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CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 1 of 50
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
TAMMY BIGELOW, ) CASE NO.: CV-2022-09-3190
)
Plaintiff, ) JUDGE CHRISTINE CROCE
)
v. ) PLAINTIFF’S BRIEF IN
) OPPOSITION TO DEFENDANT’S
THE LITTLE TIKES COMPANY, ) MOTION FOR SUMMARY
) JUDGMENT
Defendant. )
I. INTRODUCTION
Tammy Bigelow worked for Little Tikes for almost three years, largely without incident, until
she requested Family and Medical Leave Act leave because of a lump that she has on her Achilles
tendon. Bigelow’s manager, Kathy Nelson, testified that Bigelow was a good worker and friendly.
However, in early 2022, Bigelow’s Achilles tendon issue worsened to the point where she appeared
to work wearing a boot, and noticeably walked with a limp. Indeed, Bigelow was open about suffering
from significant pain because of her condition and that she required surgery to treat her condition.
Although Bigelow openly discussed her condition, and her managers Nelson and April George were
aware of her condition, Lisa Ward, the Human Resources Manager, denied any knowledge of her
condition. Ward denies this although she indisputably was aware of Bigelow’s FMLA application
and had two or three conversations with Bigelow—who was known to openly discuss her condition
and visibly walked with a limp.
Bigelow applied for FMLA leave on April 5, 2022, and Little Tikes terminated her
employment eight days later. Little Tikes concedes this temporal proximity satisfies Bigelow’s prima
facie case for her FMLA claims. However, Little Tikes asserts that an incident between Bigelow and
temporary employee William Jews on April 12, 2022 warranted immediate termination. During this
incident, it is undisputed that Jews called Bigelow a “bitch,” physically confronted Bigelow, and
consciously refused at least three opportunities to avoid conflict with Bigelow. More, security footage
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of the incident exists, which Bigelow respectfully posits that a reasonable juror could view the footage
and be shocked that her conduct warranted immediate termination. Worse, although Bigelow’s
conduct somehow warranted immediate termination, Jews, who was not disabled and had not applied
for FMLA leave, was not even issued any discipline. As Little Tikes terminated Bigelow’s
employment immediately after her Achilles tendon issue worsened to the point of requesting FMLA
leave, and as it terminated Bigelow for conduct where it did not terminate similarly situated
employees, Defendant’s Motion for Summary Judgment should be denied.
II. STATEMENT OF FACTS
A. Little Tikes Employed Bigelow As A Janitor.
Bigelow was initially staffed at Little Tikes as a temporary worker in June 2019 where she
held in multiple positions, from working on the line making boxes to working in shipping. 1 Little
Tikes then hired Bigelow in as a permanent employee on May 11, 2021 as a Janitor. 2 As a Janitor,
Bigelow was expected to sweep and mop; clean the bathrooms; empty out the trash; along with other
cleaning tasks throughout the facility.3 Bigelow reported to April George, the Direct Fulfilment
Manager,4 who reported up to Kathy Nelson, Distribution Manager. 5 George did not supervise or
personally observe Bigelow’s work performance. 6 Oddly, Nelson testified she mostly only was aware
of Bigelow’s job performance from what she learned from George. 7 Nelson had authorization to
discipline Bigelow, but testified that she required input from Human Resources to terminate
Bigelow’s employment.8 However, Human Resources Manager Lisa Ward testified that not only did
Nelson had authority to discipline Bigelow’s employment, but she did also have authority to terminate
1
Deposition of Tammy Bigelow, at pg. 19-20. Plaintiff used continuously numbered exhibits during her depositions. Not
all marked exhibits are referenced in the instant brief.
2
See attached Tammy Hired by Temp Agency Documentation, attached hereto as Plaintiff’s Exhibit 11.
3
See attached Janitor Job Description, attached hereto as Exhibit 20.
4
George Dep., pgs. 18.
5
Deposition of Kathy Nelson, at pgs. 12-13.
6
George Dep., pgs. 22, 44.
7
Nelson Dep., pg. 16.
8
Id. at pgs. 14-18.
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Bigelow’s employment.9 Ward did not observe Bigelow’s work performance. 10 Ward had authority
to issue discipline and to terminate Bigelow’s employment. 11
Despite having a progressive discipline policy, during the years of working at Little Tikes,
and prior to her separation of employment, Bigelow had not been issued any discipline for her
performance.12 In fact, it was Nelson who wanted to bring Bigelow in as a permanent employee as
she was a good worker.13 As to Bigelow’s performance, Nelson testified:
Q. So did you think Tammy was a good employee?
A. Yes.
Q. Why do you think Tammy was a good employee?
A. Her work was really good. Everything we asked her to do was done, and it was done well.
Q. How often would you interact with Tammy?
A. Pretty much daily.
Q. Did you like her?
A. Yes.
Q. What did you like about her?
A. She is a nice person, did good work.
Q. Was she friendly?
A. Yes.14
Little Tikes suspended Bigelow briefly due to attendance issues in January 2022. 15 Being
suspended for attendance is not discipline.16 After Little Tikes suspended Bigelow, Nelson
specifically requested that Little Tikes bring Bigelow back because she “did good work.” 17 Bigelow
9
Ward Dep., pg. 18.
10
Ward Dep., at pg. 35.
11
Ward Dep., at pgs 17-18.
12
Bigelow Dep., at pg. 30; George Dep., at pg. 57.
13
Nelson Dep., at pg. 35.
14
Nelson Dep., at pgs. 35-36.
15
MSJ., at pg. 3.
16
Helderlein Dep., at pg. 23; See attached Attendance Termination Document, attached hereto as Plaintiff’s Exhibit 12.
17
Nelson Dep., at pg. 41.
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had not made a request to use FMLA at the time Little Tikes brought Bigelow back after suspending
her for attendance reasons.18
It is undisputed that as of April 4, 2022, Little Tikes had no intention in terminating Bigelow’s
employment.19 More, no one had made a request as of April 4, 2022 to terminate her employment. 20
B. Bigelow’s Well-Known Achilles’ Tendon Issues Rendered Her Disabled.
Bigelow suffers from having a big lump on her Achilles tendon. 21 Bigelow sought medical
attention related to her Achilles tendon. 22 As a result of the Achilles tendon issue: “I could barely
walk. I forced myself.”23 Bigelow’s Achilles tendon issue is so severe that it causes Bigelow to visibly
walk with a limp.24
Bigelow specifically told Ray Louis, Henry Hileman, George, and Nelson about her Achilles
tendon issue.25 Louis and Hileman are both shipping leads. 26 Bigelow told these individuals that: “I
was in a lot of pain and was going to have to have surgery.” 27
George corroborated Bigelow’s well-known Achille’s tendon issues:
Q: Okay. During Tammy’s employment, did she talk to you about having issues with her Achilles
tendon?
A: I was aware she had an issue with her foot.
Q: Okay. How did you become aware of this?
A: I believe I saw her in there with a boot on, and she openly spoke about it.
Q: So you saw her wearing a boot?
A: She would come in and change into a tennis shoe or a shoe.
Q: Okay. And what do you mean she was open about it?
18
Nelson Dep., at pg. 41.
19
Nelson Dep., at pg. 47. George Dep., at pg. 67. Ward Dep., at pg. 46.
20
Nelson Dep., at pg. 47. George Dep., at pg. 67. Ward Dep., at pg. 46.
21
Bigelow Dep., at pg. 25; George Dep., at pg. 64.
22
Bigelow Dep., at pg. 25.
23
Bigelow Dep., at pg. 28.
24
George Dep., at pg. 64-65. Nelson Dep., at pg. 42.
25
Id.
26
George Dep., at pg. 22.
27
Bigelow Dep., at pg. 28.
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A: She openly talked about her foot issue.
***
Q: Okay. So you were aware her foot issue would cause her pain or discomfort?
A: Yes.
Q: And were you aware or did you overhear her speaking about -- saying her foot problem would
cause issues with her walking?
A: Yes.
Q. And did you notice her walking with a limp because of her foot problem?
A. I guess sometimes, yes.28
Nelson also confirmed knowledge of Bigelow’s well-known Achille’s tendon issues. Nelson
further confirmed that she became aware of Bigelow’s condition after Bigelow’s attendance
suspension in January 2022.29 Specifically, Nelson confirmed that she saw Bigelow wearing a boot
to work, and pertinently, noticing that Bigelow walked with a limp.30 Nelson also acknowledged
that Bigelow was open about her Achille’s tendon issues and spoke about these issues with many
people at work.31 This included talking about how Bigelow would need time off work for surgery. 32
Ward denies that she became aware of Bigelow suffering from Achilles’ tendon issues. 33 She
asserts that although she was aware that Bigelow requested FMLA leave, that she was not aware of
the underlying condition.34 Ward did have two or three “casual” conversations with Bigelow. 35
C. Bigelow Requested To Utilize FMLA Leave For Surgery On Her Achilles’ Tendon.
Around March of 2022, George recalls Bigelow speaking to her about needing to get surgery
for her foot.36 George explained in regards to Bigelow requesting FMLA leave, “I knew that she said
28
George Dep., at pg. 64-65.
29
Nelson Dep., at pg. 42.
30
Nelson Dep., at pg. 42.
31
Nelson Dep., at pg. 44.
32
Id.
33
Ward Dep., at pg. 42.
34
Id.
35
Id.
36
George Dep., at pgs. 65-66.
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she was going to need it.”37 Due to Bigelow’s discussions with Nelson about needing to take time off
work for surgery, Nelson advised Bigelow to “get with HR” so she could apply for FMLA leave. 38
On April 5, 2022, Bigelow spoke to Little Tikes’ Human Resources Coordinator, Ruth Helderlein
about requesting FMLA leave for surgery on Bigelow’s Achilles tendon. 39 Bigelow filed an official
Request for Leave of Absence using FMLA on April 5, 2022—which was acknowledged as received
by Ward.40 Ward was aware of Bigelow’s FMLA request and the need to take time off for a serious
medical condition.41 On April 6, 2022, Helderlein emailed Nelson, copying Ward, stating, “Tammy
is requesting both intermittent and continuous FMLA for her own serious health condition.”42 Ward
agreed that Bigelow was eligible to utilize FMLA leave as of the time of her application. 43
D. Little Tikes’ Progressive Discipline Policy.
Little Tikes had a progressive discipline policy at the time of Bigelow’s termination of
employment.44 It consisted of a verbal warning, first written warning, second written warning, third
written warning and suspension, and then termination.45 Little Tikes’ policy was to issue written
discipline documenting the verbal discipline. 46
E. Little Tikes Terminated Bigelow’s Employment For Alleged Workplace Violence, But Did
Not Terminate A Non-Disabled Employee Involved In The Same Incident.
On April 12, 2022, Bigelow went to the Little Tikes parking lot on one of her off days to pick
up her bicycle which she had left the day before.47 Bigelow’s neighbor, Niki Motz, drove her to Little
37
George Dep., at pgs. 66-67.
38
Nelson Dep., at pg. 45.
39
Bigelow Dep., at pgs. 24-25, Helderlein Dep., at pgs. 39-40.
40
See attached FMLA Request 4/5/22, attached hereto as Plaintiff’s Exhibit 10.
41
Ward Dep., at Pgs. 42-44.
42
See attached Helderlein Email re FMLA Request, attached hereto as Plaintiff’s Exhibit 14 (emphasis added).
43
Ward Dep., at pg. 45.
44
George Dep., at pg. 23; Helderlein Dep., at pg. 21; Ward Dep., at pg. 18; See attached Corrective Action Policy,
attached hereto as Plaintiff’s Exhibit 1.
45
George Dep., at pgs. 23-24; Helderlein Dep., at pg. 22; Ward Dep., at pg. 19; Plaintiff’s Exhibit 1.
46
George Dep., at pg. 24; Helderlein Dep., at pg. 22; Ward Dep., at pg. 19.
47
Bigelow Dep., at pg. 37.
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Tikes to pick up the bicycle.48 A Little Tikes security camera recorded the incident. 49 Motz parked
her vehicle in the middle of an exit street so that Bigelow could load her bicycle into the trunk. 50 Motz
exited the vehicle to help Bigelow load the bicycle into the trunk. 51 The timing of picking up her
bicycle coincided with a shift change, where workers were leaving the facility and going to their
cars.52 William Jews, a temporary employee, was the first car attempting to leave the parking lot. 53
Seeing that Motz and Bigelow were unable to load the bicycle into the vehicle, the driver of the
vehicle started to drive away so that workers could exit the parking lot. 54
Even though Motz and Bigelow were in the way, Jews could have turned right down the street
to leave the parking lot which would have entirely avoided any conflict:
Q: Is there any other street or road out this way to the right where you could get onto a road and
leave the facility?
A: You can. The semis do exit that way. You can exit, come around, and at the end of the drive
is where they both meet and go over the tracks, if that makes sense.
Q: So you are able to take a right out of this parking lot to exit? It just may take a bit longer?
A: It’s possible, yes…55
The driver picking up Bigelow ultimately completely pulled away, leaving more than enough
space for Jews to drive away and exit the parking lot.56 Instead of drive away, Jews sped toward
Bigelow, almost to the point of running into her.57 Jews’ passenger-side window is visibly down, and
48
See attached affidavit of Niki Motz, attached hereto as Exhibit 21.
49
The Security Footage was introduced and authenticated as Plaintiff’s Exhibit 6 during April George’s deposition.
Defendant filed the Security Footage with the Court with its Motion for Summary Judgment.
50
Id.
51
Motz Aff., at ¶ 8.
52
Ex. 6; Bigelow Dep., at pg. 48; George Dep., at pgs. 70, 80; Motz Aff., at ¶¶ 5-7.
53
Ex. 6.
54
Ex. 6.
55
George Dep., at pg. 85.
56
Ex. 6, 2:53 into the recording, or time-stamped at 14:02:24.
57
Id.
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he can be seen shouting at Bigelow and Motz.58 Motz testified that Jews yelled at and threatened
Bigelow.59 Bigelow did not initiate the situation with Jews. 60
Although Jews easily could have driven away at this point, he decided to exit the vehicle to
physically confront Bigelow.61 Jews then physically approached Bigelow and got up in Bigelow’s
face.62 Bigelow did not physically threaten Jews, and did not throw any punches at Jews. 63 Bigelow
is also considerably smaller than Jews, and could be seen wobbling slowly in the beginning of the
recording as a result of her Achilles’ tendon issue. Bigelow sincerely urges the Court to view the
recording as Bigelow posits that a reasonable juror could view the video and could come away
believing that she did nothing that warranted immediate termination of employment.
The following day, Bigelow was made aware that Jews had complained to George about the
April 12, 2022 incident.64 George informed Bigelow that Jews alleged that Bigelow threatened him,
and that Bigelow had called him the “n-word.” 65 Jews’ allegation of Bigelow using the n word was
not corroborated by any witnesses.66 In fact, none of the witnesses even alleged that Bigelow used a
racial slur toward Jews.67
George confirmed Jews physically confronted Bigelow. 68 George agreed that Bigelow did not
swing at Jews and that Jews was physically larger than Bigelow.69 Further, when asked if Bigelow
made any gestures to physically intimidate Jews, George stated that: “From what I could view in the
58
Ex. 6, 2:53 into the recording, or time-stamped at 14:02:24.
59
Motz Aff., at ¶¶ 10-11.
60
Mtz Aff., at ¶ 17.
61
Ex. 6, 3:13 into the video recording.
62
Ex. 6, 3:20 into the video recording.
63
Bigelow Dep., at pg. 55; George Dep., at pg. 83; Ward Dep., at pgs. 55-56.
64
Bigelow Dep., at pgs. 39-40.
65
Id.
66
Ward Dep., at pg. 51.
67
Ward Dep., at pg. 65.
68
George Dep., at pg. 81.
69
George Dep., at pg. 83.
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video, no.”70 Jews also used heated and inappropriate language with Bigelow during the incident.71
Jews admitted to calling Bigelow a “bitch.” 72
George conceded that she did not agree with Jews’ conduct: “I advised him he should not have
gotten out of his car.”73 Although Jews had multiple opportunities to avoid conflict with Bigelow,
and despite agreeing that he called Bigelow a “bitch,” Little Tikes did not discipline Jews. 74 At the
time, Jews had not applied for or utilized FMLA leave, and Little Tikes had no reason to believe that
Jews had a disability.75 It bears reiterating that Jews was a temporary employee at the time, so it
would have been easy for Little Tikes to end his assignment and have the agency re-fill his position. 76
Although Little Tikes did not take any action to discipline Jews, it terminated Bigelow’s
employment on April 13, 2022 for the incident—eight days after Bigelow submitted an application
to utilize FMLA leave.77
F. Little Tikes Failed To Follow Its Open Door And Peer Review Policies.
Little Tikes had Open Door and Peer Review Policies.78 The Open Door Policy worked as the
first step for an employee or former employee to seek the resolution of an issue:
For situations involving discipline and/or termination of employment, each step of the appeal
process must be initiated. . .
***
Associates should always attempt to resolve any issues or complaints with their immediate
supervisor or Team Lead before starting the Open Door process. If the situation is not or cannot
be resolved, the Associate should obtain an Open Door Form from either the Plant Human
Resources or their Immediate Supervisor or Team Leader.
1) The first Step is addressing the Group Leader or Department Manager, your Team Leader’s
supervisor.
70
George Dep., at pg. 94.
71
George Dep., at pg. 95.
72
Plt. Ex. 4.
73
George Dep., at pg. 97.
74
George Dep., at pg. 97; Ward Dep., at pgs. 67-68.
75
Ward Dep., at pgs. 58-59.
76
George Dep., at pgs. 40-42; Ward Dep., at pg. 32.
77
See attached Employee Change Form, attached hereto as Plaintiff’s Exhibit 13.
78
See attached Open Door and Review Policies, attached hereto as Plaintiff’s Exhibit 9.
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2) The Second Step is meeting with the Plant Manager.
3) The Third and Final Step involves the Associate choosing either to meet directly with the
Director of Operations or utilizing the Peer Review Process (if appropriate).79
Little Tikes’ Peer Review process begins after all three of the Open Door Policy steps have
been taken.80 The Peer Review process is:
A formal problem-solving system conducted by a randomly selected group of an Associate’s
peers. It is designed to ensure that each Associate’s concerns are carefully reviewed, and the issue
brought to resolution.
***
Peer Review provides a system where management’s actions are analyzed to ensure that the
application of policies or practices was followed correctly, fairly, and consistently. If they find
otherwise, the Peer Review Panel has the authority to make appropriate changes or remedies
consistent with Little Tikes’ policies and/or past practices.
***
The Peer Review Process is available to all hourly plant Associates at Little Tikes Hudson who
have completed their introductory period.81
The Employee Change Notice showed that Bigelow was terminated on April 13, 2022, and
was notified on April 14, 2022.82 On April 17, 2022, Bigelow initiated a complaint by emailing
Nelson stating that: “I never once said those things or did those things, I really did love my job, the
way they did it wasn’t fair, the investigation that is.”83 Within the same email, Bigelow mentioned to
Nelson that because of her termination that: “I can’t get surgery, please call me.” 84 Bigelow sent
multiple emails to Nelson after this complaining about her termination of employment. 85
Nelson forwarded Ward Bigelow’s emails advising: “Just sending you all of these so you have
them. I am not engaging her at all.”86 Ward went so far as to contact Terri Hauenstein, the Vice
President of Human Resources for Little Tikes, and on April 20, 2022, it was discussed to have
79
Plaintiff’s Exhibit 9.
80
Plaintiff’s Exhibit 9.
81
Plaintiff’s Exhibit 9.
82
Bigelow Dep., at pgs. 54-55.
83
See attached Tammy Emails 4/17, attached hereto as Plaintiff’s Exhibit 16.
84
Plaintiff’s Exhibit 16.
85
See generally, Plaintiff’s Exhibits 16 & 17.
86
Plaintiff’s Exhibit 17.
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Bigelow’s email blocked.87 Further, on April 20, 2022, Hauenstein stated that Bigelow’s email
attempts at complaining about her wrongful termination made Hausentein: “suspect there is possibly
some instability with Ms. Bigelow.” 88 Nobody at Little Tikes provided Bigelow with the Open Door
Policy form or told her about the Open Door Policy and Peer Review Process. 89 Critically, the Open
Door Policy does not exclude review of incidents that result in immediate termination or allegations
of workplace safety.90
G. Little Tikes Terminated Bigelow’s Employment For Conduct Where It Did Not Terminate
A Similarly Situated Employee.
Not only did Bigelow establish that Little Tikes terminated Bigelow where it did not terminate
Jews for the same incident, Bigelow established that at least one other similarly situated employee
was not terminated for similar alleged conduct. On December 8, 2018, Michael Anstead was given a
Corrective Action Notice, first written warning, when: “making a hostile environment on an issue
that another employee is doing something wrong with their work ethics.” 91 The supervisor noted: “if
an employee is doing something wrong, notify the technician, let the technician or supervisor handle
it. Do not try to take matters into your own hands.”92 It is undisputed that at the time of receiving this
discipline that Anstead had not requested FMLA leave and that Little Tikes had no reason to believe
that Anstead suffered from a disability. Anstead engaged in creating a hostile work environment, and
Anstead remained employed with Little Tikes after December 8, 2018. 93
87
See attached Hauenstein Emails 4/20, attached hereto as Plaintiff’s Exhibit 18.
88
Plaintiff’s Exhibit 18.
89
George Dep., at pg. 102, Helderlein Dep., at pg. 63, Ward Dep., at pg. 68.
90
Plt. Ex. 9.
91
See attached Anstead Discipline, attached hereto as Plaintiff’s Exhibit 19.
92
Plaintiff’s Exhibit 19.
93
Ward Dep., at pgs. 74-75; Plaintiff’s Exhibit 19.
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III. SUMMARY JUDGMENT STANDARD
The moving party has the burden of establishing the appropriateness of summary judgment.94 In
Lillie v. Meachem,95 the burden of the party moving for summary judgment was succinctly explained:
Summary judgment is appropriate only “when the requirements of Civ.R. 56(C) are met.” Adkins
v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The party moving for
summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come
to but one conclusion and that conclusion is adverse to the nonmoving party, said party being
entitled to have the evidence construed most strongly in his favor. Id., citing Civ.R. 56(C); Horton
v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the
syllabus. In ruling on a motion for summary judgment, a court may not “weigh evidence or choose
among reasonable inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis
(1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court must consider the above standard
while construing all evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.96
To that end, a trial court can only “state as a basis for its decision the stipulated facts or
undisputed facts, but it cannot find facts that are genuinely disputed and are material.” 97
IV. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S FMLA RETALIATION
CLAIM (COUNT IV).
A. Little Tikes Concedes That Bigelow Has Established A Prima Facie Case Of FMLA
Retaliation.
The Sixth Circuit Court of Appeals considers FMLA claims under the McDonnell Douglas
burden-shifting framework.98 To establish a prima facie case for FMLA retaliation, Bigelow must
show (1) she notified her employer of her intent to take FMLA protected leave; (2) she suffered an
adverse employment action; and (3) there exists a causal connection between her exercise of FMLA
rights and the adverse employment action.99 As the United States Supreme Court has recognized,
“outright admissions of impermissible racial motivation are infrequent and plaintiffs often must rely
94
Hamlin v. McAlpin Co., 175 Ohio St. 517, syllabus ¶ 2 (1964); Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115, 120, 570 N.E.2d
1108, 1114 (1991).
95
2009-Ohio-4934 cert. denied. 124 Ohio St.3d 1475, 921 N.E.2d 246, 2010-Ohio-354.
96
Id. @ ¶ 21; see also Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286 @ syllabus ¶ 3.
97
Tucker v. Kanzios, 2009-Ohio-2788 @ ¶ 15.
98
Marshall v. The Rawlings Company LLC, 854 F.3d 368, 379 (6th Cir. 2017).
99
Brady v. Potter, 476 F.Supp.2d 745 (N.D. Ohio 2007).
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upon other evidence.”100 If the plaintiff establishes her prima facie case, the burden shifts to the
defendant to establish a legitimate, non-discriminatory reason for termination. 101 If the defendant
provides such a reason, then the plaintiff must show that the reason is simply pretext for
discrimination.102 “A plaintiff’s burden in establishing a prima facie case is not intended to be an
onerous one.”103 Little Tikes concedes that Bigelow has met all the elements of her prima facie case,
but only disputes pretext.104
B. As Little Tikes Concedes, Temporal Proximity Alone Establishes Bigelow’s Causal
Connection Element.
When examining the prima facie elements, courts must avoid conflating the plaintiff’s burden
with the legitimate business reason/pretext elements of the McDonnell Douglas test.105 To that end,
Little Tikes’ argument regarding pretext should not be conflated to impact the Court’s analysis of
Bigelow’s prima facie case. Ohio courts have held that temporal proximity alone is sufficient to
establish causation.106 In Clark City School District v. Breeden,107 the Supreme Court held in part
that, “cases that accept mere temporal proximity between an employer’s knowledge of [the] protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be ‘very close’.” Temporal proximity as
evidence of causation has been a precedent has been consistently applied by courts throughout the
100
Holbrook v. LexisNexis, 169 Ohio App.3d 345, 862 N.E.2d 892 (2nd Dist. 2006) citing Hunt v. Cromartie (1999), 526
U.S. 541, 553, 119 S.Ct. 1545.
101
McKinnon, 814 Fed.Appx. 35, at 42.
102
Id.
103
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007); Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007).
104
MSJ, at pg. 9. Bigelow address pretext as to all her claims infra, Section VII.
105
See Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813-14 (6th Cir. 2011); White v. Columbus Metropolitan Housing
Auth., 429 F.3d 232, 242 (6th Cir. 2005); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 584-85 (6th Cir.2002).
106
See, Ningard v. Shin Etsu Silicones, 2009-Ohio-3171, 2009 WL 186254 (9th Dist. 2009), and Thatcher v. Goodwill
Industries, 117 Ohio App. 3d 525 (9th Dist. 1997) (court held three weeks is sufficient for causation), Payton v.
Receivables Outsourcing, Inc. 163 Ohio App. 3d 722 (8th Dist. 2005) (sexual harassment complaint closely followed by
adverse employment action sufficient for causation).
107
Clark Cty. School Dist. v. Breeden (2001), 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L. Ed.
2d 509. 2010-Ohio-5657, *P45; 2010 Ohio App. LEXIS 4774, **12
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state of Ohio.108 Close temporal proximity between the employer’s knowledge of the protected
activity and the adverse employment action alone may be significant enough to constitute evidence
of a causal connection.109
Here, Little Tikes terminated Bigelow’s employment eight days after Bigelow applied to
utilize FMLA leave. This is well within the timeframe that automatically establishes a prima facie
case of FMLA retaliation.
V. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S FMLA INTERFERENCE
CLAIM (COUNT III).
Little Tikes concedes that Bigelow has established a prima facie case for FMLA interference.
Pursuant to the FMLA, “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.” 110 An interference
claim requires a plaintiff to establish five prongs: (1) he was eligible to utilize FMLA leave; (2) the
employer was a covered employer under the FMLA; (3) he was entitled to FMLA leave; (4) he
provided notice to the employer of his intent to use FMLA leave; and (5) the employer subsequently
denied FMLA benefits.111 Once a prima facie case is established, the employer can only escape
liability if it can show that “the employer has a legitimate reason unrelated to the exercise of FMLA
rights for engaging in the challenged conduct..”112 There is no dispute that Bigelow was eligible to
utilize FMLA leave; that she was entitled to use FMLA leave; that Little Tikes was aware of the
request to utilize FMLA leave; and that Little Tikes ultimately denied the FMLA leave. Little Tikes
only asserts that it had a legitimate reason to terminate Bigelow’s employment. 113 As discussed infra,
108
See also, Dover v. Carmeuse Natural Chemicals, 128 Ohio St.3d 1428 (2011), Zechar v. Ohio Department of
Education, 121 Ohio Misc. 2d 52 (Ohio Ct. Clm. 2002); Kosut v. First Energy Club, 2013-Ohio-2876, 2013 WL 3380172
(7th Dist. 2013), Payton, 163 Ohio App. 3d 722; Thatcher v. Goodwill Industries, 117 Ohio App. 3d 525, 690 N.E.2d
1320.
109
Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508 (2001) (Emphasis added).
110
29 U.S.C. § 2615(a)(1).
111
Novak v. MetroHealth Medical Center, 503 F.3d 572, 577-78 (6th Cir. 2007); Walton v. Ford Motor Co., 424 F.3d
481, 485 (6th Cir. 2005).
112
Grace v. USCAR, 521 F.3d 655, 670
113
MSJ, at pgs. 12-13.
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Section VII, Little Tikes did not have a legitimate reason to terminate Bigelow’s employment, and as
such, Little Tikes’ Motion as to this claim should be denied.
VI. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S DISABILITY AND
PERCEIVED DISABILITY DISCRIMINATION CLAIMS (COUNTS I & II).
A. Prima Facie Case.
Ohio courts analyze state and federal disability discrimination claims similarly. 114 Bigelow
can establish this claim through the McDonnell Douglas burden shifting analysis.115 A prima facie
case is established where (1) the employee is disabled or perceived as such, (2) the employer took
adverse employment action, at least in part, because the employee is disabled or otherwise treated the
disabled employee differently than similarly-situated non-disabled employees, and (3) the employee,
though disabled, can perform the job’s essential functions, with or without reasonable
accommodation.116 Here, Little Tikes only disputes that Bigelow was disabled, and disputes that it
was aware of Bigelow suffering from a disability.117
B. Bigelow Satisfied The First Element Of Her Disability Claim.
1. Bigelow’s Achilles Tendon Issue Substantially Impairs Her Ability To Walk.
One way an individual can be considered “disabled” under state law is if she has “a physical
or mental impairment that substantially limits one or more major life activities, including…
walking… and working.”118 Similarly, under federal law, a major life activity includes “walking.”119
The impairment is commonly found to be substantially limiting if the individual is “[u]nable to
114
Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569 (1998); Jakubowski v Christ Hosp., Inc., 627 F.3d 195
(6th Cir. 2010).
115
Holbrook v. LexisNexis, 169 Ohio App.3d 345, 862 N.E.2d 892 (2nd Dist. 2006); Sivarajan v. Nationwide, Franklin
App. No. 97APE10-1426, 1998 WL 318873 (10th Dist. 1998) citing McDonnell Douglas Corp. v. Green (1973), 411 U.S.
792, 802, 93 S.Ct. 1817; Waddell v. Roxane Laboratories, Inc., 2004 WL 1103710, 2004-Ohio-2499 (10th Dist. 2004);
Rice v. Cuyahoga Cty. Dept. of Justice, 2005 WL 2467058, 2005-Ohio-5337 (8th Dist. 2005).
116
Hood v. Diamond Products, Inc., 74 Ohio St.3d 298, 1996 Ohio 259, 658 N.E.2d 738; Columbus Civil Service Commission
v. McGlone, 82 Ohio St.3d 569 (Ohio 1998). See also Brewer v. Cleveland City Schools Bd., 122 Ohio App.3d 378, 385,
(8th Dist. 1997), applying McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.
117
MSJ, at pg. 13.
118
R.C. § 4112.01(A)(13) (emphasis added).
119
C.F.R. § 35.108(c)(1)(i).
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perform a major life activity that the average person in the general population can perform…” 120
Establishing that an individual is disabled is not meant to be a “demanding standard.” 121A plaintiff
may establish that she is disabled through her testimony alone so long as such testimony contains
“examples or details regarding how the employee’s impairment impacted her life.” 122 On point, the
plaintiff in the Sixth Circuit Court of Appeals case of Talley presented enough evidence to meet the
disabled prima facie element:
She does not allege that she is disabled from working: rather, Talley’s claim is that she is
substantially limited in her ability to walk, stand, and lift objects and that the defendants failed to
accommodate her needs following her various injuries. According to her testimony, the manner
and duration under which she can perform these activities is significantly restricted due to severe
pain. Talley testified at length regarding her various injuries and their impact on her ability to walk,
stand, and lift as compared to an average person in the general population.123
Here, Bigelow suffers from a lump on her Achilles tendon that substantially impairs her ability
to walk. Critically, Bigelow testified as a result of her issues, “I could barely walk.” 124 Indeed, Little
Tikes’ own employees acknowledged that Bigelow walks with a limp as a result of her disability.125
She openly told everyone at Little Tikes that she was in a lot of pain and that she was going to need
surgery as a result of the pain due to walking.”126 More, as Bigelow was not able to obtain surgery
after being fired as a result of losing health insurance, Bigelow’s pain and impairment to walking
continues.127 As Bigelow’s condition substantially impairs her ability to walk, and this per state and
federal statute satisfies the definition of disability, Bigelow is considered disabled.
120
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008) (quoting 29 C.F.R. § 16302.(j)(1).
121
29 C.F.R. § 1630.2(j)(1)(i); Mullenix v. Eastman Chemical Company, 237 F.Supp.3d 695, 704-705 (E.D. Tenn. 2017).
122
Popeck v. Rawlings Company LLC, 2018 WL 2074198, at *7 (W.D. Ky. 2018) (quoting Hensler v. City of O’Fallon, No.
09CV-268-DRH-PMF, 2017 WL 293401, at * 8 (S.D. Ill. Kan. 31, 2012) (internal quotations omitted).
123
Talley, 542 F.3d 1107.
124
Bigelow Dep., pg. 28.
125
George Dep., at pg. 64-65. Nelson Dep., at pg. 42.
126
Id.
127
Id. at pg. 26.
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2. Bigelow Has A Record Of A Disability.
Bigelow can also establish that she is disabled in showing: “a record of a physical or mental
impairment.”128 The Western District of Michigan succinctly defined:
The record-of-disability prong of the ADA, § 12102(2)(B), protects “people who have recovered
from previously disabling conditions (cancer or coronary disease, for example) but who remain
vulnerable to the fears and stereotypes of their employers.” E.E.O.C. v. DaimlerChrysler
Corp., 111 Fed. Appx. 394, 404, 2004 WL 2203586, *8 (6th Cir.2004) (quoting Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir.1998)). An individual has a
“record of” disability if he “has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life activities.” Id. (quoting 29
C.F.R. § 1630.2(k)). “This part of the definition is satisfied if a record relied on by an employer
indicates that the individual has or has had a substantially limiting impairment. The impairment
indicated in the record must be an impairment that would substantially limit one or more of the
individual’s major life activities. There are many types of records that could potentially contain
this info
Preview
CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 1 of 50 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO TAMMY BIGELOW, ) CASE NO.: CV-2022-09-3190 ) Plaintiff, ) JUDGE CHRISTINE CROCE ) v. ) PLAINTIFF’S BRIEF IN ) OPPOSITION TO DEFENDANT’S THE LITTLE TIKES COMPANY, ) MOTION FOR SUMMARY ) JUDGMENT Defendant. ) I. INTRODUCTION Tammy Bigelow worked for Little Tikes for almost three years, largely without incident, until she requested Family and Medical Leave Act leave because of a lump that she has on her Achilles tendon. Bigelow’s manager, Kathy Nelson, testified that Bigelow was a good worker and friendly. However, in early 2022, Bigelow’s Achilles tendon issue worsened to the point where she appeared to work wearing a boot, and noticeably walked with a limp. Indeed, Bigelow was open about suffering from significant pain because of her condition and that she required surgery to treat her condition. Although Bigelow openly discussed her condition, and her managers Nelson and April George were aware of her condition, Lisa Ward, the Human Resources Manager, denied any knowledge of her condition. Ward denies this although she indisputably was aware of Bigelow’s FMLA application and had two or three conversations with Bigelow—who was known to openly discuss her condition and visibly walked with a limp. Bigelow applied for FMLA leave on April 5, 2022, and Little Tikes terminated her employment eight days later. Little Tikes concedes this temporal proximity satisfies Bigelow’s prima facie case for her FMLA claims. However, Little Tikes asserts that an incident between Bigelow and temporary employee William Jews on April 12, 2022 warranted immediate termination. During this incident, it is undisputed that Jews called Bigelow a “bitch,” physically confronted Bigelow, and consciously refused at least three opportunities to avoid conflict with Bigelow. More, security footage .1 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 2 of 50 of the incident exists, which Bigelow respectfully posits that a reasonable juror could view the footage and be shocked that her conduct warranted immediate termination. Worse, although Bigelow’s conduct somehow warranted immediate termination, Jews, who was not disabled and had not applied for FMLA leave, was not even issued any discipline. As Little Tikes terminated Bigelow’s employment immediately after her Achilles tendon issue worsened to the point of requesting FMLA leave, and as it terminated Bigelow for conduct where it did not terminate similarly situated employees, Defendant’s Motion for Summary Judgment should be denied. II. STATEMENT OF FACTS A. Little Tikes Employed Bigelow As A Janitor. Bigelow was initially staffed at Little Tikes as a temporary worker in June 2019 where she held in multiple positions, from working on the line making boxes to working in shipping. 1 Little Tikes then hired Bigelow in as a permanent employee on May 11, 2021 as a Janitor. 2 As a Janitor, Bigelow was expected to sweep and mop; clean the bathrooms; empty out the trash; along with other cleaning tasks throughout the facility.3 Bigelow reported to April George, the Direct Fulfilment Manager,4 who reported up to Kathy Nelson, Distribution Manager. 5 George did not supervise or personally observe Bigelow’s work performance. 6 Oddly, Nelson testified she mostly only was aware of Bigelow’s job performance from what she learned from George. 7 Nelson had authorization to discipline Bigelow, but testified that she required input from Human Resources to terminate Bigelow’s employment.8 However, Human Resources Manager Lisa Ward testified that not only did Nelson had authority to discipline Bigelow’s employment, but she did also have authority to terminate 1 Deposition of Tammy Bigelow, at pg. 19-20. Plaintiff used continuously numbered exhibits during her depositions. Not all marked exhibits are referenced in the instant brief. 2 See attached Tammy Hired by Temp Agency Documentation, attached hereto as Plaintiff’s Exhibit 11. 3 See attached Janitor Job Description, attached hereto as Exhibit 20. 4 George Dep., pgs. 18. 5 Deposition of Kathy Nelson, at pgs. 12-13. 6 George Dep., pgs. 22, 44. 7 Nelson Dep., pg. 16. 8 Id. at pgs. 14-18. .2 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 3 of 50 Bigelow’s employment.9 Ward did not observe Bigelow’s work performance. 10 Ward had authority to issue discipline and to terminate Bigelow’s employment. 11 Despite having a progressive discipline policy, during the years of working at Little Tikes, and prior to her separation of employment, Bigelow had not been issued any discipline for her performance.12 In fact, it was Nelson who wanted to bring Bigelow in as a permanent employee as she was a good worker.13 As to Bigelow’s performance, Nelson testified: Q. So did you think Tammy was a good employee? A. Yes. Q. Why do you think Tammy was a good employee? A. Her work was really good. Everything we asked her to do was done, and it was done well. Q. How often would you interact with Tammy? A. Pretty much daily. Q. Did you like her? A. Yes. Q. What did you like about her? A. She is a nice person, did good work. Q. Was she friendly? A. Yes.14 Little Tikes suspended Bigelow briefly due to attendance issues in January 2022. 15 Being suspended for attendance is not discipline.16 After Little Tikes suspended Bigelow, Nelson specifically requested that Little Tikes bring Bigelow back because she “did good work.” 17 Bigelow 9 Ward Dep., pg. 18. 10 Ward Dep., at pg. 35. 11 Ward Dep., at pgs 17-18. 12 Bigelow Dep., at pg. 30; George Dep., at pg. 57. 13 Nelson Dep., at pg. 35. 14 Nelson Dep., at pgs. 35-36. 15 MSJ., at pg. 3. 16 Helderlein Dep., at pg. 23; See attached Attendance Termination Document, attached hereto as Plaintiff’s Exhibit 12. 17 Nelson Dep., at pg. 41. .3 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 4 of 50 had not made a request to use FMLA at the time Little Tikes brought Bigelow back after suspending her for attendance reasons.18 It is undisputed that as of April 4, 2022, Little Tikes had no intention in terminating Bigelow’s employment.19 More, no one had made a request as of April 4, 2022 to terminate her employment. 20 B. Bigelow’s Well-Known Achilles’ Tendon Issues Rendered Her Disabled. Bigelow suffers from having a big lump on her Achilles tendon. 21 Bigelow sought medical attention related to her Achilles tendon. 22 As a result of the Achilles tendon issue: “I could barely walk. I forced myself.”23 Bigelow’s Achilles tendon issue is so severe that it causes Bigelow to visibly walk with a limp.24 Bigelow specifically told Ray Louis, Henry Hileman, George, and Nelson about her Achilles tendon issue.25 Louis and Hileman are both shipping leads. 26 Bigelow told these individuals that: “I was in a lot of pain and was going to have to have surgery.” 27 George corroborated Bigelow’s well-known Achille’s tendon issues: Q: Okay. During Tammy’s employment, did she talk to you about having issues with her Achilles tendon? A: I was aware she had an issue with her foot. Q: Okay. How did you become aware of this? A: I believe I saw her in there with a boot on, and she openly spoke about it. Q: So you saw her wearing a boot? A: She would come in and change into a tennis shoe or a shoe. Q: Okay. And what do you mean she was open about it? 18 Nelson Dep., at pg. 41. 19 Nelson Dep., at pg. 47. George Dep., at pg. 67. Ward Dep., at pg. 46. 20 Nelson Dep., at pg. 47. George Dep., at pg. 67. Ward Dep., at pg. 46. 21 Bigelow Dep., at pg. 25; George Dep., at pg. 64. 22 Bigelow Dep., at pg. 25. 23 Bigelow Dep., at pg. 28. 24 George Dep., at pg. 64-65. Nelson Dep., at pg. 42. 25 Id. 26 George Dep., at pg. 22. 27 Bigelow Dep., at pg. 28. .4 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 5 of 50 A: She openly talked about her foot issue. *** Q: Okay. So you were aware her foot issue would cause her pain or discomfort? A: Yes. Q: And were you aware or did you overhear her speaking about -- saying her foot problem would cause issues with her walking? A: Yes. Q. And did you notice her walking with a limp because of her foot problem? A. I guess sometimes, yes.28 Nelson also confirmed knowledge of Bigelow’s well-known Achille’s tendon issues. Nelson further confirmed that she became aware of Bigelow’s condition after Bigelow’s attendance suspension in January 2022.29 Specifically, Nelson confirmed that she saw Bigelow wearing a boot to work, and pertinently, noticing that Bigelow walked with a limp.30 Nelson also acknowledged that Bigelow was open about her Achille’s tendon issues and spoke about these issues with many people at work.31 This included talking about how Bigelow would need time off work for surgery. 32 Ward denies that she became aware of Bigelow suffering from Achilles’ tendon issues. 33 She asserts that although she was aware that Bigelow requested FMLA leave, that she was not aware of the underlying condition.34 Ward did have two or three “casual” conversations with Bigelow. 35 C. Bigelow Requested To Utilize FMLA Leave For Surgery On Her Achilles’ Tendon. Around March of 2022, George recalls Bigelow speaking to her about needing to get surgery for her foot.36 George explained in regards to Bigelow requesting FMLA leave, “I knew that she said 28 George Dep., at pg. 64-65. 29 Nelson Dep., at pg. 42. 30 Nelson Dep., at pg. 42. 31 Nelson Dep., at pg. 44. 32 Id. 33 Ward Dep., at pg. 42. 34 Id. 35 Id. 36 George Dep., at pgs. 65-66. .5 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 6 of 50 she was going to need it.”37 Due to Bigelow’s discussions with Nelson about needing to take time off work for surgery, Nelson advised Bigelow to “get with HR” so she could apply for FMLA leave. 38 On April 5, 2022, Bigelow spoke to Little Tikes’ Human Resources Coordinator, Ruth Helderlein about requesting FMLA leave for surgery on Bigelow’s Achilles tendon. 39 Bigelow filed an official Request for Leave of Absence using FMLA on April 5, 2022—which was acknowledged as received by Ward.40 Ward was aware of Bigelow’s FMLA request and the need to take time off for a serious medical condition.41 On April 6, 2022, Helderlein emailed Nelson, copying Ward, stating, “Tammy is requesting both intermittent and continuous FMLA for her own serious health condition.”42 Ward agreed that Bigelow was eligible to utilize FMLA leave as of the time of her application. 43 D. Little Tikes’ Progressive Discipline Policy. Little Tikes had a progressive discipline policy at the time of Bigelow’s termination of employment.44 It consisted of a verbal warning, first written warning, second written warning, third written warning and suspension, and then termination.45 Little Tikes’ policy was to issue written discipline documenting the verbal discipline. 46 E. Little Tikes Terminated Bigelow’s Employment For Alleged Workplace Violence, But Did Not Terminate A Non-Disabled Employee Involved In The Same Incident. On April 12, 2022, Bigelow went to the Little Tikes parking lot on one of her off days to pick up her bicycle which she had left the day before.47 Bigelow’s neighbor, Niki Motz, drove her to Little 37 George Dep., at pgs. 66-67. 38 Nelson Dep., at pg. 45. 39 Bigelow Dep., at pgs. 24-25, Helderlein Dep., at pgs. 39-40. 40 See attached FMLA Request 4/5/22, attached hereto as Plaintiff’s Exhibit 10. 41 Ward Dep., at Pgs. 42-44. 42 See attached Helderlein Email re FMLA Request, attached hereto as Plaintiff’s Exhibit 14 (emphasis added). 43 Ward Dep., at pg. 45. 44 George Dep., at pg. 23; Helderlein Dep., at pg. 21; Ward Dep., at pg. 18; See attached Corrective Action Policy, attached hereto as Plaintiff’s Exhibit 1. 45 George Dep., at pgs. 23-24; Helderlein Dep., at pg. 22; Ward Dep., at pg. 19; Plaintiff’s Exhibit 1. 46 George Dep., at pg. 24; Helderlein Dep., at pg. 22; Ward Dep., at pg. 19. 47 Bigelow Dep., at pg. 37. .6 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 7 of 50 Tikes to pick up the bicycle.48 A Little Tikes security camera recorded the incident. 49 Motz parked her vehicle in the middle of an exit street so that Bigelow could load her bicycle into the trunk. 50 Motz exited the vehicle to help Bigelow load the bicycle into the trunk. 51 The timing of picking up her bicycle coincided with a shift change, where workers were leaving the facility and going to their cars.52 William Jews, a temporary employee, was the first car attempting to leave the parking lot. 53 Seeing that Motz and Bigelow were unable to load the bicycle into the vehicle, the driver of the vehicle started to drive away so that workers could exit the parking lot. 54 Even though Motz and Bigelow were in the way, Jews could have turned right down the street to leave the parking lot which would have entirely avoided any conflict: Q: Is there any other street or road out this way to the right where you could get onto a road and leave the facility? A: You can. The semis do exit that way. You can exit, come around, and at the end of the drive is where they both meet and go over the tracks, if that makes sense. Q: So you are able to take a right out of this parking lot to exit? It just may take a bit longer? A: It’s possible, yes…55 The driver picking up Bigelow ultimately completely pulled away, leaving more than enough space for Jews to drive away and exit the parking lot.56 Instead of drive away, Jews sped toward Bigelow, almost to the point of running into her.57 Jews’ passenger-side window is visibly down, and 48 See attached affidavit of Niki Motz, attached hereto as Exhibit 21. 49 The Security Footage was introduced and authenticated as Plaintiff’s Exhibit 6 during April George’s deposition. Defendant filed the Security Footage with the Court with its Motion for Summary Judgment. 50 Id. 51 Motz Aff., at ¶ 8. 52 Ex. 6; Bigelow Dep., at pg. 48; George Dep., at pgs. 70, 80; Motz Aff., at ¶¶ 5-7. 53 Ex. 6. 54 Ex. 6. 55 George Dep., at pg. 85. 56 Ex. 6, 2:53 into the recording, or time-stamped at 14:02:24. 57 Id. .7 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 8 of 50 he can be seen shouting at Bigelow and Motz.58 Motz testified that Jews yelled at and threatened Bigelow.59 Bigelow did not initiate the situation with Jews. 60 Although Jews easily could have driven away at this point, he decided to exit the vehicle to physically confront Bigelow.61 Jews then physically approached Bigelow and got up in Bigelow’s face.62 Bigelow did not physically threaten Jews, and did not throw any punches at Jews. 63 Bigelow is also considerably smaller than Jews, and could be seen wobbling slowly in the beginning of the recording as a result of her Achilles’ tendon issue. Bigelow sincerely urges the Court to view the recording as Bigelow posits that a reasonable juror could view the video and could come away believing that she did nothing that warranted immediate termination of employment. The following day, Bigelow was made aware that Jews had complained to George about the April 12, 2022 incident.64 George informed Bigelow that Jews alleged that Bigelow threatened him, and that Bigelow had called him the “n-word.” 65 Jews’ allegation of Bigelow using the n word was not corroborated by any witnesses.66 In fact, none of the witnesses even alleged that Bigelow used a racial slur toward Jews.67 George confirmed Jews physically confronted Bigelow. 68 George agreed that Bigelow did not swing at Jews and that Jews was physically larger than Bigelow.69 Further, when asked if Bigelow made any gestures to physically intimidate Jews, George stated that: “From what I could view in the 58 Ex. 6, 2:53 into the recording, or time-stamped at 14:02:24. 59 Motz Aff., at ¶¶ 10-11. 60 Mtz Aff., at ¶ 17. 61 Ex. 6, 3:13 into the video recording. 62 Ex. 6, 3:20 into the video recording. 63 Bigelow Dep., at pg. 55; George Dep., at pg. 83; Ward Dep., at pgs. 55-56. 64 Bigelow Dep., at pgs. 39-40. 65 Id. 66 Ward Dep., at pg. 51. 67 Ward Dep., at pg. 65. 68 George Dep., at pg. 81. 69 George Dep., at pg. 83. .8 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 9 of 50 video, no.”70 Jews also used heated and inappropriate language with Bigelow during the incident.71 Jews admitted to calling Bigelow a “bitch.” 72 George conceded that she did not agree with Jews’ conduct: “I advised him he should not have gotten out of his car.”73 Although Jews had multiple opportunities to avoid conflict with Bigelow, and despite agreeing that he called Bigelow a “bitch,” Little Tikes did not discipline Jews. 74 At the time, Jews had not applied for or utilized FMLA leave, and Little Tikes had no reason to believe that Jews had a disability.75 It bears reiterating that Jews was a temporary employee at the time, so it would have been easy for Little Tikes to end his assignment and have the agency re-fill his position. 76 Although Little Tikes did not take any action to discipline Jews, it terminated Bigelow’s employment on April 13, 2022 for the incident—eight days after Bigelow submitted an application to utilize FMLA leave.77 F. Little Tikes Failed To Follow Its Open Door And Peer Review Policies. Little Tikes had Open Door and Peer Review Policies.78 The Open Door Policy worked as the first step for an employee or former employee to seek the resolution of an issue: For situations involving discipline and/or termination of employment, each step of the appeal process must be initiated. . . *** Associates should always attempt to resolve any issues or complaints with their immediate supervisor or Team Lead before starting the Open Door process. If the situation is not or cannot be resolved, the Associate should obtain an Open Door Form from either the Plant Human Resources or their Immediate Supervisor or Team Leader. 1) The first Step is addressing the Group Leader or Department Manager, your Team Leader’s supervisor. 70 George Dep., at pg. 94. 71 George Dep., at pg. 95. 72 Plt. Ex. 4. 73 George Dep., at pg. 97. 74 George Dep., at pg. 97; Ward Dep., at pgs. 67-68. 75 Ward Dep., at pgs. 58-59. 76 George Dep., at pgs. 40-42; Ward Dep., at pg. 32. 77 See attached Employee Change Form, attached hereto as Plaintiff’s Exhibit 13. 78 See attached Open Door and Review Policies, attached hereto as Plaintiff’s Exhibit 9. .9 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 10 of 50 2) The Second Step is meeting with the Plant Manager. 3) The Third and Final Step involves the Associate choosing either to meet directly with the Director of Operations or utilizing the Peer Review Process (if appropriate).79 Little Tikes’ Peer Review process begins after all three of the Open Door Policy steps have been taken.80 The Peer Review process is: A formal problem-solving system conducted by a randomly selected group of an Associate’s peers. It is designed to ensure that each Associate’s concerns are carefully reviewed, and the issue brought to resolution. *** Peer Review provides a system where management’s actions are analyzed to ensure that the application of policies or practices was followed correctly, fairly, and consistently. If they find otherwise, the Peer Review Panel has the authority to make appropriate changes or remedies consistent with Little Tikes’ policies and/or past practices. *** The Peer Review Process is available to all hourly plant Associates at Little Tikes Hudson who have completed their introductory period.81 The Employee Change Notice showed that Bigelow was terminated on April 13, 2022, and was notified on April 14, 2022.82 On April 17, 2022, Bigelow initiated a complaint by emailing Nelson stating that: “I never once said those things or did those things, I really did love my job, the way they did it wasn’t fair, the investigation that is.”83 Within the same email, Bigelow mentioned to Nelson that because of her termination that: “I can’t get surgery, please call me.” 84 Bigelow sent multiple emails to Nelson after this complaining about her termination of employment. 85 Nelson forwarded Ward Bigelow’s emails advising: “Just sending you all of these so you have them. I am not engaging her at all.”86 Ward went so far as to contact Terri Hauenstein, the Vice President of Human Resources for Little Tikes, and on April 20, 2022, it was discussed to have 79 Plaintiff’s Exhibit 9. 80 Plaintiff’s Exhibit 9. 81 Plaintiff’s Exhibit 9. 82 Bigelow Dep., at pgs. 54-55. 83 See attached Tammy Emails 4/17, attached hereto as Plaintiff’s Exhibit 16. 84 Plaintiff’s Exhibit 16. 85 See generally, Plaintiff’s Exhibits 16 & 17. 86 Plaintiff’s Exhibit 17. .10 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 11 of 50 Bigelow’s email blocked.87 Further, on April 20, 2022, Hauenstein stated that Bigelow’s email attempts at complaining about her wrongful termination made Hausentein: “suspect there is possibly some instability with Ms. Bigelow.” 88 Nobody at Little Tikes provided Bigelow with the Open Door Policy form or told her about the Open Door Policy and Peer Review Process. 89 Critically, the Open Door Policy does not exclude review of incidents that result in immediate termination or allegations of workplace safety.90 G. Little Tikes Terminated Bigelow’s Employment For Conduct Where It Did Not Terminate A Similarly Situated Employee. Not only did Bigelow establish that Little Tikes terminated Bigelow where it did not terminate Jews for the same incident, Bigelow established that at least one other similarly situated employee was not terminated for similar alleged conduct. On December 8, 2018, Michael Anstead was given a Corrective Action Notice, first written warning, when: “making a hostile environment on an issue that another employee is doing something wrong with their work ethics.” 91 The supervisor noted: “if an employee is doing something wrong, notify the technician, let the technician or supervisor handle it. Do not try to take matters into your own hands.”92 It is undisputed that at the time of receiving this discipline that Anstead had not requested FMLA leave and that Little Tikes had no reason to believe that Anstead suffered from a disability. Anstead engaged in creating a hostile work environment, and Anstead remained employed with Little Tikes after December 8, 2018. 93 87 See attached Hauenstein Emails 4/20, attached hereto as Plaintiff’s Exhibit 18. 88 Plaintiff’s Exhibit 18. 89 George Dep., at pg. 102, Helderlein Dep., at pg. 63, Ward Dep., at pg. 68. 90 Plt. Ex. 9. 91 See attached Anstead Discipline, attached hereto as Plaintiff’s Exhibit 19. 92 Plaintiff’s Exhibit 19. 93 Ward Dep., at pgs. 74-75; Plaintiff’s Exhibit 19. .11 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 12 of 50 III. SUMMARY JUDGMENT STANDARD The moving party has the burden of establishing the appropriateness of summary judgment.94 In Lillie v. Meachem,95 the burden of the party moving for summary judgment was succinctly explained: Summary judgment is appropriate only “when the requirements of Civ.R. 56(C) are met.” Adkins v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The party moving for summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. In ruling on a motion for summary judgment, a court may not “weigh evidence or choose among reasonable inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court must consider the above standard while construing all evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.96 To that end, a trial court can only “state as a basis for its decision the stipulated facts or undisputed facts, but it cannot find facts that are genuinely disputed and are material.” 97 IV. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S FMLA RETALIATION CLAIM (COUNT IV). A. Little Tikes Concedes That Bigelow Has Established A Prima Facie Case Of FMLA Retaliation. The Sixth Circuit Court of Appeals considers FMLA claims under the McDonnell Douglas burden-shifting framework.98 To establish a prima facie case for FMLA retaliation, Bigelow must show (1) she notified her employer of her intent to take FMLA protected leave; (2) she suffered an adverse employment action; and (3) there exists a causal connection between her exercise of FMLA rights and the adverse employment action.99 As the United States Supreme Court has recognized, “outright admissions of impermissible racial motivation are infrequent and plaintiffs often must rely 94 Hamlin v. McAlpin Co., 175 Ohio St. 517, syllabus ¶ 2 (1964); Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115, 120, 570 N.E.2d 1108, 1114 (1991). 95 2009-Ohio-4934 cert. denied. 124 Ohio St.3d 1475, 921 N.E.2d 246, 2010-Ohio-354. 96 Id. @ ¶ 21; see also Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286 @ syllabus ¶ 3. 97 Tucker v. Kanzios, 2009-Ohio-2788 @ ¶ 15. 98 Marshall v. The Rawlings Company LLC, 854 F.3d 368, 379 (6th Cir. 2017). 99 Brady v. Potter, 476 F.Supp.2d 745 (N.D. Ohio 2007). .12 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 13 of 50 upon other evidence.”100 If the plaintiff establishes her prima facie case, the burden shifts to the defendant to establish a legitimate, non-discriminatory reason for termination. 101 If the defendant provides such a reason, then the plaintiff must show that the reason is simply pretext for discrimination.102 “A plaintiff’s burden in establishing a prima facie case is not intended to be an onerous one.”103 Little Tikes concedes that Bigelow has met all the elements of her prima facie case, but only disputes pretext.104 B. As Little Tikes Concedes, Temporal Proximity Alone Establishes Bigelow’s Causal Connection Element. When examining the prima facie elements, courts must avoid conflating the plaintiff’s burden with the legitimate business reason/pretext elements of the McDonnell Douglas test.105 To that end, Little Tikes’ argument regarding pretext should not be conflated to impact the Court’s analysis of Bigelow’s prima facie case. Ohio courts have held that temporal proximity alone is sufficient to establish causation.106 In Clark City School District v. Breeden,107 the Supreme Court held in part that, “cases that accept mere temporal proximity between an employer’s knowledge of [the] protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close’.” Temporal proximity as evidence of causation has been a precedent has been consistently applied by courts throughout the 100 Holbrook v. LexisNexis, 169 Ohio App.3d 345, 862 N.E.2d 892 (2nd Dist. 2006) citing Hunt v. Cromartie (1999), 526 U.S. 541, 553, 119 S.Ct. 1545. 101 McKinnon, 814 Fed.Appx. 35, at 42. 102 Id. 103 Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007); Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007). 104 MSJ, at pg. 9. Bigelow address pretext as to all her claims infra, Section VII. 105 See Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813-14 (6th Cir. 2011); White v. Columbus Metropolitan Housing Auth., 429 F.3d 232, 242 (6th Cir. 2005); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 584-85 (6th Cir.2002). 106 See, Ningard v. Shin Etsu Silicones, 2009-Ohio-3171, 2009 WL 186254 (9th Dist. 2009), and Thatcher v. Goodwill Industries, 117 Ohio App. 3d 525 (9th Dist. 1997) (court held three weeks is sufficient for causation), Payton v. Receivables Outsourcing, Inc. 163 Ohio App. 3d 722 (8th Dist. 2005) (sexual harassment complaint closely followed by adverse employment action sufficient for causation). 107 Clark Cty. School Dist. v. Breeden (2001), 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L. Ed. 2d 509. 2010-Ohio-5657, *P45; 2010 Ohio App. LEXIS 4774, **12 .13 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 14 of 50 state of Ohio.108 Close temporal proximity between the employer’s knowledge of the protected activity and the adverse employment action alone may be significant enough to constitute evidence of a causal connection.109 Here, Little Tikes terminated Bigelow’s employment eight days after Bigelow applied to utilize FMLA leave. This is well within the timeframe that automatically establishes a prima facie case of FMLA retaliation. V. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S FMLA INTERFERENCE CLAIM (COUNT III). Little Tikes concedes that Bigelow has established a prima facie case for FMLA interference. Pursuant to the FMLA, “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 110 An interference claim requires a plaintiff to establish five prongs: (1) he was eligible to utilize FMLA leave; (2) the employer was a covered employer under the FMLA; (3) he was entitled to FMLA leave; (4) he provided notice to the employer of his intent to use FMLA leave; and (5) the employer subsequently denied FMLA benefits.111 Once a prima facie case is established, the employer can only escape liability if it can show that “the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct..”112 There is no dispute that Bigelow was eligible to utilize FMLA leave; that she was entitled to use FMLA leave; that Little Tikes was aware of the request to utilize FMLA leave; and that Little Tikes ultimately denied the FMLA leave. Little Tikes only asserts that it had a legitimate reason to terminate Bigelow’s employment. 113 As discussed infra, 108 See also, Dover v. Carmeuse Natural Chemicals, 128 Ohio St.3d 1428 (2011), Zechar v. Ohio Department of Education, 121 Ohio Misc. 2d 52 (Ohio Ct. Clm. 2002); Kosut v. First Energy Club, 2013-Ohio-2876, 2013 WL 3380172 (7th Dist. 2013), Payton, 163 Ohio App. 3d 722; Thatcher v. Goodwill Industries, 117 Ohio App. 3d 525, 690 N.E.2d 1320. 109 Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508 (2001) (Emphasis added). 110 29 U.S.C. § 2615(a)(1). 111 Novak v. MetroHealth Medical Center, 503 F.3d 572, 577-78 (6th Cir. 2007); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). 112 Grace v. USCAR, 521 F.3d 655, 670 113 MSJ, at pgs. 12-13. .14 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 15 of 50 Section VII, Little Tikes did not have a legitimate reason to terminate Bigelow’s employment, and as such, Little Tikes’ Motion as to this claim should be denied. VI. MATERIAL ISSUES OF FACT REMAIN AS TO BIGELOW’S DISABILITY AND PERCEIVED DISABILITY DISCRIMINATION CLAIMS (COUNTS I & II). A. Prima Facie Case. Ohio courts analyze state and federal disability discrimination claims similarly. 114 Bigelow can establish this claim through the McDonnell Douglas burden shifting analysis.115 A prima facie case is established where (1) the employee is disabled or perceived as such, (2) the employer took adverse employment action, at least in part, because the employee is disabled or otherwise treated the disabled employee differently than similarly-situated non-disabled employees, and (3) the employee, though disabled, can perform the job’s essential functions, with or without reasonable accommodation.116 Here, Little Tikes only disputes that Bigelow was disabled, and disputes that it was aware of Bigelow suffering from a disability.117 B. Bigelow Satisfied The First Element Of Her Disability Claim. 1. Bigelow’s Achilles Tendon Issue Substantially Impairs Her Ability To Walk. One way an individual can be considered “disabled” under state law is if she has “a physical or mental impairment that substantially limits one or more major life activities, including… walking… and working.”118 Similarly, under federal law, a major life activity includes “walking.”119 The impairment is commonly found to be substantially limiting if the individual is “[u]nable to 114 Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569 (1998); Jakubowski v Christ Hosp., Inc., 627 F.3d 195 (6th Cir. 2010). 115 Holbrook v. LexisNexis, 169 Ohio App.3d 345, 862 N.E.2d 892 (2nd Dist. 2006); Sivarajan v. Nationwide, Franklin App. No. 97APE10-1426, 1998 WL 318873 (10th Dist. 1998) citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817; Waddell v. Roxane Laboratories, Inc., 2004 WL 1103710, 2004-Ohio-2499 (10th Dist. 2004); Rice v. Cuyahoga Cty. Dept. of Justice, 2005 WL 2467058, 2005-Ohio-5337 (8th Dist. 2005). 116 Hood v. Diamond Products, Inc., 74 Ohio St.3d 298, 1996 Ohio 259, 658 N.E.2d 738; Columbus Civil Service Commission v. McGlone, 82 Ohio St.3d 569 (Ohio 1998). See also Brewer v. Cleveland City Schools Bd., 122 Ohio App.3d 378, 385, (8th Dist. 1997), applying McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. 117 MSJ, at pg. 13. 118 R.C. § 4112.01(A)(13) (emphasis added). 119 C.F.R. § 35.108(c)(1)(i). .15 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 16 of 50 perform a major life activity that the average person in the general population can perform…” 120 Establishing that an individual is disabled is not meant to be a “demanding standard.” 121A plaintiff may establish that she is disabled through her testimony alone so long as such testimony contains “examples or details regarding how the employee’s impairment impacted her life.” 122 On point, the plaintiff in the Sixth Circuit Court of Appeals case of Talley presented enough evidence to meet the disabled prima facie element: She does not allege that she is disabled from working: rather, Talley’s claim is that she is substantially limited in her ability to walk, stand, and lift objects and that the defendants failed to accommodate her needs following her various injuries. According to her testimony, the manner and duration under which she can perform these activities is significantly restricted due to severe pain. Talley testified at length regarding her various injuries and their impact on her ability to walk, stand, and lift as compared to an average person in the general population.123 Here, Bigelow suffers from a lump on her Achilles tendon that substantially impairs her ability to walk. Critically, Bigelow testified as a result of her issues, “I could barely walk.” 124 Indeed, Little Tikes’ own employees acknowledged that Bigelow walks with a limp as a result of her disability.125 She openly told everyone at Little Tikes that she was in a lot of pain and that she was going to need surgery as a result of the pain due to walking.”126 More, as Bigelow was not able to obtain surgery after being fired as a result of losing health insurance, Bigelow’s pain and impairment to walking continues.127 As Bigelow’s condition substantially impairs her ability to walk, and this per state and federal statute satisfies the definition of disability, Bigelow is considered disabled. 120 Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008) (quoting 29 C.F.R. § 16302.(j)(1). 121 29 C.F.R. § 1630.2(j)(1)(i); Mullenix v. Eastman Chemical Company, 237 F.Supp.3d 695, 704-705 (E.D. Tenn. 2017). 122 Popeck v. Rawlings Company LLC, 2018 WL 2074198, at *7 (W.D. Ky. 2018) (quoting Hensler v. City of O’Fallon, No. 09CV-268-DRH-PMF, 2017 WL 293401, at * 8 (S.D. Ill. Kan. 31, 2012) (internal quotations omitted). 123 Talley, 542 F.3d 1107. 124 Bigelow Dep., pg. 28. 125 George Dep., at pg. 64-65. Nelson Dep., at pg. 42. 126 Id. 127 Id. at pg. 26. .16 Sandra Kurt, Summit County Clerk of Courts CV-2022-09-3190 CROCE, CHRISTINE 07/28/2023 13:35:13 PM BRIO Page 17 of 50 2. Bigelow Has A Record Of A Disability. Bigelow can also establish that she is disabled in showing: “a record of a physical or mental impairment.”128 The Western District of Michigan succinctly defined: The record-of-disability prong of the ADA, § 12102(2)(B), protects “people who have recovered from previously disabling conditions (cancer or coronary disease, for example) but who remain vulnerable to the fears and stereotypes of their employers.” E.E.O.C. v. DaimlerChrysler Corp., 111 Fed. Appx. 394, 404, 2004 WL 2203586, *8 (6th Cir.2004) (quoting Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir.1998)). An individual has a “record of” disability if he “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Id. (quoting 29 C.F.R. § 1630.2(k)). “This part of the definition is satisfied if a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual’s major life activities. There are many types of records that could potentially contain this info