Joseph Nilles v. Givaudan Flavors Corp.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0314n.06
No. 12-3673
FILED
UNITED STATES COURT OF APPEALS Mar 29, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
JOSEPH C. NILLES, )
)
Plaintiff-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Southern
GIVAUDAN FLAVORS CORP., ) District of Ohio
)
Defendant-Appellee. )
Before: BOGGS, GIBBONS, and COOK, Circuit Judges.
BOGGS, Circuit Judge. Plaintiff-appellant Joseph Nilles filed a claim against his employer,
defendant-appellee Givaudan Flavors Corp. (Givaudan), alleging that his termination was the result
of disability discrimination, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12112, and Ohio Rev. Code § 4112.02(A). Nilles also alleged that his termination constituted
illegal retaliation, in violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615. The
district court granted summary judgment to Givaudan on all counts, and Nilles now appeals. For the
reasons that follow, we affirm the decision of the district court.
I
Givaudan is a manufacturer of scents and flavors that are used in foods, perfumes, and other
consumer products. In 2003, Givaudan hired Nilles as a purchasing supervisor for its Cincinnati,
Ohio, and East Hanover, New Jersey, facilities. Givaudan hired Jack Dabney in mid-2007 as its
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regional purchasing supervisor, a position with supervisory authority over Nilles. In November
2010, Nilles, who was now responsible for purchasing at Givaudan’s Carthage, Ohio, and Devon,
Kentucky, facilities, told Dabney that he had received an offer for another job and used this offer as
leverage to negotiate more favorable terms of employment with Givaudan. Givaudan was short-
staffed and agreed to give Nilles an eight-percent increase in pay and to hire another employee to
help with purchasing at the Devon facility. Soon after, Givaudan hired Nancy Fulmer, who took
over purchasing at the Devon facility. Both Dabney and Nilles interviewed Fulmer, who had
extensive experience in the flavor-purchasing industry, and Nilles himself recommended that Fulmer
be hired. After completing her training, Fulmer held the exact position at the Devon facility that
Nilles held at the Carthage facility, and, while Fulmer reported to Nilles for a few months during her
training, she eventually reported directly to Dabney.
In 2008, several incidents occurred that prompted Dabney to talk with Nilles about his job
performance. In September 2008, one of Nilles’s subordinates, Kay Whitener, left Givaudan, stating
in her exit interview that she “love[d] Givaudan” but that she had to leave given her “very difficult
manager/subordinate relationship with Joe Nilles.” While Whitener mentioned that her new job had
a higher salary, she made clear “that money was [not] the driving force in my decision[, and that t]he
main driving force is Joe Nilles.” Specifically, Whitener complained that “[t]here is no effective
communication within the very small purchasing group in Carthage” because “[a]s a manager,
[Nilles] is horrible.” In response to Whitener’s comments, Deborah Pickering (sometimes referred
to as Deborah Navarro in the record) of Givaudan human resources sent Dabney an email suggesting
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that he develop “a plan of action with regard to [Nilles] before other people exit the company, or the
perception of your department suffers more.”
In his affidavit, Dabney stated that Nilles had “performance problems” throughout 2008,
noting that Nilles’s “communication and interpersonal skills were lacking, . . . [he] had problems
being a self-starter[,] . . . requiring step-by-step instructions on how to proceed[, and his] project
management abilities did not meet my expectations.” Dabney asserts that he spoke with Nilles about
these issues throughout 2008, a claim that Nilles does not deny except to point out that these
conversations did not constitute formal discipline. Dabney also met with Nilles in February 2009
to conduct his annual evaluation, at which time Dabney discussed all the above-mentioned concerns
that he had about Nilles’s performance. Nilles claims that “he did not consider this review as any
kind of warning that his performance was so poor that his job was in jeopardy,” and he points out
that “Givaudan paid [him] a merit-based bonus for his performance in 2008, which recognized his
achievement of his annual objectives.”
In response to these issues, Dabney and Pickering came up with a plan to terminate Nilles
based on his poor performance. Before Nilles could be fired, they felt that Givaudan needed to hire
and train a replacement for Whitener. Once this objective was met, Dabney and Pickering planned
to transfer Fulmer to Nilles’s job and also have her continue with her old duties managing the Devon
facility until a replacement could be found. While it is unclear exactly when this course of action
was formulated, Dabney indicated that the original plan had a “target completion timeframe of First
Quarter, 2009,” but that completion was delayed due to “the longer than anticipated timeframe
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required for recruiting the new [replacement for] Kay Whitener.”1 In addition, Pickering left
Givaudan in 2009 and was replaced by Willie Spencer. There are no emails in the record between
Dabney and Pickering that describe their plan to terminate Nilles, and the most complete description
of the plan is in an August 5, 2009, email that Dabney sent to Spencer catching him up on the plan
and explaining why it had been delayed. Spencer asserts that he had no input in Dabney’s decision
to terminate Nilles and that after Dabney informed him of the plan to fire Nilles, Spencer’s only
involvement was to recommend that Dabney compare Fulmer and Nilles—in order to ensure that
Fulmer was the right person for Nilles’s position—and to provide Dabney with an HR form for
conducting this comparison.
Meanwhile, in July 2009, another of Nilles’s subordinates, Scott Umphlett, resigned, stating
in his exit interview that while he was leaving because he had received a “great opportunity and
offer,” Nilles was the reason he started looking for another job. Umphlett provided a lengthy
description of his issues with Nilles, reprising many of the problems Whitener and Dabney had
already identified.
Following Spencer’s recommendation, Dabney completed a formal comparison of Nilles and
Fulmer and concluded that Nilles should be fired. Dabney relayed this recommendation to his boss
in Switzerland, Johannes Rogaar, who approved it perfunctorily. On October 20, 2009, Dabney and
Spencer informed Nilles that he was being terminated.
1
Whitener’s replacement, Nancy Lauer, was hired at the end of May 2009, and Dabney stated
that “we needed to allow time for her ramp-up” before Nilles could be terminated.
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Throughout this time period, Nilles had taken FMLA leave several times. In January 2008,
Nilles took FMLA leave for a respiratory infection, and in late March and early April 2009, he again
took FMLA leave, this time for dizziness and headaches. Both of these leaves, along with the
payment of short-term disability benefits, were approved under the FMLA by Matrix, a contractor
that administered leave for Givaudan. Furthermore, after each leave, Nilles returned to his previous
position with full pay and benefits. Nilles learned during his second leave of absence that he had
Multiple Sclerosis (MS) and told Spencer in April 2009. Nilles admits that he told no other
employee at Givaudan about his MS and does not challenge Spencer’s statement that Spencer “did
not tell anybody” because Nilles “came to me in confidence . . . [and] asked me to keep it to myself.”
During his leaves of absence, Nilles told Dabney only that he was sick, that he was being treated by
several doctors, and, at one point, that he was getting an MRI. In addition, only Nilles’s
symptoms—first an upper respiratory infection and later dizziness and headaches—were listed on
his two requests for leave, with no mention of his MS.
After his termination, Nilles filed a complaint against Givaudan alleging, inter alia, disability
discrimination, in violation of the ADA and Ohio Rev. Code § 4112.02(A), and illegal retaliation,
in violation of the FMLA.2 On March 1, 2012, Givaudan filed a motion for summary judgment, and
the district court granted its motion on all of Nilles’s claims. With respect to Nilles’s disability-
discrimination claims, the district court held that Nilles had failed to show that Dabney, the sole
2
Nilles’s original complaint also alleged illegal interference with his FMLA rights, in
violation of the FMLA, and gender discrimination, in violation of Title VII and Ohio Rev. Code
§ 4112.02(A). On appeal, he does not challenge the district court’s grant of summary judgment as
to those claims.
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decision-maker, had any knowledge of Nilles’s disability and thus that Nilles had not established a
prima facie case of disability discrimination. Turning to Nilles’s FMLA retaliation claim, the district
court held that Nilles had not demonstrated a causal connection between his taking FMLA leave and
his subsequent termination and thus that he had failed to state a prima facie case of FMLA
retaliation. Thereafter, Nilles timely appealed.
II
Summary judgment is appropriate when “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). This court reviews the grant of a motion for summary judgment de novo. Hirsch v. CSX
Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). We must construe all evidence and draw all
inferences against the moving party. Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th
Cir. 2009). However, “‘[t]he mere existence of a scintilla of evidence in support of [the non-moving
party’s] position will be insufficient; there must be evidence on which the jury could reasonably find
for the [non-moving party].’” Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 576 (6th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In this analysis, “the judge’s
function is not himself to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
III
A
Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual
on the basis of disability in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). To make
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out a prima facie case of disability discrimination under Title I through the use of indirect evidence,
a plaintiff must show:
1) he or she is disabled; 2) otherwise qualified for the position, with or without
reasonable accommodation; 3) suffered an adverse employment decision; 4) the
employer knew or had reason to know of the plaintiff’s disability; and 5) the position
remained open while the employer sought other applicants or the disabled individual
was replaced.
Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (internal quotation marks omitted). If a
plaintiff meets these requirements, “the burden shifts to the defendant to articulate a
non-discriminatory explanation for the employment action, and if the defendant does so, the burden
shifts back to the plaintiff to prove that the defendant's explanation is pretextual.” Ibid.In addition, “analysis of claims made pursuant to the Americans with Disabilities Act applies
to claims made pursuant to Ohio Revised Code § 4112.02.” Jakubowski v. Christ Hosp., Inc., 627
F.3d 195, 201 (6th Cir. 2010). Accordingly, disability claims brought under Ohio law may be
evaluated concurrently and under the same standards as claims brought under the ADA.
B
In the instant case, the district court found, and no party disputes, that the only element at issue
in Nilles’s attempt to establish a prima facie case is whether Givaudan knew or had reason to know
of Nilles’s disability. While Nilles argues that “the knowledge requirement is met if the legal entity
was on notice” of his disability, see Appellant Br. at 11, existing case law makes clear that an
employee cannot be considered to have been fired “on the basis of disability” unless the individual
decision-maker who fired the individual had knowledge of that disability, see Burns v. City of
Columbus, Dep’t of Pub. Safety, Div. of Police, 91 F.3d 836, 844 (6th Cir. 1996) (holding that
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plaintiff could not establish a prima facie case of disability discrimination because he had failed to
show that the members of a review board that made the ultimate decision to terminate him knew of
his disability); Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1181–82 (6th Cir. 1993)
(holding that because “it was the Board of Directors, and not the president, who suspended plaintiff,”
plaintiff could not state a claim of disability discrimination where “[t]here is no showing that the
Board had any knowledge of plaintiff’s mental illness”); Moloney v. Home Depot U.S.A., Inc., 2013
WL 460684, No. 11-10924, at *1 (E.D. Mich. Feb. 7, 2013) (“[B]ecause Keith Stevens made the
decision to terminate Plaintiff’s employment, . . . it is Stevens’s knowledge, as the decision-maker,
that is relevant.”); see also Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1185 (11th Cir. 2005) (“Once
the issue is framed clearly, it is evident that an employee cannot be fired ‘because of’ a disability
unless the decisionmaker has actual knowledge of the disability.”); Hedberg v. Ind. Bell Tel. Co., Inc.,
47 F.3d 928, 932–33 (7th Cir. 1995) (holding that lack of knowledge of decision-maker is fatal to a
prima facie case under the ADA because “it is intuitively clear when viewing the ADA’s language
in a straightforward manner that an employer cannot fire an employee ‘because of’ a disability unless
it knows of the disability”).3 On this factor, Nilles has clearly failed to carry his burden of showing
that Dabney, the sole decision-maker with respect to Nilles’s firing, knew of his disability.
3
While the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified
as amended in scattered sections of 42 U.S.C.), changed the language of the Act from prohibiting
discrimination “because of” disability to discrimination “on the basis of” disability, this does not
affect the reasoning of the pre-2008 decisions with respect to decision-maker knowledge. It is
equally true that an employee cannot be fired “on the basis of” his disability unless the individual
firing him knows of that disability.
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Nilles does not contest that Dabney was the sole decision-maker for his termination and
admits that he told no one at Givaudan about his MS except Spencer. Furthermore, Spencer
specifically stated in his affidavit that, at Nilles’s request, he told no one else at Givaudan about
Nilles’s disability. Nilles presents no evidence to refute Spencer’s statement or otherwise suggest that
Dabney knew of his MS. Instead, Nilles argues only that a jury must be allowed “to evaluate whether
Spencer’s knowledge should be imputed to Jack Dabney.” Appellant Br. at 12. “The mere existence
of a scintilla of evidence in support of [Nilles’s] position [is] insufficient’” to allow us to draw the
speculative inference that Spencer lied in his affidavit and in fact did relay Nilles’s medical
information to Dabney. Shropshire, 550 F.3d at 576 (quoting Anderson, 477 U.S. at 252). Here,
Nilles has produced even less than a scintilla of evidence and simply asks the court to disbelieve
Givaudan’s affidavits. This is untenable. See Brown v. City of Franklin, 430 F. App’x 382, 386 (6th
Cir. 2011) (“[Plaintiff] contests [the fact that defendant knew plaintiff engaged in a protected activity]
simply by contending that human resources ‘must have told’ [defendant] of [plaintiff’s] statements
[made in HR interviews]. This, however, is pure speculation, and [plaintiff] conceded that he has no
evidence to undermine [defendant’s] claim of ignorance.”); Burns, 91 F.3d at 844 (holding that
plaintiff had not established employer’s knowledge of his disability because he “failed to present any
evidence to contradict the affidavit testimony of the . . . Board members who claim to have been
unaware of [plaintiff’s] injury when they made their decision to recommend his termination”).
In addition, Nilles asks us to assume that Spencer’s knowledge can be imputed to Dabney
because “Spencer advised Dabney regarding the consolidation of the purchasing manager positions.”
Appellant Br. at 12. The record contains no evidence, however, to dispute Spencer’s assertion that
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he only spoke with Dabney about the process for firing Nilles, as was his job as a human resources
employee, and never made any recommendations on the substance behind Nilles’s termination.
Again, without any evidence to suggest that Spencer played a substantive role in Nilles’s firing, Nilles
cannot ask us to speculate that such conduct occurred.
Finally, Nilles argues that Dabney knew that Nilles was disabled because, given Nilles’s two
leaves of absence, Dabney knew that Nilles was sick. Knowledge of an employee’s symptoms,
however, does not necessarily equate to knowledge of his disability. See Hammon v. DHL Airways,
Inc., 165 F.3d 441, 450 (6th Cir. 1999) (holding that employer had no knowledge of plaintiff’s
disability merely because employer knew of several of his symptoms); Brown v. BKW Drywall
Supply, Inc., 305 F. Supp. 2d 814, 829 (S.D. Ohio 2004) (“Knowing that an employee has health
problems, however, is not the same as knowing that the employee suffers from a disability.”). Of
course, if Nilles’s symptoms were severe enough to alert Dabney that Nilles had a disabling condition,
one might be able to conclude that Dabney knew of Nilles’s disability or at least had some generalized
notion that it existed. But in the instant case, Dabney only knew that Nilles had taken two leaves of
absence, each for less than a month and separated by over a year, and that Nilles was seeing several
doctors and had had an MRI. This information does not strongly imply that Nilles had a permanent
disability and is just as, if not more, consistent with the perception that Nilles simply was suffering
from one or more temporary illnesses.
Accordingly, the district court correctly held that Nilles failed to establish a prima facie case
of disability discrimination under either the ADA or Ohio law and appropriately granted Givaudan’s
motion for summary judgment on those claims.
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IV
A
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). This language has been read as creating a cause of action against employers who
retaliate against employees for taking FMLA leave. See Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th
Cir. 2012). In order to establish an FMLA retaliation claim, a plaintiff must demonstrate:
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew that
she was exercising her rights under the FMLA; (3) after learning of the employee’s
exercise of FMLA rights, the employer took an employment action adverse to her; and
(4) there was a causal connection between the protected FMLA activity and the
adverse employment action.
Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). If a plaintiff satisfies this
framework, “[t]he burden then shifts to [the defendant] to articulate a legitimate, nondiscriminatory
reason for [plaintiff’s] discharge.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th
Cir. 2001). If the defendant is able to articulate such a reason, the plaintiff “has the burden of
showing that the articulated reason is in reality a pretext to mask discrimination.” Ibid.B
In granting summary judgment for Givaudan on this claim, the district court held that Nilles
had not demonstrated a causal connection between his taking of FMLA leave and his eventual firing.
The district court reasoned that Dabney’s plan to terminate Nilles, which was formulated well before
Nilles’s final taking of FMLA leave in 2009, demonstrated that the 2009 FMLA leave itself was not
the reason for Nilles’s firing. In addition, the district court noted that, even assuming there was no
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plan to fire Nilles prior to his 2009 FMLA leave, Nilles’s only other evidence of causation was the
temporal proximity between his 2009 FMLA leave and his eventual firing. Observing that Nilles’s
last period of FMLA leave ended in April 2009 and that he was not fired until October 20, 2009, the
district court stated that Nilles’s termination “over six months after his last FMLA leave” was
insufficient temporal proximity to establish causation.
We agree that if, as the district court found, Dabney had formulated a plan with Pickering
some time in late 2008 or early 2009 to fire Nilles, this plan would have existed well before Nilles’s
second, 2009 FMLA leave and thus would discredit Nilles’s claim that his termination was motivated
by that leave. With respect to his earlier FMLA leave, taken in January 2008, while neither the parties
nor the district court discussed the issue at length, it seems clear that this leave, taken more than a
year and a half before Nilles’s ultimate termination and almost a year before Dabney claims he and
Pickering first formed their plan to fire Nilles, has an even weaker causal connection to Nilles’s losing
his job. In sum, Nilles’s entire FMLA claim can quickly be disposed of if we credit Dabney’s story
that he and Pickering hatched their plan to fire Nilles before he took his FMLA leave.
On appeal, Nilles argues, as he did before the district court, that “there is no documentation
of [Dabney’s plan to terminate Nilles] in this record except [his] August 2009 email [to Spencer].”
Appellant Br. at 16. Thus, Nilles asserts that there is a genuine issue of fact as to whether Dabney’s
plan actually existed, as “it could be that Nilles’ performance improved such that termination was no
longer warranted[] or it could be that the plan never existed in the first place.” Id. at 16–17. In
addition, the district court noted that Pickering’s mention in an email of the need to form “a plan of
action with regard to Joe” corroborated Dabney’s story that he had developed a plan to fire Nilles
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before he took his 2009 FMLA leave. Nilles claims that this was “an inference in favor of the moving
party, which is improper at summary judgment.” Id. at 16.
All of these arguments fail for the same reason that Nilles’s arguments concerning Dabney’s
knowledge of his disability fail. See supra Section III.B. Nilles fundamentally misunderstands the
summary-judgment maxim that “all inferences are to be drawn in the non-movant’s favor,” essentially
arguing that we must accept any remotely possible hypothetical that would further his cause and must
disbelieve any statement from Givaudan that would hurt it. This is not the case. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (making clear that the party
opposing summary judgment must “do more than simply show that there is some metaphysical doubt
as to the material facts”); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“[T]he party
opposing [a motion for summary judgment] may not rely on the hope that the trier of fact will
disbelieve the movant’s denial of a disputed fact but must make an affirmative showing with proper
evidence in order to defeat the motion.” (internal quotation marks omitted)); Hedberg, 47 F.3d at 932(“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition
of which is a primary goal of summary judgment.”); see also Brown, 430 F. App’x at 386; Burns, 91
F.3d at 844. Simply invoking the possibility that Dabney manufactured an elaborate story regarding
a plan to fire Nilles and speculating that Dabney went so far as to fabricate his August 2009 email to
Spencer in order to corroborate that story is not enough to create a genuine dispute of material fact.
And the district court’s observation that Pickering’s email supported Dabney’s story was a proper
finding that Givaudan had presented a plausible rendition of the facts, one that Nilles had utterly
failed to discredit.
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Accordingly, Nilles could not establish that his termination was causally related to his taking
of FMLA leave, and he thus failed to state a prima facie case of FMLA retaliation.
V
For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment
to Givaudan.
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