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Hoban v. WBNCC Joint Venture

April 5, 2007

LARRY HOBAN, SR., PLAINTIFF,
v.
WBNCC JOINT VENTURE, D/B/A WEST BLOOMFIELD NURSING & CONVALESCENT CENTER, DEFENDANT.



The opinion of the court was delivered by: Hon. Marianne O. Battani

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) AND 56(b)

Before the Court is Defendant WBNCC d/b/a West Bloomfield Nursing & Convalescent Center, Inc.'s Motion to Dismiss Plaintiff's Complaint Pursuant to FED.R.CIV.P. 12(b)(6) and 56(b) (Doc. No. 7). The Court heard oral argument on February 28, 2007. At the conclusion of the hearing, the Court took this matter under advisement. For the reasons that follow, the Court GRANTS Defendant's motion.

I. INTRODUCTION

Plaintiff began working for Defendant on June 1, 1999. He was promoted routinely, and by the end of 2000, Plaintiff became a maintenance supervisor. His most recent job title was Maintenance Director.

On July 1, 2005, after Plaintiff received a call at work that his brother had died, he left for the day. Plaintiff was not scheduled to work July 2 through July 4, 2005. He received bereavement leave for the fifth through the seventh of July.

According to Plaintiff, he contacted his acting supervisor (and son), Jeremy Hogan, before the start of his shift on July 8, 2005, and made it clear that he would not be at work that day. Plaintiff also left two phone messages for Susan Taylor, a supervisor and administrator. According to Plaintiff his mental, psychological and emotional state on July 8, 2005, prevented him from performing his job. Linda Expose, Assistant Director of Nursing, wrote a phone message of the phone call she received from Plaintiff on July 8, 2005. The message reads:

Spoke with Larry on phone. States he was going to call at 8 a.m. but "didn't have time," called and left message for Susan at 4:30 p.m., left message for writer at 5:30 p.m. states he has had "difficulty with brother's body," "state is involved," "had to get a lawyer," "had to pay $1600." Asked, is "Susan pissed?" Stated he will be in to work on Monday morning. Said Jeremy was supposed to tell someone this morning.

Def.'s Ex. C.

Plaintiff returned to work on July 11, 2005. He requested paid time off for bereavement, and Bob Park, the Administrator, signed and approved Plaintiff's request for paid bereavement leave of three days as was allowed under the policy manual. Later that day, Plaintiff had an emergency dental procedure. Hoban advised Bob Park of his appointment.

When Plaintiff returned to work on July 12, 2005, he was terminated. Thereafter, Plaintiff filed a complaint in Oakland County Circuit Court, claiming Defendant terminated him in violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. Defendant timely removed the action to this Court.

II. STANDARD OF REVIEW

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) must be denied "unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th Cir. 1993); In re Delorean Motor Company, 991 F.2d 1236, 1240 (6th Cir. 1993). When resolving a Rule 12(b)(6) motion, the court may neither weigh evidence nor assess the credibility of witnesses, but must view the evidence in the light most favorable to the non-movant. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990). All factual allegations in the plaintiffs' complaint are deemed true and any ambiguities must be resolved in plaintiffs' favor. Jackson v. Richards Medical Co., 961 F.2d 575, 577 (6th Cir. 1992).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact ...


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