United States District Court, E.D. Michigan, Northern Division
DENYING DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A
MATTER OF LAW, DENYING DEFENDANT'S MOTION FOR ORDER OF
JUDGMENT AS MOOT, GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST AND
LIQUIDATED DAMAGES, GRANTING IN PART PLAINTIFF'S MOTION
FOR ATTORNEY FEES, AND DIRECTING SUBMISSION OF PROPOSED
L. LUDINGTON United States District Judge
Amanda Perry filed suit against her former employer,
Defendant Covenant Medical Center (“Covenant”) on
March 19, 2016, claiming that she was wrongfully terminated
from her position as an office coordinator for a group of
physicians. Specifically, Perry claimed that Covenant
violated the Family Medical Leave Act (“FMLA”),
29 U.S.C. § 2611, et seq., and Michigan's
People with Disabilities Civil Rights Act
(“PWDCRA”) when it terminated her employment.
December 21, 2015 Defendant Covenant filed a motion for
summary judgment, seeking judgment on both of Perry's
claims. Mot. for Summ. J., ECF No. 18. Because Defendant did
not demonstrate the absence of any material questions of
fact, Defendant's motion was denied, and a jury trial
commenced on June 14, 2016. At the close of Plaintiff's
case, Defendant moved for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(a). The Court
took the motion under advisement and submitted the issue to
the jury. After deliberating, the jury returned a verdict in
favor of Plaintiff and against Defendant in the amount of
$500, 000. ECF No. 37. Defendant then renewed its motion for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(b), or in the alternative for a new trial.
See ECF No. 40. Based on the following,
Defendant's renewed motion for judgment as a matter of
law will be denied, and judgment will be entered in favor of
Plaintiff. Plaintiff's post-trial motions for prejudgment
interest, liquidated damages, attorneys' fees, and costs
will also be resolved.
Perry began her employment with Defendant Covenant on
September 17, 2010 as a part-time biller. Perry Tr. 5-7. She
eventually received a full-time position, and was then
promoted to the position of Office Coordinator on August 26,
2012. Id. at 8, 10-11. In her new position, her
initial assignment was to coordinate the physician practices
at Covenant's Bridgeport and Frankenmuth locations.
Id. at 11-12.
January of 2014, Covenant replaced Perry's supervisor
with a woman named Rebecca Krueger. Id. at 14-15. On
March 4, 2014 Plaintiff Perry requested intermittent FMLA
leave in order to take care of her son, who had been in a car
accident. See Perry Tr. 19-20; Trial Exs. 9-12.
Human resources approved the leave request on March 5, 2014.
Id. As a result Perry took off work continuously
from March 4, 2014 to March 12, 2014. Perry Tr. 19-20. She
does not allege that Defendant subjected her to any
discrimination or retaliation for exercising her FMLA rights
on this occasion.
received mostly positive reviews throughout her time with
Covenant, and an “Exceeding Expectations” review
as recently as May 3, 2014 from Ms. Krueger. See
Trial Ex. 8. However, Defendant alleges that Perry began
having performance issues at work in the late spring and
early summer of 2014.
alleges that in the summer of 2014 she began suffering from
numerous mental health issues, both resurgent and newly
diagnosed. Perry testified that in July of 2014 she informed
Ms. Krueger of her previous bipolar disorder diagnosis. Perry
Tr. 23-24. Perry testified that she informed Ms. Krueger of
her diagnosis on July 21, 2014 because she was “crying
nonstop and I felt rush of emotion. I couldn't breathe. I
was having chest pain, anxiety. I was confused and I told
Becky that I had to leave work.” Id. Perry
proceeded to leave work at 2:30 on that date and scheduled an
appointment with a physician's assistant. Id.
Following her appointment, the Physician's Assistant
filled out a physician's form certifying Perry for
intermittent FMLA leave. Accordingly, on July 28, 2014, Perry
requested intermittent leave under the FMLA for her own
serious health condition, which was approved by Covenant on
August 5, 2014. See Trial Exs. 14-17. During her
deposition, Perry acknowledged that she was worried about her
mind shattering, and was not capable of working at that time.
Perry Dep. at 30-31.
testified that she initially took just a day or two off from
work, but then took off early on August 11 and stayed off
until August 14. Perry Tr. 28-29. She testified that she met
with Ms. Krueger after returning to work that Friday, August
15, 2014. Id. During the meeting, Ms. Krueger
informed Perry that she had been in contact with HR, and that
they thought it best if Perry went on continuous leave to
“get it together” and told Perry that she needed
to be able to perform her job at 100 percent functionality
upon her return. Id. at 30-35. During her deposition
Perry testified that she was not capable of working at that
time, and agreed with Ms. Krueger that she needed to take
time off to get herself together. Perry Dep. 30-31.
returning from her continuous leave on October 6, 2014 Perry
discovered that Covenant had reorganized the responsibilities
of three out of the four office coordinators. The change took
place between August and September, and affected coordinators
under Ms. Krueger's supervision. See Nail Tr.
3-4. The change was intended to better align the geographic
responsibilities for coordinators and address personnel
issues. Id. As a result of the change, Perry was no
longer responsible for the Bridgeport and Frankenmuth
offices. Perry Tr. 35-36. Instead, Perry was assigned to the
Freeland office and two Bay City offices located in the same
building. Id. at 38-39.
her return Perry met with Ms. Krueger for about thirty
minutes regarding her new assignment. Perry Tr. 38. Perry
testified that she was upset after the meeting. Id.
at 39. Perry also testified that she informed Ms. Krueger
that she had left some things in the Bridgeport office that
she needed to retrieve, including her work phone charger,
billing and coding guidelines, and log in books and
passwords. Ms. Krueger told her she could retrieve the items.
Id. at 40-43. However, when Perry arrived at the
Bridgeport office, the new Bridgeport office coordinator,
Lydia Villanova, would not let her enter the building. Perry
testified that Ms. Villanova was not being nice, and informed
Perry that Ms. Krueger would not let Perry retrieve her
belongings until an unspecified meeting took place.
Id. Ms. Krueger later informed Perry that the
incident had been a misunderstanding. Id. Because
Perry was required to report to work at her new offices that
week, Ms. Krueger retrieved Perry's belongings for her on
October 8, 2014, and eventually delivered them to Perry the
next week. Id. at 42-43. Perry alleged that in the
meantime she was handicapped from properly performing her
job. Id. at 42-45. However, Perry also admitted that
the required payroll adjustment forms and billing and coding
guidelines that she said she needed were available online.
Saturday, October 11, 2014 Perry texted Ms. Krueger to tell
her that she was scheduling a medical appointment for the
following Monday, October 13, 2014. Id. at 46-47. As
of that date Perry had around 59 hours remaining under the
FMLA. Id. at 51. Ms. Krueger responded that in
addition to requesting time off in Covenant's scheduling
system Perry would need to e-mail Ms. Krueger her FMLA time
off requests, and that Perry was responsible for making
arrangements to have her responsibilities covered when she
needed to be out. Id. at 47-48. Because Perry could
not find coverage, she had to reschedule her appointment for
Friday, October 17, 2014. Id. at 51-52.
following Tuesday, on October 21, 2014, Ms. Krueger placed
Perry in Step One of Covenant's progressive disciplinary
procedure. See Trial Ex. 24. Perry testified that it
was the first discipline she had ever received. Perry Tr. 52.
Ms. Krueger documented that she had verbally counseled Perry
regarding violations of Covenant's standards of conduct
related to an incident with a patient who had called in to
renew his prescriptions on October 13, 2014. Id.
According to the report, the patient complained to Doctor
Hamade that she had been rude to him and threatened to remove
his family from the practice. Id. Perry contended
that she had not been rude to the patient but that the
patient had been rude to her. Id. One of
Plaintiff's subordinates, Carly Roque, testified that she
witnessed Perry's side of the conversation at issue and
that she did not believe Perry had been rude. See
Roque Tr. 1-2.
Step One documentation also states that on October 14, 2014
Ms. Krueger had received a complaint from an employee that
Perry was “displaying anger and frustration when the
telephone would ring” and that Perry informed the
employee that her job “was too much for one person to
do.” See Trial Ex. 24. Perry acknowledged
making those statements in her testimony. See Perry
Tr. 57-58. The employee also informed Ms. Krueger that Perry
was abrupt in responding to her questions. See Trial
Ex. 24. This report was bolstered by the testimony of a
newly-hired medical assistant named Kimberly Scales, who
testified that she had reported to Ms. Krueger concerns that
Perry did not treat patients kindly or with respect and her
perception that Perry was often frustrated at work.
See Scales Tr. 11. A number of Perry's future
write-ups also involved issues with Ms. Scales. Finally, the
Step One discipline report noted that on October 17, 2014
Doctor Hamade complained to Ms. Krueger that Perry had been
rude and abrupt when he asked her to take care of a
prescription that he had signed. Id. Perry testified
that the incident occurred while she was attempting to leave
the office for her Doctor's appointment on October 17,
2014. See Perry Tr. 60. Both Ms. Krueger and Perry
signed the Step One discipline report. See Trial Ex.
24. At the time, Perry told Ms. Krueger that the discipline
served as a needed wake-up call. See Perry Tr. 111.
her Step One discipline, Perry continued to experience
difficulties at work. However, Ms. Krueger did not advance
Perry to Step Two discipline, but instead moved her directly
to Step Three disciplinary counseling on November 18, 2014.
See Trial Ex. 26. The Step Three discipline, issued
by Ms. Krueger, was based on two alleged incidents of poor
communication with subordinates, and one incident in which
she had displayed “unprofessional emotional
behavior” in front of patients while working at the
front desk in one of Covenant's offices. Id. The
Step Three discipline report also noted that Perry provided
unsatisfactory telephone messages to the providers, and that
Perry was not properly training new employees on the proper
documentation of patient information and messages.
Id. Both Perry and Ms. Krueger signed the Step Three
the foundations for Perry's Step Three discipline was a
training issue raised by the newly-hired Ms. Scales, who was
Perry's subordinate. See Scales Tr. 9-10. Ms.
Scales testified that despite having over 30 years of
experience in the medical field, she had trouble using
Covenant's Epic computer system during the early days of
her employment in October of 2014. Id. Two days
after beginning her employment with Covenant, Ms. Scales
allegedly informed Ms. Krueger that she was not receiving
adequate training and that Perry seemed annoyed when she
asked questions. Id. As reflected in the Step Three
discipline, Ms. Scales informed Ms. Krueger that Perry told
her that she needed more system training, and that
Perry's communication was abrupt and lacked detail and
information. Id. The discipline report notes that
“[t]he ability to effectively and specifically
communicate with providers and the practice personnel is a
performance expectation and requirement for Practice
Coordinators.” See Trial Ex. 26. Perry
testified that she had not been abrupt, but that Ms. Scales
was struggling to grasp basic concepts on the EPIC system.
See Perry Tr. 122-123.
second incident upon which Perry's Step Three discipline
was based occurred a week earlier, on November 10, 2014, and
involved a medical assistant named Amanda Schreur who had an
appointment with the HR department. Scales Tr. 5. According
to the report Perry was informed at 8:39 AM that Ms. Schreur
was required to attend a meeting in HR at 1:00 PM, and that
Perry should therefore work with the providers who would be
short-staffed while Ms. Schreur was gone. See Trial
Ex. 26. When Ms. Schreur arrived at the meeting, she
allegedly informed Ms. Krueger that Perry had not notified
the office or providers that she would be gone, but had just
texted her to tell her that she was required to go to HR.
See Trial Ex. 26. According to the discipline
report, this behavior constituted poor communication and
leadership, and a failure to follow through on manager
instructions. Id. Perry contended that she did in
fact notify the office that Ms. Schreur would be gone, and
spoke directly to Ms. Scales. See Perry Dep. 66-67.
But Ms. Scales disputed this, testifying that Perry had never
called to inform her of necessary preparations for Ms.
Schreur's absence. Scales Tr. 11.
final basis for Perry's Step Three discipline was an
incident in which Perry allegedly displayed
“unprofessional emotional behavior.” Ms. Scales
testified that after receiving a phone call, Perry seemed
very upset and began crying in Covenant's front office.
See Scales Tr. 6-8. A nurse practitioner named
Sandra Wilbanks also observed this incident, and testified
that Perry was sobbing at the front desk. See
Wilbanks Tr. 3. Asked to describe the “sobbing”
Ms. Wilbanks explained, “[t]ears rolling down her face,
shaking, sobbing.” Id. Ms. Scales testified
that she provided Perry with a Kleenex and asked her if she
needed to “go to the back” for a few minutes or
if she needed to go home. Scales Tr. 6-8. Perry ultimately
determined that she needed to go home. Id. Both Ms.
Wilbanks and Ms. Scales testified that there was a patient in
the waiting room at the time of the incident, however Ms.
Scales testified that she did not know whether the patient
saw Perry crying and did not witness any resulting disruption
amongst the office personnel. See Wilbanks Tr. 3,
Scales Tr. 6-8. Ms. Scales further testified that she did not
report the incident to Ms. Krueger, but later informed a
manager named Becky. Scales Tr. 8. The corresponding Step
Three discipline report notes that three office staff
personnel and providers witnessed Perry crying at the front
desk and informed Ms. Krueger of the incident. The report
states that Perry's behavior was disruptive and that
patients were present in the waiting room at the time and
could see Perry in the office. Id. The report
further notes that Perry's behavior violated the standard
of conduct set forth in Policy 509. Id. In
challenging this disciplinary action, Perry claimed that she
had just teared up and that no patients had been present to
witness the episode. Perry Tr. 72-73.
her Step-Three disciplinary counseling, Perry applied for
review of her discipline pursuant to Covenant's
Alternative Dispute Resolution appeal procedure. See
Perry Tr. 74-76. Pursuant to that process, an employee may
submit documentation and submit witnesses to challenge
challenge her Step One discipline Perry asked a subordinate,
Carly Roque, to prepare a statement on her behalf. Perry Dep.
56. In her statement, Ms. Roque stated that she had witnessed
a phone call between Perry and a patient in October, 2014 in
which a patient requested a refill of his medication.
See Trial Ex. 27. According to Ms. Roque, because
the patient had not had an appointment in about a year Perry
requested that he come in to the office for an appointment.
Id. Ms. Roque stated that Perry did not yell and was
not rude to the patient. Id. At trial, Ms. Roque
testified that she was truthful in her statement, but felt
pressured by Perry's request for the statement and felt
that she should not have been asked to provide the statement.
Ms. Roque further testified that she had never been asked by
a previous supervisor to furnish such a statement.
See Scales Tr. 3-5. Specifically, she testified that
“I don't think a supervisor should ask an employee
to do that.” Id.
challenge her Step Three discipline, Perry called Ms. Scales
on a Saturday and asked her to provide a statement that there
were no patients in the waiting room at the time of the
crying incident. Perry Tr. 75-77. Perry also asked Ms. Scales
for a statement explaining that Perry had called her on the
day that Ms. Schreur had to attend the meeting at HR.
Id. Perry asked Ms. Scales to have the statement
ready by that Monday evening. Id. at. 59.
Perry went to the office to collect the statements, Ms. Roque
provided Perry with her witness statement, but Ms. Scales did
not. See trial Ex. 27. Instead, Ms. Scales acted
nervous, and asked Perry if should could provide Perry with
the statement the next day since she was “too
busy” that day. See Perry Tr. 76-77. The next
morning, Perry texted Ms. Scales to say, “[l]et me know
if you need me to cover so you can do that note. It
doesn't have to be anything crazy long just the facts.
Even handwritten. And you could even fax it to me. Just let
me know.” Trial Ex. 28. Perry then sent another message
stating, “[i]f you don't want to do it it's
fine too. Just let me know.” Id. In response,
Ms. Scales texted Ms. Perry, “Mandy I feel bad for what
your [sic] going through right now. I just feel like with me
being new I don't really want to get involved. I was
thinking over the weekend and I don't recall the details
of what we discussed. I'm sorry.” Id.
attempt to obtain witness statements ultimately led to her
Step Four discharge. After hearing Ms. Scales and Ms. Roque
discussing Perry's requests for statements, Ms. Wilbanks
reported Perry's conduct to Ms. Krueger. See
Trial Ex. 29; Wilbanks Tr. 1-3. Ms. Kreuger then called Ms.
Roque and Ms. Scales to verify that Perry had indeed asked
them for witness statements. Id. Ms. Scales informed
Ms. Krueger that Perry had asked her to make two statements
on her behalf: (1) that Ms. Scales “recalled the
conversation that [Perry] had with her regarding office
staffing and the provider schedules pertaining to the
date/time that one of the clinical staff needed to report to
HR for a meeting” and (2) “that there were no
patients in either the office or the waiting room on the
Friday that [Perry] was upset and crying at the front
desk.” Id. The Step Four report notes that
this conduct constituted “[f]alsifying claims, records,
or reports including incident reports…” and
“[i]mmoral, indecent, illegal, or unethical or
dishonest conduct or behavior” under Policy #509. Perry
was discharged, effective November 25, 2014 after a meeting
with Ms. Krueger and Ms. Killey. Id. Perry refused
to sign the Step Four report.
Perry also received a notice of termination, stating that she
had been discharged due to her “[i]nability to perform
as an effective leader.” Resp. to Summ. J. Ex. 21.
challenged both her Step Three corrective action and her Step
Four discharge. See Trial Ex. 46. The disciplinary
actions were first upheld by Ms. Krueger on December 8, 2014.
Id. Perry then met with David H. Nall, the vice
president of the Covenant physician network, and Lisa Killey
from human resources. Trial Ex. 31; see also Nall
Dep. 6, 12. After the meeting, Mr. Nall again upheld
Perry's discharge in a letter dated January 12, 2015.
Trial Ex. 31. Mr. Nall's letter explained that, while
Perry had the ability to complete task-oriented
responsibilities, her “challenges came with the skills
and abilities required to lead and advise staff amongst
various levels of communication and establishing
expectations.” Id. Mr. Nall testified that in
reaching his decision he reviewed Ms. Krueger's notes,
the disciplinary reports, and Perry's appeal letters.
See Nall Dep. 6-7. He did not conduct any
independent investigation. Id.
Rule of Civil Procedure 50(a) allows a party to make a motion
for judgment as a matter of law “at any time before the
case is submitted to the jury.” Fed.R.Civ.P. 50(a)(2).
Rule 50(b) provides that if a court does not grant a motion
for judgment as a matter of law during trial, “the
court is considered to have submitted the action to the jury
subject to the court's later deciding the legal questions
raised by the motion. No later than 28 days after the entry
of judgment . . . the movant may file a renewed motion for
judgment as a matter of law.” Fed.R.Civ.P. 50(b). In
ruling on a renewed motion, a court may: “(1) allow
judgment on the verdict, if the jury returned a verdict; (2)
order a new trial; or (3) direct the entry of judgment as a
matter of law.” Id.
of a motion for judgment as a matter of law is governed by
the same standard as motions for summary judgment.
Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
As explained by the Sixth Circuit in Tisdale v. Federal
The evidence should not be weighed, and the credibility of
the witnesses should not be questioned. The judgment of this
court should not be substituted for that of the jury;
instead, the evidence should be viewed in the light most
favorable to the party against whom the motion is made, and
that party given the benefit of all reasonable
Tisdale v. Federal Express, Corp., 415 F.3d 516, 527
(6th Cir.2005) (quoting Williams v. Nashville
Network, 132 F.3d 1123, 1130-31 (6th Cir.1997)). Thus,
the Court may grant a motion for judgment as a matter of law
and take the case from a jury “only if in viewing the
evidence in the light most favorable to the non-moving party,
there is no genuine issue of material fact for the jury, and
reasonable minds could come to but one conclusion, in favor
of the moving party.” E.E.O.C. v. New Breed