Norton v. LTCH et al

Filing 26

Opinion and ORDER Granting 14 MOTION for Summary Judgment and Dismissing 1 Complaint With Prejudice. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KATHLEEN NORTON,
Plaintiff,
v

Case No. 13-cv-13730
Honorable Thomas L. Ludington

LTCH d/b/a McLaren Bay Special Care and BAY
REGIONAL MEDICAL CENTER d/b/a McLaren
Bay Region,
Defendants.
__________________________________________/
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Kathleen Norton brought suit against her former employer alleging interference
and retaliation in violation of the Family Medical Leave Act (the “FMLA”). Norton had been
employed with Defendants1 for over seventeen years when she began suffering from severe
medical conditions that forced her to miss work. After Norton’s employment was terminated,
she sued Defendants for violations of her rights under the Family Medical Leave Act.
On June 20, 2014, Defendants moved for summary judgment on Norton’s claims,
claiming that she has not established a prima facie case of FMLA interference or retaliation.
Because Norton admits that she did not provide Defendants notice of her intent to take FMLA
leave as required for FMLA interference and retaliation claims, Defendants’ motion for summary
judgment will be granted.

1

Norton was employed by Defendant LTCH d/b/a McLaren Bay Special Care, and Defendant Bay Regional
Medical Center d/b/a McLaren Bay Region provided human resources support to LTCH. For simplicity, the Court
will treat the two defendants as one entity on their motion for summary judgment, but will nonetheless refer to them
as “Defendants”.

I
Norton was formerly employed as a Registered Nurse for Defendant McLaren Bay
Regional for over seventeen years. Pl.’s Resp., Ex. 1, ECF No. 16. As an at-will employee,
Norton was obligated to comply with the employer’s attendance and FMLA policies, as well as
the disciplinary guidelines. Despite receiving complimentary performance evaluations, Norton
violated the Attendance Policy, which provides:
An employee who accumulates three (3) absence periods in a rolling six-month
period is subject to corrective action (see Corrective Action policy) and,
ultimately, termination of employment if he or she fails to realign the
unacceptable behavior successfully (see Termination/Loss of Employment
policy). Such corrective actions are active for a twelve-month period from the
date of issuance.
Defs.’ Summ. J. Ex. B. at 1-2. The Corrective Action policy identifies a number of infractions
that, taken cumulatively, could result in termination.
Norton received several reprimands pursuant to the Attendance Policy. On January 28,
2013, Norton received a First Written Reprimand for tardiness. Def.’s Summ. J. Ex. K. Norton
received a Second Written Reprimand on February 13, id. Ex. L, and a Final Written Reprimand
on February 22, 2013, id. Ex. M. The Final Written Reprimand advised Norton that any further
violations of the Attendance Policy could result in termination of her employment. Id. Ex. M.
Norton admitted that she understood that any further attendance infractions could result in
termination. Id. Norton Dep. at 37.
A
In May 2013, Norton began experiencing “extreme dizziness accompanied by nausea . . .
and episodic photophobia . . . .” Pl.’s Resp. Ex. 1 at 107. Because of these symptoms, Norton
applied for intermittent leave pursuant to the FMLA, which was approved on July 17, 2013. Id.
Ex. 12. As a result of the approval, Defendants retroactively approved Norton for FMLA leave
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for June 6, 2013; June 7, 2013; June 11, 2013; and June 12 through June 26, 2013. Id. Ex. 13.
Thus, any tardies or absences on those days qualified as FMLA leave and did not count as
violations of Defendants’ Attendance Policy.
When an employee is approved for FMLA leave, Defendants require their employees to
comply with the procedures set forth in the FMLA Policy. See Defs.’ Mot. Summ. J., Ex. C. As
relevant here, the FMLA Policy requires that employees notify their department “no later than
two (2) hours prior to the start of the shift” that they need to take FMLA leave. Id., Ex. E at 5.
The FMLA Policy further warns that failure to comply can result in denial of FMLA leave. Id.
In addition to the general FMLA Policy, Norton received a specific notice informing her
of Defendants’ call-in procedures. The FMLA eligibility notice provided: “When you are calling
in for an FMLA day, you must call the FMLA Call Center phone number, in addition to your
normal call-in procedure. This will be the only way a FMLA day will be approved.” Pl.’s Resp.
Ex. 6.
Norton admits that she was familiar with the procedure for requesting leave under the
FMLA and had successfully followed the procedure in the past. Defs.’ Mot. Summ. J., Norton
Dep. 49.
B
The day after Norton was granted intermittent FMLA leave, on July 14, 2013, she
clocked-in two minutes late. Although Norton’s tardiness is not disputed, the parties provide
different accounts of what happened after her tardy clock-in. Although the Court must take the
facts in a light most favorable to the non-moving party, Norton, both accounts will be presented.

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i
According to Norton, she began experiencing vertigo and nausea as she prepared for
work on July 14, 2013. These symptoms continued as she drove to work, and she knew that the
symptoms were affecting her ability to drive: “I was suffering from some symptoms and had to
delay my arrival in order to get there safely . . . .” Defs.’ Mot. Summ. J., Norton Dep. 58.
Norton further contends that the “sudden onset of symptoms” made it impossible for her to
contact her department and advise them of her tardiness. Resp. at 5.
After clocking-in two minutes late, Norton proceeded to complete her shift. She admits
that she never told her supervisors or management the reason for her tardiness—not on July 14
and not at any other time. Pl.’s Resp., Ex. 1 at 50.
On July 18, 2013—four days after her late clock-in and one day after she had been
approved for retroactive FMLA leave—Norton’s supervisors requested that she attend a meeting
with them and a representative from Human Resources.
Norton recalls that there were three representatives from management in the meeting:
Monica Baranski, Cherri Burzynski, and Marilyn Bostick. However, Norton admits that she
cannot recall much of what happened during the meeting:
Q:

Do you recall the details of this meeting as we sit here today?

Norton:

I guess it would depend on what details you want to know.

Q:

Do you recall how long the meeting lasted?

Norton:

No, not specifically.

….
Q:

And as we’re sitting here now you’re telling me you don’t have
any specific recollections of what Marilyn said during the
meeting?

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Norton:

I mean no, I don’t have specific—I can’t give you a play-by-play
of what happened in that meeting. I can tell you that I, like I just
said, I was shocked at what was happening, I was feeling very
distressed and very sort of disoriented about the events that were
taking place at the moment.

Pl.’s Resp. Ex. 1 at 52.
At the meeting, management informed Norton that her employment had been terminated
due to her repeated violation of the Attendance Policy. Although Norton admits that she does
not remember specifics, she maintains that no one at the meeting asked her the reason for July 14
tardy. Pl.’s Resp. Ex. 1 at 51. Moreover, Norton claims that no one at the meeting took notes: “I
do not recall seeing them take notes.” Id. at 62. At the conclusion of the meeting, Norton claims
that she protested the termination, refused to sign the termination notice, and complained that
Defendants were inconsistently applying their Attendance Policy. Id. at 50. Defendants then
terminated Norton’s employment.
ii
Defendants dispute Norton’s memory of the July 18 meeting with HR. According to HR
Consultant Marilyn Bostick, Norton explained that she was tardy on July 14 because she was
waiting for the babysitter to arrive:
Q:

What do you recall from the discussions at the July 18th meeting?

Bostick:

That when we brought her in she – we talked about her being tardy
on Sunday, July 14th. And she up front indicated that she needed
to get a babysitter and she had to wait for that babysitter to arrive.

Q:

Was there any further discussion?

Bostick:

The further discussion was she kind of jumped into, as it indicates
in the notes, that she didn’t – she wasn’t disputing that she was
late; she need to get the babysitter and that she didn’t understand
why she was sitting there at the meeting because others had poor
performance and they were still here.

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Defs.’ Mot. Summ. J., Bostick Dep. at 9. When Ms. Bostick asked Plaintiff whether there was
any other reason for her late arrival, Norton reiterated that she had to wait for the babysitter to
arrive. Id. at 10. Ms. Bostick claims that she recorded Norton’s answers contemporaneously in
her notes. Id. Because Norton was tardy for an impermissible reason, Defendants terminated her
employment for violation of the Attendance Policy.
II
A motion for summary judgment should be granted if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look
in the record for evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the
evidence and draw all reasonable inferences in favor of the non-movant and determine “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251-52.
III
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., entitles eligible
employees to a total of twelve weeks of leave per year for various reasons, including leave due to
“a serious health condition that makes the employee unable to perform the functions” of her
position. 29 U.S.C. § 2612(a)(1)(D). When medically necessary, such leave may be taken
intermittently or on a reduced leave schedule. Id. § 2612(b)(1). The FMLA further entitles an

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eligible employee who takes leave under § 2612 to be reinstated upon her return from leave to
the position she held before the leave or to an equivalent position. See id. § 2614(a)(1).
Norton asserts two distinct theories for recovery under the FMLA: (1) Defendants
“interfered” with the exercise of her FMLA rights by “fail[ing] to designate [her] missed time as
FMLA-qualifying”; and (2) Defendants “retaliated” against her for exercising her FMLA rights
by terminating her employment. Compl. ¶ 48, 54; see Seeger v. Cincinnati Bell Tel. Co., 681
F.3d 274, 282 (6th Cir. 2012) (stating that the Sixth Circuit recognizes an “interference” theory
and a “retaliation” theory of recovery under the FMLA).
A
Norton first alleges that Defendants improperly interfered with the exercise of her FMLA
rights. Norton contends that her tardy clock-in on July 14, 2014, was the result of an FMLAqualifying condition, and therefore she was entitled to use her FMLA leave.

She further

contends that, by denying her the use of FMLA leave, Defendants interfered with her exercise of
her FMLA rights.
The FMLA provides that it is unlawful for employers to “interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. §
2615(a)(1). To establish a prima facie case of FMLA interference, an employee must show that;
(1) she was an eligible employee; (2) the defendant was an employer as defined under the
FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the
employer notice of her intention to take leave; and (5) the employer denied the employee FMLA
benefits to which she was entitled. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)
(citing FMLA, § 105(a)(1), 29 U.S.C. § 2615(a)(1)).

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i
Defendants contend that Norton cannot establish a prima facie case of FMLA
interference because she cannot show that gave notice of her intention to take leave. Defendants
note that Norton never provided notice—either the morning of July 14, 2014 or any time
thereafter—that her tardy clock-in was due to an FMLA-qualifying illness.
When FMLA leave is to be taken intermittently, the employee “shall advise the employer
as soon as practicable if dates of scheduled leave change or are extended, or were initially
unknown.” 29 C.F.R. § 825.302(a). Moreover, the regulations mandate that the employee give
sufficient information to the employer so that the employer is aware that the leave is due to an
FMLA-qualifying illness—even where, as here, the employer has already granted a prior request
for leave:
An employee shall provide at least verbal notice sufficient to make the employer
aware that the employee needs FMLA—qualifying leave, and the anticipated
timing and duration of the leave. . . .When an employee seeks leave due to a
FMLA—qualifying reason, for which the employer has previously provided
FMLA-protected leave, the employee must specifically reference the qualifying
reason for leave or the need for FMLA leave.
29 C.F.R. § 825.302(c). Importantly, the regulations make clear that an employee “has an
obligation to respond to an employer’s questions designed to determine whether an absence is
potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the
leave request may result in denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.” Id. In other words, the regulations impose two burdens
on an employee seeking FMLA leave: (1) the employee must provide sufficient notice to the
employer and (2) the employee must respond to an employer’s questions regarding whether an
absence is FMLA-qualifying. Id.

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Here, Norton did neither: she did not provide any notice to Defendants that she was
seeking FMLA leave for her July 14, 2014 tardy, nor did she bring up her FMLA-qualifying
reason during her July 18, 2014 termination meeting.
Norton admits that she did not call the FMLA Call Center on July 14, nor did she call
anyone else at Bay Special Care prior to coming to work that day. Defs.’ Mot. Summ. J., Norton
Dep. 50. Nor did she later provide any member of management with notice that her July 14
tardy was due to an FMLA-qualifying illness:
Q:

But specifically on the morning of July 14th, that Sunday, did you talk to
any member of management or HR about vertigo as it relates to your—

A:

On that day did I discuss it?

Q:

Correct.

A:

No. That was a Sunday.

Q:

Did you talk to any member of management on July 15th about your
tardiness on the 14th?

A:

No, I did not.

Q:

Did you talk to any member of management or HR on July 16th about
your tardiness on the 14th?

A:

I do not believe so, no.

Q:

How about July 17th, did you talk to Monica or any other member of
management or HR about your tardiness on the previous Sunday, the
14th?

A:

No. . .

Q:

After you were terminated did you ever call a member of management or
HR to say that the tardiness on July 14th was caused by FMLA or vertigo?

A:

No.

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Norton Dep. 55-56. Norton did not provide any notice to her employer that she needed to take
FMLA-qualifying leave on July 14. She did not provide any notice before arriving to work; she
did not provide notice immediately after the symptoms passed; she did not provide notice on the
day she took the allegedly-qualifying leave; and she did not provide notice during the next three
days.

Thus, Norton did not provide sufficient verbal notice to Defendants “as soon as

practicable” as required by the regulations.
Moreover, Norton admits that during the July 18, 2014 HR meeting, not only did she not
bring up FMLA, she did not provide any reason for tardiness at all:
Q:

Did you tell them why you were late on Sunday, July 14th?

A:

I don’t believe that I did.

Q:

Do you recall your need to setup care for your children as being why you
were late, telling them that was the reason you were late on July 14th?

A:

I do not recall saying that, no.

Norton Dep at 51.2 Even if, as Norton claims, she was unable to inform Defendants that she
would be tardy prior to clocking-in late, she has provided no explanation or excuse for not
providing later notice to them. She therefore has not met her obligations of providing sufficient
verbal notice to Defendants regarding whether her tardiness was FMLA-qualifying.
Accordingly, Norton cannot satisfy her prima facie burden, and her FMLA interference claim
will be dismissed.
ii
Norton, although admitting she did not provide actual notice to Defendants, nonetheless
advances several arguments that contend, in effect, that the failure to provide actual notice is not

2

Although Defendants claim that Norton admitted that her tardiness was the result of waiting for her babysitter, the
Court must construe all facts in a light most favorable to Norton, the non-moving party. Thus, Norton’s version of
the July 18, 2014 termination meeting will be accepted: that she did not provide any reason for her tardiness.

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dispositive. First, Norton unpersuasively claims that she provided sufficient notice because
management knew she suffered from vertigo. She explains that not only had she been previously
approved for FMLA-leave related to vertigo, she had suffered a severe vertigo incident only the
day before, on July 13th. She therefore contends that Defendants were on notice that her July
14th tardy may be the result of an FMLA-qualifying illness and should have inquired further.
Although the FMLA imposes an obligation on employers to inquire into whether an
absence or tardy is due to an FMLA-qualifying illness, 29 C.F.R. § 825.303(b), that obligation
only arises after an employee has provided adequate notice under the FMLA. Brenneman, 366
F.3d at 422 (“Once an employer receives sufficient notice that the eligible employee is
requesting leave for a FMLA-qualifying reason, the employer bears the burden to gather any
additional information necessary for the leave to all within the FMLA.”). Indeed, the FMLA
does not impose any affirmative duty on employers to inquire into the health of their employees,
without any notice from the employee. Id. (“The FMLA does not require an employer to be
clairvoyant.”); see de la Rama v. Illinois Dep’t of Human Servs., 541 F.3d 681, 687 (7th Cir.
2008) (“The FMLA does not require employers to play Sherlock Holmes, scanning an
employee’s work history for clue as to the undisclosed, true reason for an employee’s absence.”);
Brock v. United Grinding Tech., Inc., 257 F. Supp. 2d 1089, 1100 (S.D. Ohio 2003) (“To
interpret the FMLA in such a way that the employer must investigate an employee’s leave
whenever it is informed that the employee is ‘ill’ or ‘sick’ would certainly create a burden on the
employer that Congress did not intend.”).
Thus, although Norton is correct in noting that she need not expressly assert FMLA rights
or even mention the FMLA, she was nonetheless obligated to provide reasonably adequate notice
to apprise Defendants that her July 14 tardy was related to a serious health condition. See

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Gipson v. Yought Aircraft Indus., Inc., 387 F. App’x 548, 556 (6th Cir. 2010) (rejecting
argument that the employer had knowledge that employee’s subsequent absences were related to
serious health condition because the employer was aware that the employee’s prior absences
were related to a serious health condition). As explained above, Norton admits that she never
provided any explanation for her July 14 tardy, let alone an explanation that would provide
adequate notice under the FMLA to trigger an employer obligation to investigate.
Moreover, the fact that Norton had previously taken intermittent FMLA-leave for her
vertigo does not mean she provided sufficient notice of her intent to take FMLA leave on July
14, 2014.

Indeed, the Sixth Circuit expressly rejected this argument in Brenneman. In

Brenneman, the Sixth Circuit explained that, even though “defendant[-employer] knew the
plaintiff has diabetes and that plaintiff had FMLA-qualifying, diabetes-related absences [in the
past],” a phone call from plaintiff explaining that he “wasn’t doing well” that day was
insufficient notice. Thus, the mere fact that an employee has been approved for intermittent
FMLA-leave is, by itself, insufficient to trigger an obligation on the part of the employer to
investigate any absences or tardies. See Layman v. C & D Techs., Inc., 2004 WL 6074953, at
*13 (E.D. Tenn. Nov. 4, 2004) (“That C & D was aware of Layman’s prior medical condition
[for which she used FMLA leave] is inconsequential; Layman still failed to provide C & D any
information from which it could conclude that the May 2002 illness [at issue] was related to her
previous condition.”). Therefore, although Norton had been approved for intermittent leave and
had even taken leave in the past, these facts did not provide sufficient notice to Defendants that
her July 14 tardy may be due to an FMLA-qualifying illness, rather than for some other reason.
Alternatively, Norton claims that Defendants’ FMLA-notice policy—which requires
employees to provide two-hours’ notice before an absence or tardy—violates the FMLA. In

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addition, Norton contends that even if the policy does not violate the FMLA, the unpredictability
of her illness prohibited her from complying with Defendants’ call-in procedures.
The FMLA permits employers to condition FMLA-protected leave upon an employee’s
compliance with the employer’s usual notice and procedural requirements, absent unusual
circumstances. See Srouder v. Dana Light Axle Manufacturing, LLC, 725 F.3d 608, 614 (6th
Cir. 2013) (citing 29 C.F.R. § 825.302(d)). “Where an employee does not comply with the
employer’s usual notice and procedural requirements, and no unusual circumstances justify the
failure to comply, FMLA-protected leave may be delayed or denied.” 29 C.F.R. . § 825.302(d).
In the case of a medical emergency, Defendants’ FMLA-notice policy requires
employees to notify their department “no later than two (2) hours prior to the start of the shift”
that they need to take FMLA leave. Id., Ex. E at 5. In addition to giving notice to their
department, employees must also call Defendants’ FMLA Call Center. Pl.’s Resp. Ex. 6. But
even if an employee does not call before their shift, Defendants’ FMLA policy requires
employees to give notice “as soon as practicable, ordinarily within one or two business days
from the first occurrence.” Ex. C. at 4. Norton contends that she was unable to comply with this
policy because she was unable to predict the onset of vertigo incidents.
Even assuming that Norton’s failure to comply with Defendants’ FMLA call-in
procedures influenced her termination, she has not shown she was unable to comply with the
call-in procedures. Norton testified that she knew of the policy requiring employees to call-in
regarding FMLA-qualifying illnesses; she had previously used the FMLA Call Center number.
Defs.’ Mot. Summ. J., Norton Dep. 49. Moreover, she admits that she began experiencing
vertigo and accompanying symptoms before she left for work:
Q:

And it’s your testimony that sometime prior to seven a.m. while you were
at home you were having symptoms, experiencing vertigo, correct?
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A:

Yes. Yes, it is. Along with the vertigo though, we keep going back to just
the word vertigo, there were other symptoms, there was nausea, you know,
along with the vertigo.

Id. at 58. In addition, she admits that the symptoms were severe enough that she knew she would
need to delay her arrival to work: “I was suffering from some symptoms and had to delay my
arrival in order to get there safely so it wasn’t—I wasn’t anticipating needing to call either the
FMLA line or the supervisor because I was en route to work.”

Id.

Thus, somewhat

incongruously, Norton admits that she was suffering from symptoms severe enough that she
knew she would need “to delay her arrival to work,” yet she couldn’t “anticipat[e] needing to call
either the FMLA line or the supervisor . . . .” Id.
Norton has not shown that she was incapable of complying with Defendants’ FMLAnotice procedures, which require an employee to provide notice “as soon as practicable.”
Importantly, Norton never provided any notice to Defendant that she qualified for FMLA leave
on July 14, much less providing notice as soon as practicable. Moreover, Norton admits that she
was suffering symptoms at home before she left for work, and that she knew she would need “to
delay [her] arrival” due to those symptoms. Despite knowing that her vertigo may necessitate a
“delay”, she did not call-in to the FMLA Call Center. Instead, she drove to work, clocked-in
late, and did not provide any indication to management that her tardy was related to vertigo.
Because she was experiencing symptoms at home and knew those symptoms may affect her
arrival time, she did not give notice to Defendants as soon as was practicable. See Allen v. STHS
Heart, LLC, 2010 WL 2133901, at *8 (M.D. Tenn. May 21, 2010) (“If [plaintiff] was physically
able to drive, she was physically able to place a phone call before leaving the house. By waiting
until she arrived at work to notify her supervisor of her condition, she failed to give notice ‘as
soon as practicable under the facts and circumstances of the particular case.’”); Brenneman v.
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MedCentral Health Sys., 366 F.3d 412, 425 (6th Cir. 2004) (noting that an employee did not give
timely notice because he failed to notify his employer of unforeseeable FMLA leave once he was
“physically able to” do so). Thus, Norton did not provide Defendants with notice that she would
be tardy as soon as practicable, despite experiencing symptoms at home and knowing that those
symptoms would affect her arrival time.
B
Norton also alleges that Defendant improperly retaliated against her for exercising her
rights under the FMLA. FMLA retaliation claims arise under 29 U.S.C. § 2615(a)(2), which
provides that “it shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this subchapter.”
The key issue in an FMLA retaliation claim is “whether an employer retaliated or discriminated
against an employee because the employee invoked her FMLA rights.” Chavez v. Dakkota
Integrated Sys., LLC, 832 F. Supp. 2d 786, 799 (W.D. Ky. 2011) (emphasis added).
“To establish a claim of unlawful retaliation under the FMLA, a plaintiff must show (1)
that he availed himself of a protected right under the FMLA by notifying his employer of his
intent to take leave, (2) that he was adversely affected by an employment decision, and (3) a
causal connection between his exercise of a right under the FMLA and the adverse employment
decision. Gipson v. Vought Aircraft Indus., Inc., 387 F. App’x 548, 557 (6th Cir. 2010) (quoting
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001)) (internal quotation
marks omitted). Under a retaliation theory, the employer’s motive is an integral part of the
analysis; therefore, as part of the prima facie case, the employer must have notice that the
employee is invoking her FMLA rights. Edgar v. Jac Products, Inc., 443 F.3d 501, 508 (6th Cir.
2006) (“The employer’s motive is relevant because retaliation claims impose liability on

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employers that act against employees specifically because those employees invoked their FMLA
rights.”) (emphasis original).
Defendants claim that Norton cannot establish a prima facie case of retaliation because
she cannot show that she notified them of her intent to take FMLA leave on July 14, 2013.
Although Norton contends that her July 14 tardy was due to an FMLA-qualifying event, she
never provided notice to Defendants. Because she did not provide notice to Defendants, she
cannot meet the first requirement of a prima facie case for retaliation: that she availed herself of
a protected right under the FMLA by notifying her employer of her intent to take leave. See
Gipson v. Vought Aircraft Indus., Inc., 387 F. App’x 548, 557 (6th Cir. 2010). Accordingly,
Norton’s FMLA-retaliation claim will be dismissed.
IV
Accordingly, it is ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 14) is GRANTED.
It is further ORDERED that Plaintiff Norton’s Complaint (ECF No. 1) is DISMISSED
WITH PREJUDICE.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 9, 2014

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 9, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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