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Boyd v. University of Detroit Mercy

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

December 27, 2017

LEWYNN BOYD, Plaintiff,
v.
UNIVERSITY OF DETROIT MERCY, Defendant.

          MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 13) AND DISMISSING CASE [1]

          HON. AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is an employment case. Plaintiff Lewynn Boyd, proceeding pro se, claims that defendant, the University of Detroit Mercy, violated the Family Medical Leave Act (FMLA) by interfering with his FMLA rights, retaliating against him for attempting to take FMLA leave, and eventually terminating him.

         Before the Court is defendant's motion for summary judgment on the grounds that there is no evidence to support plaintiff's FMLA claims. For the reasons that follow, the motion is GRANTED.

         II. Background

         The material facts as gleaned from the parties' papers follow.[2]

         Plaintiff began working at Defendant's Mail Delivery Services Department in 2006. He was a member of the International Union of Operating Engineers Local 324 (Union).

         Shortly after Plaintiff began his employment, he began having performance problems which including tardiness, absences, clocking in at unauthorized work locations, and repeated unauthorized departures from campus. He received progressive counseling and discipline for those issues, which were documented. Some instances were as follows:

- Administrative Counseling for tardiness August 2007, Written Reprimand for tardiness November 2007, one day suspension for tardiness December 2007, one day suspension for work rule violation misappropriation of property (mail), one day suspension without pay for attendance February 2009 and a three day suspension for attendance and tardiness May 2009.
- During a 5-month period (6/1/09-10/30/09) Plaintiff had 32 tardies.
- A one-month audit of the Ceridian Time Clock system confirmed that Plaintiff punched into the system at an unassigned location 7 of the 26 work days that month. Plaintiff had been instructed only to clock in at his work location, since there were numerous instances (67), when he had clocked in on his personal electronic device.
- The card access system indicates Plaintiff entering the campus after logging in on 20 days in September and October of 2009.
- The card access system also indicated several unauthorized departures from the Corktown campus during working hours. These departures were beyond any break or lunch time frames.

         Eventually, Plaintiff received a five-day suspension without pay effective November 4, 2009. After an investigation, the suspension was changed to a termination effective November 11, 2009.

         Following his 2009 termination, Plaintiff filed a grievance. In arbitration, the Union and Defendant agreed that Plaintiff would receive a suspension from November 5, 2009 through February 17, 2010 without pay and without benefits. At that time, Plaintiff and Defendant entered into a Last Chance Agreement (LCA) which provided that during the 24 months following reinstatement any act of insubordination, unsatisfactory work performance (including attendance and tardiness issues), or disruptive behavior would result in immediate termination of Plaintiff's employment with no right of recourse to the grievance procedure.

         Shortly after entering into the LCA, Plaintiff had documented tardies on March 16, June 14, and June 26, 2010. Although Plaintiff ...


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