The opinion of the court was delivered by: Paul D. Borman United States District Judge
Paul D. Borman United States District Judge
OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants' Motion to Dismiss and/or For Summary Judgment (Dkt. No. 23). Plaintiff filed a Response (Dkt. No. 25) and Defendants filed a Reply (Dkt. No. 26). A hearing was held on March 11, 2010. For the reasons that follow, the Court DENIES Defendants' Motion to Dismiss and/or For Summary Judgment as to Counts I and II and GRANTS Defendants' Motion as to Counts III and IV.
I. INTRODUCTION AND BACKGROUND
Plaintiff claims that Defendants wrongfully terminated her employment because they perceived her as having a disability after she suffered a broken leg, which was precipitated by her underlying condition of rheumatoid arthritis, and wrongfully refused to accommodate her need to walk with a cane or a crutch. Defendants respond that Plaintiff acknowledged in her acceptance of employment that she was a probationary employee for 1,040 hours, a condition Defendants claim had not been met when Plaintiff suffered her broken leg. Defendants assert that as a probationary employee, missing 14 consecutive days of work was an act of voluntary quit and therefore Defendants properly terminated Plaintiff when she did not come to work for 14 consecutive days as a result of her broken leg.
A. Plaintiff's Employment History
Plaintiff began working for Defendant Genesys Health and Hospice ("GHHH") as a social worker in 1996. (Defs.'s Mot. Ex. 1, Hawkins Dep. 94, July 8, 2009.) Her job with GHHH involved in-home psychosocial assessments, patient counseling and educational in-services. (Defs.'s Mot. Ex. 1, Hawkins Dep. 95-96.) During the last three years of her employment with GHHH, Plaintiff also performed guardian reviews, geriatric assessments and ran a caregiver support group for Defendant Center for Gerontology ("CFG"). (Defs.'s Mot. Ex. 1, Hawkins Dep. 95-96.) Although performing services for CFG, Plaintiff continued to receive paychecks only from GHHH and her supervisor throughout her tenure with GHHH was Carol Osborne, a GHHH employee who reported to the President of GHHH. (Defs.'s Mot. Ex. 1, Hawkins Dep. 94, 96-97.) When performing geriatric assessments for CFG, Plaintiff worked with CFG employee Diane Nims and also assisted Ms. Nims with preparation of guardian reviews on a monthly basis. (Defs.'s Mot. Ex. 1, Hawkins Dep. 97-99; Ex. 3, Nims Dep., September 10, 2009, 24, 32.)
In October, 2007, Ms. Nims approached Plaintiff to inquire if she would be interested in working with a new program, the Elder Abuse and Exploitation Program ("EAP"). (Defs.'s Mot. Ex. 1, Hawkins Dep. 70.) Ms. Nims was to serve as director of the EAP, which was to be run by CFG, funded by a grant from Genessee County. (Defs.'s Mot. Ex. 1, Hawkins Dep. 105-106, 169.)
Plaintiff testified that Ms. Nims approached her because they had been working together for several years. Plaintiff applied for the position on October 7, 2007, a date she remembers well because she fell that day when leaving a patient's home and broke her left femur. (Defs.'s Mot. Ex. 1, Hawkins Dep. 70, 122-23; Pl.'s Resp. Ex. C (Application).) Plaintiff was selected for the position.
Accordingly, on December 31, 2007, Plaintiff resigned her position with GHHH. (Defs.'s Mot. Ex. 1, Hawkins Dep. 40-41; Ex. 4, 12/31/04 Letter of Resignation.) On January 3, 2008, Plaintiff accepted the new position with CFG and was to report to work for orientation on January 7, 2008. (Defs.'s Mot. Ex. 5, Acceptance of Employment.) The Acceptance of Employment with EAP, which Plaintiff signed, indicates that her employment status was subject to termination at any time for any reason, by either Plaintiff or CFG, and that Plaintiff would be in a probationary period for 1040 hours. (Defs.'s Mot. Ex. 5.) Plaintiff testified that she knew that she was considered probationary when she hired on with CFG. (Defs.'s Mot. Ex. 1, Hawkins Dep. 186.) She strongly objected, however, to the fact that, despite her 12 years with the GHS she was considered a new employee upon her transfer to CFG and lost both seniority and certain benefits. (Defs.'s Mot. Ex. 13.) Plaintiff's counsel stated at the hearing in this matter that although Plaintiff signed all of the paperwork acknowledging the conditions of the transfer, GHS did not consistently treat her as a new employee. For example, they did not discontinue her health care and on February 19, 2008, Ms. Nims approved Plaintiff for Paid Time Off from July 9-14, 2008, although as a new employee she was not yet eligible. (Pl.'s Resp. Ex. P; Pl.'s Resp. Ex. H, Gawthrop Dep. 42-44.)
Plaintiff described her work with the EAP as involving the identification of abuse of senior citizens in the community, whether sexual, physical, financial or verbal, and assessment of whether their situation warranted the involvement of the prosecuting attorney. (Defs.'s Mot. Ex. 1, Hawkins Dep. 105-06.) Her job description, which bore the GHS title, listed her principal duties and responsibilities as conducting in-home assessments, communicating client needs to referral agencies, recording case activities, managing follow-up contacts, keeping accurate time records, consulting with team leaders, assisting with the development of assessment tools, participating in conferences and in-service programs and complying with all department policies and expectations.
B. Plaintiff's Medical Conditions and Work Restrictions
On Saturday, June 7, 2008, Plaintiff returned home after conducting two guardian ad litem interviews for CFG, and fell in the hallway of her home, this time fracturing her right femur. (Defs.'s Mot. Ex. 1, Hawkins Dep. 189-90; Pl.'s Resp. Ex. M, 13-14.) Plaintiff was hospitalized and underwent a surgical repair of the fracture. (Defs.'s Mot. Ex. 1, Hawkins Dep. 195; Pl.'s Resp. Ex. M (Medical Records).) Plaintiff never claimed that this injury was work related. Plaintiff's husband called Ms. Nims that day to inform Ms. Nims that Plaintiff had fallen but would still have the guardian ad litem reports prepared for Ms. Nims to take to probate court that following Monday. (Defs.'s Mot. Ex. 1, Hawkins Dep. 190.)
On Wednesday, June 11, 2008, Plaintiff returned to see her surgeon for her first postoperative visit and stopped in to see Ms. Nims after the appointment to give Ms. Nims the return to work slip she had received from the surgeon indicating that she could return to work as tolerated and to inform Ms. Nims that she would be returning to work on June 16, 2008. Plaintiff then left for the day. (Defs.'s Mot. Ex. 1, Hawkins Dep. 195-96, 209.) While at home in the interim, Plaintiff continued to do some work, reporting that she worked 5 hours on June 12, 2008. (Pl.'s Resp. Ex. Q.)
When Plaintiff reported for work on June 16, 2008, she was on crutches which she needed at that time to get around. (Defs.'s Mot. Ex. 1, Hawkins Dep. 200.) She did drive herself to work that day and testified that while some co-workers helped her carry some bottled water, her computer and her purse into the office, she was fully capable of carrying a purse and other items while on crutches, and that she had done so in the past. (Defs.'s Mot. Ex. 1, Hawkins Dep. 200.) When Plaintiff arrived at the office, she started to put her things away and finish up some reports that were due the following week. (Defs.'s Mot. Ex. 1, Hawkins Dep. 201.)
About 10 minutes after Plaintiff arrived, Ms. Nims came in to her office and informed her that the return to work slip she had presented, which indicated she could return to work as tolerated, was inadequate and needed to be more specific. (Defs.'s Mot. Ex. 1, Hawkins Dep. 202, 209; Pl.'s Resp. Ex. S.) Plaintiff contacted her doctor and requested that he make the note more specific and fax it back to Plaintiff at the office. A revised return to work slip was faxed to the office that afternoon which stated that Plaintiff was not able to drive and was "only able to ambulate with aid of a walker and weight bear to tolerance." (Defs.'s Mot. Ex. 1, Hawkins Dep. 209-210; Defs.'s Mot. Ex 8.) Plaintiff testified that Ms. Nims reviewed the revised return to work slip and indicated that Plaintiff should not worry about it, that she could do other things in the office until her driving restriction was lifted. (Defs.'s Mot. Ex. 1, Hawkins Dep. 211.) Plaintiff testified that she returned to her office that day, completed several reports that were due in probate court and left at about 4:30, having worked approximately 7.5 hours that day. (Pl.'s Resp. Ex. A, Hawkins Dep. 204; Pl.'s Resp. Ex. D.)
The following morning, Tuesday, June 16, 2008 at 7:30 a.m., Ms. Nims phoned Plaintiff at home and told her not to report to work until her driving restriction was lifted, which was scheduled to occur on Friday, June 20, 2008. (Defs.'s Mot. Ex. 1, Hawkins Dep. 211-212, 219; Pl.'s Resp. Ex. E.) On Friday, June 20, 2008, Plaintiff reported to work with her final return to work slip which stated that Plaintiff was able to drive but needed to use a cane or crutches for assistance only. (Defs.'s Mot. Ex. 1, Hawkins Dep. 214; Pl.'s Resp. Ex. E.) Plaintiff presented the note to Ms. Nims who informed Plaintiff that she could not stay at work because she could not do her job if she had to use crutches or a cane. Plaintiff testified that Ms. Nims told her that if she "had to use any kind of assistive device, no matter what it was for, [she] couldn't do the job." Plaintiff testified that she was "flabbergasted" by Ms. Nims response and never received a satisfactory response as to why Ms. Nims thought Plaintiff was unable to perform her job. She left the office shortly thereafter. (Defs.'s Mot. Ex. 1, Hawkins Dep. 223-24.)
Ms. Nims testified that it was her opinion that Plaintiff "could not do her job on crutches" because of the "unstable environments we have to go into the homes, she could not be stable and safe on crutches." (Defs.'s Mot. Ex. 3, Nims Dep. 50.) When shown a list of Plaintiff's job description and asked to identify the responsibilities she felt Plaintiff couldn't perform, Ms. Nims responded: "She couldn't conduct an in-home assessment and, therefore, couldn't communicate with the client and, therefore, she couldn't record case activity or manage or record or consult or assist or comply with the process. All of them." (Defs.'s Mot. Ex. 3, Nims Dep. 50.)
Plaintiff testified that at some point during her recovery, before she reported for work on June 16, 2008, she had placed an anonymous call to the human resources department to inquire about their policies for return to work. She testified that Ms. Nims somehow found out about this call, which apparently had been traced to Plaintiff, and that Ms. Nims asked Plaintiff some questions on June 16th that indicated to Plaintiff that Ms. Nims had been talking to people in human resources who gave Ms. Nims information about Plaintiff's prior leg fracture that Ms. Nims otherwise never would have known. Ms. Nims told Plaintiff that her phone call had "opened up a can of worms" and Ms. Nims was very upset. (Pl.'s Resp. Ex. A, Hawkins Dep. 212-213.) Plaintiff testified that she did not understand Ms. Nims comment about opening up a can of worms but later learned what she thought was the meaning: "Barb told me that Diane had never reported that I had broken my leg and she knew it would cause problems, and I don't think Diane communicated with human resources until after I came back to work on the 16th." Plaintiff testified that she was convinced that someone from human resources, she guessed that it might have been a Melissa Bentley, had given Ms. Nims information about Plaintiff's prior medical history, in particular about her prior worker's compensation claim made when she fractured her left leg, that somehow played a role in the decision to terminate her employment in June, 2008. (Pl.'s Resp. Ex. A, Hawkins Dep. 232-33.)
Plaintiff testified, and medical records confirm, that she has suffered from rheumatoid arthritis since she was 2 years old. (Pl.'s Resp. Ex. A, Hawkins Dep. 4-5; Ex. M.) Plaintiff takes several medications for her arthritis, including several steroids, some of which cause her bones to become more brittle. (Pl.'s Resp. Ex. A. Hawkins Dep. 6-7.) Plaintiff testified that she sees a Dr. Diane Trudell, her prescribing physician for her rheumatoid arthritis medications, 2-3 times a year. (Defs.'s Mot. Ex. Ans. Interrog. 14, p. 11.). Plaintiff's rheumatoid arthritis condition was well known to Ms. Nims, who in fact referred to Plaintiff's rheumatoid arthritis as her "disability." When asked at her deposition whether she believed that the PWDCRA applied to Plaintiff, Ms. Nims replied that she did not: "Not in this incident. This was an injury. Her disability was her chronic rheumatoid arthritis, but she was able to get around on that without crutches." (Defs.'s Mot. Ex. 3, Nims Dep. 111.) When Plaintiff was seen at the Genesys Regional Medical Center on October 2, 2007, when she fractured her left femur while leaving a client's home, the doctor noted evidence of Plaintiff's multiple surgeries secondary to her history of rheumatoid arthritis. (Pl.'s Resp. Ex. M, p. 24.) Another doctor, who saw Plaintiff on June 19, 2008, in follow up to her second femoral fracture of her right leg, noted that Plaintiff had evidence of multiple previous surgeries for rheumatoid arthritis and related joint deformities and that Plaintiff demonstrated clinical evidence of spontaneous femoral fractures, stating that Plaintiff suggested in her history that the fractures felt as if they occurred before she fell. (Pl.'s Resp. Ex. M, p. 13-14.)
C. Plaintiff's Termination
Plaintiff received a letter dated June 24, 2008, written by Melissa Wrobel, a human resource specialist for Genesys Regional Medical Center ("GRMC"), informing Plaintiff that the restriction contained in Plaintiff's June 20, 2008 return to work slip, which instructed that Plaintiff "must use crutches for mobility assistance only," could not be honored by her employer. (Pl.'s Resp. Ex. F, Deposition of Melissa Wrobel, July 20, 2009, p. 6; Defs.'s Mot. Ex. 16.) Ms. Wrobel's particular responsibility was processing leave of absence requests for all of the related Genesys entities. (Pl.'s Resp. Ex. F, Wrobel Dep. 7-8.) (See infra discussion of the Genesys entities at pp. 12-13.)
Ms. Wrobel also testified on the subject of the company policy on FMLA leave, which she was authorized to process on behalf of all of the Genesys entities. Ms. Wrobel testified that she understood the policy to dictate that if she, or another manager of an employee, became aware that an employee's health condition would qualify them for FMLA leave, that either Ms. Wrobel or the manager was obligated to approach the employee about the possibility of taking FMLA leave. (Pl.'s Resp. Ex. F, Wrobel Dep. 13.) She testified that she considered whether Plaintiff was eligible for FMLA leave in this case and determined that Plaintiff was not eligible because she had been hired by CFG on January 1, 2008 and was still in the probationary period: "[W]hen determining if they qualify for FMLA or not, I look at their date of hire to see if they have been employed by that facility for one year." (Pl.'s Resp. Ex. F, Wrobel Dep. 16-17, 18.) Ms. Wrobel testified that she did not consider any other information when concluding that Plaintiff was not eligible for FMLA leave. Ms. Wrobel did not know anything about Plaintiff's job restrictions and was not aware that Plaintiff had actually performed work for CFG for several years while employed by GHHH. (Pl.'s Resp. Ex. F, Wrobel Dep. 14, 17.) When asked if it would have made a difference to her determination that Plaintiff was ineligible for FMLA leave if she had known that Plaintiff had worked for CFG while employed by GHHH, Ms. Wrobel testified that it would not have changed her analysis because "each of the -- Genesys Convalescent Center, Genesys Center for Gerontology, all of these companies that we named are separate companies." (Pl.'s Resp. Ex. F, Wrobel Dep. 18.)
On the same date that she wrote to Plaintiff to inform her that her work restrictions could not be honored, June 24, 2008, Ms. Wrobel sent an email to Amy Gawthrop, who was also employed by GRMC and worked as a labor relations advisor. (Pl.'s Resp., Ex. G, Deposition of Amy Gawthrop, July 20, 2009, p. 5; Ex. H.) The email indicated that the Subject was "Amy Hawkins -CFG" and instructed Ms. Gawthrop as follows: "Amy [Hawkins] is a probationary employee. She was injured at home on 06/07/08. The first missed day from work was 06/09/08. She has been given restrictions that can not be honored through 08/14/08. According to the non union GRMC contract a probationary employee off work more than 14 days they [sic] will be considered a voluntary quit. Can you please process."
On June 27, 2008, Ms. Gawthrop sent a letter to Plaintiff, as requested by Ms. Wrobel in her June 24, 2008 email, informing Plaintiff that because she had not worked since June 6, 2008, and had provided work restrictions which the company could not honor, she was being terminated from employment pursuant to the following provision: "A leave of absence is an authorized absence from work without pay, and may be granted only to non-probationary full-time or part-time employees. A full-time or part-time probationary employee who is absent for more than fourteen (14) days is considered to have resigned." The letter further informed Plaintiff that, as a result of her probationary status, she was considered terminated effective June 6, 2008 and that her separation from employment had been processed. (Pl.'s Resp. Ex. R.) Ms. Gawthrop copied both Ms. Nims and Ms. Wrobel on her termination letter to Plaintiff. Ms. Gawthrop testified in her deposition that she had not done any independent investigation into Plaintiff's work restrictions, or why the company could not honor them, but relied entirely on the information received from Ms. Wrobel that the restrictions could not be honored. (Pl.'s Resp. Ex. H, Gawthrop Dep. 21-22.) Ms. Gawthrop also testified that she had discussions with Ms. Nims about whether or not in fact Plaintiff had worked on June 16, 2008 and that Ms. Nims had informed her that Plaintiff was not going to be paid for the work she performed on June 16, 2008. (Pl.'s Resp. Ex. H, Gawthrop Dep. 30.)
Ms. Gawthrop testified that she determined that Plaintiff was a probationary employee, and therefore subject to the 14 day voluntary quit rule, solely based upon Plaintiff's CFG hire date of January 1, 2008 and application of the 1250 hour probationary policy. (Pl.'s Resp. Ex. H, Gawthrop Dep. 36.) Ms. Gawthrop testified that she was not aware that Plaintiff had performed work for CFG during her tenure with GHHH, long before she officially became employed by CFG. (Pl.'s Resp. Ex. H, Gawthrop Dep. 36-37.) Ms. Gawthrop also testified ...