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Sukari v. Akebono Brake Corp.

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

July 31, 2019

DIMA SUKARI, Plaintiff,



         In this employment dispute, Plaintiff claims Defendant fired her because of her disability. Pending before the Court are Defendant's motion for summary judgment (ECF No. 27) and motion for sanctions (ECF No. 45). Plaintiff opposes the motions. On June 19, 2019, the Court held a hearing in connection with both motions. For the reasons set forth below, the Court GRANTS Defendant's motion for summary judgment and DENIES AS MOOT Defendant's motion for sanctions.

         I. Background

         In 2016, Plaintiff was hired by Defendant as a compensation analysist in Defendant's human resources department. Plaintiff's duties included analyzing salaries, reviewing and administering compensation plans, 401(k) plans, and health savings accounts, preparing reports and analyzing data, and according to Defendant, building and maintaining relationships across the company. Plaintiff held the same position throughout her employment with Defendant. On March 01, 2018, she was terminated from employment with Defendant.

         Plaintiff suffers from osteoarthritis-a condition that attacks the bones, causes severe pain, and limits Plaintiff's daily activities. Plaintiff alleges that as a result of her condition, some mornings it takes her an hour or so to get moving due to pain and waiting for her medicine to take effect. She also states that during extreme flare-ups of her condition she has difficulty moving at all. Plaintiff contends her condition constitutes a disability[1], and she alleges she was terminated because of this disability. Plaintiff also claims Defendant terminated her employment because she applied for intermittent FMLA leave to address her disability and because she allegedly requested additional accommodations related to her disability.

         According to Plaintiff, the path to her termination began in August 2017 when Eric Torigian became her supervisor. Plaintiff identifies two alleged requests for accommodations which she claims led to her termination. First, in August 2017, Plaintiff requested in writing for Defendant to provide her a standing desk to help with her back pain. Plaintiff submitted a doctor's note explaining that a standing desk would be beneficial to her health, Defendant approved her request, and Plaintiff received a standing desk. Plaintiff does not present any evidence reflecting that Defendant opposed or questioned Plaintiff's need for a standing desk. Notwithstanding, Plaintiff asserts her request for a standing desk was part of the reason for her termination because no other employee in Defendant's human resources department requested a standing desk.

         Plaintiff also claims she requested as an accommodation for her disability that she be allowed to work from home during a flare-up of her osteoarthritis. Plaintiff states she made this request in September 2017 around the time of her request for a standing desk. Defendant denies that a request for this accommodation was ever made, and Torigian specially claims he was not aware of Plaintiff's condition.[2] Unlike Plaintiff's request for a standing desk, there is no written evidence in the summary judgment record indicating that Plaintiff requested to work from home as an accommodation for her disability.

         In January 2018, Plaintiff applied for and received approval for intermittent FMLA leave in connection with her osteoarthritis. On January 10, 2018, Plaintiff sent an email to Erin Snygg, her immediate supervisor, requesting an “FMLA packet.” In the e-mail, Plaintiff indicated she had an “ongoing medical issue” and would be “starting treatment soon, and if bumps come through, I would like to be ready for it.” Snygg testified that she did not know of any medical condition Plaintiff had, and she did not ask Plaintiff to provide more information about the condition. Snygg forwarded Plaintiff's request to Amy Saldivar, Plaintiff's HR representative, for further handling. On January 15, 2018, Saldivar completed the Notice of Eligibility form and asked Plaintiff to complete the required certification forms. On January 25, 2018 Plaintiff's physician, Dr. Peters, completed the certification forms. Dr. Peters noted that Plaintiff suffered from “back pain due to lumbar radiculopathy.” He indicated that during flare-ups, Plaintiff must be absent from work, she must lay down, and she is unable to perform any of her job functions.[3] The flare-ups could occur one to two times per week, for up to sixteen hours. Dr. Peters also indicated that he prescribed physical therapy treatment twice a week.

         On January 30, 2018, Saldivar approved Plaintiff's application for intermittent FMLA leave. There is no evidence in the record of any issues with approving Plaintiff's FMLA leave application. There is also no evidence in the record suggesting that Torigian was involved in Plaintiff's FMLA application process or that he reviewed Plaintiff's FMLA paperwork. On February 5, 2018, Plaintiff was approved to use one day of FMLA leave because of a flare-up. There is no evidence in the record of any other request by Plaintiff to use her FMLA leave. Plaintiff suggests, however, that the temporal proximity between her March 01, 2018 termination and her first request to utilize her FMLA leave demonstrates that she was fired because of her request for FMLA leave.

         Defendant presents a contrasting picture of Plaintiff's employment record and maintains that Plaintiff's termination resulted from her inability to be reliably present at work. According to Defendant, Plaintiff was counseled by her managers on her attendance problems multiple times, but her issues persisted.[4] The summary judgment evidence reflects that Plaintiff frequently arrived tardy, departed early, and called-off of work. In 2017, Plaintiff took seven more call-off days than she was permitted. Defendant asserts that in 2018, Plaintiff failed to abide by her core working hours, misrepresented vacation days to her manager, and padded her vacation with unauthorized time off. The summary judgment evidence does not reflect that Plaintiff's additional days-off or attendance issues were in any way related to her alleged disability.

         Defendant contends Plaintiff was ultimately terminated because she misled Torigian about her vacation schedule and took unauthorized days off in connection with her vacation at the end of February 2018. Plaintiff was scheduled to work a full day on February 13, 2018. When she arrived at work, however, she told Torigian that she was only scheduled to work a half day, and that she was departing for vacation the following day, February 14. At approximately 8:00 a.m. on February 13, Plaintiff informed Torigian she needed to leave work to buy a suitcase and get ready for her vacation. Defendant's building access records confirm that Plaintiff left early and never returned to work that day.

         On February 14, Plaintiff did not come to work. By chance, on February 14, Snygg (who was on maternity leave) visited the office with her newborn child. When Torigian told Snygg that Plaintiff was already on vacation, Snygg responded that Plaintiff's vacation was scheduled and approved to begin on February 15-not February 14. Torigian concluded that Plaintiff misrepresented the dates of her vacation and took unauthorized time off. Plaintiff disputes Snygg and Torigian's understanding of the dates of Plaintiff's scheduled vacation. However, there is no dispute that Snygg and Torigian believed at the time that Plaintiff had misrepresented the days of her vacation and took unauthorized time off.

         On or about February 15, 2018, Plaintiff departed on her vacation. She was scheduled to return to work on Monday, February 26. However, on Sunday, February 25, Plaintiff notified Torigian that her return flight was overbooked and that she would not be flying out until the following day, returning to work on Tuesday, February 27. On the morning of February 27, Plaintiff sent a text message to Torigian informing him that she had just landed in Detroit but was too “exhausted and bloated” to go to work. She told Torigian that she would not be in the office until Wednesday. Torigian considered Plaintiff's conduct of padding both ends of her vacation with unauthorized time off as egregious conduct.

         When Plaintiff failed to timely return from her vacation, Torigian asked Snygg to provide him with documentation related to Plaintiff's attendance and their prior discussions about her attendance. Snygg, who was home on maternity leave, e-mailed Torigian a summary of Plaintiff's attendance issues. However, she was not able to provide Torigian with certain reports and documents related to Plaintiff's attendance. Torigian reviewed Snygg's e-mail summary and decided to terminate Plaintiff's employment.

         According to Defendant, Plaintiff's position was not replaced with a new employee. Instead, after Plaintiff's termination, Plaintiff's position was modified and consolidated. One of Defendant's employees, Michael Pardon, who was already employed by Defendant as an HR generalist and benefits analyst, absorbed some of Plaintiff's compensation analyst responsibilities. Other responsibilities of Plaintiff's role were transitioned to the finance department.

         After being terminated, Plaintiff initiated this lawsuit. In her complaint, Plaintiff asserts eight counts against Defendant for: FMLA Interference (Count I); FMLA Retaliation (Count II); disability discrimination under the Americans with Disabilities Act (“ADA”) and Michigan Persons With Disabilities Civil Rights Act (“MPWDCRA”) alleging Plaintiff was terminated because of her disability (Counts III and VI); disability discrimination under the ADA and MPWDCRA alleging Plaintiff was denied a promotion because of her disability (Counts IV and VII); and failure to accommodate under the ADA. The parties engaged in significant discovery in connection with Plaintiff's claims. Defendant now moves for summary judgment arguing that Plaintiff has no evidence to support her claims.

         In addition to seeking summary judgment, Defendant also moves the Court to dismiss Plaintiff's claims as a discovery sanction under Federal Rule of Civil Procedure 37. Defendant's motion for sanctions concerns purported journal entries produced by Plaintiff in discovery and Plaintiff's deposition testimony about the entries. The entries appear to be Plaintiff's contemporaneous description of events relating to her disability and communications about her disability with Defendant. For example, in the entry dated September 26, 2017, Plaintiff writes about a conversation she had with Torigian concerning her disability and her need to work from home during flare-ups. If authentic, the entries would be the only written evidence of Plaintiff's alleged request to Torigian for an accommodation to work from home. Defendant contends the journal entries are fake and were written after the filing of this lawsuit.[5] And Defendant accuses Plaintiff of committing perjury in connection with the entries.

         In its motion for sanctions, Defendant argues that Plaintiff's conduct warrants dismissal of her claims. In response, Plaintiff argues that the journal entries are legitimate, the issue of their authenticity is a credibility determination to be made by the jury, and sanctions are not appropriate where Plaintiff does not directly rely on or cite to the entries as evidence in response to Defendant's motion for summary judgement.

         II. Summary Judgment Standard

         “Summary judgment is proper only if the moving party shows that the record does not reveal a ‘genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). A genuine issue of material fact exists when there are “disputes over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue ...

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