IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

: 

ROBERT UPCHURCH, : Case No. 2:10-CV-1020 

 : 

 : 

Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Terence P. Kemp 

MOUNT CARMEL HEALTH SYSTEM, : 

 : 

Defendant. : 

 : 

OPINION AND ORDER 

I. INTRODUCTION 

This case comes before the Court on Defendant Mount Carmel Health System’s (“Mount 

Carmel”) Motion for Summary Judgment under Fed. R. Civ. P. 56 on all the claims asserted 

against it by Plaintiff Robert Upchurch. (Dkt. 18.) Mount Carmel contends the factual record 

demonstrates that there are no genuine issues of material fact on the essential elements of 

Upchurch’ claims. As explained more fully in its analysis herein, the Court finds that Mount 

Carmel has met its burden of proof, and it is entitled to judgment as a matter of law on all of 

Upchurch’s claims. Mount Carmel’s Motion for Summary Judgment is GRANTED, and the 

action is DISMISSED. 

II. BACKGROUND 

1. Upchurch’s Employment History at Mount Carmel 

Upchurch was employed at the Mount Carmel East Hospital in Columbus, Ohio for 

nearly 20 years before being terminated in 2008, the events of which form the subject of this 

lawsuit. Mount Carmel hired Upchurch as a staff chaplain on June 3, 1991. (Pl. Dep. 26-27.) 

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As a chaplain, Upchurch’s duties included “providing pastoral ministry to designated clinical 

areas according to standards of excellence for spiritual care established by [Mount Carmel’s 

owner] Trinity Health.” (Id. 34, Ex. 1.) Upchurch’s primary responsibility was providing 

spiritual counseling to patients and families in the emergency room. (See id.) Unless he was 

called away on other official duties, Mount Carmel’s expectation was that Upchurch would 

remain in the Emergency Department during the workday. (Pl. Dep. 36.) 

Mount Carmel East’s workforce included five other chaplains who were primarily 

assigned to other areas of the hospital. (Pl. 30-31.) Michelle Lemiesz, also a trained and 

certified Chaplain, was the Director of the Chaplaincy Services Department at Mount Carmel 

East, and was Upchurch’s supervisor for the last six years of his employment. (Pl. Dep. 32-33; 

Lemiesz Dep. 9.) For the entire six years that Ms. Lemiesz supervised Upchurch, she knew him 

to be involved in alternative spiritual practices. (Lemiesz Dep. 26.) For example, Upchurch was 

a “holistic coach” and engaged in “energy” work, which sometimes included walking in circles. 

(Lemiesz Dep. 27.) 

 Beginning in 2007, Ms. Limiesz noticed significant changes in Upchurch’s behavior. 

Upchurch explained to Ms. Lemiesz and other coworkers that he believed he was going through 

a spiritual transformation that involved his being directed by a “voice” telling him to take various 

actions or directions in his life. (Lemiesz Dep. 14.) Ms. Liemesz and Linda Weatherholt, an 

Associate Relations Manager in the Mount Carmel East Human Resources Department, received 

reports that certain behaviors of Upchurch were becoming disruptive in the workplace and 

inhibiting his job performance, including: wandering away from his assigned area in the 

Emergency Department; being outside of the building during working hours; talking to himself; 

telling others about having conversations with God or Jesus, and about Jesus directing him to do 

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things; and walking in circles in the Emergency Department with his eyes closed. (Lemiesz Dep. 

17; Weatherholt Dep. 10-12.) When Ms. Lemiesz and Ms. Weatherholt addressed these issues 

with Upchurch, he told them that they were part of his spiritual journey. (Pl. Dep. 51-52.) 

 Upchurch’s erratic and disruptive behavior continued to escalate, so Ms. Weatherholt 

placed him on administrative leave and referred him to Mount Carmel’s Employee Assistance 

Program (“EAP”) for an evaluation. (Pl. Dep. 52.) The EAP was an outside, third-party 

program that provided services to Mount Carmel for a fee. (Weatherholt Dep. 25.) Through the 

EAP program, Upchurch met with a counselor regarding controlling his behavior. (Pl. Dep. 52.) 

The EAP program arranged for Upchurch to be evaluated by an outside psychologist, Dr. David 

Tennenbaum, for a fitness-for-duty psychiatric evaluation. (Pl. Dep. 55-56; Weatherholt Dep. 

25.) Dr. Tennenbaum performed a number of tests on Upchurch, and met with him on several 

occasions. (Pl. Dep. 57-58.) Dr. Tennenbaum’s consultation report expresses difficulty in firmly 

diagnosing Upchurch, but the Axis I and Axis II test results returned a principal diagnosis of 

“Narcissistic Personality Disorder.” (Jnt. Dep. Ex. 12, at 5.) Dr. Tennenbaum reported that 

Upchurch was very manipulative, but was not psychotic. (Id.; Weatherholt Dep. 29, 61-63.) 

Upchurch testified that at the time these evaluations took place, he did not believe that he 

was mentally ill. (Pl. Dep. 57.) Upchurch testified that he had no reason to doubt Dr. 

Tennenbaum’s competence or to question his conclusions. (Pl. Dep. 70.) Dr. Tennenbaum 

referred Upchurch for additional evaluation by a colleague who specialized in alternative 

spirituality, but Upchurch failed to make an appointment. (Pl. Dep. 59.) Dr. Tennenbaum 

opined to Ms. Weatherholt that Upchurch could return to work at Mount Carmel and that he had 

the ability to follow work rules. (Weatherholt Dep. 39; see also Pl. Dep. 59-60; Pl. Dep. Ex. 2.) 

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 Upchurch returned to work at Mount Carmel after his fitness-for-duty evaluation, but 

Mount Carmel put a performance improvement plan in place for Upchurch (the “Plan”). (See Pl. 

Dep. 61-65, 67-68; Pl. Dep. Ex. 2.) The Plan required Upchurch to report to the Duty Chaplain 

at any time he was leaving the workplace and to report to his immediate supervisor (Ms. 

Lemiesz) at the end of any work period. (Pl. Dep. Ex. 2.) The Plan further required Upchurch to 

cease his erratic or disruptive behavior if instructed by his supervisor, other chaplains, or other 

hospital employees as required, and to comply with reasonable instructions from HR or the 

Chaplaincy department with respect to behavior that did not meet performance standards. (Pl. 

Dep. Ex. 2.) Upchurch testified that he had every intention of complying with the Plan and 

believed that he was capable of complying with the Plan. (Pl. Dep. 68-69.) Upchurch signed the 

Plan on January 14, 2008. (Pl. Dep. 62.) Upchurch also admitted that he understood the 

requirements of the Plan would apply for the remainder of his employment at Mount Carmel, 

unless he was told otherwise, and that if he violated the expectations set out in the Plan, he could 

be terminated. (Pl. Dep. 64.) 

2. Upchurch’s Termination 

 On the morning of January 24, 2008, Upchurch came to work but left abruptly shortly 

after his arrival without talking to his immediate supervisor or reporting to the Duty Chaplain, as 

required by his Plan. (Pl. Dep. 67, 72.) Upchurch saw the Chaplain’s office receptionist Collette 

Smith, waved his hands around, told her he had not slept all night and he “couldn’t do this 

today,” put his pager and badge in his mailbox, and left the hospital area. (Lemiesz Tr. 72; Jnt. 

Dep. Ex. 21.) Upchurch testified that he left work because he felt that he could not be around 

people and do his job after being up all night. (Pl. Dep. 72-73.) Ms. Lemiesz reported the 

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incident to Ms. Weatherholt, who instructed Ms. Leimesz to take a statement of the incident from 

Ms. Smith. 

 Based on the information presented to Ms. Weatherholt, i.e., the fact that Upchurch said 

that he could not “do this anymore,” the fact that he left behind his pager and hospital ID badge, 

which he usually took with him and would need to enter the employee parking area if he planned 

to return to work, and the fact that he had not reported to his supervisor before leaving as 

required in his Plan, Ms. Weatherholt determined that she would terminate Upchurch from 

employment for abandoning his position without authorization. (Weatherholt Dep. 52.) Ms. 

Lemiesz, after repeated attempts to contact him, reached Upchurch by telephone later on January 

24, 2008. (Lemiesz Tr. 84-85.) Upchurch asked Ms. Lemiesz for some time off work, and Ms. 

Lemiesz agreed that time off for him might be a good idea. (Lemiesz Tr. 84-85.) When 

Upchurch returned to work the next day, he was terminated by Ms. Weatherholt because he had 

walked off his job the day before. (Weatherholt Dep. 56; see also Pl. Dep. 80.) 

Upchurch testified that at the time of his termination, he did not believe that he was 

suffering from mental illness. (Pl. Dep. 60-61.) Upchurch admitted that during the entire course 

of his employment at Mount Carmel, he never reported to anyone that he had a mental illness, 

never asked anyone for an accommodation for any mental illness, never asked to take a leave of 

absence because of a mental illness, and never provided Mount Carmel with a certification from 

any doctor that he had a mental illness, a serious health condition, or a disability. (Pl. Dep. 61, 

84.) 

3. Upchurch’s Post-termination Mental Health Treatment 

In April 2008, several months after his employment at Mount Carmel ended, Upchurch 

attempted to commit suicide by asphyxiating himself with car exhaust. (Pl. Dep. 88-89.) This 

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incident finally caused him, with the help of his wife, to seek psychiatric treatment as an 

inpatient. (Id. 88-89) Upchurch began seeing Dr. Hartman, his current physician. (Id. 90-91.) 

In May 2008, Dr. Hartman diagnosed Upchurch with “schizophrenia with paranoid portion.” 

(Pl. Dep. 87.) Upchurch testified that between the time he left Mount Carmel and the time he 

started treating with Dr. Hartman, his symptoms got worse and he also began to exhibit “a 

different set of symptoms,” including anxiety, which had not been present before. (Pl. Dep. 96.) 

Upchurch began taking anti-hallucinogen medication in July 2008, and stopped hearing voices in 

December 2008. (Pl. Dep. 94-95.) By 2011, his symptoms had cleared up and he was able to 

start working again. (Id. 98-99.) 

Upchurch brought this lawsuit on November 12, 2010, approximately two years and ten 

months after his termination from Mount Carmel in January 2008. Upchurch sues Mount 

Carmel for: (1) interference with FMLA rights under 29 U.S.C. § 2601 et seq.; (2) disability 

discrimination under Ohio Rev. Code § 4112.01 et seq.; and (3) wrongful termination in 

violation of Ohio public policy. (Dkt. 1, Complaint ¶¶ 23–43). On January 24, 2012, Mount 

Carmel moved for summary judgment, to which Upchurch responded. In his Response to Mount 

Carmel’s Motion for Summary Judgment, Upchurch withdrew his third claim for wrongful 

termination in violation of an Ohio public policy against concealment of medical facts. (Dkt. 24, 

at 18.) 

The motion is now fully-briefed, and oral argument has been held on Mount Carmel’s 

motion with respect to Upchurch’s remaining two claims. The matter is ripe for determination. 

III. STANDARD OF REVIEW 

A motion for summary judgment should be granted only when “the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment on a claim or issue “will not lie if the 

. . . evidence is such that a reasonable jury could return a verdict for the non-moving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for 

summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

The movant has the burden of establishing that there is no genuine issue of material fact. 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). 

A genuine issue of material fact exists “when there is sufficient evidence for a trier of fact 

to find for the non-moving party.” La Quinta Corp. v. Heartland Props. LLC, 603 F.3d 327, 335 

(6th Cir. 2010); see also Westco Group, Inc. v. K.B. & Assocs., 128 F. Supp. 2d 1082, 1086 

(N.D. Ohio 2001) (“A factual dispute precludes summary judgment only if it is material, that is, 

if it relates to a matter essential to adjudication.”). To survive summary judgment, the nonmoving party must present “significant probative evidence” to show that there is more than 

“some metaphysical doubt as to the material facts.” Moore v. Philip Morris Co., 8 F.3d 335, 

339–40 (6th Cir. 1993). 

IV. LAW AND ANALYSIS 

A. Unlawful Interference with Upchurch’s FMLA Rights 

Upchurch claims that Mount Carmel willingly failed to grant him medical leave for his 

serious mental illness and instead decided to terminate him, in violation of Upchurch’s rights 

under 29 U.S.C. § 2615 of the FMLA. Upchurch asserts that Mount Carmel was on both real 

and constructive notice of a need for time off of work for treatment that would have met the 

criteria of the FMLA, and would have qualified as a reasonable accommodation of his disability. 

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Mount Carmel argues that Plaintiff’s claim of FMLA interference fails as a matter of law for 

three independent reasons: (1) the claim is untimely, as it was filed more than two years after 

Plaintiff’s termination and he cannot establish a “willful” violation of the FMLA; (2) Plaintiff 

cannot establish essential elements of the claim, including that he gave Mount Carmel notice of 

his intention to take FMLA leave and that he was actually entitled to leave; and (3) Plaintiff 

admits that he would not have been able to return to work at the end of the leave with which he 

claims Mount Carmel interfered. 

The FMLA entitles an employee to twelve workweeks of leave per year if the employee 

has a “serious health condition that makes the employee unable to perform the functions of the 

position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The Sixth Circuit recognizes both 

“interference” and “retaliation” theories of recovery against employees for noncompliance with 

the FMLA. Since Upchurch does not allege or argue retaliation, the Court need only address 

Upchurch’s potential for recovery under the “interference” theory: 

The “entitlement” or “interference” theory arises from [29 U.S.C.] § 2615(a)(1), 

which states that “[i]t shall be unlawful for any employer to interfere with, 

restrain, or deny the exercise of or the attempt to exercise, any right provided in 

this subchapter,” and from [29 U.S.C.] § 2614(a)(1), which provides that “any 

eligible employee who takes leave ... shall be entitled, on return from such leave 

(A) to be restored by the employer to the position of employment held by the 

employee when the leave commenced; or (B) to be restored to an equivalent 

position.” 

Coffman v. Ford Motor Co., 719 F. Supp. 2d 856, 868 (S.D. Ohio 2010), aff’d 2011 U.S. App. 

LEXIS 23462 (6th Cir. 2011) (quoting Arban v. West Pub. Corp., 345 F.3d 390, 400-01 (6th Cir. 

2003)). 

 To prevail on his “interference” claim for violation of the FMLA, Upchurch must 

establish by a preponderance of the evidence that: (1) he was an eligible employee, as defined in 

29 U.S.C. § 2611(2); (2) Mount Carmel is an employer, as defined in 29 U.S.C. § 2611(4); (3) he 

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was entitled to take leave for one of the reasons set forth in 29 U.S.C. § 2612(a)(1); (4) he gave 

notice to Mount Carmel of his intention to take leave, as required by 29 C.F.R. §§ 825.302-.303;1

and (5) Mount Carmel denied him the benefits to which he was entitled under the FMLA and/or 

used his FMLA leave time as a negative factor leading to adverse action. See Wysong v. Dow 

Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007); Cavin v. Honda of America Mfg., Inc., 346 F.3d 

713, 719 (6th Cir. 2003). 

1. Timeliness (Statute of Limitations Defense) 

Mount Carmel claims Upchurch has not shown a “willful” violation of the FMLA, so his 

claim is time-barred by the FMLA’s two-year statute of limitations for claims of non-willful 

violations. Upchurch argues that Mount Carmel’s failure to consider FMLA leave after 

Upchurch “requested” time off of work on January 24, 2008 is sufficient to satisfy the 

“willfulness” element, thus allowing the three-year statute of limitations to apply to his claim. 

Plaintiff’s employment at Mount Carmel ended on January 25, 2008, and he filed this lawsuit on 

November 12, 2010—two years and roughly ten months later. Under 29 U.S.C. § 2617(c) of the 

FMLA, “an action may be brought under this section not later than 2 years after the date of the 

last event constituting the alleged violation for which the action is brought,” except for “actions 

brought for a willful violation of [rights],” which “may be brought within 3 years of the date of 

the last event constituting the alleged violation for which such action is brought.” 29 U.S.C. § 

2617(c)(1)–(2). 

The FMLA does not define “willful,” but the Sixth Circuit has held that “[a]n employer 

commits a willful violation of the FMLA when it acts with knowledge that its conduct is 

prohibited by the FMLA or with reckless disregard of the FMLA’s requirements.” Coffman, 719 

 

1

 29 C.F.R. §§ 825.302 and 825.303 provide the employee notice requirements for foreseeable, and unforeseeable, 

FMLA leave, respectively. 

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F. Supp. 2d at 868 (quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)). The 

determination of willfulness necessarily involves a factual inquiry; however, courts have held 

that the question of an employer’s willfulness, or lack thereof, is an appropriate issue for 

summary judgment when justified by the record. See id. 

It is undisputed that Upchurch left his jobsite at Mount Carmel after simply declaring, “I 

can’t do this today. It’s all too much. I didn’t sleep last night; It’s more than I can do.”2

 Ms. 

Lemiesz reported the incident to Ms. Weatherholt, telling Ms. Weatherholt that Upchurch had 

left; he had said “he couldn’t do this anymore;” and that she (Ms. Lemiesz) was extremely 

concerned about his welfare. Ms. Lemiesz called Ms. Weatherholt to report the incident. 

(Lemiesz Tr. 77-78.) Ms. Weatherholt immediately told Ms. Lemiesz to calm down, and stated 

that Upchurch had abandoned his job. (Lemiesz Tr. 77-78.) Ms. Weatherholt further ordered 

that Ms. Smith prepare a statement of her report of the incident. Ms. Smith included in her 

statement the specific declarations Upchurch made as he left, (Joint Dep., Exh. 21.), but Ms. 

Weatherholt never reviewed Ms. Smith’s statement before deciding to discharge Upchurch. 

(Weatherholt Tr. 49.) 

When Ms. Lemiesz reached Upchurch by telephone later on January 24, 2008, Upchurch 

asked Ms. Lemiesz for some time off work, stating, “he was not able to do this anymore and that 

he needed some time.” (Lemiesz Dep. 84:23-85:3.) Ms. Lemiesz “told him he could have that 

time” off, because she believed he needed time off “to attend to some of his concerns,” i.e. 

mental health concerns. (Id. at 85-86.) Ms. Weatherholt ordered Ms. Lemiesz to escort 

Upchurch to Ms. Weatherholt’s office if he returned. (Id. at 88.) When Upchurch arrived for 

work on January 25, 2008, Ms. Lemiesz escorted him to Ms. Weatherholt’s office. Ms. 

 

2

 (Jnt Dep. Ex. 21.) 

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Weatherholt expressed to Upchurch that “she was concerned about him,” but she terminated him 

for abandoning his position the day before. (Lemiesz Dep. 89:4-13.) 

Drawing all reasonable inferences in Upchurch’s favor, Upchurch’s FMLA claim is timebarred because there is no evidence of Mount Carmel’s “willful” refusal to provide FMLA leave. 

First, there is no assertion by Upchurch that he at any time verbalized a request to Mount Carmel 

for FMLA leave. Even if his subsequent request for “time off” because he “couldn’t do this 

anymore” could reasonably be construed as a request for medical leave entitled to him under the 

FMLA, there is insufficient evidence to create a triable issue that Mount Carmel “knowingly” or 

with “reckless disregard” discharged him because of that request. See Coffman, 719 F. Supp. 2d 

at 868. 

Upchurch’s evidence for showing willfulness is even less in his favor than the plaintiff’s 

in Coffman. On summary judgment in Coffman, this Court found that the plaintiff had “failed to 

put forward any evidence demonstrating that [employer] Ford knew its conduct was prohibited 

by the FMLA or that it acted with reckless disregard of FMLA requirements,” where “she 

objected to Ford at the time of her termination that she [erroneously] believed she had submitted 

the necessary certifications and that her absences should have been excused.” Id. (concluding, 

“even if Coffman could establish that Ford erred in finding that particular absences were not 

excused pursuant to the FMLA, Coffman could not establish willfulness solely with evidence 

that Ford’s determinations were negligent”) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 

128, 133 (1988) (“The word ‘willful’ . . . is generally understood to refer to conduct that is not 

merely negligent.”)). 

Unlike in Coffman, where the plaintiff actually stated “that she believed she had 

submitted the necessary certifications and that her absences should have been excused” under the 

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FMLA, id. at 868, here Upchurch never discussed his need or desire to take FMLA leave with 

Mount Carmel. Upchurch’s actions confirm he did not intend on taking any FMLA leave when 

he left work, because he came back to Mount Carmel from his “time off” the very next day. 

In defense of his “willfulness” claim, Upchurch points to Ms. Weatherholt’s testimony 

that if Upchurch had not come to work at all on the morning of January 24th, rather than leaving 

after he had arrived for the day, she would not have terminated him for “job abandonment.” 

(Doc. No. 24, p. 15.) Upchurch presents this testimony to show Mount Carmel’s intent to 

terminate him for reasons other than what it claims. Further, Upchurch points to Ms. 

Weatherholt’s failure to review Ms. Smith’s written statement of his “abandonment” incident as 

evidence of her willful disregard for his request for FMLA-covered leave. Upchurch argues that 

willfulness under the FMLA can be shown through a deliberate failure to consider an employee’s 

request for time off of work that would potentially be FMLA-protected, relying on Waites v. 

Kirkbride Ctr., Case No. 10-cv-1487, 011 U.S. Dist. LEXIS 55363 (E.D. Pa. 2011). 

In Waites, the court did find that the plaintiff need not to “allege that she expressly 

requested FMLA leave,” id. at *29; however there were a number of additional factors in Waites 

suggesting that the employer’s behavior was an intentional effort to deny plaintiff the ability to 

receive her FMLA-required leave. See id at *30 (where, inter alia, plaintiff “telephoned Mr. 

Collier about her illness and impending hospitalization” which constituted “an attempted 

invocation of the FMLA” and “within three days of being told to contact the Human Resources 

Department regarding doctor’s notes and FMLA leave, Defendant prohibited Plaintiff from 

entering the building”). Unlike in Waites, where the employer “made Plaintiff’s attempts at 

communication difficult,” here, Ms. Lemiesz and Ms. Weatherholt made multiple attempts to 

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contact Upchurch, giving him plenty of opportunities to invoke the FMLA and put them on 

notice as required for willfulness. 

Upchurch merely stating that he “needed some time off” is insufficient by itself to 

support a claim that Mount Carmel’s terminating him for walking away from the job was done 

willfully to avoid granting his FMLA leave, even when his supervisors knew he had mental 

health issues and were “concerned” about his well-being. Upchurch returned to work the next 

day, and at that time did not give any indication that he wanted, needed, or demanded FMLA 

leave. Even if Ms. Lemiesz and Ms. Weatherholt erroneously failed to determine that his mental 

condition warranted FMLA leave, there is no evidence that such a failure was anything more 

than “negligence.” See Coffman, supra, 719 F. Supp 2d. at 868. Even the Waites Court 

recognized that, “[a] plaintiff must do more than show that his ‘employer knew [the FMLA] was 

in the picture,’ because such a low standard would ‘obliterate any distinction between willful and 

nonwillful violations.’” Id. at *28 (quoting McLaughlin, 486 U.S. at 132); see also Wilmath v. 

St. Joseph Mercy Health Center, No. 08-6011, 2009 WL 77616, at *3 (W.D. Ark. Jan. 9, 2009) 

(holding, “[t]o create a genuine issue of material fact that a violation was willful . . . [t]hat the 

employer should have known that its actions would violate the FMLA is insufficient”). 

In sum, there is insufficient evidence to create a triable issue of fact on a willfulness 

FMLA interference claim, which renders Upchurch’s claim time-barred under 29 U.S.C. § 

2617(c)’s two-year statute of limitations for non-willful violations of the FMLA. Upchurch has 

“failed to put forward any evidence demonstrating that [Mount Carmel] knew its conduct was 

prohibited by the FMLA or that it acted with reckless disregard of FMLA requirements.” 

Coffman, 719 F. Supp at 868. Mount Carmel’s termination of Upchurch may have been unfair, 

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or even negligent, but there is no evidence that it was done willfully upon a request by Upchurch 

for FMLA leave. 

2. Upchurch Could Not Have Returned to Employment after his Twelve-Week Leave 

In Mount Carmel’s second basis for denying Upchurch’s FMLA claim, it argues that 

even if Plaintiff’s FMLA claim was timely, and even if Plaintiff could establish the elements of 

that claim, his FMLA claim would still fail as a matter of law because it is undisputed that 

Plaintiff would not have been able to return to work after the twelve weeks of leave he claims 

Mount Carmel improperly denied him. 

It is well-established in the Sixth Circuit that “a company does not violate the FMLA 

when it terminates an employee who is incapable of returning to work at the end of the 12-week 

leave period allowed by the Act.” Edgar v. JAC Products, Inc., 443 F.3d 501, 511 (6th Cir. 

2006) (citing Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th 

Cir. 1998)). The reason behind this legal defense to FMLA violation is that “[o]nce the 12-week 

period ends . . . employees who remain ‘unable to perform an essential function of the position 

because of a physical or mental condition . . . [have] no right to restoration to another position 

under the FMLA.’” Id. at 507 (quoting 29 C.F.R. § 825.214(b)). Employers in FMLA 

interference (also called, “entitlement”) cases, such as this one, may rely on this “Cehrs” defense 

“even if the medical evidence on which they rely did not emerge until after the employment 

decision occurred.” Id. at 512. 

Upchurch does not refute, deny, or even address Mount Carmel’s defense to liability 

under Cehrs. Because this technically concedes the issue, see Celotex, 477 U.S. at 324, and 

because the evidence indeed shows that Upchurch could not have returned within his 12-week 

time period, the FMLA claim fails under Cehrs as well. 

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In examining the employee’s ability to return to work, courts faced with a Cehrsbased motion for summary judgment in an entitlement case should consider all of 

the medical evidence bearing on the employee’s ability to timely return, not just 

the evidence available at the time of the adverse employment action. 

Edgar, 443 F.3d at 512. 

The FMLA benefit at issue in his claim is the twelve weeks of leave for “serious medical 

condition” under the Act. (Opp. at 10-11.) The “serious health condition” that Upchurch alleges 

rendered him unable to work is “late onset schizophrenia,” which allegedly manifested itself in 

the form of voices that Upchurch heard and believed to be “Him”—i.e. God or Jesus. (See Opp. 

at 10-11). Upchurch testified that he continued hearing the voices until December of 2008—

eleven months after his termination. (Pl. Dep. 94). Upchurch admitted that he was not able to 

work as a chaplain until approximately April or May of 2011—over three years after his 

termination in January of 2008. (Id. 98-99.)3

Upchurch’s own testimony establishes that he would have been incapable of returning to 

work at the end of the twelve-week FMLA leave period following his discharge from Mount 

Carmel. Under the rule in Cehrs, Mount Carmel is entitled to summary judgment on Plaintiff’s 

FMLA claim on that basis alone. See Edgar, 443 F.3d at 511. 

 

3

 Q. This may be difficult to pinpoint, but is there a time when you -- or can you identify a time 

when you believe you regained the ability to work as a chaplain? 

UPCHURCH. I would say over the last year. 

Q. Okay. So sometime during 2011? 

UPCHURCH. Yeah. 

Q. And can you be more specific in terms of when during 2011? 

A. Oh, I’d say March or April. 

Q. Was there anything that happened around that time that made you feel that you were improved 

or at a new level of achievement? 

UPCHURCH. Just lessened anxiety and my confidence in my abilities returning. 

Pl. Dep. 98:5-19. 

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3. Merits of the FMLA claim 

On the merits, Mount Carmel argues that Upchurch’s FMLA claim fails to satisfy two 

required elements even for non-willful violation: (1) he cannot establish that he gave notice of 

his intention to take leave; and (2) he cannot establish that he was entitled to leave under the 

FMLA. See Wysong, supra, 503 F.3d at 447. The merits of the FMLA claim need not be 

addressed, however, because of the statute of limitations, discussed supra, Section IV.A.1, and 

the bar to his FMLA entitlement claim under Mount Carmel’s “Cehrs” defense, discussed supra, 

Section IV.A.2. 

Even if it were necessary to reach the merits of the FMLA claim, Upchurch would have 

difficulty showing a triable issue that he gave notice of his intention to take FMLA leave, the 

third required element for his claim. See Wysong, 503 F.3d at 447; see also Brohm v. JH 

Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998) (holding, on the notice requirement, “[t]he 

critical question is whether the information imparted to the employer is sufficient to reasonably 

apprise it of the employee’s request to take time off for a serious health condition”). Plaintiff 

admits he never asked for medical leave for his mental illness: 

Q. . . . You never asked them to take a leave of absence because of a mental 

illness; is that correct? 

A. (Plaintiff). That’s correct. 

(Pl. Dep. 61.) 

B. State Law Disability Discrimination 

Upchurch claims that Mount Carmel violated Ohio’s antidiscrimination law by allegedly 

“discharging him because of a demonstrated disability.” (Compl. ¶ 33.) Upchurch claims 

unlawful discrimination by Mount Carmel for being terminated because of his mental disorder, 

subsequently diagnosed as schizophrenia by Dr. Hartman. (Pl. Dep. 87.) Mount Carmel 

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contends Upchurch’s disability discrimination claim fails as a matter of law because: (1) no 

evidence exists that Plaintiff was disabled at the time of his termination, or that Mount Carmel 

knew he was disabled; and (2) the undisputed facts show that Plaintiff was terminated for 

abandoning his job, not because of any disability. 

Ohio Rev. Code § 4112 provides that it shall be an unlawful discriminatory practice: 

(A) For any employer, because of the . . . disability . . . of any person, to discharge 

without just cause, to refuse to hire, or otherwise to discriminate against that 

person with respect to hire, tenure, terms, conditions, or privileges of 

employment, or any matter directly or indirectly related to employment. 

Ohio Rev. Code § 4112.02(A). 

To prevail on a claim of disability discrimination under Ohio law, a person must 

establish: “(1) that he was handicapped; (2) that an adverse employment action was taken by an 

employer, at least in part, because the individual was handicapped; and (3) that the person, 

though handicapped, can safely and substantially perform the essential functions of the job in 

question.” Taylor v. Ohio Dept. of Job & Family Servs., No. 11AP-385, 2011 WL 5878335, at 

*5 (Ohio Ct. App. 2011); see also Columbus Civ. Serv. Comm. v. McGlone, 697 N.E.2d 204 

(Ohio 1998). Ohio courts have held that “[t]he ADA, the Rehabilitation Act, and R.C. 4112.02 

are governed by similar standards.” Id.; see also Plumbers & Steamfitters Jt. Apprenticeship 

Comm. v. Ohio Civil Rights Comm., 66 Ohio St. 2d 192, 196 (1981). Upchurch defends his 

claim under the required elements formulated in ADA cases, which are: 

(1) []he has a disability; (2) []he was qualified for the job; and (3) []he either was 

denied a reasonable accommodation for h[is] disability or was subject to an 

adverse employment decision that was made . . . because of h[is] disability. 

Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996). For the third element of proving 

discriminatory intent, the familiar Title VII burden-shifting analysis of McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973) is applicable for showing indirect discrimination. See 

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Walker v. Consolidated Biscuit Co., 116 F.3d 1481 (6th Cir. June 26, 1997); Kocsis v. MultiCare Mgmt., Inc., 97 F.3d 876, 882 (6th Cir. 1996). 

1. Whether Mount Carmel Knew Upchurch had a Disability 

There is a genuine issue of material fact as to whether Upchurch’s mental illness 

exhibited during his employment constituted an eligible “disability.” The ADA and Ohio law 

both specifically include mental illness as a disability. 42 U.S.C. § 12102(2); Ohio Rev. Code. § 

4112.02(A)(16)(a). The ADA and applicable federal regulations “define ‘physical or mental 

impairment’ as ‘any physiological disorder, or condition’ affecting one or more of various body 

systems.” Roush, 96 F.3d at 843 (quoting 29 C.F.R. § 1630.2(h)(1)). Courts have determined 

that someone suffering psychotic episodes due to schizophrenia is a disabled person under this 

standard. See, e.g., Bultemeyer v. Ft. Wayne Community Schools, 100 F.3d 1281, 1284 (7th Cir. 

1996). 

Even though Upchurch was not formally diagnosed with schizophrenia until after being 

terminated, a jury could find on the facts of his extreme delusional and erratic behavior that the 

impairment affected him prior to diagnosis and “substantially limited at least one of his major 

life activities.” Rhoads v. Bd. of Educ. of Mad River Loc. Sch. Dist., 103 F. App’x 888, 892-93 

(6th Cir. 2004). (stating, at n.2, “‘under both federal regulations and Ohio code, a “disability” is 

an impairment, physical or mental, which substantially limits one or more of an individual’s 

major life activities, a record of such impairment, or being regarded as one having such an 

impairment’”) (quoting Ferguson v. Lear Corp., 802 N.E.2d 1141, 1148 (Ohio Ct. App. 2003)) 

(emphasis added). 

Slightly more difficult for Upchurch is the additional requirement within this element—

that Mount Carmel must have known of his disability. See id. The Sixth Circuit has held that 

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“the defendant cannot discriminate ‘because of’ a disability if it has no knowledge of the 

disability.” Kocsis, 97 F.3d at 884. Mount Carmel contends that it had no knowledge that 

Plaintiff suffered from any disability at the time of his termination. (Motion, at 19.) Mount 

Carmel points to Upchurch’s deposition testimony, where he admitted that he never informed 

anyone at Mount Carmel that he suffered from a mental illness, (Pl. Dep. 61) and that at the time 

of his termination, Upchurch did not believe that he suffered from any mental illness, and had 

not been diagnosed with any mental illness, (Pl. Dep. at 55, 59, 60, 86). 

The evidence viewed in the light most favorable to Upchurch is sufficient to create a 

triable issue that Mount Carmel knew he had a disability. Mount Carmel knew he had a mental 

health issue, which is evidenced by its placing him on administrative leave and sending him on 

an EAP referral to be evaluated by Dr. Tennenbaum. While Dr. Tennenbaum did not diagnose 

Upchurch with schizophrenia then, he did report that Upchurch had “delusional thoughts” and 

most likely a “personality disorder.” (Tennenbaum Consult, Jnt. Dep. Ex. 12, at 5.) Moreover, 

Ms. Weatherholt and Ms. Lemiesz testified that Upchurch had become a completely different 

person and had concerns for his mental well-being. (Weatherholt Tr. 65); See Kocsis, 97 F.3d at 

884 (holding, an “‘individual with a disability’ also includes persons who have impairments that 

are not substantially limiting, but who are regarded by their employer as being substantially 

limited”) (citations omitted in the original). 

2. Whether Mount Carmel’s Basis for Upchurch’s Discharge was his Disability 

Mount Carmel does not dispute that Upchurch was qualified for the position of chaplain, 

or at least that he would have been with adequate accommodation. See Taylor, 2011 WL 

5878335, at *5. Rather, Mount Carmel contends that Upchurch has failed to show any evidence 

of a causal connection between his disability and his termination for leaving work. First, Mount 

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Carmel argues that even if his behavior was a result of his mental health issues, “an employer 

may fire a person for his conduct even if that conduct is related to the employee’s disability.” 

Brohm v. JH Properties, Inc., 149 F.3d 517, 521 (6th Cir. 1998). Second, Mount Carmel argues 

no evidence in the record shows that the conduct for which Upchurch was terminated—

abandoning his work and not reporting to his supervisor—was caused by any disability. 

Mount Carmel’s asserted basis for terminating Upchurch is job abandonment based on 

his leaving his workplace on January 24, 2008 without explanation and not returning until the 

next day. Upchurch essentially argues that Mount Carmel’s basis was pretextual, (see Opp. at 

17), as Mount Carmel’s employment policy expressly prescribes that involuntary termination for 

“job abandonment” may occur after “two (2) consecutive scheduled days” of an employee’s 

absence without notifying his or her manager. (Weatherholt Tr. 58-59; Jnt Dep. Ex. 26.) 

Moreover, Ms. Weatherholt testified that had Upchurch not shown up nor called in on January 

24, 2008, and then shown up on January 25, 2008 the same as he actually did, he would not have 

been terminated for job abandonment. (Weatherholt Tr. 59) 

a. Prima facie case 

Without any direct evidence of discrimination, an ADA discrimination plaintiff must rely 

on indirect proof of discriminatory intent, as shown under the McDonnell Douglas burden 

shifting scheme. In addition to the three elements already established for Upchurch’s prima facie 

case of disability discrimination, i.e. that “(1) []he was ‘disabled’ within the meaning of the Act; 

(2) []he was qualified for the position, with or without an accommodation; [and] (3) []he suffered 

an adverse employment decision with regard to the position in question.” Kocsis, 97 F.3d at 882. 

Upchurch must also establish that: “(4) a non-disabled person replaced h[im] or was selected for 

the position that the disabled person had sought.” Id. 

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Only if the plaintiff establishes the elements for a prima facie case does the burden then 

shift to the employer to set forth a legitimate, nondiscriminatory reason for the adverse 

employment action it took against the plaintiff. See id. (citing McDonnell Douglas, 411 U.S. at 

802). Finally, “[i]f the defendant carries that burden of production, plaintiff must then prove ‘by 

a preponderance of the evidence’ that the defendant’s proffered reasons were not its true reasons, 

but were merely a pretext for illegal discrimination.” Id. (quoting Texas Dep’t of Community 

Affairs v. Burdine, 450 U.S. 248 (1981)). (adding, “[m]ore specifically, a plaintiff must produce 

enough evidence that a jury could reasonably reject the employer's explanation for its 

decisions”). 

 Mount Carmel claims Upchurch has not met the fourth element of his prima facie case, as 

he has not identified any “non-disabled” employees who engaged in similar conduct but were not 

terminated or treated more favorably than he was. Mount Carmel is correct in this contention. 

Upchurch does not point to any evidence, nor is any apparent from the record, of Mount Carmel 

treating similarly-situated chaplains more favorably. There were five other chaplains at Mount 

Carmel East hospital. (Lemiesz Tr. 18.) No allegations are made, however, that any of them 

was treated more favorably or was not terminated under similar circumstances. Nor does 

Upchurch allege any facts that he was replaced by a non-disabled person, see Kocsis, 97 F.3d at 

882 (although this is statistically likely). Upchurch cannot meet the elements for a prima facie 

case of indirect discrimination. 

b. Direct evidence of discriminatory basis for termination 

Upchurch does not make much of an attempt to prove his claim under the McDonnell 

Douglas framework, however, despite acknowledging its applicability to his Ohio law 

discrimination claim. (Opp. at 16.) Upchurch instead argues that Mount Carmel took advantage 

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of its desire to discriminate against him by unnecessarily discharging him for “job abandonment” 

rather than providing him the help and leave he needed for overcoming his disability. Instead of 

giving him the time off he requested and the chance to find out what was really wrong with him, 

argues Upchurch, Ms. Weatherholt terminated Upchurch for job abandonment. (Lemiesz Tr. 

94.) According to Upchurch, “[i]t is apparent that Weatherholt had decided that the [mental 

health] problems of a 20-year employee paled in comparison with the relief MCHS would have 

at being rid of him (and rid of ‘Him’).” (Opp. at 18.) This attitude by Mount Carmel, he claims, 

constituted disability discrimination. 

To survive summary judgment Upchurch must show a genuine issue of fact exists “that 

an adverse employment action was taken by [Mount Carmel], at least in part, because [he] was 

handicapped.” Taylor, 2011 WL 5878335 at *5. The ADA “defines discrimination to include 

‘not making reasonable accommodations to the known physical or mental limitations of an 

otherwise qualified individual with a disability.’” Talley v. Family Dollar Stores of Ohio, Inc., 

542 F.3d 1099, 1108 (6th Cir. 2008) (citing 42 U.S.C. § 12112(b)(5)(A)). Direct evidence of 

discrimination is evidence that “if believed, requires the conclusion that unlawful discrimination 

was at least a motivating factor” in the adverse employment action.” Bartlik v. United States 

Dept of Labor, 73 F.3d 100, 103 n.5 (6th Cir. 1996) (citations omitted) (emphasis added) 

(“Direct evidence of discrimination is rare because employers generally do not announce that 

they are acting on prohibited grounds.”). 

Upchurch supports his claim of Mount Carmel’s discriminatory intent with the following 

evidence: (1) Ms. Lemiesz had concluded that because of the delusions and behavior he 

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displayed, he could no longer do his job;4

 (2) Ms. Weatherholt discussed Upchurch with Dr. 

Tennenbaum and he told her in his opinion Upchurch would be out of Mount Carmel very soon, 

but “it wouldn’t be easy,” (Weatherholt Tr. 34.); (3) Ms. Weatherholt was aware, but ignored the 

diagnosis from Dr. Tennenbaum that Upchurch was “delusional” (Id. 33:11-18, 36:16-17); (4) 

Ms. Weatherholt did not tell Ms. Lemiesz Upchurch was delusional, only “manipulative.” 

(Lemiesz Tr. 104-05.); and (5) Ms. Weatherholt admits that the Mount Carmel’s “job 

abandonment” policy did not per se require her to terminate Upchurch, and that she fired him 

“because he left” in the way that he did. (Weatherholt Tr. 59-60.) 

Viewing the evidence in Upchurch’s favor, Upchurch’s supervisors knew he had a 

serious mental problem affecting his ability to continue working. A generous interpretation of 

the evidence in Upchurch’s favor suggests further that Ms. Weatherholt viewed his behavior 

resulting from his disability as “manipulative,” and she wanted to use his abandonment as an 

opportunity to get rid of Upchurch. Finally, the evidence could support the reasonable 

conclusion that Ms. Weatherholt failed to take steps following his return from administrative 

leave to accommodate his disability. But none of the facts or testimony constitutes direct 

evidence “requiring” the conclusion that his supervisors’ intent was to discharge him and/or not 

accommodate him due to his schizophrenic behavior. A discriminatory intent to not 

accommodate him is merely a reasonable inference that one might draw from the evidence. The 

Court already established, supra, that Upchurch cannot satisfy the test for indirect evidence of 

discrimination under the McDonnell Douglas scheme. 

 

4

 Ms. Lemiesz stated that Upchurch, in the condition he was in at the time, could not perform the job of chaplain. 

(Lemiesz Tr. 15-16, 96-98), and, that Upchurch suddenly “has no concept of what a professional chaplain does 

anymore, and basically operates out of a framework of what ‘He’ tells him to do.” (Id. 15-16; Jnt. Dep. Ex. 1). 

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A court could find that Upchurch has “presented sufficient evidence from which a jury 

could find that h[is] failure to return to work and eventual discharge was a foreseeable and 

intended result of the company’s action.” Talley, 542 F.3d at 1109. In Talley, the plaintiff had a 

qualifying disability requiring the accommodation of a stool, which she had requested repeatedly 

but was denied by the employer. See id. at 1108. The court found further that “[t]he defendants 

have not set forth specific facts indisputably demonstrating that the use of a stool would have 

presented an undue hardship for the company.” Id. The Sixth Circuit reversed summary 

judgment against plaintiff, reasoning, “[a]ssuming that Talley was denied a reasonable 

accommodation that forced her to work in excess of her medical restrictions, a reasonable jury 

could infer that the defendants knew that Talley’s working conditions would become intolerable 

to a reasonable person suffering from her particular disability.” Id. 

Even under Talley, however, Upchurch does not have enough evidence to support a 

“constructive discharge” claim on the theory that Mount Carmel’s actions constituted a 

foreseeable failure to accommodate. First, unlike in Talley, Upchurch did not make repeated 

requests for accommodation of a disability—he merely requested once that he be given “time 

off” because he “couldn’t do this anymore.” (Jnt. Dep. Exh. 26.) Second, unlike in Talley where 

the employer’s attempts to negotiate accommodation had broken down into a “complete failure 

to accommodate” her, see Talley, 542 F.3d at 1109, Mount Carmel had just recently taken steps 

to help Upchurch, by granting him administrative leave and referring him for psychiatric testing. 

The court in Talley tempered its holding, providing the following limits: 

We emphasize that our holding today does not pave the way for an employee to 

assert a claim for constructive discharge every time an employer fails to 

accommodate her disability. But when an employee makes a repeated request for 

an accommodation and that request is both denied and no other reasonable 

alternative is offered, a jury may conclude that the employee’s resignation was 

both intended and foreseeable. 

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Talley, 542 F.3d at 1109 (emphasis added). 

Mount Carmel’ failure to accommodate Upchurch was neither “a complete failure,” nor 

was it done “in the face of repeated requests.” See id. Having failed to make the requisite 

showing of discriminatory intent or foreseeable lack of accommodation on the part of Mount 

Carmel, and having failed to establish a prima facie case of discrimination, Upchurch’s disability 

discrimination claim fails as a matter of law. 

V. CONCLUSION 

Upchurch’s FMLA claim fails as a matter of law under 29 U.S.C. § 2617(c)’s applicable 

two-year statute of limitations. His FMLA claim also fails under the rule in Cehrs because the 

evidence establishes that Upchurch was not able to return to work at Mount Carmel after 12 

months. Finally, Upchurch’s disability discrimination claim fails, under all applicable theories 

of recovery under the ADA and Ohio law. For these reasons, Mount Carmel is entitled to 

summary judgment on all Upchurch’s remaining claims, and their motion for summary judgment 

is GRANTED. The case is hereby DISMISSED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 Algenon L. Marbley 

United States District Judge 

Dated: September 4, 2012 

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