NANCY G. EDMUNDS, District Judge.
This employment dispute comes before the Court on Defendants City of Brighton and Dana Foster's motion for summary judgment [53]. Plaintiff Matthew Schindewolf's claims arise from his separation from the City of Brighton on July 23, 2013. (Am. Compl. ¶ 64.) Plaintiffs bring claims pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (FMLA) 29 U.S.C. § 2601 et seq., the State of Michigan's Persons With Disabilities Civil Rights Act (PWDCRA), Mich. Comp. L. § 37.1101 et seq., and a derivative suit for loss of consortium under Michigan common law. (Am. Compl. ¶ 4.) For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part.
Plaintiff Matthew Schindewolf ("Plaintiff" or "Mr. Schindewolf") is a former employee of the Defendant City of Brighton (the "City"), where he began working as the Department of Public Services (DPS) Director in February 2001. (Am. Compl. ¶ 10; Schindewolf Dep. 36, Defs.' Mot. Summ. J. Ex. 1, ECF No. 53.) Mr. Schindewolf worked for the City until July 23, 2013. (Schindewolf Dep. 107.) Defendant Dana Foster is the City Manager.
Mr. Schindewolf's wife, Plaintiff Mary Schindewolf, has experienced abdominal pain since 2011. (Am. Compl. ¶ 12.) Plaintiffs filed numerous medical records under seal at docket no. 52 to support their own motion for partial summary judgment and they incorporate those documents by reference in this motion. (Pls.' Resp. Br. 4, ECF No. 59.) Without going into the medical details, subject to a stipulated protective order in this matter (ECF No. 50), the record shows that between May 2011 and January 2014, Plaintiff Mary Schindewolf underwent treatment and appointments including surgeries and procedures, in an attempt to pinpoint and treat the cause of her pain. (Am. Compl. ¶ 13; Pls.' Mot. Partial Summ. J. Exs. 1-21, ECF No. 52.) Between 2011 and 2013, Plaintiff Matthew Schindewolf requested and used intermitted FMLA leave to accompany his wife to medical procedures and appointments. (Am. Compl. ¶ 13(g).) Mr. Schindewolf testified that he applied for FMLA leave in November 2011 for potentially three weeks, for two weeks sometime after that, and again in May 2013. (Schindewolf Dep. 37-39, Ex. 1.) The FMLA forms show leave was requested in March 2012, May 2012 and October 2012 for Mr. Schindewolf to care for his wife.
Somewhere between April 15 and 17, 2013, Mr. Schindewolf made Jennifer Burke, Human Resources Director for the City, aware that he needed to be out of the office for his wife's upcoming appointments on April 24, May 1 and May 2, 2013. (Pls.' Resp. Ex. 10.) The parties dispute whether this was a request for FMLA leave. On April 17, 2013, Ms. Burke emailed the appointment information to Defendant Foster and included the following question in the same email: "Also, did you want a copy of his employment agreement? I have attached the `at will employee' policy for your review." (Pls.' Resp. Ex. 10.) Ms. Burke testified that Defendant Foster requested the "at will" policy, yet Defendant Foster does not recall why he asked for the policy that day. (Burke Dep. 34, Foster Dep. 73-74, Pls.' Resp. Exs. 1, 3.) The next day, April 18, 2013, Ms. Burke emailed Denise Meier in payroll to inquire, "Is there any way you can tell me how much time [Mr. Schindewolf] missed during the months of Oct./Nov./Dec. of last year?" (Pls.' Resp. Ex. 11.)
Mr. Schindewolf was diagnosed with Major Reactive Depressive Disorder on April 30, 2013. (Am. Compl. ¶ 16.) A few days later, on May 3, 2013, after driving home from a Brighton City Council meeting the prior night, Mr. Schindewolf sent the following text message to Defendant Foster:
(Defs.' Mot. Summ. J. Ex. 7.)
The following Monday, May 6, 2013, Defendant Foster met with Mr. Schindewolf. (Foster Dep. 85.) Pursuant to a memorandum dated May 6, 2013, from Defendant Foster, Mr. Schindewolf was placed on administrative leave with pay starting immediately and instructed to see his physician to obtain answers to the following questions:
(Schindewolf Dep. 62; Defs.' Mot. Summ. J. Ex. 8; Pls.' Resp. Ex. 16.) The memorandum also noted that the time off would be considered by the City to be FMLA leave and Mr. Schindewolf was encouraged "to contact the City of Brighton's Employee Assistance Program (E.A.P.) for any possible additional assistance" he might need and noted that Ms. Burke could assist in accessing the E.A.P. on a confidential basis. (Defs.' Mot. Summ. J. Ex. 8; Pls.' Resp. Ex. 16.)
Mr. Schindewolf's FMLA leave in May 2013, was for his own condition, major reactive depressive disorder, for which he was treated by his family doctor Dr. Barry Saltman. (Dep. Schindewolf at 38-39.) Dr. Saltman removed Plaintiff from work for approximately six weeks, from May 6, 2013 through June 26, 2013. (Schindewolf Dep. 63; Dr. Saltman Dep. 23.) During the time Mr. Schindewolf was on leave, Defendant Foster did not include Mr. Schindewolf on work emails. (Foster Dep. 118.) Ms. Burke testified that she had not been excluded from work emails when she was on FMLA leave from October to December 2012 for the birth of her child. (Burke Dep. 78-80, Pls.' Resp. Ex. 3.)
While Mr. Schindewolf was on leave, it came to the attention of Defendant Foster that one of two pumps at the wastewater treatment plant had failed, the remaining pump was "about the same vintage" as the failed pump, and the failed pump had not been rebuilt or replaced. Defendant Foster pointed out that Mr. Schindewolf "was responsible for oversight of not only our wastewater plant but two water plants." (Foster Dep. 135-38.) Defendant Foster testified that Mr. Schindewolf had not notified him of the failed pump prior to beginning his leave. (Foster Dep. 155-56.)
Defendant Foster testified that while Mr. Schindewolf was on leave, he learned of Mr. Schindewolf's position as supervisor of Onondaga Township. (Foster Dep. 102.) While employed by the City, Mr. Schindewolf was elected in November 2012 to a position as the Township Supervisor of Onondaga for a term to last through November 2016. (Schindewolf Dep. 14.) Mr. Schindewolf testified that the job was part-time, approximately two hours per week. (Id.) As the Township Supervisor, Mr. Schindewolf used his City email for township
Defendant Foster testified that he did not know about Mr. Schindewolf's employment with Odondaga Township until Ms. Burke told him about it, after Mr. Schindewolf had started FMLA and related sick leave with pay in May 2013. (Foster Dep. 102, Defs.' Mot. Summ. J. Ex. 2.) Ms. Burke testified that she learned of Mr. Schindewolf's employment with Onondaga Township in May 2013 and she then advised Defendant Foster. (Burke Dep. 42, 45, Defs.' Mot. Summ. J. Ex. 3.) Ms. Burke testified that she had confirmed it by getting the November 2012 election results online from the county website.
(Defs.' Mot. Summ. J. Ex. 4.)
Mr. Schindewolf agreed that he had sent emails regarding the township board's review of a proposal on June 18, 2013, during the period of time when he was on FMLA leave from the City from May 6, 2013 to June 26, 2013. (Schindewolf Dep. 79-80, Defs.' Mot. Summ. J. Ex. 1.) Mr. Schindewolf also attended several Onondaga Township meetings during this period of FMLA. (Id. at 80.) Ms. Burke testified that she had looked online at public notices and meeting minutes from local newspapers and saw that Mr. Schindewolf was performing duties for Onondaga Township while on paid sick leave from the City. (Burke Dep. 46, Defs.' Mot. Summ. J. Ex. 3.) During the time when Mr. Schindewolf was receiving sick leave from the City he also continued his work as a musician in a band. (Schindewolf Dep. 21, 49, Defs.' Mot. Summ. J. Ex. 1.)
Mr. Schindewolf returned to work for the City, with no restrictions, on June 26, 2013. (Am. Compl. ¶ 22; Schindewolf Dep. 67, Defs.' Mot. Summ. J. Ex. 1.) Upon his return, Defendant Foster had a meeting with Mr. Schindewolf. Following the meeting, Defendant Foster drafted a "Summary of Meeting with Matthew Schindewolf, June 26, 2013" that he
On Sunday, July 14, 2013, more than a couple of weeks after Mr. Schindewolf had returned from leave, the 3rd street sanitary sewer collapsed in the middle of the city. (Foster Dep. 133-34, Defs.' Mot. Summ. J. Ex. 2; Pls.' Resp. Ex. 4.) Defendant Foster characterized it as possibly the "largest scale sanitary sewer collapse in [his] 23-plus years of doing [his] job as Brighton city (sic) Manager.... in terms of the scope and the effects it had on nearby property owners and the complexities of what was required to repair it, the length of time it took." (Foster Dep. 134.) Defendant Foster testified that it did not seem to him as if "Mr. Schindewolf is engaged in the whole situation, not engaged to the extent that I thought he should have been." (Foster Dep. 134.) Defendant Foster believed that he himself was out on the job site substantially more times than Mr. Schindewolf had been. (Foster Dep. 134.)
Mr. Schindewolf attests that "[d]uring the time that Fonson [contractor] and our own staff from the City of Brighton Wastewater Plant were on the site, [he] made regular trips up to the site to observe the work and to be kept informed of the progress." (Schindewolf Aff. ¶ 7, Pls.' Resp. Ex. 7.) He attested to other steps he took following the sewer collapse, including authorizing the Assistant DPS Director to call in a local contractor to perform an emergency excavation and repair, contracting with another company to set up emergency bypass pumping, continuing to monitor a dewatering area, remaining in contact with residents by making trips to the site and walking the area, and other tasks, while also dealing with the failure of an air conditioning unit at the City Hall. (M. Schindewolf Aff. ¶¶ 4-16.) Defendants submitted an invoice showing that the air conditioning repairs that occurred during that time period were performed by an outside company. (Defs.' Reply Ex. A.)
On July 23, 2013, Defendant Foster had a meeting with Mr. Schindewolf. Ms. Burke also attended the meeting and the police chief was nearby at Defendant Foster's request, but was not in the room with the others for the meeting. (Foster Dep. 124-25, Pls.' Resp. Ex. 1.) Prior to the meeting, Defendant Foster had "made a determination that Mr. Schindewolf's employment with the City of Brighton needed to be terminated, either via dismissal or resignation." (Foster Dep. 124, Pls.' Resp. Ex. 1.) Defendant Foster "made it clear to Mr. Schindewolf in the meeting that when the meeting was concluded, he was no
Despite Defendant Foster's testimony that he gave Mr. Schindewolf reasons that he would no longer be working for the City, including performing outside employment while on paid sick leave, the handling of the sewer system collapse and the situation regarding the wastewater pump, Mr. Schindewolf in his Response Brief argues that he "disputes that these topics were discussed," and cites his Ex. 7, which is his Affidavit. However, his affidavit at Exhibit 7 does not address what occurred at the July 23, 2013 meeting. (Foster Dep. 132-36 and Schindewolf Aff., Pls.' Resp. Exs. 1, 7.) Yet in his deposition, Mr. Schindewolf testified that at the meeting, Defendant Foster had mentioned Mr. Schindewolf's work for the Township Supervisor's position and the "passing of a budget, indicating that there were meetings during the time of the FML." (Schindewolf Dep. 102, Defs.' Mot. Summ. J. Ex. 1) During the July 23 meeting, Mr. Schindewolf acknowledged that he was aware that he was an at will employee. Mr. Schindewolf also testified that Defendant Foster mentioned that he had dismissed a previous building inspector and Mr. Schindewolf knew that the purported reason for that person's termination "had something to do" with his working while on sick leave. (Schindewolf Dep. 104-05.) At the end of the meeting, Mr. Schindewolf wrote and signed a letter of resignation. Defendant Foster gave Mr. Schindewolf a letter of recommendation. (Schindewolf Dep. 113, Defs.' Mot. Summ. J. Ex. 1.)
Plaintiffs filed suit on June 19, 2014, against City of Brighton, Brighton City Council and Dana Foster, City Manager. The Brighton City Council was dismissed with prejudice and without costs on February 27, 2015. (Stipulation and Order for Dismissal ECF No. 47.) Plaintiffs in their First Amended Complaint bring the following claims: discrimination/retaliation in violation of the FMLA based on FMLA leave that Plaintiff Matthew Schindewolf took (Count I) (Am. Compl. ¶¶ 30-39); associational discrimination under the ADA (Count II) (Am. Compl. ¶¶ 40-48); discrimination based on perceived disability under the ADA (Count III) (Am. Compl. ¶¶ 49-56); violation of the Michigan Persons With Disabilities Civil Rights Act (PWDCRA) based on a perceived disability of Plaintiff Matthew Schindewolf (Count IV) (Am. Comp. ¶¶ 57-65); and Loss of Consortium, Plaintiff Mary Schindewolf's claim (Count V) (Am. Comp. ¶¶ 66-70).
"The court shall grant summary judgment 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 moving party may meet that burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Revised Rule 56 expressly provides that:
Fed.R.Civ.P. 56(c)(1). The revised Rule also provides the consequences of failing to properly support or address a fact:
Fed.R.Civ.P. 56(e). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3).
When the moving party has met its burden under rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately a district court must determine whether the record as a whole presents a genuine issue of material fact, id. at 587, 106 S.Ct. 1348, drawing "all justifiable inferences in the light most favorable to the non-moving party." Hager v. Pike Cnty. Bd. of Educ., 286 F.3d 366, 370 (6th Cir. 2002).
Defendants argue that because Plaintiff Matthew Schindewolf chose to resign, and drafted and tendered a letter of resignation which was accepted by the city manager, Defendant Foster, he was not terminated and therefore, cannot establish the adverse employment action necessary to sustain his claims. Plaintiffs argue that Plaintiff Matthew Schindewolf "only resigned because Defendant Foster offered him an ultimatum, resign or face termination." (Pls.' Resp. 13.)
"When an employee voluntarily resigns, he cannot claim that he suffered an adverse employment decision under the ADA or the FMLA." Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir. 1999) (discussing constructive versus effective resignation and finding that the plaintiff had effectively resigned and therefore, had voluntarily ended his employment relationship with the defendant). Michigan's PWDCRA also requires a showing "that the defendant took an employment action adverse to the plaintiff." Aho v. Michigan Dep't of Corr., 263 Mich.App. 281, 688 N.W.2d 104, 108 (2004).
Defendants argues in the pleadings and at the hearing that Plaintiffs did not plead constructive discharge. Yet Plaintiffs' allegation of an adverse employment action is clear from the amended complaint. Plaintiffs allege that "Plaintiff Matthew Schindewolf was terminated," he was told "that he could choose either to resign or to be terminated," "Plaintiff Matthew Schindewolf was discharged by Defendants on July 23, 2013, in retaliation," "Defendants terminated Plaintiff Matthew Schindewolf," "[a]s a result of his termination...." he has suffered damages, and
Defendants also argue that whether or not a constructive discharge occurred is a matter of state law, citing Weigold v. ABC Appliance Co., 105 Fed. Appx. 702, 708 (6th Cir.2004). Yet the Court finds a Sixth Circuit case instructive where it considered whether an employee's resignation was voluntary or involuntary in the context of a claim for disability discrimination under Ohio law and a violation of due process rights under section 1983. "In general, employee resignations are presumed to be voluntary." Rhoads v. Board of Educ. of Mad River Local Sch. Dist., 103 Fed.Appx. 888, 895 (6th Cir. 2004). However, "[a]n employee may rebut this presumption by producing evidence indicating that the resignation was involuntarily procured." Id.
Id. at 895 (citations omitted); see also Dandridge v. North Am. Fuel Sys. Remanufacturing, LLC, 2015 WL 1197541, at *5 (W.D.Mich. Mar. 16, 2015) (applying Rhoads factors in a similar case, involving claims under FMLA).
The Court also considers Defendants' reliance on Lagrow v. County of Berrien, 2008 WL 5197120 (Mich.Ct.App. Dec. 11, 2008), to argue that a "forced choice" does not transform Plaintiff's resignation into an actionable discharge.
The Court finds those factors the court considered in Lagrow not inconsistent with the factors considered in Rhoads. In Lagrow the allowance of time (less than a half hour) for the plaintiff to make a decision was among the factors leading the court to conclude that the "plaintiff has presented no evidence suggesting that [her boss], upon informing plaintiff that her employment with the county had come to an end, acted unlawfully and deprived her of the exercise of her free will." Id. at *5. Plaintiffs attempt to distinguish Lagrow because the plaintiff had specifically requested the opportunity to resign as an alternative to termination, and Mr. Schindewolf did not. (Pls.' Resp. 13, ECF No. 59).
Here, the evidence "is not so one-sided that Defendant[s] must prevail as a matter of law." Dandridge, 2015 WL 1197541, at *5. The parties do not dispute that it was made clear in the July 23, 2013 meeting that "when the meeting was concluded" Mr. Schindewolf "was no longer going to be working for the City of Brighton" and that he "had the option to resign immediately and he chose to resign." (Foster Dep. 125 and Schindewolf Dep. 102, 108, Defs.' Mot. Summ. J. Exs. 1, 2.) Defendant Foster testified that he concluded the meeting by telling Mr. Schindewolf that if he chose the option to resign, then Defendant Foster would provide him with a letter of reference. (Foster Dep. 167.)
Taken in the light most favorable to the non-moving Plaintiff, the evidence may support a finding that Plaintiff was given an alternative to resigning, which was termination, yet also shows that a decision to terminate Plaintiff had already been made at the time Plaintiff was given this option. There is no indication that Plaintiff did not understand the nature of the choice he was given. Unlike Lagrow, Mr. Schindewolf had no time, not even a few minutes, out-side of the meeting to consider the options of resigning or being terminated. Additionally, he was not given the choice of a resignation date. Cf. Rhoads, 103 Fed. Appx. at 895 (the plaintiff had requested resignation in lieu of termination and was given between 10:00 a.m. and 5:00 p.m. to make her decision; "[a]lthough this time frame was perhaps not as lengthy as [the plaintiff] would have liked, she was not pressured to make her decision immediately or otherwise coerced into making an uninformed judgment.").
Defendants' first argument that Plaintiff cannot establish an adverse employment action because he "resigned" does not alone warrant granting judgment in favor of Defendants on the remaining claims where, considering the evidence in the light most favorable to the non-moving party, there is a material question of fact whether Plaintiff's resignation was voluntary.
Defendants argue that Plaintiffs cannot show the elements necessary to establish a prima facie case of discrimination or retaliation
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
The term `disability' means, with respect to an individual —
42 U.S.C. § 12102(1) (emphasis added).
Plaintiff brings a claim that he was discriminated against because he was "regarded as" having an impairment, pursuant to 42 U.S.C. § 12102(3). Section 3 provides that
"When a plaintiff seeks to establish a case of discrimination under the ADA through indirect evidence, ... the familiar McDonnell Douglas burden-shifting framework applies." E.E.O.C. v. J.A. Thomas & Assocs., Inc., 2012 WL 4513630, at *6 (E.D.Mich. Sept. 29, 2012). First, Plaintiff must make a prima facie case of disability discrimination by showing that:
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir.
If Plaintiff establishes a prima facie case, the burden shifts to his employer "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) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see also Demyanovich, 747 F.3d at 434 ("Because [the plaintiff] can prove a prima facie case of disability discrimination, the burden falls to [the defendant] to articulate a legitimate, non-discriminatory reason for terminating him.").
As Plaintiffs point out, Defendants do not contest whether Plaintiff Matthew Schindewolf was "regarded as" disabled. Plaintiffs provide evidence that Defendant Foster considered Matthew's depression to be "a rather serious situation or concern" and a condition that could possibly affect his decision making and judgment, "as well as just his overall ability to do his duties as DPS Director at that time, which included 24/7 operations like water and sewer utilities." (Foster Dep. 88-89, Pls.' Resp. Ex. 1.)
Plaintiff Matthew Schindewolf held his position with the City for 12 years and the parties do not dispute that he was otherwise qualified for the position he held with the City. As set forth above, Plaintiff has established a genuine fact dispute on the element of whether he suffered an adverse employment decision. Plaintiffs present evidence that Defendants knew or had reason to know of Plaintiff's perceived disability, as evidenced by the testimony of Defendant Foster. (Foster Dep. 88-89.) Finally, Plaintiffs must show evidence to support the element that Plaintiff Matthew Schindewolf suffered the adverse employment action because of the perceived disability. Plaintiffs' response brief provides scant basis for this element in relation to this claim. The amended complaint points to comments made during the July 23, 2013 meeting to support a connection between the adverse employment action and both his perceived disability and his claim for associational discrimination (below). (Am. Compl. ¶ 54.) This is consistent with Plaintiffs' attorney's statements at the hearing wherein she identified comments made during that meeting as a basis for the associational discrimination claim.
Plaintiffs in their response brief argue that the following facts create genuine issues of material fact:
The testimony of both Plaintiff Matthew Schindewolf and Defendant Foster contain no evidence that Plaintiff's perceived disability or his wife was referenced in the July 23 meeting and show that it is only Plaintiff Matthew Schindewolf's "perception" that the comments regarding the City standing in his way referred to his
Plaintiffs have not established that Plaintiff Matthew Schindewolf suffered an adverse employment action because of his perceived disability. For these reasons and those set forth on the record at the hearing, the Court finds that Plaintiffs have not established a prima facie claim for discrimination based on perceived disability pursuant to the ADA. The Court dismisses Plaintiff's claim, Count III, based on discrimination pursuant to the ADA.
With respect to Plaintiffs' state law claim under the PWDCRA, "[t]he PWDCRA `substantially mirrors the ADA, and resolution of a plaintiff's ADA claim will generally, though not always, resolve the plaintiff's PWDCRA claim.'" Donald, 667 F.3d at 764 (citing Cotter v. Ajilon Services, Inc., 287 F.3d 593, 597 (6th Cir. 2002) (abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir.2012))). Plaintiffs do not argue that the claims should be treated separately, and in fact, address them together. (Pls.' Resp. 14 n. 5.) Mich. Comp. Laws § 37.1202 provides that "an employer shall not: "(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position."" Mich. Comp. L. § 37.1202(1)(b). As with Plaintiffs' ADA claims, the Court dismisses Plaintiffs' Count IV, the PWDCRA claim. See Donald, 667 F.3d at 764 (the court considered the ADA and PWDCRA claims together and finding that they could not survive the motion for summary judgment, the "district court correctly dismissed them.").
In count II, Plaintiffs allege associational discrimination under the ADA. In addition to Defendants' motion for summary judgment on this issue, Plaintiffs moved for partial summary judgment on an element of this issue. (Defs.' Mot. Summ. J. 11, 14, ECF No. 53; Pls.' Mot. Partial Summ. J. 52.) The ADA precludes discrimination "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). As Plaintiffs point out, in order to establish a prima face case for associational discrimination, the employee must establish that:
Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir.2011) (Noting that the claim for associational discrimination "arises under an infrequently litigated section of the Act, which this
As set forth above, with respect to the "regarded as" disability discrimination claim under the ADA, there is neither argument nor evidence that Plaintiff was not qualified for his position and Plaintiffs have shown a genuine dispute of material fact as to the existence of an adverse employment action. In a separate opinion and order, this Court denied Plaintiffs' motion for partial summary judgement on the ADA claim for associational discrimination, finding that there exists a genuine dispute of material fact as to whether Defendants had knowledge of Plaintiff Mary Schindewolf's disability. In considering the evidence in the light most favorable to Defendants, the non-moving parties, the Court found that Plaintiffs failed to show that there is no genuine issue as to the third prong of the associational discrimination framework, that Plaintiff Matthew Schindewolf was known to have a relative with a disability, and the Court denied Plaintiffs' motion for partial summary judgment on that issue. Likewise, herein the Court finds that evidence set forth by Plaintiff establishes a genuine issue of fact with respect to this element.
The fourth and final element is at issue here, that the "adverse employment action occurred under a circumstance that raises a reasonable inference that the disability of the relative was a determining factor in the decision." Stansberry, 651 F.3d at 487. Several circuits, including the Sixth Circuit have relied on an "outline of three theories into which `associational discrimination' plaintiffs generally fall:" (1) the expense theory, "where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer's health plan, which is costly to the employer," (2) the disability by association theory, which is not at issue here, and (3) the distraction theory, which "is based on the employee's being somewhat inattentive at work because of the disability of someone with whom he or she is associated." Stansberry, 651 F.3d at 487. The Stansberry court acknowledged that these three theories are "not necessarily an exhaustive list." Id.
Plaintiffs initially relied on the expense theory in their complaint, alleging that Defendants terminated Plaintiff "due to the expense of Plaintiff Mary Schindewolf's medical expenses." (Am. Compl. ¶ 47.) In their response brief, Plaintiffs identified no evidence in support of this theory. In their own motion for partial summary judgment, Plaintiffs did not address the fourth factor and when questioned directly at the hearing about the basis for raising the economic theory, Plaintiffs' attorney was unable to cite any evidence in support of this allegation and instead noted that the list of theories was not an exhaustive list and mentioned instead the distraction theory. The Court finds that Plaintiffs abandoned the economic theory, and even if it were substantively considered, Plaintiff's have provided no evidence to contradict Defendants' evidence that the City is part of a health insurance risk pool and high usage by an employee would not result in higher premiums for the City, and that the City does not see information related to benefit utilization by an employee.
For these reasons and those set forth on the record at the hearing, the Court finds that Plaintiffs have not established a prima facie claim for associational discrimination pursuant to the ADA. The Court dismisses Count II, Plaintiff's claim based on associational discrimination pursuant to the ADA.
The FMLA provides a private right of action to employees to protect their rights to such leave under two different theories: (1) the interference or entitlement theory, and (2) the retaliation or discrimination theory. See Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir.2004). To make out a prima facie case of FMLA retaliation, an FMLA plaintiff must establish that:
Donald, 667 F.3d at 761. Unlike analysis of FMLA claims under the interference theory, "[u]nder the retaliation theory (also known as the discrimination theory),... the employer's motive is an integral part of the analysis." Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006). This is "because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights." Id.
Clark v. Walgreen Co., 424 Fed.Appx. 467, 473 (6th Cir.2011) (quoting Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001)).
Plaintiff must show evidence in support of the final element, that there was a causal connection between the FMLA activity and the adverse employment action. Defendants argue that Plaintiff cannot meet this burden. To show that there is no evidence that the City discriminated or retaliated against Plaintiff because of this FMLA leave, his wife's condition or any perceived disability, Defendants first rely on Mr. Schindewolf's deposition, where, Defendants allege, Mr. Schindewolf "conceded that he had no evidence aside from his personal belief that his FMLA leave was a factor in any employment decision" when he testified as follows:
(Schindewolf Dep. 108-09, Defs.' Mot. Summ. J. Ex. 1.) "[S]peculation or conjecture" is insufficient to preclude summary judgment. See Lewis, 355 F.3d at 533.
Defendants also argue that the fact that the July 23, 2013 meeting at which Plaintiff's employment ended occurred subsequent to his FMLA leave from May 6, 2013 to June 26, 2013, is not enough to establish a causal connection. "[T]he law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext." Donald, 667 F.3d at 763 (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir.2001) ("[T]emporal proximity is insufficient in and of itself to establish that the employer's nondiscriminatory reason for discharging an employee was in fact pretextual.")); see also Smith, 368 F.Supp.2d at 734 ("Temporal proximity, standing alone, is not sufficient to establish a causal link....").
Plaintiff testified that he first took FMLA leave to care for his wife in November 2011, and again in 2012 for his wife and, finally, arguably, again in April and May 2013, to care for his wife.
To establish causal connection, Plaintiffs show that Ms. Burke sent a copy of the "at will" policy to Defendant Foster as an attachment to an April 17, 2013 email regarding Matthew's request for leave to take care of his wife in April and May 2013, only three months prior to Mr. Schindewolf's separation from the City. (Pls.' Resp. 22-23, Ex. 10.) In the same email, Ms. Burke also inquired whether Defendant Foster wanted a copy of Mr. Schindewolf's employment agreement, and the next day, Ms. Burke emailed Ms. Meier, from payroll, to inquire, "Is there any way you can tell me how much time Matt missed during the months of Oct/Nov/Dec of last year?" (Pls.' Resp. Ex. 11.)
Although Defendant Foster testified that he recalled asking for the policy and did not recall the specific reason he asked for it (Foster Dep. 73-74), Ms. Burke testified to the following:
(Burke Dep. 34, Pls.' Resp. Ex. 3.) The court finds that this raises a genuine issue of material fact as to the purpose of Defendant Foster's request. Plaintiffs also showed evidence that while Plaintiff was on his own FMLA leave, he was excluded from email correspondence and Ms. Burke had not been excluded from email correspondence when she was on leave. (Foster Dep. 118, Burke Dep. 78-80.) Defendant Foster also prepared a Summary of Meeting following a meeting he had with Plaintiff after Plaintiff returned from FMLA leave, and he had not done so with others who returned from leave, including discussing a news article about the health condition for which Plaintiff had taken leave. (Foster Dep. 116, 120.)
Again, Plaintiffs argue that evidence of a causal connection comes from Defendant Foster's statements at the July 23 meeting,
The Court finds that the provision of the at-will provisions in connection with an email about Plaintiff's request for FMLA leave, combined with the lack of evidence from Defendant Foster about the reason for the request, as well as the temporal connection between the final FMLA leave and the adverse employment action, raises a question of fact as to a causal link between Plaintiff's requested FMLA leave and the adverse employment action.
Because Plaintiffs have shown evidence to support a prima facie case of FMLA retaliation/discrimination, the Court next applies the familiar McDonnell Douglas burden-shifting test. Edgar, 443 F.3d at 508 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the FMLA plaintiff establishes a prima facie case, the burden shifts to his employer who must then proffer a legitimate, non-discriminatory reason for its adverse employment action. Edgar, 443 F.3d at 508. If the employer carries this burden, then the plaintiff must show that the employer's reason for his termination was a pretext for retaliating against the plaintiff for taking his FMLA leave. Bell v. Prefix, Inc., 321 Fed.Appx. 423, 426 (6th Cir.2009); Joostberns v. United Parcel Servs., Inc., 166 Fed.Appx. 783, 790 (6th Cir.2006).
The Sixth Circuit has held that "[w]hen an employer reasonably and honestly relies on particularized facts in making an employment decision, it is entitled to summary judgment on pretext even if its conclusion is later shown to be `mistaken, foolish, trivial, or baseless.'" Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir.2012) (quoting Chen v. Dow Chemical Co., 580 F.3d 394, 401 (6th Cir.2009)). The "key inquiry ... is `whether the employer made a reasonably informed and considered decision before taking' the complained-of action." Id. (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007)). "The employer certainly must point to particularized facts upon which it reasonably relied. But `we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.'" Id. (citations omitted).
Defendants cite multiple legitimate business reasons for their actions. Defendant Foster testified that prior to the July 23rd meeting at city hall with Defendant Matthew Schindewolf, he had "made a determination that Mr. Schindewolf's employment with the City of Brighton needed to be terminated, either via
(Foster Dep. 132-33.) Defendant Foster testified that the other reasons included the situation with a very serious sanitary sewer collapse and Defendant Foster's belief that "it just didn't seem ... that Mr. Schindewolf was engaged in the whole situation" to the extent Defendant Foster thought he should have been and a situation in which one of two pumps at the wastewater treatment plant had failed, the remaining pump was "about the same vintage" as the failed pump, and the failed pump had not been rebuilt or replaced, pointing out that Mr. Schindewolf "was responsible for oversight of not only our wastewater plant but two water plants." (Foster Dep. 133-38.) Evidence shows that Plaintiff Schindewolf also used his City email for township business. Defendant Foster testified that although he did not "think he touched on this" in the July 23 meeting, prior to July 23 he had evidence from Ms. Burke, the HR Director, of Plaintiff Matthew Schindewolf having used his City email account for Onondaga Township business.
At the July 23 meeting, Defendant Foster told Mr. Schindewolf that working for another entity doing similar work or duties while on sick leave with pay from the City was the reason another prior employee had been dismissed, and unlike the other employee who did not have an option to resign, Defendant Foster told Mr. Schindewolf that he was providing an option to resign if Mr. Schindewolf wanted to resign that day. (Foster Dep. 167.) Defendant Foster testified that he told Mr. Schindewolf that the combination of factors caused him "to lose confidence" in Plaintiff. (Foster Dep. 135.)
Plaintiff's argument that the Personnel Policies did not prohibit outside employment, and have since been amended to require written permission for the same, ignore the distinguishing issue, which is that Plaintiff was working while on paid
Defendants have shown legitimate business reasons for the adverse employment action. There is no disagreement that Plaintiff Matthew Schindewolf was made aware of these reasons in the July 23 meeting, as evidenced by the following from his testimony: "I was told that I would be terminated or I could resign"; "He had mentioned work for the Township Supervisor's position. Let's see. What else? The passing of a budget indicating that there were meetings during the time of the FML"; "He [Defendant Foster] did mention that he had dismissed a building inspector. That would have been back maybe at the beginning of my term there"; "There was reference in that meeting of my employment with Onondaga, yes;" "And then he talked about things being out on the Internet, which is correct. He did talk about the budget meetings, which is correct"; and "He indicated he had lost confidence in me." (Schindewolf Dep. 102-06, Defs.' Mot. Summ. J. Ex. 1.) The Court finds that Defendants have presented a legitimate non-discriminatory reason for Defendants to terminate him.
Under the McDonnell Douglas burden shifting framework, after Defendants have presented a legitimate, non-discriminatory reason for their decision to terminate Plaintiff, Plaintiffs' "claims could survive summary judgment only if [Plaintiffs] can show that [Defendants'] stated reasons are a pretext for unlawful discrimination." Donald, 667 F.3d at 761-62. "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The Sixth Circuit, in a discrimination case under the Rehabilitation Act, has held that to satisfy the pretext burden, a plaintiff must show "either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge." Jones v. Potter, 488 F.3d 397, 406 (6th Cir.2007) (quoting Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis omitted)); Blazek, 576 Fed.Appx. at 516. The "court has typically grouped the first and third tests together because they are both `direct attacks on the credibility of the employer's proffered motivation for firing [the employee] and, if shown, provide an evidentiary basis for what the Supreme Court has termed `a suspicion of mendacity.''" Jones, 488 F.3d at 406 (citing Manzer, 29 F.3d at 1084.).
Plaintiffs put forth evidence showing that the reasons were pretextual including the reference to the timeline in which the FOIA requests were sent to obtain meeting minutes, discussed briefly supra at p. 811 fn. 2, and the provision of the at-will policy in connection with the April 17, 2013 FMLA email. For the reasons stated herein and on the record, Plaintiffs' have shown evidence sufficient to raise a question of fact as to whether the reasons for the adverse employment action were pretextual. The Court denies
Defendants seek to dismiss the claims alleged against Defendant Foster in his official capacity as city manager as duplicative of the claims against the City. The Court agrees.
"Official capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Moore v. Tanner, No. 07-10442, 2008 WL 3876346, at *6 (E.D.Mich. Aug. 18, 2008) (In Moore, the individual capacity claims could not be maintained under the ADA, yet the official capacity claims survived where the court had already dismissed the jail because it was clear that the plaintiff meant to proceed against one of the jail employees and not the jail. "An ADA and RA [Rehabilitation Act of 1973] suit may be brought against a public entity by naming the entity itself or by suing an agent of the entity in his official capacity." Id. at *6.) (citing Monell v. New York City Dept. of Soc. Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Therefore, claims against defendants in their official capacities are duplicative of the claims against the public entity itself. Ebelt v. County of Ogemaw, 231 F.Supp.2d. 563, 568 (E.D.Mich.2002).
Courts routinely dispose of such redundant claims, raised under the ADA or otherwise. See Hamilton v. Carson-Newman Coll., No. 09-479, 2010 WL 3806503, at *5 (E.D.Tenn. Sept. 23, 2010) ("... [A] claim against an individual in her official capacity is tantamount to a claim against the employer and where, as here, the employer is also sued, the official capacity suit against the employee is simply redundant and may be dismissed."); see also Ebelt, 231 F.Supp.2d at 568. In this case, the claims against Defendant Foster were brought against him in his official capacity. He is named in the first amended complaint as the Brighton City Manager "in his official capacity." (Am. Compl. ¶¶ 2, 43, 61.) There are no claims against Defendant Foster in his individual capacity and in fact, the claims brought against him are those brought against the City. The Court dismisses the claims brought against Defendant Foster.
Defendants argue that Plaintiff Mary Schindewolf's claim for loss of consortium must be dismissed because the claim is inapplicable to the federal claims, applies only in association with the PWDCRA claim, and is barred by governmental immunity. Plaintiffs rely on Milnikel v. Mercy-Mem'l Med. Ctr., Inc., 183 Mich.App. 221, 454 N.W.2d 132, 134 (1989) to argue that Mrs. Schindewolf's loss of consortium claim is not barred by governmental immunity under Mich. Comp. Law 691.1407. Rather than bolster this position, Milnikel holds only "that a claim for loss of consortium is not precluded by the [Michigan Handicapper's Civil Rights Act]." Id. The issue at hand is not whether the PWDCRA precludes Mrs. Schindewolf's claim, but instead whether Mich. Comp. Law 691.1407 bars recovery as the facts stand in this case.
Loss of consortium is an independent yet derivative cause of action. Wesche v. Mecosta County Road Comm'n, 480 Mich. 75, 746 N.W.2d 847, 854 (2008). Here, Mrs. Schindewolf's derivative loss of consortium claim cannot survive if Mr. Schindewolf's PWDCRA claim is subject to governmental immunity. Id. (discussing
Plaintiffs do not dispute that Defendant Foster and/or the City were operating within the scope of their authority and in the exercise of a governmental function, nor do Plaintiffs maintain that Defendants' conduct was grossly negligent. Plaintiffs further fail to identify any statutory exception to government immunity that applies in this instance. See Wesche, 746 N.W.2d at 853 n. 10 (listing the six statutory exceptions). Indeed, Plaintiffs provide no reason, besides misplaced reliance on Milnikel, why governmental immunity would not apply to Defendants in this case. Nor does this claim survive in the absence of the PWDCRA claim. Plaintiff Mary Schindewolf's claim for loss of consortium is dismissed.
For the reasons set forth above, the Court:
