IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD RUSH,

Plaintiff,

vs. Civil Action 2:11-CV-127

Magistrate Judge King

E.I.DuPONT DeNEMOURS

AND COMPANY,

Defendant.

OPINION AND ORDER

This is an employment action in which plaintiff alleges that

defendant violated plaintiff’s rights under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., by using FMLA-protected

leave as a factor in disciplining plaintiff and ultimately terminating

his employment and by retaliating against plaintiff for his exercise

of his rights under the FMLA. Plaintiff also asserts supplemental

state law claims of retaliation in violation of O.R.C. Chapter 4112

and violation of public policy. Plaintiff further asserts a claim of

race discrimination in contravention of O.R.C. §§ 4112.02, .99 and a

claim of intentional infliction of emotional distress. With the

consent of the parties, 28 U.S.C. § 636©, this matter is now before

the Court on Defendant’s Motion for Summary Judgment, Doc. No. 17

(“Motion for Summary Judgment”). For the reasons that follow, the

Motion for Summary Judgment is GRANTED in part and DENIED in part.

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I. BACKGROUND

A. Plaintiff’s Employment History with Defendant

On November 3, 2003, DuPont hired plaintiff, an African-American

male, as an operator earning $10.61 an hour at its Hilliard, Ohio

location. Deposition of Ronald Rush, Doc. No. 18 (“Plaintiff

Depo.”), pp. 10, 23; Exhibit 7, attached thereto; Exhibit 1,

DRR00003171, attached to Affidavit of Karen Canterbury (“Canterbury

Affidavit”), attached to Motion for Summary Judgment;2 Affidavit of

Ronald Rush, ¶ 2 (“Plaintiff Affidavit”), attached to Plaintiff’s

Memorandum in Opposition to Defendant’s Motion for Summary Judgment,

Doc. No. 22 (“Memo. in Opp.”).

In early February 2004, DuPont promoted plaintiff to the position

of production support technician with a pay increase to $12.74 per

hour. Plaintiff Depo., pp. 28-29; Exhibit 7, attached thereto. 

DuPont again promoted plaintiff in April 2006 to the position of

senior production support technician, increasing his pay rate to

$18.13 per hour. Plaintiff Depo., pp. 29, 33. 

In August 2006 and again in 2007,3 plaintiff applied for the

position of senior lab technician in DuPont’s Houston, Texas office. 

1

For ease of reference, the Court will cite to the bates numbers when

referring to specific page numbers of the exhibits, many of which are

voluminous.

2

Ms. Canterbury is the current Human Resources & Safety Heath and

Environment Supervisor for DuPont at the Hilliard, Ohio facility. Id. at ¶ 2. 

She has known plaintiff during his employment with, and separation from,

DuPont. Id. at ¶ 3. 

3

The record is unclear as to whether plaintiff applied for this position

in January 2007 or September 2007. See Canterbury Affidavit, ¶ 6 (listing a

September 2007 application date); Exhibit 1, DRR0000318, attached thereto

(listing a January 2007 application date).

2

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Plaintiff Depo., pp. 81, 83; Canterbury Affidavit, ¶ 6. DuPont did

not award this position to plaintiff on either occasion, but instead

hired a non-DuPont Hispanic applicant in 2006 and hired an AfricanAmerican applicant in 2007, both of whom already lived in Houston,

Texas. Canterbury Affidavit, ¶ 6. 

In 2007, DuPont opened, on a trial basis, the position of

Operations specialist / MiniMix for the first, second and third

shifts. Plaintiff did not initially volunteer, but later applied for

the positions when they were officially posted in June 2007. 

Canterbury Affidavit, ¶ 7. The “third shift position was posted in

error because the individual who volunteered for the position (a

Caucasian male) was currently still in the role and was successful in

that position.” Id. For the first shift position, DuPont hired a

Caucasian male with experience as a Senior Master Operator in

production and in quality control who “was a highly qualified Master

Operator who had been with the company since May 1994.” Id. at ¶ 8. 

For the second shift position, DuPont hired a Caucasian male who had

been with DuPont since November 2003 and who had out-performed

plaintiff during the interview process. Id. at ¶ 9.

Plaintiff applied for another position, FasTrac Sales

Coordinator, in June 2007. Id. at ¶ 10. DuPont hired a Caucasian

female “who had superior experience in her previous role as Production

Shift Leader” and who had superior communication skills for customer

service duties. Id.; Plaintiff Depo., p. 90.

In July 2007, plaintiff applied for yet another position, shift

leader / production supervisor. Canterbury Affidavit, ¶ 11. DuPont

filled that position with a Caucasian male “with extensive supervisory

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and lean manufacturing experience[.]” Id.

Plaintiff complained about these decisions and sought legal

counsel. Plaintiff Depo., p. 203; Canterbury Affidavit, ¶ 13. On

August 29, 2007, DuPont responded to a letter written by plaintiff,

explaining why DuPont selected other applicants for these positions. 

Canterbury Affidavit, ¶ 13; Exhibit 1, attached thereto. 

In September 2007, DuPont promoted plaintiff to production

support group leader at an hourly pay rate of $19.98. Plaintiff

Depo., pp. 37-39; Exhibit 9, attached thereto. In this capacity,

plaintiff reported directly to Greg Jacobs, current Production Support

Supervisor at the Hilliard, Ohio facility. Plaintiff Depo., pp. 38-

39; Affidavit of Gregory Jacobs (“Jacobs Affidavit”), ¶¶ 2-3, attached

to Motion for Summary Judgment. 

In February 2009, plaintiff requested a step down from his third

shift group leader position because of the stress of dealing with a

fellow employee and because of foot issues. Plaintiff Depo., pp. 64-

66, Exhibit 10, attached thereto. DuPont granted plaintiff’s request

and transferred him to second shift as a senior production technician. 

Id. Although this transfer decreased plaintiff’s hourly rate from

$20.68 to $19.70, plaintiff was confident that he could make up the

difference with overtime. Plaintiff Depo., p. 64. 

B. DuPont’s Attendance Policy

DuPont’s employee handbook (“the Handbook”) contains policies on

attendance and punctuality (“the Attendance Policy”). Plaintiff

Depo., pp. 25-26; Exhibits 3 and 5, attached thereto. The Attendance

Policy, applicable to regular full-time employees, explains the

importance of reliable attendance and warns that poor attendance and

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tardiness may result in graduated disciplinary action:

To maintain a safe and productive work

environment, DuPont Powder Coatings expects

employees to be reliable and to be punctual in

reporting for scheduled work. Absenteeism and

tardiness places a burden on other employees and

on the company. . . . Poor attendance and

excessive tardiness are disruptive to business,

and may lead to disciplinary action, up to and

including termination of employment.

Exhibit 5, at DRR0000077, attached to Plaintiff Depo. Specifically,

the Attendance Policy provides for certain disciplinary action taken

following attendance occurrences: 

One (1) occurrence: Discuss [] attendance policy

Two (2) occurrences: Note to File Status

Three (3) occurrences: Verbal Contact

Four (4) occurrences: Written Contact

Five (5) occurrences: Written Contact with Probation

Six (6) occurrences: Suspension/Termination

Id. at DRR0000079. A planned or approved absence, including FMLA

leave, is not counted as a chargeable occurrence. Id. at DRR0000078.

C. Plaintiff’s Attendance Occurrences and Progressive

Discipline

Beginning in June 2009, plaintiff experienced attendance

problems:

This is a note to file to verify that communication has

taken place between Ron Rush and his Supervisor Greg Jacobs

about his attendance. Ron has exceeded his attendance limit

by one and a half days. Occurrence (1) - 7/17/09,4

occurrence (2) 09/24/09. The next unexcused absence will be

a verbal warning.

Exhibit 21, attached to Plaintiff Depo. See also Plaintiff Depo., p.

116. Plaintiff was issued a verbal warning in October 2009 for

his third occurrence under the Attendance Policy. Plaintiff Depo.,

4

It is not clear why Mr. Jacobs refers to this date rather than June 12,

2009. See Exhibit 16, attached to Plaintiff Depo.

5

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pp. 114-15; Exhibit 16, attached thereto. 

Plaintiff was absent on December 2, 2009 through December 4,

2009, which was considered his fourth occurrence under the Attendance

Policy, and he received a written warning. Plaintiff Depo., pp. 119-

20; Exhibit 17, attached thereto. Plaintiff was advised that

“[f]urther violations will result in further disciplinary action up to

and including termination of employment.” Exhibit 17, attached to

Plaintiff Depo. Plaintiff missed two more days of work in February

2010. Exhibit 19, at DRR0000353, attached to Plaintiff Depo. Because

of these occurrences, plaintiff was suspended without pay for three

(3) days and was placed on probation for a period of one (1) year. Id.

Plaintiff was also required to develop 

an action plan to improve his performance that is

agreed upon by his supervisor by 2/19/2010. Any

further policy violations or performance issue

will result in further disciplinary action. The

first consideration will be termination of

employment. 

Id. Plaintiff and his supervisor, Mr. Jacobs, finalized plaintiff’s

“Formal Development Plan for Performance Improvement” (“the Plan”), 

id. at DRR0000354, in which plaintiff acknowledged that he has “no PTO

[paid time off] call ins available for the rest of the year 2010.” 

Id. 

D. Plaintiff Requests and Receives Intermittent FMLA Leave 

The Handbook also addresses absences in connection with FMLA

leave:

A health care provider’s statement must be submitted

verifying the need for FMLA and its beginning and expected

ending dates within 15 days. . . . Employees returning from

FMLA must submit a health care provider’s verification of

their fitness to return to work.

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Exhibit 5, at DRR0000064-DRR0000065, attached to Plaintiff Depo.

In May 2010, plaintiff requested and received intermittent FMLA

leave for depression, anxiety and other mental health issues. Id. at

148-152; Plaintiff Affidavit, ¶ 4; Exhibit 1, attached thereto;

Canterbury Affidavit, ¶ 16. Plaintiff took approximately three weeks

off in May and June 2010. Plaintiff Depo., p. 151; Plaintiff

Affidavit, ¶¶ 10-11. Plaintiff’s doctor authorized plaintiff’s leave

from late June 2010 to July 2010 because plaintiff had experienced

adverse reactions to medication. Plaintiff Depo., pp. 151-52. 

Plaintiff understood that, in order to take intermittent FMLA

leave, he was responsible for calling and advising a nurse at DuPont’s

Circleville, Ohio location and plaintiff’s supervisor in Hilliard,

Ohio. Id. at 149-51; Plaintiff Affidavit, ¶¶ 9-10. Plaintiff also

understood, and complied with, the requirement that he submit a

doctor’s note each time he returned from intermittent FMLA leave. 

Plaintiff Affidavit, ¶¶ 9-11. 

Certain paperwork also accompanied plaintiff’s request for

intermittent FMLA leave. For example, plaintiff completed and

returned a form dated May 14, 2010, requesting FMLA leave for mental

health reasons beginning May 14, 2010 with an expected return date of

June 1, 2010. Plaintiff Affidavit, ¶ 4; Exhibit 1, attached thereto. 

Plaintiff also submitted a medical certification by Janet Clark,

Ph.D., his treating psychologist, Plaintiff Affidavit, ¶¶ 5-7;

Exhibits 2 and 3, attached thereto, who diagnosed depression and who

stated that “[i]ntermittent time off work may be necessary if

depressive symptoms interfere with [plaintiff’s] ability to go to work

– no more than 4 days/month.” Exhibit 3, at DRR0000568, attached to

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Plaintiff Affidavit. Dr. Clark also noted that plaintiff would need

weekly psychotherapy for six months to one year. Id.

Plaintiff did not comply with Ms. Canterbury’s request for a

release to allow Circleville Medical Department to contact his doctor

regarding intermittent leaves of absences. Canterbury Affidavit, ¶

16; Plaintiff Depo., pp. 148-50; Exhibit 18, attached thereto. 

According to plaintiff, his doctor refused to complete this form. 

Plaintiff Depo., pp. 148-49. 

Plaintiff agrees that DuPont granted him intermittent FMLA leave

throughout the summer of 2010 and did not charge any of that leave as

an attendance occurrence. Plaintiff Depo., p. 152; Plaintiff

Affidavit, ¶¶ 8, 10-11. 

E. Events of September 2010

On September 8, 2010, plaintiff asked Mr. Jacobs for permission

to miss work on Wednesday, September 22, 2010, so that plaintiff could

attend the “Juggette” or “The Jug” horse races in Delaware, Ohio.5

Plaintiff Depo., pp. 152-54; Jacobs Affidavit, ¶ 11; Exhibit 6,

attached thereto. Because plaintiff had accrued only four hours of

vacation leave, Canterbury Aff. ¶ 19, Mr. Jacobs offered one-half day

or a split shift. Plaintiff Depo., pp. 153-54; Jacobs Affidavit, ¶

11; Exhibit 6, attached thereto. Plaintiff rejected both options,

explaining that the event involved family and “drinking.” Plaintiff

Depo., pp. 153-54.

About a week later, plaintiff asked to take a personal day on

5

The “Jug” races, which last an entire week, include “the Juggette,”

which is the preview race for the Kentucky Derby, and “the Little Brown Jug,”

which is “a big purse race” scheduled on Thursday, September 23, 2010. 

Plaintiff Depo., pp. 157-58; Jacobs Affidavit, ¶ 14.

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September 22, 2010. Id. at 154; Jacobs Affidavit, ¶ 12; Exhibit 7,

attached thereto. He followed up with a request of Mr. Jacobs and Ms.

Canterbury take the day off as an unpaid personal leave of absence. 

Plaintiff Depo., p. 154. Ms. Canterbury denied that request,

explaining that unpaid personal leave is reserved for an event that is

(1) unplanned, (2) an emergency, and (3) requires the presence of the

employee. Canterbury Affidavit, ¶ 18; Exhibit 2, attached thereto. 

See also Jacobs Affidavit, ¶ 13; Exhibit 8, attached thereto;

Plaintiff Depo., pp. 154, 211-12; Exhibit 5, at DRR000066, attached

thereto

On Thursday, September 23, 2010, i.e., the day after the day for

which plaintiff had requested leave, plaintiff called Mr. Jacobs and

DuPont Circleville Medical, requesting intermittent FMLA for that day

and the next. Plaintiff Depo., pp. 158-59; Plaintiff Affidavit, ¶¶ 12-

13; Jacobs Affidavit, ¶ 13; Exhibit 8, attached thereto. Plaintiff

testified that he had awakened that morning “feeling very depressed

and could barely force” himself out of bed and was upset and “P’d off”

about DuPont’s “attendance policies and everything else.” Plaintiff

Affidavit, ¶ 12; Plaintiff Depo., pp. 157-59. 

Michelle Grooms, a nurse at Circleville Medical who administered

DuPont’s Family Medical Leaves, called Ms. Canterbury about

plaintiff’s request. Canterbury Affidavit, ¶ 20. Ms. Canterbury then

spoke with Mr. Jacobs, id. at ¶ 21; Jacobs Affidavit, ¶ 14, who had

learned that “the Jug” horse races spanned the entire week. He and

Ms. Canterbury suspected that plaintiff was invoking FMLA leave in

order to take time off for the races. Id. Ms. Canterbury instructed

Nurse Grooms to prepare a release that would permit DuPont to

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investigate plaintiff’s FMLA usage. Canterbury Affidavit, ¶ 22.

Plaintiff’s regular scheduled shift that day was 3:00 p.m. to

11:30 p.m. Plaintiff Depo., p. 157. At about 5:00 p.m., plaintiff

went to a friend’s house to watch his friend’s two children. 

Plaintiff Depo., pp. 157, 159-60. Plaintiff took one of the children

home with him that night to babysit. Id. at 160-61. Around noon the

next day, plaintiff attended a psychotherapy session with Dr. Clark,

taking the toddler with him. Id. at 161; Plaintiff Affidavit, ¶ 13. 

Plaintiff thereafter met his friend and then went home. Plaintiff

Depo., p. 161. Plaintiff denies that he attended the horse races on

either date.

On Monday, September 27, 2010, plaintiff returned to work and

submitted a note from Dr. Clark, which apparently6 provided that

plaintiff “should be off work for 23rd and 24th of September[.]”

Plaintiff Affidavit, ¶¶ 13-14; Plaintiff Depo., pp. 161-62. Mr.

Jacobs accompanied plaintiff to Ms. Canterbury’s office. Plaintiff

Affidavit, ¶ 14; Plaintiff Depo., pp. 161-62; Canterbury Affidavit, ¶

23; Jacobs Affidavit, ¶ 15; Exhibit 9, attached thereto. Ms.

Canterbury’s informed plaintiff that DuPont was investigating his use

of FMLA leave for September 23 and 24, 2010. Plaintiff Affidavit, ¶

14; Plaintiff Depo., p. 163; Canterbury Affidavit, ¶ 23; Jacobs

Affidavit, ¶ 25; Exhibit 9, attached thereto. Plaintiff was also

notified that he could not be on DuPont premises during this process.

Plaintiff Affidavit, ¶¶ 14-15; Plaintiff Depo., p. 163; Canterbury

6

Because neither party has provided a copy of Dr. Clark’s note, the

Court relies on plaintiff’s response to defense counsel’s characterization of

Dr. Clark’s note. See Plaintiff Depo., p. 162.

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Affidavit, ¶ 23; Jacobs Affidavit, ¶ 15; Exhibit 9, attached thereto. 

According to plaintiff, he was asked to leave three times. Plaintiff

Depo., pp. 164-65, 167. 

Plaintiff became angry. Plaintiff Affidavit, ¶ 16; Plaintiff

Depo., pp. 163-64; Canterbury Affidavit, ¶¶ 23-24; Exhibit 3, attached

thereto; Jacobs Affidavit, ¶ 15; Exhibit 9, attached thereto. He left

Ms. Canterbury’s office saying something to the effect of, “Forget

this. I’m out of here. Heck with DuPont.” Plaintiff Affidavit, ¶

16; Plaintiff Depo., pp. 163-65; Canterbury Affidavit, ¶ 23; Exhibit

3, attached thereto; Jacobs Affidavit, ¶ 15; Exhibit 9, attached

thereto. Ms. Canterbury asked plaintiff to return to her office and

to clarify what he meant, but plaintiff kept on walking. Plaintiff

Depo., p. 165; Canterbury Affidavit, ¶ 23; Jacobs Affidavit, ¶ 15;

Exhibit 9, attached thereto. Mr. Jacobs, following plaintiff, asked

plaintiff to stop because he needed to convey more information to

plaintiff. Plaintiff Depo., p. 163; Canterbury Affidavit, ¶ 24;

Jacobs Affidavit, ¶ 15; Exhibit 9, attached thereto. Plaintiff

responded, “Back off. Don’t want to talk to you. See you in court,”

exited the building and drove away. Plaintiff Affidavit, ¶ 16;

Plaintiff Depo., p. 163; Jacobs Affidavit, ¶ 15; Exhibit 9, attached

thereto. Plaintiff exited the building and left DePont’s premises. 

Ms. Canterbury characterized plaintiff’s actions and comments as

“insubordination, failure to cooperate with an investigation and a

resignation from employment.” Canterbury Affidavit, ¶ 26. 

The next day, plaintiff called Ms. Canterbury to ask about his

status and when he could return to work. Plaintiff Affidavit, ¶ 17;

Plaintiff Depo., pp. 163-64, 169; Canterbury Affidavit, ¶ 27; Exhibit

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4, attached thereto. Ms. Canterbury responded that “DuPont likely

considered his conduct a resignation.” Plaintiff Affidavit, ¶ 17;

Plaintiff Depo., pp. 163-66, 169; Canterbury Affidavit, ¶ 27; Exhibit

4, attached thereto. Plaintiff denied that he had resigned. 

Plaintiff Affidavit, ¶ 17; Plaintiff Depo., p. 164. When plaintiff

again called the next day, Ms. Canterbury advised that “DuPont

accepted his resignation and [she] informed him that [she] sent him a

letter to that effect. He did not ask for his job back or if he could

reapply.” Canterbury Affidavit, ¶ 28; Exhibit 5, attached thereto.

II. STANDARD

The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

which provides in pertinent part:

The court shall grant summary judgment if the

movant shows 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). In making this determination, 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 (1970). 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 non-moving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986). However, summary judgment is appropriate if the

opposing party fails to make a showing sufficient to establish the

existence of an element essential to that party’s case and on which

that party will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla

of evidence in support of the opposing party’s position will be

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insufficient; there must be evidence on which the jury could

reasonably find for the opposing party. Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial

responsibility of informing the district court of the basis for its

motion, and identifying those portions of the record which demonstrate

the absence of a genuine issue of material fact. Catrett, 477 U.S. at

323. Once the moving party has met its initial burden, the burden

then shifts to the nonmoving party who “must set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S.

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino

Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party

must present evidence that creates a genuine issue of material fact

making it necessary to resolve the difference at trial”). “Once the

burden of production has so shifted, the party opposing summary

judgment cannot rest on the pleadings or merely reassert the previous

allegations. It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’” Glover v. Speedway

Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003)(citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986)). Instead, the non-moving party must support the assertion

that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). 

In ruling on a motion for summary judgment “[a] district court is

not ... obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party’s claim.” 

Glover, 284 F. Supp.2d at 862 (citing Antheral Corp. v. Slopseller,

889 F.2d 108, 111 (6th Cir. 1989)). Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists

on a particular issue, only upon those portions of the verified

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pleadings, depositions, answers to interrogatories and admissions on

file, together with any affidavits submitted, specifically called to

its attention by the parties.” Id. See also Fed. R. Civ. P. 56(c)(3).

Defendant has moved for summary judgment on all five of

plaintiff’s claims: (1) FMLA interference (Count I), (2) FMLA

retaliation (Count II), (3) retaliation pursuant to Ohio Rev. Code

4112 (Count III), (4) race discrimination pursuant to Ohio Rev. Code

4112.02 and 4112.99 (Count IV), and (5) intentional infliction of

emotional distress (Count V). Plaintiff opposes the Motion for

Summary Judgment only as to the claims regarding FMLA interference and

FMLA retaliation (Counts I and II), and does not specifically address

defendant’s arguments regarding his other three claims. See Memo. in

Opp. The Court shall address each claim in turn.

III. FMLA INTERFERENCE (Count I)

Plaintiff alleges that defendant “interfer[ed] with Plaintiff’s

FMLA rights by using FMLA-protected leave time as a factor in

disciplining and ultimately terminating Plaintiff’s employment.” 

Complaint, ¶ 31. The United States Court of Appeals for the Sixth

Circuit “recognizes two distinct theories for recovery under the FMLA:

(1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C.

§ 2615(a)(1); and (2) the ‘retaliation’ or ‘discrimination’ theory

arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of Am. Mfg.,

Inc., 384 F.3d 238, 244 (6th Cir. 2004). The interference theory

makes it “unlawful for any employer to interfere with, restrain, or

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

this subchapter.” 29 U.S.C. § 2615(a)(1). 

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In the absence of direct evidence, the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

applies to interference claims under the FMLA. See, e.g., Donald v.

Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Under that framework,

the plaintiff must first establish a prima facie case before the

burden shifts to the employer to articulate a legitimate

nondiscriminatory reason for the adverse employment action. See,

e.g., Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309, 315

(6th Cir. 2001). If the employer carries this burden, the plaintiff

must then show that this nondiscriminatory reason was in fact

pretextual. Id. 

To establish a prima facie case of FMLA interference, a plaintiff

must show that:

(1) []he was an eligible employee; (2) the defendant was an

employer as defined under the FMLA; (3) the employee was

entitled to leave under the FMLA; (4) the employee gave the

employer notice of h[is] intention to take leave; and (5)

the employer denied the employee FMLA benefits to which []he

was entitled.

Id. (quoting Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556

(6th Cir. 2006)). The plaintiff bears the burden of establishing each

of these elements by a preponderance of the evidence. Wysong v. Dow

Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007).

An employee does not enjoy an absolute right to non-interference

with medical leave. Arban v. West Publ’g Corp., 345 F.3d 390, 401

(6th Cir. 2003). “[I]nterference with an employee’s FMLA rights does

not constitute a violation if the employer has a legitimate reason

unrelated to the exercise of FMLA rights for engaging in the conduct.” 

Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (citing

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Arban, 345 F.3d at 401). If the employer provides a legitimate reason

unrelated to the exercise of FMLA rights for terminating the

employee’s employment, the employee must “rebut the employer’s reason

by showing that the proffered reason had no basis in fact, did not

motivate the termination, or was insufficient to warrant the

termination.” Donald, 667 F.3d at 762. Finally, because “the FMLA is

not a strict-liability statute,” Edgar, 443 F.3d at 507, “the mere

occurrence of interference with an employee’s FMLA rights is not a per

se FMLA violation.” Verkade v. United States Postal Serv., No.

09-1268, 378 F. App’x 567, 575 (6th Cir. May 27, 2010) (internal

quotation marks omitted). 

In moving for summary judgment on plaintiff’s FMLA interference

claim, defendant does not dispute that plaintiff is an “eligible

employee,” that DuPont is an “employer,” or that plaintiff gave DuPont

notice of his intention to take leave. Motion for Summary Judgment,

p. 8. Instead, defendant argues that plaintiff cannot establish a

prima facie showing because he cannot establish that (1) plaintiff was

entitled to FMLA leave, or that (2) DuPont denied plaintiff FMLA

leave. Id. at 8-10.7

A. Whether Plaintiff Was Entitled to Take FMLA Leave

1. Standard

7

Although defendant specifically argued in the Motion for Summary

Judgment only that plaintiff cannot establish a prima facie case because he

cannot prove these two elements, defendant suggests in its Reply that

plaintiff was not an “eligible employee.” Reply, p. 2. However, that

argument appears to relate only to defendant’s argument that plaintiff was not

entitled to FMLA leave. Id. The Court will assume that plaintiff was an

“eligible employee” and will address only the two arguments raised in the

Motion for Summary Judgment, i.e., whether plaintiff was entitled to leave and

whether DuPont denied him leave.

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An employee is entitled to take FMLA leave if he 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). A “serious health condition” is “an illness, injury,

impairment, or physical or mental condition that involves. . .

continuing treatment by a health care provider.” 29 U.S.C. §

2611(11)(B). The applicable FMLA regulations provide that a “serious

health condition” involving continuing treatment by a health care

provider “includes . . . [a]ny period of incapacity or treatment for

such incapacity due to a chronic serious health condition.”8 29 C.F.R.

§ 825.115©.9 See also 29 C.F.R. § 825.123(a) (“An employee who must be

absent from work to receive medical treatment for a serious health

condition is considered to be unable to perform the essential

functions of the position during the absence for treatment”). Summary

judgment is appropriate if a plaintiff cannot establish incapacity. 

See, e.g., Taylor v. Autozoners, LLC, 706 F. Supp. 2d 843, 850 (W.D.

Tenn. 2010).

The regulations define “incapacity” as the “inability to work,

8

The regulations define a “chronic serious health condition” as one that

(1) Requires periodic visits (defined as at least twice a year)

for treatment by a health care provider, or by a nurse under

direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring

episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of

incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c). 

9

Unless noted otherwise, the current regulation was also in effect

during the relevant time period.

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attend school or perform other regular daily activities due to the

serious health condition, treatment therefor, or recovery therefrom.” 

29 C.F.R. § 825.113(b). See also Alston v. Sofa Express, Inc., No.

2:06-cv-0491, 2007 U.S. Dist. LEXIS 79719, at *8 (S.D. Ohio Oct. 19,

2007) (quoting Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D.

Ohio 1997)) (stating, inter alia, that incapacity “does not mean that,

in the employee’s own judgment, he or she should not work, or even

that it was uncomfortable or inconvenient for the employee to have to

work”). Although the Sixth Circuit has not specifically addressed

what evidence supports a finding of incapacity, some district courts

considering the issue have concluded that the FMLA requires a

healthcare provider’s determination of incapacity. See, e.g., Kinds

v. Ohio Bell Tel. Co., No. 1:10CV01596, 2012 U.S. Dist. LEXIS 105507,

at *14 (N.D. Ohio July 30, 2012) (“This determination [of incapacity]

must be ‘based on the medical provider’s assessment of the claimed

condition.’ It is not enough that the employee is ‘uncomfortable’

doing work; it must be that the employee cannot work because of the

illness.’”) (citing Olsen, 979 F. Supp. at 1166) (internal citations

omitted); Linebarger v. Honda of America Mfg., No. 2:10-cv-176, 2012

U.S. Dist. LEXIS 64229, at *24 (S.D. Ohio May 8, 2012) (stating that

incapacity under the FMLA “means that a ‘health care provider’ ‘has

determined that, in his or her professional medical judgment, the

employee cannot work (or could not have worked) because of the

illness.’”) (quoting Alston, 2007 U.S. Dist. LEXIS 79719, at *8); 

Neal v. Ingram Book Group, Inc., No. 3:10-cv-00943, 2011 U.S. Dist.

LEXIS 135048, at *7 (M.D. Tenn. Nov. 21, 2011) (citing, inter alia,

Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn.

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1995)). Cf. Kleinser v. Bay Park Cmty. Hosp., 793 F. Supp. 2d 1039,

1044 (N.D. Ohio 2011) (“The contours of an asserted entitlement to

intermittent leave are necessarily determined by medical documentation

from the employee’s doctor identifying the impact an injury or illness

has on the employee’s ability to perform her job’s functions.”)

(citing 29 C.F.R. § 825.202(b)). Regardless of the type of evidence

required, however, district courts in this circuit apparently agree

that “incapacity” means “inability to work.” Taylor, 706 F. Supp. 2nd

at 851 (collecting cases). 

This case involves intermittent FMLA leave. Under the FMLA, an

employee who has “a serious health condition that makes the employee

unable to perform the functions of” that employee’s position, 29

U.S.C. § 2612(a)(1)(D), may be entitled to FMLA leave “intermittently

or on a reduced leave schedule when medically necessary.” 29 U.S.C. §

2612(b). See also Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81, 86 (2002) (“FMLA leave must be granted, when medically necessary,

on an intermittent . . . basis.”) (citation omitted). In all events,

however, there must be a medical necessity for intermittent leave:

For intermittent leave or leave on a reduced leave schedule

taken because of one’s own serious health condition . . .

there must be a medical need for leave and it must be that

such medical need can be best accommodated through an

intermittent or reduced leave schedule. The treatment

regimen and other information described in the certification

of a serious health condition and in the certification of a

serious injury or illness, if required by the employer,

addresses the medical necessity of intermittent leave or

leave on a reduced leave schedule. 

29 C.F.R. § 825.202(b). See also 29 C.F.R. § 825.800 (“Examples of

intermittent leave would include leave taken on an occasional basis

for medical appointments, or leave taken several days at a time spread

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over a period of six months, such as for chemotherapy.”). In

addition, under some circumstances, an employee may take intermittent

leave even if the employee does not receive treatment:

Intermittent or reduced schedule leave may be taken for

absences where the employee . . . is incapacitated or unable

to perform the essential functions of the position because

of a chronic serious health condition or a serious injury or

illness of a covered servicemember, even if he or she does

not receive treatment by a health care provider. See §§

825.113 and 825.127.

29 C.F.R. § 825.202(b)(2). “[T]he simple act of returning to work

itself does not terminate a period of intermittent leave[.]” Davis v.

Mich. Bell Tel. Co., 543 F.3d 345, 351 (6th Cir. 2008). 

2. Application

As discussed supra, plaintiff submitted to defendant in May 2010

Dr. Clark’s certification diagnosing plaintiff with depression. 

Exhibit 3, at DRR0000568, attached to Plaintiff Affidavit (“initial

certification”). Dr. Clark specifically noted that “[i]ntermittent

time off work may be necessary if depressive symptoms interfere with

[plaintiff’s] ability to go to work – no more than 4 days/month” and

that the probable duration of this condition was unknown. Id. 

Defendant argues that this initial certification for intermittent

FMLA leave is insufficient to prove that plaintiff was unable to

perform the functions of his job because of a serious health condition

on September 23 and 24, 2010. Motion for Summary Judgment, pp. 8-9

(citing, inter alia, Palmer v. Cacioppo, No. 09-3924, 429 Fed. App’x

491 (6th Cir. June 28, 2011); 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. §§

825.112(a), 825.113(a), 825.115©). In making this argument, defendant

takes the position that plaintiff’s own testimony establishes that he

was not incapacitated on those dates. Id. Plaintiff, however,

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contends that he was entitled to intermittent FMLA leave on these two

days because (1) he was granted, based on the initial certification,

intermittent FMLA leave through 2010, and (2) on September 27, 2010,

plaintiff presented a note from Dr. Clark certifying that plaintiff’s

absence on September 23 and 24 was a consequence of his serious health

condition. Memo. in Opp., pp. 6-10 (citing Davis v. Chicago Bell Tel.

Co., 543 F.3d 345 (6th Cir. 2008)). Defendant disagrees in its reply,

contending that plaintiff’s initial certification did not grant a

“free pass for twelve months to take leave regardless of his true

condition[,]” and insisting that the evidence establishes that

plaintiff was not incapacitated on September 23 and 24. Reply, pp. 1-

2. 

Here, there is evidence that, on September 23 and 24, 2010,

plaintiff was suffering from and was treated for depression – the

condition for which plaintiff was granted intermittent FMLA leave. 

Plaintiff testified that he was depressed on the morning of September

23 and that he had difficulty getting out of bed. As he had done in

the past when taking intermittent FMLA leave for depression, plaintiff

telephoned Mr. Jacobs and Nurse Grooms to alert them that he would not

report to work. Plaintiff also attended a psychotherapy session with

Dr. Clark on September 24 and Dr. Clark confirmed in a note that

plaintiff’s absence from work on September 23 and 24 related to his

diagnosed medical condition. When plaintiff returned to work on

September 27, he presented Dr. Clark’s note, just as he had done on

prior occasions when he took intermittent FMLA leave. 

Viewing the evidence in the light most favorable to

plaintiff, the Court concludes that there remains a genuine issue of

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material fact as to whether plaintiff was entitled to take

intermittent FMLA leave on September 23 and 24, 2010.

B. Whether Defendant Denied FMLA Leave

Defendant also argues that, even if plaintiff was entitled to

FMLA leave, he nevertheless cannot establish a prima facie case of

FMLA interference because DuPont did not deny plaintiff that FMLA

leave. See Donald, 667 F.3d at 762 (identifying the fifth element of

a prima facie case as “‘the employer denied the employee FMLA benefits

to which []he was entitled’”); Wysong. 503 F.3d at 446-47. More

specifically, defendant argues that DuPont “never reached a conclusion

denying” leave on September 23 and 24, 2010; rather, defendant

contends, the record establishes that defendant merely intended to

investigate plaintiff’s requested leave on those dates. Motion for

Summary Judgment, p. 10. Plaintiff takes the position that DuPont

“should have freely granted” his request for intermittent FMLA leave

on these days, just as it had previously done, because plaintiff

followed the same procedure requesting such leave. Memo. in Opp., pp.

10-11. Plaintiff argues that there was no reason for DuPont “to reach

a conclusion” as to whether to approve or deny intermittent leave in

September 2010 because DuPont had already approved intermittent leave

in May 2010. Id. Indeed, plaintiff argues that his intermittent FMLA

leave in September 2010 “was already approved” when he returned to

work on September 27, 2010. Id. at 11. In reply, defendant contends

that it did not deny leave because it “is undisputed that DuPont

wanted to investigate the true reasons for Plaintiff’s request [for

leave on September 23 and 24] and therefore, had not made a final

decision regarding his leave.” Reply, pp. 2-3 (citing, inter alia, 29

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C.F.R. 825.308(c)(3)).10 

Plaintiff appears to argue that DuPont’s decision to investigate

the propriety of his September leave, in light of its prior approval

of intermittent leave, is equivalent to a denial of FMLA leave. See

Memo. in Opp., pp. 10-11. However, plaintiff offers no legal support

for this position. Id. Moreover, although the United States Court of

Appeals for the Sixth Circuit has cast the fifth element of the prima

facie case of interference “as being that the employer has ‘somehow

used the leave against [the employee] and in an unlawful manner, as

provided in either the statute or regulations[,]’” Wysong, 503 F.3d

at 446-47 (quoting Bradley v. Mary Rutan Hosp., 322 F. Supp. 2d 926,

940 (S.D. Ohio 2004)), there is no evidence of such conduct in this

case. Indeed, “‘[n]othing in the FMLA prevents employers from

ensuring that employees who are on leave from work do not abuse their

leave.’” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 281 (6th

Cir. 2012) (quoting Allen v. Butler County Comm’rs, 331 F. App’x 389,

at *395 (6th Cir. 2009). “Fraud and dishonesty constitute lawful,

non-retaliatory bases for termination.” Id. Accordingly, 

nothing in the FMLA prohibits an employer from investigating

allegations of dishonesty or from terminating an employee

who violates company policies governing dishonesty. The

FMLA does not shield an employee from termination simply

because the alleged misconduct concerns use of FMLA leave.

Kitts v. Gen. Tel. N., Inc., No. 2:04-CV-173, 2005 U.S. Dist. LEXIS

20421, 2005 WL 2277438, at *11 (S.D. Ohio. Sept. 19, 2005). Cf. Novak

10The Court presumes that defendant’s reference to 29 C.F.R. §

835.308(c)(3)is a typographical error and that defendant intended to refer to 

29 C.F.R. § 825.308(c)(3), which addresses recertifications for leave taken

because of an employee’s serious health condition or of the serious health

condition of a family member. 

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v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir. 2007) (“[A]n

employer that foregoes its right to a second medical opinion is not

thereafter precluded from contesting the validity of any employee’s

serious health condition.”); Brock v. Honda of Am. Mfg., No.

2:06-cv-257, 2007 U.S. Dist. LEXIS 92028, at *16 (S.D. Ohio Dec. 14,

2007) (“Moreover, a Plaintiff is ‘not shielded from disciplinary

action for [] dishonesty simply because it concerned an

FMLA-qualifying leave.’”) (quoting Kitts, 2005 U.S. Dist. LEXIS 20421,

at *37). Plaintiff has not shown that a decision to investigate is

tantamount to a denial of FMLA benefits or is otherwise unlawful. 

Defendant also apparently interprets plaintiff’s argument

relating to the investigation as challenging DuPont’s right to request

recertification in September after receiving the initial certification

from Dr. Clark in May 2010. See Reply, p. 3. Under the FMLA, “[a]n

employer may require that a request for leave . . . be supported by a

certification issued by the health care provider of the eligible

employee[.]” 29 U.S.C. § 2613(a). After the initial certification,

an “employer may require that the eligible employee obtain subsequent

recertifications on a reasonable basis.” 29 U.S.C. § 2613(e). See

also 29 C.F.R. § 825.308. “If the medical certification indicates

that the minimum duration of the condition is more than 30 days, an

employer must wait until that minimum duration expires before

requesting a recertification[.]” 29 C.F.R. § 825.308(b). However,

“[i]n all cases, an employer may request a recertification of a

medical condition every six months in connection with an absence by

the employee.” Id. The FMLA therefore permits an employer to request

recertification every six months in connection with an absence even if

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the initial certification indicates a need for intermittent leave in

excess of six months.

Under some circumstances, an employer may request recertification

in fewer than 30 days. 29 C.F.R. § 825.308(b). In particular, an

employer may request recertification if “[t]he employer receives

information that casts doubt upon the employee’s stated reason for the

absence or the continuing validity of the certification.” 29 C.F.R. §

825.308©. 

In the case sub judice, Dr. Clark’s May 2010 initial

certification indicated that the probable duration of plaintiff’s

depression was “unknown @ this time.” Exhibit 3, at DRR0000568,

attached to Plaintiff Affidavit. Defendant apparently interprets this

as a duration lasting more than 30 days. Cf. Reply, p. 3 (invoking 29

C.F.R. § 825.308(c)(3)). Under that circumstance, DuPont could

properly seek recertification only after the lapse of six months

unless, e.g., DuPont received information that cast doubt on

plaintiff’s stated reason for his absence on September 23 and 24,

2010. See 29 C.F.R. § 825.308(b), (c)(3). 

Here, plaintiff had claimed FMLA leave on September 23, shortly

after he had requested and been denied permission to take vacation on

the day before in order to attend horse races that, DuPont’s agents

learned, lasted the entire week. Under these circumstances, DuPont

was justified in seeking recertification in September 2010. See 29

C.F.R. § 825.308(c)(3).

In short, regardless of how plaintiff’s arguments on this issue

are construed, he has not shown that DuPont denied him FMLA leave or

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otherwise used FMLA leave in an unlawful manner. Plaintiff has

therefore not established a prima facie case of interference with his

FMLA rights. Accordingly, defendant is entitled to summary judgment

on this claim.11 

IV. FMLA RETALIATION (Count II)

Plaintiff also claims that defendant retaliated against him “by

terminating his employment due to Plaintiff’s requests for, and use

of, FMLA leave time.” Complaint, ¶ 38.12 The FMLA prohibits an

employer from “discharg[ing] or in any other manner discriminat[ing]

against any individual for opposing any practice made unlawful by this

subchapter.” 29 U.S.C. § 2615(a)(2). 

In the absence of direct evidence, the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, also

applies to FMLA retaliation claims. See, e.g., Donald, 667 F.3d at

762. Defendant argues that plaintiff cannot establish a prima facie

case of FMLA retaliation and that, in any event, his claim must fail

because DuPont had an honest belief that plaintiff was abusing his

FMLA leave. The Court shall address each argument in turn.

A. Prima Facie Case

To establish a prima facie case of retaliation under the FMLA, a

plaintiff must establish that:

(1) []he was engaged in an activity protected by the FMLA;

11In so concluding, the Court need not address defendant’s assertion of

an honest belief as it relates to plaintiff’s interference claim. See Motion

for Summary Judgment, p. 10 (citing Reinwald v. Huntington Nat’l Bank, 684 F.

Supp. 2d 975, 984 (S.D. Ohio 2010)). The Court will, however, address this

contention in connection with plaintiff’s retaliation claim. 

12There appears to be no dispute that the FMLA leave at issue in this

case is the leave taken only on September 23 and 24, 2010.

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(2) the employer knew that []he was exercising h[is] rights

under the FMLA; (3) after learning of the employee’s

exercise of FMLA rights, the employer took an employment

action adverse to h[im]; and (4) there was a causal

connection between the protected FMLA activity and the

adverse employment action.

Donald, 667 F.3d at 761 (quoting Killian v. Yorozu Auto. Tenn., Inc.,

454 F.3d 549, 556 (6th Cir. 2006)). “‘The burden of proof at the

prima facie stage is minimal[.]’” Seeger v. Cincinnati Bell Tel. Co.,

681 F.3d 274, 283 (6th Cir. 2012) (quoting Dixon v. Gonzales, 481 F.3d

324, 333 (6th Cir. 2007)). See also Bryson v. Regis Corp., 498 F.3d

561, 571 (6th Cir. 2007) (“As an initial matter, ‘[a] plaintiff's

burden in establishing a prima facie case is not intended to be an

onerous one.’”) (quoting Skrjanc v. Great Lakes Power Serv. Co., 272

F.3d 309, 315 (6th Cir. 2001)). 

In moving for summary judgment on this claim, defendant contends

that plaintiff cannot establish a prima facie case because (1) he

suffered no adverse action, and (2) there is no causal connection

between DuPont’s actions and any protected activity. Motion for

Summary Judgment, p. 10.13 Even if plaintiff could establish a prima

facie case, DuPont argues that plaintiff’s claim nevertheless fails

because DuPont had an honest belief that plaintiff abused his FMLA

leave. Id. at 10-11. The Court will address each of these arguments

13Defendant also argues that plaintiff cannot establish a prima facie

case of retaliation because he cannot show that he was entitled to FMLA leave. 

Id. at 10. However, defendant misstates the elements of a prima facie case of

retaliation. See Motion for Summary Judgment, p. 10 (citing Edgar v. JAC

Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (listing the requirements of a

prima facie case of FMLA interference, which requires a showing that, inter

alia, the employee was entitled to FMLA leave)); Donald, 667 F.3d at 761

(setting forth the different elements comprising an interference claim and a

retaliation claim under the FMLA). Accordingly, the Court will not address

the issue of entitlement in its consideration of plaintiff’s retaliation

claim.

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in turn.

1. Adverse Action

“An adverse employment action is a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Burlington Indus.

v. Ellerth, 524 U.S. 742, 761 (1998). Generally, a plaintiff does not

suffer an adverse action where he voluntarily resigns. Woodmore v.

Farmington Hills Police Dep’t, No. 09-12967, 2011 U.S. Dist. LEXIS

57627, at *9 (E.D. Mich. May 31, 2011) (citing Sims-Eiland v. Detroit

Bd. of Ed., 173 F. Supp. 2d 682, 689 (E.D. Mich. 2001)). 

Here, plaintiff alleges that defendant retaliated against him “by

terminating his employment due to Plaintiff’s requests for, and use

of, FMLA leave time.” Complaint, ¶ 38. Defendant contends that there

was no “adverse action” and denies that it terminated plaintiff’s

employment because DuPont reasonably interpreted plaintiff’s actions

on September 27, 2010 as a resignation. Motion for Summary Judgment,

p. 11; Reply, pp. 3-4. More specifically, defendant contends that,

when he was asked to leave DuPont’s premises pending an investigation

into his FMLA, plaintiff’s statements such as, “Forget this. I’m out

of here. Heck with DuPont” and “Back off. Don’t want to talk to you. 

See you in court” support DuPont’s conclusion that plaintiff had

resigned his employment. Motion for Summary Judgment, p. 11 (quoting

Plaintiff Depo., pp. 163-65; Jacobs Affidavit, ¶ 15). Plaintiff

disagrees with defendant’s characterization, arguing that DuPont fired

him and pointing to other evidence that undermines DuPont’s position

that plaintiff resigned. Memo. in Opp., pp. 12-13. 

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Plaintiff’s arguments are well-taken. As discussed supra, the

plaintiff’s burden at this stage is minimal. Seeger, 681 F.3d at 283;

Bryson, 498 F.3d at 571. Here, the evidence reflects a genuine issue

of material fact as to whether plaintiff resigned or was terminated. 

For example, although plaintiff told Ms. Canterbury, “Forget this. 

I’m out of here. Heck with DuPont” and left the premises, there is

also evidence that she directed plaintiff to leave DuPont’s premises

pending the FMLA investigation. See, e.g., Plaintiff Depo., pp. 164-

65. Moreover, although plaintiff also told Mr. Jacobs “See you in

court,” there is evidence that plaintiff had, on a prior occasion and

without resigning his employment, utilized the services of an attorney

in his dealings with DuPont. See Plaintiff Depo., p. 203; Canterbury

Affidavit, ¶ 13 and Exhibit 1, attached thereto. Furthermore,

plaintiff’s conversations with Ms. Canterbury in the ensuing days

could be construed as inconsistent with a resignation. See, e.g.,

Plaintiff Affidavit, ¶ 17; Plaintiff Depo., pp. 163-64; Exhibit 4,

attached to Canterbury Affidavit. The Court concludes that plaintiff

has met his minimal burden of showing a genuine issue of material fact

as to whether he suffered an adverse action, namely, the termination

of employment. 

2. Causal Connection

Defendant also argues that plaintiff cannot establish a causal

connection between his September FMLA leave and the alleged adverse

action. Motion for Summary Judgment, pp. 11-12; Reply, p. 4. Again,

“‘[t]he burden of proof at the prima facie stage is minimal; all the

plaintiff must do is put forth some credible evidence that enables the

court to deduce that there is a causal connection between the

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retaliatory action and the protected activity.’” Seeger, 681 F.3d at

283 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)). 

“‘[I]n certain distinct cases where the temporal proximity between the

protected activity and the adverse employment action is acutely near

in time, that close proximity is deemed indirect evidence such as to

permit an inference of retaliation to arise.’” Id. at 283-84 (quoting

DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004)). See also

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)

(“Where 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 establishing a prima facie case

of retaliation.”).

Here, plaintiff took FMLA leave on September 23 and 24 and the

claimed adverse action, termination of employment, occurred on

September 27. Under binding Sixth Circuit authority, this temporal

proximity is sufficient to establish a causal connection. See, e.g.,

Seeger, 681 F.3d at 283.

B. Legitimate, Nondiscriminatory Reason, Pretext and Honest

Belief

Defendant argues that plaintiff’s retaliation claim nevertheless

fails because DuPont has articulated legitimate, nondiscriminatory

reasons supporting a termination of plaintiff’s employment: (1) its

honest belief that plaintiff had abused his FMLA leave and (2)

plaintiff’s “blatant insubordination.” Motion for Summary Judgment,

pp. 12, 14, 16. This articulation satisfies DuPont’s burden at this

stage. Accordingly, the burden now shifts to plaintiff to show that

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these articulated reasons are in fact pretextual. Skrjanc v. Great

Lakes Power Service Company, 272 F.3d at 315. 

1. Honest belief

An inference of pretext is unwarranted where an employer has an

honest belief in its proffered reason. Seeger, 681 F.3d at 285 

(quoting Joostberns v. United Parcel Servs., Inc., No. 04-2370, 166 F.

App’x 783, 794 (6th Cir. Jan. 9, 2006)). Under the honest belief

rule, “as long as an employer has an honest belief in its proffered

nondiscriminatory reason for discharging an employee, the employee

cannot establish that the reason was pretextual simply because it is

ultimately shown to be incorrect.” Majewski v. Automatic Data

Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v.

Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). However, “[a]n

employer’s invocation of the honest belief rule does not automatically

shield it, because the employee must be afforded the opportunity to

produce evidence to the contrary, such as an error on the part of the

employer that is ‘too obvious to be unintentional.’” Seeger, 681 F.3d

at 286 (quoting Smith, 155 F.3d at 807). 

“[I]n order for an employer’s proffered non-discriminatory basis

for its employment action to be considered honestly held, the employer

must be able to establish its reasonable reliance on the

particularized facts that were before it at the time the decision was

made.” Smith, 155 F.3d at 807. In determining whether an employer

has met this standard, courts “do not require that the decisional

process used by the employer be optimal or that it left no stone

unturned.” Id. Instead, “the key inquiry is whether the employer

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made a reasonably informed and considered decision before taking an

adverse employment action.” Id. 

In order to prevail on this argument, DuPont must have made “a

reasonably informed and considered decision” before terminating

plaintiff’s employment based on an honest belief that plaintiff had

abused FMLA leave. Smith, 155 F.3d at 807. Defendant identifies

several facts underlying its claimed honest belief. Motion for

Summary Judgment, pp. 12-13. First, DuPont points to plaintiff’s

history of attendance problems for which progressive discipline had

been imposed. See Plaintiff Depo., pp. 113-16, 119-22; Exhibits 15-

17, 19, 21, attached thereto. Second, plaintiff repeatedly asked Mr.

Jacobs and Ms. Canterbury for time off so that he could attend horse

races on September 22, 2010. See Plaintiff Depo., pp. 152-54; Jacobs

Affidavit, ¶¶ 11-13, and Exhibits 6 - 8, attached thereto; Canterbury

Affidavit, ¶¶ 18-19. Third, plaintiff denied Mr. Jacobs’s offer to

work a split shift on September 22 because the horse races were a

“family event” that involved drinking. Plaintiff Depo., pp. 153-54;

Exhibit 6, attached to Jacobs Affidavit. Fourth, plaintiff had not

accrued enough vacation time for a full day off of work. Plaintiff

Depo., pp. 153-54; Jacobs Affidavit, ¶¶ 12-13 and Exhibits 7-8,

attached thereto; Canterbury Affidavit, ¶¶ 18-19, 21. Fifth, after

having been denied vacation or personal leave September 22, plaintiff

invoked FMLA leave on September 23. Plaintiff Depo., pp. 158-59;

Jacobs Affidavit, ¶ 13 and Exhibit 8, attached thereto; Canterbury

Affidavit, ¶¶ 20-21. Finally, DuPont learned that the horse racing

event that plaintiff wanted to attend lasted the entire week. Jacobs

Affidavit, ¶ 14. 

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However, plaintiff points to other evidence that calls into

question defendant’s professed reasons underlying its honest belief. 

See Memo. in Opp., pp. 13-16. First, plaintiff presented to Ms.

Canterbury on September 27 Dr. Clark’s note, which documented

plaintiff’s FMLA leave. In doing so, plaintiff followed the same

procedure that he had always followed when returning from previous,

authorized FMLA leave. Finally, a jury could find that the decision to

terminate plaintiff’s employment (if such a decision was in fact made)

was not “a reasonably informed and considered decision,” see Smith,

155 F.3d at 807, in light of the fact that the investigation that

DuPont proposed had not yet taken place. Cf. Hoskins v. Pridgeon &

Clay, Inc., No. 1:05-CV-816, 2007 U.S. Dist. LEXIS 24674, at *5-6, 20-

22 (W.D. Mich. Apr. 3, 2007) (concluding that sufficient

“particularized facts,” some of which were gleaned from interviews

with other employees, provided a reasonable basis for the employer to

conclude that the employee falsely claimed FMLA leave where, inter

alia, where employer previously denied a vacation request for the same

day); Stonum v. U.S. Airways, Inc., 83 F. Supp. 2d 894, 902 (S.D. Ohio

1999) (finding that employer reasonably relied upon a number of

particularized facts in deciding to terminate plaintiff’s employment,

including particularized facts provided by employer’s private

investigator’s report)). See, e.g., White v. Telcom Credit Union, No.

11-12118, 2012 U.S. Dist. LEXIS 84558, at *52-55 (E.D. Mich. June 19,

2012) (finding genuine issue of material fact as to honest belief

where, inter alia, defendant’s CEO did not conduct any investigation);

Kurtzman v. Univ. of Cincinnati, No. 1:09-cv-580-HJW, 2012 U.S. Dist.

LEXIS 69319, at *36-39 (S.D. Ohio May 17, 2012) (finding a genuine

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issue of material fact as to honest belief where, inter alia, there is

no evidence that the supervisor “conducted any investigation, much

less a ‘reasonable’ one, of the four stated reasons for discharge” and

concluding that the plaintiff “has put forth sufficient evidence to

establish that his employer did not make a reasonably informed and

considered decision before taking the adverse employment actions

against him”). 

Under all these circumstances, this Court concludes that there is

a genuine issue of material fact as to whether defendant held an

honest belief that justified the termination of plaintiff’s

employment. 

2. Plaintiff’s insubordination

Defendant also contends that plaintiff’s “blatant insubordination

further constitutes a legitimate business reason for any termination.” 

Motion for Summary Judgment, p. 14 (citing Russell v. Univ. of Toledo,

537 F.3d 596, 599 (6th Cir. 2008); Griswold v. Fresenius USA, 978 F.

Supp. 718, 733 (N.D. Ohio 1997)). Because defendant does not identify

the specific alleged insubordinate behavior upon which it relies,

Motion for Summary Judgment, p. 14, the Court presumes that defendant

intends to rely on statements made by plaintiff as he was leaving

DuPont’s premises on September 27 and/or the fact that plaintiff left

the premises on that day. However, the record contains evidence that

plaintiff did not curse at DuPont employees, see Plaintiff Depo., pp.

164-66; Plaintiff Affidavit, ¶ 16, and that he left the premises only

after being directed by Ms. Canterbury to do so. Taking the record as

a whole and accepting plaintiff’s version of the facts for purposes of

the Motion for Summary Judgment, the Court concludes that there is a

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genuine issue of material fact in connection with defendant’s

contention that plaintiff’s insubordination justified the termination

of his employment.

In short, defendant is not entitled to summary judgment on

plaintiff’s FMLA retaliation claim.

V. RETALIATION IN VIOLATION O.R.C. § 4112 (Count III)

Defendant also moves for summary judgment on plaintiff’s claim of

retaliation in violation of O.R.C. Chapter 4112. Complaint, Count

III. More specifically, plaintiff alleges that DuPont retaliated

against him for complaining of racial “harassment and discriminatory

treatment from 2007 through his termination in 2010.” Id. at ¶ 42. 

Plaintiff has failed to respond to defendant’s motion for summary

judgment on this claim. 

Under Rule 56, “[t]he moving party need not support its motion

with evidence disproving the nonmoving party’s claim, but need only

show . . . that there is an absence of evidence to support the

nonmoving party’s case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.

1996)(citing Celotex Corp. V. Catrett, 477 U.S. 317, 325 (1986)). Once

the moving party meets this initial burden, the nonmovant must

“designate specific facts showing that there is a genuine issue for

trial.” Celotex Corp., 477 U.S. at 324 (internal quotation marks

omitted). Moreover, a court has no obligation to search through the

record or case law in order to find support for plaintiff’s claims. 

See, e.g., Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 405-06 (6th

Cir. 1992). 

Because plaintiff has not responded to defendant’s motion in this

regard, the Court concludes that DuPont is entitled to summary

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judgment on this claim.

VI. RETALIATION IN VIOLATION OF PUBLIC POLICY (Count III)14

Plaintiff also alleges that defendant terminated his employment

in violation of public policy. Complaint, ¶¶ 41-47. In moving for

summary judgment on this claim, defendant argues that this claim “is

barred because statutory remedies already exist under FMLA and O.R.C.

4112.” Motion for Summary Judgment, p. 15 n.5. Plaintiff has not

responded to this argument.

This Court agrees that the availability of statutory remedies

under the FMLA and O.R.C. § 4112 bars plaintiff’s public policy claim. 

See, e.g., Carrasco v. NOAMTC Inc., No. 03-4229, 124 Fed. App’x 297,

at *304 (6th Cir. Dec. 1, 2004) (quoting Wiles v. Medina Auto Parts,

96 Ohio St. 3d 240, 244 (2002)) (granting summary judgment in favor of

defendant where “plaintiff had a remedy available to him under both

Title VII and the OCRA [and]. . . he cannot have that same claim under

Ohio common law”). Defendant is therefore entitled to summary

judgment on plaintiff’s public policy claim.

VII. RACE DISCRIMINATION IN VIOLATION OF O.R.C. §§ 4112.02 and 4112.99

(Count IV)

Plaintiff alleges that defendant discriminated against him on the

basis of race in violation of O.R.C. §§ 4112.02, .99, by failing to

promote him and “unjustly disciplining Plaintiff for alleged

attendance infractions while non-minorities were not similarly

disciplined[.]” Complaint, ¶¶ 49-50. Federal case law governing

Title VII actions is generally applicable to discrimination claims

14Count III alleges retaliation in violation of both public policy and

O.R.C. § 4112. Complaint, ¶¶ 41-47. For ease of analysis, the Court has

addressed these allegations separately.

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under Ohio law. See, e.g., Williams v. Ford Motor Co., 187 F.3d 533,

538 (6th Cir. 1999). Where a plaintiff has not offered direct

evidence of discrimination, the court analyzes such claims under the

McDonnell Douglas burden-shifting framework. See Clay v. UPS, 501

F.3d 695, 703 (6th Cir. 2004). 

A. Failure to Promote

Plaintiff alleges that defendant failed to promote him because of

his race. To establish a prima facie case of race discrimination, a

plaintiff must establish that:

(1) he is a member of a protected class; (2) he applied for

and was qualified for a promotion, (3) he was considered for

and denied the promotion; and (4) other employees of similar

qualifications who were not members of the protected class

received promotions at the time the plaintiff’s request for

promotion was denied.

Nguyen v. City of Cleveland, 229 F.3d 559, 562-563 (6th Cir. 2000). 

Because plaintiff has not responded to the Motion for Summary

Judgment as it relates to this claim, the facts stated in the

affidavits and other papers submitted in support of defendant’s motion

will be accepted as true by the Court. See Fed. R. Civ. P. 56(e)(2),

(3). 

As an initial matter, the record establishes that defendant

repeatedly promoted plaintiff. See Plaintiff Depo., pp. 28-33, 37-39;

Exhibits 7, 9, attached thereto. As to the five promotions denied

plaintiff, DuPont awarded two of those positions, one of which would

be a lateral move for plaintiff, to minority males. Canterbury

Affidavit, ¶ 6. To the extent that plaintiff complains that DuPont

failed to promote him to the MiniMix positions and FasTrac Coordinator

position, DuPont has established that it selected candidates who were

more qualified than plaintiff or who performed better during

interviews. Id. ¶¶ 7-10. Accordingly, the record establishes that

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defendant selected other applicants for these positions for

legitimate, nondiscriminatory reasons. Plaintiff has not shown that

these articulated reasons are pretextual. Accordingly, defendant is

entitled to summary judgment on this claim. 

B. Discipline Related to Attendance Infractions 

Defendant also contends that plaintiff cannot establish a prima

facie case of race discrimination based on discipline related to his

attendance infractions. This Court agrees. It is true that plaintiff

received verbal and written warnings in connection with his attendance

occurrences. However, under the facts of this case, such warnings did

not constitute adverse actions sufficient to establish a prima facie

case of discrimination. See, e.g., Zanders v. Potter, No. 06-2066,

223 Fed. App’x 470, at *470 (May 8, 2007) (affirming grant of summary

judgment in favor of defendant where, inter alia, a “letter of warning

did not result in a loss of position, salary, benefits, or prestige”). 

Moreover, plaintiff has not identified similarly situated

comparators who were treated more favorably than he. See Nguyen, 229

F.3d at 562-563. Here, plaintiff admits that he knew of no nonminority employees who were not held to the standards of DuPont’s

Attendance Policy. Plaintiff Depo., p. 206. It is apparent that

plaintiff cannot establish a prima facie case of race discrimination. 

Defendant is therefore entitled to judgment on this claim.

VIII.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Count V)

Finally, plaintiff alleges that defendant “intentionally or

recklessly caused serious emotional distress to Plaintiff when

Defendant harassed and discriminated against Plaintiff on the basis of

his race and mental condition.” Complaint, ¶ 56. “Under Ohio law,

such a claim exists where ‘[o]ne who by extreme and outrageous conduct

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intentionally or recklessly causes serious emotional distress to

another.’” Blackshear v. Interstate Brands Corp., No. 10-3696, 2012

U.S. App. LEXIS 17628, at *13-14 (6th Cir. Aug. 20, 2012) (quoting

Anderson v. Eyman, 180 Ohio App. 3d 794, 808 (Ohio Ct. App. 2009)). 

To prevail on a claim of intentional infliction of emotional distress,

a plaintiff must show that 

(1) defendant[] intended to cause emotional distress, or

knew or should have known that [its] actions would result in

plaintiff’s serious emotional distress, (2) defendant[‘s]

conduct was extreme and outrageous, (3) defendant[‘s]

actions proximately caused plaintiff’s emotional injury, and

(4) plaintiff suffered serious emotional anguish. 

Id. (quoting Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995)

(citing Hanly v. Riverside Methodist Hosp., 78 Ohio App. 3d 73, 82

(Ohio Ct. App. 1991)). An employer is not liable for “mere insults,

indignities, threats, annoyances, petty oppressions or other

trivialities.” Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374

(1983). 

Plaintiff has not responded to the Motion for Summary Judgment as

it relates to this claim. Therefore, the Court accepts as true the

facts stated in the affidavits and other papers submitted in support

of defendant’s motion. See Fed. R. Civ. P. 56(e)(2), (3). First,

plaintiff has not established the requisite intent. DuPont timely

responded to plaintiff’s complaints of discrimination. Exhibit 1,

attached to Canterbury Affidavit (DuPont letter addressed to

plaintiff’s counsel responding to allegations of failures to promote). 

In addition, plaintiff acknowledged that DuPont employees, including

Mr. Jacobs, did not intend to cause him harm. Plaintiff Depo., p.

208. Second, “termination [of employment], even if based upon

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discrimination, does not rise to the level of ‘extreme and outrageous

conduct’ without proof of something more. If such were not true, then

every discrimination claim would simultaneously become a cause of

action for the intentional infliction of emotional distress.” 

Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999). 

See also Seifert v. Graphic Packaging Int’l, Inc., No. 11-4087, 2012

U.S. App. LEXIS 21004, at *3 (6th Cir. Oct. 10, 2012) (finding, inter

alia, that termination of employment for alleged poor performance “did

not amount to extreme and outrageous conduct”); Baab v. AMR Services

Corp., 811 F. Supp. 1246, 1269 (N.D. Ohio 1993) (“To say that Ohio

courts narrowly define ‘extreme and outrageous conduct’ would be

something of an understatement.”). Here, even if DuPont terminated

plaintiff’s employment, which it denies, plaintiff has offered no

proof of the “something more” that could give rise to a claim of

intentional infliction of emotional distress. Third, plaintiff has

not shown that he has suffered serious emotional distress as a result

of defendant’s actions. To be actionable, the emotional injury must

be so “severe and debilitating” that “a reasonable person, normally

constituted, would be unable to cope adequately with the mental

distress engendered by the circumstances of the case.” Paugh v.

Hanke, 6 Ohio St. 3d 72, 78 (1983). Here, plaintiff concedes that,

since his employment with DuPont ended, he has “been able to cope

without medication” for anxiety and depression. Plaintiff Depo., pp.

184-85. Plaintiff has therefore failed to present evidence sufficient

to support his claim of intentional infliction of emotional distress.

Defendant is entitled to summary judgment on this claim.

WHEREUPON, Defendant’s Motion for Summary Judgment, Doc. No. 17,

is GRANTED in part and DENIED in part. Specifically, the motion is

GRANTED as to plaintiff’s claims of FMLA interference (Count I);

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retaliation in violation of public policy and O.R.C. § 4112 (Count

III); race discrimination in violation of O.R.C. §§ 4112.02, .99

(Count IV); and intentional infliction of emotional distress (Count

V), but DENIED as to plaintiff’s claim of FMLA retaliation (Count II).

November 20, 2012 s/Norah McCann King Norah McCann King

 United States Magistrate Judge

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