The opinion of the court was delivered by: Honorable Paul L. Maloney
(Amended as to Page 21only)
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Marci Walters alleges Defendant Pride Ambulance Company violated her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., and under the Michigan Whistleblowers' Protection Action (WPA), M.C.L. § 15.361, et seq. Plaintiff Walters (Plaintiff or Walters) worked for Defendant Pride Ambulance Company as a collections clerk from August 2005 until September 2008. Defendant Pride Ambulance (Defendant or Pride Ambulance) provides ambulance services as well as other transportation services for the elderly and disabled in Kalamazoo, Michigan. Defendant Pride Ambulance also offered similar services, for a time, through a subsidiary in Nashville, Tennessee. Plaintiff tendered her resignation "under duress," on September 9, 2008. Plaintiff filed a lawsuit against Defendant in the Circuit Court of Allegan County on October 23, 2008. Defendant was served on October 28, 2008. Defendant filed an answer to the complaint and affirmative defenses on November 17, 2008. On November 26, 2008, Defendant filed a notice of removal, removing the action to this court. This court's jurisdiction arises under 28 U.S.C. § 1331, the provision governing federal questions. This court has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.
Defendant filed a motion for summary judgment seeking dismissal of all claims. (Dkt. No. 33.) Plaintiff filed a response. (Dkt. No. 39.) Defendant filed a reply. (Dkt. No. 40.) The parties appeared for oral argument on December 14, 2009. At the court's request, the parties filed additional briefs outlining the chronology of relevant events. (Dkt. Nos. 44 and 45.) STANDARD OF REVIEW
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Bennett v City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The facts, and the inferences drawn from them, must be viewed in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Once the moving party has carried its burden, the nonmoving party must set forth specific facts showing there is a genuine issue for trial. FED. R. CIV. P. 56(e); Matsushita, 475 U.S. at 574. The question is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Pride Ambulance is a private corporation, wholly owned by Ron Onderlinde. (Tim Onderline Dep., 14-15.) Tim Onderline, Ron's son, is the chief operating officer. (Id.) The corporate office, located in Kalamazoo, is run by Becky Russon, who works as the general manager for the company. (Id., 16-17.) In 2003, Defendant formed a business in Nashville, Tennessee that existed until 2008, when it was purchased by another ambulance company.*fn1 (Id., 19-20.) Plaintiff was hired by Carol Reiter in 2005 as a collections agent. (Walters Dep., 16-17.) Plaintiff's immediate supervisor was Ms. Russon, although she was assigned tasks by Carol Reiter.*fn2 (Id., 18-19.) Plaintiff also assisted Phyllis Blevins and Cindy Deanor, from time to time. (Walters Dep., 19.) When Plaintiff was hired, she was primarily responsible for collections relating to Defendant's Tennessee subsidiary. (Id., 20.) Plaintiff would make telephone calls and mail letters regarding bills past due, resubmit those bills incorrectly billed, review reports, and call insurance companies. (Id. 17.) Plaintiff testified Rieter also asked her to handle letters from Medicare "regarding overpayments, making sure that they were being billed appropriately." (Id., 18.)
The parties agree Defendant received payment for services from a variety of private and public sources, including Medicare and Medicaid. (Def. Br. 2; Pl. Br. 2.) The parties also agree that overpayments for services would occur. (Def. Br. 2; Pl. Br. 2.) Defendant acknowledges it is obligated, by law to make reimbursements when overpayments are made.*fn3 (Def. Br. 2.) Defendant had an internal form, a refund request form, which would be completed by the billing clerk in order to reimburse an entity for overpayments. (Def. Ex. G.) Typically, the form would be completed by Carol Reiter or Cindy Deanor, and then approved by Tim Onderlinde. (Onderlinde Dep., 54-55.) No one individual in the office was responsible for refunds. (Walters Dep., 25.) On occasion, Plaintiff would process refunds for Medicare or Medicaid when those entities gave notice of an overpayment. (Id.)
Plaintiff first began having concerns about Defendant's reimbursement system in early 2006. (Walters Dep., 48.) Initially, she noticed overpayments by individuals.*fn4 (Id.) Plaintiff would fill out the refund form and submit those for approval. (Id., 49.) At some point, Plaintiff was told by Blevins and Deanor to stop writing refunds unless someone was calling about the money. (Id.) According to Plaintiff, the order to stop writing those refunds came from Tim Onderlinde. (Id.) Plaintiff interpreted the directive as applying to refunds for both private sources and public sources. (Id., 54.) Plaintiff complained about the reimbursement policy to Deanor, Blevins, Reiter, and Joyce Feenstra, another member of the senior staff. (Id., 55.) At some point, as Plaintiff's responsibilities expanded, she became concerned about overpayments by public sources, including Medicare and Medicaid. (Walters Dep., 57-58.) Heather Simmons, who was hired after Plaintiff as a billing and collections agent, testified she too was told by Deanor that she should not be giving or initiating refunds for overpayments unless the entity owed money asked for a refund. (Simmons Dep., 11.)
On April 18, 2008, Plaintiff called Tennessee Medicaid about overpayments it made to Defendant. (Walters Affidavit; Walters Dep., 84.) According to Plaintiff, the individual she spoke with directed her to fill out forms to allow Medicaid to automatically recoup the overpayments. (Walters Affidavit.)
In June 2008, Plaintiff asked Tim Onderlinde whether he wanted to establish electronic payments by Tennessee Medicare for services provided in Tennessee. Plaintiff asserts she informed Tim Onderlinde that electronic billing was available "and he said he would like to sign up for the electronic payment so he could get them just the same as he did for Kalamazoo." (Walters Dep., 76.) Plaintiff claims Tim signed the Medicare payment authorization form. (Id., 71-72, 76.) Onderlinde acknowledged Plaintiff approached him about signing up for the automatic payment system for Tennessee Medicare. (Onderlinde Dep., 71.) Onderlinde denies ever having agreed that the electronic billing form should be submitted for Tennessee Medicare. (Id. 80-81.) Onderlinde explained to Plaintiff he did not want to sign up because when the Kalamazoo office signed up for the automatic payment system, it resulted in a lengthy transition. (Id. 70-71.) Onderlinde further testified Plaintiff later informed him someone would have to complete the transition to automatic payments in Tennessee, because she had contacted Medicare and provided them with some initial information about Defendant's address in Nashville. (Id., 71-72) Because the address Plaintiff gave did not match up with what Tennessee Medicare had on record, Pride Ambulance was required to complete a new application form for Medicare.*fn5 (Id.) Onderlinde testified Plaintiff showed him a letter from Tennessee Medicare that threatened to terminate Defendant's Medicare license if "we didn't get our information in a timely fashion." (Id., 73.)
In July 2008, Reiter discovered Defendant was not receiving payments from Tennessee Medicaid because Tennessee was automatically recouping its money. (Reiter Dep., 31.) On July 30, 2008, Tim Onderlinde claims he became aware that Tennessee Medicaid was automatically taking offsets from Defendant's account while reading benefits documents provided to him by Reiter and Russon. (Onderlinde Dep., 61.) Reiter informed Onderline that day that Plaintiff had taken it upon herself to do the recoupments. (Id., 61; Reiter Dep., 35.)
Onderlinde and Plaintiff met, with Reiter, to discuss Plaintiff's conduct. (Onderlinde Dep., 94; Walters Dep., 69.) Plaintiff described the meeting as "a witch-hunt," "they were hunting for stuff to write me up on." (Walters Dep., 72.) During the meeting, several of Plaintiff's decisions and actions were discussed. Plaintiff was accused of causing another person's computer to crash. (Walters Dep., 71.) Plaintiff was accused of submitting paperwork to Tennessee Medicaid for automatic reimbursements without proper authorization. (Id.) Plaintiff was accused of filling out forms for automatic payments by Tennessee Medicare without authorization. (Id., 71-72.) Onderlinde asked Plaintiff for copies of the documents she filled out allowing Tennessee Medicaid to automatically recoup overpayments. (Onderlinde Dep., 95; Walters Dep., 73-74.) Plaintiff did not keep a copy of the forms she filled out (Walters Dep., 72-73), but was able to secure a blank copy of the form she used (Walters Dep., 74; see Def. Ex. J).
On July 31, 2008, at the direction of Onderlinde, Russon presented Plaintiff with a disciplinary letter, a Termination Warning Letter. (Walters Dep., 74; Russon Dep., 35-36; Pl. Ex 6 - Termination Warning Letter.) The letter was dated July 30 and generally covered the same issues from Plaintiff's meeting with Onderlinde the day before. (Termination Warning Letter.) The letter accused Plaintiff of undertaking tasks without getting the necessary prior approval from management, including enrolling Defendant with Tennessee Medicare for automatic billing, downloading upgrades to computers and causing the computers to crash, and refunding money to insurance companies. (Id.) As a result of her conduct, Plaintiff needed to check with Reiter on a daily basis for her assignments. (Id.) At the end of the semester, Plaintiff's flexible schedule privileges would be revoked so that her performance could be monitored. (Id.) Plaintiff signed the form, after she added some language at the bottom. Plaintiff stated Onderlinde agreed with the decision to allow Tennessee Medicare to do automatic payments until the State had a problem with the addresses of Defendant's locations. (Id.)
On August 1, 2008, around 5:00 p.m., Plaintiff went to Onderlinde's office and presented a letter that complained generally about Reiter and Russon. (Onderlinde Dep., 100; Def. Ex. N.) Plaintiff also had a box of documents which she alleged Reiter had failed to complete in order for Defendant to receive payments. (Onderlinde Dep., 100-101.) Onderlinde testified Plaintiff stated she was going to take the company down.*fn6 (Id., 103, 106-107.) Plaintiff then told Onderlinde that she had contacted the Medicare Hotline. (Id., 103.) Plaintiff testified she told Onderlinde she called Medicare back in April. (Walters Dep., 89.) Plaintiff concedes this was the first time she told Onderlinde about her contact with Medicare. (Id.) Onderlinde admits he told Plaintiff she was cold-hearted. (Id. 106.) Onderlinde denies making a decision to terminate Plaintiff. (Id., 109-110.)
On Monday, August 4, 2008, Plaintiff called in sick and did not report to work. (Russon Dep. 44.) Plaintiff alleges she went to see a doctor. (Walters Dep., 123-124.) She also went to the doctor's office on Wednesday, August 6. (Id., 123.) That same day, August 6, Dalton Medical Practice faxed a FMLA form to Defendant on behalf of Plaintiff.*fn7 (Russon Dep., 44-45; Kehl Affidavit; Pl. Ex. 9.) The physician assistant at Delton Medical Practice, John Kehl, avers he saw Plaintiff on August 4, August 6, August 20, and September 5. (Kelh Affidavit.) On August 20, Mr. Kehl ...