Shawn Porter v. Jackson Twp. Hwy. Dep't

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 24, 2025
• Docket: 24-3524
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0311n.06

Case No. 24-3524

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 24, 2025 SHAWN PORTER, ) KELLY L. STEPHENS, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN JACKSON TOWNSHIP HIGHWAY ) DISTRICT OF OHIO DEPARTMENT et al., ) Defendants-Appellees. ) OPINION )

Before: BOGGS, LARSEN, and DAVIS, Circuit Judges.

BOGGS, Circuit Judge. Shawn Porter worked a manual-labor job in Jackson Township’s

Highway Department (“Department”) for about nine years. He injured his shoulder outside of

work and took leave under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601. Porter

returned and requested light-duty assignments, but he was instead placed on vacation time

followed by unpaid leave. When the Department heard that during his leave Porter had been doing

manual labor inconsistent with his claimed medical restrictions, it hired a private investigator who

videotaped Porter lifting and carrying items, as well as showing his brother-in-law how to cut a

sidewalk. Under Porter’s collective-bargaining agreement and the Township Personnel Policy, the

Department charged that Porter violated his medical restrictions and lied about his disability status.

The Department concluded that there was just cause to terminate Porter. Porter was fired after

unsuccessfully challenging this finding and filed suit in state court against Appellees, the Jackson No. 24-3524, Porter v. Jackson Twp. Highway Dep’t

Township Highway Department and the Jackson Township Board of Trustees. After Appellees

removed to federal court and moved for summary judgment, the district court granted Appellees

summary judgment on all of Porter’s claims.

Porter appeals only the grant of summary judgment on his claim that Appellees fired him

in retaliation against his exercise of FMLA leave. We affirm because Porter fails to prove any

pretextual reason for his termination.

I. BACKGROUND

In October 2012, Appellees hired Porter into the Public Works Department of Jackson

Township’s Highway Division. Porter’s job entailed mostly manual labor — using power tools,

sledgehammers, picks, and air hammers to dig ditches and dig up pavement.

In January 2021, Porter injured his shoulder outside of work. The resulting surgery made

him unable to work. On February 18, 2021 (the date of his surgery), he began taking FMLA leave.

Porter’s doctor wrote after surgery that Porter was “totally disabled” and unable to return to work

until May 20, 2021, and even then only with particular restrictions: no overhead lifting, no lifting

over ten pounds, and no digging holes by hand. These restrictions were to continue until Porter’s

next appointment, which was on June 18, 2021.

Around May 17, 2021, Porter emailed Highway Department Superintendent Rich Rohn,

hoping to return to work with the medical restrictions. But Rohn responded that there were no

“light duty” assignments or assignments with restrictions within the Public Works Department and

told Porter to request unpaid leave. After Porter’s FMLA-leave balance was exhausted that month,

Appellees placed Porter on 40 hours of vacation time followed by unpaid leave from May 20,

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2021, to June 18, 2021. During Porter’s unpaid leave, he and the Township paid their own shares

of his health benefits.

The controversy leading to this case began in late May 2021 when Appellees heard that

Porter, notwithstanding his stated medical restrictions, had been doing manual labor. Appellees

hired private investigator Scott Steidl to look into the situation. After following Porter in late May

and early June 2021, Steidl reported to Appellees that Porter was performing construction activities

and appeared to show no struggles with movements such as lifting, bending, and carrying. Steidl

filmed Porter working at his brother-in-law’s home, bending at the waist while using a tape

measure and chalk line, using both arms as he worked in the yard, and operating a concrete saw.

Porter conceded in his deposition that he had been “[c]halk lining, measuring, and showing [his

brother-in-law] how to cut a sidewalk.”

Around June 18, 2021, Porter gave Appellees another medical-restriction note with the

same restrictions as before. This second note covered the period from June 21, 2021, to Porter’s

next medical evaluation on July 9, 2021.

On June 21, 2021, Rohn submitted a Statement of Charges to Township Administrator

Michael Vaccaro. Rohn referenced the Township’s collective-bargaining agreement and

personnel-policy sections on falsification to charge that, though Porter had requested unpaid leave

(and the Township’s Board of Trustees had granted it) based on a medical note indicating that

Porter was “totally disabled from work,” Porter had been observed performing manual labor and

operating heavy equipment during this unpaid leave. Rohn argued that these acts violated the

medical restrictions that his doctor had imposed and showed that Porter was “under no disability.”

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Rohn noted that the explanation was based on an “Administrative Investigation” that he had

conducted, and Rohn recommended Porter’s termination.

Porter was scheduled for a pre-disciplinary conference, which was held on June 28, 2021,

before Township Fire Chief Timothy Berczik. Porter was represented by Rich Cossell, his union

representative. Berczik found that Porter was either not compliant with the medical restrictions or

more able to perform work than he had claimed. Berczik held that Porter had “abused the privilege

of being place[d] on unpaid leave status while still receiving extended medical benefits twice

during the course of this situation.” Berczik concluded that “there is just cause for the Township

Board of Trustees to terminate Mr. Porter immediately.” After Porter unsuccessfully challenged

Berczik’s findings and recommendation, the Township’s Board of Trustees terminated Porter’s

employment effective July 6, 2021.

On July 5, 2023, Porter filed a complaint against Appellees in Ohio state court, alleging

four claims for relief: (1) intentional infliction of emotional distress under Ohio common law, (2)

violation of the FMLA, (3) retaliation under the FMLA, and (4) invasion of privacy under Ohio

common law. Claiming federal-question and supplemental jurisdiction, Appellees removed the

case to the United States District Court for the Northern District of Ohio on July 25, 2023.

Appellees denied all allegations in their answer on July 26, 2023.

On January 12, 2024, Appellees moved for summary judgment on each claim. On May

15, 2024, the district court granted Appellees summary judgment on all four claims and dismissed

Porter’s complaint in its entirety. Porter timely appealed. Before us, he challenges only the district

court’s grant of summary judgment on his FMLA-retaliation claim.

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II. STANDARD OF REVIEW

“We review de novo the district court’s grant[] of summary judgment” on Porter’s claim

of FMLA retaliation. Chapman v. Brentlinger Enters., 124 F.4th 382, 390 (6th Cir. 2024).

“A party is entitled to summary judgment if it has shown there is no genuine dispute of any material

fact and that it is entitled to judgment as a matter of law.” Ibid.; see Fed. R. Civ. P. 56(c). The

movant “bears the initial responsibility” of showing entitlement to summary judgment, and Rule

56(c) “mandates the entry of summary judgment . . . against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

All evidence is construed “in the light most favorable to the party opposing the motion.” United

States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

III. ANALYSIS

The district court was correct. Porter fails to prove any pretextual reason for his

termination. Appellees are thus entitled to summary judgment on his FMLA-retaliation claim.

The FMLA “prohibits an employer from discharging or discriminating against an employee

for ‘opposing any practice made unlawful by’ the [FMLA].” Bryson v. Regis Corp., 498 F.3d 561,

570 (6th Cir. 2007) (quoting 29 U.S.C. § 2615(a)(2)). “Absent direct evidence of unlawful

conduct, FMLA-retaliation claims are evaluated according to the tripartite burden-shifting

framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Ibid. Under

this framework, we first ask whether Porter made a “prima facie showing of retaliation,” which

requires him “to provide evidence that (1) [he] engaged in a statutorily protected activity; (2) [he]

experienced an adverse employment action; and (3) there is a causal connection between the

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protected activity and the adverse employment action.” Chapman, 124 F.4th at 401 (citing

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008)). Second, if Porter makes this

showing, “the burden shifts to [Appellees] to offer evidence of a legitimate, non-discriminatory

reason for the adverse employment action.” Bryson, 498 F.3d at 570. And third, if Appellees offer

such evidence, “the burden shifts back to [Porter] to show that the [Appellees’] proffered reason

is a pretext for unlawful discrimination.” Ibid.

The third part is the only issue before us on appeal. Porter claims that “the asserted reason

for his termination — the alleged violation of his medical restrictions — was pretextual.” Porter

argues that this reason either “had no basis in fact” or “was insufficient to warrant the adverse

action insofar as it was consistent with the light duty authorized under his medical restrictions.”

In his view, though Appellees’ investigator observed and videotaped him holding an electric

concrete saw and believed it to exceed the ten-pound weight restriction imposed by his physician,

“the concrete saw was never weighed, and no similar saw was weighed or entered into evidence

at the pre-disposition hearing.” The investigator thus never witnessed an “actual” violation of

Porter’s medical restrictions, and Porter denied any such violation. And though Porter conceded

that he was chalk lining, measuring, and showing his brother-in-law how to cut a sidewalk, “those

activities constituted light duty.”

We reject Porter’s pretext arguments. True, a plaintiff can show pretext in our circuit by

showing either “that the proffered reasons had no basis in fact” or “that they were insufficient to

motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)

(citing Hedrick v. W. Rsrv. Care Sys., 355 F.3d 444, 460 (6th Cir. 2004)). But neither showing

was made here.

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A. Failure to Show “No Basis in Fact”

A plaintiff can show pretext by showing that the employer’s proffered reasons for

terminating had “no basis in fact.” Ibid. But under our circuit’s “honest-belief rule,” a claim of

pretext based on an assertion of no basis in fact “may be defeated by conclusive evidence that the

defendant ‘honestly believed’ its proffered reason, and that the belief was reasonably based ‘on

particularized facts that were before it at the time the decision was made.’” Briggs v. Univ. of

Cincinnati, 11 F.4th 498, 515 (6th Cir. 2021) (quoting Clay v. United Parcel Serv., Inc., 501 F.3d

695, 713–14 (6th Cir. 2007)). “The defendant may rebut the plaintiff’s evidence of pretext, by

demonstrating that the defendant’s actions, while perhaps ‘mistaken, foolish, trivial, or baseless,’

were not taken with discriminatory intent.” Clay, 501 F.3d at 714–15 (quoting Smith v. Chrysler

Corp., 155 F.3d 799, 806 (6th Cir. 1998)). Then, the plaintiff must “produce sufficient evidence

to establish that the employer failed to make a reasonably informed and considered decision before

taking its adverse employment action.” Smith, 155 F.3d at 807–08.

The honest-belief rule forecloses Porter’s argument that there was no basis in fact.

Appellees honestly believed, based on the investigator’s particularized observations and video

recording, that Porter violated his medical restrictions. “The burden of production thus shifted to

[Porter] to demonstrate that [Appellees’] reliance on those facts was unreasonable” because it

stemmed from an impermissible retaliatory motive. Id. at 808. But “[t]his [Porter] has been unable

to do.” Ibid. In Smith, an employer terminated its employee after determining that the employee

had failed to disclose his narcolepsy. Ibid. This determination was based on letters from the

employee’s treating physician stating that the employee was being treated for narcolepsy, and the

employee was unable to produce proof that he had been fired for a discriminatory reason. Ibid.

Here, the evidence is even more concrete than the letters in Smith: on top of the investigator’s

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notes, Appellees saw with their own eyes the video evidence of Smith violating his requested

medical restrictions. And given that “[n]othing in the FMLA prevents employers from ensuring

that employees who are on leave from work do not abuse their leave,” Appellees’ investigation —

which presented the pertinent facts and provided Porter due process by sharing the information

gathered at a hearing with union representation — underscores that Porter’s termination had a basis

in fact and followed an opportunity for rebuttal. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d

274, 284 (6th Cir. 2012) (emphasis omitted) (quoting Allen v. Butler Cnty. Comm’rs, 331 F. App’x

389, 395 (6th Cir. 2009)).

It is not enough that Porter believes that there was no “actual” violation of his medical

restrictions on the theory that “the concrete saw was never weighed, and no similar saw was

weighed or entered into evidence at the pre-disposition hearing.” We ask not whether there was

an actual violation, but whether Appellees reasonably believed that there was an actual violation.

They did. And as for the concrete saw, “we do not require that the decisional process used by the

employer be optimal or that it left no stone unturned.” Smith, 155 F.3d at 807. Even if Appellees

did not personally lift the saw, they took reasonable steps to ascertain the saw’s weight by

comparing the saw to one previously owned by the Township and researching the manufacturer’s

product specifications. Based on this comparison, they reasonably believed at the time of making

the decision to terminate Porter that the saw in his hands weighed around 16 pounds (thus

exceeding the ten-pound weight restriction).

B. Failure to Show “Insufficient to Motivate”

A plaintiff can also show pretext by showing that the employer’s proffered reasons for

terminating were “insufficient to motivate” the firing. Chen, 580 F.3d at 400. This showing

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“ordinarily . . . consists of evidence that other employees, particularly employees not in the

protected class, were not fired even though they engaged in substantially identical conduct to that

which the employer contends motivated its discharge of the plaintiff.” Hedrick, 355 F.3d at 460.

Porter fails to make this showing. He raises no evidence of similarly situated employees.

Without making “an affirmative showing with proper evidence,” Porter cannot defeat Appellees’

motion for summary judgment. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).

Porter may not “rely on the hope that the trier of fact will disbelieve the movant’s denial of a

disputed fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

Porter’s sole argument is that Appellees’ reason for terminating him was “insufficient to

motivate the[ir] . . . action” because chalk lining, measuring, and showing his brother-in-law how

to cut a sidewalk were all activities that constituted “light duty.”

But this argument misunderstands the legal standard. The question is whether, for an

employee who has not taken FMLA leave (i.e., is similarly situated but for membership in Porter’s

claimed protected class), violation of medical restrictions (Appellees’ proffered reason) would be

a “sufficient” reason to motivate firing that employee. Whether Porter’s work was “insufficient”

to motivate because it was “light duty” as a definition of physical labor is irrelevant.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM.