                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0314n.06

                                             No. 12-3673
                                                                                          FILED
                            UNITED STATES COURT OF APPEALS                            Mar 29, 2013
                                 FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


JOSEPH C. NILLES,                                          )
                                                           )
          Plaintiff-Appellant,                             )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Southern
GIVAUDAN FLAVORS CORP.,                                    )   District of Ohio
                                                           )
          Defendant-Appellee.                              )




Before:          BOGGS, GIBBONS, and COOK, Circuit Judges.

          BOGGS, Circuit Judge. Plaintiff-appellant Joseph Nilles filed a claim against his employer,

defendant-appellee Givaudan Flavors Corp. (Givaudan), alleging that his termination was the result

of disability discrimination, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12112, and Ohio Rev. Code § 4112.02(A). Nilles also alleged that his termination constituted

illegal retaliation, in violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615. The

district court granted summary judgment to Givaudan on all counts, and Nilles now appeals. For the

reasons that follow, we affirm the decision of the district court.

                                                   I

          Givaudan is a manufacturer of scents and flavors that are used in foods, perfumes, and other

consumer products. In 2003, Givaudan hired Nilles as a purchasing supervisor for its Cincinnati,

Ohio, and East Hanover, New Jersey, facilities. Givaudan hired Jack Dabney in mid-2007 as its
No. 12-3673
Nilles v. Givaudan Flavors Corp.

regional purchasing supervisor, a position with supervisory authority over Nilles. In November

2010, Nilles, who was now responsible for purchasing at Givaudan’s Carthage, Ohio, and Devon,

Kentucky, facilities, told Dabney that he had received an offer for another job and used this offer as

leverage to negotiate more favorable terms of employment with Givaudan. Givaudan was short-

staffed and agreed to give Nilles an eight-percent increase in pay and to hire another employee to

help with purchasing at the Devon facility. Soon after, Givaudan hired Nancy Fulmer, who took

over purchasing at the Devon facility. Both Dabney and Nilles interviewed Fulmer, who had

extensive experience in the flavor-purchasing industry, and Nilles himself recommended that Fulmer

be hired. After completing her training, Fulmer held the exact position at the Devon facility that

Nilles held at the Carthage facility, and, while Fulmer reported to Nilles for a few months during her

training, she eventually reported directly to Dabney.

       In 2008, several incidents occurred that prompted Dabney to talk with Nilles about his job

performance. In September 2008, one of Nilles’s subordinates, Kay Whitener, left Givaudan, stating

in her exit interview that she “love[d] Givaudan” but that she had to leave given her “very difficult

manager/subordinate relationship with Joe Nilles.” While Whitener mentioned that her new job had

a higher salary, she made clear “that money was [not] the driving force in my decision[, and that t]he

main driving force is Joe Nilles.” Specifically, Whitener complained that “[t]here is no effective

communication within the very small purchasing group in Carthage” because “[a]s a manager,

[Nilles] is horrible.” In response to Whitener’s comments, Deborah Pickering (sometimes referred

to as Deborah Navarro in the record) of Givaudan human resources sent Dabney an email suggesting



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that he develop “a plan of action with regard to [Nilles] before other people exit the company, or the

perception of your department suffers more.”

       In his affidavit, Dabney stated that Nilles had “performance problems” throughout 2008,

noting that Nilles’s “communication and interpersonal skills were lacking, . . . [he] had problems

being a self-starter[,] . . . requiring step-by-step instructions on how to proceed[, and his] project

management abilities did not meet my expectations.” Dabney asserts that he spoke with Nilles about

these issues throughout 2008, a claim that Nilles does not deny except to point out that these

conversations did not constitute formal discipline. Dabney also met with Nilles in February 2009

to conduct his annual evaluation, at which time Dabney discussed all the above-mentioned concerns

that he had about Nilles’s performance. Nilles claims that “he did not consider this review as any

kind of warning that his performance was so poor that his job was in jeopardy,” and he points out

that “Givaudan paid [him] a merit-based bonus for his performance in 2008, which recognized his

achievement of his annual objectives.”

       In response to these issues, Dabney and Pickering came up with a plan to terminate Nilles

based on his poor performance. Before Nilles could be fired, they felt that Givaudan needed to hire

and train a replacement for Whitener. Once this objective was met, Dabney and Pickering planned

to transfer Fulmer to Nilles’s job and also have her continue with her old duties managing the Devon

facility until a replacement could be found. While it is unclear exactly when this course of action

was formulated, Dabney indicated that the original plan had a “target completion timeframe of First

Quarter, 2009,” but that completion was delayed due to “the longer than anticipated timeframe



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required for recruiting the new [replacement for] Kay Whitener.”1 In addition, Pickering left

Givaudan in 2009 and was replaced by Willie Spencer. There are no emails in the record between

Dabney and Pickering that describe their plan to terminate Nilles, and the most complete description

of the plan is in an August 5, 2009, email that Dabney sent to Spencer catching him up on the plan

and explaining why it had been delayed. Spencer asserts that he had no input in Dabney’s decision

to terminate Nilles and that after Dabney informed him of the plan to fire Nilles, Spencer’s only

involvement was to recommend that Dabney compare Fulmer and Nilles—in order to ensure that

Fulmer was the right person for Nilles’s position—and to provide Dabney with an HR form for

conducting this comparison.

       Meanwhile, in July 2009, another of Nilles’s subordinates, Scott Umphlett, resigned, stating

in his exit interview that while he was leaving because he had received a “great opportunity and

offer,” Nilles was the reason he started looking for another job. Umphlett provided a lengthy

description of his issues with Nilles, reprising many of the problems Whitener and Dabney had

already identified.

       Following Spencer’s recommendation, Dabney completed a formal comparison of Nilles and

Fulmer and concluded that Nilles should be fired. Dabney relayed this recommendation to his boss

in Switzerland, Johannes Rogaar, who approved it perfunctorily. On October 20, 2009, Dabney and

Spencer informed Nilles that he was being terminated.




       1
        Whitener’s replacement, Nancy Lauer, was hired at the end of May 2009, and Dabney stated
that “we needed to allow time for her ramp-up” before Nilles could be terminated.

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       Throughout this time period, Nilles had taken FMLA leave several times. In January 2008,

Nilles took FMLA leave for a respiratory infection, and in late March and early April 2009, he again

took FMLA leave, this time for dizziness and headaches. Both of these leaves, along with the

payment of short-term disability benefits, were approved under the FMLA by Matrix, a contractor

that administered leave for Givaudan. Furthermore, after each leave, Nilles returned to his previous

position with full pay and benefits. Nilles learned during his second leave of absence that he had

Multiple Sclerosis (MS) and told Spencer in April 2009. Nilles admits that he told no other

employee at Givaudan about his MS and does not challenge Spencer’s statement that Spencer “did

not tell anybody” because Nilles “came to me in confidence . . . [and] asked me to keep it to myself.”

During his leaves of absence, Nilles told Dabney only that he was sick, that he was being treated by

several doctors, and, at one point, that he was getting an MRI. In addition, only Nilles’s

symptoms—first an upper respiratory infection and later dizziness and headaches—were listed on

his two requests for leave, with no mention of his MS.

       After his termination, Nilles filed a complaint against Givaudan alleging, inter alia, disability

discrimination, in violation of the ADA and Ohio Rev. Code § 4112.02(A), and illegal retaliation,

in violation of the FMLA.2 On March 1, 2012, Givaudan filed a motion for summary judgment, and

the district court granted its motion on all of Nilles’s claims. With respect to Nilles’s disability-

discrimination claims, the district court held that Nilles had failed to show that Dabney, the sole


       2
          Nilles’s original complaint also alleged illegal interference with his FMLA rights, in
violation of the FMLA, and gender discrimination, in violation of Title VII and Ohio Rev. Code
§ 4112.02(A). On appeal, he does not challenge the district court’s grant of summary judgment as
to those claims.

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Nilles v. Givaudan Flavors Corp.

decision-maker, had any knowledge of Nilles’s disability and thus that Nilles had not established a

prima facie case of disability discrimination. Turning to Nilles’s FMLA retaliation claim, the district

court held that Nilles had not demonstrated a causal connection between his taking FMLA leave and

his subsequent termination and thus that he had failed to state a prima facie case of FMLA

retaliation. Thereafter, Nilles timely appealed.

                                                   II

       Summary judgment is appropriate when “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.” Fed. R. Civ. P.

56(a). This court reviews the grant of a motion for summary judgment de novo. Hirsch v. CSX

Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). We must construe all evidence and draw all

inferences against the moving party. Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th

Cir. 2009). However, “‘[t]he mere existence of a scintilla of evidence in support of [the non-moving

party’s] position will be insufficient; there must be evidence on which the jury could reasonably find

for the [non-moving party].’” Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 576 (6th Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In this analysis, “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.” Anderson, 477 U.S. at 249.

                                                   III

                                                   A

       Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual

on the basis of disability in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). To make

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Nilles v. Givaudan Flavors Corp.

out a prima facie case of disability discrimination under Title I through the use of indirect evidence,

a plaintiff must show:

       1) he or she is disabled; 2) otherwise qualified for the position, with or without
       reasonable accommodation; 3) suffered an adverse employment decision; 4) the
       employer knew or had reason to know of the plaintiff’s disability; and 5) the position
       remained open while the employer sought other applicants or the disabled individual
       was replaced.

Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011) (internal quotation marks omitted). If a

plaintiff meets these requirements, “the burden shifts to the defendant to articulate a

non-discriminatory explanation for the employment action, and if the defendant does so, the burden

shifts back to the plaintiff to prove that the defendant's explanation is pretextual.” Ibid.

       In addition, “analysis of claims made pursuant to the Americans with Disabilities Act applies

to claims made pursuant to Ohio Revised Code § 4112.02.” Jakubowski v. Christ Hosp., Inc., 627

F.3d 195, 201 (6th Cir. 2010). Accordingly, disability claims brought under Ohio law may be

evaluated concurrently and under the same standards as claims brought under the ADA.

                                                   B

       In the instant case, the district court found, and no party disputes, that the only element at issue

in Nilles’s attempt to establish a prima facie case is whether Givaudan knew or had reason to know

of Nilles’s disability. While Nilles argues that “the knowledge requirement is met if the legal entity

was on notice” of his disability, see Appellant Br. at 11, existing case law makes clear that an

employee cannot be considered to have been fired “on the basis of disability” unless the individual

decision-maker who fired the individual had knowledge of that disability, see Burns v. City of

Columbus, Dep’t of Pub. Safety, Div. of Police, 91 F.3d 836, 844 (6th Cir. 1996) (holding that

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Nilles v. Givaudan Flavors Corp.

plaintiff could not establish a prima facie case of disability discrimination because he had failed to

show that the members of a review board that made the ultimate decision to terminate him knew of

his disability); Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1181–82 (6th Cir. 1993)

(holding that because “it was the Board of Directors, and not the president, who suspended plaintiff,”

plaintiff could not state a claim of disability discrimination where “[t]here is no showing that the

Board had any knowledge of plaintiff’s mental illness”); Moloney v. Home Depot U.S.A., Inc., 2013

WL 460684, No. 11-10924, at *1 (E.D. Mich. Feb. 7, 2013) (“[B]ecause Keith Stevens made the

decision to terminate Plaintiff’s employment, . . . it is Stevens’s knowledge, as the decision-maker,

that is relevant.”); see also Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1185 (11th Cir. 2005) (“Once

the issue is framed clearly, it is evident that an employee cannot be fired ‘because of’ a disability

unless the decisionmaker has actual knowledge of the disability.”); Hedberg v. Ind. Bell Tel. Co., Inc.,

47 F.3d 928, 932–33 (7th Cir. 1995) (holding that lack of knowledge of decision-maker is fatal to a

prima facie case under the ADA because “it is intuitively clear when viewing the ADA’s language

in a straightforward manner that an employer cannot fire an employee ‘because of’ a disability unless

it knows of the disability”).3 On this factor, Nilles has clearly failed to carry his burden of showing

that Dabney, the sole decision-maker with respect to Nilles’s firing, knew of his disability.




       3
         While the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified
as amended in scattered sections of 42 U.S.C.), changed the language of the Act from prohibiting
discrimination “because of” disability to discrimination “on the basis of” disability, this does not
affect the reasoning of the pre-2008 decisions with respect to decision-maker knowledge. It is
equally true that an employee cannot be fired “on the basis of” his disability unless the individual
firing him knows of that disability.

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        Nilles does not contest that Dabney was the sole decision-maker for his termination and

admits that he told no one at Givaudan about his MS except Spencer. Furthermore, Spencer

specifically stated in his affidavit that, at Nilles’s request, he told no one else at Givaudan about

Nilles’s disability. Nilles presents no evidence to refute Spencer’s statement or otherwise suggest that

Dabney knew of his MS. Instead, Nilles argues only that a jury must be allowed “to evaluate whether

Spencer’s knowledge should be imputed to Jack Dabney.” Appellant Br. at 12. “The mere existence

of a scintilla of evidence in support of [Nilles’s] position [is] insufficient’” to allow us to draw the

speculative inference that Spencer lied in his affidavit and in fact did relay Nilles’s medical

information to Dabney. Shropshire, 550 F.3d at 576 (quoting Anderson, 477 U.S. at 252). Here,

Nilles has produced even less than a scintilla of evidence and simply asks the court to disbelieve

Givaudan’s affidavits. This is untenable. See Brown v. City of Franklin, 430 F. App’x 382, 386 (6th

Cir. 2011) (“[Plaintiff] contests [the fact that defendant knew plaintiff engaged in a protected activity]

simply by contending that human resources ‘must have told’ [defendant] of [plaintiff’s] statements

[made in HR interviews]. This, however, is pure speculation, and [plaintiff] conceded that he has no

evidence to undermine [defendant’s] claim of ignorance.”); Burns, 91 F.3d at 844 (holding that

plaintiff had not established employer’s knowledge of his disability because he “failed to present any

evidence to contradict the affidavit testimony of the . . . Board members who claim to have been

unaware of [plaintiff’s] injury when they made their decision to recommend his termination”).

        In addition, Nilles asks us to assume that Spencer’s knowledge can be imputed to Dabney

because “Spencer advised Dabney regarding the consolidation of the purchasing manager positions.”

Appellant Br. at 12. The record contains no evidence, however, to dispute Spencer’s assertion that

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Nilles v. Givaudan Flavors Corp.

he only spoke with Dabney about the process for firing Nilles, as was his job as a human resources

employee, and never made any recommendations on the substance behind Nilles’s termination.

Again, without any evidence to suggest that Spencer played a substantive role in Nilles’s firing, Nilles

cannot ask us to speculate that such conduct occurred.

       Finally, Nilles argues that Dabney knew that Nilles was disabled because, given Nilles’s two

leaves of absence, Dabney knew that Nilles was sick. Knowledge of an employee’s symptoms,

however, does not necessarily equate to knowledge of his disability. See Hammon v. DHL Airways,

Inc., 165 F.3d 441, 450 (6th Cir. 1999) (holding that employer had no knowledge of plaintiff’s

disability merely because employer knew of several of his symptoms); Brown v. BKW Drywall

Supply, Inc., 305 F. Supp. 2d 814, 829 (S.D. Ohio 2004) (“Knowing that an employee has health

problems, however, is not the same as knowing that the employee suffers from a disability.”). Of

course, if Nilles’s symptoms were severe enough to alert Dabney that Nilles had a disabling condition,

one might be able to conclude that Dabney knew of Nilles’s disability or at least had some generalized

notion that it existed. But in the instant case, Dabney only knew that Nilles had taken two leaves of

absence, each for less than a month and separated by over a year, and that Nilles was seeing several

doctors and had had an MRI. This information does not strongly imply that Nilles had a permanent

disability and is just as, if not more, consistent with the perception that Nilles simply was suffering

from one or more temporary illnesses.

       Accordingly, the district court correctly held that Nilles failed to establish a prima facie case

of disability discrimination under either the ADA or Ohio law and appropriately granted Givaudan’s

motion for summary judgment on those claims.

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Nilles v. Givaudan Flavors Corp.

                                                 IV

                                                  A

       The FMLA prohibits an employer from “discharg[ing] or in any other manner discriminat[ing]

against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C.

§ 2615(a)(2). This language has been read as creating a cause of action against employers who

retaliate against employees for taking FMLA leave. See Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th

Cir. 2012). In order to establish an FMLA retaliation claim, a plaintiff must demonstrate:

       (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.

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). If a plaintiff satisfies this

framework, “[t]he burden then shifts to [the defendant] to articulate a legitimate, nondiscriminatory

reason for [plaintiff’s] discharge.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th

Cir. 2001). If the defendant is able to articulate such a reason, the plaintiff “has the burden of

showing that the articulated reason is in reality a pretext to mask discrimination.” Ibid.

                                                  B

       In granting summary judgment for Givaudan on this claim, the district court held that Nilles

had not demonstrated a causal connection between his taking of FMLA leave and his eventual firing.

The district court reasoned that Dabney’s plan to terminate Nilles, which was formulated well before

Nilles’s final taking of FMLA leave in 2009, demonstrated that the 2009 FMLA leave itself was not

the reason for Nilles’s firing. In addition, the district court noted that, even assuming there was no

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plan to fire Nilles prior to his 2009 FMLA leave, Nilles’s only other evidence of causation was the

temporal proximity between his 2009 FMLA leave and his eventual firing. Observing that Nilles’s

last period of FMLA leave ended in April 2009 and that he was not fired until October 20, 2009, the

district court stated that Nilles’s termination “over six months after his last FMLA leave” was

insufficient temporal proximity to establish causation.

        We agree that if, as the district court found, Dabney had formulated a plan with Pickering

some time in late 2008 or early 2009 to fire Nilles, this plan would have existed well before Nilles’s

second, 2009 FMLA leave and thus would discredit Nilles’s claim that his termination was motivated

by that leave. With respect to his earlier FMLA leave, taken in January 2008, while neither the parties

nor the district court discussed the issue at length, it seems clear that this leave, taken more than a

year and a half before Nilles’s ultimate termination and almost a year before Dabney claims he and

Pickering first formed their plan to fire Nilles, has an even weaker causal connection to Nilles’s losing

his job. In sum, Nilles’s entire FMLA claim can quickly be disposed of if we credit Dabney’s story

that he and Pickering hatched their plan to fire Nilles before he took his FMLA leave.

        On appeal, Nilles argues, as he did before the district court, that “there is no documentation

of [Dabney’s plan to terminate Nilles] in this record except [his] August 2009 email [to Spencer].”

Appellant Br. at 16. Thus, Nilles asserts that there is a genuine issue of fact as to whether Dabney’s

plan actually existed, as “it could be that Nilles’ performance improved such that termination was no

longer warranted[] or it could be that the plan never existed in the first place.” Id. at 16–17. In

addition, the district court noted that Pickering’s mention in an email of the need to form “a plan of

action with regard to Joe” corroborated Dabney’s story that he had developed a plan to fire Nilles

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before he took his 2009 FMLA leave. Nilles claims that this was “an inference in favor of the moving

party, which is improper at summary judgment.” Id. at 16.

        All of these arguments fail for the same reason that Nilles’s arguments concerning Dabney’s

knowledge of his disability fail. See supra Section III.B. Nilles fundamentally misunderstands the

summary-judgment maxim that “all inferences are to be drawn in the non-movant’s favor,” essentially

arguing that we must accept any remotely possible hypothetical that would further his cause and must

disbelieve any statement from Givaudan that would hurt it. This is not the case. See Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (making clear that the party

opposing summary judgment must “do more than simply show that there is some metaphysical doubt

as to the material facts”); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“[T]he party

opposing [a motion for summary judgment] 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.” (internal quotation marks omitted)); Hedberg, 47 F.3d at 932

(“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition

of which is a primary goal of summary judgment.”); see also Brown, 430 F. App’x at 386; Burns, 91

F.3d at 844. Simply invoking the possibility that Dabney manufactured an elaborate story regarding

a plan to fire Nilles and speculating that Dabney went so far as to fabricate his August 2009 email to

Spencer in order to corroborate that story is not enough to create a genuine dispute of material fact.

And the district court’s observation that Pickering’s email supported Dabney’s story was a proper

finding that Givaudan had presented a plausible rendition of the facts, one that Nilles had utterly

failed to discredit.

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       Accordingly, Nilles could not establish that his termination was causally related to his taking

of FMLA leave, and he thus failed to state a prima facie case of FMLA retaliation.

                                                 V

       For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment

to Givaudan.




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