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Fox v. Nexteer Automotive Corp.

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

May 31, 2017

ASHLEY FOX, Plaintiff,
v.
NEXTEER AUTOMOTIVE CORP., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF #13)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         In this action, Plaintiff Ashley Fox alleges that Defendant Nexteer Automotive Corporation interfered with her rights under the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (the “FMLA”), retaliated against her for exercising her FMLA rights, and discriminated against her on the basis of her sex and pregnancy in violation of the Michigan Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq. (the “ELCRA”). Nexteer has now moved for summary judgment.

         For the reasons explained below, none of Fox's claims are viable, and the Court therefore GRANTS Nexteer's motion.

         I

         A

         Fox worked for Nexteer from July 19, 2010, until February 25, 2013. (See Fox Dep. at 12, 64, ECF #21-2 at Pg. ID 258, 269.) She began her employment as a parts sorter but later transferred to Nexteer's heat treatment department. (See Id. at 14-18, ECF #21-2 at Pg. ID 259.)

         During Fox's employment with Nexteer, the company had a no-fault attendance policy. (See Nexteer Collective Bargaining Agreement, ECF #21-3 at Pg. ID 359-60.) Under this policy, Nexteer assessed points against employees for absences and tardies, and employees were subject to termination if they accumulated eighteen points within a rolling twelve-month period. (See id.) However, Nexteer did not assess points for certain types of absences, including absences for FMLA leave or short-term disability leave. (See id.; Denny Getgood Dep. at 46-47, ECF #21-8 at Pg. ID 498.)

         B

         On October 15, 2012, Fox took a leave of absence related to her pregnancy. (See Fox Dep. at 38-39, ECF #21-2 at Pg. ID 264.) This absence qualified for paid leave under Nexteer's short-term disability plan. MetLife Disability, the administrator of that plan, approved Fox for short-term disability leave from October 16, 2012, to December 27, 2012, and MetLife notified Fox of that approval in writing. (See Id. at 49-50, ECF #21-2 at Pg. ID 265-66; MetLife Maternity Approval Letter, ECF #21-5.)

         Fox's pregnancy leave was also covered under the FMLA, and Nexteer chose to treat her leave from October 16, 2012, to December 27, 2012, as both short-term disability leave and FMLA leave. (See Getgood Dep. at 84-85, ECF #21-8 at Pg. ID 503-504.) The FMLA's implementing regulations and Nexteer's union contract authorized Nexteer to treat Fox's leave in this manner. (See 29 C.F.R. § 825.207(d)[1]; Getgood Dep. at 84-85, ECF #21-8 at Pg. ID 503-04.) The FMLA's implementing regulations required Nexteer to provide Fox with a written “designation notice” stating that her short-term disability leave would “be counted as FMLA leave, ” 29 C.F.R. § 825.300(d)(1), but Nexteer did not give Fox this notice. (See Fox Dep. at 102, ECF #22-2 at Pg. ID 655.) There is no evidence in the record concerning how or why Nexteer failed to provide that designation notice. Because Nexteer did not provide the required notice, Fox was unaware that Nexteer was counting her pregnancy leave against her allotment of FMLA leave. (See id.)

         According to Nexteer, Fox exhausted her twelve-week allotment of FMLA leave for calendar year 2012 before December 27, 2012 - the last day of her scheduled leave.[2] (See Getgood Dep. at 34, ECF #21-8 at Pg. ID 496.)

         C

         Fox was scheduled to return from her leave on January 2, 2013.[3] (See Id. at 39, ECF #21-2 at Pg. ID 264.) Under Nexteer's policies, Fox could not return to work from her medical-related leave without submitting documentation from a physician indicating that she was fit to return. (See Phillip Moore Dep. at 43-45, ECF #21-7 at Pg. ID 484-85; Getgood Dep. at 35, ECF #21-8 at Pg. ID 496.)

         Fox knew that she needed clearance from her physician (see Fox Dep. at 51, ECF #21-2 at Pg. ID 266), and she scheduled an appointment to see him on January 2, 2013. (See id. at 39, ECF #21-2 at Pg. ID 264.) She did not secure an earlier appointment because the doctor's office was closed “a couple extra days” due to the holidays. (Id.) However, Fox's physician was unable to examine her on January 2, 2013, because Fox had started her menstrual period. (See id.) Fox rescheduled her appointment for January 16, 2013. (See id.) Because Fox did not secure a return-to-work authorization from her physician, she did not return to work on January 2, 2013. (See Id. at 50-53, ECF #21-2 at Pg. ID 266.)

         There is no evidence in the record that Fox notified Nexteer that she would not be returning to work on January 2, 2013 as originally scheduled. Instead of telling Nexteer that she would not be returning as scheduled, Fox informed MetLife that her postpartum follow-up appointment had been rescheduled. (See Id. at 52, ECF #21-2 at Pg. ID 266.)

         At around this same time, Fox contacted her union representative, Phillip Moore, and told him about her situation. (See Moore Dep. 46-47, ECF #21-7 at Pg. ID 485.) On January 12, 2013 - ten days after Fox was due to return to work - Moore emailed Denny Getgood, an employee in Nexteer's human resources department, to tell him that:

Ashley Fox did attempt to see [a doctor] to get a return to work date, but her [doctor] is on vacation. She is working on that [and] she is also requesting to update her FMLA for this year.

(See Moore email to Getgood, ECF #21-8 at Pg. ID 505; Getgood Dep. at 38-40, ECF #21-8 at Pg. ID 497.)

         After receiving Moore's email, Getgood investigated whether Fox was eligible for FMLA leave in January 2013. (See Getgood Dep. at 38-40, ECF #21-8 at Pg. ID 497.) Getgood determined that Fox was ineligible for FMLA benefits at that time because she had not worked 1, 250 hours in the preceding twelve months.[4] (See id.; Fox Time Card, ECF #21-8 at Pg. 506.) On January 14, 2013, Getgood informed Moore by email that Fox “hasn't worked 1250 hours in the last year. She would not qualify for FMLA.” (Getgood email to Moore, ECF #21-8 at Pg. ID 505; Getgood Dep. at 38-40, ECF #21-8 at Pg. ID 497.)

         D

         On January 16, 2013, Fox obtained a return-to-work authorization from her doctor. She reported to work that evening - fifteen days after her scheduled return date.[5] (See Fox Dep. at 50-54, ECF #21-2 at Pg. ID 266-67.)

         Nexteer informed Fox that she would be assessed points under Nexteer's attendance policy for all of the work days she missed in January - i.e., for the days between her scheduled return to work date of January 2 and her actual return date of January 17 - unless MetLife determined that those absences were covered under Nexteer's short-term disability policy. (See Id. at 54-55, ECF #21-2 at Pg. ID 267.) Nexteer determined that Fox could not avoid attendance points for those absences under the FMLA because she was not eligible for FMLA leave at that time. (See Getgood Dep. at 38, ECF #21-8 at Pg. ID 497.)

         In order to bring her January absences within the coverage of Nexteer's short-term disability policy, Fox needed to provide MetLife with medical documentation indicating that she was unable to work on the dates in question. (See Alyssa McWilliams Dep. at 28-29, ECF #21-9 at Pg. ID 516-17; MetLife email to Nexteer, ECF #21-9 at Pg. ID 521.) As of January 17, 2013, Fox had not submitted any documentation to MetLife. (See Fox Dep. at 52-54, ECF #21-2 at Pg. ID 266-67.)

         On January 17, 2013, and February 1, 2013, Getgood sent letters to Fox informing her that MetLife had “not yet received certification from [her] treating physician to approve [short-term disability leave] for December 28, 2012 through January 17, 2013.” (Getgood Letters, ECF ## 21-5, 21-6.) Getgood told Fox that the “[f]ailure to get this approval within one week from the date of [the] letter will result in point generation for the dates [she] missed work.” (Id.)

         On February 12, 2013, MetLife notified Nexteer that it had not approved Fox for short-term disability benefits from December 27, 2012, to January 16, 2013. MetLife explained that Fox needed to submit detailed medical records such as “treatment notes” that “support her disability” for those dates and that she had not done so. (McWilliams Dep. at 28-29, ECF #21-9 at Pg. ID 516-17; MetLife email to Nexteer, ECF #21-9 at Pg. ID 521.)

         On February 14, 2013, Fox secured a letter from her physician explaining that she (Fox) had needed to reschedule her postpartum follow-up appointment due to her menstrual period. (See Fox Dep. at 59-60, ECF #21-2 at Pg. ID 268; Doctor's Letter, ECF #21-5 at Pg. ID 453.) However, the letter did not say that Fox had been unable to work or disabled on the days she missed. (See id.) MetLife did not accept this letter as proof of disability and did not approve short-term disability leave for Fox's absences in January 2013. (See Fox Dep. at 63, ECF #21-2 at Pg. ID 269.)

         Nexteer then assessed attendance points against Fox for her January 2013 absences. (See Id. at 63-64, ECF #21-2 at Pg. ID 269; Discharge Notice, ECF #21-5.) Once those points were assessed, Fox had twenty-eight attendance points on her record - substantially more than the eighteen-point threshold for termination under Nexteer's attendance policy. (See Fox Dep. at 63-64, ECF #21-2 at Pg. ID 269.) Nexteer fired Fox on February 25, 2013, because she “reached the level of 28 points” under the Attendance Policy. (Discharge Notice, ECF #21-5.)

         Immediately after Nexteer terminated Fox's employment, she complained to her union representatives (see Fox Dep. at 66, ECF #21-2 at Pg. ID 270), and it appears that she also completed a grievance form contesting her discharge at that time. (See Employee Grievance Form, ECF #21-5 at Pg. ID 456.) Fox's union ultimately agreed with Nexteer that the assessment of attendance points against Fox for the January 2013 dates was “just, ” and for that reason it settled her grievance. (Id.) To this day, Moore, Fox's union representative, believes that her firing was “justified.” (Moore Dep. at 68, ECF #21-7 at Pg. ID 486.)

         E

         On February 9, 2016, Fox filed this action. In her three-count Amended Complaint, Fox alleges that Nexteer retaliated against her in violation of the FMLA, 29 U.S.C. § 2615(a)(2), interfered with her FMLA rights in violation of 29 U.S.C. § 2615(a)(1), and discriminated against her because of her sex and pregnancy in violation of the ELCRA. (See Am. Compl., ECF #15.) Nexteer moved for summary judgment on December 19, 2016. (See ECF #21.) Fox responded on January 10, 2017. (See ECF #22.) ...


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