Hernandez v. Ascendum Solutions LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALEXANDER HERNANDEZ,
Plaintiff,
v.
ASCENDUM SOLUTIONS, LLC,
Defendant.
:
:
:
:
:
:
:
:
:
Case No. 1:25-cv-00009
Judge Jeffery P. Hopkins
OPINION AND ORDER
Plaintiff Alexander Hernandez (“Plaintiff” or “Mr. Hernandez”), a Hispanic male
and 	former 	employee 	of 	Defendant 	Ascendum 	Solutions, 	LLC 	(“Defendant” 	or
“Ascendum”), initiated this action in the Hamilton County Court of Common Pleas (Compl.,
Doc. 2), which Defendant removed to this Court. See Notice of Removal Doc. 1-1, PageID
4. Mr. Hernandez alleges that shortly after receiving a positive job review, he was placed on
two performance improvement plans (“PIP”) and eventually terminated from his position as
creative director at Ascendum. Compl., Doc. 2, ¶¶ 16, 21. By contrast, Mr. Hernandez alleges
that Holly Shoemaker—a white female co-worker—was not placed on a PIP or terminated
even though the two occupied the same role at the company. Id. ¶¶ 26, 27. Mr. Hernandez
asserts Defendant’s actions violated the prohibitions against an employer’s interference with
an employee’s rights under the Family and Medical Leave Act (“FMLA”) and constituted
retaliation under that same statute (Id. ¶ 28) and violated the laws protecting employees from
race and gender-based discrimination (Id. ¶¶ 35, 39) under O.R.C. § 4112.02(A).
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 1 of 11 PAGEID #: <pageID>

2
Subsequently, in a preemptive strike to resolve any pleading deficiencies that may have
been present in the original Complaint, Mr. Hernandez filed an Amended Complaint. Am.
Compl., Doc. 12. But before Plaintiff filed the Amended Complaint, Defendant had already
filed the Partial Motion to Dismiss (Doc. 5) (the “Partial Motion”) seeking dismissal only as
to Plaintiff’s race and gender discrimination claims, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, Doc. 5, PageID 24, to which Plaintiff filed a response (Doc. 9) and
Defendant replied (Doc. 10). Defendant’s Partial Motion is now on for consideration before
the Court.
Because Plaintiff's race and gender discrimination claims fail to rise above the
speculative level, the Court GRANTS Defendant’s Partial Motion (Doc. 5) and DISMISSES
Plaintiff’s claims 	as 	to 	race 	and 	gender 	discrimination 	asserted 	in 	the 	original
Complaint (Compl., Doc. 2) WITHOUT PREJUDICE. In addition, because Plaintiff’s
Amended Complaint (seeking to add race and gender discrimination claims under Title VII)
was not filed in accordance with Rule 15(a)(2), it is not properly before the Court and will not
be addressed on the merits at this time. 	For that same reason, the Court DISMISSES, sua
sponte, Plaintiff’s Amended Complaint in its entirety (Am. Compl., Doc. 12), WITHOUT
PREJUDICE.
I. 	BACKGROUND
The factual assertions contained in the original Complaint, which the Court must
view as true at this stage of the proceedings, sets the stage as follows:1 In September 2021, Mr.
Hernandez was hired as a creative director for Ascendum. Compl., Doc. 2, ¶ 6. During his
1 For purposes of analyzing a motion to dismiss, the Court views as true all factual allegations stated in the
Complaint (Compl., Doc. 2). See Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 2 of 11 PAGEID #: <pageID>

3
employment with the company, he served as the sole Hispanic employee on his team. Id. ¶ 7.
Holly Shoemaker—a white female—also worked in the same position as Mr. Hernandez in
the company’s Cincinnati office. Id. ¶ 25. On December 30, 2022, Mr. Hernandez received a
positive 	performance 	evaluation, 	exceeding 	expectations 	in 	five 	categories, 	including
communication, customer service, problem solving, teamwork, and commitment to the role.
Id. ¶¶ 9, 10. Shortly thereafter, Mr. Hernandez spoke with the Vice President of Design, Gary
Howe (“Mr. Howe”) about his intent to take FMLA leave starting March 17, 2023, because
he and his partner were expecting a baby. Id. ¶¶ 11–12, 32. In response, Mr. Howe warned
Mr. Hernandez that his role could be significantly reduced, from full-time to part-time,
following a decision to take the requested leave. Id. ¶ 12.
Following this conversation and to his surprise, Mr. Hernandez was placed on two
PIPs. Id. ¶¶ 13, 16. The first one came less than two months after his positive performance
review and only four days after he received a merit-based pay increase and bonus from the
company. Id. ¶¶ 13, 14. Ascendum alleged that Mr. Hernandez failed to complete all
objectives and requirements of the initial PIP, and as a result, he was placed on a second PIP.
Id. ¶ 16. For the second PIP, Mr. Hernandez was directed to design and build an intricate
website within five days or be terminated from the company. Id. ¶ 17. Mr. Hernandez asserts
that this request was irrational and wholly outside the scope of his position. Id. ¶ 18.
Subsequently, only hours before he was scheduled to begin FMLA leave Ascendum
terminated Mr. Hernandez. Id. ¶ 21. In contrast, however, Ascendum did not place Holly
Shoemaker, Hernandez’s white female counterpart on a PIP; did not direct her to complete
activities outside the scope of her role; and did not similarly terminate her from the company.
Id. ¶¶ 26, 27.
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 3 of 11 PAGEID #: <pageID>

4
In the original Complaint, Plaintiff asserts the following claims: Count I: FMLA
Interference and Retaliation; Count II: Race Discrimination under O.R.C. § 41122; and Count
III: Gender Discrimination under O.R.C. § 4112. When in response to the original Complaint
Defendant filed the Partial Motion to Dismiss, Defendant sought only to eliminate Plaintiff’s
race and gender discrimination claims, and to leave for later consideration Plaintiff’s FMLA
claims.3 Doc. 5, PageID 24. In turn, Mr. Hernandez filed a Response in Opposition to the
Partial Motion (Doc. 9), arguing that the original Complaint asserted sufficient facts to
overcome the Partial Motion to Dismiss at this stage in the proceedings, but in the event that
it did not, he requested leave to file an amended complaint. Doc. 9, PageID 75–76. 	In its
Reply, Defendant again contested the merits of Plaintiff’s race and gender discrimination
claims. Doc. 10. Then, without waiting for the Court to rule on his informal request for leave
to file an amended complaint, on March 4, 2025, Plaintiff filed an Amended Complaint, this
time adding claims for race and gender discrimination under Title VII of the Civil Rights Act
to those previously asserted under the related state law. Am. Compl., Doc. 12, ¶¶ 44, 48.
These matters are now fully briefed and ripe for resolution.
2 O.R.C. § 4112.02(A) provides: “It shall be an unlawful discriminatory practice: (A) For any employer, because
of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, 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.”
3 Ascendum asserts that Mr. Hernandez must meet a heightened standard to state a claim of gender
discrimination because he is a member of the male majority group. Doc. 5, PageID 26. This would require Mr.
Hernandez to show background circumstances to support the suspicion that Ascendum is that rare employer
who discriminates against the majority, as required by the Sixth Circuit’s decision in Donaldson v. DeJoy. No. 22-
1651, 2024 WL 3493870, at *3 (6th Cir. May 1, 2024) (“Because he is white and American, [the plaintiff] . . .
was required to plead sufficient facts showing “background circumstances to support the suspicion that the
defendant is that unusual employer who discriminates against the majority.”). However, in Ames v. Ohio
Department of Youth Services, the United States Supreme Court struck down the Circuit’s “background
circumstances” rule. Ames v. Ohio Dep't of Youth Servs., 605 U.S. 303, 310 (2025) (“Congress left no room for
courts to impose special requirements on majority-group plaintiffs alone.”). Accordingly, under Ames, Mr.
Hernandez, is not required to meet a heightened standard merely because he is a majority-group plaintiff.
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 4 of 11 PAGEID #: <pageID>

5
II. 	STANDARD OF REVIEW
As noted, Ascendum moved to partially dismiss the Complaint for “failure to state a
claim upon which relief can be granted” under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). To
survive a motion to dismiss, the Complaint must include “only enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This,
however, requires “more than labels and conclusions [or] a formulaic recitation of the
elements of a cause of action,” and the “[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id. at 555. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable interference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In deciding a motion to dismiss, the district court must “construe the complaint in
the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
In doing so, the district court “need not accept as true legal conclusions or unwarranted
factual inferences.” Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).
III. 	LAW & ANALYSIS
In the present case, Defendant requests partial dismissal of Plaintiff’s Complaint under
Rule 12(b)(6) for failure to state claims as to race and gender discrimination. Doc. 5, PageID
24. 	Ohio 	law 	prohibits 	discrimination 	against 	employees 	on 	the 	basis 	of 	protected
characteristics such as race and sex. See O.R.C. § 4112.02(A); Hines v. Humana Ins. Co., 689
F. Supp. 3d 516, 535 (S.D. Ohio 2023) (“Pursuant to O.R.C. § 4112.02(A), both race and sex
are protected groups under Ohio's employment anti-discrimination laws.”). Here, the Court
decides whether the factual allegations as alleged in the Complaint, taken together, allow for
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 5 of 11 PAGEID #: <pageID>

6
a reasonable inference that Mr. Hernandez was terminated by Ascendum because of his race
or gender in violation of O.R.C. § 4112.02(A). The Court first considers whether Plaintiff’s
Complaint is sufficient under Twombly and Iqbal with consideration of the framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and second, whether Plaintiff’s
Amended Complaint (Am. Compl., Doc. 12) warrants consideration in resolving any
pleading deficiencies in the original Complaint (Compl., Doc. 2). For the reasons that follow,
both questions must be answered in the negative.
1. 	Plaintiff Fails to State Claims for Race & Gender Discrimination
Plaintiff’s claims fail to provide sufficient factual allegations necessary to create a
plausible inference of race or gender discrimination under O.R.C. § 4112.02(A). Under the
plausibility pleading standard set forth in Twombly and Iqbal, it requires this Court to
determine whether Mr. Hernandez has alleged sufficient facts to state claims for relief that are
at least plausible.4 Plaintiff’s discrimination claims, as is often the case, can be analyzed under
the 	four-step 	burden-shifting 	framework 	outlined 	in 	McDonnell 	Douglas. 	Under 	that
framework, a plaintiff asserting race or gender discrimination in an employment context must
first establish a prima facie case by showing that: (1) he is a member of a protected class; (2)
he was qualified for his job; (3) he suffered an adverse employment decision; and (4) he was
replaced by a person outside the protected class or treated differently from similarly situated
non-protected employees. Blount v. Stanley Eng'g Fastening, 55 F.4th 504, 510 (6th Cir. 2022).
Here, however, an important legal distinction must be drawn. At the motion to dismiss
stage, Mr. Hernandez is not required to plead a prima facie case of job discrimination under
4 Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, as long as the plaintiff sets forth “enough facts to
state a claim to relief that is plausible on its face” and “provides a defendant with fair notice of the basis [of his]
claims, and an adequate factual basis for those claims, a plaintiff's claim of employment discrimination will
survive a motion to dismiss.” Waters v. Drake, 105 F. Supp. 3d 780, 804 (S.D. Ohio 2015) (cleaned up).
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 6 of 11 PAGEID #: <pageID>

7
McDonnell Douglas because it is an evidentiary standard as opposed to a pleading requirement.
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). But courts have long held that the
McDonnell Douglas framework, “creates a backdrop against which the Court can assess
plausibility.” Southall v. Ford Motor Co., 645 F. Supp. 3d 826, 833 (S.D. Ohio 2022); Keys v.
Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (“[I]t was error for the district court to require
[the plaintiff] to plead a prima facie case under McDonnell Douglas in order to survive a motion
to dismiss.”). So, at this juncture, Mr. Hernandez must only plead enough facts for the Court
to “plausibly conclude” that Ascendum failed to hire him because of his race or gender.
Charlton-Perkins v. Univ. of Cincinnati, 35 F.4th 1053, 1060 (6th Cir. 2022); El-Hallani v.
Huntington Nat. Bank, 623 F. App'x 730, 734 (6th Cir. 2015) (“Plaintiffs do not have to prove
their discrimination claims at this stage. They only need to allege ‘sufficient ‘factual content’
from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the
reasonable 	inference’ 	that 	[the 	employer] 	discriminated 	against 	Plaintiffs 	because 	of
[discriminatory 	reasons]”). 	Therefore, 	the 	Court 	analyzes 	Plaintiff’s 	race 	and 	gender
discrimination claims using McDonnell Douglas as only a backdrop to assess plausibility.
As an initial matter, it is beyond dispute that Mr. Hernandez, a Hispanic male, is a
member of a protected class. Compl., Doc. 2, ¶ 7. Second, based upon the facts as alleged in
the Complaint, Mr. Hernandez was qualified for his role as creative director as shown by his
positive performance evaluation about a year after his start date at the company. Id. ¶¶ 9, 10.
Third, Mr. Hernandez suffered an adverse employment action when he was terminated on
March 16, 2023. Id. ¶ 21. Though only used as a backdrop, the first three requirements of
McDonnell Douglas for establishing a plausible claim of unlawful employment discrimination
have been met. Less certain, however, is whether Plaintiff has asserted sufficient facts to
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 7 of 11 PAGEID #: <pageID>

8
plausibly allege that he was treated differently from Ms. Shoemaker, a similarly situated
employee, such that he can satisfy the fourth requirement of McDonnell Douglas—that he was
discriminated against in the employment context because of his race or gender. See Charlton-
Perkins and its progeny, supra.
As noted, in the Complaint, Plaintiff states that he was placed on a PIP after receiving
a positive performance evaluation two months prior and four days after receiving a merit-
based pay increase and a bonus. Compl., Doc. 2, ¶¶ 13, 14. And after receiving the two PIPs,
Plaintiff was terminated because he failed to construct a complex website within five days. Id.
¶ 	17. 	According 	to 	Plaintiff, 	the 	Court 	can 	plausibly 	infer 	race 	and 	gender-based
discrimination since his co-worker Ms. Shoemaker—a white female—was not directed to
complete a PIP; not instructed to “complete work entirely outside her role”; and was not
terminated for similar reasons. Id. ¶¶ 26, 27. Simply put, Plaintiff asserts that “because he was
good at his job and was a [Hispanic] male, he is entitled to a reasonable inference of race and
gender discrimination.” Sam Han v. Univ. of Dayton, 541 F. App'x 622, 627 (6th Cir. 2013).
Even construing the Complaint in the light most favorable to Mr. Hernandez, these
facts are not sufficient to allege that his termination resulted from race or gender bias—or that
race or gender played any part in his termination, as opposed to other non-discriminatory
employment factors. Though Mr. Hernandez and Ms. Shoemaker had the same job title and
are of different races and genders, the comparative facts provided in the Complaint end there.
The Complaint is void of other pertinent comparative facts that would tend to create a
reasonable inference of discrimination such as having similar or different performance
metrics; the same supervisors; similar deficiencies or disciplinary histories; or, for example,
facts alleging that Mr. Hernandez was replaced by a white female; all of which would have
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 8 of 11 PAGEID #: <pageID>

9
raised the allegations in the Complaint above merely the speculative level towards suggesting
that Mr. Hernandez was treated differently due to his race or gender. See Ashcroft, 556 U.S. at
678.
Taken one step further, an allegation that Ms. Shoemaker’s performance was deficient
in some respect, based on her performance reviews, metrics, or other facts as compared to
Plaintiff’s, would likely have also raised the allegations in the original Complaint above the
speculative level. But none of those facts are alleged here, and “[t]he Court is therefore left to
infer 	that 	the 	[company’s] 	decision-making 	regarding 	Plaintiff's 	employment 	was
discriminatory simply based on the fact that he is a man, or that he is [Hispanic], or both” but
without any specific facts to support the allegations of unlawful race or gender-based
discrimination. Sam Han, 541 F. App'x at 627. In sum, Mr. Hernandez failed to allege enough
facts to show that the termination of his employment was plausibly based on race or gender
discrimination.
2. 	Plaintiff’s Amended Complaint Fails
Procedurally, Mr. Hernandez cannot save his discrimination claims by filing an
amended complaint. See Am. Compl., Doc. 12. In Begala v. PNC Bank, the Sixth Circuit made
clear that “[a]n open request for the Court to permit amendment to cure deficiencies, once
the Court identifies those deficiencies, will not defeat a meritorious motion to dismiss
pursuant to Rule 12(b)(6).” Begala v. PNC Bank, Ohio, Nat. Ass'n, 214 F.3d 776, 783 (6th Cir.
2000). Here, at the bottom of Plaintiff’s Response to the Motion (Doc. 9), Plaintiff made a
cursory request to file an amended complaint in the event the Court found pleading
deficiencies in the original Complaint. Doc. 9, PageID 76 (“While Hernandez maintains that
his Complaint properly pleaded his race and gender discrimination claims, he respectfully
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 9 of 11 PAGEID #: <pageID>

10
requests that the Court allow him to move for leave to amend his Complaint should it find
any factual deficiencies.”). Plaintiff then filed the Amended Complaint on March 4, 2025.
Am Compl., Doc. 12.
Here, however, Plaintiff misses a critical step in the process: filing a formal motion to
amend the original Complaint. Begala, 214 F.3d at 783 (“A review of the docket in this matter
reveals that Plaintiffs never moved for leave to amend their complaint. Rather, in opposition
to the motions to dismiss, Plaintiffs requested that they be permitted to amend the complaint
in the event that the Court found it to be deficient” which is insufficient). Under Rule 15(a)(2),
“[a] party may amend its pleading once as a matter of course no later than: (A) 21 days after
serving it . . . In all other cases, a party may amend its pleading only with the opposing party's
written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2) (emphasis added). In this case,
Ascendum received the Complaint on December 13, 2024. Doc. 1-2, PageID 14. Thus,
Plaintiff had until January 3, 2025—twenty-one days thereafter to file an amended complaint
without the opposing party’s written consent or having to seek leave of court for doing so. But
Plaintiff failed to do either.
Instead, Plaintiff “included only a cursory request at the end of [his] opposition to
[d]efendants’ motion to dismiss” and then filed the Amended Complaint—81 days after
Ascendum received the original Complaint, well outside the 21 days permitted by the rules—
on March 4, 2025, without filing a proper motion and without the opposing party's written
consent pursuant to the rules. Am. Compl., Doc. 12. Crosby v. Twitter, Inc., 921 F.3d 617, 628
(6th Cir. 2019) (“Plaintiffs included only a cursory request at the end of their opposition to
[d]efendants’ motion to dismiss . . . Plaintiffs also failed to explain how a second amended
complaint would resolve the problems in the first amended complaint. Thus, the district court
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 10 of 11 PAGEID #: <pageID>

11
did not abuse its discretion”). Accordingly, Plaintiff’s Amended Complaint will be given no
consideration in these proceedings as having been improvidently filed with the Court.5 Am.
Compl., Doc. 12. The Amended Complaint will be dismissed.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, Defendant’s Partial 	Motion 	to 	Dismiss 	(Doc. 	5)
is GRANTED. Plaintiff’s claims as to race and gender discrimination are DISMISSED
WITHOUT PREJUDICE. 	The Court also DISMISSES, sua sponte, Plaintiff’s Amended
Complaint in its entirety (Am. Compl., Doc. 12), WITHOUT PREJUDICE.
IT IS SO ORDERED.
February 26, 2026
Jeffery P. Hopkins
United States District Judge
5 The Sixth Circuit has long treated the Ohio and federal anti-employment discrimination laws, i.e., O.R.C. §
4112.02(A) and Title VII, the same for purposes of analysis. As such, even if Plaintiff’s Amended Complaint
(Am. Compl., Doc. 12) had been properly filed and the Court had been able to consider it, the result reached
here would be unchanged. The facts Plaintiff alleges of unlawful employment race and gender discrimination in
the Amended Complaint fail the plausibility standards established under Iqbal and Twombly and likewise fail to
state a claim under Title VII upon which relief can be granted. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th
Cir. 1992) (“The McDonnell Douglas. . . formula is the evidentiary framework applicable not only to claims
brought under Title VII, but also . . . to claims of discrimination under Ohio state law.”).
Case: 1:25-cv-00009-JPH Doc #: 15 Filed: 02/26/26 Page: 11 of 11 PAGEID #: <pageID>