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Tillotson v. Manitowac Co., Inc.

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

February 3, 2017



          THOMAS L. LUDINGTON United States District Judge.

         Plaintiff Kim Tillotson filed a complaint naming his former employer, The Manitowoc Company, Inc., (“Manitowoc”) as a Defendant[1] 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.[2] 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.


         The 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.

         Since being hired, Tillotson has held several positions within the company.[3] 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 30.


         When 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.[4] 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.” Id.[5]

         In 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.[6] In Tillotson's own words, “I did my job duties to the best of my abilities and hid everything.” Id.


         Even 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.


         When 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 10.

         On 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.

         On 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.

         On 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 action.

         On 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.

         On April 27, 2015, Dr. Vogel issued new work restrictions for Tillotson:

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.

         Tillotson 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 correct; yes.”).


         In 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.

         Around 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.” Id.

         Later 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.

         In 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.[7] 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.[8] 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.

         According 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.


         Manitowoc 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.


         Tillotson 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.

         The 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).

         The 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 retaliation ...

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