1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRIAN EASTER, : 

 : Case No. 2:17-cv-00197

 Plaintiff, : 

 : CHIEF JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Jolson 

BEACON TRI-STATE STAFFING, INC., : 

 et al., : 

 : 

 Defendants. : 

OPINION AND ORDER 

I. INTRODUCTION 

Plaintiff Brian Easter initiated this civil action on March 7, 2017, alleging, among other 

things, that he was terminated from his job in retaliation for taking protected leave under the 

Family and Medical Leave Act (“FMLA”). Present before the Court is Plaintiff and Defendants’ 

Cross-Motions for Summary Judgment. (Docs. 100, 101, 102.) The Court held a hearing on this 

matter on September 24, 2019. For the reasons set forth below, the Court GRANTS Plaintiff’s 

Motion for Partial Summary Judgment and GRANTS IN PART and DENIES IN PART 

Defendants’ Motions for Summary Judgment. 

II. BACKGROUND 

For three-and-a-half years, Plaintiff Brian Easter worked as a truck driver jointly employed 

by Defendants Beacon Tri-State Staffing, Inc. (“Beacon”) and C*MAC Transportation, LLC 

(“C*MAC”). (Doc. 112 at 15.) Beacon is a professional employer organization (“PEO”) whose 

business model is to hire the employees of a client, then lease them back to the client, creating a 
2 

co-employer relationship. (Id. at 18-19.) C*MAC is a logistics company, and client of Beacon, 

that provides transportation and warehousing. (Id. at 19.) 

In June, July, and August of 2016, Plaintiff had a series of absences from work. 

Defendants’ employee handbook describes the procedures for requesting time off. (Id. at 22.) To 

report an absence, an employee is required to call C*MAC’s dispatch office at least two hours 

prior to the start of a shift. (Id.) If the employee requests FMLA leave for a medical reason, then 

the dispatch office is to report the absence to C*MAC’s safety department. (Id.) The safety 

department, in turn, reports the medical reason to Salvatore Manzo, Beacon’s Chief Human 

Resources Officer. (Id.) Mr. Manzo is then responsible for determining whether the medical 

reason is covered under the FMLA, and if so, providing the requisite notices and forms. (Id.) 

On June 13, 2016, Plaintiff called off from work after contracting an infection that put him 

in the hospital for three days. (Id. at 22-23.) He spoke to a dispatcher named Joel Koons, who 

noted the call in C*MAC’s electronic system. (Id. at 23.) On July 22, 2016, Plaintiff again called 

off from work to help transport his father from the hospital. (Id.) His father had just been 

diagnosed with terminal brain and lung cancer. (Id.) Plaintiff spoke with a dispatcher named 

Kenneth Clerk, who, like before, documented the call in C*MAC’s electronic system. (Id. at 24.) 

Finally, on August 16, 2016, Plaintiff called off after having spent the entire evening with his 

father at the hospital. (Id.) A dispatcher named Raymond Switala recorded this call in C*MAC’s 

system. Plaintiff was never informed whether any of his three absences qualified for FMLA leave. 

At the same time, Plaintiff did not specifically request FMLA leave for these absences. (Doc. 101 

at 14-16.) 

Following his third absence, Plaintiff contacted Paula Sirvio, an employee in C*MAC’s 

safety department, and asked whether he could take intermittent FMLA leave if he needed time 
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off in the future to care for his father. (Doc. 112 at 25.) Ms. Sirvio told Plaintiff that she would 

send over the necessary forms. (Id.) Plaintiff then spoke with Stacey Jose, Ms. Sirvio’s supervisor 

at C*MAC. (Id.) According to Plaintiff, Ms. Jose warned him that the company looked down 

upon FMLA leave and would find a way to fire employees who take such leave. (Id.) Ms. Jose, 

however, has no memory of this conversation. (Id.) 

On August 17, 2016, Ms. Jose emailed Chris Miller and Sam Wright informing them that 

Plaintiff was planning to take intermittent FMLA leave. (Id.) Miller oversees operations at 

C*MAC and Wright is his direct report. (Id.) Miller responded to Ms. Jose’s email asking, “What 

are our legal responsibilities? To operate this lane, I need a driver in place consistently.” (Id. at 

26.) Wright replied, “This happened to me at [a prior company] . . . we couldn’t do anything. I 

had to just deal with his schedule.” (Id. at 26.) To this, Miller wrote, “Fuck that. He’s getting 

replaced.” (Id.) 

Plaintiff submitted his FMLA leave request forms on August 18, 2016, which Salvatore 

Manzo approved. (Id. at 27.) Plaintiff then requested leave from August 19 through August 26, 

2016. (Id.) Tragically, Plaintiff’s father passed away on August 21, 2016. (Id. at 28.) Hence, 

Plaintiff returned to work on Monday, August 29, 2016. (Id. at 28.) Two weeks later -- September 

12, 2016 -- Plaintiff found out that he was fired. (Id. at 32.) 

Immediately following his termination, Paula Sirvio called Plaintiff and told him that he 

should consider seeing a lawyer, because the circumstances surrounding his firing were suspicious. 

(Doc. 112-3.) This belief was based on the fact that (1) she, like Plaintiff, had a negative reaction 

from supervisors at C*MAC when she took FMLA leave, and (2) she had personally reviewed 

Plaintiff’s termination paperwork and there was no reason listed for his termination. In her 

experience, C*MAC always provided reasons for terminating an employee. (Id.) 
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Plaintiff was one of four Columbus-based drivers that Defendants let go from their 

positions around this time. (Doc. 112 at 32-33.) Each of these drivers were replaced by new 

drivers. According to C*MAC’s Chris Miller, he made these decisions alone and for the purpose 

of cleaning house: 

[W]e’d exhausted all of our attempts at improving the operation in Columbus, and after 

those attempts and requests had been ignored, I could no longer accept the failed 

performance for our customers; and we had to make a very difficult decision, and I did. 

(Doc. 100 at 14.) But Miller’s testimony on this point is called into question by a written statement 

that Beacon made to the Ohio Civil Rights Commission, attesting: “After consulting with Beacon 

Owner Salvatore Manzo, Mr. Koons and Mr. Manzo decided to terminate all four of the Columbus 

drivers.” (Doc. 112-23 at 5.) Miller also suggests that he made these decisions six months prior 

to letting the drivers go: 

From the time that we identified the problem, communicated the problem, attempted to 

coach, until the final decision to get new people in place and reassign those folks, it was a 

six-month period. 

(Doc 112-23 at 16.) 

After Plaintiff was let go, he filed for unemployment benefits with the Ohio Department of 

Job and Family Services (“ODJFS”). (Doc. 112 at 37.) Elizabeth Dimkoski, Beacon’s accountant 

who handles unemployment claims, reported that Plaintiff was fired as a result of his absences on 

June 13, 2016, July 22, 2016, and August 16, 2016. (Doc. 94 at 20.) The ODJFS, however, 

awarded Plaintiff unemployment benefits after concluding: 

The claimant was discharged by BEACON TRI-STATE STAFFING on 09/09/2016. The 

employer has not provided evidence to establish that the claimant was excessively 

absent/tardy. Ohio’s legal standard that determines if a discharge is without cause is 

whether the claimant’s acts, omissions, or course of conduct were such that an ordinary 

person would find the discharge not justifiable. After a review of the facts, this agency 

finds that the claimant was discharged without just cause under Section 4141.29(D)(2)(a), 

Ohio Revised Code. 
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(Doc. 112-30.) 

Accordingly, Plaintiff has filed this FMLA action, raising four claims under federal and 

state law: (Count One) FMLA Interference, 29 U.S.C. §§ 2611, et seq.; (Count Two) FMLA 

Retaliation, 29 U.S.C. §§ 2611, et seq.; (Count Three) Age Discrimination under Ohio State Law, 

O.R.C. §§ 4112.02(N), 4112.14, 4112.99; and (Count Four) Associational Disability 

Discrimination under Ohio State Law, O.R.C. §§ 4112.02, 4112.99. Defendants have filed 

Motions for Summary Judgment on all four counts of the Complaint. Plaintiff has also filed a 

Motion for Partial Summary Judgment seeking declaratory findings on four issues: (1) that 

Defendants’ defense of failure to mitigate damages fails as a matter of law; (2) that the cancer from 

which Plaintiff’s father suffered was a disability under Ohio Revised Code Chapter 4112; (3) that 

Defendants were joint employers of Plaintiff covered by the FMLA and Ohio Revised Code 

Chapter 4112; and (4) that Plaintiff was an eligible employee under the FMLA. 

III. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 56(a) provides that a court may grant summary judgment 

if “the movant shows 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 resolving a motion for summary 

judgment, the court must view the facts, and draw reasonable inferences from those facts, in the 

light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 

(1986). No dispute of material fact exists where the record “taken as a whole could not lead a 

rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court must evaluate “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. 
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IV. ANALYSIS 

Beacon, C*MAC, and Plaintiff have all moved for summary judgment. The Court will 

address Defendants’ Motions for Summary Judgment first. Following that, the Court will turn to 

Plaintiff’s Motion for Partial Summary Judgment. 

A. FMLA Joint Employer Liability

As an initial matter, Beacon argues that it is absolved from liability on all claims in 

Plaintiff’s Complaint because C*MAC, not Beacon, was responsible for firing Plaintiff. The Court 

disagrees and finds that Defendants are joint employers for purposes of liability under the FMLA. 

Two entities can be viewed as a single employer of an employee if they meet the “joint 

employment” test discussed in 29 C.F.R. § 825.106. Russell v. Bronson Heating & Cooling, 345 

F. Supp. 2d 761, 771 (E.D. Mich. 2004). Under the joint employer doctrine, “courts determine 

whether one defendant has control over another company’s employees sufficient to show that the 

two companies are acting as a ‘joint employer’ of those employees.” Id. (citing Swallows v. Barnes 

& Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997)). Factors to consider include, 

“authority to hire, fire and discipline employees, promulgation of work rules and conditions of 

employment, issuance of work assignments and instructions, and supervision of employees’ dayto-day activities.” Id. (quoting EEOC v. Regency Windsor Mgmt. Co., 862 F. Supp. 189, 191 

(W.D. Mich. 1994)). 29 C.F.R. § 825.106(b)(2) provides further guidance relevant to this case: 

A type of company that is often called a Professional Employer Organization (PEO) 

contracts with client employers to perform administrative functions such as payroll, 

benefits, regulatory paperwork, and updating employment policies. The determination of 

whether a PEO is a joint employer [ ] turns on the economic realities of the situation and 

must be based upon all the facts and circumstances. A PEO does not enter into a joint 

employment relationship with the employees of its client companies when it merely 

performs such administrative functions. On the other hand, if in a particular fact situation, 

a PEO has the right to hire, fire, assign, or direct and control the client’s employees, or 

benefits from the work that the employees perform, such rights may lead to a determination 
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that the PEO would be a joint employer with the client employer, depending upon all the 

facts and circumstances. 

29 C.F.R. § 825.106(b)(2). 

 Here, both Beacon and C*MAC exercise significant control over Plaintiff, such as to make 

them joint employers. According to Michael Rushing -- C*MAC’s Director of HR, Safety, and 

Compliance -- Beacon and C*MAC share authority over hiring decisions. (Dep. Michael Rushing, 

Doc. 90 at 22).) Similarly, both companies have the authority to terminate, reassign, and discipline 

employees. (Id. at 23.) This is consistent with Beacon’s admission to the Ohio Civil Rights 

Commission that, “[a]fter consulting with Beacon Owner Salvatore Manzo, Mr. Koons and Mr. 

Manzo decided to terminate all four of the Columbus drivers.” (Doc. 112-23 at 5.). In addition, 

Salvatore Manzo testified that both Beacon and C*MAC can determine an employee’s job duties, 

as well as write, revise, and implement employee policies. (Manzo Dep., Doc. 93 at 18-19.) And 

most telling, Beacon has acknowledged that it and C*MAC are joint employers. (Doc. 102-14.). 

Still, Beacon points to paragraph nine of its Client Service Agreement with C*MAC, which 

states: “All business decisions are the sole responsibility of C*MAC.” (Doc. 93-1 at 25.) From 

this, Beacon suggests that C*MAC was the only entity with the power to hire, fire, and control 

Plaintiff at work. The Court takes issue with this position for two reasons. First, the term “business 

decisions” is not defined in the Agreement. Hence, it is unclear what such decisions would 

encompass. Second, and more importantly, Michael Rushing and Salvatore Manzo’s testimony 

directly contradicts this argument. Indeed, they testified that Beacon and C*MAC share this 

authority. See Russell, 345 F. Supp. at 776 (finding joint employer liability where both employers 

provided employee benefits and retained the right to discipline or terminate employees); see also 

Grace v. USCAR, 521 F.3d 655, 667 (6th Cir. 2008) (holding joint employer liability exists where 
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both companies exercise significant control over employees).1

 As such, the Court finds that 

Beacon and C*MAC are joint employers for purposes of liability under the FMLA. 

B. FMLA Interference Claim

Count One of Plaintiff’s Complaint alleges that Defendants interfered with his rights under 

the FMLA. Specifically, Plaintiff asserts that he was fired from his job, in part, for three medicalrelated absences in June, July, and August of 2016 that Defendants failed to properly certify as 

FMLA-qualifying events. Hence, Plaintiff contends that he was denied his full benefits under the 

Act. 

FMLA interference occurs when an employer “shortchange[s] [an employee’s] leave time, 

den[ies] reinstatement, or otherwise interfere[s] with [an employee’s] substantive FMLA rights.” 

Marshall v. The Rawlings Co., LLC, 854 F.3d 368, 384-85 (6th Cir. 2017). To establish a claim 

for interference, Plaintiff must demonstrate: (1) he was an eligible employee as defined under the 

FMLA; (2) Defendants were employers as defined under the FMLA; (3) he was entitled to leave 

under the FMLA; (4) he gave Defendants notice of his intention to leave; and (5) Defendants 

denied him FMLA benefits to which he was entitled.2

 Edgar v. JAC Products, Inc., 433 F.3d 501, 

507 (6th Cir. 2006). Employees seeking relief for FMLA interference must also establish that the 

employer’s violation caused them harm. Id. at 508. 

 

1

 Beacon attempts to distinguish Grace, and presumably Russell, on the ground that they did not 

consider any language from 29 C.F.R. § 825.106(b)(2). See 521 F.3d 655; 345 F. Supp. 2d 761. 

This, however, does not change the Court’s conclusion. As addressed above, 29 C.F.R. § 

825.106(b) provides that a PEO can be held jointly liable for its client’s actions under certain 

factual scenarios, such as when the PEO has the right to hire, fire, assign, or direct and control the 

client’s employees. See 29 C.F.R. § 825.106(b). The testimony of Michael Rushing and Salvatore 

Manzo make clear that Beacon has this authority. 

2

 Elements One and Two are not in dispute. 
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1. Qualification for FMLA Leave 

Under the FMLA, an eligible employee is entitled to leave for, among other things, a 

serious health condition that makes the employee unable to perform their job, or to care for a 

spouse or parent who has a serious health condition. 29 U.S.C. §§ 2612(a)(1)(C)-(D). A “serious 

health condition” is defined as “an illness, injury, impairment, or physical or mental condition” 

that involves either “inpatient care in a hospital, hospice, or residential medical care facility” or 

“continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The term “inpatient care” 

includes an overnight stay in a hospital. 29 C.F.R. § 825.114. 

Here, Plaintiff’s three absences from work in June, July, and August of 2016 all qualify for 

FMLA leave. In June 2016, Plaintiff was hospitalized for three days, including one work day, 

after contracting an infection. As a matter of law, an overnight stay in the hospital qualifies as a 

serious medical condition, and thus, Plaintiff’s June 2016 absence meets this threshold. See Bryant 

v. Delbar Prods., Inc., 18 F. Supp. 2d 799, 802 (M.D. Tenn. 1998) (“The regulations further define 

inpatient care to mean an overnight stay in a hospital. There is no question that [plaintiff’s son] 

was hospitalized with advanced kidney failure from March 26, 1995 through March 29, 1995. 

Thus, [plaintiff’s son] had a serious health condition on March 27, 1995.”) (internal quotations and 

citations omitted). Similarly, Plaintiff’s July and August 2016 absences qualify for FMLA leave 

because both involved him caring for his father, who was hospitalized overnight to receive 

treatment for terminal cancer. Alternatively, these two absences would qualify under the FMLA 

as a serious health condition involving continuing treatment by a health care provider because 

Plaintiff’s father was under continuing supervision for a terminal illness. 29 C.F.R. § 825.115(d) 

(“A serious health condition involving continuing treatment by a health care provider includes any 

 
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one or more of the following: A period of incapacity which is permanent or long-term due to a 

condition for which treatment may not be effective. The employee or family member must be 

under the continuing supervision of, but need not be receiving active treatment by, a health care 

provider. Examples include Alzheimer’s, a sever stroke, or the terminal stages of a disease.”). 

Accordingly, Plaintiff has satisfied his burden on this element of his interference claim. 

2. Notice of an FMLA-Qualifying Event 

It is well settled that “[t]o invoke the protection of the FMLA, an employee must provide 

notice, and a qualifying reason for requesting the leave.” Wallace v. FedEx Corp., 764 F.3d 571, 

586 (6th Cir. 2014). Importantly, “[t]he employee need not expressly assert rights under the FMLA 

or even mention the FMLA.” Id. Rather, “[a]n employee gives his employer sufficient notice that 

he is requesting leave for an FMLA-qualifying condition when he gives the employer enough 

information for the employer to reasonably conclude that an event described in the FMLA . . . has 

occurred.” Id. The employee’s burden is not a heavy one. Id. 

Here, each time Plaintiff called off from work, he spoke with a member of C*MAC’s 

dispatch office and explicitly informed them that he would be absent because of a medical-related 

issue. Once Plaintiff made these calls, this should have triggered a report to C*MAC’s safety 

department and notice to Salvatore Manzo, Beacon’s Chief HR Officer. It would have then been 

Manzo’s responsibility to determine whether Plaintiff’s medical-related absences qualified for 

FMLA leave. See Tornberg v. Business Interlink Servs., Inc., 237 F. Supp. 2d 778, 785 (E.D. 

Mich. 2002) (holding that once an employee indicates that leave is needed, the obligation shifts to 

the employer to obtain any additional required information through informal means). Hence, when 

viewing the evidence in a light most favorable to Plaintiff, a reasonable juror could conclude that 
11 

he provided sufficient notice of FMLA-qualifying events, and that Defendants failed to respond 

appropriately. 

3. Whether Defendants Denied Plaintiff FMLA Rights to which He was Entitled 

Once an employee notifies his or her employer of a potential FMLA-qualifying absence, 

this requires the employer to notify the employee of their eligibility to take FMLA leave and to 

provide written notice of their rights and responsibilities. 29 C.F.R. §§ 825.300(b)-(c). If the 

employer has enough information to determine whether leave is being taken for an FMLAqualifying reason, then the employer must notify the employee whether the time off will be 

designated and counted as FMLA leave. 29 C.F.R. § 825.300(d). But where an employer does 

not have sufficient information to make such a determination, the employer is directed to conduct 

a further inquiry. 29 C.F.R. § 825.301(a); see Carmen v. Unison Behavioral Health Grp., Inc., 

295 F. Supp. 2d 809, 814 (N.D. Ohio 2003) (denying Defendants’ motion for summary judgment 

after concluding: “if Defendants did not have enough information to determine whether Plaintiff’s 

leave should have been designated as FMLA leave, they should have inquired further”). An 

employer’s failure to follow these notice requirements “may constitute an interference with, 

restraint, or denial of the exercise of an employee’s FMLA rights.” 29 C.F.R. § 825.300I. 

 Here, as addressed above, a reasonable juror could conclude that Plaintiff provided 

Defendants with sufficient notice of FMLA-qualifying leave requests. If so, Defendants’ failure 

to notify him whether his absences were being designated as and counted towards FMLA leave, 

or to inquire further, could constitute interference with or denial of his FMLA rights. 
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4. Whether Plaintiff was Prejudiced by Defendants’ Alleged Interference with his FMLA 

Rights 

An employee seeking relief on an FMLA interference claim must establish that “the 

employer’s violation caused them harm.” Edgar, 443 F.3d at 508. Here, one of the purported 

reasons that Defendants have offered for firing Plaintiff was his excessive absences; and 

specifically, his absences on June 13, 2016, July 22, 2016, and August 16, 2016. (See Doc. 94 at 

20; Doc. 112-13.) If those absences should have been certified for FMLA-protected leave, and the 

jury finds that Plaintiff was fired for those absences, then Defendants’ alleged interference would 

be the proximate cause of Plaintiff’s termination. See Wallace, 764 F.3d at 590-91 (“The reason 

[plaintiff] failed to perfect her leave was because she failed to return the medical-certification form, 

and the reason she failed to return the form . . . was because [defendant] failed to inform her of the 

consequences of failing to do so as required by 29 C.F.R. § 825.305. Thus, [defendant’s] failure 

to provide notice was the proximate cause of her termination, meaning that its failure to comply 

with the regulations prejudiced [plaintiff].”). Because this is a question of fact for the jury, the 

Court DENIES Defendants’ Motions for Summary Judgment on Count One of the Complaint. 

C. FMLA Retaliation Claim

Count Two of Plaintiff’s Complaint alleges he was fired in retaliation for taking protected 

leave under the FMLA. Defendants raise three arguments in support of their Motions for Summary 

Judgment: (1) Plaintiff did not suffer an adverse employment action; (2) there is no causal 

connection between Plaintiff’s FMLA leave request and his termination; and (3) there was a 

legitimate, non-discriminatory reason for firing Plaintiff. 

A plaintiff can prove an FMLA retaliation claim by either direct or indirect evidence. 

Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 432 (6th Cir. 2014). Each path 
13 

is mutually exclusive; “a plaintiff need only prove one or the other, not both.” Id. With respect to 

direct evidence, if believed, it “requires the conclusion that unlawful discrimination was at least a 

motivating factor in the employer’s actions.” Id. The Sixth Circuit has explained: 

[Direct evidence] does not require a factfinder to draw any inferences in order to conclude 

that the challenged employment action was motivated at least in part by prejudice against 

members of the protected group. The evidence must establish not only that the plaintiff’s 

employer was predisposed to discriminate on the basis of [FMLA leave], but also that the 

employer acted on that predisposition. 

Id. (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)). If a plaintiff presents direct 

evidence of discrimination, “the burden shifts to the employer to prove by a preponderance of the 

evidence that it would have made the same decision absent the impermissible motive.” Id. (quoting 

Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir. 2002)). 

 As an initial matter, C*MAC argues that Plaintiff did not suffer an adverse employment 

action because he was not fired, but instead, reassigned to Beacon, then ultimately let go because 

there were no driving positions available in Ohio, the only state in which he was able to work. In 

doing so, it appears that C*MAC is contending it is not liable beyond the decision to reassign 

Plaintiff to Beacon. But this ignores the fact that Plaintiff’s reassignment amounted to a 

constructive discharge. See Policastro v. N.W. Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) 

(“When a reassignment rises to the level of a constructive discharge, however, the reassignment is 

an adverse employment action. For a transfer or reassignment to amount to a constructive 

discharge, its conditions must be objectively intolerable to a reasonable person. . . . [I]increased 

distance from home to a new position is a factor in determining whether a constructive discharge 

has occurred.”) (internal citations omitted); see also Spees v. James Marine, Inc., 617 F.3d 380, 

391 (6th Cir. 2002) (“Reassignments and position transfers can qualify as adverse employment 

actions, particularly where they are accompanied by salary or work hour changes. And even if a 
14 

reassignment is not paired with a salary or work-hour change, it can nonetheless be considered an 

adverse employment action where there is evidence that the employee received a less distinguished 

title, a material loss of benefits, significantly diminished material responsibilities, or other indices 

that might be unique to a particular situation.”) (internal quotations and citations omitted). Indeed, 

C*MAC is still responsible, whether directly or indirectly, for having placed Plaintiff in a position 

of unemployment. Therefore, the Court finds that Plaintiff suffered an adverse employment action. 

In addition, the Court finds that Plaintiff has presented direct evidence of retaliation. The 

Court needs to look no further than Chris Miller’s email where, in response to learning he had to 

accommodate Plaintiff’s FMLA leave request, he wrote: “Fuck that. He’s getting replaced.” 

Defendants attempt to explain this email away as mere frustration and note that the decision to fire 

Plaintiff was made six months earlier and due to performance issues. Defendants also point to the 

fact that three other drivers who did not request FMLA leave were also terminated around this 

time. But even accepting all this as true, a reasonable juror looking at this email, and Plaintiff’s 

termination shortly after, could conclude that his FMLA leave request was at least a motivating 

factor for his firing. Accordingly, the Court DENIES Defendants’ Motions for Summary 

Judgment on Count Two of the Complaint. 

D. Ohio Age Discrimination Claim

Count Three of Plaintiff’s Complaint alleges he was terminated on account of his age. 

Plaintiff, however, is no longer pursuing this claim. Accordingly, the Court GRANTS 

Defendants’ Motions for Summary Judgment on Count Three of the Complaint. 

E. Ohio Associational Disability Discrimination Claim

Count Four of Plaintiff’s Complaint alleges he was terminated because of his association 

with his disabled father, in violation of Ohio Revised Code §§ 4112.02. Defendants argue that no 
15 

such claim exists under Ohio law. Alternatively, Beacon argues that O.R.C. § 4125.03(E) insulates 

them from liability. Finally, Defendants argue that Plaintiff’s claim fails because his father passed 

away prior to him being fired, thereby destroying any potential nexus for associational 

discrimination. 

1. Ohio Courts Recognize Associational Discrimination Claims 

First, Defendants argue that associational disability discrimination does not exist under 

Ohio law. Federal courts are split on this issue. O.R.C. § 4112.02 provides that it is unlawful for 

any employer, “because of the race . . . [or] disability . . . of any person, to discharge without just 

cause . . . or otherwise to discriminate against that person with respect to . . . any matter directly 

or indirectly related to employment.” O.R.C. § 4112.02(A). Several courts, including the Sixth 

Circuit in two unpublished opinions, have found that, on its face, this statute does not extend to 

associational discrimination claims. See Smith v. Hinkle Mfg., Inc., 36 F. App’x 825, 830-31 (6th 

Cir. 2002) (finding plaintiff’s state associational disability discrimination claim lacked merit 

because O.R.C. § 4112.02 contained no such prohibition); Kepreos v. Alcon Labs., Inc., 2013 WL 

1316366, at *1 (6th Cir. Apr. 3, 2013) (holding the district court correctly determined that Ohio’s 

disability discrimination statute does not provide for a associational claim); Eddy v. J&D Home 

Improvement, Inc., 2018 WL 2287890, at *2 (S.D. Ohio May 18, 2018) (recognizing the Sixth 

Circuit has determined that discrimination by association does not exist under O.R.C. § 4112.02); 

Sarvak v. DDR Corp., 2012 WL 4050020, at *7 (S.D. Ohio Sept. 13, 2012) (“To the extent plaintiff 

is attempting to assert an ‘associational’ claim under Ohio law, courts have repeatedly held that no 

such claim exists in the disability context under Ohio law.”) (internal citations omitted); Sturgeon 

v. S. Ohio Med. Ctr., 2011 WL 5878387, at *12 (S.D. Ohio Nov. 23, 2011) (“There is no 

associational disability claim under Ohio law.”). But other courts, including this Court and Ohio 
16 

state courts, have held to the contrary. See Edizer v. Muskingham Univ., 2012 WL 4499030, at *7 

(S.D. Ohio Sept. 28, 2012) (Marbley, J.) (“While the Sixth Circuit has said in dicta that Ohio 

Revised Code § 4112.02 does not recognize a claim for associational discrimination, Ohio court’s 

confronting the issue directly have held to the contrary.”) (internal citation omitted); Ohio Civil 

Rights Comm’n v. Lysyj, 38 Ohio St. 2d 217, 220-21 (Ohio Sup. Ct. 1974) (superseded on other 

grounds) (“[A]ppellee argues that the proscriptions of [O.R.C. 4112.02(G)] extend only to direct 

discrimination on the basis of race or color, and that the statute has no application to indirect 

discrimination against a person on the basis of the race or color of his associates. Acceptance of 

that position, however, would result in an overly restrictive interpretation of R.C. 4112.02(G).”);

Cole v. Seafare Enterprise Ltd., Inc., 1996 WL 60970, at *2 (Ohio App. Ct. Feb. 14, 1996) (“[T]he 

Ohio Supreme Court’s interpretation of R.C. 4112.02(G) to include a proscription against 

discrimination based on association must be applied to R.C. 4112.02(A).”); Berry v. Frank’s Auto 

Body Carstar, Inc., 817 F. Supp. 2d 1037, 1049 (S.D. Ohio 2011) (“Even though Lysyj or Cole

involve claims of associational discrimination based upon race, those cases’ holdings would 

arguably apply to Michael’s claim of associational discrimination based upon Brennan’s 

disability.”); Maxwell v. City of Columbus, 2011 WL 2493525, at *4 (S.D. Ohio June 21, 2011) 

(“Ohio Revised Code § 4112.02 likewise includes a proscription against discrimination based on 

association.”); Arnold v. City of Columbus, 515 F. App’x 524, 529 (6th Cir. 2013) (“Section 

4112.02 of the OCRA similarly prohibits discrimination based on association.”). 

After surveying the cases on both sides of this split, it is apparent that courts deciding not 

to recognize associational discrimination claims under Ohio law, have done so largely in reliance 

on dicta in Smith, an unpublished Sixth Circuit opinion. See 36 F. App’x at 830-31. But Smith, 

itself, did not address, or attempt to distinguish, the Ohio state court cases that have expressly 
17 

recognized associational discrimination claims. See id. Nevertheless, Defendants suggest that 

these Ohio state cases can be distinguished on the ground that they pertained to associational 

discrimination based on race, as opposed to disability. See Cole, 1996 WL 60970, at *2; Lysyj, 

38 Ohio St. 2d at 220-21. But such a distinction has no basis in rationality; especially considering 

O.R.C. § 4112.02 expressly encompasses both race and disability discrimination. See O.R.C. § 

4112.02(A). Therefore, this Court will follow the Ohio state courts in finding “Ohio law does 

permit a claim of associational discrimination.” Edizer, 2012 WL 4499030, at 7. 

2. Ohio Revised Code § 4125.03(E) does not Shield Beacon from Liability at this Juncture 

Next, Beacon argues that O.R.C. § 4125.03(E) insulates them from liability on Plaintiff’s 

associational discrimination claim. O.R.C. § 4125.03(E) provides: 

Unless otherwise agreed to in the professional employer organization agreement, liability 

for acts, errors, and omissions shall be determined as follows: 

(1) A professional employer organization shall not be liable for the acts, errors, and 

omissions of a client employer or a shared employee when those acts, errors, and 

omissions occur under the direction and control of the client employer. 

(2) A client employer shall not be liable for the acts, errors, and omissions of a 

professional employer organization or a shared employee when those acts, errors, 

and omissions occur under the direction and control of the professional employer 

organization. 

O.R.C. § 4125.03(E)(1)-(2). Again, Beacon argues that it played no role in the decision to 

terminate Plaintiff’s employment. 

 Here, there is a genuine dispute of material fact as to whether Beacon was involved in the 

decision to fire Plaintiff. Although Chris Miller contends that he made this decision alone, Beacon 

has acknowledged, in writing, that: “After consulting with Beacon Owner Salvatore Manzo, Mr. 

Koons and Mr. Manzo decided to terminate all four of the Columbus drivers.” (Doc. 112-23 at 5.) 

This evidence, at the very least, suggests that Beacon may have had some direct involvement in 
18 

the decision. Accordingly, at this juncture, O.R.C. § 4125.03(E) will not insulate Beacon from 

liability on Plaintiff’s associational discrimination claim. 

3. Whether Plaintiff was Fired Because of His Association with his Disabled Father 

Finally, Defendants argue that Plaintiff’s associational discrimination claim fails as a 

matter of law because any nexus between his termination and his association with his disabled 

father was destroyed when his father passed away. 

Ohio courts analyzing disability discrimination claims have looked to the Americans with 

Disabilities Act for guidance. See, e.g., Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St. 3d 

569, 573 (Ohio Sup. Ct. 1998). Under the ADA, the Sixth Circuit recognizes three theories of 

liability for associational discrimination: “(1) expense; (2) disability by association; and (3) 

distraction.” Williams v. Union Underwear Co., Inc., 614 F. App’x 249, 254 (6th Cir. 2015). Here, 

Plaintiff asserts a claim pursuant to the distraction theory. This theory pertains to discrimination 

“based on the employee’s being somewhat inattentive at work because of the disability of someone 

with whom he or she is associated.” Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 

487 (6th Cir. 2011). 

Importantly, an employer may be liable for associational disability discrimination “where 

it terminated an employee based on an unfounded assumption regarding the employee’s need for 

future leave in order to care for a disabled person.” Gonzalez v. Wells Fargo Bank, N.A., 2013 

WL 5435789, at *7 (S.D. Fla. Sept. 27, 2013) (citing Tyndall v. Nat’l Educ. Centers, Inc. of 

California, 31 F.3d 209 (4th Cir. 1994)). But “an employer’s decision to terminate an employee 

with a disabled relative is within legal bounds where it is based on an established record of past 

absences, or a clear indication of the employee’s intent to take additional time off to care for the 

disabled relative.” Id.; see Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009) 
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(“Under the association provision, there is a material distinction between firing an employee 

because of a relative’s disability and firing an employee because of the need to take time off to 

care for the relative. The statute clearly refers to adverse employment actions motivated by ‘the 

known disability of an individual’ with whom am employee associates, as opposed to actions 

occasioned by the association.”); Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 336 

(7th Cir. 2012) (“Associational discrimination claims are unlike those otherwise falling under the 

ADA because employers are not required to provide reasonable accommodations to non-disabled 

workers.”).

Here, Plaintiff points to no evidence suggesting he was fired because of his association 

with his disabled father. Nor has Plaintiff presented evidence demonstrating he was fired based 

on an unfounded assumption that he would need time off from work in the future to care for his 

father. To the contrary, Plaintiff had a clear track record of requesting time off from work to care 

for his father, having done so on July 22, 2016 and August 16, 2016. Following that, Plaintiff 

indicated he would be requesting intermittent leave, demonstrating a clear intent to take periodic 

time off in the future. See Gonzalez, 2013 WL 5435789, at *7 (“[A]n employer’s decision to 

terminate an employee with a disabled relative is within legal bounds where it is based on an 

established record of past absences, or a clear indication of the employee’s intent to take additional 

time off to care for the disabled relative.”). Moreover, Plaintiff’s father passed away on August 

21, 2016, Plaintiff returned to work on August 29, 2016, and he was informed that he was fired on 

September 12, 2016. It follows that on the date Plaintiff was terminated, Defendants could not 

have been concerned about him missing work in the future. Accordingly, the Court GRANTS 

Defendants’ Motions for Summary Judgment on Count Four of the Complaint. 
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F. Plaintiff’s Motion for Partial Summary Judgment 

Plaintiff has moved for partial summary judgment, seeking declaratory findings on four 

issues: (1) that Defendants’ defense of failure to mitigate damages fails as a matter of law; (2) that 

the cancer from which Plaintiff’s father suffered was a disability under Ohio Revised Code Chapter 

4112; (3) that Defendants were joint employers of Plaintiff covered by the FMLA and Ohio 

Revised Code Chapter 4112; and (4) that Plaintiff was an eligible employee under the FMLA. 

Defendants do not contest issues Two and Four. Accordingly, the Court GRANTS Plaintiff’s 

Motion for Partial Summary Judgment on issues Two and Four. 

1. There is no Evidence that Plaintiff Failed to Mitigate Damages 

Defendants’ have raised an affirmative defense that Plaintiff failed to mitigate damages 

following his termination. Plaintiff, however, contends that after he was fired, he immediately 

took steps to find new employment. He thus asserts that this affirmative defense fails as a matter 

of law. 

An employee’s mitigation efforts is one of several factors the Court must consider when 

assessing damages. Killian v. Yorozu Automotive Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). 

The burden of proof lies with Defendants and is satisfied by demonstrating (1) “there were 

substantially equivalent positions available” and (2) “[P]laintiff did not use reasonable care and 

diligence in seeking such positions.” Id. at 557. 

Plaintiff attests that he submitted job applications every week after he was terminated. 

(Doc. 102 at 10.) Further, that he was able to find new work as a truck driver within two months. 

(Id.) C*MAC, on the other hand, maintains that a genuine issue of fact remains as to whether 

Plaintiff used reasonable diligence in seeking substantially equivalent positions. It points to the 

deposition testimony of Craig Weber -- another Columbus-based driver -- who claimed that truck 
21 

driving positions are a dime a dozen and that, hypothetically speaking, he could find one within 

three days. (See Doc. 96 at 15.) 

Here, Defendants have presented no evidence suggesting there were substantially 

equivalent truck driving positions available to Plaintiff. Mr. Weber’s testimony is based on pure 

speculation, and therefore, does not satisfy Defendants’ burden at this stage. See Taylor v. 

Invacare Corp., 64 F. App’x 516, (6th Cir. 2003) (finding speculative testimony that 

“unemployment was low and jobs were plentiful” insufficient to establish that plaintiff failed to 

mitigate damages). Accordingly, the Court GRANTS Plaintiff’s Motion for Partial Summary on 

the issue of mitigation. 

2. Defendants are Joint Employers for Purposes of Liability Under the FMLA 

Plaintiff also asks the Court to find that Defendants are joint employers of Plaintiff covered 

by the FMLA and Ohio Revised Code Chapter 4112. Beacon only challenges Plaintiff’s Motion 

to the extent he seeks a determination that Beacon can be held jointly liable for terminating 

Plaintiff’s employment. The Court, however, has already addressed this issue under Section (A) 

above. Hence, for the reasons stated therein, the Court GRANTS Plaintiff’s Motion for Partial 

Summary Judgment on the issue of joint employer liability under the FMLA.3

V. CONCLUSION 

For the reasons stated herein, the Court GRANTS Plaintiff’s Motion for Partial Summary 

Judgment and GRANTS IN PART and DENIES IN PART Defendants’ Motions for Summary 

Judgment. Counts Three and Four are hereby DISMISSED. 

 

3

 To the extent Plaintiff’s Motion seeks a determination that Defendants are joint employers under 

O.R.C. Chapter 4112, this request is now Moot, as both state law claims have been Dismissed. 
22 

IT IS SO ORDERED. 

 /s/ Algenon L. Marbley___ 

 ALGENON L. MARBLEY 

 CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 27, 2019