Opinion
No. 352723
11-19-2020
RONALD HARING, Plaintiff-Appellant, v. CENTRAL COUNTY TRANSPORTATION AUTHORITY, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court
LC No. 2019-000193-CD Before: BOONSTRA, P.J., and CAVANAGH and BORRELLO, JJ. PER CURIAM.
In this employment dispute involving the Family Medical Leave Act, 29 USC 2601 et seq. (FMLA), plaintiff appeals as of right the trial court's order denying plaintiff's motion for summary disposition and granting defendant Central County Transportation Authority's (CCTA) motion for summary disposition pursuant to MCR 2.116(C)(10). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arises out of the termination of plaintiff's employment as a bus driver with the CCTA in April 2018.
A. PLAINTIFF'S HISTORY OF FMLA LEAVE
Plaintiff received approval to use intermittent FMLA leave in 2015. In the fall of that year, plaintiff applied to the CCTA requesting intermittent FMLA leave based on plaintiff's medical conditions that included anxiety, panic disorder, depression, and incontinence issues that could be triggered by plaintiff's anxiety. Plaintiff's FMLA request was approved. According to the accompanying form completed by plaintiff's healthcare provider, plaintiff required one to three eight-hour days of leave per month for his condition. The form also indicated that plaintiff's condition was one that would "cause episodic flare-ups periodically preventing the employee from performing his/her job functions." The frequency of the flare-ups was listed as one to three times per month, with each episode lasting approximately eight hours. The probable duration of the condition was "Lifetime."
Yvonne Thrash, the Deputy Director of Operations for the CCTA, testified in her deposition that once an employee submits the paperwork from the employee's doctor indicating that the employee needs FMLA leave, the policy is to defer to the doctor's judgment. Thrash indicated that she does not seek additional information or question the doctor's conclusion that FMLA leave is necessary. All CCTA employees approved for FMLA leave must recertify twice per year in order to maintain their approval status.
Plaintiff testified that after getting his FMLA leave approved, he typically used three days of leave—the maximum amount of monthly FMLA leave that he was allowed—each month. To use his FMLA leave, plaintiff was required to report his need to use leave to dispatch "as soon as reasonably possible." He never requested leave in advance or scheduled his leave because his medical issues were of a type that could "come on in an instant." Eventually, his symptoms began to get worse and plaintiff needed a greater amount of monthly FMLA leave.
In May 2016, plaintiff submitted another form to continue his eligibility for intermittent FMLA leave, based on essentially the same medical conditions and symptoms. However, his healthcare provider indicated on this form that plaintiff required leave two to three "times" per month.
Plaintiff submitted another form to continue his eligibility for intermittent FMLA leave on January 23, 2018, based on the same underlying health conditions. The CCTA approved this FMLA request. Plaintiff's healthcare provider indicated on the submitted form that plaintiff required leave for his periodic flare-ups "2-4x" per month, with each episode lasting "8 hours or 2-4 day(s)." Plaintiff testified that he understood this document to have allowed him to take "up to five days" of leave per month as long as he obtained a written note from his doctor if he needed more than four days of leave in a month.
Thrash testified that it was CCTA policy not to deny FMLA leave to an employee who exceeded the amount of leave allotted by the employee's doctor but that if an employee began "to form a pattern" of exceeding their allotted monthly leave, the employee was required to obtain updated information from the employee's doctor regarding the amount of FMLA leave that was necessary. Thrash testified that no employee, including plaintiff, had been denied FMLA leave under her supervision, which dated back to 2012.
B. PLAINTIFF'S DISCIPLINARY RECORD AT THE CCTA
Plaintiff had a significant history of workplace discipline during his employment at the CCTA.
Plaintiff's 2015 annual performance evaluation indicated that plaintiff "NEED[ED] IMPROVEMENT" in the areas of "Follows Metro Transit operating procedures" and "Problem solving ability." Specifically, the evaluation documented plaintiff's "Disrespect to a supervisor in manner, speech or otherwise" and that plaintiff "needs to improve avoiding conflict with his co-workers." Plaintiff, in his deposition, did not seem to recall any specific incidents that would have prompted this comment on his review. However, he indicated that the dispatchers could sometimes be "irritable" toward him, particularly dispatchers Terecita Potts and Larry Zuiderveen.
Plaintiff's 2016 performance evaluation indicated that his problem-solving ability was "NOT ACCEPTABLE" and documented the existence of two "co-worker incidents," although there was no description of the nature of these incidents. The performance evaluation also documented a two-day suspension that appears to be related to attendance issues noted on the evaluation, although the precise reason for this suspension is unclear.
Plaintiff's most recent annual performance evaluation from 2017 documented that plaintiff had been given a "5-Day suspension for assaulting another person on employer's time or premises," a "Suspension" for being "Rude to supervisor in the dispatch area," and a "1 Day suspension [for] Violation of personal conduct rule" and "Insubordination." Although the 2017 performance evaluation does not include further information about these incidents, the lower court record contains additional evidence with more specific details about various workplace discipline incidents involving plaintiff in 2017.
First, with respect to the five-day suspension for assault, plaintiff did not provide a date for the incident, although he testified that the underlying incident involved him "tapping" or "patting" a coworker on the shoulder while he was talking to her.
Next, turning to the incidents with specific dates attached, plaintiff was involved in a dispute with his supervisor on January 26, 2017, about the bus he had been assigned to drive that resulted in plaintiff being disciplined for insubordination. Plaintiff testified in his deposition that he was assigned to drive a bus that day with a seat that bothered his tailbone and back. Plaintiff had apparently made the CCTA dispatch office aware that this particular type of seat, with which several of the CCTA's buses were equipped, caused plaintiff pain in his tailbone and back. Plaintiff was assigned a different bus, but this bus was having mechanical issues evidenced by a continuous check engine light with alarm. Another bus was going to be assigned to plaintiff as a result. However, according to plaintiff, he spoke to dispatcher Zuiderveen about Zuiderveen "assigning me buses that he knew I didn't like to drive because they hurt my back." According to the discipline letter regarding the incident, plaintiff complained about the first bus he was assigned in a "combative manner" and claimed that he was purposely assigned a "bad bus." The letter further indicated that plaintiff had stated that he would take the matter to court and that plaintiff had angrily claimed to have been mistreated with respect to his bus assignments after reporting the issues with the second bus.
Thrash testified that plaintiff had been sent to "our physician" for this issue and that there was a medical recommendation that plaintiff use a "wedge" to alleviate the seat problem. The CCTA offered to purchase a wedge for plaintiff, but he declined. Thrash also explained that there was no system in place that allowed drivers to choose a bus to drive, that buses were assigned based on the needs of each route, and that if a driver was unable to drive the equipment provided due to a health concern, then that driver would be on medical leave.
Following the issue with the second bus, plaintiff requested to use FMLA leave. Plaintiff testified that as a result of the conversations with Zuiderveen that morning, "my anxiety was really starting to peak and bother me, and I was afraid I would have an issue with my bowels, so I told Larry [Zuiderveen] that I needed to be relieved, FMLA, because I was quite upset at what I perceived that he was doing to me." The discipline letter described plaintiff's FMLA leave request as follows:
You called back and said you were requesting a relief under terms of FMLA. I told you I had some more drivers that needed to report, so I needed you to pull a trip and then we would see about getting you a relief. You responded that you were sorry but he [sic] could not do that. You had reported out FMLA. You were relieved and instructed to see dispatch.
When you reported to dispatch your behavior was disrespectful and accusatory. The mechanical difficulty necessitated a change up to a bus you did not like. You used FMLA as your reason, for refusing to pull after being directed to do so, even for one trip, an act of insubordination, and you refused to indicate how your FMLA issue related to the situation.
Further details regarding this incident are contained in an unsigned report that plaintiff submitted with his motion for summary disposition and that Thrash testified was actually written by Zuiderveen as his summary of the incident. In this unsigned report, Zuiderveen indicated that he attempted to accommodate plaintiff's bus request using the buses that were available despite being the object of plaintiff's "accusations and threats." Zuiderveen also indicated that his review of bus video after the incident revealed that plaintiff had misrepresented the nature of the mechanical issue with the second bus he was assigned. With respect to Zuiderveen telling plaintiff that he needed plaintiff to "pull a trip" before being relieved under the FMLA due to a lack of available drivers, Zuiderveen explained in his unsigned report that he "considered giving [plaintiff] a direct order to continue in route" when plaintiff refused to continue with his route but nonetheless relieved plaintiff with a substitute driver because he thought it would be unsafe to allow plaintiff to drive in his agitated state. Zuiderveen further explained that he instructed plaintiff to report back to dispatch and that Zuiderveen needed more information about plaintiff's FMLA request to understand the need for the absence and to determine whether proper procedures were followed. Plaintiff reasserted his request for FMLA leave and indicated that Zuiderveen could not ask him further questions. Zuiderveen's report concluded as follows:
[Plaintiff's] behavior through[out] this incident was disrespectful, accusatory, intimidating and threatening. He did not make polite requests; instead he made false accusations based on his faulty assumptions regarding my work and motives in dispatching buses. He continued to use accusations, and threats i.e. "see you in court" to attempt to get me to assign him a bus of his choosing instead of dispatching according to the current buses available. When the mechanical difficulty necessitated a change up to a bus he did not like he refused to work or even pull one trip. He used FMLA as his reason, with[out] indicating how his FMLA issue related to the situation.
Plaintiff's actions during this incident were determined to constitute insubordination in violation of work rules, and plaintiff received a one-day suspension. Thrash further testified about the discipline report related to this incident, stating that it indicated that plaintiff was suspended because he "refused directive to pull route for one trip" and disrespected his supervisor. According to Thrash, the incident was categorized as relating to "personal conduct," the disciplinary action was premised on plaintiff's disrespect toward his supervisor, and the disciplinary action "had nothing to do with FMLA." However, plaintiff testified that this particular suspension was "cancelled" and never took place.
Thrash also explained that the immediate supervisors, which at that time included Zuiderveen, did not know the "intimate details" about why any particular employee was approved for FMLA leave. The immediate supervisors were only responsible for monitoring the amount of FMLA time used by the employees, and they were not supposed to ask questions about employees' medical needs. In her affidavit, Thrash clarified that she was the CCTA employee responsible for both approving FMLA leave use by employees and making disciplinary decisions. Thrash also averred that with respect to the January 26, 2017 incident specifically, plaintiff's requested FMLA leave use was approved, that no discipline was imposed on him in connection with his FMLA use, and that she imposed discipline on plaintiff for the January 26, 2017 incident specifically "because of his insubordinate behavior towards his supervisor, wherein [plaintiff] acted and conducted himself in a manner which violated CCTA workplace policies" and "because of [plaintiff's] disrespectful, hostile, and insubordinate behavior toward his supervisor."
Next, a letter from the CCTA to plaintiff that was dated July 27, 2017, indicated that a CCTA investigation established that on July 6 and 14, 2017, plaintiff "interacted with Terecita Potts, [plaintiff's] immediate supervisor, in a manner that was disrespectful, harassing and/or threatening." The letter does not contain further information about the July 6 incident, but it describes the July 14 incident as follows:
You were observed by management staff while interacting with Ms. Potts on July 14, which in turn caused that employee to fear for Ms. Potts's safety and to remain nearby out of sight to come to her aid if needed. On July 14 you also misrepresented Rob Branch's communications with you regarding changing buses for the route you were scheduled to drive. You misrepresented his statements in your interactions with Ms. Potts to obtain the bus of your choosing.
Plaintiff believed that this incident referred to a time when he spoke to Branch about changing buses because the bus he had been assigned was one that plaintiff knew would hurt his back due to the type of driver's seat in that bus. According to plaintiff, Branch had given him permission to be assigned a different bus by stating that "[a]s long as Terecita [Potts] doesn't mind, I don't mind." Plaintiff testified, "I went back and told Terecita that Rob said he didn't mind if you didn't mind, and then Terecita got all upset and started pacing back and forth in the office, picked up a stack of papers and slammed 'em down on the desk and then told me that I needed to go back and get written approval from Rob Branch." Plaintiff maintained that he did not misrepresent Branch's statements. Plaintiff did not obtain written permission from Branch because he had apparently left his office by this point. Plaintiff did not remember much else about his conversation with Potts other than that he asked her why she had assigned him that bus, that she was very upset, and that he was "[p]ossibly a little bit" upset. He requested to use FMLA leave following this incident because he was "very upset" and his "anxiety was peaking because [he] knew what she was doing was intentional."
In the written description of this incident created by Potts, she confirmed that she told plaintiff he needed notification from Branch in order to change the bus assignment, and she indicated that she maintained the original bus assignment when she was unable to successfully contact Branch because there were "no issues" with the operation of the bus that was assigned. Potts replaced plaintiff with a substitute driver when he requested to use his FMLA leave. Potts further wrote, "I would like to add that [plaintiff] had what I would describe as a crazy look in his eyes. He made me feel unsafe and was frightening today. The look in his eyes was very scary."
According to plaintiff, he was involved in a subsequent meeting regarding this incident and Branch "recanted" what he had told plaintiff that day. Plaintiff received a two-week disciplinary suspension as a result of his interactions with Potts and his misrepresentation of Branch's statement, which were determined to constitute violations of various workplace rules. The disciplinary letter further noted that plaintiff had been disciplined five times within three years, including recent one-day and one-week disciplinary suspensions. The letter also warned plaintiff that further misconduct would not be tolerated and that subsequent rule and policy violations would subject him to more severe disciplinary action that could include termination of employment. Thrash averred with respect to the July 14, 2017 incident that plaintiff's requested use of FMLA leave was approved; that no discipline was imposed on him for his FMLA use; and that she assessed discipline against plaintiff for this incident because of his violation of workplace policies and "disrespectful, threatening, and insubordinate behavior toward his supervisor."
C. PLAINTIFF'S TERMINATION
On April 18, 2018, plaintiff was proceeding with his route when he noticed problems with the brakes and front door on the bus he had been assigned. He reported the problems to dispatcher Candace Marshall and requested a new bus. Marshall informed him that he would receive a service call. Plaintiff waited for a service technician, but nobody arrived before his next route was scheduled to start and plaintiff had to begin his route again.
Although plaintiff's deposition transcript uses the spelling "Candace," plaintiff's brief on appeal uses the spelling "Kandeiss."
Plaintiff became very upset and anxious since the bus continued to malfunction. He requested to use FMLA leave due to his anxiety, although he had already used four consecutive days of FMLA leave at some point earlier in the month. After another driver relieved plaintiff due to his FMLA request that day, plaintiff went to the dispatch office. Marshall informed him that he needed to obtain a note from his doctor because this was his fifth day of FMLA leave that month. Plaintiff testified that he was upset about the situation with the bus and that he thought Marshall was upset. Potts also came into the dispatch office and relayed the same information to plaintiff.
As this information was being given to plaintiff, he became upset, accused Marshall and Potts of "playing these bus games" that were "ridiculous," refused to listen to Marshall and Potts, and walked away as Potts was giving him a direct order to be quiet so the information could be given to him. Plaintiff testified that he did not hear anybody tell him to stop as he was walking away. Plaintiff returned shortly thereafter and told Potts and Marshall that they were "really bad" and that he did not understand why they were "doing this." Thrash testified that the CCTA accepted a note from plaintiff's doctor for this day and granted his FMLA leave request.
A meeting regarding the incident was held on April 20, 2018. According to Thrash, the meeting was "based on [plaintiff's] interactions with his supervisors that did not pertain to FMLA." Plaintiff testified that Thrash told him that he was being charged with insubordination for walking away from Potts. Plaintiff further testified that Thrash did not indicate that plaintiff's insubordination was based on his use of FMLA leave. Thrash testified that plaintiff admitted that he was insubordinate, but plaintiff testified that he never made such an admission. Plaintiff was placed on administrative leave pending the conclusion of the investigation.
In a letter dated April 24, 2018, the CCTA terminated plaintiff's employment. The letter stated that the CCTA's investigation had established that plaintiff had acted in an insubordinate manner toward his supervisors during the April 18 incident. The letter explained the decision to terminate plaintiff's employment as follows:
The CCTA considers your misconduct to be extremely serious, particularly in view of your history of previous discipline. That history includes, but is not limited to, a one-day suspension for insubordination (January 26, 2017); another one-day suspension for insubordination (February 3, 2017); a one-week suspension for improper physical contact with a coworker (May 12, 2017); and a two-week suspension for insubordination (July 26, 2017). In the latter disciplinary action you were expressly warned that the CCTA could not and would not tolerate any further misconduct and that any future violations of CCTA rules or policies would subject you to more severe disciplinary action, up to and including termination from employment. Despite this warning your improper behavior has continued and the CCTA has lost all confidence in your ability to comply with its policies and rules.
After considering all of the relevant circumstances, the CCTA has decided to terminate your employment effective immediately.
Thrash testified in her deposition that the two one-day suspensions on January 26, 2017, and February 3, 2017, listed in the letter actually referred to a single disciplinary event and that this event was mistakenly listed twice.
Thrash also explained the termination decision as follows in her affidavit:
After the April 18, 2018 incident [plaintiff] ultimately had his employment terminated by me on April 24, 2018 due to [plaintiff's] repeated insubordinate behavior, consistent pattern of misconduct, poor disciplinary record, and inability to comply with CCTA's policies and rules. [Plaintiff's] employment was not terminated in any way connected to his FMLA use, but rather in connection with his persistent insubordinate behavior.
Following plaintiff's termination, a grievance was filed and the matter eventually proceeded to arbitration where the arbitrator ruled in favor of the CCTA and denied the grievance. The arbitrator concluded that plaintiff's actions during the April 18 incident could fairly be characterized as insubordinate and disrespectful to Potts and that, in light of plaintiff's poor disciplinary record, the CCTA had just and proper cause to terminate plaintiff's employment.
Additionally, plaintiff acknowledged in his deposition testimony that he was never told that any of his charges of insubordination were based on his use of FMLA leave, that he was never told that he was terminated because of his FMLA leave use, and that he believed that he was "probably" terminated because of his insubordination.
D. TRIAL COURT PROCEEDINGS
Plaintiff initiated the instant litigation by way of a two-count complaint alleging FMLA interference and FMLA retaliation. The parties eventually filed competing motions for summary disposition under MCR 2.116(C)(10). The CCTA argued that there was no genuine issue of material fact that plaintiff's rights under the FMLA had not been violated. The CCTA maintained that plaintiff had never been denied FMLA leave and had been disciplined for repeated insubordination and disrespectful conduct toward his supervisors, not for his FMLA use. Further, the CCTA argued that plaintiff was terminated because of this workplace misconduct and not because of his FMLA use. Plaintiff argued the CCTA violated the FMLA by disciplining and discharging him based on his use of FMLA leave thereby denying him a return to his prior terms and conditions of employment. Plaintiff also argued that the CCTA improperly requested further medical information from him regarding his FMLA leave on April 18, 2018, and unlawfully retaliated against him for engaging in the protected activity of opposing this request by terminating his employment.
The CCTA also moved for summary disposition under MCR 2.116(C)(7). The trial court denied the CCTA's motion under (C)(7), and this ruling has not been challenged on appeal. Thus, the issue is not before this Court and we do not discuss it further.
The trial court granted the CCTA's motion for summary disposition under MCR 2.116(C)(10) and denied plaintiff's motion for summary disposition. The trial court determined that plaintiff had successfully established a prima facie case of FMLA interference or retaliation, that the CCTA had successfully met its burden of establishing a legitimate reason for plaintiff's discipline and termination in the form of plaintiff's record of insubordination, and that there was no evidence in the record to support a conclusion that the CCTA's reason was a pretext. Plaintiff now appeals as of right.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). When deciding a motion for summary disposition under MCR 2.116(C)(10), a trial court must "consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion." Id. at 164. Summary disposition is appropriate if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. ANALYSIS
A. THE FMLA
"The FMLA entitles an eligible employee to as many as twelve weeks of leave during any twelve-month period if the employee has a 'serious health condition that makes the employee unable to perform the functions of the position of such employee.' " Hoge v Honda of America Mfg, Inc, 384 F3d 238, 243 (CA 6, 2004), quoting 29 USC 2612(a)(1)(D). Such leave may be taken on an intermittent basis, subject to certain conditions. 29 USC 2612(b)(1). "The term 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 USC 2611(11). With the exception of certain highly paid employees, "any eligible employee who takes leave under section 2612 . . . for the intended purpose of the leave shall be entitled, on return from such leave—(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 USC 2614(a)(1).
"[R]eview by this Court of the federal law regarding this federal statute is proper." Smith v Goodwill Indus of West Mich, Inc, 243 Mich App 438, 443; 622 NW2d 337 (2000). This Court may rely on decisions of the federal courts of appeals as persuasive authority, although such decisions "are not binding on state courts." Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 (2004). When "faced with conflicting decisions of lower federal courts," this Court may "choose the view which seems most appropriate . . . ." Id. at 606 (quotation marks and citation omitted).
However, 29 USC 2614(a)(3)(B) specifically provides that "[n]othing in this section shall be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." Additionally, "[a]n employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting that request." Arban v West Publishing Corp, 345 F3d 390, 401 (CA 6, 2003) (quotation marks and citation omitted). "An employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave." Arban, 345 F3d at 401.
An FMLA claim may be based on either of two theories of recovery: the " 'entitlement' or 'interference' theory," which is derived from 29 USC 2615(a)(1), or the " 'retaliation' or 'discrimination' theory," which is derived from 29 USC 2615(a)(2). Arban, 345 F3d at 400-401; see also Hoge, 384 F3d at 244.
The burden-shifting framework established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable to both types of claims under the FMLA. Donald v Sybra, Inc, 667 F3d 757, 761-762 (CA 6, 2012); see also Smith v Goodwill Indus of West Mich, Inc, 243 Mich App 438, 443-445; 622 NW2d 337 (2000). Under this framework, if the employee demonstrates a prima facie case of the claim, the burden shifts to the employer to "articulate a legitimate, nondiscriminatory reason" for discharging the employee. Skrjanc v Great Lakes Power Serv Co, 272 F3d 309, 315 (CA 6, 2001). Next, if the employer articulates a legitimate reason, then it is the employee's burden to show that the articulated reason is actually a pretext. Id. An employee may satisfy this burden of showing pretext by presenting evidence tending to show that the employer's "proffered reason for his discharge was false." Id. at 316. Additionally, "[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." Seeger v Cincinnati Bell Tel Co, LLC, 681 F3d 274, 285 (CA 6, 2012).
Although this is the rule adopted by the Sixth Circuit, other federal courts have taken a different approach to FMLA interference claims. See, e.g., Metzler v Fed Home Loan Bank of Topeka, 464 F3d 1164, 1180 (CA 10, 2006) (holding that the McDonnell Douglas framework does not apply in the context of FMLA interference claims); Kohls v Beverly Enterprises Wisconsin, Inc, 259 F3d 799, 804-805 (CA 7, 2001) (outlining a framework for FMLA interference claims, which appears to be functionally similar to the McDonnell Douglas framework but does not explicitly rely on McDonnell Douglas, where (1) the employee must first show by a preponderance of the evidence that the employee was entitled to the claimed benefit, (2) the employer may respond by presenting evidence that the employee would not have been entitled to remain in the employee's position of employment even if the employee had not taken FMLA leave, (3) and the employee retains the burden of establishing the right to the claimed benefit and overcoming the employer's assertion that the employee would have been discharged even if the employee had not used FMLA leave). Nonetheless, we would affirm the trial court's ruling granting summary disposition in favor of the CCTA on plaintiff's interference claim under any of these standards because there is no genuine issue of material fact that the CCTA terminated plaintiff's employment on the basis of circumstances other than the use of FMLA leave, namely plaintiff's documented record of workplace misconduct and insubordination, and that plaintiff's employment would have been terminated for such misconduct regardless of his use of FMLA leave. See, e.g., Edgar v JAC Prod, Inc, 443 F3d 501, 508 (CA 6, 2006) ("[I]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct."); Metzler, 464 F3d at 1180 ("[A]n employee may be dismissed, preventing her from exercising her statutory right to FMLA leave [or reinstatement after leave] . . . if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave.") (second alteration and ellipsis in original).
B. FMLA INTERFERENCE
Regarding the interference theory of recovery under the FMLA, 29 USC 2615(a)(1) provides that it "shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." "To prevail on a claim for violation of an employee's prescriptive rights under § 2615(a)(1), the plaintiff need not show that he was treated worse than other employees, just that he was denied an entitlement under the Act." Hoge, 384 F3d at 244. "The 'entitlement' or 'interference' theory is derived from the FMLA's creation of substantive rights. If an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred." Arban, 345 F3d at 401. "An employer may violate § 2615(a)(1) regardless of the intent behind its conduct." Hoge, 384 F3d at 244. Thus,
[t]he issue is simply whether the employer provided its employee the entitlements set forth in the FMLA—for example, a twelve-week leave or reinstatement after taking a medical leave. Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer. [Arban, 345 F3d at 401 (quotation marks and citation omitted).]
However, the manner in which an FMLA interference claim is framed by the parties may nonetheless make the employer's intent applicable: "once one of the parties raises the issue of whether a right, benefit, or position is one to which the employee would have been entitled had the employee not taken the leave or whether the employer has taken adverse action against the employee for having exercised an FMLA right, the question of intent may become relevant." Smith, 243 Mich App at 445-446 (quotation marks and citation omitted).
An FMLA interference claim requires the employee to establish (1), that the employee "was an eligible employee," (2) that the employer "is a covered employer," (3) that the employee "was entitled to leave under the FMLA," (4) that the employee gave the employer "notice of [the] intent to take leave," and (5) that the employer "denied [the employee] FMLA benefits or interfered with FMLA rights to which [the employee] was entitled." Hoge, 384 F3d at 244. "[I]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled." Donald, 667 F3d at 761.
In this case, there appears to be no dispute that the first four elements of plaintiff's interference claim were satisfied. Hence, the issue raised in this case centers on the fifth element. Plaintiff argues that the CCTA denied him his right under 29 USC 2614(a)(1) to be restored to his position upon return from FMLA leave by terminating his employment. Plaintiff maintains that his employment would not have been terminated if he had not used FMLA leave. The CCTA argues that plaintiff was not denied any right under the FMLA because he was always approved for FMLA leave whenever he requested it, plaintiff was never disciplined based on his use of FMLA leave, and plaintiff was only disciplined as a result of his insubordinate and disrespectful conduct toward his supervisors.
The record reveals no dispute that plaintiff had a documented history of conflict with his supervisors that included making combative, threatening, and, disrespectful remarks to them. There was also undisputed evidence that plaintiff was disciplined and suspended from work on multiple occasions for insubordination, assault, and violating workplace rules. This record establishes a clear history of plaintiff's workplace misconduct. The final incident occurred on April 18, 2018, when plaintiff was again found to be insubordinate toward his supervisors. It is also undisputed that during this incident, plaintiff refused to listen to his supervisors and walked away from them contrary to a direct order by Potts. Following this incident, plaintiff's employment was terminated in a letter signed by Thrash. The termination letter relied on plaintiff's history of previous discipline, which included suspensions for insubordination and improper physical contact with a coworker, in justifying the decision to terminate plaintiff's employment on the basis of the most recent April 18 incident of subordination.
It is important to note that plaintiff does not contend his employment could not have been terminated for such workplace misconduct had there not been any FMLA leave request. Nor does plaintiff contend that his conduct was not insubordinate. Instead, plaintiff argues that his employment would not have been terminated if he had not taken FMLA leave because the communication during which he was insubordinate would not have occurred. In making such an argument, plaintiff mistakenly presumes that the mere fact he requested to use his FMLA during (or immediately preceding) the same incident in which he was also insubordinate and disrespectful to his supervisors automatically means that his employment was terminated based on his use of FMLA leave.
While the timing of the termination decision in relation to plaintiff's use of FMLA leave could permit the inference that plaintiff's employment would not have been terminated if he had not used FMLA leave, see Arban, 345 F3d at 402 (" '[T]he timing of this decision could lead a fact finder to infer that the employee would not have been fired absent her taking of leave (if, for example, a supervisor who had been aware of problems with an employee did not decide to fire the employee until she took leave, and the supervisor based the firing on the incidents of which the employer had already been aware).' "), quoting Kohls v Beverly Enterprises Wisconsin, Inc, 259 F3d 799, 806 (CA 7, 2001), here, the inference does not apply because the CCTA submitted evidence that plaintiff's discipline and eventual termination were based on plaintiff's workplace misconduct and insubordination. An arbitrator also concluded that it was fair to characterize plaintiff's conduct during the April 18 incident as insubordinate and disrespectful and that the CCTA had just cause for terminating plaintiff's employment in light of plaintiff's poor disciplinary record. "[I]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." Edgar v JAC Prod, Inc, 443 F3d 501, 508 (CA 6, 2006). As previously stated above, "[a]n employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave." Arban, 345 F3d at 401. The CCTA articulated a legitimate reason, supported by record evidence, for lawfully terminating plaintiff's employment that was distinct from plaintiff's exercise of FMLA rights and that demonstrated that plaintiff would have been terminated for his workplace misconduct and insubordination regardless of his use of FMLA leave. Id.; Edgar, 443 F3d at 508; Throneberry v McGehee Desha Co Hosp, 403 F3d 972, 980 (CA 8, 2005) (stating that "if the employer would have discharged the employee for harassing a supervisor or co-worker if the employee were not on FMLA leave, then the employer would be justified in discharging the employee for harassment while the employee was on FMLA leave").
Plaintiff does not point to any record evidence that would rebut the CCTA's asserted reason for terminating plaintiff's employment or that would otherwise demonstrate that the CCTA's reasons were pretextual, i.e., false, without basis in fact, did not actually motivate the termination decision, or were insufficient to justify the termination decision. Skrjanc, 272 F3d at 315; Seeger, 681 F3d at 285. Contrary to the approach taken by plaintiff in this case, temporal proximity by itself is insufficient to demonstrate that the employer's articulated legitimate reason was actually pretextual. Donald, 667 F3d at 763. Plaintiff's bare assertion, without any evidentiary support, that his FMLA leave use was the actual reason for his termination from employment is insufficient to create a genuine issue of material fact regarding the legitimacy of the CCTA's proffered reason for terminating his employment. Seeger, 681 F3d at 285. Plaintiff failed to present any additional evidence to rebut the CCTA's evidence that plaintiff's employment was terminated based on his workplace misconduct and not his use of FMLA leave, and plaintiff thus did not satisfy his burden to demonstrate pretext. Skrjanc, 272 F3d at 315. Stated bluntly, plaintiff failed to present evidence from which the trial court could find a reasonable inference that his termination was based on his request for or use of FMLA leave.
This applies to plaintiff's cursory arguments in his reply brief that his earlier instances of discipline were based on his FMLA use because they were imposed after he requested to use FMLA leave.
Alternatively, considering that some federal courts do not apply the McDonnell Douglas framework to FMLA interference claims and place the burden on the employer to prove that the discharged employee would have been terminated from employment regardless of requesting or using FMLA leave, see, e.g., Throneberry, 403 F3d at 979, there is no genuine issue of material fact apparent from the record evidence that the CCTA in this case had a legitimate reason for terminating plaintiff's employment unrelated to his use of FMLA leave and the CCTA thus met its burden, id. at 977 ("[W]e hold an employer who interferes with an employee's FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee's FMLA rights.").
Plaintiff instead argues that his use of FMLA leave—which happened to coincide with his insubordinate conduct during the final event that led to his termination, as well as earlier instances of workplace misconduct and insubordination—somehow immunizes him from the consequences of his improper conduct toward his supervisors. Contrary to plaintiff's assertions, the FMLA provides no such immunity. 29 USC 2614(a)(3)(B); Arban, 345 F3d at 401. "[T]he mere fact of discharge during FMLA leave by no means demands an employer be held strictly liable for violating the FMLA's prohibition of interfering with an employee's FMLA rights." Throneberry, 403 F3d at 980. "As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee's exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee's FMLA leave rights." Id. at 979.
Contrary to plaintiff's appellate argument, the factual circumstances of this case differ significantly from those that were present in Arban with respect to this issue. In Arban, there was evidence that the employer was calling the employee and trying to get the employee to perform work while the employee was on FMLA leave. There was additional evidence that the employer informed the employee while he was still on leave and after the employee had refused to perform the requested work that his employment was being terminated, which the Sixth Circuit held was sufficient evidence to permit the jury to find that the termination was based on the employee's FMLA leave. Arban, 345 F3d at 397-400, 402-403. In contrast, plaintiff in this case was already on the CCTA's premises and was in the process of leaving after having already been granted his requested FMLA leave when plaintiff acted in an insubordinate and disrespectful manner toward his supervisors. Plaintiff does not argue that he could not have been terminated for such insubordination had he not just requested to use FMLA leave a short time earlier. We reiterate the general principle which eludes plaintiff's argument: "[I]f an employer were authorized to discharge an employee if the employee were not on FMLA leave, the FMLA does not shield an employee on FMLA leave from the same, lawful discharge." Throneberry, 403 F3d at 978.
We find the decision in Throneberry instructive with respect to resolving plaintiff's main argument in his appeal. In Throneberry, the Eighth Circuit Court of Appeals affirmed the trial court's denial of the employee's motion for judgment as a matter of law following a jury trial and held that the jury's verdict in favor of the employer was supported by sufficient evidence where the employee had been granted FMLA leave after her job performance had declined and she had been acting in an extremely disruptive manner in the workplace, and the employee was subsequently asked to resign after she returned to the workplace while she was still on leave and continued to significantly disrupt the work environment. Id. at 974-976, 981. Much like plaintiff in the instant case, the employee in Throneberry argued that the employer "absolutely had no authority to interfere with her FMLA leave." Id. at 977. In rejecting this argument, the Eighth Circuit reasoned that "[t]he FMLA simply does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave." Id.
The Eighth Circuit further reasoned as follows:
If an employee on FMLA leave harasses a supervisor or a co-worker, Throneberry would contend the employer must retain that harassing employee until the FMLA leave ends. That would be a senseless proposition. The FMLA makes clear the harassing employee enjoys no greater rights while on FMLA leave than had the employee not taken FMLA leave. Thus, if the employer would have discharged the employee for harassing a supervisor or co-worker if the employee were not on FMLA leave, then the employer would be justified in discharging the employee for harassment while the employee was on FMLA leave. To be clear, the employer in such a circumstance would not have to provide the harassing employee with FMLA leave rights and then wait until the FMLA leave ends before deciding to discharge the employee for harassment. [Id. at 980.]
Applying this logic to circumstances at issue in Throneberry, the Eighth Circuit concluded:
A final example of why we cannot adopt Throneberry's strict liability theory involves taking Throneberry's own conduct in this case to the extreme. The evidence showed Throneberry disturbed the workplace before she decided to take leave. During her FMLA leave, Throneberry returned to her workplace and caused additional workplace disturbance. Under the theory Throneberry advocates on appeal, she had the unrestricted right to visit and disturb her workplace every day during her FMLA leave without fear that the Hospital could "interfere" with her FMLA rights. Indeed, the thrust of Throneberry's interpretation of the FMLA would mandate that the Hospital be strictly liable if it discharged her for constantly disrupting the workplace during her FMLA leave. Interpreting the FMLA
differently, we faithfully apply the FMLA's caution that an employee on FMLA leave has no greater rights than the employee would have enjoyed had she not taken FMLA leave. Strict liability contravenes this statutory caution. [Id. at 980.]
Plaintiff's view of the FMLA is analogous to that of the employee in Throneberry. Here, plaintiff contends that he could be insubordinate and disrespectful toward his supervisors in his workplace so long as he does so while on FMLA leave. Plaintiff offers no legal authority to support his apparent contention that he had a right to be insubordinate while on FMLA leave. There exists ample legal authority establishing that an employee on FMLA leave does not have greater protection against termination of employment than the employee would have possessed before using FMLA leave. 29 USC 2614(a)(3)(B); Arban, 345 F3d at 401; Throneberry, 403 F3d at 978. "[A]n employer who interferes with an employee's FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee's FMLA rights." Throneberry, 403 F3d at 977.
Accordingly, plaintiff has failed to demonstrate that the trial court erred by concluding that there was no genuine issue of material fact that plaintiff's employment was terminated for a legitimate reason and that this reason was not a pretext.
To the extent that plaintiff makes a cursory argument in his reply brief that plaintiff was found insubordinate on one occasion specifically because he refused to complete one more route after he had requested to use FMLA leave, this argument does not change the analysis. It is apparent that plaintiff is referring to the January 26, 2017 incident that resulted in a one-day suspension (although plaintiff claimed that this suspension never occurred). However, despite the inartful wording in the incident report, the entirety of the evidence makes it obvious that plaintiff's conduct throughout that incident was disrespectful and threatening toward his supervisor. and that plaintiff was disciplined and found insubordinate for that conduct rather than his assertion of his rights under the FMLA. Thrash made clear that plaintiff was disciplined and found insubordinate for his conduct which had nothing to do with the FMLA. In furtherance of the trial court's finding that this "allegation" was insufficient to form even an inference of a pretext, the record reveals that plaintiff was granted the leave he requested, was not required to continue working that day, and was never subjected to a direct order to continue working that day. --------
C. FMLA RETALIATION
With respect to the retaliation theory of recovery under the FMLA, 29 USC 2615(a)(2) provides that it "shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter."
To establish a prima facie case of FMLA retaliation, Plaintiff must demonstrate:
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under the FMLA; (3) after learning of the employee's exercise of FMLA rights, the employer took an employment action adverse to her; and (4) there was a causal connection between the protected FMLA activity and
the adverse employment action. [Redlin v Grosse Pointe Pub Sch Sys, 921 F3d 599, 616 (CA 6, 2019) (quotation marks and citation omitted).]
Plaintiff argues on appeal, as he did in the trial court, that the CCTA was not entitled under the FMLA and related regulations to request the additional information from plaintiff's doctor that was requested during the April 18, 2018 incident that led to plaintiff's discharge. Plaintiff maintains that he was unlawfully discharged for engaging in this protected activity of opposing an unlawful request for medical information.
Plaintiff's argument misconstrues the factual basis for his termination. The video of the incident reflects that plaintiff never asserted a belief that the CCTA was not entitled to the requested information and that plaintiff instead merely contended that he did not need to listen to, or converse with, his supervisors. There is no evidence that plaintiff was found insubordinate, or that his employment was terminated, because he opposed or disagreed with his supervisors' request or their asserted entitlement to the information. There is no evidence from which the trial court could find that plaintiff was found insubordinate for refusing to provide the requested information from his doctor. In fact, there was evidence that plaintiff actually did provide a note from his doctor following the incident and that his FMLA request was granted.
Rather, the evidence shows that plaintiff was found insubordinate for walking away from his supervisors in contravention of a direct order to be quiet and refrain from walking away so that he could receive the information being disseminated. The evidence also undisputedly reflects that plaintiff was terminated based on his insubordinate and disrespectful conduct toward his supervisors irrespective of the content of their discussion (which, in any event, had nothing to do with asserting a belief that his supervisors were legally prohibited from asking plaintiff for further documentation from his doctor). Even if questions of fact exist regarding whether the CCTA's requests for additional medical information were proper, there is no question of fact that plaintiff was not found insubordinate or terminated for refusing to provide further medical information and plaintiff has thus failed to demonstrate any question of fact that he was actually engaged in the protected activity on which he alleges his termination was based. Accordingly, plaintiff has failed as a matter of law to set forth a prima facie case of FMLA retaliation. Redlin, 921 F3d at 616.
Affirmed. Defendant having prevailed in full may tax costs. MCR 7.219.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello