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Pollington v. G4S Secure Solutions (USA), Inc.

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

April 18, 2017



          John Corbett O'Meara United States District Judge.

         Before the court is Defendants' amended motion for summary judgment, filed January 26, 2017. The court heard oral argument on March 23, 2017, and took the matter under advisement. For the reasons explained below, Defendants' motion is granted.


         Plaintiff Denise Pollington worked for Defendant G4S Secure Solutions as a Human Resources Manager. Defendant terminated her employment in an alleged reduction in force in August 2013. Plaintiff contends that she was terminated because she exercised her rights under the Workers' Disability Compensation Act (WDCA). Plaintiff was diagnosed with a gastrointestinal condition (including stomach bleeding) that was exacerbated by stress at work. She did not file a workers' compensation claim, alleging that she worried about losing her job if she did. Plaintiff contends that she informed her supervisor, Kevin Baker, about her diagnosis in the spring of 2013. According to Plaintiff, Baker reacted negatively to her need for medical treatment and time off, and suggested that she may want to reduce her hours to part time.

         Defendants contend that Plaintiff's job was eliminated in August 2013 to reduce overhead. Plaintiff argues that there was no general reduction in force and that she was the only person in management terminated. Plaintiff claims that she was terminated in retaliation for exercising her right to seek medical care under the WDCA.


         I. Standard of Review

' Summary judgment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When reviewing a motion for summary judgment, the facts and any reasonable inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         II. Retaliation under the WDCA

         “To establish a prima facie case of retaliation under the WDCA, an employee who has suffered a work-related injury must present evidence: (1) that the employee asserted a right to obtain necessary medical services or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action adverse to the employee, and (4) that the adverse employment action and the employee's assertion or exercise of a right afforded under M.C.L. 418.315(1) were casually connected.” Cuddington v. United Health Servs., Inc., 298 Mich.App. 264, 275 (2012).

         Defendants contend that Plaintiff cannot establish a prima facie case because she did not engage in protected activity under the WDCA. According to Defendants, Plaintiff did not engage in protected activity because she did not file a workers' compensation claim prior to her termination. However, the “plain language of MCL 418.301(13) establishes that a petition for workers' compensation benefits is not a condition precedent to all retaliatory discharge claims.” Cuddington, 298 Mich.App. at 272. Rather, an employee may allege retaliatory discharge “because of the exercise by the employee . . . of a right afforded by this act.” Id. (citing M.C.L. 418.301(13)). The WDCA “affords injured employees the right to seek reasonable medical services and medicines for work-related injuries.” Id. at 273.

         In Cuddington, the plaintiff was injured in an auto accident during the course of his employment. He elected not to got to the hospital immediately after the accident. The next morning, he had difficulty getting out of bed and sought medical attention. His employer told him that he must come to work or be fired. The plaintiff saw his doctor instead of reporting for work and was fired the next day. The plaintiff filed a claim for workers' compensation benefits and sued his employer for retaliation under the WDCA. The Michigan Court of Appeals recognized that the plaintiff “had a right to seek medical consultation concerning his employment-related injury.” Cuddington, 298 Mich.App. at 273. The court noted that if filing a workers' compensation claim was required to show retaliation, the result would be “a foot race, with the winner being determined by the event first to occur - either the firing of the employee or the filing of a claim with the Workers' Compensation Board.” Id. (citation omitted).

         In this case, Plaintiff sought medical attention from her doctor for a chronic condition over a period of time. According to Plaintiff, her condition worsened in February of 2012. Plaintiff's Dep., Def.'s Ex. 2 at 130-31. In the spring of 2013, Plaintiff told Baker that she might need additional medical care for her condition, which her doctors thought was work related. Pl's Dep., Pl.'s Ex. B at 7-8; Defs.' Reply, Ex. 1 at 144. Plaintiff testified that Baker had a negative reaction to this information: “his face went red.” Pl.'s Ex. B at 7-8. According to Plaintiff, Baker did not attempt to convince her not to take time off. Id. Plaintiff subsequently testified that Baker also became upset when she requested time off before an audit due to her husband's knee replacement. Id. at 10.

         Because of Baker's negative reaction to her illness and need for time off, Plaintiff decided not to file a workers' compensation claim. “I decided the safest thing for my employment security would be to just handle it medically with my own insurance and, you know, just move on.” Id. at 15. Plaintiff never told Baker that she was thinking of filing a workers' compensation claim or visiting her employer's workers' compensation panel physician. Defs.' Reply ...

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