United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT.
A. GOLDSMITH United States District Judge
matter is before the Court on Defendant Michigan Bell
Telephone Company's motion for summary judgment (Dkt.
59). Plaintiffs are 12 former employees of Michigan Bell who
were each tasked with telephonically assisting dissatisfied
customers seeking to disconnect services. Plaintiffs claim
that they were either constructively discharged or terminated
by Michigan Bell in retaliation for taking leave under the
Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601, et seq., and because of a disability,
in violation of Michigan's Persons With Disabilities
Civil Rights Act (“PWDCRA”), Mich. Comp. Laws
§ 37.1101, et seq. Michigan Bell contends that
it is entitled to summary judgment because none of the
Plaintiffs can establish all of the requisite elements for
either claim. For the reasons stated below, the Court grants
in part and denies in part Michigan Bell's motion.
Plaintiff was employed by Michigan Bell as either a service
representative or consumer product specialist in Michigan
Bell's Port Huron call center. First. Am. Compl. ¶
22 (Dkt. 12). The Port Huron call center was known as a
retention center, meaning that its primary goal was to retain
customers who had expressed a desire to disconnect services
with Michigan Bell. Parniske Dep. Tr. at 42, Ex. 1 to Def.
Mot. (Dkt. 59-2). Service representatives and consumer
product specialists also dealt with customer complaints and
attempted to sell certain services to dissatisfied customers.
Id. at 51.
Port Huron call center had the following chain of command:
service representatives and consumer product specialists
reported to a first-level coach manager, the coach manager
reported to a center sales manager, and the center sales
manager reported to a general manager. Armstrong Dep. Tr. at
41, Ex. 2 to Def. Mot. (Dkt. 59-3). The service
representatives and consumer product specialists were
evaluated based on monthly scorecard results. Parniske Dep.
Tr. at 52. These scorecards measured the employee's
ability to both retain dissatisfied customers and sell new
products to those customers. Id. at 51.
various points throughout their employment with Michigan
Bell, Plaintiffs took leave under the FMLA or took short term
disability leave. Linda Armstrong took FMLA leave at various
points during her employment for ailments including upper
respiratory infections, heart issues, and an ankle injury.
Armstrong Dep. Tr. at 92-124. James Parniske took leave
multiple times during his employment for a lower back injury,
gastrointestinal issues, a wrist injury, and to care for his
daughter after she underwent surgery. Parniske Dep. Tr. at
105-115. Kathleen Johns suffered from a chronic sinus
condition that forced her to take leave at various points
during her employment with Michigan Bell. Johns Dep. Tr. at
123-139, Ex. 3 to Def. Mot. (Dkt. 59-4). Cathy Lynn Nofs
sought leave intermittently for anxiety and depression. Nofs
Dep. Tr. at 123, Ex. 4 to Def. Mot. (Dkt. 59-5). Kimberly
Leslie took leave at various points for ailments including
asthma, allergies, and gastrointestinal issues. Leslie Dep.
Tr. at 108-115, Ex. 5 to Def. Mot. (Dkt. 59-5). Leslie also
took leave to undergo surgery to remove a tumor from her
neck. Id. at 122. Lori Shea took leave multiple
times during her employment to deal with depression and
anxiety. Shea Dep. Tr. at 99-100, Ex. 6 to Def. Mot. (Dkt.
59-6). Kristie Pretty-Kendall took leave to address a neck
issue as well as anxiety and depression. Pretty-Kendall Dep.
Tr. at 129-130, 143, Ex. 7 to Def. Mot. (Dkt. 59-8). Tracy
Easton took leave because of a sinus infection and asthma, as
well as for mental health treatment during her employment
with Michigan Bell. Easton Dep. Tr. at 67-83, Ex. 8 to Def.
Mot. (Dkt. 59-9). Ronald Emerick took leave after the birth
of his daughters, as well as for issues relating to stress.
Emerick Dep. Tr. at 84-88, Ex. 9 to Def. Mot. (Dkt. 59-10).
Kelly Jefferson took leave due to issues with asthma.
Jefferson Dep. Tr. at 85, Ex. 10 to Def. Mot. (Dkt. 59-11).
Sara Osgood took leave to deal with migraines. Osgood Dep.
Tr. at 116, Ex. 11 to Def. Mot. (Dkt. 59-12). Heidi Pojeky
took leave primarily to deal with depression. Pojeky Dep. Tr.
at 85-95, Ex. 12 to Def. Mot. (Dkt. 59-13).
Parniske, Johns, Nofs, Leslie, and Shea all resigned from
their employment with Michigan Bell and are now claiming they
were constructively discharged for taking leave under the
FMLA and because they had a disability. Although
Pretty-Kendall, Easton, Jefferson, and Osgood were
technically terminated by Michigan Bell, they now argue that
they had effectively resigned prior to their terminations and
thus were constructively discharged for using FMLA leave and
because they had disabilities. Emerick and Pojeky claim that
they were terminated in retaliation for taking leave under
the FMLA and because of their disabilities.
of Michigan Bell's former management-level employees
testified that a policy was instituted by general manager
Jason Leiker, and continued by his successor Geoffrey Lee, to
target FMLA and short-term disability leave users at the Port
Huron center. Sean Brister, a former center sales manager at
the center, testified that between 2009 and 2013, Lee told
her and others during management meetings to target FMLA
users. Brister Dep. Tr. at 179, Ex. 9 to Pl. Resp. (Dkt
60-10). Brister stated that Lee asked her and the other
managers the following: “if you are on an island and
you needed to, you know, save someone, who would you
save?” Id. Brister explained “that
directive was not to save the people on FMLA or disability
that were bringing the center down.” Id.
Brister testified that Lee ordered her and other management
employees to target FMLA and disability leave users for
removal from the company, regardless of the quantity of leave
used. Id. at 181.
Jeup, a coach manager, testified that management meetings
would take place quarterly, and that a primary talking point
was the targeting of FMLA and disability leave users. Jeup
Dep. Tr. at 9-10, Ex. 13 to Pls. Resp. (Dkt. 60-14). Jeup
noted that Leiker and Lee were motivated to target FMLA users
because management was expected to meet certain metrics
regardless of how many representatives were at work, whereas
representatives had their scorecards adjusted to reflect days
they were out on FMLA leave. Id. at 18.
reference to employees who took leave, Lee told Jeup and the
other managers to “work them out of the business”
by scrutinizing their phone calls in order to find errors,
such as failing to properly state legal disclaimers to
customers and failing to keep phone lines open for the proper
amount of time. Id. at 12. Coaches were also
instructed to scrutinize the amount of time FMLA and
disability leave users were taking for lunch and breaks.
Ashford-Porter, a center sales manager, also testified that
Lee gave a directive to target FMLA users. Ashford-Porter
Dep. Tr. at 23-24, Ex. 12 to Pl. Resp. (Dkt. 60-13). Joseph
Gouin testified that Lee, center sales manager Pearlanne
Pollard, and assistant manager Frank Mayberry would
consistently give directives at the quarterly meetings to
target FMLA users. Gouin Dep. Tr. at 16, Ex. 21 to Pl. Resp.
(Dkt. 60-22). Gouin stated that he was told by Lee that it
was either “them or us, ” which Gouin understood
to mean that, if management did not target users of FMLA or
disability leave, the entire call center would be shut down.
Id. Parniske testified that there was a board placed
in the call center that counted how many people were absent
each day. Parniske Dep. Tr. at 157. Several other coach
managers testified that they were given a directive by
upper-level management to target users of FMLA or disability
leave. See Reynolds Dep. Tr. at 188-189, Ex. 14 to
Pls. Resp. (Dkt. 60-15); Bawol Dep. Tr. at 185, Ex. 15 to
Pls. Resp. (Dkt. 60-16); Howard Dep. Tr. at 82, Ex. 11 to
Pls. Resp. (Dkt. 60-12).
testified that specific names were brought up consistently in
management meetings. Jeup testified that Johns, Osgood,
Jefferson, Parniske, Pretty-Kendall, Shea, and Nofs were
individuals who were referenced in meetings for using FMLA or
disability leave. Jeup Dep. Tr. at 23-24. Jeup stated that
she remembered Johns, Parniske, and Nofs were mentioned
specifically as individuals who were to be targeted for FMLA
use. Id. at 23-25. Tracy Turner, a coach manager,
also testified that Johns, Osgood, and Jefferson were brought
up specifically as individuals to be targeted for FMLA use.
Turner Dep. Tr. at 46-48, Ex. 19 to Pl. Resp. (Dkt.
60-20). In an email dated January 20, 2011, Turner
questioned whether Osgood and two others should have been
named the winners of a contest for the most retained
customers of the day because “[t]hese 3 winner's
[sic] all abuse FMLA.” 1/20/2011 Email at 2 (cm/ecf
page), Exhibit 20 to Pl. Resp. (cm/ecf page) (Dkt. 60-21).
Turner testified that she sent this email because of the
directive that Lee had given her to target FMLA users. Turner
Dep. Tr. at 29-30. Additional facts regarding each individual
Plaintiff will be addressed in the analysis section below.
STANDARD OF REVIEW
must grant summary judgment “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). “In making this determination, the
court must view the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in
its favor.” U.S. S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must
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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-252 (1986). In considering the material facts
in the record, the court must recognize that “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Id. at 422. Furthermore, plaintiff
“cannot rely on conjecture or conclusory
accusations.” Arendale v. City of Memphis, 519
F.3d 587, 605 (6th Cir. 2008).
FMLA states that an employer may not “discharge or in
any other manner discriminate against any individual for
opposing any practice made unlawful by [the FMLA].” 29
U.S.C. § 2615(a)(2); 29 C.F.R § 825.220. The
Court's analysis of Plaintiffs' FMLA retaliation
claims depends on the type of proof each Plaintiff presents
to the Court. An employee can prove an FMLA retaliation claim
using direct evidence of retaliation or circumstantial
evidence that supports an inference of retaliation.
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,
538 (6th Cir. 2008). Unlike circumstantial evidence,
“direct evidence of discrimination does not require a
factfinder to draw any inferences in order to conclude that
the challenged employment action was motivated at least in
part by prejudice against members of the protected group. The
evidence must establish not only that the plaintiff's
employer was predisposed to discriminate on the basis of [the
FMLA], but also that the employer acted on that
predisposition.” Daugherty v. Sajar Plastics,
Inc., 544 F.3d 696, 707 (6th Cir. 2008). “[A]n
employee who has presented direct evidence of improper motive
does not bear the burden of disproving other possible
nonretaliatory reasons for the adverse action. Rather, the
burden shifts to the employer to prove by a preponderance of
the evidence that it would have made the same decision absent
the impermissible motive.” Weigel v. Baptist Hosp.
of E. Tennessee, 302 F.3d 367, 382 (6th Cir. 2002).
absence of direct evidence, FMLA retaliation claims premised
on circumstantial evidence are analyzed under the familiar
three-part, burden-shifting test set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Bryson
v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). Under
this test, the plaintiff must first demonstrate a prima facie
case of FMLA retaliation by establishing the following four
factors: (i) the plaintiff engaged in conduct protected by
the act, (ii) the defendant was aware that the plaintiff
exercised protected rights, (iii) the defendant took an
adverse employment action against the plaintiff, and (iv)
there was a causal connection between the protected conduct
and the adverse employment action. Saroli v. Automation
& Modular Components, Inc., 405 F.3d 446, 451 (6th
plaintiff is able to make out a prima facie case of FMLA
retaliation, “the burden shifts to the employer to
proffer a legitimate, nondiscriminatory rationale” for
the adverse action. Edgar v. JAC Prods., Inc., 443
F.3d 501, 508 (6th Cir. 2006). If the employer can meet this
burden, the burden shifts back to the plaintiff to prove that
“the alleged nondiscriminatory rationale was in reality
a pretext designed to mask discrimination.” Skrjanc
v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th
Cir. 2001). The plaintiff can prove pretext by demonstrating
that “the proffered reason (1) has no basis in fact,
(2) did not actually motivate the defendant's challenged
conduct, or (3) was insufficient to warrant the challenged
conduct.” Dews v. A.B. Dick Co., 231 F.3d
1016, 1021 (6th Cir. 2000).
Plaintiffs have asserted that Michigan Bell's conduct
amounted to constructive discharge. For purposes of FMLA
retaliation analysis, constructive discharge constitutes an
adverse employment action. Saroli, 405 F.3d at 451.
To establish a constructive discharge, the plaintiff must
present evidence that (i) his employer “deliberately
created intolerable working conditions, as perceived by a
reasonable person” and (ii) his employer created the
conditions with the intent of forcing the employee to quit.
Id. In determining whether the first prong has been
met, courts should consider the following factors
“singly or in combination”:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading
work; (5) reassignment to work under a supervisor; (6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee's resignation; or
(7) offers of early retirement or continued employment on
terms less favorable than the employee's former status.
regard to the second prong, “[i]ntent can be shown by
demonstrating that quitting was a foreseeable consequence of
the employer's actions.” Festerman v. Cnty. of
Wayne, 611 F. App'x 310, 321-322 (6th Cir.
also claim that they were constructively discharged or
terminated because of their disabilities in violation of the
PWDCRA. “In order to prove a violation of the PWDCRA, a
plaintiff must show that: (1) he is disabled as defined in
the act, (2) his disability is unrelated to his ability to
perform the job duties, and (3) he has been discriminated
against as defined in the statute.” MacDonald v.
United Parcel Serv., 430 F. App'x 453, 460-461 (6th
Cir. 2011). As with their FMLA claims, the analysis of
Plaintiffs' PWDCRA claims depends on the type of proof
presented to the Court. While multiple Plaintiffs have
presented direct evidence that they were targeted for their
use of FMLA leave, none of them has presented direct evidence
of constructive discharge or termination because of a
disability. All of the comments attributed to Leiker and Lee
concerned pushing out employees who used FMLA; none of these
discussions involved removing employees due to any particular
disability. See Schindewolf v. City of Brighton, No.
14-12161, 2015 WL 3451150, at *4 (E.D. Mich. May 29, 2015)
(“Simply applying for and using FMLA does not equate to
a finding of or knowledge of disability.”).
plaintiff cannot show direct evidence of disability
discrimination, the plaintiff must first establish a prima
facie case of discrimination by showing that (i) he is
disabled; (ii) he is otherwise qualified for the position,
with or without reasonable accommodation (iii) he has
suffered an adverse employment action; (iv) the employer knew
or had reason to know of the plaintiff's disability; and
(v) the position remained open while the employer sought
other applicants or the disabled individual was replaced.
Ferrari v. Ford Motor Co., 826 F.3d 885, 891-892
(6th Cir. 2016). The fifth factor may be satisfied “by
showing that similarly situated non-protected employees were
treated more favorably.” Jones v. Potter, 488
F.3d 397, 404 (6th Cir. 2007).
plaintiff establishes a prima face case of disability
discrimination under the PWDCRA, the defendant must
articulate a legitimate, nondiscriminatory reason for the
termination. Till v. Spectrum Juvenile Justice
Servs., 805 F.Supp.2d 354, 362 (E.D. Mich. 2011). If the
defendant can articulate such a reason, the burden shifts
back to the plaintiff to prove that the proffered reason is
pretextual. Id. at 362-363. As with an FMLA claim, a
plaintiff can establish pretext by showing: (i) that the
proffered reasons had no basis in fact, (ii) that the
proffered reasons did not actually motivate the
employer's action, or (iii) that they were insufficient
to motivate the employer's action. Ferrari, 825
F.3d at 895.
PWDCRA defines a disability as follows:
(i) A determinable physical or mental characteristic of an
individual which may result from disease, injury, congenital
conditions of birth, or functional disorder, if the
characteristic: (A) . . . substantially limits 1 or more of
the major life activities of that individual and is unrelated
to the individual's ability to perform the duties of a
particular job or position or substantially limits 1 or more
of the major life activities of that individual and is
unrelated to the individual's qualifications for
employment or promotion.
Donahoo v. Master Data Ctr., 282 F.Supp.2d 540, 548
(E.D. Mich. 2003) (quoting Mich. Comp. Laws §
37.1103(d)(i)). An individual is also considered to be
disabled under the statute if she is “regarded as
having a determinable physical or mental characteristic
described in subparagraph (i).” Mich. Comp. Laws §
37.1103(d)(iii). A “major life activity” is
defined as a “function[ ] such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.” Chiles v. Machine
Shop, Inc., 606 N.W.2d 398, 407 (Mich. Ct. App. 1999).
is not enough for an impairment to affect a major life
activity, but rather the plaintiff must proffer evidence from
which a reasonable inference can be drawn that such activity
is substantially limited.” Id. at 408.
“To determine whether an individual is substantially
limited, a court considers (i) the nature and severity of the
impairment, (ii) the duration or expected duration of the
impairment, and (iii) the permanent or expected permanent or
long-term effect. Thus, a disability normally does not
include temporary medical conditions, even if those
conditions require extended leaves from work.”
Donahoo, 282 F.Supp.2d at 550. The PWDCRA states
that discharge is a form of discrimination under the statute.
Mich. Comp. Laws § 37.1202(b). “Michigan law
recognizes constructive discharge as an adverse employment
action.” Agnew v. BASF Corp., 286 F.3d 307,
309 (6th Cir. 2002).
Analysis of Each Plaintiff's Claims
argue that all of their claims should be analyzed together,
taking into account the “totality of the
circumstances.” Pl. Resp. at 100. In support of this
argument, Plaintiffs cite Jackson v. Quanex Corp.,
191 F.3d 647 (6th Cir. 1999). Jackson is inapposite.
In that case, the Sixth Circuit held that courts should take
into account the totality of the circumstances when
determining whether a plaintiff was subject to a hostile work
environment. Id. at 658-659. The court held that all
discriminatory comments, even those to other individuals in
the office, should be taken into account in analyzing the
plaintiff's claim. Id. at 659-660. However, this
case does not involve a claim of a hostile work environment.
Each Plaintiff is alleging that he or she was either
constructively discharged or terminated in retaliation for
using FMLA leave and for having a disability. As a court in
this circuit recently recognized, “claims of
discrimination and retaliation . . . are different in kind
from a hostile work environment claim.” Shoup v.
McDonald, No. 3:14-CV-248, 2016 WL 3387309, at *5 (S.D.
Ohio June 15, 2016); see also Moore v. KUKA
Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th
Cir. 1999) (“The plaintiff must show more than a Title
VII violation to prove constructive discharge, so the fact
that plaintiff may have proven a hostile work environment is
not enough by itself to prove constructive discharge
also.”). Furthermore, Jackson only
involved one plaintiff seeking to introduce the totality of
the circumstances in her work environment, not several
plaintiffs seeking to have their retaliation claims analyzed
each Plaintiff's claim will be analyzed individually
Constructive Discharge Plaintiffs
Linda Armstrong a. FMLA Claim
has not presented direct evidence that she was targeted
because of her FMLA use. “Direct evidence ‘is
that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor
in the employer's actions. It does not require the fact
finder to draw any inferences to reach that
conclusion.'” Bhama v. Mercy Mem'l Hosp.
Corp., 416 F. App'x 542, 552 (6th Cir. 2011)
(quoting Amini v. Oberlin Coll., 440 F.3d 350, 359
(6th Cir.2006)). While Armstrong presents various pieces of
circumstantial evidence, she does not offer direct evidence
of a decision-maker targeting her specifically for her use of
FMLA leave. As a result, her claims are subject to analysis
under the McDonnell Douglas framework.
took leave under the FMLA for various health issues beginning
in 2002 and continuing through March 2012. Armstrong Dep. Tr.
at 93-104. Armstrong testified that her supervisors were
aware of her medical conditions. Id. at 174. It must
then be determined whether Armstrong suffered an adverse
employment action. Armstrong retired from her employment in
January 2013, but now claims that she was constructively
discharged. Id. at 140. As noted above, an employee
is constructively discharged if her employer subjects her to
intolerable working conditions with the intention of forcing
the employee to quit. Saroli, 405 F.3d at 451.
Armstrong is not claiming that she was demoted, had her
salary or job responsibilities reduced, or that she was
reassigned to menial or degrading work or to work under a
Armstrong does provide evidence that she was often badgered
and harassed by her first-level coach manager, Carol
Crawford, while on phone calls with customers during the last
year of her employment. Armstrong testified that Crawford
would stand over her desk while she was on the phone with
customers and interrupt her while she was on the phone.
Armstrong Dep. Tr. at 64. In addition to these interruptions,
Crawford told Armstrong on multiple occasions that
“maybe this isn't the job for you if it's too
stressful, or you can't handle, and, you know, with your
health issues, maybe you should think about retiring or
leaving the company or looking for another job.”
Id. at 107-108. This demonstrates that, contrary to
Michigan Bell's claims, Crawford's comments were not
simply feedback regarding job performance. Armstrong also
testified that, with the exception of her last year of
employment, her calls were only monitored once a month.
Id. at 65. Within the last year of her employment,
Armstrong was subject to monitored calls on a more frequent
points to evidence supporting the inference that her
treatment by Crawford was the result of a policy to target
FMLA leave users. In a company-wide meeting that took place
in 2008 or 2009, Leiker told the employees that they needed
to come to work. Id. at 130, 229. When asked a
question regarding the company's new scorecard system for
evaluating employees, Leiker responded, “as long as
you're coming to work, you don't have anything to
worry about.” Id. at 229. When asked
specifically about FMLA leave, Leiker responded, “you
don't have anything to worry about if you come to
work.” Id. at 230. Another meeting regarding
attendance took place in 2012 and was led by Lee and Brister.
During the meeting, Lee and Brister stated that the
“office numbers were low and if people weren't
there, we weren't going to make our numbers and our
office could end up being closed.” Id. at 130.
This meeting coincides with the time period in which
Armstrong was scrutinized heavily by Crawford.
is also evidence that Crawford made an offer of early
retirement to Armstrong. When asked when she decided to
retire from the company, Armstrong stated “[w]hen I
signed these papers. [Crawford] wrote the papers up without
me asking her to . . . . I said Carol, I don't even know
if I'm ready to do that because I wasn't because I
was going back and forth on that.” Id. at
149-150. In response, Crawford told Armstrong that the
retirement papers were ready to be signed and that they were
only effective for a certain amount of time. Id. at
150. While Armstrong testified that Crawford did not force
her to sign the papers, she testified that after thinking
about it for a few minutes, she decided that she could not
deal with the stress of the position any longer. Id.
Bell cites Adams v. Lucent Techs., Inc., 284 F.
App'x 296, 302 (6th. Cir. 2008), for the proposition that
an offer of early retirement will only constitute a
constructive discharge if the employee has “no definite
prospect of continued employment with the company.”
However, Adams involved a retirement where the
plaintiff's company was merging with another and layoffs
were expected. While termination was not imminent for
Armstrong, multiple witnesses testified that Lee and others
in management made it clear that it was a top priority to
move FMLA users, like Armstrong, out of the business. This
directive certainly made Armstrong's prospects of
continued employment bleak. In any event, this offer of early
retirement does not stand alone, as it was made after months
of badgering by Crawford.
Lee's directive is evidence that Crawford's treatment
of Armstrong was done with the intention of forcing her to
quit. Lee specifically ordered management to move FMLA leave
users out of the business because their inability to perform
was putting the call center in jeopardy. Gouin Dep. Tr. at
16. Crawford's scrutiny, her comments about
Armstrong's health, and her offer of early retirement
demonstrate that Armstrong's retirement “was a
foreseeable consequence of the employer's actions.”
Festerman, 611 F. App'x At 322. The comments by
Lee and Leiker regarding employees using sick leave, combined
with Crawford's comments regarding Armstrong's
health, demonstrates the final factor, i.e., Armstrong was
constructively discharged because of her FMLA leave use.
Because Michigan Bell does not offer a nondiscriminatory
rationale for its adverse employment action, Armstrong's
FMLA claim survives.
Armstrong does not present direct evidence of discrimination,
she must first demonstrate the following: she was disabled,
she was otherwise qualified for her position, she has
suffered an adverse employment action, Michigan Bell knew of
her disability, and her position remained open while Michigan
Bell sought other applicants or she was replaced.
Ferrari, 826 F.3d at 891. An individual is actually
disabled if she has a physical or mental characteristic that
“substantially limits 1 or more of the major life
activities of that individual, ” and is unrelated to
the individual's ability to perform her job or to her
qualifications for the job. Donahoo, 282 F.Supp.2d
at 548. “[A]n impairment cannot be
‘substantial' if it is of a merely temporary
nature.” Id. at 550. Armstrong testified that
she took leave to deal with various temporary health issues,
including respiratory and ear infections and an ankle injury.
Armstrong Dep. Tr. at 92. None of these is a permanent
condition as contemplated by the statute.
she cannot demonstrate an actual disability, Armstrong must
show that she was perceived as having a disability. Armstrong
must show: (i) she was regarded as having a determinable
physical or mental characteristic, (ii) this perceived
characteristic was regarded as substantially limiting at
least one of her major life activities, and (iii) the
perceived characteristic was regarded as being unrelated to
her ability to perform her job or her qualifications for the
job. Schmidli v. City of Fraser, 784 F.Supp.2d 794,
805 (E.D. Mich. 2011). Crawford arguably indicated her
perception that Armstrong was disabled when she stated that
“maybe this isn't the job for you if it's too
stressful, or you can't handle, and, you know, with your
health issues.” Armstrong Dep. Tr. at 107-108. However,
this statement also indicates Crawford's belief that any
disability was directly related to Armstrong's ability to
perform her job, thus defeating her claim of having a
perceived disability within the context of the PWDCRA.
Notably, Armstrong testified to her belief that she is not
disabled. Id. at 134.
result, Armstrong's PWDCRA claim fails.