Latowski v. Northwoods Nursing Center
Filing
40
ORDER overruling Plaintiff's 39 Objections; adopting 38 Report and Recommendation; granting 28 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JENNIFER LATOWSKI,
Plaintiff,
Case No. 11-11086
Honorable Thomas L. Ludington
v.
NORTHWOODS NURSING CENTER,
Defendant.
______________________________________ /
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This dispute arises out of the termination of Plaintiff Jennifer Latowski’s employment
with Defendant Northwoods Nursing Center. In ending the employment relationship, Plaintiff
alleges, Defendant violated several federal and state laws. First, Plaintiff alleges, Defendant
violated Title VII of the Civil Rights Act of 1964 by discriminating against Plaintiff because of
her pregnancy and gender. Second, Plaintiff alleges, Defendant violated the Americans with
Disabilities Act by regarding Plaintiff as disabled yet not making reasonable accommodation for
Plaintiff’s pregnancy. Third, Plaintiff alleges, Defendant violated the corresponding Michigan
state laws prohibiting discrimination on the basis of pregnancy, gender, and disability. Fourth,
Plaintiff alleges, Defendant violated the Employee Retirement Income Security Act by
terminating Plaintiff’s employment to reduce its liability under Defendant’s health and disability
plans. And fifth, Plaintiff alleges, Defendant violated the Family and Medical Leave Act by
interfering with Plaintiff’s right to medical leave.
The case was referred to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. §
636(b) for general case management. Defendant answered the complaint, denying liability. The
complaint was amended, twice. See ECF No. 17 (second amended complaint). Defendant then
moved for summary judgment. ECF No. 28. September 5, 2012, Judge Binder issued a report
recommending that the Court grant Defendant’s motion. ECF No. 38.
Any party may serve and file written objections to the report and recommendation issued
by a magistrate judge.
28 U.S.C. § 636(b)(1).
The district court will make a “de novo
determination of those portions of the report . . . to which objection is made.” 28 U.S.C. §
636(b)(1). The Court is not obligated to review the portions of the report to which no objection
was made. Thomas v. Arn, 474 U.S. 140, 149–52 (1985).
Plaintiff has filed five objections. ECF No. 61. For the reasons that follow, Plaintiff’s
objections will be overruled, the report and recommendation will be adopted, and Defendant’s
motion for summary judgment will be granted, and Plaintiff’s second amended complaint will be
dismissed with prejudice.
I
A
Plaintiff worked as a certified nurse’s aide for Defendant from July 2007 to October
2008. See Pl. Dep. 9, 48, Aug. 24, 2011, attached as Def.’s Mot. Summ. J. Ex. A.
Plaintiff’s job included assisting patients getting in and out of bed, wheelchairs, and
showers. Pl. Dep 17–40. If a patient fell, Plaintiff recounts, “We would not catch them.
[Rather, we’ve] been trained to ease them down to the floor to soften the blow. . . . I am trained
to brace their fall if I can without injuring myself.” Pl. Dep. 20–21. Elaborating, Plaintiff
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continues: “I would spread my legs so that my weight was equally distributed so that I would not
go down, bend my knees and actually place a knee between their legs and let them slide down
my knee and slowly hold onto them until they hit the floor.” Pl. Dep. 22. Plaintiff was also
required to help patients reposition themselves in bed. She explains: “There’s an assistive device
underneath them. We call them ‘blue pads’ or ‘chuck pads,’ but it’s actually — you can use that.
It’s a heavy-duty sheet, and you get ahold of each — the one side, and you can just lift.” Pl.
Dep. 23–24.
As a condition of employment, Plaintiff was required to pass a physical examination. Pl.
Dep. 13–14. In the physical, Plaintiff recalls, her doctor had her lift a box containing a fifty
pound weight, “to show the ability to do the job.” Pl. Dep. 13. She elaborates: “He had a box
that had handles on it and he had a ball in it that he stated weighed 50 pounds and he had me
bend over, properly lift it up without using my back, bending with my knees, lifting it up,
walking across the room and setting it down.” Pl. Dep. 13.
During her employment with Defendant, Plaintiff recalls, the heaviest patient she had to
assist was “400 plus” pounds. Pl. Dep. 20. But on average, Plaintiff estimates, the men she
assisted weighed about 200 pounds, the women 150 pounds. Pl. Dep. 20.
B
Plaintiff learned that she was pregnant on August 1, 2008. Pl. Dep. 39. She did not
inform Defendant. In September, Plaintiff refused a tuberculosis test. Pl. Dep. 42. When she
was asked why she was refusing to take the test, Plaintiff disclosed that she was pregnant. Pl.
Dep. 42. The ward clerk responsible for setting Plaintiff’s shift schedule, Maurine Roberts,
recalls that Plaintiff volunteered the information. In her deposition, Ms. Roberts was asked:
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Q: Did [Plaintiff] just walk up to you and say, hi, I’m pregnant? Was there a
conversation where it came up? Did you ask her?
A: No, there was a conversation. She came to me. She had mentioned that she
was pregnant and that was about it. . . .
Q: Okay. What did she say to you?
A: That she was —
Q: Other than, I’m pregnant, anything else you remember?
A: That she was pregnant.
Q: Okay. What was your response?
A: I asked her if she had seen a doctor. She said she had an appointment next
week.
Q: Why did you ask her if she had seen a doctor?
A: Well, it was our practice to get a medical — if anything was medical we
would ask for like a doctor’s slip.
Q: What do you mean if anything was medical?
A: If someone would come to me and say something we would just — it was our
practice to ask them for some kind of like doctor’s slip. . . .
Q: She says, I’m pregnant, and you said, are you seeing a doctor?
A: Are you seeing a doctor, yes.
Q: Why, what do you care?
A: Because it was our practice to ask for a doctor’s slip with anything medical
that was brought to our attention.
Q: And that included pregnancy?
A: That included anything medical.
Roberts Dep. 6–7, Dec. 13, 2011, attached as Def.’s Mot. Ex. C. Plaintiff confirms that Ms.
Roberts told Plaintiff “that I had to bring a note from my doctor in order to work otherwise I
would be taken off the schedule, that was their policy. . . . I said, ‘I don’t understand. Why
would I need a note? I haven’t missed any work,’ which led into a conversation with Judy
Doyle[1] that I needed a note stating that I had no restrictions.” Pl. Dep. 42–43.
C
On October 1, 2008, Plaintiff saw her doctor, Diane Traenkle, D.O. See Pl.’s Med. R.,
attached as Pl.’s Resp. to Def.’s Mot. Ex. 14. That day, Dr. Traenkle faxed a note to Defendant
restricting Plaintiff’s physical activities — “No lifting over 50 pounds.” Id.; see also Pl. Dep.
46.
1
Ms. Doyle was Ms. Roberts’ supervisor.
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Ms. Roberts received the fax. Roberts Dep. 13. She brought it to the attention of her
supervisor, Judy Doyle. Roberts Dep. 13; see also Doyle Dep. 11–12, Jan. 13, 2012, attached as
Pl.’s Resp. to Def.’s Mot. Ex. 3.
Ms. Roberts then called Plaintiff “[t]o ask her about the restriction.” Roberts Dep. 13;
see also Pl. Dep. 51–52. Plaintiff did not answer, and so Ms. Roberts left a message and
removed Plaintiff from her scheduled shift for that evening. See Roberts Dep. 13, 15.
When Plaintiff called back, she spoke with Ms. Doyle, who notified Plaintiff that her
scheduled shift that evening had been cancelled and that she could not resume work until her
doctor’s restriction was lifted. See Pl. Dep. 51–52. Ms. Doyle’s notes of the conversation
record:
When [Plaintiff] called, I took the phone call as [Ms. Roberts] was not available.
I explained to her that we would not be able to keep her on the schedule because
she could not lift more than 50 [pounds]. She was very tearful and sounded very
upset. She stated “How am I going to make my house payment?” I was very
sympathetic, but said gently, “Jennifer, you wouldn’t want to lose your baby.”
She then said she had already had several miscarriages. She continued to cry, but
said maybe her doctor would lift the restriction. I explained that if she had
already lost babies, she would be high risk and the doctor would probably not
agree to lift them. However, I told her that if the restrictions were lifted, and she
brought a memo stating that she could work with no restrictions, she would be
able to work. I made it very clear that she could not work until I received word of
“no restrictions.” She stated OK and said that she would be going to the doctor
tomorrow.
Doyle Notes 1, attached as Pl.’s Resp. to Def.’s Mot. Ex. 18. Plaintiff likewise recalls
that Ms. Doyle “encouraged me to talk with my physician and have it reversed because I would
not work there with any restrictions, and I had to have the physician change the note in order to
work there.” Pl. Dep. 56.
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D
Inquiring into how a fifty-pound lifting restriction would limit Plaintiff’s ability to do her
job, Defendant’s counsel asked Plaintiff:
Q: During the course of your discussions with [Defendant], did you request any
accommodation in the sense of having your job duties modified in order for
you to continue working?
A: No.
Q: And you would agree that removing the physical component of your job
wouldn’t be possible in still allowing you to perform your job?
A: No.
Q: Well, if you were to show up for work and all the physical parts of your job in
terms of repositioning patients, helping them on and off the bed, on and off
the toilet and things like that, were eliminated from your job, you wouldn’t
have much left to do, correct?
A: I would be considered light duty, which is what they put people on for
[workers compensation] injuries, so, yes, I understand what you are saying.
Pl. Dep. 95–96. Pursuing a similar line of inquiry, Plaintiff’s counsel asked Ms. Doyle:
Q: [T]he fact that [Plaintiff] had a weight restriction might not necessarily mean
that she can’t perform her job, right?
A: I would disagree with that. As a [certified nurse’s assistant] and what they’re
required to do she would be — she would be bearing weight of over 50
pounds at some point during her job performance. . . . [W]hen she is in [the]
process of doing her job [whether] it’s positioning, toileting, ambulating,
transferring, she is absolutely going to at some point be responsible for 50
pounds or more.
Doyle Dep. 70, 73.
E
On October 2, 2008, Plaintiff spoke with her doctor about having the restriction lifted.
Pl. Dep. 53, 56–58. But, Plaintiff acknowledges, her doctor did not contact Defendant to modify
(much less remove) the restriction. Pl. Dep. 55, 58.
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That day, Plaintiff reported for her shift. Pl. Dep. 53. Arriving at work, she had another
conversation with Ms. Doyle. Pl. Dep. 54–55. Inquiring into that conversation, Defendant’s
counsel asked Plaintiff in her deposition:
Q: Tell me about that discussion.
A: [Ms. Doyle] was the on-call nurse. Erin Burns was another nurse and she had
me call [Ms. Doyle] at home to figure out if anyone knew anything about
receiving anything from my physician. Because at that time I did not know if
North Woods had received — indeed received a fax, because I was still under
the impression that [another] fax had been or should have been sent. [Ms.
Doyle] informed me that she had not received anything from my physician
and she made it very clear that I was not to return to work there with any
restrictions and that I would not work at North Woods.
Q: Okay. So at that point that you had that discussion with [Ms. Doyle] did you
understand whether the facility had or had not received [the fax containing the
50 pound lifting restriction]?
A: Yes, I understood that they had received a restriction — this (indicating)
restriction. I did not understand whether or not they had received [an]
additional fax from my physician stating that I had no restrictions and that I
could go to work.
A: Okay. Did you ask?
Q: Did I ask? Yes, I asked [Ms. Doyle], yes.
Q: All right. And she said they had not received anything further?
A: She said they had not heard from my physician; correct.
Q: Okay. So at that point of that discussion what the facility had in its hands was
[the fax] giving the 50-pound weight restriction?
A: Yeah.
Q: And to your knowledge the facility never received anything from your
physician’s office lifting the 50-pound weight restriction?
A: Correct. . . .
Q: And then you abandoned that process [of going to the doctor’s office to have
the weight restriction modified] after they walked you out that evening?
A: They walked me out with less than 48 hours of receiving this.
Q: But the question is, did you then abandon that process of asking for a doctor’s
note without restrictions?
A: Yes, after I was terminated, yes.
Pl. Dep. 54–55, 57. Plaintiff was escorted from the premises. Pl. Dep. 53–54. Moreover, she
asserts, she was informed that she had “self-resigned.” Pl. Dep. 53–54.
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F
About two weeks later, Plaintiff received a call from Ms. Doyle. Pl. Dep. 62. Plaintiff
recalls that on October 15, 2008, Ms. Doyle “left me a message and said that she had something
that might be interesting or of benefit to me and for me to call her back.” Pl. Dep. 62. When
Plaintiff did, Ms. Doyle informed Plaintiff about FMLA leave. Plaintiff recalls:
A: She said that [she] . . . had reviewed my file and she had been made aware that
I had been there for a year and that would mean I was eligible for FMLA.
And she said, ‘Did you — are you aware that you are eligible for FMLA?
Q: And what was your response?
A: “Yes.” And she said, “Why didn’t you tell me?” and “This is something that
could help you.” And “If that’s not something that you are interested in” —
and she asked me if I understood what FMLA was. I told her that I fully
understood what FMLA was but that I didn’t feel that it would help me at that
time. . . . It was a very short conversation. We just discussed FMLA.
Q: You told her you didn’t think it would help at that time. What was the basis
of that comment?
A: My reasoning?
Q: Right.
A: My reasoning is, is because it only lasts for 12 weeks and a pregnancy lasts
for 10 [sic] months. So then it would — I would take it, which would secure
my job, but then at the end of that I would still be pregnant and I would still
have restrictions. . . .
Q: So did she tell you during that conversation that if your restrictions were lifted
you could resume your employment?
A: No, we did not, no. During the conversation she said that it would buy me
time, that in 12 weeks I could get a second opinion from a physician. I could
buy some time and “You never know what happens.” So she could have
alluded to not having restrictions and having my job back or — in that way.
So she could have alluded to it. She also said that, “You never know, you
might not even be pregnant.” So she did allude to the fact that the problem
could have went away or been resolved at some point and that I could have
resumed employment.
Pl. Dep. 62–64. Elaborating about why she declined Defendant’s invitation to take FMLA leave,
Plaintiff continued: “In my opinion, when that 12 weeks was up then they would have been able
to — I would not have been able to go back to work possibly, and then what happens down the
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road when I need the FMLA? I’m no longer eligible to use it. So it doesn’t benefit me, first of
all, and also in my opinion, they had already discriminated against me and I didn’t want to be
employed with them anymore.” Pl. Dep. 64. And elaborating on why she felt discriminated
against, Plaintiff explained:
I mean that there was other people that had restrictions that were non-work related
and they accommodated them or they helped them or they were — you know,
they were nice to them. I’m not saying as far as accommodating as far as allowed
them to work with restrictions, but they were nice with them.
Pl. Dep. 73. When Plaintiff was asked if she was aware of any other women who worked for
Defendant while pregnant, Plaintiff responded: “I don’t know that they were pregnant while I
worked there, but they had had children while they worked at North Woods, I’m sure yes.” Pl.
Dep. 74. Asked if she had discussed whether these women had restrictions or been taken off the
schedule, Plaintiff acknowledged that she did not know. Pl. Dep. 74.
G
Five days after Plaintiff’s conversation with Ms. Doyle in which Plaintiff declined to take
FMLA leave, Defendant’s administrator, Mr. Aaron Woods, sent Plaintiff a letter. See Pl.’s
Resp. to Def.’s Mot. Ex. 19. Dated October 20, 2008, the letter informs Plaintiff that “on
10/15/2008, via phone we discussed in detail, the Family Medical Leave Act. You were given
the opportunity to submit the paperwork, but as of today you have not taken that opportunity. In
the position of Certified Nurse[’s] Assistant we will not accommodate a non-work related
restriction. We accept your resignation effective today.” Id.
H
Plaintiff filed an EEOC charge on November 12, 2008. See Pl.’s Resp. to Def.’s Mot. 7.
In December 2008, Plaintiff returned to Defendant’s facility to obtain information from her
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personnel file for use in the litigation. See Pl. Dep. 84–85. While there, she met with Aaron
Woods and Rick Ackerman. In her deposition, Plaintiff was asked:
Q: During the course of the meeting, did Mr. Ackerman again affirm that you had
the right to take leave under the Family Medical Leave Act?
A: He did.
Q: And what was your response to that?
A: He asked me — he informed me that he was aware that I did not choose to
take FMLA and that I had previously discussed it with Judy, and he asked me
why — what my opinion was, and why I didn’t feel it was [beneficial]. . . . .
Q: And by then you had concluded — did you tell him you had concluded that
you did not want to return to North Woods?
A: Yes, when he asked I did tell him that, that, no, I did not feel that I would
want to work for them because I felt that they had discriminated against me.
Pl. Dep. 86–87. Inquiring further, counsel asked:
Q: During the meeting on December 1st, you indicated there was discussion
regarding liabilities. Was the discussion in the form of “If we let you work
with this restriction and something happens we could be liable for that[?]” Is
that how that . . . .
A: Yes, it would be — if something happened, they would be liable and they
were explaining to me — in the context of that discussion they were
explaining to me why their policy does not allow people to work with any
restrictions. . . .
Q: And they told you that’s the policy they apply to everyone that has
restrictions?
A: Yeah.
Q: And you were aware of that from coworkers that had nonwork-related injuries
or restrictions?
A: I was aware of that as stated in the handbook that was provided to me, that
they did not have to accommodate for nonwork-related injuries.
Q: And you were aware of that before this whole issue came up with your
pregnancy; correct?
A: Yeah.
Q: And beyond just the handbook, you were aware from looking around and
seeing what happened to other employees that people that had nonworkrelated restrictions were taken off the schedule?
A: But they weren’t terminated.
Pl. Dep. 92–93. When Plaintiff was asked to identify a similarly situated man who was treated
more favorably than Plaintiff, she identified Chad Moss. Pl. Dep. 122. Plaintiff explained that
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after he suffered a non-work related injury, “He had a meeting with management and he was
taken off the schedule. A food collection was taken up for him and his family, and he returned to
work with restrictions.” Pl. Dep. 122. Discussing Mr. Moss’s restrictions, Plaintiff’s counsel
asked Mr. Woods:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Who is Chad Moss?
He was an employee.
What did he do?
He was a [certified nurse’s assistant].
Do you recall at some point I believe in early 2008 when he had an off work
injury, I think a slip and fall?
Yes.
Okay. That did not occur at work, right?
Correct.
And because of that slip and fall he had some restrictions, correct?
Correct.
And do you recall that he was given light duty.
No.
Do you recall that he had a lifting restriction of 15 pounds?
I don’t know what was imposed on him. . . .
Okay. Your attorney produced this document, it says Authorization for
absence . . . to certify that Chad Moss until 3.4.08 unable to lift more than 10
pounds without increased risk of further injury. So I assume that was
presented to Northwoods?
Yes.
Okay. What if anything did Northwoods do in response to getting that lifting
restriction for Chad Moss?
He would have been removed from the schedule.
Why not terminated?
Did we offer him FMLA?
Well, I’m looking at Defendant’s answers to the second set of interrogatories
No. 1 and it appears to be a list of everybody who has on FMLA and I don’t
see Chad Moss’s name on there, do you?
About the eighth line down.
Yes, [here] it is. So eighth line down. So he was on FMLA [leave] on 2.19.
So he used FMLA as far as you know, right?
Yes.
Woods Dep. 44–45, Dec. 13, 2011, attached as Def.’s Reply Ex. D.
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I
In March 2011, Plaintiff filed suit in this Court. As noted, Plaintiff first alleges that
Defendant violated Title VII by discriminating against Plaintiff because of her gender and
pregnancy. Second, Plaintiff alleges Defendant violated the Americans with Disabilities Act by
regarding Plaintiff as disabled and not making reasonable accommodations for her pregnancy.
Third, Plaintiff alleges analogous state law discrimination claims under the Elliott-Larsen Civil
Rights Act and Michigan Persons with Disability Civil Rights Act. Fourth, Plaintiff alleges that
Defendant violated the Employee Retirement Income Security Act by terminating Plaintiff’s
employment to reduce its liability under Defendant’s health and disability plans. And fifth,
Plaintiff alleges that Defendant violated the Family and Medical Leave Act by interfering with
Plaintiff’s rights under the act.
Following discovery, Defendant moved for summary judgment on each of Plaintiff’s
claims. Judge Binder issued a report recommending that the Court grant the motion. Plaintiff’s
objections followed.
II
Plaintiff makes five objections to the report and recommendation. The objections are
unpersuasive.
A
Plaintiff first objects that “the magistrate erred factually, by concluding that Defendant’s
requirement of a doctor’s note was undisputed and/or applied to other medical circumstances
besides pregnancy.” Pl.’s Objections 7 (capitalization omitted). She explains: “This factual
error by [Judge Binder] permeated his conclusion that Plaintiff could not establish a prima facie
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case of ‘indirect’ pregnancy discrimination. . . . North Woods treated Ms. Latowski differently
from a male [certified nurse’s assistant] named Chad [Moss].” Id. at 8–9 (quotation marks
omitted) (quoting Pl.’s Resp. to Def.’s Mot. Summ. J. 13).
Drawing all reasonable factual inferences in Plaintiff’s favor, she is not correct that a
genuine issue of fact exists regarding a prima facie case of indirect pregnancy discrimination.
Title VII, as amended by the Pregnancy Discrimination Act (“PDA”), provides that
“women affected by pregnancy . . . shall be treated the same for all employment-related purposes
. . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §
2000e(k). The PDA thus requires an employer to be “pregnancy-blind.” Reeves v. Swift Transp.
Co., 446 F.3d 637, 641 (6th Cir. 2006); accord Serednyj v. Beverly Healthcare, LLC, 656 F.3d
540, 548 (7th Cir. 2011); Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312–13 (11th Cir.
1999)).
As with other types of discrimination claims, pregnancy discrimination can be established
by direct or indirect evidence. In Reeves v. Swift Transportation Co., 446 F.3d 637 (6th Cir.
2006), for example, the Sixth Circuit held that a policy denying light-duty work to employees
who could not perform heavy lifting and also were not injured on the job was valid under the
PDA, explaining:
Swift’s light-duty policy is indisputably pregnancy-blind. It simply does not grant
or deny light work on the basis of pregnancy, childbirth, or related medical
conditions. It makes this determination on the nonpregnancy-related basis of
whether there has been a work-related injury or condition. Pregnancy-blind
policies of course can be tools of discrimination. But challenging them as tools of
discrimination requires evidence and inference beyond such policies’ express
terms.
Swift’s pregnancy-blind policy, therefore, cannot serve as direct evidence of
Swift’s alleged discrimination against Reeves.
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Id. at 641. In this case, as in Swift, Defendant’s policy is pregnancy-blind. The policy simply
requires that when an employee brings a non-work related medical condition to Defendant’s
attention, the employee is required to obtain a doctor’s opinion on whether the employee was
free to work without restrictions. Plaintiff acknowledged as much in her deposition, where she
was asked:
Q: [Defendant] told you that’s the policy they apply to everyone that has
restrictions?
A: Yeah.
Q: And you were aware of that from coworkers that had nonwork-related injuries
or restrictions?
A: I was aware of that as stated in the handbook that was provided to me, that
they did not have to accommodate for nonwork-related injuries.
Q: And you were aware of that before this whole issue came up with your
pregnancy; correct?
A: Yeah.
Pl. Dep. 92–93. Regardless of what the non-work related medical condition is, if the employee’s
work is restricted, Defendant does not accommodate the restriction. Defendant’s policy is not
direct evidence of discrimination.
When a plaintiff lacks direct evidence of pregnancy discrimination, as in this case, the
plaintiff may establish the claim via indirect evidence. Serednyj, 656 F.3d at 550–51. “To state
a prima facie case for pregnancy discrimination,” the Sixth Circuit instructs, “a plaintiff “must
show (1) she was pregnant, (2) she was qualified for her job, (3) she was subjected to an adverse
employment decision, and (4) there is a nexus between her pregnancy and the adverse
employment decision.” Mullins v. U.S. Bank, 296 F. App’x 521, 525 (6th Cir. 2008) (citing
Asmo v. Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006)). A causal nexus can be inferred by
demonstrating that similarly situated, non-pregnant employees were treated more favorably.
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Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996) (citing Int’l Union v. Johnson
Controls, 499 U.S. 187, 204–05 (1991)). The Sixth Circuit elaborates:
[W]hen a Title VII litigant alleges discrimination on the basis of pregnancy in
violation of the PDA, in order to establish a prima facie case of discrimination,
she must demonstrate only that another employee who is similarly situated in her
or his ability or inability to work received more favorable benefits. In addition, of
course, she still must meet her burden of demonstrating that she is a member of
the class to be protected by the PDA, that she was denied benefits, and that she
was qualified to receive those benefits.
Ensley-Gaines, 100 F.3d 1220, 1226 (6th Cir. 1996).
In this case, as noted, Plaintiff objects that “North Woods treated Ms. Latowski
differently from a male [certified nurse’s assistant] named Chad [Moss].” Plaintiff’s objection
lacks merit.
As detailed above, both Mr. Moss and Plaintiff had a medical condition that was not
caused by their employment with Defendant.
Both were sent to see a doctor.
Both had
restrictions placed on their ability to work. Both had their shifts cancelled when Defendant
learned of the restrictions. Both were offered FMLA leave by Defendant. Mr. Moss chose to
use the FMLA leave rather than have his employment terminated. Plaintiff did not.
Thus,
Defendant did not treat Mr. Moss more favorably than Plaintiff — Mr. Moss and Plaintiff
received the same treatment.
Plaintiff’s objection will be overruled.
B
Plaintiff next objects that “the magistrate erred legally, by concluding that there was no
direct evidence of discrimination.”
Pl.’s Objections 9 (capitalization omitted).
Plaintiff
elaborates that “the Magistrate erred by not considering Ackerman’s statements, stating ‘There is
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no evidence that Mr. Ackerman had any part of the decision making process.’ The evidence
does not support that conclusion. The decision was based on a facility ‘policy’ that Ackerman
significantly shaped. . . . Additionally, Ackerman attended a December 1, 2008 meeting.” Id. at
9–10 (citations omitted). Plaintiff also points to the comments from Ms. Doyle in her phone
conversation with Plaintiff on October 1, 2008. Id.
Drawing all reasonable factual inferences in Plaintiff’s favor, she is not correct that she
has direct evidence of pregnancy discrimination.
“Direct evidence of discrimination is evidence that proves that discrimination has
occurred without requiring further inferences.” Reeves v. Swift Transp. Co., Inc., 446 F.3d 637,
640 (6th Cir. 2006) (citing Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th
Cir. 2004)).
In this case, as noted, Defendant’s policy is not direct evidence of discrimination. It is
pregnancy blind. Likewise, one of Defendant’s managers (Mr. Ackerman) attendance at a
meeting several weeks after Plaintiff’s employment was terminated is not direct evidence of
discriminatory animus towards Plaintiff’s pregnancy. No evidence suggests that Mr. Ackerman
was personally involved in the decision to terminate Plaintiff’s employment. Even if he had
been, moreover, none of his comments in the December 1 meeting are direct evidence of
discrimination. His explanation that the purpose of Defendant’s policy is to limit its liability does
not suggest that he harbored discriminatory animus towards Plaintiff’s pregnancy.
Similarly, Ms. Doyle’s conversation with Plaintiff on October 1 is not direct evidence of
discrimination. As noted, Ms. Doyle’s notes of the conversation record:
I explained to her that we would not be able to keep her on the schedule because
she could not lift more than 50 [pounds]. She was very tearful and sounded very
upset. She stated “How am I going to make my house payment?” I was very
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sympathetic, but said gently, “Jennifer, you wouldn’t want to lose your baby.”
She then said she had already had several miscarriages. She continued to cry, but
said maybe her doctor would lift the restriction. I explained that if she had
already lost babies, she would be high risk and the doctor would probably not
agree to lift them. However, I told her that if the restrictions were lifted, and she
brought a memo stating that she could work with no restrictions, she would be
able to work. I made it very clear that she could not work until I received word of
“no restrictions.” She stated OK and said that she would be going to the doctor
tomorrow.
Doyle Notes 1. Drawing all reasonable inferences in Plaintiff’s favor, no reasonable juror would
conclude that Ms. Doyle’s comments are evidence of discriminatory animus towards Plaintiff’s
pregnancy, much less direct evidence. Rather, the conversation shows that Ms. Doyle simply
explained to Plaintiff why her doctor may have imposed the restriction and, moreover, how
Plaintiff could go about getting the restriction lifted.
Plaintiff’s objection will be overruled.
C
Plaintiff’s third objection is that “the magistrate erred legally, by concluding that there
was insufficient indirect evidence of discrimination concerning Plaintiff’s qualifications.” Pl.’s
Objections 12 (capitalization omitted). Plaintiff elaborates:
First, he incorrectly relied on the assumptions that Plaintiff does not challenge
either Defendant’s policy of requiring a doctor’s note, or the alleged “pregnancy
blind” nature of the policy. He also failed to consider the serious dispute as to
whether lifting more than 50 lbs. was a necessary qualification for the job.
Second, the Magistrate erred in his legal analysis, with the chief error his failure
to discuss or apply the most pertinent case regarding pregnancy discrimination in
this circuit, Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996).
Id. (internal citation omitted). Plaintiff’s arguments lack merit.
First, as noted, Defendant’s policy is “pregnancy blind.”
The policy applies to all
certified nurse’s assistants, regardless of whether the employees are pregnant. The policy simply
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requires that all employees with non-work related medical conditions be cleared by a doctor to
work without restrictions. Thus, the issue for Defendant was not whether Plaintiff was able to
lift 50 pounds — the issue is whether Plaintiff’s work was restricted because of a non-work
related medical condition. Because Plaintiff’s work was restricted for this reason, Judge Binder
correctly concluded that Defendant did not consider Plaintiff qualified for her position.
Moreover, even if Plaintiff was qualified for the position, Defendant would nevertheless
be entitled to summary judgment on the pregnancy discrimination claim because Plaintiff has not
demonstrated that similarly situated, non-pregnant employees were treated more favorably.
In Ensley-Gaines, the Sixth Circuit held that “when a Title VII litigant alleges
discrimination on the basis of pregnancy in violation of the PDA, in order to establish a prima
facie case of discrimination, she must demonstrate only that another employee who is similarly
situated in her or his ability or inability to work received more favorable benefits.” 100 F.3d
1226. Reversing the district court’s grant of summary judgment in favor of the employer, the
Sixth Circuit noted that the plaintiff had identified “a number of nonpregnant, temporarily
disabled mailhandlers who were treated more favorably than she was when requesting alternative
duties.” Id. at 1223. Additionally, the court observed that the plaintiff had “suggested a variety
of tasks, both inside and outside of the mailhandler craft, that Plaintiff was qualified to perform
and would be able to perform with the restrictions imposed upon her by her pregnancy. [She
also] recommended small accommodations to her work schedule and assignments that would
have enabled Plaintiff to work eight hours per day without a disadvantage to other regular
employees, but management ignored these suggestions.” Id.
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In this case, in contrast, the sole non-pregnant employee that Plaintiff identifies as being
treated more favorably, Mr. Moss, did not receive better treatment than Plaintiff. He received
the same treatment.
And unlike the plaintiff in Ensley-Gaines, Plaintiff did not seek any
accommodation for her lifting restriction. In Plaintiff’s deposition, she was asked:
Q: During the course of your discussions with [Defendant], did you request any
accommodation in the sense of having your job duties modified in order for
you to continue working?
A: No.
Pl. Dep. 95–96. Plaintiff’s objection will be overruled.
D
Plaintiff’s fourth objection is that “the magistrate erred legally, by concluding that there
was insufficient evidence of disability discrimination under the ‘regarded as’ prong [of the
ADA].” Pl.’s Objections 15. She elaborates: “Ms. Doyle directed Ms. Latowski to obtain a
doctor’s note — essentially establishing a ‘rebuttable presumption’ that she was disabled. Doyle
also expressed (erroneous) concern about Plaintiff’s history of multiple miscarriages, and that
she was a high-risk pregnancy.” Id. at 16. To support her objection, Plaintiff relies on Spees v.
James Marine, Inc., 617 F.3d 380 (6th Cir. 2010).
Drawing all reasonable factual inferences in Plaintiff’s favor, she is not correct that a
genuine issue of fact exists regarding a prima facie case of disability discrimination.
The Americans with Disabilities Act prohibits employers from discriminating “against a
qualified individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
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A “disability” is defined as “(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.” § 12102(1).
“An individual meets the requirement of ‘being regarded as having such an impairment,’”
the ADA further provides, “if the individual establishes that he or she has been subjected to an
action prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life activity.” §
12102(3)(a).
“The regarded-as-disabled prong of the ADA,” the Sixth Circuit explains, “protects
employees who are perfectly able to perform a job, but are rejected because of the myths, fears
and stereotypes associated with disabilities.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,
703 (6th Cir. 2008) (ellipsis omitted) (quoting Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664
(6th Cir. 2008)). The court elaborates that an employee “may be regarded as disabled when (1)
an employer mistakenly believes that an employee has a physical impairment that substantially
limits one or more major life activities, or (2) an employer mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more of an employee’s major life activities.
In either case, it is necessary to show that the employer entertains misperceptions about the
employee.” Daugherty, 544 F.3d at 703–04 (citation, quotation marks, and brackets omitted)
(quoting Gruener, 510 F.3d at 664).
The Sixth Circuit observes that “pregnancy, by itself, does not constitute a disability
under the ADA and thus cannot form the basis of a regarded-as claim. Spees, 617 F.3d at 396
(citing Richards v. City of Topeka, 173 F.3d 1247, 1250 n.2 (10th Cir. 1999)). Nevertheless, the
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court cautions that “a potentially higher risk of having a future miscarriage . . . could constitute
an impairment. . . . [A]n an increased risk of having a miscarriage at a minimum constitutes an
impairment falling outside the range of a normal pregnancy.” Spees, 617 F.3d at 396.
Here, as noted, Plaintiff objects to Ms. Doyle’s instructing Plaintiff to obtain a doctor’s
opinion regarding her medical condition and Ms. Doyle’s “(erroneous) concern about Plaintiff’s
history of multiple miscarriages, and that she was a high-risk pregnancy.” Pl.’s Objections 16.
Plaintiff’s objections are not well made.
Obtaining a doctor’s opinion, as noted, was required of all employees who brought a
medical condition to Defendant’s attention. This general policy was applied to Plaintiff because
she was one of Defendant’s employees, not because she was regarded as disabled.
Likewise, Ms. Doyle’s mention of miscarriages was not an expression of Ms. Doyle’s
perception of Plaintiff’s abilities, but in discussion of why Plaintiff’s own doctor imposed the
limitation. As noted, Ms. Doyle’s notes of the conversation record:
She was very tearful and sounded very upset. She stated “How am I going to
make my house payment?” I was very sympathetic, but said gently, “Jennifer,
you wouldn’t want to lose your baby.” She then said she had already had several
miscarriages. She continued to cry, but said maybe her doctor would lift the
restriction. I explained that if she had already lost babies, she would be high risk
and the doctor would probably not agree to lift them. However, I told her that if
the restrictions were lifted, and she brought a memo stating that she could work
with no restrictions, she would be able to work. I made it very clear that she
could not work until I received word of “no restrictions.” She stated OK and said
that she would be going to the doctor tomorrow.
Doyle Notes 1. Ms. Doyle did not express an opinion on whether Plaintiff’s pregnancy would
impair her ability to work— Ms. Doyle left that decision to Plaintiff’s doctor.
Plaintiff’s doctor, however, never lifted the restrictions. Thus, this case is distinguishable
from Spees, where the plaintiff initially received a “Certificate to Return to Work” from her
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doctor “that did not list any restrictions on her ability to [work].” 617 F.3d at 385. When the
plaintiff’s supervisor learned of the doctor’s recommendation, the supervisor instructed the
plaintiff to go back to her doctor and get a second note “limiting her to ‘light duty.’ ” Id. His
concerns were “in part driven by the fact that [the plaintiff] had complications with other
pregnancies before. ” Id. (quotation marks omitted). The plaintiff complied. Id. The doctor, in
turn, complied with the plaintiff’s request and restricted her to light duty though “[h]e testified
that . . . there was no medical reason to limit [the plaintiff’s] job duties.” Id. at 386. From this,
the Sixth Circuit inferred that the defendant may have regarded the plaintiff as having a
disability. Id. at 397.
Here, in contrast, there is no evidence that Defendant ignored the medical advice of
Plaintiff’s doctor. On the contrary, Ms. Doyle said that Plaintiff would be able to work if cleared
by her doctor. Plaintiff’s reliance on Spees is misplaced.
Plaintiff’s objection will be overruled.
E
Finally, Plaintiff objects that “the magistrate erred legally, by concluding that there was
insufficient evidence of FMLA interference.” Pl.’s Objections 17. Plaintiff elaborates that
“being required to take FMLA leave involuntarily, as Ms. Latowski was when she was forced
between taking FMLA leave in the middle of her pregnancy or losing her job, is an actionable
claim of FMLA interference.” Id. (citing Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir.
2007)). Plaintiff’s objection lacks merit.
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The Family Medical Leave Act provides: “It shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under this subchapter.” 29 U.S.C. § 2615(a)(1).
In Wysong, the Sixth Circuit explained that “an employee may have a claim under §
2615(a)(1) when an employer forces an employee to take FMLA leave when the employee does
not have a ‘serious health condition’ that precludes her from working.” 503 F.3d at 449 (citing
Hicks v. Leroy's Jewelers, Inc., No. 98-6596, 2000 WL 1033029, at *3-4 (6th Cir. July 17, 2000)
(unpublished); Megan E. Blomquist, A Shield, Not a Sword: Involuntary Leave Under the Family
and Medical Leave Act, 76 Wash. L. Rev. 509, 529–31 (2001)). But, crucially, the court
cautioned that “the employee’s claim ripens only when and if the employee seeks FMLA leave at
a later date, and such leave is not available because the employee was wrongfully forced to use
FMLA leave in the past.” Wysong, 503 F.3d at 449.
In this case, Plaintiff’s claim has not ripened. She did not seek FMLA leave at a later
date. She ended the employment relationship instead.
Plaintiff’s objection will be overruled.
III
Accordingly, it is ORDERED that Judge Binder’s report and recommendation (ECF No.
38) is ADOPTED.
It is further ORDERED that Plaintiff’s objections (ECF No. 39) are OVERRULED.
It is further ORDERED that Defendant’s motion for summary judgment (ECF No. 28) is
GRANTED.
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It is further ORDERED that Plaintiff’s second amended complaint (ECF No. 17) is
DISMISSED WITH PREJUDICE.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 27, 2012
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 27, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS
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