Bates et al v. Charter Communications, LLC, No. 1:2017cv02108 - Document 64 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 5/21/18. The Court, for the reasons set forth in this order, grants in part and denies in part defendant's motion for summary judgment as to plaintiff Brooks-Kroggel. The Court grants def endant's motion as to plaintiff's age discrimination claim and denies defendant's motion as to her FMLA retaliation claim. The Court denies as moot plaintiff Bates and Stirling's motion for summary judgment and defendant's motion for summary judgment as to plaintiffs Bates and Stirling's claims. This case will proceed to trial on plaintiff Brooks-Kroggel's FMLA retaliation claim as scheduled. (Related Docs. 59 and 60 ) (D,MA)
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Bates et al v. Charter Communications, LLC Doc. 64 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ---------------------------------------------------------------------DAN BATES, et al. Plaintiffs, vs. CHARTER COMMUNICATIONS, LLC, Defendant. : : : : : : : : : : : CASE NO. 1:17-CV-2108 OPINION & ORDER [Resolving Docs. 59, 60] ---------------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiffs Dan Bates, Laura Stirling, and Johanna Brooks-Kroggel bring this action against De‘endant Charter Commun“cat“ons, LLC ( Charter ), alleging age discrimination. Plaintiff BrooksKroggel also alleges Family and Med“cal Leave Act ( FMLA ) retaliation. Defendant Charter counterclaims against Plaintiffs Bates and Stirling, claiming a breach of the duty of loyalty and for unjust enrichment. De‘endant Charter moves ‘or summary ”ud’ment on all o‘ Pla“nt“‘‘s cla“ms. 1 Plaintiffs Bates and St“rl“n’ move ‘or summary ”ud’ment on De‘endant Charter s countercla“ms.2 For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendant Charter s mot“on ‘or summary ”ud’ment as to Pla“nt“‘‘ Brooks-Kroggel. The Court DENIES AS MOOT the summary judgment motions as to all other claims and counterclaims. I. FACTUAL BACKGROUND3 Defendant Charter says it fired Plaintiffs Bates and Stirling because they failed to learn that an employee they marginally supervised had arguably claimed improper sales commissions.4 Defendant 1 Doc. 60. Plaintiff Brooks-Kroggel opposes. Doc. 62. Defendant replies. Doc. 63. Doc. 59. 3 Plaintiffs Bates and Stirling have agreed to a stipulated dismissal with prejudice of their age discrimination cla“ms and o‘ De‘endant Charter s countercla“ms a’a“nst them. Doc. 61. This factual background will therefore only discuss Plaintiff Brooks-Kroggel. 4 See generally Doc. 53-4; Doc. 53-5. 2 Dockets.Justia.com Case No. 1:17-cv-2108 Gwin, J. Charter says it fired Plaintiff Brooks-Kroggel because of performance failures and because of her behavior during a sales fraud investigation of an employee that she had no authority over.5 In 2013, Defendant Charter, then Time Warner Cable, hired Plaintiff Brooks-Kroggel as a human resources manager.6 After Time Warner Cable and Charter merged in 2016, Jessica Sutton became Plaintiff Brooks-Kro’’el s d“rect superv“sor.7 In October 2016, an investigation began into possible sales fraud or sales manipulation by a sales representat“ve “n one o‘ Charter s Oh“o stores.8 The investigation began because Cher Samels, a salesperson in that Ohio store, made a complaint. 9 Originally, Charter assigned Plaintiff BrooksKroggel to the team investigating this sales fraud complaint.10 However, on December 22, 2016, Sutton removed Brooks-Kroggel from that investigation,11 allegedly because of concerns about Brooks-Kro’’el s “mpart“al“ty toward Samels.12 Marielys Ortega, age 30, and Cheri Luster, age 46, replaced Brooks-Kroggel as the investigators.13 As a human resources generalist, Brooks-Kroggel helped to oversee human resources complaints and investigations for Charter stores in several states.14 Plaintiffs Bates and Stirling managed Charter stores, and allegedly had some supervisory authority over the sales associate that allegedly committed fraud. But, as her title suggests, Brooks-Kroggel was not involved in Charter sales; she worked in human resources. Brooks-Kroggel had no supervisory authority over either Samels or the sales person accused of sales fraud.15 Further, nothing in the record suggests that 5 See Doc. 53-3. Doc. 57-1 at 62:18-20. 7 Doc. 55-1 at 86:19-23 (page numbers refer to page of the deposition). 8 Doc. 54-1 at 50:25-51:7. 6 9 Id. See Doc. 55-1 at 58:20-59:7. 11 Id. at 59:8-18. 10 12 Doc. 52-1 at 21:7-23:4. See Doc. 53-3. 14 Doc. 55-1 at 10:2-11:22. 15 See id. at 18:22-19:2 (describing the role of a human resources generalist). 13 -2- Case No. 1:17-cv-2108 Gwin, J. Brooks-Kro’’el s compensat“on or bene‘“ts were tied to the possible sales fraud, or to the outcome of the sales fraud investigation. The record does not explain how Brooks-Kroggel became a target of the investigation. But, at some point after Sutton removed Brooks-Kroggel from the investigation team, the investigators began to target Brooks-Kroggel.16 Even after the investigation was pending, Charter paid Brooks-Kroggel a $13,000 bonus and gave Brooks-Kroggel a letter ‘rom Charter s CEO, seemingly commending her for her work.17 At the “nvest“’at“on s conclus“on, the investigators recommended that Brooks-Kroggel failed to follow Charter s Open Door pol“cy; displayed a lack of cooperation, integrity and transparency during the investigation; withheld information; and improperly involved herself in the investigation.18 The investigators recommended Charter should terminate Brooks-Kro’’el s employment.19 They prepared a lengthy report detailing their justification for Brooks-Kro’’el s term“nat“on.20 While the investigation was ongoing, Plaintiff Brooks-Kroggel became seriously ill. On November 4, 2016, Brooks-Kroggel had to go to the emergency room because she became suddenly ill.21 On January 27, 2017, she had to cancel her investigation interview and take off work with the flu.22 She also took an approved FMLA leave from February 3 until February 9, 2017, after she suffered a serious illness that her husband originally characterized as a heart attack. 23 She also applied for intermittent medical leave on February 28, 2017.24 beginning at the end of March 2017.25 16 See Doc. 53-3. Doc. 57-1 at 94:3-9. 18 See generally Doc. 53-3. 19 Id. at 9. 17 20 See generally id. Id. at 31. 22 Id. at 32. 23 Id. at 32-33. 24 Id. at 33. 21 25 Doc. 57-1 at 106:14-107:7. -3- Finally, she took FMLA leave Case No. 1:17-cv-2108 Gwin, J. Ultimately, Charter terminated Plaintiff Brooks-Kroggel effective April 13, 2017.26 BrooksKroggel was still on FMLA leave when she received her termination letter.27 That letter stated that [t]he dec“s“on to separate your employment was made be‘ore you ‘“led ‘or leave. 28 Brooks-Kroggel was 55 years old when Defendant Charter fired her. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 56, [s]ummary ”ud’ment “s proper when there “s no ’enu“ne d“spute as to any mater“al ‘act and the movant “s ent“tled to ”ud’ment as a matter o‘ law. 29 The moving party must first demonstrate that there is no genuine dispute as to a material fact entitling it to judgment.30 Once the moving party has done so, the non-moving party must set forth specific facts in the record—not its allegations or denials in pleadings—showing a triable issue.31 The Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.32 When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant s vers“on o‘ the ‘acts unless “ncontrovert“ble ev“dence “n the record d“rectly contradicts that version.33 Otherwise, a district court does not weigh competing evidence or make credibility determinations.34 26 Doc. 55-3. Doc. 57-1 at 73:2-6. 28 Doc. 55-3. 27 29 Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 31 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). 32 Killion, 761 F.3d at 580 (internal citations omitted). 33 See Scott v. Harris, 550 U.S. 372, 380 (2007). 34 Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037 (N.D. Ohio 2012) (citing V & M Star Steel v. Centimark Corp., 678 F.3d 459, 470 (6th Cir. 2012)). 30 -4- Case No. 1:17-cv-2108 Gwin, J. III. ANALYSIS A. Plaintiff Brooks-Kro’’el s FMLA Retal“at“on and A’e D“scr“m“nat“on Cla“ms When a plaintiff does not present direct evidence that her employer terminated her because of her age or as retaliation for taking FMLA leave, the McDonnell Douglas burden-shifting analysis applies. Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case that an employer took some forbidden action.35 After a plaintiff has made a prima facie case, the burden shifts to the defendant to offer a non-retaliatory reason for the adverse action. 36 The burden then goes back to the plaintiff to show that the proffered reason is pre-textual.37 1. FMLA Retaliation FMLA retal“at“on cla“ms “mpose l“ab“l“ty on employers that act a’a“nst employees spec“‘“cally because those employees “nvoked the“r FMLA r“’hts. 38 An employer “s proh“b“ted ‘rom us[“n’] the taking of FMLA leave as a negative factor “n employment act“ons, d“scr“m“nat[“n’] a’a“nst any “nd“v“dual 40 39 or “n any other manner who utilizes FMLA leave. Unlike with the FMLA “nter‘erence theory, the employer s mot“ve ‘or tak“n’ the adverse employment act“on “s relevant to FMLA retaliation claims.41 a. Prima Facie Case To establish a prima facie FMLA retaliation case, a plaintiff must show (1) that she engaged in an FMLA-protected activity; (2) that the employer knew the employee was exercising her FMLA rights; (3) after gaining such knowledge, the employer took an adverse employment action against 35 See, e.g., Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003). Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). 37 Id. 38 Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006). 39 29 C.F.R. § 825.220(c); Arban v. West Pub. Corp., 345 F.3d 390, 403 (6th Cir. 2003). 36 40 29 U.S.C. § 2615(b). 41 Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012). -5- Case No. 1:17-cv-2108 Gwin, J. her; and (4) there was a causal connect“on between the employee s FMLA act“v“ty and the adverse employment action.42 The burden o‘ proo‘ at the pr“ma ‘ac“e sta’e “s m“n“mal; all the pla“nt“‘‘ must do “s put ‘orth some credible evidence that enables the court to deduce that there is a causal connection between the retal“atory act“on and the protected act“v“ty. 43 Defendant Charter argues that Plaintiff Brooks-Kroggel cannot state a prima facie case because Charter made her termination decision before it knew she would take the March 2017 FMLA leave. As support for this argument, Charter points to Brooks-Kro’’el s term“nat“on letter, wh“ch stated that the termination decision was made before Brooks-Kroggel took FMLA leave.44 Charter also points to the fact that Sutton traveled to meet with, and presumably to terminate, Brooks-Kroggel in March 2017, but Brooks-Kroggel took FMLA leave before that meeting could occur.45 Charter s ar’ument rests on the prem“se that Pla“nt“‘‘ Brooks-Kroggel s FMLA retaliation claim is based only on the late March 2017 FMLA leave.46 But when the record is viewed in BrooksKro’’el s favor, it shows that her FMLA retaliation claim is not based solely on her final FMLA leave. There is significant evidence that Charter knew about all of Brooks-Kro’’el s previous FMLA leaves before her March 2017 FMLA leave.47 Defendant Charter states that Brooks-Kro’’el adm“tted “n her depos“t“on that her FMLA retaliation claim is based only on her final FMLA leave. But the actual deposition transcript is ambiguous. 42 43 Id. at 283. Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). 44 Doc. 55-3; Doc. 55-4. Doc. 57-1 at 106:14-107:13. 46 See id. at 98:19-99:7. 47 See Doc. 53-3 at 33. 45 -6- Case No. 1:17-cv-2108 Gwin, J. Brooks-Kro’’el s deposition testimony could have referred to the intermittent FMLA leave she applied for on February 28, 2017, that necessarily began in March 2017.48 Defendant Charter seemingly knew about this leave application.49 Also, her deposition testimony can be interpreted to say that her claim is not based on the FMLA leave she took in 2016 or earlier, which defense counsel questioned her about shortly before this alleged admission.50 Finally, and more practically, Brooks-Kro’’el s compla“nt does not focus solely on her March 2017 leave,51 and it seems unlikely that Brooks-Kroggel would vastly narrow the scope of her complaint during her deposition. Either of these alternate interpretations is plausible, and both interpretations harmonize Brooks-Kro’’el s testimony, her complaint, and her behavior in this litigation. Because the Court must construe all reasonable inferences in the non-movant s ‘avor, the Court interprets this testimony “n Pla“nt“‘‘ s ‘avor. Therefore, Brooks-Kroggel has presented enough evidence to suggest that Charter knew about her FMLA activities. She consequently satisfies this element of her prima facie case. Regarding causation, temporal proximity is enough to establish the retaliation causal connection.52 Here, Brooks-Kroggel was terminated while she was on FMLA leave, and only six weeks a‘ter she d appl“ed ‘or FMLA leave on February 28. Therefore, Brooks-Kroggel has established all four elements necessary for a prima facie case of FMLA retaliation. She took FMLA leave; Charter knew she exercised her rights; Charter terminated her; and there is a causal connection between Brooks-Kroggel exercising her rights and her termination. See Doc. 57-1 at 93:11-94:2 (referencing Brooks-Kro’’el s February 3-9 FMLA leave as her February leave and then proceed“n’ to ask her about her March 2017 leave). 49 See Doc. 53-3 at 33. 50 See Doc. 57-1 at 93:2-10 (questioning Brooks-Kroggel about her pre-2017 FMLA leaves). 51 See Doc. 27 at 10-12. 52 Judge v. Landscape Forms, Inc., 592 F. App x 403, 409-10 (6th Cir. 2014). 48 -7- Case No. 1:17-cv-2108 Gwin, J. b. Pretext Charter next argues that even if Brooks-Kroggel can establish a prima facie case, the “nvest“’at“on s ‘“nd“n’s about her per‘ormance de‘“c“enc“es and lack o‘ candor are su‘‘“c“ent legitimate reasons to fire her.53 Further, Charter argues that Brooks-Kroggel has no evidence that these non-retaliatory reasons are pre-textual. An FMLA plaintiff shows pretext by establishing that a reason for termination either (1) had no basis in fact; (2) did not actually motivate the termination; or (3) was insufficient to warrant the termination.54 Brooks-Kroggel offers sufficient evidence to allow a jury to find that Charter s non-retaliatory reasons for her termination are pre-textual. As an “n“t“al matter, the t“m“n’ o‘ Pla“nt“‘‘ s term“nat“on su’’ests that De‘endant Charter s nonretaliatory reasons may be pretext. Plaintiff Brooks-Kroggel took several medical leaves in the midst o‘ De‘endant s “nvest“’at“on, and the “nvest“’ators knew about (and seem“n’ly recorded) each o‘ these.55 Further, each o‘ Pla“nt“‘‘ s med“cal leaves seem“n’ly became pro’ress“vely more ser“ous, concluding with a February 28, 2017, request for intermittent medical leave and a late March extended leave request.56 Only six weeks later, and while she was still on an approved FMLA leave, Defendant Charter fired Plaintiff.57 Although temporal proximity cannot be the sole support for finding pretext, the Sixth Circuit has reco’n“zed that, susp“c“ous t“m“n’ “s a stron’ “nd“cator o‘ pretext when accompan“ed by some 53 The Court finds that if true, these are legitimate, non-discriminatory reasons for terminating Brooks-Kroggel, therefore shifting the burden to Brooks-Kroggel to establish pretext. See, e.g., Joostberns v. United Parcel Serv., Inc., 166 F. App x 783, 794 (6th C“r. 2006) (holding in the midst of a McDonnell Douglas analysis that a ‘a“lure to ‘ollow a company s d“shonesty policy was a sufficient legitimate reason for termination). 54 Seeger, 681 F.3d at 285. 55 See Doc. 53-3. 56 See Doc. 57-1 at 93:3-19; 99:8-14 (noting that Plaintiff was approved for short-term disability while on FMLA leave after March 2017). 57 Id. at 73:2-3. -8- Case No. 1:17-cv-2108 Gwin, J. other, “ndependent ev“dence. 58 Here, the investigation report contains evidence of pretext. Indeed, the report itself could be construed as direct evidence of FMLA retaliation.59 Under the head“n’ Invest“’at“on Facts and Deta“ls, which the report descr“bes as a l“st“n’ o‘ spec“‘“c events lead“n’ to the need ‘or correct“ve act“on, the “nvest“’ators list numerous details about Brooks-Kro’’el s med“cal “ssues and use o‘ leave.60 For example, a January 24, 2017 entry states, Mar“elys thou’ht it was odd that [Brooks-Kro’’el] had a [doctor s] appo“ntment a‘ter [her interview] (and one that she d“dn t want to share w“th her superv“sor) and ‘elt that she may potent“ally ’o out on a [Leave o‘ Absence]. 61 February 2 and 3, 2017 entries detail distraught calls from Brooks- Kro’’el s husband, informing her supervisor that Brooks-Kroggel may have had a heart attack and would miss work.62 The last entry in the report also mentions Brooks-Kro’’el s February 28, 2017, application for medical leave.63 Viewed in the light most favorable to Plaintiff, these facts suggest that Charter honed in on Brooks-Kro’’el s med“cal “ssues and use o‘ FMLA leave when dec“d“n’ to terminate her employment. Even “‘ th“s report “s not d“rect ev“dence that Pla“nt“‘‘ s FMLA leave mot“vated BrooksKro’’el s ‘“r“n’,64 it, comb“ned w“th the temporal prox“m“ty between Pla“nt“‘‘ s FMLA leave and her termination, creates an issue of fact regarding whether the other non-retaliatory reasons Charter gave for her termination did not actually motivate or were insufficient to support its decision. Beyond temporal prox“m“ty and the “nvest“’at“on report s numerous ment“ons o‘ BrooksKro’’el s “llness and leave, that the “nvest“’ators focused on Brooks-Kroggel is suspect. Brooks- Seeger, 681 F.3d at 285 (quoting Bell v. Prefix, 321 F. App x 423, 431 (6th C“r. 2009)). See, e.g., Clark v. Walgreen Co., 424 F. App x 467, 472 (6th C“r. 2011) ( [D]“rect ev“dence o‘ discrimination . . . requires the conclusion that unlawful discrimination was at least a motivating factor in the 58 59 employer s act“ons. (emphas“s “n or“’“nal)). 60 Doc. 53-3 at 30-34. 61 Id. at 31. 62 Id. at 32-33. 63 Id. at 33. 64 De‘endant Charter now cla“ms that these are s“mply Sutton s notes and not ‘“nd“n’s relevant to the investigation. Doc. 63-1 at ¶¶ 6-13. But this competing characterization simply displays a clear dispute of fact that the Court cannot resolve on summary judgment. -9- Case No. 1:17-cv-2108 Gwin, J. Kroggel had no supervisory authority over the sales person accused of sales fraud. There is additionally no evidence that Brooks-Kroggel, as a human resources generalist, had any financial, professional, or personal incent“ve to e“ther ‘ac“l“tate the sales ‘raud or to skew the “nvest“’at“on s findings. Indeed, Brooks-Kro’’el s human resource responsibilities were not limited to this one investigation. Brooks-Kroggel covered stores in several states.65 However, the invest“’at“on report s t“mel“ne su’’ests that Brooks-Kro’’el s “llness could have played a role “n Charter s dec“s“on to ‘“re her. Brooks-Kroggel first went to the emergency room in early November.66 At this point, Brooks-Kroggel was assigned to the investigation team.67 On December 22, Jessica Sutton, Brooks-Kro’’el s superv“sor, removed Brooks-Kroggel from the investigation.68 The “nvest“’at“on s ‘“nd“n’s center on communications between Brooks-Kroggel and the investigators, and between Brooks-Kroggel and Cher Samels, who initially complained.69 The investigation report also alleges that Brooks-Kroggel performed deficiently in some areas.70 Nothing in the investigation report suggests that Brooks-Kroggel was involved with the potential fraud. The investigation report makes Brooks-Kro’’el s commun“cat“ons seem ne‘ar“ous, but viewed in her favor, they ultimately amount to a few seemingly polite emails and Brooks-Kroggel accidentally d“al“n’ Cher Samels phone number.71 Additionally, Brooks-Kro’’el s per‘ormance issues were apparently not especially egregious, because Brooks-Kroggel received a $13,000 bonus and a letter ‘rom Charter s CEO “n the m“ddle o‘ the “nvest“’at“on.72 65 See Doc. 55-1 at 10:3-11:22 (describing how Brooks-Kroggel serviced stores in the Great Lakes region, including Ohio and Indiana). 66 Doc. 53-3 at 31. 67 Doc. 55-1 at 59:8-60:2 (noting that Brooks-Kroggel was removed from the investigation team on December 22, 2016). 68 Id. 69 See generally Doc. 53-3. 70 71 72 Id. Id. at 7-28. Doc. 57-1 at 94:3-9. -10- Case No. 1:17-cv-2108 Gwin, J. Given the temporal proximity to Brooks-Kro’’el s FMLA leave, the “nvest“’at“on report mentioning her illness, and Brooks-Kro’’el s lack o‘ connect“on to the underly“n’ sales ‘raud, a reasonable ”ury could ‘“nd that Charter s non-retaliatory reasons for firing Brooks-Kroggel were pretext. For those reasons, the Court DENIES De‘endant s mot“on ‘or summary ”ud’ment on Pla“nt“‘‘ s FMLA retaliation claim. 2. Age Discrimination To establish a prima facie case of age discrimination, Plaintiff Brooks-Kroggel must show that: (1) she is at least 40 years of age; (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by a significantly younger person, or that similarly situated significantly younger persons were treated better than her.73 The parties only disagree regarding whether Defendant Charter replaced Plaintiff with a significantly younger person or treated younger persons better than her. Defendant Charter states that it did not replace Brooks-Kroggel; instead another Human Resources Generalist assumed her duties in addition to that employee s own duties.74 This employee is only four years younger than Brooks-Kroggel.75 Plaintiff does not give any evidence to counter this evidence. Plaintiff also provides no evidence of a comparable younger employee who received favorable treatment.76 The S“xth C“rcu“t has held that [s]pread“n’ the ‘ormer dut“es o‘ a term“nated employee amon’ the rema“n“n’ employees does not const“tute replacement. 73 77 Add“t“onally, “n the absence o‘ d“rect Grosjean, 349 F.3d at 335. Doc. 55-1 at 12:2-22. 75 See Doc. 60-6 at ¶ 5 (stating that human resources generalist Carey was born in 1966). 76 There is no evidence that the two younger investigators that replaced Plaintiff received favorable treatment. The evidence shows that Brooks-Kroggel was only replaced on this lone investigation, as opposed to all of her ”ob dut“es, and reass“’nments w“thout salary or work hour chan’es do not ord“nar“ly const“tute adverse employment decisions in employment d“scr“m“nat“on cla“ms. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996). 77 Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992). 74 -11- Case No. 1:17-cv-2108 Gwin, J. evidence that the employer considered age to be significant, an age difference of six years or less . . . “s not s“’n“‘“cant. 78 The Court therefore finds that Plaintiff Brooks-Kroggel fails to state a prima facie case of age discrimination. Defendant Charter did not replace Brooks-Kroggel after Defendant Charter fired Brooks-Kroggel, and the employee who assumed her job duties is of a similar age. The Court therefore GRANTS De‘endant s mot“on ‘or summary ”ud’ment on Plaintiff BrooksKro’’el s a’e d“scr“m“nat“on cla“m. B. Other Outstanding Claims The parties have filed a stipulated dismissal of Pla“nt“‘‘s Bates and St“rl“n’ s claims against De‘endant Charter and o‘ De‘endant Charter s countercla“ms a’a“nst them.79 Because of this dismissal, the Court DENIES AS MOOT the part“es mot“ons ‘or summary ”ud’ment to the extent they challenge Pla“nt“‘‘s Bates and St“rl“n’ s cla“ms or De‘endant Charter s countercla“ms. CONCLUSION For those reasons, the Court GRANTS IN PART and DENIES IN PART De‘endant s mot“on ‘or summary judgment as to Plaintiff Brooks-Kroggel. The Court GRANTS De‘endant s mot“on as to Pla“nt“‘‘ s a’e d“scr“m“nat“on cla“m and DENIES De‘endant s mot“on as to her FMLA retal“at“on cla“m. The Court DENIES AS MOOT Pla“nt“‘‘s Bates and St“rl“n’ s mot“on ‘or summary ”ud’ment and De‘endant s mot“on ‘or summary ”ud’ment as to Pla“nt“‘‘s Bates and St“rl“n’ s cla“ms. This case will proceed to trial on Plaintiff Brooks-Kro’’el s FMLA retal“at“on cla“m as scheduled. IT IS SO ORDERED s/ Dated: May 21, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 78 Walcott v. City of Cleveland, 123 F. App x 171, 178 (6th C“r. 2005) (quoting Grosjean, 349 F.3d at 340). 79 Doc. 61. -12-
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