Molinaro v. TriHealth Hospital, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
CYNTHIA M. MOLINARO, 	Case No. 1:23-cv-402
Plaintiff, 	Judge Matthew W. McFarland
V.
TRIHEALTH HOSPITAL, INC., et al.,
Defendants.
ORDER AND OPINION
This matter is before the Court on Defendants' Motion for Summary Judgment
(Doc. 25). Plaintiff filed a Response in Opposition (Doc. 26), to which Defendants filed a
Reply in Support (Doc. 29). For the following reasons, Defendants' Motion for Summary
Judgment (Doc. 25) is GRANTED.
FACTS
I. 	Plaintiff's Employment
Plaintiff Cynthia Molinaro was born in 1955. (Molinaro Dep., Doc. 22, Pg. ID 846.)
Beginning in 1999, Plaintiff worked as a Staff Registered 	Nurse 	("Staff RN") 	for
Defendants TriHealth, Inc. and TriHealth Hospital, Inc. (collectively, "TriHealth"). (Id. at
Pg. ID 852-57.) She worked at TriHealth's Bethesda-Butler Hospital from 2018 until her
separation. (Id. at Pg. ID 853-55.) The position of a Staff RN is a physically demanding job
and can include frequent bending, pushing, and reaching, as well as consistent lifting of
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objects over thirty-five pounds. (Id. at Pg. ID 864-65, 1033-34.) TriHealth's job description
requires that employees in this position be able to consistently lift up to fifty pounds. (Id.
at Pg. ID 866-67; see also Job Description, Doc. 22-2, Pg. ID 1140.)
From 2019 to 2022, Plaintiff reported to Nurse Manager Kathy Lebowitz; then, in
2022, Rebecca Schmidt replaced Lebowitz. (Molinaro Dep., Doc. 22, Pg. ID 855-56;
Schmidt Dep., Doc. 18, Pg. ID 408; Lebowitz Dep., Doc. 21, Pg. ID 743.) Plaintiff received
positive performance reviews while she was supervised by Lebowitz. (Molinaro Dep.,
Doc. 22, Pg. ID 859-861; see also Performance Reviews, Doc. 22-1, Pg. ID 1114, 1125, 1135.)
Plaintiff reported no issues with Lebowitz during her employment. (Molinaro Dep., Doc.
22, Pg. ID 861.)
II. 	TriHealth's Workplace Policies
TriHealth maintains an Equal Employment Opportunity/Non-Discrimination
policy, and a Corporate Compliance: Duty to Report and Non-Retaliation policy, which
seeks to promote a culture that prevents violations of law and provides an Alertline
phone number so that employees can anonymously report violations of law. (Molinaro
Dep., 	Doc. 	22, 	Pg. 	ID 870-72.) 	Plaintiff 	was 	aware 	of 	these 	policies 	during 	her
employment; however, Plaintiff never utilized the Alertline. (Id. at Pg. ID 870, 872.)
Additionally, TriHealth has an American with Disabilities Act (" ADA") policy, which
states that, when possible, TriHealth will provide a reasonable accommodation to
employees in their current position, or an alternative position for which they are qualified
if they cannot be reasonably accommodated. (Id. at Pg. ID 877-78; ADA Policy, Doc. 22-5,
Pg. ID 1156-57.) Under this policy, if an employee's restrictions cannot be reasonably
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accommodated, the employee will be placed on a leave of absence for up to sixty days
while the employee and TriHealth seek to locate a job the employee can perform.
(Molinaro Dep., Doc. 22, Pg. ID 878; ADA Policy, Doc. 22-5, Pg. ID 1156-57.)
TriHealth also provides a Modified Duty Program for employees with an injury
or illness, which offers a temporary work placement to minimize the impact of an
employee's disability. (Molinaro Dep., Doc. 22, Pg. ID 876-77.) Under this program,
employees are given less physically demanding work for a period of ninety days;
extensions may be granted if the employee anticipates returning to work during that
extension. (Id. at Pg. ID 880-82.) If a modified duty is unavailable, TriHealth places the
employee on a leave of absence. (Id.) TriHealth's Leave of Absence ("LOA") policy
addresses several types of leave, including administrative leave, Family and Medical
Leave Act ("FMLA") leave, and non-FMLA leave. (LOA Policy, Doc. 22-7, Pg. ID 1167-
68, 1170, 1175-76.) Under the policy, administrative leave provides employees who are
returning to a position that is no longer available ninety days to seek a new position. (Id.
at Pg. ID 1165, 1167-70.) Meanwhile, FMLA leave is job-protected under the LOA policy,
meaning that an employee's position will be held until they return. (Id. at Pg. ID 1170-75.)
Non-FMLA leave, however, is not job-protected. (Id. at Pg. ID 1175.) Under the LOA
policy, no combinations of leave may exceed 275 consecutive days. (Id. at Pg. ID 1168;
Molinaro Dep., Doc. 22, Pg. ID 888.) Plaintiff was aware of this LOA policy during her
employment. (Molinaro Dep., Doc. 22, Pg. ID 886.)
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III. 	Plaintiff's Injury
On June 3, 2021, Plaintiff suffered a workplace injury after slipping on water that
had overflowed from an ice machine. (Molinaro Dep., Doc. 22, Pg. ID 889.) Four days
later, Plaintiff reported the workplace injury and visited TriHealth's Occupational
Medicine Department for treatment. (Id. 	at Pg. ID 892.) During that visit, Plaintiff
reported injuries to her neck, left shoulder, right wrist and thumb, and right hip. (Id. at
Pg. ID 892.) Plaintiff was diagnosed with sprains in the following locations: ligaments of
cervical spine, ligaments of thoracic spine, parts of lumbar spine and pelvis, radiocarpal
joint of right wrist, and left rotator cuff capsule. (Id. at Pg. ID 894-95, 899-900; Medical
Notes, Doc. 22-10, Pg. ID 1192-93.)
The same day as Plaintiff's diagnosis, TriHealth's Workers' Compensation Case
Manager Monika Heid notified Plaintiff that a workers' compensation claim had been
opened for 	her June 	3rd 	injury. 	(Molinaro 	Dep., 	Doc. 	22, 	Pg. 	ID 	898; 	Workers'
Compensation Letter, Doc. 22-11.) Plaintiff also received notice that TriHealth's third-
party administrator, Sedgwick, would be handling her workers' compensation claim.
(Molinaro Dep., Doc. 22, Pg. ID 898; Workers' Compensation Letter, Doc. 22-11.) On June
17, 	2021, 	Sedgwick 	approved 	Plaintiff's 	request 	for 	workers' 	compensation
reimbursement for twelve sessions of physical therapy. (Molinaro Dep., Doc. 22, Pg. ID
900-01; Reimbursement Form, Doc. 22-12.) On June 21, 2021, Plaintiff had a follow-up
appointment at TriHealth's Occupational Medicine Center, and Physician Assistant
Lilian Sedacca completed a workers' compensation form known as a "Physicians Report
of Work Ability" (also known as MEDCO-14). (Id. at Pg. ID 901-02.) The MEDCO-14 did
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not provide any medical restrictions for Plaintiff. (Molinaro Dep., Doc. 22, Pg. ID 902-03;
MEDCO-14, Doc. 22-13.) At this point, Plaintiff continued to perform her job without
restrictions. (Molinaro Dep., Doc. 22, Pg. ID 903.)
On July 15, 2021, Plaintiff again slipped on water from an ice machine at work, re-
injuring herself. (Molinaro Dep., Doc. 22, Pg. ID 904.) Plaintiff reported this injury the
next day and visited TriHealth' s Occupational Medicine Department, where Physician
Assistant Deborah Wiater ("PA Wiater") treated her. (Id. at Pg. ID 905-06.) PA Wiater
completed a MEDCO-14 at that visit, which referenced only Plaintiff's original June 3rd
injury and indicated that Plaintiff was unable to return to work full duty until July 23,
2021, because she had reinjured her shoulder and back. (Id. at Pg. ID 909-11; Second
MEDCO-14, Doc. 22-15.) PA Wiater submitted a request for workers' compensation to
cover Plaintiff's MRI under her June 3rd injury; Sedgwick approved this claim on July 22,
2021. (Molinaro Dep., Doc. 22, Pg. ID 913.) Meanwhile, on July 16, 2021, TriHealth
provided Plaintiff with a Modified Duty Agreement because of Plaintiff's medical
restriction to use left arm as tolerated. (Id. at Pg. ID 914-15.) The agreement stated that
Plaintiff would continue working full duty but would notify the Charge Nurse if there
was something she could not do. (Modified Duty Agreement, Doc. 22-16, Pg. ID 1223.)
Then, during another medical visit on July 23, 2021, PA Wiater completed a "First
Report of Injury" form and MEDCO-14 for Plaintiff's July 15th injury, as well as another
MEDCO-14 for Plaintiff's June 3rd injury. (Molinaro Dep., Doc. 22, Pg. ID 916-18, 921;
July 23 Visit Notes, Doc. 22-17.) The First Report of Injury form listed Plaintiff's diagnosis
as sprains of ligaments of cervical spine and sprain of left rotator cuff capsule. (Molinaro
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Dep., Doc. 22, Pg. ID 918; July 23 Visit Notes, Doc. 22-17.) The MEDCO-14 for Plaintiff's
June 3 and June 15 injuries placed medical restrictions through August 2, 2021, which
restricted Plaintiff from reaching above the shoulder, pushing, pulling, lifting or carrying
more than ten pounds, and using her left arm. (Molinaro Dep., Doc. 22, Pg. ID 920-21;
July 23 Visit Notes, Doc. 22-17.) Prior to this appointment, though, Plaintiff had to lift
patients, which had aggravated her neck and shoulder. (Molinaro Dep., Doc. 22, Pg. ID
923; 	July 	23 	Visit 	Notes, 	Doc. 	22-17.) 	Plaintiff 	also 	submitted 	a 	new 	workers'
compensation claim for the June 15 injury; however, Sedgwick did not validate this claim.
(Molinaro Dep., Doc. 22, Pg. ID 934-35.)
On July 27, 2021, Heid, TriHealth's Workers' 	Compensation Case Manager,
informed Plaintiff that TriHealth could not accommodate her restrictions in her current
role and was looking for an alternate position. (Molinaro Dep., Doc. 22, Pg. ID 923-25.)
Plaintiff requested leave in response. (Id.) TriHealth countered by allowing Plaintiff to
enter into an amended Modified Duty Agreement, which provided that Plaintiff would
perform rounds on patients and office-type work. (Id. at Pg. ID 927; see also Amended
Modified Duty Agreement, Doc. 22-20.) While Plaintiff initially performed desk work
under this amended agreement, she eventually transitioned to the position of Triage
Nurse, which involves pushing patients in wheelchairs, assisting them with walking, and
taking their blood pressure. (Molinaro Dep., Doc. 22, Pg. ID 933,862, 1041.)
During 	this 	time, 	Plaintiff's 	several 	workers' 	compensation 	claims 	caused
confusion regarding her restrictions and reimbursement requests. (Molinaro Dep., Doc.
22, Pg. ID 941-42.) Because Sedgwick had rejected her June 15 injury claim, subsequent
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requests related to that injury were denied. (Id. at Pg. ID 937-39.) To resolve this issue,
TriHealth consolidated Plaintiff's claims with the allowed conditions of cervical sprain,
thoracic sprain, lumbar sprain, left shoulder sprain, and right wrist sprain. (Id. at Pg. ID
943-44.) Thus, Sedgwick finally approved Plaintiff's request for reimbursement of her
orthopedics referral, massage therapy, and additional physical therapy. (Id. at Pg. ID 946.)
Plaintiff's workers' compensation attorney filed a motion with the Ohio Bureau of
Workers' Compensation ("Ohio BWC") to include additional injuries on her claim based
on findings from her MRI; however, this motion did not request inclusion of biceps
tendinosis, which had also appeared on the MRI. (Molinaro Dep., Doc. 22, Pg. ID 944-45,
949-50.) Through September and October 2021, Plaintiff remained on medical restrictions,
including lifting no more than ten pounds and not pushing or pulling more than twenty-
five pounds. (Id. at Pg. ID 947-48, 950-51.) By October 16, 2021, Plaintiff had exhausted
her Modified Duty period, and she began a leave of absence. (Id. at Pg. ID 970-71.) During
the ensuing months, Plaintiff's medical restrictions 	and 	return-to-work date were
repeatedly modified, eventually resulting in medical restrictions lasting until August 1,
2022. (Id. at Pg. ID 1010.) This date allowed Plaintiff to request coverage of biceps
tendinosis and undergo surgery for her injuries. (Id. 	at Pg. ID 999, 1001.) Plaintiff
admitted that she could not perform her job functions with these medical restrictions. (Id.
at Pg. ID 1010-11.)
On June 2, 2022, Plaintiff's supervisor, Schmidt, posted Plaintiff's position to fill
the hospital's staffing needs. (Molinaro Dep., Doc. 22, Pg. ID 1013.) She also informed
Plaintiff that, if the position was filled while Plaintiff was on leave, Plaintiff could apply
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for administrative leave while looking for another position. (Id.) Schmidt then hired
Jennifer Wetta, born in 1987, to fill Plaintiff's position on June 20, 2022. (Id.; Hoover Deel.,
Doc. 24-3, 1 4; Schmidt Dep., Doc. 18, Pg. ID 436.) On July 1, 2022, TriHealth sent Plaintiff
a letter informing her that her leave of absence was due to expire on July 18, 2022, or 275
days from her first day of leave on October 16, 2021. (Molinaro Dep., Doc. 22, Pg. ID 1024;
LOA Letter, Doc. 22-51, Pg. ID 1331.) The letter invited Plaintiff to contact TriHealth if
she could return to work, with or without a reasonable accommodation. (LOA Letter,
Doc. 22-51.) After contacting the LOA department, Plaintiff was permitted to pursue an
accommodation request by August 1, 2022. (Molinaro Dep., Doc. 22, Pg. ID 1025-26, 1032.)
Meanwhile, 	Plaintiff's 	workers' 	compensation 	case 	manager, 	Janine 	Loyer,
notified Plaintiff that her position had been filled, and that Plaintiff could not return to
work through modified duty; Plaintiff then emailed Human Resources Business Partner
JavanJones to request an accommodation. (Molinaro Dep., Doc. 22, Pg. ID 1031.) Plaintiff
returned the accommodation request form on July 28, 2022, identifying her impairment
as "left arm weak; pain with some movements, i.e. lifting left arm with object in hand."
(Id. at Pg. ID 1031-33.) The form also indicated that Plaintiff could only lift up to ten
pounds. (Id. at Pg. ID 1033.) Schmidt completed TriHealth's portion of the form and
determined that, in light of her medical restrictions, Plaintiff could not perform essential
job functions of any available positions within the Emergency Department. (Id. at Pg. ID
1036-38.) 	On 	July 	29, 	2022, 	Jones 	informed 	Plaintiff 	that 	TriHealth 	denied 	her
accommodation request but invited Plaintiff to request assistance with finding other
positions or requesting leave. (Id. at Pg. ID 1042; see also Jones Letter, Doc. 22-58.) Plaintiff
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sought additional leave until October 10, 2022, but TriHealth denied the request. (Id. at
Pg. ID 1042-43; First Jones Email, Doc. 20-8.) Plaintiff reasserted her request. (Second
Jones Email, Doc. 20-9.) On August 5, 2022, TriHealth notified Plaintiff that her leave of
absence expired on August 1, 2022, and her employment had been terminated as of
August 2, 2022. (Molinaro Dep., Doc. 22, Pg. ID 1042; Termination Letter, Doc. 22-59.)
IV. 	Plaintiff's Workers' Compensation Complaint and Subsequent Applications
On August 29, 2022, Plaintiff filed a complaint against TriHealth with the Ohio
BWC, alleging, in part, that TriHealth caused delays and denials of various treatments
under her workers' compensation claim. (Molinaro Dep., Doc. 22, Pg. ID 1059; BWC
Findings, Doc. 22-64.) The Ohio BWC denied Plaintiff's complaint throughout every stage
of the process, so Plaintiff appealed to the BWC Self-Insuring Employers Evaluation
Board ("BWC Board"). (Molinaro Dep., Doc. 22, Pg. ID 1059, BWC Findings, Doc. 22-64.)
The BWC Board found that Plaintiff's claims lacked merit and dismissed her complaint.
(Findings, Doc. 22-64.) Notably, the BWC Board found that TriHealth and Sedgwick had
responded timely and appropriately to Plaintiff's claims and requests. (Id.)
In January 2023, Plaintiff applied for a Leave of Absence and Disability Case
Management Coordinator position with TriHealth. (Molinaro Dep., Doc. 22, Pg. ID 1053-
54.) The position expressly stated a preference for candidates with case management
experience. (Case Management Coordinator Job Description, Doc. 23-2.) Plaintiff did not
receive an interview for the position; instead, applicant Victoria Shearman was selected,
but she later retracted her acceptance. (Pipes Dep., Doc. 19, Pg. ID 537-38; Hoover Deel.,
Doc. 24-3, 1 6.) Shearman had over a decade of applicable experience. (Pipes Dep., Doc.
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19, Pg. ID 537-38; Hoover Deel., Doc. 24-3, 16.) Plaintiff contacted Jones, wishing to re-
apply for the position, but the hiring manager, Diane Pipes, indicated that Plaintiff was
not a good fit for the position. (Molinaro Dep., Doc. 22, Pg. ID 1057-58; Pipes Dep., Doc.
19, Pg. ID 539-40.) Pipes instead hired Erika Gomez, born in 1987, who had extensive
experience performing case management work. (Hoover Deel., Doc. 24-3, 1 8.) Pipes
believes that she knew of Plaintiff's July 2022 accommodation request at that time. (Pipes
Dep., Doc. 19, Pg. ID 528.)
PROCEDURAL POSTURE
On January 27, 2023, Plaintiff filed her Complaint against TriHealth in Hamilton
County Court of Common Pleas. (Compl., Doc. 2.) The Complaint contained a single
claim: workers' compensation retaliation in violation of Ohio Revised Code§ 4123.90.
(Id.) On June 23, 2023, Plaintiff amended her Complaint to include seven claims: (1)
workers' compensation retaliation under O.R.C. § 4123.90; (2) age discrimination under
O.R.C. § 4112; (3) age discrimination under the Age Discrimination in Employment Act
(" ADEA"); (4) disability discrimination under O.R.C. § 4112; (5) disability discrimination
under the Americans with Disabilities Act (" ADA"); (6) retaliation under O.R.C. § 4112;
and (7) retaliation under the ADEA and ADA. (First Am. Compl., Doc. 4.) On June 26,
2023, TriHealth removed the case to this Court under federal question jurisdiction and
answered the First Amended Complaint. (See Notice of Removal, Doc. 1; Answer, Doc.
5.) The parties engaged in discovery and TriHealth filed its Motion for Summary
Judgment on May 12, 2025, which has been fully briefed. (See Docs. 25, 26, 29.) Plaintiff
then filed a Motion to Strike (Doc. 27), seeking to exclude materials TriHealth used in
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support of the Motion. The Court, construing the Motion as Objections, overruled the
Objections. (See Order, Doc. 32.)
LAW
When there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law, the district court shall grant summary judgment.
Fed. R. Civ. P. 56(a). The moving party has the burden to conclusively show that no
genuine 	issue 	of 	material 	fact 	exists. Celotex 	Corp. 	v. 	Catrett, 477 	U.S. 	317, 	323
(1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party
meets that burden, then it becomes the nonmoving party's responsibility to point to
specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). A court is under no obligation to search the record for genuine issues of
material fact. Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1087 (6th Cir. 1996).
Moreover, a "mere scintilla" of evidence in support of the nonmoving party's
position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730,734
(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put
forth probative evidence on which a jury could reasonably reach a verdict in that party's
favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party
fails to make the necessary showing for an element on which it has the burden of proof,
then the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.
ANALYSIS
TriHealth argues that it is entitled to summary judgment on all claims that Plaintiff
brings. At the summary judgment stage, when a plaintiff has not presented any direct
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evidence of discrimination, like here, the McDonnell Douglas burden-shifting framework
applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Texas Dept. of Comm.
Affairs v. Burdine, 450 U.S. 248 (1981). Under this framework, a plaintiff faces the initial
burden of presenting a prima facie case, which "creates a rebuttable presumption of
discrimination 	and 	requires 	the 	defendant 	to 	'articulate 	some 	legitimate,
nondiscriminatory reason' for taking the challenged action." Johnson v. Kroger Co., 319
F.3d 858, 866 (6th Cir. 2003) (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73
(6th Cir. 2000)). Once the defendant satisfies this burden, the plaintiff must prove that the
defendant's proffered reason was a "pretext to hide unlawful discrimination." 	Id.
(quoting Johnson, 215 F.3d at 573). This standard applies to all of Plaintiff's claims except
for her failure to accommodate claim, which "necessarily involves direct evidence."
Cooper v. Dolgencorp, LLC, 93 F.4th 360, 368 (6th Cir. 2024).
In federal court, federal and Ohio discrimination claims are analyzed under the
same standards. Knox v. Neaton Auto Prods. Mfg., 375 F.3d 451, 457 (6th Cir. 2004).
Accordingly, where Plaintiff brings concurrent claims under both federal law and Ohio
Revised Code § 4112, the Court will consider them together. The following analysis
examines each claim or set of claims in turn.
I. 	Disability Discrimination Claims
TriHealth contends that Plaintiff's disability discrimination claims under both the
ADA and O.R.C. § 4112 fail as a matter of law. (Motion, Doc. 25, Pg. ID 1583.) First,
TriHealth notes that Plaintiff's failure to accommodate claim fails because she did not
allege a failure to accommodate claim. (Id. (citing Sales v. In-oentiv Health, Inc. No. 3:13-
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CV-64, 2014 WL 1883936 (M.D. Tenn. May 12, 2014)).) As the Court reads the Amended
Complaint, 	Plaintiff's 	disability 	discrimination 	claims 	center 	on 	allegations 	that
TriHealth treated her less favorably than nondisabled employees, terminated her because
of her disability, and refused to hire her for a different position because of her disability.
(First Am. Compl., Doc. 4, ,r,r 100-13.) But, in the factual allegations section of the
Complaint, Plaintiff states that TriHealth denied her accommodation requests without
engaging 	in 	an 	interactive 	process. 	(Id. 	at 	,r,r 	66-67.) 	And, 	Plaintiff's 	disability
discrimination claims incorporate all of the allegations of the Complaint. (Id. at ,r,r 100,
107.) While TriHealth argues that the court in Sales found that the plaintiff did not
properly allege a failure to accommodate claim, Plaintiff correctly distinguishes her
complaint. (Response, Doc. 26, Pg. ID 1615.) As Plaintiff points out, in Sales, the complaint
did not allege any facts regarding the defendant's failure to accommodate the plaintiff's
disability; meanwhile, here, Plaintiff does allege that TriHealth failed to provide her
requested accommodations. (Id.) Thus, the Court will construe the theory underlying
Plaintiff's disability claims as twofold: 	(1) TriHealth's failure to accommodate her
disability and (2) her disparate treatment and termination because of her disability.
a. 	Failure to Accommodate
In order to establish a prima facie failure to accommodate claim, Plaintiff must
show that: (1) she is disabled; (2) she is otherwise qualified for the position, with or
without a reasonable accommodation; (3) her employer knew or had reason to know of
her disability; (4) she requested a reasonable accommodation; and (5) the employer failed
to provide the reasonable accommodation. Aldini v. Kroger Co. of Mich., 628 F. App'x 347,
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350 (6th Cir. 2015). TriHealth does not contest that Plaintiff is disabled or that TriHealth
knew of her disability but argues that Plaintiff has failed to establish the second, fourth,
and fifth elements of her claim. (Motion, Doc. 25, Pg. ID 1583.) The Court addresses each
of these elements below.
i. 	Second Element: Qualification for the Position
To show the second element, Plaintiff must demonstrate that she could complete
her job requirements either: "(a) without accommodation from the employer; (b) with an
alleged 	'essential' 	job requirement eliminated; 	or 	(c) 	with a 	proposed 	reasonable
accommodation." Blanchet v. Charter Commc'ns, LLC, 27 F.4th 1221, 1228 (6th Cir. 2022)
(cleaned up). 	Meanwhile, "the employer will 	bear the burden 	of proving that a
challenged job criterion is essential, and therefore a business necessity, or that a proposed
accommodation will impose an undue hardship upon the employer." Cooper, 93 F.4th at
368. TriHealth asserts that Plaintiff cannot demonstrate any of these. (Motion, Doc. 25,
Pg. ID 1583-84.) First, TriHealth points out that Plaintiff was unable to perform essential
functions of her Staff RN position because of the medical restrictions in place, namely,
her inability to lift more than ten pounds and her limitation on pushing or pulling more
than 	twenty-five 	pounds. 	(Id. 	at Pg. 	ID 	1584.) 	Meanwhile, 	the 	position required
consistently lifting more than thirty-five pounds, in addition to physically demanding
tasks such as administering CPR, pushing patients in wheelchairs, and turning and lifting
patients 	in 	hospital 	beds. 	(Id.) 	And, 	TriHealth 	argues 	that 	Plaintiff's 	requested
accommodations were not reasonable; accordingly, she was not qualified. (Id.)
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Plaintiff makes an argument that she could have performed her job without
accommodation. (Response, Doc. 26, Pg. ID 1618.) Plaintiff states that her supervisor,
Schmidt, made" negative assumptions" that she could not perform her job duties, despite
Plaintiff only "identif[ying] areas of potential concern, but never stat[ing] that she would
be incapable of performing those functions." (Id.) However, on Plaintiff's MEDCO-14
from July 16, 2021, the physician checked "yes" to indicate that Plaintiff's cervical,
thoracic, and lumbar spine sprain and rotator cuff sprain "prevent[ed] full duty release
to the job [Plaintiff] held on the date of the injury." (7 /16/21 MEDCO-14, Doc. 22-15, Pg.
ID 1218.) She continued to be unable to perform the full range of job duties, as she
requested modified duty, and then when she had exhausted that, requested a leave of
absence. 	Through 	September 	and 	October 	2021, 	Plaintiff 	remained 	on 	medical
restrictions, including lifting no more than ten pounds and not pushing or pulling more
than twenty-five pounds. (Molinaro Dep., Doc. 22, Pg. ID 947-48, 950-51, 970-71.) And,
the Sixth Circuit has held that, when a plaintiff's physician "concludes that the plaintiff
cannot perform [her] job without an accommodation, the plaintiff likely cannot establish
that [s]he is otherwise qualified to perform the job without an accommodation." Cooper
v. Dolgencorp, LLC, 93 F.4th 360, 370 (6th Cir. 2024); see also Dietelbach v. Ohio Edison Co., 1
F. App'x 435, 437 (6th Cir. 2001) (per curiam). Thus, the Court finds Plaintiff's first
argument unconvincing.
As Plaintiff indeed requested accommodations in order to complete her job, the
Court will now examine whether Plaintiff could have performed her job with the
proposed 	accommodations 	and 	whether such proposals were reasonable. 	Plaintiff
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requested the following accommodations: (1) a limited duty role as a Triage Nurse; and
(2) a temporary extension of her leave until October 2022. (Response, Doc. 26, Pg. ID 1620-
21.) "In failure-to-accommodate claims where the employee requests an accommodation
that exempts her from an essential function, the essential functions and reasonable
accommodation analyses run together." E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 763 (6th
Cir. 2015) (cleaned up). This is because "[o]ne conclusion (the function is essential) leads
to the other (the accommodation is not reasonable)." Id.
With this framing in mind, the Court naturally begins with the question of
identifying the relevant essential job functions. Plaintiff argues that whether these tasks
are essential functions of the job is a question of fact "not suitable for resolution on a
motion for summary judgment." (Response, Doc. 26, Pg. ID 1618.) Yet, while courts
acknowledge that this question can be one of fact, they also have held that, in certain
cases, "the determination of' essentialness' ... is properly a question of law" that can be
addressed at the summary judgment stage. Brickers v. Cleveland Bd. of Educ., 145 F.3d846,
849 (6th Cir. 1998); see also Ford Motor Co., 782 F.3d at 765-66. Indeed, in Brickers, the Sixth
Circuit found that because the job qualifications listed the ability to lift as a requirement
of the plaintiff's position, the question of whether that was essential to the job was one of
law. Brickers, 145 F.3d at 849. The same is true here, as the job description lists the ability
to consistently lift fifty pounds as a qualification for the position. (Job Description, Doc.
22-2, Pg. ID 1140.) Generally, "an employer's job description is given weight and it is on
the plaintiff to 'rebut the written job description concerning what constitutes an essential
function of a job."' Equal Emp. Opportunity Comm'n v. Clarksville Health Sys., G.P., 617 F.
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Supp. 3d 844,860 (M.D. Tenn. 2022) (quoting Camp v. BI-LO, LLC, 662 F. App'x 357,362
(6th Cir. 2016)). That said, courts "must conduct a fact-specific inquiry into both the
employer's description of a job and how the job is actually performed in practice."
Henschel v. Clare CnhJ. Rd. Comm'n, 737 F.3d 1017, 1023 (6th Cir. 2013) (quotation omitted).
But, Plaintiff testified that the position of a Staff RN is a physically demanding job and
can include frequent bending, pushing, and reaching, as well as consistent lifting of
objects over thirty-five pounds. (Molinaro Dep., Doc. 22, Pg. ID 864-65, 1033-34.) Here,
both the job description and actual performance support an essential function finding.
The Court thus finds that lifting above fifty pounds is an essential duty of the job.
Nevertheless, Plaintiff asserts that she was qualified for the position with her
accommodations. (Response, Doc. 26, Pg. ID 1618.) Plaintiff argues that her previous
supervisor, Lebowitz, testified that Plaintiff was qualified for her position, even with her
mobility restrictions. (Id. at Pg. ID 1619.) But, TriHealth notes that Lebowitz's testimony
referred to Plaintiff's skillset and experience as a nurse, rather than the legal definition of
"qualified" for purposes of a disability discrimination claim. (Reply, Doc. 29, Pg. ID 1880-
81.) As evidence of this, TriHealth points to Lebowitz's statements that Plaintiff was
unable to perform her job duties without assistance from other team members, and "the
position of Triage Nurse was not a designated position outside of temporary modified
duty work." (Id.; see also Lebowitz Dep., Doc. 21, Pg. ID 747-50.) Thus, from TriHealth's
perspective, Lebowitz herself testified that Plaintiff was not qualified for the position for
purposes of her disability discrimination claim. (Id.)
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Still, Plaintiff disputes that the job requires nurses to consistently lift fifty pounds,
as stated in the job description, but states instead that the job did require nurses to
consistently lift thirty-five pounds. (Response, Doc. 26, Pg. ID 1619; see also Plaintiff's
Dep., Doc. 22, Pg. ID 866-67.) 	Although Plaintiff admits that, due to her medical
restrictions, she could not lift thirty-five pounds, she emphasizes that the reduced
capacity was only temporary. (Id. at Pg. ID 1619.) However, as TriHealth points out,
Plaintiff cites no authority to support her contention that she was qualified for the role
because she could be excused from functions only on a temporary basis. (Reply, Doc. 29,
Pg. ID 1880.)
TriHealth contends, instead, that Plaintiff could not be reasonably accommodated
in the Staff RN position. (Motion, Doc. 25, Pg. ID 1585.) Plaintiff first requested a modified
job duty of only desk or sedentary work, but TriHealth points out that, with this
accommodation, the more physical tasks of her job would be shifted onto another
individual, such as an ER Technician. (Id.) As TriHealth notes, "the ADA does not require
employers to accommodate individuals by shifting an essential job function onto others."
(Id. (citing Hoskins v. Oakland Cty. Sheriffs Dep't., 227 F.3d 719, 729 (6th Cir. 2000)).)
Plaintiff, though, argues that her request for modified duty was reasonable, as she
had successfully completed the same modified duty in the past. (Response, Doc. 26, Pg.
ID 1620.) According to Plaintiff, while the ADA does not require the shifting of essential
functions, it does "require an employer to restructure the marginal functions of a job as a
reasonable accommodation." (Id. (quoting Keith v. Cty. of Oakland, 703 F.3d 918, 922 (6th
Cir. 2013)).) Plaintiff argues that her requested accommodation of a modified duty was
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merely a restructuring of a marginal function of the job. (Id.) 	As evidence of its
reasonableness, Plaintiff points to the fact that she had previously performed the role of
a Triage Nurse "satisfactorily," and that her modified position would not have rendered
the ER understaffed, as a new nurse, Jenna Wetta, had replaced her at that time. (Id.) And,
from Plaintiff's perspective, TriHealth cannot simultaneously state that the ER would be
understaffed while also arguing that Plaintiff's requested position was irregular and not
needed at all times. (Id.)
However, the Court finds Plaintiff's argument unpersuasive. The ability to push
and lift consistently is not merely a "marginal function" of her role, but is essential, as
described above. 	And, Lebowitz testified that Plaintiff's inability to perform these
functions when on modified duty meant that other ER nurses had to take over these
functions. (Lebowitz Dep., Doc. 21, Pg. ID 747-50.) As TriHealthconvincingly argues, "the
ADA does not require employers to accommodate individuals by shifting an essential job
function onto others." Hoskins, 227 F.3d at 729. This holds true even if the proposed
accommodation arrangement would only be temporary. See Wyatt v. Nissan N. Am., Inc.,
999 F.3d 400,419 (6th Cir. 2021).
Furthermore, 	Lebowitz 	testified 	that 	the 	Triage 	Nurse 	position was 	not 	a
permanent position but "an assignment among the ER nurses." (Lebowitz Dep., Doc. 21,
Pg. ID 724.) And, the ADA "does not require employers to create new jobs [or] displace
existing employees from their positions in order to accommodate a disabled individual."
Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862,869 (6th Cir. 2007) (quoting Burns v. Coca-
Cola Enters., Inc., 222 F.3d 247,257 (6th Cir. 2000) (cleaned up)); see also Tchankpa v. Ascena
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Retail 	Grp., 	Inc., 	951 	F.3d 	805, 	809 	(6th 	Cir. 	2020). 	Thus, 	Plaintiff's 	requested
accommodation to perform only desk or sedentary work was not reasonable. While
Lebowitz may have been amenable to Plaintiff's accommodation, her amenability does
not necessarily render the accommodation reasonable. Lebowitz admitted that, with
Plaintiff's inability to perform physical tasks, ER resources and personnel were pulled
from other areas and tasks to assist her. (Lebowitz Dep., Doc. 21, Pg. ID 748-49.)
Furthermore, the accommodation did not allow her to continue performing her essential
job functions; in fact, the accommodation eliminated several key functions to the role of
a Staff RN.
Thus, there is no genuine dispute of material fact as to whether Plaintiff was
qualified to perform the Staff RN position. Put simply, she could not perform its
requirements with or without a proposed reasonable accommodation.
ii. 	Fourth Element: Reasonable Accommodation
TriHealth argues that Plaintiff's claim also fails on the fourth element: that
Plaintiff's requested accommodation was reasonable. As discussed above, the Court
determined that her modified duty request was unreasonable. However, Plaintiff also
requested extended administrative leave as an accommodation. TriHealth contends that
this request, too, was unreasonable. (Motion, Doc. 25, Pg. ID 1587-88.) To be sure, Plaintiff
began her leave on October 16, 2021, and requested six extensions, resulting in leave that
spanned over nine months. (Molinaro Dep., Doc. 22, Pg. ID 1024; LOA Letter, Doc. 22-51,
Pg. ID 1331.) And, Plaintiff's doctor testified that her final leave request seeking a return
date in October 2022 "was only an estimate." (Motion, Doc. 25, Pg. ID 1587.)
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TriHealth points to several Sixth Circuit cases where the court found 	that
"additional leave is an objectively unreasonable accommodation where an employee has
already received significant amounts of leave and has demonstrated 'no clear prospects
for recovery."' (Molinaro Dep., Doc. 22, Pg. ID 1024; see also Caldwell v. MGM Grand
Detroit, LLC, No. 23-1436, 2024 WL 2182406, at *3 (6th Cir. Jan. 5, 2024); Williams v. AT&T
Mobility Sen1s. LLC, 847 F.3d 384,394 (6th Cir. 2017); Walsh v. United Parcel Serv., 201 F.3d
718, 727 (6th Cir. 2000).) Indeed, TriHealth notes that Plaintiff requested two months of
leave after almost ten months of leave, with "no substantive improvement to her
restrictions," and "no clear prospect of recovery," making it entirely uncertain whether
she would return. (Id.) Courts have found similar requests unreasonable. See, e.g., Aston
v. 	Tapco Int'l Corp., 631 F. App'x 292, 298 (6th Cir. 2015) (finding requested leave
unreasonable where employee had already taken 6 months of leave and his return was
unknown); Maat v. Cty. of Ottawa, Mich., 657 F. App'x 404,412 (6th Cir. 2016) (finding the
same after seven months of a reduced schedule without a clear prospect of recovery).
In response, Plaintiff argues that her return was definite and that none of the Sixth
Circuit cases "adopt a brightline rule defining a maximum duration of leave that can
constitute a reasonable accommodation." (Response, Doc. 26, Pg. ID 1621.) As evidence
of her definite return date, Plaintiff states that her doctor provided the estimated return
date of October 2022. (Id.) Plaintiff also describes three factors that courts generally
examine when assessing reasonableness: (1) the amount of leave sought; (2) whether the
requested leave generally complies with the employer's leave policies; and (3) the nature
of the employee's prognosis, treatment, and likelihood of recovery. (Id. (citing King v.
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Steward Trumbull Mem'l Hosp., Inc., 30 F.4th 551, 562 (6th Cir. 2022)).) But, to this point,
Plaintiff had already requested the maximum amount of leave permitted by TriHealth' s
policies: nine months of leave, or 275 days. (LOA Policy, Doc. 22-7, Pg. ID 1168; Molinaro
Dep., Doc. 22, Pg. ID 1042; Termination Letter, Doc. 22-59.) And, on the prospect of her
recovery, TriHealth is correct to point out that all of her initial requests for leave up until
then included an estimated return date, and all of them were subsequently extended.
(Reply, Doc. 29, Pg. ID 1884.) Furthermore, Plaintiff's medical restrictions in July 2022
were more severe than they were when her leave began in October 2021, highlighting her
lacking prospect of recovery. (Id.; compare 10-20-21 MEDCO-14, Doc. 22-36 ("no lifting
over 10 lbs [with left] arm, no reaching above shoulder, occasional push/pull up to 25
lbs"), with 7-5-2022 MEDCO-14 ("no lifting, pushing, or pulling any greater than 10
pounds with left arm.").)
For all these reasons, the Court agrees with TriHealth. Plaintiff's situation is
strikingly similar to those in Aston and Maat. TriHealth extended Plaintiff's leave multiple
times as she repeatedly bumped out her estimated return date. (Molinaro Dep., Doc. 22,
Pg. ID 993-97, 1016.) While Plaintiff claims she would have been able to return to work
with full functionality, her worsening restrictions and pattern of extensions is evidence
of the contrary. And, most detrimental to her claim, Plaintiff was aware that TriHealth's
leave policy maxed out at 275 days. (Molinaro Dep., Doc. 22, Pg. ID 888.) Medical leave
is not reasonable when the leave "extend[s] beyond company policies." King, 30 F.4th at
563 (collecting cases). Her final request for leave was not reasonable. The Court, therefore,
finds no genuine dispute of material fact as to the reasonableness of both of Plaintiff's
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requested accommodations. And, with no reasonable accommodation, Plaintiff does not
have an independent claim for TriHealth' s failure to engage in the interactive process.
Wheat v. Columbus Bd. of Educ., 644 F. App'x 427,430 (6th Cir. 2016); Rorrer v. City of Stou,,
743 F.3d 1025, 1041 (6th Cir. 2014).
* 	* 	*
As Plaintiff did not make a reasonable accommodation request, the Court finds
that Plaintiff has also failed to demonstrate the fifth element, as an employer cannot deny
a reasonable accommodation if such an accommodation is never requested. Without the
second, fourth, and fifth elements, Plaintiff has not established a prima facie failure to
accommodate claim; TriHealth is entitled to summary judgment on this claim.
b. 	Remaining Disability Discrimination Claims
Plaintiff also brings claims 	under O.R.C. 	§ 4112 and 	the ADA challenging
TriHealth' s termination and refusal to rehire her as disability discrimination actions.
(First Am. Compl., Doc. 4, ,r,r 100-13.) TriHealth asserts that Plaintiff cannot establish a
prima facie case for these claims, which requires that Plaintiff show: (1) she is disabled;
(2) 	she 	is 	otherwise 	qualified 	for 	the 	position, 	with 	or 	without 	reasonable
accommodation; (3) she suffered an adverse employment action; (4) TriHealth knew or
had reason to know of her disability; and (5) the position remained open while TriHealth
sought other applications or she was replaced. (Motion, Doc. 25, Pg. ID 1589.)
Plaintiff does not address TriHealth' s argument or otherwise defend these claims.
(See generally Response, Doc. 26.) So, TriHealth is correct to point out that Plaintiff has
abandoned these claims. (Reply, Doc. 29, Pg. ID 1887; Alexander v. Carter for Byrd, 733 F.
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App'x 256,261 (6th Cir. 2018) ("When a plaintiff fails to address [a claim] in response to
a motion for summary judgment, the claim is deemed waived.") (cleaned up).) The Sixth
Circuit's "jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have
abandoned a claim when a plaintiff fails to address it in response to a motion for
summary judgment." Brown v. VHS of Michigan, Inc., 545 F. App'x 368,372 (6th Cir. 2013)
(collecting cases). Accordingly, TriHealth is entitled to summary judgment on Plaintiff's
disability discrimination claims.
II. 	Age Discrimination Claims
TriHealth next takes issue with Plaintiff's claims of age discrimination, brought
under both O.R.C. § 4112 and the ADEA. (Motion, Doc. 25, Pg. ID 1590-91.) To survive
summary judgment, Plaintiff must demonstrate a prima fade case of age discrimination.
DiCarlo z1. Potter, 358 F.3d 408,417 (6th Cir. 2004). To do so, she must show: (1) she was at
least forty years old at the time of her dismissal; (2) she was subjected to an adverse
employment action; (3) she was qualified for the position; and (4) she was replaced by a
younger person. Id. TriHealth challenges the third element, that Plaintiff was qualified
for the position. (Motion, Doc. 25, Pg. ID 1591.) TriHealth exclusively relies on its
previous arguments that Plaintiff was not qualified for the Staff RN position. (Id.) And,
in response, Plaintiff does the same in arguing that she was, in fact, qualified for the
position. (Response, Doc. 26, Pg. ID 1629.) The Court will not rehash the same analysis
conducted above. As previously established, there is no genuine dispute that Plaintiff
was not qualified for the Staff RN position. Simply put, undisputed evidence shows that
she was not capable of performing the essential functions of the role. See Leiper z1. Sloter
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Concrete, No. 2:05-CV-464, 2006 WL 2035658, at *2 (S.D. Ohio July 18, 2006). Plaintiff's
prima facie case for her termination-based claim fails on the third element.
Yet, Plaintiff also argues that she was not hired for the Case Management
Coordinator role because of her age. (First Am. Compl., Doc. 4, ,r,r 84-99.) TriHealth does
not dispute any elements of the prima facie case for this claim but argues that it chose
candidates who were more qualified than Plaintiff for the position. (Motion, Doc. 25, Pg.
ID 1591.) Accordingly, in TriHealth's estimation, Plaintiff cannot show that its non-
selection was pretext for discrimination. (Id.)
The job description for the Case Management Coordinator position noted "case
management 	experience" 	as 	a 	preferred 	qualification, 	including 	"return 	to 	work
coordination." (See Case Management Coordinator Job Listing, Doc. 23-2.) Pipes, the
hiring manager, testified that case management experience and occupational health
experience are some of the first things she looks for when making hiring decisions for
that role. (Pipes Dep., Doc. 19, Pg. ID 537-38.) However, the job listing states that "[s]trong
clinical 	background 	is 	acceptable 	in 	lieu 	of case 	management experience." 	(Case
Management Coordinator Job Listing, Doc. 23-2.) Plaintiff argues that she has "20 years
of excellent nursing experience compared to the much younger candidates hired in her
place." 	(Response, Doc. 	26, Pg. 	ID 1629.) Thus, according to Plaintiff, TriHealth's
argument that the other candidates were more qualified for the position is illegitimate
and pretext for age discrimination. (Id.)
TriHealth, though, points out that Plaintiff has not presented any evidence that
she was more qualified for the position than the hired individuals, both of whom had
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case management experience that she did not have. (Reply, Doc. 29, Pg. ID 1888.) When
considering the relative qualifications of the plaintiff and the hired individual, "[r]elative
qualifications establish triable issues of fact as to pretext where the evidence shows that
either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer
would have chosen the latter applicant over the former, or (2) plaintiff was as qualified
as if not better qualified than the successful applicant, and the record contains 'other
probative evidence of discrimination." Bartlett v. Gates, 421 F. App'x 485, 490-91 (6th Cir.
2010). As Plaintiff here lacks any case management coordination experience, and both
hired individuals have such experience, Plaintiff is not the "plainly superior candidate."
Turning to the second consideration, TriHealth notes that "Plaintiff has failed to
offer any evidence that her nursing experience made her as qualified or more qualified
than the candidates selected." (Reply, Doc. 29, Pg. ID 1888.) This point is underscored by
the fact that Pipes testified that relevant case management experience is one of the first
qualities she looks for in potential candidates. (Pipes Dep., Doc. 19, Pg. ID 537-38.) And,
assuming arguendo that Plaintiff's clinical experience made her as qualified as the
candidates with alternative experience, the record is devoid of other probative evidence
of age discrimination. Plaintiff can only point to notes in her file that she was near
retirement age or planning to retire. (See Workers' Compensation Notes, Doc. 17-5.)
Isolated and ambiguous comments about retirement are not sufficient to show pretext.
Shristava v. RBS Citizens Bank, 227 F. Supp. 3d 824,841 (E.D. Mich. 2017) (collecting cases).
Thus, Plaintiff cannot establish that TriHealth' s reason for her non-selection was pretext
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for 	age 	discrimination. 	TriHealth 	1s 	entitled 	to 	summary 	judgment 	on 	her 	age
discrimination claims.
III. 	Retaliation Claims
Plaintiff's next set of claims assert causes of action for retaliation in violation of
O.R.C. § 4112, the ADA, and the ADEA. (First Am. Compl., Doc. 4, ,r,r 114-125.) These
counts state that TriHealth retaliated against Plaintiff for engaging in three protected
activities: her medical leave requests, her complaints of age and disability discrimination,
and her charges of discrimination with the EEOC. (Id.) To establish a prima facie
retaliation claim, Plaintiff must demonstrate that: (1) she engaged in a protected activity;
(2) TriHealth knew of her exercise of this activity; (3) TriHealth then took a materially
adverse action against Plaintiff; and (4) a causal connection between the protected activity
and the adverse action exists. Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th Cir.
2018). TriHealth contends that Plaintiff has failed to establish the fourth element. (Motion,
Doc. 25, Pg. ID 1593.) Plaintiff asserts that she was both fired from TriHealth and not
hired as a Case Management Specialist because she engaged in her protected activities;
the Court will examine each adverse action independently.
a. 	Plaintiff's Termination as the Adverse Action
To prove a causal connection, Plaintiff must show that her protected activity was
the but-for cause of her adverse employment action. Robinson v. MGM Grand Detroit, LLC,
821 F. App'x 522,532 (6th Cir. 2020). TriHealth argues that Plaintiff cannot establish this
causation because "the mechanisms surrounding her leave exhaustion began before
Plaintiff engaged in protected activity." (Motion, Doc. 25, Pg. ID 1594.) As TriHealth
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points out, "[c]ausal connection is not met where considerations regarding an end to
employment have already started." (Id. (citing Land v. S. States Coop., Inc., 740 F. App'x
845, 850 (6th Cir. 	2018)).) 	According to TriHealth, Plaintiff was 	notified that her
employment would end when her leave was exhausted before she engaged in a protected
activity. (Id.) Plaintiff correctly points out, though, that one of her protected activities was
requesting both modified duty and leave as accommodations under the ADA, both of
which occurred before she was notified of her termination. (Response, Doc. 26, Pg. ID
1624.) Further, Plaintiff distinguishes her case from Land by pointing out that, in Land, the
plaintiff had documented performance issues well in advance of when he engaged in a
protected activity, whereas here, Plaintiff was notified that she would exhaust her leave
and be terminated after she requested her accommodations. (Id. at Pg. ID 1624-25.)
Yet, in its Reply, TriHealth notes that Plaintiff's argument "concedes that she first
engaged in protected activity more than a year before her employment ended" when she
requested 	modified 	duty. 	(Reply, 	Doc. 	29, 	Pg. 	ID 	1888.) 	This 	concession 	thus
demonstrates that TriHealth accommodated Plaintiff "despite engaging in protected
activity." (Id.) And, Plaintiff's only evidence of retaliatory motive is temporal proximity
of her requests for accommodation and her termination. (Id. at Pg. ID 1889.) But, as well
established in the Sixth Circuit, barring narrow exceptions of events that happen
extremely close in time, "temporal proximity, without more, fails to establish causation,
particularly when the events are separated for extended periods of time." (Id. (collecting
cases).) Furthermore, TriHealth points out that Plaintiff's exhaustion of leave under its
policy "breaks any causal connection with her separation of employment." (Id.) Indeed,
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"an intervening cause between a protected activity and an adverse employment action
dispels an inference of causation." (Id. (quoting Kenney v. Aspen Techs., Inc., 965 F.3d 443,
450 (6th Cir. 2020)).)
The Court finds TriHealth's arguments persuasive. To reiterate, Plaintiff first
requested modified duty as an accommodation in July 2021; she then repeatedly
requested either modified duty or leave extension until her termination in August 2022.
Thus, although Plaintiff's final request for a leave extension happened very close in time
to 	her 	termination, 	her 	engagement 	in 	the 	protected 	activity 	of 	requesting
accommodations began in July 2021, over a year earlier. While an adverse employment
action that occurs very close in time after an employer learns of a protected activity" can
be significant enough to establish causal connection, a year is too long to establish a causal
connection. Barrow 11. City of Cleveland, 773 F. App'x 254, 263 (6th Cir. 2019) (quoting
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,525 (6th Cir. 2008)); Stein v. Atlas Indus., Inc.,
730 F. App'x 313,319 (6th Cir. 2018) (finding that the cutoff for temporal proximity alone
to satisfy causation is around the ten-week mark). And, TriHealth indeed first learned of
Plaintiff's protected activity in July 2021, not August 2022.
When the protected activity and the adverse action do not happen close together,
"temporal proximity, standing alone, is insufficient to establish a causal connection for a
retaliation claim." Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 321 (6th Cir. 2007)
(collecting cases). And, "this is especially so when an intervening act disrupts the
purported causal chain between a protected act and an adverse employment action."
Wingo v. Mich. Bell Tel. Co., 815 F. App'x 43, 47 (6th Cir. 2020) (finding temporal proximity
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particularly insufficient for causal connection because plaintiff violated his back-to-work
agreement, the reason for his termination); see also Kuhn v. Washtenaw Cty., 709 F.3d 612,
628 (6th Cir. 2013). Plaintiff can only point to temporal proximity as evidence of a causal
connection, an insufficient argument further weakened by the fact 	that TriHealth
terminated her after she had exhausted its leave policy, an intervening act. Thus, Plaintiff
has failed to establish the fourth element of her retaliation claims as they relate to her
termination.
b. 	Plaintiff's Failure to be Rehired as the Adverse Action
Plaintiff also argues that TriHealth retaliated against her by not hiring her for the
Case Management Coordinator position. Again, TriHealth argues that Plaintiff has failed
to show a causal connection between her protected activities and her non-selection for
the role. (Motion, Doc. 25, Pg. ID 1594.) The hiring manager, Pipes, was only aware that
Plaintiff had made an accommodation request in July 2022. (Id.) And, Pipes made her
hiring decisions in January and February 2023. (Id.) Once again, TriHealth argues that
Plaintiff can only show temporal proximity, and the five-month span here is insufficient
to create a causal connection. (Id.)
In response, Plaintiff points out that she filed her EEOC charge in December 2022,
and the Case Management Coordinator position was the first TriHealth job to which she
applied after her filing. (Response, Doc. 26, Pg. ID 1625-26.) This rejection was thus the
first opportunity TriHealth had to retaliate against her after her EEOC charge. (Id. (citing
George v. Youngstown State Univ., 966 F.3d 446, 467-68 (6th Cir. 2020)).) Plus, according to
Plaintiff, the temporal proximity of just one month is sufficient to show causation. (Id. at
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Pg. ID 1626.) But, TriHealth points out that, in fact, Pipes did not know of the EEOC
charge and only knew of Plaintiff's previous accommodation requests. (Reply, Doc. 29,
Pg. ID 1889.) Plaintiff identifies no evidence to the contrary. Thus, the time period
between the protected activity and alleged retaliatory conduct is five months. (Id.)
Plaintiff also argues that she does not rely solely on temporal proximity to prove
causation; rather, she contends that TriHealth "consistently violated its own internal
policies which were meant to provide [her] time to find a new position while still
employed." (Response, Doc. 26, Pg. ID 1626.) And, according to Plaintiff, Pipes relied on
job criteria not present in the position's job description when deciding whether to
interview or hire Plaintiff. (Id.) These irregularities in the hiring process, in addition to
the temporal proximity, establish a prima fade retaliation case, according to Plaintiff. (Id.)
In response to this argument, though, TriHealth notes that it was consistent in
applying its leave policies: "any combination of leave is generally not permitted to exceed
275 days." (Reply, Doc. 29, Pg. ID 1890.) Further, TriHealth points out that when Jones
from Human Resources offered Plaintiff assistance in finding a new position while she
was employed, Plaintiff instead repeated her request for extended leave. (Id.) This fact
undercuts Plaintiff's argument that TriHealth violated its own policies by not allowing
Plaintiff to find new work. (Id.) And, TriHealth asserts that Plaintiff's statement about
Pipes making a hiring decision based on criteria not found in the job listing is baldly false.
(Id.) As stated, the job description states that "case management experience was a
preferred qualification, including 'return to work coordination."' (Id.; see also Case
Management 	Coordinator 	Job 	Listing, 	Doc. 	23-2.) 	Pipes 	also 	testified 	that 	case
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management experience and experience in occupational health are some of the first
things she looks for when making hiring decisions for that role. (Id. (citing Pipes Dep.,
Doc. 19, Pg. ID 537-38).) Although the job listing states that "[sJtrong clinical background
is acceptable in lieu of case management experience," TriHealth argues that the job clearly
prioritizes case management experience above clinical experience, as it is listed first. (Id.)
First, on the issue of whether Pipes knew of Plaintiff's most recent protected
activity, the EEOC charges, the Court finds Plaintiff's argument unpersuasive. Plaintiff
has not put forth any evidence that Pipes knew Plaintiff filed charges with the EEOC; the
only evidence on the record indicates that Pipes knew about Plaintiff's accommodation
requests, which occurred, at the latest, five months before she applied for the position.
See Watson v. Ohio Dept. of Rehab. & Corr., 167 F. Supp. 3d 912, 935-36 (S.D. Ohio 2016)
(plaintiff put forth no evidence that the hiring managers were aware of her OCRC
Charges, so she failed to establish the fourth element of a prima facie retaliation claim).
Thus, Plaintiff's arguments that only a month passed between her protected activity and
non-selection, and that the non-selection was TriHealth' s first chance to retaliate against
her for that activity, hold no water.
Moving on, the Court finds little weight to Plaintiff's arguments that TriHealth
violated its own policies by not allowing her to find a new position while working. As
TriHealth points out, Jones offered to assist Plaintiff in finding a new position when she
was still employed. (Jones Letter, Doc. 22-58.) 	To Plaintiff's argument that Pipes relied
on criteria not included in the job description, the Court highlights that the job was a Case
Management Coordinator, with clinical experience only listed as an alternative to case
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management experience. (Case Management Coordinator Job Listing, Doc. 23-2.) Taken
together with Pipes' testimony that such experience is "one of the first things that [the
hiring managers] look for," it is reasonable that TriHealth would select candidates with
case management experience over an individual with only clinical experience. (See Pipes
Dep., Doc. 19, Pg. ID 538.) Indeed, the two candidates TriHealth hired both had extensive
case management experience, while Plaintiff had none. (Hoover Deel., Doc. 24-3, ,r,r 6-8 .)
Courts have found that no causal connection exists in failure-to-hire retaliation claims
when the chosen candidate has preferred qualifications. See, e.g., Bachochin v. Shire US
Inc., No. l:06-CV-486, 2009 WL 10710454, at *7 (S.D. Ohio Mar. 27, 2009) (finding that a
hiring policy that favored one candidate over the plaintiff negated a causal link between
the protected activity and non-selection).
This leaves Plaintiff with only the five-month period between the protected
activity known to Pipes and her non-selection as evidence of a retaliatory motive. But, as
established above, temporal proximity alone is not generally sufficient to establish a
causal connection. See Lahar v. 	Oakland Cty., 304 F. App'x 354, 359 (6th Cir. 2008)
(explaining that "a five-month gap in time does not by itself suffice to get to a jury on
causation"); see also Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272-73 (6th Cir. 1986)
(finding the same for a four-month gap). Accordingly, Plaintiff cannot demonstrate a
prima facie case for her retaliation claims based on her non-selection to the new job. But,
assuming that Plaintiff were able to establish a prima facie case, TriHealth' s reasoning
that 	the 	other 	candidates 	were 	better 	qualified 	is 	sufficient 	as 	a 	legitimate,
nondiscriminatory reason for Plaintiff's non-selection. Merhulik v. Weitman, Weinberg &
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Reis Co. LPA, No. 21-3773, 2022 WL 1583418, at *6 (6th Cir. May 19, 2022). Pipes testified
that Plaintiff simply did not have case management experience while other candidates
"had more applicable experience." (Pipes Dep., Doc. 19, Pg. ID 537.) Plaintiff has not
shown any other evidence that this reason is pretext for retaliation. TriHealth is entitled
to summary judgment on these claims as well.
IV. 	Workers' Compensation Retaliation Claim
Finally, Plaintiff brings a claim for workers' compensation retaliation under O.R.C.
§ 4123.90. (First Am. Comp!., Doc. 4, ,r,r 76-83.) To establish a prima facie workers'
compensation retaliation claim, Plaintiff needs to show: (1) that she filed a workers'
compensation claim; (2) that TriHealth took an adverse employment action against her;
and (3) that a causal link exists between Plaintiff's filing of the claim and the adverse
employment action. Sharp v. Profitt, 674 F. App'x 440,444 (6th Cir. 2016). If she establishes
her prima facie case, the burden shifts to TriHealth to show a legitimate, non-retaliatory
reason for its actions; if successful, Plaintiff then must demonstrate that the reason is
pretext for retaliation. Onderko v. Sierra Lobo, Inc., 20 N.E.3d 322,326 (Ohio Ct. App. 2014).
Just as with the other retaliation claims, TriHealth argues that Plaintiff has failed to show
that her termination or non-selection is causally connected to her workers' compensation
claim. (Motion, Doc. 25, Pg. ID 1595.) To start, TriHealth points to the lack of temporal
proximity of the 	events: 	one 	year between Plaintiff's filing 	of her first workers'
compensation claim and her termination, as well as an eighteen-month period between
the claim and her non-selection for the new position. (Id.) Beyond this, according to
TriHealth, Plaintiff "has not identified any actions or comments suggesting that relevant
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decisionmakers held a retaliatory bias against Plaintiff for filing a workers' compensation
claim." (Id. at Pg. ID 1595-96.)
In response, Plaintiff notes that "[tJhe inference of retaliatory motive may be
drawn from the surrounding circumstances, including the timing of the discharge
relative to the protected conduct, whether punitive action was directed toward the
employee as a result of the claim, a hostile attitude □ toward the employee once the claim
was filed, disparate treatment of the employee relative to others, and requests not to
pursue a claim." (Response, Doc. 26, Pg. ID 1611 (quoting Creveling v. Lakepark Indus., 169
N.E.3d 21, 28 (Ct. App . Ohio 2021)).) Accordingly, the timeline of Plaintiff's claims and
adverse actions "should not preclude" finding a causal link "because the series of delays
in approvals for [herJ claims, treatments, and surgery were themselves part of TriHealth' s
retaliatory scheme." (Id.) For instance, Plaintiff claims that she requested approval of her
recommended surgery on August 2, 2021, but did not receive approval until March 7,
2022, which wasted a significant portion of her allowed leave time under TriHealth' s
policy. (Id. at Pg. ID 1611-12.) TriHealth, however, disputes this by pointing out that she
received a referral for surgery on August 2, 2021, which was granted on September 7,
2021. (Reply, Doc. 29, Pg. ID 1893.)
Plaintiff also states that records in her workers' compensation claim show that
TriHealth labeled her as "negative," that "she gets upset about everything." (Response,
Doc. 26, Pg. ID 1612; see also Workers' Compensation Claim Notes, Doc. 17-5.) And,
Plaintiff argues that TriHealth insisted she make two separate claims for her two injuries,
which then caused confusion and unnecessary delay. (Id.) But, TriHealth points out that
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the BWC Board found that "TriHealth timely certified [Plaintiff's] claim, and that each
treatment request was timely addressed." (Reply, Doc. 29, Pg. ID 1893; see also BWC
Findings, Doc. 22-64.) As far as the delays, TriHealth argues that Plaintiff herself delayed
the process as she did not add her biceps injury until 180 days after her initial injury,
"[d]espite being represented by counsel for nearly her entire workers' compensation
claim." (Id.) Plaintiff also claims, as evidence of hostility, that her supervisor, Schmidt,
"made negative assumptions" about Plaintiff's abilities when she was on leave, resulting
in an "eagerness to replace [her]." (Response, Doc. 26, Pg. ID 1612-13.) But, again,
TriHealth argues that Schmidt's assumptions about Plaintiff's ability to work in the ER
were based upon Plaintiff's self-reported limitations on her accommodations form.
(Reply, Doc. 29, Pg. ID 1894.)
Finally, Plaintiff argues that TriHealth' s repeated delays and denials ultimately
delayed Plaintiff's treatments, surgery, and return to work; this is evidenced by her
"rapid rate of recovery" following her surgery. 	(Response, Doc. 26, Pg. ID 1613.)
However, TriHealth notes that in July 2022, four months after her surgery, Plaintiff
reported "more extensive restrictions than she did almost a year earlier." (Reply, Doc. 29,
Pg. ID 1894.) This undercuts Plaintiff's theory that she improved "rapidly" from her
surgery and could have returned to work sooner had TriHealth not delayed the surgery.
(Id.)
The Court agrees with TriHealth and finds Plaintiff's arguments unavailing. First,
Plaintiff is correct to note certain factors that courts can consider when finding retaliatory
motive, such as hostile attitudes, but Plaintiff fails to note that "whether legitimate
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reasons exist for the discharge" is one such factor as well. Sharp, 674 F. App'x at 445
(collecting cases). Indeed, as discussed extensively above, Plaintiff was terminated
because she had exhausted her leave and could not perform the functions of her position
with or without reasonable accommodation. And, her claims of TriHealth' s "war of
attrition" regarding her workers' compensation are similarly unconvincing. Schmidt
determined that Plaintiff could not perform the job, not because Schmidt made unfair
and unfounded assumptions about Plaintiff's abilities, but because Plaintiff herself
reported that she could not lift above ten pounds and had limited mobility- essential
functions of the role. (Molinaro Dep., Pg. ID 1033, 1036-38.) Moreover, many of the delays
were due to Plaintiff's own inaction. As TriHealth notes, Plaintiff failed to include one of
her injuries in her claim until half a year after it happened, even though it was previously
revealed on an MRI. (Molinaro Dep., Doc. 22, Pg. ID 999, 1001.) Once she finally sought
its inclusion on her claim, she had to wait for the approval of the biceps injury; this
waiting period is why Plaintiff scheduled her surgery in April 2022 and not sooner. (Id.)
Once again, the delay was caused by Plaintiff's own lack of expediency. Plaintiff cannot
point to any claim Defendant failed to timely certify.
The only evidence Plaintiff can point to is the comment from Schmidt that Plaintiff
was very negative and "gets upset about everything." (Workers' Compensation Claim
Notes, Doc. 17-5.) But this one statement, not directed towards Plaintiff but rather
included in her workers' compensation file, hardly makes the case that Schmidt was
hostile toward Plaintiff. See Reed v. LMN Dev., LLC, No. 3:16-CV-2216, 2020 WL 1031534,
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at *5 (N.D. Ohio Mar. 3, 2020) (finding no causal connection when the record included
very little evidence of hostility directed at plaintiff).
All that remains for Plaintiff's claim of a causal connection is temporal proximity.
As the Court determined, though, the time period between Plaintiff's first claim and her
termination was a year; moreover, eighteen months passed between the claim and her
non-selection for the new position. While the Sixth Circuit has made an exception for
"extreme temporal proximity," the general rule provides that "temporal proximity alone
does not show the required causal connection." Gaskins v. Rock-Tenn Corp., 982 F. Supp.
2d 760, 769-70 (S.D. Ohio 2013) (quoting Cunningham v. The Kroger Co., No. C-050990, 2006
WL 3230323, at *3 (Ohio Ct. App. Nov. 9, 2006)). And, a "one-year time gap does not
create an inference of a causal connection" for a workers' compensation retaliation claim.
Peterson v. UH Reg'l Hospitals, No. 1:15-CV-2670, 2017 WL 916421, at *5 (N.D. Ohio Mar.
7, 2017) (collecting cases). In fact, the Sixth Circuit has found that a span of four months
was too long to create an inference of retaliatory motive. Id. Thus, the Court agrees that
Plaintiff has failed to establish the third element of her workers' compensation claim.
Without a prim.a fade case, TriHealth is entitled to summary judgment on this claim.
CONCLUSION
Based on the foregoing reasons, the Court ORDERS the following:
1. 	Defendants' Motion for Summary Judgment (Doc. 25) is GRANTED;
2. 	Summary judgment is ENTERED in favor of Defendants on all of Plaintiff's
claims; and
3. 	This case is TERMINATED from the Court's docket.
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IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
By: 7{A~~
JUDGE MATTHEW W. Mc FRLAND
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