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Gerstenberger v. Henry Ford Macomb Hospital Corp.

April 5, 2010

KENNETH GERSTENBERGER, PLAINTIFF,
v.
HENRY FORD MACOMB HOSPITAL CORPORATION, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Paul D. Borman United States District Judge

OPINION AND ORDER DENYING DEFENDANT HENRY FORD MACOMB HOSPITAL CORPORATION'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 13)

Now before the Court is Defendant Henry Ford Macomb Hospital Corporation's July 15, 2009 Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (Dkt. No. 13.) Plaintiff filed a Response. (Dkt. No. 17.) Defendants filed a Reply. (Dkt. No. 20.) A hearing on this matter was held on March 25, 2010. For the following reasons, the Court DENIES Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56.

I. BACKGROUND

Plaintiff was employed by St. Joseph's Mercy Hospital Macomb ("St. Joseph's") beginning in 1996 as a Maintenance Mechanic. (Def.'s Mot. Ex. A.) His job duties included maintaining hospital facilities, including everything from screwing in a light bulb to putting up a sign. (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 54.) St. Joseph's had positions styled maintenance mechanic "ones" and maintenance mechanic "twos," the latter having greater responsibility and higher pay. (Id. at 55.) As a maintenance mechanic two, Plaintiff would respond to work orders for a department that needed some type of repair, or some maintenance work. (Id. at 56.) Maintenance mechanics shared responsibility for all duties. (Id. at 54.)

Plaintiff became a lead mechanic which involved additional duties such as payroll, time card and scheduling responsibilities. (Id. at 60-61.) Plaintiff testified that he thought there was a difference in pay between the lead mechanic and the regular mechanics, maybe a couple of dollars, but he couldn't remember. (Id. at 62.) Plaintiff maintains that he performed these additional duties up until the time that Plaintiff took his medical leave. (Id. at 64-65.) Plaintiff received good performance evaluations in 2003 and was meeting company expectations just before he took his FMLA leave in April 2008. (Pl.'s Resp. Exs. 5, 6.)

Sodexho Inc., a management outsourcing company, had responsibility over the St. Joseph's maintenance department beginning in 2003 or 2004. (Id. at 50-51.) Sodexho continued to manage the maintenance department until Henry Ford Health System ("HFHS") purchased St. Joseph's Mercy Hospital of Macomb in July, 2007. (Def.'s Mot. Ex. C, Sanford Aff. ¶ 2.) Plaintiff acknowledged that HFHS took over in January, 2008. (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 48.)

HFHS terminated the Sodexho maintenance department contract in January 2008 and the new operations manager, David Sanford, began auditing the department as part of HFHS's reorganization. (Def.'s Mot. Ex. C, Sanford Aff. ¶ 3.) Plaintiff assisted Mr. Sanford in auditing the maintenance department. (Pl.'s Resp. Ex. 4, Gersetenberg Dep. 88.) Mr. Sanford implemented changes which eliminated the zone organization utilized under Sodexho and instituted a structure under which all mechanics rotate shifts, with rotating lead assignments. (Def.'s Mot. Ex. C, Sanford Aff. ¶¶ 5-6.) This system was intended to "guarantee that each mechanic would become familiar with a variety of projects and solve the problems associated with employee absences." (Id. ¶ 5.) These changes were instituted before Plaintiff took his FMLA leave and in fact, Plaintiff was on the rotation schedule for the months of January through April. (Def.'s Mot. Ex. E; Def.'s Mot. Ex. C, Sanford Aff. ¶ 6.)

Plaintiff requested FMLA leave on March 18, 2008 for a planned total knee replacement. (Def.'s Mot. Ex. F.) Plaintiff's leave was to begin on April 25, 2008 and continue for twelve weeks. (Id; Pl.'s Resp. Ex. 4, Gerstenberger Dep. 72.) Plaintiff's doctor released him to return to work on July 20, 2008. (Def.'s Mot. Ex. G.) Plaintiff's first day back at work was Monday, July 21, 2008.

Plaintiff states that before he left for his FMLA leave, Mr. Sanford told him that he would regret having knee surgery, but Plaintiff claims that he did not know what Mr. Sanford meant by this statement. (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 75-77.) Plaintiff also states that when he was off on leave he heard from certain individuals who told him that Mr. Sanford was telling people that Plaintiff's "days were numbered" and he "better watch [his] back." (Id. 81-82.) Although reluctant to identify these individuals, Plaintiff did give the names of Ron Walters, Stan Bajor, Howard Thatcher and "Paul" someone. (Id. 82-84.)

On Monday July 21, 2008, when Plaintiff returned to work following his FMLA leave, Mr. Sanford paged Plaintiff on his Blackberry at 7:30 or 8:00am and requested a meeting with Plaintiff. (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 92-93.) Defendant states that the purpose of the meeting was to review the department reorganization and work performance expectations. (Def.'s Mot. 3.) Plaintiff states that when he sat down with Mr. Sanford that morning, Mr. Sanford "basically told [him] that [he] was no longer the leader of the department." (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 94.) Plaintiff states that Mr. Sanford said the reasons for his decision to divest Plaintiff of his lead mechanic responsibilities were performance related, citing work orders that Plaintiff failed to close out before his FMLA leave, scheduling issues that arose while Plaintiff was on leave and some payroll issues. (Id. at 94-96.) Plaintiff states that Mr. Sanford told him that the work schedule that Plaintiff had established for the time during his FMLA leave left the department short handed during Plaintiff's absence. (Id. at 98-99, 103.)

By both parties' accounts, the meeting between Plaintiff and Mr. Sanford on the morning of Monday July 21, 2008 became heated. Mr. Sanford states that when reminded of the mandatory, temporary shift rotation and work expectations, Plaintiff "became angry and threatening, moved closer to [Mr. Sanford], and began raising his voice and screaming." (Def.'s Mot. Ex. C, Sanford Aff. ¶ 8.) Mr. Sanford testifies that Plaintiff stated: "You can't do shit to me!" and "What's this bullshit?" (Id. ¶ 8.) Plaintiff admits that Mr. Sanford told Plaintiff he was getting out of control, but Plaintiff denies that he was out of control and denies that he was raising his voice or swearing. (Pl.'s Resp. 103, 105, 115.) Plaintiff characterized the exchange between himself and Mr. Sanford as "a verbal argument." (Pl.'s Compl. ¶ 3; Def.'s Mot. Ex. I, Pl.'s Answers to Interrogatories, p.2.) Plaintiff testified that he was upset by the meeting and that he kept asking Mr. Sanford if seniority meant anything, referring to Plaintiff's 13 years with the company. (Id. at 106-107.)

Mr. Sanford states that after he told Plaintiff to calm down multiple times, and Plaintiff refused, Mr. Sanford terminated the meeting and returned to his office. (Def.'s Mot. Ex C, Sanford Aff. ¶¶ 8-9.) Plaintiff stated that he remained in the meeting room for 5-10 minutes after Mr. Sanford left the room to "get [his] wits about him." Plaintiff stated that he was bothered because he thought the demotion would result in a two or three dollar an hour pay cut. (Id. at 107.)

Defendant responds that Plaintiff's pay records unequivocally demonstrate that Plaintiff was paid $27.04 per hour both prior to and after his FMLA leave. (Def.'s Mot. Ex. M.)

After leaving the meeting with Plaintiff, Mr. Sanford telephoned Jan Harrington-Davis, Human Resource Recruiting Manager for HFHS. (Def..'s Mot. Ex. D, Harrington-Davis Aff. ¶ 4.) Mr. Sanford explained to Ms. Harrington-Davis that Mr. Gerstenberger, a mechanic, had become insubordinate, angry, physically threatening, and unprofessional during a conversation with Mr. Sanford regarding department operations. (Id. at ¶ 4.) Mr. Sanford stated that he wanted to have a second conversation with Mr. Gerstenberger but wanted someone from Human Resources present as a precaution. (Id.)

Mr. Sanford, Ms. Harrington-Davis and Joel Gibson, Vice President of Human Resources, were present for the second meeting later that morning with Mr. Gerstenberger. (Id. at ¶ 5.) Ms. Harrington-Davis testified that Mr. Gerstenberger was agitated and angry when he was called into the conference room and was red in the face, sweating, loud and cursing. (Id.) Ms. Harrington testified that when Mr. Gerstenberger arrived, she asked Mr. Sanford to repeat his review of the maintenance department operations at which time Mr. Gerstenberger stood up and accused Mr. Sanford of lying and repeatedly told him to "shut up!" (Id. at ¶¶ 6-7.) Ms. Harrington-Davis testified that she told Mr. Gerstenberger to calm down, that he would get his turn to speak, but that he was angered, extremely hostile, loud, cursing and refused to calm down. (Id. at ¶ 7.) Ms. Harrington-Davis stated that Mr. Gerstenberger warned the group that "You can't do shit to me!" and asked "What's this bullshit?" (Id. at ¶ 8.) Ms. Harrington-Davis testified that when Mr. Gerstenberger noticed her taking notes, he exclaimed: "You write this crap down; I don't care what you write down!" He then sarcastically remarked: "You should've brought a tape recorder" and warned again "You can't do shit to me!" (Id. at ¶ 9.) Ms. Harrington-Davis decided that the meeting should be terminated and concluded that Mr. Gerstenberger should be terminated for threatening and insubordinate conduct. Mr. Gibson agreed. (Id. at ¶¶ 10-11.) Ms. Harrington-Davis called security, called Mr. Gerstenberger in for a third meeting and told Mr. Gerstenberger that he was terminated for unprofessionalism and insubordination. (Id. at ¶¶ 12-13.)

Plaintiff recalls that Mr. Sanford, Ms. Harrington-Davis and Mr. Gibson were present for the second meeting, which Plaintiff recalls took place around 10:30 a.m. (Pl.'s Resp. Ex. 4, Gerstenberger Dep. 111-112.) Plaintiff admits that he told Mr. Sanford during this second meeting to "shut up" because, he states, Mr. Sanford was telling lies about what had transpired during their earlier meeting. (Id. at 114-115; 119; 124.) Plaintiff denies that he used foul language or raised his voice in the second meeting, or the first meeting. (Id. at 123.) Plaintiff states that when he was called down for the third meeting, he suspected that he was going to be fired. (Id. at 125-126.) He testified that they offered him the chance to resign and he told them "to take their ...


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