Greggory Blank v. Nationwide Corp. ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0381n.06
Case No. 20-3969
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 06, 2021
GREGGORY BLANK, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
NATIONWIDE CORPORATION,
) DISTRICT OF OHIO
Defendant, )
)
NATIONWIDE MUTUAL INSURANCE ) OPINION
COMPANY; DEVIN A. PENWELL; LAURA M. )
GLINSKI, )
Defendant-Appellees. )
)
BEFORE: CLAY, McKEAGUE, and LARSEN, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Greggory Blank appeals the district court’s order granting
summary judgment to Defendants Nationwide Mutual Insurance Company (“Nationwide”), Devin
A. Penwell, and Laura M. Glinski on his claims of disability discrimination, interference with his
rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–54, and
defamation. For the reasons stated below, we AFFIRM the district court’s grant of summary
judgment to Defendants.
Case No. 20-3969, Blank v. Nationwide Corp.
BACKGROUND
At the relevant time, Greggory Blank worked as the Associate Director of Specialty
Material Damage Claims at Nationwide. Blank was in charge of a team of six claims managers—
which included Penwell and Glinski—who each supervised eight claims adjusters. In supervising
the claims managers, Blank scheduled one-on-one meetings about once a month with the managers
to discuss performance reviews, and he conducted mid-year and year-end performance evaluations
regarding each manager’s overall performance. Blank reported to Matt Hawk, who was the
Director of Specialty Material Damage Claims.
Nationwide’s Code of Conduct has a “No Harassment, Discrimination or Retaliation
Policy” applicable to all employees, which states that Nationwide “do[es] not tolerate any form of
harassment, discrimination, and retaliation” based on a protected characteristic. (R. 70, Code of
Conduct at PageID # 2597.) Under the policy, employees who learn about an incident that violates
the policy must report it immediately to the Office of Associate Relations (“OAR”), a manager, a
human resources professional, or the Office of Ethics. Managers and supervisors can be subject to
disciplinary action, including termination, for tolerating, allowing, or ignoring conduct
inconsistent with the policy. Any retaliation against an employee who makes “a complaint with
the reasonable belief that harassment or discrimination or a violation of this policy occurred, or for
participating in an investigation,” is prohibited and can similarly subject the retaliating employee
to disciplinary action. (Id. at PageID # 2598.)
On February 28, 2018, Glinski and Penwell were outside a break room at the Tuttle
Crossing Nationwide office having a conversation regarding Glinski taking professional photos of
Penwell’s associates for their Nationwide profiles. During this conversation, Glinski and Penwell
began discussing Penwell’s upcoming jury duty when Blank entered into the conversation.
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According to Penwell, Blank proceeded to tell Glinski and him that “the best way to [escape jury
duty] is to walk into the courtroom and say where are those N words” and either “let’s get the
ropes” or “where are the ropes.” (R. 49, Penwell Dep. at PageID # 1467.) Blank’s recounting of
his comment was that his father’s advice on “the best way to get out of jury duty is to show up and
ask, ‘Okay, where are these people you want me to hang?’”1 (R. 43, Blank Dep. at PageID # 675.)
In his deposition, Blank indicated that that looking back at the situation he realized that Penwell’s
“demeanor [and] his body language changed when [he] told the story.” (Id. at PageID # 682.) The
conversation between Penwell, Glinski, and Blank ended shortly after Blank’s comment. Later
that same day, after Glinski spoke with Blank to tell him that the comment was inappropriate,
Blank apologized to Penwell via text.
Penwell first reported the comment on March 7, 2018, to Hawk, who told Penwell that he
needed to report the comment to OAR or Hawk would have to do so. That same day, Penwell
reported the comment to OAR. On March 12, 2018, OAR began its investigation into Blank, with
Seema Anand assigned on the case, and Anand interviewed Penwell, Glinski, and Hawk on March
20, 2014, regarding Blank’s comments.
Before and during the pendency of the OAR investigation, Blank conducted his regular
performance reviews of the managers. Glinski was given a performance rating of a four, indicating
a “strong” performance, and Penwell was given a three, indicating a “successful” performance. (R.
43, Blank Dep. at PageID # 646, 650–51.) Blank met one-on-one with Penwell on March 19, 2018,
and Glinski on March 21, 2018—before Blank spoke with Anand about the complaint lodged
against him—to discuss their measuring results, their teams’ performances, and ways to improve
team performance.
1
Kyle Waltz, who was working as a claims specialist under Penwell’s supervision at this time, was
present during this conversation but did not hear the content of the discussion.
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Case No. 20-3969, Blank v. Nationwide Corp.
On March 21, 2018, Anand contacted Blank to set up a meeting to discuss Penwell’s
complaint. At the meeting, when Anand asked Blank if he had used the “N word,” Blank responded
no and said that “they must have taken something out of context or inserted a word.” (R. 43, Blank
Dep. at PageID # 674.) He was surprised “it was perceived/heard in this fashion” and indicated
that “[h]e has always worked with a very diverse team.” (R. 41-1, Anand Case Notes at PageID #
558.) Anand proceeded to coach Blank on how that comment was “very inappropriate for the
workplace and could hurt feelings,” and Blank indicated that he understood this. (Id.) Anand
informed Blank that his case would be closed given his good record at Nationwide and his diverse
team as well as that she had not found anything in Blank’s work history indicating that his use of
offensive language was typical behavior for him. Anand also informed Blank that he could not
engage in any retaliation.
Following the meeting, on March 22, 2018, Blank emailed Penwell for a detailed update
on their boat salvage project, noting that it was his “third request for updates on this project.”2 (R.
43, Blank Dep. at PageID # 910.) That evening, Penwell responded by providing an excel sheet
“that detail[ed] the current status, bid amounts, auctions, and if a minimum bid has been set” and
stating that he “would also be researching any past sale amounts to add to this information (as soon
as [he could] find where to locate that information).” (Id. at PageID # 909–10.) In his response
Blank chastised Penwell for his limited progress on the project and noted that he had “6 months to
learn how to use the IAA website, get this initiative under way, track the boat sales data, and
provide meaningful analysis.” (Id. at PageID # 909.) Blank further remarked that he had not been
able to provide meaningful data at the salvage meeting that day on the project—which would be
“captured as part of [Penwell’s] ongoing performance”—and requested that the information be
2
Blank and Penwell first spoke about this project in October 2017, during which time Blank asked
Penwell via email to keep track of the boat sales.
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provided to him before the following Monday at 8:00 AM or else he would “pull the project from
[Penwell].” (Id.) Penwell responded on March 24, 2018, with a more detailed analysis of the boat
salvage data and a request to “set expectations of how to proceed after [Blank’s] review of the
results.” (Id. at PageID # 904–08.)
On March 23, 2018, Blank emailed Glinski regarding letters issued by her team, noting
that “in approximately 40% of the 20 files [Blank] reviewed from the first quarter of this year there
were grammatical opportunities, incorrect use of capital letters and punctuation, and opportunities
surrounding the choice of language and exclusions referenced as they related to the damage being
claimed.” (Id. at PageID # 914.) He also said that, effective March 26, 2018, she was to “send
[him] an activity on all denials, after [Glinski] had completed [her] review,” which would
“continue until [she could] demonstrate zero opportunity adequacy of 90% or better.” (Id. at
PageID # 914–15.) Glinski responded on March 26, 2018, that she would “start forwarding denials
to [Blank] today for review” and wanted to schedule a time to meet with Blank to review the 20
files referenced in Blank’s email. (Id. at PageID # 914.) Blank responded on March 26, 2018, by
attaching the spreadsheet he used to randomly select 20 letters to review and saying that he was
willing to discuss these files at her next one-on-one meeting but that otherwise he would be
focusing on current and future files. He also said that he knew that Glinski had been rewriting her
associates’ denial letters and that, moving forward, her associates should be writing the letters after
which Glinski would conduct a thorough review.
On March 28, 2018, Glinski revised a denial letter based on Blank’s activity, and she and
Blank disagreed regarding whether a particular weather exclusion applied. After they went back
and forth as to the proper analysis of the exclusion, Blank emailed Glinski that she and her
associate “ha[d] some opportunity in learning how to pull weather data” and expressing concern
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with her approach to the denial/review process. (Id. at PageID # 916.) He also noted that he had
sent this letter back three times, and not only did she fail to “recognize the missing exclusions,”
but she also disputed his analysis and coaching. (Id.) He then said that she could either correct the
letter with the additional exclusion or he could “contact the Office of Associate [R]elations to
discuss insubordination.” (Id. at PageID # 917.) Glinski updated the letter as directed and sent it
back to Blank.
Both Penwell and Glinski independently forwarded these email conversations with Blank
to Anand and raised concerns that Blank was retaliating against them for Penwell’s complaint. On
April 2, 2018, Anand set up a conference call with Cathy Hiner, Associate Vice President of
Claims; April Compton, Senior Director of OAR; and Amy Spellman, Human Resources Director;
to discuss the case. They ultimately decided to place Blank on paid administrative leave starting
that day to allow for further investigation. After the conference call, Anand informed Blank that
he was being placed on paid administrative leave, during which she told him that the investigation
may be related to a previous complaint lodged against him.
As part of the investigation, Anand proceeded to review Blank’s emails from the last 30
days to other employees, noting that Blank’s “style of communication was direct and harsh in
general and particularly pointed when [she] reviewed [Penwell’s] and [Glinski’s] emails keeping
in mind the overall circumstance.” (R. 41-1, Anand Case Notes at PageID # 557.) Anand
considered Glinski’s and Penwell’s comments in their interviews with her “that they felt they were
treated differently by [Blank] after the complaint was filed and investigated.” (Id.) She also looked
at previous complaints from 2015 and 2016 against Blank that did not result in disciplinary action
where Blank had made “inappropriate comments” and demonstrated a tendency to “hold grudges,”
as well as positive performance reviews for Blank, Penwell, and Glinski. (Id.) On April 6, 2018,
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Case No. 20-3969, Blank v. Nationwide Corp.
Anand met with Nationwide executive leadership to present the case and provide OAR’s
recommendation, which was to give Blank “a [f]inal written notice (FWN) and a demotion to an
individual contributor role.” (Id.) The recommendation was set to be delivered to Blank on April
9, 2018, at 11:30 AM.
According to Blank, on April 9, 2018, Anand sent a message to Blank to remind him of
their meeting at 11:00 AM to discuss the retaliation accusation against him, which Blank did not
know about prior to this message. Blank indicated that he was not aware of the retaliation
accusation and that Anand made it seem as though any decision as to how to resolve the case
against him was final. However, after the initial call, Anand called Blank back to let him know
that the meeting was rescheduled to later that afternoon at 2:00 PM and that he would have an
opportunity to speak as to the accusations against him. Blank told Anand that he disagreed with
the accusation of retaliation, that Hawk had reviewed all the e-mails he sent to Penwell and Glinski
before he sent them, and that he had up until this point performed well in his role as Associate
Director. At the 2:00 PM call, Hiner informed Blank that he was being given a final written notice
and a demotion to an individual contributor role. Blank was unhappy with the results and indicated
that he would be filing a complaint with the Office of Ethics.
During the 2:00 PM call in which Blank was demoted, Blank revealed that he was on
FMLA leave and would not be returning to work until May 5, 2018—OAR was not previously
aware of Blank’s FMLA leave, but Hawk was, having just received notice of it before the meeting.
For over a year, Blank had been seeing a rheumatologist for his chronic pain, and he had been
communicating with Hawk, Hiner, and Associate Director Allocco about his health problems
while continuing to work. Blank’s affidavit indicates that he was diagnosed with fibromyalgia and
depression in February 2017, at which time he began a medication regimen, but, in his deposition,
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Case No. 20-3969, Blank v. Nationwide Corp.
he said that he was not formally diagnosed with fibromyalgia until April 5, 2018. Additionally,
Blank claims that he filed his claims for FMLA leave and short-term disability no later than the
morning of April 6, 2018. But Blank’s FMLA file indicates that he initiated his FMLA claim on
April 9, 2018, at 11:44 AM, following his call with Anand. His FMLA claim was approved, and
he took the twelve-week leave allotted under the statute.
After the call, Blank filed a complaint with the Office of Ethics alleging that the OAR
investigation was influenced by bias and that the individuals working on the investigation did not
understand the work dynamics in his department. April Compton was ultimately assigned to his
Office of Ethics complaint, who, after the initial intake and discussion, agreed not to contact Blank
until he was cleared to go back to work by his doctor. Blank was eventually replaced by Melissa
Bryant, who was previously working as a manager in the Material Damages department. Blank
came back to work at the end of his twelve-week leave in his new role as claims specialist in the
Total Loss division but worked from home. In April 2019, Blank was notified that his position was
going to be eliminated as the entire Total Loss division was being eliminated as part of a reduction
in force across the company.
Blank filed the instant complaint on January 3, 2019, in the U.S. District Court for the
Southern District of Ohio against Nationwide Corporation,3 Nationwide Mutual Insurance
Company, Penwell, and Glinski. Blank alleged that, in demoting and disciplining him, Nationwide
engaged in reverse discrimination, having replaced him with a member of a protected class;
retaliated against him for his reports to OAR; violated Ohio public policy; engaged in disability
discrimination under Ohio Rev. Code § 4112.02, having replaced him with an individual who was
not disabled; and engaged in age discrimination, having replaced him with an individual under 40.
3
On February 25, 2019, Blank voluntarily dismissed Defendant Nationwide Corporation from the
complaint.
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Case No. 20-3969, Blank v. Nationwide Corp.
He also alleged that Nationwide created a hostile work environment based on text messages Blank
received from Hawk and Allocco that disparaged women as well as individuals belonging to
particular ethnic, racial, and religious groups, and that Nationwide engaged in FMLA interference
under 29 U.S.C. § 2615(a)(1) by contacting him regarding the demotion during his approved
FMLA leave. As for Penwell and Glinski, he alleged that by falsely reporting to OAR that Blank
made a racial slur, they committed (1) defamation and (2) intentional interference of his
employment relationship with Nationwide.
The district court granted Nationwide’s motion for summary judgment on all of Blank’s
claims. The court first determined that, as a matter of law, he could not pursue his Title VII claims
for reverse discrimination, retaliation, and hostile work environment because he did not file a
charge of discrimination with the EEOC before filing suit. Similarly, he could not pursue his age
discrimination claim under the ADEA because he failed to file a charge of discrimination with
either the EEOC or the Ohio Civil Rights commission before filing the present complaint. The
district court also found that Blank had abandoned his intentional interference with employment
relationship claim because he did not address it in his response opposing Defendants’ motion for
summary judgment.
Moving to the remaining claims, the district court determined that Blank could not establish
a claim for wrongful discharge in violation of Ohio public policy because he had other statutory
remedies available to him. Additionally, his disability discrimination claim could not survive
summary judgment because he did not demonstrate a genuine dispute of material fact as to whether
he was disabled as defined by Ohio statute and did not satisfy his burden to show that Nationwide’s
legitimate, non-discriminatory reason for disciplining and demoting him was pretextual. The
district court concluded that his defamation claim against Penwell and Glinski failed because they
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had a qualified privilege to make a good faith report to OAR on comments violating Nationwide’s
“No Harassment, Discrimination or Retaliation” policy, and Blank could not show that they acted
with actual malice in reporting his comments. Finally, the district court determined that
Nationwide was entitled to summary judgment on Blank’s FMLA interference claim because he
could not show that Nationwide’s phone call to him to discuss the demotion—which occurred on
the day his request for FMLA leave was approved—interfered with his ability to exercise his
FMLA rights. This timely appeal followed.
DISCUSSION
Standard of Review
“We review a district court’s grant of summary judgment de novo.” McClellan v. Midwest
Machining, Inc., 900 F.3d 297, 302 (6th Cir. 2018). Summary judgment will be granted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one “that might affect the
outcome of the suit,” and a genuine dispute exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “At the summary judgment stage, the moving party bears the initial burden of
identifying those parts of the record which demonstrate the absence of any genuine issue of
material fact.” White v. Baxter Healthcare Corp., 533 F.3d 381, 389–90 (6th Cir. 2008). Once the
moving party has met its burden, the burden then shifts to the non-moving party to demonstrate
“specific facts showing that there is a genuine issue for trial,” although the evidence need not be
“in a form that would be admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotations omitted). All reasonable inferences will be drawn in favor of the non-moving
party. Mutchler v. Dunlap Mem’l Hosp., 485 F.3d 854, 857 (6th Cir. 2007).
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Case No. 20-3969, Blank v. Nationwide Corp.
Analysis
I. FMLA Interference
Blank argues that the district court erred in granting summary judgment to Nationwide on
his FMLA interference claim because he provided sufficient evidence that Nationwide interfered
with his rights under the FMLA by contacting him regarding his demotion during his protected
leave. Under the FMLA, qualifying employees are entitled “to up to twelve weeks of unpaid leave
each year if, among other things, an employee has a ‘serious health condition that makes the
employee unable to perform the functions of the position of such employee.’” Walton v. Ford
Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting 29 U.S.C. § 2612(a)(1)(D)). An eligible
employee who takes leave under the FMLA “shall be entitled, on return from such leave . . . to the
position of employment held by the employee when the leave commenced; or . . . to an equivalent
position with equivalent employment benefits, pay, and other terms and conditions of
employment.” 29 U.S.C. § 2614(a)(1).
The FMLA also provides that “[i]t shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under this
subchapter” or “to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.” Id. § 2615(a). Based on the above
statutory language, “[t]his court recognizes two distinct theories for recovery under the FMLA:
(1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the
‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of
Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). For a claim of FMLA interference, a plaintiff
must show that (1) they were “an eligible employee,” (2) the “defendant was a covered employer,”
(3) they were “entitled to leave under the FMLA,” (4) they gave the “defendant notice of [their]
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intent to take leave,” and (5) “the defendant denied [them] FMLA benefits or interfered with
FMLA rights to which [they were] entitled.” Harris v. Metropolitan Government of Nashville and
Davidson County, 594 F.3d 476, 482 (6th Cir. 2010).
The prong of the FMLA interference inquiry at issue is whether Nationwide’s contact with
Blank during his FMLA leave in connection with the investigation into his complaint and demotion
constituted an interference with his FMLA rights. The Department of Labor (“DOL”) and this
Court have provided some guidance into what constitutes an interference with an employee’s
FMLA rights. For example, a DOL regulation provides that interfering with an employee’s
exercise of FMLA rights includes “refusing to authorize FMLA leave,” “discouraging an employee
from using such leave,” and “manipulation by a covered employer to avoid responsibilities under
FMLA.” 29 C.F.R. § 825.220(b). We have previously indicated that discouraging an employee
from taking FMLA leave includes asking an employee to work while they are on protected leave.
See Arban v. W. Publ’g Corp., 345 F.3d 390, 402 (6th Cir. 2003) (finding that “the jury was entitled
to find in Arban’s favor” based on evidence at trial demonstrating “that he was asked to continue
to perform work-related tasks while ostensibly on medical leave” and that his supervisor “called
him on several occasions and requested that he provide customer lists and pending sales”).
Additionally, an employer’s failure to respond to an employee’s request for leave and inform them
of their entitlement to take twelve weeks of leave is sufficient to “discourage[] [an employee] from
taking leave” by making “it impossible for [the employee] to make the necessary plans” for leave.
Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 454 (6th Cir. 2005).
But an employer can engage in de minimis contact with the employee on leave without
violating their FMLA rights. For example, in Groening v. Glen Lake Community Schools, we
found that the school board was entitled to summary judgment on Groening’s FMLA interference
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claim where the only evidence of interference was her attendance at a board meeting, contact she
initiated with the board and interim superintendent regarding work, and the board’s “request for a
breakdown of her time off.” 884 F.3d 626, 632 (6th Cir. 2018). We reasoned that Groening could
not “claim that the board interfered with her rights by responding to discussions she initiated,” and
the “de minimis request” for a time off breakdown—the “one instance where the board actually
initiated contact with her”—did “not rise to the level of actionable interference.” Id. And in Allen
v. Butler County Commissioners, we reversed a grant of summary judgment to a county employee
for FMLA interference, finding that the County’s general call-in requirement for individuals on
leave did not interfere with Allen’s FMLA rights. 331 F. App’x 389, 396 (6th Cir. 2009).
Nationwide’s contact with Blank during his leave did not interfere with his FMLA rights
as it constituted de minimis contact that did not discourage him from, or otherwise interfere with
his, taking FMLA leave. Much of the contact cited by Blank as interfering with his leave occurred
before his claim for FMLA leave was initiated on April 9, 2018, at 11:44 A.M. (See R. 65-1, Blank
Aff. at PageID # 2431 (“On Monday April 2, 2018, I was contacted by Seema Anand from
OAR. . . . At 6:15 P.M. after arriving home from work I received a call from Seema. . . . She
advised that I was being put on paid administrative leave pending an investigation.”); id. at PageID
# 2432 (“On Monday, April 9, 2018[,] at 9:26 A.M. I received an email from Seema stating she
was reminding me of our call at 11:00 A.M. . . . On Monday April 9, 2018, at 9:50 A.M. I received
another call from Seema. She stated this was my official interview.”).) Additionally, most of the
contact with Nationwide following the approval of his FMLA leave occurred at Blank’s initiation
and was related to the Office of Ethics complaint he filed following his demotion. (See R. 43,
Blank Dep. at PageID # 740 (“I contacted the Office of Ethics to . . . open a complaint . . . and then
I compiled the complaint and sent it in.”); id. at PageID # 770 (“April Compton wound up assigned
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to reinvestigate my case, and it was agreed that she was not going to contact me again until I was
close to being cleared to go back to work, which I was fine with.”).)
Accordingly, the only contacts that Nationwide initiated during Blank’s FMLA leave were
the conference call with Nationwide leadership in which Blank learned that he was demoted and
the call from Compton to discuss his Office of Ethics complaint. But as in Groening, these
constitute de minimis contacts that did not discourage him from taking leave or interfere with his
ability to take leave under the FMLA. See 884 F.3d at 632–33. Therefore, Blank cannot make out
a prima facie case of FMLA interference to survive summary judgment.4
II. Disability Discrimination
Blank contends that the district court erred in granting summary judgment to Nationwide
on his disability discrimination claim because he presented evidence that he was terminated based
on his disability—sufficient for a prima facie case of disability discrimination—and that
Nationwide’s legitimate, non-discriminatory reason for terminating him was pretextual. Ohio law
makes it unlawful for an employer, because of an individual’s 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.”5 Ohio Rev. Code § 4112.02(A). In order to demonstrate a prima facie case of
disability discrimination under Ohio law, a plaintiff must show “(1) that he or she was disabled;
4
Because Blank cannot make out a prima facie case of FMLA interference, we do not need to
address whether Nationwide had a legitimate, non-discriminatory reason for interfering with his FMLA
leave and if that proffered reason was pretextual. See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir.
2012) (finding that a previous panel of this Court “effectively adopted the McDonnell Douglas tripartite
test without saying as much” in the context of analyzing a claim for FMLA interference).
5
In his brief, Blank cites to the Americans with Disabilities Act (“ADA”) in his argument regarding
his disability discrimination claim; however, the complaint indicates that he is pursuing his disability
discrimination claim pursuant to Ohio Rev. Code § 4112.02. This discrepancy does not change the analysis
of the claim because we have previously indicated that “Ohio’s disability-discrimination statute and the
ADA employ the same analysis.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 872 (6th Cir. 2007).
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(2) that the employer took an adverse employment action against the employee, at least in part,
because the employee was disabled; and (3) that the employee could safely and substantially
perform the essential functions of the job in question despite his or her disability.” Stewart v. Bear
Mgmt., Inc., 98 N.E.3d 900, 904 (Ohio Ct. App. 2017) (citing Hood v. Diamond Prods., Inc., 658
N.E.2d 738, 741 (Ohio 1996)).
In cases involving indirect evidence of disability discrimination, “Ohio courts apply the
burden-shifting test enunciated” in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Jaber v.
FirstMerit Corp., 81 N.E.3d 879, 886 (Ohio Ct. App. 2017). Accordingly, once a plaintiff
demonstrates a prima facie case of disability discrimination, “the burden then shifts to the
employer to set forth some legitimate, nondiscriminatory reason for the action taken.” Hood, 658
N.E.2d at 741. And “if the employer establishes a nondiscriminatory reason for the action taken,
then the employee or prospective employee must demonstrate that the employer’s stated reason
was a pretext for impermissible discrimination.” Id. at 742.
In the present case, the parties dispute whether Blank was disabled by his fibromyalgia and
depression for purposes of his disability-discrimination claim. Ohio law defines disability as “a
physical or mental impairment that substantially limits one or more major life activities, including
the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working; a record of a physical or mental impairment; or being regarded
as having a physical or mental impairment.” Ohio Rev. Code § 4112.01(A)(13). Under the relevant
regulations interpreting the ADA’s definitions, “[a]n impairment is a disability within the meaning
of this section if it substantially limits the ability of an individual to perform a major life activity
as compared to most people in the general population,” but the “impairment need not prevent, or
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significantly or severely restrict, the individual from performing a major life activity in order to be
considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii).
Blank asserts in his affidavit that due to his fibromyalgia he had “difficulty sleeping,
walking, eating, concentrating, performing any form of aerobic exercise or any moderate non-
aerobic exercise.” (R. 65-1, Blank Aff. at PageID # 2435.) But in his deposition, when asked “was
there something in [his] . . . day-to-day, that [he] could not do because of trying to investigate the
issues with the pain,” he responded that “in the months approaching all of this happening, [he]
continued, to the best of [his] abilities, to come in and work just like [he] worked and to support
[his] team just like [he] had always supported [his] team and to support the needs of [his] leadership
and the customers.” (R. 43, Blank Dep. at PageID # 768–69.) And he indicated in his deposition
that during the time he and his doctors were trying to determine what was causing his pain, he
continued to work, drive, and travel.
We have indicated that “[a] party may not create a factual issue by filing an affidavit, after
a motion for summary judgment has been made, which contradicts [their] earlier deposition
testimony.” Reid v. Sears, Robuck and Co., 790 F.2d 453, 460 (6th Cir. 1986). The “district court
deciding the admissibility of a post-deposition affidavit at the summary judgment stage must first
determine whether the affidavit directly contradicts the nonmoving party’s prior sworn testimony”
or, if “there is no direct contradiction,” whether the affidavit “constitutes an attempt to create a
sham fact issue.” Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899, 908–09 (6th Cir. 2006) (internal
quotations omitted) (finding that a post-deposition affidavit did not directly contradict the
deposition because the affidavit provided additional explanation of “the oral understandings [of
the contract] that were alluded to but not explored during the three-hour deposition”).
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Case No. 20-3969, Blank v. Nationwide Corp.
In the instant case, the affidavit directly contradicts Blank’s deposition. When he was
specifically asked if his conditions limited his ability to engage in any activities, he did not name
any activities and instead remarked that he was trying to work, and did work, as he had prior to
the onset of these conditions, as well as driving to work every day and travelling out of state. In
contrast, the affidavit lists several activities—none of which Blank mentioned at the deposition
that Blank claims to have difficulty completing as a result of the conditions, contravening his
deposition testimony. See Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997) (finding
that “an affidavit claiming that plaintiff’s hunting and fishing trips did not require him to walk”
contradicted his deposition testimony indicating that he was able to hunt and fish during the time
in which he alleged his disability impaired his walking). Accordingly, the district court correctly
chose not to consider the affidavit in its summary judgment analysis on Blank’s disability
discrimination claim.
Notwithstanding, Blank’s affidavit failed to create a genuine dispute of material fact
regarding whether his conditions constituted a disability for purposes of his disability
discrimination claim. His affidavit simply asserts that he has difficulty with certain activities due
to his fibromyalgia, without further explanation of how and to what extent the fibromyalgia
substantially limits his ability to complete these activities. This conclusory statement is not
sufficient to demonstrate that his fibromyalgia substantially limited his ability to complete a major
life activity. See Penny, 128 F.3d at 415 (finding that “Penny’s deposition testimony provides little
support for the claim that his impairment rises to the level of a disability” because “[a]side from
statements that ‘I limp on occasion’ and ‘It hurts to do my job everyday. Sometimes it hurts to
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Case No. 20-3969, Blank v. Nationwide Corp.
walk,’ this testimony contains no detail about how his alleged disability hinders his ability to
walk”). Accordingly, Blank cannot establish a prima facie case of disability discrimination.6
III. Defamation
Blank argues that the district court erred in finding that Penwell’s and Glinski’s qualified
privilege defeated his defamation claim as a matter of law and that there was no evidence in the
record showing that they acted with actual malice. He contends that he presented evidence that
Glinski and Penwell knowingly reported a false statement to OAR regarding the jury avoidance
remark and did so with actual malice, overcoming any privilege they had to report the statements.
Under Ohio law, “defamation occurs when a publication contains a false statement ‘made
with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to
public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her
trade, business or profession.’” Jackson v. Columbus, 883 N.E.2d 1060, 1064 (Ohio 2008) (quoting
A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d
1283, 1289 (Ohio 1995)). For a defamation claim, the plaintiff must establish “(1) that a false
statement of fact was made, (2) that the statement was defamatory, (3) that the statement was
published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that
the defendant acted with the requisite degree of fault in publishing the statement.”7 Am. Chem.
6
Because Blank has not demonstrated a prima facie case of disability discrimination, we need not
address Blank’s argument that Nationwide’s legitimate, non-discriminatory reason for demoting and
terminating him was pretextual.
7
Ohio recognizes two forms of defamation: defamation per se, which “occurs when material is
defamatory on its face,” and defamation per quod, “which occurs when material is defamatory through
interpretation or innuendo.” Sullins v. Raycom Media, Inc., 996 N.E.2d 553, 561 (Ohio Ct. App. 2013)
(internal quotations omitted). Because Blank did not specify that he was pursuing a defamation per se claim
in his complaint, we construe it as a defamation per quod claim, for which he must plead and prove any
special damages. See Ne. Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 916 N.E. 2d 484, 488 (Ohio
Ct. App. 2009).
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Case No. 20-3969, Blank v. Nationwide Corp.
Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012) (internal quotations omitted). The court
determines as a matter of law whether an allegedly defamatory statement is actionable. Id. at 853.
Where a plaintiff “establishes a prima facie case of defamation, a defendant may then
invoke a conditional or qualified privilege.” Jackson, 883 N.E.2d at 1064. The elements of a
qualified privilege defense are as follows: (1) “good faith,” (2) “an interest to be upheld,” (3) “a
statement limited in its scope to this purpose,” (4) “a proper occasion,” and (5) “publication in a
proper manner and to proper parties only.” Hahn v. Kotten, 331 N.E.2d 713, 719 (Ohio 1975). And
“[w]here the circumstances of the occasion for the alleged defamatory communications are not in
dispute, the determination of whether the occasion gives the privilege is a question of law for the
court.” A & B-Abell Elevator Co., 651 N.E.2d at 1290. As relevant in the employment context,
Ohio courts have determined that “a communication made in good faith on a matter of common
interest between an employer and an employee, or between two employees concerning a third
employee, is protected by qualified privilege.” Hanly v. Riverside Methodist Hosp., 603 N.E.2d
1126, 1131 (Ohio Ct. App. 1991).
The district court determined that Penwell and Glinski had a qualified privilege to report
Blank’s jury duty comment because Nationwide, Penwell, and Glinski “had a shared interest in
keeping the workplace free of conduct violating Nationwide’s ‘No Harassment, Discrimination,
or Retaliation Policy,’ and Defendants Penwell and Glinski’s communications to OAR were
intended to protect that interest.” (R. 75, Op & Order at PageID # 2714.) On appeal, Blank
concedes that Penwell and Glinski had a qualified privilege to make these statements and argues
instead that there was sufficient evidence to create a genuine dispute of fact regarding whether
Penwell and Glinski acted with actual malice in reporting his comment. Therefore, we do not
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Case No. 20-3969, Blank v. Nationwide Corp.
disturb the district court’s finding that Penwell and Glinski had a qualified privilege to report
Blank’s jury duty comment.
If a defendant can successfully invoke a qualified privilege, then the “qualified privilege
may be defeated only if a claimant proves with convincing clarity that a publisher acted with actual
malice.” Jackson, 883 N.E.2d at 1064. A publisher acts with actual malice when they publish a
statement “with knowledge of its falsity or with reckless disregard of whether it was false or not.”
Sullins, 996 N.E.2d at 563. Reckless disregard indicates a situation where the “publisher of
defamatory statements acts with a high degree of awareness of their probable falsity, or when the
publisher in fact entertained serious doubts as to the truth of his publication.” Jackson, 883 N.E.2d
at 1064 (internal quotations and citations omitted). And “[w]here a defamatory statement is subject
to a qualified privilege, actual malice will not be presumed.” Sullins, 996 N.E.2d at 563 (internal
quotations and citation omitted).
The district court correctly found that Blank could not point to any evidence in the record
indicating that Penwell and Glinski reported his jury duty remark with actual malice. Blank has
not demonstrated that Glinski and Penwell made the statement to OAR regarding his use of a racial
slur with knowledge of its falsity or reckless disregard of whether it was false. Instead, Blank’s
argument regarding the existence of actual malice stems from his erroneous contentions that
Glinski and Penwell lied in their statements to OAR about Blank using a racial slur and that
Nationwide concluded that Glinski’s and Penwell’s statements regarding Blank’s use of the racial
slur were false and closed the investigation as a result of that conclusion.
Importantly, Nationwide did not conclude that Glinski’s and Penwell’s statements were
false. Per Blank’s deposition, after he spoke to Anand and denied using the racial slur, she decided
to close the case because “[his] record with the company has been good, [he had] been a great
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Case No. 20-3969, Blank v. Nationwide Corp.
performer, [he had] an extremely diverse team, and . . . she did not see anything in [his] history
that would indicate that this was [his] kind of behavior, and so to that end, she was considering the
case closed.” (R. 43, Blank Dep. at PageID # 688.) Anand’s case notes indicate that after denying
using the racial slur she “coached him on how this is very inappropriate for workplace and could
hurt feelings,” Blank “seemed to understand and would be cognizant in the future,” and having
“coached Greggory Blank, the case is closed.” (R. 41-1, Anand Case Notes at PageID # 558.) And
Blank mischaracterizes the testimony of Kyle Waltz, who was present during the conversation.
Waltz did not dispute Blank’s use of the racial slur; instead, he said that he “did not hear what they
were talking about” and was not “actually inside the break room” where Penwell, Glinski, and
Blank were talking but rather in the hallway outside. (R. 56, Waltz Dep. at PageID # 2298.) Even
considering this evidence in the light most favorable to Blank, it does not show that Penwell and
Glinski reported his comment to OAR with actual malice.8
Blank’s citation to Ball v. British Petroleum Oil, 670 N.E.2d 289 (Ohio Ct. App. 1995), is
inapposite. In that case, the individual who made the allegedly defamatory statement “testified that
he held a personal belief that [Ball] was involved in illegal drug activity,” but that the
“investigation never uncovered any proof that appellant had been involved in an illegal drug
transaction aside from the statement of the cafeteria manager.” Id. at 294. And his allegation that
Ball was involved in illegal drug activity stemmed from the cafeteria manager’s conversation with
a cashier who said that the “big guy” gave the cashier drugs and the cafeteria manager’s assumption
8
Blank also contends that text messages between Glinski and Penwell indicating their desire for
Blank to be terminated and Glinski’s notes on her “One Note” asking another associate director about
reporting Blank for retaliation demonstrates that they acted with actual malice in reporting his jury duty
remark to OAR. At best, however, this evidence shows that Glinski and Penwell bore some animus against
Blank, and the Ohio Supreme Court has indicated that “[a]ctual malice may not be inferred from evidence
of personal spite, ill-will or intention to injure on the part of the writer.” Scott v. News-Herald, 496 N.E.2d
699, 704 (Ohio 1986).
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Case No. 20-3969, Blank v. Nationwide Corp.
that Ball was the “big guy” to whom the cashier was referring. Id. In the present case, neither
Glinski nor Penwell have contradicted their position that Blank used a racial slur in his comment
on jury duty that he made directly to Penwell and Glinsky. And Blank does not dispute the
comment itself—or that the comment even without the slur was offensive—only that he did not
use the racial slur. Ultimately, Blank has failed to meet his burden on summary judgment to
demonstrate a genuine dispute of material fact regarding whether Penwell and Glinski acted with
actual malice in reporting his jury duty comment to the OAR and cannot overcome their qualified
privilege to report his statement.9
CONCLUSION
For these reasons, we AFFIRM the district court’s order granting summary judgment to
Defendants.
9
Even assuming that Glinski and Penwell acted with actual malice, as a separate basis for summary
judgment, the district court correctly found that the alleged harm—his demotion—was not caused by
Penwell and Glinski’s allegedly defamatory statement to OAR but rather the separate investigation into
allegations that he was retaliating against Penwell and Glinski for their report. Blank was not disciplined as
a result of the investigation into his jury duty remark, and the case was closed following his conversation
with Anand.
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