Demyanovich v. Cadon Plating & Coating, et al
Filing
16
MEMORANDUM and ORDER granting in part and denying in part 7 Defendants' Motion to Dismiss, and denying 7 Defendants' Motion for Summary Judgment. Signed by District Judge Avern Cohn. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALAN DEMYANOVICH,
Plaintiff,
Case No. 10-15119
HON. AVERN COHN
-vsCADON PLATING AND COATINGS, LLC, and
AL ENSIGN,
Defendants.
/
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS, AND DENYING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is an employment discrimination case under the Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2601-2654, and Americans with Disabilities Act (ADA), 42 U.S.C. §§
12111-12117, with pendant state law claims. Plaintiff Alan Demyanovich (Demyanovich)
claims that his employer, Defendant Cadon Plating and Coatings, LLC (Cadon), and his
supervisor, Defendant Al Ensign (Ensign) (collectively, defendants), discriminated against
him by denying him medical leave, and retaliated against him by giving him discriminatory
work assignments and ultimately terminating him.
The complaint is in seven counts as follows:1 (I) FMLA Interference; (II) FMLA
Retaliation; (III) ADA Interference; (IV)
Michigan Persons with Disabilities Civil Rights
Act (PWDCRA), M.C.L. §§ 37.1101-37.1607; (V) Intentional Infliction of Emotional Distress
1
Both ADA claims are brought against Cadon only; the remaining claims are
brought against both defendants.
(IIED); (VI) Civil Conspiracy; and (VII)
ADA Retaliation.
Now before the Court is defendants’ motion for summary judgment as to the ADA
retaliation claim and motion to dismiss as to the remaining claims.2 For the reasons that
follow, defendants’ motion to dismiss will be denied in part and granted in part: the FMLA
interference and FMLA retaliation claims will go forward and the other claims will be
dismissed. Defendants’ motion for summary judgment as to the ADA retaliation claim will
be denied.
II. BACKGROUND
Demyanovich began working as a machine operator at Cadon in 1989. Cadon
provides advanced corrosion-resistant coatings to the manufacturing and automobile
industries.
Ensign was Demyanovich’s supervisor.
After 10 years of employment,
Demyanovich was diagnosed with dilated cardiomyopathy.3 Following the diagnosis,
Demyanovich‘s doctors prohibited him from heavy lifting and working over 40 hours per
week. He was granted FMLA leave at various times during the ten years following his
diagnosis for various health reasons. He was also denied leave during this period.4
In December of 2009, after taking extended FMLA leave due to the cardiomyopathy,
Demyanovich returned to work with doctor prescribed work limitations on exertion and
hours worked per week. Upon his return, he was assigned additional, more difficult tasks,
2
Contrary to the Court’s motion practice guidelines relating to summary judgment
motions, the parties did not file a joint statement of material facts in dispute.
3
Dilated cardiomyopathy is a heart disease, having genetic and environmental
causes; the heart is weakened and enlarged.
4
A further description of the details surrounding the grant and denial of FMLA
leave is not described in the parties’ papers.
2
allegedly in retaliation for taking leave. According to Demyanovich, defendants ignored his
work limitations and did not provide him with requested accommodations, assigning more
favorable work to employees who were not considered disabled.
On February 26, 2010, defendants terminated Demyanovich for violating company
attendance policies. Demyanovich claims that defendants used his FMLA leave against
him in determining that his absences exceeded those allotted by the attendance policy. He
says that defendants terminated him because of his disability.
Demyanovich filed an EEOC charge of discrimination on March 15, 2010. (Doc. 72). According to Demyanovich, on or around September 7, 2010, the EEOC issued a
cause determination in favor of him. On October 27, 2010, Demyanovich received a rightto-sue letter from the EEOC. On December 23, 2010, the present lawsuit was filed.
III. ANALYSIS
A. Motion to Dismiss: Counts I-VI
1. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the sufficiency of a complaint. To survive the motion, the complaint's
“factual allegations must be enough to raise a right to relief above the speculative level on
the assumption that all of the allegations in the complaint are true.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545 (2007); see also Ass’n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007). This Court is “not bound to accept as true
a legal conclusion couched as factual allegation.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.
Ct. 1937, 1950 (2009) (internal quotation marks and citation omitted). Moreover, “[o]nly a
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complaint that states a plausible claim for relief survives a motion to dismiss.” Id.
In sum, a complaint must contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.” Id. at 1949 (internal quotation marks and
citation omitted). “[D]etermining whether a complaint states a plausible claim is contextspecific, requiring the reviewing court to draw on its experience and common sense.” Id.
at 1940.
2. FMLA Interference
a.
The FMLA provides eligible employees with not more than 12 weeks of unpaid leave
for reasons that include “serious health conditions” making the employee unable to perform
his or her job. 29 U.S.C. § 2612(a)(1)(D); Harris v. Metro. Gov’t of Nashville, 594 F.3d 476,
482 (6th Cir. 2010). An employee returning to work after taking leave has the right to be
“restored by the employer to the position of employment held by the employee when the
leave commenced” or “to an equivalent position with equivalent employment benefits, pay
and other terms and conditions of employment.” § 2614(a)(1)(A)-(B).
For an FMLA interference claim, a plaintiff must establish five elements: 1) he was
an eligible employee; 2) his employer was a covered employer, as defined by the statute;
3) he was entitled to leave under the FMLA; 4) he gave defendant notice of his intent to
take this leave; and 5) defendant denied him FMLA benefits or interfered with his FMLA
rights. Harris, supra, at 482.
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b.
Defendants first argue that Demyanovich did not sufficiently state the third or fourth
FMLA interference elements: that he gave defendants notice of his intention to take leave,
and that defendants denied him leave. Second, defendants argue that Demyanovich did
not sufficiently set forth facts to support the first element: that he was eligible for FMLA
leave. Particularly, defendants say that Demyanovich did not state that his heart disease
involved inpatient care or continuous treatment by a health care provider, as required by
29 U.S.C. § 2611(11).
Demyanovich does not respond directly to the defendants’ argument that he did not
state facts related to the notice and denial requirements of this claim. However, in
response to eligibility, Demyanovich explains that cardiomyopathy “obviously requires ongoing treatment” and that he “continually” produced work restrictions from his doctors as
evidence of this treatment.
c.
As to the notice element, Demyanovich’s complaint asserts generally that “from time
to time over the past 10 years, plaintiff has requested . . . leave under FMLA.” (Doc. 1, p.
11). As to the wrongful denial element, Demyanovich claims that he was wrongfully denied
FMLA leave “on certain occasions.” (Doc. 1, p. 12.). Finally, as to eligibility, his complaint
states that he has a “serious health condition” which was treated by a health care provider.5
5
Demyanovich does not expressly state whether his condition required inpatient
care. However, 29 U.S.C. § 2611(11) defines a “serious health condition” as requiring
either inpatient care or continuous treatment by a health care provider, not both.
5
Albeit brief, Demyanovich’s complaint sufficiently establishes the plausibility of an
FMLA interference claim. Iqbal, supra, at 1949 (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
Accordingly, dismissal is not
warranted.
3. FMLA Retaliation
a.
Relating to Demyanovich’s FMLA retaliation claim, the statute makes it unlawful for
an employer to “discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2). Employers
cannot “‘use the taking of FMLA leave as a negative factor in employment actions.’” Arban
v. West Pub. Corp., 345 F.3d 390, 403 (6th Cir. 2003) (quoting 29 C.F.R. § 825.220(c)).
This is true even if only a portion of the leave taken by an employee in violation of the
employer’s attendance policy and resulting in adverse employment action is FMLA leave.
See Hodgens v. General Dynamics Corp., 144 F.3d 151, 163 (1st Cir. 1998). Further, the
“FMLA does not permit an employer to limit his employee’s rights by denying them
whenever an employee fails to comply with internal procedural requirements that are more
strict than those contemplated by the FMLA.” Cavin v. Honda of America Manufacturing,
Inc., 346 F.3d 713, 720 (6th Cir. 2003) (finding FMLA interference where plaintiff was
terminated for not notifying his employer of his leave within three days of his motorcycle
accident and subsequent leave, pursuant to its internal policies).
“In order to establish a case of retaliatory discharge, plaintiff must prove (1) that he
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engaged in an activity protected by [the FMLA]; (2) that this exercise of his protected civil
rights was known to defendant; (3) that defendant thereafter took an employment action
adverse to the plaintiff; and (4) that there was a causal connection between the protected
activity and the adverse employment action.” Canitia v. Yellow Freight System, Inc., 903
F.2d 1064, 1066 (6th Cir. 1990) (citing Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987)).
b.
Defendants argue that Demyanovich did not satisfy the first element, that he was
engaged in a protected activity, because he did not specify when and why he sought leave.
They also argue that he did not allege facts describing the circumstances surrounding the
complaints he made about their “discriminatory practices.”
Defendants argue that
Demyanovich did not expressly state that he was fired for taking FMLA leave. Instead, they
assert that he may have been fired for taking non-FMLA leave, explaining that not all leave
is necessarily FMLA leave. Finally, defendants assert that Demyanovich’s complaint is
merely conclusory, comparing him to the plaintiff in Khalik v. United Airlines, 2010 WL
5068139 (D. Colo. Dec. 7, 2010), who did not sufficiently state her retaliation claim because
she failed to explain “when she sought leave, why she sought leave, or the reasons for the
denial” or “when, how, and to whom she complained.” Id. at *4, *6.
In response, Demyanovich argues that his complaint is more detailed than the
plaintiff’s in Khalik, supra, because he provided the reason, i.e., cardiomyopathy, for taking
the FMLA leave that resulted in adverse employment actions.
He maintains that
defendants retaliated against him for taking FMLA leave and for complaining about
defendants’ “discriminatory and illegal employment practices” by giving him additional and
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more difficult work assignments.
c.
Here, although Demyanovich’s claim regarding his leave is not excessively detailed,
it need not be. His complaint states that he requested leave, that he was granted leave,
and the date of his return. Further, as to causation, Demyanovich states defendants told
him that “despite his approved medical leave, his absences were being used against him
for purposes of administering the defendant’s attendance policies.” (Doc. 1, p. 32.) He
also claims that he was fired for violation of these policies. Finally, Demyanovich’s
complaint describes being assigned difficult tasks in retaliation upon returning from his
extended leave. Although he does not provide examples of what these tasks entailed, he
does indicate when they took place, stating that from December 14, 2009, until his
termination, he was frequently assigned additional responsibilities. (Doc. 1, pp. 13, 33).
He also describes the circumstances surrounding these assignments, explaining that right
before his work load increased in size and difficulty, shortly after returning from his FMLA
leave, defendants told him that “despite his approved medical leave, his absences were
being used against him for purposes of administering the defendant’s attendance policies”
(Doc. 1, p. 32).
Further, the fact that only a few months passed between his return to work in
December of 2009 and his termination for violation of attendance policies on February 26,
2010, tends to show that these two occurrences were related. Indeed, temporal proximity,
although insufficient on its own to establish retaliation, may raise an inference that the
protected activity was the reason for the adverse employment action when weighed with
additional evidence. Joostberns v. United Parcel Services, Inc., 2006 WL 41189, at *9 (6th
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Cir. Jan. 9, 2006) (holding plaintiff established a prima facie case of FMLA retaliation where
plaintiff’s supervisor made negative comments about his absences, disciplinary actions
against plaintiff began two months after returning from first FMLA leave, and plaintiff was
terminated three weeks after second FMLA leave).
In sum, Demyanovich has sufficiently set forth facts describing his granted FMLA
leave, the adverse employment actions he faced upon return from leave, and the temporal
connection between these events, in order to establish causation. These are not mere
conclusory statements; they are factual allegations which plausibly demonstrate that
Demyanovich was discriminated against in retaliation for taking FMLA leave. Thus, the
FMLA retaliation claim will not be dismissed.
4. ADA Interference
a.
Defendants next argue that Demyanovich’s ADA interference claim against Cadon
should be dismissed. “To establish a prima facie case of disability discrimination, a plaintiff
must show . . . that he is ‘disabled.’” Anderson v. Avon Products, Inc., 340 Fed. Appx. 284,
288 (6th Cir. 2009) (unpublished) (quoting Monette v. Electronic Data Sys. Corp., 90 F.3d
1173, 1186 (6th Cir.1996)). “‘Disabled’ in this context means having ‘a physical or mental
impairment that substantially limits one or more of the major life activities of [an]
individual[.]’” Anderson, supra (quoting 42 U.S.C. § 12102(1)(A)). “The plaintiff bears the
burden of proving that he is disabled.” Anderson, supra (citing Monette, 90 F.3d at 1186).
Finally, “[i]t is insufficient for individuals attempting to prove disability status . . . to merely
submit evidence of a medical diagnosis of an impairment.” Id. “Instead, the ADA requires
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those claiming the Act's protection to prove a disability by offering evidence that the extent
of the limitation . . . is substantial.” Id. (quoting Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S. 184, 198 (2002) (internal quotation marks and citation omitted)).
b.
Here, Demyanovich makes a general claim that he suffers from cardiomypathy, and
says that he is a “‘qualified individual with a disability’ as that term is defined in 42 U.S.C.
1211(8).” (Doc. 1). However, he fails to identify in his complaint any major life activity that
his condition substantially limits. As a result, Demyanovich has failed to meet his burden
of establishing that he is disabled under the ADA. See Anderson, supra, at 288. Thus,
dismissal of the ADA claim is warranted.
5. PWDCRA
a.
Defendants next argue that Demyanovich’s state PWDCRA claim should be
dismissed. “To prove a discrimination claim under the [PWDCRA], the plaintiff must show
(1) that he is [disabled] as defined in the act, (2) that the [disability] is unrelated to his ability
to perform his job duties, and (3) that he has been discriminated against in one of the ways
delineated in the statute.” Peden v. City of Detroit, 470 Mich. 195, 217 (2004) (quoting
Chmielewski v. Xermac, Inc., 457 Mich. 593, 601 (1984)). “[L]ike the ADA, the PWDCRA
generally protects only against discrimination based on physical or mental disabilities that
substantially limit a major life activity.” Peden, supra, at 204.
A violation of the ADA does not constitute a violation of the PWDCRA per se; a
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separate analysis of claims under each statute must be made. Peden, supra, at 217
(“because the acts are not identical, and because federal laws and regulations are not
binding authority on a Michigan court interpreting a Michigan statute, we caution against
simply assuming that the PWDCRA analysis will invariably parallel that of the ADA”). On
the other hand, these statutes have a majority of elements in common thus the analysis is
“essentially the same.” Id. (“the ADA's qualified language and the PWDCRA's disability
language require essentially the same analysis”) (internal quote marks omitted).
b.
As with the ADA interference claim, Demyanovich’s complaint does not contain any
facts explaining how his cardiomyopathy impairs any major life activity, nor that the
impairment is substantial. Additionally, Demyanovich has not sufficiently described the
discrimination he faced regarding accommodations or being limited or segregated. Finally,
Demyanovich offers no facts that other similarly situated people who were not disabled
were treated more favorably than him. Accordingly, the PWDCRA fails for the same
reasons that the ADA interference claim fails. Because this claim has not been sufficiently
detailed, it will be dismissed.
6. IIED
a.
As to Demyanovich’s IIED claim, pursuant to Michigan law, a plaintiff must establish
the following elements for a claim of IIED: 1) extreme and outrageous conduct; 2) intent or
recklessness; 3) causation; and 4) severe emotional distress. Roberts v. Auto-Owners Ins.
Co., 422 Mich. 594, 602 (1985). Each of these elements must be stated with specificity.
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Walsh v. Taylor, 263 Mich. App. 618, 634 (2004) (“[The] plaintiff’s complaint fails to allege
with specificity any actions taken by [the defendant] with intent or recklessness, and thus
fails to state a valid claim for relief.”). “‘An employee’s termination, even if based upon
discrimination, does not rise to the level of extreme and outrageous conduct without proof
of something more.’” Talley v. Family Dollar Store of Ohio, Inc., 542 F.3d 1099, 1111 (6th
Cir. 2008) (quoting Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999)).
b.
Defendants argue that Demyanovich has not set forth sufficient facts to support a
claim for IIED and has merely restated the elements of the claim. Additionally, defendants
argue that termination of an employer on the basis of discrimination does not rise to the
level of extreme and outrageous conduct on its own.
In response, Demyanovich reiterates that he has suffered severe emotional distress
inflicted by defendants by terminating him.
c.
Demyanovich does not provide facts to support that he has suffered from severe
emotional distress or that defendants’ conduct was extreme and outrageous. Further, he
does not provide any facts regarding defendants’ intent or recklessness. Indeed, the Sixth
Circuit has determined that the mere firing of an employee does not, in and of itself,
constitute extreme and outrageous conduct. See Talley, supra, at 1111.
Thus, even though Demyanovich claims that the defendants’ act of terminating him
was “extreme and outrageous,” he has not stated provided any facts to support this legal
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conclusion. Accordingly, the IIED claim cannot survive defendants’ motion to dismiss.
7. Conspiracy
a.
To prevail with a civil conspiracy claim, a plaintiff must show the involvement of two
or more people in a concerted action undertaken to accomplish an unlawful purpose or a
lawful purpose by unlawful means. Mays v. Three Rivers Rubber Corp., 135 Mich. App.
42, 48 (1984). “Under Michigan law, in a civil action for damages for conspiracy, ‘the gist
or gravamen of the action is not the conspiracy but is the wrongful act causing the damage.
The conspiracy standing alone without commission of acts causing damage would not be
actionable.’” Glidden Co. v. Jandernoa, F. Supp. 2d 541, 555 (W.D. Mich. 1998) (quoting
Roche v. Blair, 305 Mich. 608 (1943)); see also Chilton’s, Inc. v. Wilmington Apartment Co.,
365 Mich. 242, 250 (1961) (holding that a motion to dismiss for failure to state a claim for
conspiracy to commit fraud was properly granted where plaintiff’s complaint did not allege
any affirmative, fraudulent act of the defendants)).
b.
Defendants argue that Demyanovich’s complaint does not state any concerted
actions between the defendants, nor did he sufficiently state an underlying tort in order to
demonstrate a wrongful act committed by defendants.
Demyanovich does not address defendants’ argument. However, his complaint
states that defendants unlawfully discriminated and retaliated against him together as
members of a conspiracy.
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c.
Because a conspiracy claim cannot exist without an underlying tort, and because
Demyanovich did not claim a concerted effort between the defendants in violation of the
FMLA, a plausible claim for relief has not been established. Thus, the claim will be
dismissed.
B. Motion for Summary Judgment: Count VII
1. Standard of Review
As to the remaining claim of ADA retaliation, defendants move for summary
judgment. Summary judgment is appropriate where “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). “A genuine issue of material fact exists when, ‘there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’”
White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir. 2010) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). However, the non-moving
party must present some evidence to show a genuine issue for trial exists. “[I]f the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 476 (quoting Anderson, supra, at 249-50) (internal quotation marks
omitted).
2. ADA Retaliation
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a.
The ADA prohibits an employer from retaliating against an employee because of his
or her engagement in a protected activity. 42 U.S.C. § 12203(a). The elements of an ADA
retaliation claim are: 1) the plaintiff engaged in a protected activity; 2) the exercise of his
civil rights was known by the defendant; 3) defendant thereafter took adverse employment
action; and 4) a causal connection exists between the protected activity and the adverse
action. Walborn v. Erie County Care Facility, 150 F.3d 584, 589-90 (6th Cir. 1998); EEOC
v. Perfection Steel Treating, Inc., 2000 WL 246597, at *2 (E.D. Mich. Feb. 8, 2000).
Further, “[t]he exhaustion of administrative remedies is a condition precedent to an
ADA action.” Hoover v. Timken Co., 2002 WL 314951, at **1 (6th Cir. Feb. 26, 2002). In
order to exhaust administrative remedies under the ADA, a plaintiff must file an EEOC
charge within 80 days of the alleged discrimination, or file a charge with a state agency
within 300 days. Id. After the EEOC dismisses the charge and issues a right-to-sue letter,
the plaintiff has 90 days to file his civil action. Id. The requirement of administrative
exhaustion “serves a legitimate state interest in requiring parties to exhaust administrative
remedies before proceeding to court, for such a rule prevents having an overworked court
consider issues and remedies available through administrative channels.” Jimmy Swagart
Indus. v. Board of Equalization of California, 493 U.S. 378, 397 (1990) (internal quotation
marks and citation omitted).
b.
Defendants argue that Demyanovich’s EEOC charge is deficient because only the
“sex” and “disability” discrimination boxes were checked, and not the “retaliation” checkbox.
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On this narrow ground, defendants argue that Demyanovich has not exhausted his
administrative remedies thus entitling them to summary judgment.
In response, Demyanovich says that the “checkbox rule” does not necessarily apply
to pro se litigants, which Demyanovich was at the time the EEOC charge was filed.
Particularly, during oral argument, Demyanovich cited Chavez v. Waterford School Distr.,
720 F. Supp. 2d 845 (E.D. Mich. 2010), for the proposition that “EEOC charge[s] filed by
lay complainants should be liberally construed, because they are unschooled in the
technicalities of the law and proceed without counsel.” Id. at 853. Chavez holds that
“where the claimant is unrepresented, a broader reading of the charge is compelled.” Id.
(citing Tisdale v. Federal Express Corp., 415 F.3d 516, 527 (6th Cir. 2005)).
Defendants reply that Chavez is distinguishable from the present case and instead
argue that Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010) applies. In
Younis, the Sixth Circuit court of appeals held that while a pro se claimant’s charge must
be liberally construed, the claim must nonetheless be precluded “unless the factual
allegations in the complaint can be reasonably inferred from the facts alleged in the
charge,” as otherwise it cannot reasonably be expected to grow out of the charge such that
the EEOC was put on notice. See Younis, supra, at 362; see also Scott v. Eastman Chem.
Co., 275 Fed. Appx. 466, 475 (6th Cir. 2008) (“[The plaintiff] failed to exhaust her hostile
environment claim, as she offered no evidence that the EEOC actually investigated this
claim or that such claims could reasonably be expected to grow out of the charge.”).
Defendants say that Demyanovich’s ADA retaliation claim cannot be found to have grown
out of the facts set forth in the EEOC charge. The Court disagrees.
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Here, Demyanovich’s EEOC charge states, “On February 23, 2010, I was terminated
by my employer, when they refused to entertain a reasonable accommodation for my
disability (which was requested both verbally and in writing in the past.” (Doc. 7-2, p. 4).
Based on this statement, one could infer that the EEOC was effectively put on notice for
a potential retaliation claim. That is, even under the rule set forth in Younis, an ADA
retaliation could have reasonably been expected to grow out of the facts alleged in
Demyanovich’s charge. Thus, the claim is not precluded simply because Demyanovich
failed to check the retaliation box. Davis v. Sodexho, 157 F.3d 460, 463 (6th Cir. 1998)
(“where facts related with respect to the charged claim would prompt the EEOC to
investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on
that claim”). Accordingly, defendant is not entitled to summary judgment.
V. Conclusion
For the reasons stated above, defendants’ motion to dismiss is DENIED, as to
the FMLA interference and FMLA retaliation claims; and GRANTED, as to the ADA
interference, PWDCRA, IIED, and Civil Conspiracy claims. Finally, defendants’ motion
for summary judgment as to the ADA retaliation claim is DENIED.
SO ORDERED.
Dated: July 25, 2011
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, July 25, 2011, by electronic and/or ordinary mail.
S/Julie Owens
Case Manager, (313) 234-5160
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