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Perry v. Covenant Medical Center, Inc.

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

February 14, 2017

AMANDA PERRY, Plaintiff,


          THOMAS L. LUDINGTON United States District Judge

         Plaintiff 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.

         On 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.


         Plaintiff 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.

         In 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.

         Perry 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.


         Perry 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.

         Perry 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.


         Upon 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.

         Upon 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. Id.

         On 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.


         The 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.

         The 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.


         Following 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 Discipline report.

         One of 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.

         The 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.

         The 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.


         After 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 disciplinary actions.

         To 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.

         To 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.

         When 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.


         Perry's 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.

         Id. 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.

         Perry 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.


         Federal 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.

         Review 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 Express Corporation:

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 inferences.[1]

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 ...

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