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Edwards v. Aldi, Inc.

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

May 9, 2018

JENNIFER EDWARDS, Plaintiff,
v.
ALDI, INC., a foreign Corporation, Defendant.

          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

          THOMAS L. LUDINGTON United States District Judge.

         On 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.[1] Plaintiff responded on March 12, and Defendant replied on March 26. ECF Nos. 31, 32.[2]

         I.

         ALDI 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.

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         In 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 discussion:

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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         She 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.

         Plaintiff 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.

         On 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

         The 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.

         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.” Id. at 251-52.

         III.

         Plaintiff 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.

         A.

         i.

         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 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. Id.

         To 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.

         There 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).

         “For 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 ...

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