a major life activity, courts should 

consider three factors: (1) the nature and severity of the impairment; (2) the duration or 

expected duration of the impairment, and (3) the permanent or long-term impact of the 

impairment.” Novak v. MetroHealth Med. Ctr. (C.A.6, 2007), 503 F.3d 572, 581, citing 

29 C.F.R. 1630.2(j)(2). 

{¶33} Assuming plaintiff was “disabled” for purposes of the ADA, the court turns 

to the third prima facie element where “[b]oth federal and Ohio law impose a duty on 

employers to make reasonable accommodations for their employees with disabilities.” 

Rector v. Ohio Bur. of Workers’ Comp., Franklin App. No. 09AP-812, 2010-Ohio-2104, 

¶12. “[T]he duty of an employer to make a reasonable accommodation also mandates 

that the employer interact with an employee in a good faith effort to seek a reasonable 

accommodation.” Shaver v. Wolske & Blue (2000), 138 Ohio App.3d 653, 664. 
Case No. 2010-08705 - 11 - DECISION

{¶34} “To show that an employer failed to participate in the interactive process, a 

disabled employee must demonstrate: 1) the employer knew about the employee’s 

disability; 2) the employee requested accommodations or assistance for his or her 

disability; 3) the employer did not make a good faith effort to assist the employee in 

seeking accommodations; and 4) the employee could have been reasonably 

accommodated but for the employer’s lack of good faith.” Id. An employer shows a 

good-faith attempt to comply when the employer meets with the employee, requests 

information about the conditions and limitations, and asks what accommodation is being 

sought. Id. at 669. 

{¶35} Plaintiff requested and received FMLA leave for his depression on an 

intermittent basis. When plaintiff’s FMLA leave was approved, defendant informed 

plaintiff that he needed to telephone the charge nurse on the days that he would be 

tardy and that he needed to complete the applications for leave. Additionally, Huth 

testified that plaintiff was never denied FMLA coverage for failure to adhere to 

defendant’s three-hour call off policy. “Honoring an employee’s * * * FMLA leave 

request, where [his] physician has recommended the leave for the beneficial effect it 

might have on the employee’s long-term ability to function properly at work, can be a 

reasonable accommodation itself * * *.” Swanson v. Senior Resource Connection 

(S.D.Ohio 2003), 254 F.Supp.2d 945, 961. However, the court has found that plaintiff 

did not telephone the charge nurse on the days when he was tardy nor did plaintiff 

complete the required applications for FMLA leave. The court finds that defendant 

acted in good faith when making the modest request that plaintiff telephone a charge 

nurse and submit an application for leave as a condition for using FMLA leave. 

Therefore, plaintiff has failed to prove his claim of disability discrimination. 

{¶36} For the foregoing reasons, the court finds that plaintiff failed to prove any of 

his claims by a preponderance of the evidence. Accordingly, judgment shall be 

rendered in favor of defendant. 
Case No. 2010-08705 - 12 - DECISION

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

RODNEY MOWERY 

 Plaintiff 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2010-08705 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

{¶37} This case was tried to the court on the issue of liability. The court has 

considered the evidence and, for the reasons set forth in the decision filed concurrently 

herewith, judgment is rendered in favor of defendant. 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. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 
Case No. 2010-08705 - 13 - DECISION

 

Gary A. Reeve 

513 East Rich Street, Suite 308 

Columbus, Ohio 43215 

Kristin S. Boggs 

Peter E. DeMarco 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

GWP/dms

Filed January 19, 2012 

To S.C. reporter March 23, 2012