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Larson v. Cassano's Inc.

United States District Court, S.D. Ohio, Western Division

June 19, 2019

MICHAEL LARSON, Plaintiff/Counterclaim Defendant,
CASSANO'S INC., Defendant/Counterclaim Plaintiff.



         I. Introduction

         Plaintiff Michael Larson is a former longtime employee of Defendant Cassano's, Inc. He asserts that Defendant violated his rights under the Family and Medical Leave Act, 29 USC § 2601, and discriminated against him because of his age in violation of Ohio Rev. Code § 4112.14. He has voluntarily dismissed his claim that Defendant violated Ohio public policy. (Doc. #24, PageID #s 338, 343).

         Defendant seeks summary judgment in its favor, but Larson contends that summary judgment is unwarranted because genuine issues of material fact and law remain on his FMLA and age-discrimination claims.

         II. Background

         Defendant is a family-owned business that has operated pizza restaurants for more than 60 years. Larson began working for Defendant in 1991 as a Store Manager at one of Defendant's restaurants. The parties refer to each of Defendant's restaurants as a store.

         Over the years, Defendant employed Larson during two time periods. He first worked for Defendant from 1991 to 1995. He then worked with another pizza-related company for about 18 months. He returned to work for Defendant in 1997 and remained employed there until Defendant fired him on February 1, 2017. In total, Defendant employed Larson for 20-plus years.

         Larson testified that during his first period of employment, he was promoted to area manager with responsibility for four stores. He was later promoted to district manager with additional responsibilities for more than four stores. His responsibilities included food and safety training; management and assessment of store records; management and assessment of finances and profitability for all assigned stores; food audits; compliance with safety policies and procedures; and personnel matters such as disciplining and discharging employees in his assigned stores.

         When Larson began his second period of employment with Defendant (in 1997), he again worked as store manager. Within about one year, Defendant promoted him to district manager with responsibility for multiple stores. He held the position of district manager until 2016 when he was demoted to store manager and then terminated. But this gets ahead of the story.

         In December 2012, Larson underwent knee-replacement surgery. His recovery took slightly less than two months. (Doc. #20, Larson's deposition, PageID #s 121-22). During this break, Larson used up his vacation pay and then received disability benefits. Id. at 122-23. In February 2013, he returned to work with Defendant in the same position-district manager. Id. at 122.

         A document dated September 15, 2015, titled “Disciplinary Action Record, ” indicates that Larson was suspended without pay for two days due to a quality problem with five pizzas from one of his assigned stores. (Doc. #21, PageID #s 301-02). This document, signed by Janet Hurley-Defendant's Vice President of Operations-explains, “If this problem is not corrected and we are unable to receive quality pizzas from this store you will be terminated.” Id. at 302. Larson acknowledged that his signature appears on this document. Id. at 226. He was a district manager at this time. He acknowledged during his deposition that he recalled getting a two-day suspension in September 2015. Id. at 231.

         Another Disciplinary Action Record soon followed on October 1, 2015. This one concerns Hurley and Larson's visit to one of Larson's assigned stores where they found a problem with old pizza dough. Hurley provided a stern warning to Larson: “Any further instances of old dough at store … will result in a one week unpaid suspension to you….” Id. at 304. Larson recognized during his deposition that his signature appears on this document. Id. at 229.

         Several weeks later, a “Disciplinary Action Record” reported that Larson's “cost results for September were unacceptable” and that his assigned stores had overspent $2, 131.00 during September 2015. Id. at 303 (capitalization omitted). Another stern warning ensued: “Any future losses in this number of stores or in this magnitude will result in a one week unpaid suspension followed if necessary after recurring unacceptably large losses with termination.” Id. (capitalization omitted). Larson agreed during his deposition that his signature is on this document. Id. at 226-27.

         Larson recalled during his deposition that he acknowledged some poor job performance to Defendant in October 2015 and that he told Defendant he would rather be demoted to a store manager than be terminated. Id. at 231.

         For six months in late 2015, Larson worked with knee and back pain. In January 2016, he underwent another knee surgery. He initially told Hurley that he would be on medical leave for three weeks. Yet his knee surgery did not sufficiently relieve his pain, leading him to back surgery. He testified during his deposition that he informed Hurley of the dates of his procedures. (Doc. #21, PageID #233). But he could not tell her the date on which he would return because his doctors did not give him a time frame. Id.

         In February 2016, while Larson was on medical leave, Hurley emailed Defendant's Director of Operations, Brett Chapman, about Larson's possible return from leave. Hurley wrote:

I think even if he comes back and for some reason we have to give him a district it should not be the one he had. He would get two new great employees and Ronnie will have done all the work. I know you're busy so just ignore my rant.

(Doc. #24, PageID #353). The next day Chapman responded to Hurley, discussing his preparation for an upcoming meeting with Larson. Chapman planned to tell Larson, “‘Just three things, Mike: #1. Take care of healing and whatever needed to get back to 100%. #2. Communicate your progress often to Janet [Hurley]. #3. Deliver Doctor's notes to the office.'” Id. Chapman also mentioned the circumstances in the event Larson returned to work:

I absolutely agree with your current thought about Mike's return at some point if it does occur. And if it does occur we can access [sic: presumably, “assess”] it at that time and strategize. If Mike returns I would consider it as supervising one store or two max.
I heard and Ronnie brought up tonight how managers commented that Mike was always so busy at particular stores. “Mike was just busy with a lot on his plate.” That's the common thread. Everyone liked Mike but “the company” kept him busy….


         As it turned out, Larson was on medical leave for 5 months-he returned to work on May 18, 2016. Rather than returning him to his former position as district manager, Defendant assigned Larson to work as store manager in Fairborn, Ohio. (Doc. #20, PageID #s 128-29). Defendant kept him at his same pay level-the pay of a district manager. Id. at 124; see Doc. #21, PageID #s 245-46. He worked in the Fairborn Store from May 2016 to January 2017. During this period, he enjoyed-“had a good time again…”-working as Store Manager because this store was “set up for success ….” (Doc. #20, PageID #130).

         In January 2017, Chapman informed Larson that he had to start working at another store. Larson testified, “[Chapman] said that I had done a very good job at Fairborn, that I had two weeks at North Main to get it ready to move to a new location.” Id. at 131. Larson understood that because the Fairborn Store improved its sales and was a success during the time he managed it, Chapman wanted him to do the same things at North Main. Id. at 137. Larson also understood that the reassignment to North Main would be temporary. Id.

         Larson did not enjoy working at the North Main Store. After he had worked at North Main (apparently for about one week), he spoke with Chapman. Id. at 131. He testified that he never told Chapman that he would not work at the North Main Store. He clarified, however, “I did say that I didn't like it…. I just told him-I said politely…, ‘I have been with the company that supported me for 25 years, so I am just giving you notice that I will be searching for other job opportunities.'” Id. at 131-32. Larson believes that in “the heat of the moment, ” he told Chapman he hated the North Main Store. Id. at 133.

         Chapman offered Larson a reassignment or transfer to a store in Urbana, Ohio. This offer came “with a large, large pay cut, ” according to Larson. Id. at 132. Larson points out in his Memorandum in Opposition that “he turned down the transfer due to a reduction in pay …, ” and that “he did not refuse the North Main position as Defendant maintains.” (Doc. #24, PageID #341).

         Exhibit I to Larson's deposition contains information about Larson's termination. Brett Chapman apparently wrote it on February 1, 2017. (Doc. #20, PageID #173). Chapman describes what occurred during a meeting with Larson and Tim Steele (District Manager) at the North Main Store. Chapman indicates that he “let Larson review” a document that explained he was being reassigned to a store in Urbana at a reduced salary, “effective immediately.”[1] Id. at 173 (referring to PageID #172). What occurred next, according to Chapman, resulted in Larson's termination:

I asked Larson what he meant by he will not accept the transfer. Larson responded, “I will not accept this. I'm not going to do this.” I asked Larson if he was refusing to follow through with the transfer. Larson replied, “Yes, I'm refusing. Am I fired?” I confirmed to Larson that he was fired for refusing.

Id. at 173.

         The following exchange during Larson's deposition sheds a little more ...

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