Wilson v. Dynasplint Systems, Inc.

Filing 39

DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - Considering the pleadings, depositions, and affidavits, there is not a genuine issue of material fact as to whether or not Wilson provided proper notice nor whether there wa s a causal connection between exercise of FMLA rights and his termination. Defendant is therefore entitled to judgment as a matter of law. Defendant's motion for summary judgment is GRANTED and the Clerk will enter judgment dismissing this case with prejudice. Signed by Magistrate Judge Michael R. Merz on 4/3/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

TROY WILSON,

Plaintiff,

:

Case No. 3:14-cv-310

- vs Magistrate Judge Michael R. Merz
DYNASPLINT SYSTEMS, INC.,

:

Defendant.
DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

This case is before the Court on Defendants’ Motion for Summary Judgment pursuant to
Fed. R. Civ. P. 56(b) (ECF No. 32).  Plaintiff filed a Memorandum in Opposition (ECF No. 34)
and Defendants filed a Reply (ECF No. 35). The matter is now ripe for decision.
The parties unanimously consented to plenary magistrate judge jurisdiction under 28
U.S.C. § 636(c) in their Rule 26(f) Report (Doc. No. 18) and Judge Rice has referred the case on
that basis (Doc. No. 19).
This action arises under 29 U.S.C. § 2601 et seq. (Complaint, Doc. No. 1 PageID 1). The
Court is asserted to have jurisdiction under Title 29 U.S.C. § 2617. Id. The subject matter
jurisdiction is not contested.

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Statement of Facts
It is uncontested that Plaintiff, Troy Wilson, a resident of Ohio, was employed by
Defendant Dynasplint Systems, Inc., a Maryland corporation, as a sales Consultant in its
Southern Ohio Dayton-Cincinnati region (Complaint, ECF No. 1, PageID 1-2, ¶¶ 1, 2, 7, 8);
(Answer, ECF No. 22, PageID 159-160, ¶¶ 1, 2, 7, 8); (Motion for Summary Judgment, ECF No.
32, PageID 414-415). Plaintiff began his employment with Dynasplint in December 2011,
demonstrating and fitting patients with Dynasplint’s product of bilateral spring loaded tensioning
devices designed to help increase joint range of motion (Complaint, ECF No. 1, PageID 2, ¶ 9);
(Answer, ECF No. 22, PageID 160, ¶ 9); (Motion for Summary Judgment, ECF No. 32, PageID
415). Likewise neither party contests that there was a difference in personalities between Wilson
and his immediate supervisor, Tim Blair (Complaint, ECF No. 1, PageID 2, ¶¶ 11-14); (Answer,
ECF No. 22, PageID 160, ¶¶ 12, 13); (Wilson Depo., ECF No. 31, PageID 216). Blair’s
supervisor, Scott Herman, was reassigned as Wilson’s supervisor, but after a short time period,
the supervisory role was given back to Blair (Complaint, ECF No. 1, PageID 2, ¶¶ 12-13);
(Motion for Summary Judgment, ECF No. 32, PageID 415).
Plaintiff and his partner were expecting a child in the middle of March, 2013. On
February 19, 2013, during what was expected to be a routine prenatal visit, Wilson’s girlfriend
was admitted into the hospital with complications arising from preeclampsia (Complaint, ECF
No. 1, PageID 3, ¶¶ 16-18). The mother was induced and the baby was born three weeks
prematurely on February 21, 2013 (Complaint, ECF No. 1, PageID 2, ¶ 18).
Blair planned on doing a ride-along with Wilson on February 20, 2013, to observe
Wilson’s sales calls and fittings. He had made several attempts throughout a four-day period to

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contact Wilson to confirm the ride along, including phone calls and an email, without a response
(Blair Email dated February 19, 2013, ECF No. 31-1, PageID 373); (Blair Email dated February
20, 2013, ECF No. 13-1, PageID 374); (Wilson Depo., ECF No. 31, PageID 245). Finally, at
approximately 9:00 p.m., February 19, 2013, Wilson responded via email that Blair would
“probably want to check with me and CONFIRM next time. We are in labor and delivery.
There is no way we will be riding together tomorrow.” (ECF No. 31-1, PageID 373)(emphasis in
original.)
Wilson was terminated from Dynasplint on February 20, 2013 (Complaint, ECF No. 1,
PageID 3, ¶ 22); (Motion for Summary Judgment, ECF No. 32, PageID 415).
The area of contention arises out of whether or not Wilson provided notice to his
supervisor as to the medical emergency and did so in a manner sufficient to convey that Wilson
needed FMLA time and if so, whether he was wrongfully terminated in retaliation. Plaintiff
alleges that he “immediately provided notice to his supervisor Tim Blair regarding the quick
developments of the medical complications” and again informed Blair of the emergency situation
after Blair notified Wilson that he would be in Dayton to do a “ride along” to observe Wilson’s
work on February 20, 2013 (Complaint, ECF No. 1, PageID 3, ¶¶ 19-21). Defendant however
counters that Wilson was performing below expectations and had been put on notice of that.
Further, Defendant argues that, as the termination had begun prior to the medical emergency,
and/or they did not receive proper notice of the emergency, Plaintiff’s FMLA rights were not
triggered.
Plaintiff filed his Complaint raising his FMLA violation on September 18, 2014 (ECF
No. 1). A summons was issued a week later and returned executed in January of 2015 (ECF

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Nos. 2, 4). At that point Plaintiff filed several Motions for Default Judgment (February 10,
2015, March 17, 2015, and July 7, 2015) (ECF Nos. 4, 5, 9), as well as an Application to the
Clerk for Default Judgment on April 1, 2015 (ECF No. 7). The Clerk entered the default
Judgment on April 2, 2015 (ECF No. 8). Several months after default had been entered,
Defendants filed a Motion to Set Aside Default arguing that through internal error, the entry of
default had been rendered prior to the decision maker at Dynasplint realizing that they had been
properly served (Motion, ECF No. 14, PageID 39); (Response, ECF No. 15); (Reply, ECF No.
16). Defendant further argued that 1) there would be no unfair prejudice to the plaintiff if this
matter were permitted to move forward on the merits 2) Dynasplint has a meritorious defense to
the FMLA claims, and 3) Dynasplint acted in good faith at all times. Id. at 39-40. The District
Court entered a Decision Sustaining the Motion to Set Aside Entry of Default (ECF No. 17).
Once permitted to proceed, Defendant filed an Answer to Plaintiff’s Complaint (ECF No. 22)
and later a Motion for Summary Judgment (ECF No. 32); (Response, ECF No. 34); (Reply, ECF
No. 35).
Applicable General Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing
that there exists no genuine issue of material fact, and the evidence, together with all inferences
that can reasonably be drawn therefrom, must be read in the light most favorable to the party
opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). Nevertheless,
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"the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (emphasis
in original). Summary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to
"secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move
for summary judgment asserting that the opposing party will not be able to produce sufficient
evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as
a matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.
1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he
or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The
opposing party must "do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted." Liberty Lobby, 477 U.S. at 249-250 (citations omitted). "The mere possibility
of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992),
quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986). Therefore a court must
make a preliminary assessment of the evidence, in order to decide whether the plaintiff's
evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F.3d 795 (6th
Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party opposing the motion." United

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States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Thus, "the judge's function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial." Liberty Lobby, 477 U.S. at 249.
The moving party
[A]lways bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," which it
believes demonstrate the absence of a genuine issue of material
fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)
(citation omitted). The party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the record that
demonstrate the absence of a genuine dispute over material facts. Alexander v. Caresource, 576
F.3d 551 (6th Cir. 2009), citing Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal,
Inc., 276 F.3d 845, 848 (6th Cir. 2002). If the moving party meets this burden, the nonmoving
party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita,
475 U.S. at 587; Martin v. Ohio Turnpike Comm'n., 968 F.2d 606 (6th Cir. 1992).
In ruling on a motion for summary judgment (in other words, determining whether there
is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and
search the entire record for some specific facts that might support the nonmoving party's claim."
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091
(1990). Thus, in determining whether a genuine issue of material fact exists on a particular
issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions,
answers to interrogatories, and admissions on file, together with any affidavits submitted,
specifically called to its attention by the parties.
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A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v.
Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). “Materiality is determined by the
substantive law claim.” Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is genuine
if a “reasonable jury could return a verdict for the nonmoving party.” Niemi v. NHK Spring Co.,
Ltd., 543 F.3d 294, 298 (6th Cir. 2008); Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994), quoting Liberty Lobby, 477 U.S. at 248. Irrelevant or unnecessary
factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v.
Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the “record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact.
Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000), rev’d on other grounds, 536 U.S.
639 (2002). Thus, a factual dispute which is merely colorable or is not significantly probative
will not defeat a motion for summary judgment which is properly supported. Kraft v. United
States, 991 F.2d 292, 296 (6th Cir.), cert. denied 510 U.S. 976 (1993); see also, Int’l Union
United Auto., Aerospace & Agriculture Implement Workers of America v. BVR Liquidating, Inc.,
190 F.3d 768, 772 (6th Cir. 1999), cert. denied 529 U.S. 1076 (2000).
The party opposing the motion may not “rely on the hope that the trier of fact will
disbelieve the movant’s denial of a disputed fact” but must make an affirmative showing with
proper evidence in order to defeat the motion. Street, 886 F.2d at 1479. A party opposing a
motion for summary judgment must designate specific facts in affidavits, depositions, or other
factual material showing “evidence on which the jury could reasonably find for the [non-moving
party].” Liberty Lobby, 477 U.S. at 252. If, after sufficient opportunity for discovery, the nonmoving party is unable to meet his or her burden of proof, summary judgment is clearly proper.
Celotex Corp., 477 U.S. at 322-23.
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Analysis

The Family Medical Leave Act (“FMLA”) allows qualifying employees to up to twelve
weeks of unpaid leave each year if, among other things, an employee has 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). A "serious health condition" is defined as "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). Under 29 U.S.C. § 2615(a)(1) it is "unlawful for any employer
to interfere with, restrain, or deny the exercise of or the attempt to exercise [the] right" to such
leave. Further, it is "unlawful for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful" by the FMLA. 29 U.S.C. §
2615(a)(2); See Gipson v. Vought Aircraft Industries, 387 Fed. Appx. 548, 555 (6th Cir. 2010).
Employers who violate § 2615 are "liable to any eligible employee affected" for damages and
appropriate equitable relief. 29 U.S.C. § 2617(a)(1); Walton v. Ford Motor Co., 424 F.3d 481,
485 (6th Cir. 2005).
If the need is foreseeable, such as FMLA "based on an expected birth . . . [the employee]
shall provide the employer with not less than 30 days' notice, before the date the leave is to
begin, of the employee's intention to take leave." 29 U.S.C. § 2612(e)(1); 29 CFR 825.302(a);
Morr v. Kamco Indus., 548 F. Supp. 2d 472, 477 (N.D. Ohio 2008).
When the need for FMLA leave is unforeseeable, the relevant regulations require that an
employee should give notice to the employer of the need for FMLA leave “as soon as
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practicable” under the facts and circumstances of the particular case. 29 CFR 825.302 (“If 30
days notice is not practicable, such as because of a lack of knowledge of approximately when
leave will be required to begin, a change in circumstances, or a medical emergency, notice must
be given as soon as practicable.) It is expected that an employee will give notice to the employer
within no more than one or two working days of learning of the need for leave, except in
extraordinary circumstances where such notice is not feasible. 29 C.F.R. § 825.303(a). The
regulations further provide:
(c) An employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLAqualifying leave, and the anticipated timing and duration of the
leave. The employee need not expressly assert rights under the
FMLA, but may only state that leave is needed for an expected
birth or adoption, for example. The employer should inquire
further of the employee if it is necessary to have more information
about whether FMLA leave is being sought by the employee, and
obtain the necessary details of the leave to be taken. In the case of
medical conditions, the employer may find it necessary to inquire
further to determine if the leave is because of a serious health
condition and may request medical certification to support the need
for such leave (see § 825.305).
29 U.S.C. § 825.302(c)(emphasis added); see also Morr v. Kamco Indus., 548 F. Supp. 2d 472,
477 (N.D. Ohio 2008).

The regulations are silent, however, regarding the effect of an

employee's failure to provide adequate notice of an unforeseen serious health condition.
To make a successful argument for FMLA interference, Wilson must demonstrate that:
(1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA;
(3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer
notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to
which he was entitled. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005), quoting
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Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001); Donald v. Sybra,
Inc., 667 F.3d 757, 762 (6th Cir. 2012), relying on Grace v. USCAR, 521 F.3d 655, 670 (6th Cir.
2008); Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006); see also Cavin v.
Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003).
To establish a claim of unlawful retaliation under the FMLA a plaintiff must show (1)
that "he availed himself of a protected right under the FMLA by notifying [his employer] of his
intent to take leave," (2) that "he was adversely affected by an employment decision . . .," and (3)
"a causal connection between his exercise of a right under the FMLA and the adverse
employment decision." Gipson, 387 Fed. Appx. at 557, quoting Skrjanc, 272 F.3d at 314.
In the FMLA interference portion, the first three prongs are uncontested. Rather, this
portion turns on whether Wilson gave information sufficient to apprise the employer that he
needed leave and that his request for leave was FMLA-qualifying. Brenneman v. MedCentral
Health Sys., 366 F.3d 412, 421 (6th Cir. 2004); Brohm v. JH Properties, Inc., 149 F.3d 517 (6th
Cir. 1998); Reich v. Midwest Plastic Engineering, Inc., 1995 U.S. Dist. LEXIS 8772 (W.D.
Mich. 1995). In other words, "the information that the employee conveyed to the employer
[must have been] reasonably adequate to apprise the employer of the employee's request to take
leave for a serious health condition that rendered him unable to perform his job." Walton, 424
F.3d at 486; Brenneman, 366 F.3d at 421. "The eligible employee need not expressly mention
the FMLA as the source of his right to request such leave," (29 C.F.R. § 825.303(b)) but it is
critical that the “information imparted to the employer is sufficient to reasonably apprise it of the
employee's request to take time off for a serious health condition" and “for the employer to
reasonably conclude that an event described in FMLA § [2612(a)(1)(D)] has occurred.'" Walton,
424 F.3d at 486, quoting Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999); see
10 

also Gipson, 387 Fed. Appx. at 555, quoting Walton, 424 F.3d at 486 (quoting Hammon v. DHL
Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999)). "What is practicable, both in terms of the
timing of the notice and its content, will depend upon the facts and circumstances of each
individual case." Cavin, 346 F.3d at 724 (quoting Manuel v. Westlake Polymers Corp., 66 F.3d
758, 764 (5th Cir. 1995)); See, e.g., Gipson, 387 Fed. Appx. 548 (despite the fact that the
employer knew employee had a history of heart problems, employee failed to give sufficient
notice to employer when he spoke vaguely of not feeling well, having a headache, and needing to
take medicine); Walton, 424 F.3d at 486 (employee's statements that he was "sick" and had
scheduled a doctor's appointment not sufficient notice); Phillips v. Quebecor World RAI, Inc.,
450 F.3d 308, 311-12 (7th Cir. 2006) (employee's statement that she was "sick" and had been
seen at health center not sufficient notice); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973,
980 (5th Cir. 1998) (employee's mother's statements that employee "was sick," "was having a lot
of pain in her side," and would not be able to work is not sufficient notice); cf. Cavin v. Honda of
Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003) (holding that notice was sufficient where
employee informed employer that he had been in motorcycle accident which required
hospitalization and that he would be unable to perform his job); Seymour v. United States Postal
Serv., 2010 U.S. Dist. LEXIS 28748, *17-28 (W.D. Tenn. 2010)(employee provided FMLA
medical certification that his wife was pregnant and he wished to take leave after the birth to help
care for his wife and child. This served as sufficient notice to employer despite the fact the child
was born prior to its due date and thus the leave began prior to its previously pre-approved date).
The handbook given by Dynasplint Company to its employees states “When the need [for
FMLA leave] is foreseeable, you shall be required to provide 30 days in advance notice of
leave.” (ECF No. 31-1, Exh 28, PageID 390); See also 29 U.S.C. § 2612(e)(1); 29 CFR
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825.302(a); Morr v. Kamco Indus., 548 F. Supp. 2d 472, 477 (N.D. Ohio 2008)(Pursuant to 29
U.S.C. § 2612(e)(1), an employee seeking “foreseeable leave based on an expected birth . . .
shall provide the employer with not less than 30 days' notice, before the date the leave is to
begin, of the employee's intention to take leave.”) Wilson himself testified that he had not
requested time off in advance, despite the baby’s full term due date being only three weeks out
(Wilson Depo., ECF No. 31, PageID 250). Human Resource Generalist Tiffany Lolmaugh
verified that “Troy Wilson did not request any FMLA forms at any time, nor did he advise me
that he would need leave for the birth of his child in or about March 2013.” (Lolmaugh Aff.,
ECF No. 14-5, PageID 92, ¶ 4.) Blair’s first knowledge of Wilson’s absence was on February
19, when Wilson responded to one of several emails about Blair’s efforts to contact him (Blair
Aff., ECF No. 14-3, PageID 69, ¶¶ 14).
After Wilson’s email (in which he stated that he and his girlfriend were in labor and
delivery) had been forwarded to Karen Bruno of Human Resources, she questioned Blair and
Herman whether they knew of “this life event? Has he [Wilson] requested time off?” (Email
dated February 20, 2013)(ECF No. 32-1, PageID 440.) In an email dated February 20, 2013,
Blair responded that Wilson did not notify him in any way (ECF No. 32-1, PageID 442). That
same day Blair clarified that he was aware that Wilson’s girlfriend was pregnant and that her due
date was in March (Email dated February 20, 2013, ECF No. 32-1, PageID 443); (Blair Aff.,
ECF No. 14-3, PageID 68, ¶¶ 13). Wilson however, did not say anything about seeking FMLA
leave at either that time nor when he became aware that the child was going to be delivered early
(Email dated February 20, 2013, ECF No. 32-1, PageID 443); (Blair Aff., ECF No. 14-3, PageID
68, ¶ 13); (Lolmaugh Aff., ECF No. 14-5, PageID 92, ¶¶ 1,4) Further, Wilson did not respond to
Blair’s reply email dated February 20th which asked for an update of status and whether or not
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Wilson had contacted the divisional office to advise them that he needed time off (Blair Aff.,
ECF No. 14-3, PageID 69, ¶ 15); (Wilson Depo., ECF No. 31, PageID 252) (does not recall
responding to the email). Further, Herman averred that “I would have been made aware if
Wilson had requested FMLA, but he did not do so.” (Herman Aff., ECF No. 14-4, PageID 86, ¶
10.) Herman continues to state that the company would have provided Wilson with FMLA had
he given notice of the need for leave (Herman Aff., ECF No. 14-4, PageID 87, ¶ 12).
The birth of this child was a foreseeable medical event. Per FMLA statute and policies,
as well as Dynasplint company policies, Wilson should have given at least a 30 day notice of his
impending need for FMLA time. 29 U.S.C. § 2612(e)(1); 29 CFR 825.302(a) Yet all evidence
shows that he failed provide his employer with advance notice of this FMLA-qualifying
condition/event and intent to take leave.
Even assuming that the few weeks premature delivery of the child qualified under 29
CFR 825.302(a) as unforeseeable (“If 30 days notice is not practicable, such as because of a lack
of knowledge of approximately when leave will be required to begin, a change in circumstances,
or a medical emergency, notice must be given as soon as practicable.

For example, an

employee's health condition may require leave to commence earlier than anticipated before the
birth of a child . . .”), Wilson failed to provide notice as soon as it was practicable. While the
Court recognizes the stress that Plaintiff, his girlfriend, and unborn child were under, it does not
appear that this was an immediate life threatening scenario. Wilson and O’Brien both testified
that O’Brien was admitted into labor and delivery for pre-eclampsia after a routine doctor’s visit
on February 19, 2013 (O’Brien Aff., ECF No. 34-2, PageID 461, ¶ 5); (Wilson Depo., ECF No.
31, PageID 247-248). However, it also appears that the condition was monitored for over 24
hours. (O’Brien Aff., ECF No. 34-2, PageID 462, ¶ 9) (“On Wednesday February 20, 2013, we
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were told that I would be induced on Thursday, February 21st.”); (Wilson Depo., ECF No. 31,
PageID 249)(the baby was not born on February 19th. The baby was born on the 21st.) Yet
again, the first indication anyone at Dynasplint had that Wilson was at the hospital waiting on the
birth of his child was when he responded to Blair’s email inquiring as to the status of the ridealong.

At that point, Blair (as the employer) inquired further of Wilson to obtain more

information as to whether FMLA was being sought, including whether Wilson had alerted the
divisional office, as well as an update on status (ECF No. 31-1, PageID 374).. As previously
stated, the regulations require an employee "provide at least verbal notice sufficient to make the
employer aware that the employee needs FMLA-qualifying leave, and the anticipated duration
of the leave." 29 C.F.R. § 825.302(c). Wilson failed to respond to Blair’s inquiry, and remained
out of communication until late afternoon on the 20th, and then reaching out only after he
received an email advising him that his pay was frozen until he contacted Blair. Further, from
the records before this Court, it appears, Wilson failed to follow up with the divisional office.
Thus, he failed to give sufficient notification of his intent to take FMLA.
Even if Wilson had properly invoked his FMLA rights, no reasonable jury could find that
there was a causal connection between that exercise of rights and his termination.
“An employee may not insulate himself from a pending dismissal by opportunistically
invoking the FMLA.” Gipson v. Vought Aircraft Industries, 387 Fed. Appx. 548, 557 (6th Cir.
2010), citing Moorer v. Baptist Mem. Health Care Sys., 398 F.3d 469, 488-89 (6th Cir. 2005).
“Where, as here, the employer claims that ‘the dismissal would have occurred regardless of the
employee's request for . . . FMLA leave,’ the employee must convince the trier of fact
otherwise.” Id., quoting Arban v. West Publ'g Corp., 345 F.3d 390, 401 (6th Cir. 2003). It is not
necessary that the termination actually be issued, as long as the wheels of termination’ had
14 

already been put into motion before the requested leave. Id.; Tilley v. Kalamazoo Cnty. Rd.
Comm’n, 654 Fed. Appx. 675, 684 (6th Cir. 2016); Barnett v. Aultman Hosp., 2012 U.S. Dist.
LEXIS 156073, * 31 (N.D. Ohio 2012).
Plaintiff asserts that that he produced well for the company, with his sales numbers
having exceeded the previous years’ numbers by forty-one percent (Complaint, ECF No. 1,
PageID 2, ¶ 10). In addition, Wilson does not report issues with his employment, aside from a
personality conflict with his immediate supervisor, Tim Blair. Id. at ¶ 11.
Defendant however has provided sufficient documentation, which include an email trail,
showing that Wilson was falling below expectations in his job in multiple aspects.
First, both parties acknowledged that this was an at-will position. Dynasplint’s Resource
Manual Agreement specifically states that
I have entered into my employment relationship with DSI
voluntarily and acknowledge that there is no specified length of
employment. Accordingly, either DSI or I can terminate the
relationship at will, with or without case, at any time, so long as
there is no violation of applicable federal or state law.
(Manual, ECF No. 31-1, PageID 383.) This agreement was signed by Wilson on December 29,
2011.
In its description of Sales Consultant and Sales Manager (as provided to Wilson)
Dynasplint specifically set out the roles and responsibilities of this position:
SALES CONSULTANT AND SALES MANAGER
All lines of communication must be open on a dependable and
regular basis. The office personnel are here to assist and support
the sales force. The Sales Consultant and Sales Manager will be in
contact at least once each week for a territory update and new
account status report. This should include all problems, questions,
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concerns and successes that have occurred in the specific territory.
The Sales Consultant must plan to attend all scheduled Training
sessions and Sales Meetings. These meetings are mandatory.
(Motion for Summary Judgment, ECF No. 32, PageID 424, citing Wilson Depo., ECF No. 31-1,
PageID 384.) Further, Wilson admitted that he had received an employee handbook which listed
the employment requirements as including






All lines of communication must be open on a dependable and regular basis
Always follow up promptly
Keep detailed notes about each call and about each account
Complete all paperwork as requested
Track your inventory

(Motion for Summary Judgment, ECF No. 32, PageID 416); (Wilson Depo., ECF No. 31,
PageID 277); see also ECF No. 31-1, PageID 383-387 (Signed acknowledgement that Wilson
had received a copy of the handbook, and relevant pages thereof attached as an exhibit).
First, it appears that despite Wilson’s claims, his more recent reported numbers for
monthly fittings and sales did not align with the company quotas. In addition, there were issues
of Wilson keeping track of his inventory. (Email dated September 4, 2012, ECF No. 31-1,
PageID 352)(Email from Blair asking for his numbers as the board is showing “6”); (Email dated
September 4, 2012, ECF No. 31-1, PageID 352)(Response in which Wilson states “The board is
wrong. 10.”); (Email dated November 1, 2012, ECF No. 31-1, PageID 354)(Wilson tells Blair
that he had a slow month [October], “I am working on confirming 12. . . . 12 sucks but if you
consider the progress of the last 2 weeks I am heading into November with full momentum.”);
(Wilson Depo., ECF No. 31, PageID 210)(“It was a slow month.”); (Email dated January 7,
2013, ECF No. 31-1, PageID 355-356)(Email sent by Tina Phillips titled “Below 23”, and listing
Wilson’s current number at 11); (Wilson Depo., ECF No. 31, PageID 212)(“It looks like there
were 23 or fewer fittings.”); (Wilson Depo., ECF No. 31, PageID 214)(According to Below 23
16 

email, it looks like Wilson had eleven fittings for the month of December. “If I remember
correctly, the winter holiday and the Christmas really did a number on - - looks like there’s 27
people here.”); (Email dated January 31, 2013, ECF No. 31-1, PageID 364)(Cheryl Burns
informing Wilson that he is on the list of “overdue + 120 days” units. The inventory is now
considered lost and Wilson will be held financially responsible until the inventory is returned);
(Wilson Depo., ECF No. 31, PageID 233)(“So this shows two units that had not been returned in
the time frame that they were supposed to have been returned.”)
Further, the documentation shows that Wilson failed to provide dependable
communication within the company such as returning phone calls, answering texts and emails,
and attending scheduled conference calls. (Blair Aff., ECF No. 14-3, PageID 68, ¶ 6); (Herman
Aff., ECF No. 14-4, PageID 86, ¶ 5); (Email dated February 15, 2013, ECF No. 31-1, PageID
368)(Email from Daniel Shipman advising that Wilson failed to return calls to Kerry); (Wilson
Depo., ECF No. 31, PageID 239-240)(“No idea [why he would have been asked to call Kerry]
But I can speculate and say that there may have been a need to take care of an account . . . or
share a prosthetic that we were using.” Does not know if not calling her back would have been
viewed as a negative on his job performance as “I don’t know what the call was about or what it
was alluding to.”); (Email dated February 15, 2013, ECF No. 31-1, PageID 369)(Stating that
Dayton neuro rep, Rebecca Milligan, had an order for Wilson. She left him a voicemail and text
message with no response from Wilson); (Wilson Depo., ECF No. 31, PageID 240-241)(Does
not remember responding to Rebecca Milligan, but again states he does not know if failing to
return calls would be viewed as a negative in his job performance as “I don’t know why these
calls weren’t returned. I don’t know what the circumstances were. I don’t recall the person,
Rebecca. The e-mails don’t say what the calls were pertaining to.”); (Wilson Depo., ECF No.
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31, PageID 241)(As an employee for Dynasplint, part of the job involved returning phone calls);
(Email dated February 4, 2013, ECF No. 31-1, PageID 363)(From Herman to Wilson inquiring
as to why Wilson had missed the conference call that day and asking whether or not Blair had
been made aware in advance); (Email dated February 4, 2013, ECF No. 31-1, PageID
363)(Email response by Wilson to Herman that he had missed the conference call because of a
fitting and his only knowledge of the conference call had come from Stacy’s email sent that
morning); (Email dated February 4, 2013, ECF No. 14-3, PageID 76)(Blair asked Stacy
Desmarteau if she had previously sent out any emails regarding the conference call, and if so,
had Wilson been included on that email); (Email dated February 4, 2013, ECF No. 14-3, PageID
75)(Desmarteau responding to Blair that she had sent out the “invites and[ sic] Friday- and sent
reminders this am.”); (Wilson Depo., ECF No. 31, PageID 251)(Does not know why he did not
make the Monday February 18, 2013, conference call as it wasn’t the date of the doctor’s
appointment); (Email dated February 19, 2013, ECF No. 31-1, PageID 373) (Blair trying to
confirm the ride along. He emailed on Tuesday that “I have tried to call you with no reply since
Friday. I left you a VM earlier about riding with you tomorrow but have not heard back so I
wanted to make sure I sent you an email as well.”); (Wilson Depo., ECF No. 31, PageID
245)(Two of the four days between Blair’s unanswered voicemail and his follow up email would
have fallen on a weekend); (Email dated February 19, 2013, ECF No. 31-1, PageID 373)
(Wilson’s reply that Blair would “probably want to check with me and CONFIRM next time.
We are in labor and delivery. There is no way we will be riding together tomorrow.”); (Email
dated February 20, 2013, ECF No. 13-1, PageID 374)(Blair contacted Wilson and noted that he
had tried to reach Wilson numerous times since Friday and Wilson had not returned any of his

18 

calls); (Wilson Depo., ECF No. 31, PageID 246)(It was a mutual responsibility to confirm the
ride-along.)
Despite understanding that part of the requirement of his employment involved
paperwork, Wilson struggled with its timely completion and submission, specifically relating to
call logs and his calendar. Wilson’s new employment agreement dated August 1, 2012, was a
further reminder as to the required administrative side of his job as it specifically stated “[a]s you
are aware, a significant portion of your performance is based on meeting quotas as well as the
timely completion of all paperwork. The timely completion of paperwork is a condition for
receipt of bonuses as listed above.” (ECF No. 31-1, PageID 391-392.) Yet Wilson continued to
avoid this task. (Motion for Summary Judgment, ECF No. 32, PageID 416); (Wilson Depo., ECF
No. 31, PageID 205)(Call logs were a requirement of Tim Blair, his supervisor); (Wilson Depo.,
ECF No. 31, PageID 216)(Disagrees that calendar entries were a divisional requirement . . .
much smaller than a regional requirement.”); (Wilson Depo., ECF No. 31, PageID 217-218)(“It
was Tim’s division and it was Tim’s requirement.”) The record is replete with several requests
for missing paperwork. (Herman Aff., ECF No. 14-4, PageID 86, ¶ 5); (Email dated April 11,
2012, ECF No. 31-1, PageID 346)(Blair asking why he had not yet received call log from
Wilson); (Email dated April 11, 2012, ECF No. 31-1, PageID 346)(Wilson responding “No
reason. I just plum forgot. I will send as soon as I get home this evening. Sorry Tim, I’ll do
better staying on top of these.”); (Email dated April 23, 2012, ECF No. 31-1, PageID 347)( Blair
asking for Wilson’s call log and paperwork); (Email dated April 25, 2012, ECF No. 31-1,
PageID 348)(Blair emailing Wilson to say that he [Blair] should not have to remind Wilson to
submit his call logs); (Email dated May 1, 2012, ECF No. 31-1, PageID 349)(Blair to Wilson
inquiring as to Wilson’s pending billing paperwork from April. “If any pend to next month, I
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will have to take them from you.”); (Wilson Depo., ECF No. 31-1, PageID 207)(“It looks like
out of the 27 units that I had fit that month, that seven of them were still pending paperwork.”);
(Email dated January 8, 2013, ECF No. 31-1, PageID 357)(Blair’s email to Wilson in which he
reminds him to “make sure you enter all of your calls on your calendar as you go thru the day.
This is not optional, it is a divisional requirement. Thanks.”); (Email dated January 8, 2013, ECF
No. 31-1, PageID 357)(Wilson responds that entering calls will “slow him down.”); (Wilson
Depo., ECF No. 31, PageID 218)(entering them into the calendar was going to take time . . .
“take an hour or more out of my day . . . to pacify the checklist that needed to be done.”); (Email
dated January 14, 2013, ECF No. 31-1, PageID 359)(Blair requesting that Wilson complete
filling in the call information for two days on his calendar); (Email dated January 14, 2013, ECF
No. 31-1, PageID 359)(Email from Blair again reminding Wilson that he needed his calendar
completed as he [Blair] needed the information); (Email dated January 14, 2013, ECF No. 31-1,
PageID 359)(Wilson’s reply expressing his frustration with the administrative side of the job.
He argues that his productivity would be better were he not required to enter calendar calls.
“This is a motivation killer for me and I would think the bottom line profitability would take
precedence over calendar information.”); (Wilson Depo., ECF No. 31, PageID 220) (claims that
his profitability was 32% higher when he did not need to deal with administrative tasks); (Email
dated February 4, 2013 at 9:28 p.m., ECF No. 31-1, PageID 367)(Blair requesting Wilson’s Plan
of Action. “I sent you the guidelines last week with a date to be sent to me of Sunday. I still
have not received it and on our call you stated you would have it done tonight and sent to me by
tomorrow morning. Also, please update your calendar for today and Friday.”); (Email dated
February 4, 2013 at 9:58 p.m., ECF No. 31-1, PageID 366)(Wilson’s email response including
his plan of action listed in bullet points); (Wilson Depo, ECF No. 31, PageID 236-238)(Does not

20 

know why he did not turn in plan of action by Sunday deadline nor by the following work day);
(Performance Memo, ECF No. 31-1, PageID 377)(Blair reported that he and Wilson had talked
on numerous occasions as to the calendar and call logs. Yet Wilson failed to submit for February
15, 2013); (Herman Aff., ECF No. 14-4, PageID 86, ¶ 8.)
Co-workers and superiors within the company were not the only ones to complain of
Wilson’s breakdown in communication. Evidence shows that customers also complained of
Wilson’s failure to respond, follow up, and communicate. (Email dated October 23, 2012, ECF
No. 31-1, PageID 353)(From Stacy Desmarteau stating that she had received a complaint from
Jenny regarding one of their patients. Wilson had cancelled twice on the patient’s fitting, once
with no notice. Wilson claimed that the patient did not yet have authorization, however the
patient received an authorization letter on the 20th. Jenny called Wilson multiple times in two
days and had not heard back); (Email dated February 15, 2013, ECF No. 31-1, PageID
370)(Email from Mir Razvi to Blair asking Blair to contact a patient concerning her issues with
Sales Consultant, Troy Wilson); (Email dated February 15, 2013, ECF No. 31-1, PageID
371)(Email from Razvi to Blair again expressing that this patient has concerns with Wilson.)
On November 13, 2012, Dynasplint released via email its policy as to Recording Devices
in the Workplace (Dynasplint Policy on Recording Devices, November 13, 2012, ECF No. 31-1,
PageID 408-409). The specifics of the policy detailed the impermissible use of technology to
record conversations. Id. at 409. “Covert/secret recording of any conversations or meetings
occurring at the workplace or, conversations or meetings offsite that deal with workplace matters
are prohibited.” Id. It continued to state that “violation of this policy may result in disciplinary
action up to and including termination of employment.” Id. Yet, Wilson admitted to the Human
Resources Department, that in direct violation of company policy, he had recorded a
21 

conversation between himself and Blair, unbeknownst to Blair. (Email dated January 23, 2013,
ECF No. 31-1, PageID 361)(Email from Human Resources, Melissa Jenkins, in which she states
that Wilson had admitted to recording a conversation in violation with company policy);
(Herman Aff., ECF No. 14-4, PageID 85, ¶ 5); (Wilson Depo., ECF No. 31, PageID 225)(Does
not specifically remember recording a conversation while he with Dynasplint but “would record
a conversation because I want to make sure that I could - - could prove whatever was being said
in that conversation.”)
At the beginning of 2013, Wilson was put on a performance improvement plan. (Email
Dated January 23, 2013, ECF No. 31-1, PageID 362-363) (Email sent by human resources
referencing Wilson’s performance improvement plan.)

A phone conference was held with

Wilson to address his performance issues, during which Wilson was told to pay attention to the
numbers and daily board as well as improve his communications, using email as a checks and
balances and having twice weekly conference calls with Blair. (Notes dated January 24, 2013,
ECF No. 31-1, PageID 363); (Blair Aff., ECF No. 14-3, PageID 67, ¶ 5); (Herman Aff., ECF No.
14-4, PageID 86, ¶ 7); (Wilson Depo., ECF No. 31, PageID 228-229.) In addition, Wilson’s
territory was cut in half, to allow him to make higher quantity and quality of calls. (Notes dated
January 24, 2013, ECF No. 31-1, PageID 363); (Wilson Depo., ECF No. 31, PageID 230)(“The
territory was very large. It was very difficult to - - to do both territories at the same time.”)
Finally, Wilson was asked to prepare a plan of action for improving his performance. (Notes
dated January 24, 2013, ECF No. 31-1, PageID 363); (Email dated February 4, 2013 at 9:28
p.m., ECF No. 31-1, PageID 367)(Blair requesting Wilson’s Plan of Action. “I sent you the
guidelines last week with a date to be sent to me of Sunday. I still have not received it and on
our call you stated you would have it done tonight and sent to me by tomorrow morning. Also,
22 

please update your calendar for today and Friday.”); (Email dated February 4, 2013 at 9:58 p.m.,
ECF No. 31-1, PageID 366)(Wilson’s email response including his plan of action listed in bullet
points); (Wilson Depo, ECF No. 31, PageID 236-238)(Does not know why he did not turn in
plan of action by Sunday deadline nor by the following work day.)
On February 18, 2013, Blair drafted a written memorandum titled “Performance
Memorandum” and sent it to his direct supervisor, Herman, as well as Karen Bruno in the
Human Resources Department. (ECF No. 31-1, PageID 377-378); (Blair Aff., ECF No. 14-3,
PageID 68, ¶ 10); (Herman Aff., ECF No. 14-4, PageID 86, ¶ 9.) In the memo Blair noted
Wilson’s performance inadequacies which included his failures to return phone calls, to attend
conference calls, to follow up with reps and managers, and to turn in paperwork on time. Blair
further noted that he had tried to reach Wilson, but could not leave a message because his
voicemail was full. Id. After Bruno and Herman had reviewed the Performance Memorandum
(on or about February 18, 2013) the decision was made to terminate Wilson. (Blair Aff., ECF
No. 14-3, PageID 68, ¶ 11); (Herman Aff., ECF No. 14-4, PageID 87, ¶¶ 13-14).
On February 19, 2013, Blair emailed Wilson stating that “I have tried calling you with no
reply since Friday. I left you a VM earlier about riding with you tomorrow but have not heard
back so I wanted to make sure I sent you and[ sic] email as well.” (ECF No. 31-1, PageID 373.)
Unbeknownst to Blair, Wilson and O’Brien were sent to the hospital on the 19th. Wilson later
confers that information in an email stating “Probably want to check with me and CONFIRM
next time. We are in labor and delivery. There is no way we will be riding together.” Id. Blair
followed up with a reply email, inquiring as to O’Brien and the baby, asking for a status update
on Wilson, inquiring if the divisional office had been notified, and asking why Wilson had not
been in attendance on the conference call on the 18th. Wilson’s email was forwarded on to
23 

Human Resources, where again the decision to terminate Wilson was reiterated. (Email dated
February 20, 2013, ECF No. 32-1, PageID 441)(Melissa Jenkins to Bruno that “This guy
[Wilson] needs to be terminated . . . and fast!”); (Email dated February 20, 2013, ECF No. 32-1,
PageID 444)(Email from Bruno saying “When and if you do hear from Troy. . . . terminate
him.”).
Wilson did not respond to Blair’s further inquiries until he received an email dated
February 20, 2013, advising him that his pay had been stopped until he gets in contact with Blair.
(ECF No. 31-1, PageID 407). At that point, Wilson called Blair, and was told of his termination.
The Court notes that the documents reflect confusion as to when Blair was to terminate Wilson;
however, the decision to terminate Wilson’s employment had been consistent since the
Performance Memorandum. (Email dated February 20, 2103, 2:00 p.m., ECF No. 32-1, PageID
444)(Bruno telling Blair “when and if you do hear from Troy . . . terminate him.”); (Email dated
February 20, 2103, 4:07 p.m., ECF No. 32-1, PageID 444)(Blair to Bruno informing her that he
spoke with Troy and let him know that he had been terminated); (Email dated February 20, 2103,
4:13 p.m., ECF No. 32-1, PageID 445)(Bruno responding to Blair’s email “The direction was to
tell him you were stopping his pay and he was to let you know when he was returning to work.
He was to contact you before returning to work. At that point, you would have terminated him.”)
Despite the unfortunate timing of events, the record is replete with Wilson’s failure to
meet his employment criteria, as well as violation of company policy.

This supports

Dynasplint’s decision to terminate Wilson. Consistent with the Sixth Circuit’s decision in
Gipson, the process to terminate began on February 18, 2013, when Blair submitted his
Performance Report and both Bruno and Herman advised Blair to terminate Wilson. As such,

24 

there is not a genuine issue of material fact as to a causal connection between FMLA and
Wilson’s termination.
Conclusion
Considering the pleadings, depositions, and affidavits, there is not a genuine issue of
material fact as to whether or not Wilson provided proper notice nor whether there was a causal
connection between exercise of FMLA right’s and his termination. Defendant is therefore
entitled to judgment as a matter of law.

Defendant’s motion for summary judgment is

GRANTED and the Clerk will enter judgment dismissing this case with prejudice.

April 3, 2017.

      s/ Michael R. Merz 

   United States Magistrate Judge 

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