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Ankofski v. M&O Marketing, Inc.

United States District Court, E.D. Michigan, Southern Division

November 4, 2016

M&O MARKETING, INC., a Michigan Corporation, and TIMOTHY J. OTTO, an Individual, jointly and severally, Defendants.




         This is a disability discrimination and retaliation case. Plaintiff Kimberly Ankofski alleges that Defendants M&O Marketing and Timothy Otto did not accommodate her disability of right vocal cord paralysis, fired her the day before she was to return to work following surgery for her illness, and did not hire her to an open position in retaliation for her filing a complaint with the Equal Employment Opportunity Commission. Defendants argue that the Court must dismiss the case because the parties agreed to arbitrate disputes like this, and that the Court must dismiss the case as to Defendant Otto because the Americans with Disabilities Act does not permit individual liability. Because the arbitration provision resides in a confidentiality agreement that expressly disclaims being an employment agreement, and because Defendant M&O will be liable for any actions of Defendant Otto taken in his official capacity, Defendant's motion is DENIED IN PART AND GRANTED IN PART.


         Plaintiff began working for Defendant M&O in September of 1996. Around 2006, Defendant M&O promoted Plaintiff to the position of Executive Administrative Coordinator. In that role, Plaintiff worked both as a receptionist and as an assistant for administrative and warehousing tasks.

         In 2010, Plaintiff and Defendant M&O entered into a “Confidentiality and Non-Solicitation Agreement” (signed on Defendant M&O's behalf by Defendant Otto in his capacity as President of M&O). Dkt. 17, Ex. 1. The agreement recited that Defendant M&O was in the business of soliciting and recruiting customers in the financial services industry, that as part of her employment Plaintiff would have access to valuable trade secrets and confidential information, and that Defendant M&O spent time and resources to develop its customer base and desired to protect that base. Id. at p. 2.

         The agreement also contained an arbitration provision, which required the parties to resolve by arbitration “[a]ny controversy, claim or dispute arising out of or relating to [the Confidentiality and Non-Solicitation Agreement].” Id. at p. 6. Also in the Agreement, under a section labeled “Job Duties and Responsibilities, ” the parties noted that Plaintiff was to devote her full time, energies, and skills to performing her job. Id. at 2. The parties agreed, however, that the Confidentiality and Non-Solicitation Agreement was “not intended to be, and shall not be interpreted as, an employment contract.” Id. And, finally, the parties agreed that Plaintiff was an “at will” employee. Id.

         In the summer of 2013, Plaintiff was diagnosed with right vocal cord paralysis, which limited her ability to breathe and talk. In January and February of 2014, Plaintiff asked Defendant M&O to accommodate her disability by relieving her of her receptionist duties but permitting her to continue her administrative and warehousing assistant duties. Defendant M&O denied Plaintiff's request. So in February 2014 Plaintiff took leave under the Family Medical Leave Act and underwent surgery.

         While Plaintiff was on leave, Defendant M&O assigned two employees to cover Plaintiff's receptionist duties, and Sara Mullins to cover Plaintiff's administrative and warehousing assistant duties. Ms. Mullins received the title “full-time Supply Coordinator.”

         On May 6, 2014, Plaintiff's doctor cleared her to return to work with restrictions on using her voice. Plaintiff called Human Resources at Defendant M&O to let them know she would be returning to work the next day. Shortly after that call, Defendant Otto called Plaintiff to “save her the trip” of returning to work. Defendant Otto told Plaintiff that she could not return to work with any restrictions, and that she was being terminated. Plaintiff asked to be put in an open position that she could perform without restriction. Defendant Otto replied that he could not have Plaintiff working at the company with her condition and that there were no open positions.

         After the call, and still on May 6, 2014, Plaintiff learned that Sara Mullins had recently resigned her position as Supply Coordinator, meaning there was a full-time position open that Plaintiff could perform without any accommodation. Plaintiff contacted the Supply Manager about the open position, told him that she could perform the job without restrictions, and submitted her resume. Defendant M&O gave the job to another applicant.

         Plaintiff filed charges with the Equal Employment Opportunity Commission on November 19, 2014. A few months later, Defendant M&O posted an open Supply Coordinator position on both and Two days after the posting went live, Plaintiff emailed Defendant M&O asking to be considered for the position. Defendant M&O responded that it would not consider her for the position because of the EEOC charges she filed.

         After a nine-month investigation, the EEOC determined that reasonable cause existed that Plaintiff's firing constituted discrimination. The EEOC issued a Notice of Right to Sue, and Plaintiff filed this lawsuit on January 3, 2016, alleging discrimination and retaliation. Defendant filed an answer and affirmative defenses, and then amended its answer to include the affirmative defense of required arbitration.

         Defendants now argue that the Court should dismiss the case because the Confidentiality and Non-Solicitation Agreement requires the parties to arbitrate Plaintiff's claims. Defendant Otto also argues that the Court should ...

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