United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY
L. OVINGTON UNITED STATES MAGISTRATE JUDGE
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).
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
February 2016, while Larson was on medical leave, Hurley
emailed Defendant's Director of Operations, Brett
Chapman, about Larson's possible return from leave.
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….
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).
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
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
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,
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.” 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.
following exchange during Larson's deposition sheds a
little more ...