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Dzurka v. MidMichigan Medical Center-Midland

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

October 30, 2017



          MARK A. GOLDSMITH United States District Judge.

         This 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.

         I. BACKGROUND

         Dzurka 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).

         On 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.” Id.

         What 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.

         Dzurka 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) (Dkt. 22-22).

         After 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.

         In 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.

         After 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.

         Dzurka 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.

         Dzurka 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 weeks. Id.

         Dzurka 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.

         Dzurka 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 ...

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