Peskin v. Joseph and Florence Mandel Jewish Day School et al

Filing 27

Order granting Defendants' Motion for summary judgment (Related Doc # 18 ). Signed by Judge Solomon Oliver, Jr on 7/29/2020.(S,SR)

Case: 1:18-cv-00336-SO Doc #: 27 Filed: 07/29/20 1 of 20. PageID #: 1110

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KATHY PESKIN,
Plaintiff
v.
JOSEPH AND FLORENCE MANDEL
JEWISH DAY SCHOOL, et al.,
Defendants

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Case No.: 1:18 CV 336
JUDGE SOLOMON OLIVER, JR.

ORDER

Currently pending before the court in the above-captioned case is Defendant Joseph and
Florence Mandel Jewish Day School (“Mandel JDS”) and Defendant Jerry Isaak-Shapiro’s (“IsaakShapiro”) (collectively, “Defendants”) Motion for Summary Judgment (“Motion”) (ECF No. 18).
For the reasons that follow, the court grants Defendants’ Motion.
I. BACKGROUND
A.

Factual Background
1. Employment with Mandel JDS
Plaintiff Kathy Peskin (“Plaintiff” or “Peskin”) worked for Mandel JDS1 on a series of one-

year contracts from August 2006 through June 2015, first as the Director of Marketing and then as
the Director of Public Relations. (Compl. ¶¶ 2, 5, ECF No. 1-2.) In her role as Director of
Marketing, Peskin was “responsible for the overall marketing operations of the school, to both

1

Prior to 2015, Mandel JDS was named the Agnon School. (Peskin Decl. ¶ 3, ECF
No. 24-1.) For simplicity, the court uses “Mandel JDS” to refer to the school during
all time periods.

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‘internal’ and ‘external’ constituencies.” (Pl.’s Ex. 2 at PageID #852, ECF No. 18-2.) Peskin was
expected to produce marketing materials for Mandel JDS; promote the school through various
platforms, including local print media, electronic media, social media, and the Mandel JDS website;
“assume a senior role” in the school’s Senior Administrative Leadership Team (“SAL Team”);
advise other SAL Team members regarding marketing matters; and provide a “visible and positive
presence” in the Mandel JDS community. (Id. at PageID #852 53.) In June 2015, Mandel JDS
changed Peskin’s title to Director of Public Relations and reassigned most of her marketing
responsibilities, particularly duties involving digital communications, to other staff members. (Defs.’
Ex. E at PageID #870, ECF No. 18-2.)
Peskin reported directly to Mandel JDS Head of School, Isaak-Shapiro, for most of her
tenure. During this time, Peskin’s job performance generally was satisfactory. (See Isaak-Shapiro
Dep. at PageID #186, ECF No. 17-1.) Mandel JDS reduced Peskin’s hours and compensation to 80
percent for the 2009 2010, 2010 2011, and 2011 2012 school years due to economic conditions
and budgetary constraints caused by the Recession. (See Peskin Dep. at PageID #95, ECF No. 17-4;
see also Isaak-Shapiro Dep. at PageID #176 81, ECF No. 17-1; Defs.’ Ex. A at PageID #804 06,
ECF No. 18-1.) But Peskin returned to full employment and also received a salary increase at the
start of the 2012 2013 school year. (See Peskin Dep. at PageID #589, ECF No. 17-4; see also Defs.’
Ex. A at PageID #807.)
Starting in the fall of 2014, Peskin began reporting to Laura Leventhal (“Leventhal”), the
Director of Institutional Advancement, after Mandel JDS restructured its administration. (See Peskin
Dep. at PageID #589; Peskin Decl. ¶ 18, ECF No. 24-1.) Concerned about the changing marketing
landscape and increasing importance of social media, Leventhal encouraged Peskin to boost her
computer skills and competence with various software programs and communications platforms.
(See Leventhal Decl. ¶ 11, ECF No. 18-2.) Leventhal repeatedly urged Peskin to complete computer
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training courses to boost her efficiency and productivity. (See Defs.’ Ex. C at PageID #856, ECF
No. 18-2; Defs.’ Ex. D at PageID #857, ECF No. 18-2; Defs.’ Ex. G at PageID #858, ECF No. 18-2;
Ex. 2D at PageID #861, ECF No. 18-2.) During check-ins with Peskin and in follow-up emails,
Leventhal identified classes that satisfied Peskin’s needs, confirmed that the school would cover any
costs, and explained that Peskin could complete the required training during the workday. (See
Peskin Dep. at PageID #630 31, 698, ECF No. 17-4.)
2. Performance Issues and Transition to Director of Public Relations
In June 2015, Leventhal and Isaak-Shapiro decided to “realign [Peskin’s] position” due to
concerns with her performance. (Isaak-Shapiro Decl. ¶ 10, ECF No. 18-1.) Leventhal confirmed this
change in an email to Peskin on June 25, 2015, which explained Leventhal was “formally
reassigning much of what would normally fall under Marketing and Digital/Electronic
Communication in acknowledgment that these are not your areas of proficiency.” (Defs.’ Ex. E at
PageID #870, ECF No. 18-2.) As a result, Peskin’s hours, salary, and benefits were reduced to 80
percent. (Id. at PageID #871.) Although Leventhal and Isaak-Shapiro initially offered Peskin her
choice of title between Public Relations Associate or Public Relations Specialist, Peskin ultimately
received the title Director of Public Relations. (See id.; Defs.’ Ex. A at PageID #810 11, ECF
No. 18-1.) In addition to these changes, Leventhal placed Peskin on a 90-day Performance
Improvement Plan (“PIP”) identifying various expectations, goals, and deadlines. (Defs.’ Ex. F, ECF
No. 18-2; see also Leventhal Dep. at PageID #479, ECF No. 17-3.)
Although the parties dispute the timing and extent of Peskin’s performance issues, the
following facts are undisputed.2 Starting in the fall of 2014, Leventhal began emphasizing the need

2

According to Issak-Shapiro, for example, it had become clear by mid-2014 that
Peskin “was not continuing to grow in the position of Director of Marketing and/or
obtaining the skills necessary to remain effective in the position,” especially with
regard to social media. (Isaak-Shapiro Decl. ¶ 8, ECF No. 18-1.) Isaak-Shapiro
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for Peskin to increase her computer skills and social media competence. (See Defs.’ Ex. C at
PageID #856, ECF No. 18-2.) In a December 8, 2014 email, Leventhal urged Peskin to take classes
in Excel, PowerPoint, and Publisher because these “major skill[s] are crucial to keep us moving
forward on the marketing front by enabling you to control and manage content.” (Defs.’ Ex. D at
PageID #857, ECF No. 18-2.) Leventhal followed up a month later, identifying a program offered
through the Cleveland Public Library that met Peskin’s need for “classes to be ‘hands on,’ rather
than watching someone else.” (Ex. 2D at PageID #861, ECF No. 18-2.) Yet by July 24, 2015, Peskin
still did not use Excel to track her marketing budget. (See Ex. G at PageID #858, ECF No. 18-2
(email from Leventhal to Peskin explaining that “[t]his [budget] is a perfect example of a sheet that
must

no exceptions

be converted to (ideally) Google Docs or, if you prefer, Excel”); Peskin Dep.

at PageID #650, ECF No. 17-4.) Peskin eventually completed an Excel course “sometime in the fall
of 2015,” (Peskin Dep. at PageID #631, ECF No. 17-4), after an email from Leventhal stressing that
“[w]e’ve been talking about this since last December; you need to act on it,” (Defs.’ Ex. G at
PageID #858, ECF No. 18-2). But Peskin never completed courses in Publisher or PowerPoint even
though she knew those skills were important to her job and Leventhal had “given [her] a directive”
to learn them. (Id.) Likewise, Peskin did not comply with Leventhal’s directives regarding social
media. Although Peskin did expand her network of Facebook friends, she acknowledges that another
staff member helped her accomplish that task. (See Peskin Dep. at PageID #639 40, 652 53, ECF

claims he frequently met with Leventhal to discuss these persistent issues throughout
the 2014 2015 school year. (Id. ¶ 9; see also Isaak-Shapiro Dep. at PageID #149,
ECF No. 17-1.) Leventhal similarly describes Peskin’s failure to develop necessary
skills as a chronic problem that began in 2014. (See Leventhal Decl. ¶¶ 7, 9 11, ECF
No. 18-2.) But Peskin presents a different account. She emphasizes that she never
received a negative performance evaluation before being placed on the PIP. (Peskin
Decl. ¶¶ 11, 12, ECF No. 24-1.) And although Peskin concedes she had difficultly
performing to the level Leventhal demanded, she says her issues stemmed entirely
from her medical conditions. (See Peskin Dep. at PageID #693 94, ECF No. 17-4.)
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No. 17-4.) Indeed, the record reveals no instance in which Peskin independently completed a social
media related project without help from others, and Peskin admits she never assumed responsibility
over Facebook or any other social media platform. (See id. at PageID #632 33, 639 40.) According
to Peskin, she failed to act on Leventhal’s directives because she chose to focus on “other priorities”
instead. (See Peskin Dep. at PageID #631 33, 640, ECF No. 17-4; see also id. at PageID #694 (“I
was well aware of what Laura expected.”).)
3. Health Issues and Requests for Accommodation
In late 2014, around the time Peskin began reporting to Leventhal, Peskin started to
experience symptoms including anxiety, fatigue, and trouble concentrating. (See id. at
PageID #668 68, ECF No. 17-4; Peskin Decl. ¶ 21, ECF No 24-1.) Peskin was diagnosed with
hyperthyroidism shortly thereafter, but she did not inform anyone at Mandel JDS until sometime in
2015.3 (See Peskin Dep. at PageID #623 24, 665, ECF No. 17-4.) Following the diagnosis, Peskin
did not “fully understand how [her] thyroid condition affected [her].” (Id. at PageID #682.) On June
23, 2015, Peskin left work and went to the emergency room after experiencing chest pains. (Peskin
Decl. ¶ 23, ECF No. 24-1.) While at the hospital, Peskin “learned that the heart palpitations and
symptoms of fatigue and exhaustion were due to hyperthyroidism.” (Id. ¶ 24.) Peskin subsequently
received treatment on July 13, 2015, to remove her thyroid using radioactive iodine. (Id. ¶¶ 29, 30.)
After the successful procedure, Peskin’s doctor sent a letter to Defendants dated August 26, 2015,
explaining that “Peskin has active hyperthyroidism with recent therapy, but will still likely not feel
normal for several weeks, possibly longer.” (Peskin Dep. at PageID #692, ECF No. 17-4.) And,

3

The parties dispute when Peskin disclosed her diagnosis. Peskin does not remember
precisely, but she claims it was “early in [2015], before [she] ended up in the
hospital.” (Peskin Dep. at PageID #624, ECF No. 17-4.) However, Leventhal asserts
she did not learn of Peskin’s condition until July 2015, after Peskin’s hospital stay.
(Leventhal Decl. ¶ 28, ECF No. 18-2.)
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indeed, Peskin continued to experience fatigue and exhaustion after she returned to work. (Peskin
Decl. ¶ 31, ECF No. 24-1.)
After her symptoms emerged, Peskin frequently requested more time to complete work
because she needed “a very long time to do what [she] had done in a short time” in the past. (Peskin
Dep. at PageID #673, ECF No. 17-4.) Importantly, Peskin admits she never “request[ed] any
accommodations other than additional time to complete reports and other tasks.” (Id. at
PageID #676, ECF No. 17-4.) The parties also agree that Leventhal often granted Peskin’s requests,
although sometimes she reassigned tasks to other staff instead. (See Peskin Decl. ¶¶ 22, 33, ECF
No. 24-1; Leventhal Decl. ¶ 27, ECF No. 18-2.) However, while Peskin repeatedly told Leventhal
and Isaak-Shapiro that she was “not feeling herself” during this period, (see Leventhal Dep. at
PageID #416 21, ECF No. 17-3), the parties dispute whether Peskin ever explicitly linked the need
for more time to her medical condition, (compare Peskin Dep. at PageID #679, ECF No. 17-4, with
Leventhal Dep. at PageID #352 53, ECF No. 17-3).
4. Termination and Replacement
On December 14, 2015, Leventhal sent a letter to Isaak-Shapiro listing various performance
issues and recommending that Peskin be terminated and replaced with someone with stronger
technological skills. (Pl.’s Ex. 8 at PageID #880 85, ECF No. 18-2.) Isaak-Shapiro ultimately agreed
with Leventhal’s recommendation and made plans to discuss the matter with Peskin in early January
2016, including an offer of three months’ severance pay. (Pl.’s Ex. 10 at PageID #893 95, ECF
No. 18-2.) But on January 11, 2016, before that conversation took place, Peskin submitted a request
to take a 12-week medical leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601, et seq. (See Peskin Dep. at PageID #693, ECF No. 17-4.) The school approved Peskin’s
leave request, effective January 14, 2016. (Pl.’s Ex. 11 at PageID #896, ECF No. 18-2.) And rather
than terminate Peskin as planned, Isaak-Shapiro decided instead to nonrenew her contract after
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letting her finish the school year. (See id.) Isaak-Shapiro and Leventhal discussed this decision with
Peskin on January 13, 2016, before she began her FMLA leave. (Id.) On April 15, 2016, IsaakShapiro sent a formal notification to Peskin confirming that Mandel JDS would not renew her
contract. (Defs.’ Ex. M at PageID #827, ECF No. 18-1.) Later, shortly after Peskin returned from
leave in May, Isaak-Shapiro suggested “[f]or [her] health” that she should stop working and stay
home while continuing “to be paid through the end of the academic year.” (Defs.’ Ex. N at
PageID #828, ECF No. 18-1.)
Mandel JDS began advertising for the new Director of Marketing and Communications
opening in the late winter and early spring of 2016. (Isaak-Shapiro Decl. ¶ 18, ECF No. 18-1.) After
interviewing several candidates, Defendants hired Zachary Marcus (“Marcus”). (Id.) When
Defendants made these personnel changes, Marcus was in his thirties and Peskin was in her late
fifties. (See Leventhal Dep. at PageID #700, ECF No. 17-4; Compl. ¶¶ 84, 88, ECF No. 1-2.)
B.

Procedural History
On January 11, 2018, Peskin filed a Complaint (ECF No. 1-2) in the Cuyahoga County Court

of Common Pleas, alleging state law claims under Ohio Rev. Code § 4112.02 for disability
discrimination (Count I) and failure to provide reasonable accommodations (Count II); unlawful
retaliation (Count III) in violation of the FMLA; and a state law claim under Ohio Rev. Code
§ 4112.02 for age discrimination (Count IV). Defendants removed to this court on February 12,
2018, (Not. of Removal, ECF No. 1), and filed an Answer (ECF No. 3) the next day. After
conducting discovery and seeking several extensions, Defendants filed their Motion for Summary
Judgment (ECF No. 18) on September 24, 2019. Peskin filed a Response in Opposition (ECF
No. 24) on December 9, 2019, and Defendants filed a Reply (ECF No. 26) on January 13, 2020.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 56(a) governs summary judgment motions and provides:
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The court shall grant summary judgment if 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. The court should state on the
record the reasons for granting or denying the motion.
A party asserting there is no genuine dispute as to any material fact or that a fact is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this court must view the evidence in the light most
favorable to the non-moving party to determine whether a genuine issue of material fact exists.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 153 (1970); White v. Turfway Park Racing Ass’n, Inc.,
909 F.2d 941, 943 44 (6th Cir. 1990). 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). Determining
whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards.
Thus, in most cases, 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,
“[c]redibility judgments and weighing of the evidence are prohibited during the consideration of a
motion for summary judgment.” Ahlers v. Scheibil, 188 F.3d 365, 369 (6th Cir. 1999).
The moving party has the burden of production to make a prima facie showing that it is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden of
persuasion at trial would be on the non-moving party, then the moving party can meet its burden of

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production by either: (1) submitting “affirmative evidence that negates an essential element of the
nonmoving party’s claim” or (2) demonstrating “to the court that the nonmoving party’s evidence
is insufficient to establish an essential element of the nonmoving party’s claim.” Id.
If the moving party meets its burden of production, then the non-moving party must point
out specific facts in the record which create a genuine issue of material fact. Zinn v. United States,
885 F. Supp. 2d 866, 871 (N.D. Ohio 2012) (citing Fulson v. City of Columbus, 801 F. Supp. 1, 4
(S.D. Ohio 1992)). The non-movant must show “more than a scintilla of evidence to overcome
summary judgment;” it is not enough to show that there is slight doubt as to material facts. Zinn,
885 F. Supp. 2d at 871 (quoting Fulson, 801 F. Supp. at 4). Moreover, the trial court does not have
“a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 80 (6th Cir. 1989) (citation omitted)).
III. LAW AND ANALYSIS
A.

Disability Discrimination
Peskin’s first claim asserts that Defendants chose not to renew her contract due to her

disability, in violation of Ohio Rev. Code § 4112.02. (Compl. ¶¶ 55 68, ECF No. 1-2.) Defendants’
Motion argues that Peskin fails to establish a prima facie case of disability discrimination, or, in the
alternative, that she fails to adduce any evidence to establish that Defendants’ proffered reason for
her termination is pretext for discrimination. (See Mot. at PageID #773 76, ECF No. 18.) As
discussed below, the court finds that Peskin’s disability discrimination claim fails as a matter of law.
Pursuant to Ohio Rev. Code § 4112.02(A), it is unlawful “[f]or any employer, because of the
race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person,
to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person
with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly
or indirectly related to employment.” Given that “Ohio’s own antidiscrimination laws found in R.C.
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Chapter 4112 are modeled after Title VII” of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq., Ohio courts have held that “federal case law interpreting Title VII . . . is generally applicable
to cases involving alleged violations of R.C. Chapter 4112.” Greer-Burger v. Temesi, 879 N.E.2d
174, 180 (Ohio 2007); see also Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil
Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981). Further, with respect to disability discrimination
claims in particular, courts also can look to cases interpreting the federal Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101 et seq., because of its similarity to Ohio’s discrimination law. See
Wysong v. Dow Chem. Co., 503 F.3d 441, 450 (6th Cir. 2007) (citing City of Columbus Civil Serv.
Comm’n v. McGlone, 697 N.E.2d 204, 206 07 (Ohio 1998)).
When, as here, the plaintiff relies on circumstantial evidence to create an inference of
discrimination, the court analyzes the claim under the burden-shifting framework established in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See DiCarlo v. Potter, 358 F.3d
408, 414 (6th Cir. 2004). Under McDonnell Douglas,
the plaintiff faces the initial burden of presenting a prima facie case
of discrimination. The establishment of a prima facie case creates a
rebuttable presumption of discrimination and requires the defendant
to “articulate some legitimate, nondiscriminatory reason” for taking
the challenged action. If the defendant is able to satisfy this burden,
the plaintiff must then “prove that the proffered reason was actually
a pretext to hide unlawful discrimination.”
Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002) (quoting Johnson v. Univ.
of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000)). But throughout this shifting, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” DiCarlo, 358 F.3d at 415 (quoting Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To establish a prima facie case of disability discrimination, a plaintiff must show that (1) she
was disabled; (2) she suffered an adverse employment action, at least in part, because she was
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disabled; and (3) she can safely and substantially perform the essential functions of her job despite
her disability. See Wysong, 503 F.3d at 451. Here, Defendants acknowledge that “Peskin’s
hyperthyroidism may be a disability” within the meaning of § 4112.02 and that Peskin suffered an
adverse employment action. (Mot. at PageID #775, ECF No. 18.) However, Defendants maintain
that Peskin “cannot prove [the] required element[s] of her prima facie case” because Peskin’s
“medical condition was not a factor in Defendants’ decision to eliminate her position and nonrenew
her employment contract.” (Id. at PageID #774 75.)
Defendants say they based their decision on longstanding issues with Peskin’s job
performance. (See id. at PageID #775, ECF No. 18.) In particular, they emphasize Peskin’s failure
to update her skills to keep pace with changes in the marketing field, especially with regard to digital
communications and computer competency. (See id. at PageID #770, 774 76.) Defendants also
argue that Peskin lacked any leadership presence in the school community. (See id.) Peskin disputes
this account, arguing that “Defendants’ perceived lack of work performance by Peskin was directly
related to her medical condition.” (Opp’n at PageID #941 42, ECF No. 24.) But while Peskin’s
disability may have caused her performance issues, and her poor performance resulted in the adverse
employment action, it does not follow that Defendants based the adverse employment action on
Peskin’s disability. To the contrary, Defendants’ evidence shows that (1) Peskin’s performance
issues began before her diagnosis and (2) Defendants continued to support Peskin and provide
resources to help her improve her performance long after Defendants learned of her medical
condition. Indeed, Leventhal repeatedly discussed the school’s expectations, emphasized that Peskin
could complete training during work hours, and explained that the school would cover the cost of
classes. (See Peskin Dep. at PageID #630 31, 698, ECF No. 17-4.) Because the record reveals a
chronic failure on Peskin’s part to perform necessary job functions and a lack of evidence that
Defendants terminated Peskin’s position due to her disability (as opposed to her poor performance),
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the court finds that Peskin cannot establish a prima facie case of disability discrimination.
In the alternative, assuming Peskin established a prima facie case, Defendants argue that
Peskin’s performance issues constitute a legitimate, nondiscriminatory reason to nonrenew Peskin’s
contract. (Mot. at PageID #775 76, ECF No. 18.) Peskin counters that Defendants’ stated reasons
are pretextual. (Opp’n at PageID #942 45, ECF No. 24.) To prove pretext, a plaintiff must show
“(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually
motivate [her termination], or (3) that they were insufficient to motivate discharge.” Yazdian v.
ConMed Endoscopic Techs., Inc., 793 F.3d 634, 651 (6th Cir. 2015) (quoting Chattman v. Toho
Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012)). The record here contains no evidence of these
indicia. Peskin’s argument focuses on Leventhal’s December 14, 2015 letter, recommending
Peskin’s termination, which Peskin asserts “is littered with inaccuracies.” (Opp’n at PageID #943,
ECF No. 24.) But even if the letter included some mistakes, the record shows that Leventhal
honestly believed the information to be true. (See Leventhal Dep. at PageID #517 48, ECF No. 173); see also Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 380 (6th Cir. 2017) (“[A]s long as
an employer has an honest belief in its proffered nondiscriminatory reason for discharging an
employee, the employee cannot establish that the reason was pretextual simply because it is
ultimately shown to be incorrect.” (quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d
1106, 1117 (6th Cir. 2001))). Further, Peskin’s conjecture ignores the documented evidence in the
record confirming her consistently poor performance over nearly a year and a half

i.e. persistent

failure to develop or maintain the technological skills necessary for her job and disregard her
supervisor’s directives. Based on this evidence, no reasonable jury could find that Defendants’ stated
reasons for terminating Peskin’s employment were merely prextext for discrimination.
In short, Peskin’s failure to keep pace with her field constituted a legitimate reason justifying
Peskin’s dismissal, and there is no evidence to support an inference of pretext. Consequently,
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Defendants are entitled to summary judgment on Count I.
B.

Failure to Provide Reasonable Accommodation
Next, Peskin alleges that Defendants failed to provide her with a reasonable accommodation,

in violation of Ohio Rev. Code § 4112.02. (Compl. ¶¶ 69 76, ECF No. 1-2.) In their Motion,
Defendants argue that this “claim fails because [Peskin] is unable to demonstrate that she ‘requested
and was denied’ reasonable accommodation.” (Mot. at PageID #778, ECF No. 18.) Alternatively,
Defendants maintain they are entitled to summary judgment because, even if Peskin did request an
accommodation, Defendants satisfied Peskin’s request by granting her more time to complete
assignments. (See Reply at PageID #1104 06, ECF No. 26.)
As noted above, Ohio’s antidiscrimination law mirrors the federal ADA in prohibiting
discrimination against qualified individuals with disabilities. See Wysong, 503 F.3d at 450. One form
of disability discrimination is the failure to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the accommodation would
impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). The Sixth Circuit has held that “claims
premised upon an employer’s failure to offer a reasonable accommodation necessarily involve direct
evidence (the failure to accommodate) of discrimination.” Kleiber v. Honda of Am. Mfg., 485 F.3d
862, 868 (6th Cir. 2007). Because reasonable accommodation claims require direct evidence of
discrimination, the McDonnell Douglas framework does not apply. Id. at 869. Instead, “[o]nce a
plaintiff establishes a prima facie case, the burden shifts to the employer to demonstrate that any
particular accommodation would impose an undue hardship on the employer.” Mosby-Meachem v.
Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018).
To establish a prima facie case for a failure to accommodate claim, the plaintiff must show
that: “(1) she is disabled . . . ; (2) she is otherwise qualified for the position, with or without
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reasonable accommodation; (3) her employer knew or had reason to know about her disability;
(4) she requested an accommodation; and (5) the employer failed to provide the necessary
accommodation.” Mosby-Meachem, 883 F.3d at 603. The dispute here chiefly concerns the third,
fourth, and fifth elements.
Defendants contend that Peskin never requested an accommodation. (See Mot. at
PageID #777 79, ECF No. 18; Reply at PageID #1104 06, ECF No. 26.) Defendants admit that
Peskin requested more time to complete some of her assignments because she felt fatigued and was
having trouble concentrating. (See Mot. at PageID #778 79, ECF No. 18.) But Defendants maintain
that “[t]he duty to provide a reasonable accommodation does not arise until the plaintiff requests
one,” and “[a]t no time did Peskin request an ‘accommodation’ due to, or state that she was
requesting additional time because of, her hyperthyroidism or any other medical condition.” (Id. at
PageID #779 (emphasis added).) Thus, Defendants assert that Peskin cannot establish a prima facie
case because she “did not tie her request for extra time to complete some of her work to a disabling
condition.” (Reply at PageID #1105, ECF No. 26.) Peskin responds that “this argument is
disingenuous” because the record shows that “Leventhal and Mandel JDS were keenly aware that
Peskin was diagnosed with hyperthyroidism and the difficulties that Peskin had at work as a result.”
(Opp’n at PageID #945, ECF No. 24.)
The court agrees with Peskin that Defendants’ position is untenable. Case law in the Sixth
Circuit, including the cases Defendants cite for support, makes clear that an “employee is not
required to use magic words such as ‘accommodation’ and ‘disability.’” Fisher v. Nissan N. Am.,
Inc., 951 F.3d 409, 419 (6th Cir. 2020); (see also Reply at PageID #1104, ECF No. 26 (citing Leeds
v. Potter, 249 F. App’x 442, 449 50 (6th Cir. 2007)). Instead, courts “ask whether a factfinder could
infer that [the interaction] constituted a request for an accommodation.” Fisher, 951 F.3d at 419
(quoting Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004)). A request suffices as long as it is
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“clear from the context that it is being made in order to conform with existing medical restrictions.”
Leeds, 249 F. App’x at 449. The record here clearly establishes that Peskin notified Leventhal and
Isaak-Shapiro about her hyperthyroidism diagnosis by July 2015 at the latest. (See Leventhal Decl.
¶ 28, ECF No. 18-2.) At that point, Defendants had actual knowledge of Peskin’s disability.
Moreover, Peskin’s doctor sent a letter to the school dated August 26, 2015, explaining that “Peskin
has active hyperthyroidism with recent therapy, but will still likely not feel normal for several
weeks, possibly longer.” (Peskin Dep. at PageID #692, ECF No. 17-4.) With this context, Peskin’s
subsequent statements about being fatigued and unable to focus obviously related to her disability,
which means her requests for more time were requests for accommodation. The court therefore
rejects Defendants’ argument that Peskin never requested an accommodation.
Alternatively, Defendants argue that Peskin’s claim fails because “it is undisputed that the
only ‘accommodation’ that Peskin requested was additional time to complete some of her duties,”
which Defendants granted. (Reply at PageID #1106, ECF No. 26.) This argument is well-taken.
While employers must engage with the employee in good faith “[t]o determine the appropriate
reasonable accommodation,” 29 C.F.R. § 1630.2(o)(3), employers are “not required to propose
counter accommodations” or volunteer options that the employee never requested, Fisher, 951 F.3d
at 421; see also Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010); Kleiber, 485
F.3d at 871 72. Here, Peskin admits she never requested any accommodation besides more time to
complete her work. (Peskin Dep. at PageID #676, ECF No. 17-4.) And as Peskin acknowledges,
Leventhal often extended Peskin’s deadlines. (See Peskin Decl. ¶¶ 22, 33, ECF No. 24-1.) Moreover,
the record shows that Defendants offered other assistance as well: they allowed Peskin to take time
off work for medical treatment and rest; Leventhal and others offered to help Peskin complete
assignments, (see Leventhal Decl. ¶ 7, ECF No. 18-2; Leventhal Dep. at PageID #483, ECF No. 173); and Leventhal repeatedly asked what else the school could do to support Peskin, (see Ex. 2D at
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PageID #861, ECF No. 18-2 (identifying computer classes tailored to Peskin’s need for “hands on”
instruction); Leventhal Dep. at PageID #486, ECF No. 17-3 (“What can we do to make [your job]
easier?”); Defs.’ Ex. F at PageID #879, ECF No. 18-2 (noting Peskin had “[n]o suggestions as to
what we could do to make things smoother/faster”); Defs.’ Ex. I at PageID #863, ECF No. 18-2
(“[W]e are here to help you get the ball rolling

you just need to be willing to try.”)).

Despite admitting she never requested other accommodations, Peskin faults Defendants for
failing to engage in an interactive process to determine what accommodation was appropriate, as
required by 29 C.F.R. § 1630.2(o)(3). (Opp’n at PageID #946, ECF No. 24.) In support, Peskin cites
Kleiber, where the Sixth Circuit acknowledged that “the interactive process that took place []
appears not to have been a model interactive process.” 485 F.3d at 871; (see also Opp’n at
PageID #946, n.163, ECF No. 24.) But the Kleiber panel ultimately rejected the plaintiff’s argument
because “[t]he record contain[ed] no suggestion that [the plaintiff] attempted to participate directly
in the interactive process, and was rebuffed.” Kleiber, 485 F.3d at 872. So too here. There is no
evidence in the record that Peskin sought to initiate an interactive process with Defendants, let alone
that Defendants rebuffed her. To the contrary, as discussed above, the evidence shows that
Defendants took proactive steps to help Peskin develop the skills she needed to remain effective and
successful in her position.
Because Peskin cannot show that she requested any accommodation that Defendants denied,
she cannot establish a prima facie case of failure to accommodate. Consequently, Defendants are
entitled to summary judgment on Count II.
C.

FMLA Retaliation
In her third claim, Peskin alleges that Defendants violated 29 U.S.C. § 2615(a) by unlawfully

terminating her employment in retaliation for her utilization of medical leave under the FMLA.
(Compl. ¶¶ 77 82, ECF No. 1-2.) Defendants argue that this claim fails as a matter of law because
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they decided to nonrenew Peskin’s contract before she requested FLMA leave.
To establish a FMLA retaliation claim, a plaintiff must show that
(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.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v. Yorozu Auto. Tenn., Inc.,
454 F.3d 549, 556 (6th Cir. 2006)). The familiar McDonnell Douglas burden-shifting framework
applies to retaliation claims under the FMLA, so a plaintiff can support her allegations with indirect
evidence. Donald, 667 F.3d at 762. But a claim cannot succeed if the only evidence of retaliation
is temporal proximity between the protected activity and the adverse employment action. Id. at 763
(citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)).
Under this framework, Peskin’s claim clearly fails because the record establishes that IsaakShapiro made the decision to terminate Peskin before she requested FMLA leave. As discussed
above, Leventhal sent her letter recommending Peskin’s termination on December 14, 2015. (Pl.’s
Ex. 8 at PageID #815, ECF No. 18-1.) Isaak-Shapiro responded on January 6, 2016, indicating that
he agreed with Leventhal’s assessment and planned to “offer [Peskin] a ‘severance’ package’” of
three months’ salary “based on the number of years she’s worked in the school.” (Pl.’s Ex. 10 at
PageID #893, ECF No. 18-2.) However, on January 11, 2015, before Isaak-Shapiro could inform
Peskin of this decision, Peskin submitted her request for FMLA leave, which the school promptly
granted, effective January 14, 2015. (See Defs.’ Ex. L at PageID #897, ECF No. 18-2; Peskin Dep.
at PageID #693, ECF No. 17-4.) At that point, rather than follow through with the plan to terminate
Peskin immediately, Isaak-Shapiro decided to let Peskin complete her contract before phasing out
her position at the end of the school year. (Defs.’ Ex. L at PageID #897, ECF No. 18-2.) That Isaak-

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Shapiro switched the plan at the last minute does not change the fact that Isaak-Shapiro already had
decided to take the allegedly retaliatory adverse employment action
employment at Mandel JDS

i.e. ending Peskin’s

before Peskin requested FMLA leave.

Given this undisputed sequence of events, Peskin’s retaliation claim fails because she cannot
prove the temporal and causal relationships necessary to establish the third and fourth elements of
the prima facie case. Consequently, Defendants are entitled to summary judgment on Count III.
D.

Age Discrimination
Finally, Peskin alleges that Defendants violated Ohio Rev. Code §§ 4112.12 and 4112.99 by

discriminating against her based on her age. (Compl. ¶¶ 83 92, ECF No. 1-2.) Defendants’ Motion
argues that Peskin’s age discrimination claim fails for the same reason her disability discrimination
claim fails: “her lack of [job] performance.” (Mot. at PageID #782, ECF No. 18.)
The Supreme Court of Ohio has held that,
absent direct evidence of age discrimination, in order to establish a
prima facie case of a violation of R.C. 4112.14(A) in an employment
discharge action, a plaintiff-employee must demonstrate that he or
she (1) was a member of the statutorily protected class, (2) was
discharged, (3) was qualified for the position, and (4) was replaced
by, or the discharge permitted the retention of, a person of
substantially younger age.
Coryell v. Bank One Tr. Co. N.A., 803 N.E.2d 781, 787 (Ohio 2004). Evaluating whether the
plaintiff established a prima facie case requires largely subjective determinations, which “vests
significant discretion in the trial court.” Id. at 788. Further, because “[t]his test is a descendant of
the McDonnell Douglas” burden-shifting framework, “the court wields yet more discretion in
determining whether the employer articulated a nondiscriminatory ground for the discharge” and
“whether the purpose was a pretext for discrimination.” Id. at 785, 788.
Peskin clearly satisfies the first, second, and fourth elements: Ohio Rev. Code § 4112.14(B)
protects persons “aged forty or older,” which Peskin was as of January 2016; Mandel JDS
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effectively terminated Peskin’s employment; and Peskin was replaced by someone substantially
younger. Peskin argues that she also satisfies the third element and notes that “Defendants do not
challange [her] prima facie case.” (Opp’n at PageID #949, ECF No. 24.) Of course, Defendants’
argument that “Peskin clearly did not possess most skills” required for the job inherently calls into
question whether Peskin was qualified to continue in her position

thereby implicitly challenging

the third element of Peskin’s prima facie case. (Mot. at PageID #783, ECF No. 18.) But Peskin is
correct that Defendants do not explicitly challenge her prima facie case. Instead, they argue Peskin
“was nonrenewed for [] legitimate, nondiscriminatory reasons.” (Id. at PageID #782.)
Assuming Peskin established a prima facie case of age discrimination, the record confirms
that Defendants had legitimate, nondiscriminatory grounds for terminating her. For all the reasons
discussed earlier, the court finds ample evidence to support Defendants’ assertion that they
nonrenewed Peskin because she failed to develop and maintain skills that were essential to her job.
Further, there is no evidence that Defendants’ stated justification was pretextual. While Peskin was
replaced by someone, Marcus, who was significantly younger, that fact alone does not support an
inference of pretext. To the contrary, the record reveals that Marcus had the digital communications
and social media skills that Defendants sought. (See Ex. 2H at PageID #903 04, ECF No. 18-2;
Leventhal Dep. at PageID #458 59, ECF No. 17-3.)
Because Defendants had legitimate, nondiscriminatory reasons to terminate Peskin’s
employment, and because there is no evidence to support an inference of pretext, Peskin’s age
discrimination claim fails. Defendants, therefore, are entitled to summary judgment on Count IV.
IV. CONCLUSION
For the foregoing reasons, the court grants Defendants’ Motion for Summary Judgment.
(ECF No. 18.)
IT IS SO ORDERED.
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/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE

July 29, 2020

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