The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PETER CASTELLINI, et al.,
Plaintiffs,
Case No. 1:23-cv-141
v.
JUDGE DOUGLAS R. COLE
SKYLINE CHILI, LLC, et al.,
Defendants.
OPINION AND ORDER
Defendants—Skyline Chili, James Blake, Adam Schacht, and Tina Smith—
have all moved for summary judgment in this employment dispute. (Docs. 34, 35).
Their motions—which are bifurcated to argue individually with respect to both
Plaintiffs, Peter and Mary Ellen Castellini—seek summary judgment as to all of
Plaintiffs’ claims. For the reasons described below, the Court GRANTS the Motions
(Docs. 34, 35).
BACKGROUND1
The chili-making business can get heated. Or, at least, that seems to be the
case at Defendant Skyline Chili’s Loehmann’s Plaza location. That’s where this
acrimonious dispute bubbled up. Plaintiffs Peter and Mary Ellen Castellini both
1 In recounting the factual background of this case, the Court relies, where possible, on the
parties’ agreed undisputed facts, submitted as part of their briefing on the motions for
summary judgment as directed by Standing Order I.F.2, available at https://perma.cc/S2YS-
S7ZP. (Doc. 34, #708–10; Doc. 35, #743–45). Where those facts are insufficient—as they often
are, since the parties’ record citations leave much to be desired—the Court will cite directly
to undisputed record evidence. And wherever discussed, disputed facts will be clearly
indicated as such.
worked at that location from June 2021 through September 2022 as a dishwasher
and server, respectively. (Second Am. Compl., Doc. 14, #206; Peter Castellini Dep.,
Doc. 23, #271; Mary Ellen Castellini Dep., Doc. 25, #365–66). They worked with
Defendant Tina Smith (another server) and under Defendants James Blake (the then-
general manager, since dismissed for unrelated conduct) and Adam Schact (the then-
senior district manager for the Cincinnati market, since elevated to another corporate
role at Skyline). (Smith Dep., Doc. 29, #552; Shacht Dep., Doc. 31, #589, 592).
The record suggests that Plaintiffs’ time at Skyline was contentious. Start with
the Castellinis’ relationship with general manager James Blake. Blake joined Skyline
in June 2022, midway through the Castellinis’ time there. (See Blake Dep., Doc. 27,
#522). Plaintiffs insist (although Blake disputes) that Blake: (1) stole their tips and/or
wages, (Doc. 23, #292, 297; Doc. 25, #380–81; 392); (2) sexually harassed female
employees by joking inappropriately about “wieners” (in the context of Skyline’s
famed Coney chilidogs), (Doc. 23, #283–84, Doc. 25, #379–80, 392); (3) abused drugs
on the job, (Doc. 23, #279, 302, Doc. 25, #392); and (4) conspired with Tina Smith
(more on her later) to get them fired, (Doc. 23, #290, Doc. 25, #384, 386, 399).
The bad blood between the Castellinis and Blake seems to be what started the
saga that concluded with their firing. First, the Castellinis participated in and
provided statements for an investigation into Blake’s allegedly sexually
inappropriate conduct, (Doc. 23, #282; Doc. 25, #383)—which, according to Defendant
Schacht, didn’t produce any actionable findings. (Doc. 31, #594–95). Second, they
complained that Blake undercounted their hours (in Peter’s case) or stole their tips
(in Mary Ellen’s case)—both of which complaints, as the Castellinis admit, again
resulted in no action on Skyline’s part. (Doc. 23, #297; Doc. 25, #381). Then, with their
relationship already simmering, the events of August 30, 2022, brought things to a
boil. That day, Peter submitted a letter to his supervisors alleging Blake solicited
drugs from him: “James [Blake] aproched [sic] me while I was washing dishes, pulled
out his walet [sic] …, then asked me if he could buy some of my wife’s medical
marijuana.” (Doc. 23-3, #348).
Once again, Skyline investigated. But in the course of doing so, much to Peter’s
dismay, the spotlight turned onto Peter himself. Dustin MacDonald (an intermediate
corporate manager, not a party to this case) interviewed Peter about his allegations.
And during that interview, Peter admitted that he had brought marijuana onto the
premises. (Doc. 23, #286). That violated the company’s drug policy. (Id.; MacDonald
Depo., Doc. 33, #636). MacDonald reported that statement to HR, and the company
decided to terminate Peter’s employment, (Doc. 33, #636), which it did on September
2, 2022, (Doc. 35, #744; Doc. 37, #763).
But Peter’s termination did not put an end to things. Perhaps unsurprisingly,
Mary Ellen was upset by the turn of events resulting in her husband’s sudden and
involuntary departure from their shared workplace. She testified that “Peter’s firing
created just a lot of damage financially and emotionally and mentally.” (Doc. 25,
#376). Nonetheless, she maintains she continued to be “very professional [at work]
after [Peter] was terminated.” (Id. at #384). MacDonald, though, tells a different
story. He testified that she was “rude” to Blake in the aftermath of these events, to
the extent that MacDonald held a joint meeting to set “expectations going forward”
and to tell Mary that, “if she wanted to continue working, she still had to be
respectful.” (Doc. 33, #641). In the following days, Mary Ellen kept up her complaints
against Blake. Specifically, she met with MacDonald to discuss a lengthy statement
she had written complaining about Blake’s alleged shortcomings as a manager. (Doc.
25, #383–84).
Then things got spicier still. On September 18, 2022, Mary Ellen got into an
altercation with Defendant Tina Smith at work. (Id. at #384). According to Mary
Ellen, she began her shift that morning with Tina and James Blake in an otherwise
empty store. (Id.). Mary Ellen “saw them whispering” and interjected, jokingly (she
says), that “[w]henever you two whisper someone either gets in trouble or fired.” (Id.).
That kicked off a longer exchange between Mary Ellen and Tina, culminating with
Mary Ellen giving her “both … middle fingers” and mouthing (but not necessarily
vocalizing) “FU.” (Id. at #384–86). Other than that, though, Mary Ellen insists that
she did not verbalize any curse words, did not behave threateningly, was not seen by
any customers, and left the premises without incident after Dustin told her to do so
(which happened after Tina and James reported the incident to him). (Id.).
Tina and James remember the events of that day somewhat differently. Tina,
for her part, testified that Mary Ellen “ma[de] allegations that were untrue and
threaten[ed her].” (Doc. 29, #552). Blake, meanwhile, testified that “[Mary Ellen]
flipped us off and started screaming and yelling,” and that she did so in front of
customers—not in an empty store. (Doc. 27, #526). But all parties agree that Mary
Ellen was sent home afterwards.
That didn’t end things. Tina says that later that night Mary Ellen (along with
Peter) appeared at Tina’s home twice, banging on the door and causing commotion.
(Doc. 29, #553). The first visit occurred around 7:00 p.m. when Tina was away at her
second job. (Id.). Only her daughter Caitlyn, who has special needs, was home. (Id.).
According to Tina, a neighbor intervened and “told [the Castellinis] if they didn’t quit,
he was calling the cops; and they left.” (Id.). But they returned. This time they arrived
at around 2:00 in the morning. Tina was home by then. She testified that they “kept
on screaming that they knew I was in there, and [to] come talk to them. I was not
going to open the door for them. I just pretended that I wasn’t home.” (Id. at #554).
Allegedly, the Castellinis were loud enough for long enough to earn Tina a noise
complaint. (Id.). The Castellinis, on the other hand, vigorously deny visiting Tina’s
home that night. (Doc. 23, #292–93; Doc. 25, #389–90).
Two critical developments followed that fateful night. First, Tina went to the
police, who advised her to obtain a protection order against the Castellinis. (Doc. 29,
#554). Second, Mary Ellen committed herself to inpatient treatment for what appears
from her testimony to be a flare-up of her PTSD, which in turn triggered some degree
of alcohol abuse. (Doc. 25, #387–88) She claims this was all “due to the stress at work.”
(Id. at #388). Mary Ellen remained in treatment for about five days starting on
September 21, 2022. (Id.). Once she returned to work, Skyline asked her if she’d like
to transfer locations so as to avoid any further problems with Tina. (Id. at #392). She
declined that offer. (Id.). As a result, Tina followed the police’s advice and filed for a
protection order against Mary Ellen (but not against Peter, for procedural reasons).
(Doc. 29, #555). After Tina filed in Hamilton County Court, Skyline decided to fire
Mary Ellen. (Id.; Doc. 33, #638). It dismissed her on October 7, 2022. (Doc. 25, #390).
The Castellinis interpret their firings as Skyline either retaliating for their
wage, hour, and sexual-misconduct complaints, or discriminating based on disability.
So they sued, asserting a litany of claims. Specifically, their Second Amended
Complaint presents claims for: (1) violating the Ohio Whistleblower Protection Act
(the OWPA) (Count I); (2) wrongfully terminating them in violation of public policy
(known as a Greeley claim, after the Ohio Supreme Court case that recognized the
cause of action, Greeley v. Miami Valley Maint. Contractors, Inc., 551 N.E.2d 981
(Ohio 1990)) (Count II); (3) retaliating in violation of the Fair Labor Standards Act
(the FLSA) (Count III); (4) retaliating in violation of the Ohio Constitution’s
minimum wage provisions (Count IV); (5) failure to accommodate, disability
discrimination, and retaliatory discrimination in violation of the Americans with
Disabilities Act (the ADA) and the Ohio Civil Rights Act (the OCRA) (Counts V, VI,
VII, VIII, IX, XI, XII, XIII, XIV, and XV); and (6) aiding, abetting, and inciting
discrimination (Counts X and XVI). (See generally Doc. 14).
Defendants have now moved for summary judgment on all of those claims.
(Docs. 34, 35). Plaintiffs responded, (Docs. 37, 38), and Defendants replied, (Docs. 39,
40). So the matter is now ripe for the Court’s review.
LEGAL STANDARD
To prevail on a motion for summary judgment, the moving party must show
“that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If the moving party carries that
burden by pointing to specific, admissible facts in the record, the nonmoving party
“must come forward with significant probative evidence to support its claim.” Kaivac,
Inc. v. Stillwagon, No. 1:19-cv-410, 2022 WL 7483134, at *2 (S.D. Ohio 2022) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). And the Court must view the
parties’ factual claims in the light most favorable to the non-movant. Sagan v. United
States, 342 F.3d 493, 497 (6th Cir. 2003). If the nonmoving party does not carry its
burden with respect to a claim—for example, by “fail[ing] to make the necessary
showing for an element [of a claim] upon which it has the [ultimate] burden of
proof”—then the moving party is entitled to summary judgment on that claim.
Kaivac, 2022 WL 7483134, at *2.
While non-movants can lose at summary judgment by trying—but failing—to
carry their burden as to a given claim, they can also “abandon” a claim by failing to
try at all. That is, the Sixth Circuit has held that non-movants abandon their claims
by failing to respond to the arguments that the movant presents in its motion for
summary judgment. Brown v. VHS of Mich., Inc., 545 F. App’x 368, 371–72 (6th Cir.
2013). But even then, courts should not grant a movant’s request for summary
judgment without “review[ing] carefully the portions of the record submitted by the
moving party to determine” whether they have carried their initial burden to show
that there is no genuine dispute of material fact and that they are entitled to
judgment as a matter of law. Kaivac, 2022 WL 7483134, at *2 (quotation omitted).
Stated differently, “the party moving for summary judgment must meet his burden
of production to prevail, regardless of whether the adverse party responds.” Bruin v.
White, No. 5:16-cv-105, 2021 WL 4303684, at *2 (W.D. Ky. Sept. 21, 2021) (citing
Evans v. Plummer, 687 F. App’x 434, 446 (6th Cir. 2017)).
To put that all together, Defendants—as the movants here—bear “the initial
responsibility of informing the [C]ourt of the basis for [their] motion [by] identifying
those portions [of the record] … which [they] believe[] demonstrate the absence of a
genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. If they make that
showing, the burden shifts to Plaintiffs to point to evidence that “present[s] some
remaining ‘sufficient disagreement’ which would necessitate submission to a jury.”
Hentze v. CSX Transport., Inc., 477 F. Supp. 3d 644, 658 (S.D. Ohio 2020). If Plaintiffs
don’t make any attempt to do so, they have “abandoned” the claims with respect to
which they forward no supporting evidence, but such abandonment does not result in
an automatic grant of summary judgment to Defendants unless Defendants have
independently carried their initial burden. Bruin, 2021 WL 4303684, at *2.
LAW AND ANALYSIS
Plaintiffs Peter and Mary Ellen Castellini raised sixteen counts in their Second
Amended Complaint. (Doc. 14). Many of those counts present nearly identical claims,
altered slightly to accommodate both Plaintiffs’ individual circumstances. For the
sake of clarity, the Court will group its analysis by claim, and not by Plaintiff, and
discuss the effect of each Plaintiff’s individual circumstances on its analysis where
necessary.
Defendants move for summary judgment on all six categories of claims
described previously. But many of those separate categories of claims share a common
requirement—Plaintiffs ultimately must show that Skyline’s non-discriminatory
justifications for their firings are pretextual. Bashaw v. Majestic Care of Whitehall,
LLC, __ F.4th __, 2025 WL 700169, at *4 (6th Cir. 2025). Because the Castellinis
haven’t created a genuine dispute as to that requirement, the Court starts there.
After addressing the Castellinis’ failing on that front, and the common impact it has
on these various effected claims, the Court takes each remaining claim in turn. As to
each, the Court determines whether Defendants have carried their initial burden to
merit summary judgment and, if so, whether Plaintiffs have successfully countered
such that their claims may proceed to a jury. While the Court presents the details
below, the short answer is that none of the claims survive.
A. The Castellinis Have Not Produced Any Evidence Casting Doubt on
Skyline’s Non-Retaliatory Justifications for Their Firings, As
Required for Many of Their Claims.
The overwhelming majority of Plaintiffs’ claims share a common requirement:
showing that Skyline’s asserted justifications for their firings are mere “pretext”
masking an unlawful purpose. Bashaw, 2025 WL 700169, at *4. But while the pretext
requirement is common across these claims, it operates somewhat differently
depending on which of two subsets each of the various claims occupies: (1) those that
are governed by the McDonnell Douglas burden-shifting framework, and (2) the so-
called Greeley claims. So the Court will address each subset in turn.
1. The Castellinis’ Evidence Doesn’t Satisfy the McDonnell Douglas
Pretext Analysis.
The bulk of the Castellinis’ claims are of the sort analyzed under the
McDonnell Douglas burden-shifting framework at the summary judgment stage.
Specifically, the OWPA claim, the FLSA claim, the Ohio minimum wage claim, and
the ADA and OCRA claims (for retaliatory discrimination and disability
discrimination2) are all subject to that framework. Klepsky v. United Parcel Serv.,
Inc., 489 F.3d 264, 271–72 (6th Cir. 2007) (explaining OWPA burden shifting); Adair
v. Charter Cnty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006) (explaining FLSA burden
shifting); Morse v. Fifty West Brewing Co., No., 2024 WL 1151794, at *2 n.3 (S.D. Ohio
Mar. 18, 2024) (citing cases) (explaining that Ohio minimum wage claims are
“analyzed under the same framework as the FLSA”); Rorrer v. City of Stow, 743 F.3d
1025, 1046, 1031 n.1 (explaining ADA burden shifting, and that OCRA claims are
analyzed under the same standard); see also Babb v. Maryville Anesthesiologists P.C.,
942 F.3d 308, 319–20 (6th Cir. 2019). The Court will refer to those as the Castellinis’
“burden-shifting claims.”
The burden-shifting framework calls for a three-part analysis at the summary
judgment stage. First, the plaintiff bears the burden of producing sufficient evidence
to make out a prima facie case under the relevant law. See, e.g., Adair, 452 F.3d at
2 The remaining ADA/OCRA claims—for failures to accommodate—aren’t subject to the
McDonnell Douglas framework and are analyzed separately below. See infra Part B.
489 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973)). The
requisite showing that a plaintiff “must make at the prima facie stage [i]s ‘low’ and
‘minimal.’” Spengler v. Worthington Cylinders, 514 F. Supp. 2d 1011, 1022 (S.D. Ohio
2007). Second, if the plaintiff satisfies their burden of production, the burden shifts
to the defendant to demonstrate that they had a “legitimate, non-discriminatory”
reason for firing the plaintiff employee (or taking some other adverse action, as the
case may be). Id. at 1023. Finally, if the defendant offers such a reason, the burden
shifts once more to the plaintiff to produce evidence showing that the defendant’s
stated reason is mere pretext.3 Id.
The Court can “skip directly to the pretext level” where, as here, the Court’s
analysis at the third step is dispositive of the plaintiffs’ claims. Mitchell v. Madison
Dist. Pub. Schs., No. 23-cv-10472, 2024 WL 4884412, at *3 (E.D. Mich. Nov. 25, 2024)
(citing Chen v. Dow Chem. Co., 580 F.3d 394 (6th Cir. 2009)). That is, the Court “need
not address whether [the Castellinis] established a prima facie case” if they “failed to
3 The Court has previously expressed—and continues to hold—reservations about the tension
between the burden-shifting framework and the typical purpose of summary judgment, i.e.,
to determine whether any issues remain for determination by jury trial. See Burress v. Spring
Grove Cemetery & Arboretum, No. 1:18-cv-879, 2020 WL 3036047, at *9 n.4 (S.D. Ohio June
5, 2020). For example, the Sixth Circuit has noted that the elements of the burden-shifting
framework typically do not apply at trial. Id. Rather, at trial, the only question is the ultimate
question—did discrimination occur? So it is odd to ask at summary judgment whether a
triable issue exists as to prima facie claim elements, or elements at other steps of the
McDonnell Douglas framework, that will never be determined at trial. And the Court isn’t
alone in its consternation. See, e.g., Sandra F. Sperino, Irreconcilable: McDonnell Douglas
and Summary Judgment, 102 N.C. L. Rev 459 (2024); Barrett v. Salt Lake Cnty., 754 F.3d
864, 867 (10th Cir. 2014) (citing Timothy M. Tymkovich, The Problem with Pretext, 85 Den.
U. L. Rev. 503 (2008)). But in the absence of additional guidance from the higher courts, this
Court must continue to apply the burden-shifting frameworks that precedent commands.
create a genuine issue of material fact as to pretext” regarding Skyline’s asserted
legitimate reasons for firing them. Chen, 580 F.3d at 402.
The Castellinis fall short on that front here. Start with Skyline’s asserted
reasons for firing both Castellinis. In Peter’s case, Skyline explains that it fired him
for “violat[ing] Skyline’s drug and alcohol policy” by admitting to bringing marijuana
to work. (Doc. 35, #724, 726; Doc. 23, #286–87; Doc. 33, #636). And as to Mary Ellen’s
dismissal, the proffered justification was to “protect the health and safety of [Tina]
Smith, her daughters, and other Skyline employees” after Mary Ellen refused to
transfer locations despite Smith having filed for a protective order against her. (Doc.
34, #690; Doc. 29, #555; Doc. 33, #637–38). Both strike the Court as legitimate, non-
discriminatory reasons for firing employees. See, e.g., Adkins v. Excel Mining, LLC,
214 F. Supp. 3d 617, 624 (E.D. Ky. 2016) (citing cases explaining that “[t]he violation
of a company drug or alcohol policy is a legitimate, nondiscriminatory reason for firing
an employee”); Jackson v. Old Dominion Freight Line, No. 2:16-cv-977, 2018 WL
1521764, at *7 (S.D. Ohio Mar. 28, 2018) (explaining that an employee’s “serious
verbal altercations” with coworkers can constitute a legitimate reason for discharge).
So then it falls to the Castellinis to show these reasons are pretextual.
Plaintiffs can seek to do so in one of three ways: “(1) the proffered reason had no
factual basis, (2) the proffered reason did not actually motivate [Skyline’s] action, or
(3) the proffered reason was insufficient to motivate the action.” Adair, 452 F.3d at
491. The Castellinis appear to opt for the second route by attempting to “indict the
credibility of [Skyline’s] explanation by showing circumstances which tend to prove
that an illegal motivation was more likely than that offered by the defendant.”
Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (emphasis omitted) (quoting
Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994),
overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 190 (2009)).
But neither Castellini succeeds in their respective efforts.
Start with the circumstances to which Mary Ellen points to demonstrate
pretext. In her telling, her tiff with Tina Smith couldn’t have supplied the grounds
for her firing, since she “was not suspended from work or otherwise reprimanded”
until after she came back from her stint in the hospital. (Doc. 38, #778–79). So it was
Mary Ellen’s hospital stay, and not the preceding incident and its aftermath, that
truly motivated Skyline’s decision to fire her. That sounds plausible enough, but for
one key detail. Mary Ellen testified that after she was discharged from the hospital
and returned to work, Skyline’s corporate personnel asked her if she’d like to be
transferred to another store. (Doc. 25, #392). She declined that offer. (Id.). Only then
did Skyline make the decision to terminate her. (Id.). Stated differently, Skyline gave
Mary Ellen a chance—after her hospitalization—to continue working, albeit at a
different store. But her refusal to transfer threatened the continuation of an
untenable situation: working right beside someone (Tina Smith) who had filed a
pending protection order against her (that was granted shortly thereafter). (Doc. 29,
#555). So Mary Ellen’s pretext argument fails because it attacks a version of events
that her own testimony belies.4
4 It bears noting that employee transfers can themselves constitute adverse employment
actions in some instances. See Keeton v. Flying J, Inc., 429 F.3d 259, 264 (6th Cir. 2005). So
Peter’s pretext argument is even weaker. He argues that Skyline’s asserted
reason for firing him—a “violation of the alcohol and drug policy”—was pretextual
because “no one observed [him] possessing or using drugs or alcohol on Skyline’s
premises.” (Doc. 37, #758). The Court struggles to see why first-hand observation
would matter when Peter admitted to possessing drugs on the premises. (Doc. 23,
#286). So while he argues that “the facts of this case do not support the asserted
Mary Ellen could have potentially demonstrated pretext by arguing that it was Skyline’s offer
to transfer her, and not its decision to fire her, that needed justification under McDonnell
Douglas with a legitimate, non-discriminatory reason. If she’d taken that route, then her
hospitalization would have been adjacent to the alleged adverse employment action in the
way she attempts to argue in showing pretext. Stated differently, there would be no
intervening “saving grace” insulating the adverse employment action from the protected
activity. But there are two issues with that. First, Mary Ellen never made any such
argument. Second, and more fundamentally, the rapid-fire nature of the sequence of events,
by itself, doesn’t show that Skyline’s proffered justification “did not actually motivate [its]
action.” Adair, 452 F.3d at 491. To make that showing, Mary Ellen must point to evidence on
the basis of which a jury could find that “an illegal motivation was more likely than that
offered by [Skyline].” Johnson, 319 F.3d at 866 (emphasis in original). At the very best, the
intervening hospitalization, without more, makes it perhaps equally likely that Skyline’s
proffered reason was pretextual. That is especially true where, as here, Mary Ellen’s
workplace altercation (Skyline’s proffered reason) took place mere days before her
hospitalization (Mary Ellen’s alleged true reason), which took place mere days before the
ultimate adverse employment action. The best reading of that sequence for Mary Ellen is
that Skyline had no intention to take any adverse action until she was hospitalized, while
the best reading for Skyline is that Mary Ellen’s hospitalization simply forced it to wait to
take the adverse action it already intended to take before her hospitalization. But there is no
evidence in the record that would enable a reasonable jury to find the first reading “more
likely” than the second. Mary Ellen could’ve supplemented her otherwise-bare timeline
argument by, for example, testifying (or eliciting testimony from others) that her
hospitalization factored into Skyline’s adverse employment decision(s). Cf. Johnson, 319 F.3d
at 867–69 (describing the “several instances” of evidence creating a jury-triable issue as to
whether pretext was more likely than not). Her testimony accomplishes, if anything, the
exact opposite. She confirmed that her “medical condition wasn’t discussed at all” when
Skyline terminated her. (Doc. 25, #392). Further still, she recalled how Skyline hadn’t
retaliated against her the first time she was hospitalized for substance abuse treatment—in
other words, supporting the notion that Skyline based its decision on something other than
her hospitalization (since it had accommodated it once before). (Id.). At bottom, Mary Ellen
hasn’t offered any evidence beyond the bare fact of her hospitalization to create a genuine,
jury-triable issue that Skyline’s proffered justification for her termination was pretextual.
‘legitimate reason’ for [his] termination,” it seems—by Peter’s own testimony—that
exactly the opposite is true. That is, Skyline had a legitimate, non-discriminatory
reason to fire Peter: he admitted to possessing drugs on Skyline’s premises in
violation of the zero-tolerance substance use policy. To hold that the mere fact no one
saw the drugs meant that Skyline’s asserted justification is pretextual would be to
wipe out employers’ ability to rely on voluntary employee confessions of wrongdoing.
The Court is aware of no caselaw that compels such a result (certainly Plaintiffs have
cited none), and this Court declines to be the first.
In sum, because the Castellinis have failed to meet their burden of production
to show pretext under the McDonnell Douglas framework, the Court GRANTS
summary judgment to Skyline on each claim controlled by that framework.
2. The Castellinis’ Evidence Doesn’t Satisfy Greeley’s Prima Facie
Elements, One of Which Requires Proof That Skyline Lacked an
Overriding Justification for Firing Them.
The Castellinis’ Greeley claims (i.e., those alleging wrongful termination in
violation of Ohio public policy) require a similar showing as the pretext requirement
under the burden-shifting framework. Namely, one of the prima facie elements of a
Greeley claim is that a plaintiff must show that “[t]he employer lacked overriding
legitimate business justification for the dismissal.” Himmel v. Ford Motor Co., 342
F.3d 593, 598 (6th Cir. 2003) (quoting Collins v. Rizkana, 652 N.E.2d 653, 657–58
(Ohio 1995)). So for the same reasons that the Castellinis failed on their burden-
shifting claims, they fail here. That is, their own testimony provides evidence that
Skyline did have an overriding business justification for their firings. In Peter’s case,
it was his admission to having drugs on Skyline’s premises. (Doc. 23, #286). And in
Mary Ellen’s case, it was her refusal to accept a transfer to another store after an
altercation with one of her coworkers. (Doc. 25, #393). So the Court GRANTS
Defendants summary judgment on the Castellinis’ Greeley claims.
B. The Castellinis Have Not Produced Evidence to Show They Had
Qualifying Disabilities Sufficient to Make a Claim For Failure to
Accommodate.
The Castellinis’ remaining claims under the ADA and the OCRA allege that
Skyline failed to accommodate their disabilities. Because the OCRA parallels the
ADA, the Court analyzes them together. Hentze v. CSX Transportation, Inc., 477 F.
Supp. 3d 644, 658 n.3 (S.D. Ohio 2020) (citing Kleiber v. Honda of Am. Mfg., Inc., 485
F.3d 862, 872 (6th Cir. 2007)).
The ADA prohibits “discriminat[ing] against a qualified individual on the basis
of disability.” Hentze, 477 F. Supp. 3d at 658 (citing 42 U.S.C. § 12112(a)). The statute
itself includes some examples of disability discrimination. One form of disability
discrimination occurs when an employer “fail[s] to accommodate an employee’s
known disability.” Id. (citing 42 U.S.C. § 12112(b)(5)). More specifically, “an employer
violates the ADA by not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability …, unless
[the employer] can demonstrate that the accommodation would impose an undue
hardship [on the employer.]” Id. at 658–59 (modifications in original) (internal
quotations omitted). Those of Plaintiffs’ claims that allege “failure to accommodate”
fall under this theory of disability discrimination.
The failure-to-accommodate theory of disability discrimination requires a
threshold showing that Peter and Mary Ellen had qualifying disabilities. See Kleiber,
485 F.3d at 869. To assess whether a person has a qualifying disability, courts ask
whether the plaintiff: “(1) [has] a physical or mental impairment that substantially
limits one or more major life activities; (2) [has] a record of such an impairment; or
(3) [is] regarded as having such an impairment.” Martin v. Barnesville Exempted
Village Sch. Dist. Bd. of Educ., 35 F. Supp. 2d 1038, 1040–41 (S.D. Ohio 1999). The
Castellinis argue that they satisfy either the first or the third definition of
“disability.” The Court addresses each in turn.
1. There is No Evidence that the Castellinis’ Alleged Disabilities
Substantially Limited a Major Life Activity.
As described above, the ADA’s first definition of “disability” requires that the
alleged condition “must be one that substantially limits one or more major life
activities.” Id. (emphasis in original omitted). “Moreover, caselaw makes it clear that
it is the plaintiff’s obligation to identify both the impairment at issue and the major
life activity that it impacts, along with offering an explanation as to the way in which
the major life activity is substantially limited.” Hentze, 477 F. Supp. 3d at 660.
Though the Plaintiffs have sufficiently identified their impairments, they have
not offered any evidence to show that those impairments substantially limit any
major life activity. Peter describes having both Asperger’s syndrome and PTSD. (See
Doc. 14, #206). Mary Ellen, too, suffers from PTSD, accompanied by depression. (See
id.; Doc. 25, #392, 397; Doc. 38, #783). But in their depositions, both of them explicitly
disclaim being limited in any major respect by those afflictions. (Doc. 23, #273–74
(Peter testified that he had no problem caring for himself, performing manual tasks,
walking, seeing, speaking, breathing, learning, or working); Doc. 25, #367 (Mary
Ellen testified the same)). Even though Plaintiffs’ conditions strike the Court as the
sort that could conceivably pose substantial limits to major life activities, the
Plaintiffs here have made no showing that their impairments actually did. For that
reason, the Court agrees with Defendants’ argument that Plaintiffs have not made
the requisite showing that they had qualifying disabilities for their ADA claims.
Plaintiffs push back on that resulting, noting that “the goal of the ADA,
including the disability analysis, is to determine whether an employer has engaged
in discrimination, not get bogged down in the nuances of defining a disability.” (Doc.
37, #754 (internal quotation marks omitted)). The Court has some sympathy for that
view. Indeed, this Court has recognized elsewhere that “[w]hen Congress passed the
Americans with Disability Act Amendments Act in 2008, it instructed courts to
interpret the term ‘disability’ broadly, given the ADA’s remedial purpose.” Hentze,
477 F. Supp. 3d at 660. Still, even after recognizing the broadness with which that
term must be understood, the Court also explained that Congress’s amendments
“nonetheless left in place the requirement for a plaintiff to show that his or her
impairment limits a major life activity.” Id. (internal quotation marks omitted).
Plaintiffs have abjectly failed to make any such showing here.
2. Absent a Showing of Actual Disability, the Castellinis Can’t Use
the “Regarded-As” Definition of Disability to Support their
Failure-to-Accommodate Claims.
Perhaps recognizing their inability to show an actual disability given the
evidence before the Court, the Castellinis argue in the alternative that Skyline
regarded them as disabled—the ADA’s third definition of “disability.” (Doc. 37, #755;
Doc. 38, #775). That’s a better tack for them to take, since the impairments that fall
into the regarded-as-disabled definition need not be of the sort that limit a major life
activity. Harrison v. Soave Ents. L.L.C., 826 F. App’x 517, 526 (6th Cir. 2020) (quoting
42 U.S.C. § 12102(3)(A)). But it’s still a non-starter. “Where an individual meets the
definition of ‘disability’ only under the [regarded-as-disabled] prong, … an employer
need not provide a reasonable accommodation.” Stinson v. Nissan North Am., Inc.,
No. 3:18-cv-145, 2019 WL 6174841, at *9 (M.D. Tenn. Nov. 20, 2019) (citing 42 U.S.C.
§ 12201(h)). So even if the Court accepts that Skyline regarded the Castellinis as
disabled, their claims for failure to accommodate still fail.
Therefore, the Court GRANTS Defendants’ motions for summary judgment as
to Plaintiffs’ failure to accommodate claims under the ADA and the OCRA because of
their failure to produce evidence showing they had disabilities qualifying for
protection under those statutes.
C. Plaintiffs’ Claim for Aiding, Abetting, and Inciting of Discrimination
Falls Alongside their Underlying Discrimination Claims.
Plaintiffs’ last claims allege that Defendants Blake, Smith, and Schacht “aided,
abetted, incited, coerced, and/or compelled Skyline Chili’s discriminatory” decision to
fire them in violation of Ohio Revised Code § 4112.02(J). (Doc. 14, #219, 224–25).
“Only a few courts have ventured to determine what elements a Plaintiff must show
to make out a claim under [§ 4112.02(J)], but the courts that have examined the issue
require a showing that the [defendant] employee was ‘involved in or actually made
the employer’s decision to discriminate or retaliate against the plaintiff.” Schelle v.
City of Piqua, No. 3:23-cv-116, 2024 WL 4444561, at *4 (S.D. Ohio Oct. 8, 2024)
(cleaned up) (quoting Chulsky v. Golden Corral Corp., 583 F. Supp. 3d 1059, 1088
(S.D. Ohio 2022)). So any such claim “depends on a finding that retaliation [or
discrimination] indeed occurred.” Jd. But, as described above, all of Plaintiffs’
underlying claims fail to pass muster. That means there is nothing left for the
individual Defendants to have aided, abetted, or incited. Accordingly, the Court
GRANTS Defendants summary judgment on the claims brought under Ohio Revised
Code § 4112.02(J).
CONCLUSION
In sum, the Court GRANTS Defendants’ Motions for Summary Judgment
(Docs. 34, 35). Therefore, the Court DIRECTS the Clerk to enter judgment for
Defendants on all claims and to TERMINATE this case ow/its docket.
SO ORDERED.
March 13, 2025
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
20