United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
Corbett O'Meara United States District Judge.
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.
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
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.
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).
Retaliation under the WDCA
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).
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
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.
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.
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 ...