[Cite as Kemper v. Springfield Twp., 2012-Ohio-2461.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PATRICK JOHN KEMPER, : APPEAL NOS. C-110514 C-110546 Plaintiff-Appellee/Cross- : TRIAL NO. A-0808482 Appellant, : vs. O P I N I O N. : SPRINGFIELD TOWNSHIP, OHIO, : Defendant-Appellant/Cross- Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Final Judgment Entered
Date of Judgment Entry on Appeal: June 6, 2012
Freking & Betz, LLC, Randolph H. Freking, and Katherine Daughtrey Neff, for Plaintiff-Appellee/Cross-Appellant,
Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for Defendant-Appellant/Cross-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant/cross-appellee Springfield Township, Ohio,
appeals the judgment of the Hamilton County Court of Common Pleas awarding
damages to plaintiff-appellee/cross-appellant Patrick John Kemper on Kemper’s
claims under the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (the “FMLA”).
Those damages were awarded following a jury trial. In his cross-appeal, Kemper
challenges the trial court’s reduction of the damages based upon his receipt of
payments that the trial court characterized as collateral benefits.
{¶2} On September 9, 2008, Kemper filed a complaint alleging age
discrimination under R.C. Chapter 4112, violations of the FMLA, defamation, and
breach of public policy. Kemper voluntarily dismissed the defamation claim, and the
trial court granted summary judgment in favor of the township as to the public-
policy claim. The court denied summary judgment as to the remaining causes of
action, and the case proceeded to trial.
The End of Kemper’s Employment
{¶3} Kemper was hired by the township in 1981 and became a
patrolman in the police department in 1982. He was promoted to the rank of
detective in 1988.
{¶4} During his tenure with the township, Kemper took a number of
extended leaves of absence for his own medical conditions and for his wife’s illnesses.
Kemper did not explicitly request that any of the absences be characterized as FMLA
leave, and on each occasion, the absences were designated as sick leave.
{¶5} Township law director Laura Abrams testified that, if an employee
had remaining accrued sick time when he took a leave of absence, the township
would designate the leave as sick time and that eligible FMLA time would run
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concurrently with the sick leave. According to Abrams, this policy was intended to
benefit the employee, because sick time was paid leave, whereas FMLA leave was
unpaid.
{¶6} The township police department had a formal policy restricting
outside employment. Under the policy, employees were required to submit a written
request and receive written permission before engaging in outside work. In late
2007, Kemper began discussing a possible business venture with two fellow
township officers. The three men planned to start a business installing security
systems and providing lie-detection services. In December 2007, the business was
incorporated as Trident Security Solutions LLC. The corporation had a website and
by early 2008 had obtained a bid to provide a security system for a synagogue.
{¶7} Kemper discussed the security business with his supervisor, Chief
David Heimpold, in December 2007. Heimpold said that such a business would be
possible but that there would have to be restrictions to prevent any conflict with
police operations.
{¶8} On March 7, 2008, Kemper submitted a letter to Heimpold about
the outside business. In his letter, he stated, “Per the verbal conversation and
consent given to Pat Kemper, we respectfully submit our request [to operate Trident]
in writing as required by policy.” Heimpold called Kemper into his office and told
him that the letter was false, because Heimpold had never given consent to Kemper
to operate the business. Kemper admitted that the letter was false and left work,
citing depression, stress, and high blood pressure as his reasons. Kemper remained
on leave through March 12, 2008, and that leave was designated as sick time.
{¶9} After Kemper had left work, Lieutenant David Schaefer visited him
at his home and gave him the opportunity to revise his letter. Kemper amended the
letter to state, “Per the verbal conversation with Pat Kemper stating that you did not
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see a problem with this business, we respectfully submit our request in writing as
required by policy.” Although Heimpold indicated that the amended letter was less
problematic than the original, he nonetheless felt compelled to consider an internal
investigation based on the contents of the letter as originally submitted.
{¶10} On March 12, 2008, Heimpold asked Kemper to meet with him and
township administrator Michael Hinnenkamp at the township office building to
discuss Kemper’s options in light of the alleged dishonesty contained in the original
letter. At the meeting, Hinnenkamp emphasized the serious nature of a charge of
dishonesty and stated that Kemper would face a rigorous internal investigation.
Hinnenkamp further noted that the township had terminated for dishonesty in the
past. According to Kemper, Hinnenkamp also stated that termination would be
likely in his case. Kemper testified that, faced with the prospect of being terminated
and losing his pension and other benefits, he elected to retire. He submitted his
notice of retirement on March 13, 2008.
{¶11} Kemper asserted a number of theories of recovery under the
FMLA: (1) that the township had retaliated against him for his exercise of his FMLA
rights; (2) that he had been constructively discharged and that the discharge had
interfered with his FMLA rights; (3) that he had been wrongfully required to meet
with Heimpold and Hinnenkamp while on FMLA leave; and (4) that the township’s
designation of his leaves of absence as sick time rather than as FMLA leave had
interfered with his statutory rights. The jury rejected the first theory of recovery, but
concluded that Kemper had been constructively discharged and that the township
had interfered with Kemper’s FMLA rights. It further found that the township’s
violation of the FMLA had been willful. The jury found in favor of the township on
Kemper’s age-discrimination claim.
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{¶12} The jury awarded Kemper a total of $491,000, which included back
pay, front pay, and statutory liquidated damages equal to the back-pay award. The
trial court subsequently deducted from the damage award certain items that the
court deemed to be “collateral benefits.” Those benefits included the amounts that
Kemper had received from the state retirement system. Following those deductions,
the total damage award was $177,472.64, in addition to attorney fees and costs in the
amount of $102,216.
{¶13} The trial court overruled the township’s motions for a directed
verdict, its motion for judgment notwithstanding the verdict, and its motion for a
new trial. These appeals followed.
Sufficiency of the Evidence
{¶14} In its first assignment of error, the township contends that the trial
court erred in overruling its motions for a directed verdict and its motion for
judgment notwithstanding the verdict.
{¶15} Under Civ.R. 50(A)(4), a trial court may grant a motion for a
directed verdict only if, after construing the evidence in a light most favorable to the
party against whom the motion is directed, reasonable minds could come to but one
conclusion upon the evidence submitted and that conclusion is adverse to the
nonmoving party. Michnowicz v. Hines, 1st Dist. No. C-110048, 2012-Ohio-715, ¶
10. Under Civ.R. 50(B), the standard for granting or denying a motion for judgment
notwithstanding the verdict is the same as that for a motion for a directed verdict.
Fehrenbach v. O’Malley, 1st Dist. No. C-110730, 2011-Ohio-5481, ¶ 26. An appellate
court reviews de novo a trial court’s ruling on motions for a directed verdict and for
judgment notwithstanding the verdict. Eysoldt v. Proscan Imaging, 194 Ohio
App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 18 (1st Dist.).
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Under the FMLA, a qualified employee is entitled to take up to 12
weeks of unpaid leave during a one-year period for the employee’s illness or to care
for a relative. See 29 U.S.C. 2601 et seq.; Wiles v. Medina Auto Parts, 96 Ohio St.3d
240, 2002-Ohio-3994, 773 N.E.2d 526, ¶ 1. To establish an FMLA interference
claim, the plaintiff must establish that (1) the plaintiff is an eligible employee; (2) the
defendant was an employer as defined under the FMLA; (3) the plaintiff was entitled
to take leave under the FMLA; (4) the plaintiff gave the employer notice of his
intention to take leave under the FMLA; and (5) the defendant denied the plaintiff
FMLA benefits to which he was entitled. Walton v. Ford Motor Co., 424 F.3d 481,
485 (6th Cir.2005). To prove the fifth element, the plaintiff must demonstrate that
the employer took an employment action based, in whole or in part, on the
employee’s exercise of his FMLA rights. Wysong v. The Dow Chemical Co., 503 F.3d
441, 447 (6th Cir.2007).
{¶17} It was undisputed in this case that the first two elements were met.
And in discussing Kemper’s theories of recovery, we assume, for purposes of
discussion only, that Kemper had been eligible for FMLA benefits with respect to his
various leaves of absence and that he had placed the township on notice of his intent
to take leave under the statute. Accordingly, our discussion focuses on the fifth
element of the interference claims.
Adverse Employment Action: Constructive Discharge
{¶18} We begin with Kemper’s contention that he was constructively
discharged and that the constructive discharge interfered with his FMLA rights.
{¶19} To prove a claim of constructive discharge, an employee must
demonstrate that his former employer’s actions made working conditions so
intolerable that a reasonable person under the circumstances would have felt
compelled to resign. Thomas v. Cohr, Inc., 1st Dist. No. C-110094, 2011-Ohio-5916,
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¶ 15, citing Wille v. Hunkar Laboratories, Inc., 132 Ohio App.3d 92, 106, 724 N.E.2d
492 (1st Dist.1998) and Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 664 N.E.2d 1272
(1996), paragraph four of the syllabus. The inquiry is whether the employer’s actions
would have made a reasonable person believe that termination was imminent.
Mauzy at 589. The test is an objective one, and an employee’s belief that he was
compelled to resign must be judged without consideration of his “undue
sensitivities.” Risch v. Friendly’s Ice Cream Corp., 136 Ohio App.3d 109, 112-113,
736 N.E.2d 30 (1st Dist.1999), quoting Wilson v. Firestone Tire & Rubber Co., 932
F.2d 510, 515 (6th Cir.1991).
{¶20} In the case at bar, the jury’s conclusion that Kemper had been
constructively discharged was in accordance with the evidence. In discussing
Kemper’s options, Hinnenkamp let it be known that any disciplinary proceeding
would in all likelihood end in termination and that Kemper would lose his pension
and other benefits. As he told Kemper, he “didn’t see a way out” of the internal
investigation, and the reminder that other officers had been terminated for
dishonesty emphasized that Kemper’s employment situation was dire.
{¶21} It is true, as the township states, that neither Hinnenkamp nor
Heimpold had the ultimate authority to terminate Kemper and that such authority
rested in the township trustees. But both men were in a supervisory position, and
Kemper did not act irrationally in accepting their assessment of his predicament.
And while the township stresses that Kemper would have been entitled to a full
disciplinary proceeding with all of the attendant due process protections, there was
evidence that Kemper had reasonably believed termination to be a foregone
conclusion.
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Constructive Discharge and Interference with FMLA Rights
{¶22} But our inquiry does not end with the conclusion that Kemper
produced sufficient evidence with respect to the alleged constructive discharge. A
plaintiff must also establish a connection between the exercise of FMLA rights and
the adverse employment action. In the context of an FMLA-interference claim, an
employee may be lawfully dismissed “if the dismissal would have occurred regardless
of the employee’s request for or taking of FMLA leave.” Arban v. West Publishing
Corp., 345 F.3d 390, 401 (6th Cir.2003). As the Arban court emphasized, an
employee “who requests FMLA leave would have no greater protection against his or
her employment being terminated for reasons not related to his or her FMLA request
than he or she did before submitting that request.” Id., quoting Gunnell v. Utah
Valley State College, 152 F.3d 1253, 1262 (10th Cir.1998).
{¶23} A recent case from the Ninth Appellate District illustrates the
plaintiff’s burden to demonstrate that the challenged employment action was related
to FMLA leave. In Kelsh v. WCI Steel, Inc., 9th Dist. No. 2011-T-0006, 2012-Ohio-
403, an employee was injured at work. Despite the employer’s light-duty program,
the employee chose to take leave. Id. at ¶ 7. But contrary to the employee’s claim
that he was unable to work because of the injury, a private investigator observed the
employee performing strenuous tasks away from the workplace. Id. at ¶ 8. The
employee completed a worker’s-compensation form for total temporary disability
stating that he had not worked in any capacity and that the employer had not
provided light-duty work. Id. at ¶ 10.
{¶24} The employee was discharged for dishonesty and sued the
employer, arguing that the employer had retaliated against him for exercising his
rights under the FMLA and had interfered with his exercise of those rights. Id. at ¶
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14. The case proceeded to trial, and the jury returned a verdict in favor of the
employer. Id. at ¶ 15.
{¶25} In holding that the defense verdict was proper, the Kelsh court
noted that the FMLA “does not provide for strict liability for interfering with an
employee’s FMLA rights.” Id. at ¶ 35. Accordingly, the court concluded that
“[a]lthough Kelsh was on leave at the time of his termination, [the termination] was
due to Kelsh’s own actions in dishonestly filling out the form for temporary total
benefits, which he knew was against the policy of WCI as stated in its handbook.” Id.
at ¶ 37.
{¶26} We find the reasoning of Kelsh to be persuasive in the case at bar.
Kemper simply produced no evidence that the township’s decision to initiate the
internal investigation had any relationship to his exercise of his FMLA rights. On the
contrary, the uncontradicted evidence was that township readily agreed to Kemper
taking leave for his stress and hypertension immediately after he was questioned
about the letter. Similarly, there was no evidence that the township had
demonstrated any resistance to Kemper’s prior leaves of absence.
{¶27} Rather, as in Kelsh, all of the evidence demonstrated that Kemper’s
acknowledged dishonesty was the basis for the challenged discharge. There was no
threat of discipline prior to the letter submitted to Heimpold and no indication in the
record that Kemper’s absences—or the conditions that led to those absences—bore
any relationship to the adverse employment action. Thus, even though Kemper was
on leave at the time of the asserted adverse employment action, he failed to
demonstrate that he was wrongfully denied any rights under the FMLA.
The Meeting to Discuss Kemper’s Options
{¶28} We next address Kemper’s assertion that the meeting called by
Heimpold and Hinnenkamp on March 12, 2008, interfered with the exercise of his
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FMLA rights. We agree with the township that the meeting did not constitute an
interference with Kemper’s statutory rights.
{¶29} A voluntary meeting to discuss work-related issues during a period
of FMLA leave does not constitute a violation of the statute. See, e.g., Grindstaff v.
Sun Chemical Corp., S.D.Ohio No. 1:09-cv-450, 2010 U.S.Dist. LEXIS 123426 (Nov.
22, 2010). In fact, it has been held that even requiring an employee to field
telephone calls and perform other administrative tasks while on FMLA leave does
not violate the statute. See Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 537
(S.D.N.Y.2009), citing Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F.Supp.2d
886, 910-911 (E.D.Mich.2006).
{¶30} In the case at bar, it was undisputed that the March 12 meeting was
voluntary. It was also uncontested that Kemper did not work during the meeting and
was not asked to perform any official duties. Under these circumstances, Kemper
failed to present sufficient evidence that the meeting interfered with his FMLA
rights.
The Township’s Policy of Designating Leave as Sick Time
{¶31} Finally, we address Kemper’s assertion that the township’s policy
of designating his leaves of absence as paid sick time instead of unpaid FMLA leave
violated the statute.
{¶32} Regulations promulgated under the FMLA specifically permit the
designation of leave as paid sick time even though the employee might also be
eligible for FMLA leave. In that regard, 29 C.F.R. 825.207(a) provides the following:
Generally, FMLA leave is unpaid leave. However, under the circumstances
described in this section, FMLA permits an eligible employee to choose to
substitute accrued paid leave for FMLA leave. If an employee does not
10 OHIO FIRST DISTRICT COURT OF APPEALS
choose to substitute accrued paid leave, the employer may require the
employee to substitute accrued paid leave for unpaid FMLA leave.
See also Allen v. Butler Cty. Commrs., 331 Fed.Appx. 389, 393 (6th Cir.2009).
{¶33} The Supreme Court of the United States has noted that while
FMLA leave is unpaid, “the Act encourages businesses to adopt more generous
policies, and many employers have done so.” Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 84, 122 S.Ct. 1155, 152 L.Ed. 167 (2002). The court further
observed that Congress specifically permitted more generous policies provided that
they comply with the minimum requirements of the statute. Ragsdale at 87, citing
29 U.S.C. 2653.
{¶34} In the case at bar, the township provided a more generous policy
than required under the FMLA. Such a policy was proper under the statute, and
Kemper failed to demonstrate any damages to have resulted from the policy. On the
contrary, the designation of paid leave inured to Kemper’s benefit in providing
payment during his leaves of absence. Thus, contrary to Kemper’s assertion, the
township’s policy did not impermissibly “discourage” the taking of FMLA leave or
any other kind of leave. It merely took steps to ensure that an employee who took
leave would receive compensation. The policy, therefore, did not violate the FMLA.
{¶35} In sum, Kemper failed to produce sufficient evidence to
demonstrate, under any of his theories of recovery, that the township had violated
the FMLA. Accordingly, we hold that reasonable minds could come to but one
conclusion regarding the FMLA claims, and that conclusion was adverse to Kemper.
Although Kemper also contends that the trial court erred in denying his motion for
summary judgment, our holding with respect to the trial evidence renders that
argument moot. We sustain the first assignment of error.
Motions for a New Trial and for a Mistrial
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{¶36} In its second and third assignments of error, respectively, the
township contends that the trial court erred in overruling its motion for a new trial
and in overruling its motion for a mistrial on the basis of improper jury instructions.
Because the township was entitled to judgment as a matter of law, these remaining
assignments of error are moot. Therefore, we need not address them on their merits.
Kemper’s Cross-appeal
{¶37} In his cross-appeal, Kemper asserts a single assignment of error.
He contends that the trial court erred in reducing the jury award based upon his
receipt of pension benefits and other payments, which the court characterized as
“collateral” benefits. But because we have held that Kemper proved no liability on
the part of the township, Kemper’s assignment of error is also moot.
Conclusion
{¶38} Accordingly, we reverse the judgment of the trial court and enter
judgment in favor of the township on each of Kemper’s claims.
Judgment reversed and final judgment entered.
SUNDERMANN and DINKELACKER, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.