United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, GRANTING MOTION TO FILE SUPPLEMENTAL EXHIBITS,
DENYING MOTION FOR AMENDED SCHEDULING ORDER AS MOOT, DENYING
MOTION IN LIMINE AS MOOT, AND DISMISSING COMPLAINT
L. LUDINGTON United States District Judge.
March 1, 2017, Plaintiff Jennifer Edwards filed a complaint
against Defendant ALDI, Inc., alleging various violations of
the Family Medical Leave Act (FMLA). Compl., ECF No. 1.
Plaintiff alleges Defendant interfered with her exercise of
her right to take leave under the FMLA, and retaliated
against her for doing so by terminating her employment.
Id. Plaintiff also alleges she was terminated for
refusing to be complicit in fraudulent activity, in violation
of public policy, and that she was discriminated against
based on her disability. Id. After eight months of
discovery, Defendant moved for summary judgment on February
19, 2018. ECF No. 27. Plaintiff responded on March 12, and
Defendant replied on March 26. ECF Nos. 31, 32.
hired Plaintiff as a cashier in October of 2011, and she was
ultimately promoted to store manager. Edwards Dep. at 184,
189-92. ECF No. 27-2. She was assigned to several different
store locations before ending up at store 56 in Saginaw,
Michigan, where she remained until the date of her
termination in October of 2015. Id. at 95. Brian
Anderson was the District Manager in charge of
Plaintiff's district until February of 2015 when Skylar
VanNatta became District Manager. Id. at 54.
was involved in an automobile accident in 2009. Edwards
Decl., ECF No. 31-15. Since that accident Plaintiff has
suffered from a variety of maladies related to her ears,
including “excruciating discomfort, excess draining,
infected ear drums, several perforations of eardrums, lymph
node swelling and infections throughout the neck, mastoiditis
bilateral, headache.” Id. at 33. Infection of
the middle ear can lead to a more serious condition known as
mastoiditis, a bacterial infection of the mastoid air cells
surrounding the inner and middle ear.
was diagnosed with bilateral mastoiditis in September of
2013. Med. Recs., ECF No. 33-1 at PGID 1497-1510. She
reported to the emergency room at St. Mary's of Michigan
on September 13, where she was hospitalized from September
14-16. Id.; Edwards Dep. at 35-36, 39. The
mastoiditis did not impact her ability to perform her job as
store manager and did not impact her ability to perform daily
life activities outside of work. Edwards Dep. at 36-37. She
was treated with antibiotics. Id. at 37. After she
was discharged on September 16, 2013, her doctor imposed no
work restrictions on her and she went back to work.
Id. at 42.
November of 2013, Plaintiff's Doctor stated as follows:
“My impression is that this patient has bilateral
chronic otitis externa as well as significant
temporomandibular joint dysfunction as a cause of her
underlying, ongoing complaints of otorrhea and ear fullness
and pressure and mild ache. She developed an episode of acute
otitis media in September which is now completely
resolved.” Medical Records, ECF No. 31-5 at PGID 1384.
On May 19, 2015, Plaintiff reported to the emergency room at
St. Mary's, was diagnosed with acute persistent otitis
media and otitis externa, was discharged with instructions to
follow up with a primary care provider in 2 days, and was
instructed to continue antibiotics and eardrops. Id.
at PGID 1397. On May 22, 2015, she reported to the emergency
room again where she was diagnosed with mastoiditis and
transferred to the University of Michigan Hospital.
Id. at PGID 1406; Edwards Dep. at 42-43. She was not
admitted to the hospital on that occasion. Med. Recs at PGID
1410-17, ECF No. 31-5. The University of Michigan did not
confirm the diagnosis of mastoiditis, but diagnosed her with
otitis media with spontaneous rupture of eardrum. Discharge
Instructions, ECF No. 27-3. She was discharged and prescribed
antibiotics. Id. Her condition did not impact her
ability to perform he job as store manager. Edwards Dep. at
46. When asked if the condition impacted her ability to
perform daily life activities, she responded that she
“pushed through, pain or no pain.” Id.
No doctor ever told her that she had work restrictions due to
her ear conditions. Id. at 58.
conjunction with her September, 2013 diagnosis, Plaintiff
never submitted any medical records or doctors notes to ALDI
explaining that she had been in the hospital. Id. at
63. Plaintiff testified that she did miss work in 2014 for
hospital stays though she could not recall when. Id.
at 65-66. She did not indicate that she requested FMLA leave
in conjunction with her September, 2013, diagnosis or 2014
hospital visits. Id.
April 10, 2014, Plaintiff reported to the Covenant Healthcare
Emergency Department and was diagnosed with otitis media and
infective otitis externa, unspecified. She was discharged and
prescribed antibiotics and Norco for pain. Med. Recs at PGID
1385-87, ECF No. 31-5.
testified regarding a computer printout of the work schedule
for the week of May 22, 2015. She testified that the printout
is dated June 17, 2015 and bears a handwritten note in Ms.
VanNatta's handwriting indicating that Plaintiff was on
vacation in Colorado that week. Edwards Dep. at 67.
Ms. VanNatta also wrote a status memo “removing”
Plaintiff's pay for that week. Id. at 68.
Plaintiff could not confirm that she was scheduled to work on
May 22, but she testified that she was not on vacation.
Id. at 68. She never submitted anything to ALDI in
writing regarding any of her conditions. Id. at 72.
Her understanding was that the process at ALDI for requesting
FMLA leave was to communicate to her direct leader.
Id. at 79.
was attending a manager's meeting in Webberville around
May 26 or May 27, 2015, and had to leave in the middle of the
night with ear pain. Id. at 137. Plaintiff called
Ms. VanNatta the next day to tell her she had to leave
because of her ear problems. Id. at 138. Plaintiff
noted that Ms. VanNatta reflected on the calendar (ECF No.
31-10) that Plaintiff attended the store manager meeting and
went to the hospital that week. Id. at 139. When
asked if she did in fact go to the hospital after leaving the
meeting, as the calendar reflects, Plaintiff responded that
she does not recall. Id. at 139. When asked if she
requested time off during her phone call with Ms. VanNatta,
Plaintiff responded that she does not recall. Id.
testified that she first contacted Ms. VanNatta regarding
FMLA on June 17, 2015. Id. at 85. She spoke with her
on June 17th and 19th by phone and via
text messages to set up an in person meeting on June
20th. Id. Plaintiff testified that Ms.
VanNatta informed her via text message that Ms. VanNatta
would need to speak to legal advisers concerning her FMLA
request prior to meeting with Plaintiff on June
20th. Id. Plaintiff testified that she
met with Ms. VanNatta on June 20th and they
discussed her options for taking time off. Plaintiff
testified that they agreed she could begin leave on July
26th. Id. Plaintiff testified that Ms.
VanNatta did not request any FMLA paper work for Plaintiff,
and in fact told Plaintiff that she did not need to take any
other action with respect to her request. Id. at
101. Plaintiff testified that she met with Ms. VanNatta again
on July 20th, 2015 and had the following
I asked her, well, Skylar, who's going to be running my
store while I'm gone, and she just stared at me. Skylar?
What's going on? What happened? What's going on?
Who's running my store? She just stared at me. I said did
you put it in, am I okay for FMLA? And she said no, I
didn't, but I'm going to. I'm going to put it in.
I said okay. And then she promised. I shed some tears. She
shed tears. We discussed several other operational factors
that were going on and concerns. She promised me she would be
a better leader and a better district manager that day.
Id. at 107-08. Her plan to begin leave on July
26th “was completely scratched and there was
not another tentative date set.” Id. at 112.
Ms. VanNatta denied discussing FMLA with Plaintiff on Jun
17th. VanNatta Dep. at 19.
testified that several Doctors informed her that there was a
possibility of needing surgery to correct the condition she
had that led to mastoiditis. Id. at 108. Antibiotics
held her infections at bay, but she testified that she felt
she needed to continue treatment at University of Michigan.
Id. She did not have a continuing course of
treatment for a particular diagnosis of mastoiditis.
Id. at 109. She continued to work and ultimately
went to the hospital again on September 6th.
Id. at 112. During her deposition she could not
recall what she was diagnosed with on that occasion, she
could not recall being admitted to the hospital on that
occasion, and she could not recall being told she had work
restrictions. Id. at 116. She called her Director of
Operations, Trisha Snider, on September 23rd and
asked for FMLA leave. Id. at 116-17.
continued to work and kept her condition at bay with
antibiotics but does not remember scheduling any appointments
“during that time.” Id. at 122.
Plaintiff met with Ms. VanNatta and Ms. Snyder on September
29th and requested FMLA leave again. Id.
at 123. When asked during her deposition what she was
requesting FMLA leave for at that point, she responded:
“I didn't know at that point. I just wanted a leave
to get better. I mean, I had no idea at that point.”
Id. at 123. She did not know when the leave would
start or how long it would last. Id. She testified
that she needed “to go to a doctor and have them assess
that, ” but she “wasn't given that
opportunity in June when [she] tried to exercise [her]
rights.” Id. at 124. She informed Ms. Snyder
and Ms. VanNatta that she had an ear condition that could
lead to mastoiditis. Id. at 126. She does not recall
ever telling Ms. VanNatta that she needed to miss work for a
doctor's appointment. She testified as follows:
. . . there were appointments I would have had to cancel
anyway, which my records will reflect, and when I would go to
the hospital it wasn't something that I ever knew was an
emergent situation, or just comfort or needing emergent care.
There was a period where Skylar was my direct leader where
there was no taking a day off, there was no taking an hour
off, there was no getting out of there. There was no steps,
there wasn't any steps. The schedule will reflect that
themselves. They're all in there. I'm the only person
at ALDI that doesn't punch in, so therefore you have to
take all the hours when there isn't other people.
Id. at 144. Plaintiff received her FMLA Notice of
Eligibility and Rights and Responsibilities in the mail on
October 8, 2015, the day she was terminated. Id. at
149. The notice was dated October 2, 2018, and indicated that
she was eligible for FMLA leave. ECF No. 27-12.
contends she was disciplined for absences for work “at
or near May 19 and May 22” when she was in the
hospital. Id. at 151. She testified that she was
disciplined for absences from work on May 19 and May 22, but
could not recall if she was scheduled to work on either of
those days. Id. at 68, 152. She felt she was
disciplined by Ms. VanNatta taking away her pay but could not
recall if her pay was taken away. Id. at 153. She
also felt that she was disciplined by Ms. VanNatta falsely
indicating on the calendar that Plaintiff was on vacation in
Colorado during those days. Id. She could not
confirm if a sick day or vacation day was used for either May
19 or May 22 but she believed so. Id. She also felt
as though she was punished by Ms. VanNatta writing her up in
EIDF forms that she never saw until she was fired.
Id. at 153-54. She also alleges that Ms. VanNatta
and/or Ms. Snyder went into her personnel file and falsified
disciplinary documents for violations that Plaintiff did not
do. Id. at 154.
alleges she was also falsely accused of being absent on June
17, the day she first requested FMLA. Id. at 15. She
alleges she was wrongfully deducted pay for 15 of 17 pay
periods in 2015. Id. at 155. She further explained
that she was ultimately paid in full after Brian Anderson
advocated on her behalf. Id. She contends that her
payroll records reflect that she received partial paychecks
reflecting the wrongful pay deductions, and supplemental
paychecks after Mr. Anderson advocated to get her money back.
Id. at 156.
testified that, on October 1st or 2nd, Ms. VanNatta tried to
force her “to produce falsified inventory numbers to
ALDI corporate” and she refused. Id. at 171.
When asked what law this violated, Plaintiff responded
“I can't tell you specific the name of the law, but
I know that it would be a law of lying, fraud, some sort of
white collar crime of being dishonest with numbers that are
ultimately reported to the IRS from my store . . .”
Id. at 174. When asked what Ms. VanNatta instructed
her do, she explained:
She wanted me to enter in damaged and returned product as
sellable quantities into our inventory reflecting higher
profit and loss and I refused to do it, which made my
inventory drag on. In addition to allowing all products that
were sold that day to come out of my inventory as a complete
loss like disappearing ghosts. Complete loss.
Id. at 172-73. Plaintiff testified that she asked an
employee, Jennifer Hall, to take pictures of the damaged
goods and send them to her phone. Id. at 173. She
further explained that damaged items should be retained and
reported to ALDI corporate who contacts the manufacturer or
supplier. Id. at 176. After three months, ALDI
corporate issues a disposition instructing store management
on what to do with the specific damaged products, such as
dispose of them or return them to the manufacturer.
Id. at 176.
October 8, 2015, Plaintiff was terminated for “cash
handling.” ECF No. 31-22. Ms. Snider made the decision
to terminate Plaintiff. Snyder Dep. at 29, 35, ECF No. 27-8.
The Employee Incident and Discipline Form (EIDF) notes that
during a routine audit Ms. VanNatta discovered that a $100
Gift Certificate was missing. ECF No. 31-22. It was
discovered that Plaintiff had used it to pay a repairmen for
fixing pot holes in the parking lot. The cash handling policy
provides that “the store management person may pay for
any expenses up to $100 out of the management person's
drawer” and further provides that “all expenses
for store supplies must be approved by the store management
person and the district manager with his or her
signature.” ECF No. 31-15. Plaintiff did not believe
that gift certificates were a valid form of payment for
services rendered, had never paid a vendor in gift
certificates before, had never seen anyone else at ALDI do
so, and only did so because her District Manager approved it.
Edwards Dep. at 212. Plaintiff testified that Ms. VanNatta
approved the expense and approved the method of payment.
Edwards Dep. at 170, 215
EIDF indicates that the expense was never discussed with or
approved by District Manager VanNatta. ECF No. 31-22. Ms.
VanNatta denies approving the expense. VanNatta Dep. at 61,
ECF No. 27-10. Plaintiff did not report the expense until
October 8, seven days after paying the expense. Edwards Dep.
at 212. Plaintiff did not indicate in the report that Ms.
VanNatta had approved the expense. Id. at 214. No
document has been produced in which Ms. VanNatta signed off
on the expense. Ms. Snider testified that she had no
knowledge of Ms. VanNatta approving the expense. Snider Dep.
at 34. Plaintiff did not testify that she informed Ms. Snider
that Ms. VanNatta approved the expense.
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.” Id. at 251-52.
asserts four claims for relief: 1) interference with the
exercise of her FMLA rights; 2) retaliation for her attempts
to exercise her FMLA rights; 3) termination in violation of
public policy for her refusal to take part in illegal
activity; and 4) discrimination based on her disability. Each
will be addressed in turn.
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 exercising FMLA rights. 29
U.S.C.A. § 2615(a)(1)-(2). Sixth Circuit precedent
recognizes 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.
establish a claim for interference under the FMLA, a
plaintiff must demonstrate that (1) he is an eligible
employee, (2) the defendant is an employer as defined under
the FMLA, (3) the employee was entitled to leave under the
FMLA, (4) the employee gave the employer notice of his
intention to take leave, and (5) the employer denied the
employee FMLA benefits to which he was entitled. Tennial
v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th
Cir. 2016). “A benefit is denied if an employer
interferes with the FMLA-created right to medical leave or to
reinstatement following the leave.” Id.
is no dispute as to elements one and two. The parties do,
however, dispute whether Plaintiff was entitled to leave
under the FMLA. Under the FMLA, an eligible employee is
entitled to take twelve workweeks of leave during any
12-month period “because of a serious health condition
that makes the employee unable to perform the functions of
the position of such employee.” 29 U.S.C. §
2612(a)(1)(D); 29 C.F.R. § 825.112(a)(4).
purposes of FMLA, serious health condition entitling an
employee to FMLA leave means an illness, injury, impairment
or physical or mental condition that involves inpatient care
as defined in § 825.114 or continuing treatment by a
health care provider as defined in § 825.115.” 29
C.F.R. § 825.113. Inpatient care, in turn, “means
an overnight stay in a hospital, hospice, or residential
medical care facility, including any period of incapacity as
defined in § 825.113(b), or any subsequent treatment in
connection with such inpatient care.” 29 C.F.R. §
825.114. “Continuing treatment by a health care
provider” includes, among other things, (c) Chronic
Conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health
condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a
year) for treatment by a health care provider, or by a nurse
under direct supervision of a health care provider;
(2) Continues over an extended period of time (including
recurring episodes of a single ...