United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND DENYING MOTION FOR PROTECTIVE ORDER AND
MOTION ADJOURN AS MOOT
L. LUDINGTON United States District Judge.
Kim Tillotson filed a complaint naming his former employer,
The Manitowoc Company, Inc., (“Manitowoc”) as a
Defendant and alleging violations of the Family
Medical Leave Act (“FMLA”), 29 U.S.C. §
2601, et seq., and the Elliot-Larsen Civil Rights
Act (“ELCRA”), M.C.L. § 37.2201, et
seq. ECF No. 1. On January 6, 2016, eight days later,
Tillotson filed an amended complaint, which brought the same
two claims. ECF No. 4. Manitowoc responded with a
motion for summary judgment, ECF No. 29, and three weeks
later filed a motion for a protective order, ECF No. 32. In
the motion for a protective order, Manitowoc seeks to prevent
Tillotson from deposing a witness after the close of
discovery. Tillotson then filed a motion to adjourn the trial
on January 24, 2017. ECF No. 40. For the reasons stated
below, Manitowoc's motion for summary judgment will be
granted. Because they are moot, the motion for a protective
order and motion to adjourn trial will be denied.
facts of the case are to be be construed in the light most
favorable to Tillotson in addressing Manitowoc's motion
for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Plaintiff Kim
Tillotson was hired by The Delfield Company, LLC, in 1983.
Tillotson Dep. at 9-10, ECF No. 29, Ex. 1. The Delfield
Company, LLC, was a subsidiary of Enodis PLC at the time.
Greenberg Decl., ECF No. 29, Ex. 4. In 2008, The Manitowoc
Company, Inc., acquired Enodis and all its subsidiaries,
including The Delfield Company, LLC. Id. The
Delfield Company, LLC, was organized as a subsidiary of
Manitowoc Foodservice, Inc., which was owned by The Manitowoc
Company, Inc. Id. On March 4, 2016, several months
after this case was filed, The Manitowoc Company, Inc.,
separated from Manitowoc Foodservice, Inc. Id. The
Manitowoc Company, Inc., is the named Defendant in this case.
being hired, Tillotson has held several positions within the
company. Although Tillotson began as a customer
services representative, he became a sales engineer after
about ten years. Id. at 24-25. In approximately May
of 2003, Tillotson became an internal sales manager.
Id. at 26. In 2013, Tillotson changed jobs again,
becoming a product sales manager. Id. at 29. Product
sales managers are assigned territories and are responsible
for generating business within those regions. Id. at
Tillotson first started as a product sales manager, his
supervisor, Bill Hoffman, did not immediately assign
Tillotson a sales territory. Tillotson Dep. at 33. Rather,
Mr. Hoffman gave Tillotson time to learn the position. During
that period, Tillotson “filled in wherever . . .
needed.” Id. at 32. After approximately one
month, Tillotson was assigned a territory consisting of
Louisiana, Tennessee, and California. Id. at 34.
Tillotson's territory was not geographically contiguous
because product sales manager responsibilities were defined
by the assigned sales persons, not necessarily geographic
regions. Id. When assigned this region, Tillotson
spent approximately 30 percent of his time traveling.
Id. at 35. Over time, the work load increased, and
during busy seasons Tillotson spent up to 45 percent of his
time traveling. Id. at 37. Most of Tillotson's
flights during this time were two hours in
length. Id. Flights to California took
four hours. Id. at 38. Tillotson would also attend
trade shows and conferences around the country several times
a year. Id. at 38-39. Mr. Hoffman evaluated
Tillotson's performance at the end of 2013. 2013 Eval.,
ECF No. 31, Ex. 3. Mr. Hoffman's comments and conclusions
were uniformly positive. Id. Tillotson's
“manager calculated overall ranking” was
“significantly exceeds calculations, ” while
Tillotson's overall “manager's rating”
was “meets all expectations, exceeds some.”
January of 2015, Tim Wilczak became Tillotson's new
supervisor. Id. at 39. Mr. Wilczak gave Tillotson an
annual performance review for 2014. 2014 Eval., ECF No. 31,
Ex. 5. The “manger calculated overall rating” and
“manager's rating” for 2014 were identical:
“meets all expectations, exceeds some.”
Id. Besides Tillotson, Jeff Michael and Pam Sharrar
were also serving as product sales managers during this time.
Id. Because Ms. Sharrar was inexperienced, she did
not have an assigned territory at this point. Id.
After Mr. Wilczak became Tillotson's supervisor,
Tillotson's sales responsibilities changed. Id.
at 41. Tillotson volunteered to handle Delfield's two
largest territories, which covered clients in Indiana,
Michigan, Ohio, Georgia, and Tennessee. Id. at
41-43. Jeff Michael opposed grouping those territories
together, arguing that the combined territories were too
large for one person to effectively handle. Id. at
41. Tillotson told Mr. Michael that he wanted the new
assignment because it would reduce his travel distance.
Id. at 41-42. Tillotson acknowledges that he did not
tell anyone that he did not want to continue traveling to
California. He also specifically denies telling anyone that
he needed to make the change in assignments for medical
reasons. Id. After switching territories,
Tillotson's flights lasted no more than two or two and
one-half hours, with the exception of one flight to
California. Id. at 42-43. During this time period,
Tillotson did not disclose the medical issues he was
suffering from to Delfield. Id. at 44. In
Tillotson's own words, “I did my job duties to the
best of my abilities and hid everything.” Id.
though he had not disclosed them openly to Delfield,
Tillotson had been struggling with certain medical issues for
some time. Tillotson's primary medical condition is
referred to as “dumping syndrome.” Id.
at 65. The condition originated in the 1980s, when Tillotson
had surgery to correct a stomach ulcer. Id. at 45.
Unbeknownst to Tillotson, the surgeon accidentally damaged
the vagus nerves in his stomach. Id. Because of that
damage, Tillotson's food moves through his intestines
quickly, sometime as soon as ten minutes after eating.
Id. at 76. Tillotson can feel normal for days or
weeks at a time, and then have weeks where he is forced to
use the restroom up to eight times a day. Id. at
75-76. Tillotson also experiences heart palpitations, which
he believes are connected to the dumping syndrome.
Id. at 66. Tillotson takes dicyclomine to soothe his
intestinal track. Id. at 76. He also takes
duloxetine for depression and anxiety. Id.
Mr. Wilczak took over from Mr. Hoffman as his supervisor,
Tillotson's workload increased. Tillotson Dep. at 36-37.
He believed that, given his medical issues, he could not
maintain the increased schedule. Id. at 71. He also
believed that the severity of his symptoms was due, in part,
to the stress of his responsibilities. Id. at 70. At
some point in 2014, Tillotson talked briefly with Kevin
Humphreys, a human resources representative, about his
medical problems. Id. at 84-85. Mr. Humphreys
provided Tillotson some information about requesting medical
leave, but Tillotson did not take any action during 2014.
Id. In January 2015, Tillotson spoke with Mr.
Humphreys again. Id. at 85. According to Mr.
Humphreys, Tillotson stated that his medical issues were
“flaring up” and that “he was having a
tough time getting on top of it.” Humphreys Dep. at 9,
ECF No. 31, Ex. 6. Mr. Humphreys told Tillotson that he
should document his medical issues and contact Matrix Absence
Management, Inc. (“Matrix”), a third-party
company that The Manitowoc Company had contracted with to
handle applications for leaves of absence. Id. at
February 14, 2015, Tillotson submitted a leave request to
Matrix. Leave Request, ECF No. 31, Ex. 7. Tillotson Dep. at
68. Tillotson testified that his intent was to protect his
rights under the FMLA and determine if he was qualified for
disability or other benefits. Id. The request stated
that Tillotson's “last day of work” would be
February 26, 2015. Leave Request at 1. Tillotson also stated
that he was not requesting intermittent or part-time leave.
Id. In his deposition, Tillotson testified that,
despite the representations he made on the leave request, he
was primarily seeking to begin a dialogue with the company
about his medical issues rather than requesting a specific
amount of leave. Tillotson Dep. at 68-70. In a conversation
with his doctor, Tillotson stated that he could not
financially afford to stop traveling completely, despite his
doctor's recommendation that he cease all traveling.
Id. at 72. Rather, Tillotson asked his doctor to
report that he was only partially disabled so that he could
stay employed. Id.
February 18, 2015, Matrix notified Tillotson that his request
had been received and that Tillotson was potentially eligible
for leave under the FMLA, with final approval dependent on
medical certification of his serious health condition. Matrix
Feb. 18, 2015, Letter, ECF No. 31, Ex. 8. The letter further
stated that “[i]f the Certification of Health Care
Provider form does not contain sufficient information to
approve your absence, Matrix will return it to you with a
request for additional information.” Id. at 2.
February 23, 2015, Dr. Scott Vogel submitted a medical
certification form to Matrix. Vogel Cert., ECF No. 31, Ex. 9.
Dr. Vogel indicated that Tillotson was suffering from dumping
syndrome and that he had achieved “maximum medical
improvement.” Id. at 2. Dr. Vogel further
stated that Tillotson's medical condition would continue
indefinitely. Id. at 3. He recommended the following
work restrictions: “No prolonged travel or activities
greater than 1-2 hours w/o ability to take a bathroom
break.” Id. The form did not indicate that
Tillotson required leave or otherwise recommend immediate
February 26, 2015, Matrix sent Tillotson a letter denying his
request for FMLA leave “because the health care
provider completing your leave certification form did not
certify the leave as being related to a serious health
condition.” Matrix Feb. 26, 2015, Letter, ECF No. 31,
Ex. 10. Matrix's internal records further provide that
the FMLA request was denied because the medical certification
did not support a level of impairment that would prevent
Tillotson from performing his job and Dr. Vogel did not
indicate that Tillotson was incapable of working. Matrix
Records at 22, ECF No. 29, Ex. 6A. Several weeks later,
Tillotson's request for short-term disability benefts was
also denied by Matrix. Tillotson Dep. at 123.
April 27, 2015, Dr. Vogel issued new work restrictions for
Patient should not travel more than 2 hours, and should not
exceed 8 days away from home per month. These days away from
home should not eceed [sic] 8 consecutive days. Travel of
longer distances should be limited to 3 days per quarter. No
prolonged travel or activities of greater than 1 to 2 hours
without having a bathroom break.
Vogel April 27, 2015, Eval., ECF No. 31, Ex. 12.
provided Dr. Vogel's updated recommendations to Mr.
Humphreys, who scheduled a meeting with Tillotson and Mr.
Wilczak. At that meeting, Tillotson presented Dr. Vogel's
updated restrictions. Tillotson Dep. at 129-130. The three
decided that no immediate adjustments to Tillotson's
schedule or responsibilities were necessary. Id. at
130-31. Although Tillotson believed future changes would be
necessary, it is unclear whether Mr. Wilzcak agreed.
Id. Regardless, no changes to Tillotson's duties
were made at the time, nor were any changes necessary based
on Dr. Vogel's recommendation. Id. at 131
(“Q: So between May of 2015 and November of 2015, no
adjustments or revisions had to be made to your job duties in
order to fit within this plan, did they? A: That would be
April 2015, there was a “reduction in force” at
both the Manitowoc Food Service, Inc., and The Manitowoc
Company, Inc. Humphreys Dep. at 36. Tillotson appears to have
been considered for discharge at that time, but his job was
not eliminated. Id. at 36-37. Although the precise
timeline is unclear, it appears that the decision to retain
Tillotson through the April 2015 reduction was made before
Tillotson disclosed the details of his travel restrictions to
Mr. Wilzcak. After the May 2015 meeting, Mr. Wilczak reported
the details of his conversation with Tillotson about
potential work limitations to Mr. Willoughby, the Vice
President of Sales for Manitowoc Foodservice, Inc. Wilczak
Dep. at 30.
the same time, Mr. Humphreys walked past Mr. Wilzcak's
office and overheard an “unpleasant” phone
conversation. Humphreys Dep. at 26. After the call, Mr.
Humphreys asked Mr. Wilzcak how he was doing. Id.
Mr. Wilzcak told Mr. Humphreys that he had just talked to Mr.
Willoughby and that Mr. Willoughby was not happy.
Id. When Mr. Humphreys asked what the problem was,
Mr. Wilzcak explained that Tillotson had been the subject of
the phone call. Id. at 26-27. According to Mr.
Wilczak, Mr. Willoughby said “you can't have a
sales guy who can't travel.” Id. at 27.
Mr. Humphreys contested that idea, reminding Mr. Wilczak that
the two of them had agreed with Tillotson that they
“could make [the travel restrictions] work.”
Id. Mr. Wilczak then told Mr. Humphreys that he had
told Mr. Willoughby the same thing, but that Mr. Willoughby
had replied, “we'll go with this for now.”
in the summer of 2015, Mr. Humphreys learned that the company
was considering another reduction in force and that Tillotson
was a candidate for discharge. Id. at 28. Worried
that the decision-makers might not be privy to all
information revealed in the May 2015 meeting with Tillotson,
Mr. Humphreys called a human resources employee, Trisha Hall.
Id. at 29. He told Ms. Hall about the meeting with
Tillotson, including the fact that the no accommodations were
needed to his present duties. Id. According to Mr.
Humphreys, Ms. Hall responded: “You can't have a
salesperson that can't travel.” Id. at 30.
Mr. Humphreys then reiterated that it was only a restriction
on travel, not a complete ban. Id.
November 2015, Mr. Willoughby called Mr. Wilczak and directed
him to terminate Tillotson's employment. Wilczak Dep. at
35. According to Mr. Willoughby, there were twenty-seven
product sales managers prior to the reduction in force.
Willoughby Decl. at 1. During the November 2015 reduction,
eight of those managers were released, including
Tillotson. Id. Mr. Willoughby asserts that
he was instructed to eliminate one of the four product sales
managers at Delfield. Id. To decide which one was
released, Mr. Willoughby analyzed Manitowoc Foodservice,
Inc.'s, “9-Box” rubric. Id. That
rubric “ranked the performance and potential of each
[product sales manager].” Id. The 9-Box was
created during Manitowoc Foodservice, Inc.'s, annual
talent assessment process. Id. at 2. To rate a product
sales manager's “performance, ” the company
considered the individual's ability to execute sales
“by reviewing monthly sales targets and feedback from
customers and reps.” Id. To determine the
“potential” rating, the company considered past
actions that would “predict future performance/actions,
focusing on whether the individual has been able to readily
establish a rapport with customers and reps and solidify
business relationships . . ., such that he/she can push
business forward.” Id.
to Mr. Willoughby, at the time of the November 2015
reduction, Tillotson had the lowest ranking of the four
product sales managers employed at Delfield. Id. Tim
Wilczak had a “High Performance/High Potential”
ranking. Id. Jeffrey Michael had a “High
Performance/Medium Potential” ranking. Id. Pam
Sharrar had a “Medium Performance/High Potential”
ranking. Id. Tillotson had a “Medium
Performance/Medium Potential” ranking. Id. Mr.
Willougby represents that he selected Tillotson for
elimination because he “believed he had the least
ability to perform the work required to be performed after
completion of the [reduction in force].” Id.
has moved for summary judgment. A motion for summary judgment
should be granted 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). The moving party has the initial burden of identifying
where to look in the record for evidence “which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The burden then shifts to the opposing
party who must set out specific facts showing “a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (citation
omitted). The Court must view the evidence and draw all
reasonable inferences in favor of the non-movant and
determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52.
has alleged interference with his FMLA rights and retaliation
for attempting to exercise his FMLA rights. He has also
alleged that Manitowoc engaged in age discrimination in
violation of the ELCRA. Manitowoc seeks dismissal of
Tillotson's FMLA and ELCRA claims.
FMLA entitles employees to an annual total of twelve weeks of
leave for a number of reasons including, inter alia, because
of a “‘serious health condition that makes the
employee unable to perform the functions of the position of
such employee.' ” Arban v. West Publ'g
Corp., 345 F.3d 390, 400 (6th Cir.2003) (quoting 29
U.S.C. § 2612(a)(1)(D)). The FMLA makes it unlawful for
any employer “to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided
[by the Act], ” 29 U.S.C. § 2615(a)(1), or to
“discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by
[the Act].” Id. at § 2615(a)(2).
Sixth Circuit has recognized two discrete theories of
recovery under the FMLA: (1) the “interference”
theory arising under § 2615(a)(1), and (2) the
“retaliation” theory arising from §
2615(a)(2). Seeger v. Cincinnati Bell Telephone Co.,
LLC, 681 F.3d 274, 282 (6th Cir. 2012). The main
distinction between the two theories is the employer's
intent. The interference theory has its roots in the
FMLA's creation of substantive rights, and “[i]f an
employer interferes with the FMLA-created right to medical
leave or to reinstatement following the leave, a violation
has occurred, ” regardless of the intent of the
employer. Id. (quoting Arban v. West Pub.
Co., 345 F.3d 390, 401 (6th Cir. 2003)). In contrast,
the central issue raised by the retaliation theory is
“whether the employer took the adverse action because
of a prohibited reason or for a legitimate nondiscriminatory
reason.” Id. (quoting Edgar v. JAC Prods.,
Inc., 443 F.3d 501, 508 (6th Cir. 2006)). In other
words, an employer's intent is relevant only in