United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
L. LUDINGTON United States District Judge.
December 8, 2015, Plaintiff Kendra Scott filed a Complaint
against Defendant Valley Electrical Contractors, Inc.
(“VEC”). Compl., ECF No. 1. Scott alleges that
VEC refused to rehire her after she took maternity leave, in
violation of the Family and Medical Leave Act
(“FMLA”), 29 U.SC. § 2612, et seq.,
and the Elliot-Larsen Civil Rights Act (“ELCRA”),
Mich. Comp. L. § 37.2102, et seq. Discovery
closed on September 2, 2016. ECF No. 10. On September 28,
2016, VEC filed a motion styled, alternatively, as a motion
to dismiss and a motion for summary judgment. ECF No. 16. For
the reasons stated below, VEC's motion will be granted.
Scott began working at VEC as an office professional in
November 2008. Scott Dep. at 59-69, ECF No. 16, Ex. A. VEC
provides electrical contracting services to commercial and
residential customers in mid-Michigan. Id. at 70,
Scott's initial interview, she discussed the job duties
and responsibilities with Linda Parsons and Lori Johnson, two
VEC employees. Id. at 63. Scott alleges that, during
the interview, she asked about job security. Id. at
64. According to Scott, she was jokingly told that she would
work at VEC until she died. Id. Scott admits that
there is no written communication between her and VEC which
formally guaranteed that Scott had job security for as long
as she wanted, but indicates that she took the comment
“to heart.” Id. at 64-65. VEC denies
that Scott was told during her interview that she would have
a job at the company until she died. VEC also emphasizes that
Scott admitted in her deposition that the comment about job
security was made as a joke.
Scott started working at VEC, she had one child, named
Abigail Emmons. Benson Dep. at 7, ECF No. 16, Ex. F. Scott
almost lost Abigail early in the pregnancy. Scott Dep. at
103. Scott worked at VEC without incident until February
2013, when she discovered that she was pregnant. Id.
at 21. Because of the complications she experienced with
Abigail, Scott did not immediately make her pregnancy public
knowledge. Id. at 90. Scott alleges that, when she
told VEC coworkers she was pregnant, the reaction was mixed.
Id. at 104. According to Scott, “Jamie never
congratulated me my entire pregnancy. Lori hesitantly
congratulated me. . . . Linda, her comment to me was we
thought you were done having kids and that she heard from
Jamie.” Id. at 104-05.
asserts that Lori Johnson made negative comments about her
pregnancy on a “weekly, sometimes daily basis.”
Id. at 21. Specifically, Scott alleges that Johnson
asked if Scott would be able to handle five children, how
long Scott's maternity leave would be, and whether Scott
was going to have a cesarean-section delivery. Id.
According to Scott, when Scott left for doctor appointments,
Johnson would make comments to the effect that “[i]t
must be nice to leave to go to the doctor because you're
pregnant” or become upset and stop speaking to Scott.
Id. at 24. Danielle Benson confirmed that Johnson
asked Scott when and for how long Scott would be taking
leave, but did not witness Johnson making the other allegedly
harassing comments. Benson Dep. at 11-12. Scott complained to
Linda Parsons about the comments, but Parsons told her that
there was nothing she could do. Scott Dep. at 30. Johnson
denies making any of the alleged comments. Johnson Dep. at
February 2013, Kyra Larson, Linda Johnson's
granddaughter, also became pregnant. Id. at 14-15.
At the time, Larson was a part-time office professional at
VEC. Larson Aff. at 2, ECF No. 16, Ex. H. After she became
pregnant, Larson informed her coworkers that she was not
planning to return to work at VEC after she gave birth.
Id. Larson voluntarily resigned her employment in
June 2013. Id. Larson was not replaced by a new
employee. Scott Dep. at 28-29. Scott alleges that the office,
and specifically Linda Johnson, reacted differently to
Larson's pregnancy than to Scott's pregnancy. Johnson
admits that she never asked Larson if she would be able to
handle her baby or made other comments that could be
construed as derogatory. Johnson Dep. at 15-16. Benson
testified at her deposition that Johnson seemed more excited
about Larson's pregnancy than Scott's pregnancy.
Benson Dep. at 20-21.
also argues that VEC employees harassed her regarding an
allergy. Scott has a fish allergy. See Benson Dep.
at 15-16. Further, her VEC coworkers were aware of that
allergy. See id.; Parsons Dep. at 18; Johnson Dep.
at 16. Scott alleges that fish was brought into the VEC
office at least twice, once before her pregnancy and once
during her pregnancy. Scott Dep. at 95. When the fish was
brought in the first time, Scott's eyes swelled shut.
Id. She asserts that several VEC executives, Jerry
Whittington, Mike Parsons, and Mike Tromley, mocked her
allergy when the fish was brought in the second time.
Id. at 95-96.
promulgated a Personnel Policies and Procedures Handbook,
which includes policies for employees seeking medical leave.
Handbook, ECF No. 16, Ex. D. The Handbook specifies that
employment is at-will. Id. at 1. It also states that
sexual harassment, discrimination, and retaliation are
strictly prohibited. Id. at 42-43. If an employee
believes that they have been discriminated against, they must
complete a complaint form to initiate an investigation.
Id. at 37, 40. Scott does not allege that she ever
completed a complaint form. Additionally, the Handbook
specifies VEC's policies for FMLA leave. The Handbook
explains: “When the need for leave is foreseeable, such
as the birth or adoption of a child, . . . the employee must
provide reasonable prior notice, and make efforts to schedule
leave so as not to disrupt company operations.”
Id. at 15. Employees are directed to submit a form,
included in the Handbook, requesting FMLA thirty days in
advance of the effective date of the leave, if possible.
Id. at 15-16; 45 The Handbook also explains that
VEC's FMLA policies “apply to all family and
medical leaves of absence except to the extent that such
leaves are covered under other paid employment benefit plans
or policies for any part of the twelve weeks of leave to
which the employee may be entitled under this policy.”
Id. at 13-14. At the time Scott and Larson became
pregnant, VEC did not have an official policy for leave.
Parsons Dep. at 20. However, Parsons told Scott that VEC
would give her six weeks of paid leave and cover her
insurance for those weeks as well. Id. Parsons gave
Larson two weeks of paid leave because Larson was part-time.
asserts that she never received a copy of VEC's Handbook
or specific training in the policies and procedures contained
therein. Scott Dep. at 77. However, there is no dispute that
Scott did not complete the FMLA request included in the
Handbook or otherwise formally request FMLA leave.
gave birth to her son, Gavin, on October 7, 2013. Scott Dep.
at 107. Her maternity leave began on October 4, 2013.
Id. at 108. Several weeks after giving birth, Scott
stopped by VEC with Gavin. Compl. at ¶ 23, ECF No. 1.
While there, Scott was informed that business was slow. Scott
Dep. at 120. On November 14, 2013, she emailed Linda Parsons.
Id. at 119-120. In the email, Scott discussed her
schedule in the future:
When I came in the other day everyone said we were extremely
slow. I was thinking about it. Is there any chance of being
an hourly full time? Like weeks with Abigail: 8:45-3:15 and
no lunch (she is going to be needing extra help after school)
she is being tested for a.d.d. and dyslexia. . . . If this
can't happen I completely understand and you have been so
great helping me. Thank you for that. Just let me know and of
course vacations / or if someone has something going on I
could stay on those days.
Email at 1, ECF No 20, Ex. 10.
responded as follows: “Would it help if you took a lay
off until January. Would that give you more time with Abby? I
would still cover your insurance, because I know you need
that with the little ones.” Id. Scott replied:
“I guess I have a few questions: It would be for sure
in January? I really need my job[.] Not sure when I would
apply. Next week? That is such a nice offer with everything
that is going on.” Id. Before Parsons
responded, Scott sent another email:
I did talk with [my husband] Tim last night. He thought it
might be a good thing for the extra time. . . . Kind of
scared not to work but this would give me a little more time
to get Abigail on track. Tim said we could make it to January
on unemployment. Things get a little tight with the holidays
but his work could get us by for now. Thank you so much for
everything you have done for me. If something happens and you
need me before January I'm here.
Id. at 2.
response, Parsons stated: “I hope this makes this
easier for you and Abby. You may be away from me but your
[sic] in my thoughts.” Id. In her deposition,
Scott testified that, at the time she took the voluntary
layoff, she knew that she would be ineligible for
unemployment benefits if she took an FMLA leave. Scott Dep.
December 9, 2013, Scott emailed Parsons again. In the email,
Scott explained: “They have denied my unemployment
because I am not seeking work. . . . I have to protest now
and was wondering is [sic] you could write. Something with my
name, returning to work, with my claim number.” Dec. 9,
2013, Email, ECF No. 20, Ex. 11. Parsons then sent a notice
to the unemployment agency: “Please be advised that
Valley Electrical laid Kendra Scott off with the intentions
of bringing her back to work in January 2014.” Notice,
ECF No. 20, Ex. 12. Scott attended the VEC Christmas party in
December, but testified that she did not feel welcome. Scott
Dep. at 220-21.
December 30, 2013, Scott emailed Parsons about her return to
work. In the email, she said: “I wasn't sure when
my return to work date was going to be. I know you said after
the first. Wasn't sure if that was going to be the Monday
after the first or later in January. Just let me know.
Whatever will work fine with me.” Dec. 30, 2013, Email,
ECF No. 20, Ex. 13. Parsons responded: “Let's ...