United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendants' Motion for
Summary Judgment pursuant to Fed.R.Civ.P. 56(b) (ECF No. 32).
Plaintiff filed a Memorandum in Opposition (ECF No. 34) and
Defendants filed a Reply (ECF No. 35). The matter is now ripe
parties unanimously consented to plenary magistrate judge
jurisdiction under 28 U.S.C. § 636(c) in their Rule
26(f) Report (Doc. No. 18) and Judge Rice has referred the
case on that basis (Doc. No. 19).
action arises under 29 U.S.C. § 2601 et seq. (Complaint,
Doc. No. 1 PageID 1). The Court is asserted to have
jurisdiction under Title 29 U.S.C. § 2617. Id.
The subject matter jurisdiction is not contested.
uncontested that Plaintiff, Troy Wilson, a resident of Ohio,
was employed by Defendant Dynasplint Systems, Inc., a
Maryland corporation, as a sales Consultant in its Southern
Ohio Dayton-Cincinnati region (Complaint, ECF No. 1, PageID
1-2, ¶¶ 1, 2, 7, 8); (Answer, ECF No. 22, PageID
159-160, ¶¶ 1, 2, 7, 8); (Motion for Summary
Judgment, ECF No. 32, PageID 414-415). Plaintiff began his
employment with Dynasplint in December 2011, demonstrating
and fitting patients with Dynasplint's product of
bilateral spring loaded tensioning devices designed to help
increase joint range of motion (Complaint, ECF No. 1, PageID
2, ¶ 9); (Answer, ECF No. 22, PageID 160, ¶ 9);
(Motion for Summary Judgment, ECF No. 32, PageID 415).
Likewise neither party contests that there was a difference
in personalities between Wilson and his immediate supervisor,
Tim Blair (Complaint, ECF No. 1, PageID 2, ¶¶
11-14); (Answer, ECF No. 22, PageID 160, ¶¶ 12,
13); (Wilson Depo., ECF No. 31, PageID 216). Blair's
supervisor, Scott Herman, was reassigned as Wilson's
supervisor, but after a short time period, the supervisory
role was given back to Blair (Complaint, ECF No. 1, PageID 2,
¶¶ 12-13); (Motion for Summary Judgment, ECF No.
32, PageID 415).
and his partner were expecting a child in the middle of
March, 2013. On February 19, 2013, during what was expected
to be a routine prenatal visit, Wilson's girlfriend was
admitted into the hospital with complications arising from
preeclampsia (Complaint, ECF No. 1, PageID 3, ¶¶
16-18). The mother was induced and the baby was born three
weeks prematurely on February 21, 2013 (Complaint, ECF No. 1,
PageID 2, ¶ 18).
planned on doing a ride-along with Wilson on February 20,
2013, to observe Wilson's sales calls and fittings. He
had made several attempts throughout a four-day period to
contact Wilson to confirm the ride along, including phone
calls and an email, without a response (Blair Email dated
February 19, 2013, ECF No. 31-1, PageID 373); (Blair Email
dated February 20, 2013, ECF No. 13-1, PageID 374); (Wilson
Depo., ECF No. 31, PageID 245). Finally, at approximately
9:00 p.m., February 19, 2013, Wilson responded via email that
Blair would “probably want to check with me and CONFIRM
next time. We are in labor and delivery. There is no way we
will be riding together tomorrow.” (ECF No. 31-1,
PageID 373)(emphasis in original.)
was terminated from Dynasplint on February 20, 2013
(Complaint, ECF No. 1, PageID 3, ¶ 22); (Motion for
Summary Judgment, ECF No. 32, PageID 415).
area of contention arises out of whether or not Wilson
provided notice to his supervisor as to the medical emergency
and did so in a manner sufficient to convey that Wilson
needed FMLA time and if so, whether he was wrongfully
terminated in retaliation. Plaintiff alleges that he
“immediately provided notice to his supervisor Tim
Blair regarding the quick developments of the medical
complications” and again informed Blair of the
emergency situation after Blair notified Wilson that he would
be in Dayton to do a “ride along” to observe
Wilson's work on February 20, 2013 (Complaint, ECF No. 1,
PageID 3, ¶¶ 19-21). Defendant however counters
that Wilson was performing below expectations and had been
put on notice of that. Further, Defendant argues that, as the
termination had begun prior to the medical emergency, and/or
they did not receive proper notice of the emergency,
Plaintiff's FMLA rights were not triggered.
filed his Complaint raising his FMLA violation on September
18, 2014 (ECF No. 1). A summons was issued a week later and
returned executed in January of 2015 (ECF Nos. 2, 4). At that
point Plaintiff filed several Motions for Default Judgment
(February 10, 2015, March 17, 2015, and July 7, 2015) (ECF
Nos. 4, 5, 9), as well as an Application to the Clerk for
Default Judgment on April 1, 2015 (ECF No. 7). The Clerk
entered the default Judgment on April 2, 2015 (ECF No. 8).
Several months after default had been entered, Defendants
filed a Motion to Set Aside Default arguing that through
internal error, the entry of default had been rendered prior
to the decision maker at Dynasplint realizing that they had
been properly served (Motion, ECF No. 14, PageID 39);
(Response, ECF No. 15); (Reply, ECF No. 16). Defendant
further argued that 1) there would be no unfair prejudice to
the plaintiff if this matter were permitted to move forward
on the merits 2) Dynasplint has a meritorious defense to the
FMLA claims, and 3) Dynasplint acted in good faith at all
times. Id. at 39-40. The District Court entered a
Decision Sustaining the Motion to Set Aside Entry of Default
(ECF No. 17). Once permitted to proceed, Defendant filed an
Answer to Plaintiff's Complaint (ECF No. 22) and later a
Motion for Summary Judgment (ECF No. 32); (Response, ECF No.
34); (Reply, ECF No. 35).
judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56. On a motion for summary judgment, the movant has the
burden of showing that there exists no genuine issue of
material fact, and the evidence, together with all inferences
that can reasonably be drawn therefrom, must be read in the
light most favorable to the party opposing the motion.
Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970). Nevertheless, "the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
(emphasis in original). Summary judgment procedure is
properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the Federal Rules as a
whole, which are designed to "secure the just, speedy
and inexpensive determination of every action."
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
together, Liberty Lobby and Celotex stand
for the proposition that a party may move for summary
judgment asserting that the opposing party will not be able
to produce sufficient evidence at trial to withstand a
directed verdict motion (now known as a motion for judgment
as a matter of law. Fed.R.Civ.P. 50). Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478 (6th
Cir. 1989). If, after sufficient time for discovery, the
opposing party is unable to demonstrate that he or she can do
so under the Liberty Lobby criteria, summary
judgment is appropriate. Id. The opposing party must
"do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). "If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted." Liberty
Lobby, 477 U.S. at 249-250 (citations omitted).
"The mere possibility of a factual dispute is not
enough." Mitchell v. Toledo Hosp., 964 F.2d
577, 582 (6th Cir. 1992), quoting Gregg v.
Allen-Bradley Co., 801 F.2d 859, 863 (6th
Cir. 1986). Therefore a court must make a preliminary
assessment of the evidence, in order to decide whether the
plaintiff's evidence concerns a material issue and is
more than de minimis. Hartsel v. Keys, 87 F.3d 795
(6thCir. 1996). "On summary judgment, "
moreover, "the inferences to be drawn from the
underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion."
United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). Thus, "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." Liberty Lobby, 477 U.S. at 249.
[A]lways bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, " which it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323; see also,
Boretti v. Wiscomb, 930 F.2d 1150, 1156
(6th Cir. 1991) (citation omitted). The party
bringing the summary judgment motion has the initial burden
of informing the district court of the basis for its motion
and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.
Alexander v. Caresource, 576 F.3d 551
(6th Cir. 2009), citing Mt. Lebanon Personal
Care Home, Inc. v. Hoover Universal, Inc., 276
F.3d 845, 848 (6th Cir. 2002). If the moving party
meets this burden, the nonmoving party must go beyond the
pleadings to show that there is a genuine issue for trial.
Matsushita, 475 U.S. at 587; Martin v. Ohio
Turnpike Comm'n., 968 F.2d 606 (6th Cir.
ruling on a motion for summary judgment (in other words,
determining whether there is a genuine issue of material
fact), "[a] district court is not . . . obligated to
wade through and search the entire record for some specific
facts that might support the nonmoving party's
claim." InterRoyal Corp. v. Sponseller, 889
F.2d 108, 111 (6th Cir. 1989), cert.
denied, 494 U.S. 1091 (1990). Thus, in determining
whether a genuine issue of material fact exists on a
particular issue, a court is entitled to rely only upon those
portions of the verified pleadings, depositions, ...