United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (Dkt. 19) AS TO PLAINTIFF'S FMLA
CLAIM AND DECLINING TO EXERCISE JURISDICTION OVER
PLAINTIFF'S PENDENT STATE LAW CLAIM
A. GOLDSMITH United States District Judge.
matter is before the Court on Defendant MidMichigan Medical
Center-Midland's motion for summary judgment (Dkt. 19).
The issues have been fully briefed and a hearing was held on
September 20, 2017. For the reasons stated below, the Court
grants MidMichigan's motion as to Plaintiff Patricia
Dzurka's claim brought pursuant to the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601, et
seq., and declines to exercise jurisdiction over
Dzurka's pendent state law claim.
was hired by MidMichigan as a first assistant surgical
technician on November 2, 2007. Dzurka Dep., Ex. 1 to Pl.
Resp., at 13 (Dkt. 22-2). While Dzurka received some
discipline during her first few years at MidMichigan, it was
not until 2015 that she began receiving the discipline that
ultimately resulted in her termination. In August of that
year, Dzurka met with Melissa Chambers, her immediate
supervisor, and Ruth Kitzmiller, the director of Dzurka's
department. While discussing Dzurka's performance,
Kitzmiller informed Dzurka that her score was lowered due to
a variance report that was filed against her. Id. A
variance report is an anonymous submission against an
employee who has failed to follow the medical center's
protocol. Schmitt Aff., Ex. 1 to Def. Mot., ¶ 11 (Dkt.
19-2). Kitzmiller declined to provide Dzurka with a copy of
the variance report, but later forwarded an email describing
the incident in enough detail to allow Dzurka to piece
together the identity of the complainant, Ashley Byron, a
room nurse at the medical center. 8/18/2015 Email, Ex. 20 to
Pl. Resp., at 1 (cm/ecf page) (Dkt. 22-21).
August 20, 2015, after she learned that Byron had filed the
variance report, Dzurka approached Byron to discuss the
issue. When Dzurka asked Byron if she was involved in the
filing of the variance report, Byron responded that she did
not write the report. Dzurka Dep. at 64. Dzurka then
responded that she did not ask who wrote the report, but was
curious as to whether Byron agreed with its contents.
Id. at 65. Byron repeated that she was not the
author of the report. Id. Dzurka then told Byron
that “if there's a problem between us next time
maybe we should just talk about it ourselves before you run
to [Chambers] and make a big deal about it.”
followed next is disputed by the parties. Chambers testified
that Byron came into her office upset the following day, at
which point Chambers called Kitzmiller and Matt Kelsey,
Dzurka's direct supervisor, into her office. Chambers
Dep., Ex. 8 to Pl. Resp., at 20 (Dkt. 22-9). According to
Chambers, Byron stated that Dzurka had “haggled and
attacked” her the previous day regarding the variance
report. Id. Kitzmiller stated that Byron, who
Kitzmiller described as visibly upset and shaking, informed
her that Dzurka had cornered her in the locker room of the
medical center and that she wanted to report the incident to
human resources. Kitzmiller Dep., Ex. 9 to Pl. Resp., at 21
(Dkt. 22-10). Byron was then directed to speak with Tara
Schmitt, a strategic partner in the medical center's
human resources department. Schmitt Aff. ¶ 10. Byron
told Schmitt about the incident and told her that she was
afraid to submit future variance reports because of possible
retaliation. Id. ¶¶ 10, 12.
disputes this characterization of events, pointing to emails
between Schmitt, Kitzmiller, and Chambers in which they
discuss the variance report and whether Dzurka's response
to it constituted a violation of company policy. Dzurka
points to an email sent by Schmitt in which she asks if
Dzurka, in addition to speaking with Byron, “approached
the other employee who was involved in the variance? Can
someone casually ask her if she was approached.”
8/24/2015 Emails, Ex. 21 to Pl. Resp., at 1 (cm/ecf page)
conducting an investigation into the incident, including an
interview with Dzurka, Schmitt determined that Dzurka had
violated MidMichigan's corrective action and disciplinary
procedure and rules of conduct policy by engaging in coercive
treatment against a coworker. Schmitt Aff. ¶¶
17-19. Under MidMichigan's policy, an employee can be
issued anywhere from one to four “action steps”
depending on the severity of the violation, with a fourth
action step resulting in termination. Dzurka received three
action steps for the incident with Byron, which resulted in a
suspension. Id. ¶ 21. Schmitt determined that
this discipline was warranted in light of MidMichigan's
policy prohibiting retaliation against those who make
good-faith internal complaints. Id. ¶ 20.
November 2015, Dzurka received a final action step for
accumulating too many absences and late arrivals.
MidMichigan's policy states that an action step is
warranted where an employee receives eight attendance
“points” (assessed for absences and late
arrivals) over the course of a twelve month period.
Id. ¶ 26. Prior to November 1, 2015, Dzurka had
received 4.5 points. Id. ¶ 31. From November 3,
2015 through November 6, 2015, Dzurka missed work in order to
participate in a medical mission overseas, believing she had
enough paid time off (“PTO”) to cover these
absences. Dzurka Dep. at 164. While Dzurka was out of the
office, Kelsey and Kitzmiller discovered that she did not
have enough PTO to cover her time away from work. Kitzmiller
Dep. at 41. Kelsey and Kitzmiller reported this to Schmitt,
who determined that an action step was appropriate. Schmitt
Aff. ¶ 29-32. Because this was Dzurka's fourth
action step, her employment with MidMichigan was terminated.
Id. ¶ 33.
Dzurka was informed of her termination, Kitzmiller and
Schmitt accompanied her to the company locker room to gather
her belongings. Dzurka Dep. at 77. Dzurka testified that
while she was gathering her things, she felt that she was
being rushed by Schmitt and Dzurka. Id. As she was
finishing, Dzurka remarked to Kitzmiller and Schmitt that she
was “almost done planting the bomb.”
Id.; Kitzmiller Dep. at 50-51; Schmitt Aff. ¶
37. Upon hearing this remark, Kitzmiller and Schmitt had
Dzurka escorted off the premises and contacted police.
Id. ¶ 41. Schmitt also issued Dzurka another
corrective action, which stated that while Dzurka was
terminated for her retaliation and attendance, her bomb
threat was independently sufficient to warrant termination.
Id. ¶ 43.
contends that this discipline was issued in retaliation for
voicing various concerns regarding MidMichigan's
policies. Her primary concern, which she contends motivated
her termination, was that MidMichigan was not properly
staffing its laser procedures. She noted that in normal
procedures, there were four individuals present: (i) a
surgeon; (ii) a surgical technician; (iii) an
anesthesiologist or nurse anesthetist; and (iv) a circulating
nurse. Dzurka Dep. at 84-86. During laser procedures,
MidMichigan would have the circulating nurse operate the
laser, leaving the operating room without an individual to
perform the typical duties of a circulating nurse.
Id. at 84-85. Dzurka believed that MidMichigan's
practice of having three staff members present in the room
while the laser was being operated was insufficient, and that
best practices required a fourth employee to be present to
ensure patient safety. While she could not point to an
instance where a patient was harmed by the failure to include
a fourth staff member, she did list one example in which a
patient who was undergoing a kidney stone procedure nearly
suffered injury as a result of MidMichigan's policy.
Id. at 85-86.
testified that she first brought this issue to
management's attention in either 2013 or 2014 during one
of her evaluations. Id. at 90. Dzurka testified that
she also brought the issue to Chambers's and
Kitzmiller's attention during the last year of her
employment. Id. at 92. When Chambers and Kitzmiller
did not address her concern, Dzurka went directly to the
president of MidMichigan, Diane Postler-Slattery.
Id. at 119. On June 17, 2015, Dzurka met with
Postler-Slattery to discuss how the company's laser
program was being run. Id. at 119-120. Dzurka
expressed her belief that MidMichigan's failure to
properly staff laser procedures put patients at risk of
injury and violated the relevant standards of care.
Id. at 121-122. The following day, Postler-Slattery
emailed Dzurka to inform her that she met with Kitzmiller and
Chambers and instructed them to respond to Dzurka's
concerns regarding the laser program. 6/18/2015 Emails, Ex.
13 to Pl. Resp. at 1 (cm/ecf page) (Dkt. 22-14). She told
Dzurka to contact her if she did not hear anything within two
also contacted the Occupational Safety and Health Association
(“OSHA”) in the summer of 2015 to inquire
regarding whether there were guidelines for laser use. Dzurka
Dep. at 101. The record indicates that Chambers, Kitzmiller,
and Postler-Slattery were made aware of Dzurka's contact
with OSHA. 6/5/2017 Emails, Ex. 10 to Pl. Resp., at 1 (cm/ecf
page) (Dkt. 22-11); 6/4/2017 Emails, Ex. 11 to Pl. Resp., at
1 (cm/ecf page) (Dkt. 22-12); Postler-Slattery notes, Ex. 12
to Pl. Resp., at 2 (cm/ecf page) (Dkt. 22-13). In response to
Dzurka's concern, MidMichigan appointed an employee to
oversee the laser program in July 2015. Dzurka Dep. at 94. In
Dzurka's words, “the real reason I think that I got
fired is because . . . I brought them a patient safety
concern which I felt very strong about, my management
wouldn't do anything. I went over their head and they
didn't like it.” Id. at 114.
also contends that her termination was motivated by her use
of leave pursuant to the Family Medical Leave Act. On April
27, 2015, Dzurka completed a request for intermittent medical
leave to care for her mother. When Kitzmiller was informed of
Dzurka's FMLA leave, she responded ‘Fmla for
what????” 4/27/2015 Emails, Ex. 6 to Pl. Resp. at 1
(cm/ecf page) (Dkt. 22-7). The record indicates that ...