Cotuna v. Walmart Stores, Inc.

Filing 59

ORDER Granting Defendant's 38 Motion for Summary Judgment and Mooting 36 Motion to Compel and 55 Motion to Strike. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VIOREL COTUNA,
Plaintiff,
Case No. 14-10420
Hon. Denise Page Hood

v.
WALMART STORES, INC.,
Defendant.
______________________________________/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (Doc. # 38) AND MOOTING MOTION TO COMPEL
(Doc. # 36) AND MOTION TO STRIKE (Doc. # 55)
I.

INTRODUCTION
Defendant Walmart Stores, Inc. (“Walmart”) filed a motion for summary

judgment to which Plaintiff Viorel Cotuna (“Cotuna”) responded. The Motion is
GRANTED.
II.

BACKGROUND
Plaintiff Viorel Cotuna is Romanian. Plaintiff is also disabled because he

suffers from degenerative disc disease (Am. Comp., ¶ 1). Plaintiff began working
at Defendant Walmart Stores, Inc. in 2002 and held various positions at several of
Defendant’s locations (Am. Comp., ¶¶ 2, 5). Plaintiff requested and obtained
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reasonable accommodation from 2002 to 2011 (Am. Compl., ¶ 7). In April 2011,
Plaintiff’s supervisor, an employee of Defendant, denied Plaintiff an increase in
pay without supporting documentation, while four of Plaintiff’s female coworkers
who were similarly situated received an increase (Am. Compl., ¶¶ 8-9). Plaintiff
alleges that three other similarly situated male coworkers were also denied the
increase (Am. Compl., ¶ 10).
Plaintiff alleges that beginning in May 2011, he experienced intimidation,
was denied reasonable accommodation requests, was assigned non-managerial
tasks, was disciplined, and was told he “move[d] too slow” and “need[ed] to speak
English so [other associates] understand” (Am. Compl., ¶ 12). In August 2011,
Plaintiff requested and was granted medical leave under the Family Medical Leave
Act, 29 U.S.C. § 2601, et seq. (Am. Compl., ¶ 14). Plaintiff subsequently
requested and was granted leave based on Defendant’s Leave of Absence Policy
(Am. Compl., ¶ 15). Defendant’s Human Resources Manager denied Plaintiff’s
final leave request and terminated Plaintiff on January 6, 2012 (Am. Compl., ¶ 18).
Plaintiff alleges that at least one other similarly situated employee was granted a
longer Leave of Absence without termination (Am. Compl., ¶ 20).
On October 30, 2013, Plaintiff filed a charge of discrimination with the
Equal Employment Opportunity Commission (hereinafter “EEOC”) alleging
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discrimination on the basis of his national origin, retaliation, and/or disability
(Am. Compl., Ex. 4, “EEOC Charge of Discrimination”). On the same day, the
EEOC sent Plaintiff a Dismissal and Notice of Rights, notifying Plaintiff that he
may file a lawsuit for claims under Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Americans with Disability Act (“ADA”) within 90 days of
receipt of the notice (Am. Compl., Ex. 5, “Right to Sue Notice”).
On January 29, 2014, Plaintiff filed a Complaint against Defendant.
Plaintiff alleged the following claims against Defendant in his Amended
Complaint: (i) discrimination based on gender in violation of Title VII and
Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”); (ii) discrimination based
on national origin in violation of Title VII and ELCRA; (iii) discrimination based
on disability in violation of the ADA and Michigan’s Persons with Disabilities
Civil Rights Act; (iv) violation of the Equal Pay Act (“EPA”); and (vii) violation
of the Michigan Compensation Laws §§408.473, 408.474, and 408.475.
On November 13, 2015, Walmart filed a motion for summary judgment.
(Doc. # 38), to which Cotuna responded (Doc. # 45).
The Court held a hearing regarding Defendant’s Summary Judgment
Motion. Cotuna stated that he was withdrawing his Michigan Compensation Claim
because he was paid his vacation pay.
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III.

STANDARD OF REVIEW
The Court will grant summary judgment 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); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250-57 (1986). A fact is material if it could affect the outcome of the
case based on the governing substantive law. Id. at 248. A dispute about a
material fact is genuine if on review of the evidence, a reasonable jury could find
in favor of the nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, the nonmoving party must “go beyond the
pleadings and … designate specific facts showing that there is a genuine issue for
trial.” Id. at 324. The Court may grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing
sufficient to establish the existence of an element that is essential to that party's
case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870,
873 (6th Cir. 2003). “The 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.
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“Conclusory allegations do not create a genuine issue of material fact which
precludes summary judgment.” Johari v. Big Easy Restaurants, Inc., 78 F. App'x
546, 548 (6th Cir. 2003).
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden–Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court’s function at
the summary judgment stage “is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249.
IV.

ANALYSIS
Defendant contends it is entitled to summary judgment because Plaintiff

cannot prove his: (1) failure to accommodate claim; (2) discriminatory discharge
claim; (3) Equal Pay Act claim; (4) hostile environment claim; and (5) retaliation
claim.
A.

ADA
1.

Failure to Accommodate Claim

Walmart says Cotuna cannot prove his failure to accommodate claim.
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In order to establish a prima facie case of a failure to accommodate claim under
the ADA, “a plaintiff must show that: (1) he is disabled within the meaning of the
Act; (2) he is otherwise qualified for the position, with or without reasonable
accommodation; (3) his employer knew or had reason to know about his disability;
(4) he requested an accommodation; and (5) the employer failed to provide the
necessary accommodation.” Johnson v. Cleveland City Sch. Dist., 443 Fed.Appx.
974, 982–83 (6th Cir.2011). Once a plaintiff establishes a prima facie case, the
burden shifts to his employer “to articulate a non-discriminatory explanation for
the employment action, and if the defendant does so, the burden shifts back to the
plaintiff to prove that the defendant's explanation is pretextual.” Whitfield v.
Tennessee, 639 F.3d 253, 259 (6th Cir.2011) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973))
The parties do not dispute elements one through three. Rather, the parties
contest that Cotuna’s request for additional time off, in addition to the 16 months
he was already off from work, was a reasonable accommodation.
Cotuna has failed to show his request for additional leave as an
accommodation was reasonable. Cotuna has the burden to prove that the proposed
accommodation is reasonable. E.E.O.C. v. Mollertech Corp., No. 03-73831, 2005
WL 1982974, at *3 (E.D. Mich. Aug. 12, 2005). In Walsh v. United Parcel
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Service, 201 F.3d 718 (6th Cir.2000), the Sixth Circuit stated that while a medical
leave of absence can constitute a reasonable accommodation under appropriate
circumstances, “when ... an employer has already provided a substantial leave, an
additional leave period of a significant duration, with no clear prospects for
recovery, is an objectively unreasonable accommodation.” Id. at 727. See also,
Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998)
(“Employers are not required to wait indefinitely for an employee's medical
condition to be corrected.”).
In November 2012, after already being on leave for 16 months, Cotuna
requested time off until February 15, 2013. See (Doc. # 45-28 at 3). He failed to
provide medical documentation stating why he needed the additional two months
off. On December 6, 2012, Cotuna made a second request for time off until
February 15, 2013. He indicated he could possibly schedule an appointment in 30
days, meaning January, to get the needed medical information. See (Doc. # 45-29
at 2). Walmart would be required to wait an additional month to see if Cotuna
might be cleared to return to work or need additional time off month leave of
absence. This would mean that Cotuna would have had 17 - 18 months of absence.
Plaintiff provided no assurance that he would be medically cleared to return to
work. As noted, extended leaves with no definite return date are considered
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unreasonable accommodations. Gantt, 143 F.3d at 1047.
Cotuna has not shown evidence that the additional medical information was
provided “in a timely manner.” See generally, Frazier v. Honda Am. Mfg., 431
F.3d 563, 567 (6th Cir. 2005). Walmart would have needed to wait another month
to see if Cotuna might be able to return to work. Plaintiff has failed to provide
evidence that he timely provided medical evidence to support the accommodation.
Plaintiff also contends that Defendant failed to provide an additional
accommodation that would require his superiors to provide Cotuna with written
notes. This claim fails.
First, as it relates to the PWDCRA, an “employee must advise the employer
in writing of the need for accommodation." Petzold v. Borman's Inc., 241
Mich.App. 707, 716 (2000); Mich. Comp. Laws § 37.1210(18). The written
request must occur within 182 days after the person with a disability knew or
reasonably should have known that an accommodation was needed. Id. Summary
judgment is granted regarding any requests not in writing under this statute.
In addition, although Cotuna requested written notes, he did not specify that
this request was in relation to his disability. (Cotuna Dep. Doc. # 39-1 at 16).
Therefore, Walmart did not know that his need for notes was related to his
disability. Cotuna has not supported his claim with evidence sufficient to
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overcome summary judgment. His claim under the PWDCRA is dismissed.
Second, as it relates to the written notes, Plaintiff’s failure to accommodate
a claim under the ADA is dismissed because, as noted, Cotuna failed to identify
that notes were needed to accommodate his disability. See, Gantt, 143 F.3d at
1046-47 (“it is the responsibility of the individual with a disability to inform the
employer that an accommodation is needed . . . The employer is not required to
speculate as to the extent of the employee's disability or the employee's need or
desire for an accommodation.”).
2.

Discriminatory Discharge Claim

Plaintiff says he was discharged because he was disabled and Walmart’s
claim that he was fired due to a lengthy leave of absence is a pretext because other
individuals outside his protected class were granted longer leaves than Cotuna.
Walmart responds that Cotuna’s leave of absence in excess of 16 months was the
only reason he was fired. And, the co-workers who had longer leaves of absences
were also fired as result of lengthy leaves of absences.
To prevail on a claim for discriminatory discharge, the plaintiff must show
that (1) he is disabled, (2) he was otherwise qualified for the position, with or
without reasonable accommodation; (3) he suffered an adverse action; (4) the
employer knew or had reason to know of his disability; and (5) he was replaced or
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the job remained open. Johnson v. Cleveland City Sch. Dist., 443 F. App'x 974,
988-89 (6th Cir. 2011)
If a plaintiff establishes each of the foregoing elements, the burden of
production then shifts to the employer, which must provide a legitimate,
non-discriminatory explanation for its employment decision. Patten-Gentry v.
Oakwood Healthcare Inc., No. 12-CV-15564, 2015 WL 1487641, at *14 (E.D.
Mich. Mar. 31, 2015). If the employer articulates such a reason, the plaintiff then
must prove by a preponderance of the evidence defendant's proffered reasons were
not its true reasons, but a pretext for illegal discrimination. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). During summary
judgment, “a plaintiff must produce enough evidence that a jury could reasonably
reject the employer's explanation for its decisions.” Imwalle v. Reliance Med.
Products, Inc., 515 F.3d 531, 545 (6th Cir. 2008).
Cotuna has not established a prima facie case for discriminatory discharge.
It is undisputed that Cotuna is disabled, but the second element requires him to
prove that he was qualified to perform the job, with or without a reasonable
accommodation. As the Sixth Circuit noted in E.E.O.C. v. Ford Motor Co., 782
F.3d 753, 761 (6th Cir. 2015), “an employee who does not come to work cannot
perform any of his job functions, essential or otherwise.” Cotuna’s request for
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additional time off was not a reasonable request. It is incompatible that Cotuna
would have been able to perform his job because he was off of work.
However, assuming for the sake of argument that Cotuna satisfied the prima
facie case, Walmart has set forth a legitimate nondiscriminatory reason for
terminating Cotuna. Walmart claims it fired Cotuna as a result of his extended
leave. As noted by the Sixth Circuit in Walsh, 201 F.3d at 727, an extended
indefinite medical leave is a legitimate reason to terminate an employee.
Consequently, the burden shifts back to Cotuna to prove that the reason given was
a pretext.
To demonstrate pretext, a plaintiff must show both that the employer's
proffered reason was not the real reason for its action, and that the employer's real
reason was unlawful. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir.
2015). Plaintiff may demonstrate pretext by showing that: (1) the employer's
asserted reasons have no basis in fact; (2) the reasons did not in fact motivate the
discharge; or (3) the reasons proffered were insufficient to motivate the discharge.
Kohler v. N. Star Steel Co., 408 F. Supp. 2d 380, 385 (E.D. Mich. 2005).
Cotuna has failed to present sufficient evidence to show pretext. First,
Walmart’s reason for terminating Cotuna has a basis in fact because he was on
leave for approximately 16 months with no medical documentation stating when
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he could return to work. Second, Cotuna failed to show that any other factor other
than failing to return after his extended leave expired, motivated his discharge.
Cotuna only presents conclusory statements and his own belief that discrimination
was a factor.
Courts considering pretext examine “‘the facts as they appear to the person
making the decision to terminate [the employee],’ not . . .‘the employee's
subjective [beliefs].’” E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 768 (6th Cir.
2015). And third, Cotuna did not demonstrate that the proffered reason was
insufficient to motivate the termination. As noted, long term indefinite leave is a
valid reason for termination. Walsh, 201 F.3d at 727. Plaintiff alleges that
coworkers outside of his protected class were allowed longer leaves; but, as
Walmart notes, those individuals were also terminated because they failed to
return after extended leaves. See, Brewer Decl ¶¶ 14-15. Accordingly, summary
judgment is appropriate.
B.

Equal Pay Act Claim

Plaintiff claims Walmart violated the Equal Pay Act because his supervisor
gave him an unfavorable performance evaluation which precluded him from
getting a pay raise for 2011. He also claims other male workers failed to receive
pay raises, while female co-workers did receive pay raises.
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The Equal Pay Act prohibits employers from paying an employee at a rate
less than that paid to an employee of the opposite sex for performing equal work.
29 U.S.C. § 206(d)(1). To establish a prima facie case of wage discrimination
under the EPA, the plaintiff must show that an employer pays different wages to
employees of opposite sexes “for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under
similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195,
94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Claims under the FLSA, including Equal Pay
Act claims, must be filed within two years after the cause of action accrues, or
within three years if the alleged violation was “willful.” 29 U.S.C. § 255(a). To
show willfulness, Plaintiff must demonstrate that the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by
the statute. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Cotuna’s claim is time barred; he failed to bring his EPA action within two
years of the alleged violation. Cotuna’s claim arises out of incidences that
occurred in 2011. He filed his complaint on January 29, 2014. Any alleged
violation occurring prior to January 29, 2012 is time barred.
In addition, the evidence contradicts Cotuna’s EPA claim. He says only
female assistant managers received pay raises after their performance evaluations.
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However, Kenneth Brewer, a Walmart Manager, stated that as a result of the
store’s poor performance, no assistant managers received pay raises. Brewer Decl.
(Doc. # 38-21 at 6). Plaintiff has not shown evidence in the record that any
similarly situated female assistant managers received larger pay raises than he did.
C.

TITLE VII
1.

Alleged Hostile Work Environment Regarding National
Origin and Disability

Plaintiff says he was the victim of a hostile work environment because his
supervisor, Vicki Ashton-Hendrixson, allegedly told him to speak better English
so customers could better understand him. He also states that she continuously
made derogatory and harassing comments regarding his national origin, but he
failed to identify what those comments were.
Under Title VII, a plaintiff establishes a prima facie case of a hostile work
environment based on national origin by demonstrating that (1) he was a member
of a protected class; (2) he was subjected to unwelcome harassment; (3) the
harassment was based on national origin; (4) the harassment unreasonably
interfered with his work performance by creating an intimidating, hostile, or
offensive work environment; and (5) the employer is liable. Hafford v. Seidner,
183 F.3d 506, 512 (6th Cir.1999). Title VII, is not a “general civility code.”

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Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d
662 (1998). “[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’ ” Id.
Similarly, to prevail under the ELCRA, a plaintiff must show: (1) the
employee belonged to a protected group; (2) the employee was subjected to
communication or conduct on the basis of membership in a protected category; (3)
the employee was subjected to unwelcome conduct or communication; (4) the
unwelcome conduct or communication was intended to or in fact did substantially
interfere with the employee's employment or created an intimidating, hostile or
offensive work environment; and (5) respondeat superior. Radtke v. Everett, 442
Mich. 368, 382–3 (1993).
Plaintiff fails to sustain his hostile work environment claim based on
national origin. In his depositions he admits that no one made comments regarding
his national origin. See (Cotuna Dep. Doc. # 39-1 at 31-32); (Cotuna Dep. Doc. #
39-1. at 40). He even stated in his response to Defendant’s Motion for Summary
Judgment that he did not claim he was the subject of any insults or slurs; however,
in the same sentence, he says he was the victim of derogatory comments regarding
his national origin. See, Doc. # 45 at 22. Cotuna’s contradictory statements appear
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to belie his claim that he was subject to a hostile work environment.
Even if Vicki Ashton-Hendrixson commented that Cotuna needed to speak
better English, and “communication” was listed as an issue on his 2011 Annual
Performance Review, Plaintiff has not shown that this affected a term, condition,
or privilege of Cotuna’s employment. See also, Swisshelm v. Potter, No.
1:05CV553, 2007 WL 433300, at *6 (S.D. Ohio Feb. 5, 2007) (finding on
summary judgment that the “speak English” comment did not rise to the level of
severe harassment because the statements made by defendant were only
tangentially related to plaintiff's race and national origin.).
Neither does Cotuna support his hostile work environment based on
disability. Plaintiff identifies Vicki’s Ashton-Hendrixson comment that Cotuna
needed to move faster as the basis of his claim; however, he fails to identify how
this comment affected a term, condition or privilege of employment.
Cotuna’s general allegations of “harassment” are insufficient to sustain a
claim of hostile work environment. Schemansky v. California Pizza Kitchen, Inc.,
122 F. Supp. 2d 761, 776 (E.D. Mich. 2000). Accordingly, summary judgment is
granted regarding Cotuna’s hostile work environment claims.
2.

Retaliation Claim

Plaintiff says he engaged in a protected activity of complaining about his
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supervisor and, as a result, he was terminated. Plaintiff notes the temporal
proximity of his complaint and termination. Walmart argues Plaintiff cannot
establish a causal link between the complaint and the termination.
To establish a prima facie case of retaliation, a plaintiff must demonstrate
that (1) he engaged in activity protected by Title VII; (2) the defendant knew of
his exercise of his protected rights; (3) the defendant subsequently took an adverse
employment action against the plaintiff or subjected the plaintiff to severe or
pervasive retaliatory harassment; and (4) there was a causal connection between
the plaintiff's protected activity and the adverse employment action. Barrett v.
Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009). “A causal connection is
established when a plaintiff proffers “evidence sufficient to raise the inference that
her protected activity was the likely reason for the adverse action.’” Upshaw v.
Ford Motor Co., 576 F.3d 576, 588 (6th Cir.2009). Temporal proximity may play
a role in establishing a causal connection; its significance depends on the context.
Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013)
It is unclear whether Plaintiff established his prima facie case. Although he
engaged in a protected activity of complaining about his supervisor, Walmart
knew of this complaint, and he was fired, there is a question of whether there is a
causal connection between his termination and his complaint. As noted by
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Walmart, it denied his request for an extension of leave because he did not have
medical clearance. Shortly after this denial, he filed the complaint. It appears that
Walmart’s decision to terminate Cotuna had already been decided. But, “where an
adverse employment action occurs very close in time after an employer learns of a
protected activity, such temporal proximity between the events is significant
enough to constitute evidence of a causal connection for the purposes of satisfying
a prima facie case of retaliation.” Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 675
(6th Cir. 2013). It could be that Cotuna’s complaint was a motivating factor in his
termination, and the ultimate decision to terminate Cotuna was not made until he
filed that complaint. Accordingly, he has made a prima facie case.
The burden now shifts to Walmart to articulate a legitimate reason for
termination. Defendant argues that it has provided a legitimate, nondiscriminatory
reason as to why it terminated Cotuna; he failed to return to work after a lengthy
leave without medical documentation. The burden shifts back to Cotuna to show
that Walmart’s reason is pretext. Similar to Cotuna’s disability claim, he failed to
show that his indefinite leave was not a legitimate reason for his termination or
that it was a pretext for his termination. Walmart’s reason has a basis in fact
because he was on leave for approximately 16 months with no medical
documentation stating when he could return to work. Second, Cotuna has
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presented no evidence in the record that anything other than failing to return to
work after his extended leave expired motivated his discharge. As noted by the
Sixth Circuit, extended indefinite leave of absence is a valid reason for
termination. Summary judgment is granted on this claim.
V.

CONCLUSION
Defendant’s Summary Judgment Motion (Doc. # 38) is GRANTED.

Plaintiff’s Motion to Compel (Doc. # 36) and Defendant’s Motion to Strike (Doc.
# 55) are deemed MOOT.
IT IS ORDERED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: September 30, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 30, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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