Opinion
1:20-CV-00234-DCLC-CHS
11-15-2021
Randy S. WETHINGTON, Plaintiff, v. SIR GOONY GOLF OF CHATTANOOGA, INC., et al., Defendants.
Donna J. Mikel, Mikel & Hamill PLLC, Chattanooga, TN, for Plaintiff. James S. McDearman, Grant, Konvalinka & Harrison, PC, Chattanooga, TN, for Defendants.
Donna J. Mikel, Mikel & Hamill PLLC, Chattanooga, TN, for Plaintiff.
James S. McDearman, Grant, Konvalinka & Harrison, PC, Chattanooga, TN, for Defendants.
MEMORANDUM OPINION AND ORDER
Clifton L. Corker, United States District Judge
This matter is before the Court on Defendants' Joint Motion for Summary Judgment [Doc. 19]. Plaintiff filed a response in opposition [Doc. 21], and Defendants replied [Doc. 23]. This matter is now ripe for resolution. For the reasons that follow, Defendants' Motion for Summary Judgment [Doc. 19] is DENIED . I. BACKGROUND
Plaintiff Randy S. Wethington worked as the general manager for Defendant Sir Goony Golf of Chattanooga, Inc., from March 9, 2014, to October 22, 2019 [Docs. 21-1, pgs. 238-39; 22, pg. 5]. Sir Goony is a family fun center with various amusement attractions, such as go-karts and miniature-golf courses [Doc. 22, pg. 1]. Affiliated with Sir Goony are corporate Defendants Amusement Products, LLC, (Amusement Products) and Amusement Construction Company, Inc. (Amusement Construction). Amusement Products develops and manufactures attractions for family fun centers, and Amusement Construction provides related construction services [Id. , pgs. 2-3]. Amusement Products also conducts two seminars for family fun centers, part of which take place at Sir Goony's location [Id. , pgs. 17-18]. Additionally, Amusement Products uses Sir Goony as a test facility for its products [Doc. 21-1, pgs. 140-41].
The three corporate defendants share common management and the same president, Dutch Magrath [Docs. 21-5, pg. 12; 22, pg. 5]. Magrath oversees "all aspects of [Defendants' businesses] ... to make sure [they] stay profitable and solvent." [Doc. 21-1 (Magrath's deposition), pg. 52]. He reviews compensation for the employees at all three companies [Doc. 19-5, pgs. 125-26]. Although Sir Goony's general manager handles the "day-to-day hiring" at that business, Magrath has input on promotions and occasionally would recommend his children or his friend's children be hired [Doc. 21-1, pg. 16, 82-83]. Indeed, Magrath's wife, two daughters, and son all worked for Defendants [Id. , pgs. 54, 69-70, 83, 114]. He also directs Sir Goony's to minimize overtime to control costs [Id. , pg. 78-79].
On an application for the Payroll Protection Program, they indicated that all three Defendants shared common management [Doc. 21-1, pg. 104].
Cindy Harrell serves as the vice president of operations at Amusement Products but "handles HR for [all the] businesses." [Id. , pg. 15]. She maintains all the employee files for the three companies, serves as the bookkeeper for Sir Goony and Amusement Products, and handles FMLA requests [Doc. 21-5, pg. 16-17, 21, 49]. She considers herself an employee of all three Defendants [Doc. 21-1, pg. 16-17]. Although part of her pay is based on her work with Sir Goony and its profitability, she only draws a salary from Amusement Products and Amusement Construction [Id. , pg. 27].
Wethington reported primarily to Harrell, but he consulted with Magrath on occasion about hiring decisions. [Docs. 21-2, pgs. 1-4; 21-8, pgs. 1-3; 21-10, pg. 1; 21-54, pg. 1]. He also would address any tasks Magrath "requested to be addressed." [Doc. 21-25, pgs. 1-2]. When Sir Goony's attractions needed maintenance, Wethington requested assistance from Amusement Products's employees [Docs. 21-24, pg. 1; 21-63, pg. 1]. Wethington briefed Magrath about the functionality of the attractions at Sir Goony's [Docs. 21-18, pgs. 1-8; 21-21, pgs. 1-9; 21-22, pgs. 1-11; 21-46, pg. 1]. He also helped Amusement Products by conducting tests and reported back to Magrath about the results of those tests [Docs. 21-19, pg. 1; 21-20, pg. 1; 21-27, pg. 1]. Wethington consulted Magrath about winter season operations [Doc. 21-1, pg. 248-49]. He also entertained potential customers of Amusement Products [Doc. 21-28, pg. 1]. His annual bonus was based on the performance of each Defendant, not just the performance of Sir Goony's [Doc. 21-4, pg. 17].
For example, in July 2019, Wethington sought Magrath's approval to hire an employee as a track supervisor for Sir Goony's, and Wethington mentioned that the employee could transition to a role at Amusement Products once Sir Goony's off season began in November [Doc. 21-9, pgs. 1-7].
The three corporate Defendants are separate legal entities, file separate tax returns, maintain separate general liability and workers' compensation insurance policies, but have a common shared health insurance policy for their employees [Docs. 22, pg. 16, 17; 21-5, pg. 78-80]. They use the same third-party vendor to handle all their payroll needs, share a combined office, and use this office as their principal address with the Tennessee Secretary of State [Doc. 22, pg. 16, 17, 23-23; 21-3, pg. 1-7].
Sir Goony's employs, at most, 25 employees from March 1 to November 1 each year during its busy season and maintains three to five employees during the winter [Doc. 22, pgs. 2, 7]. From 2017 through 2020, Amusement Products employed between 50 and 80 employees, and Amusement Construction employed 12 to 20 employees [Docs. 21-1, pgs. 37-39; 21-5, pgs. 30, 35]. In 2019, Defendants employed between 75 and 120 employees all together [Docs. 21-1, pgs. 37-39; 21-5, pgs. 30, 35].
A. Wethington's wife's diagnosis and illness
In November 2018, Wethington's family situation dramatically changed. His wife was diagnosed with stage 4 colorectal cancer, which had metastasized and spread throughout her body [Doc. 21-4, pg. 66; 21-34, pg. 1]. Wethington informed Magrath that his wife's cancer was terminal and that she likely had 12 weeks to live [Docs. 21-33, pg. 1; 21-34, pg. 1]. Wethington asked Magrath for time off to help care for her, as well as his four-year-old child [Doc. 21-35, pg. 1; 21-38, pg. 1]. Magrath agreed and paid him his full salary throughout this period. Wethington took his wife to her chemotherapy and immunotherapy appointments and tended to other familial obligations that now fell on him because of her condition [Doc. 21-35, pg. 1]. He promised to continue to do his job and asked Magrath not to "give up on [him]" and not to "give [his] job away." [Id. ]. He kept Magrath and Harrell informed about his wife's condition and his absences from Sir Goony's [Docs. 21-1, pgs. 172, 175, 202; 21-5, pg. 101; 21-40, pg. 1; 21-41, pg. 1; 21-43, pg. 1; Doc. 21-62, pg. 1].
In 2019, Wethington's wife was accepted as a patient into a clinical trial program at Memorial Sloan Kettering Cancer Center in New York City [Docs. 21-47, pg. 1; 21-48, pg. 1-2]. As a result, Wethington needed more time off work [Doc. 21-48, pgs. 1-2]. He requested 17 days off in August 2019 to take her to those appointments [Id. ]. Although Wethington attempted to minimize the impact on Sir Goony's, [Doc. 21-4, pgs. 113-14], inevitably, he missed days at work to meet his wife's unexpected medical needs [Doc. 21-1, pg. 184].
During this time, no one complained about Wethington's job performance [Id. , pgs. 77-78]. Wethington updated both Harrell and Magrath about his scheduled absences and when he could return to Sir Goony's to finish his tasks [Docs. 21-11, pg. 1; 21-12, pg. 1; 21-13, pg. 1; 21-36, pg. 1; 21-37, pg. 1; 21-39, pg. 1; 21-43, pg. 1; 21-47, pg. 1; 21-50, pg. 1; 21-51, pg. 1]. Notably, Wethington never requested FMLA leave, and he received his full salary during his absences to care for his wife [Doc. 21-4, pg. 59]. In fact, Magrath never threatened to reduce his salary for the days he took off [Id. , pg. 236].
B. The end of Wethington's employment with Sir Goony
On October 16, 2019, Wethington emailed both Magrath and Harrell to confirm the days off that he would need for the rest of the year [Doc. 21-49, pg. 1]. He stated that his request for those days off had "already been verbally ok'd and or approved by both [Magrath] and [Harrell]." [Id. ]. He assured Magrath and Harrell that, "[u]nless there is an emergency or a reason for a transfusion, [he did] not foresee the dates changing or any additional ones being added." [Id. ]. He listed nine workdays during which he was scheduled to be either in New York City or Atlanta for his wife's treatment. The next day, Wethington advised Magrath by email that Sir Goony's profits increased by "almost $17,000" from the previous year and that "the maintenance of all of the attractions [had] never been better." [Doc. 21-53, pg. 1].
On October 18, 2019, Magrath met with Wethington. What happened at this meeting is in dispute. Wethington claims Magrath told him Magrath could no longer tolerate his absences, that he was willing to "put up with [the] situation when it was his understanding that [Wethington's] wife was terminus and now that it appears that she may go on to live for several years he's not sure if he can continue to do that and he has a company to protect." [Doc. 21-4, pg. 49]. Magrath also criticized Wethington's job performance at that time [Id. , pgs. 49-50, 235-36].
According to Magrath, however, Wethington stated that he "can't do this anymore." [Doc. 21-1, pg. 243]. In response, Magrath asked Wethington if he should resign [Id. , pgs. 243-44]. Magrath claims he did not want to fire him and did not want Wethington to quit "but if he can't do the job, [Wethington's] words not [Magrath's], what other choice is there." [Id. , pg. 244]. Wethington denies saying this [Doc. 21-4, pg. 48]. At that point, Magrath claims Wethington told Magrath that he "cannot afford to not have unemployment, can we work this out where I can get unemployment[?]" [Doc. 21-1, pg. 244].
Wethington, instead, claims he refused to resign, and that Magrath had to fire him "like a man." [Doc. 21-4, pg. 51]. Magrath terminated Wethington as the general manager but agreed to indicate on the separation notice that Wethington was laid off due to "lack of work," which would allow Wethington to claim unemployment benefits [Docs. 21-1, pgs. 243-46; 21-4, pgs. 48-51; 21-56, pg. 1]. Magrath also wrote that Wethington had "been an excellent manager for Sir Goony's over the past 6 years." [Doc. 21-56, pg. 1]. On October 22, 2019, Magrath wrote a letter of recommendation that praised Wethington's "organizational skills," and stated that he "work[ed] well with his employees, and pa[id] attention to the details that make a company successful." [Doc. 21-57, pg. 1]. Magrath described Wethington "as an excellent person to be a manager of a business." [Id. ]. Wethington thanked Magrath in a text message for giving him "an additional three weeks of pay." [Doc. 21-55, pg. 1].
In his complaint, Wethington asserts two claims [Doc. 1, pgs. 7-11]. First, Wethington argues Defendants unlawfully interfered with his right to FMLA leave by terminating him [Id. , pgs. 7-8]. Second, Wethington contends that Defendants engaged in unlawful association discrimination under the ADA by terminating him because Defendants "believed that [his] wife's disability created an undue distraction." [Id. , pgs. 8-9]. Defendants now jointly move for summary judgment, arguing that the FMLA does not apply to them because Sir Goony has fewer than 50 employees. Next, they argue that Wethington was not terminated because of his absences resulting from his having to care for his wife during her cancer treatments but because of his extended absences from work [Doc. 19-1, pgs. 1-25].
Wethington appears to have exhausted his administrative remedies with the Equal Employment Opportunity Commission (EEOC) [Doc. 1, pg. 10].
Wethington, in response, argues that the FMLA applies because Sir Goony, Amusement Products, and Amusement Construction were "joint and integrated employers," such that the employees of all three companies meet the numerosity requirement for the FMLA to apply. He contends that Defendants fired him because he had to take time off work to care for his wife, who had been undergoing cancer treatments [Doc. 1, pgs. 4-11]. He claims the proffered reason for his termination was pretextual—that the real reason was discrimination in violation of the ADA—and that a jury should decide the issue.
II. LEGAL STANDARD
Summary judgment is proper 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). The Court views the evidence in the light most favorable to the nonmoving party and makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001).
The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Leary v. Daeschner , 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this burden either by affirmatively producing evidence establishing that there is no genuine issue of material fact or by pointing out the absence of support in the record for the nonmoving party's case. Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Once the movant has discharged this burden, the nonmoving party can no longer rest on the allegations in the pleadings and must point to specific facts supported by evidence in the record demonstrating that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc. , 285 F.3d 415, 424 (6th Cir. 2002).
At summary judgment, the Court may not weigh the evidence, and its role is limited to determining whether the record contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence is not enough. Id. at 251–52, 106 S.Ct. 2505. The Court must determine whether a fair-minded jury could return a verdict in favor of the non-movant based on the record. Lansing Dairy, Inc. v. Espy , 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
III. ANALYSIS
A. FMLA Interference Claim
Wethington claims that Defendants unlawfully interfered with his rights under the FMLA. The FMLA was enacted, in part, "to balance the demands of the workplace with the needs of families ... in a manner that accommodates the legitimate interests of employers." Grace v. USCAR , 521 F.3d 655, 661 (6th Cir. 2008) (quoting 29 U.S.C. § 2601(b) ). It applies only to those eligible employees who work for covered employers. An eligible employee may take up to 12 weeks of unpaid leave to, inter alia , care for certain family members suffering from serious medical problems. See 29 U.S.C. § 2612(a)(1). The FMLA makes it unlawful for any qualifying employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the Act]," § 2615(a)(1), or "to discharge or in any manner discriminate against any individual for opposing any practice made unlawful by [the Act]." § 2615(a)(2). The act "forbids a covered employer from interfering with the exercise of the right to unpaid leave and furthermore provides that, upon return from leave, an employee must be restored to the same or similar position unless the employer offers sufficient economic justification for the elimination of the position." Id. at 662 ; see 29 U.S.C. § 2614. One theory recognized by the Sixth Circuit by which an aggrieved employee may recover under the FMLA is an interference claim pursuant to 29 U.S.C. § 2615(a)(1). Seeger v. Cincinnati Bell Tel. Co., LLC , 681 F.3d 274, 282 (6th Cir. 2012).
To prevail on an FMLA interference claim, a plaintiff must establish that: (1) he was an eligible employee as defined under the FMLA; (2) his employer was a covered employer as defined under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer notice of his intention to take FMLA leave; and (5) his employer denied FMLA benefits to which he was entitled. Novak v. MetroHealth Med. Center , 503 F.3d 572, 577-78 (6th Cir. 2007). There is no dispute that Wethington was an eligible employee. For purposes of this motion, the focus is on whether Defendants are covered employers under the FMLA.
A covered "employer" comprises "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4). Defendants argue that they are not a "covered employer" under the FMLA because Sir Goony only employs 25 employees from March to November and less than that during the winter season [Doc. 19-1, pgs. 8-21].
Wethington argues that the Court should not limit itself to counting just the employees of Sir Goony but should include the employees of all three corporate Defendants. When the employees of the three Defendants are included, the numerosity requirement of 50 or more employees is met and FMLA applies. "The FMLA itself is silent about the issue of joint employment." Grace , 521 F.3d at 663. "But in the FMLA, Congress specifically instructs the Department of Labor to ‘prescribe such regulations as are necessary to carry out’ the statute's intent." Id. ; see also 29 U.S.C. § 2654. "The resulting regulations contemplate two possibilities for framing employment relationships ...: (1) the integrated employer test, and (2) the joint employment test." Grace , 521 F.3d at 663 (internal quotations omitted); see also 29 C.F.R. § 825.104(c)(1).
Multiple, related companies may be so interrelated that they constitute a single employer and will be viewed as such for purposes of satisfying the numerosity requirement of the FMLA. The Department of Labor provides the following factors "to determine if two [or more] entities should be treated as an integrated employer: (1) common management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control." Grace , 521 F.3d at 664 ; 29 C.F.R. § 825.104(c)(2)(i-iv). "[T]he factors seek to illuminate whether two putatively distinct businesses should be viewed as one corporate entity." Grace , 521 F.3d at 664. "Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility." Id. (internal quotations omitted). No single factor among the four is determinative, and all four need not be present in every case to conclude that two entities are integrated. Swallows v. Barnes & Noble Book Stores, Inc. , 128 F.3d 990, 994 (6th Cir. 1997).
In this case, the three corporate Defendants share common management. Magrath is the president of all three companies. Harrell provides management services to all three and considers herself an employee of all three. Second, the operations are distinct but are interrelated. Sir Goony's is a family fun center. Amusement Products develops and manufactures attractions for family fun centers, and Amusement Construction provides related construction services for those fun centers. Wethington's job duties also relate to the operations of Amusement Products because he performed work for Amusement Products at Magrath's direction [Docs. 21-1, pg. 288; 21-4, pg. 35; 21-19, pg. 1; 21-20, pg. 1; 21-27, pg. 1; 21-28, pg. 1]. Sir Goony's hosted seminars organized by Amusement Products, the subjects of which were related to Amusement Products' and Amusement Construction's businesses. [Doc. 22, pgs. 17-18]. Moreover, Wethington asserted that he—along with Amusement Products' and Amusement Construction's senior-level employees—met with Magrath weekly to discuss each company. [Doc. 21-4, pg. 41]. Sir Goony's would also test equipment and attractions on behalf of Amusement Productions and entertain clients to further the business interests of its affiliate. Wethington turned to the employees of Amusement Productions for maintenance of its attractions. Additionally, they all share common health insurance benefits.
Third, although Wethington exercised some control over hiring and firing of personnel at Sir Goony, he did not operate with complete independence. Magrath hired the general manager for Sir Goony and reviewed the compensation of all employees at Amusement Products and Amusement Construction, as well as the compensation for the general manager of Sir Goony. [Docs. 19-5, pgs. 125-126; 21-1, pg. 52]. Magrath, as president of each Defendant, exerted centralized control over labor relations by reviewing the compensation of employees at each company, requiring Wethington to meet with him about retaining employees at the end of Sir Goony's busy season, and meeting with employees of each company weekly. [Docs. 19-5, pgs. 125-26; 21-4, pg. 41; 21-8, pgs. 1-3; 21-10, pg. 1; 21-54, pg. 1]. Magrath had significant influence over promotions and retention decisions and, on some occasions, hiring decisions. Wethington reported to Harrell and viewed her as second in command of the three corporations. Fourth, and this is not disputed, the three corporate Defendants are owned by one person—Magrath. [Doc. 19-1, pg. 15].
All these factors suggest that these three companies are so interrelated that they constitute a single, integrated employer under the FMLA. Accordingly, Defendants' motion for summary judgment is inappropriate on those grounds, and their motion is DENIED in this respect. Because the integrated employer test is met, the FMLA applies, and the Court does not need to examine whether the joint employers test has been met as well.
B. ADA Associational Discrimination Claim
Section 12112(b)(4) of the ADA prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4). There are typically three theories of ADA associational discrimination: "(1) expense; (2) disability by association; and (3) distraction." Stansberry v. Air Wis. Airlines Corp. , 651 F.3d 482, 487 (6th Cir. 2011). Wethington claims Defendants discriminated against him on the "distraction" theory. Under the distraction theory, an employer violates the ADA if it discriminates against an employee because the employee has been "somewhat inattentive at work because of the disability" of the associated person. Id.
Neither the "expense" nor "disability-by-association" theories of recovery apply. The "expense" theory addresses discrimination in the context where an employer "takes an adverse employment action against an employee because of the cost of insuring the associated disabled person under the employer's health plan." Williams v. Union Underwear Co. , 614 F. App'x 249, 254 (6th Cir. 2015). Wethington has not presented any evidence this occurred other than pure speculation, unsupported in the record, that Magrath "resented the fact that he gave Wethington paid medical leave...." [Doc. 21, pg. 22, fn. 35]. The disability-by-association theory addresses discrimination where the employer "fears that the employee may contract the disability of the person he ... is associated with" or ... where "the employee is genetically predisposed to develop a disability that his ... relatives have." Stansberry , 651 F.3d at 487.
In ADA cases, "a plaintiff may establish unlawful discrimination by introducing direct evidence of discrimination ... or by introducing indirect evidence of discrimination to shift the burden of production to the employer to articulate a legitimate, nondiscriminatory reason for making the adverse employment decision." Monette v. Elec. Data Sys. Corp. , 90 F.3d 1173, 1178 (6th Cir. 1996) (citations omitted), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp. , 681 F.3d 312, 315–16 (6th Cir. 2012) (en banc ). Thus, the Court must determine whether plaintiff's alleged evidence of association discrimination can be construed as direct evidence, which would entitle plaintiff to proceed to a jury trial, or circumstantial evidence, which would then invoke the McDonnell Douglas burden-shifting analysis. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Wethington argues he has proffered direct evidence of discrimination. "Direct evidence is evidence that proves the existence of a fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc. , 360 F.3d 544, 548 (6th Cir. 2004) (citations omitted). The Sixth Circuit has described direct evidence as that which "requires the conclusion that unlawful [discrimination] was a motivating factor in the employer's action." Abbott v. Crown Motor Co. , 348 F.3d 537, 542 (6th Cir. 2003) (emphasis in original). "It is well settled that if a plaintiff presents direct evidence of discrimination, [ ]he need not proceed under the McDonnell Douglas " burden-shifting analysis. Weigel v. Baptist Hosp. of E. Tenn. , 302 F.3d 367, 381–82 (6th Cir. 2002).
Here, Wethington's purported direct evidence is his theory that Magrath initially cooperated with Wethington only because he thought Wethington's wife's condition posed an imminent likelihood of death, but, when that had not occurred after a year and Wethington needed more time off, Magrath had enough. He had a business to protect, so he terminated Wethington. According to Wethington, the smoking gun is Magrath's admission during his deposition that, if Wethington's wife had not had cancer, Wethington would still have a job. [Doc. 21-1, pg. 238-39]. But that is not, in and of itself, direct evidence of discrimination. Magrath claimed that Wethington told him he could not go on with his job because it was getting too much for him. Context matters. That Magrath believed that Wethington would still be working but for his wife's cancer treatment does not necessarily mean he fired Wethington because of that. In fact, Magrath contends it was Wethington who claimed he could not do the job anymore and wanted to depart in a way that would permit him to receive unemployment. The Court would have to ignore Magrath's statement about what happened to find his deposition testimony to be direct evidence. In other words, the evidence Wethington has offered does not "require [ ] the conclusion that unlawful [discrimination] was a motivating factor in [Sir Goony's] action." Abbott , 348 F.3d at 542 (emphasis in original).
In the absence of direct evidence of discrimination, courts analyze ADA discrimination claims following the burden-shifting approach of McDonnell Douglas . Rachells v. Cingular Wireless Emp. Servs., LLC , 732 F.3d 652, 661 (6th Cir. 2013) (internal quotations omitted). Where a plaintiff seeks to establish discrimination through indirect evidence, the Sixth Circuit requires the plaintiff to first establish a prima facie case of discrimination. "[O]nce a plaintiff makes out a prima facie case, 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." Whitfield v. Tennessee , 639 F.3d 253, 259 (6th Cir. 2011). The defendant's burden is "one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotations omitted). The Court's role at summary judgment is to "determine whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry." Id.
To establish a prima facie case of associational discrimination, the plaintiff must show that: (1) he was qualified for the position; (2) he was subject to an adverse employment action; (3) he was known to be associated with a disabled individual; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision. Id. This burden "is not onerous." Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Indeed, it is "easily met." Cline v. Catholic Diocese of Toledo , 206 F.3d 651, 660 (6th Cir. 2000).
Wethington can show that he was: (1) qualified for the position as general manager; (2) subject to an adverse employment action as he was terminated; and (3) known to associated with a disabled individual. The issue at this stage in the proceedings is whether the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision.
Wethington presents the following indirect evidence. He sent an email on October 16, 2019, providing nine dates he needed to take off work to tend to his wife's care [Doc. 21-49, pg. 1]. On October 18, 2019, he was out of a job. At the meeting in which Magrath terminated him, Wethington claims Magrath stated that he had a business to protect and that he could not afford to have Wethington to continue to miss work. These facts, at the prima facie stage, suggest Wethington's termination occurred under circumstances that raise a reasonable inference that his wife's disability was a determining factor in the decision to terminate his employment. See Mickey v. Zeidler Tool & Die Co. , 516 F.3d 516, 525 (6th Cir. 2008) ("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 establishing a prima facie case of retaliation."); Bryson v. Regis Corp. , 498 F.3d 561, 571 (6th Cir. 2007) (holding that the three-month time lapse between the plaintiff's request for FMLA leave and her termination on the day she was scheduled to return to work established a causal connection at the prima facie stage). Wethington has shown a prima facie case of associational discrimination.
The burden then shifts to Defendants to offer a legitimate, nondiscriminatory reason for its action. According to Defendants, Magrath fired Wethington because Wethington was performing unsatisfactorily in his role as general manager. [Doc. 19-1, pg. 23]. Magrath stated that he received complaints that Wethington was absent frequently, such that Wethington's subordinates were left to run Sir Goony's in his absence. [Doc. 21-1, pgs. 189, 265-67]. Taking that explanation as true, that explanation would constitute a legitimate, nondiscriminatory reason for termination. Because the employer's burden to provide a legitimate, nondiscriminatory reason for terminating an employee "is one of production, not persuasion," Defendants have met their burden. Reeves , 530 U.S. at 142, 120 S.Ct. 2097.
The burden now shifts back to the employee to show pretext. "To demonstrate pretext, a plaintiff must show both that the employer's proffered reason was not the real reason for its action, and that the employer's real reason was unlawful." E.E.O.C. v. Ford Motor Co. , 782 F.3d 753, 767 (6th Cir. 2015). Plaintiff may show pretext by "demonstrating that the proffered reason[:] (1) had no basis in fact, (2) did not actually motivate [defendant's] action, or (3) [was] insufficient to motivate [defendant's] action." Harris v. Metro. Gov't of Nashville & Davidson Cnty. , 594 F.3d 476, 486 (6th Cir. 2010). At the summary judgment stage, "a plaintiff need only produce enough evidence ... to rebut, but not to disprove, the defendant's proffered rationale." Griffin v. Finkbeiner , 689 F.3d 584, 592 (6th Cir. 2012) (citation and internal quotations omitted). In doing so, however, plaintiff "must do more than simply impugn the legitimacy of the asserted justification for [his] termination; in addition, the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation." Warfield v. Lebanon Corr. Inst. , 181 F.3d 723, 730 (6th Cir. 1999). Plaintiff's burden in demonstrating pretext "merges with [plaintiff's] ultimate burden of persuading the court that she has been the victim of intentional discrimination." Provenzano v. LCI Holdings, Inc. , 663 F.3d 806, 812 (6th Cir. 2011).
Wethington vigorously disputes the basis for his termination. According to Wethington, Magrath stated that he needed to protect his business from Wethington's continued absence because of his wife's cancer treatment—not because of his job performance. [Doc. 21-4, pgs. 49, 85]. Wethington asserts that Magrath was concerned about the long-term impact that his wife's cancer treatment would have on Wethington's ability to manage Sir Goony. [Doc. 21-4, pg. 86]. Further, Sir Goony's financial outlook was normal during 2019, Magrath admitted that Sir Goony's was profitable during Wethington's tenure as general manager, and Wethington's pay increased every year to reflect his performance as general manager. [Doc. 21-1, pgs. 118, 126, 198]. Moreover, Magrath gave Wethington a glowing letter of reference that praised his management abilities and stated that he had been "an excellent manager for Sir Goony's the past 6 years." [Doc. 21-57, pg. 1]. Magrath wrote further that Wethington "has good organizational skills, works well with his employees, and pays attention to details that make a company successful. I would recommend him as an excellent person to be a manager of a business." [Doc. 21-57, pg. 1].
In Babb , the Sixth Circuit, in reversing the district court, found a genuine issue of material fact existed as to why the employer fired Babb. Babb v. Maryville Anesthesiologists P.C. , 942 F.3d 308, 322-23 (6th Cir. 2019). The Sixth concluded that the employer's actions following its termination of the plaintiff did not comport with its proffered reason for terminating the plaintiff. Id. As in Babb , Magrath's own actions after Wethington's termination create a question of fact about the true motivation behind Magrath terminating Wethington. Magrath wrote a glowing letter of reference in support of Wethington and, in his separation notice, indicated that Wethington was terminated "[d]ue to business slowing down at the park." [Docs. 21-1, pg. 256; 21-56, pg. 1; 21-57, pg. 1]. Those actions suggest that Magrath did not view Wethington's performance as unsatisfactory or his absences as unacceptable. Thus, there is a question of fact regarding whether Magrath terminated Wethington because of the prospect of Wethington's continued absences from work to care for his wife. Indeed, Magrath admitted that he was not "trying to dismiss [Wethington] with cause." [Doc. 21-1, pgs. 244-45]. There are enough disputed facts in this case for a jury to decide the issue. Baum v. Metro Restoration Servs., Inc. , 764 F. App'x 543, 547 (6th Cir. 2019) ("determining the credibility of witnesses is a task for the jury[.]") (citations omitted). Accordingly, Defendants have failed to show that there is no genuine dispute of material fact as to whether Sir Goony's terminated Wethington in violation of the ADA. Thus, summary judgment is inappropriate, and their motion is DENIED in this respect.
IV. CONCLUSION
Accordingly, for the reasons stated herein, Defendants' Joint Motion for Summary Judgment [Doc. 19] is DENIED .
SO ORDERED.