Smith v. Advancepierre Foods, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARK A. SMITH,

Plaintiff,

Case No. 1:18-cv-242

v. JUDGE DOUGLAS R. COLE

ADVANCEPIERRE FOODS, INC.,

Defendant.

OPINION AND ORDER

This cause comes before the Court on Defendant AdvancePierre Foods, Inc.’s

(“APF”) Motion for Summary Judgment. (Doc. 22). For the reasons below, the Court

GRANTS APF’s Motion, DISMISSES WITH PREJUDICE Plaintiff Mark Smith’s

claims, and DIRECTS the Clerk to enter judgment accordingly.

BACKGROUND

APF, a subsidiary of Tyson Foods, manufactures fully cooked chicken and beef

products. (Chernock Decl. at ¶¶ 5, 6, Doc. 20-1, #290). Smith began working for an

APF-predecessor as a non-supervisory Maintenance Technician in 1992. (Id. at ¶ 7,

#290; Smith Dep. at 25, Doc. 19-1, #86). Three years later, in 1995, APF promoted

Smith to Maintenance Supervisor, a position he held for roughly 22 years, until his

termination on February 18, 2017. (St. Pierre Decl. at ¶ 24, Doc. 21-1, #305; Smith

Dep. at 26, #86). At the time of his termination, Smith was 56 years old. (Smith Dep.

at 180, #124).

For most of the year leading up to his termination, Smith reported directly to

Patrick St. Pierre, the Manager of APF’s Maintenance Department. (Chernock Decl.

at ¶¶ 9–12, #291; Smith Dep. at 31–32, #87). St. Pierre also managed three other

Maintenance Supervisors: Michael Mason (age 40), Timothy Taylor (age 58), and

Michael Malott (age 31). (Chernock Decl. at ¶ 13, #291). St. Pierre joined APF in

February 2016, and immediately began an overhaul of APF’s Maintenance

Department, transforming it from a “reactionary organization” to a “proactive,

preventative, predictive Department” focused on “Preventative Maintenance.” (St.

Pierre Decl. at ¶ 5, #302). To that end, St. Pierre coached the Supervisors on

Preventative Maintenance. (Id. at ¶ 6, #302–03). He required Maintenance

Supervisors to perform daily inspections of machinery so that issues were identified

and remedied before a machine broke down to avoid stalling the entire manufacturing

process. (Id. at ¶¶ 6–7, #302–03). So, to St. Pierre, it was essential for Supervisors to

plan, schedule, and prioritize proactive—rather than reactive—maintenance work on

APF’s manufacture and supply machines. (Id.).

By June 2016, about three to four months after implementing the Preventative

Maintenance initiative throughout APF’s Maintenance Department, St. Pierre began

verbally coaching Smith regarding his performance. That was because, according to

St. Pierre, Smith did not follow the Preventative Maintenance requirements. (Id. at

¶ 8, #303). In St. Pierre’s view, Smith, given his talent and experience, possessed the

technical and institutional knowledge of the production floor’s machinery, but he

continued to struggle with the new supervisory duties of planning, scheduling, and

reporting that the Preventative Maintenance initiative required. (Id.; St. Pierre Dep.

at 45, Doc. 19-2, #193). Smith also had trouble ensuring that the technicians who he

supervised had completed the necessary daily work that the new initiative required.

(St. Pierre Decl. at ¶ 8, #303). To Smith’s credit, though, he was on “first shift,” which

St. Pierre acknowledged was more active than the two other shifts and so required

Smith to perform duties that were “too much” for one person. (St. Pierre Dep. at 46,

#194). This overly burdensome workload caused Smith noticeable stress, which

St. Pierre acknowledged and offered help to manage. (Id. at 45–46, #193–94).

Despite St. Pierre coaching Smith on stress management and job performance

throughout June, July, and August 2016, though, Smith’s execution of his

Preventative Maintenance duties did not improve. (St. Pierre Decl. at ¶ 9, #303;

Chernock Decl., Ex. A, #297–98). So, in August 2016, St. Pierre decided to issue Smith

a Performance Improvement Plan (“PIP”) to address his ongoing performance

problems. (St. Pierre Decl. at ¶ 9, #303). But before St. Pierre could issue Smith the

PIP, Smith took FMLA leave beginning on August 26, 2016, due to high blood

pressure, stress, anxiety, and depression. (Id. at ¶ 9; Smith Dep. at 143, #115). There

is no dispute that APF approved Smith’s leave request. (Pl.’s Mem. in Opp’n at 3,

Doc. 26, #337). While Smith was on leave, St. Pierre moved Michael Mason, another

Maintenance Supervisor on a different shift, to cover Smith’s position. (St. Pierre Dep.

at 47, #195).

Smith returned from leave about two months later, on October 24, 2016. (Smith

Dep., Ex. 2, #129). Upon Smith’s return, St. Pierre kept Mason on Smith’s shift, i.e.,

first shift, so that those two were Co-Supervisors with equal responsibilities.

St. Pierre testified that he hoped this would alleviate Smith’s previous overload.

(St. Pierre Dep. at 46–49, #194–97). St. Pierre clarified that Mason did not replace

Smith, but rather Mason “became the second guy that we needed.” (Id. at 48, #196).

Mason supervised production lines one through five (which were smaller lines), and

Smith supervised lines six through ten. (Smith Dep. at 105–06, #106).

St. Pierre then issued the PIP to Smith four days after his return, on October

28, 2016. (Chernock Decl., Ex. A, Doc. 1, #295; St. Pierre Decl. at ¶ 11, #303). The PIP

listed goals for Smith’s improved performance on Preventative Maintenance

completion and leadership. Those goals focused on work environment safety,

production line efficiency, effective communication between Maintenance

Supervisors, and proactive daily management and scheduling. (St. Pierre Dep., Ex. G,

#285). Under the PIP, Smith had 45 days to achieve sufficient performance, or

otherwise “be subject to termination.” (Id.).

St. Pierre avers that, “[d]uring the PIP process, Smith took virtually no

initiative to meet his established goals relating to [Preventative Maintenance]

completion.” (St. Pierre Decl. at ¶ 12, #303). So, around the time that Smith’s PIP

expired (in mid-December 2016), St. Pierre mandated daily Preventative

Maintenance inspections for the entire Maintenance Department. (Id. at ¶ 16, #304).

St. Pierre informed Smith and the other Maintenance Supervisors of the new

requirement, which Smith then agreed to enforce upon his team. (Id. at ¶ 17).

Smith’s 2016 Goals and Performance Review, which St. Pierre and Smith both

signed on February 6, 2017, confirmed that 2016 had been a difficult year for Smith’s

work performance. In the review, St. Pierre wrote that, although Smith “made a

strong effort to change and made changes towards [APF’s] strategic direction[,]” he

failed to effectively communicate with other Maintenance Supervisors, did not

properly promote the Preventative Maintenance initiative to his team members, and

did not hold his team accountable for failing to complete actions. (St. Pierre Decl., Ex.

D, #278–80). Nevertheless, St. Pierre concluded Smith’s review by writing that he

was “[l]ooking forward to a great 2017.” (Id.).

Later that week, though, on February 10, 2017, a bolt fell off a machine in one

of the production lines that Smith was responsible for supervising, and, as a result,

APF had to shut down that machine. (St. Pierre Decl. at ¶ 20, #304). St. Pierre

immediately asked Smith for a summary of that line’s daily inspection so that he

could determine whether anything had been out of place. (Id.). No one had inspected

the machinery that day, however, so Smith could not produce the requested

summary. (Id.).

In an effort to address Smith’s apparent failure to ensure that his team was

conducting the daily inspections that St. Pierre had ordered, Smith held a meeting

with the first-shift Maintenance team. (Id.; Smith Dep. at 89–92, #102). St. Pierre

also attended. (Smith Dep. at 89–92, #102; St. Pierre Dep. at 60, #208).

There is conflicting testimony about what exactly Smith said during the

February 10, 2017 meeting. According to Smith, he told the first-shift team members

that the mechanics needed to complete a daily inspection checklist by the end of that

day and that, beginning the next Monday, “[w]e have to do them daily, you know,

whether we agree or not … .” (Smith Dep. at 89, #102). In his deposition, Smith

acknowledged that his team had not been performing daily inspections, contrary to

St. Pierre’s orders, and explained that the mechanics “were bucking and didn’t want

to do it.” (Id.).

In Smith’s view, requiring the mechanics to inspect the equipment in the

morning when they were “trying to start up” was “very taxing on them.” (Id. at 90,

#102). According to him, in the three weeks leading up to the February 10th meeting,

he “was trying to ease” them into the system. (Id. at 90–91, #102). But, Smith

testifies, he put his foot down at the February 10th meeting and explained to his team

that the “wean-in” strategy had ended and so the mechanics had to perform the

inspections each morning. (Id. at 94–96, #103).

Smith’s notes from that meeting, however, seem to indicate that he planned to

begin the “wean-in” process at the February 10th meeting, as his team had not been

performing the daily checklists up to that point. He wrote that, on February 8, 2017,

“I discovered that [the mechanics] were not completing the daily check list [sic] that

was mandatory per … St. Pierre.” (Smith Dep., Ex. 2 at 2, #130). So, Smith writes, he

raised the issue at the February 10th meeting. (Id.). More specifically, he continues,

after “address[ing] the mechanics regarding the daily checklist, they expressed how

they were unable to complete the task without compromising start-up.” (Id.). In

response to his team’s stated concerns, Smith apparently tried to “wean-in” the

required checklist and thereby balance the demands of St. Pierre with the concerns

of the mechanics. (See id. (“Without overwhelming the mechanics, as well as

compromising startup, we were trying to find a solution to be able to complete these

daily checklists.”)).

Smith’s written account is more consistent with St. Pierre’s version of the

February 10th meeting. St. Pierre testifies that, at that meeting, Smith told the

Maintenance Department’s first-shift team that they did not need to prioritize

Preventative Maintenance (i.e., the daily inspection checklists) and that they instead

needed to focus on “corrective work.” (St. Pierre Dep. at 61, #209). St. Pierre further

claims that Smith instructed his crew members that they only needed to perform the

inspections at least once per week and that they were permitted to start an assembly

line each morning, even if it had not been inspected that day. (St. Pierre Decl. at ¶ 22,

#306). So, in St. Pierre’s view, Smith’s comments to his crew at the February 10th

meeting directly defied St. Pierre’s instructions and ignored the Preventative

Maintenance initiative that St. Pierre had been trying to implement for months. (Id.

at ¶¶ 5, 6, 22, #302, 306; St. Pierre Dep. at 62, #210).

Immediately following the February 10th meeting, St. Pierre privately

confronted Smith in St. Pierre’s office, telling Smith that he was not authorized to

change the frequency of the Preventative Maintenance inspections. (St. Pierre Decl.

at ¶ 23, #305; Smith Dep. at 101–02, #105; St. Pierre Dep. at 63, #211). St. Pierre

then sent Smith home. (St. Pierre Decl. at ¶ 23, #305; Smith Dep. at 101–02, #105).

Both Smith and St. Pierre claim they were confused about what had just happened

during the meeting. St. Pierre could not believe that Smith would openly contradict

him in front of the Maintenance Department’s entire first-shift crew, especially after

(according to St. Pierre) Smith had recently “turned the corner” on resisting the

initiative. (St. Pierre Dep. at 62–63, #210–11). On the other hand, Smith was

“dumbfounded” that what he had said at the meeting caused St. Pierre to send him

home. (Smith Dep. at 101–02, #105).

The next day, on February 11, 2017, Smith called APF’s Senior HR Manager,

Renee Chernock. (Chernock Decl. at ¶¶ 3, 25–27, #290, 292; Smith Dep. at 107–08,

#106). Smith “vented” to Chernock about his frustration regarding the fallout of the

February 10th meeting with his Maintenance technicians; particularly focusing on

the fact that, after the meeting, St. Pierre had sent him home for the day. (Chernock

Decl. at ¶ 25, #292). Smith testified at his deposition that he also raised concerns to

Chernock about APF engaging in age discrimination against its employees. (Smith

Dep. at 107, #106). More specifically, he stated that he complained to Chernock about

APF’s Plant Manager, Chris Gosney, discriminating against him and other APF

employees because of age. (Smith Dep. at 116–36, #108–13). (At one point in Smith’s

deposition, though, he said he did not remember if he did in fact say anything about

Gosney to Chernock, but that he knew he had discussed his concerns about Gosney

with someone. (Smith Dep. at 115–16, #108). Chernock, for her part, testified that

Smith had never raised any concerns about age discrimination with her and did not

mention such concerns during the February 11, 2017 phone call. (Chernock Decl. at

¶¶ 26, 27, #292).)

At some point during the week after St. Pierre sent Smith home, St. Pierre

decided APF must terminate Smith’s employment. According to St. Pierre, he arrived

at that decision because, even after Smith’s PIP had ended, Smith struggled to shift

his focus toward the Preventative Maintenance initiative. (Id. at 54, #202). And the

“last straw,” St. Pierre says, was Smith’s open defiance of that initiative at the

February 10th meeting. (Id.).

Having made up his mind, St. Pierre presented his decision and Smith’s PIP

to APF’s HR Director, Mandy Ramirez, and Plant Manager Gosney to “review the

facts[ and] the plan with both of them.” (St. Pierre Dep. at 57, #205). Apparently,

St. Pierre “went to [Ramirez] first to make sure we were all on the same page and

then, you know, presented it to [Gosney] … as the authority.”1 (Id.). The record does

not indicate when St. Pierre met with Ramirez and Gosney. But after that meeting,

on February 18, 2017, Ramirez called Smith and informed him that APF had

terminated his employment. (Smith Dep. at 137–38, #114; but see St. Pierre Decl. at

¶¶ 24, 25, #305–06).

PENDING MOTION

Smith filed this suit against APF on April 6, 2018, alleging APF violated the

Family Medical Leave Act (“FMLA”), the Age Discrimination in Employment Act

1 There is some confusion regarding Smith’s testimony about who ultimately decided to fire

him. Smith testifies Mason said that St. Pierre had spoken to Gosney about firing him, and

so Smith concluded that St. Pierre and Gosney (or perhaps just Gosney) had taken part in

the decision. (See Smith Dep. at 141–42, #115). Yet St. Pierre states that he alone decided to

fire Smith but first spoke to Ramirez and Gosney (and provided Smith’s PIP to them) before

HR informed Smith of his decision. (St. Pierre Dep. at 53–54, #201–02) St. Pierre also

testifies, however, that he presented his decision to Gosney “as the authority.” (Id. at 57,

#205). Adding to the confusion, St. Pierre’s Declaration states “I presented his decision to

Plant Manager Chris Gosney and HR [R]epresentative Mandy Ramirez to inform them of his

decision and confirm their agreement with the documentation. However, the ultimate

decision to terminate Smith’s employment remained with me.” (St. Pierre Decl. at ¶ 26, #306).

(“ADEA”), the Americans with Disabilities Act (“ADA”), and similar Ohio laws by

terminating Smith because of his age (56, at the time APF fired him), his disabilities

(high blood pressure, stress, anxiety, and depression), in retaliation for his complaints

to HR about age discrimination, and in retaliation for exercising his FMLA rights

(taking leave). (See Smith Compl., Doc. 1, #1–7; Smith Dep. at 143, #115). Smith also

alleges APF interfered with Smith’s FMLA rights by disciplining him for actions that

took place while he was on leave. (Smith’s Compl. at ¶¶ 21, 23, #3–4). APF now moves

for summary judgment on all Smith’s claims.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden of establishing that

there are no genuine disputes of material fact, which he may do by demonstrating

that the non-moving party lacks evidence to support an essential element of his claim.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer

& Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993).

In response to the movant’s showing, the non-movant “must do more than

simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); accord

Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). In other words, the

existence of a “mere scintilla of evidence” in support of the non-moving party’s

position will not be sufficient; there must be evidence on which the jury reasonably

could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251 (1986); see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also

Matsushita, 475 U.S. at 587–88 (finding reliance upon mere allegations, conjecture,

or implausible inferences to be insufficient to survive summary judgment). That being

said, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’

that is, if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248.

Finally, in conducting the summary judgment analysis, the evidence must be

viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158–59 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 150 (2000) (stating that the court must draw all reasonable inferences in

favor of the non-moving party and must refrain from making credibility

determinations or weighing evidence).

LAW AND ANALYSIS

In his Complaint, Smith alleges that APF: discriminatorily terminated him

under the ADEA (age), ADA (disability), and Ohio laws (age & disability);

retaliatorily terminated him under the FMLA (for taking leave) and ADEA (for

complaining about age discrimination); and interfered with his rights under the

FMLA. As noted, APF has now moved for summary judgment on all of these claims.

In his Memorandum in Opposition to that motion, however, Smith combines his

arguments for these distinct alleged legal claims into a single framework that he

labels “wrongful termination.” (Smith Mem. in Opp’n at 9, Doc. 26, #343).2 Although

Smith’s claims arise from multiple different statutes, there is no direct evidence of

any form of discrimination in this case and so the McDonnell Douglas burden-shifting

framework applies to each claim. See Blizzard v. Marion Tech. Coll., 698 F.3d 275,

283, 288 (6th Cir. 2012) (age discrimination and retaliation under the ADEA and Ohio

law); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001)

(retaliation under the FMLA); Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308,

319–20 (6th Cir. 2019) (disability discrimination under the ADA).

Under the McDonnell Douglas burden-shifting framework, to overcome APF’s

motion for summary judgment, Smith must identify evidence from which a

reasonable jury could conclude that he has demonstrated one or more of four separate

prima facie cases: (1) discrimination under the ADA, (2) discrimination under the

ADEA, (3) retaliation under the ADEA, and (4) retaliation under the FMLA.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). For each claim as to

which he can meet his burden of showing a genuine dispute as to the existence of a

prima facie case, the burden then shifts to APF to articulate a legitimate,

nondiscriminatory reason for Smith’s termination. Id. at 802–04. If APF can do so,

the burden shifts back to Smith to show that there is sufficient evidence to create a

2 In doing so, Smith did not address his FMLA interference claim in his Memorandum in

Opposition to APF’s Motion for Summary Judgment. Sixth Circuit case law makes clear that

a plaintiff abandons a claim when he fails to address it in response to a motion for summary

judgment. Brown v. NHS of Michigan, Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (collecting

cases). Smith thus abandoned his FMLA interference claim against APF.

jury question as to whether APF’s articulated reason is pretext to mask its

discrimination or retaliation.3 Id. at 804–06.

I. Smith’s Discrimination Claims

A. Smith Has Not Identified Evidence From Which A Reasonable

Jury Could Conclude That He Met The Prima Facie Case For His

Age Discrimination Claims Under the ADEA and Ohio Law.

The ADEA prohibits employers from firing employees who are forty years old

or older because of their age. 29 U.S.C. § 623(a)(1); Liebman v. Metro. Life Ins. Co.,

808 F.3d 1294, 1298 (6th Cir. 2015). To establish an ADEA claim, Smith must show

that his age was a “but-for” cause of the adverse employment action. Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 176 (2009). He can make this showing with either

direct or circumstantial evidence. Liebman, 808 F.3d at 1298. Here, Smith does not

try to satisfy his burden with direct evidence. Instead, he relies on indirect evidence,

and so the McDonnell Douglas burden-shifting framework applies. Miles v. South

Cent. Human Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020) (citation omitted).

To establish a prima facie case of age discrimination, Smith must show

evidence that, if believed by the jury, would establish four elements: (1) he was at

least 40 years old at the time of the alleged discrimination, (2) APF discharged him,

(3) he was otherwise qualified for the position that he held, and (4) there are

“circumstances that support an inference of discrimination.” Willard v. Huntington

3 For a more complete discussion of the Court’s understanding of the burden of proof at the

summary judgment stage under the McDonnell Douglas burden-shifting framework, see

Burress v. Spring Grove Cemetery & Arboretum, No. 1:18-cv-879, 2020 WL 3036047, at *8–9

(S.D. Ohio June 5, 2020) (Cole, J.).

Ford, Inc., 952 F.3d 795, 808 (6th Cir. 2020) (citations omitted). Here, the parties

disagree only as to the third and fourth elements.

Regarding the third element, APF argues that Smith was not qualified to be a

Co-Supervisor because, after St. Pierre implemented the Preventative Maintenance

initiative, Smith failed to meet legitimate job performance expectations. APF points

out that Smith received coaching from St. Pierre throughout 2016 and was placed on

the Performance Improvement Plan at the end of that year, and yet his work was still

inadequate. For example, APF asserts, Smith defied St. Pierre’s instructions to

prioritize Preventative Maintenance and failed to implement specific daily

procedures among his team.

In response, Smith argues that he was qualified for the position, given that

St. Pierre described him as a “talented, experienced employee” and because Smith

held the position for over 20 years. (Smith’s Mem. in Opp’n at 9–10, #343–44). Smith

also contends that APF cannot rely on the fact that they fired him as a basis for now

asserting that he was unqualified for his position, as otherwise, every time an

employee was terminated, the fact of the termination would mean that the

termination was not discriminatory. The latter argument mischaracterizes APF’s

argument, though, as APF is not maintaining that the fact it fired Smith shows that

Smith was not qualified, but rather that the same reasons found in the record

evidence that gave rise to the termination decision also support a finding that Smith

was not qualified.

But just because Smith missed the mark when summarizing APF’s argument,

does not mean that he failed to address its point. Rather, Smith correctly notes that,

in Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003) (en banc), the

Sixth Circuit warned that, in assessing whether a plaintiff has met the burden on his

prima facie case of showing he is qualified for his position, a court may not consider

the alleged nondiscriminatory reason that the employer provides for terminating the

employee. See id. at 574–75 (“[W]hen assessing whether a plaintiff has met her

employer’s legitimate expectations at the prima facie stage of a termination case, a

court must examine plaintiff’s evidence independent of the nondiscriminatory reason

‘produced’ by the defense as its reason for terminating plaintiff.”) (quoting Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 660–61 (6th Cir. 2000)). Rather, the Wexler

court explained, the inquiry as to whether a plaintiff was qualified “should focus on

criteria such as the plaintiff’s education, experience in the relevant industry, and

demonstrated possession of the required skills.” Id. at 576. And “[t]he prima facie

burden of showing that a plaintiff is qualified can therefore be met by presenting

[such] credible evidence that his or her qualifications are at least equivalent to the

minimum objective criteria required for employment in the relevant field.” Id. at 575–

76.

Applying these standards, and upon reviewing the relevant evidence, the Court

finds that Smith was qualified for the position. Look no further than St. Pierre’s view

on the matter. (St. Pierre Dep. at 45, #193). According to St. Pierre, Smith “was a

very talented, experienced employee … [who] knew a lot. Not only that, he knew the

equipment, he knew how it worked, he knew how to fix it.” (Id.). Plus, Smith had

worked at APF (and its predecessor) for 25 years, and for 22 of those years he was a

Supervisor, the very position from which he was fired. That seems to be enough to

create at the very least a jury question as to whether he was qualified. See Millen v.

Oxford Bank, 745 F. App’x 609, 613 (6th Cir. 2018) (finding the plaintiff was “clearly

qualified” for the position given her 23 years at the company and 7 years in the

manager position). And although Smith admitted that he and the Maintenance

Department were falling behind in completing tasks, as APF points out, that was

before Smith took FMLA leave in August 2016 and thus also prior to Mason joining

the first shift as a Co-Supervisor. In other words, Smith and St. Pierre agreed that at

least some of the difficulties that Smith and the Maintenance Department were

experiencing prior to August 2016 related to the overwhelming nature of the

supervisory duties—not Smith’s performance of those duties. Moreover, St. Pierre

also admitted that Smith was a “talented, experienced employee.” That also would

support a jury finding that Smith was qualified. Accordingly, Smith has identified

sufficient evidence to satisfy the third element of his prima facie age discrimination

claim at the summary judgment stage.

To satisfy the fourth element, Smith would typically be required to show either

that APF replaced him with a younger worker or, alternatively, that APF treated

similarly situated, non-protected employees more favorably. Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 521–22 (6th Cir. 2008); Tuttle v. Metro. Gov’t of Nashville, 474

F.3d 307, 317 (6th Cir. 2007).4 APF mixes the two separate required showings into

one, arguing that the record evidence does not support the fourth element because,

although a younger employee (Co-Supervisor Mason) ultimately replaced Smith,

Mason was not similarly situated given that, unlike Smith, he did not have a history

of failing to complete Preventative Maintenance priorities, was never placed on a PIP,

and did not openly defy St. Pierre’s instructions. That is, APF does not dispute that

Mason replaced Smith, but instead argues that the two were not similarly situated.

That argument is a losing one, though, because Smith can prevail on the fourth

element by showing either Mason (a substantially younger person) replaced him or

that Mason was similarly situated but was treated better. Tuttle, 474 F.3d at 317.

Thus, the Court must address these two issues separately.

First, the Court must determine whether Mason replaced Smith. The record

evidence shows that he did not. Sixth Circuit law is clear that “an employee’s

assumption of a terminated co-worker’s job duties does not constitute replacement for

purposes of an ADEA claim.” Blizzard, 698 F.3d at 283–84. See also Grosjean v. First

Energy Corp., 349 F.3d 332, 335–36 (6th Cir. 2003) (“A ‘person is not replaced when

another employee is assigned to perform the plaintiff’s duties in addition to other

duties, or when the work is redistributed among other existing employees already

4 While these are the typical ways of meeting the fourth prong in an age discrimination case,

Sixth Circuit caselaw at least suggests that other forms of evidence may suffice, as well. For

example, ageist comments that fall short of meeting the test for direct evidence of

discrimination may suffice to establish the fourth prong of the McDonnell Douglas prima

facie case. See Pelcha v. MW Bancorp, Inc., No. 1:17-cv-497, 2020 WL 1904714, *8–11 (S.D.

Ohio Apr. 17, 2020) (Cole, J.) (collecting cases). Here, though, the only two types of evidence

either side discusses are the two “typical” categories discussed above. Thus, the Court need

not consider what other types of evidence may suffice.

performing related work.’”) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th

Cir. 1990)). “Rather, a person is replaced only when another employee is hired or

reassigned to perform the plaintiff’s duties.” Blizzard, 698 F.3d at 284 (citations and

internal quotation marks omitted). Cases like Blizzard and Grosjean preclude a

finding of replacement here. Mason was Smith’s Co-Supervisor, a role he first

assumed when Smith took FMLA leave beginning on August 26, 2016. Upon Smith’s

return from leave in October 2016, St. Pierre kept both Mason and Smith as Co-

Supervisors, as St. Pierre had concluded that the first-shift Maintenance Supervisor’s

duties were “too much” for one person. (St. Pierre Dep. at 27, #175). St. Pierre and

Smith agree about those core facts. (Smith Dep. at 175, #123). Likewise, there is no

dispute that Mason continued working as a first-shift Maintenance Co-Supervisor

after APF terminated Smith or that APF—despite trying—never hired another

permanent first-shift Co-Supervisor. (St. Pierre Dep. at 49, #197). Thus, while Mason

assumed co-worker Smith’s job duties after Smith’s termination, Mason did not

replace Smith. See Blizzard, 698 F.3d at 284. Alternatively, to use the formulation

from Grosjean, another employee (Mason) was “assigned to perform the plaintiff’s

duties in addition to other duties,” or, phrased differently, Smith’s work was

“redistributed among other existing employees”, i.e., Mason, who was “already

performing related work.” 349 F.3d at 335–36. That is not a “replacement.”

Further confirming that the replacement angle won’t work for Smith, while

APF did not hire a permanent Maintenance Co-Supervisor, it did name an employee

to temporarily fill that position after Smith’s termination. Even if this temporary

reassignment constituted a “replacement,” the employee at issue was APF Planning

Supervisor, Wayne Durbin, who was 70 years old at the time. (St. Pierre Dep. at 51,

#199). Thus, reference to Durbin does not support an inference that APF

discriminated against Smith because of his age. Accordingly, Smith cannot establish

the fourth prong on the basis of his replacement, or lack thereof.

That is not the end of the inquiry, though, as Smith could alternatively satisfy

the fourth prong by showing that he and Mason were similarly situated, with Mason

being treated differently because he was younger. To count as “similarly situated,”

Smith must demonstrate that the comparable employee (Mason) is similar “in all

relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th

Cir. 1998) (emphasis in original) (citations omitted). That means Smith must show

that he and Mason reported to the same supervisor (St. Pierre), were subject to the

same standards, and, most importantly here, engaged in the same conduct without

any differentiating or mitigating circumstances that would distinguish their conduct

or APF’s treatment of them for it—sometimes referred to as the Mitchell factors.

Johnson v. Ohio Dep’t of Pub. Safety, 942 F.3d 329, 331 (6th Cir. 2019) (citing Mitchell

v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). “Although other factors may also

be relevant, depending on the facts of each case, the Mitchell factors are generally

relevant.” Johnson, 942 F.3d at 331 (citing Ercegovich, 154 F.3d at 352) (internal

citation omitted). In other words, here, Smith must show that Mason was a younger

worker who performed a similar job and did so in roughly the same manner that led

to Smith’s termination, but who himself did not suffer the same adverse employment

consequences.

With that goal in mind, Smith argues that he and Mason are similar in every

way but age—they held the same job, shared virtually identical responsibilities, and

were both managed by St. Pierre. The only differences between them, in Smith’s view,

were that Mason was 40 (younger than Smith), was not disabled, never took FMLA

leave, and was not terminated or disciplined by APF (the latter three, while not

directly relevant to Smith’s age discrimination claim, could be relevant to the other

forms of discrimination he claims, as discussed below).

Smith’s argument, though, suffers from a crucial flaw—it underrates the

aspects of his and Mason’s employment that are relevant here. That is, the similarly-

situated analysis may include considerations of documented job performance or

misconduct, when those aspects of the plaintiff and comparator are relevant to their

job statuses. Mitchell, 964 F.2d at 583; see Henry v. Abbott Labs., 651 F. App’x 494,

501–02 (6th Cir. 2016) (finding that job performance that occurred prior to the

adverse action is relevant to the similarly situated analysis). Here, Mason and Smith

were not similarly situated from the standpoint of job performance, prior misconduct,

or disciplinary history. As APF observes, Mason did not have a documented history

of failing to complete assigned tasks, particularly the Preventative Maintenance

initiative, and was not placed on a PIP. Moreover, as APF also notes, Mason—who

attended the February 11th meeting with Smith, St. Pierre, and the Maintenance

Department staff—did not openly defy St. Pierre’s instructions. That difference

matters. Noble v. Brinker Int’l, Inc., 391 F.3d 715, 729–30 (6th Cir. 2004).

Accordingly, Smith has not established that APF treated a similarly situated younger

employee more favorably.

In sum, the undisputed facts show that: (1) Smith was not replaced by a

younger worker, and (2) Smith has not identified a similarly-situated younger

employee who received better treatment. Nor has Smith proffered any other evidence

to satisfy the fourth prong of the McDonnell Douglas prima facie test. Accordingly,

his age discrimination claim fails.

B. Smith Has Established A Prima Facie Case For His Disability

Discrimination Claims Under The ADA And Ohio Law, But His

Claim Fails As A Matter Of Law At The Pretext Stage.

1. Smith Meets The Prima Facie Case Requirement For His

ADA Claim.

In his Complaint, Smith alleges two general disability discrimination claims.

First, he titles Count Four “Disability Discrimination in Violation of the [ADA],” but

does not mention any particular sections of the ADA that APF has allegedly violated.

(See Pl.’s Compl. at 5–6, #5–6). Rather, Smith asserts that APF terminated him

“based upon his disability and/or perceived disability in violated [sic] of Chapter 4112

of the Ohio Revised Code.” (Id. at ¶ 43, #6). Smith then re-alleges in Count Five, titled

“Disability Discrimination in Violation of Ohio Revised Code Chapter 4112,” that APF

terminated Smith “based upon his disability and/or perceived disability in violated

[sic] of Chapter 4112 of the Ohio Revised Code.” (Id. at ¶ 49, #6).

There are many types of ADA claims, see Tchankpa v. Ascena Retail Grp., Inc.,

951 F.3d 805, 817 (6th Cir. 2020), and so Smith’s omission of the legal basis for Count

Four is problematic. APF seems to argue that Smith proceeds under Title I of the

ADA, which applies to private and public employers. See Lewis v. Humboldt

Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012) (en banc). Because Smith does

not dispute that characterization, the Court analyzes Smith’s ADA claim as one

arising under Title I. And his Ohio disability discrimination claims rise or fall on the

resolution of that federal ADA claim. Hostettler v. Coll. of Wooster, 895 F.3d 844, 848

n.1 (6th Cir. 2018).

Title I of the ADA provides that “[n]o covered entity shall discriminate against

a qualified individual on the basis of disability in regard to … [the] discharge of

employees[.]” 42 U.S.C. § 12112(a). A “qualified individual” is one “who, with or

without reasonable accommodation, can perform the essential functions of the

employment position.” Id. § 12111(8). Thus, disability or not, an employee must be

able to perform the “fundamental job duties.” 29 C.F.R. § 1630.2(n)(1). In analyzing

Title I ADA discrimination claims, two rubrics may apply, depending on whether the

plaintiff relies on direct or indirect evidence of discrimination. Ferrari v. Ford Motor

Co., 826 F.3d 885, 891–92 (6th Cir. 2016). Here, as discussed above, the parties agree

that there is no direct evidence of discrimination in this case. Thus, the Court will

analyze whether the record evidence demonstrates disability discrimination through

indirect evidence, again through the lens of the McDonnell Douglas burden-shifting

approach.

As was the case with his age discrimination claim, for Smith to overcome APF’s

motion for summary judgment, he must first establish a prima facie case for his

disability discrimination claim. To do so, Smith must identify sufficient record

evidence so that a reasonable jury could find that: (1) he is disabled; (2) he was

otherwise qualified for the position; (3) he suffered an adverse employment action;

(4) APF knew or had reason to know of his disability; and (5) APF replaced him or his

position remained open while APF sought other applicants. Tennial v. United Parcel

Serv., Inc., 840 F.3d 292, 306 (6th Cir. 2016) (citation omitted). Furthermore, there

must be evidence from which a jury could conclude that Smith’s disability was “a ‘but

for’ cause of the adverse employment action.” Id. (citing Lewis, 681 F.3d at 318). APF

argues that Smith cannot establish the first or fourth prongs—i.e., that Smith is

disabled, or that APF knew or had reason to know of the alleged disability at the time

of the alleged adverse action. As for the uncontested prongs that APF does not

address, the Court notes that each one is met here. That is, Smith was otherwise

qualified for his position (prong two), APF fired Smith (prong three), and, after firing

Smith, his previous first-shift Maintenance Co-Supervisor position remained open

(prong five). (See St. Pierre Dep. at 51–52, #199–200). Thus, the Court need only

address the remaining two contested prongs.

Regarding the first prong, the ADA defines disability as “a physical or mental

impairment that substantially limits one or more major life activities.” 42 U.S.C.

§ 12102(1)(A). Major life activities include seeing, concentrating, thinking,

communicating, caring for oneself, and working. Id. § 12102(2)(A). And “‘major’ shall

not be interpreted strictly to create a demanding standard.” 29 C.F.R. § 1630.2(i)(2).

To determine whether a purported disability substantially limits at least one major

life activity, courts must compare the person claiming a disability to “most people in

the general population.” Id. § 1630.2(j)(1)(ii). Smith testifies that his work-related

stress caused him to experience problems with his vision. (Smith Dep. at 150–51,

#117). In fact, he asserts that the principal reason he took FMLA leave was because

his vision was blurred to the point that he could not read anything. (Id.). That is

enough to show that Smith’s stress is a “disability” for ADA purposes. See Hostettler,

895 F.3d at 854 (“So long as the impairment ‘would substantially limit a major life

activity when active,’ that is enough.”) (quoting 42 U.S.C. § 12102(4)(D)). And APF’s

argument that Smith was not disabled because he testified that he could physically

complete his job without accommodation is unavailing. That testimony goes to

whether Smith was qualified, not whether he was disabled. See Hostettler, 895 F.3d

at 854. Smith has thus established the first of the two contested elements of his prima

facie disability discrimination claim.

Next, APF argues that Smith cannot establish the fourth element—that

St. Pierre knew Smith was disabled—based on the record evidence. Here, APF gets

the law right: “An employee cannot be subject to an adverse employment action based

on his disability unless the individual decisionmaker responsible for his [adverse

action] has knowledge of that disability.” Tennial, 840 F.3d at 306 (citation omitted).

But APF is wrong about the facts, as there is evidence from which a jury could

conclude that St. Pierre knew of Smith’s difficulties with his vision. (See Smith Dep.

at 148–52, #116–17; see id. at 150–51, #117 (“I was having trouble seeing. I explained

that to [St. Pierre]. That was the biggest reason I wasn’t working is I couldn’t see. …

So, that’s what I told him.” “Did you talk to [St. Pierre] about the stress, anxiety and

depression?” “I talked to him about the whole diagnosis, yeah.”); see also St. Pierre

Dep. at 45–46, #193–94 (“Did [Smith] complain to you about kind of the stressful

environment and the working conditions and the hours and things like that?” “Yes,

we, I recall talking about that. … I know [Smith] was struggling with the stress of

the whole thing and I was coaching him about … how to work through that.”)). Thus,

Smith has satisfied his prima facie case for disability discrimination.

2. APF Has Proffered Legitimate, Non-Discriminatory

Reasons For Terminating Smith’s Employment.

Once the plaintiff establishes a prima facie case, the burden shifts to APF to

provide a legitimate, nondiscriminatory reason for firing Smith. McDonnell Douglas,

411 U.S. at 802–04. APF asserts that it fired Smith for his ongoing refusal to comply

with the Preventative Maintenance initiative that St. Pierre sought to implement and

for openly defying St. Pierre’s orders regarding that same program. The Sixth Circuit

has long recognized that sub-standard job performance and/or insubordination are

legitimate, non-discriminatory reasons for firing employees. See Fullen v. City of

Columbus, 514 F. App’x 601, 606 (6th Cir. 2013) (collecting cases). APF has thus

satisfied its burden on this issue.

3. Smith Fails To Show That A Reasonable Jury Could Find

APF’s Proffered Reasons For Firing Smith Are Pretextual.

Once an employer has proffered a legitimate, non-discriminatory reason for the

adverse action, the burden shifts back to the plaintiff to identify evidence from which

a reasonable jury could determine by a preponderance of the evidence that the

proffered explanation was a pretext for discrimination. Ercegovich, 154 F.3d at 354.

Smith can do this by showing APF’s proffered reasons for terminating him: (1) have

no basis in fact, (2) did not actually motivate the APF’s decision to terminate him, or

(3) were insufficient to warrant his termination. Wexler, 317 F.3d at 576. Regarding

his disability discrimination claims, Smith touches only on the first theory.5

That is, Smith argues that APF’s proffered reason for firing him—because he

failed to meet performance expectations and was insubordinate—has no basis in fact.

For support, Smith contends that his PIP reflects that he met all St. Pierre’s

expectations and that he never received any additional discipline, coaching, or

warnings. The record, however, demonstrates otherwise. For example, Smith’s 2016

Goals and Performance Review shows that Smith failed to meet four of his six

objectives after returning from leave. (See St. Pierre Dep., Ex. D, #278). And, contrary

to Smith’s assertion that he met all St. Pierre’s expectations, his Review (which Smith

signed) indicates that Smith “[m]et some expectations for his competency, but was

less consistent than desired.” (Id., #279). That review also reflects that Smith had

5 In his Memorandum in Opposition, Smith combines his arguments regarding pretext for all

his claims, that is, his FMLA retaliation claims, age retaliation claims, age discrimination

claims, and disability discrimination claims. In doing so, Smith argues in a single section

that: (1) APF’s proffered reasons for terminating him are untrue; (2) “ample evidence of

animus [as to Smith’s age] exists”; (3) the temporal proximity between Smith’s medical leave

and PIP, as well as Smith’s age discrimination complaint and his termination show that the

proffered reasons for those adverse actions are pretextual; and (4) “APF’s far-more favorable

treatment of a direct comparator is more than enough to get this case to a jury.” (Smith’s

Mem. in Opp’n at 11, #345). This scattergun approach does not do Smith any favors in

addressing the question presented at this stage of the McDonnell Douglas framework on his

disability discrimination claim. That is—in the context of Smith’s disability discrimination

claim, which is the only claim as to which Smith has established a prima facie case, and thus

reached the pretext stage—are APF’s proffered reasons for terminating Smith pretext? The

Court seeks to address solely that question here, rather than considering whether this case

involves some kind of general free-floating pretext as to the claims as a whole.

“not bought into” the Preventative Maintenance initiative, had not held his team

accountable for Preventative Maintenance completion rates, and was not effectively

communicating with others. (Id., #278–79). Smith’s testimony that, leading up to

February 10, 2017, his team had not been performing daily inspections, substantiates

his Review. (Smith Dep. at 86–90, #101–02).

Moreover, the events that occurred after the review further support the

performance concerns. As noted above, a bolt fell off a machine as to which Smith was

responsible for maintenance. That required a shutdown, a shutdown that in his

Supervisor’s view resulted from Smith’s failure to implement the Preventative

Maintenance program, as instructed. In light of all of that, Smith has not shown that

the first of APF’s proffered reasons—insufficient performance—has no basis in fact.

With regard to APF’s other proffered reason—insubordination—Smith denies

that he was insubordinate during the February 10, 2017 meeting, or at any other

time. According to him, St. Pierre simply has a terrible memory or was confused,

(Smith’s Mem. in Opp’n at 11, #345), and, in contrast, Smith clearly remembers that

he was never insubordinate in that meeting. (Id. at 12, #346). But again, the record

evidence shows otherwise. As discussed above, Smith testifies that he told the first-

shift team that the mechanics had to inspect the machines each day prior to starting

the production lines, “whether we agree or not[.]” (Smith Dep. at 89, #102). Smith

also testifies that he thought inspections were “very taxing” on his team and so he

sought to find a solution that would not “overwhelm[] the mechanics, as well as

compromis[e] startup[.]” (Id. at 90, #102; id., Ex. at 2, #130). Thus, Smith’s own

testimony seems to reflect that Smith told his team that he disagreed with St. Pierre’s

decision to inspect the machines each day and that he was working on finding a

different approach than the one St. Pierre had selected. That is enough to

substantiate St. Pierre’s conclusion that Smith was insubordinate to St. Pierre. (The

Court is not asserting that Smith was factually wrong in his concerns about

St. Pierre’s preferred approach. The Court has no view on that subject. Rather, the

point is merely that insubordination consists of the act of defying one’s supervisor.

Thus, whether Smith’s observations were correct or not, he was still defying St. Pierre

and thus acting insubordinately.) Accordingly, Smith has failed to satisfy his burden

to produce sufficient evidence from which a jury could reasonably reject APF’s

proffered reason for firing him. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.

2009). For that reason, Smith cannot establish that APF inappropriately

discriminated against him on the basis of his alleged disability.

II. Retaliation Claims

In addition to discrimination claims, Smith also advances retaliation claims.

In these claims, Smith is not asserting that the company took adverse action against

him based on, for example, his age or disability, but rather based on his exercise of

legal rights that he has under the ADEA and FMLA. Although these claims are not

discrimination claims per se, the analysis at summary judgment follows the same

McDonnell Douglas burden-shifting approach. Taylor v. Geithner, 703 F.3d 328, 336

(6th Cir. 2013) (holding that McDonnell Douglas burden-shifting framework applies

to retaliation claims predicated on anti-discrimination statutes). As with

discrimination claims, the burden is first on the plaintiff to show evidence from which

a jury could find that the plaintiff has established a prima facie case (of retaliation).

Here, Smith fails to meet the prima facie case requirement as to either of the two

asserted retaliation claims.

A. Smith Cannot Satisfy The Prima Facie Case For His Retaliation

Claims Under the ADEA and Ohio Law.

Smith alleges that APF retaliatorily fired him for complaining to HR Rep.

Chernock about APF’s discriminatory practices based on its employees’ ages. The

ADEA prohibits employers from retaliating against an employee for opposing or

reporting age discrimination. 29 U.S.C. § 623(d). Similarly, Ohio law forbids any

person from discriminating against another person because that person has opposed

any unlawful discriminatory practice. Ohio Rev. Code § 4112.02(I).

To establish a retaliation claim under federal or Ohio law, Smith must identify

evidence from which a jury could conclude that: (1) he engaged in protected activity;

(2) the decisionmaker knew that Smith engaged in the protected activity; (3) Smith

suffered an adverse employment action; and (4) there was a causal connection

between the protected activity and his termination. Blizzard, 698 F.3d at 288. As with

age discrimination claims, if Smith can establish a prima facie case of retaliation, the

burden of production shifts to APF to offer a non-discriminatory reason for the

adverse action. Id. (quoting Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502

(6th Cir. 2009)). If APF does so, then the burden shifts back to Smith to establish that

APF’s proffered reason was pretext. Id.

As to the prima facie case, APF argues that Smith’s retaliation claims fail

because there is no record evidence to support either the second or the fourth prong.

Because the Court agrees with APF regarding the second prong, the Court need not,

and thus does not, address the fourth prong.

In order to establish the second prong of the prima facie case, Smith must

identify evidence that creates at least a genuine dispute as to whether the relevant

decisionmaker (i.e., the person who made the termination decision) had knowledge

that Smith had engaged in the protected activity at issue (Smith’s purported

complaints to Chernock about age discrimination). Braun v. Ultimate Jetcharters,

LLC, 828 F.3d 501, 512 (6th Cir. 2016). In fairness, there is a disputed question of

fact relating to Smith’s reporting activities—but that dispute goes only to whether

Smith made the complaints to Chernock at all. Smith testified that he believes that

during his call to Chernock to “vent” about the February 10th meeting, he also raised

concerns about Gosney’s alleged treatment of older APF employees. Chernock, on the

other hand, avers that Smith only raised his concerns about the former. While those

accounts of the call vary, they do not create a genuine dispute as to any fact that is

material to the analysis here. That is because the undisputed evidence shows that St.

Pierre, who testified that he was the person who decided to first Smith, did not know

about the call between Smith and Chernock at all at the time St. Pierre made that

decision. (St. Pierre Decl. at ¶ 27, #306 (“I had no knowledge of Smith’s call to

Chernock on February 11[, 2017,] or any allegation by Smith that older workers were

being treated unfairly.”)). Thus, St. Pierre perforce could not have known the nature

of the conversation that occurred on a call of which he was unaware. So, even

assuming that Smith raised age discrimination concerns on that call, Smith has failed

to create a genuine dispute as to whether St. Pierre knew Smith had done so.

Nor can Smith point to a potential dispute as to the identity of the relevant

decisionmaker as a means of avoiding this problem. As noted above (see supra at n.1),

there is some evidence in the record that Gosney or HR Director Ramirez may have

had some input in the termination decision. St. Pierre asserts that he was the

“ultimate authority,” but, even if those two individuals were involved, there is

likewise no evidence in the record that either of them was aware of Smith allegedly

sharing age discrimination concerns with Chernock. The only testimony about

discussions of alleged age discrimination (and it comes from Smith himself), is that

he told Chernock. She disagrees, but putting that aside, there is simply no record

evidence even suggesting that she told anyone else of that call or the concerns that

Smith had allegedly raised during it.

Accordingly, whether the decisionmaker was St. Pierre, Gosney, or Ramirez,

or some combination of the three, Smith does not have any evidence showing that

they knew of his alleged complaints about age discrimination. As a result, he cannot

show the second prong of a prima facie case for retaliation. And, as Smith cannot

establish a prima facie case for ADEA retaliation, that claim fails.

B. Smith Cannot Satisfy The Prima Facie Case For His Retaliation

Claim Under the FMLA.

Smith also brings a retaliation claim under the FMLA. He asserts that APF

retaliated against him for exercising his FMLA rights because St. Pierre issued the

PIP to him after he returned from leave on October 24, 2016. Smith’s basic argument

is that his leave, rather than his admittedly poor performance from February 2016 to

August 26, 2016, is what actually motivated St. Pierre to issue the PIP and

subsequently terminate him. As with his other claims, Smith does not present any

direct evidence of such retaliation, and thus the McDonnell Douglas burden-shifting

framework applies. Tennial, 840 F.3d at 308.

To establish a prima facie case of FMLA retaliation, Smith must present

sufficient evidence from which a jury could find that: (1) he engaged in an activity

protected by the FMLA; (2) APF knew that he engaged in that protected activity;

(3) APF then took an adverse action against him; and (4) there was a causal

connection between the protected activity and the adverse employment action.

Tennial, 840 F.3d at 308. APF contends that Smith cannot establish the second and

fourth elements. The Court limits its analysis to the fourth element.

In assessing causation, a threshold question is exactly what adverse action

Smith relies on as allegedly retaliatory. Smith offers two options—the PIP and his

termination. As to the first, the record does not support Smith’s claim that being

assigned a PIP constituted an adverse action against him based on his FMLA leave.

That is because there is no dispute that St. Pierre decided to issue Smith a PIP before

Smith announced that he was taking leave on August 26, 2016. Prior to Smith’s

announcement, St. Pierre decided a PIP was necessary because Smith had struggled

in June, July, and August 2016 to implement the Preventative Maintenance

initiative, despite St. Pierre’s support and coaching throughout that time. Because

the decision to place Smith on a PIP occurred before Smith announced any intention

of taking FMLA leave, the latter simply could not have caused the former.

Smith likewise fails to show a causal link between his leave and his subsequent

termination. To establish causation, Smith must show that APF had some type of

retaliatory intent. Tennial, 840 F.3d at 308. That is, Smith must demonstrate that

his taking leave is what motivated St. Pierre to fire him. Id. In that regard, Smith

argues that the temporal proximity between the day he took FMLA leave (August 26,

2016) and the day APF terminated him (February 18, 2017) indicates that the former

caused the latter.

Sixth Circuit caselaw is unfortunately less than clear on whether, or in what

circumstances, the temporal proximity between a plaintiff engaging in protected

activity and then later suffering an adverse action can, by itself, satisfy the causation

prong of a plaintiff’s prima facie case. Some cases, for example, appear to adopt a

bright-line rule that “temporal proximity, standing alone, is not enough to establish

a causal connection for a retaliation claim.” Spengler v. Worthington Cylinders, 615

F.3d 481, 494 (6th Cir. 2010) (“Closeness in time is one indicator of a causal

connection, … but temporal proximity, standing alone, is not enough to establish a

causal connection for a retaliation claim.”) (citations omitted); see Wasek v. Arrow

Energy Servs., Inc., 682 F.3d 463, 471–72 (6th Cir. 2012) (noting that the Sixth Circuit

has “repeatedly cautioned against inferring causation based on temporal proximity

alone”).

Another line of cases, though, seems to suggest that temporal proximity alone

can be enough, at least if the time gap is short. See Mickey, 516 F.3d at 525–26. As

the Sixth Circuit put it in Mickey, “[w]here an adverse employment action occurs very

close in time after an employer learns of a protected activity, such temporal proximity

between the events is significant enough to constitute evidence of a causal connection

for the purposes of satisfying a prima facie case of retaliation.” Id. at 525; see also

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). So, for example, “where

an employer fires an employee immediately after learning of a protected activity,

[courts] can infer a causal connection between the two actions, even if [the plaintiff]

ha[s] not presented other evidence of retaliation.” Mickey, 516 F.3d at 525. “But where

some time elapses between when the employer learns of a protected activity and the

subsequent adverse employment action, the employee must couple temporal

proximity with other evidence of retaliatory conduct to establish causality.” Id. Other

case law in this latter line suggests that the dividing line between the close-enough-

that-no-other-evidence-is-necessary category and the plaintiff-needs-more-than-

mere-proximity category is approximately ten weeks. See Stein v. Atlas Indus., Inc.,

730 F. App’x 313, 319 (6th Cir. 2018) (collecting cases and finding that the Sixth

Circuit draws the line for temporal proximity alone satisfying causation at just shy

of the ten-week mark).

Here, the Court need not select between these competing Sixth Circuit

approaches to temporal proximity as evidence of causation, as Smith cannot prevail

under either. Smith presents no evidence suggesting that APF had some retaliatory

motive for firing him beyond the alleged temporal proximity between his exercise of

FMLA rights and his later termination. So, assuming temporal proximity alone can

be enough, Smith must convince the Court that the temporal proximity between the

events is “very close,” Mickey, 516 F.3d at 525, or, in other words, something on the

order of ten weeks. See Stein, 730 F. App’x at 319. He cannot do so. The nearly six

months that passed between Smith’s request for leave and his termination precludes

a finding that temporal proximity is itself enough to establish a causal connection. As

Smith has tendered no other evidence of causation, he has failed to make out a prima

facie case for retaliation under the FMLA.

CONCLUSION

Smith made the necessary showing on the prima facie case for his disability

discrimination claims under the ADA and Ohio law. Those claims still fail, however,

as APF then articulated legitimate, non-discriminatory reasons for firing him,

reasons that Smith failed to show were pretextual. Smith’s other causes of action fail

as he cannot meet the prima facie case for his age discrimination and retaliation

claims under the ADEA and Ohio law, or his retaliation claim under the FMLA and

Ohio law. And Smith abandoned his only remaining claim, for FMLA interference.

Thus, for the reasons above, the Court GRANTS APF’s Motion for Summary

Judgment (Doc. 22), DISMISSES WITH PREJUDICE Plaintiff Mark

Smith’s claims, and DIRECTS the Clerk to enter judgment accordingly.

SO ORDERED.

June 26, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

36