Ashby v. Amscan, Inc.
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 3/8/2017 - Defendant's Motion for Summary Judgment 20 is GRANTED IN PART and DENIED IN PART and Plaintiff's Cross-Motion for Summary Judgment 25 is DENIED. Plaintiff's state-law disability claims and her Family and Medical Leave Act retaliation claim are dismissed, and this matter will proceed to trial on Plaintiff's Family and Medical Leave Act interference claims. cc: Counsel(DAK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:15-CV-00643-GNS
AMSCAN, INC d/b/a/
DECO PAPER PRODUCTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for Summary Judgment (DN
20) and Plaintiff’s Cross-Motion for Summary Judgment (DN 25). For the following reasons,
Defendant’s Motion for Summary Judgment (DN 20) is GRANTED IN PART and DENIED
IN PART, and Plaintiff’s Cross-Motion for Summary Judgment (DN 25) is DENIED.
Plaintiff Winona Ashby (“Ashby”) began her employment as a machine operator with
Defendant Amscan, Inc. d/b/a Deco Paper Products (“Amscan”) on April 23, 2010. (Pl.’s Cross
Mot. Summ. J. Ex 1, ¶¶ 8-9, DN 25-2 [hereinafter Def.’s Answer to Interrog.]). Ashby’s
employment was terminated on April 29, 2015, when she returned to Amscan after taking a leave
of absence pursuant to the Family and Medical Leave Act (“FMLA”). (Ashby Dep. 43:9-44:9,
July 25, 2016, DN 25-3). Amscan’s stated reason for Ashby’s termination was that she exceeded
the allotted twelve weeks of FMLA leave time by four days. (Pl.’s Cross Mot. Summ. J. Ex 8,
DN 25-9 [hereinafter Termination Letter]). This current action stems from the termination.
Ashby utilized FMLA leave on two occasions during her last year of employment with
Amscan. The first instance began on May 30, 2014, when Ashby submitted a Certification of
Healthcare Provider for Employee’s Serious Health Condition (“FMLA Certification”) to
Amscan’s Human Resource’s manager, Shannon Robinette, verifying her need for medical leave
due to depression and anxiety (“ “2014 FMLA leave”). (Pl.’s Cross Mot. Summ. J. Ex 3, DN 254 [hereinafter FMLA Certification I]). Ashby’s son had recently been diagnosed with AIDS, and
Ashby used the 2014 FMLA leave to care for her son and to seek medical treatment for her own
mental health resulting from her son’s diagnosis. (Ashby Dep. 30:18-31:14). Ashby initially
used about three weeks of leave and subsequently used FMLA leave intermittently. (Ashby Dep.
Ashby’s second FMLA leave began on March 6, 2015, when she fell at her home and
fractured her ankle (“2015 FMLA leave”).
(Ashby Dep. 36:6-38:11).
completed the FMLA Certification and delivered it to Amscan. (Pl.’s Cross Mot. Summ J. Ex. 6,
DN 25-7 [hereinafter FMLA Certification II]).
Amscan did not provide Ashby with any
information regarding her FMLA Certification, including notice of the number of FMLA days
that she had used at that point. (Ashby Dep. 55:14-22). The Certification required a follow-up
in four weeks, on April 13, 2015, to determine Ashby’s readiness to return to work. (FMLA
Certification II). After four weeks, Ashby’s doctor determined that Ashby needed to stay off her
ankle for two more weeks for the injury to heal completely, so Ashby requested and Amscan
granted two additional weeks off. (Ashby Dep. 38:22-39:2, 39:24-40:1; Def.’s Mot. Summ. J.
Ex. 6, DN 20-6 [hereinafter Return to Work Note]). After the two weeks, Ashby was given full
release to return to work with no restrictions. (Return to Work Note).
When Ashby returned to work immediately upon release by her doctor on April 29, 2015,
she was informed by two Human Resources employees that she was terminated for taking more
FMLA time off than was allowed. (Termination Letter; Ashby Dep. 43:9-21). Amscan’s FMLA
policy allows an employee to take up to “twelve workweeks of leave during a rolling twelve
month period”,1 and Ashby had exceeded the allotted twelve weeks of leave by four days.
(Def.’s Mot. Summ. J. Ex. 3, at 1, DN 25-5; Def.’s Mot. Summ. J. Ex. 4, DN 20-4 [hereinafter
FMLA Calculations]). At no time during her 2015 FMLA leave did Amscan notify Ashby how
much available FMLA leave she had or advise her that the final two weeks off from work would
exceed her FMLA leave. Amscan did, however, provide Ashby with an “absenteeism count”
identifying the number of hours of FMLA leave Ashby had used in the prior year on February
20, 2015, before her leave request for the broken ankle. (Ashby Dep. 55:14-22; Pl.’s Cross Mot.
Summ. J. Ex. 5, DN 25-6 [hereinafter FMLA Absenteeism Count]).
Ashby filed this action in Jefferson Circuit Court against Amscan alleging that Amscan
discriminated against her on the basis of her disability (her broken ankle), and that Amscan failed
to accommodate her disability in violation of the Kentucky Civil Rights Act (“KCRA”), KRS
Chapter 344. (Notice of Removal Ex. 2, ¶¶ 20-26, DN 1-2 ([hereinafter Compl.]). In addition,
Ashby asserted FMLA interference and retaliation claims. (Compl. ¶¶ 27-37). Amscan removed
the action to this Court on July 29, 2015. (Notice of Removal, DN 1). Subsequently, Amscan
moved for summary judgment of all claims, and Ashby also moved for summary judgment.
(Def.’s Mot. Summ. J., DN 20; Pl.’s Cross Mot. Summ. J., DN 25). This matter is now ripe for
The FMLA permits employers to elect to calculate FMLA leave on a rolling method, and “[t]he
‘rolling’ method calculates an employee's leave year ‘backward from the date an employee uses
any FMLA leave.’” Thom v. Am. Standard, Inc., 666 F.3d 968, 973 (6th Cir. 2012) (quoting 29
C.F.R. § 825.200(b)).
This Court has “original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment 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). There is no genuine issue of
material fact when “looking to the record as a whole, a reasonable mind could come to only one
conclusion . . . .” Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir.
1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
“When moving for
summary judgment the movant has the initial burden of showing the absence of a genuine
dispute as to a material fact.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504,
520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden
then shifts to the nonmovant, who must put forth enough evidence to show that there exists ‘a
genuine issue for trial.’” Id. (citing Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)).
While the Court views the evidence in the light most favorable to the non-moving party,
the non-moving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citations omitted). Rather, the non-moving party must present specific facts proving
that a genuine factual issue exists by “citing to particular parts of the materials in the record” or
by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .”
Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-
moving party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Plaintiff asserts two separate claims under the KCRA.
She alleges that Amscan
discriminated against her because of her disability and that Amscan failed to reasonably
accommodate her disability.
Ashby’s disability-discrimination claims are brought under the KCRA. Because the
KCRA mirrors the language of the ADA, courts interpret the KCRA consistent with the ADA. 2
The parties are in disagreement over the application of the ADA Amendments Act of 2008
(“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (effective Jan. 1, 2009), which was adopted
by Congress in 2011 and broadened the definition of disability. As this Court has previously
The Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat. § 344.010 et seq., does
part company with the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101 et seq., in a few significant respects. In 2008, Congress adopted the ADA
Amendments Act of 2008 . . . , which broadened the definition of “disability”
under the ADA. Pursuant to Congress’s instruction, the Equal Employment
Opportunity Commission (EEOC) amended its corresponding regulations and
interpretive guidance to implement the ADAAA in 2011. See Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities
Act, as Amended, 76 Fed. Reg. 16,978 (March 25, 2011) (codified at 29 C.F.R.
The Court’s research has revealed no published Kentucky cases addressing how
the ADAAA affects, if at all, claims for disability discrimination brought under
the KCRA. Federal courts continue to interpret the KCRA consistent with preADAAA jurisprudence. See Breen v. Infiltrator Sys., 417 F. App’x 483, 486 (6th
Cir. 2011); Darby v. Gordon Food Servs., Inc., No. 3:11-CV-00646-DJH, 2015
WL 3622529, at *5 n.2 (W.D. Ky. June 8, 2015); Dickerson v. City of
Georgetown, No. 5:14-CV-39-JHM, 2015 WL 2401190, at *3 n.2 (E.D. Ky. May
20, 2015); Brown v. Humana Ins. Co., 942 F. Supp. 2d 723, 731 (W.D. Ky. 2013);
Azzam v. Baptist Healthcare Affiliates, Inc., 855 F. Supp. 2d 653, 658 n.2 (W.D.
See Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003); Brohm v. JH Props., Inc.,
149 F.3d 517, 520 (6th Cir. 1998).
“The KCRA makes it unlawful for an employer to
discriminate against an otherwise qualified individual on the basis of a disability.” Laferty, 186
F. Supp. 3d at 708 (citing KRS 344.040(1)(a)). To state a prima facie case, the plaintiff must
first “show that [she] is disabled . . . .” Id. (citing Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 101
(Ky. App. 2000)). A person is “disabled” if she suffers “a physical or mental impairment that
substantially limits one or more of the major life activities of such individual . . . .” Hedrick v.
W. Reserve Care Sys., 355 F.3d 444, 452 n.5 (6th Cir. 2004) (quoting 42 U.S.C. § 12102(2)); see
also Hallahan v. Courier-Journal, 138 S.W.3d 699, 707 (Ky. App. 2004). The non-exhaustive
list of “major life activities” includes “walking,” “standing,” and “working.”
42 U.S.C. §
12102(2)(A). Ashby claims that she is disabled due to the fractures in her right foot and ankle.
For Ashby to survive summary judgment, she must show that her physical impairment
substantially limited her major life activities.
In determining whether an individual is substantially limited in a major life activity,
courts are to consider: “(i) the nature and severity of the impairment, (ii) the duration or
expected duration of the impairment; and (iii) the permanent or long term impact, or the expected
permanent or long term impact of or resulting from the impairment.” EEOC v. Chevron Phillips
Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009) (citing 29 C.F.R. § 1630.2(j)). First, neither
the nature nor severity of Ashby’s fracture suggests that she is disabled. Ashby’s fractured foot
Ky. 2012); Webb v. Humana Inc., 819 F. Supp. 2d 641, 645 n.3 (W.D. Ky. 2011).
Until such time as the Kentucky Supreme Court or General Assembly speaks on
this issue, the Court will take that approach.
Laferty v. United Parcel Serv., Inc., 186 F. Supp. 3d 702, 707 n.3 (W.D. Ky. 2016) (internal
citation omitted). This Court will continue to abide by this holding and apply pre-ADAAA
jurisprudence in determining if Ashby was suffering from a disability as to warrant relief under
appears to have been an ordinary break. The injury healed normally and she was cleared to go
back to work within eight weeks of the injury, at which time Ashby’s doctor cleared her to go
back to work without restrictions. Ashby currently has no medical restrictions from walking,
standing, or working; thus, the fractures were merely a temporary injury. See 29 C.F.R. app. §
1630.2(j) (2003). (“[T]emporary, non-chronic impairments of short duration, with little or no
long term or permanent impact, are usually not disabilities.”). Because there was no permanent
or long-term impact resulting from the fractures, Ashby’s broken foot does not qualify as a
Ashby’s fractured foot and ankle was not a physical impairment that substantially limited
one or more major life activities, and Ashby has failed to establish that she had a “disability”
under the ADA. A plethora of case law establishes that an ordinary broken bone will not amount
activities . . . .” Smith v. Reg’l Plan Ass’n, No. 10 CIV. 5857 BSJ KNF, 2011 WL 4801522, at *5
(S.D.N.Y. Oct. 7, 2011) (citing 42 U.S.C. § 12102(1)); see also Clark v. Boyd Tunica, Inc., No.
314-CV-00204-MPM-JMV, 2016 WL 853529, at *5 (N.D. Miss. Mar. 1, 2016) (holding that
broken foot that healed in the normal course did not qualify as a disability); Kramer v. K & S
Assocs., 942 F. Supp. 444, 446 (E.D. Mo. 1996) (stating that when the plaintiff’s broken leg
“healed completely in six months with little or no long term effects,” the injury did not qualify as
a disability under the ADA); Ogborn v. United Food & Commercial Workers Union, Local No.
881, 305 F.3d 763, 767 (7th Cir. 2002) (noting that “episodic impairments such as broken limbs
and appendicitis are not disabilities . . . .” (citations omitted)); Budhun v. Reading Hosp. & Med.
Ctr., 765 F.3d 245, 259 (3d Cir. 2014) (concluding that broken bone in hand was not a disability
under the ADA). Thus, Ashby has not demonstrated that she was suffering from an actual
disability as defined by the ADA.
Moreover, the record contains no evidence indicating that Amscan regarded Ashby as
having a disability. Further, the “regarded as” prong of the disability definition does not apply to
“transitory and minor” impairments. 42 U.S.C. § 12102(3)(B). Under the ADA, “[a] transitory
impairment is an impairment with an actual or expected duration of 6 months or less.” Id. This
definition precisely describes Ashby’s broken bones which healed in less than two months.
Therefore, Ashby’s disability-discrimination claims fail as a matter of law. Amscan’s motion for
summary judgment as to the disability-discrimination claim under the KCRA is granted and
Ashby’s motion as to this claim is denied.
Failure to Accommodate Claim
To establish failure to accommodate under the ADA, Plaintiff must show that: “(1) she is
disabled; (2) she is otherwise qualified for the position, with or without reasonable
accommodation; (3) she employer knew or had reason to know about she disability; (4) she
requested an accommodation; and (5) the employer failed to provide the necessary
accommodation.” Johnson v. Cleveland City Sch. Dist., 443 F. App’x 974, 982-83 (6th Cir.
2011) (citing DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir. 2004)). As discussed above, Ashby
was not disabled under the ADA. Accordingly, Ashby’s failure-to-accommodate claim fails as a
matter of law and summary judgment is granted for Amscan and denied for Ashby as to this
Ashby has also asserted two separate claims under the FMLA. She alleges that Amscan
retaliated against her for taking FMLA leave and interfered with her rights under the FMLA.
Courts analyze FMLA retaliation claims based on circumstantial evidence under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (“This court applies
the familiar burden-shifting test articulated in McDonnell Douglas Corp. v. Green to retaliation
claims under the FMLA.”
(internal citation omitted) (citations omitted)).
framework, once an employee establishes a prima facie FMLA claim, the burden shifts to the
employer to provide a legitimate, nondiscriminatory reason for the adverse action.” Alexander v.
Kellogg USA, Inc., No. 16-5471, 2017 WL 36135, at *3 (6th Cir. Jan. 4, 2017) (citing Donald v.
Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)). If the employer meets its burden, “the burden
again shifts to the employee to show that the reason is a pretext for unlawful discrimination.” Id.
(citing Donald, 667 F.3d at 761-62).
Prima Facie Case
To establish a FMLA retaliation claim, Ashby must show that: (1) she was engaged in a
protected activity; (2) Amscan knew that she was exercising her rights under the FMLA; (3) after
learning of Ashby’s exercise of FMLA rights, Amscan took an employment action adverse to
her; and (4) there was a causal connection between the protected FMLA activity and the adverse
employment action. Donald, 667 F.3d at 761. There is no question that Ashby engaged in a
protected activity and Amscan knew she was engaging in such activity when she exercised her
right to leave under the FMLA. Moreover, Ashby suffered an adverse employment action when
Amscan terminated her employment. At issue is whether there is a causal connection between
the protected FMLA activity and the termination.
“With respect to causal connection, the plaintiff must show that an employee’s use of
FMLA leave was a ‘significant factor’ motivating the retaliatory action.” Dage v. Time Warner
Cable, 395 F. Supp. 2d 668, 675 (S.D. Ohio 2005) (citing Polk v. Yellow Freight Sys., Inc., 801
F.2d 190, 199 (6th Cir. 1986)). “The burden of proof at the prima facie stage is minimal; all the
plaintiff must do is put forth some credible evidence that enables the court to deduce that there is
a causal connection between the retaliatory action and the protected activity.”
Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012) (internal quotation marks omitted)
(quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)).
Amscan contends that Ashby’s termination was not in retaliation for her taking FMLA
leave, but for exceeding the number of days allowable under the FMLA. Ashby avers that her
termination was in retaliation for her exercise of her FMLA rights, as evidenced by the temporal
proximity of the leave to her termination and by Amscan’s actions intentionally misleading
Ashby regarding her request for two further weeks of leave.
The Sixth Circuit has held that temporal proximity can be sufficient in some situations to
establish causation. See Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000) (finding
that “there may be circumstances where evidence of temporal proximity alone would be
sufficient to support that inference . . . .”); see also Brown v. Humana Ins. Co., 942 F. Supp. 2d
723, 736 (W.D. Ky. 2013) (“[M]ore recently published Sixth Circuit cases seem to suggest that
temporal proximity alone is sufficient where the temporal proximity is significant, and this is
likely the prevailing standard in the Sixth Circuit.” (citing Mickey, 516 F.3d at 525; Blosser v.
AK Steel Corp., 520 F. App’x 359, 363-64 (6th Cir. 2013)). With regard to the proximity that
will be found “significant,” the Sixth Circuit has noted that cases which have permitted an
inference of a causal connection based on temporal proximity alone “have all been shorter
periods of time, usually less than six months.” Nguyen, 229 F.3d at 566 (internal quotation
marks omitted) (quoting Parnell v. West, No. 95-2131, 1997 WL 271751 at *3 (6th Cir. 1997)).
Ashby’s causation argument raises the question of how to measure temporal proximity.
The Sixth Circuit’s precedent regarding measurement of temporal proximity in FMLA retaliation
claims is somewhat conflicting. See Basch v. Knoll, Inc., 619 F. App’x 457, 460 (6th Cir. 2015)
(explaining that temporal proximity should be measured from “when the employer learn[ed] of a
protected activity . . . .” (internal quotation marks omitted) (quoting Mickey, 516 F.3d at 525));
Mickey, 516 F.3d at 525 (“Where an adverse employment action occurs very close in time after
an employer learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection for the purposes of satisfying a
prima facie case of retaliation.” (emphasis added)). Compare Judge v. Landscape Forms, Inc.,
592 F. App’x 403, 410 (6th Cir. 2014) (noting that temporal proximity is to be measured “from
the date FMLA leave expired, not just when the employee first requested it, for the purposes of
measuring temporal proximity.” (citing Clark v. Walgreen Co., 424 F. App’x 467, 473 (6th Cir.
2011))). This Court in McMasters v. Hendrickson USA, LLC, No. 3:14-CV-329-CRS, 2016 WL
5796908 (W.D. Ky. Sept. 30, 2016), recently held that “[t]he yardstick for retaliation for the
exercise of FMLA rights is the time between [the employer] learning of [the plaintiff’s] exercise
of FMLA rights and the purported retaliatory act in response.” Id. at *5. Considering the
previous holdings of this Court, temporal proximity will be measured here from the time Amscan
learned that Ashby intended to exercise her rights under the FMLA, not on the date her FMLA
Amscan argues that Ashby effectively disclaimed her retaliation claim in relation to her second
FMLA through her deposition testimony. (Def.’s Reply Cross Mot. Summ. J. 10, DN 26 [Def.’s
Reply]). Ashby testified:
Plaintiff has not established causation between her 2014 FMLA leave and her termination
in April 2015. A period of eleven months is simply too long of a span between these two events.
See Martin v. Gen. Elec. Co., 187 F. App’x 553, 561 (6th Cir. 2006) (“The eleven-month interval
between Martin's filing of her EEOC complaint and the adverse employment action is not short
enough to establish by itself that there is a causal connection.”). Although there is not a fixed
amount of time for finding temporal proximity, the Sixth Circuit “has typically found the causal
connection element satisfied only where the adverse employment action occurred within a matter
of months, or less, of the protected activity.” Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir.
2007) (citations omitted). A period of two to three months has been held to be sufficient
evidence to establish prima facie causation. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d
555, 563 (6th Cir. 2004) (holding three month period between exercise of FMLA rights and
termination was sufficient to establish causation); Bryson v. Regis Corp., 498 F.3d 561, 571 (6th
Cir. 2007) (holding that prima facie causation was established by the three months between the
plaintiff’s request for FMLA leave and her termination on the day she was scheduled to return to
Well, let me show you your complaint. Paragraph 34 of your complaint,
go ahead and read it.
“On various occasions Ashby provided notice to Amscan that she or her
son were suffering from a serious health condition and needed time off to
recover or care for her son.”
. . . Are you saying that Amscan retaliated against you for taking the
Family Medical Leave time to care for yourself or your son, that time that
relates back to May, 2014 to February, 2015 time period?
Any other reasons that you believe Amscan retaliated against you?
(Ashby Dep. 51:11-23). Amscan asserts Ashby’s retaliation claim relates only to her first FMLA
leave based on this testimony. Ashby did not, however, unequivocally disclaim her retaliation
cause of action related to the second leave period, and the Court will not treat this testimony as
waiving her retaliation claims as to the 2015 FMLA leave.
work); Judge, 592 F. App’x at 409 (holding that a period of two months established prima facie
causation); Clark, 424 F. App’x at 473 (“[T]he court correctly credited the temporal proximity
[of two months] [between] [the plaintiff’s] leave and his firing as sufficient evidence of a causal
connection between the two. Our precedents stand for the principle that timing matters.”).
The lapse between the 2015 FMLA leave request on March 6, 2015, and the termination
on April 29, 2015, however, is a horse of a different color. The Court finds the period of less
than eight weeks between Ashby’s submission of her doctor’s certification for her broken
foot/ankle in early March 2015 and her termination in late April 2015 is sufficient to support a
finding of on the element of causation. Thus, Ashby has established a prima facie case of
Legitimate, Non-discriminatory Reason for Termination
Finding that Ashby has established a prima facie case for retaliation with respect to her
March 2015 FMLA leave request, the burden of proof switches to Amscan to provide a
legitimate, non-discriminatory reason for the termination. See Donald, 667 F.3d at 761. Amscan
asserts as its reason for termination that Ashby exhausted her FMLA leave and then failed to
return to work in violation of its attendance policy. See Bd. of Trs. of Keene State Coll. v.
Sweeney, 439 U.S. 24, 25 n.2 (1978) (“[T]he employer’s burden is satisfied if [it] simply
explains what [it] has done or produc[es] evidence of legitimate nondiscriminatory reasons.”
(fourth alteration in original) (internal quotation marks omitted) (citation omitted)). Failure to
return to work after all leave has been used is a legitimate, nondiscriminatory basis for Amscan’s
termination of Ashby. See Coker v. McFaul, 247 F. App’x 609, 620 (6th Cir. 2007) (“Once an
employee exceeds his twelve work weeks (or sixty workdays) of FMLA leave, additional leave
in the twelve month period is not protected by the FMLA, and termination of the employee will
not violate the FMLA.” (internal quotation marks omitted) (citation omitted)); McClelland v.
CommunityCare HMO, Inc., 503 F. App’x 655, 659 (10th Cir. 2012) (affirming summary
judgment on a retaliation claim because the employee’s failure to return to work after exhausting
her FMLA leave constituted a legitimate, nondiscriminatory reason for her termination; Hearst v.
Progressive Foam Techs., Inc., 682 F. Supp. 2d 955, 968-69 (E.D. Ark. 2010) (granting
summary judgment on the plaintiff’s retaliation claim because the employee had exhausted his
FMLA leave and failed to follow his employer’s leave of absence policy). Thus, Amscan has
articulated a non-discriminatory basis for terminating Ashby.
The burden next swings back to Ashby to show that Amscan’s reason for firing Ashby
was a mere pretext for unlawful retaliation. Donald, 667 F.3d at 761-62. While temporal
proximity alone will suffice to show prima facie causation, Amscan argues that Ashby’s claim
fails because she cannot establish pretext. (Def.’s Mot. Summ. J. 12). The Court agrees. Sixth
Circuit precedent has made clear that “temporal proximity is insufficient in and of itself to
establish that the employer’s nondiscriminatory reason for discharging an employee was in fact
pretextual.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001) (citing
Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1397-98 (10th Cir. 1997)). Ashby has pointed to
no other evidence in the record to support a finding that Amscan’s reason for terminating Ashby
was pretextual4, thus, Ashby has not proven her retaliation claim. Therefore, summary judgment
is granted for Amscan and denied for Ashby.
Ashby argues that her retaliation claim does not stand on temporal proximity alone, but also on
“the fact that Amscan intentionally mislead Ashby as to the date Amscan actually expected her
to return to work” as evidence of Amscan’s intent to retaliate against her for taking her FMLA
leave. Amscan contends that Ashby has “produced no witness or document to support” the
contention that Amscan’s intent was to mislead Ashby as to when her FMLA allotted leave
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any [FMLA] right provided . . . .” 29 U.S.C. § 2615(a)(1).
To establish a prima facie case of FMLA interference, Ashby must show that: “(1) [she] was an
eligible employee; (2) [Amscan] was an employer as defined under the FMLA; (3) [she] was
entitled to leave under the FMLA; (4) [she] gave the employer notice of her intention to take
leave; and (5) [Amscan] denied the employee FMLA benefits to which she was entitled.”
Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 840 (6th Cir. 2012) (citing Grace v.
USCAR & Bartech Tech. Servs., 521 F.3d 655, 669 (6th Cir. 2008)). While federal law provides
a cause of action against employers for interference with FMLA benefits, it “provides no relief
unless the employee has been prejudiced by the violation.” Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002) (discussing 29 U.S.C. § 2617). There is no dispute that Ashby
satisfies the first four elements outlined above.
With respect to the fifth element, Ashby contends that Amscan interfered with her FMLA
rights by failing to advise her of her substantive rights and this failure ultimately led to her
termination.5 (Pl.’s Cross Mot. Summ. J. 13). “The Sixth Circuit has held that such allegations
would end. The Court agrees with Amscan. There is no support in the record for the contention
that Amscan’s intent was to purposefully mislead Ashby so that she would not return to work
when her FMLA leave expired. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th
Cir. 2016) (“A plaintiff proceeding under a retaliation theory must show discriminatory or
retaliatory intent . . . .” (citing Seeger, 681 F.3d at 282)). Beyond Ashby’s mere speculation, she
has cited no evidence in the record to support this contention. See Hedberg v. Ind. Bell Tel. Co.,
47 F.3d 928, 931-32 (7th Cir. 1995) (“[S]peculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is a primary goal of summary
Amscan answers that Ashby cannot prove interference because she “received all twelve weeks
of leave” to which she was entitled. (Def.’s Mot. Summ. J. 11). Ashby does not dispute that she
received all of her leave; however, failing to reinstate the employee to her pre-leave position can
also constitute interference with the employee’s FMLA rights. See Killian v. Yorozu Auto. Tenn.
are sufficient to sustain an interference claim.” Fisher v. Rizzo Bros. Painting Contractors, 403
F. Supp. 2d 593, 599 (E.D. Ky. 2005) (citing Arban v. West Publ’g Corp., 345 F.3d 390, 401
(6th Cir. 2003); Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 454 (6th Cir.
2005)). As a sister court has noted:
When a request for leave is made, the FMLA requires three specific notices: (1)
the Eligibility Notice, which must be provided, absent extenuating circumstances,
within five business days of an employee request for FMLA leave or an employer
acquiring knowledge that an employee’s leave may be for an FMLA–qualifying
issue; (2) a Rights and Responsibilities Notice, explaining the specific
expectations and obligations of the employee and explaining of the consequences
of a failure to meet the obligations; and (3) a Designation Notice, informing the
employee, within five days, when the employer has enough information to
determine whether leave is FMLA eligible that the leave will be designated and
counted as FMLA leave. Under 29 CFR § 825.300(e) Failure to follow the notice
requirements set forth in this section may constitute an interference with an
employee’s FMLA rights.
Mikan v. Arbors at Fairlawn Care, LLC, No. 5:15 CV 250, 2016 WL 5463056, at *6 (N.D. Ohio
Sept. 29, 2016) (internal quotation marks omitted) (emphasis added) (internal citation omitted)
(quoting 29 C.F.R. § 825.300(e)). The Designation Notice requires that “the employer  notify
the employee of the number of hours, days, or weeks that will be counted against the employee’s
FMLA leave entitlement . . . .” 29 C.F.R. § 825.300(d)(6). This notice may be written or oral,
but if the notice is oral, then it “shall be confirmed in writing, no later than the following payday
. . . .” Id. “In short, employees are entitled to protections under the FMLA and employers must
make them aware of such protections so they can meaningfully choose to exercise their FMLA
rights.” Ross v. Youth Consultation Serv., Inc., No. CV2142229KSHCLW, 2016 WL 7476352,
at *3 (D.N.J. Dec. 29, 2016).
Inc., 454 F.3d 549, 556 (6th Cir. 2006) (“Finally, by terminating [the plaintiff], [the employer]
undoubtedly interfered with her rights under the FMLA.”). In this case, not only was Ashby not
reinstated to her same position, but she was terminated from her job.
There is no dispute that Amscan failed to provide Ashby with the required notice with
respect to her 2015 FMLA leave. Amscan did not provide Ashby with any information after she
sent in her FMLA certification for the 2015 leave or after she called to extend her FMLA leave
two additional weeks through the end of April.6
See 29 C.F.R. § 825.300(d)(5) (“If the
information provided by the employer to the employee in the designation notice changes (e.g.,
the employee exhausts the FMLA leave entitlement), the employer shall provide, within five
business days of receipt of the employee’s first notice of need for leave subsequent to any
change, written notice of the change.”). “[I]nterference with an employee’s FMLA rights does
not constitute a violation if the employer has a legitimate reason unrelated to the exercise of
FMLA rights for engaging in the challenged conduct.” Edgar, 443 F.3d 507 (emphasis added)
(citing Arban, 345 F.3d at 401). Amscan argues that Ashby’s interference claim cannot stand
because “[t]he failure to return to work after exhaustion of FMLA leave is a permissible reason
to terminate an employee’s employment.” (Def.’s Reply 6). Contrary to Amscan’s contention,
however, the Sixth Circuit has held “when  absences and cause for discharge relate directly to
Amscan argues that Ashby was not entitled to notice that she exhausted her leave because
Ashby never filed a written request for an extension of her FMLA leave and therefore was not
“approved.” The FMLA, however, does not require a written request by an employee for an
extension of FMLA time. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999)
(notice is sufficient when the employee “gives the employer enough information for the
employer to reasonably conclude that an [FMLA qualifying event] has occurred.” (citing Brohm
v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998)); see also Stimpson v. United Parcel Serv.,
351 F. App’x 42, 47 (6th Cir. 2009) (holding that employee informing employer of injuries
through a phone call was sufficient to give employer notice of his intent to use FMLA leave).
Ashby gave written notice of her intent to use her FMLA leave. (FMLA Certification II).
Amscan was sufficiently apprised of Ashby’s extension of her FMLA time through Ashby’s
phone call advising of the need for two more weeks off. See Brohm, 149 F.3d at 523 (“[T]he
critical question is whether the information imparted to the employer is sufficient to reasonably
apprise it of the employee’s request to take time off for a serious health condition.” (internal
quotation marks omitted) (quoting Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th
Cir. 1995))). Thus, the fact that Ashby did not submit a written notice for the extension of her
leave does not excuse Amscan’s lack of notice for the leave, which began in March 2015, or the
requested extension in mid-April.
the FMLA leave and the company’s failure to give notice, . . . there is no legitimate and
independent reason for dismissal.” Wallace v. FedEx Corp., 764 F.3d 571, 589 (6th Cir. 2014)
Ashby’s failure to return to work upon exhaustion of her FMLA leave in April 2015
relates directly to Amscan’s failure to give notice.7 See id. (“[Plaintiff’s] failure to report for
work—and her subsequent termination—is a direct result of failing to perfect her FMLA leave,
which is a consequence of [defendant] failing to meet its responsibilities under § 825.305.”).
This is not a situation where Amscan had pre-leave reasons to terminate Ashby. Instead, her
termination relates directly to the FMLA leave and Amscan’s failure to give the required notice
is “intimately intertwined” with Ashby’s termination. Id. Therefore, Amscan’s argument that it
had a legitimate and independent reason to terminate Ashby is rejected.8 See Arban, 345 F.3d at
401 (“An employee lawfully may be dismissed . . . but only if the dismissal would have occurred
regardless of the employee’s request for or taking of FMLA leave.” (emphasis added) (citing
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir. 1998))).
Amscan next argues that even if Ashby has shown interference with her FMLA rights,
she has not shown that she suffered prejudiced from this interference. “An employer’s failure to
comply with the notice requirements of the FMLA only supports a cause of action where the
Because Amscan elected to use the rolling method for calculating FMLA leave, the amount of
leave available to an employee when an FMLA leave request is initially granted may be different
than the amount available when an employee requests additional leave at a later date.
The parties spend much time arguing whether Amscan should be equitably estopped from
arguing that Ashby’s interference claim fails because she was terminated after she exhausted her
FMLA time, and therefore was no longer protected by the statute. As discussed, the Sixth
Circuit has held that where an employee’s termination is “intimately intertwined” with the
employer’s failure to give notice, the employer cannot rely on the employee’s exhaustion of her
FMLA leave as a legitimate reason for a termination. See Wallace, 764 F.3d at 589. Having
concluded that Ashby may have a viable interference claim, it is unnecessary to consider
inadequate notice effectively interfere[s] with the plaintiff’s statutory rights.” Fink v. Ohio
Health Corp., 139 F. App’x 667, 671 (6th Cir. 2005) (alteration in original) (internal quotation
marks omitted) (citation omitted); see also Ragsdale, 535 U.S. at 89 (noting that 29 U.S.C. §
2617 “provides no relief unless the employee has been prejudiced by the violation.”); Wallace,
764 F.3d at 589 (“[A]n employee must demonstrate that an employer’s failure to follow the
FMLA and its regulations caused her harm.”).
Ashby contends that she was prejudiced by Amscan’s failure to properly inform her of
her rights under the FMLA because, given proper notice and an accounting of her FMLA time,
“she would have requested an earlier follow up appointment from her physician to be cleared to
return to work sooner.” (Pl.’s Reply Cross Mot. for Summ. J. 5, DN 27; Ashby Dep. 48:14-18,
55:23-56:7). Ashby testified that she would have returned to work if she had been properly
informed of her rights under the FMLA. (Ashby Dep. 48:14-18).
Ashby further testified that had she known when her FMLA leave expired, she would
have moved her doctor’s appointment to get cleared to return to work sooner. (Ashby Dep.
55:23-56:4). Ashby’s testimony in this regard has created a genuine issue of material fact as to
whether she could have returned to work four days earlier if she had been given the proper notice
required under the FMLA. The Court recognizes that Ashby’s evidence may be self-serving, yet,
it is evidence nonetheless. See Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 (6th Cir.
2010) (“A court may not disregard evidence merely because it serves the interests of the party
introducing it.” (citing Niemi v. NHK Spring Co., 543 F.3d 294, 300 (6th Cir. 2008))); see also
Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir. 2006) (“Plaintiff’s testimony
creates sufficient evidence to create a genuine issue of material facts . . . .”)
Moreover, Amscan has not offered evidence that Ashby was medically unable to resume
her position when the FMLA leave expired, instead of four days later. The Supreme Court has
held that prejudice was not shown where an individual could not have returned to work upon
expiration of FMLA leave, due to their medical condition. See Ragsdale, 535 U.S. at 82
(holding that the plaintiff did not show she was prejudiced by the lack of notice because her
physician did not clear her to work until long after her FMLA ended); see also Tippens v. Airnet
Sys., Inc., No. 2:05-cv-421, 2007 WL 1026954 at *7 (S.D. Ohio Mar. 30, 2007) (holding that the
plaintiff could not show prejudice from lack of notice because she could not have returned to
work before her FMLA leave ended, even if she had proper notice, because plaintiff’s FMLA
leave ended on December 3 and she was in a coma until December 9).
Ashby was not cleared to return to work by her physician until April 28, 2015, four days
after her FMLA leave expired. The Court finds that unlike the plaintiff in Ragsdale, a reasonable
jury could find that Ashby could have returned to work four days sooner, even though she was
not cleared to return to work until April 28, 2015. Ashby’s physician originally gave a return to
work date of April 13, 2015. (FMLA Certification II). After a follow-up visit extended her time
off for two weeks, Ashby was cleared to return to work on April 28, 2015, only four days after
her FMLA leave ended. (Return to Work Note). Considering the relatively minor nature of
Ashby’s ankle injury and the amount of recuperation already attained, it appears a jury could
believe that Ashby’s medical condition would not have precluded her from returning to work a
few days earlier, as she claims.
Notably, there is no testimony from Ashby’s physician in the record indicating that she
could not have returned to four days earlier. See Figgins v. Advance Am. Cash Advance Ctrs. of
Mich., Inc., 476 F. Supp. 2d 675, 694 (E.D. Mich. 2007) (“There is no testimony from her
physicians, apparently because their depositions were not taken. Had the defendants deposed the
plaintiff’s doctor . . . perhaps they would have such evidence and be entitled to summary
judgment. However, there is currently contradicted sworn testimony that the plaintiff would
have returned to work prior to the expiration of her available leave had the defendants not misled
her about her rights under the FMLA.”). Therefore, a genuine issue of material fact exists
regarding whether Ashy could have returned to work when her FMLA leave expired.
Amscan further argues that Ashby was not prejudiced by its failure to give notice because
she received notice of her FMLA absentee count in February 2015, a month before she took the
2015 FMLA leave. Amscan argues that because she was on notice of her FMLA leave status in
February, she was not prejudiced by Amscan’s failure to give notice of these days again in
March when she requested leave. (Def.’s Reply 8). Ashby admits that she did receive the tally
of her FMLA days used up until February 2015, but was not aware that the 2014 FMLA leave
was combined with the 2015 FMLA leave. A reasonable jury could find that if Ashby had been
given proper notice related to the second FMLA leave request in March 2015, she would have
understood the FMLA calculation used by Amscan. See Cooper v. Perfect Equip., Inc., No.
3:13-CV-1023, 2015 WL 1097344, at *9 (M.D. Tenn. Mar. 11, 2015) (holding that because the
employer was aware of a discrepancy between the number of days off the physician estimated
and the employee’s request which exceeded FMLA leave time, the court concluded “a
reasonable jury could find that the company interfered with her rights by terminating her during
her requested FMLA leave period and/or by failing to inquire further regarding the duration of
her request for leave . . . .”).
It is not the Court’s job at the summary judgment stage to weigh this evidence. Rogers v.
Lilly, 292 F. App’x 423, 426 (6th Cir. 2008) (citation omitted) (“In ruling on a motion for
summary judgment, ‘[t]he judge may not make credibility determinations or weigh the
evidence.” (internal quotation marks omitted) (quoting Adams v. Metiva, 31 F.3d 375, 379 (6th
Cir. 1994))). Viewing the evidence in the light most favorable to Ashby, a reasonable jury could
find that Ashby did suffer prejudice from the lack of notice with respect to her 2015 FMLA leave
for her broken ankle. Therefore, Amscan’s motion for summary judgment as to the interference
claim is denied. Tipping the scales in the other direction to address Ashby’s summary judgment
motion, a reasonable jury could find that Ashby was not prejudiced by the lack of notice and
reject her claim that she could have returned to work. Therefore, Ashby’s motion for summary
judgment as to the interference claim is likewise denied as genuine issues of fact exist.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment (DN 20) is GRANTED IN PART and DENIED IN PART and Plaintiff’s
Cross-Motion for Summary Judgment (DN 25) is DENIED. Plaintiff’s state-law disability
claims and her Family and Medical Leave Act retaliation claim are dismissed, and this matter
will proceed to trial on Plaintiff’s Family and Medical Leave Act interference claims.
Greg N. Stivers, Judge
United States District Court
March 8, 2017
counsel of record
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