NANCY G. EDMUNDS, District Judge.
This employment dispute comes before the Court on Defendant's motion for summary judgment. Plaintiff Deborah White was terminated from Defendant Telcom Credit Union on May 18, 2010. On May 13, 2011, she filed a complaint alleging that Defendant violated her rights under (1) the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654, when it both interfered
For the reasons discussed below, Defendant's motion is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Plaintiff's "wrongful termination" in violation of Michigan public policy claim, and is DENIED as to Plaintiff's PWDCRA and FMLA claims.
The facts are disputed. First, Plaintiff's version.
Plaintiff began working for Defendant Telcom in March 2003 as a member service specialist in the call center. (Def.'s Mot, Ex. A, Pl.'s Dep. at 10, 21-22.) She received a few verbal and written discipline warnings in 2004, 2005, and 2006, all related to tardiness and absenteeism. (Def.'s Mot., Ex. B.) After 2006 and up until immediately before her termination in May 2010, Plaintiff received no discipline warnings. She received consistently good annual reviews, including the most recent which was completed in March 2010, just two months before her termination. (Pl.'s Resp., Ex. 1, 3/1/10 Employee Appraisal.)
Defendant's call center is located on the first floor of a two-story building. It is an open area next to the financial service area and not open to the public. (Def.'s Mot., Ex. F, Lang Dep. at 14.) This is where Plaintiff and other member service specialists were located while handling all calls into Defendant Telcom Credit Union. (Pl.'s Dep. at 21-24.) Jane LeSage, Plaintiff's supervisor, also worked in the call center, just two desks away from Plaintiff's desk. This location allowed Ms. LeSage to answer employee questions, provide training, and answer calls. (Def.'s Mot., Ex. E, LeSage Dep. at 7-8; Pl.'s Resp., Ex. 2, Pl.'s Aff. at ¶ 23.)
In August 2007, Plaintiff was in a car accident and suffered a severe ankle injury. (Pl.'s Aff. at ¶ 2.) Linda Hockney, Defendant's Vice President of Human Resources at that time, communicated with Plaintiff during her extended FMLA/personal leave. (Def.'s Mot., Ex. I, 2007-2008 correspondence.) Plaintiff had one ankle surgery in August 2007 and another in early 2008. Following each surgery, Plaintiff was required to be off her feet for around two weeks and then had several weeks of physical therapy. After the August 2007 surgery, Plaintiff returned to work in October 2007 but found that she needed more time off to recover and ultimately required another surgery. So, Plaintiff was off work from November 2007
Since January 2008, Dr. Adelman has been Plaintiff's treating physician with regard to her left ankle. (Pl.'s Aff. at ¶¶ 5-6.) Although she was able to perform her job when she returned to work in March 2008, Plaintiff testified that, because of her ankle injury, she would have to get up and walk around every 30 to 45 minutes, would have to keep her leg elevated on a stool, and sometimes because of swelling had to wear her slippers at work. (Pl.'s Dep. at 37, 87, 95-96; Pl.'s Aff. at ¶¶ 10-11.) From March 2008 through her termination in May 2010, Plaintiff testified that, because of her injured left ankle, she experienced problems with swelling, blood circulation, falling, not being able to lift, not being able to stand for long periods of time, difficulty walking up stairs, walking in general (had a limp), and could no longer run. (Pl.'s Dep. at 95-97; Pl.'s Aff. at ¶ 13.) Her ankle injury substantially limited several of her major life activities, including standing, running, walking, lifting, pushing, and sitting, and Plaintiff's doctor told her that the limitations caused by her ankle injury were permanent — that Plaintiff had recovered 70% to 80% and was likely to have some permanent disability to the left ankle. (Pl.'s Aff. at 10-13; Dr. Adelman Dep. at 24-29.)
Because of her ankle disability, Plaintiff had a handicapped license plate. From March 2008 until her termination on May 18, 2010, Plaintiff parked in Defendant's handicapped parking spot, right outside the employee entrance. Other employees parked much further away. (Pl.'s Aff. at ¶ 15.) Defendant's CEO, Thomas Reagan, often greeted Plaintiff as she was getting in and out of her car parked in the handicapped spot. (Pl.'s Aff. at ¶ 15.) The same is also true of Craig Larson, Defendant's Vice President of Lending and Ms. LeSage's manager. (Pl.'s Aff. at ¶ 16; Lang Dep. at 26.) Plaintiff avers that she also had a conversation with Mr. Larson and told him that she could not walk up and down stairs and had to take the elevator.
Ms. Lang is the manager of Defendant's Human Resources Department. Although Ms. Lang denies that she knew Plaintiff had an ankle problem or handicap (Lang Dep. at 19), Plaintiff testified that Ms. Lang questioned her in the coffee room about how long ago she had suffered her ankle injury. Plaintiff also testified that Ms. Lang asked her on one occasion why she parked in a handicapped space. Shortly thereafter, Plaintiff was alerted that a police officer was in Defendant's parking lot checking out the back of her car, verifying whether she had a handicapped license plate. While the police officer was checking out her car, Plaintiff observed Ms. Lang looking out an upstairs office window. (Pl.'s Dep. at 79, 83, 85-87; Pl.'s Aff. at ¶¶ 19-20.) Defendant's Employee Handbook requires employees to wear shoes at all times, and Plaintiff avers that she had explained to Ms. Lang that she frequently had to wear slippers to work because her ankle swelled so much that she could not wear shoes. (Pl.'s Aff. at ¶ 18; Pl.'s Resp., Ex. 4, Employee Handbook at 41.)
Plaintiff's immediate supervisor, Ms. LeSage testified that she was aware of Plaintiff's ankle injury, was aware that Plaintiff parked in a handicapped spot, was aware that Plaintiff was still in physical therapy, was aware that Plaintiff had continuing difficulties with her ankle and needed to elevate it occasionally but confirmed that those difficulties did not interfere with her job performance. (LeSage
Plaintiff testified that in late winter and early spring 2010, her ankle condition worsened. She experienced increased pain, swelling, and falling because her ankle was not performing as it should. (Pl.'s Dep. at 35, 37-38, 51.) Plaintiff saw Dr. Adelman, her treating physician, on March 15, 2010. His notes report that she was there that day "due to about four weeks duration of increased pain to the ankle." (Def.'s Reply, Ex. O, 3/15/10 notes.) Plaintiff told Dr. Adelman that she felt 80% healed, had plateaued, and had more good days than bad. (Id.) Dr. Adelman recorded his impressions from his examination: "chronic ankle instability," "anterior ankle impingement syndrome," "history of traumatic ankle injury," and "early posttraumatic arthritis, left ankle." (Id.)
On May 10, 2010, Plaintiff had a followup visit with Dr. Adelman. His notes reveal that Plaintiff had some complaints of "cramping type tenderness to the medial ankle that does extend to the calf. She states that it is painful enough to where she needs to stop and exercise and then it does feel better. This has been ongoing now for the past four plus weeks and has been worsening." (Id., 5/10/10 notes.) Dr. Adelman's impressions from his examination were that Plaintiff was experiencing "pain in the limb," "cramping of lower extremity," and "rest pain type syndrome." (Id.) He educated Plaintiff on her "diagnosis and treatment options." (Id.) He noted that he was "concerned with some of the symptoms she was describing" and was "going to send her for a venous duplex Doppler to lower extremity to rule out a clot or a reflux or a Baker cyst" and was going to "send her for [an] anterior Doppler ABI and TBI." (Id.) He discussed the ultrasound with Plaintiff, told her that she needed to get this testing done that day, wrote her a script, and sent her directly to the second floor of the Orthopedic Institute of Michigan to have the testing done. He told her that he would see her after the testing was done, and if one of the tests came back positive, they will contact the hospital and "proceed appropriately." (Id.)
At his deposition, Dr. Adelman testified that Plaintiff came to him in May 2010 with cramping and edema (swelling) to the leg and his exam focused on those complaints. (Dr. Adelman Dep. at 11.) He was concerned about a blood clot and possible surgery. (Id. at 13.) When asked if he contemplated further surgery on Plaintiff's ankle, Dr. Adelman testified that "[s]urgery ... was always possible in any patient, you know, potentially if there — if the conservative means continue to fail." (Id. at 14.) Based on his notes, however, he denied that he told Plaintiff in May 2010 that she needed surgery on her ankle. (Id. at 13-14, 18.) On cross-examination, Dr. Adelman clarified that, although not in his notes, he could have discussed ankle surgery with Plaintiff in March or May 2010.
(Id. at 31-32.) He admitted that he did not document in his notes every conversation that he had with a patient otherwise he'd "be dictating all day." (Id. at 34.) When asked if, after Plaintiff's May 10, 2010 visit with him, "she was in a position to know that she needed a Family Medical Leave for surgery at that time," Dr. Adelman responded that:
(Id. at 35-36.) He repeated that he could not remember the details of his conversation with Plaintiff on her May 10, 2010 doctor visit. (Id. at 36.)
Despite his lack of specific memory of discussions he had with Plaintiff in 2010, Dr. Adelman acknowledged that Plaintiff suffered from a permanent disability to her left ankle:
(Dr. Adelman Dep. at 24-25, 26-32.)
Plaintiff ultimately had additional surgery on her ankle in February 2011. She testified that she did not do so earlier because she was depressed after being fired and wanted to get stronger before she agreed to the surgery. (Pl.'s Dep. at 52-57.)
In April or early May 2010, Plaintiff had several discussions with Ms. LeSage and Ms. Lang where she told them that she would probably have to have another surgery on her left ankle, that she would need to take time off from work, and that she would like to go on short-term disability like she did the last time she was on leave for her ankle injury. (Pl.'s Dep. at 37, 65.) When Plaintiff informed Ms. LeSage, she referred Plaintiff to Ms. Lang in Human Resources. (Pl.'s Dep. at 65.)
Plaintiff requested time off from work because she knew that she would have to have surgery because of the way her ankle was performing and because her condition was getting worse. (Pl.'s Dep. at 35, 37, 59.) She testified that Dr. Adelman told her that she probably would have to have surgery again but first he needed certain tests done. (Pl.'s Dep. at 35-36, 38.) Plaintiff identified the test as an MRI but in fact it was the Doppler tests Dr. Adelman ordered on May 10, 2010. Despite Dr. Adelman's directions to have the Doppler tests he ordered done that day, the tests were scheduled for May 25, 2010. Plaintiff returned to work after her May 10, 2010 appointment and requested the day off as either a personal or vacation day. (Pl.'s Dep. at 34-35; Pl.'s Resp., Ex. 3, 5/25/10 and 5/20/10 Dr. orders.) Plaintiff told Ms. LeSage that she did not know exactly when the surgery would be scheduled but it would have to be done. (Pl.'s Dep. at 50-51, 58-59.) Plaintiff was aware that the Employee Handbook required her to alert management at least 30 days before a potential leave. (Pl.'s Aff. at ¶¶ 24-25; Pl.'s Resp., Ex. 5, Employee Handbook at 33.)
In that same meeting, Plaintiff testified that she also told Ms. Lang that her ankle was getting worse and her doctor had told her that she probably needed another surgery. (Pl.'s Dep. at 37-39.) Plaintiff asked about the availability of short-term disability while she was off for the surgery and recuperation. Ms. Lang told her that this leave would also have to be FMLA, not short-term disability. (Pl.'s Dep. at 37-39, 50, 65, 68-72.) Ms. Lang gave Plaintiff FMLA forms related to her need to take time off to either care for or find a caregiver for her mother-in-law. Ms. Lang did not give her FMLA forms related to the anticipated surgery on her ankle. Plaintiff testified that she expressed concern to Ms. Lang about this, and Ms. Lang told her that this was all she needed, that the time she planned to take off for her ankle surgery would be considered FMLA leave and not short-term disability. This made no sense to Plaintiff because the last time she was off for her injured ankle she received short-term disability benefits, and it was Plaintiff's understanding that FMLA leave was without pay. (Pl.'s Dep. at 39-42, 66, 68-72.)
Plaintiff testified that she went back to Ms. Lang's office after she got the FMLA paperwork on May 12, 2010, and asked again about the paperwork she needed for time off in connection with her anticipated ankle surgery. Ms. Lang told her that she had all the paperwork she needed, but Ms. Lang never gave her any FMLA forms for her own medical condition. Each time Plaintiff asked for the paperwork she would need for her short-term disability, i.e., ankle surgery and recuperation, Ms. Lang kept telling her that she did not need that paperwork and that the FMLA paperwork she had was all she needed to secure her job at Defendant Telcom. (Pl.'s Dep. at 42-46, 66.) Plaintiff was confused because she recalled that the last time she was out for her ankle she was on short-term disability rather than just FMLA leave because she got paid. (Pl.'s Dep. at 59-66.) Plaintiff followed up with Ms. Lang on May 12, 2010 because she wanted some clarification why any leave she took for her anticipated ankle surgery had to be FMLA leave and not short-term disability. The only response she got from Ms. Lang was that the FMLA papers she had regarding time off to either care for or obtain care for her mother-in-law was all Plaintiff needed to secure her job after taking a leave of absence. (Pl.'s Dep. at 68-72.)
On May 10, 2010, Ms. Lang sent an email to all employees of Defendant Telcom informing them of a mandatory meeting to be held off-site on Tuesday, September 21, 2012. It reminded employees not to make any vacation plans for that day. (Pl.'s Resp., Ex. 8, 5/10/10 email.) Plaintiff testified that her discipline and termination
On May 17, 2010, Plaintiff had tests scheduled for May 25, 2010 in connection with her left ankle. As discussed above, she had been having problems with her ankle, had discussed additional surgery on her ankle with Dr. Adelman, was told by Dr. Adelman that she would probably have to have surgery, and believed that Dr. Adelman would schedule surgery after the tests he ordered were completed. (Pl.'s Dep. at 30-32, 35-36.) Before that date, Plaintiff had discussed all this with Ms. LeSage and Ms. Lang in Human Resources. (Pl.'s Dep. at 36-38.)
With all of this on her mind, on May 17, 2010, Plaintiff was in the middle of Defendant's call center and directed a question to her supervisor, Ms. LeSage, about what would happen if she was unable to attend the mandatory meeting scheduled for September 21st because she had to have surgery. (Pl.'s Dep. at 30-31, 36.) Ms. LeSage responded that the meeting was mandatory. (LeSage Dep. at 23; Pl.'s Aff. at ¶ 33.)
Plaintiff denies that she had an "outburst" as Ms. LeSage and Ms. Lang claim. Rather, Plaintiff testified that it was a slow morning, and she never raised her voice when she asked her supervisor about this mandatory meeting. She said people in the call center often voiced questions, opinions, or complaints in a similar manner and did not receive a written warning like Plaintiff did on May 17, 2010. (Pl.'s Dep. at 72-74, 76-77, 82-84, 105-109.) In support, Plaintiff presents the deposition testimony of other call center employees who were present and heard her on May 17, 2010. Co-worker, Angel Stephenson testified that Plaintiff was not disruptive when she asked Ms. LeSage the question about the September mandatory meeting and further testified that Plaintiff's conduct was no different than that of other call center employees who had not been disciplined. (Pl.'s Resp., Ex. 10, A. Stephenson Dep. at 7-8.) Co-worker Debra Trent testified that, although present, she did not hear anyone ask a question on May 17, 2010 about the September mandatory meeting, she never experienced Plaintiff being disruptive in the call center in May 2010, but she did recall Plaintiff being upset and saying to her that Defendant Telcom could not make the September meeting mandatory. (Pl.'s Resp., Ex. 10, D. Trent Dep. at 5-7.) Co-worker Debra Arquette testified that she did not recall Plaintiff asking a question in May 2010 about the mandatory meeting, did not experience Plaintiff being disruptive in the call center, but knew Plaintiff was not happy about the mandatory meeting. (Pl.'s Resp., Ex. 10, D. Arquette Dep. at 5-6.) Co-worker Wendy Zografos testified that she did not recall Plaintiff asking in May 2010 about the mandatory meeting, and the only time she recalled Plaintiff being disruptive in the call center occurred about one month earlier when a caller wanted some fees waived and Supervisor LeSage told Plaintiff to do it. (Pl.'s Resp., Ex. 10, W. Zografos Dep. at 5-6.)
Defendant presents an entirely different version of these facts.
Ms. LeSage testified that Plaintiff did not ask a question. Rather, she had an "outburst" that lasted a couple of minutes, was pacing through the call center, loudly refusing to attend and saying they couldn't make her go and "Oh, hell no, I'm not going," and was disrupting others in the call center. Ms. LeSage also claims that Plaintiff never said why she was refusing to attend the mandatory meeting. LeSage told Plaintiff to sit down and be quiet, that everyone had to attend, and that she was
Ms. LeSage then went to see Ms. Lang in Human Resources about taking disciplinary action against Plaintiff. Ms. Lang prepared a written warning letter. Ms. LeSage had an opportunity to review the letter before it was presented to Plaintiff. Ms. Lang from Human Resources then set up a meeting with Plaintiff to administer the written warning. (LeSage Dep. at 23-25.) The written warning was dated May 17, 2010 and from Jane LeSage. It provided the following:
(Def.'s Mot., Ex. D, 5/17/10 LeSage memo to Pl.) The memo concluded with a signature and date line for Plaintiff and for her supervisor Ms. LeSage. (Id.)
Now back to Plaintiff's version of the facts.
Around 11:00 a.m., after Plaintiff asked Ms. LeSage what would happen if she was unable to attend the mandatory September meeting, she resumed her work in the call center. Then, around 3:00 p.m. that afternoon, Plaintiff was summoned to a meeting with Ms. LeSage and Ms. Lang where she was told that she was being written up for the question she had asked Ms. LeSage in the call center. Plaintiff told them that she disagreed with the statement that she had an "outburst," told Ms. LeSage and Ms. Lang that she would respond to the written warning, and had intended to prepare a rebuttal but was sent home before she could do so. At the end of the disciplinary meeting, Plaintiff told Ms. LeSage and Ms. Lang that if it was their intent to terminate her, she preferred that they do it in the morning rather than at the end of the day.
Plaintiff testified that she believed that she was about to be terminated because she had asked questions about taking time off for her anticipated ankle surgery and recuperation and was not getting a clear answer from Ms. Lang on her requests about FMLA leave versus short-term disability. The last time she tried to get some clarity on that issue was on May 12th and now, five days later, she was getting a written warning for just asking her supervisor
Plaintiff also believed she was going to be terminated because of the way the conversation went during the May 17, 2010 disciplinary meeting. She was talked to as if she were a two-year old. She repeatedly told Ms. LeSage and Ms. Lang that she simply asked a question of her supervisor as she was supposed to, that it was not typical to go off and ask questions privately, that she never raised her voice, and that she did not have an outburst. She did not understand why she was being written up for asking her supervisor a question about what would happen if she could not attend the mandatory meeting because she had surgery on her ankle. She testified that other call center employees asked questions, stated opinions, and made complaints similar to the way she did but they were not disciplined. (Pl.'s Dep. at 82-84, 105-109.) Plaintiff's supervisor, Ms. LeSage, confirmed that Defendant had an "open door" policy that encouraged employees to freely ask questions of anyone superior to them, including the company president. (LeSage Dep. at 32-33.)
After Plaintiff left the May 17, 2010 disciplinary meeting, she went back to her desk in the call center. She was sent home early. (Pl.'s Dep. at 77.)
Plaintiff returned to work on May 18, 2010. She was immediately told that Ms. Lang wanted to see her and was instructed to go to the office of the department manager, Mr. Craig Larson. When she arrived in Mr. Larson's office, he left and returned with Ms. Lang. Ms. Lang told Plaintiff that she was no longer an adequate fit for Telcom Credit Union. Plaintiff surrendered her keys, and Mr. Larson accompanied Plaintiff downstairs so she could clean out her desk before she left. (Pl.'s Dep. at 24-26.) Plaintiff did not understand why she was being terminated when the written warning she had received the day before stated that she would be terminated if there were any more occurrences and there were none. (Pl.'s Dep. at 90-91.)
Now for Defendant's version of these events.
The May 17, 2010 discipline meeting was held in Defendant's Human Resources conference room. Ms. LeSage and Ms. Lang discussed with Plaintiff why she was being issued a written warning. She was told that her behavior was inappropriate and that her outburst had disrupted an entire department. Ms. LeSage testified that, after first sitting down and listening to Ms. Lane, Plaintiff jumped up, became very enraged, had another outburst and stated that she was not going to listen anymore, that she was not going to stay in there and to just give her the paper to sign. Ms. LeSage claimed that Plaintiff ripped the papers off the table, out of people's hands, and said let me sign this and "I'm out of here." (LeSage Dep. at 25-28.) She also claimed that Plaintiff told her and Ms.
Ms. Lang testified that Ms. LeSage notified her on May 17, 2010 that Plaintiff had an outburst during the work day. Ms. LeSage told her she had previously given Plaintiff a verbal warning about an earlier outburst and now wanted Ms. Lang to prepare a written warning to Plaintiff regarding her outburst on May 17th about the September mandatory employee celebration/training meeting that Ms. Lang was coordinating. Ms. LeSage told Ms. Lang that Plaintiff stood up and yelled "No, I'm not. They can't make me go. I'm not going to this meeting." (Lang Dep. at 22-23.) Ms. LeSage said that Plaintiff was loud and other call center employees were on the phone with members. (Id.)
Ms. Lang prepared a disciplinary memo, and then had a sit-down meeting with Ms. LeSage and Plaintiff. Plaintiff was very belligerent at the meeting and was not happy to be getting the written warning. Ms. Lang claims that Plaintiff basically grabbed it and said, "Here, I'll sign it right now," and then said "Is this meeting over? I'm leaving." (Lang Dep. at 25.) Ms. Lang told Plaintiff to wait so she could make a copy, left the room, returned, gave a copy to Plaintiff, who then got up and said "Just so you know, if you're going to terminate me, do it in the morning, not at the end of the day." (Id.)
After Plaintiff left the May 17th meeting, Ms. Lang suggested to Ms. LeSage that they go and talk to her department manager, Craig Larson, and let him know what had just happened. Ms. LeSage and Ms. Lang talked with Mr. Larson. Ms. Lang and Mr. Larson then went to Defendant's CEO, Thomas Reagan, and told him that they felt Plaintiff's actions were insubordinate and they wanted her terminated, and Mr. Reagan agreed with their decision. (Lang Dep. at 26.) Ms. Lang explained that the insubordination that justified Plaintiff's termination was "[t]he fact that she wouldn't even just sit down and allow us to go over the disciplinary action. She grabbed it, the sheet of paper, and went to sign it and basically stood up and wanted to end the meeting before the meeting was ended, that coupled with her parting statement about when to terminate her, we felt that was insubordinate." Ms. Lang further explained that Plaintiff grabbed the paper because she wanted to sign it. (Lang Dep. at 27-28.)
Plaintiff was terminated on May 18, 2010.
On May 13, 2011, she filed this lawsuit against Defendant alleging that Defendant violated her rights under (1) the FMLA when it both interfered with her FMLA rights and retaliated against her when she sought to enforce those rights; (2) Michigan's Persons With Disabilities Civil Rights Act when it disciplined and terminated her because of her disability; and (3) Michigan's public policy when it wrongfully terminated her in retaliation for her attempt to enforce her FMLA rights. This matter is now before the Court on Defendant's motion for summary judgment.
"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 Electric Industrial 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 County Bd. of Education, 286 F.3d 366, 370 (6th Cir.2002).
Defendant asserts that Plaintiff was terminated on May 18, 2010 for her insubordinate and belligerent behavior during a counseling session when she received a written warning for the incident that occurred on May 17, 2010. (Def.'s Mot. at 1.) Defendant's motion argues that it is entitled to summary judgment on each of Plaintiff's claims. As to Plaintiff's claims of discrimination under Michigan's Persons With Disabilities Civil Rights Act ("PWDCRA"), Defendant argues that Plaintiff (1) cannot establish a prima facie case of discrimination under that Act because (a) she cannot show she suffered from a disability as defined by the PWDCRA, (b) she cannot show that a decision-maker knew she had a disability, and (c) cannot establish a causal connection between her termination and her alleged request for FMLA leave; and (2) cannot show that Defendant's proffered, legitimate reason for her termination was a pretext for disability discrimination. As to Plaintiff's claims that Defendant violated the FMLA when it both interfered with
For the reasons discussed below, this Court GRANTS Defendant's motion as to Plaintiff's violation of Michigan public policy claim. It DENIES Defendant's motion as to Plaintiff's PWDCRA claim and Plaintiff's claims of FMLA interference and FMLA retaliation. The Court begins with an analysis of Plaintiff's FMLA claims.
"The FMLA makes it unlawful for any employer `to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the Act],' 29 U.S.C. § 2615(a)(1), or to `discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act].' Id. at § 2615(a)(2)." Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 281 (6th Cir. 2012). "Consistent with these proscriptions, `[e]mployers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.'" Id. (quoting 29 C.F.R. § 825.207(a)).
Plaintiff alleges that Defendant violated the FMLA both by interfering with her attempt to exercise her FMLA rights and by retaliating against her for that attempt. The Sixth Circuit recognizes these "two discrete theories of recovery under the FMLA: (1) the so-called `interference' or `entitlement' theory arising from § 2615(a)(1), and (2) the `retaliation' or `discrimination' theory arising from § 2615(a)(2)." Id. "[T]he requisite proofs differ" for interference and retaliation claims. Id. The primary distinction is that employer intent is not considered in an interference claim. "The interference theory has its roots in the FMLA's creation of substantive rights, and `[i]f an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred,' regardless of the intent of the employer." Id. (quoting Arban v. West Publ'g Corp., 345 F.3d 390, 401 (6th Cir.2003)). The opposite is true of FMLA retaliation claims. "The central issue raised by the retaliation theory, on the other hand, is `whether the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.'" Id. (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir.2006)). "In contrast to the interference theory, `[t]he employer's motive is relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.'" Id. (quoting Edgar, 443 F.3d at 508).
"Employees invoking the entitlement theory must prove that their employer interfered with or denied them an FMLA benefit to which they were entitled. This inquiry is an objective one divorced from the employer's motives, with the central
Defendant's motion addresses only Plaintiff's FMLA retaliation claim, not her FMLA interference claim. Some of Defendant's arguments, however, apply to Plaintiff's interference claim, i.e., that Plaintiff was not entitled to FMLA leave because her claim that her doctor told her she would need additional surgery on her ankle was not supported by his medical notes, that Plaintiff notified her employer that she wanted short-term disability benefits for the time she anticipated she would be off for ankle surgery and recuperation but did not seek FMLA leave, that her employer never denied any FMLA request, and Defendant had a legitimate reason unrelated to Plaintiff's alleged exercise of her FMLA rights to discipline and terminate her. There is no dispute as to the first two elements of Plaintiff's prima facie FMLA interference claim, i.e., that Defendant is an employer under the FMLA, and Plaintiff was an eligible employee under the FMLA.
Taking the facts in the light most favorable to Plaintiff, she has created a factual dispute on the remaining elements of her prima facie FMLA interference claim, i.e., whether she was entitled to FMLA leave, whether she sought FMLA leave as well as short-term disability for the time she anticipated she would have to take off for additional surgery on her ankle and recuperation, whether her employer interfered with her attempt to exercise her FMLA rights in connection with her anticipated ankle surgery, and whether Defendant's discipline and termination were for a legitimate reason unrelated to Plaintiff's attempt to exercise her FMLA rights.
First, although Dr. Adelman's notes did not reflect in March or May 2010 that additional surgery on Plaintiff's ankle was scheduled or contemplated, Plaintiff testified otherwise and Dr. Adelman likewise testified that the conversation could have occurred because he does not document in his notes every conversation that he had with a patient otherwise he'd "be dictating all day." (Dr. Adelman Dep. at 31-32, 34, 36.) He admitted that "[t]here's a lot more discussion on stuff than is usually reflected in a note, so I mean, there's a strong possibility. If she said we did, I mean, I wouldn't be — I wouldn't doubt myself and say, `No, we absolutely didn't.'" (Dr. Adelman Dep. at 31-32.) When asked if, after Plaintiff's May 10, 2010 visit with him, "she was in a position to know that she needed a Family Medical leave for surgery at that time," Dr. Adelman responded "[i]f we had discussed it, you know, even though it's not documented, she may have looked into that, I'm sure." (Dr. Adelman Dep. at 35-36.)
Second, although disputed, Plaintiff testified that she repeatedly told both her supervisor, Ms. LeSage, and Ms. Lang in Human Resources that she anticipated that she would need time off from work for additional surgery on her ankle and for recuperation. Plaintiff presents evidence
To defeat Defendant's motion for summary judgment on her FMLA interference claim, "Plaintiff must also create a factual dispute" as to whether the interference with her attempt to exercise her FMLA rights "was based on a legitimate business reason." Romans v. Mich. Dep't of Human Servs., 668 F.3d 826, 841 (6th Cir. 2012). "If Defendant proffers such a justification, then Plaintiff may seek to rebut it by showing, among other things, that the excuse was insufficient to warrant the challenged conduct." Id. A plaintiff can do this "by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Grace v. USCAR, 521 F.3d 655, 670 (6th Cir.2008) (internal quotation marks and citation omitted).
Plaintiff presents evidence of two instances where she claims Defendant interfered with her attempt to exercise her FMLA rights in connection with anticipated surgery on her ankle: (1) Ms. Lang's refusal to clarify Plaintiff's right to short-term disability as opposed to just unpaid FMLA leave and her repeated assurances to Plaintiff that the FMLA form she had regarding time off for care of her mother-in-law was all she needed even though she also told Ms. Lang that she needed time off for her anticipated ankle surgery; and (2) her termination. As to the first instance, Defendant simply denies that Plaintiff ever asked for FMLA leave and thus denies that it ever interfered with any attempt on her part to exercise her FMLA rights. As discussed above, Plaintiff presents evidence showing that the facts are otherwise. Plaintiff also presents evidence
As to the second instance, Defendant proffers a legitimate business reason for her termination — that Plaintiff was insubordinate and belligerent during the May 17, 2010 counseling session when she received a written warning for the "outburst" Ms. LeSage claimed had occurred earlier that same day. Plaintiff, in response, presents evidence that creates a factual dispute as to whether the interference with her attempt to exercise her FMLA rights was based on a legitimate business reason. Considering the evidence in the light most favorable to Plaintiff, she shows that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct. The evidence Plaintiff presents creates a factual dispute as to whether her behavior in the call center on May 17, 2010 was sufficient to warrant a written warning; whether Plaintiff had an outburst in the call center of May 17, 2012 that was disruptive to her fellow call center workers and employees in other departments as described in her written warning, whether her behavior at the May 17, 2012 discipline meeting with Ms. LeSage and Ms. Lang warranted a departure from the progressive disciplinary steps outlined in Defendant's Employee Handbook (Def.'s Reply, Ex. P, Empl. Handbook at 13), whether her behavior in that meeting actually motivated Ms. Lang's decision to recommend that Plaintiff be immediately terminated, and whether Ms. Lang's decision was instead motivated by her bias against Plaintiff because she was disabled from her earlier ankle injury. (See generally Pl.'s Dep. testimony cited above; Co-worker deposition testimony cited above; and Def.'s Employee Handbook sections cited above.)
For the above reasons, Plaintiff's FMLA interference claim survives Defendant's motion for summary judgment. The Court now addresses Plaintiff's FMLA retaliation claim.
Plaintiff claims that she was retaliated against for attempting to exercise her FMLA rights when she received a written warning on May 17, 2010 and then terminated on May 18, 2010. Unlike FMLA interference claims, Defendant's motivation for disciplining and terminating her is relevant. "The central issue raised by the retaliation theory ... is whether the employer took the adverse action because of a prohibited reason or for a legitimate, nondiscriminatory reason." Seeger, 681 F.3d at 282 (internal quotation marks and citation omitted).
Because it is based on circumstantial, as opposed to direct evidence, Plaintiff's FMLA retaliation claim "is evaluated under the familiar McDonnell Douglas burden-shifting framework." Seeger, 681 F.3d at 283. "To establish a prima facie case of retaliation under the FMLA, [Plaintiff] must show that: (1) [s]he was engaged in statutorily protected activity; (2) [Defendant] knew that [s]he was exercising [her] FMLA rights; (3) [s]he suffered an adverse employment action; and (4) a causal connection existed between the protected FMLA activity and the adverse employment action." Id. "The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity." Id. (internal quotation marks and citation omitted).
Defendant's first two arguments are discussed above. Taking the facts in the light most favorable to Plaintiff, this Court reiterates that she has created a factual dispute as to these elements. The only element left to address is that requiring proof of a causal link between Plaintiff's protected FMLA activity and her discipline and termination. The Sixth Circuit's recent decision in Seeger is instructive. It held that "the nearness in time" between the plaintiff's exercise of FMLA rights and his termination — three weeks in Seeger — "suffices ... to meet the low threshold of proof necessary to establish a prima facie case of retaliatory discharge." Seeger, 681 F.3d at 283. The Seeger court acknowledged that the Sixth Circuit "`has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time, that close proximity is deemed indirect evidence such as to permit an inference of retaliation to arise.'" Id. (quoting DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir.2004) and citing additional Sixth Circuit decisions). The Seeger court concluded that the plaintiff had "shown causality by a preponderance of the evidence through close temporal proximity that is suggestive of retaliation." Id. The same is true here. Plaintiff testified that she last spoke about her need for time off for her anticipated ankle surgery and recuperation with Ms. Lang of Defendant's Human Resources Department on May 12, 2012, and was disciplined five days later on May 17, 2012 and fired six days later on May 18, 2012. Just as in Seeger, Plaintiff has "shown causality by a preponderance of the evidence through close proximity that is suggestive of retaliation." Id.
Taking the next step in the McDonnell Douglas analysis, it is not disputed that Defendant has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff — that she was insubordinate and belligerent during the May 17, 2012 meeting with Ms. LeSage and Ms. Lang where she was administered a written warning. The burden thus shifts to Plaintiff to present "adequate evidence demonstrating that [Defendant]'s proffered reason was a pretext for discrimination." Id. at 285. "`[A] reason cannot ... be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.'" Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphases and quotation marks omitted)).
Plaintiff claims that she has met her burden because she presents evidence demonstrating that Ms. LeSage's version of what happened on May 17th in the call center and Ms. Lang's and Ms. LeSage's versions of what happened on May 18th at the meeting where she was administered a written warning are false. Plaintiff also presents evidence that she claims demonstrates that the real reason for her discipline and termination was retaliation against her for attempting to exercise her FMLA rights, i.e., close temporal proximity between her protected activity and the adverse employment actions; that Ms.
Again, the recent decision in Seeger is instructive. It clarifies that, although temporal proximity may be enough to establish a plaintiff's prima facie case of FMLA retaliation, the burden is heavier to show pretext. "Unlike its role in establishing a prima facie case, the law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext." Id. at 285 (internal quotation marks and citation omitted). "A plaintiff may establish pretext by showing that the employer's proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action." Id. "`Whichever method the plaintiff employs, he always bears the burden of producing sufficient evidence from which the jury could reasonably reject [the defendant's] explanation and infer that the defendant [] intentionally discriminated against him.'" Id. (quoting Clark v. Walgreen Co., 424 Fed.Appx. 467, 474 (6th Cir.2011) (per curiam)).
Like the plaintiff in Seeger, Plaintiff here seeks to demonstrate pretext by showing that Defendant's proffered reasons for her written warning and termination have no basis in fact — that Defendant's explanation is "simply fabricated" and untrue. As previously observed by the Sixth Circuit, this is "`essentially an attack on the credibility of the employer's proffered reason ... [and] consists of showing that the employer did not actually have cause to take adverse action against the employee based on its proffered reason, and thus, that the proffered reason is pretextual.'" Id. (quoting Joostberns v. United Parcel Serv., Inc., 166 Fed.Appx. 783, 791 (6th Cir.2006) and omitting internal citation).
The Court's inquiry as to pretext must also consider the Sixth Circuit's adoption of the "honest belief rule," because "[w]here the employer can demonstrate an honest belief in its proffered reason, ... the inference of pretext is not warranted." Joostberns, 166 Fed.Appx. at 791. "`[A]n employer's proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made.'" Id. (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998)). The burden then shifts to the plaintiff "to demonstrate that the employer's belief was not honestly held." Id. "An employee's bare assertion that the employer's proffered reason has no basis in fact is insufficient to call an employer's honest belief into question, and fails to create a genuine issue of material fact." Id.
Because Plaintiff argues that Defendant's legitimate, nondiscriminatory reason for its adverse employment actions are fabricated and untrue, her argument is essentially an attack on the credibility of Defendant's reason and the honest belief
The plaintiff in Seeger had argued that his employer's investigation of his claimed need to remain on FMLA leave was inadequate and that he had always been a good and reliable employee. The Sixth Circuit rejected those arguments, as did the district court, because the Sixth Circuit does not require that an investigation of an employee be "optimal" before taking an adverse employment action, see id. at 286-87, and the issue whether the plaintiff "was a reliable employee with a good employment record" is not relevant to the court's application of the "honest belief" rule. Id. As the Seeger court clarified, "[t]he determinative question is not whether [the plaintiff] actually committed fraud [reason for termination], but whether [his employer] reasonably and honestly believed that he did." Id.
Applying that reasoning here, the determinative question is not whether Plaintiff actually had an outburst in the middle of the call center on May 17, 2010 that disrupted her co-workers and whether she was belligerent and insubordinate during her May 17th meeting with Ms. LeSage and Ms. Lang. Rather, the determinative question is whether Plaintiff's employer reasonably and honestly believed that Plaintiff was disruptive in the call center on May 17th and belligerent and insubordinate during the discipline meeting held later that day.
Unlike in Seeger, this Court cannot say that the record reflects that Defendant made a reasonably informed and considered decision before terminating Plaintiff. Rather, Plaintiff presents evidence that calls into question whether Ms. LeSage's decision to pursue a written warning related to Plaintiff's "disruptive behavior" in the call center on May 17th was reasonably informed. Although the parties present the Court with deposition testimony from six of Plaintiff's co-workers, many of whom testified that Plaintiff was upset about the mandatory nature of the September meeting, only one testified that she found Plaintiff's discussion with Ms. LeSage about that meeting to be disruptive. (Pl.'s Resp., Ex. C, Deps. of A. Stephenson, D. Trent, D. Arquette, W. Zografos; Def.'s Reply, Exs. M and N, Deps. of V. Alexandris and M. Azarovitz.) Co-worker Vasiliki Alexandris found Plaintiff's conversation with Ms. LeSage to be upsetting to her because she believed that "[w]hen it's mandatory, you have to go," and because she believed it was wrong to "have someone talking against the company that gives you your daily bread and
(V. Alexandris Dep. at 10.) Apparently, Ms. LeSage's decision to obtain a written warning against Plaintiff for being disruptive to her co-workers was not informed by any co-worker interviews.
Even if the decision to issue a written warning could be found to be the result of a reasoned and honest belief, Plaintiff presents additional evidence that creates a factual dispute whether the decision to terminate was reasonably informed and worthy of credence.
As to the May 17th decision to terminate, Plaintiff presents the following evidence suggesting that it was not a reasonably informed and considered decision. Deposition testimony reveals that, immediately after the May 17th meeting where Plaintiff's written warning was administered, Ms. Lang and Ms. LeSage agreed that Plaintiff should be fired because her conduct during that meeting was "very un-businesslike" and thus "insubordinate." (LeSage Dep. at 28-31.) Ms. LeSage and Ms. Lang then went to Ms. LeSage's manager, Craig Larson, and told him about the meeting and their conclusions. Ms. Lang and Mr. Larson then went to Defendant's CEO, Thomas Reagan, and told him that they felt Plaintiff's actions were insubordinate and that they wanted her terminated. (Lang Dep. at 25.) Without ever asking Plaintiff about that meeting or conducting any investigation, Defendant's CEO simply agreed with the decision to terminate Plaintiff the next day. Plaintiff testified that, when she was terminated on May 18th, she was only told that she was no longer an adequate fit for Defendant Telcom Credit Union. She did not understand why she was being terminated on May 18th when the written warning she had received the day before stated that she would be fired if there were further occurrences and there were none. (Pl.'s Dep. at 24-26, 90-91.) Plaintiff also presents evidence that suggests Defendant did not have an "honest belief" that she was insubordinate but rather knew Plaintiff was attempting to go out on an extended FMLA leave after surgery on her ankle and simply decided to retaliate and terminate her rather than allow her to do so. This takes Plaintiff's proofs far outside those presented by the Plaintiff in Seeger. Viewing the evidence in the light most favorable to Plaintiff, this Court cannot conclude that Defendant made a "reasonably informed and considered decision" before it disciplined and then terminated Plaintiff. Plaintiff here, unlike the plaintiff in Seeger, has presented evidence to allow a reasonable jury to conclude that Defendant's decision-making process was not worthy of credence.
Based on the above analysis, Plaintiff has created a genuine issue of material fact regarding whether Defendant retaliated against her for attempting to exercise her FMLA rights. Plaintiff's FMLA retaliation claim thus survives Defendant's motion for summary judgment.
Plaintiff also claims that Defendant violated Michigan's Persons With Disabilities Civil Rights Act ("PWDCRA") when it disciplined and terminated her because of her disability. Defendant's motion for summary judgment argues that Plaintiff cannot establish a prima facie case under the PWDCRA because Plaintiff cannot show
"[L]ike the ADA, the PWDCRA generally protects only against discrimination based on physical or mental disabilities that substantially limit a major life activity of the disabled individual, but that, with or without accommodation, do not prevent the disabled individual from performing the duties of a particular job." Peden v. City of Detroit, 470 Mich. 195, 680 N.W.2d 857, 863 (2004). To establish a prima facie case under the PWDCRA, Plaintiff must show that (1) she is disabled "as defined in the act," (2) that her disability "is unrelated to [her] ability to perform [her] job duties, and (3) that [s]he has been discriminated against in one of the ways delineated in the statute." Id. (internal quotation marks and citation omitted). Plaintiff's ability to establish each of these elements in challenged by Defendant.
As to the first two elements, "[d]isability" as defined in the PWDCRA, means "`[a] determinable physical or mental characteristic of an individual ... if the characteristic: (A) ... substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position ...', (ii) `[a] history of [such a] determinable physical or mental characteristic ...'; or (iii) `[b]eing regarded as having [such a] determinable physical or mental characteristic....'" Id. (quoting Mich. Comp. Laws § 37.1103(1)(i)). "`Unrelated to the individual's ability' means, with or without accommodation, an individual's disability does not prevent the individual from ... performing the duties of a particular job or position.'" Id. (quoting Mich. Comp. Laws § 37.1103(1)(i)).
Michigan has adopted a three-pronged test used by the federal courts in ADA cases when determining whether a plaintiff has a disability. First, the court is to consider whether the plaintiff has a physical impairment. Next, it identifies the life activity that the plaintiff is relying upon and determines whether it is a major life activity. Finally, the court asks whether the plaintiff's physical impairment "substantially limited the major life activity." Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 606 N.W.2d 398, 406 (Mich.1999).
Despite Defendant's arguments to the contrary, Plaintiff presents evidence of a history of and a current physical impairment to her ankle that has substantially limited her major life activities like walking, running, climbing stairs, pushing, lifting, standing for prolonged periods of time, and sitting for prolonged periods of time. (Pl.'s Dep. at 37, 87, 95-97; Dr. Adelman's Dep. at 24-29.) Despite her ankle impairment, Plaintiff's supervisor, Ms. LeSage, testified that Plaintiff's physical difficulties did not interfere with her job performance. (LeSage Dep. at 15-17.) Taking the facts in the light most favorable to Plaintiff, she has created a factual dispute on the first element of her prima facie PWDCRA claim.
As discussed above, Plaintiff also presents ample evidence that Ms. LeSage and Ms. Lang knew about her ankle disability. She also presents some evidence that Mr. Larson and Mr. Reagan also knew or should have known about her ankle disability. (Pl.'s Aff. at ¶¶ 15-16; Pl.'s Dep. at 16; Lang Dep. at 26.)
In addition to evidence as to who knew or should have known of her disability, Plaintiff presents evidence that Ms. Lang and Ms. LeSage were involved in the
Defendant also argues that Plaintiff cannot show that the legitimate, nondiscriminatory reason it gave for disciplining and terminating her was pretext for unlawful discrimination. For all the reasons discussed above, viewing the evidence in the light most favorable to Plaintiff, she has created a genuine issue of material fact regarding whether Defendant discriminated against her because of her disability in violation of the PWDCRA. Plaintiff's PWDCRA claim thus survives Defendant's motion for summary judgment.
In Count III of her complaint, Plaintiff asserts that Defendant violated Michigan's public policy when it wrongfully terminated her in retaliation for attempting to exercise her FMLA rights. In its motion, Defendant relies on a recent decision from this Court that dismissed a similar claim and persuasively argues that this claim cannot survive "if there is already a statutory remedy covering a particular public policy concern." Muray v. Dawn Foods, No. 09-cv-12160, 2010 WL 4063731, *1 n. 1 (E.D.Mich. Oct. 14, 2010) (Murphy, J.) (granting the defendant's motion for summary judgment as to the state-law wrongful termination claim "[b]ecause the ADA covers the filed of disability discrimination" and citing cases). Plaintiff's Response does not address this claim; and at the June 13, 2012 hearing, Plaintiff's counsel informed the Court that this claim was being abandoned. Accordingly, Defendant's motion is GRANTED as to this claim.
For the above stated reasons, Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN
