NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1288n.06 No. 11-3744 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

J OSEPH GAGL I OTI , Plaintif f-Appellant ,

v. L EVI N GROUP, I

NC. Defendant-

Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT CO U RT F O R THE NORTHERN DI STRI CT OF OH I O

O P I N I O N

BEF ORE: BA TCHEL DER, Chief J udg e, COL E, Circuit J udg e, and ROSEN, Chief District

J udg e. * COL E, Circuit J udg e. J oseph Gag lioti was hired by the L evin Group, I nc. (“L evin Group” )

at the ag e of 62 to work in the acc ounting depar tment. Ten mon t h s l ater , he was fired. Whil e initially claiming that Gag lioti was fired beca use his temporar y em p loy ment had come to an end, L evin Group als o eventua lly argued that it was Gag lioti’s poor perf ormanc e that resulted in his termination. Gag lioti s ued, ar g uing that his employ ment was terminated for two rea sons: his ag e, and the fac t that his wife had signific ant medical problems which would result in incre ased medical insurance costs for L evin Group. The district court g rante d summary judgme nt to L evin Group on all of Gag lioti’s claims. For the rea sons set fo rt h b el o w, we AFF I RM the g rant of summary

The Honora

ble Ger ald E

. R osen, Chief J udg e of the United States District Court for the * Easter n District of Michig an, sitting by desig nation.No. 11-3744

Gaglioti v. Levin Group, Inc. judgme nt on the disability discrimination and ERI SA claims, REVERSE on the ag e discrimination claim, and REMAND for f urther pr ocee dings c onsistent with thi s opinion.

I . BA CKGROUND Prior to 2005, J oseph Gag lioti was employ ed by Cole National, I nc., as its Vice President and Trea surer . This position was the culm i n at i o n of a long car eer in the acc ounting and corpor ate financ e field. His position at Cole National was eliminated in 2005 when the company was acquir ed by another corpor ation. As a result, Gag lioti rec eived a sever ance pack age wh i ch i ncluded three
y ear s of medical insurance cover ag e. That cover ag e was cruc ial to Gag lioti, as his wife suffe rs from signific ant medica l problems, including se vere arthritis that limit s her mobility

. I n 2008, with h is sever ance benef its expiring, Gag lioti met Mort L evin (“L evin”) , the President of L evin Group, at a social event. The L evin Group is a rea l es t at e entity that manag es g overnme nt-subsidiz ed housing projec ts. Gag lio ti and L evin discussed a potential position with L evin Gro u p . This led to a job interview and an offe r of a position as a staff acc ountant with the
company . A key portion of the job was to help L evin Group addre ss some immediate projec ts and priorities, including some portions of the busi n es s t h at wer e in arr ear s. Whil e L evin and the Comptroller of L evin Group, Ralph Pursley , maintain that the pos ition was alway s intended to be temporar y and li mited to the immediate projec ts, it is undisputed that Gag lioti was hired with full benef its. As part of his initial paper wo rk , Gag lioti filled out a medical insurance form which disclosed his wife’ s condition. I n J uly 2009, Gag lioti, along with all other L evin Group employ ees, filled out a new medical history form in connec tion with L evin Group’s rene wal of its medical insurance plan. I n that form, - 2 -No. 11-3744

Gaglioti v. Levin Group, Inc. Gag lioti disclos ed i n fo rm ati on rela ting to his wife’ s medical condition. The form was g iven to Pursley ’s assistant, thoug h both Pursley and L evin testified that they never saw it. I n Aug ust 2009, Gag lioti was informed that he would be terminated at the end of the month. The reason offere d by Pursley was that Gag lioti was alway s a temporary employ ee, a nd that there

was a lack of work for him t o d o . T h i s u n d erstanding was confirme d by L evin in an email to Gag lioti. I n addition to ar gu i n g that Gag lioti was a temporar y employ ee, L evin testified in his deposition that Gag lioti's work was poor, and that L evin had decide d to fire Gag lioti in “ea rly 2009.” Howeve r, Gag lioti never rec eived any complaints about his perf ormanc e, nor does the rec ord ref lect
any neg ative eva luations. 1 Gag lioti fi le d this action in state court, which was remove d to the United States District Court for the Norther

n District of Ohio. I n his complaint , h e asser ts four cause s of action rela ted to his termination: (1) ag e discrimination in violation of Ohio R.C. § 4112.02; (2) discrimination based on association with a disabled person in violation of Ohio R.C. § 4112.02; (3) discrimination based on association with a disabled person in violation of the Americ ans with Disabilities Act (“A DA”) , 42

There is, howeve r, evidenc e in the rec ord of dissatisfaction with Ga gl i o t i ’s work 1 perf ormanc e. Craig Tellerd, L evin Group’s acc ountant/tax advisor, testified in his deposition that he told Mort L evin and Ralph Pursley that Gag lioti’s work was unsatisfac tory and that he had “ask[ed] that [Gag lioti] be remove d from the work he was doing for me” beca use his work “wa sn’t satisfac tory , it was slowing me down ”, an d caused difficulty in meeting “the deadline that was assig ned to the t ax returns.” Fur thermore , Gag lioti’s claim t hat he never rec eived any complaints about his perf

ormanc e is not borne out in the rec ord. Gag lioti admitted in his deposition that he was not timely in g etting the work done for Tellerd and further testified that T el l er d ex p re ssed his dissatisfaction with his work product when he finally rec eived it. (“[Tellerd] went ballistic, was very upset.”) - 3 -No. 11-3744

Gaglioti v. Levin Group, Inc. U.S.C. § 12112 et seq.; and (4) i n t er fe re nce with employ ee benef its g uara nteed by the Employ ee Retirement I ncome Sec urity Act (“ ERI SA”), 29 U.S.C. § 1140 et seq. The district court found that Gag lioti made out a prima fac ie case on the ag e discrimination, ADA, and ERI SA claims, but held that L evin Group proff ere d leg itimate, nondiscriminatory rea sons for Gag lioti’s termination, and that Gag lioti had not demonstrated those rea sons to be prete x tual. I n a d d it io n , th e d istric t court held that Gag lioti’s association discrimination claim was not cog nizable under Ohio law. As such, the district court g rante d summary judgme nt to L evin Group on all claims. This appea l followed. I I . ANAL YSI S A. Standard of Review A g rant of summary judgme nt is revie wed de novo. W asek v. Arrow Energy Srvs., Inc. , 682 F.3d 463, 467 (6th Cir. 2012). All evidenc e in the case is viewed in the light most favor able to the non-moving party

—in this case Gag lioti—and all rea sonable infere nces must be draw n in favor of the plaintiff’s claim. Id. A court may only g rant summary judgme nt to the defe ndant wher e “ther e is no g enuine issue of materia l fac t,” which is d ef i n ed as a lack of evidenc e “‘suc h that [no]

rea sonable jury could return a verdic t f or the nonmoving party .’” Id

. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). All of Gag lioti’s claims are analy zed throug h the burden- shifting framework established in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792 (1973). Under this fr amewor k, a plaintiff must put forwa rd a prima fac ie case of discrimination under the rele vant statute. See Mauzy v. Kelly Srvs., Inc. , 664 N.E.2d 1272, 1276 (O h i o 1996) (quoting Barker v. Scovill , 451 N.E.2d 807, 809 (Ohio - 4 -No. 11-3744

Gaglioti v. Levin Group, Inc. 1983)) (ag e discrimination under Ohio R.C. § 4112.02); Humphrey s v. B el l a i r e C orp. , 966 F.2d 1037, 1043 (6th Cir. 1992) (E R I S A interfe renc e claim); W hitfield v. Tennessee , 639 F.3d 253, 258-59 (6th Cir. 2011) (ADA claim). On ce this is done, the burden of production shifts to the employ er to articula te leg itimate, non-discriminatory rea sons for the challeng ed action. Mauzy , 664 N.E.2d at 1276; Humphrey s , 966 F.2d at 1043. I f the employ er articula tes such non-discriminatory

rea sons, “the burden shifts back to Plaintiff ‘to prove by a preponderanc e of the evide nce that the leg itimate rea sons offe red by the defe ndant wer e not its true rea sons, but wer e a prete x t for discrimination.’ Plaintiff may establish that Def endants’ proff

ere d rea son is mere prete x t by establishing that it: (1) has no b as i s i n fa ct; (2) did not actua lly motivate Plaintiff's termination; or (3) was insuffi ci en t to war rant Plaintiff's termination.” Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007) (quoting DiCarlo v. Potter, 358 F.3d 408, 414 (2007)) (citing Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1084 (6th Cir. 1994)) (empha sis in orig inal). On this last prong , the plaintiff' s burden “is to produce sufficie nt e vidence from which a jury may rea sonably

reje ct the employ er' s explanation” and infer discrimination. Lefeve rs v. GAF Fiberglass Corp. , 6 6 7 F. 3 d 721, 725 (6th Cir. 2012) (interna l punctuation and c itations omi tted).

- 5 -No. 11-3744

Gaglioti v. Levin Group, Inc. B. Age Disc rimination under Ohio R.C. § 4112 1. Prima Facie Case The district court found that Gag lioti made out a prima fac ie case of ag e discrimination under Ohio R.C. § 4112, which require s that the “plaintiff- employ ee must demonstra te (1) tha t he was a member of the s tatutorily -protec ted class, (2) that he wa s discharg ed, (3) that he was qualified for the position, and (4) that he was repla ced by , or that his discharg e permitted the rete ntion of, a person not belong ing to the pr otected c lass.” Mauzy , 664 N.E.2d at 1276 (quoting Barker , 451 N.E.2d at 809). L evin Group conce des t hat Gaglioti was a member of

a prote cted c lass (as he was 63 at t he time of his termination), and that he was discha rg ed. L evin Group contends that the district court err ed in f inding that Gag lioti was qualified for the j ob, since (in the L evin Group’ s view) Ga g lioti was not able to car ry out his job functions in a

s ati sfac tory manner . This argument impermissibly confla tes the non-discriminatory rea sons fo r termination with the qualifica tions for the job. See Cline v . Catholi c Dioce se of Toledo , 206 F.3d 6 5 1 , 6 6 0

- 6 1 ( 6th Cir. 2000) (“[W] hen assessing whether a plaintiff has met her employ er’ s leg itimate expectations at the prima fac ie stag e of a termination case , a court must examine plaintiff’s evidenc e independe nt of the nondiscriminatory rea son ‘produc ed’ by the defe nse as its rea son for terminating plaintiff.”) I nstead, the standard for deter mining whether an employ ee is qualified for a position is whether the plaintiff “pr e sent[s] cre dible evidenc e that his or her qualifica tions are at least equivalent
to the minimum objective criter ia require d for employ ment in the rele vant field.” W exle r v. W hite's Fine Furniture, Inc. , 317 F.3d 564, 576 (6th Cir. 2003) (en banc)

. The district court, proper ly , found that Gag lioti had over forty y ear s of acc ounting experience , well bey ond the one to three y ear s listed - 6 -No. 11-3744

Gaglioti v. Levin Group, Inc. by L evin Group in its classified adver tisement. There fore , the district court is corr ect that Gag lioti made out a pr ima fac ie ca se of discr imination. L evin Group also contends that Gag lioti was not repla ced by a non-protec ted employ ee. The d istrict court found that L evin Group reta ined two y oung er staff acc ountants, L ori T i b b et s an d Delea h Wil liams in a perma

nent role. L evin Group argues that these employ ees wer e not simil arly situated with Gag lioti, as Gag lioti was a temporar y employ ee and the company had alre ady decide d
to termi n at e Ga glioti when they wer e hired. Ag ain, this rationale require s one to acc ept L evin Group’s proff

ere d non-discriminatory rea sons for Gag lioti’s termination, which is inappropriate at the p ri m a fa ce s t ag e. The district court was corr ect to find that the rete ntion of two y oung er

acc ountants while Gaglioti was terminated i s sufficie nt for Gag lioti t o m ee t his modest burden of proving a prima f

ace case of discrimination. 2. Non-Discriminatory Reasons/ Pretex t L evin Group offe red three non-discriminatory rea sons for terminating Gag lioti. First, L evin Group arg ues that Gag lioti’s position was alway s intended t o be temporar y , and Gag lioti was terminated once his t em p orar y assig nment was completed. I n a rela ted argument, L evin Group

asser ts that there was no work rema ining for Gag lioti to do for the company , and as such his

t ermination repr esents a downsizi ng of acc ounting operations. Finally , L evin Group argue s t h at Gag lioti’s performa

nce w as def

icient and r esulted in his termination. Gag lioti’s prete x t argument proce eds on two separ ate trac ks. First, Gag lioti argues that eac h of these three rea sons wer e asser ted by L ev in Group at differ ent points as the sole rea son for his termination. I n other words, Gag lioti asser ts that L evin Group has chang ed its rea sons for firing him - 7 -No. 11-3744

Gaglioti v. Levin Group, Inc. during the course of this litigation. Six th Circuit case law is clea r that “[a]n employ er’ s chang ing rationale for making an adve rs e em ploy ment decision can be evidenc e of prete x t.” Thurman v. Y ellow Freight Sys., Inc. , 90 F.3d 1160, 1167 (6th Cir. 1996); see also Clay v. United Parcel Serv., Inc. , 501 F.3d 695, 713 (6th Cir. 2007) (quoting Id. ). A cl o s e re ading of the rec ord sug g ests, howeve r, t hat i t was not so much t hat L evin Group chang ed it s story as i t supplemented it

. I n the email responding to Gag lioti’s claim that his termination was improper, L evin focuse s exclusively

on the temporar

y nature of the position. Simi larly , the aff idavit L evin filed in response to the EEOC complaint makes no mention of a ny perf ormanc e-r elated problems, and instead only discusses the lack of further

need f or Ga g lioti’s services. How ever , in its motion for summary judgme nt, L evin Group arg ues that the combination of poor perf ormanc e and temporar y employ ment status wer e responsible for Gag lioti’s termination. Whil e it is cer tainly suspicious that the performanc e is sue does not come up until well i nto the litigation, L evin Group ne ver a bandons the idea

that Gag lioti

was a temporar

y employ ee—in f

act, the c ompany

still argues it on appea l. So it is not acc urate to
say that L evin Group chang ed its position over the course of the litigation. Thus, the moving- targ et
nature of L evin Group’s explanation for the firing , while perha ps casting a pall of suspicion over its actions, is not enoug h by

itself to cre ate a

disputed issue of mater ial fac t. Howeve r, Gag lioti’s second arg ument is meritorious, as there is sufficie nt evidenc e in the

rec ord to cre ate a dispute of materia l fac t over eac h of the proff ere d justifications, taken individually , for Ga g lioti’s termination. First, the argument that Gag lioti was a temporar y employ ee is belied by L evin Group’s own employ ee manual. The manual define s a “tempora ry employ ee” to be one that, among other criter ia, - 8 -No. 11-3744

Gaglioti v. Levin Group, Inc.

rec eives no benef

its. I t is undisputed that Gag lioti re ceive d health insurance benef its a s part of his employ ment by L evin Group—other wise, he never would have rec eived the health history form that is at the hea

rt of the ERI SA and ADA c laims. So, by L evin Group’ s own definition, Gag lioti was
not a “temporary empl oy ee.” I ndeed, Mort L evin testified that he understood Gag lioti to be a full-time em p l o y ee as provided for in the handbook. L evin Group’s response in essenc e is that, while Gag lioti may hav e b ee n a perma nent employ ee in a technica l sense, he was a temporar y employ ee in the sense that the company never planned to keep him bey ond the end of the job duties he wa s assig ned. Whil e this is plausible, couple d with the prima facie evidenc e of L evin Group’ s
rete ntion of two y oung er employ ees who wer e hired afte r Gag lioti, a rea sonable juror could conclude that this “tempora

ry employ ee” justification was cra fted post hoc by L evin and Pursley to cover an improper rea son for firing him. I f L evin and Pursley did view Gag lioti as a temporar y employ ee, it is undisputed that they did not expli citly comm u n i ca t e this understanding to Gag lioti until his termination. The idea, ref ere nced in the termination email, that Gag lioti was informed orally from the beg inning that his e mploy ment was temporar

y is not supported any

wher e in the rec ord bey ond the testimony

of Pursley

and L evin. More fundame ntally , to survive summary judgme nt, Gag lioti is not require d to disprove the contention that his employ ers alway s v i ewe d him as a temporar y employ ee to—he simply has to show that it would be reasonable for a juror not to believe L evin Group’ s claim. The discrepanc y betwee n Gag lioti’s officia l job classification and L evin Group’s purported understanding of his role is a rea son to doubt L evin Group’s ac count, particula rly when the only evidenc e to support this

- 9 -No. 11-3744

Gaglioti v. Levin Group, Inc. explanation is the potentially self-se rving tes t i m o n y of L evin and Pursley

. Gag lioti has cre ated a disputed issue of mater ial fac t on whether he wa s a tempora

ry employ ee. Simi lar inconsistencies plag ue L evin Group’s arg ument that there was no more work for him
to do once his initial projec ts wer e completed. Pursley , in his deposition, stated that he would have
reta ined Gag lioti if there had been work him to do. Howeve r, Pu rs l ey al s o t est ified that the

acc ounting depar

tment was larg er as of the time of his deposition than it was when Gag lioti was hired, having g rown from three staff acc ountants to four. The logic al infere nce from this fac t is that there was more work in Gag lioti’s depar tment at the time of his termination, not less. Ag ain, the question is not whether there are way s to square these two fac ts, but whether a juror could rea sonably conclude that this inconsistency is enoug h to discredit L evin Group’ s acc ount. A j uror could see
t wo incompatible versions of the amount of work neede d by the company , and conclude t h at t h i s justification is pretextual. T he argument that Gag lioti’s work perf ormanc e was poor suffe rs from simil ar p ro b l em s . Although, as noted, there is evidenc e in the rec ord of dissatisfaction with Gag alioti’s work, there is the fac t that this justification was never raised by L evin Group until well into the litigation—as discussed above, the initial emails and case filings deal exclusive l y wi t h the temporar y employ ee / l ac k o f work justification. Whil e this fac t may not be enoug h to show a chang ing rationale , it would allow the jury to view the perf ormanc e arg

ument as a li t i gat i o n s t rate g y , as opposed to the rea l rea son for the action. See Tyler v. Re/Max Mountain States, Inc. , 232 F.3d 808, 813 (10th Cir.2000) (“We are disquieted.

. . . by an employ er who ‘fully ' articula tes its re asons for the first time months after the decision wa s made.” ); see also EEOC v. Sears Roebuc k & Co. , 243 - 10 -No. 11-3744

Gaglioti v. Levin Group, Inc. F.3d 846, 853 (4th Cir. 2001) (finding prete x t wher e the non-discriminatory rea son for not hiring the plaintiff emer g ed only afte r the beg inning of litigation). This is potentially enoug h for a jury to discount this a

rg ument. Moreove r, it is undisputed that there is no documentar y evidenc e, such as

a persona l r ecor d or eva luation, that substantiates that Gag lioti’s performa nce w as def

icient. This buttresses the possibility

that poor per formanc e wa s a post hoc cr eation by L evin Group. Finally , the deposition testimony of th e t wo key play ers—L evin and Pursley —is
contra dictory on whether unsatisfac tory perf ormanc e was the rea l rea son for Gag lioti’s termination. L evin states emphatica lly that perf ormanc e was the rea son for Gag lioti’s termination. (“Q : I s it y our testimony on behalf of the defe ndant, and from y our vantag e point, that J oe Gag lioti was terminated for work perf

ormanc e? A: Yes.” ) P u rs l ey , h o wever, states that work perf ormanc e “didn’t have
any thing to do with why he was fired,” rely ing instead on the lack- of-wor k jus t i fi cations. I nconsistent rea sons g iven by key decision- maker s as to the rea son for the firing can provide

ev i dence of prete x t. Tinker v. Sears, Roebuc k & Co. , 127 F.3d 519, 523 (6th Cir. 1997) (“The inconsistency of these statements by the differ ent manag ers . . . cre ates [an important] question[] of materia l fac t . .

. what was the rea son that cause d that decision make r to dec ide that Tinker should be fired? ”). Any one of these iss ues, or all of t hem i n combination, p ro v i d e a jury with a basis to conclude that poor per formanc e wa s a pre text ual justification for Ga g lioti’s firing. 3. “Same Actor” Inferenc e As an alterna

tive holding, the district court deter mine d t h at Gag lioti’s R.C. § 4112 claim (and the ADA c laim as well) is bar red by the “sa me ac tor” inferenc e. The “same actor” infere nce “allows one to infer a l ack of discrimination from the fact that the s ame indivi dual bot h hired and - 11 -No. 11-3744

Gaglioti v. Levin Group, Inc. fired the employ ee.” Buhrmaster v. Ove rnite Transp. Co. , 61 F.3d 461, 463 (6th Cir. 1995). The en banc court clar ified t he scope of t he inferenc e, “rejec t[ ing] th e i d ea that a mandatory infere nce
must be applied in favor of a summary -judg ment movant whene ver the claimant has been hired and fired by the same individual.” W exle r , 317 F.3d at 573. Inst ea d , t h e co u rt stated “[w]e there fore specific ally hold that wher e, as in this case , the fac t finder decide s to draw the same-a ctor infere nce, it is insufficient to war

rant summary judgme nt for the defe ndant if the employ ee has otherwise raised
a g enuine issue of

materia l fac t.” Id. at 573-74. The district cou rt p o i n t s t o u n p u b l i s hed case s wher e the same actor infere nce has bee n applied wher e there is no direc t evidenc e of discrimination. Mischer v. Erie Metro Housing Author. , 168 F.App’ x 709, 717 (6th Cir. 2006); W offord v. Middletown Tube W orks, Inc ., 67 F.App’ x 312, 318 (6th Cir. 2003). This confla tes the questions of when to apply the same actor infere nce and what weig ht to g ive the infere nce. I t is entirely possible that the same-a ctor infere nce is applicable to this

case , and that a same-a ctor jury instruction will be ap p ro p riate. But, as W exle r makes clea

r, the

same-a ctor infere nce cannot be an independe nt rea son to g rant summary judgme nt wher e there are other disputes of materia l f act. For the rea sons discussed above, there are disputes of materia l fac t
reg arding L evin’s proff

ere d rea sons for firing Gag lioti. As such, while the same-a ctor infere nce may be applica

ble to this case a

t trial, it is not applicable to this case on summary judgme nt. C. Prima Facie Case Unde r the ADA The district court analy

zed the prima fac ie case of disability discrimination under the ADA offe red by Gag lioti under a four- part test, wher e the plaintiff mus t s h o w: “(1) the employ ee was qualified for the position; (2) the employ ee wa s s u b ject to an adver se employ ment action; (3) the - 12 -No. 11-3744

Gaglioti v. Levin Group, Inc. employ ee was known to be associate d with a disabled individual; and (4) the adver se employ ment action occur

red under circ umstances that rai s e a re asonable infere nce that the disability of the rela tive was a deter

mining fac tor in the decision.” Stansberry v. Air W isconsin Airlines Corp. , 651 F.3d 482, 487 (6th Cir. 2011). The district court found that Gag lioti made out a prima fac ie case of

a s sociation discrimination, holding that the temporal proxi mity betwee n the s u b mi s s io n o f G a g li o ti ’ s insurance form and his termination raised an infere nce that Gag lioti was terminated for the purpose of reduc ing health car e costs. See also Larimer v. IBM Corp. , 370 F.3d 6 9 8 , 7 0 0 (7t h Cir. 2004) (ar ticulating the “expense” theory of association discrimination); Stansberry , 651 F.3d at 487 (citing Larimer ). L evin Group conce des t hat t here was an adver se employ ment action, but arg ues on appea l

t h at Gag lioti can meet none of the other three prong s. On the qualifica tion prong , L evin Group

rea sserts that Gag lioti was not qualified for the position due to his inability to pr operly do the job. As discussed above, howeve r, the qualifica tion p ro n g t u rn s on the objective qualities of the applicant, not on a subjective belief on the part of the employ er that the work product was defic ient. Thus, as wit h his ag e dis criminatio n cl ai m , t h e dis trict court was corr ect to find that Gag lioti was “qualifie d” for

purposes of his AD A claim. L evin Group also asser

ts that the key d ecision-makers, L evin and Pursley , wer e not awa re that Gag lioti’s wife was disabled. Gag lioti ar g ues that L evin saw that his wife was disabled at the initial meeting at t he cocktail party that led t o the j o b o ff er . Gag lioti also asser

ts that he spoke to Pursley informally on numerous occa sions about his wife’ s medical problems. Finally , it is undisputed that Gag lioti submitt ed two medical insurance forms to L evin Group—onc e at his initial - 13 -No. 11-3744

Gaglioti v. Levin Group, Inc. hiring , and once in J uly 2009. Whil e Pursley disputes that he revie wed the insurance forms prior to Gag lioti’s termination, t ak i n g t he fac ts in the light most favor able to Gag lioti, there is enoug h evidenc e in the rec ord to find that the key L evin Group decision-make rs wer e awa re of the condition of Ga g lioti’s wife. Howeve r, the evidenc e does not support an infere nce that Gag lioti’s termination was rela ted
to his wife’ s disability

. The district court relied on the temporal connec tion betwee n Gag lioti’s submissi on of the J uly 2009 insurance form and his termination as the b as i s for the infere nce of discrimination. Yet, it is undisputed that the insurance form Gag lioti provided at the time of his initial hire contained the same basic information as the form he submitt ed in J uly 2009. I n other words, the J uly 2009 insurance form—the only event close in time to Gag lioti’s termination—adde d nothing ne w, and thus ca

nnot be the basis for a

n infere nce of

discrimination. See Stansbe rry , 651 F.3d at 488 (“B eca

use Air Wis consin knew of her disability for a long period of time, this underc uts the infer ence that Stansberry ’s termination wa s based on . . . his wife ’s disability . . . .”) Gag lioti arg ues that the July 2009 form wa s signific ant beca use it came in an environme nt wher e P ursley was seeking to cut costs, and thus the l ater form influenced the firing d ec i s i o n in a way the former did not. Whil e it is true that L evin Group’s medical insurance was up for rene wal, and that Gag lioti ’s wi fe wa s a high- risk benef iciary , Gag lioti has not put forth any evidenc e that L evin or Pursley we re co n cerned about the cost of Gag lioti’s wife’ s cover ag e. The district court found t hat “Pursley and L evin never had a conversation with other employ ees or Plaintiff that the
comp a n y w a s c o n c e r

n e d w ith health car e costs.” Moreove r, L evin Group’s insurance broker , Shelley Chornak, testified that she never discussed Gag lioti’s si tuation with any one assoc iated with L evin - 14 -No. 11-3744

Gaglioti v. Levin Group, Inc. Group. The few prior case s in this circ uit dealing with the “expens e” t h eory of association discrimination a ll r equire some showing that the potential medical expenses of the fired employ ee

wer e on the minds of the decision maker at the time of the termination. Compare W hite v. Carmeuse Lime & Stone , Inc., No. 2:09-cv-265, 2011 WL 3585064, at * 8 (W.D. Mich. May 31, 2011) (“In short, no evidenc e is f

ound in the rec ord to show that Himes, Mickelson, Tunnicliff e, or any other Carmeuse manag ers were awa re of the amount of [P laintiff’s daug hter’s] healthca re expenses or health care claims, or t hat t hey wer e in any respe ct concerne d about t hose ex penses.” ) with Lyons

v. Core Systems, LLC , No. 2:10-cv-75, 2011 WL 4402777, at *15 (S.D. Ohio September 21, 2011) (“Ly ons argues that the Core Sy stems’ manag ement employ ee’ s repe ated statements about the high
cost of health car e at Mt. Gilead raise a rea sonable infere nce that Core Sy stems fired L y ons beca use his wife’ s dis ability was too expensive. This fac t may be sufficie nt to shift the burden to Core Sy stems to offe r a leg itimate rea son for the termination

. . . .”); see also Stansberry , 651 F.3d at 488 (“A plaintiff ca

nnot by pass the prima f

acie showing require ment and must offe r some evide nce to
sug g est that the adver se employ ment ac t i on he or she suffe red was due in some measure to discriminatory

animus. . . .”). The re is no evidenc e, bey ond Gag lioti’s allegations, that Gag lioti’s wife’ s medical e x penses we re on the minds of L evin or Pursley

. Gag lioti cannot make out a prima fac e case of a ssociation discrimination under the A DA. As we may aff

irm a g rant of summary judgme nt “on any g rounds supported by the rec ord,” Pahssen

- 15 -No. 11-3744

Gaglioti v. Levin Group, Inc.

v. Merrill Comm. Sch. Dist. , 668 F.3d 356, 362 (6th Cir. 2012) , we aff irm the district court’s g rant of summary

judgme nt as to the ADA c laim

. 2
D. Prima Facie Case of ERISA Inte rference To make out a claim of interfe renc e with benef its g uara nteed under ERI SA, the plaintiff must show “(1) prohibited employ er co n duct (2) taken for the purpose of interfe ring (3) with the attainment of any rig ht to which the employ ee may become entitled.” Humphrey s , 996 F.2d at 1043. The distr i ct co u rt found that Gag lioti met his prima fac ie case , rely ing on the temporal proxi mity betwee n the firing and the submissi on of the insu ra n ce q u es t ionnaire (which, at least potentially , could have led t o signific antly g reater health insurance costs) t o provide an infere nce of improper employ er conduct. Howeve r, in order to make out a prima fac e case of ERI SA interfe renc e, the Plaintiff must alleg e that the employ er “had a specific intent to violate ERI SA.” Id. (quoting Rush

v. United Technologies, Otis Elevator Div. , 930 F.2d 453, 457 ( 6th Cir. 1991)) (interna l quotation marks omitted). Unlike with the ag e discrimination and ADA claims, wher e infere nces of discrimination are sufficie nt to meet the burden at the prima fac e stag e, Gag lioti must poi nt to specific evidenc e that shows that the desire to reduc e medical costs motivated his termination. No such evidenc e exis ts in the rec ord. As mentioned previously , the district court found that “Pursley

Gag lioti also raised an association discrimination claim under Ohio R. C. § 4 1 1 2.02(A). The 2 district court g rante d summary judgme nt on this claim, holding that the statute does not provide for an association claim. Assuming arguendo that the statute does provide this cause of action, see Cole v. Seafare Enterp. Ltd., Inc. , No. C-950157, 1996 WL 60970, at *2 (Ohio Ct. App. Fe b. 14, 1996), any claim under R.C. § 4112.02(A) would fac e the same difficulties at t he prima fac e stag e as the ADA claim. There fore , we aff irm the g rant of summary judgme nt as to that claim on the merits, and take no position on whether R.C. § 4112.02(A) applies to assoc iation discrimination claims.

- 16 -No. 11-3744

Gaglioti v. Levin Group, Inc. and L evin never had a conver s at i o n wi t h other employ ees or Plaintiff that the company was

conce rned w ith health car e costs.” T hus, Gag lioti’s claim that he was fir ed in response to the fea r of highe r health car e costs is entirely infere ntial, and not sufficie ntly supported by specific evidenc e
to make out a p ri ma fac ie case of ERI SA interfe renc e. There fore , we also aff irm the g rant of
summary judgme nt to L evin Group on G ag lioti’s ERI SA interfer ence claim. I I I . CONCL USI ON We AFF I RM the g rant of summary judgme nt as to the disability discrimination and ERI SA interfe renc e claims, REVERSE the g rant of summary judgme nt as to the ag e discrimination claim, and REMAND f

or fur ther proc eeding s consistent with this opi nion.

- 17 -