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Tilley v. Kalamazoo County Road Commission

United States District Court, Western District of Michigan, Southern Division

May 1, 2015

TERRY TILLEY, Plaintiff,



On May 13, 2014, this Court granted summary judgment in favor of Defendants on Plaintiff Terry Tilley’s claims under the Michigan Whistleblower’s Protection Act, Elliott–Larsen Civil Right’s Act, Persons With Disabilities Civil Rights Act, and the federal Family and Medical Leave Act (FMLA). (Op. & Order, ECF Nos. 39, 40.) In part, this Court determined that Plaintiff had no cause of action under the FMLA because Tilley was not an “eligible employee” under the statute. Plaintiff appealed the judgment on May 29, 2014. (ECF No. 42.) On January 26, 2015, the Sixth Circuit reversed this Court’s entry of judgment on Tilley’s claims under the FMLA. (ECF No. 43.) Accordingly, the matter presently before the Court is the other bases on which Defendants sought summary judgment on the FMLA interference and retaliation claims. For the reasons that follow, the Court finds that there are no genuine issues of material fact, and will grant Defendants’ motion.

Given the breadth and depth of the written briefs and evidence that have already been filed in this matter, the Court holds that further briefings and oral argument are unnecessary for the disposition of the motions. See W.D. Mich. LCivR 7.2(d); see also Himes v. United States, 645 F.3d 771, 784 (6th Cir. 2011). The facts are familiar to the parties and the Court. (Op. 1-4, ECF No. 39.)


The Federal Rules of Civil Procedure require the Court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When the moving party will not carry the burden of proof at trial, the party must identify “those portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). A defendant moving for summary judgment is not required, however, to “support its motion with affidavits or other similar materials negating the opponent’s claim.” Id.

In considering a motion for summary judgment, “the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007)). Nevertheless, the mere existence of a scintilla of evidence in support of a non-movant’s position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.; see generally Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).


Plaintiff claims that Defendants interfered with his rights under the FMLA by refusing to allow him to come back to work after he took FMLA leave. Plaintiff also claims that Defendants retaliated against him under the FMLA by terminating him.

Recovery under the FMLA is available under two distinct theories. The “retaliation, ” or “discrimination, ” theory arises under § 2615(a)(2), which prohibits an employer from discharging or discriminating against an employee who exercises his FMLA rights. See Arban v. West Pub Corp., 345 F.3d 390, 401 (6th Cir. 2003). The “interference, ” or “entitlement, ” theory arises under 29 U.S.C. § 2615(a)(1), which prohibits an employer from interfering with, restraining, or denying the exercise of FMLA rights, and under § 2614(a)(a), which requires an employer to restore the employee to his former position or an equivalent position following his return from FMLA leave. See Arban, 345 F.3d at 400-01. The Court analyzes both theories under the familiar burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).

A. Retaliation

To establish a prima facie claim of retaliation under the FMLA, a plaintiff must show: (1) the plaintiff was engaged in an activity protected by the FMLA; (2) the employer knew that the plaintiff was exercising his rights under the FMLA; (3) after learning of the plaintiff’s exercise of FMLA rights, the employer took an employment action adverse to him; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. Donald, 667 F.3d at 761.If the defendant can proffer a legitimate, nondiscriminatory reason for terminating the plaintiff, the burden shifts back to the plaintiff to show that the defendant’s stated reasons are a pretext for unlawful discrimination. Id.

The parties dispute whether Plaintiff’s absence beginning on August 1 was an exercise of his rights under FMLA and whether he provided adequate notice that his absence qualified him for rights under FMLA. It is undisputed that Plaintiff did not formally request FMLA leave until August 17, 2011, two days after his effective termination date. Although Plaintiff claims he notified Mr. Bartholomew by telephone regarding his medical status, Plaintiff failed to submit the FMLA certification paperwork as completed by his physician until after his termination. (ECF No. 31, Exs. 51, 52.) The parties also dispute whether there is a causal connection between Plaintiff’s leave and his termination.

Even assuming that Plaintiff has established a prima facie case of retaliation, Defendants have offered a legitimate, nondiscriminatory reason for terminating Plaintiff. Plaintiff’s termination letter details the shortcomings of his performance and quotes the relevant portions of the personnel manual that justify his dismissal under the circumstances. (Def.’s Ex. 13, 46–50; ECF No. 30-2.) Plaintiff had been previously suspended and reprimanded on numerous occasions. On July 21, 2011, prior to the onset of any qualifying health condition under the FMLA, Defendants issued a final warning to Plaintiff that continued performance deficiencies would result in termination. (ECF No. 31, Ex. 40.) Plaintiff still failed to complete his assignments by the ...

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