Sturdivant v. Westin Hotel Management

Filing 32

OPINION AND ORDER granting 19 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JUANITA STURDIVANT,
Plaintiff,
v.

Case No. 12-10148
Honorable Patrick J. Duggan

WESTIN HOTEL MANAGEMENT, d/b/a
STARWOOD HOTEL & RESORTS
WORLDWIDE, INC.,
Defendant.
_______________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
In this action, Plaintiff claims that Defendant violated Michigan’s Persons with
Disabilities Civil Rights Act (“PWDCRA”) when it terminated her employment allegedly
because she suffered from cancer. Plaintiff’s complaint, filed on or about December 13,
2011 in state court and removed to federal court on the basis of diversity jurisdiction on
January 12, 2012, includes a single count asserting discrimination in violation of the
PWDCRA. Defendant contends that Plaintiff does not qualify as a person with a
disability under the statute and that it terminated Plaintiff’s employment in any event, not
because of her medical condition, but because she repeatedly violated its time and
attendance policy.
Presently before the Court is Defendant’s motion for summary judgment, filed
pursuant to Federal Rule of Civil Procedure 56 on November 15, 2012. After receiving
an extension of time to do so, Plaintiff filed a response to the motion on January 15, 2013.

Defendant filed a reply on January 28, 2013. This Court has issued a notice informing the
parties that it is dispensing with oral argument with respect to Defendant’s motion
pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons that
follow, the Court now grants Defendant’s motion.
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate

“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 central
inquiry is “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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
After adequate time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence of an element essential to
that party’s case and on which that party bears the burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
The movant has the initial burden of showing “the absence of a genuine issue of
material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon
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which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient.
See Liberty Lobby, 477 U.S. at 252, 106 S. Ct. at 2512.
“A party asserting that a fact cannot be or is genuinely disputed” must designate
specifically the materials in the record supporting the assertion, “including depositions,
documents, electronically stored information, affidavits or declarations, stipulations,
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). The
court must accept as true the non-movant’s evidence and draw “all justifiable inferences”
in the non-movant’s favor. See Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513.
II.

Factual and Procedural Background
In September 2008, Plaintiff was hired to work as a Room Attendant at

Defendant’s Westin Book Cadillac (“Westin”) property in Detroit, Michigan. She
remained in this position until her termination in April 2011. Plaintiff was a member of
and represented by the Hotel Employees and Restaurant Employees Union, Local 24
during the course of her employment. Plaintiff’s job responsibilities included cleaning
and resetting guest bedroom and bathroom areas, organizing and stocking cleaning carts,
organizing linen closets on assigned floors, and accurately completing assigned
paperwork in a timely manner. (Def.’s Mot. Ex. B.) Plaintiff’s supervisor throughout her
employment was the Director of Housekeeping, Ardis Ogden.
When she was hired, Plaintiff received a copy of Defendant’s handbook and time
and attendance policy. (Def.’s Mot. Ex. A at 60, 65.) She testified during her deposition
in this case that she understood the policy, including that she was subject to discipline up
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to and including termination as outlined in the policy. (Id.) Defendant’s time and
attendance policy provides in part:
Time & Attendance Policy: Tardiness, and Time clock punches will be
measured in terms of excused or unexcused: An excused absence, or
tardiness is one due to the following reasons: personal illness or illness of
immediate family member up to 3-days, or validated by a physician’s
statement after the third day, hospital confinement, occupational injury, jury
duty or mandated court subpoena, prearranged and approved leave of
absence, death in one’s immediate family, natural catastrophe, car trouble if
documentation provided is acceptable to employer. All unreported
absences are unexcused (see below).
An unexcused absence or tardiness is one that is not covered by one of the
above excuses. All unreported absences are unexcused. Incidents of
absence reported less than two hours before your scheduled shift begins are
unexcused. An unexcused absence or tardiness will be grounds for
disciplinary action.
...
TARDINESS: Late is defined as [seven (7)]1 minutes late to your work
area. ...
(Def.’s Mot. Ex. C, emphasis in original.) The policy outlines the disciplinary action for
tardiness and absenteeism:
DISCIPLINARY ACTION FOR ACCUMULATED TARDINESS
AND ABSENTEEISM (EXCUSED & UNEXCUSED)
Each of the following shall be considered a “violation” and will result in
write-up/disciplinary action:

1

The version of the policy offered by the parties is dated June 22, 2011, and states
that an employee is “late” if he or she arrives eight (8) minutes late to his or her work
area. (See Def.’s Mot. Ex. C; Pl.’s Resp. Ex. 18.) Plaintiff testified at her deposition that
the version of the policy in effect during her employment defined late as being seven (7)
minutes late to one’s work area. (Def.’s Mot. Ex. A at 64-65.)
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1.
2.
3.

3 infractions (tardiness, absenteeism or performance/conduct) in 30-days.
5 infractions (tardiness, absenteeism or performance/conduct) in 60-days.
Established negative pattern of tardiness or absenteeism

FIRST VIOLATION:
SECOND VIOLATION:
THIRD VIOLATION:
FOURTH VIOLATION:

Written verbal warning
Written warning
Final warning
Termination
(all within a rolling 12-month period)

(Id., emphasis in original.)
An addendum to Defendant’s handbook also addressed attendance and punctuality.
(Id. Ex. E; see also Ex. A at 66.) This document provides in part:
Consistency in attendance and punctuality are two key character traits of the
successful Westin Associate.
However, sometimes unexpected situations arise and events transpire that
cause schedule conflicts and delays in transportation. Should that happen, it
is important that you contact your Supervisor as soon as you know that you
will be late. Please notify your Supervisor no later than two (2) hours in
advance of your scheduled shift (or longer if required by local policy or
practice). If you are unable to reach your supervisor, leave a message with
whomever the General Manager has designated to receive associate calls in
the absence of the supervisor. . . .
If proper and timely notification is not made, the absence or tardiness must
be considered unexcused for that day. . . .
Continuous unexcused tardiness or absenteeism of any time frame may
result in disciplinary action, up to and including termination of
employment. . . .
(Id. Ex. E.)
Defendant had a process by which an employee could request a switch in
scheduled days to allow a requested day off, without using any of the employee’s

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vacation. Plaintiff was aware of and used this process in 2010 for oral surgery (March 24
and 25 and April 6 and 9), to make a graduation party for her son (June 19), to attend a
wedding (July 25), for a court appearance (September 1), for a dentist appointment
(November 16), and vacation (November 22 through 28). (Def.’s Mot. Ex. G.) Through
this process, Plaintiff also requested days off in 2011 for doctors’ appointments (January
26 and February 17). (Id.) Ms. Ogden granted each of Plaintiff’s requests. (Id.)
For most of her employment, Plaintiff was scheduled to being work at 8:30 a.m.
According to Defendant, Plaintiff’s start time was moved to 8:45 a.m. in October 2010,
effective November 7, 2010. (Def.’s Mot. Ex. I.) According to Ms. Ogden, this
adjustment was made to accommodate Plaintiff’s reported need for more time to transport
her son to school in the morning. (Id. Ex. H ¶ 4.) But Plaintiff testified during her
deposition that this document was incorrect and her start time did not change at this point.
(Def.’s Mot. Ex. A at 76.) Plaintiff and Defendant agree, however, that on January 19,
2011, Plaintiffs’ schedule was adjusted to move her start time to 9:00 a.m. (Id.; Ex. J.)
Ms. Ogden states in an affidavit that Plaintiff requested this later start time because her
move to Canton from Detroit made her commute to work longer. (Id. Ex. H ¶ 5.)
Defendant’s warnings to Plaintiff concerning her tardiness and/or absences began
in December 2010. During that month, Plaintiff was tardy on three occasions as follows:
12/1/10 arriving at 9:14 a.m.; 12/4/10 arriving at 10:19 a.m.; and 12/10/10 arriving at 9:25
a.m. (Def.’s Mot. Ex. K; Ex. S.) Defendant issued a written “verbal warning” to Plaintiff
on December 14, 2010, which she signed. (Id. Ex. L.) Plaintiff committed three
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additional infractions of Defendant’s time and attendance policy in January 2011: a tardy
arrival (10:19 a.m.) on 1/2/11; a “call off” on 1/8/11; and a tardy arrival (9:26 a.m.) on
1/21/11. (Def.’s Mot. Ex. M; Ex. S.) Defendant therefore issued a first written warning
to Plaintiff on January 25, 2011, which she signed. (Id. Ex. N.)
On March 23, 2011, Defendant issued Plaintiff a second written warning due to
her accumulation of four additional attendance infractions within thirty days, including
three tardy arrivals on February 25 (arriving at 9:15 a.m.), March 16 (arriving at 9:35
a.m.), and March 18 (arriving at 9:18 a.m.), and a call off on March 22. (Def.’s Mot. Ex.
M; Ex. O; Ex. S.) Defendant issued a final written warning to Plaintiff on April 26, 2011,
due to tardy arrivals on March 23 (9:56 a.m.), March 24 (9:13 a.m.), April 6 (9:18 a.m.),
and April 14 (9:12 a.m.). (Id. Ex. M; Ex. Q; Ex. S.) Plaintiff indicated that her tardiness
on April 6 was due to her taking her son to school, and that her April 14 tardiness resulted
from having to pick up her car from the mechanic. (Id. Ex. Q; see also id. Ex. A at 86.)
When Plaintiff accumulated two additional attendance infractions on April 24 (arriving at
10:22 a.m.) and April 27 (calling off), Defendant terminated her employment. (Id. Ex. M;
Ex. S.) The decision to terminate Plaintiff was made by Defendant’s Human Resources
Coordinator, Darlene Jackson, and its Director of Human Resources, Diane Tunstall. (Id.
Ex. F ¶ 3; Ex. T ¶ 2.)
On April 28, 2011, Plaintiff filed a grievance with respect to her termination.
(Def.’s Mot. Ex. U.) Prior to this action, she had neither complained about the warning
she had received, contended that her unexcused absences or tardy arrivals should have
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been excused, nor offered explanations for most of the infractions. On May 4, 2011,
Plaintiff, her union representative, Ms. Jackson, and Ms. Tunstall met to discuss
Plaintiff’s termination and grievance. As a result of that meeting, Plaintiff was offered a
“Last Chance Agreement” which provided that Westin had cause to discharge Plaintiff
under its time and attendance policy but would rehire Plaintiff if inter alia she provided
Defendant, within 90 days of the signed agreement, a doctor’s note releasing her to work
without restrictions. (Id. Ex. W.)
Plaintiff and her union representative signed the agreement on June 28, 2011, and
Ms. Tunstall signed the agreement on behalf of Defendant on July 6, 2011. Plaintiff,
however, never presented Defendant with the required doctor’s note and there is no
evidence that she had any contact with Defendant after her surgery in May 2011 about
resuming her employment. Ms. Tunstall contacted Plaintiff’s union representative
regarding Plaintiff on several occasions between July 6 and October 4, 2011, but was told
the union had not heard from Plaintiff since she signed the Last Chance Agreement.
(Def.’s Mot. Ex. F ¶ 9.) Apparently, Plaintiff was not cleared to work until November or
December 2011, and was subjected to restrictions that prevent her from performing the
Room Attendant position at the Westin. (Def.’s Mot. Ex. A at 25-28.)
As indicated previously, Plaintiff initiated this lawsuit against Defendant on or
about December 13, 2011, alleging that her termination was in violation of the
PWDCRA. Plaintiff claims that she became ill around the time that her tardy arrivals and
absences started to accumulate and then was diagnosed with and was being treated for
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sarcoma cancer on her right lung. Plaintiff believes that, due to her condition and need
for medical appointments and testing to address her condition, her absences and tardiness
should have been considered excused. In response to Defendant’s motion for summary
judgment, she submits records reflecting the various doctors’ appointments and testing
she underwent between January and April 2011, as well as trips to the emergency room.
(Pl.’s Resp. Exs. 1, 3, 5, 6-9, 11-12, 14-15, 19.)
Plaintiff asserted during her deposition in this case and states in an affidavit
submitted in response to Defendant’s motion that Ms. Ogden was aware of her condition
as early as December 2010 when she first began feeling ill. (See, e.g., Def.’s Mot. Ex. A
at 51-52, 66-67, 104-06; Pl.’s Resp. Ex. 20.) Plaintiff testified and restates in her
affidavit that she informed Ms. Ogden of her cancer diagnosis on or about the same day
that she received the diagnosis. (Def.’s Mot. Ex. A at 104-05; Pl.’s Resp. Ex. 20 ¶¶ 2223.) Ms. Ogden denies knowing about Plaintiff’s illness or cancer diagnosis until the day
the termination decision was communicated to Plaintiff by Human Resources. (Def.’s
Mot. Ex. H ¶ 9.) Ms. Jackson and Ms. Tunstall also claim to have had no knowledge of
Plaintiff’s illness or cancer diagnosis prior to or at the time they decided to terminate her.
(Id. Ex. F ¶ 3; Ex. T ¶ 2.)
III.

Applicable Law and Analysis
Absent direct evidence of disability discrimination, as is the case here, a court

must evaluate a plaintiff’s claims under the PWDCRA by applying the familiar burdenshifting test established by the United States Supreme Court in McDonnell Douglas
9

Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Hazle v. Ford Motor Co.,
464 Mich. 456, 462, 628 N.W.2d 515, 520-21 (2001). First, the plaintiff must establish a
prima facie case of discrimination by presenting evidence that: (1) she is disabled as
defined by the act or that the defendant regarded her as disabled; (2) the alleged disability
is unrelated to her ability to perform the job; and (3) she was discriminated against in one
of the ways described by the statute, such as being discharged because of a disability.2
Lown v. JJ Eaton Place, 235 Mich. App. 721, 727, 598 N.W.2d 633, 636 (1999); Chiles
v. Machine Shop, Inc., 238 Mich. App. 462, 473-75, 606 N.W.2d 398, 405-06 (1999). If
the plaintiff succeeds, the defendant must articulate a legitimate, non-discriminatory
reason for its employment decision. Hazle, 464 Mich. at 464, 628 N.W.2d at 521. If the
defendant sets forth such a reason, to survive summary judgment, “the plaintiff must
demonstrate that the evidence in the case, when construed in the plaintiff’s favor, is
‘sufficient to permit a reasonable trier of fact to conclude that discrimination was a
motivating factor for the adverse action taken by the employer toward the plaintiff.’” Id.
at 465, 625 N.W.2d at 522 (quoting Lytle v. Malady, 458 Mich. 153, 176, 579 N.W.2d
906, 916 (1998)).
Defendant argues that is entitled to summary judgment because Plaintiff is not
disabled, as that term is defined under the PWDCRA. Specifically, Defendant contends
that Plaintiff was not able to return to work until November or December 2011, and then

2

Mich. Comp. Laws § 37.1202 sets forth the conduct prohibited by an employer based on
an individual’s disability.
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her ability to work was subject to restrictions that render her incapable of performing the
Room Attendant position. Defendant also argues that even if Plaintiff is disabled, she
cannot establish that she was terminated because of her disability. Finally, Defendant
argues that even if Plaintiff can establish a prima case of disability discrimination, there
was a legitimate, non-discriminatory reason for her termination– i.e. her 32 violations of
Westin’s time and attendance policy within the preceding 90 days. Defendant contends
that Plaintiff cannot show that this reason was a pretext for discrimination.
A.

Whether Plaintiff is a person with a disability

As relevant to Defendant’s motion, the PWDCRA defines “disability” as:
(i) A determinable physical or mental characteristic of an individual, which
may result from disease, injury, congenital condition of birth, or functional
disorder, if the characteristic:
(A) . . . substantially limits 1 or more of the major life activities of that
individual and is unrelated to the individual’s ability to perform the duties
of a particular job or position or substantially limits 1 or more of the major
life activities of that individual and is unrelated to the individual’s
qualifications for employment or promotion.
...
Mich. Comp. Laws § 37.1103(d). In its motion, Defendant contends that Plaintiff does
not fall within the PWDCRA’s protections because she cannot perform the essential
functions of the Room Attendant position, with or without accommodation, due to her
work restrictions, specifically her inability to lift over ten pounds, perform strenuous
tasks, and be exposed to certain fumes. (Def.’s Br. in Supp. of Mot. at 11.) The problem
with this argument, as Plaintiff points out in response, is that these restrictions were not in
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place and Plaintiff was not so limited in her abilities while she was working for
Defendant. It was only after she was terminated and underwent surgery that Plaintiff’s
doctor imposed these work restrictions.
Perhaps recognizing this weakness in its argument, Defendant instead argues in its
reply brief that Plaintiff is not disabled under the PWDCRA because her “disability is
related to her ability to perform the essential duties of her job”, specifically punctual and
regular attendance. (Def.’s Reply Br. at 2, 11.) Defendant maintains that compliance
with its time and attendance policy is an essential function of the Room Attendant
position. (Id.) Because Defendant raised this argument for the first time in its reply brief,
the Court does not believe it should be considered. Resolution Trust Corp. v. Townsend
Assoc. Ltd. P’ship, 840 F. Supp. 1127, 1142 n.15 (E.D. Mich. 1993) (“[I]t is well-settled
that a party may not raise new issues for the first time in a reply brief”) (citing United
States v. Jenkins, 871 F.2d 598, 602 n.3 (6th Cir. 1989)). In any event, the Court finds at
least two flaws in Defendant’s argument.
First, while Defendant now maintains that Plaintiff’s “disability is related to her
ability to perform the essential duties of her job”, it has presented no evidence to show
that Plaintiff’s attendance problems were in fact a result of her illness. As this Court
understood the arguments in Defendant’s initial pleading, it in fact was trying to convince
the Court of just the opposite– i.e., that Plaintiff was tardy and absent for reasons having
nothing to do with her illness, such as getting her son to school, the long commute from
Canton, or attending a concert the night before her work shift.
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Next, the Sixth Circuit Court of Appeals and Michigan Court of Appeals have
recognized that an employee who cannot meet the attendance requirements of his or her
job, where those requirements are an essential function of the job, cannot be considered a
person with a disability. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 41819 (6th Cir. 2004); Kancik v. Greenwood Twp., No. 294271, 2011 WL 92980, at *3
(Mich. Ct. App. Jan. 11, 2011) (unpublished). Nevertheless, the employer must show that
the employee’s failure to meet its attendance requirements imposed an undue burden
upon it and this is something Defendant has not done. See Brenneman, 366 F.3d at 419
(citing Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 781-82 (6th
Cir. 1998)); see also Webb v. Humana, Inc., 819 F. Supp. 2d 641, 647-78 (W.D. Ky.
2011) (distinguishing Brenneman because the “Defendants neither criticize [the
plaintiff’s] job performance nor claim an undue burden by allowing him additional leave
for his cancer-related absences.”) Defendant fails to present evidence to show that
Plaintiff’s tardiness and occasional call offs prevented her from satisfactorily performing
her job duties or imposed an undue burden on it.
For the above reasons, Defendant fails to convince the Court that Plaintiff is not
“disabled” under the PWDCRA.
B.

Whether Plaintiff can show that she was terminated because of her
alleged disability

Defendant argues that Plaintiff is estopped from claiming a connection between
her discharge and disability because she signed the Last Chance Agreement, thereby

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acknowledging that Defendant had cause for the discharge based on her violation of its
time and attendance policy. In addition to stating that Defendant “had cause to
discharge” her under its “conditions of employment,” the Last Chance Agreement
includes language indicating that Plaintiff read it, had the opportunity to review it with
her union representative, and entered it knowingly and voluntarily. (Def.’s Mot. Ex. W.)
Plaintiff responds that (1) the agreement is a “self-serving” document created by
Defendant; (2) nothing within the document reflects an admission by Plaintiff that she
agrees that Defendant had cause to terminate her; (3) she never received a copy of the
agreement signed by Defendant; and, (4) Plaintiff understood that she would receive
retroactive reinstatement of her insurance benefits when in fact they were not reinstated.
(Pl.’s Resp. Br. at 17.) Plaintiff also cites Michigan law requiring courts to construe
ambiguous language in a contract in a light most favorable to the party who did not draft
it. (Id. at 18.)
This Court finds nothing ambiguous about the language of the Last Chance
Agreement. The agreement is plainly and clearly written.

It unambiguously states that

Defendant had cause to terminate Plaintiff for violation of its time and attendance policy
and Plaintiff indicated her assent to this statement by signing the agreement. Nothing in
the agreement suggests that Defendant promised to retroactively reinstate Plaintiff’s
benefits, much less that it was obligated to do so if she never satisfied the condition
precedent to be able to return to work nor returned to work.
Plaintiff cites no authority holding that an agreement is invalid or unenforceable if
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one party does not receive a copy signed by all parties and the Last Chance Agreement
did not make this a requirement to form a valid contract. Finally, the Court is at a loss to
understand why Plaintiff believes the agreement is “self-serving” or, if it is, how this
affects its enforceability. To the extent Plaintiff is trying to argue that the Last Chance
Agreement lacks consideration– i.e., a bargained-for-exchange between the parties– this
is incorrect. In exchange for receiving a second chance to keep her job, Plaintiff agreed
that her termination was justified. But even if Plaintiff is not estopped from arguing that
she was terminated because of her alleged disability based on the Last Chance
Agreement, this Court agrees with Defendant that Plaintiff lacks evidence to raise an
issue of fact as to whether she was terminated because of her disability rather than the
reason proffered by Defendant.
First, while Plaintiff presents evidence to create a question of fact as to whether
Ms. Ogden was aware of her cancer diagnosis, she offers no evidence to suggest that Ms.
Jackson or Ms. Tunstall– the ultimate decision makers– were aware of her condition.
Second, Plaintiff fails to rebut Defendant’s evidence that four, non-disabled employees
who reported to Ms. Ogden also were terminated due to attendance problems and the
progressive discipline system in a time period relevant to Plaintiff’s termination. (Def.’s
Br. in Supp. of Mot. at 4 & n.1; Ex. H ¶ 15.) Plaintiff additionally has not challenged
Defendant’s records reflecting that she was tardy or absent on the days for which she was
disciplined. Plaintiff argues that Defendant should have excused her tardy arrivals and
absences because they were related to her illness; however, there are several problems
15

with Plaintiff’s argument.
First, the medical documents Plaintiff submits in response to Defendant’s motion
correspond to only two of the sixteen tardy arrivals or call offs cited by Defendant. (See
Pl.’s Resp. Ex. 12 (documentation reflecting 3/16/11 PET/CT scan); Ex. 11 (document
reflecting doctor’s appointment on 3/22/11). On only one other date relied on by
Defendant does Plaintiff claim to have been at a doctor’s appointment. (Id. Ex. 20 ¶ 29.)
Regardless, the plain and unambiguous terms of Defendant’s time and attendance Policy
provide that an absence or tardiness will be considered unexcused unless “reported less
than two hours before [the employee’s] scheduled shift begins . . ..” (Def.’s Mot. Ex. C;
Ex. E.) The policy defines an “excused absence” or “tardiness” as one due inter alia to
personal illness, but clearly states after the definition that “[a]ll unreported absences are
unexcused”. (Id. Ex. C; see also Ex. E (“If proper and timely notification is not made,
the absence or tardiness must be considered unexcused for that day”).) Moreover, the
policy does not include doctor’s appointments or medical testing without a prearranged
and approved leave of absence as excused absences. (See id.) The Court also notes that
Plaintiff never complained to Defendant at any time before her termination that her
absences and tardy arrivals should have been deemed excused under the time and
attendance policy.
Plaintiff falls back on the timing (14 days) between her termination and the date
she was scheduled for surgery to address her cancer to demonstrate the needed connection
to show discrimination under the PWDCRA. However, on its own, proximity in time
16

does not establish pretext. Donald v. Sybea, Inc., 667 F.3d 757, 763 (6th Cir. 2012)
(citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)).
Moreover, this argument ignores that Defendant disciplined Plaintiff for violations of the
time and attendance policy several months before she was even diagnosed with cancer.
In short, Plaintiff fails to create a genuine issue of material fact with respect to
whether she was terminated because of her alleged disability.
Accordingly,
IT IS ORDERED, that Defendant’s motion for summary judgment is
GRANTED.
Dated: March 12, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Ivie Jonathan Shelton, Esq.
Richard M. Tuyn, Esq.
Donelle R. Buratto, Esq.

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