[Cite as Hartman v. Ohio Dept. of Transp., 2016-Ohio-5208.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Fred Hartman,                                       :

                Plaintiff-Appellant,                :
                                                                   No. 16AP-222
v.                                                  :         (Ct. of Cl. No. 2014-00790)

Ohio Department of Transportation,                  :         (REGULAR CALENDAR)

                Defendant-Appellee.                 :



                                          D E C I S I O N

                                    Rendered on August 2, 2016


                On brief: Tobias, Torchia & Simon, and David G. Torchia,
                for appellant.

                On brief: Michael DeWine, Attorney General, Randall W.
                Knutti, and Emily Simmons Tapocsi, for appellee. Argued:
                Emily Simmons Tapocsi.

                              APPEAL from the Ohio Court of Claims

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Fred Hartman, appeals a decision by the Ohio Court of
Claims rendered on February 19, 2016 which granted summary judgment to the Ohio
Department of Transportation ("ODOT") on all of Hartman's claims for disability
discrimination, retaliation, and violation of the Family and Medical Leave Act ("FMLA").
Because on de novo review, even when reading the record in the light most favorable to
Hartman, we find no indication that ODOT's stated reason for terminating Hartman
lacked a factual basis, was not the actual reason for the termination, or was insufficient to
justify the termination, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Hartman was born in November 1939, became a truck driver in 1962, and
became an employee of ODOT in 1991. Hartman loved his job, loved driving trucks, loved
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No. 16AP-222
plowing snow, and loved mowing. However, his history with ODOT was not entirely
untroubled.
       {¶ 3} Hartman served suspensions of one week and two weeks in July and
December 2000, respectively, for reasons not reflected in the record. He was suspended
following allegations of sexual harassment for a few days (the record is in conflict about
the exact number but not more than ten or less than three) in February 2008. He was
also suspended for three days at the end of November and beginning of December 2011,
for having accidentally brought beer to work (apparently he forgot that it was in the
container he used for his lunch). However, he had not been drinking at work, and he
passed a drug and alcohol test.
       {¶ 4} Then, in 2012, Hartman had a series of accidents. On January 12, 2012,
Hartman was backing up a dump truck and hit an overhanging sign with the truck's
smoke stack, tearing it from the truck. Hartman explained that another ODOT employee
was running a weed cutting machine and was supposed to sound a horn when Hartman
got too close to the sign but that he failed to sound the horn. Eight days later, on
January 20, 2012, Hartman bent an outrigger leg of an arrow board sign trailer. He was
backing up a truck with a sign trailer attached to it and struck another stationary trailer.
Then, on February 9, 2012, Hartman backed a dump truck into the wall of a salt dome (a
large concrete structure in which rock salt is stored for use on icy roads). All three
accidents were determined to have been preventable. For the first accident, Hartman
received a written reprimand. For the next two accidents, Hartman received a combined
sanction for both incidents amounting to a five-day suspension. He was also not given
assignments involving driving for two or three months. During meetings about the
accidents, one of his superiors at ODOT, Jim Fife, asked Hartman twice why he did not
retire since he was old enough to do so.
       {¶ 5} On February 21, slightly less than two weeks after the last of the trio of
accidents, Hartman submitted a letter from his doctor to ODOT in which his doctor noted
that Hartman had hearing loss on his right side, had difficulty localizing sounds on that
side, and that Hartman felt that his recent string of accidents was related to that sensory
deficiency.   On April 4, 2012, approximately a month following Hartman's five-day
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No. 16AP-222
suspension after the accidents, ODOT had Hartman's medical condition reviewed by a
doctor. The doctor concurred that Hartman had hearing loss but stated:
              I do not see where the hearing or loss of hearing comes into
              play during a backing maneuver. My examination reveals
              adequate vision, adequate motion of the neck and upper
              extremities and lower extremities to operate a motor vehicle.
              I do not find any medical reason that would interfere with his
              capabilities of backing a vehicle safely.
(Ex. D at 3, Oct. 16, 2015 Hartman Dep.)
       {¶ 6} On June 19, 2012, a call came in to the garage from management requesting
a pothole fix. Hartman was feeling unwell and asked one of his co-workers to cover the
job and he went home. A co-worker did as Hartman asked and completed the job that
day.   The following day, on June 20, 2012, Hartman filed a complaint with the Equal
Employment Opportunity Commission ("EEOC"). In his complaint (which was refiled
again on July 2, to correct a procedural problem in its drafting) Hartman alleged age
discrimination and disability discrimination. Specifically, he alleged:
              I. I am a 72 year old male with a real and/or perceived
              disability. I have held a position with the Ohio Department of
              Transportation for 21 years and I am fully qualified.

              II. During my employment, I have been singled out and
              harassed on a continuous basis and treated in a
              discriminatory manner because of my age and/or real or
              perceived disability. On 2/21/12, I was suspended without
              pay after being given a drug test and a fitness for duty test that
              I passed. I was told that my suspension was due to accidents
              and having unopened alcohol in my locker. I informed my
              supervisor that these accidents were due to my disability and
              requested to be given different duties, but my request was
              denied, although there were other duties available to me. My
              fellow younger non-disabled co-workers have never been drug
              tested, given any fitness for duty tests, or suspended when
              they had alcohol on the premises. I have received constant
              inquiries about the date of my retirement. I believe that I am
              continuously being discriminated against because of my age
              and because of my real/or perceived disability. I also believe
              that I am being retaliated against because of my complaints
              about discrimination and past filings of harassment.

              III. I believe that I have been discriminated against because of
              my age in violation of the Age Discrimination in Employment
              Act (ADEA). I believe that I have been discriminated against
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No. 16AP-222
              based on a real/or perceived disability in violation of the
              Americans with Disabilities Act (ADA). I believe that I am
              being retaliated against based on my complaints about the
              unlawful discrimination and filing of an internal EEO Charge
              with the City.
(App'x A at Ex. 3, Dec. 31, 2015 Memo. in Opp. to Mot. for Summary Jgmt.) Less than ten
days after the initial June 20 filing, on June 29, 2012, Hartman received a letter from
ODOT informing him that ODOT was considering disciplinary action against him.
According to the letter, disciplinary action was being considered because Hartman had
failed to fill the pothole as instructed, had instead gone home on sick leave, and, when
questioned about it by a superior two days later, had become "rude and insolent." Id. at
Ex. 4. On July 18, 2012, Hartman notified ODOT of his need to take intermittent leave
under the FMLA owing to depression and anxiety. The following day, July 19, 2012,
Hartman signed a "Last Chance Agreement" in which ODOT agreed not to terminate
Hartman for the allegations relating to the pothole fix and Hartman agreed to a five-day
suspension and that for a two-year period he could not violate any ODOT work rule or it
would result in his termination. Id. at Ex. 5.
       {¶ 7} Less than a month later, on August 13, 2012, Hartman was hit by a motorist
while attempting to cross the highway on a mower. Hartman was supposed to have an
accompanying vehicle to help the mower to cross the highway safely and Hartman's
supervisor had promised to send one. However, when no supporting vehicle arrived,
Hartman decided to cross the road with the mower without the supporting vehicle's help
and in order to finish the job. Both Hartman and the motorist were cited in the accident,
the motorist for driving on a suspended license and Hartman for failure to yield.   Two
days later, on August 15, 2012, Hartman received a notice informing him that his five-day
suspension relating to the pothole incident would begin August 20, 2012.
       {¶ 8} Hartman participated in a hearing regarding the mower accident on
August 27, 2012. After the hearing outside the hearing room, Fife made a comment to
Hartman, "[y]ou're going to enjoy retirement." (Hartman Dep. at 43.) Three days later,
on August 30, 2012, Hartman submitted a letter to ODOT from his psychiatrist asserting
that Hartman would be taking leave, pursuant to the FMLA, due to panic attacks and
depression starting August 30, 2012 and would be medically capable of returning to work
on September 20, 2012. On September 17, 2012, the psychiatrist extended the period of
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No. 16AP-222
medical leave until October 22, 2012.      The following day, September 18, the Ohio
Department of Administrative Service issued a letter informing Hartman in writing that
disability leave benefits had been approved. The same letter was received by ODOT on
September 21.
      {¶ 9} On the evening of September 28, 2012, Hartman's counsel sent an e-mail to
ODOT in which she asserted that ODOT had never responded to Hartman's requests for
accommodation of his hearing disability in the form of a job that did not require driving.
ODOT responded that Hartman had never asked for such an accommodation and that,
even if he had, it would have been denied because one of the essential functions of
Hartman's job was driving. That same day, October 2, 2012, ODOT sent a letter to
Hartman informing him that his employment would be terminated, effective October 5,
2012, for violation of the last chance agreement because of the damage his rule violation
had caused to ODOT equipment. In addition to the letter, Fife called and notified
Hartman of the decision by telephone. On October 5, 2012, the Ohio Department of
Administrative Service informed Hartman in writing that disability leave benefits were
approved through October 5, 2012, but they would extend no further because of his
termination from ODOT.
      {¶ 10} Nearly two years after his termination, on September 30, 2014, Hartman
filed a complaint against ODOT in the Court of Claims alleging disability discrimination,
retaliation, and violation of the FMLA. Although Hartman had alleged age discrimination
in his EEOC charge, he did not include a claim for age discrimination in his complaint in
the Court of Claims. ODOT filed an answer on June 18, 2015.
      {¶ 11} On December 9, 2015, ODOT filed a motion for summary judgment
supported by Hartman's deposition and related exhibits.         On December 31, 2015,
Hartman filed a memorandum in opposition and attached his own affidavit with
referenced exhibits. ODOT filed a reply with an affidavit of Fife. On February 19, 2016,
the Court of Claims ruled in ODOT's favor and granted summary judgment.
      {¶ 12} Hartman now appeals.
II. ASSIGNMENT OF ERROR
      {¶ 13} Hartman posits a single assignment of error for our review:
             THE TRIAL COURT ERRED BY GRANTING DEFENDANT'S
             MOTION FOR SUMMARY JUDGMENT.
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No. 16AP-222
III. DISCUSSION
   A. Standard of Review
      {¶ 14} Civ.R. 56(C) provides that:
             Summary judgment shall be rendered forthwith if the
             pleadings, depositions, answers to interrogatories, written
             admissions, affidavits, transcripts of evidence, and written
             stipulations of fact, if any, timely filed in the action, show that
             there is no genuine issue as to any material fact and that the
             moving party is entitled to judgment as a matter of law.
The Supreme Court of Ohio has explained:
             Summary judgment will be granted only when there remains
             no genuine issue of material fact and, when construing the
             evidence most strongly in favor of the nonmoving party,
             reasonable minds can only conclude that the moving party is
             entitled to judgment as a matter of law. Civ.R. 56(C); Temple
             v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio
             Op. 3d 466, 364 N.E.2d 267. The burden of showing that no
             genuine issue of material fact exists falls upon the party who
             files for summary judgment. Dresher v. Burt (1996), 75 Ohio
             St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co.
v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
      {¶ 15} The Supreme Court has also discussed in detail the relative burdens of
movant and nonmovant in summary judgment:
             [A] party seeking summary judgment, on the ground that the
             nonmoving party cannot prove its case, bears the initial
             burden of informing the trial court of the basis for the motion,
             and identifying those portions of the record which
             demonstrate the absence of a genuine issue of material fact on
             the essential element(s) of the nonmoving party's claims. The
             moving party cannot discharge its initial burden under Civ.R.
             56 simply by making a conclusory assertion that the
             nonmoving party has no evidence to prove its case. Rather,
             the moving party must be able to specifically point to some
             evidence of the type listed in Civ.R. 56(C) which affirmatively
             demonstrates that the nonmoving party has no evidence to
             support the nonmoving party's claims. If the moving party
             fails to satisfy its initial burden, the motion for summary
             judgment must be denied. However, if the moving party has
             satisfied its initial burden, the nonmoving party then has a
             reciprocal burden outlined in Civ.R. 56(E) to set forth specific
             facts showing that there is a genuine issue for trial and, if the
                                                                                           7
No. 16AP-222
              nonmovant does not so respond, summary judgment, if
              appropriate, shall be entered against the nonmoving party.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In deciding summary judgment, the trial
court must give the nonmoving party "the benefit of all favorable inferences when
evidence is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25.
When reviewing a trial court's decision on summary judgment, our review is de novo and
we, therefore, apply the same standards as the trial court. Westfield Ins. Co. v. Hunter,
128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12; Bonacorsi v. Wheeling & Lake Erie Ry., 95
Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
   B. Disability Discrimination Claim
       {¶ 16} R.C. 4112.02(A) prohibits discrimination based on disabilities as follows:
              It shall be an unlawful discriminatory practice:

              (A) For any employer, because of * * * disability * * * 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.
The Supreme Court has explained, "we have determined that federal case law
interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42,
U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter
4112." Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-10
(1991); see also Martin v. Barnesville Exempted Village School Dist. Bd. of Edn., 209
F.3d 931, 934, fn.2 (6th Cir.2000) ("Both federal and Ohio disability discrimination
actions require the same analysis.").
       {¶ 17} When pressing an employment discrimination claim, a plaintiff has first to
establish a prima facie case of discrimination. Greer-Burger v. Temesi, 116 Ohio St.3d
324, 2007-Ohio-6442, ¶ 14, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). If the plaintiff does, the burden then shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the adverse employment action. Id. Once the
employer does, the burden again shifts to the plaintiff to show "that the proffered reason
was not the true reason" for the adverse employment action. Id., quoting Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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No. 16AP-222
       {¶ 18} A prima facie case of discriminatory discharge requires a plaintiff to show
(1) he is disabled, (2) he was otherwise qualified for the position, with or without
reasonable accommodation, (3) he suffered an adverse action, (4) the employer knew or
had reason to know of his disability, and (5) he was replaced or the job remained open.
Rosebrough v. Buckeye Valley High School, 690 F.3d 427, 431 (6th Cir.2012), citing Plant
v. Morton Interntl. Inc., 212 F.3d 929, 936 (6th Cir.2000). These elements can vary
based on the circumstances of the case. See Demyanovich v. Cadon Plating & Coatings,
L.L.C., 747 F.3d 419, 433 (6th Cir.2014) (stating the elements as "(1) he is disabled, (2) he
is otherwise qualified to perform the essential functions of a position, with or without
accommodation, and (3) he suffered an adverse employment action because of his
disability"); see also Rosebrough at 431, fn.2.
       {¶ 19} ODOT does not appear to dispute that Hartman's loss of hearing in one ear
constituted a disability, that ODOT was, prior to the termination, aware of the condition,
or that Hartman suffered an adverse action when he was terminated. ODOT did argue at
the trial level that Hartman was not qualified for his position. But, reading the record in
the light most favorable to Hartman (as we must on review of summary judgment), it is
hard to see how a truck driver with 50 years of experience could have been unqualified to
drive trucks, even with hearing loss in one ear. Although Hartman presented no evidence
about whether his position was subsequently filled after his termination, because there is
considerable variability in the caselaw as to the elements of a prima facie case and the
final element in particular, we assume in reviewing summary judgment that Hartman
sufficiently presented a prima facie case, including having met requirements on this final
point. See, e.g., Demyanovich at 433; Rosebrough at 431, fn.2; Nilles v. Givaudan
Flavors Corp., S.D.Ohio No. 1:10-cv-919, fn.21 (May 1, 2012).
       {¶ 20} The burden then shifts to ODOT under the McDonnell Douglas burden-
shifting framework to articulate some legitimate, nondiscriminatory reason for the
adverse employment action. Greer-Burger at ¶ 14. The record, even when read in favor of
Hartman, shows four preventable accidents involving Hartman at work using work
equipment in 2012, the last of which occurred after Hartman was placed on a last chance
agreement. This is a legitimate and nondiscriminatory reason for terminating Hartman.
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No. 16AP-222
       {¶ 21} Having articulated a legitimate reason for the termination, the question is
then whether Hartman could show at trial " 'that the proffered reason was not the true
reason' " for the adverse employment action, that is, that it was a pretext masking
discriminatory motive. Id., quoting Burdine at 256. Multiple courts, including this Court,
have explained what is required to show pretext:
              A plaintiff may establish pretext by proving that: (1) the
              employer's stated reason for terminating the employee has no
              basis in fact, (2) the reason offered was not the actual reason
              for the termination, or (3) the reason offered was insufficient
              to explain the employer's action.
Smith v. Ohio Dept. of Pub. Safety, 10th Dist. No. 12AP-1073, 2013-Ohio-4210, ¶ 77,
citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994).
       {¶ 22} The evidence in the summary judgment record falls short, even when read
in a light most favorable to Hartman. The record demonstrates that Hartman's job was
terminated for the express reason that he was involved in a preventable traffic accident
while on a last chance agreement. Hartman admits that the accidents reflected in the
record occurred and that he knew he would be terminated from his employment upon the
last accident due to the last chance agreement providing any violation of work policy
would result in termination. Thus, Hartman essentially admits that there was a sufficient
basis in fact for the termination.
       {¶ 23} However, Hartman alleges that the last accident and others occurred as a
result of his disability, that his disability interfered with his driving, and that he should
have been given an accommodation relieving him from driving duties. In other words,
Hartman argues that the cause of his employment termination was actually his disability
and ODOT's failure to accommodate. Reading the record in favor of Hartman and
drawing all inferences in his favor, the evidence in the record does not favor Hartman's
position that partial hearing loss in one ear resulted in Hartman's repeatedly backing into
silent, visible stationary objects or in deciding to violate a rule against crossing the
highway on a mower without a supporting vehicle. Hartman admitted during his
deposition that for three of the accidents, he was not even attempting to listen for
anything. With respect to the mower incident, Hartman testified that his hearing had
nothing to do with the accident and that the oncoming car would have been visible for at
least a quarter mile of the open highway before the collision. And the evidence for the one
                                                                                         10
No. 16AP-222
incident where Hartman was listening for a horn and backed into the sign includes
Hartman's testimony that his co-worker never sounded the horn and so the sound did not
occur that he would have allegedly failed to hear.       Viewing the summary judgment
evidentiary record in the light most favorable to Hartman and drawing all reasonable
inferences in his favor, Hartman cannot show that ODOT's reason for terminating his
employment (violation of the last chance agreement and accidents) was a pretext.
       {¶ 24} In arguing against this conclusion, Hartman asserts that the trial court
erred in failing to address comments by Fife to the effect that Hartman should consider
retirement. Even if such comments were in fact discriminatory in nature and even if the
stated reasons for Hartman's termination could be found to be pretextual, Hartman did
not assert a claim for age discrimination in his Court of Claims action now under review.
See also Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654 (2001),
citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997) (holding
that a cause of action failed because it was not asserted in the trial court). Hartman's age
discrimination claim was an EEOC claim not before us.
       {¶ 25} Concerning his disability, Hartman argues that ODOT should have but did
not engage in an interactive process with him to accommodate his disability, rather than
terminate his employment, and that this, in and of itself, is a violation. Specifically,
Hartman argues that ODOT could have assigned him to non-driving duties.
       {¶ 26} Hartman is correct that under Ohio law:
              (1) An employer must make reasonable accommodation to the
              disability of an employee or applicant, unless the employer
              can demonstrate that such an accommodation would impose
              an undue hardship on the conduct of the employer's business.

              (2) Accommodations may take the form, for example, of
              providing access to the job, job restructuring, acquisition or
              modification of equipment or devices or a combination of any
              of these. Job restructuring may consist, among other things,
              of realignment of duties, revision of job descriptions or
              modified and part-time work schedules.
Adm.Code 4112-5-08(E). However, as discussed above, there is absolutely no evidence
from which we could conclude, even drawing all inferences in favor of Hartman, that his
partial hearing loss prevented him from performing any aspect of his job, including
driving, such that he might have needed such an accommodation. Only two doctors' notes
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No. 16AP-222
appear in the record regarding Hartman's hearing in relation to driving. One concluded
that Hartman had fully adequate faculties to drive a truck (even in reverse), and the other
merely indicated that Hartman believed the hearing loss caused the recent accidents
without endorsing that view. Hartman admitted during his deposition that with respect
to three of the accidents (two of which involved backing into silent stationary objects), he
was not even attempting to listen for anything. With respect to the collision while on the
mower, Hartman testified that the oncoming car would have been visible for at least a
quarter mile of open highway before the collision. And regarding the one incident where
Hartman was listening for the horn and backed into the sign, Hartman testified that his
co-worker never sounded the horn and so the sound was never available for him to fail to
hear. As a matter of law, hearing impaired persons (even those with a complete loss of
hearing) are legally permitted to obtain drivers' licenses in Ohio. See, e.g., R.C. 4507.141.
   C. Retaliation Claim
       {¶ 27} R.C. 4112.02(I) prohibits retaliation by an employer against an employee:
                It shall be an unlawful discriminatory practice:

                ***

                (I) For any person to discriminate in any manner against any
                other person because that person has opposed any unlawful
                discriminatory practice defined in this section or because that
                person has made a charge, testified, assisted, or participated
                in any manner in any investigation, proceeding, or hearing
                under sections 4112.01 to 4112.07 of the Revised Code.
       {¶ 28} The Supreme Court has explained that to establish a prima facie case of
retaliation:
                [A] claimant must prove that (1) she [or he] engaged in a
                protected activity, (2) the defending party was aware that the
                claimant had engaged in that activity, (3) the defending party
                took an adverse employment action against the employee, and
                (4) there is a causal connection between the protected activity
                and adverse action.
Greer-Burger at ¶ 13, citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th
Cir.1990).     As was true in the disability discrimination context, "[i]f a complainant
establishes a prima facie case, the burden then shifts to the employer to 'articulate some
legitimate, nondiscriminatory reason' for its actions." Greer-Burger at ¶ 14, quoting
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No. 16AP-222
McDonnell Douglas at 802. Then, "[i]f the employer satisfies this burden, the burden
shifts back to the complainant to demonstrate 'that the proffered reason was not the true
reason for the employment decision.' " Greer-Burger at ¶ 14, quoting Burdine at 256.
           {¶ 29} There is no dispute that Hartman engaged in protected activity when he
filed an EEOC charge, that ODOT was aware of Hartman's EEOC charge, and that, in
firing Hartman, ODOT took an adverse employment action against him. Hartman's prima
facie case hinges on whether the record, viewed in the light most favorable to Hartman,
shows a causal connection between the EEOC charge and the firing. Greer-Burger at ¶ 13.
           {¶ 30} There is no evidence in the record that anyone at ODOT ever mentioned
Hartman's EEOC charge as a reason for his termination. Thus, any causal connection
between the EEOC filing and the termination would have to be inferred from
circumstantial evidence.
           {¶ 31} The Supreme Court has held cases involving only a temporal proximity
between an employer's knowledge of protected activity and an adverse employment action
to be sufficient evidence of causality if they are temporally " 'very close' " to establish a
prima facie case. Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001), quoting
Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001), citing Richmond v.
Oneok, Inc., 120 F.3d 205, 209 (10th Cir.1997); Hughes v. Derwinski, 967 F.2d 1168,
1174-75 (7th Cir.1992). The Sixth Circuit Court of Appeals has elaborated that "in an
appropriate case, a gap of three months between the time the employer learns of the
protected activity and the adverse employment action may permit a jury to draw a causal-
connection inference." Haji v. Columbus City Schools, 621 F. App'x 309, 313 (6th
Cir.2015), citing Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir.2007); Singfield v.
Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir.2004).                            Further analysis is
necessary, however, because " 'proximity alone may not survive summary judgment, nor
does it necessarily imply causation.' "1 (Emphasis sic.) Blosser v. AK Steel Corp., 520 F.

1   The reasoning supporting the distinction is this:
           Where an adverse employment action occurs very close in time after an employer learns of
           a protected activity, such temporal proximity between the events is significant enough to
           constitute evidence of a causal connection for the purposes of satisfying a prima facie case
           of retaliation. But where some time elapses between when the employer learns of a
           protected activity and the subsequent adverse employment action, the employee must
           couple temporal proximity with other evidence of retaliatory conduct to establish causality.
           The reason for this distinction is simple: if an employer immediately retaliates against an
                                                                                                    13
No. 16AP-222
App'x 359, 363 (6th Cir.2013), quoting Chandler v. Specialty Tires of Am., 283 F.3d 818,
826 (6th Cir.2002).
       {¶ 32} In this case, the EEOC charge was filed on June 20, 2012, and Hartman was
terminated on October 2, 2012. It is not clear from the record when ODOT learned of the
EEOC charge, but in the normal course of affairs it should have received notice as a
matter of statute. Breeden at 273; 42 U.S.C. 2000e-5(e)(1). Based on these factors,
including the statutory notice requirement, our obligation to draw reasonable inferences
in favor of Hartman, and the lack of assertion by ODOT that it did not receive notice of the
EEOC charge, it is reasonable to assume that ODOT received notice of the charge before
the end of June 2012. Under this analysis, we view the period between the filing of the
charge and the termination to be approximately two months. Under these facts and
according to Sixth Circuit precedent, Hartman could make a prima facie case of
retaliatory termination.
       {¶ 33} We find under these facts and applicable law that ODOT has asserted a
" 'legitimate, nondiscriminatory reason' " for terminating Hartman (his frequent accidents
and other discipline matters). Greer-Burger at ¶ 14, quoting McDonnell Douglas, 411 U.S.
at 802. Hartman must then show pretext in that "(1) the employer's stated reason for
terminating the employee ha[d] no basis in fact, (2) the reason offered was not the actual
reason for the termination, or (3) the reason offered was insufficient to explain the
employer's action." Smith at ¶ 77, citing Manzer at 1084.
       {¶ 34} The record establishes that Hartman was involved in a number of
preventable accidents with the result that work equipment was damaged. Hartman does
not dispute that these occurred or that, by the time he was subject to the last chance
agreement, the rule violation and final accident were sufficient reason to terminate his
employment. Though Hartman claims the accidents were the result of his diminished
hearing in one ear and that he should have been accommodated in that regard, there is


       employee upon learning of his protected activity, the employee would be unable to couple
       temporal proximity with any such other evidence of retaliation because the two actions
       happened consecutively, and little other than the protected activity could motivate the
       retaliation. Thus, employers who retaliate swiftly and immediately upon learning of
       protected activity would ironically have a stronger defense than those who delay in taking
       adverse retaliatory action.
(Emphasis omitted.) Blosser at 363-64, quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th
Cir.2008).
                                                                                                        14
No. 16AP-222
simply nothing in the record to support that view. Hartman has presented no facts to
demonstrate pretext, that is, " 'that the proffered reason was not the true reason for the
employment decision.' " Greer-Burger at ¶ 14, quoting Burdine at 256.
    D. Family Medical Leave Act Claim2
        {¶ 35} Subject to certain conditions, the FMLA provides eligible employees with an
entitlement to 12 workweeks of leave during a 12-month period for things such a serious
health condition that renders the employee unable to perform the functions of his or her
position. 29 U.S.C. 2612(a)(1)(D). It is "unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided" in Title 29
U.S.C. 2611 et seq. 29 U.S.C. 2615(A)(1).
        {¶ 36} For Hartman to make a prima facie case of an FMLA violation, Hartman
must show:
                (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 h[is] intention to take leave; and (5) the
                employer denied the employee FMLA benefits to which []he
                was entitled.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir.2012), quoting Killian v. Yorozu Auto.
Tennessee, Inc., 454 F.3d 549, 556 (6th Cir.2006), citing Walton v. Ford Motor Co., 424
F.3d 481, 485 (6th Cir.2005). The first four elements are not contested in this case. The
critical question for FMLA is whether ODOT denied Hartman FMLA benefits to which he
was entitled.
        {¶ 37} The Sixth Circuit has held that "[i]f an employer takes an employment
action based, in whole or in part, on the fact that the employee took FMLA-protected
leave, the employer has denied the employee a benefit to which he is entitled." Wysong v.
Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). Similar to Hartman's claim for EEOC
retaliation, there is no evidence whatsoever in the record that ODOT terminated
Hartman's employment because Hartman sought FMLA benefits.                             But there is a
coincidence in timing. Hartman gave notice that he was seeking FMLA benefits on


2 Hartman's complaint is very non-specific with regard to this claim, alleging only that "[d]efendant's
conduct described above [in the rest of the complaint] violated the FMLA." (Sept. 30, 2014 Compl. at ¶ 23.)
While this could have taken the form of an FMLA retaliation claim, Hartman disclaimed such a theory in his
memorandum in opposition to summary judgment and argued only a basic FMLA violation.
                                                                                      15
No. 16AP-222
July 18, 2012. He was terminated from employment less than two months later on
October 2, 2012. Viewing the facts in a light most favorable to Hartman, he could make a
prima facie case under the FMLA.
        {¶ 38} However, again, FMLA claims are subject to the McDonnell Douglas
burden-shifting framework. Donald at 762, citing Grace v. USCAR, 521 F.3d 655, 670
(6th Cir. 2008). Hartman's allegations fail because ODOT had a legitimate reason for
terminating him. The record factually supports ODOT's stated reason for terminating
Hartman and not any pretextual or insufficient reason. Smith at ¶ 77, citing Manzer at
1084.
IV. CONCLUSION
        {¶ 39} Although Hartman likely could establish a prima facie case for each of his
claims, ODOT had legitimate, nondiscriminatory reasons for terminating Hartman.
Construing the record in the light most favorable to Hartman, Hartman cannot show even
a question of fact as to whether such reasons were pretextual. Accordingly, the Court of
Claims did not err in granting summary judgment against Hartman and in favor of
ODOT. Hartman's sole assignment of error is overruled, and the judgment of the Ohio
Court of Claims is affirmed.
                                                                    Judgment affirmed.
                               BROWN and KLATT, JJ., concur.
