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Scott v. Valley Electrical Contractors, Inc.

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

December 6, 2016

KENDRA SCOTT, Plaintiff,
v.
VALLEY ELECTRICAL CONTRACTORS, INC., Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          THOMAS L. LUDINGTON United States District Judge.

         On 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.

         I.

         Kendra 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, 76.

         A.

         At 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.

         When 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.”[1] Id. at 104-05.

         Scott 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 13-14.

         In 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.

         Scott 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.

         B.

         VEC has 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. Id.

         Scott 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.

         C.

         Scott 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.

         Nov. 14 Email at 1, ECF No 20, Ex. 10.

         Parsons 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.

         In 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. at 127-28.

         On 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.

         On 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 ...


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