Clements v. Prudential Protective Services, LLC

Filing 28

OPINION and ORDER granting 23 Defendant's Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TELITHA L. CLEMENTS,
an Individual,
Plaintiff,

Case No. 11-13340

v.

Hon. Gerald E. Rosen

PRUDENTIAL PROTECTIVE
SERVICES, LLC,
a Domestic Limited Liability Company,
Defendant.

_________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
At session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on March 07, 2013
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court

I. INTRODUCTION
Plaintiff Telitha Clements commenced this action in this Court on July 29, 2011, alleging
that her employer, Defendant Prudential Protective Services, L.L.C. (“Prudential”), violated the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq., and Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2101 et seq., by interfering with her right to pregnancy,
1

and discriminating against her on the basis of sex and pregnancy. By motion filed on April 17,
2012, Defendant seeks summary judgment in its favor on all of Plaintiff’s claims. However, in
her Response to Defendant’s Motion, Plaintiff concedes that no issue of material fact exists with
regard to her Title VII and ELRCA sex and pregnancy discrimination claims, and she does not
contest the dismissal of those claims. As a result, only Plaintiff’s FMLA claim remains for
adjudication.
Defendant argues that it is entitled to summary judgment on Plaintiff’s FMLA claim
because Plaintiff failed to provide proper notice of her need for leave pursuant to Defendant’s
customary procedures. Alternatively, Defendant claims that Plaintiff was not restored to her
security guard position upon her return from her pregnancy leave because of a reduction in hours
and security officers at her former job site. Defendant further contends that Plaintiff has not been
discharged, remains listed as Defendant’s employee, and may seek a new assignment at a
different job site.
In her Response Brief, Plaintiff contends that Defendant had no internal policy regarding
FMLA requests; that Defendant is estopped from asserting that Plaintiff did not follow proper
notice procedures, where Defendant first failed to provide Plaintiff any notice of her FMLA
rights; and that Defendant interfered with Plaintiff’s FMLA rights when it did not return her to
the same or a substantially equivalent position upon her return from leave, even though
equivalent positions were readily available.
Having reviewed Defendant’s Motion and accompanying exhibits, Plaintiff’s Response,
and the remainder of the record, the Court finds that the relevant allegations, facts, and legal
arguments are adequately presented in these written submissions, and that oral argument would
not aid the decisional process. Accordingly, the Court will decide Defendant’s Motion “on the
2

briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). This Opinion and Order sets forth
the Court’s ruling.
II.

FACTUAL BACKGROUND

Defendant Prudential Protective Services is a limited liability company in the business of
providing security services to entities and individuals at various locations in the State of
Michigan, including the New Center, Fisher, and Kahn Buildings (“New Center”) in Detroit.
Plaintiff Telitha Clements began working for Prudential as a security guard at the New Center in
October 2006. Plaintiff had been working at the New Center for many years under other
employers prior to her employment by Prudential. During the entire time she worked at the New
Center for various employers, including Defendant Prudential, Plaintiff’s supervisor was Lamont
Lively (“Lively”). Lively was Plaintiff’s day-to-day supervisor: he scheduled her to work and
provided all direction regarding her position. He also had the authority to hire, fire, and
discipline employees, and to approve or disapprove vacation requests. [Lively Dep., pp. 6, 20,
44].
While working as a security guard for Prudential, Plaintiff became pregnant with her
second child in October 2008, with a due date of June 2, 2009. This pregnancy gave rise to the
present action.1

1

Although Plaintiff’s first pregnancy is not the subject of this suit, it is the subject of some
dispute. Plaintiff contends that, when she needed time off in 2006 for the birth of her first child,
Lively coordinated Plaintiff’s entire leave, including her return to work. [Plaintiff’s Dep., pp. 1718]. Defendant conversely alleges that, at the time, Lively directed Plaintiff to report to the
personnel office to inform the company of her pregnancy, and that Plaintiff acted accordingly.
[Lively Dep., pp. 60-61]. Whatever the arrangement, Plaintiff’s deposition statements
concerning the 2006 leave indicate that she was satisfied with the outcome. [Plaintiff’s Dep., p.
19]. Plaintiff had been working as a command center operator prior to the 2006 leave, but there
were no openings for that position when she was ready to return. Plaintiff was then reassigned to
3

In late 2008 or early 2009, when she was approximately four months pregnant, Plaintiff
informed Lively that she would need time off for the birth of the child. Lively again assisted
Plaintiff with her leave of absence, including ensuring that Plaintiff took her vacation prior to
maternity leave so she would not lose any time previously accrued. Id. at p. 44. At that time,
Lively allegedly informed Plaintiff that she would need to contact personnel at Defendant’s main
office in order to properly schedule her maternity leave. Id. at pp. 22, 34-35, 45, 60-61. It is
undisputed that none of Lively’s discussions with Plaintiff involved an explanation or
information about the FMLA.2 Id. at pp. 44-45. It is also undisputed that neither Plaintiff nor
Lively contacted Defendant’s main office regarding Plaintiff’s maternity leave prior to the birth
of her second child. [Plaintiff’s Dep., p. 27; Lively Dep., p. 50].
Plaintiff left work on May 23, 2009 and her second child was born on June 9, 2009.
Beginning on June 19, 2009 and continuing through October 2, 2009, Plaintiff and Lively had
several conversations concerning Plaintiff’s return to work at the New Center buildings. [Lively
Dep., p. 49]. Throughout these conversations, Lively consistently informed Plaintiff that the
number of employees and employee-hours assigned to the New Center buildings had been
substantially reduced, that his own hours had been cut, that there were no openings at the site,
and that he could not put her back on the New Center schedule. [Plaintiff’s Dep., pp. 60-72,
117-118; Lively Dep., p. 49]. There is some dispute as to whether or not Lively instructed
Plaintiff to report to Defendant’s main office to request a new assignment at a different location.

work as a security guard -- normally a lower paid position -- at the same pay rate as her prior
position. [Lively Dep., p. 24].
2

Deposition statements by Defendant’s vice-president indicate that Prudential does not provide
its employees with information regarding the FMLA at any time during their employment, even
if they ask for leave, other than referring them to the Act. [Keywell Dep., pp. 65-69].
4

[Plaintiff’s Dep., pp. 71-72, 116-118; Lively Dep., p. 49]. In any event, Plaintiff understood that
she was employed by Defendant -- rather than by a particular job site -- and that she could go to
Defendant’s main office to be reassigned to work at locations other than the New Center
buildings. [Plaintiff’s Dep., pp. 116-118].
Plaintiff visited Defendant’s main office on at least two occasions between July and
September of 2009; however, she never affirmatively requested a new assignment. Id. at pp. 116118. Instead, Plaintiff went to Defendant’s office to obtain documentation necessary to obtain a
deferral of her credit card payments and to file for unemployment benefits. Id. at p. 86. During
one such visit on August 24, 2009, Plaintiff obtained a letter from Danielle Todaro, an employee
in Defendant’s Human Resources department, stating:
To Whom It May Concern:
Talitha Clements is currently laid off from Prudential Protective Services. She
left on maternity leave on May 23rd. When a position becomes available she will be
called back to work. . . .
______/s/________
Danielle Todaro
Human Resources
[Defendant’s Ex. F.]
However, Plaintiff alleges that no one at Defendant’s office ever offered her a new
position at a different site. [Plaintiff’s Dep., p. 112].
Defendant, on the other hand, contends that its vice-president, Matthew Keywell, asked
Plaintiff during the same August 24, 2009 office visit why she was requesting deferral forms
when she was not laid off and there were positions available at other site locations. [Keywell
Dep., pp. 78-84]. Defendant further claims that Plaintiff indicated to Keywell that she was not
interested in a new position and that she just wanted the form to be filled out. Based on
5

Plaintiff’s remarks, Keywell opted to not provide her with information about specific job
openings. Defendant, however, alleges that Plaintiff remains listed as an employee for
Defendant to this day, and that she can be assigned to work immediately, should she so request.
[Defendant’s Ex. G].
Plaintiff continued calling Lively on a weekly basis until October 2009, but was never
reinstated to her position at the New Center buildings. [Plaintiff’s Dep., pp. 67-72].
On February 3, 2010, Plaintiff filed a Charge of Discrimination alleging sex and
pregnancy discrimination with the E.E.O.C. The EEOC investigation was subsequently
dismissed, and on May 24, 2011 she was issued a Right to Sue letter. On July 29, 2011, Plaintiff
initiated this action. After the close of discovery, Defendant filed the present motion for
summary judgment.
III.
A.

DISCUSSION

APPLICABLE STANDARDS
Through its present motion, Defendant seeks an award of summary judgment in its favor

on Plaintiff’s claim of interference with her FMLA rights.3 Summary judgment is proper if the
moving party “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). As the Supreme Court has
explained, “the plain language of Rule 56[] mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

3

Defendant’s motion also challenges Plaintiff’s claims of sex and pregnancy discrimination, but,
as noted, Plaintiff does not contest dismissal of these claims.
6

In deciding a motion brought under Rule 56, the Court must view the evidence in a light most
favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir. 2006). Yet,
the nonmoving party may not rely on mere allegations or denials, but must “cit[e] to particular
parts of materials in the record” as establishing that one or more material facts are “genuinely
disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any supporting or opposing affidavits or
declarations “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). Finally, “the mere existence of a scintilla of evidence that supports the
nonmoving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814
(alteration, internal quotation marks, and citation omitted).
The Court will apply the foregoing standards in deciding Defendant’s Motion for
Summary Judgment in this case.
B.

PLAINTIFF’S FMLA CLAIM
In its Motion, Defendant argues that it is entitled to summary judgment on Plaintiff’s

FMLA claim because Plaintiff failed to comply with FMLA notice requirements prior to going
on pregnancy leave. Defendant further contends that Plaintiff has suffered no prejudice from any
alleged FMLA violations on Defendant’s part, where reinstatement at Plaintiff’s former job site
was impossible due to a reduction in hours and security officers beyond Defendant’s control, and
Plaintiff voluntarily failed to seek reassignment to a different job site despite having the
knowledge and ability to do so.

7

1.

DEFENDANT IS ESTOPPED FROM DENYING LIABILITY BASED UPON
PLAINTIFF’S NON-COMPLIANCE WITH FMLA NOTICE REQUIREMENTS
The Family Medical Leave Act of 1993, 29 U.S.C. § 2601et seq. (the “FMLA”), entitles

an eligible employee to a total of 12 weeks of leave per year for various reasons, including
“[b]ecause of the birth or a son or daughter of the employee and in order to care for such son or
daughter.” 29 U.S.C. § 2612(a)(1)(A). The Act further entitles an eligible employee who takes a
leave under § 2612 for the intended purpose of the leave to be reinstated upon her return from
leave to the position she held before the leave or to an equivalent position. See 29 U.S.C. §
2614(a)(1).
Two distinct theories for recovery on FMLA claims are recognized in the Sixth Circuit:
(1) the “entitlement” or “interference” theory, and (2) the “retaliation” or “discrimination”
theory. See Arban v. West Publishing Corp., 345 F.3d 390, 400-401 (6th Cir. 2003). The
“entitlement” or “interference” theory arises from 29 U.S.C. § 2615(a)(1), which states that “[i]t
shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided in this subchapter,” and from § 2614(a)(1), which
provides that “any eligible employee who takes leave ... shall be entitled, on return from a such
leave (A) to be restored by the employer to the position of employment held by the employee
when the leave commenced; or (B) to be restored to an equivalent position.” Arban at 401. The
“retaliation” or “discrimination” theory arises from § 2615(a)(2), which provides that “[i]t 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.” Id. Plaintiff here has
not alleged a retaliation or discrimination claim.

8

To prevail on an FMLA interference claim, Plaintiff must establish: (1) she was an
eligible employee; (2) Defendant was an employer as defined under the FMLA; (3) she was
entitled to leave under the FMLA; (4) she gave Defendant notice of her intention to take leave;
and (5) Defendant denied her FMLA benefits to which she was entitled. Killian v. Yorozu
Automotive Tennessee, Inc., 454 F.3d 549, 556 (6th Cir. 2006).
Defendant does not dispute that Plaintiff was an eligible employee; that Defendant was
an employer; or that Plaintiff was entitled to FMLA leave by virtue of her pregnancy. Rather,
Defendant attacks the fourth prong of Plaintiff’s interference claim by arguing that Plaintiff did
not give Defendant proper notice of her intention to take FMLA leave. Specifically, Defendant
argues that Plaintiff failed to follow its customary procedures regarding leave requests, which
allegedly entail contacting personnel at Defendant’s main office.
“[T]o invoke the protection of the FMLA, an employee must provide notice and a
qualifying reason for requesting the leave.” Brohm v. JH Properties, Inc., 149 F.3d 517, 523 (6th
Cir. 1998). “[T]he critical question is whether the information imparted to the employer is
sufficient to reasonably apprise it of the employee’s request to take time off for a [qualifying
reason].” Moorer v. Baptist Memorial Health Care System, 398 F.3d 469, 488 (6th Cir. 2005).
The FMLA notice requirements for an employee are outlined in more detail under 29 C.F.R.
§ 825.302. When leave is foreseeable, “[a]n employee must provide the employer at least 30
days advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). “When an
employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.302(c).
But “[w]hen 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
9

qualifying reason for leave or the need for FMLA leave.” Id. Further, “[a]n employer may
require an employee to comply with the employer’s usual and customary notice and
procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R.
§ 825.302(d) (emphasis added). “An employee also may be required by an employer’s policy to
contact a specific individual.” Id. “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.” Id
Defendant relies on these regulations in arguing that Plaintiff’s failure to contact
personnel at Defendant’s main office is fatal to her FMLA claim. According to Defendant, it
was Defendant’s policy that all leave requests are handled through the main office, and Plaintiff
was accordingly directed to make arrangements for her pregnancy leave with the main office.
Defendant further asserts that Plaintiff knew this was the company’s policy because she followed
this procedure with her first pregnancy leave.
Plaintiff does not allege that any unusual circumstances hampered her ability to comply
with Defendant’s customary leave procedures; instead, Plaintiff challenges the existence of any
such internal procedures. To that end, Plaintiff points to deposition testimony of Defendant’s
vice-president, Matthew Keywell. Keywell testified that directing employees with leave issues
to Defendant’s main office “is just a matter of what [Lively] does” and not necessarily a
company-wide policy. [Keywell Dep., pp. 27-29]. According to Keywell, there is nothing in
writing, and the company has no employee handbook or other written materials delineating its
leave policy. Id., at pp. 28-29, 67.
From the foregoing it is apparent that a factual dispute exists as to Plaintiff’s compliance
with the relevant FMLA employee notice provisions. In the light most favorable to the
10

nonmoving party, Plaintiff has complied with the express notice requirements set forth in 29
C.F.R. § 825.302. For instance, Plaintiff informed her supervisor that she was pregnant more
than 30 days before going on leave. Whether or not this was Plaintiff’s first time requesting
maternity leave, that verbal notice and other conversations between Plaintiff and Lively were
sufficient to make Defendant aware of Plaintiff’s need for FMLA-qualifying leave, as well as the
anticipated timing and duration of the leave. Thus, unless Defendant had additional notice
requirements in place to handle FMLA-qualifying leave requests, Defendant cannot defeat the
fourth prong of Plaintiff’s FMLA interference claim at the summary judgment stage. Killian, 454
F.3d at 556. Whether or not Defendant has an internal policy regarding FMLA notice -- with
which Plaintiff may or may not have complied -- constitutes a genuine issue of fact.
Additionally, Plaintiff argues that Defendant should be estopped from claiming that she
failed to comply with FMLA requirements, including those regarding notice. Plaintiff’s estoppel
argument is based on her claim that Defendant failed to notify its employees (including Plaintiff)
of their FMLA leave rights as required by the relevant regulations. [Keywell Dep., pp. 28-29, 6568]. Specifically, Plaintiff argues that Defendant failed to comply with FMLA requirements
regarding employer’s notice and posting obligations set forth in 29 U.S.C. § 2619 and 29 C.F.R.
§ 825.300(a). Section 2619 reads:
Each employer shall post and keep posted, in conspicuous places on the premises
of the employer where notices to employees and applicants for employment are
customarily posted, a notice, to be prepared or approved by the Secretary, setting
forth excerpts from, or summaries of, the pertinent provisions of this subchapter
and information pertaining to the filing of a charge.
29 U.S.C. § 2619(a). Further, 29 C.F.R. § 825.300(a) provides that:
If an FMLA-covered employer has any eligible employees, it shall also provide
this general notice to each employee by including the notice in employee
handbooks or other written guidance to employees concerning employee benefits
11

or leave rights, if such written materials exist, or by distributing a copy of the
general notice to each new employee upon hiring.
29 C.F.R. § 825.300(a)(3) (emphasis added).
Plaintiff contends that Defendant failed to post a conspicuous notice and failed to provide
additional FMLA information to its employees. Defendant counters that it did post a
conspicuous FMLA notice in its main office and also in the “sign in” room (the “Old Command
Center”) at the New Center, thereby bringing Defendant in compliance with 29 U.S.C. § 2619.
However, Defendant’s vice-president testified that Prudential has no employee handbook or
other written materials concerning employee leave rights. [Keywell Dep., p. 28]. By law,
therefore, Defendant is also required to distribute a copy of the FMLA general notice to its
employees upon hiring. Yet, the record shows that Defendant does not provide its employees
with information regarding the FMLA at any time during their employment. Id., at 65-67. And, if
one of Defendant’s employees asks for leave, Defendant merely instructs the employee to look
up the statute. Id. at pp. 68-69.
Because Defendant did not itself comply with its notice obligations under the Act, it
cannot rely on Plaintiff’s non-compliance with its internal leave-notice procedures to deny
liability. “[T]he [FMLA] regulations . . . provide that a non-posting employer is estopped from
taking adverse action against an employee who fails to furnish the employer with advance notice
of a need to take FMLA leave.” Hendry v. GTE North, Inc., 896 F. Supp. 816, 828 (N.D. Ind.
1995) (internal citations omitted). “Thus, if [the employer] has not properly posted the notice,
[the employer] may now be estopped from asserting that [the employee] failed to furnish them
proper advance notice of her need to take FMLA leave.” Id. See also Stubl v. T.A. Systems, Inc.,
984 F. Supp. 1075, 1087 (E.D. Mich. 1997) (because the employer “failed to inform [the
12

plaintiff] of his rights and obligations under the Act [the plaintiff’s] failure to provide medical
certification to comply with [the employer’s] internal procedures does not preclude him from
being covered by the Act.”) Stated differently, if Defendant failed to fulfill its own FMLA duties
regarding notice, it cannot defeat Plaintiff’s FMLA claim by alleging Plaintiff did not follow its
internal procedures. Therefore, Defendant is not entitled to summary judgment based on
Plaintiff’s failure to provide proper notice of her intent to take an FMLA pregnancy leave.
2.

PLAINTIFF HAS FAILED TO SHOW SHE SUFFERED DAMAGES RESULTING
FROM DEFENDANT’S ALLEGED NON-COMPLIANCE WITH FMLA NOTICE
REQUIREMENTS
To the extent that Plaintiff seeks to recover from Defendant for its failure to provide her

with notice of her FMLA rights or the failure to specifically offer her FMLA leave when she
notified her employer of her pregnancy,4 she has not established that she suffered any prejudice
as a result thereby. Rather, it appears that Plaintiff wishes to recover from Defendant based on
these violations per se, and not for any damages they may have proximately caused her.
An employer who prevents or impedes an employee from exercising his or her FMLA
rights is liable to the employee for, as appropriate, damages and equitable relief. 29 U.S.C. §§

4

  It is not entirely clear that Plaintiff is alleging a separate claim for these technical statutory

violations. She merely states, in passing, in one sentence at the end of her estoppel argument:
Defendant violated the FMLA when it interfered with Plaintiff’s FMLA rights by failing
to inform her of her eligibility to take FMLA leave within five days of her notification to
Lamont Lively that she needed to take maternity leave, failing to inform her that she was
entitled to 12 weeks of leave, and failing to provide her notice of her other rights and
responsibilities under the FMLA.
[See Plaintiff’s Response Brief, p. 13.]
For the sake of completeness, the Court will treat this allegation of technical violation of
the statute as a separate claim. 
13

2615(a), 2617(a). To state such a claim, however, the employee must prove that the employer:
(1) interfered with his or her exercise of FMLA rights; and (2) caused prejudice thereby.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167
(2002). Actionable interference exists where the employer impedes, restrains, or denies the
exercise of any rights protected the FMLA. 29 C.F.R. § 825.220(a). Prejudice exists where an
employee loses compensation or benefits “by reason of the violation,” 29 U.S.C. §
2617(a)(1)(A)(i)(I); sustains other monetary losses “as a direct result of the violation,” §
2617(a)(1)(A)(i)(II); or suffers some loss in employment status remediable through “appropriate”
equitable relief, § 2617(a)(1)(B).
As the Supreme Court of the United States explained:
To prevail under the cause of action set out in § 2617 [of the FMLA], an
employee must prove, as a threshold matter, that the employer violated § 2615 by
interfering with, restraining, or denying his or her exercise of FMLA rights. Even
then, § 2617 provides no relief unless the employee has been prejudiced by
the violation: The employer is liable only for compensation and benefits lost “by
reason of the violation,” § 2617(a)(1)(A)(i)(I), for other monetary losses sustained
“as a direct result of the violation,” § 2617(a)(1)(A)(i)(II), and for “appropriate”
equitable relief, including employment, reinstatement, and promotion, §
2617(a)(1)(B). The remedy is tailored to the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (emphasis added); see also
Edgar v. JAC Products, Inc., 443 F.3d 501, 507-08 (6th Cir. 2006) (“[T]he FMLA is not a strictliability statute . . . . Employees seeking relief under the [interference] theory must therefore
establish that the employer’s violation caused them harm”); Harris v. Gov’t of Nashville &
Davidson County, Tennessee, 594 F.3d 476, 482 (6th Cir. 2010) (“the FMLA provides no relief
unless the plaintiff has been prejudiced by the violation.”); Tippens v. Airnet Sys., Inc., 2007 WL
1026954 at *7 (S.D. Ohio, Mar. 30, 2007) (“Ragsdale makes clear that Plaintiff must show

14

some prejudice as a result of Defendant’s failure to provide notice of designation of leave as
FMLA time.”)
Here, Plaintiff has not articulated how Defendant’s alleged failure to notify her of her
FMLA rights or specifically offer her FMLA leave caused her any damages. It is undisputed that
Plaintiff was provided with the pregnancy leave she requested. Therefore, she cannot show she
was harmed by her employer’s failure to post or otherwise provide her with notice of her
statutory right to take a pregnancy leave.5 Therefore, the Court will grant summary judgment in
favor of the Defendant on Plaintiff’s claim of Defendant’s technical violation of the statute for
failure to notify her of her FMLA rights or “offer” her FMLA leave.
3.

NO GENUINE ISSUE OF MATERIAL FACT EXISTS WITH REGARD TO
DEFENDANT’S FAILURE TO RESTORE PLAINTIFF TO THE POSITION SHE
HELD WHEN THE LEAVE COMMENCED OR TO AN EQUIVALENT POSITION
At the heart of Plaintiff’s Amended Complaint is her claim that Defendant interfered with

her FMLA rights when it allegedly failed to return Plaintiff to the same or an equivalent position
of employment. Unlike her other two alleged FMLA violations, Plaintiff has set forth sufficient
allegations that Defendant’s failure to reinstate Plaintiff proximately caused her damages. The
relevant statutory section provides that:
[A]ny eligible employee who takes leave under [the FMLA] for the intended
purpose of the leave shall be entitled, on return from such leave (A) to be restored
by the employer to the position of employment held by the employee when the
leave commenced; or (B) to be restored to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment.

5

Additionally, Plaintiff’s claim that Defendant interfered with her right to receive a copy of the
FMLA general notice upon her hiring is time-barred. The statute of limitations for an FMLA
case is two years, 29 U.S.C. § 2617(c)(1), and three years if the violation is willful, 29 U.S.C.
§ 2617(c)(2). Plaintiff began working for Defendant in 2006, but did not file this lawsuit until
2011, making this aspect of her FMLA claim untimely under either limitations period.

15

29 U.S.C. § 2614(a)(1). But the FMLA does not give employees an absolute right to return to
work at the end of a qualifying leave. Notably, “[a]n employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period.” 29 C.F.R. 825.216(a); see also Arban v.
West Publishing Corp., supra, 345 F.3d at 402 (quoting Gunnell v. Utah Valley State Coll., 152
F.3d 1253, 1262 (10th Cir. 1998)) (“[A]n employee who requests FMLA leave would have no
greater protection against his or her employment being terminated for reasons not related to his
or her FMLA request than he or she did before submitting that request.”). For instance, “[i]f an
employee is laid off during the course of taking FMLA leave and employment is terminated, the
employer’s responsibility to continue FMLA leave . . . and restore the employee cease at the time
the employee is laid off, provided the employer has no continuing obligations under a collective
bargaining agreement or otherwise.” 29 C.F.R. 825.216(a).
In FMLA interference cases where the employer has offered a legitimate reason unrelated
to the exercise of FMLA rights for its actions, the Sixth Circuit applies the McDonnell Douglas
regime traditionally used in employment discrimination cases. Donald v. Sybra, Inc., 667 F.3d
757, 762 (6th Cir. 2012). To deny an employee’s FMLA right to restoration, the employer must
first be able to show that the employee “would not otherwise have been employed at the time
reinstatement is requested . . . .” Id. Thus, the FMLA requires the employer to bear the initial
burden of proving that the employee “would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration.” Id. If the defendant proffers such a
justification, the plaintiff must then seek to rebut that reason by a preponderance of the evidence.
Arban, 345 F.3d at 401. “[A] plaintiff can refute the legitimate, nondiscriminatory reason that an
16

employer offers to justify an adverse employment action by showing that the proffered reason (1)
has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Grace v. USCAR, 521 F.3d 655, 670 (6th Cir.
2008) (citations and internal punctuation omitted).
The record establishes that Defendant has met its initial burden and has shown that
Plaintiff would have been laid off had she not been on leave. The following record facts are
undisputed: Defendant was suffering from economic decline as it relates to the New Center
buildings; Defendant informed Plaintiff when she attempted to return from leave that there was
no work available for her at the New Center buildings; Plaintiff’s supervisor informed her she
should report to Defendant’s main office for reassignment; and Plaintiff did not report to the
main office and request reassignment to an equivalent position. Defendant further contends that
the lack of available work is consistent with Defendant’s execution of unemployment forms and
the layoff letter attributed to Danielle Todaro which specifically states that Plaintiff was laid off
while she was on maternity leave. [Defendant’s Ex. F]. In short, Defendant argues that
reinstatement at Plaintiff’s former job site was impossible due to a reduction in hours and
security officers beyond Defendant’s control -- a legitimate, nondiscriminatory reason unrelated
to the Plaintiff’s exercise of her FMLA rights -- and that Plaintiff was in the same situation she
would have been in, had she not gone on leave: laid off and eligible for reassignment.
Crucially, Plaintiff has failed to contest the legitimacy of Defendant’s reason for her
layoff. In her Response to Defendant’s Motion, Plaintiff did not argue that the proffered reason
has no basis in fact, did not actually motivate Plaintiff’s layoff, or was insufficient to warrant
Defendant’s failure to reinstate her. Grace, 521 F.3d at 670. As a result, Defendant’s
uncontested, legitimate, and nondiscriminatory reason for refusing to restore her to a position in
17

the New Center is fatal to her FMLA claim. “Both the [FMLA] statute and [Department of
Labor] regulation likewise establish that interference with an employee’s FMLA rights does not
constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA
rights for engaging in the challenged conduct.” Edgar v. JAC Products, Inc., supra, 443 F.3d at
(6th Cir. 2006) (citing Arban v. West Pub. Co., 345 F.3d 390, 401 (6th Cir. 2003) (“An
employee lawfully may be dismissed, preventing him from exercising his statutory rights to
FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the
employee’s request for or taking of FMLA leave.”); Thornberry v. McGehee Desha County
Hosp., 403 F.3d 972, 979 (8th Cir. 2005) (“As long as an employer can show a lawful reason,
i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee
on FMLA leave to her position, the employer will be justified to interfere with an employee’s
FMLA leave rights.”)).
Because Defendant has advanced a legitimate reason for not reinstating Plaintiff
unrelated to the exercise of her FMLA rights, and because Plaintiff has failed to show a genuine
issue of material fact remains as to the circumstances of her layoff, Defendant is entitled to
summary judgment on Plaintiff’s FMLA claim.

18

IV.

CONCLUSION

For all of the foregoing reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s April 17, 2012
Motion for Summary Judgment [Dkt. # 23] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint be DISMISSED, in its
entirety, with prejudice.
Let Judgment be entered accordingly.

Dated: March 7, 2013

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF JUDGE, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, Thursday, March 7, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

19