# Benick v. Morrow County Health District

> District Court, S.D. Ohio · June 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10375710

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10375710

## How later opinions describe it (automated extraction)

- noting that a plaintiff must give specific, well-pleaded facts, not just conclusory allegations

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIAN BENICK,
Case No. 2:20-cv-900
Plaintiff,
Magistrate Judge Kimberly A. Jolson
v.

MORROW COUNTY HEALTH DISTRICT,

Defendant.

BRIAN BENICK,
Case No. 2:20-cv-1058
Plaintiff,
Magistrate Judge Kimberly A. Jolson
v.

MORROW COUNTY HEALTH DISTRICT,

Defendant.

OPINION AND ORDER

This matter, in which the parties have consented to the jurisdiction of the Magistrate Judge
pursuant to 28 U.S.C. § 636(c) (2:20-cv-900, Doc. 18 (the “FMLA Action”) and 2:20-cv-1058,
Doc. 17 (the “ADA Action”)), is before the Court on Defendant Morrow County Health District’s
Motions to Dismiss (FMLA Action, Doc. 12; ADA Action, Doc. 11). For the reasons that follow,
the Motions are GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff is a former employee of Defendant Morrow County Health District (“Defendant”
or “Health District”). (FMLA Action, Doc. 1 at 1). He worked for the Health District from May
18, 2010, to November 19, 2018, as the Director of Environmental Health. (Id.). Four years into
his employment, in July 2014, Plaintiff began experiencing “mental distress” as a result of his job.
(Id. at 3). His treating physician, Dr. Peter Zafirides, diagnosed him with Major Depressive
Disorder; Recurrent and Attention Deficit Disorder (“ADD”). (Id. at 44). Dr. Zafirides continued
to treat Plaintiff, and Plaintiff continued his employment with the Health District. (Id. at 3).

At some point in 2017, a group of Morrow County Commissioners approached Plaintiff
and expressed concerns about how the Health District was being managed. (Id. at 26).
Specifically, Plaintiff alleges they expressed concern about the performance of Pamela Butler, the
Health Commissioner, as well as certain of Defendant’s Board members. (Id.). Ms. Butler was
Plaintiff’s boss. (Id. at 2). Then, in December 2017, certain Morrow County Commissioners
contacted Plaintiff and requested the attendance records of one of Defendant’s Board members,
Jim Albertson, which Plaintiff provided to them. (Id. at 27). Those records allegedly showed Mr.
Albertson was not in compliance with Ohio law due to his frequent absences from Defendant’s
Board meetings. (Id.).
Shortly thereafter, in January 2018, the Morrow County Prosecutor, Charles Howland,

allegedly informed Ms. Butler that Plaintiff was cooperating with the Morrow County
Commissioners. (Id. at 27–29). Ms. Butler responded by isolating Plaintiff and refusing to
communicate with him. (Id.). Despite the alleged retaliation, Plaintiff continued to communicate
with the Morrow County Commissioners about their concerns with Defendant’s management, and
Plaintiff sought whistleblower protection. (Id. at 28–29).
In February 2018, Ms. Butler continued to isolate Plaintiff and refused to communicate
with him, causing him significant distress. (Id.). Dr. Zafirides then “insisted” that Plaintiff take
sick leave due to the stress he was experiencing at work. (Id. at 3). Beginning on February 12,
2018, Plaintiff took two weeks of sick leave. (Id. at 29).
On February 19, 2018, Dr. Zafirides sent a letter to Ms. Butler informing her that he had
been treating Plaintiff for Major Depressive Disorder; Recurrent and ADD since July 2014 and
that Plaintiff’s “mood symptoms” had recently been exacerbated by stress at work. (Id. at 44). Dr.
Zafirides expressly noted that Plaintiff’s depression and ADD were protected conditions under the

Americans with Disabilities Act (“ADA”) and that he had informed Plaintiff of his statutory rights.
(Id.).
The next day, February 20, 2018, Defendant provided Plaintiff with a Notice of Eligibility
and Rights & Responsibilities (Family and Medical Leave Act). (Id. at 64–65). The Notice
indicated that Plaintiff had informed Defendant that he needed leave beginning on February 12,
2018, and confirmed that he was eligible for FMLA leave. (Id. at 64). Defendant requested that
Plaintiff provide additional information by March 6, 2018. (Id.). The Notice further represented
that Plaintiff had the right to 12 weeks of unpaid leave under the FMLA. (Id. at 65).
On February 26, 2018, Dr. Zafirides signed a note that purported to “serve as official
medical verification of” Plaintiff’s medical condition and stated that it was medically necessary

for Plaintiff to extend his leave until March 18, 2018. (Id. at 63). Plaintiff alleges that he provided
his February 26, 2018 “leave slips” to Mr. Howland. (Id. at 4).
On February 27, 2018, Ms. Butler sent Plaintiff a letter indicating that Defendant had
received and approved his request for FMLA leave through February 25, 2018, but emphasized
that Plaintiff had not provided any additional documentation supporting leave beyond that date.
(Id. at 72). Ms. Butler wrote that, absent additional leave being necessary, Defendant expected
Plaintiff to return to work on March 1, 2018. (Id.). Finally, Ms. Butler noted that she understood
that Plaintiff was “in need of accommodation for a medical condition” and that she “would like to
speak with [him] regarding any accommodations [he] may need” when he returned to work. (Id.).
On March 1, 2018, Ms. Butler sent a follow-up letter, noting that Plaintiff had not contacted
her about additional leave being necessary and had not returned to work. (Id. at 74). If Plaintiff
did not return to work by March 5, 2018, she indicated, Defendant would assume that he had
voluntarily resigned. (Id.). In response, Mr. Howland allegedly provided Ms. Butler with

Plaintiff’s “leave slips” extending his FMLA leave until March 18, 2018. (Id. at 5; id. at 76).
Despite being on FMLA leave, Plaintiff alleges, on March 16, 2018, one of Defendant’s
Board members pressured him to return to work on March 19, 2018. (Id. at 6). On March 18,
2018, Dr. Zafirides signed a note indicating that Plaintiff’s FMLA leave should be extended for an
additional 30 days. (Id. at 70). The next day, March 19, 2019, Plaintiff returned to work, (id. at
6), but Defendant’s Board voted to terminate him that evening, (id. at 148).
After his termination on March 19, 2020, Plaintiff contacted Mr. Howland and requested
that Mr. Howland declare Defendant’s decision to terminate him “improper” because he was on
FMLA leave with “an ADA-protected condition.” (Id. at 152). That same day, Ms. Butler
circulated an email stating that Plaintiff “was no longer employed” by Defendant. (Id. at 153).

Shortly thereafter, Mr. Howland sent a letter to Ms. Butler, requesting that she “contact the
members of the Morrow County Board of Health … to have a special meeting and rescind”
Plaintiff’s termination. (Id. at 154–55). In making his request, Mr. Howland noted: The March
19 meeting of Defendant’s Board violated Ohio’s Open Meeting Laws and was therefore invalid;
Plaintiff was a member of a protected class due to his age; and Plaintiff was on medical leave at
the time of his termination. (Id.).
On April 3, 2018, Defendant’s Board held a hearing to discuss Plaintiff’s employment.
The Board issued a statement:
It has come to our attention tonight that employee, Brian Benick, was on FMLA
medical leave on March 19, 2018 and any formal action taken by the Board on that
date regarding Mr. Benick should be rescinded and Mr. Benick should remain on
leave until April 16, 2018. He is on leave and may return to advise the Board at the
next Board Meeting on April 16, 2018 if he is to continue this medical leave after
this date.

(Id. at 161). Defendant’s Board then voted to rescind Plaintiff’s termination. (Id.).
Ms. Butler communicated with Plaintiff the next day. (See id. at 162). She indicated that
Plaintiff’s termination on March 19, 2018, was based on his representation that he was returning
to work and his failure to communicate with her regarding any extension of his FMLA leave. (Id.).
She further directed him to provide medical documentation substantiating his request for an
extension of his leave through April 15, 2018. (Id.). On April 13, 2018, Dr. Zafirides extended
the need for Plaintiff’s medical leave through May 4, 2018, noting an “ongoing struggle with
[Plaintiff’s] ADA-protected medical conditions.” (Id. at 71).
Before returning to work, Plaintiff’s former counsel sent a letter to Ms. Butler, addressing
the need for Defendant to provide him certain accommodations upon his return:
Mr. Benick expects to return to work on May 7, 2018. Mr. Benick is currently still
suffering from his depression and anxiety which has been exasperated [sic] by the
hostile work environment and retaliation that he has suffered while employed at
Morrow County. As Mr. Benick’s severe depression and anxiety is substantially
limiting and not temporary, Mr. Benick requests the following reasonable
accommodations:

1. Mr. Benick shall report to the county commissioners, and if
reporting to the county commissioners is unreasonable, then he shall
report to a new supervisor;

2. If Mr. Benick must report to his current supervisor, than [sic] all
communications shall be done in writing; and

3. If Mr. Benick must communicate with his current supervisor in
person or over the phone, then he shall select an employee
representative and have his employee representative present during
such discussion.

With these reasonable accommodations, Mr. Benick would be able to perform his
duties and responsibilities of his position.
(ADA Action, Doc. 1-1 at 119).
Defendant responded to Plaintiff’s request for accommodation:
We understand Mr. Benick has requested to have either County
Commissioner Burgess Castle or Board of Health Member Glenn Bragg serve as a
neutral representative in all verbal communications between Mr. Benick and his
direct supervisor Health Commissioner Pam Butler. We have discussed Mr.
Benick’s specific request with Ms. Butler. Based upon Mr. Benick’s essential job
functions and the Health District’s operational needs, the accommodations agreed
upon by the Health District remain the same:

• Ms. Butler will continue to serve as Mr. Benick’s direct
supervisor, however, all communications between Mr. Benick
and Ms. Butler will be in writing, specifically email or other
written correspondence delivered through the Health District’s
mailbox system.

• If a verbal communication between Mr. Benick and Ms. Butler
is necessary, Stephanie Bragg, Director of Nursing, will serve as
a neutral representative and will be present and/or participate in
any and all verbal communications.

Additionally, the Health District is willing to accommodate Mr. Benick by
permitting him to work from home. If Mr. Benick opts to work from home, the
Health Department will extend his leave of absence through this week to permit the
Health Department time to establish the parameters and implement this
accommodation. Mr. Benick would begin working from home, Monday, May 14,
2018.

If Mr. Benick prefers to work in the office, he is to report to work tomorrow,
May 8, 2018 with the accommodations outlined above in place.

(Id. at 121).

Plaintiff returned to work in early May 2018. Upon his return, he alleges he found that his
office had been “purposefully trashed” and that he was subject to unfounded criticism. (FMLA
Action, Doc. 1 at 13). Ms. Butler allegedly reduced Plaintiff’s supervisory responsibilities so that
he no longer supervised any employees. (Id. at 14). Further, she provided Plaintiff with a list of
“key priorities” that he needed to complete, including a draft environmental health operations plan
and a division succession plan to be completed by June 4, 2018. (Id. at 219). In the month
following Plaintiff’s return to work, communications between Plaintiff and Ms. Butler reflected a
tense workplace environment. (See, e.g., id. at 220–29, 240–41, 243–45).
According to Plaintiff, one of those communications is particularly relevant here. On May

31, 2018, Ms. Butler emailed Plaintiff:
I wanted you to know that there have been some changes in the organizational chart.
Karrie, Lynne, Stephanie Z, and Rodney were all reporting directly to me. Karrie,
Lynne and Stephanie will still report to me.

It has been reported to me that you have been somewhat abrupt, disrespectful and
you are causing anxiety and stress to Stephanie among others. This was a problem
in the past as found in some of your past emails regarding Stephanie. Since it is
difficult to communicate with you, I will do the managing of these employees.
MCHD does not want or need more accommodations in the workplace.

It was also reported that you seem to be reporting employees to the county
commissioners and are directing community members to report employees to the
county commissioners as well. This, in my opinion, does not make any sense. The
county commissioners do not have jurisdiction over and are not responsible for
MCHD employees

(ADA Action, Doc. 1-1 at 141–42 (emphasis added)). But that same day, Ms. Butler completed
an Employee Job Performance Review for Plaintiff, finding that he consistently met expectations
across subject areas. (Id. at 148–51).
Roughly one month later, on July 2, 2018, Defendant’s Board voted to place Plaintiff on
paid administrative leave as a result of the Ohio Department of Health’s “audit and investigation
into Morrow County Health District’s sewage program for which” Plaintiff was responsible.
(FMLA Action, Doc. 1 at 186).
Defendant terminated Plaintiff’s employment on November 19, 2018, for allegedly
violating Defendant’s “Violence in the Workplace Policy” by threatening to punch Mr. Howland
and acting in an intimidating manner at a meeting earlier in 2018. (Id. at 116, 259).
II. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a
claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing

the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual
allegations as true. Twombly, 550 U.S. at 555–56. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added) (citing
Twombly, 550 U.S. at 556).
On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555; see also
Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give
specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed
factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement”

rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 555).
III. DISCUSSION
Defendant moves to dismiss Plaintiff’s FMLA and ADA claims. Generally, it argues that
Plaintiff’s Complaints should be dismissed because they fail to satisfy basic pleading requirements.
(FMLA Action, Doc. 12 at 3–5; ADA Action, Doc. 11 at 3–5). And, more specifically, Defendant
contends that Plaintiff’s Complaint fails to state a claim for FMLA interference, FMLA retaliation,
ADA discrimination, or a failure to accommodate under the ADA. (FMLA Action, Doc. 12 at 5–
7; ADA Action, Doc. 11 at 5–7).
A. Basic Pleading Requirements
Defendant emphasizes that Plaintiff has failed to comply with the following basic pleading
requirements:
• A pleading must contain “a short and plain statement of the grounds for the
court’s jurisdiction” and a “short [and] plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

• “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d).

• “A party must state its claims … in numbered paragraphs, each limited as far
as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b).

(FMLA Action, Doc. 12 at 4; ADA Action, Doc. 11 at 4). In Defendant’s view, “[t]he factual
allegations in the Complaint[s] are convoluted, excessively detailed, and unnecessarily
complicated,” (FMLA Action, Doc. 12 at 2; ADA Action, Doc. 11 at 3), and, as a result, Plaintiff’s
Complaints should be dismissed, (see FMLA Action, Doc. 12 at 3–5; ADA Action, Doc. 11 at 3–
5).
Plaintiff does not have a lawyer in this case. As such, his pleadings are “to be liberally
construed” and are “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). But even as a pro se litigant, he still
must satisfy basic pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
To be sure, Plaintiff’s Complaints are not models of clarity. They include excessive and
irrelevant details and rely on more than 90 exhibits to provide relevant factual information. But
that is true of many, if not most, of the pro se complaints filed in this Court. Absent a failure to
follow the Court’s guidance, the Court is generally reluctant to dismiss a pro se complaint in this
situation. Cf. Diamond v. Premier Mfg./Voith Indus. Servs., No. 11-12228, 2012 WL 313996, at
*5 (E.D. Mich. Jan. 6, 2012), report and recommendation adopted sub nom. Diamond v. Premier
MFG/Voith Indus. Servs., No. 11-CV12228-DT, 2012 WL 314075 (E.D. Mich. Jan. 31, 2012) (“In
this case, plaintiff has had the benefit of clear and specific direction from the Court as how to
properly amend his complaint and, as Voith points out, plaintiff was essentially given a ‘roadmap’
regarding the facts and allegations necessary to prepare his complaint as set forth in the various
motions to dismiss. Plaintiff has chosen to ignore all this information and instead, continually

plows forward with lengthy, nonsensical, and difficult to understand submissions. Plaintiff has
already had the opportunity to amend his complaint and has failed to do so properly. Thus, the
undersigned recommends that plaintiff’s complaint be dismissed in its entirely, without
prejudice.”). Given Plaintiff’s pro se status, the Court finds that he has done enough to satisfy
basic pleading requirements here.
B. Failure to State a Claim
Defendant additionally contends that Plaintiff’s Complaints fail to state the necessary
elements to bring an FMLA or ADA claim. The Court addresses each of these arguments in turn.
1. FMLA Claims
In the FMLA Action, Plaintiff brings two claims: (1) Defendant interfered with his FMLA

leave, and (2) Defendant retaliated against him for taking FMLA leave. Initially, Defendant
responded to Plaintiff’s Complaint by arguing that he had failed to state a claim for discrimination
under Title VII or the ADEA. (Id. at 7–8). In response, Plaintiff concedes that he is not attempting
to bring any non-FMLA claims in this action. (FMLA Action, Doc. 13 at 2). So that issue is not
before the Court. What remains before the Court is Defendant’s argument that Plaintiff has failed
to state an FMLA claim. (FMLA Action, Doc. 12 at 5–8).
Defendant’s arguments are based on Plaintiff’s purported failure to allege facts
demonstrating a prima facie case of FMLA interference and retaliation. But, as a threshold matter,
the Court questions whether that is required at this stage of the case. In employment cases, the
elements of a prima facie case come from the McDonnell Douglas framework, and, in the Sixth
Circuit, that framework applies to both interference and retaliation claims under
the FMLA, see Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (“Grace requires the
conclusion that the district court correctly applied McDonnell Douglas to both Donald’s

interference and retaliation claims.”). But that framework “is an evidentiary standard”—“not a
pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). It follows, then,
that the question is not whether Plaintiff has pled a prima facie case for FMLA interference or
retaliation, but, instead whether Plaintiff has complied with Rule 8(a) and “give[n] the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 512 (citation
and quotations omitted).
Plaintiff has satisfied that low bar here. He has alleged: He was eligible for FMLA leave;
he took FMLA leave; while he was on FMLA leave, Defendant interfered with that leave by
forcing him to work and terminating him; and, upon his return to work, Defendant engaged in a
pattern of retaliation that resulted in his suspension and termination, all allegedly because he took

FMLA leave. These allegations provide Defendant with fair notice of Plaintiff’s claims.
Moreover, even assuming that Plaintiff was required to plead the elements of a prima facie
case, the Court finds that he has done so here as discussed below.
a. FMLA Interference
Reciting the elements of a prima facie case of FMLA interference, Defendant argues that
“Benick’s Complaint fails to allege that he was an eligible employee, that MCHD was a covered
employer, that he was entitled to take FMLA leave, or that he notified MCHD of his intent to take
FMLA leave.” (FMLA Action, Doc. 12 at 5). Further, Defendant asserts, Plaintiff alleges that he
took 12 weeks of FMLA leave and, therefore, has no claim because he received all the FMLA
leave to which he was entitled. (Id.).
The FMLA provides that “[i]t shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise” any rights under the FMLA and that “any eligible
employee who takes leave ... shall be entitled, on return from such leave (A) to be restored by the

employer to the position of employment held by the employee when the leave commenced; or (B)
to be restored to an equivalent position.” 29 U.S.C. § 2615(a)(1); 29 U.S.C. § 2614(a)(1).
To prevail on an FMLA interference claim, a plaintiff must establish that (1) he was
an eligible employee as defined under the FMLA; (2) his employer was a covered
employer as defined under the FMLA; (3) he was entitled to leave under the FMLA;
(4) he gave the employer notice of his intention to take FMLA leave; and (5) his
employer denied FMLA benefits to which he was entitled.

Dyer v. Ventra Sandusky, LLC, 934 F.3d 472, 475 (6th Cir. 2019) (citing Demyanovich v. Cadon
Plating & Coatings, L.L.C., 747 F.3d 419, 427 (6th Cir. 2014)).
Here, Plaintiff alleges that (1) he was an eligible employee as defined under the FMLA;
(2) Defendant was a covered employer as defined under the FMLA; (3) he was entitled to leave
under the FMLA; and (4) he notified Defendant of his intention to take FMLA leave. (See FMLA
Action, Doc. 1 at 64–65 (Defendant’s February 20, 2018 Notice of Eligibility and Rights &
Responsibilities (Family and Medical Leave Act) for Plaintiff informing him that he was eligible
for up to 12 weeks FMLA leave and approving him for leave through February 25, 2018)).
Admittedly, when Plaintiff notified Defendant of each of his extensions of his leave is less clear.
(Compare FMLA Action, Doc. 1 at 63 (Dr. Zafirides’ February 26, 2018, note stating that it was
medically necessary for Plaintiff to extend his leave until March 18, 2018) with id. at 72 (Ms.
Butler’s February 27, 2018, letter, stating, “We granted your request for leave through February
25, 2018 … To date, you have not informed us or provided any documentation of a need for
additional leave but you have not returned to work … While on leave, you are prohibited from
working in any capacity. This includes checking emails and coming into the office. Please
discontinue all work activity until you return to work.”)). But at the pleadings stage, this ambiguity
is not important.
The only question then is whether Plaintiff has pled that Defendant denied him FMLA

benefits to which he was entitled. That is not a difficult question to answer on the allegations
before the Court. Plaintiff alleges that Defendant deprived him of his FMLA rights in several
ways, including, inter alia: (1) requiring him to work during his FMLA leave, (FMLA Action,
Doc. 1 at 5); (2) terminating his employment during his FMLA leave, (id. at 6, 8); and (3) failing
to restore him to the position he held when he commenced his leave or an equivalent position, (id.
at 14). On these allegations, Defendant interfered with Plaintiff’s FMLA rights. See 29 U.S.C.
§ 2614(a)(1) (“[A]ny eligible employee who takes leave under section 2612 of this title for the
intended purpose of the leave shall be entitled, on return from such leave--(A) to be restored by
the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other

terms and conditions of employment.”); Dyer, 934 F.3d at 476 (“[D]enying a valuable term or
condition of employment to an employee taking FMLA leave interferes with the right to take that
leave.”); cf. Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 633 (6th Cir. 2018) (“Groening has
failed to show that the board interfered with her leave by requiring her to work.”).
Yet Defendant argues that Plaintiff was not denied any FMLA rights because he received
all 12 weeks of FMLA leave to which he was entitled. (FMLA Action, Doc. 12 at 5; FMLA
Action, Doc. 16 at 1–2). Generally, when a plaintiff is permitted to take all the FMLA leave to
which he is entitled and he is then restored to the position he held prior to his FMLA leave, no
FMLA interference has occurred. See, e.g., Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 385
(6th Cir. 2017) (holding that the plaintiff’s FMLA interference claim failed because she received
all of the FMLA leave she requested and was reinstated following those absences, her employer
prorated her production standards to account for the days she was out on FMLA leave, and her
demotion and termination occurred months after she was initially reinstated to the position she

held before taking leave).
Perhaps the facts will bear out Defendant’s position as this case progresses. But, as
discussed above, that is not what Plaintiff alleges occurred here. To the contrary, he alleges that
legally significant harm came to him when he tried to take FMLA leave. (See FMLA Action, Doc.
1 at 5, 6, 8, 14). Because the Court is obligated to view the Complaint in the light most favorable
to Plaintiff, his version of events carries the day for now.
b. FMLA Retaliation
Defendant further argues that Plaintiff has failed to state a prima facie case of FMLA
retaliation because: (1) he has not alleged that it was aware that he had taken FMLA leave, and (2)
he was terminated for violating Defendant’s policy regarding violence in the workplace. (FMLA

Action, Doc. 12 at 6–7).
The FMLA “affords employees protection in the event they suffer retaliation or
discrimination for exercising their rights under the FMLA. Specifically, [a]n employer is
prohibited from discriminating against employees … who have used FMLA leave, nor can they
use the taking of FMLA leave as a negative factor in employment actions.” Marshall, 854 F.3d at
376 (citation and quotations omitted). “This prohibition includes retaliatory discharge for taking
leave.” Id. (citation and quotations omitted).
To state a prima facie case of FMLA retaliation, a plaintiff must allege facts showing:
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew
that she was exercising her rights under the FMLA; (3) after learning of the
employee’s exercise of FMLA rights, the employer took an employment action
adverse to her; and (4) there was a causal connection between the protected FMLA
activity and the adverse employment action.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 616 (6th Cir. 2019) (quoting Donald v.
Sybra, 667 F.3d 757, 761 (6th Cir. 2012)).
Here, Plaintiff alleges that Defendant and its employees retaliated against him immediately
upon his return to work in May 2018 from his FMLA leave. (FMLA Action, Doc. 1 at 10–15).
According to him, certain of Defendant’s employees trashed his desk, subjected him to unfounded
criticism, eliminated his supervisory authority, reduced his responsibilities, and conspired to
terminate his employment. (Id.). Defendant subsequently terminated Plaintiff on November 19,
2018. (Id. at 16).
These allegations are sufficient to satisfy the first three elements of an FMLA retaliation
claim. One, Plaintiff alleges that he engaged in protected activity under the FMLA by taking
FMLA leave from February through early May 2018. (See FMLA Action, Doc. 1 at 3–12). Two,
Defendant knew that Plaintiff was exercising his rights under the FMLA. (See id. at 64–65
(Defendant’s February 20, 2018, Notice of Eligibility and Rights & Responsibilities (Family and
Medical Leave Act) for Plaintiff informing him that he was eligible for up to 12 weeks FMLA
leave and approving him for leave through February 25, 2018); id. at 161 (April 3, 2018 statement
by Defendant’s Board acknowledging that Plaintiff “was on FMLA medical leave” at the time of
his March 19, 2018, termination and rescinding that termination)). Three, after learning that
Plaintiff took FMLA leave, Defendant terminated his employment. (Id. at 16).
The remaining question is whether there was a causal connection between Plaintiff taking
FMLA leave and Defendant terminating his employment. As alleged here, the Court finds that a
causal connection has been sufficiently pled. Given Defendant’s initial attempt to fire Plaintiff
while he was on FMLA leave, its employees’ alleged pattern of retaliation and harassment of
Plaintiff after he returned from FMLA leave, and the temporal proximity of Plaintiff’s November
2018 termination to his return from FMLA leave, Plaintiff has alleged sufficient facts to satisfy
the causal connection requirement. See Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724,

737 (6th Cir. 2006) (citing Little v. BP Exploration & Oil Co., 265 F.3d 357, 363–64 (6th Cir.
2001); Nguyen v. City of Cleveland, 229 F.3d 559, 566–67 (6th Cir. 2000)) (holding that “a
temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support
a finding of a causal connection”); cf. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308–09
(6th Cir. 2016) (citing Nguyen, 229 F.3d at 566–67) (“Temporal proximity of more than six
months, standing alone, has not been found to support an inference of retaliatory discrimination
absent other compelling evidence.”).
Defendant’s two arguments to the contrary are not persuasive. First, although Defendant
argues otherwise, (see FMLA Action, Doc. 12 at 6), Plaintiff has alleged that Defendant—and
specifically its Board—knew that Plaintiff had taken FMLA leave at the time it terminated him in

November 2018, (see FMLA Action, Doc. 1 at 161 (April 3, 2018, statement by Defendant’s Board
acknowledging that Plaintiff “was on FMLA medical leave” at the time of his March 19, 2018,
termination and rescinding that termination)).
Second, Defendant maintains that it terminated Plaintiff for violating its policy regarding
violence in the workplace, not for taking FMLA leave, and that Plaintiff’s retaliation claims fails
as a result. (FMLA Action, Doc. 12 at 6–7). That argument, however, is appropriate for summary
judgment, not at the motion to dismiss stage. At this stage, the Court construes the Complaint in
the light most favorable to Plaintiff; doing that here makes clear that Plaintiff alleges he was fired
for taking FMLA leave. Later in this proceeding, Defendant may attempt to show that Plaintiff
was terminated for a nondiscriminatory reason under the McDonnell Douglas framework. See
Marshall, 854 F.3d at 379 (articulating McDonnell Douglas burden-shifting standard in context of
an FMLA retaliation claim). Defendant’s argument is, therefore, premature at this stage of the
case.

2. ADA Claims
Plaintiff brings two ADA claims, alleging that (1) Defendant discriminated against him on
account of his disability and (2) Defendant failed to accommodate his reasonable request for
accommodation. Defendant maintains that Plaintiff fails to state a claim with respect to both of
these claims. (ADA Action, Doc. 11 at 5–7).
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on
the basis of disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Relevant here, “the term ‘discriminate against a qualified
individual on the basis of disability’ includes”:

(5)(A) not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered
entity; or

(B) denying employment opportunities to a job applicant or employee who is an
otherwise qualified individual with a disability, if such denial is based on the need
of such covered entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant;

42 U.S.C. § 12112(b)(5)(A)-(B).
a. ADA Discrimination
Defendant challenges Plaintiff’s ADA claims in two ways. It begins by asserting that
Plaintiff has not alleged that he was disabled under the ADA. (ADA Action, Doc. 11 at 6). And
then it argues that Plaintiff has failed to allege that Defendant knew that Plaintiff had a disability
and terminated him because of it. (Id.).
The Court disagrees. As explained above, Defendant’s argument confuses the elements of
a prima facie case with Rule 8’s pleading standard. It fails for the same reason. “[A]t the pleading

stage, a Plaintiff is not required to ‘plead facts establishing the prima facie case of discrimination’
but is required to show he ‘was disabled or regarded as disabled and that [he] was otherwise
qualified for a position.’” Denoewer v. Union Cty. Indus., No. 2:17-CV-660, 2020 WL 1244194,
at *8 (S.D. Ohio Mar. 16, 2020) (quoting Morgan v. St. Francis Hosp., No. 19-5162, 2019 WL
5432041, at *1 (6th Cir. Oct. 3, 2019)); see also Denoewer, 2020 WL 1244194, at *8 (citation,
quotations, and internal alteration omitted) (“[A]s this Court and the Supreme Court have
previously determined, a Plaintiff is not required to make out a prima facie case using either the
direct evidence or McDonnell Douglas standards at the pleading stage where the complaint sets
forth the details leading to the adverse employment action and provides the defendant with fair
notice of the plaintiff’s claims and his bases for asserting them.”); Parker v. Magna Seating, Inc.,

No. 1:20-CV-00003, 2020 WL 1061975, at *3 (M.D. Tenn. Mar. 5, 2020) (quoting Morgan, 2019
WL 5432041, at *1) (“So long as the complaint alleges that Plaintiff was disabled or regarded as
disabled and otherwise qualified for his position, Plaintiff need only ‘give [Magna Seating] fair
notice of what his claim is and the grounds upon which it rests.’”).
Plaintiff has done that here. He alleges that: he was disabled with Major Depressive
Disorder; Recurrent and ADD, (ADA Action, Doc. 1-1 at 38); he was qualified for his job, (see id.
at 119 (asserting that he was capable of performing his job duties with reasonable
accommodations); id. at 148–51 (Plaintiff’s May 2018 performance review stating that he met
expectations in all areas of his job)); and Defendant terminated him because of his disability, (see
supra at 6–7 (detailing alleged criticism and retaliation following Plaintiff’s request for reasonable
accommodation and subsequent suspension and termination)). That is all that is required at this
stage of proceedings. See Denoewer, 2020 WL 1244194, at *8.
Defendant’s arguments to the contrary are not persuasive. While it argues that Plaintiff

has not alleged that he was disabled, (ADA Action, Doc. 11 at 6), the Complaint and attached
exhibits demonstrate otherwise, (see ADA Action, Doc. 1-1 at 38 (alleging that he was disabled
with Major Depressive Disorder; Recurrent and ADD)).
Defendant’s next argument fares no better. It contends Plaintiff’s discrimination claim fails
because its Board had no knowledge that Plaintiff was disabled and that it terminated Plaintiff
because of his violation of Defendant’s policy prohibiting violence in the workplace. (ADA
Action, Doc. 11 at 6). Perhaps discovery will demonstrate as much. But that is an argument for
another day, not a motion to dismiss.
Looking at the ADA Complaint, Plaintiff has alleged that, via his doctor and former
counsel, he repeatedly communicated to Defendant that he was disabled pursuant to the ADA.

(See ADA Action, Doc. 1-1 at 38 (informing Ms. Butler that Plaintiff was disabled due to his
Major Depressive Disorder; Recurrent and ADD and that he would need to take FMLA leave); id.
at 104 (rescinding Plaintiff’s March 2018 termination based on the Board’s understanding that he
was on FMLA leave); id. at 119 (requesting accommodations for Plaintiff based on his depression
and anxiety when he returned to work); id. at 121 (Defendant’s response to Plaintiff’s request for
accommodation)). And he has alleged sufficient facts for the Court to infer at this stage of
proceedings that he was terminated because of his alleged disability. (See supra at 6–7 (detailing
alleged criticism and retaliation following Plaintiff’s request for reasonable accommodation and
subsequent suspension and termination)).
The Court will deny Defendant’s Motion to Dismiss with respect to Plaintiff’s disability
discrimination claim accordingly.
b. ADA Reasonable Accommodation

Defendant also argues that Plaintiff has failed to allege that it denied him any
accommodation that he requested. (ADA Action, Doc. 11 at 7). The Court agrees that Plaintiff
has not provided Defendant fair notice of the grounds for his failure-to-accommodate claim. While
he has alleged that he requested a number of accommodations for his alleged disability, (see ADA
Action, Doc. 1-1 at 119), as best the Court can tell, he offers no substantive allegations that
Defendant denied him a requested accommodation.
Rather than dismissing Plaintiff’s failure-to-accommodate claim, the better course is to
allow Plaintiff an opportunity to add plausible allegations addressing this deficiency. See Grullon
v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (citations, alterations, and internal
quotation marks omitted) (“A pro se complaint should not be dismissed without the Court’s

granting leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”); Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009)
(citation omitted) (“Generally, ... a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.”); see also Runnion ex rel. Runnion v. Girl Scouts of Greater
Chicago & Nw. Indiana, 786 F.3d 510, 519 (7th Cir. 2015) (“[A] plaintiff whose original
complaint has been dismissed under Rule 12(b)(6) should be given at least one opportunity to try
to amend her complaint before the entire action is dismissed.”). The Court GRANTS Plaintiff 14
days in which to file an amended complaint, solely for the purpose of providing additional
allegations to support his claim that Defendant denied him a request for accommodation under the
ADA.
IV. MEDIATION
Given Plaintiff’s pro se status and this Opinion and Order, the Court has concluded that
this is an opportune time to attempt to resolve this case extrajudicially. The Court additionally
finds, in its discretion, that appointment of counsel is warranted to make a mediation as productive
as possible. This Court has “broad discretion in determining whether to appoint counsel for an
indigent civil litigant.” Brooks v. Airmart Food Serv., No. 05-2893-B/V, 2006 WL 1699560, at
*2 (W.D. Tenn. June 16, 2006) (citing Lavado v. Keohane, 992 F.2d 601, 604–605 (6th Cir. 1993));
see 28 U.S.C. § 1915(d) (1988) (“The court may request an attorney to represent any person unable
to afford counsel.”); see also Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th
Cir. 1985).
To that end, the undersigned hereby APPOINTS William J. Pohlman, Esq., of Pohlman
Mediation Services, P.O. Box 91211, Columbus, OH 43209-7211, as counsel for Plaintiff for the
limited purpose of representing him at a court-scheduled mediation. Mr. Pohlman has agreed to
accept this limited-scope representation. Plaintiff and his counsel remain free to discuss both the
fact and terms of the appointment. Plaintiff is ADVISED that if he accepts this appointment of
counsel, he must remain in prompt communication with his counsel.
Plaintiff is ORDERED to inform the Court whether he accepts this representation by June

22, 2020. If Plaintiff accepts representation, the Court intends to refer this case to a settlement
conference to be held in July or August 2020.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 12) is GRANTED in
part and DENIED in part. Plaintiff is GRANTED 14 days in which to file an amended
complaint, solely for the purpose of providing additional allegations to support his claim that
Defendant denied him a request for accommodation under the ADA.
IT IS SO ORDERED.

Date: June 8, 2020 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375710. Public record. Not legal advice.