United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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
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.
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.
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).
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.
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).
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.
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.
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.
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
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.
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.
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 ...