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Parniske v. Michigan Bell Telephone Co.

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

February 27, 2017

JAMES PERCY PARNISKE, et al., Plaintiffs,
v.
MICHIGAN BELL TELEPHONE COMPANY, d/b/a AT&T, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 59)

          MARK A. GOLDSMITH United States District Judge

         This 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.

         I. BACKGROUND

         Each 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.

         The 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.

         At 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).

         Armstrong, 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.[1] Emerick and Pojeky claim that they were terminated in retaliation for taking leave under the FMLA and because of their disabilities.

         Several 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.

         Elizabeth 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.

         In 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. Id.

         Kelli 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).

         Jeup 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).[2] 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.

         II. STANDARD OF REVIEW

         A court 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).

         III. ANALYSIS

         A. FMLA Retaliation

         The 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).

         In the 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 Cir. 2005).

         If the 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).

         Several 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.

Id.

         In 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. 2015).[3]

         B. PWDCRA Claim

         Plaintiffs 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.”).

         If a 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).

         If the 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.

         The 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).

         “[I]t 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).

         C. Analysis of Each Plaintiff's Claims

         Plaintiffs 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.”).[4] 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 together.

         Accordingly, each Plaintiff's claim will be analyzed individually below.

         D. Constructive Discharge Plaintiffs

         1. Linda Armstrong a. FMLA Claim

         Armstrong 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.

         Armstrong 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 supervisor.

         However, 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 basis. Id.

         Armstrong 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.

         There 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. at 151.

         Michigan 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.

         Finally, 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.

         b. PWDCRA Claim

         Because 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.

         Because 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.

         As a result, Armstrong's PWDCRA claim fails.

         2. ...


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