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Sharrow v. S.C. Johnson & Son, Inc.

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

April 12, 2018

DAVID SHARROW, Plaintiff,
v.
S.C. JOHNSON & SON, INC., Defendants.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On April 11, 2017, Plaintiff David Sharrow (“Plaintiff”) filed a complaint against Defendant S.C. Johnson & Son, Inc. (“Defendant” or “SCJ”), alleging that Defendant wrongfully terminated his employment at Defendant's Ziploc Slide-Loc Plant located in Bay City, Michigan. ECF No. 1. Plaintiff alleges that he was termination in retaliation for exercising his rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C § 2601 et seq. (Count I), for exercising his rights under the Michigan Worker's Disability Compensation Act (“MWDCA” or “WDCA”) (Count II), and because of his disability in violation of the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”) (Count III). Id. After seven months of discovery, Defendant moved for summary judgment on February 8, 2018. ECF No. 10. Plaintiff responded on March 1, 2018, and Defendant replied on March 15, 2018. ECF Nos. 15, 17.

         I.

         Plaintiff began working for Defendant in 1999 as an Associate Technician. Sharrow Dep. at 24, ECF No. 10-9. He was eventually promoted to Senior Technician. Id. “During 2015 up until November 20, 2015, ” Association Production Manager Brigitte Nestle was Plaintiff's direct supervisor. Nestle Aff. ¶ 3, ECF No. 10-3. Ms. Nestle was Plaintiff's direct supervisor when he requested FMLA leave in July of 2015, and Robert Pratcshler was his Team Leader. Sharrow Dep. ¶ 27, 29. At the time of Plaintiff's termination, Interim Production Manager Pete Brissette was Plaintiff's direct supervisor. Brissette Aff. ¶ 4, ECF No. 10-4. In early July, 2015, Plaintiff began experiencing foot pain while at work. Sharrow Dep. at 41-42. Plaintiff was also suffering from a chronic knee condition. Id. at 30. Plaintiff requested sick leave from July 11 through approximately July 27. Sharrow Dep. at 48; ECF No. 15-8. On July 15, 2015, Plaintiff visited his physician Charles E. Kerr, D.O., and was diagnosed with a sesamoid fracture in his foot. Id. Dr. Kerr gave Plaintiff a note indicating he would be “off work 7/11 until 7/27 due to health problems.” ECF No. 15-4. On July 16, 2018, Plaintiff visited Sheri Wenglikowski, R.N., in Defendant's medical department, gave her the Doctor's note, and informed her he was having issues with his knee and toe. ECF No. 15-3. He also filled out a request for FMLA leave. Id.; ECF No. 15-5.

         The weekend of July 17, 2015, Plaintiff attended a charity golf tournament. See ECF No. 15-8. Plaintiff appeared in a Facebook picture on July 19, 2015, with three other individuals captioned “2015 Tim and Ed's Golf Scramble Champs.” Id.; Resp. at 4. The picture was brought to Ms. Nestle's attention on July 20, 2015. Ms. Nestle called the golf course and spoke with an employee who confirmed that the golf scramble took place the weekend of July 17. On July 25, 2018, Plaintiff appeared in a Facebook post captioned “Tubing the Rifle River.” ECF No. 15-8. This Facebook post was brought to Ms. Nestle's attention on July 28, 2015. Id. On July 29, 2015, Dr. Kerr provided a return to work slip indicating the Plaintiff could return to work with no restrictions, and Plaintiff returned to work that same day. ECF No. 15-10. On September 11, 2015, Plaintiff's FMLA request was denied. ECF No. 15-14.

         On September 16, 2015, Ms. Nestle and Senior Human Resources Associate Anna Bluj met with Plaintiff. ECF No. 15-8. They questioned him about various activities he was and was not able to do during his time off due to his medical condition. Sharrow Dep. at 51-56. He told them it was difficult to walk and climb stairs. Id. at 52. They also showed him the picture from the golf outing and questioned him about his attendance. Id. at 55. On September 24, 2015, Ms. Nestle prepared a memorandum of this investigation. ECF No. 15-8. The memorandum indicates that Plaintiff admitted to Ms. Nestle and Ms. Bluj that he “participated in the tournament.” Id. He told them he had also tubed down the rifle river. Id. at 60.

         Plaintiff testified that the event consisted of nine holes of golf, and that he rode in the cart all day long “other than to walk up and watch them putt or something . . .” Id. at 49. Plaintiff did not, however, confirm or deny that he told Ms. Nestle and Ms. Bluj that he participated. He testified that his job duties as a technician consisted of: “Adjusting Plastic, knowing the - just a lot of adjustments, a lot of adjustments, a lot of thinking and a lot of physically running up and down stairs, a lot of climbing in the machines, and scraping wires, a lot - a lot more physically and having knowledge of the machines themselves.” Id. at 61.

         Based on the interview with Plaintiff, Ms. Nestle determined that Plaintiff's explanation of his physical limitations was inconsistent with his activities during his sick leave, and recommended that the company place Plaintiff on Decision Making Leave (DML). ECF No. 15-8. On October 9, 2015, Ms. Nestle provided Plaintiff a memorandum placing Plaintiff on DML for “Sick Benefit Fraud Violation.” ECF No. 15-15. The memorandum also provided as follows:

During your Decision Making Leave you will need to consider whether you wish to maintain your employment with the Company. Upon your return from leave, you must provide me with a commitment letter and action plan stating specifically how you will improve your behavior, specifically as it relates to adherence to and leadership around Integrity, and SCJ Absence Policies and Procedures. This plan must be acceptable to me, Greg Velez, and Jessica Whittaker. If you fail to provide an acceptable action plan, your employment will be terminated . . . If your letter and action plan are acceptable, this DML and action plan will remain in effect until October 9, 2016. Any additional work performance issues during this time, including attendance, safety, quality, Relationship Imperatives, and work practices will result in termination per the Positive Discipline Guidelines.

Id. On October 19, 2015, Plaintiff submitted his commitment letter and action plan, as required. ECF No. 15-16, 15-17. The action plan was deemed acceptable, and was memorialized in a memo from Ms. Nestle to Plaintiff on November 11, 2015. ECF No. 15-17.

         On November 22, 2015, Plaintiff was placed on administrative leave after Team Leader Robert Pratcschler accused Plaintiff and his co-worker, Jasun Dzurka, of sleeping on the job. ECF No. 15-19, 15-20. Ms. Bluj issued a memorandum on December 1, 2015, indicating that she and Plaintiff's supervisor Mr. Brissette conducted an investigation of the alleged violation. ECF No. 15-20. They interviewed Plaintiff, reviewed a photograph taken by Mr. Pratcschler, and determined that Plaintiff had been sleeping on the job. Id. They also determined that Plaintiff had lied when he denied sleeping on the job in the interview. Id. On December 3, 2015, Mr. Brissette provided Plaintiff a letter informing him that his employment was terminated for “inattention to job duties; sleeping on the job; as well as lying regarding this incident in a company investigation.” ECF No. 15-20. Because Mr. Sharrow was already at the Decision Making Leave (DML) stage of discipline, the next step was termination. Plaintiff testified that, during his interview with Mr. Brissette and Ms. Bluj, he denied sleeping on the job and denied nodding off. Sharrow Dep. at 86-87. Mr. Dzurka, Plaintiff's co-worker, was also at the DML stage of discipline prior to the sleeping infraction, and was also terminated. Brissette Aff. ¶ 17, ECF No. 10-4.

         II.

         A motion for summary judgment should be granted 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 moving party has the initial burden of identifying where to look in the record for evidence “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         The burden then shifts to the opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). “The party opposing summary judgment cannot rest on its pleading or allegations, to prevail, they must present material evidence in support of their allegations.” Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007) (citing Celotex Corp v. Catrett, 477 U.S. 317 (1986)). The Court must view the evidence and draw all reasonable inferences in favor of the non-movant and determine “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, 477 U.S. at 251-52.

         III.

         The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter, ” or to retaliate or discriminate against an employee for doing so. 29 U.S.C.A. § 2615(a)(1)-(2). “Absent direct evidence of unlawful conduct, FMLA-retaliation claims are evaluated according to the tripartite burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).

         A.

         To establish a prima facie case of FMLA retaliation, a plaintiff must show “(1) she was engaged in an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under the FMLA; (3) after learning of the employee's exercise of FMLA rights, the employer took an employment action adverse to her; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action.

         Here, only the second and fourth elements of Plaintiff's prima facie case are in dispute, namely whether Defendant knew Plaintiff was exercising his rights under the FMLA and whether there was a causal connection between the protected activity and the adverse decisions. Plaintiff argues he has met his prima face case because: 1) Defendant committed several violations of the FMLA in its handling of his application; 2) the protected activity and the adverse decision were only a few months apart; 3) Mr. Pratcshler began following him around and watching him after he asserted his FMLA rights. Resp. at 15-17.

         Plaintiff argues that Defendant committed the following violations of the FMLA in its handling of his application: 1) Defendant failed to designate Plaintiff's leave as FMLA-qualifying, even though he provided sufficient information to establish his entitlement; 2) Defendant improperly sought information outside the scope of the certification form; and 3) Defendant did not provide Plaintiff an opportunity to cure any deficiencies. Resp. at 15.

         Plaintiff's arguments concerning the handling of his FMLA application sound in an entitlement theory, not a retaliation theory. Sixth Circuit precedent recognizes these as two distinct theories of recovery for FMLA wrongdoing. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). The “entitlement” or “interference” theory arises from § 2615(a)(1), which prohibits an employer from interfering with an employee's exercise of her FMLA rights or wrongfully denying those rights, and requires the employer to restore the employee to the same or an equivalent position upon her return from FMLA leave. Id. The “retaliation” theory, on the other hand, arises from § 2615(a)(2), which prohibits an employer from taking any adverse action against an employee for exercising or attempting to exercise her rights under the Act. Id.

         Plaintiff's arguments regarding his entitlement/interference theory are not supported by any citation to the evidentiary record. In fact, they are largely belied by the evidentiary record. Additionally, Plaintiff has never asserted an interference/entitlement claim, nor has he sought leave to amend his complaint. He may not assert this claim for the first time in a response brief to Defendant's motion for summary judgment. Furthermore, Plaintiff offers no explanation as to how these alleged acts of interference are probative of retaliatory intent.

         Plaintiff also notes that the adverse decisions occurred only a few months after his request for FMLA leave. Temporal proximity between the leave request and the adverse decision can raise an inference of retaliatory intent sufficient to establish a prima facie case. Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (holding that the three-month time lapse between the plaintiff's request for FMLA leave and her termination on the day she was scheduled to return to work established a causal connection at the prima facie stage); Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012). Here, Plaintiff requested FMLA leave on July 16, 2015. ECF No. 15-5. On September 11, 2015, Plaintiff's FMLA request was denied. ECF No. 15-14. On September 16, 2015, Ms. Nestle and Senior Human Resources Associate Anna Bluj interviewed Plaintiff in conjunction with their investigation of his conduct during his time off. ECF No. 15-8. On September 24, 2015, Ms. Nestle prepared a memorandum of this investigation and recommended that the company place Plaintiff on Decision Making Leave (DML). ECF No. 15-8. On October 9, 2015, Plaintiff was placed on DML for “Sick Benefit Fraud Violation.” ECF No. 15-15. On November 22, 2015, Plaintiff was placed on administrative leave after Team Leader Mr. Pratcschler accused Plaintiff and his co-worker, Jasun Dzurka, of sleeping on the job. ECF No. 15-19, 15-20. On December 3, 2015, Mr. Brissette provided Plaintiff a letter informing him that his employment was terminated. ECF No. 15-20.

         Thus, there was a close temporal nexus between Plaintiff's assertion of his FMLA rights and the adverse decisions. Within two months of his FMLA request, and within one week after his application was decided, he was investigated for wrongdoing. He was placed on DML within three weeks thereafter, and terminated within two months of being placed on DML. Given the relatively light ...


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