Thomas v. Doan Construction Company

Filing 18

OPINION & ORDER granting in part and denying in part 12 Motion for Partial Summary Judgment. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Kenyetta Thomas,
Case No. 13-11853
Plaintiff,
Honorable Nancy G. Edmunds
v.
Doan Construction Company,
Defendant.
/

OPINION AND ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [12]
Plaintiff Kenyetta Thomas has filed this Family and Medical Leave Act, 29 U.S.C. §
2611, et seq.(FMLA), and Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA),
action against her former employer, Defendant Doan Construction Company. (Dkt. 1.) She
alleges that Defendant violated her FMLA rights when it terminated her in retaliation for
taking time off to care for her dying biological father. She also alleges that Defendant
violated her FLSA rights when it did not pay her for overtime, to which she claims she was
entitled, because Defendant characterized her as a salaried employee.
Defendant has filed a motion for partial summary judgment. Defendant argues that
Plaintiff’s FMLA claim fails because she cannot establish that she was entitled to FMLA
leave, that Defendant did not know she was exercising FMLA leave, and because she
cannot establish causation. As to the FLSA claim, Defendant seeks partial summary
judgment as to the proper measure of damages and the proper statute of limitations.

Because the Court finds that Plaintiff has made the required modest showing of a
prima facie case of FMLA retaliation, the Court DENIES Defendant’s motion for summary
judgment on the FMLA claim. Because the Court finds that a factual issue exists as to the
parties’ understanding about the hours Plaintiff would work, the Court DENIES without
PREJUDICE Defendant’s motion for summary judgment on the calculation of damages on
her FLSA claim. And finally, because the Court agrees with Defendant that Plaintiff has
brought forth no evidence that Defendant willfully violated the FLSA, the Court GRANTS
Defendant’s motion for summary judgment on the willfulness statute of limitations issue.
I.

Facts
A. Plaintiff’s facts
In 1995, Plaintiff started work as a secretary at Ernst Concrete and Supply. (Def.’s

Mot. for Summ. J., Ex. 8, Pl.’s Dep. at 9.) In 2000, Defendant purchased Ernst. (Id. at 910.) When Defendant purchased Ernst, Plaintiff was still a secretary, but she was also
training for various other positions. (Id. at 10.)
As time went on while working for Defendant, Plaintiff states that she had increased
responsibilities. (Pl.’s Dep. at 10.)
By 2010, Plaintiff states that she was transitioning from working in accounts payable
to payroll. (Pl.’s Dep. at 13.)
Plaintiff does not mention any problems that she and Defendant had with her or with
her work product for the first twelve years she had been working for Defendant. Problems
started, though, in June, 2012, when Plaintiff got married and took her honeymoon. (Pl.’s
Dep. at 116-17.) Defendant paid for Plaintiff and her husband’s travel and hotel as a
honeymoon gift. (Id.)
2

The first report of any problem between Plaintiff and Defendant occurred on June 26,
2012, when Plaintiff had an interaction with Kevin Hoatlin, Defendant’s chief financial officer
and Plaintiff’s boss. (Pl.’s Dep. at 120.) She states that he was being “moody” and had
said some things, which she could not recall, and that she then took her lunch break early,
at 11:15 am, and then she did not go back to work. (Id.)
In July, 2012, Plaintiff states that she learned that her biological father, Joe Whiteside,
who lived in Alabama, was diagnosed with pancreatic cancer and that she learned that he
had two to three months to live. (Pl.’s Dep. at 122.)
Prior to the diagnosis, Plaintiff states that she did not see her biological father
frequently, for he had retired in Alabama. (Pl.’s Dep. at 122.) She says that she talked with
him over the phone, but that there was a period of time that he was not in her life. (Id.)
She explains that he was not in her life when she was young, but that they eventually, prior
to 2000, took steps to rebuild their relationship. (Id.) She states that he came to stay with
her in 2005, for several months, but then that he went back to Alabama. (Id. at 123.) After
2005, she did not see him that frequently, but she says that she spoke with him several
times per month on the phone. (Id.)
Around August 28 or 29, 2012, Plaintiff states that her biological father moved to
Michigan so that she could care for him. (Pl.’s Dep. at 124.) From the time Whiteside went
to live with Plaintiff until his passing in early October, 2012, Plaintiff states that she was his
primary caregiver. (Id. at 123-25.) She explains that she took time off and did not work
regular business hours during this period. (Id. at 166-67.) She maintains that she worked
during the evenings and weekends. (Id.) She further maintains that she took several full
and part days off during September and October to care for her father.
3

On October 16, 2012, Plaintiff states that she filled out FMLA paperwork and gave it
to Hoatlin. (Pl.’s Dep. at 129.) The paperwork indicates that she gave it to Hoatlin around
eleven a.m. and that she intended it for her employee folder. (Id.)
Plaintiff states that the reason she gave Hoatlin the FMLA paperwork was to show that
her biological dad did have cancer and that he needed her to care for him. (Pl.’s Dep. at
143.) She also claims that she submitted the information so that she would create a paper
trail, to have something in her employee folder. (Id.)
In November, 2012, Plaintiff had a discussion with Hoatlin and Matt Doan, Defendant’s
owner and Hoatlin’s boss, about her work availability. (Pl.’s Dep. at 144.) She explains
that they wanted her to get back to a normal schedule. (Id.) She also explains that they
wanted her to catch up with some items that were not yet completed, such as some open
employee folders and certified payrolls. (Id.) She says that Hoatlin made a comment to
her that she took as a threat about her job. (Id.)
Plaintiff states that, in January, 2013, Hoatlin became more hostile to her because of
her turning in the FMLA paperwork. (Pl.’s Dep. at 157.) She explains that she has no
reason to believe it was because of her work performance. (Id.)
In February, 2013, Defendant terminated Plaintiff. Immediately preceding Plaintiff’s
termination, Plaintiff was working on reports in preparation for an audit that Defendant’s
auditors were going to conduct on Monday, February 11, 2013, the day Hoatlin fired
Plaintiff. Hoatlin had been out of the office at the end of the week before the audit. Plaintiff
admits that she did not finish the reports she is accused of not finishing. Plaintiff explains
that that week, two coworkers had been out, one was sick, and one left early. (Pl.’s Dep.

4

at 152.) Plaintiff adds that Hoatlin had to complete one of the tax reports, and because he
had not completed it, he was holding her up. (Id. at 158-59.)
On February 22, 2013, Plaintiff submitted a letter memorializing and disputing the
events that led up to her termination. (Pl.’s Resp., Ex. 6.) Plaintiff states that she arrived
at 7:30 a.m. on Monday February 11, 2013. (Id.) She explains that she arrived early that
day to work on and complete the remaining items for the audit. (Id.) She adds that she
had had an email discussion with Hoatlin about the audits on Saturday. (Id.)
Plaintiff maintains that Hoatlin had told his staff, on January 10, 2013, that they were
no longer supposed to communicate by text messages, so she emailed him. (Pl.’s Resp.,
Ex 6.)
Plaintiff states that the items that still needed completing related to the tax portion of
the audit, which she alleges Hoatlin told her, on Thursday, January 31, 2013, that they
would have time to complete while the auditors were on site. (Id.)
On February 11, 2013, Plaintiff alleges that, when Hoatlin entered her office to return
the monthly fixed assets spreadsheet, Hoatlin was already angry. (Pl.’s Resp., Ex. 6.) She
states that he asked her about the pension reports and why they were not on the “s” drive.
(Id.) She states that she responded that she had not worked on those reports and that she
believed that they were saved on another co-worker’s computer. (Id.)
She maintains that he started raising his voice at her about not communicating with
him and she claims that she told him that she had emailed twenty-seven reports to him on
Saturday for him to review. (Pl.’s Resp., Ex. 6.) She claims he took issue with the fact that
she took eight hours to respond to his text. (Id.) She also claims that he asked about the
Fixed Asset Tax Report and why she had not completed it. (Id.) She explains that she told
5

him that she would need help with the report. (Id.) She also says that he continued talking
to her with a raised voice and asked her why she had not told him last week. (Id.) She
says she turned her back to him so that she could open a file on her computer. (Id.) And
she says that she explained that one co-worker had been out sick and the another had left
early one day and was out another day. (Id.)
She states that Hoatlin then yelled “get out” and pointed his finger in her face. (Pl.’s
Resp., Ex. 6.) She claims that she grabbed her phone and he told her that she had to
leave the phone, since it was a company phone. (Id.) She claims that she responded that
the phone had videos of her dead father on it and that she would return the phone by
Friday. (Id.)
She states that she then called Matt Doan, Hoatlin’s boss and the company’s owner,
and told him that Hoatlin had just fired her. (Pl.’s Resp., Ex. 6.) She claims that Doan said
that he needed to speak with Hoatlin. (Id.)
At the end of her letter, Plaintiff states that she has been suffering abuse from Hoatlin
since June 28, 2012 and since she turned in her FMLA papers for caring for her father.
(Pl.’s Resp., Ex. 6.) She maintains that she loved working for Defendant, and that the
company treated her like family until she turned her FMLA papers in. (Id.) She comments
that she was trusted, her ethics were unquestionable, that her work performance was
stellar, and that she worked above and beyond the time required of her, so that she could
ensure that company standards were upheld. (Id.)
B. Defendant’s facts
Defendant has submitted Kevin Hoatlin’s affidavit in support of its motion. (Def.’s Mot.
for Summ. J., Ex. 1, Hoatlin Aff.) Hoatlin is currently Defendant’s chief financial officer. (Id.
6

¶ 2.) Since 1997, he has worked for Defendant. (Id. ¶ 3.) He has been its CFO since
2002. (Id.) He states that he was Plaintiff’s supervisor for over ten years. (Id.) He states
that Plaintiff has received a fixed salary for the entire time he has worked with her. (Id. ¶
2.)
Starting in 2010, Hoatlin explains that Plaintiff was Defendant’s payroll manager.
(Hoatlin Aff. ¶ 5.) He says that her duties included overseeing the payroll for all of
Defendant’s employees, except for the executive team, which included Plaintiff. (Id.)
Hoatlin maintains that Plaintiff was a “good employee” for more than ten years.
(Hoatlin Aff. ¶ 10.) But in 2011, Hoatlin explains that Plaintiff’s performance review was
disappointing. (Id.) He states that Plaintiff “did not engage fully in the process like she had
in previous years.” (Id.) He claims, though, that Plaintiff nevertheless received a $2,000.00
“net bonus for 2011. (Id.)
Hoatlin states that, after Plaintiff became engaged in 2012, “she became distracted
with phone calls and personal issues.” (Hoatlin Aff. ¶ 14.) He adds that she “began to
close her office door and was often not available even though she was physically present
in the office.” (Id. ¶ 15.)
Hoatlin states that, in 2012 and 2013, Plaintiff’s “performance was inconsistent and
sub-standard, and her communication was [] unprofessional at times.” (Hoatlin Aff. ¶ 17.)
As an example, Hoatlin points to June 26, 2012, when Plaintiff “became angry and left
suddenly at around 11:00 a.m. and did not return.” (Id.) He adds that she did not return
phone calls or text messages that day. (Id.)
Hoatlin explains Defendant’s vacation and sick days policy as applicable to
Plaintiff–twenty days of vacation and sick time combined. (Hoatlin Aff. ¶ 19.) In 2012,
7

Hoatlin maintains that Plaintiff exceeded her vacation and sick days and that Defendant still
paid her for those thirty-five days that she did not work. (Id. ¶ 21.)
Hoatlin states that Plaintiff requested time off on September 18, 2012 so that she
could help her father with a doctor’s appointment. (Hoatlin Aff. ¶ 23.) Hoatlin states that
Defendant paid Plaintiff for that time off. (Id.) At that time, Hoatlin says that he did not
question whether the person for whom she was taking time off was her father. (Id.)
Hoatlin recounts that Defendant also paid Plaintiff for her time off on September 19,
27, and 28, and October 3-5, 2012. (Hoatlin Aff. ¶ 24.)
On October 16, 2012, Plaintiff gave Hoatlin an FMLA form for her employee folder.
(Hoatlin Aff. ¶ 25.)
In November, Defendant paid Plaintiff for three days off, for her travel to Alabama for
her father’s funeral. (Hoatlin Aff. ¶ 26.)
Hoatlin maintains that he never thought or believed that Plaintiff had taken any FMLA
leave. (Hoatlin Aff. ¶ 27.) He suggests that the paperwork Plaintiff gave him for her
employee file was given “after the fact, when the leave and the funeral had already
concluded.” (Id.)
Hoatlin states that Plaintiff never offered to switch her leave from paid to unpaid “as
would have been permitted under FMLA.” (Hoatlin Aff. ¶ 28.)
Hoatlin states that, despite Plaintiff’s “sub-standard performance” in 2012, Defendant
paid her a $750.00 “net bonus,” the same amount it paid a similarly-situated employee, in
addition to paying for her thirty-five days off. (Hoatlin Aff. ¶ 29.)
Immediately before terminating Plaintiff, Hoatlin explains that he was out of the office,
Wednesday through Friday. (Hoatlin Aff. ¶ 32.) He explains that, before he left for the
8

week, he “emphasized” to Plaintiff that certain audit reports needed to be ready when he
returned, on February 11, 2013, since Defendant’s auditor would be auditing Defendant
that day. (Id.) Hoatlin claims that he asked Plaintiff to “follow up” with him on Saturday,
February 9, 2013, so that they would be ready for the Monday morning audit. (Id. ¶ 33.)
Hoatlin states that he called Plaintiff twice on that Saturday, but that she did not answer or
return the phone calls. (Id. ¶ 34.)
When Hoatlin arrived to work on Monday, February 11, 2013, he states that he asked
Plaintiff about the reports, and she told him that the reports were not finished. (Hoatlin Aff.
¶35.) He states that union reports were also due that day and were not done. (Id. ¶ 36.)
He recounts that he asked Plaintiff why the reports were not done and why she did not
contact him if she was having difficulty preparing the reports. (Id. ¶ 37.) He alleges that she
put her hand up in a “stop” signal and “avoided answering by making excuses as to why
the work supposedly was not done.” (Id.) He states he asked her again why she did not
answer his calls. (Id. ¶ 38.) He says that she then “turned her body away from” him and
told him that she was not going to talk to him anymore. (Id. ¶ 39.) He then says that he
told Plaintiff “that if she couldn’t talk with me, [he] no longer needed her services.” (Id. ¶
40.)
Hoatlin maintains that he terminated Plaintiff for her failures of communication and her
failure to complete important time-sensitive reports for the audit. (Hoatlin Aff. ¶ 41.)
He states that he “honestly believed at the time and still [believes] today that [he]
could not work with [Plaintiff] given her failure to do her job and her refusal to follow up and
communicate professionally with [him.]” (Hoatlin Aff. ¶ 42.)

9

Hoatlin says that he terminated Plaintiff at 8:15 a.m. that Monday morning and that
Defendant paid Plaintiff for two hours of work. (Hoatlin Aff. ¶ 43.)
II.

Rule 56 motion for summary judgment standard
It is well established that summary judgment under Federal Rule of Civil Procedure

56 is proper when the movant "shows that there is no genuine dispute as to any material
fact, and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
U.S. SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted). When
reviewing the record, "the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor." Id. Furthermore, the
"substantive law will identify which facts are material, and summary judgment will not lie if
the dispute about a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
When considering the material facts on the record, a court must bear in mind that
“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
III.

Analysis
A. Plaintiff has met the modest burden of setting forth a prima facie case of
FMLA retaliation
Plaintiff alleges that Defendant violated the FMLA when Hoatlin terminated her, at

least in part, for exercising her FMLA rights. Defendant argues that Plaintiff cannot prove
all of the elements of a prima facie case of FMLA retaliation.
10

To establish a prima facie case of FMLA retaliation, Plaintiff must show by a
preponderance of evidence that (1) she was engaged in an activity protected by the FMLA;
(2) that Defendant knew that she was exercising her rights under the FMLA; (3) after
learning of the employee’s exercise of FMLA rights, Defendant took an adverse
employment action against her; and (4) there was a causal connection between the
protected FMLA activity and the adverse employment action. Tillman v. Ohio Bell Tel. Co.,
—F. App’x—, 2013 WL 5539612, at *8 (6th Cir. Oct. 8. 2013) (citations omitted).
Defendant argues that Plaintiff’s FMLA retaliation claim fails at the first, second, and
fourth elements of a prima facie case. (Def.’s Mot. at 7.) Defendant first argues that
Plaintiff cannot sustain her burden of proof that Joe Whiteside was her father, Defendant
therefore alleges that Plaintiff cannot show that she engaged in a protected activity.
Defendant then argues that Plaintiff cannot show that Defendant ever knew that Plaintiff
was taking FMLA-designated leave. (Id. at 7-8.) And Defendant finally argues that Plaintiff
cannot satisfy the causation element. (Id. at 8.)
1. Plaintiff has brought forth evidence that she engaged in an FMLA
protected activity
Under the FMLA, a person seeking leave must show that she engaged in protected
activity. Here, Plaintiff argues that she did engage in protected activity when she took care
of her alleged biological father, Joe Whiteside, during the last days of his life as he was
dying from pancreatic cancer.1

1

The FMLA entitles an eligible employee to twelve workweeks of leave during any twelve
month period in order to care for a parent, if the parent has a serious health condition. 29
U.S.C. § 2612(a)(1)(C).
11

Defendant argues that Plaintiff cannot legally prove that Joe Whiteside was her
biological father. Defendant represents that, after Plaintiff’s deposition, it obtained Plaintiff’s
marriage certificate. (Def.’s Mot. at 5.) Defendant states that Plaintiff’s marriage certificate
lists Willie G. Thomas, the man who was married to her mother during her birth, as her
father. (Id.)
Under FMLA regulations, “[p]arent means biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the employee when the
employee was a son or daughter as defined in paragraph (d) or this section.” 29 C.F.R. §
825.122(c). Under the FMLA, a parent-in-law is not a parent. Id.
Here, Plaintiff argues that Joe Whiteside was her biological father, and therefore that
she was entitled to take FMLA leave to care for him. In support of her argument, she has
her deposition testimony and her mother’s affidavit. Alabama Thomas, Plaintiff’s mother,
has submitted an affidavit explaining the circumstances surrounding Plaintiff’s birth. Ms.
Thomas states that she married Willie George Thomas on July 27, 1965. (Thomas Aff. ¶
3.) Six years later, in 1971, Ms. Thomas states that she separated from Mr. Thomas and
never resided with him again. (Id. ¶ 4.) She adds that she and Mr. Thomas were divorced
in 1990. (Id.)
On September 1, 1972, Ms. Thomas gave birth to Plaintiff, “at least fifteen months
after [her] separation from Mr. Thomas and any conjugal relations between [them.]”
(Thomas Aff. ¶ 5.) Ms. Thomas states that she lived with Whiteside for several years and
that she had three children with him. (Id. ¶ 8.) Ms. Thomas explains that, in 1980, she
attempted to have Plaintiff’s birth certificate to reflect the correct paternity. (Id. ¶ 10.) But,
Thomas states, because there has been no judicial determination of paternity, she could
12

only get an amendment to reflect Plaintiff’s true name, Kenyetta Paulette Whiteside. (Id.)
Thomas states that Whiteside is Plaintiff’s biological father. (Id. ¶ 9.)
Defendant argues that Plaintiff cannot prove that Whiteside was her biological father.
Defendant points to requests for admissions that it sent to Plaintiff, to which Plaintiff
responded that Whiteside was not listed as her father on her birth certificate and her
marriage certificate and never filed a paternity suit to establish his paternity.2
Defendant points to Michigan law and the Michigan Parenting Act to argue that
Plaintiff cannot legally show that Whiteside was her biological father and therefore that her
FMLA claim must fail because the time she spent caring for him while he was in hospice
is not a protected activity under the FMLA.
Defendant argues that Barnes v. Jeudevine, 718 N.W.2d 311 (Mich. 2006), should
persuade the Court that Plaintiff’s FMLA claim must fail. In Barnes, the court addressed
whether the plaintiff, a man seeking to establish that he was a child’s legal father, had
standing under Michigan’s Paternity Act to seek a determination of paternity. 718 N.W.2d

2

Defendant sent requests for admissions to Plaintiff. (Def.’s Mot., Ex. 7, Pl.’s Req.for
Admiss.) Plaintiff admitted that she was born on September 1, 1972, while her mother was
still legally married to Willie George Thomas. (Id.) She also admitted that a court never
adjudicated whether Willie George Thomas was not her biological father. (Id.) Plaintiff also
acknowledged that she listed Willie George Thomas as her father on her marriage license.
(Id.) But she clarified that “she was not permitted to list her actual father, Joe Whiteside,
on the marriage license because he was not named as her father on her birth certificate.”
(Id.)
In the admissions, Plaintiff also admitted that Joe Whiteside never adopted her,
never married her mother, and that she was never a foster child. (Def.’s Mot., Ex. 7.) She
also admitted that Joe Whiteside was not listed as her father on her birth certificate. (Id.)
But she added that her amended birth certificate lists her name as Kenyetta Whiteside.
(Id.)
Plaintiff also admitted that she never filed a paternity suit against Joe Whiteside and
that Joe Whiteside never filed a paternity suit claimed that she was his child. (Def.’s Mot.,
Ex. 7.)
13

at 312. The court held that he did not have standing. Id. The case deals with the
procedures a person must go through to establish contested paternity over a child.
Defendant asserts, and is correct, that, to establish paternity of a child who was born
during a marriage, a party must have a judicial determination that the child in question was
not the issue of the marriage before the child turns eighteen years old. Barnes, 718
N.W.2d at 314 (citation omitted). This judicial determination is necessary in Michigan, the
Court notes, because there is a “presumption that children born or conceived during a
marriage are the issue of that marriage[.]” Id. (citation omitted). But, that presumption of
legitimacy can be overcome by a showing of clear and convincing evidence. Id. (citation
omitted).
Here, the Court acknowledges Defendant’s argument and the fact that there was no
judicial determination that Whiteside was Plaintiff’s biological father. But the Court finds
that Plaintiff’s sworn statement and her mother’s affidavit is sufficient to satisfy Plaintiff’s
modest burden of showing the first element of prima facie FMLA case, that she was entitled
to FMLA leave to care for her alleged biological dad. This case is not a paternity suit. The
strictures of Michigan law and its Paternity Act are not at issue here. The Court finds that
a jury could believe that Plaintiff took leave to care for her biological dad. Her testimony
and Ms. Thomas’s affidavit are sufficient to meet the first element of a prima facie case of
retaliation.
Defendant objects to the affidavit. (Def.’s Reply at 2.) Defendant argues that
Plaintiff’s mother was not on her witness list and that the affidavit is therefore inadmissible.
(Id.) Defendant maintains, and is correct, that under the Acknowledgment of Parentage
Act, for a properly executed affidavit of parentage, the child must be “born out of wedlock.”
14

Aichele v. Hodge, 673 N.W.2d 452, 458 (Mich.Ct.App. 2003). Here, Plaintiff was not born
out of wedlock, and the parties acknowledge so.
The Court permits the affidavit and will permit the testimony of Plaintiff’s mother, if
need be, over Defendant’s arguments. Again, this is not a suit to establish parental rights.
That fact takes this case out of the realm of a paternity suit and the cases addressing the
proper procedures to establish paternity.
The Court finds that, more likely than not, Defendant’s argument in its brief may be
the first time that Plaintiff knew that Defendant was going to challenge that she was entitled
to FMLA leave. The Court finds that the affidavit in response, while tardy, was not done
in bad faith.
2. Defendant knew of Plaintiff’s potentially-qualifying FMLA leave
Defendant next argues that Plaintiff cannot establish that Defendant knew Plaintiff was
exercising FMLA rights. (Def.’s Mot. at 10.) Defendant states that it gave and paid Plaintiff
for time off that exceeded the company’s personal and sick time off. (Id.) Defendant states
that, eleven days after Plaintiff’s biological father died, on October 16, 2012, Plaintiff turned
in an FMLA form to Hoatlin but told him that it was just for her file. (Id. at 11.)
The FMLA form that Plaintiff turned in to Hoatlin is titled “Certification for Health Care
Provider for Family Member’s Serious Health Condition.” (Def.’s Mot., Ex. 10.) Both
Plaintiff and a medical provider filled out the form. Plaintiff dated the form September 18,
2012. The medical provider dated the form September 21, 2012. (Id.) Defendant did not
fill out the form. (Id.)

15

Defendant argues that, because Plaintiff had already taken leave and because the
leave was paid, not unpaid, Defendant and Hoatlin never believed that Plaintiff was using
FMLA leave. (Def.’s Mot. at 11.)
The Court rejects Defendant’s argument. Here, there is evidence that Plaintiff
informed Defendant that she needed to take time off because of her sick father. She also
reaffirmed the need to take care of her sick father when she filled out the FMLA form and
turned it in to Hoatlin.
Under the FMLA, “an employee does not need to use the name of FMLA in her
request for FMLA-qualifying leave.” Robinson v. T-Mobile, 663 F.Supp.2d 604, 614
(M.D.Tenn. 2009) (citation omitted); see also 29 C.F.R. § 825.303(b). What is required of
an employee is that she provided “notice to the employer as soon as practicable under the
facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). The notice must
provide “ sufficient information for an employer to reasonably determine whether the FMLA
may apply to the leave request.” 29 C.F.R. § 825.303(b). An employee need not mention
the FMLA by name. Id.
Here, Plaintiff did all that was required of her under the FMLA, she informed
Defendant of her need to care for her sick father and she reaffirmed the need, with
specifics and a medical provider’s signature, after her leave. See Robinson, 633 F.Supp.2d
at 614-15 (noting that courts in the Sixth Circuit have found that an employee gave
sufficient notice that a leave may have qualified under the FMLA when the employee called
her employer and said that her daughter was sick and then, upon returning to work,
reiterated that the child was sick.) (citations omitted).
Plaintiff therefore satisfies the second element of a prima facie case.
16

Defendant argues that Plaintiff cannot claim that she had unpaid FMLA leave because
it paid her. Whether Defendant paid Plaintiff for the leave does not change the analysis.
See Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 281 (6th Cir. 2012) (“The FMLA
does not preclude employers from offering employees paid medical-leave benefits in
tandem with FMLA unpaid leave; in fact, an employer may require an eligible employee to
substitute accrued paid leave for unpaid FMLA leave, with such paid leave to run
concurrently with the FMLA leave.” “If an employee does not comply with the additional
requirements in an employer’s paid leave policy, the employee is not entitled to substitute
accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.”).
3. Plaintiff has made the modest showing necessary to establish a causal
connection between her alleged FMLA leave and her termination3
3

The Court notes that there is an issue on which standard applies to Plaintiff’s claims:
the single-motive McDonnell Douglas burden shifting standard or the mixed-motive
standard. The Sixth Circuit has stated that “the standard applicable to employment
discrimination claims ‘depends not on the type of evidence presented (direct versus
circumstantial), but on the type of claim brought (single-motive versus mixed-motive).’”
Grubb v. YSK Corp., 401 F. App’x 104 (6th Cir. 2010) (quoting Hunter v. Valley View Schs.,
579 F.3d 688, 692, n. 2 (6th Cir. 2009). The Sixth Circuit has additionally stated that
“single-motive and mixed-motive theories are not distinct claims, but rather different ways
of analyzing the same claim.” Griffin v. Finkbeiner, 689 F.3d 584, 594, n. 7 (6th Cir. 2012).
While a district court must, at some time, determine whether the case involves a mixedmotive or single-motive claim, that decision “may not always occur before the summaryjudgment stage, because the nature of an employment-discrimination case will often
emerge after discovery or even at trial.” Id. (citations and internal quotation marks omitted).
See Callaway v. Academy of Flint Charter Sch., 904 F.Supp.2d 657 (E.D.Mich. 2012)
(Edmunds, J.).
Some FMLA interference and retaliation claims are subject to the burden-shifting
framework that the Supreme Court established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012). If Plaintiff
properly pleads a prima facie case, then Defendant bears the burden to show that it had
“a legitimate reason unrelated to the exercise of FMLA rights for terminating [Plaintiff.]”
Donald, 667 F.3d at 762. If Defendant shows this legitimate reason, then Plaintiff bears the
burden to show that the “proffered reason had no basis in fact, did not motivate the
termination, or was insufficient to warrant the termination.” Id.
17

As to the last prima facie case element, Defendant argues that Plaintiff cannot
demonstrate a causal connection between taking leave to care for her biological father and
Defendant terminating her. (Def.’s Mot. at 11.) Defendant maintains that the time between
Plaintiff’s alleged FMLA leave and her termination does not create an indicia of causation.
Defendant additionally argue that, even if Plaintiff were to establish causation, Defendant
had an honest belief in its reason to terminate Plaintiff and therefore can take advantage
of the “honest belief” rule. (Def.’s Mot. at 12.)
Plaintiff argues that she has put forth enough evidence, direct and circumstantial
combined, to satisfy her burden in putting forth a prima facie case of retaliation, based on
the argument that her FMLA leave was a factor in her termination. (Pl.’s Resp. at 10.)
Plaintiff also argues that Defendant cannot avail itself of the “honest belief” rule.” (Id. at 1213.)
In the Sixth Circuit, temporal proximity matters. Seeger, 681 F.3d at 283-84. Put
another way, the closer an adverse action is to an employee's taking protected leave, the
more probable that the adverse action was based on the protected leave. Id.
Here, Defendant states that the around-four-months between Plaintiff's leave and her
termination is too long of a time span for the Court to find that it satisfies the causal

Under a mixed-motive theory, a plaintiff can prove "by either direct or circumstantial
evidence that her FMLA was a motivating factor" in her termination. Wallner v. J.J.B.
Hillard, W.L.Lyons, LLC, 11-00359, 2013 WL 5934145, at *13 (W.D.Ky. Nov. 5, 2013)
(citing White v. Baxter Healthcare Corp., 533 F.3d 381, 401 (6th Cir. 2008)). "This burden
of producing some evidence in support of a mixed-motive claim is not onerous and should
preclude sending the case to the jury only where the record is devoid of evidence that could
reasonably be construed to support the plaintiff's claim." White, 533 F.3d at 400 (citation
omitted).

18

connection element. Defendant relies on Seeger, stating that the Seeger court did not
recognize a case in which the Sixth Circuit held that four months between the FMLA leave
and the adverse action was sufficient to indicate retaliation.
Defendant is correct that Seeger does not point to a case in which the temporal
proximity was greater than three months. But, the Sixth Circuit has also stated that
"previous cases that have permitted a prima facie case to be made based on the proximity
of time have all been short periods of time, usually less than six months." Nguyen v. City
of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (citation omitted).
Defendant, though, does not address Plaintiff's other suggested evidence of
retaliation–the "availability" statement, and Hoatlin's negative attitude.
The Court finds that the evidence that Plaintiff has put forth: the timing, the
"availability" statement; and the increasing negative attitude, taken together, constitutes
sufficient evidence to withstand a motion for summary judgment. Plaintiff recognizes that
the timing of the case, taken alone, would put this case on the "borderline" of temporal
proximity cases. (Pl.'s Resp. at 11-12.) But, the temporal proximity plus the additional
testimonial evidence is sufficient to establish a prima facie case under either a single or
mixed-motive analysis.
Defendant next argues that the "honest belief" rule should protect it from liability.4
Plaintiff states that the "honest belief" rule is not applicable in mixed-motive cases, but that,
even if this case were governed by the McDonnell Douglas burden shifting framework,
Plaintiff has raised an issue of fact as to whether Defendant had an "honest belief."

4

The “honest belief” rule applies to FMLA retaliation cases. Tillman, 2013 WL 5539612,
at *9 (citations omitted).
19

The honest belief rule provides that, “‘as long as an employer has an honest belief in
its proffered non-discriminatory reasons,’ the employee cannot establish pretext simply
because the reason is ultimately shown to be incorrect.” Tillman, 2013 WL 5539612, at *9
(citations omitted). “When the ‘honest belief’ rule is invoked, to establish pretext, ‘the
plaintiff must allege more than a dispute over the facts upon which his discharge was
based. He must put forth evidence [that] demonstrates that the employer did not ‘honestly
believe’ in the proffered non-discriminatory reason for its adverse employment action.’” Id.
(citation omitted).
To determine whether a defendant had an “honest belief” in the proffered basis for a
termination, courts look to whether a defendant company “has established a ‘reasonable
reliance’ on the particularized facts that were before it at the time the decision was made.”
Tillman, 2013 WL 5539612, at *9 (citations omitted). Courts “do not require that the
decisional process used by the employer ‘be optimal or that it left no stone unturned.” Id.
(citation omitted). “Rather, the key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse employment action.” Id.
(citations omitted).
Here, on this motion for summary judgment, Defendant is not entitled to the "honest
belief" rule and Plaintiff has raised an issue of fact as to whether the termination was based
in fact and not, at least in part, on Plaintiff's FMLA leave. Defendant claims that it
terminated Plaintiff for her failure to complete the audit reports before the auditors arrived
on Monday, February 11, 2013. But Plaintiff has raised factual issues surrounding the
termination. She has alleged that she was in communication with Hoatlin regarding the
reports over the weekend; while he has alleged that she was not in communication with him
20

over the weekend. There is a genuine issue of material fact surrounding the pretext
argument. The Court further points out that Hoatlin's decision was made in haste, it did not
appear to be a "considered decision." Defendant's "honest belief' argument fails and there
are issues of fact surrounding whether Defendant had a reason to terminate Plaintiff.
Plaintiff therefore has made a sufficient showing of a prima facie case to withstand
summary judgment on her FMLA retaliation claim.
The Court therefore DENIES Defendant's motion for partial summary judgment on
Plaintiff's FMLA claim.
B. The Court grants in part and denies in part Defendant’s motion for partial
summary judgment on Plaintiff’s FLSA claim
Defendant seeks summary judgment on two aspects of Plaintiff’s FLSA claim. (Def.’s
Mot. at 12-14.) Defendant first seeks a ruling that Plaintiff’s overtime recovery is limited to
half of the overtime hours she worked under the “fluctuating workweek” rationale. (Id.)
Defendant then seeks a ruling that Plaintiff cannot demonstrate “willfulness,” therefore
making the statute of limitations for this case two years. (Id. at 14.)
1. A factual issue exists as to whether the parties agreed to pay Plaintiff by
the fluctuating work week method
Defendant recognizes that fact issues exist for the jury on whether Plaintiff was
exempt under the FLSA. Defendant argues, though, that if Plaintiff were to convince a jury
that she was misclassified as a salaried employee, her damages would be limited to “half
of her effective hourly rate for overtime” that she establishes at trial. (Def.’s Mot. at 14.)
Defendant argues that this “fluctuating workweek” approach is the appropriate measure of
damages.

21

Plaintiff argues that Defendant never paid her under the fluctuating work week model
and therefore that any overtime amounts owed to her would be at the FLSA required oneand-one-half times her normal hourly rate for each hour of overtime she worked.5
29 CFR § 778.114 is the regulation governing the fluctuating work week model. That
regulation explains the premise behind the fluctuating work week model:
(a) An employee employed on a salary basis may have hours of work which
fluctuate from week to week and the salary may be paid him pursuant to an
understanding with his employer that he will receive such fixed amount as
straight time pay for whatever hours he is called upon to work in a workweek,
whether few or many. Where there is a clear understanding of the parties
that the fixed salary is compensation (apart from overtime premiums) for the
hours worked each workweek, whatever their number, rather than for working
40 hours or some other fixed weekly work period, such a salary arrangement
is permitted by the Act if the amount of the salary is sufficient to provide
compensation to the employee at a rate not less than the applicable
minimum wage rate for every hour worked in those workweeks in which the
number of hours he works in greatest, and he receives extra compensation,
in addition to such salary, for all overtime hours worked at a rate not less that
one-half his regular rate of pay. Since the salary in such a situation is
intended to compensate the employee at straight time rates for whatever
hours are worked in the workweek, the regular rate of the employee will vary
from week to week and is determined by dividing the number of hours
worked in the workweek into the amount of the salary to obtain the applicable
hourly rate for the week. Payment for overtime hours at one-half such rate
in addition to the salary satisfies the overtime pay requirement because such
hours have already been compensated at the straight time regular rate,
under the salary arrangement.
Broken down, § 778.114 requires four conditions before an employer may apply a
fluctuating work week model: (1) the employee's hours fluctuate from week to week; (2)
the employee receives a "fixed weekly salary" that does not vary based on the number of

5

See 29 U.S.C. § 207(a)(1): [N]o employer shall employer shall employ any of his
employees who in any workweek is engaged in commerce or in the production of goods
for commerce, for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours about specified at a rate not less
than one and one-half times the regular rate at which he is employed.
22

hours worked during the week; (3) the fixed salary provides compensation at a regular rate
that is not lower than minimum wage; and (4) there is a "clear mutual understanding"
among the parties that the fixed salary is compensation (apart from overtime premiums)
for all hours worked each workweek, whatever their number. Dorsey v. TruGreen Ltd.
P'ship, 13-10412, 2013 WL 6048999, at *8 (E.D.Mich. Nov. 15, 2013) (adopting report and
recommendation) (citing 29 CFR § 778.114(a) and (c)).6
Whether to apply the fluctuating work week model of calculating damages is a
question of law for the Court to decide. See Black v. SettlePou, P.C., 732 F.3d 492, 496
(5th Cir. 2013) (citations omitted). But, the Court can only apply that method if there is a
clear indication that "the employer and the employee have agreed that the employee will
be paid a fixed weekly wage to work fluctuating hours." Id. at 498 (citation omitted).
That question, “ whether an employer and employee agreed to a fixed weekly wage
for fluctuating hours[,] is a question of fact.” Black, 732 F.3d at 498 (citation omitted).

6

29 CFR § 778.114(c): The “fluctuating workweek” method of overtime payment may
not be used unless the salary is sufficiently large to assure that no workweek will be worked
in which the employee’s average hourly earnings from the salary fall below the minimum
hourly wage rate applicable under the Act, and unless the employee clearly understands
that the salary covers whatever hours the job may demand in a particular workweek and
the employer pays the salary even though the workweek is one in which a full schedule of
hours is not worked. Typically, such salaries are paid to employees who do not customarily
work a regular schedule of hours and are in amounts agreed on by the parties as adequate
straight-time compensation for long workweeks as well as short ones, under the
circumstances of the employment as whole. Where all the legal prerequisites for the use
of the “fluctuating workweek” method of overtime payment are present, the Act, in requiring
that “not less than” the prescribed premium of 50 percent for overtime hours worked be
paid, does not prohibit paying more. On the other hand, where all the facts indicate that
an employee is being paid for his overtime hours at a rate no greater than that which he
receives for nonovertime hours at a rate no greater than that which he receives for
nonovertime hours, compliance with the act cannot be rested on any application of the
fluctuating workweek overtime formula.
23

Here, then, there is an issue of fact whether the parties expressly agreed to a fixed
weekly wage for fluctuating hours. Defendant points to Plaintiff's statement, "I was
classified as salary and so my understanding was that I get paid a specific salary[,]" as
evidence that Plaintiff agreed to a fluctuating work week. (Def.'s Mot. at 14-15.) The Court
finds that this statement does not support a fluctuating work week, for there is no
agreement in the statement that the parties agreed to one. The Court reads Plaintiff's
statement as the fact that the salary that was offered to her was the amount she was going
to receive. There appears no negotiation. Plaintiff also testified that she did not know she
was entitled to overtime, which the regulation contemplates. This reading, though, is not
determinative of what type of method to apply if Plaintiff is entitled to damages. The Court
finds that there is an issue of fact as to what the parties' understanding regarding Plaintiff's
pay would be.
The Court therefore DENIES without PREJUDICE Defendant's motion. If this case
goes to trial, the jury will have to answer whether the parties agreed to a fluctuating work
week schedule. If they did, the Court will apply the fluctuating work week method of
damages, if they did not, the Court finds that Plaintiff would be entitled to one-and-one-half
times her regular rate for the overtime hours she worked.7

7

The “regular rate” is the “keystone’ in determining “the amount of overtime payments
necessary to effectuate the statutory purpose.” Arrington v. Michigan Bell Tel. Co., 1010975, 2012 WL 4868225, at *1 (E.D.Mich. Oct. 15, 2012) (Lawson, J.) (citations omitted).
If an employee’s employment contract is for a set amount of money per week and
contemplates a fluctuating amount of hours worked, then the fluctuating workweek method
of overtime calculation applies. Id. (citations omitted). The Arrington court pointed out that
every circuit to address the matter had held so. Id. at *2. But the court additionally held
that the issue was one that it could only resolve after considering the facts presented at
trial. Id.
But if the employment contract is a set amount for forty hours of work per week, then
24

3. Plaintiff has not brought forth any evidence that Defendant's actions
were willful
Defendant lastly moves for summary judgment on the FLSA claim on the issue of the
statute of limitations. Under the FLSA, the statute of limitations for non-willful violations is
two years; for willful violations, the statute is three years. 29 U.S.C. § 255(a).

the fluctuating workweek method calculation of overtime pay damages does not apply.
Plaintiff points to Hasan v. GPM Invs., LLC, 896 F.Supp.2d 145 (D.Conn. 2012) to
argue the impossibility of fulfilling the fluctuating work week requirement in a
misclassification case. (Pl.’s Resp. at 17-18.)
The Hasan court held that, in a misclassification FLSA case, “the resultant
employment contract will never fulfill any of the requirements of section 778.114,” and
therefore the defendant would not be able to avail itself of a fluctuating workweek damages
calculation. 896 F.Supp.2d at 149. The court reasoned that “parties who believe that an
employee merits no overtime payment cannot simultaneously believe that any overtime will
be paid at varying rates.” Id. “Put another way, in a misclassification case, the parties
never agreed to an essential term of a fluctuating work week arrangement–that overtime
would be paid at different rates dependent on the number of hours worked per week.” Id.
(citations omitted). The court stated that, “[t]o assume otherwise converts every salaried
position into a position compensated at a fluctuating rate.” Id. The court also pointed out
that “misclassified employees will never have received any kind of bonus or premium for
overtime.” Id. at 150. The court reasoned that “parties will have explicitly agreed . . . that
employees will not extra money for long hours.” Id.
In Black v. SettlePou, P.C., 732 F.3d 492, 499 (5th Cir. 2013) the Fifth Circuit found
that the district court erred when it applied the fluctuating work week method of calculating
damages. The court reviewed both the plaintiff’s contractual employment agreed and the
parties’ conduct during her time with the defendant employer. Id. The court noted that the
plaintiff testified that she was paid to work thirty seven and a half hours per week. Id. at
499-500. The court further noted that her payroll record showed that the defendant
compensated her for full time employment and the defendant’s employee handbook defined
full time as anyone who worked thirty seven and a half hours per week. Id. at 500. The
court reviewed the hours she worked as well. Id. The court found that the plaintiff, when
she worked over the full time amount of hours, complained verbally and in writing, and
asserted that she was entitled to overtime pay. Id. at 501. The Black court pointed out that
“[the plaintiff’s] conduct in her continued protests of [the defendant’s] failure to compensate
her for her overtime hours . . . shows that she did not agree that her fixed weekly salary
should compensate her for all of the hours she worked each week.” Id. at 501. Stated
again, the court noted that “[b]y immediately and repeatedly voicing her disagreement with
her lack of overtime pay after being reclassified as exempt, [the plaintiff] did much, short
of quitting her job, to show that she did not agree that her fixed weekly salary was intended
to compensate her for all of the hours she worked each week.” Id.
25

Defendant seeks to limit Plaintiff's damage claim to two years from her filing date.
A plaintiff that alleges willful conduct must prove “that the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by the
statute.” Abadeer v. Tyson Foods, Inc., —F.Supp.2d—, 2013 WL 5409190, at *12
(M.D.Tenn. Oct. 3, 2013) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988)). “Willful” is synonymous with “voluntary,” “deliberate,” and “intentional,” and is
“generally understood to refer to conduct that is not merely negligent.” Id. (citation omitted).

Courts have found willfulness in situations where the defendant had previous
Department of Labor investigations regarding overtime violations, prior agreements to pay
unpaid overtime wages, and assurances of future compliance.

Abadeer, 2013 WL

5498190, at *12 (citations omitted). Courts have also found willfulness in situations “in
which the employer deliberately chose to avoid researching the laws’ terms or affirmatively
evading them.” Cook v. Carestar, Inc., 11-00691, 2013 WL 5477148, at *13 (S.D.Ohio
Sept. 13, 2013) (citation omitted). “A willful violation requires that the employer acted
recklessly, at least; it is not sufficient that the employer acted unreasonably.” Id. (citation
omitted).
Plaintiff argues that a genuine issue of fact exists as to whether Defendant willfully or
recklessly disregarded its FLSA obligations. (Pl.’s Resp. at 20.) Plaintiff states that
Defendant has offered no evidence that it took any steps to determine FLSA requirements
or determine whether Plaintiff was exempt from FLSA overtime provisions. (Id.) Plaintiff
adds that Defendant has pointed to no legal advice that it received, no Department of Labor
bulletin on which it relied, or any other evidence that it attempted to determine its
26

obligations under the FLSA.

(Id.)

Plaintiff maintains that “[s]uch failure to inquire

constitutes reckless disregard for whether its misclassification of [Plaintiff] was willful.” (Id.)
Defendant argues that it paid Plaintiff more than twice the minimum required amount,
gave Plaintiff generous bonuses, and gave her extensive vacation time. (Def.’s Reply at
7.) Defendant asserts that Plaintiff has not brought forth any evidence of willfulness, which
is her burden. (Id.)
The Court agrees with Defendant. Plaintiff has the burden to bring forth evidence that
Defendant's actions concerning the FLSA were willful, and she has not done so. She has
not brought forth any evidence that Defendant had any prior violations of the FLSA or that
she ever complained to Defendant about overtime or not being compensated for overtime.
This failure, the Court finds, entitles Defendant to summary judgment on this issue. The
statute of limitations that applies to this action is two years.
IV.

Conclusion
For the above-stated reasons, the Court DENIES in PART and GRANTS in PART

Defendant's motion for partial summary judgment.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: April 11, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on April 11, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

27