Festerman v. Wayne, County of

Filing 29

MEMORANDUM OPINION and ORDER Denying 18 MOTION for Summary Judgment , and Granting 16 MOTION for Summary Judgment Brief in Support of Motion and Certificate of Service Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT FESTERMAN,
Plaintiff,
Case No. 13-11874
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

v.
COUNTY OF WAYNE,
A Michigan Charter County,
Defendant.
_____________________________________/

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [16]
This is a Family and Medical Leave Act case in which Plaintiff Robert Festerman, a
former Wayne County Jail Division police officer, asserts that Defendant Wayne County
interfered with his ability to take leave for an anxiety disorder, and discriminated against him
based on that disorder. This matter is before the Court on Defendant’s motion for summary
judgment (Dkt. 16), and Plaintiff’s motion for summary judgment (Dkt. 18). These cross motions
for summary judgment require the Court to examine two FMLA issues. First, interference and
retaliation claims both contain a knowledge element, and both claims fail if the employee cannot
demonstrate that the employer had notice or knowledge that he was attempting to exercise his
FMLA rights. Thus, the Court addresses the standard for proper notice that an employee is
requesting FMLA leave. Second, Plaintiff’s retaliation claim requires that the Court examine the
standard for constructive discharge.

Having reviewed the parties’ motions and responses, the Court finds that oral argument
will not aid in resolving the pending motions. See E.D. Mich. LR 7.1(f)(2). Because Plaintiff has
not presented sufficient evidence to establish a prima facie case of either interference or
retaliation, and has not presented specific facts demonstrating a genuine issue for trial, the Court
grants Defendant’s motion for summary judgment and thus, denies Plaintiff’s motion.
I. FACTUAL BACKGROUND
Because each side has moved for summary judgment, where there are factual disputes,
the Court presents each side’s account.
Plaintiff was hired in October 2007 under the classification “Police Officer” to provide
inmate security in Defendant’s Jail Division Two, one of three jail facilities in Wayne County.
(Dkt. 18-7, Position Desc., at 26.) Plaintiff’s FMLA claims arise from Defendant’s practice of
ordering mandatory overtime. During Plaintiff’s tenure, his department was “understaffed,” and,
“[a]s a result, involuntary overtime [wa]s a regular occurrence; deputies d[id] not have the right
to refuse overtime.” (Dkt. 16-7, Findings of Fact in Cty. of Wayne, Case No. D12 C-0189 (Mich.
Emp’t Relations Comm’n Oct. 16, 2013), at 18.)1 Defendant ordered mandatory overtime based
on a hierarchical list. First, the shift supervisor would ask officers listed on the voluntary
“overtime request sheet.” (Dkt. 16-5, Collective Bargaining Agreement, at 43–44.) After
exhausting the volunteer list, the supervisor would rotate through the remaining officers
beginning with the officer with the least seniority. (See Dkt. 16-15, Jackie Loving Dep., at 14–
16.)
If an officer refused to report for mandatory overtime, his or her supervisor would issue a
Conduct Incident Report (“CIR”). (Dkt. 16-9, Scott Gatti Dep., at 10–12.) A CIR is “essentially a
1

Defendants cite to the facts section of this opinion in their brief in support of their
motion for summary judgment. Only the facts section is included in the record.
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memo” that details any incident of misconduct or refusal to follow a direct order. (Id. at 10.)
During Plaintiff’s employment, Defendant followed a “zero tolerance policy,” and officers
receiving CIRs would likely be “sent over to the discipline duty chief for a hearing . . . [subject
to] flexibilities for the realities” of the sheer number of officers being ordered onto overtime
shifts. (Id. at 12.)
Plaintiff alleges that this mandatory overtime practice and the related administrative
measures came into conflict with his medical need to limit his working hours. At 4:00 p.m. on
March 3, 2012, Plaintiff reported to Sergeant Becky Tripp that he was experiencing “intermittent
chest pain” accompanied by “shortness of breath.” (Dkt. 18-2, Incident Report of Mar. 3, 2012.)
Plaintiff left work to go to the emergency room and was admitted to the hospital for an overnight
stay. (Dkt. 18-3, Injury Report of Mar. 3, 2012.) Upon returning to work on March 8, he
submitted documentation of the incident itself and received confirmation that the Personnel
Office had received it. (Dkt. 18-4, Notice of Receipt.) On March 9, Plaintiff’s doctor advised him
in writing to “limit working hours to 8 [hours per] day.” (Dkt. 18-5, Doctor’s Orders and
Prescription.) Plaintiff also began taking anxiety medication at this time. (Dkt. 16-3, Robert
Festerman Dep., at 132.) Plaintiff asserts that he submitted the doctor’s note to a supervisor,
Sergeant Jackie Loving, on March 12, 2012. (Dkt. 16-19, Pl.’s CIRs and Rebuttals, at 9.)
Sergeant Loving, however, avers that Plaintiff did not deliver the note to her, and that even if
Plaintiff had given her the note, she would not have had authority to act on it. (Dkt. 16-15, Jackie
Loving Dep., at 25.) Whether Plaintiff gave Loving the note or not, both parties agree that for
approximately one month, Defendant accommodated Plaintiff’s working hours restriction on an
informal basis. (Dkt. 18, Pl.’s Br., at 3, ¶ 10; Def.’s Br., Dkt. 16, at 7.)

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By March 28, 2012, Commander Scott Gatti became aware of Plaintiff’s general need for
medical accommodation. (Dkt. 16-9, Scott Gatti Dep., at 19.) That same day, the Personnel
Office decided that even officers with doctor’s notes limiting their working hours would be
ordered onto overtime shifts, issued CIRs if they refused to report to an overtime shift, asked to
explain their refusal, and required to “submit documentation.” (Dkt. 16-18, Command Directive,
at 1.) Supervising officers announced this policy change during roll call on at least two
occasions: March 29 and April 4, 2012. (Dkt. 16-3, Festerman Dep., at 167–69.)
On April 6, 2012, Sergeant Dwight Reed issued a CIR to Plaintiff for his refusal to work
an overtime shift, while acknowledging that Plaintiff had stated that “he ha[d] medical
documentation that states he can not work more than eight hours.” (Dkt. 18-8, CIR of Apr. 6,
2012.) In a rebuttal Plaintiff filed to protest this CIR, he asserted that he had submitted his
doctor’s note to a supervisor. (Dkt. 16-19, Pl.’s CIRs and Rebuttals, at 9.)
On April 8, 2012, Loving issued Plaintiff another CIR without any comment on
Plaintiff’s medical condition. (Id. at 588.) Plaintiff again filed a rebuttal, this time stating that he
had refused to work the shift because he had a scheduled vacation day, and was following his
doctor’s orders. (Id. at 590.)
The next day, April 9, Plaintiff discussed his medical condition with two Human
Resources employees: Debra Blair, Director of Labor Relations, and Shirley Prieskorn,
Disabilities Manager. The two advised Plaintiff that he should fill out a leave of absence request
form to be approved for leave under FMLA or the Americans with Disabilities Act (“ADA”).
(Dkt. 16-3, Festerman Dep., at 196.) Plaintiff avers that he inquired whether his submission of
his doctor’s note on March 12 “fulfilled [his] obligation request putting my employer on notice
about my medical need,” and that Prieskorn told him that it did. (Dkt. 16-3, Festerman Dep., at

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197.) He also acknowledges, however, that neither Prieskorn nor Blair was aware of his medical
condition until the April 9 conversation. (Id.) Plaintiff spoke to Prieskorn and Mary Sullivan,
Leave Coordinator, on April 12, 2012, regarding “the FMLA and ADA.” (Id. at 198.) The next
day, Plaintiff received “an ADA packet and [a] leave of absence packet” in the mail. (Id.)
On April 10, 2012, while Plaintiff was on a scheduled leave day, Commander Scott Gatti
issued a recommendation that Plaintiff be referred to an Administrative Review and
Determination Hearing “to be held accountable for his refusal to follow a direct order.” (Dkt. 1812, Disc. Action Mem.)
That same day, April 10, Plaintiff received a text message from a coworker informing
him that “[s]omebody wore a T-shirt to work today that says ‘I refuse. I have a note from my
mom.’” (Dkt. 16-3, Festerman Dep., at 203.) After conferring with other coworkers who had
similar medical restrictions, Plaintiff joined the group for a meeting with Sergeant Loving and
two union stewards. (Id. at 211.) The group alleged that the t-shirt was discriminatory. Shortly
thereafter, the Defendant initiated an investigation into the incident and designated Sergeant
Becky Tripp as the lead investigator. (Dkt. 16-17, Becky Tripp Dep., at 27.) Plaintiff filed an
internal complaint regarding the incident on June 11, 2012, noting that he felt he had been
“harassed” during the course of the investigation. (Dkt. 16-24, Pl.’s Internal Compl., at 204.)
In support of his FMLA interference claim, Plaintiff points out that Defendant revised its
position description for police officers on April 26, 2012. (Dkt. 18-18, Revised Position Desc.)
In addition to the original position requirements, Defendant added two “essential job functions”
to the position: (1) a requirement that police officers “be physically and mentally able to work a
minimum of 40.5 hours per work week,” a change from the original 40 hours; and (2) a

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requirement that police officers “be physically and mentally able to work mandatory overtime.”
(Id. at 56.)
On May 3, 2012, Plaintiff turned in his completed leave of absence request form. (Dkt.
16-2, Pl.’s FMLA Packet, at 56.) Four days later, Defendant informed Plaintiff that he had been
designated and approved for intermittent sick leave under FMLA from April 26, 2012, to
October 26, 2012, subject to final approval from the Human Resources Department. (Dkt. 16-21,
FMLA Designation Notice.) Mary Sullivan, however, requested further clarification of the
medical certificate that Plaintiff had provided due to her confusion about Plaintiff’s actual
restrictions and concerns that his restrictions would “mean that he could not work full-time any
longer . . . [and] how [Plaintiff’s need for intermittent leave days] would relate to the 6 to 8 hours
[restriction].” (Dkt. 16-23, Mary Sullivan Dep., at 44.)
Plaintiff submitted his resignation, “effective immediately,” on June 20, 2012, and
Defendant’s records reflect his resignation as effective on June 21, 2012. (Dkt. 16-25, Pl.’s
Written Resignation; Dkt. 16-10, Roster.) Shortly thereafter, Sullivan received a response from
Plaintiff’s doctor as to her clarification request, but because Plaintiff had resigned at that point,
she made a final decision to deny his FMLA request. (Dkt. 16-22, Clarification Request, Dkt. 162, Pl.’s Completed FMLA Packet, at 57.)
II. PROCEDURAL HISTORY
Plaintiff filed this suit on April 25, 2013. (Dkt. 1, Compl.) Plaintiff alleges that Defendant
violated FMLA by interfering with his exercise of FMLA rights and by retaliating against him
for exercising those rights. More specifically, in count one of the Complaint, Plaintiff alleges that
Defendant violated 29 U.S.C. § 2615(a)(1) by “fail[ing], neglect[ing], and/or refus[ing] to
provide a designation notice to Plaintiff pursuant to FMLA and 29 C.F.R. § 825.300(d).” (Dkt. 1,

6

Compl., at 5, ¶ 25.) In his motion for summary judgment, Plaintiff additionally alleges that
Defendant failed to provide him an FMLA eligibility notice within five days of his leave request
pursuant to 29 C.F.R. § 825.300. (Dkt. 18, Pl.’s Br., at 12.)
In count two of the Complaint, Plaintiff alleges that Defendant violated 29 U.S.C. §
2615(a)(2) because Defendant’s failure to provide a designation notice “subjected Plaintiff to
additional and/or continued denigration by his superiors and co-workers, as well as additional
retaliation and verbal and written discipline.” (Dkt. 1, Compl., at 5, ¶ 29.) As a result, says
Plaintiff, he was left “no alternative other than to resign his position, which constituted a
constructive discharge. . . . Plaintiff’s constructive discharge was in retaliation for exercising his
rights under the FMLA.” (Dkt. 1, Compl., at 6, ¶ 31.)
On March 28, 2014, Defendant moved for summary judgment on both claims. (Dkt. 16.)
Plaintiff filed a cross motion for summary judgment on both claims on March 31, 2014. (Dkt.
18.)
III. ANALYSIS
A. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th
Cir. 2004 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact is material
only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451–52 (citing
Anderson, 477 U.S. at 248). In evaluating a motion for summary judgment, this Court views the
evidence, and any reasonable inferences drawn from the evidence, in the light most favorable to

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the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
In considering the parties’ cross-motions, this Court “must evaluate each motion on its
own merits and view all facts and inferences in the light most favorable to the non-moving
party.” Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004) (quoting Wiley v. United
States, 20 F.3d 222, 224 (6th Cir. 1994)). Further, “[t]he filing of cross motions for summary
judgment does not necessarily mean that an award of summary judgment is appropriate.” Beck,
390 F.3d at 917. Instead, the Court must evaluate whether either party has carried its respective
burden to succeed on its motion.
If the moving party bears the burden of persuasion at trial, “his showing must be
sufficient for the court to hold that no reasonable trier of fact could find other than for the
moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quotation
omitted). If the moving party does not bear the burden of persuasion at trial, it may discharge its
initial burden either by “submit[ing] affirmative evidence that negates an essential element of the
nonmoving party’s claim. . . . [or] by demonstrat[ing] to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If this burden is met, the non-moving party
“must come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita, 475 U.S. at 587.
B. The Family and Medical Leave Act
The Family and Medical Leave Act entitles employees covered by the Act to take up to
twelve weeks of unpaid leave per year for certain personal situations, including “a serious health
condition that makes the employee unable to perform the functions of such employee.” 29 U.S.C.

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2612(a)(1). Employees taking leave for a serious health condition may take leave “intermittently
or on a reduced leave schedule.” 29 U.S.C. 2612(b)(1).
The Sixth Circuit “recognizes two distinct theories for recovery under FMLA: (1) the
‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the
‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of
Am. Mfg., 384 F.3d 238, 244 (6th Cir. 2004). Under the entitlement/interference theory, an
employer violates FMLA where it “interfere[s with], restrain[s], or den[ies] the exercise or the
attempt to exercise any right provided” by the Act. 29 U.S.C. § 2615(a)(1). By contrast, under
the retaliation/discrimination theory, an employer violates FMLA where it “discharge[s] or in
any other manner discriminate[s] against any individual for opposing any practice made
unlawful” by the Act or for exercising his or her rights under the Act. 29 U.S.C. § 2615(a)(2). As
noted, Plaintiff asserts both interference and retaliation claims. (Dkt. 1, Compl., at 4–8.)
Courts in this Circuit analyze interference and retaliation claims under the burdenshifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–806
(1971). Therefore, “a successfully pleaded prima facie case, either for FMLA interference or
retaliation, would shift the burden to [defendant] to present a legitimate, nondiscriminatory
reason for its decision.” Donald, 667 F.3d at 761. See also Grace v. USCAR, 521 F.3d 655, 670
(6th Cir. 2008) (applying a burden shifting standard to an FMLA interference claim). Under this
standard, neither interference nor retaliation “constitutes a violation if the employer has a
legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged
conduct.” Grace, 521 F.3d at 670 (quoting Edgar v. JAC Prods., 443 F.3d 501, 508 (6th Cir.
2006)).

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A plaintiff can refute such a demonstration, however, “by showing that the proffered reason
(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3)
was insufficient to warrant the challenged conduct.” Grace, 521 F.3d at 670 (citing Wexler v.
White’s Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003)).
C. Defendant Wayne County’s Motion for Summary Judgment
In its motion, Defendant asserts that “Plaintiff cannot establish a prima facie case of
FMLA

interference”

and

that

“Plaintiff

fails

to

prove

a

prima

facie

case

of

constructive/retaliatory discharge.” (Dkt. 16 Def.’s Br., at 16, 20.) Plaintiff bears the burden of
persuasion on both of these claims at trial. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir.
2012). In evaluating Defendant’s motion, this Court will view the evidence, and any reasonable
inferences drawn from it, in the light most favorable to Plaintiff.
1. FMLA Interference Claim
To establish a prima facie case of interference, Plaintiff must demonstrate that:
(1) [Plaintiff] was an eligible employee; (2) the defendant was an employer as
defined under the FMLA; (3) the employee was entitled to leave under the
FMLA; (4) the employee gave the employer notice of [his] intention to take leave;
and (5) the employer denied the employee FMLA benefits to which [he] was
entitled.
Donald, 667 F.3d at 761 (quoting Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir.
2006). “An employer may violate 29 U.S.C. § 2615(a)(1) regardless of the intent behind its
conduct.” Hoge, 384 F.3d at 244. FMLA is not a strict liability statute, however, and
“[e]mployees seeking relief under the entitlement theory must therefore establish that the
employer’s violation caused them harm.” Edgar v. JAC Prods., 443 F.3d 501, 508 (6th Cir.
2006).

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“The term ‘eligible employee’ means an employee who has been employed: (i) for at
least 12 months by the employer with respect to whom leave is requested . . . and (ii) for at least
1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. §
2611(2). It is undisputed that Plaintiff was employed by Defendant for a period of approximately
forty-eight months starting in October 2007. Dkt. 16-10 at 1. Further, based on Plaintiff’s fortyhour work week and assuming a fifty-week work year, he would have worked a total of 2,000
hours during the year preceding his initial hospitalization. The Court finds that Plaintiff has
presented sufficient evidence to demonstrate that he met FMLA’s standard for “eligible
employee” during the time period in question.
Neither Plaintiff nor Defendant disputes Defendant’s status as an FMLA-covered
employer. See 29 U.S.C. § 2611(4) (providing that FMLA-covered employers include “any
person engaged in commerce . . . who employs 50 or more employees for each working day
during each of 20 or more calendar workweeks in the current or preceding calendar year.”)
The third factor in the prima facie case is the employee’s entitlement to take leave. In this
case, Plaintiff’s entitlement to take leave would ostensibly be based on FMLA’s “serious health
condition” provision. 29 U.S.C. 2612(a)(1). A serious health condition is “defined as an illness,
injury, impairment, or physical or mental condition that involves . . . inpatient care . . . or
continuing treatment by a health care provider.” Edgar, 443 F.3d at 506 (quotation marks
omitted). Plaintiff alleges that he suffered from an anxiety disorder that involved prescription
medication and continued medical care to diagnose and treat the condition. (Dkt. 16-3,
Festerman Dep., at 132.)
Under current Department of Labor regulations, the term “serious health condition”
includes conditions causing a “period of incapacity for more than three consecutive, full calendar

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days” and subsequent treatment involving “[t]reatment by a health care provider on at least one
occasion,” resulting in a “regimen of continuing treatment” such as a prescription. 29 C.F.R.
825.115(a). Construing the facts in the light most favorable to Plaintiff, the Court assumes that
Plaintiff did suffer from an anxiety disorder, missed work from March 3 to March 8 due to the
disorder, was seeing a physician, and had obtained a prescription for anti-anxiety medication.
The Court finds that for the purpose of Defendant’s motion for summary judgment, Plaintiff has
presented sufficient evidence that he suffered from a serious health condition as defined under 29
C.F.R. § 2612(a)(1) and related regulations.
Plaintiff’s interference claim falters on the fourth element of a prima facie case. That
element requires Plaintiff to show that he gave Defendant sufficient notice of his intent to take
leave. Department of Labor regulations provide that “[a]n employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave,
and the anticipated timing and duration of the leave.” 29 C.F.R. 825.302(b). Such notice must be
given “as soon as practicable,” if not thirty days before the leave will commence. 29 C.F.R.
825.302(a). “An employer may require an employee to comply with the employer’s usual and
customary notice and procedural requirements for requesting leave, absent unusual
circumstances.” 29 C.F.R. 825.302(d). “Because an employee need not expressly invoke the
FMLA, the critical question is whether the information imparted to the employer is sufficient to
reasonably apprise it of the employee’s request to take time off for a serious health condition.”
Byron v. St. Mary’s Med. Ctr., No. 11-13445, 2012 U.S. Dist. LEXIS 129058, at *16–17 (E.D.
Mich. Sept. 11, 2012) (quotation marks omitted). Notably, Defendant conveyed all of these
requirements to Plaintiff in a handout in October 2007, when Plaintiff first began work. (See Dkt.
27-1, Wayne Cty. New Empl. Orientation Participation Form.)

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Plaintiff contends that sufficient notice was provided on March 12, 2012, when he
submitted a doctor’s note to shift supervisor Sergeant Loving. (Pl.’s Resp. Br., Dkt. 20, at 2).
Defendant claims that sufficient notice did not occur until May 3, 2012, when Plaintiff submitted
his formal leave of absence request. (Def.’s Br., Dkt. 16 at 16.)

The Court agrees with

Defendant.
First, the content of the March 12 doctor’s note is insufficient to qualify as FMLA notice
to Defendant. In particular, the note contains no substantive indication of a serious medical
condition. See 29 CFR 825.303(b) (“An employee shall provide sufficient information for an
employer to reasonably determine whether the FMLA may apply to the leave request.”) In all,
the note reads: “Robert is advised to limit working hours to 8 hrs/day.” (Dkt. 18-5, Doctor’s
Orders.) Plaintiff did not testify that he verbally explained to Loving (or anyone else) that the
restriction on the note stemmed from a serious medical condition. (See Dkt. 16-3, Festerman
Dep., at 158–59.) While employees are not required to specifically mention FMLA when
requesting a leave of absence, courts in the Sixth Circuit do require that the employee “provide
the employer with some information about the medical condition at issue” in order to satisfy the
notice requirement. Booth v. Roadway Express, Inc., No. 03-660, 2005 U.S. Dist. LEXIS 38421,
at *24 (S.D. Ohio 2005). While a doctor’s note recommending limited working hours may
indicate a “need” for leave, it does not indicate the “reason” for leave. See Lawson-Brewster v.
River Valley Sch. Dist., No. 06-58, 2008 U.S. Dist. LEXIS 33060, at *5 (W.D. Mich. 2008)
(holding that a doctor’s note advising plaintiff to remain off work for four days did not constitute
sufficient notice of plaintiff’s depression).
Some courts have found sufficient notice where an employee submits a doctor’s note in
close proximity to a health-related incident in the workplace. For example, in Conrad v. Eaton

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Corp., 303 F. Supp. 2d 987 (N.D. Iowa 2004), the day the employee was sent home from work
for threatening behavior, he submitted a note from his treating psychiatrist stating, “No work
until further notice!” The employer also had knowledge of the employee’s behavioral issues and
essentially admitted that it understood the employee to be eligible for FMLA leave in a letter sent
shortly after the incident. Conrad, 303 F. Supp. 2d at 992, 998. In combination, these facts
constituted adequate notice of the employee’s mental illness and need for FMLA leave. Id.
Here, Plaintiff had no history of taking leave due to anxiety attacks; instead, his most
recent request for leave at the time of the incident was due to his school schedule. (Dkt. 16-11,
Pl.’s Request for Overtime Exemption of Jan. 7, 2012, at 1.) Furthermore, Plaintiff’s initial
report did not mention anxiety disorder or indicate any ongoing medical condition; instead it
reported “sharp stabbing chest pains.” (Dkt. 18-3, Injury Report.) Therefore, even construing the
facts in the light most favorable to Plaintiff, the March 12 event cannot constitute sufficient
notice of Plaintiff’s need for FMLA-qualifying leave.
Plaintiff’s April 9 conversation with Human Resources does not suffer from the same
deficiency as the doctor’s note. During that conversation, at least when reasonable inferences are
drawn in Plaintiff’s favor, Plaintiff adequately informed Defendant of a “serious health
condition.” The problem with basing an interference claim off of this date, however, is that
Plaintiff’s notice only triggered Defendant’s duty to provide him with “eligibility” notice—not
an FMLA “designation.” And there is no dispute that Defendant did provide Plaintiff with an
eligibility notice within five days of the April 9 meeting. (Dkt. 16-2, FMLA Packet.) This was all
that was due Plaintiff at that point. See 29 CFR 825.300(b)(1). The designation was not owed to
Plaintiff until he submitted his paperwork on May 3. 29 CFR 825.300(d) (“When the employer
has enough information to determine whether the leave is being taken for a FMLA-qualifying

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reason (e.g., after receiving a certification), the employer must notify the employee whether the
leave will be designated and will be counted as FMLA leave within five business days absent
extenuating circumstances.”); Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th Cir.
2013).
Additionally, the March 12 doctor’s note and April 9 conversation did not comply with
Defendant’s internal requirements for providing notice. Prior to 2009, the Sixth Circuit did not
allow employers to “deny FMLA relief for failure to comply with their internal notice
requirements.” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723 (6th Cir. 2003). As of 2009,
however, “the regulatory language underlying this holding in Cavin is no longer in effect.”
Srouder, 725 F.3d at 614. The amended regulation provides that “[w]here an employee does not
comply with the employer’s usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.”
29 C.F.R. § 825.302(d). The Sixth Circuit recently held that due to these “material alterations,”
the regulation now “explicitly permits employers to condition FMLA-protected leave upon an
employee’s compliance with the employer’s usual notice and procedural requirements, absent
unusual circumstances.” Srouder, 725 F.3d at 614. Therefore, Plaintiff’s interference claim fails
if (absent unusual circumstances) he did not comply with Defendant’s notice requirements. Id. at
615. This is so “regardless of whether [Plaintiff] provided sufficient FMLA notice.” Id.
Plaintiff acknowledged in his deposition that on April 9, Prieskorn advised him of
Defendant’s “usual . . . procedural requirements for requesting leave,” namely, a written leave of
absence request. (Dkt. 16-3, Festerman Dep., at 197.) It is undisputed that Plaintiff did not
submit a written leave-of-absence request until May 3, 2012, when he submitted his completed
paperwork. (Festerman Dep., at 197–99.) Further, Plaintiff has cited no evidence of unusual

15

circumstances that would excuse his delay in submitting the required paperwork. See 29 C.F.R. §
302(d) (providing examples of unusual circumstances, including “no one to answer the call-in
number [to request leave] and the voice mail box is full”). Thus, Defendant did not have the
requisite notice until May 3, 2012.
In short, the doctor’s note submitted to Loving on March 12 did not convey a serious
medical need so it does not, as a matter of law, constitute the required notice for a FMLA
interference claim. On April 9, Plaintiff may have conveyed a serious medical need such that he
gave the requisite notice, but Defendant did not then interfere with Plaintiff’s rights under
FMLA: it provided him the packet of materials for eligibility within five days. Thus, the earliest
possible notice date for purposes of an interference claim is May 3, 2012, when Plaintiff fulfilled
both the FMLA notice and Defendant’s customary leave notice requirements.
But, after May 3, 2012, Defendant did not interfere with Plaintiff’s FMLA benefits. The
record indicates that Plaintiff’s request for intermittent FMLA leave was approved by his
department on May 7, 2012, subject to final approval by Central Personnel. (Dkt. 16-21, FMLA
Designation.) This designation falls within the five-day time frame prescribed in FMLA
regulations. 29 CFR 825.300(d). Plaintiff does not present evidence that he was ordered onto an
overtime shift, or issued any attendance-related CIRs, after May 3.
Plaintiff claims that Sullivan’s clarification request after he submitted his paperwork was
an interference with his FMLA entitlements. Defendant, however, was well within its FMLA
rights to request clarification of Plaintiff’s medical certification. See 29 C.F.R. 825.305(c) (“The
employer shall advise an employee whenever the employer finds a certification incomplete or
insufficient, and shall state in writing what additional information is necessary to make the
certification complete and sufficient.”)

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Plaintiff next asserts that the revised position statement of April 26 constituted FMLA
interference after May 3 because it added an extra half hour to the required work week and
required that employees be able to work mandatory overtime, and because Commander Gatti
testified that there was a “no light duty policy” in place. (Dkt. 20, Pl.’s Resp. Br., at 6–7, ¶ 30,
33.) These assertions fail to create a genuine dispute, however, because Plaintiff was granted
intermittent FMLA leave after the policies were put into place; in fact, his FMLA leave was
retroactive to the date of the policy change. (Dkt. 16-21, FMLA Designation.) This indicates that
regardless of the increased hours and “no light duty policy,” Plaintiff would have been able to
continue following his doctor’s orders by taking FMLA leave.
Finally, Plaintiff continues to assert interference based on the fact that he “was still
awaiting disposition” of the CIRs and hearing referral after May 3. (E.g. Dkt. 28, Pl.’s Reply Br.,
at 3.) In support of this argument, Plaintiff cites Brenneman v. MedCentral Health Sys., 366 F.3d
412 (6th Cir. 2004). In that case, the employee had diabetes and asserted that “defendant
unlawfully interfered with the exercise of his FMLA rights by counting various absences that he
alleges to have been FMLA-qualifying under its ‘no-fault’ attendance policy and by
subsequently terminating plaintiff pursuant to that policy.” Id. at 426. The court granted
summary judgment to the employer, however, because the employee, “as a matter of law, failed
to give defendant notice.” Id. at 429. The same logic applies here, and furthermore, Plaintiff
“quit” before the hearing was resolved and before any negative action, such as being terminated,
could occur. (Dkt. 28, Pl.’s Reply Br., at 6.) In fact, there is no evidence in the record that
indicates that a hearing ever took place, nor is there evidence that the pending administrative
action had any effect on his employment status.

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Plaintiff cannot establish a prima facie case of interference. His claim that he was denied
FMLA benefits, therefore, cannot be sustained.
2.

FMLA Retaliation Claim

To establish a prima facie case of FMLA retaliation, Plaintiff must demonstrate that:
(1) [he] was engaged in an activity protected by the FMLA; (2) the employer
knew that [he] was exercising [his] rights under the FMLA; (3) after learning of
the employee’s exercise of FMLA rights, the employer took an employment
action adverse to [him]; and (4) there was a causal connection between the
protected FMLA activity and the adverse employment action.
Donald, 667 F.3d at 761 (quoting Killian, 454 F.3d at 556). Adverse action in employment-based
retaliation claims is determined with reference to the Title VII retaliation standard announced in
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); Jordon v. City of
Cleveland, 464 F.3d 584, 594 (6th Cir. 2006). The adverse action element requires that a plaintiff
“show that a reasonable employee would have found the challenged action materially adverse.”
Burlington N., 548 U.S. at 68.
The Sixth Circuit joins the Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits in
utilizing the Burlington Northern standard in the FMLA anti-retaliation context. Crawford v. JP
Morgan Chase & Co., 531 F. App’x 622, 627 (6th Cir. 2013) (“We join our sister circuits in
concluding that Burlington applies to retaliation claims under the FMLA.”); see also Murphy v.
Ohio State Univ., 549 F. App’x 315, 321 (6th Cir. 2013). “For purposes of the FMLA’s antiretaliation provision, a materially adverse action is any action by the employer that is likely to
dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.”
O’Sullivan v. Siemens Indus., Inc., No. 11-11832, 2012 U.S. Dist. LEXIS 136163, at *23 (E.D.
Mich. Sept. 24, 2012) (quoting Millea v. Metro-North R.R., 658 F.3d 154, 164 (2d Cir. 2011)).

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Plaintiff’s adverse employment action is based on his alleged “constructive discharge”
from employment, (Dkt. 1, Compl., at 6, ¶ 31–32), a claim on which he bears the burden of
persuasion at trial. See LaPointe v. UAW Local 600, 103 F.3d 485, 488 (6th Cir. 1996). To meet
this burden, Plaintiff “must adduce evidence to show that (1) the employer . . . deliberately
create[d] intolerable working conditions, as perceived by a reasonable person, (2) the employer
did so with the intention of forcing the employee to quit, and (3) the employee . . . actually quit.”
Savage v. Gee, 665 F.3d 732, 736 (6th Cir. 2012) (citation and internal quotations omitted). “To
determine if there is a constructive discharge, both the employer’s intent and the employee’s
objective feelings must be examined.” Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th
Cir. 1999).
It is undisputed that Plaintiff was exercising or attempting to exercise his rights under
FMLA at some point during the time period in question by requesting leave for his anxiety
disorder. (Dkt. 16, Def.’s Br., at 20; Dkt. 20, Pl.’s Resp. Br., at 16.) Therefore, Plaintiff must
show that Defendant knew that he was exercising his FMLA rights. Indeed, “without knowledge
of the protected activity, there can be no inference that the adverse action was taken because of
the protected activity.” Smith v. Aco, Inc., 368 F. Supp. 2d 721, 732 (E.D. Mich. 2005). Again,
Plaintiff asserts that he put Defendant on notice that he was requesting FMLA leave on March
12, 2012, by submitting his doctor’s note to Loving. But, as explained, the note did not provide
enough information for Defendant to conclude that Plaintiff sought leave for a FMLA-qualifying
condition. Also as explained above, Defendant could not have known that Plaintiff was
attempting to exercise rights under FMLA until, at earliest, April 9, 2012, when Plaintiff
discussed his condition with Human Resources Personnel.

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Plaintiff alleges that he suffered the following adverse employment actions: (1) CIRs
issued in response to his refusals to work overtime, (2) a referral to an administrative hearing,
and (3) constructive discharge due to harassment by his coworkers. (Dkt. 20, Pl.’s Resp. Br., at
17.) Plaintiff asserts that “[t]hese actions and campaigns to humiliate Plaintiff immediately
followed, and were effectively coextensive with, Plaintiff’s exercise of his FMLA rights.” (Dkt.
20, Pl.’s Resp. Br., at 18.)
The only two CIRs available in the record were issued before April 9, 2012. Therefore,
even if they were adverse employment actions, there can be no causal connection between
Defendant’s knowledge and these acts.
Plaintiff next asserts that he was constructively discharged based on general harassment
by coworkers about his medical status and, in particular, the April 10 incident wherein a
coworker wore an insulting t-shirt allegedly referring to Plaintiff’s doctor’s orders, as well as the
ensuing investigation. (Pl.’s Resp. Br., Dkt. 20, at 17.) A constructive discharge, if proven,
would constitute a “materially adverse” action. See Logan v. Denny’s, Inc., 259 F.3d 558, 568
(6th Cir. 2001). While it is undisputed that Plaintiff tendered his resignation on June 20, 2012,
his evidence is insufficient to meet the other elements of the constructive discharge standard.
The Court first turns to an objective assessment of whether “working conditions would
have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have
felt compelled to resign.” Smith v. Henderson, 376 F.3d 529, 533–34 (6th Cir. 2004). The Sixth
Circuit has directed that “[w]hether a reasonable person would have [felt] compelled to resign
depends on the facts of each case,” however, there are a few factors that are “relevant, singly or
in combination.” Regan v. Faurecia Auto Seating, Inc., 679 F.3d 475, 482 (6th Cir. 2013)

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(quoting Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005)).
These factors include:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
[male] supervisor; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less favorable than the employee’s
former status.
Saroli, 405 F.3d at 739.
A co-worker wearing a t-shirt that says, “I refuse. I have a note from my mom” is not
enough to create an “intolerable working environment” for the purpose of establishing a
constructive discharge. First, this was a single, isolated incident. Additionally, there is nothing in
the record to support that this incident was directed at Plaintiff as opposed to the three other
employees who refused overtime due to medical restrictions. Indeed, Plaintiff’s deposition
testimony indicates that he was on leave the day the t-shirt was worn. Plaintiff fails to adduce
any other specific incidents of harassment, whether by coworkers or by his superiors.
The Sixth Circuit has noted that “hurt feelings” and “general suspicions” about the
motivations of superiors and coworkers cannot give rise to a finding of an objectively intolerable
work environment. Peters v. Lincoln Elec. Co., 285 F.3d 456, 479 (6th Cir. 2002) (affirming the
district court’s grant of the employer’s motion for summary judgment because the employee’s
“suspicion and conjecture” that there was a systematic plot to eliminate older employees without
any objective evidence of such a plot could not give rise to constructive discharge). A reasonable
officer, especially one accustomed to providing security for inmates at a state jail facility, would
not feel compelled to resign based on a t-shirt poking fun at employees who refused mandatory
overtime.

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Moreover, Plaintiff fails to demonstrate that Defendant intended the incident to cause him
to resign. See Moore, 171 F.3d at 1080 (“Intent can be shown by demonstrating that quitting was
a foreseeable consequence of the employer’s actions.”) In harassment-based claims, “the court
may consider whether it was reasonably foreseeable that the harassment and the employer’s
handling of it would cause the employee to resign.” Fernandez, 2006 U.S. Dist. LEXIS 82136 at
*54 (citing Moore, 171 F. 3d at 1080). True, Sergeant Loving did not discipline the officer who
wore the t-shirt or ask him to take it off. But she indicated that she did not view the t-shirt as
overly offensive because there were many officers, not just those with medical notes, refusing
overtime. (Dkt. 16-15, Loving Dep., at 44–51.) Her testimony also indicates that the officer in
question had a t-shirt business and often wore irreverent t-shirts to work before changing into his
uniform in hope of attracting new customers. (Id. at 44.) Finally, Loving indicated that the t-shirt
“was absolutely nothing compared to the way I hear [the officers] talk to each other, and they
like each other.” (Id. at 48.) It appears that from the employer’s perspective, this sort of joke
among coworkers was not meant to be overly offensive and was instead par for the course among
the officers. Thus, Plaintiff has not shown that it was reasonably foreseeable to Defendant that
the t-shirt incident would cause a reasonable officer to resign.
Plaintiff also alleges that Defendant’s institutional response to the t-shirt incident
contributed to his constructive discharge. See West v. Tyson Foods, 374 F. App’x 624, 636 (6th
Cir. 2010) (“Whether an action, or lack thereof, by the employer manifests an ‘attitude of
permissiveness’ is relevant to whether an employer failed to take prompt and appropriate
corrective action leading up to the constructive discharge and therefore is liable for constructive
discharge.”) It is undisputed that Defendant initiated an investigation into the t-shirt, but Plaintiff
claims that Sergeant Becky Tripp harassed him by “interrogat[ing]” him about his refusal to

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work overtime as part of the investigation and by telling a different officer: “You are the reason
this has become a big deal.” (Dkt. 20, Pl.’s Resp. Br., at 17.) As noted above, Defendant had
reason to believe that the incident was nothing out of the ordinary, and Sergeant Tripp in fact
completed the investigation and submitted her findings to a Lieutenant. Plaintiff points to no
evidence that Defendant intended any of its actions in response to the t-shirt incident to force him
to resign.
Plaintiff’s claim that his referral to an administrative hearing gave rise to constructive
discharge is also without merit. “Any reasonable person employed as a police officer with a
police department, where discipline is essential to effective operation of the department, would
understand that strict enforcement of the rules is part and parcel of the job.” Fernandez v. City of
Pataskala, No. 05-75, 2006 U.S. Dist. LEXIS 82136, at *61–62. (S.D. Ohio Nov. 9, 2006).
Defendant has demonstrated that administrative hearings and CIRs were typical forms of
administrative action that applied to all employees unless they had completed the formal leave
request process. Whether or not these events can be characterized as discipline, Plaintiff cannot
show that a reasonable officer would find them to create an intolerable work environment, and he
cannot show that Defendant intended these events to compel him to resign.
Lastly, to the extent Plaintiff somehow believes that Sullivan’s request for Plaintiff to
clarify his medical certification constituted harassment giving rise to a constructive discharge,
the claim cannot stand. Employers are well within their rights under FMLA to request
clarification from an employee’s treating physician in order to ascertain the meaning of “vague”
responses in medical certifications. 29 C.F.R. 825.305(c). Sullivan’s request falls squarely within
the regulation because she sought clarification of vague statements regarding Plaintiff’s hourly
restrictions. Such a request cannot give rise to a reasonable belief that the employer was

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deliberately attempting to force the employee to resign, nor could it create a foreseeable risk that
an employee would resign.
In short, whether taken together or considered separately, Plaintiff has not established
that Defendant committed an adverse employment action after it had knowledge that Plaintiff
was asserting his FMLA-related rights on April 9, 2012. Rather, it appears that Defendant took a
customary administrative action (Administrative Hearing referral), exercised its rights under
FMLA and its related regulations (clarification request), and investigated what reasonably
appeared to be a fairly common instance of teasing by corrections officers (t-shirt incident).
Plaintiff’s retaliation claim therefore fails as a matter of law.
D. Plaintiff Robert Festerman’s Motion for Summary Judgment
Because Plaintiff cannot meet his burden as the nonmoving party in Defendant’s motion for
summary judgment, the Court finds that he also cannot meet the higher burden he faces in his
own motion for summary judgment. See Brenneman, 366 F.3d at 430 (affirming the district
court’s decision not to expressly rule on plaintiff’s motion for summary judgment where “in
granting defendant’s motion for summary judgment, the district court expressly found that all of
plaintiff’s claims failed as a matter of law [and] [t]hus . . . implicitly found that plaintiff’s FMLA
claim could not succeed as a matter of law”) (emphasis in original).
IV. CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment is
GRANTED. Plaintiff’s motion for summary judgment is DENIED.

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It is further ordered that the hearing previously scheduled for September 10, 2014 is
CANCELLED.

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: June 24, 2014

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on June 24, 2014.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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