Hopkins et al v. Chartrand

Filing 32

Memorandum Opinion granting in part and denying in part defendant's Motion for summary judgment; denying plaintiffs' Motion for summary judgment. For the reasons set forth, Defendant's Motion for Summary Judgment is granted as to Plaintiffs' federal claims under the Fair Labor Standards Act (Count Four) and the Family Medical Leave Act (Counts Two and Three). Plaintiffs' Claims of Breach of Contract (Count One) and Wrongful Termination in Violation of Public Policy (Greeley Claim) (Count Five) are DISMISSED WITHOUT PREJUDICE. Plaintiffs' Motion for Summary Judgment(Related doc 20 , 22 ) is denied. (C,KA) Modified text on 7/18/2013 (B,B).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN HOPKINS, et al.,
Plaintiffs,
v.
KEVIN M. CHARTRAND, et al.,
Defendants.

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CASE NO.: 1:11 CV 2558
JUDGE DONALD C. NUGENT

MEMORANDUM OPINION

This matter is before the Court on the Parties Cross Motions for summary judgment.
(ECF #20 and #22). For the reasons that follow, Defendants’ Motion for Summary Judgment
(ECF #20) is granted in part and denied in part and Plaintiffs’ Motion (ECF #22) is denied.
FACTS
Plaintiffs John Hopkins and Greg Boyles filed this action against Defendant Kevin M.
Chartrand, former Geauga County Coroner1, in both his official and individual capacity, on
November 23, 2011. The claims asserted by Plaintiffs arise from their lay offs in February, 2011
after their jobs as investigators for the Geauga County Coroner were abolished. The Complaint
asserts five claims: Count One- Breach of Contract; Count Two- Family and Medical Leave Act
(“FMLA”) Interference; Count Three- FMLA Retaliation; Count Four- Overtime Violations
Under the Fair Labor Standards Act (“FLSA”) and Ohio Law; and, Wrongful Termination in
Violation of Public Policy (Greeley Claim).
Plaintiff John Hopkins was hired by the Geauga County Coroner’s Office in October,

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Dr. Chartrand was the elected Geauga County Coroner at the time that this Complaint
was filed. His term expired in January, 2013 and he elected not to run for another term.

1999 as an Investigator Clerk. (Hopkins Dep. at 6) Mr. Hopkins described his job duties at that
point as being responsible for responding to death calls, processing the scene, interviewing
family members or witnesses, taking responsibility for the bodies, photography, collecting
evidence and documenting everything in a report. Clerical aspects of his job included preparing
financials, paying the Office’s bills, dealing with venders and putting together yearly budgets for
the Coroner to review, keeping statistics and entering data. (Id. at 7) As Chief Investigator, Mr.
Hopkins was also responsible for supervising the activities of six other investigators, would
review the work product of the other investigators, supervise training for new employees and
sign off on various work records. (Hopkins Dep. at 15-16)
Mr. Hopkins was paid a salary payable in 26 or 27 equal installments, except for one
paycheck, generally in December, when he would receive a longevity bonus based upon his
years of employment with the County. (Id. at 8) Mr. Hopkins signed an acknowledgment of
receiving a copy of the Geauga County Personnel Policy and Procedure Manual which included
the statement that the Manual was not a contract of employment and did not create any binding
legal obligations on the part of the County to Mr. Hopkins. The acknowledgment further states
that no representative of the County, other than the Board of Commissioners, has any authority
to enter into any agreement for any specified period of time, and that any such agreement must
be in writing and properly authorized and signed by the Board to be valid. (ECF #20, Ex. 4)
Nevertheless, on January 1, 2004, Mr. Hopkins signed an employment contract with
former Geauga County Coroner, Albert S. Evans, D.O., for the position of Chief
Investigator/Clerk. that purported to have a minimum term of six years unless terminated for
cause. (See ECF #20, Ex.6) The employment contract was not signed by the Board of

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Commissioners.
Plaintiff Gregg W. Boyles was hired by Geauga County Coroner’s Office on September
17, 2004 as a part-time investigator. (Boyles Dep. at 7) Mr. Boyles signed an acknowledgment of
receipt of the Geauga County Coroner’s Office Personnel Policy & Procedure Manuel. (ECF
#20, Ex.5) That acknowledgment provides that the Manual is not a contract and that no
representative of the County, other than the Board of Commissioners, has the authority to enter
into any agreement for any specified period of time or make any promises upon which he could
rely, and that any such agreement must be in writing and properly authorized and signed by the
Board of Commissioners to be valid. Id.
Mr. Boyles became a full time investigator for the Coroner’s Office in 2006. Like Mr.
Hopkins, he signed an employment contract with former Coroner Evans, which purports to
establish a minimum term of employment from January 30, 2006 through December 31, 2009,
unless the employee is terminated for cause. (ECF #20, Ex.7) The employment contract was not
signed by the Board of County Commissioners and Mr. Boyles acknowledged that he never had
a contract with the Board of Commissioners. (Boyles Dep. at 9)
Mr. Boyles duties were similar to those of the only other full time investigator, Mr.
Hopkins. Both were responsible for the security of the office and Mr. Boyles was responsible for
the evidence room. (Boyles Dep. At 14). They both handled death calls, photographed death
scenes, collected evidence and dealt with family members. Both men obtained specialized
training and helped train the part time investigators. Like Mr. Hopkins, Mr. Boyles was paid an
annual salary and was paid the same amounts in his bi-weekly paychecks. (Boyles Dep. at 23)
Whether or not they worked, the full-time investigators got paid for 80 hours each pay period

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and received 4.6 hours of sick leave per pay period. (Boyles Dep. at 28-29, 45) One of the two
Plaintiffs was required to be on call at all times. (Boyles Dep. at 19) They worked in the office
during regular business hours, but when a death occurred in the County during non-regular
hours, one of the Plaintiffs was required to go to the scene, conduct an investigation, and put
together the appropriate paperwork. (Id. at 18-26) These duties regularly required them to work
in excess of 40 hours per week. (Hopkins Dep. at 53; Boyles Dep. at 22) Dr. Chartrand states
that Plaintiffs did not have set hours, nor was there an expectation as to hours worked in a given
week, although salaried employees would generally work 40 hours per week. (Chartrand Dep. at
11-12)
Defendant Kevin Chartrand is a medical doctor who was appointed Geauga County
Coroner in August, 2006. (Chartrand Dep. at 7) Thereafter, he ran for election and won in the
next general election. Id. When he was first appointed Coroner, Mr. Hopkins gave him a contract
addendum to the Plaintiffs’ contracts with the former coroner which Dr. Chartrand signed. ( Id.
at 25.) The Addendum signed by Defendant in his capacity as Coroner, states that he agrees to
continue to honor the conditions and terms of the existing employment contracts pertaining to
the current full time Investigators (Plaintiffs) until such time that the contracts can be renegotiated.
Mr. Hopkins states that he wanted to take some FMLA leave in the fall of 2009 because
of stress he was feeling. Mr. Boyles mentioned to Dr. Chartrand that Mr. Hopkins may want to
take FMLA leave. Dr. Chartrand allegedly responded that Mr. Hopkins would be fired if he
submitted FMLA leave. Mr. Hopkins did not request FMLA leave. Mr. Boyles later
memorialized his conversation with Dr. Chartrand regarding Mr. Hopkin’s potential FMLA

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leave. Dr. Chartrand states that neither Plaintiff ever gave him any information regarding a
serious medical condition that would lead him to believe that either Plaintiff was inquiring about
or asking for FMLA leave. Further, neither Plaintiff ever submitted a FMLA leave request form.
(Chartrand Dep. ¶¶10-12).
County revenue declined in 2007, 2008 and 2009. (Aff. of County Commissioner Mary
Samide, ¶4) In the fall of 2010, as the economic downturn continued, Dr. Chartrand was
informed by Commissioner Samide and County Administrator David Lair that it was anticipated
that the County would face potential shortfalls and a suggestion was made to defund the
investigators positions. (Chartrand Dep. at 19) On February 9, 2011, Dr. Chartrand notified all of
the Investigators by letters, including Plaintiffs, that due to reasons of economy, including a
permanent defunding of the budget by the Geauga Board of County Commissions, their jobs
were being abolished and they were to be laid off effective February 28, 2011. (ECF #22, Exs. 1
and 2)
Both Plaintiffs filed appeals with the State Personnel Board of Review (SPBR). An
Administrative Law Judge (“ALJ”) heard the appeals and recommended that both appeals be
dismissed as both investigators were determined to be unclassified service employees under state
law.2 (ECF #20, Ex.1) The SPBR affirmed the ALJ’s Report and Recommendation and
dismissed the appeals. No further appeal of the SPBR decisions were taken by either Plaintiff.
Plaintiffs also filed a mandamus action in the Eleventh District Court of Appeals in
Geauga County, asserting that they were classified employees entitled to reinstatement of

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If the Board determines that Plaintiffs were unclassified employees at the time of their
job abolishment, then the Board would not have jurisdiction over the job abolishment of an
unclassified employee, requiring that the appeal be dismissed.
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employment with the Coroner. The Court of Appeals dismissed the Action on November 12,
2012, as not being ripe for review because the SPBR had not yet made its determination about
whether Plaintiffs were classified or unclassified employees. (ECF #20, Ex. 7)
Plaintiffs filed the pending action on November 23, 2011 alleging violations of the
FMLA and FLSA, as well as pendent state claims of breach of contract and public policy or
“Greeley” claims. Defendant Chartrand has moved for summary judgment on all claims.
Plaintiffs have moved for summary judgment on their FLSA and breach of contract claims. The
motions are fully briefed and ready for decision.
STANDARD OF REVIEW
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). The burden of showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment always 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 affidavits, if any,’ which it believes demonstrates the absence of a
genuine issue of material fact.
Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is “material”
only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires
consideration of the applicable evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence
presented is “merely colorable” and not “significantly probative,” the court may decide the legal
issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most
civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id.
at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and
convincing evidence, it must show that it can produce evidence which, if believed, will meet the
higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover. The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t
of Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. Id.

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Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred
with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered
by the trial court in ruling on a motion for summary judgment.’” Wiley v. United States, 20 F.3d
222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181
(9th Cir. 1988)). Fed. R. Civ. P. 56(e) also has certain, more specific requirements:
[Rule 56(e)] requires that affidavits used for summary judgment purposes be
made on the basis of personal knowledge, set forth admissible evidence, and show
that the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.
Furthermore, hearsay evidence cannot be considered on a motion for summary
judgment.
Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may
be considered by the district court unless the opposing party affirmatively raises the issue of the
defect.
If a party fails to object before the district court to the affidavits or evidentiary
materials submitted by the other party in support of its position on summary
judgment, any objections to the district court’s consideration of such materials are
deemed to have been waived, and [the Sixth Circuit] will review such objections
only to avoid a gross miscarriage of justice.
Id. at 226 (citations omitted).
As a general matter, the district judge considering a motion for summary judgment is to
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it
weigh material evidence to determine the truth of the matter. Id. at 249. The judge’s sole
function is to determine whether there is a genuine factual issue for trial; this does not exist
unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for
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that party.” Id.
In sum, proper summary judgment analysis entails “the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson, 477 U.S. at 250.
ANALYSIS
Moving first to Plaintiffs’ federal claims, Plaintiffs allege claims of FMLA Interference
(Count Two) and FMLA Retaliation (Count Three) as well as Overtime Violations Under FLSA
(Count Four).
A. FSLA Claim
Both Plaintiffs and Defendant move for summary judgment on Plaintiffs’ claim of breach
of the Fair Labor Standards Act. (Count 4) Plaintiffs assert that Defendant violated the Fair
Labor Standards Act by failing to pay Plaintiffs overtime compensation.
Section 7(a) of the FLSA requires an employer to compensate an employee who works
over forty hours a week “at a rate not less than one and one-half times the regular rate at which
he is employed.” 29 U.S.C. § 207(a)(1). Section 13(a) of the FLSA, however, entirely exempts
from the overtime pay requirement any employee who is employed in a bona fide executive,
administrative, or professional capacity. 29 U.S.C. § 213(a)(1). This exemption is to be
“narrowly construed against the employers seeking to assert [it].” Arnold v. Ben Kanowsky, Inc.,
361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Michigan Ass'n of Governmental
Employees v. Michigan Dep't of Corrections, 992 F.2d 82, 83 (6th Cir.1993). Application of the
exemption is limited to those circumstances plainly and unmistakably within the exemption's

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terms and spirit and the employer bears the burden of proving that the exemption applies to the
employee in question. Douglas v. Argo–Tech Corporation, 113 F.3d 67, 70 (6th Cir. 1997)
(citations omitted.)
Defendant contends that Plaintiffs are exempt from FSLA overtime provisions because
both are employed in a bona fide administrative capacity. Congress did not define the phrase
“bona fide administrative capacity” in the FLSA, choosing instead to delegate that responsibility
to the Secretary of Labor. Douglas, 113 F.3d at 70 (citations omitted.) Under the FLSA's
implementing regulations, an employer may prove that an employee is an exempt
“administrative employee” by demonstrating that: (1) the employee is “compensated on a salary
or fee basis at a rate of not less than $455 per week”; (2) the employee's “primary duty consists
of ... [t]he performance of office or non-manual work directly related to management policies or
general business operations of his employer or his employer's customers”; and (3) the employee's
primary duty “includes the exercise of discretion and independent judgment with respect to
matters of significance.” 29 C.F.R. §§ 541.2 (a)(1)-(3). The parties agree that Plaintiffs were
paid on a salary basis and that the first element of the test has been satisfied. In addition, there is
no real dispute that the Plaintiffs exercised discretion and independent judgment in their duties.
The only dispute is whether Plaintiffs’ primary duties consisted of office or non-manual work
directly related to management polices or general business operations of the Coroner.
The regulations offer further examples to help define the “directly related to management
or general business operations” element of the administrative exemption as follows:
The phrase “directly related to the management or general
business operations” refers to the type of work performed by the
employee. To meet this requirement, an employee must perform
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work directly related to assisting with the running or servicing of
the business, as distinguished, for example, from working on a
manufacturing production line or selling a product in a retail or
service establishment.
Work directly related to management or general business
operations includes, but is not limited to , work in functional areas
such as tax; finance; accounting; budgeting; auditing; insurance;
quality control; purchasing; procurement; advertising; marketing;
research; safety and health; personnel management; human
resources; employee benefits; labor relations; public relations;
government relations; computer network; internet and database
administration; legal and regulatory compliance; and similar
activities. Some of these activities may be performed by
employees who also would qualify for another exemption.
29 C.F.R. § 541.201(a)-(b). Plaintiffs contend that their duties for the Coroner’s office are more
analogous to working on a production line rather than in assisting with the running or servicing
of the business because most of the tasks that they perform are part of the duties and
responsibilities of the coroner’s office as established by statute as opposed to general
management of the office. While Plaintiffs clearly assisted in performing some of the main
duties of the Coroner’s office as defined by Ohio law–official custodian of the morgue,
identification of bodies and remains of deceased persons; maintaining records of investigations
and determining cause of death; conducting autopsies; notifying relatives and disposing of
decedent’s property; determining cause of death; and, testing bodies for toxic substances or for
law enforcement purposes, the main focus of the Court’s analysis must be on the type of work
actually performed by the Plaintiffs on a daily basis.
The parties agree that plaintiffs job responsibilities as investigators included conducting
investigations on behalf of the Coroner which encompassed responding to various scenes in the
County, interviewing individuals and families pertaining to the death, collecting evidence, taking

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photos, interacting with the Coroner, doing some book work, paperwork, creating records, as
well as general clerical and office work required by the job. These duties are very similar to the
types of work that the Department of Labor used as an example of exempt positions.
Specifically, the regulations note that insurance claims adjusters generally meet the duties
requirements for the administrative exemptions “if their duties include activities such as
interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual
information to prepare damage estimates; evaluating and making recommendations regarding
coverage of claims; determining liability and total value of a claim; negotiating settlements; and
making recommendations regarding litigation.” 29 C.F.R. §541.203(a).
Here, Plaintiffs interview witnesses, families, inspect the scenes, collect evidence, help
the Coroner decide if the deaths are suspicious, collaborate on cause of death as well as being
responsible other more administrative tasks such as maintaining the evidence room, paying bills
for the office, training and other paperwork. When combined with the fact that Plaintiffs are paid
on a salary basis and exercise discretion and independent judgment with respect to matters of
significance, the Court finds that Plaintiffs, like insurance claims adjustors, meet the
requirements for the administrative exemption. As such, Defendant is entitled to summary
judgment on Plaintiffs’ FSLA claim (Count Four).3
B. FMLA Claims
In their Complaint, Plaintiffs assert both an FMLA interference and an FMLA retaliation
claim. However, in response to Defendants’ motion for summary judgment on these claims,

3

Having determined that both Plaintiffs are exempt under the Administrative exemption,
it is unnecessary to decide if Mr. Hopkins is also covered by the Executive exemption.
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Plaintiffs eschew any analysis of the interference claim and asks this Court to apply the
McDonnell Douglas burden shifting approach to Plaintiffs’ claims for retaliation in violation of
the FMLA. (ECF 325 at 16).4 The Family Medical Leave Act entitles qualifying employees to
take up to twelve weeks of unpaid leave, without fear of termination, when the leave is taken for,
inter alia, “a serious health condition that makes the employee unable to perform the functions of
the position of such employee.” 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1). A “serious health
condition” is “an illness, injury, impairment, or physical or mental condition that involves-(A)
inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing
treatment by a health care provider.” 29 U.S.C. § 2611(11).
There are two recovery theories available under the FMLA: the interference theory,
pursuant to 29 U.S.C. § 2615(a)(1), and the retaliation theory, pursuant to 29 U.S.C. §
2615(a)(2). Wysong V. Dow Chemical Company, 503 F.3d 441, 446 (6th Cir. 2007).
Specifically, the FMLA prohibits qualifying employers from “interfer[ing] with,
restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under
th[e] [FMLA].” 29 U.S.C. § 2615(a)(1). To prevail under the interference theory, the employee
must establish the following by a preponderance of the evidence:
(1) he is an “[e]ligible employee,” 29 U.S.C. § 2611(2);
(2) the defendant is an “[e]mployer,” 29 U.S.C. § 2611(4);

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This makes some sense in that Plaintiffs’ main injury in this action is the loss of their
jobs which is the adverse action asserted under the retaliation claim, not the missing of an
opportunity to take unpaid leave that would have been forfeited under an interference claim. In
any event, Mr. Boyle clearly does not have an interference claim as he never requested FMLA
for himself and his only “protected activity” was memorializing his conversation with Dr.
Chartrand regarding Mr. Hopkin’s desire to take FMLA leave.
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(3) the employee was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1);
(4) the employee gave the employer notice of his intention to take leave, 29 U.S.C. §
2612(e)(1); and
(5) the employer denied the employee FMLA benefits to which he was entitled.
Wysong, 503 F.3d at 447; citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th
Cir.2003).
The McDonnell Douglas burden shifting has traditionally applied to FMLA retaliation
claims but has also been applied to FMLA interference claims as well. Donald v. Sybra, Inc., 667
F.3d 757, 762 (6th Cir. 2012). As the parties to this action agree that the McDonnell Douglas
burden shifting analysis should apply to Plaintiffs’ FMLA claims using the retaliation theory, the
Court will comply.
To establish a prima facie case of retaliation under the FMLA, Plaintiffs must show that:
(1) they were engaged in a statutorily protected activity; (2) Defendant knew that they were
exercising their FMLA rights; (3) they suffered an adverse employment action; and (4) a causal
connection existed between the protected FMLA activity and the adverse employment action.
Donald, 667 F.3d at 761. “The burden of proof at the prima facie stage is minimal; all the
plaintiff must do is put forth some credible evidence that enables the court to deduce that there is
a causal connection between the retaliatory action and the protected activity.” Dixon v. Gonzales,
481 F.3d 324, 333 (6th Cir.2007).
If Plaintiffs establish the prima facie case, the burden shifts to the employer to proffer a
legitimate, nondiscriminatory rationale for the adverse action. If the employer articulates a

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legitimate, nondiscriminatory reason for taking the adverse action, the presumption of
discrimination raised by Plaintiffs’ establishment of the prima facie case is rebutted. At that
point the burden shifts back to Plaintiffs to produce adequate evidence demonstrating that the
employer’s proffered reason was a pretext for discrimination. Bryson v. Regis Corp., 498 F.3d
561, 570. (6th Cir. 2007). “[A] reason cannot ... be a pretext for discrimination unless it is shown
both that the reason was false, and that discrimination was the real reason.” St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphases and
quotation marks omitted). A plaintiff may establish pretext by showing that the employer's
proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were
insufficient to warrant the action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000).
“Whichever method the plaintiff employs, he always bears the burden of producing sufficient
evidence from which the jury could reasonably reject [the defendant's] explanation and infer that
the defendant [ ] intentionally discriminated against him.” Seeger v. Cincinnati Bell Telephone
Co., 681 F.3d 274, 285(6th Cir. 2012)(citations omitted).
Here, Plaintiffs assert that Mr. Hopkin’s request for FMLA leave and Mr. Boyle’s
documentation of Dr. Chartrand’s “enraged response”, constitutes protected activity. It appears
that Mr. Hopkins never actually submitted a request for FMLA leave after hearing about Dr.
Chartrand’s response to Mr. Boyle’s suggestion that Mr. Hopkins may want to take FMLA
leave. It does not appear that Mr. Boyle ever wanted or requested FMLA leave for himself. His
protected activity was writing a summary of Dr. Chartrand’s alleged response to Mr. Boyle’s
suggestion that Mr. Hopkins may want to take FMLA leave. There is no evidence in the record
before the Court to suggest that either Plaintiff, or any family member, had a “serious health

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condition” which would permit them to take FMLA leave.
Dr. Chartrand denies knowing that Plaintiffs’ tried to exercise their rights under FMLA
because they never gave notice that they were taking FMLA leave. Plaintiffs’ skip this step of
the prima facie case.
The adverse action suffered by Plaintiffs was their termination in February 2011, almost
a year and a half following the Mr. Boyle’s conversation with Dr. Chartrand regarding Mr.
Hopkin’s proposed FMLA leave. Plaintiffs assert that they have satisfied the causation element
because there is evidence that Dr. Chartrand wanted the Sheriff’s department to take over
Plaintiffs’ duties to eliminate the administrative burden presented by Plaintiffs’ requests for time
off, including time under FMLA. Plaintiffs’ arguments in support of their prima facie case are
weak, especially regarding causation. Even if the Court stretches the limits of any interpretation
of what may constitute “credible evidence,” this showing is very thin. However, for purpose of
argument the Court will assume that Plaintiffs’ have established a prima facie case.
Based upon the affidavits presented to the Court, Defendant has satisfied his burden to
show a non-discriminatory explanation for Plaintiffs’ termination by showing that Plaintiffs,
along with all other Coroner Office investigators, as well as other County employees, were laid
off as a result of budget cuts implemented by the Board of County Commissioners.
Plaintiffs attempt to show that Defendant’s non-discriminatory reason for their
terminations is a pretext for discrimination by arguing that budgetary cuts imposed by the
County Commissioners “did not form a legitimate basis to terminate Plaintiffs in light of the
contract that they had with the coroner.” However, it is clear that budgetary reductions form a
justifiable basis for an employee’s termination. See Ercegovich v. Goodyear Tire & Rubber Co.,
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154 F.3d 344, 350 (6th Cir.1998)(holding that the district court properly found no inconsistency
among various reasons given by the defendant for plaintiff's termination because they all revolve
around a single idea: the plaintiff's position could no longer be justified as being cost-effective).
In addition, there is no evidence that Plaintiffs were singled out for adverse treatment. All
investigators were laid off and there is no temporal connection between the exercise of any
protected activity and the adverse action.
Moreover, Plaintiffs’ argument that their termination may have violated a contract, even if
true, does not show that the termination was actually a pretext for discrimination–that they were
terminated, along with all the other investigators and other County employees– because they had
inquired about FMLA leave and written a summary of Dr. Chartrand’s alleged response to the
inquiry–a year and a half prior to the termination. In sum, Plaintiffs have not shown that
Defendant’s non-discriminatory explanation for termination has no basis in fact; or did not
actually motivate the action; or was insufficient to warrant the action. As such, plaintiffs failed to
meet the burden of producing sufficient evidence from which the jury could reasonably reject the
defendant's explanation and infer that the defendant intentionally discriminated against them
because of their FMLA protected activity. Accordingly, Defendant is entitled to summary
judgment on Plaintiffs’ FMLA claims.
C. State Law Claims
As Plaintiffs’ FSLA and FMLA claims were the only claims in this matter over which
this Court had original jurisdiction, the Court exercises its discretion, pursuant to 28 U.S.C.
§1367(c)(3), to decline to retain supplemental jurisdiction over the remaining state law claims
against the Defendant in this case and those claims will be dismissed without prejudice.
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CONCLUSION
For the reasons set forth above, Defendants’s Motion for Summary Judgment (ECF #20)
is granted as to Plaintiffs’ federal claims under the Fair Labor Standards Act (Count Four) and
the Family Medical Leave Act (Counts Two and Three). Plaintiffs’ Claims of Breach of Contract
(Count One) and Wrongful Termination in Violation of Public Policy (Greeley Claim) (Count
Five) are DISMISSED WITHOUT PREJUDICE. Plaintiffs’ Motion for Summary Judgment
(ECF #22) is denied.
IT IS SO ORDERED.

_/s/Donald C. Nugent________
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
DATED:__July 17, 2013___

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