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Kheibari v. Rite Aid Corp.

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

September 26, 2017

MICHAEL KHEIBARI, Plaintiff,
v.
RITE AID CORPORATION, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          LINDA V. PARKER, U.S. DISTRICT JUDGE

         On April 14, 2014[1], Plaintiff Michael Kheibari, without the assistance of counsel, initiated this lawsuit against Defendant, Rite Aid Corporation, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 623, and the Michigan Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2202. Plaintiff has since retained counsel to represent him in this matter. (ECF No. 10.) Given that Mr. Kheibari passed during the pendency of this litigation, the Court granted Plaintiff's request to substitute Rosita Amini, Mr. Kheibari's daughter and Personal Representative of his estate, as the proper-plaintiff[2] on September 26, 2017.

         Presently before the Court is Defendant's motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56 on February 28, 2017. (ECF No. 66.) Plaintiff filed a response to the motion on March 24, 2017, and Defendant filed a reply brief on April 6, 2017. (ECF Nos. 68 & 70.) For the reasons that follow, the Court is granting Defendant's motion for partial summary judgment.

         I. Summary Judgment Standard

         Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “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). The central inquiry is “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, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252.

         “A party asserting that a fact cannot be or is genuinely disputed” must designate specifically the materials in the record supporting the assertion, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). The court must accept as true the non-movant's evidence and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby, 477 U.S. at 255.

         II. Factual and Procedural Background

         Born in Iran on July 16, 1949, Plaintiff became an American citizen in 2003. (ECF No. 57 at Pg ID 938.) In his First Amended Complaint, Plaintiff indicated that he began working at Rite Aid in August 2007 as an assistant/floating manager. (Id.) From 2007-2011, Plaintiff interacted with his direct supervisors, general store managers, without incident. (Id.) Around November 2011, Daniel Snyder (“Snyder”) was assigned to Plaintiff's district as the new District Manager, Plaintiff's second-level supervisor. (Id. at Pg ID 939.)

         According to Plaintiff, during a telephone conversation with Snyder on March 19, 2012, Snyder complained about Plaintiff's accent and language, as well as age. Snyder asked Plaintiff, “Michael what's your Nationality?” (Id. at Pg ID 939-40.) Upon telling Snyder his nationality, Plaintiff stated that Snyder remarked: “I don't know who hired you, but I am not comfortable with your language and accent which is coming from your country of origin.” (Id. at 940.) Plaintiff, in an attempt to overlook Snyder's remarks, redirected the conversation to the possibility of a promotion. Snyder responded: “Michael let's get real. I was dealing with you for a couple of months and I have serious concern about your accent, language and listening because of your background and country of origin.” (Id. at Pg ID 940-41.) Snyder then said “I also have some doubt about your ability to do hard work at your age . . . . I don't care about opinions of your former DMs, in my opinion you are not eligible for any future promotion.” (Id. at Pg ID 941.) Snyder continued, “I am also thinking, it's time to relieve you from your duty to enjoy the rest of your life and creating space for a new young generation.” (Id.) Plaintiff indicated those statements caused him to fear his job security and led him to his first suicidal thoughts. (Id.)

         At some point after Plaintiff's conversation with Snyder, Plaintiff contacted Rite Aid Benefits Center to inquire about his life insurance in the event of his suicide. (Id. at Pg ID 942.) Upon being alerted of Plaintiff's call, Janice Farrell (“Farrell”), Rite Aid's Associate Relations Manager, met with Plaintiff and allowed Plaintiff a brief medical leave.

         Plaintiff complained Snyder made remarks about Plaintiff's accent and language during weekly conference calls, often made store visits and would shake the hands of every employee except his. (Id. at Pg ID 943.) On June 6, 2012, Plaintiff met with Rite Aid Michigan Regional Manager, David Rickett (“Rickett”), and shared his concerns about Snyder's discriminatory treatment towards him. (Id. at Pg ID 943-44.)

         On November 7, 2012, believing he was interviewing for a store manager position, Plaintiff met with Snyder and, instead, was reprimanded for failing to complete a Suspicious Activity Report (“SAR”) when an elderly African American couple purchased prepaid cards in large cash amounts. (Id. at Pg ID 946-47.) According to Plaintiff, Snyder asked, “Are you here to apply for this position? . . . You are too old for this, ” and “You cannot do this on my watch. . . . because I don't like your language and I have a problem with your accent and you are too old for this. It's time to go home.” (Id. at Pg ID 947.) Plaintiff indicated that following the November 7, 2012 meeting, Snyder became more hostile. (Id.)

         On November 14, 2012, Plaintiff emailed Rite Aid's upper management with the subject line “Urgent help” complaining of Snyder's discriminatory behavior and stating “I don't feel safe.” (Id. at Pg ID 947-48.) On November 19, 2012, Rite Aid informed Plaintiff: “it will take a long time, no immediate action.” (Id. at Pg ID 948.) After closing the store for the night on November 23, 2012, Plaintiff attempted suicide on Rite Aid's property. (Id. Id. at Pg ID 949.) Plaintiff left a suicide note describing Snyder's discriminatory treatment as the reason for his suicide. (Id.)

         Plaintiff was placed on medical leave on November 24, 2012, which was extended on several occasions at Plaintiff's request and ultimately extended until June 1, 2013. (Id. at Pg ID 950; see also ECF No. 66 at Pg ID 1070.) On May 17, 2013, upon being notified of Plaintiff's intentions to return to work, Rite Aid sent Plaintiff a letter requesting fitness for duty certifications from Plaintiff's healthcare providers. (ECF No. 66-13 at Pg ID 1222.) One of the questions[3] included in the certification raised a concern for Dr. Kamran Zakaria, Plaintiff's primary and treating physician. Dr. Zakaria consulted Plaintiff about the completion of the form and was instructed not to complete the form. (ECF No. 57 at Pg ID 951; ECF No. 66 at Pg ID 1071; ECF No. 68 at Pg ID 1379.) Instead, on May 22, 2013, Dr. Zakaria faxed Rite Aid a cover sheet indicating Plaintiff asked that he not complete the form because he had been approved for lifetime disability benefits. (Id. at Pg ID 1010-17; ECF No. 66-15 at Pg ID 1235.)

         Plaintiff attempted suicide for the second time on May 23, 2013. (ECF No. 66 at Pg ID 1071.) On June 22, 2013, Plaintiff contacted Rite Aid to request sick leave for an additional three months because of his second suicide attempt. (Id. at Pg ID 1071; ECF No. 66-16 at Pg ID1237.) According to Abbe Barnett (“Barnett”), Leave of Absence Team Leader for Rite Aid, she consulted with Rite Aid's legal department and concluded they could not accommodate Plaintiff's request for an additional three month medical leave. (ECF No. 66 at Pg ID 1071; ECF No. 66-17 at Pg ID 1241.) Furthermore, Plaintiff's request was not supported by any medical opinion. (ECF No. 66 at Pg ID 1071.)

         Plaintiff was formally terminated on June 26, 2013. (ECF No. 57 at Pg ID 951.)

         III. Applicable ...


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