McNeely v. Krogers
Filing
42
ORDER Adopting Magistrate Judge's 39 Report and Recommendation; Overruling Defendant's Objections; Denying Defendant's 26 Motion for Summary Judgment, and Continuing Order of Reference for Pretrial Proceedings. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TANYA McNEELY,
Plaintiff,
Case Number 12-12608
Honorable David M. Lawson
Magistrate Judge Michael J. Hluchaniuk
v.
KROGER,
Defendant.
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ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, OVERRULING DEFENDANT’S OBJECTIONS,
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND CONTINUING ORDER OF REFERENCE FOR PRETRIAL PROCEEDINGS
This case is before the Court on the defendant’s objections to a report filed by Magistrate
Judge Michael J. Hluchaniuk recommending that the defendant’s motion for summary judgment be
denied. The plaintiff filed a pro se complaint in this case alleging that the defendant interfered with
her right to take leave under the Family and Medical Leave Act. The Court referred this case to
Magistrate Judge Michael J. Hluchaniuk for pretrial management. The plaintiff obtained counsel,
and after a series of amendments and stipulated dismissals of certain claims, an FMLA interference
claim and a retaliation claim remain. The defendant filed a motion for summary judgment, and on
May 9, 2014 Judge Hluchaniuk filed his report recommending that the motion be denied because
unresolved fact questions required a trial. The defendant filed timely objections, and the matter is
before the Court for de novo review.
I.
The facts of the case were set out in detail by the magistrate judge. Neither side takes issue
with that recitation, and the Court adopts it. Here, it is sufficient to note that the plaintiff alleges that
she was employed in the meat department at Kroger from 2001 until October 15, 2010, when she
was fired. Since 2005, McNeely had been granted intermittent Family and Medical Leave Act
(FMLA) leave to care for her severely asthmatic son. During McNeely’s October 15, 2010 shift,
she received an emergency call from her son stating that he was having trouble breathing. After
receiving the call, McNeely neglected to return meat she was stocking to the cooler and failed to ask
another employee to complete the task. McNeely immediately attempted to locate the store
manager, Jarret Rawls, to obtain permission to take intermittent FMLA leave. When she could not
find Rawls, she asked her department manager, Kirk Donner, for permission. Donner, whose shift
had just ended, granted McNeely permission. McNeely asserts that she then attempted to punch out
on the time clock before leaving, but reports later obtained from the clock did not register the punch
out. Donner then drove McNeely home to care for her son. When McNeely returned to work an
hour and a half later, she completed a task Donner had forgotten to complete and then met with
Rawls. Rawls presented her with a Constructive Advice Record of Suspension Pending Advisory
Discharge. The Constructive Advice Record cited McNeely’s quality of work and failure to obtain
permission before leaving on October 15 as the reason for her suspension pending discharge. Lanell
Ohlinger, a human resources manager, terminated McNeely for leaving work during her shift
without permission, based on Rawls’s statement regarding her tardiness, the October 15, 2010
incident, and her failure to punch out. Kroger also had the decision investigated by John Goodgine.
McNeely then received a letter of termination dated November 12, 2010 stating that her employment
had been terminated for violation of “store rule #4,” that is, leaving work without permission.
McNeely later attempted to gain employment at the same Kroger, as well as two additional Kroger
locations, but was unsuccessful.
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In his report, Judge Hluchaniuk concluded that the plaintiff had established a prima facie
case under both the interference and retaliation theories of FMLA liability. He also found that
material fact questions existed on the present record on whether Kroger’s rationale for McNeely’s
termination was a pretext for retaliation against her for her exercise of FMLA leave rights, and
whether Kroger had an honest belief in its alleged legitimate basis for termination.
II.
Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).
The Court must “make a de novo determination of those portions of the report or specified findings
or recommendations to which objection is made.” Ibid.; see also United States v. Raddatz, 447 U.S.
667, 674-75 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The Sixth Circuit has
stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v.
Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be clear enough to enable the
district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995).
“‘[O]bjections disput[ing] the correctness of the magistrate’s
recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are too general.”
Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).
The defendant filed five objections to the report and recommendation:
1.
The magistrate judge reversed the burdens of proof and procedure to conclude that
fact questions existed regarding Kroger’s legitimate business reasons for terminating McNeely.
2.
The magistrate judge ignored fundamental FMLA law that employees are not
protected for violations of company policies and substituted his judgment for Kroger’s regarding
whether McNeely’s conduct warranted discharge.
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3.
The magistrate judge impermissibly employed speculation and conjecture based on
McNeely’s counsel’s argument and unsupported opinion to create fact questions regarding the
reasons for termination.
4.
The magistrate judge did not require McNeely to set forth any evidence to refute
several of Kroger’s reasons for discharging her and any one of the reasons should have been
sufficient to require summary judgment in its favor.
5.
The magistrate judge refused to apply the honest belief doctrine.
A.
Kroger contends that its Constructive Advice Record and termination letter both provided
legitimate and nondiscriminatory reasons for McNeely’s termination that should have sufficed for
summary judgment. However, as the magistrate judge noted, the Constructive Advice Record
attributes McNeely’s suspension to her “quality of work,” that she “walk[ed] off the job without
permission,” that she did not punch the time clock, and that she failed to return the meat to the
cooler, but the termination letter only cites that she left without permission. And the record presents
serious fact questions on whether that was the true reason for termination.
“The FMLA . . . authorizes claims based on an adverse employment action motivated by both
the employee’s use of FMLA leave and also other, permissible factors.” Hunter v. Valley View
Local Sch., 579 F.3d 688, 691 (6th Cir. 2009) Additionally, “[p]roof of temporal proximity between
the protected activity and the adverse employment action, coupled with other indicia of retaliatory
conduct, may give rise to a finding of a causal connection.” Dixon v. Gonzales, 481 F.3d 324, 333
(6th Cir. 2007) (internal quotation marks omitted).
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Causation may be proved directly or inferentially.
When causation is based on
circumstantial evidence, courts apply the familiar three-step McDonnell Douglas analysis used in
most other employment discrimination cases. Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th Cir.
2006) (noting that “federal courts follow the burden-shifting framework that the Supreme Court has
prescribed for analogous civil rights cases described in McDonnell Douglas v. Green, 411 U.S. 792
(1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).”). Under the
McDonnell Douglas analysis, a plaintiff first must make out a prima facie case of retaliation under
the FMLA. Skrjanc v. Great Lakes Power Servc. Co., 272 F.3d 309, 315 (6th Cir. 2001). “The
burden then shifts to [the defendant] to articulate a legitimate, nondiscriminatory reason for [the
adverse action].” Ibid. If the defendant articulates such a reason, the plaintiff then has the burden
of showing that the defendant’s articulated reason is a pretext. Ibid. “An employee can show
pretext by offering evidence that the employer’s proffered reason had no basis in fact, did not
actually motivate its decision, or was never used in the past to discharge an employee.” Smith v.
Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998) (citing Kocsis v. Multicare Management, Inc.,
97 F.3d 876, 883 (6th Cir. 1996)); see also Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir. 1994), overruled on other grounds by Gross v. FBL Financial Serv., 557 U.S. 167
(2009).
In this case, the record shows that when the plaintiff received a call that her son was having
an asthma attack, she looked for Jarret Rawls, the store manager, but Rawls was nowhere to be
found. She then sought permission from Kurt Donner to leave to attend to her son. Not only did
Donner giver her permission to leave, but he drove her home. The magistrate judge correctly
observed that fact questions remain on Donner’s authority to grant permission to leave during a shift.
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He pointed to the plaintiff’s testimony that department heads previously had granted her permission
to leave, and that the termination letter listed leaving without permission as the sole basis for
termination. The magistrate judge correctly analyzed the record and arrived at the proper
conclusion.
A reasonable fact finder could infer that the plaintiff’s exercise of FMLA leave may have
motivated the decision to fire her based on the termination letter ’s silence regarding any progressive
discipline, absences, lateness, food and safety violations, or policy violations. Additionally, as
McNeely indicated, the absences, tardys, and food and safety violations Kroger listed occurred over
a time span of nine years of employment, rather than a short period of time. Further, the close
proximity between her use of FMLA leave and her discharge suggests that Kroger’s additional
reasons in the suspension document were not the true motivating factor for termination. Moreover,
the fact that McNeely had committed previous food and safety violations and failed to punch the
time clock in the past, and no termination resulted, indicates that Kroger’s stated rationale may be
a pretext.
The additional reasons proffered by Kroger could be reasonably believed to have not
motivated the termination decision, and therefore a question of fact remains as to whether Kroger
interfered with McNeely’s exercise of her FMLA rights and the reason(s) for her discharge are
pretextual. The magistrate judge applied the proper summary standard under Federal Rule of Civil
Procedure 56(a). The defendant’s first objection is overruled.
B.
Kroger accuses the magistrate judge of imposing his own judgment to determine whether
McNeely should have been fired, because the FMLA does not protect employees from failure to
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follow work rules and procedures. A common sense reading of the report shows otherwise. The
magistrate judge applied the familiar requirement that on summary judgment, the facts must be
viewed in the light most favorable to the nonmoving party. See Alexander v. CareSource, 576 F.3d
551, 557-58 (6th Cir. 2009). As discussed, although Kroger’s purported reasons for McNeely’s
discharge could be found to be legitimate, a reasonable jury could find that those reasons were
pretexts for retaliation.
Certainly, the FMLA does not allow employees to disregard their employer’s rules and
procedures. Braithwaite v. Timken Co., 258 F.3d 488, 496-97 (6th Cir. 2001). But simply stating
that bromide begs the question: why did Kroger fire a nine-year employee who left during a shift
to take care of a sick child, when her department head gave permission to leave, and the other listed
faults never before resulted in termination? Although Kroger has offered evidence demonstrating
that the offenses may have warranted immediate termination, a question of fact still remains
regarding whether such reasons were pretexts. The magistrate judge’s personal judgment had
nothing to do with that outcome. The second objection is overruled.
C.
Kroger argues that the magistrate judge employed speculation and conjecture to create fact
questions on the reasons for termination instead of considering the record and evidence before the
court, contending that he “merely identified additional discovery that might have been pursued and
speculated that information uncovered in this hypothetical future discovery might create a fact
question.” Def’s. Obj. at 13. Kroger argues it should not be forced to bring forward records of
McNeely’s prior FMLA leave to prove whether department heads previously had granted
permission, because the defendant does not need to show that a factual dispute exists in a summary
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judgment motion. Kroger argues that the record shows that its policy does not allow employees to
obtain permission to use FMLA leave from department managers.
Kroger is correct on one point. It is not Kroger’s obligation to show a fact dispute when
bringing its own motion for summary judgment. However, to succeed on a motion for summary
judgment, the moving party must identify “pleadings, depositions, answers to interrogatories, and
admissions on files, together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (emphasis
added). Materiality is established if the fact “would have the effect of establishing or refuting one
of the essential elements of a cause of action or defense asserted by the parties.” Anderson v. Otis
Elevator Co., 923 F. Supp. 2d 1032, 1053 (E.D. Mich. 2013) (quoting Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir. 1984)). The Court then considers whether a dispute is genuine by evaluating
whether the evidence set forth, taken in the light most favorable to the non-moving party, “is such
that a reasonable jury could return a verdict for the nonmoving party.” Ibid. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). To meet this standard, the evidence must be
significantly in favor of the movant’s position and the non-movant must fail to provide specific facts
to show a genuine issue of material fact exists. Id. at 1053-4.
Kroger has not met this standard, and therefore its objection is without merit. Celotex 477
U.S. at 323-24. Because Kroger does not have to negate McNeely’s claim, it is not responsible for
bringing forward the evidence and depositions the magistrate judge referenced. But Kroger cites
a single statement in McNeely’s brief stating that she had sought Rawls’s permission in accordance
with Kroger’s “past practice and policy,” and argues that it was not previously aware that she had
taken FMLA leave with the permission of only a department head. Making the argument, however,
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does not establish the fact for the record. McNeely’s depositions and pleadings repeatedly state that
she had taken leave with only the permission of a department head prior to this incident, and the
company handbook is silent on whether a department head may grant permission. The magistrate
judge’s (accurate) lamentation on the poorly-developed record is not a resort to speculation. Rather,
he merely was observing that there were holes in the record that left fact questions unanswered,
those questions are material, and answers to those questions that might have been furnished through
discovery, if the defendant had chosen to so engage, could have resolved the questions in the
defendant’s favor. That is not a resort to conjecture. It is a candid assessment of the state of the
record.
D.
Kroger argues that any of its various reasons for McNeely’s termination were sufficient to
merit summary judgment, but that the magistrate judge did not require McNeely to provide evidence
refuting the reasons for discharge. This objection is meritless. Kroger says that McNeely failed to
provide evidence refuting whether she punched out and whether her work quality was insufficient.
But as the magistrate judge noted, McNeely testified that she attempted to punch out and that the
time clocks are frequently problematic. Report & Rec. [dkt. #39] at 21. Further, McNeely’s
testimony also indicates that a failure to punch out is not a violation that results in immediate
termination. Id. at 22. Kroger has not provided contrary evidence to establish that a failure to punch
out is a terminable offense. Regarding McNeely’s quality of work, she has argued that her
termination letter did not attribute her discharge to progressive discipline. Id. at 21. McNeely also
argues in her response to the objections that the record of her absences and food and safety
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violations spans nine years, and therefore it is not a good indication of her current quality of work.
E.
Kroger’s fifth objection claims that the magistrate judge failed to properly apply the honest
belief doctrine. Because the Sixth Circuit previously has used the honest belief doctrine when
considering whether a reason is a pretext for discrimination, Kroger argues that it should be applied
in both the interference and the retaliation claims of this case.
The Sixth Circuit has identified an ambiguity in its precedents on whether the honest belief
defense applies in FMLA interference cases. Tillman v. Ohio Bell Tel. Co., 545 F. App’x 340, 35253 (6th Cir. 2013). (citing Adams v. Auto Rail Logistics, Inc., 504 F. App’x 453, 457-58 (6th Cir.
2012); Weimer v. Honda of America Mfg., Inc., 356 F. App’x 812, 819 (6th Cir. 2009)). It certainly
is appropriate in FMLA retaliation cases, where the employers motive is relevant. But the rule
should not be used when analyzing a FMLA interference claim. See Donald v. Sybra, Inc., 667 F.3d
757, 762 (6th Cir. 2012). The magistrate judge found it unnecessary to resolve the ambiguity,
because even if the honest belief defense were applicable in interference cases, fact questions
precluded summary judgment based on that defense. The Court agrees with that analysis.
As the magistrate judge accurately stated, in order to determine whether the plaintiff has
raised a genuine issue of material fact as to pretext, the Court must consider not whether the
defendant’s reasons for taking an adverse action against the plaintiff actually were good reasons, but
instead whether the defendant had an honestly held belief that they were. See Alan v. Highlands
Hosp. Corp., 545 F.3d 387, 398 (6th Cir. 2008).
[T]he key inquiry in assessing whether an employer holds such an honest belief is
whether the employer made a reasonably informed and considered decision before
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taking the complained-of action. An employer has an honest belief in its rationale
when it reasonably relied on the particularized facts that were before it at the time
the decision was made. [W]e do not require that the decisional process used by the
employer be optimal or that it left no stone unturned.
Ibid. (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007)). “The
‘plaintiff must produce sufficient evidence from which the jury could reasonably reject [the
defendant’s] explanation and infer that the defendant[] . . . did not honestly believe in the proffered
nondiscriminatory reason for its adverse employment action.’” Mickey v. Zeidler Tool & Die Co.,
516 F.3d 516, 526 (6th Cir. 2008) (quoting Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th
Cir. 2001)).
Kroger argues that its human resource manager’s decision to fire McNeely was based on an
honest belief in legitimate reasons for termination because HR manager Ohlinger considered John
Goodgine’s investigation, Rawls’s statements, the October 15 incident, and McNeely’s failure to
punch out. But the Court must examine carefully an employer’s reasons for adverse employment
action:
[C]ourts . . . [should not] blindly assume that an employer’s description of its reasons
is honest. When the employee is able to produce sufficient evidence to establish that
the employer failed to make a reasonably informed and considered decision before
taking its adverse employment action, thereby making its decisional process
‘unworthy of credence,’ then any reliance placed by the employer in such a process
cannot be said to be honestly held.
Smith v. Chrysler Corp., 155 F.3d 799, 806-807 (6th Cir. 1998). As Judge Hluchaniuk pointed out,
Kroger did not provide any evidence or documentation of either Ohlinger’s or Goodgine’s
procedures or any details of their investigations. There is no evidence on whether Kroger even
investigated the plaintiff’s claim that she had been given permission by department supervisors in
the past to take FMLA leave, even though all agree that the plaintiff had taken such leave
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previously. There is a paucity of “particularized facts” upon which the defendant based its decision,
calling into question its honest belief in its stated reason(s) for termination. The Court agrees that
the record “creates a factual dispute whether the decision to terminate was reasonably informed and
worthy of credence.” White v. Telcom Credit Union, 874 F. Supp. 2d 690, 710 (E.D. Mich. 2012).
The defendant’s fifth objection is overruled.
III.
The Court agrees with the magistrate judge and finds that his determination of the issues in
the defendant’s motion for summary judgment was correct. Therefore, the Court will adopt the
report and recommendation.
Accordingly, it is ORDERED that the report and recommendation of the magistrate judge
[dkt. # 39] is ADOPTED.
It is further ORDERED that the defendant’s objections to the report and recommendation
[dkt. # 40] are OVERRULED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt. #26] is
DENIED.
It is further ORDERED that the matter is referred to Magistrate Judge Michael J.
Hluchaniuk under the previous reference order [dkt. #6] to ready the matter for trial, and to conduct
a trial if the parties consent under 28 U.S.C. § 626(b)(1)(c).
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 16, 2014
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 16, 2014.
s/Shawntel Jackson
SHAWNTEL JACKSON
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