United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
L. LUDINGTON, United States District Judge
1, 2016 Plaintiff Isabelita Dyer filed a complaint against
Defendant Wal-Mart Stores, Inc, alleging that Defendant
wrongfully terminated her employment. See Compl. ECF
No. 1. Plaintiff claims that Defendant Wal-Mart terminated
her from her position as a Deli Department Manager after she
requested - but did not take - leave pursuant to the Family
Medical Leave Act (“FMLA”), 29 U.S.C. §
2611, et seq.. She also alleges that she was
terminated from her position because of her national origin
in violation of Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. § 200-e2(a), and
Michigan's Elliott-Larsen Civil Rights Act
(“ELCRA”), Michigan Compiled Law 37.2202(1)(a).
After the close of discovery, on February 23, 2017, Defendant
moved for summary judgment as to each of Plaintiff's
claims. See Mot. Summ. J., ECF No. 6. For the
reasons stated below, Defendant's motion will be granted.
Isabelita Dyer was born and raised in the City of Villareal
in Samar, Philippines. See Dyer Dep. 10, ECF No.
6-2. After moving to the United States, in 2002 Plaintiff
began working for a Sam's Club location in Virginia
Beach, Virginia. Id. at 15-16. Upon moving to
Michigan in 2005, she transferred to a Sam's Club
location in Saginaw, Michigan. Id. at 24-25; ECF No.
9-3. Plaintiff then transferred from Sam's Club to a
Wal-Mart store located on Brockway Road in Saginaw, Michigan,
on September 16, 2006. See Job Offer, ECF No. 9-4.
Plaintiff initially worked as a bakery packager and cake
decorator. See Dyer Dep. 26-27. However, in 2009 she
was assigned to the position of Deli Department Manager.
Id. at 27. Throughout her time as a Deli Manager,
Plaintiff Dyer received largely solid performance reviews,
but was regularly advised to work on training and building
relationships with the associates in her area. See
ECF No. 9-5.
September of 2014, Brenda Ortega became the manager of all
“Fresh” areas in the Brockway Wal-Mart, which
meant that she became Plaintiff's supervisor.
See Ortega Dep. 5-6, ECF No. 6-14. Plaintiff Dyer
believed that Ms. Ortega treated her disrespectfully. In
support of this assertion, Plaintiff claims that Ms. Ortega
regularly informed Plaintiff that she had trouble
understanding her, and made comments such as, “[s]low
down Lita. I can't understand you because of your accent,
” or “[s]low down Lita. Take a deep breath. I
can't understand you.” See Dyer Dep. 37.
Plaintiff concedes that she often spoke quickly. Id.
September 26, 2014 Ms. Ortega issued Plaintiff a First
Written Coaching under Wal-Mart's “Coaching for
Improvement” disciplinary policy. The basis for the
Coaching was stated as follows: “Isabelita has had some
conversations with associates that have not been interpreted
as being spoken to with respect. This has occurred on several
different occasions with different associates.”
See First Coaching, ECF No. 6-7. Plaintiff was
advised to treat her associates with respect, and warned that
further disrespectful behavior could lead to “Second
Written up to and including Termination.” Id.
Dyer received a Second Written Coaching from Ms. Ortega on
February 1, 2015, after Ms. Ortega discovered expired meat
product in the deli. See Second Coaching, ECF No.
6-7. Some of the relevant sell-by dates had recently passed,
but Ms. Ortega discovered Prima Deli Forest Ham in the meat
case with a sell-by date of January 1, 2015, or a month
before the Coaching was issued. Id. The Coaching
advised Plaintiff to check expiration dates on a daily basis,
first thing in the morning. Id. It also warned
Plaintiff that the next level of action would be a
“Third Written up to and including Termination.”
Id. Plaintiff does not dispute that expired product
was discovered. Instead, Plaintiff argues that she had
delegated the task of checking for expired food, as Ms.
Ortega allowed her to do, and therefore was not responsible
for the violations. See Dyer Dep. 60-61. Plaintiff
concedes, however, that she was still responsible for double
checking the work of her subordinates in order to ensure that
they completed their assignments. Id. at 62.
April of 2014, Plaintiff informed Ms. Ortega that she would
need to take FMLA leave in order to care for her husband
while he recovered from surgery. See Ortega Dep.
16-17. Ms. Ortega referred Plaintiff to the personnel
department. Id. On April 10, 2015 Plaintiff's
request was referred to Defendant's third party claims
administrator, Sedgwick. See ECF No. 9-11. That same
day, April 10, 2015, Sedgwick sent Plaintiff a letter stating
that it had received her request to take leave under the FMLA
from April 17, 2015 to July 8, 2015. See ECF No.
9-13. The letter informed Plaintiff that her request was
conditionally approved, but that a final decision could not
be made until Plaintiff proved that she met certain
eligibility requirements and provided medical documentation
in support of her request. Id. The supporting
documentation was due by April 30, 2015. Id.
April 16, 2015 - the day before Plaintiff's FMLA leave
was scheduled to begin - Ms. Ortega directed Plaintiff Dyer
to train an associate named Victoria Schaefer to perform
Plaintiff's job responsibilities. See Dyer Dep.
112. In response, Plaintiff informed Ms. Ortega that she
would not require the FMLA leave as requested. Id.
Nevertheless, Ms. Ortega instructed Plaintiff to continue to
train Ms. Schaefer. Id. Plaintiff testified that it
made sense to have somebody trained to perform her job
responsibilities for when she had days off work. Id.
Plaintiff Dyer did not submit the required documentation,
Sedgwick followed up by calling Plaintiff on May 8, 2015.
Sedgwick's records reflect that a gentleman who answered
the telephone stated that Plaintiff did not require any
leave. See ECF No. 6-9 Pg. ID 243. In her
deposition, Plaintiff confirmed that she ultimately did not
require FMLA leave, and that her husband informed the caller
from Sedgwick that she did not require the leave.
See Dyer Dep. 109. Based on the phone call and on
the fact that Plaintiff did not supply the required
documentation, on May 8, 2015, Sedgwick denied
Plaintiff's request for FMLA leave. See ECF No.
6-9 Pg. ID 250. In summary, Plaintiff did not take any leave
under the FMLA, but did take a few days off under
Wal-Mart's leave policy.
weeks after Plaintiff returned from her leave, on May 12,
2015, Defendant received an anonymous complaint against
Plaintiff via its Global Ethics hotline. See Barton
Dec. ¶ 7, ECF No. 6-9; See also ECF No. 6-9 Pg.
ID 215. The caller alleged that Plaintiff falsified
expiration dates on food items by placing new stickers over
old expired stickers, most recently over the weekend with
tapioca pudding. The caller also alleged that Plaintiff cross
contaminated food and did not wash her hands after her
duties. Finally, the caller alleged that Plaintiff was rude
to employees, had anger management issues, and practiced
favoritism. Id. See also ECF No. 6-9 Pg. ID
235. The complaint identified three deli associates who were
allegedly witnesses to these acts: Ms. Schaefer, Dawn Turner,
and Sache' Young (together the “Deli
Associates”). See Barton Dec. ¶ 8.
Hudson, Co-Manager of the Brockway Road Wal-Mart location,
was assigned to investigate the complaint. Id. at
¶ 9. He proceeded to conduct interviews of the Deli
Associates and of Plaintiff's supervisor, Ms. Ortega, on
May 14, 2015. ECF No. 6-9 Pg. ID 235. He also received
written statements from the Deli Associates and Ms. Ortega.
In her statement, Ms. Young alleged that Plaintiff treated
her and her fellow associates with disrespect, and on one
occasion mixed old expired macaroni with new macaroni.
See ECF No. 6-9 Pg. ID 190. Ms. Schaefer claimed in
her statement that Plaintiff had falsified the expiration
dates of expired salads on May 13, 2015. Id. at Pg.
ID 191-92. Ms. Turner's statement alleged that Plaintiff
had been rude to a customer on May 12, 2015. Id. at
Pg. ID 193-94. Finally, Ms. Ortega's statement alleged
that Plaintiff had not properly checked the temperature of a
chicken she was cooking on May 14, 2015. Id. Pg. ID
Dyer, for her part, denied all of the allegations against
her. In her deposition, Plaintiff testified that she had
received a warning from a fellow employee, Beatrice Brown,
that the Deli Associates were conspiring to get her fired.
Plaintiff's allegation is partially substantiated by the
deposition testimony of Ms. Brown, who testified that Ms.
Schaefer and an employee named Sue told her “they was
going to make up a fake statement to get [Plaintiff] out of
there.” See Brown Dep. 4, ECF No. 9-12.
Specifically, Ms. Brown explained that while Plaintiff was
taking her vacation time, “Victoria was telling me that
they was trying to get together to get [Plaintiff] out of
there; they wanted to see [Plaintiff] go. And her and Sue was
going to write up a statement, a false statement to get her
out.” Id. When asked if Victoria and Sue
explained why they wanted Plaintiff to be fired, Brown
testified that “they said that [Plaintiff] ...