Thomas v. Lighthouse of Oakland et al
Filing
109
CORRECTED ORDER re 98 MOTION for Summary Judgment filed by Jonh Ziraldo, Greg Sterns, 99 MOTION for Summary Judgment filed by LIGHTHOUSE COMMUNITY DEVELOPMENT, Lighthouse of Oakland. Signed by District Judge Victoria A. Roberts. (CPin)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
RANDALL THOMAS
Plaintiff,
CASE NO.: 12-cv-15494
v.
HON. VICTORIA ROBERTS
LIGHTHOUSE OF OAKLAND,
LIGHTHOUSE COMMUNITY
DEVELOPMENT, GREG STERNS,
and JOHN ZIRALDO
Defendants.
______________________________/
CORRECTED ORDER:
1. GRANTING IN PART AND DENYING IN PART LIGHTHOUSE OF OAKLAND’S
AND LIGHTHOUSE COMMUNITY DEVELOPMENT’S JOINT MOTION FOR
SUMMARY JUDGMENT (ECF NO. 99)
2. GRANTING GREG STERNS’ AND JOHN ZIRALDO’S JOINT MOTION FOR
SUMMARY JUDGMENT (ECF NO. 98)
I.
INTRODUCTION
Randall Thomas sues Lighthouse of Oakland (“LOO”) and Lighthouse
Community Development (“LCD”) for alleged violations of Title VII of the Civil Rights Act
of 1964, Michigan’s Elliott-Larsen Civil Rights Act (“Elliott-Larsen”), the Family Medical
Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), and the Michigan
Persons with Disabilities Act (“PDCRA”). LOO is an umbrella non-profit organization that
is comprised of multiple entities, one of which is LCD. Thomas was employed by LCD.
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Thomas also sues John Ziraldo (“Ziraldo”), Lighthouse of Oakland CEO, individually for
alleged violations of Elliott-Larsen, and Greg Sterns (“Sterns”), his supervisor at LCD,
individually, for intentional inflection of emotional distress (“IIED”).
Two motions are before the Court: (1) LOO’s and LCD’s joint motion for summary
judgment on Thomas’ Title VII, Elliott-Larsen, FMLA, ADA, and PDCRA claims; and (2)
Ziraldo’s and Sterns’ joint motion for summary judgment on Thomas’ claims against
Ziraldo for alleged violations of Elliott-Larsen and against Sterns for IIED.
The Court GRANTS:
(1) LOO’s and LCD’s joint motion (ECF No. 99) on Thomas’ Title VII, ElliottLarsen, ADA, and PDCRA discrimination and retaliation claims;
(2) LOO’s and LCD’s joint motion on Thomas’ FMLA interference and retaliation
claims; and
(3) Ziraldo’s and Sterns’ joint motion (ECF No. 98).
The Court DENIES:
LOO’s and LCD’s joint motion on Thomas’ Title VII and Elliott-Larsen racial
harassment claims.
II.
BACKGROUND
Thomas began his employment with LCD on June 16, 2008. Pl.’s Resp. to Mot.
Summ. J. 3, ECF No. 100. Shortly thereafter, Thomas requested voice-to-text software.
Id. After Thomas asked for the software, LCD asked Thomas for more information
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regarding the accommodation. Lighthouse Mot. Summ. J. 7, ECF No. 99. Thomas did
not respond to the request. Dep. Tr. of Judith Wheeler-Williams 4-5, ECF No. 99-10.
Thomas also says that during this period he was denied a typing assistant. Pl.’s Resp.
to Mot. Summ. J. 4, ECF No. 100.
On April 20, 2010, Sterns referred to himself as Thomas’ “slave master” or “slave
driver” and made a motion and sound like he was cracking a whip, instructing Thomas
to “get back to work.” Pl.’s Second Am. Comp. 9, ECF No. 61. Sterns does not dispute
that he made such comments. Dep. Tr. of Greg Sterns 10-11, ECF No. 98-9. Sterns
alleges that the comments and motions were related to the fact that he does not take
lunch often; he says his behavior had nothing to do with Thomas’ race. Id.
Thomas asked Ziraldo to investigate the incident. Pl.’s Second Am. Comp. 9,
ECF No. 61. Thomas alleges that after Ziraldo failed to adequately reprimand Sterns,
Sterns told Thomas that “he had prayed to God for guidance about working with
Blacks.” Pl.’s Second Am. Comp. 10, ECF No. 61. Sterns does not dispute that he
made these comments. Dep. Tr. of Greg Sterns 11, ECF No. 98-9. Allegedly the next
day Sterns came into Thomas’ office and said, “Say good morning to your slave
master.” Pl.’s Second Am. Comp. 10, ECF No. 61. Sterns denies that he greeted
Thomas in such a fashion. Dep. Tr. of Greg Sterns 11, ECF No. 98-9. Allegedly on that
same day, and on many other occasions, Sterns and Ziraldo glared at Thomas for an
unusually long time. Pl.’s Second Am. Comp. 11, ECF No. 61. Thomas says this made
him feel threatened. Id. Sterns and Ziraldo dispute that they ever glared at Thomas.
Dep. Tr. of Greg Sterns 12, ECF No. 98-9.
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Around May 10, 2010, Thomas went on sick leave. He stated he was disabled
due to stress, anxiety, depression and work-related loss of sleep. P.’s Second Am.
Comp. 12, ECF No. 61; Exh. A. Dep. Tr. of John Ziraldo 364, ECF No. 99-2. That same
day, Thomas filed racial and disability discrimination complaints with the Michigan
Department of Civil Rights (“MDCR”) and Equal Employment Opportunity Commission
(“EEOC.”) Exh. M. EEOC and MDCR Complaints, ECF No. 99-17. Thomas testified in a
deposition that after filing his complaints, Ziraldo told him to “drop the EEOC Complaint
and come back to work.” Exh. C. Dep. Tr. of P. 288, ECF No. 99-4. Ziraldo denies the
allegation and says he assured Thomas there would be no retaliation for the complaints.
Exh. A. Dep. Tr. of John Ziraldo 57-58, ECF No. 99-2; See also Exh. N. Mem. to Pl.,
ECF No. 99-18.
In June 2010, Thomas’ psychiatrist, Dr. Rubenfaer, provided written certification
that Thomas was disabled until August 2, 2010 due to depression related conditions.
Pl.’s Second Am. Comp. 12, ECF No. 61. Thomas completed and returned FMLA leave
forms. Exh. A. Dep. Tr. of John Ziraldo 394-396, ECF No. 99-2. LCD stated that
Thomas’ time off would be classified as FMLA leave from May 7, 2010 until August 2,
2010. Exh. L. Letter to Pl., ECF No. 99-16.
On July 29, 2010 Thomas provided LCD with a note from Dr. Rubenfaer stating
that Thomas “is totally disabled from work and can return to work on September 13,
2010. It is OK for him to go to training on August 15, 2010 with company OK.” Pl.’s
Second Am. Comp. 13, ECF No. 61; Exh. P. Lighthouse Letter to Pl., ECF No. 99-20. In
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late July, LCD asked for additional information from Thomas’ physician to determine
whether Thomas’ leave could be extended beyond August 2 due to disability. Id.
Thomas says that during this time period, Ziraldo pressured him to return to
work before August 2, 2010. Pl.’s Resp. to Mot. Summ. J. 19, ECF No. 100; Pl.’s
Second Am. Comp. 13, ECF No. 61. Ziraldo denies he exerted pressure. See Resp. to
Mot. Summ. J. 25, ECF No. 100; See also Lighthouse Mot. Summ. J. 37, ECF No. 99.
Thomas did not return to work on August 2, 2010. There is nothing in writing that
leave was extended. See Exh. C. Dep. Tr. of P. 397, 439, ECF No. 99-4. On August 23,
2010, Thomas told Ziraldo that he wanted to return to work but had concerns that
needed to be resolved; he did not provide a date of return. Exh. Q. Emails Dated August
23 and 24, 2010, ECF No. 99-21. Ziraldo told Thomas he would welcome him back but
he needed clearance from a physician. Id. LCD requested and received a physician’s
medical examination report. Id. The report, shared with Thomas, detailed that he was
able to return to work. Id.
On August 24, 2010, Thomas told Ziraldo in writing that although he was
“interested in returning to work, he had remaining concerns which had not been
addressed” and initiated a meeting with LCD; it was scheduled for August 27, 2010.
Pl.’s Second Am. Comp. 14, ECF No. 61.
Thomas alleges that at the meeting, Sterns and Ziraldo pressured him to return
to work. Pl.’s Second Am. Comp. 14, ECF No. 61. Ziraldo disputes that he and Sterns
exerted pressure. He says Thomas attended the meeting where he reiterated that he
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wanted to return to work but had concerns about his son’s child care issues. Exh. A.
Dep. Tr. of John Ziraldo, ECF No. 99-2. Ziraldo says Thomas stated he would need
additional time off to make child care arrangements. Id. Ziraldo says he agreed and
advised Thomas that, by August 31, 2010, Thomas needed to return to work, or at a
minimum, provide a specific date on which he would return to work. September 15,
2010 Letter from Lighthouse to Pl., ECF No. 99-22. Thomas failed to return to work or
provide another date by August 31, 2010. Id.
Thomas called LCD and left messages “many times” between the August 27
meeting and September 7, 2010 and discussed the possibility of return, but provided
LCD with no specific return date. Exh. C. Dep. Tr. of Pl. 33, ECF No. 99-6.
By September 7, 2010, LOO and LCD concluded that Thomas had abandoned
his position and resigned under Policy 202. Thomas admits he had knowledge of “Policy
202" and signed a copy of the policy. Exh. C. Dep. Tr. of P. 453, ECF No. 99-6.
Thomas says he was never contacted on September 7, 2010 about his alleged
resignation. Pl.’s Second Am. Comp. 16, ECF No. 61. Ziraldo testifies that he spoke
with Thomas on the phone on September 7. Exh. 7. Dep. Tr. of John Ziraldo 20, ECF
No. 98-7.
Ziraldo says that any of the business days between his August 27, 2010 meeting
with Thomas and Thomas’ termination on September 7, 2010 would qualify as three
consecutive days without notification of Thomas’ absence. Exh. 7. Dep. Tr. of John
Ziraldo 21-22, ECF No. 98-7. Ziraldo posits that Thomas’ absences from work on
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September 4th, 5th, and 6th qualified as his official violations of “Lighthouse Employee
Manual Policy 202" (“absences for three consecutive days, without notification, shall be
considered a resignation.”)
Thomas disputes that he was absent from work and contends he was on leave
until September 13, 2010, per Dr. Rubenfaer’s note provided to LCD on July 29, 2010.
Dep. Tr. of Pl. 20, ECF No. 99-6. Ziraldo says Thomas’ leave officially expired on
August 2, 2010 and the note provided by Rubenfaer was one opinion that the
organization took into consideration in deciding to decline or extend Thomas more
leave. Dep. Tr. of Ziraldo 16, ECF No. 98-8. LCD was concerned after receiving an
independent physician’s report that Thomas was “fully able to work.” Id.
Ziraldo testified that “[LOO and LCD were] within their rights to declare [Thomas’]
position abandoned, to consider him no longer an employee, well before that date that I
communicated to him..... So I exercised my discretion and elected not to declare the
position abandoned [until September 7, 2010.] I was using my discretion.... Mr.
Thomas’s FMLA leave had expired and all of the other kinds of leave that the Agency
could grant to its employees no longer applied to Mr. Thomas.” Exh. 7. Dep. Tr. of John
Ziraldo 23, ECF No. 98-7.
On September 15, 2010, Thomas was sent a letter citing “Policy 202,” and was
told that he abandoned his job and that he was terminated. September 15, 2010 Letter
from Lighthouse to Pl., ECF No. 99-22; Pl.’s Second Am. Comp. 16, ECF No. 61.
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III.
STANDARD OF REVIEW
A motion for summary judgment should be granted “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “genuine” if the evidence is such that “a reasonable jury
could return a verdict for the non-moving party.” Id.
The court must view the evidence in the light most favorable to the non-moving
party and it must also draw all reasonable inferences in the non-moving party’s favor.
Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The non-movant
cannot rely upon bare assertions, conclusory allegations, or suspicions to substantiate
his claims. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). To
withstand summary judgment, the non-movant must show sufficient evidence to create
a genuine issue of material fact. Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 577
(6th Cir. 2007). The existence of a mere scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive summary judgment. Anderson, 477
U.S. at 251. A complaint must contain either direct or inferential allegations respecting
all material elements to sustain a recovery under some viable legal theory. Bishop v.
Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008). Conclusory allegations or
legal conclusions masquerading as factual allegations will not suffice. Id. Rather, there
must be evidence on which the jury could reasonably find for the non-moving party. Id.
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at 250-51. The moving party does not, however, have to support its motion for summary
judgment with evidence negating its opponent’s claims. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1985).
IV.
ANALYSIS
A. Racial Harassment
Thomas sues LOO and LCD for violations of Title VII and Elliott-Larsen; he sues
Ziraldo, individually, under both statutes. To establish a prima facie case for racial
harassment claims under both Title VII and Elliott-Larsen, Thomas must establish the
harassment was “sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment.” See, e.g., Reed v. Procter &
Gamble Mfg. Co., 556 Fed. Appx. 421, 431–432 (6th Cir. 2014) (Title VII); see also In re
Rodriguez, 487 F.3d 1001, 1010 (6th Cir. 2007) (Elliott-Larsen). Harassment claims are
premised on a showing that the work environment is so tainted by harassment that it
alters the terms and conditions of employment. Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993).
To succeed on a claim of a racially hostile work environment, Thomas must
demonstrate that (1) he belonged to a protected group, (2) he was subject to
unwelcome harassment, (3) the harassment was based on race, (4) the harassment
was sufficiently severe or pervasive to alter the conditions of employment and create an
abusive working environment, and (5) the Defendants knew or should have known
about the harassment and failed to act. Moore v. KUKA Welding Sys. & Robot Corp.,
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171 F.3d 1073, 1078–79 (6th Cir. 1999). The parties agree that the first two elements
are satisfied; their dispute centers on the existence of questions of material fact on
elements (3), (4), and (5).
The third element limits the scope of the claim: only harassment based on the
plaintiff’s race may be considered. See Bowman v. Shawnee State Univ., 220 F.3d 456,
464 (6th Cir. 2000). With respect to the fourth element, “whether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Harris,
510 U.S. 17, 23 (1993). When analyzing that element, the fact-finder must consider
harassment “by all perpetrators combined,” rather than “divid[ing] and categoriz[ing] the
reported incidents.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).
Accordingly, the Court first determines what harassment, if any, was based on
Thomas’ race. The Court then asks if that harassment could create a question for the
jury to determine if the behavior was sufficiently severe or pervasive to violate Title VII
and Elliott-Larsen.
A plaintiff may prove that harassment was based on race by either (1) direct
evidence of the use of race-specific and derogatory terms or (2) comparative evidence
about how the alleged harasser treated members of both races in a mixed-race
workplace. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998)
(approving these methods in the analogous context of sexual harassment). Harassment
is based on race when it would not have occurred but-for plaintiff’s race; the harassing
conduct need not be overtly racist to qualify. Clay v. United Parcel Serv., Inc., 501 F.3d
695, 706 (6th Cir. 2007).
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In essence, Thomas alleges four types of racial harassment: (1) Sterns’ “slavedriver” and “pray[ing] to God for guidance about working with Blacks” comments, (2)
Sterns’ physical acts (“whipping” motions), (3) Sterns’ glares at Thomas, and (4)
Ziraldo’s alleged comment to “drop the civil rights charge.” Resp. to Mot. Summ. J. by
Sterns and Ziraldo 8, ECF No. 103. Defendants say (3) and (4) never occurred. Dep. Tr.
of Greg Sterns 10-13, ECF No. 98-9.
The Court finds that a reasonable jury could not find that glares at Thomas were
based on his race. Thomas offers no direct, indirect, or comparative evidence linking
alleged glares to his race. Regarding Thomas’ fourth allegation of racial harassment–
he fails to provide any evidence beyond his own conclusory statements that Ziraldo’s
alleged comment “to drop the civil rights charge” was based on Thomas’ race. Columbia
Natural Res., Inc., 58 F.3d at 1109. Accordingly, Thomas’ third and fourth claims of
harassment are insufficiently supported to create genuine issues of material fact for a
jury.
A genuine issue of material fact exists for a jury to determine if Thomas’ first and
second claims of harassment were based on his race. Thomas’ allegations about
harassment are corroborated by Sterns in a deposition; but, Sterns disputes that his
“slave-driver” comments and “whipping” motions had anything to do with Thomas’ race.
Dep. Tr. of Greg Sterns 10, ECF No. 98-9.
Next, the Court must consider whether a question of material fact exists in
determining if Thomas’ alleged race-based harassment was “sufficiently severe or
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pervasive to alter the conditions of his employment and create an abusive working
environment.” Harris, at 21. The Court finds that Sterns’ “slave driver” and “slave
master” comments as well as his “whipping motions” are sufficiently severe to survive
summary judgment.
Finally, Thomas alleges LOO and LCD had notice of the alleged harassment and
failed to take appropriate remedial action to reprimand or punish Sterns. Resp. to Mot.
Summ. J. by Sterns and Ziraldo, ECF No. 103. In a deposition, Ziraldo admits he did
nothing with information he received regarding Sterns’ questionable comments after
Thomas’ original complaint. Dep. Tr. of John Ziraldo 12-13, ECF No. 98-8. Thomas
raises a genuine issue of material fact for a jury to determine if Ziraldo failed to take
appropriate remedial action to end the harassment and if LOO and LCD are vicariously
liable for the harassment.
The Court DENIES LOO’s and LCD’s motion for summary judgment (ECF No.
99) on Thomas’ Title VII and Elliott-Larsen racial harassment claims.
The Court GRANTS Ziraldo’s motion for summary judgment (ECF No. 98) with
respect to Thomas’ Elliott-Larsen harassment claim against him as an individual.
Though Elliott-Larsen creates vicarious liability for employers and individual liability for
employees and agents, Thomas only sues Ziraldo, and not Sterns, under Elliott-Larsen.
Elezovic v. Ford Motor Co., 472 Mich. 408, 431 (2005). It is undisputed that Ziraldo
made no comments regarding Thomas’ race. Thomas provides no evidence to
substantiate a harassment claim against Ziraldo as an individual.
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B. Race Discrimination
Thomas sues LOO and LCD for discrimination under Title VII and Elliott-Larsen
and Ziraldo individually under Elliott-Larsen. The Court analyzes these claims together.
Title VII forecloses an employer “from discharging any individual, or otherwise
discriminating against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C.
§ 2000e–2(a)(1). Likewise, Elliott-Larsen forbids “discriminating against an individual
with respect to employment, compensation, or a term, condition, or privilege of
employment, because of ... race.” M.C.L.A. 37.2202. The prima facie requirements for a
discrimination case are the same under Michigan and federal law. See Sniecinski v.
Blue Cross & Blue Shield of Mich., 469 Mich. 124, 666 N.W.2d 186, 193 (2003).
Thomas may establish a claim of discrimination either by introducing direct
evidence of discrimination or by presenting circumstantial evidence that would support
an inference of discrimination. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th
Cir. 1997). Where, as here, the claim is based on circumstantial evidence, the Court
employs the burden-shifting framework set forth in McDonnell Douglas. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04.
Under McDonnell Douglas, Thomas carries the burden to establish a prima facie
case. 411 U.S. at 802. To establish a prima facie case of discrimination under both Title
VII and Elliott–Larsen, Thomas must show that (1) he is a member of a protected class;
(2) he was qualified for the job; (3) he was subject to an adverse employment action;
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and (4) for the same or similar conduct he was treated differently than similarly situated
non-minority employees. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992). If Thomas is able to establish a prima facie case of discrimination, the burden
shifts to Defendants to produce a legitimate, non-discriminatory reason for the
employment decision. Id. Once the Defendants meet this burden, the burden shifts back
to Thomas to offer specific evidence establishing that the Defendants’ stated reason is
merely a pretext for discrimination. Hollowell v. Michigan Consol. Gas Co., 50 F. Supp.
2d 695, 705 (6th Cir. 1999).
In the context of a discrimination claim, an adverse employment action is defined
as a “materially adverse change in the terms or conditions” of employment. Kocsis v.
Multi–Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996). An adverse employment action
“constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing
a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998).
Defendants do not contest that Thomas satisfies elements one and two of
discrimination claims under Title VII and Elliott-Larsen. See generally Mitchell, 964 F.2d
577, 582 (6th Cir. 1992). And, the Court is persuaded that Thomas can satisfy the third
element of the claim under the discrimination framework. Id. He was fired. Lighthouse
Mot. Summ. J. 16, ECF No. 99. But, to the fatal detriment of his claim, Thomas fails to
establish that a similarly situated non-minority employee failed to return from FMLA
leave after numerous deadlines and then was allowed to continue working. Accordingly,
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Thomas cannot establish the fourth element of a prima facie case of race discrimination
under Title VII or Elliott-Larsen.
Since Thomas does not establish a prima facie case of discrimination, the Court
declines to extend a McDonnell Douglas burden-shifting analysis. Even if it did, the
Court is not convinced that Thomas offers any evidence that the reason for his
termination proffered by Defendants (continued absence) was a pretext for
discrimination.
LOO’s and LCD’s motion for summary judgment (ECF No. 99) with respect to
Thomas’ discrimination claims under Title VII and Elliott-Larsen and Ziraldo’s motion for
summary judgment on Thomas’ discrimination claim under Elliott-Larsen are
GRANTED.
C. Race Discrimination Retaliation
Thomas alleges that after he filed complaints reporting alleged racial
harassment, his work began to be highly scrutinized and the work environment changed
into a “retaliatory hostile work environment” which culminated in his discharge. Pl.’s
Resp. to Lighthouse Mot. Summ. J. 18, ECF No. 100.
Thomas’ retaliation claims under Title VII and Elliott-Larsen carry the same
evidentiary burden. See McDonald v. Union Camp Corp., 898 F.3d 1155, 1162 (6th Cir.
1990); see Graham v. Ford, 237 Mich. App. 670 (1999). Title VII and Elliott-Larsen
prohibit discrimination against an employee because that employee engaged in conduct
protected by the acts. See 42 U.S.C. § 2000e–3(a); M.C.L.A. 37.2701.
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To establish a prima facie case of retaliation, Thomas must show that: (1) he
engaged in activity protected by Title VII [or Elliott-Larsen]; (2) the exercise of his civil
rights was known to the Defendants; (3) the Defendants took an adverse employment
action against him; and (4) there was a causal connection between the protected
activity and the adverse employment action. Harrison v. Metropolitan Gov’t, 80 F.3d
1107, 1118 (6th Cir. 1996). Retaliation claims “must be proved according to traditional
principles of but-for causation,” which “require proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, U.S. 133 (2013).
Under McDonnell Douglas, Thomas bears the initial burden to establish a prima
facie case of retaliation. If he succeeds in making out the elements of a prima facie
case, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the Defendants satisfy their burden of production,
the burden shifts back to Thomas to demonstrate that Defendants’ proffered reason was
not the true reason for the employment decision.” Dixon v. Gonzales, 481 F.3d 324, 333
(6th Cir. 2007). “Although the burden of production shifts between the parties, the
plaintiff bears the burden of persuasion through the process.” Id.
The parties do not dispute that Thomas established the first two elements of a
retaliation claim. But, they do dispute whether LCD and Ziraldo took materially adverse
actions against Thomas, and, if so, whether there was a causal connection between
the protected activity and such action.
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A retaliation claim can be established “either by introducing direct evidence of
retaliation or by proffering circumstantial evidence that would support an inference of
retaliation.” Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 538 (6th Cir.
2008). Thomas has chosen the latter. Thomas contends that after filing complaints
about alleged racial harassment his work environment became hostile and he was later
fired. Pl.’s Resp. to Lighthouse Mot. Summ. J. 17, ECF No. 100.
Thomas claims that after filing discrimination and harassment complaints, his
work was scrutinized more harshly than his peers and the work environment at LCD
became unbearable. Id. Thomas offers no corroboration of these claims beyond mere
speculation and his own conclusory allegations. Id.; Columbia Natural Res., Inc., 58
F.3d at 1109.
Thomas argues that his ultimate firing after filing complaints satisfies the
requirements of a retaliation claim. But, when a plaintiff offers no additional evidence to
support a finding that the protected activity and the adverse action were connected,
temporal proximity is not enough to establish retaliation. Cooper v. City of North
Olmsted, 795 F.2d 1265 (6th Cir. 1986). This is the situation the Court faces here.
Thomas fails to establish a connection between his complaints and LCD’s and
Ziraldo’s alleged adverse employment actions. Because of this deficiency the Court
declines to further analyze Thomas’ claim under the McDonnell Douglas frame-work.
Even if Thomas had established a prima facie case of retaliation, Defendants present
evidence supporting a legitimate, non-discriminatory reason for termination that Thomas
fails to rebut: he effectively resigned his position.
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LOO’s and LCD’s motion for summary judgment (ECF No. 99) with respect to
Thomas’ retaliation claims under Title VII and Elliott-Larsen is GRANTED, as is Ziraldo’s
motion for summary judgment (ECF No. 98) with respect to Thomas’ retaliation claim
under Elliott-Larsen.
D. FMLA
Thomas says LOO and LCD interfered with his exercise of FMLA rights and
retaliated against him for exercising those rights by terminating him. LOO and LCD say:
(1) Thomas’ evidence is insufficient to support the allegation that the organization
violated the FMLA; and (2) Thomas’ FMLA claim is barred by the statute of limitations
since LCD did not willfully violate the FMLA and Thomas’ original complaint did not
specifically articulate an FMLA claim.
1. Interference and Retaliation Claims
The FMLA entitles an eligible employee to take twelve weeks of leave per twelve
month period “[b]ecause of a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C. §2615(a)(1)(D).
The FMLA also entitles an employee on leave the right to return to the same position
and benefits he had just before he took leave. 29 U.S.C. §2614(a)(1)-(2).
The Sixth Circuit recognizes two distinct theories of wrongdoing under the FMLA.
Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555–56 (6th Cir. 2006). First, an
“interference” theory arises from 29 U.S.C. §2615(a)(1) and 29 U.S.C. §2614(a)(1),
which make it unlawful for employers to interfere with or deny an employee's exercise of
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his FMLA rights and which require the employer to restore the employee to the same or
an equivalent position upon the employee's return. Arban v. West Publ'g Corp., 345
F.3d 390, 400–01 (6th Cir. 2003). Second, a “retaliation” theory arises from 29 U.S.C.
§2615(a)(2); it prohibits an employer from discharging or discriminating against an
employee for “opposing any practice made unlawful by” the Act. Id.
Thomas asserts claims under both theories.
FMLA Interference
To state a prima facie claim for interference, Thomas must show: (1) he is an
eligible employee; (2) Defendants are covered employers; (3) he was entitled to leave
under the FMLA; (4) he gave Defendants notice of his intent to take leave; and (5)
Defendants denied him FMLA benefits to which he was entitled. Hoge v. Honda of Am.
Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004); Cavin v. Honda of Am. Mfg., Inc., 346 F.3d
713, 719 (6th Cir. 2003). The fifth element of an interference claim can also be that the
employer has “somehow used the leave against him and in an unlawful manner, as
provided in either the statute or regulations.” Bradley v. Mary Rutan Hosp., 322 F. Supp.
2d 926, 940 (S.D. Ohio 2004).
An employee can establish an FMLA discrimination claim through direct or
indirect evidence. “Direct” evidence “proves the fact in question without reliance upon
inference.” Caskey v. Colgate–Palmolive Co., 535 F.3d 585, 593 (7th Cir. 2008). Direct
evidence usually involves some form of admission by the decision maker. Id. Where
there is no direct evidence of discrimination, the McDonnell Douglas burden-shifting
19
approach applies. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir.
2001); See generally Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008) (holding that the
Sixth Circuit effectively adopts the McDonnell Douglas burden-shifting test for FMLA
interference claims).
If Thomas satisfies the prima facie elements for interference, the burden shifts to
the employer to show a non-discriminatory reason for firing the employee. Caskey, 535
F.3d at 593. An employer's intent is not directly relevant to the interference inquiry.
Edgar v. JAC Prods., 443 F.3d 501, 508 (6th Cir. 2006) (“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.”). If the employer makes such a showing, the burden then shifts to the
employee to establish that the purported reason is not legitimate and is in reality a
pretext to mask discrimination. Id. at 508; see also Skrjanc, 272 F.3d 309, 315 (6th Cir.
2001).
Thomas says LCD employees and supervisors harassed him, pressured him,
and encouraged him to return from FMLA leave early thereby interfering with his FMLA
rights. Pl.’s Resp. to Lighthouse Mot. Summ. J. 19, ECF No. 100; Am. Compl. 12, ECF
No. 61.
But, Thomas proffers no evidence beyond conclusory allegations and his own
statements in a deposition to substantiate his interference claim. Columbia Natural
Res., Inc., 58 F.3d at 1109. Allegations must be more than mere conclusions, or they
are not sufficient to state a civil rights claim. Ana Leon T. v. Fed. Reserve Bank of
20
Chicago, 823 F.2d 928, 930 (6th Cir. 1987). Thomas must provide either direct or
inferential allegations respecting all material elements to sustain a recovery under some
viable legal theory. Bishop v. Lucent Technologies, Inc., 520 F.3d at 519 (emphasis
added). Conclusory allegations or legal conclusions masquerading as factual allegations
will not suffice. Id. Thomas alleges FMLA interference where the record reflects the
contrary. It appears LCD did not interfere with Thomas’ FMLA rights, but rather,
facilitated Thomas’ exercise of them by providing him information about classifying timeoff as FMLA leave and providing opportunities to return to work after he missed
numerous previous return deadlines.
Thomas further fails to address or establish that Defendants’ reason for his
termination was a pretext to mask discrimination. Skrjanc, 272 F.3d 309, 315 (6th Cir.
2001). In denying the allegation of FMLA interference, Defendants provide the Court
with documents detailing interactions between Thomas and LCD where Thomas was
told that no ill will would arise because of his FMLA leave. LCD says Thomas was fired
due to his consecutive absences. The FMLA permits an employer to enforce its “usual
and customary notice and procedural requirements […] absent unusual circumstances.”
29 C.F.R. § 825.302(d); Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 609 (6th
Cir. 2013); Cundiff v. Lenawee Stamping Corp., 597 F. App'x 299, 300 (6th Cir. 2015).
An employer is justified in terminating [a plaintiff’s] employment for his failure to follow
an attendance policy. Cundiff, 597 F. App'x 299, 300 (6th Cir. 2015). Since Thomas
does not rebut Defendants’ proffer, he fails to satisfy his burden.
21
The Court finds no genuine issues of material fact exist regarding Thomas’ FMLA
interference claim.
FMLA Retaliation
Under the retaliation theory, the employer's motive is an integral part of the
analysis. Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2006). To state a retaliation
claim, Thomas must show that: (1) he availed himself to a protected right under the
FMLA; (2) he was adversely affected by an employment decision; and (3) there was a
causal connection between his protected activity and Defendants’ adverse employment
actions. Skrjanc, 272 F.3d at 314. If Thomas satisfies these requirements, the burden
shifts to LOO and LCD to give a legitimate, nondiscriminatory reason for discharging
Thomas. Id. at 314. If LOO and LCD make the showing, the burden then shifts to
Thomas to establish that the purported reason is not legitimate and is in reality a pretext
to mask discrimination. Id. at 315; Edgar, 443 F.3d 501, 508 (6th Cir. 2006); see
generally McDonnell Douglas Corp., 411 U.S. 792, 793 (1973).
The Sixth Circuit holds that the FMLA prohibits employers from taking adverse
employment actions against an employee based upon the employee's exercise of FMLA
leave. Bryant v. Dollar General Corp., No. 07–5006 (6th Cir. 2008). A plaintiff may
recover under a retaliation theory only by showing that the action was taken because
the employee exercised, or complained about the denial of, FMLA protected rights.
Edgar, 443 F.3d at 512.
22
While temporal proximity is sufficient to meet the low burden required to establish
a prima facie case of retaliation in violation of the FMLA, it is not sufficient to establish
that an employer's legitimate, non-discriminatory reason for discharge is a pretextual
mask for discrimination. Skrjanc, 272 F.3d at 317. Excessive absenteeism is a
legitimate non-discriminatory reason to terminate an employee. Norton v. LTCH, 620 F.
App'x 408 (6th Cir. 2015) (citing Summerville v. ESCO Co., 52 F. Supp. 2d 804, 813
(W.D. Mich. 1999)).
Thomas says he was terminated from LCD because he exercised FMLA rights.
While he articulates a temporal proximity argument, he proffers no evidence beyond his
own bare assertions, conclusory allegations, and statements to substantiate his stance
that LCD’s reason for termination is not legitimate. Columbia Natural Res., Inc., 58 F.3d
at 1109. In denying the allegation of FMLA interference, LCD provides the Court with
evidence establishing their many invitations for Thomas to return to work after his FMLA
leave expired. Exh. A. Dep. Tr. of John Ziraldo, ECF No. 99-2. After Thomas failed to
adhere to reasonable deadlines to return, LCD decided he had abandoned his position,
applying “Lighthouse Policy 202.” Id. Thomas fails to articulate how Defendants’
proffered reason for termination is not legitimate and is pretextual. Accordingly, he fails
to set forth a genuine issue of material fact that a jury could reasonably rely upon to find
in favor of him.
2. Statute of Limitations
Even if substantively Thomas met the applicable burdens of proof on his FMLA
claims, they are time barred. FMLA claims are governed by a statute of limitations which
23
provides either a two or three year limitations period: “The limitations period is normally
two years, but is extended to three years if the FMLA violation was willful.” 29 U.S.C.
§2617(c).
The last event giving rise to Thomas’ allegations took place on September 15,
2010. Thomas filed his first complaint pro se on December 14, 2012.
LOO and LCD say Thomas’ original complaint filed in December 2012 does not
articulate an FMLA claim. Reply to Resp. re: Mot. Summ. filed by Lighthouse, ECF No.
106. Due to this deficiency, LCD says the FMLA claims articulated and developed in
amended complaints fall outside the two year statute of limitations. Id; 29 U.S.C.
§2617(c).
Courts provide a “liberal” pleading standard to pro se litigants. Estelle v. Gamble,
429 U.S. 97, 106 (1976). Courts apply less stringent standards in determining whether
pro se complaints state a claim for which relief can be granted. Id. Though Thomas’
original pro se Complaint does not set forth a separate FMLA count, the Complaint
mentions or references the FMLA 15 times. See Compl., ECF No. 1. Applying a less
stringent standard to Thomas’ original Complaint and exercising its discretion, the Court
finds that Thomas’ original Complaint sufficiently states interference and retaliation
claims under the FMLA. The last event giving rise to Thomas’ allegations took place on
September 15, 2010. The general statute of limitations ran out on Thomas’ FMLA
claims two years after the last event giving rise to the action. Because Thomas’
Complaint was filed after September 15, 2012, his claim is time-barred unless he can
demonstrate willfulness.
24
Since Thomas fails to set forth genuine issues of material fact to support his
interference and retaliation claims, the Court finds he cannot establish willfulness and
his claims are time-barred.
The Court GRANTS LOO’s and LCD’s motion for summary judgment (ECF No.
99) with respect to Thomas’ FMLA interference and retaliation claims. Fed. R. Civ. P.
56(a).
E. Disability Discrimination and Retaliation
1. ADA and PDCRA Discrimination
Thomas alleges that LOO and LCD violated the ADA and Michigan’s PDCRA by
denying him reasonable accommodations and terminating him because of his disability.
Pl.’s Resp. to Lighthouse Mot. Summ. J. 18-24, ECF No. 100.
The ADA and PDCRA are subject to the same analysis. Smith v. Chrysler Corp.,
155 F.3d 799, 804 (6th Cir. 1998).
LCD argues that Thomas fails to present a prima facie ADA and PDCRA claim
because (1) LCD did not refuse to make reasonable accommodations; and (2) LCD did
not terminate Thomas because of his disability. Lighthouse Mot. Summ. J. 35, ECF No.
99.
The ADA says that “no covered entity shall discriminate against a qualified
individual on the basis of a disability in regard to job application procedures, the hiring,
25
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Similarly, the PDCRA provides that “an employer may not discharge or otherwise
discriminate against an individual because of a disability that is unrelated to the
individual’s ability to perform the duties of a particular job or position.” MCL 37.1101 et
seq.
Both statutes require employers to make reasonable accommodations for
disabled employees.
Claims brought under the ADA [and PDCRA] are evaluated under the McDonnell
Douglas burden-shifting regime. See Monette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1178–85 (6th Cir. 1996) (abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., Inc., 681 F.3d 312 (6th Cir. 2012)).
To establish a prima facie case of discrimination Thomas must show (1) he is
disabled; (2) he was otherwise qualified for the position, with or without reasonable
accommodation; (3) he suffered an adverse action; (4) the employer knew or had
reason to know of his disability; and (5) he was replaced or the job remained open.
Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012); Monette,
90 F.3d at 1185. The parties only dispute element (3), that Thomas suffered an adverse
action.
If Thomas can establish a prima facie case, the burden shifts to LCD to provide a
“legitimate, nondiscriminatory reason” for the adverse action. Monette, 90 F.3d at 1185
26
(quoting St. Mary's Honor Ctr. v. Hicks, 590 U.S. 502, 506–07 (1993)). If such a reason
is presented, Thomas must present evidence that would allow a jury to find that the
Defendant's explanation is actually a pretext for unlawful discrimination. Monette at
1186. Thomas must show that he was terminated “on the basis of disability,” 42 U.S.C.
§ 12112(a), meaning his disability was the but-for cause for his termination. Lewis, 681
F.3d at 321; Yarberry v. Gregg Appliances, Inc., 625 F. App'x 729, 735-36 (6th Cir.
2015).
The ultimate burden to prove that an employer discriminated against an
employee because of his disability remains at all times with the employee. See Monette,
90 F.3d at 1186–87. A plaintiff can prove discrimination through direct or indirect
evidence. Id. The Sixth Circuit has repeatedly recognized “[t]he direct evidence and
circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or
the other, not both.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453 (6th Cir. 2004)
(quoting Kline v. Tenn. Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997)).
Thomas’ case cannot be categorized as either a “direct” or “indirect” evidence
case. His disability discrimination claims fail not only because he does not prove but-for
his disability he would not have been fired; more fundamentally, he does not provide the
Court with evidence that he was denied reasonable accommodations.
Thomas says he was denied reasonable accommodations because LCD denied
him unpaid leave, denied his request for a voice-to-text software program, and denied
him a typing assistant. See P. Resp. to Lighthouse’s Mot. Summ. J. 22, ECF No. 100.
27
Thomas’ prima facie case for a claim of discrimination based on failure to
accommodate requires him to show: (1) he is an individual with a handicap as defined in
29 C.F.R. § 1614.203(a)(1); (2) he is qualified for the position as discussed in 29 C.F.R.
§ 1614.203(a)(6); (3) the employer was aware of his disability; (4) an accommodation
was needed; and (5) the employer failed to provide the necessary accommodation.
Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir.1997). Thomas bears the initial burden
to suggest an accommodation and to show that the accommodation is objectively
reasonable. Monette, 90 F.3d at 1183.
Denial of Leave
Thomas’ denial of leave allegation fails because he was given FMLA leave from
May 7, 2010, through August 2, 2010, the maximum amount of leave granted by the
statute, and unspecified employer leave from August 2, 2010, through August 31, 2010.
Thomas was clearly given the leave which he claims he was denied.
The allegation also fails because Thomas effectively resigned his position. The
Court is not convinced that Thomas suffered an adverse action under the ADA [and
PDCRA] with regard to denial of leave because when an employee voluntarily resigns,
“he cannot claim that he suffered an adverse employment decision under the ADA....”
Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir. 1999) (discussing
constructive versus effective resignation and finding that the plaintiff effectively resigned
and therefore, had voluntarily ended his employment relationship with the defendant).
When LOO and LCD enforced “Policy 202,” they determined Thomas effectively
resigned his position.
28
Denial of Software
Thomas’ denial of software allegation fails because he does not provide any
evidence that he responded to LCD’s request for further information about his request
for voice-to-text software. Dep. Tr. of Judith Wheeler-Williams 4-5, ECF No. 99-10.
Denial of a Typing Assistant
LCD stipulates that it denied Thomas a typing assistant by failing to brief the
Court on the allegation. The factors used to determine whether an accommodation is
reasonable include: “(1) the particular job involved, its purpose, and its essential
functions; (2) the employee's limitations and how those limitations can be overcome; (3)
the effectiveness an accommodation would have in enabling the individual to perform
the job; and (4) the preference of the employee.” Keever v. City of Middletown, 145 F.3d
809, 812 (6th Cir. 1998) (citing 29 C.F.R. app. § 1630.9(a)). If multiple reasonable
accommodations exist, the employer is given discretion to choose between them.
Hankins v. Gap, Inc., 84 F.3d 797, 800–01 (6th Cir. 1996) (“As the Supreme Court has
held in analogous circumstances, an employee cannot make his employer provide a
specific accommodation if another reasonable accommodation is instead provided.”)
(citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68–69 (1986).
Thomas testified that LCD allowed him to handwrite his work. Dep. Tr. of P. 22,
ECF No. 99-5. The Court finds that Thomas’ requested accommodation was met with a
reasonable alternative accommodation by his employer.
Thomas Also Fails to Rebut LCD’s Reason for Termination
29
Thomas’ disability discrimination claims also fail since he does not sufficiently
rebut LCD’s reason for termination. Thomas simply rejects the idea that he was fired
because of continued absences. He offers no tangible evidence that could allow a
reasonable jury to conclude he was denied reasonable accommodations, suffered an
adverse action, or that LCD’s reason for termination was pretextual.
The Court finds that no genuine issues of material fact regarding Thomas’ ADA
and PDCRA discrimination claims exist.
2. ADA and PDCRA Retaliation Claim
To establish a prima facie case of retaliation, Thomas must show that (1) he
engaged in protected activity, (2) LCD took an adverse employment action against him,
and (3) there was a causal connection between the protected activity and the adverse
employment action. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000).
The parties dispute elements (2) and (3). Lighthouse Mot. Summ. J. 35, ECF No. 99.
If Thomas establishes a prima facie ADA [or PDCRA] retaliation claim, the
Defendants have the burden to “prove by a preponderance of the evidence that the
employment decision would have been the same absent the protected conduct.”
Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir. 2000). If the Defendants do so,
then Thomas must “show that the proffered reason was not its true reason but merely a
pretext for retaliation” by demonstrating that Defendants’ proffered reason: (1) has no
basis in fact, (2) did not actually motivate the Defendants’ action, or (3) was insufficient
to motivate the Defendants’ action. Harris v. Metro. Gov't of Nashville & Davidson Cnty.,
30
594 F.3d 476, 486 (6th Cir. 2010) (citing Manzer v. Diamond Shamrock Chems. Co., 29
F.3d 1078, 1084 (6th Cir. 1994)). “Although the burden of production shifts between the
parties, the plaintiff bears the burden of persuasion throughout the process.” Dixon, 481
F.3d at 333.
Thomas substantiates his retaliation claim with two sentences: “after Plaintiff
reported harassment, he testified that the work environment changed. All of which
created a retaliatory hostile work environment for Plaintiff. The retaliation culminated
with Plaintiff’s discharge.” Pl.’s Resp. to Mot. Summ. J. 24, ECF No. 100.
With this small amount of proffered, conclusory evidence, the Court is not
convinced LCD took an adverse employment action against Thomas; nor is the Court
convinced that there is a causal connection between Thomas’ protected activity and the
alleged adverse action. When Thomas failed to return to work after missing numerous
return deadlines, he effectively resigned. Hammon, 165 F.3d at 447; September 15,
2010 Letter from Lighthouse to Pl., ECF No. 99-22.
LCD also argues that Thomas cannot rebut its proffered reason for terminating
him (failure to return to work). In response, Thomas merely reasserts his claim of
disability retaliation. The Court finds that Thomas has provided insufficient evidence to
permit a reasonable jury to find that LCD’s reason for termination was pretextual.
No genuine issues of material fact exist regarding Thomas’ ADA and PDCRA
retaliation claims.
31
The Court GRANTS LOO’s and LCD’s motion for summary judgment (ECF No.
99) with respect to both Thomas’ ADA and PDCRA discrimination and retaliation claims.
F. Intentional Infliction of Emotional Distress
To succeed on his claim for intentional infliction of emotional distress, Thomas
must prove: (1) “extreme” and “outrageous” conduct; (2) intent or recklessness; (3)
causation; and (4) severe emotional distress. Brown v. Cassens Transp. Co., 546 F.3d
347, 364 (6th Cir. 2008); Roberts v. Auto–Owners Ins. Co., 422 Mich. 594, 602 (1985).
Liability has only been found:
where the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse resentment against the
actor, and lead him to exclaim, “Outrageous!”
Id. at 602–03, 374 N.W.2d 905 (quoting Restatement (Second) of Torts § 46,
comment d, p. 72–73).“It is generally the duty of the trial court to determine whether a
defendant's alleged conduct may reasonably be regarded as so ‘outrageous.’ Where
reasonable minds may differ, the question is for the jury.” Garretson v. City of Madison
Heights, 407 F.3d 789, 799 (6th Cir. 2005).
Though a jury could find Sterns’ alleged conduct to have been sufficiently severe
to constitute racial harassment, and that Thomas was offended, Thomas has failed to
provide the Court with adequate evidence to prove IIED elements (1), (2), or (3). The
Court is not convinced Sterns’ conduct was “extreme” or “outrageous” for the purposes
32
of IIED. Thomas fails to offer evidence beyond his own statements and allegations
regarding Sterns’ intent or recklessness. He also does not substantiate a link between
Sterns’ conduct and his own severe emotional distress. He merely asserts that Sterns’
conduct and comments constitute IIED.
The Court finds there is no genuine issue of material fact with respect to IIED.
The Court GRANTS Sterns’ motion for summary judgment (ECF No. 98) on Thomas’
IIED claim.
V.
Conclusion
These claims are dismissed:
(1) LOO’s and LCD’s motion for summary judgment (ECF No. 99) with
respect to Thomas’ discrimination and retaliation claims under Title VII,
Elliott-Larsen, the ADA, the PDCRA, and the FMLA is GRANTED.
Thomas’ interference claim brought under the FMLA is also dismissed;
(2) Ziraldo’s motion for summary judgment (ECF No. 98) with respect to
Thomas’ harassment, discrimination and retaliation claims under ElliottLarsen is GRANTED; and
(3) Sterns’ motion for summary judgment (ECF No. 98) on Thomas’ claim
of intentional infliction of emotional distress is GRANTED.
Only this claim will proceed to trial:
33
Thomas’ racial harassment claim brought under Title VII and Elliott-Larsen
against LOO and LCD (ECF No. 61).
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: 5/4/16
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