Reedy v. Rich Transport, LLC et al

Filing 20

ORDER granting defendants' Motion for Partial Summary Judgment 10 11 as to Counts I and III. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRY REEDY,
Plaintiff,
Case No. 15-11401
vs.
HON. GEORGE CARAM STEEH
RICH TRANSPORT, LLC, et al,
Defendants.
________________________________/
ORDER GRANTING DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT (DOC. 11)
This matter is before the court on Defendants’ motion for partial summary
judgment. On February 18, 2015, Plaintiff, Terry Reedy (Reedy), filed a complaint in
Genesee County Circuit Court in Michigan claiming first that Defendants, Rich
Transport, LLC, Rich Logistics, LLC, and Rich Logistics Holdings, LLC, violated the
Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101, et seq. (ELCRA), the Bullard-Plawecki
Employee Right-to-Know Act, M.C.L. § 423.501, et seq. (ERA), and the Worker’s
Disability Compensation Act, M.C.L. § 418.101, et seq. (WDCA). Reedy alleges that
Defendants discriminated against him based on his marital status, failed to provide him
with his employment records as required by law, and retaliated against him for seeking
medical services for a work-related injury.
Defendants removed the case to this court on April 16, 2015. Defendants then
filed the instant motion for partial summary judgment as to the first and third claims
involving the ELCRA and the WDCA. Reedy filed a response to that motion, and
Defendants filed a reply. The court granted Reedy’s motion to file a sur-reply, and he
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did so. The court has been fully briefed and GRANTS Defendants’ motion for partial
summary judgment.
STATEMENT OF FACTS
Reedy is a truck driver who worked for Defendant, Rich Logistics, LLC, from
October 2014 to February 3, 2015. During his employment, Reedy had a designated
route, which started in Holland, Michigan, made stops in Grand Rapids, Michigan and
Alexandria, Indiana, and ended in Holland, Michigan. The shift lasted from 2:00am until
2:00pm. During his shift, Reedy reported to Oliver Arce (Arce), his dispatcher and
supervisor. Other than a speeding ticket Reedy received on October 31, 2014, Reedy
did not have any disciplinary problems before the incident at issue in this case.
On Wednesday January 27, Reedy slipped and injured his back at Defendants’
terminal in Alexandria, Indiana while trying to disconnect a trailer from his truck. Reedy
told Cindy Chandler (Chandler), the Alexandria terminal manager, about the incident.
She told Reedy to contact his supervisor, Arce. Reedy contacted Arce about his injury
and asked to see a doctor. Arce told Reedy that he would check and call him back.
Later that day, Arce told Reedy that he should receive forms to fill out and submit
regarding his injury. Reedy testified that he never received the forms. Reedy also
testified that he contacted Arce again, and Arce told him that there was nothing he could
do.
Some time after the incident, Arce informed the Director of Safety, Sam Lister
(Lister), that Reedy had injured himself. Lister told Arce that he would call Reedy, but
Reedy testified that he did not speak to Lister about the incident. Chandler testified that
she called Lister and spoke to him about Reedy’s injury, but Lister testified that he did
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not remember that conversation. Lister testified that he sent the injury forms to Reedy to
fill out and return, but he admitted in his deposition that he “dropped the ball” by not
submitting Reedy’s paperwork to the Workers’ Compensation carrier right away. (Doc.
13-5, Pg ID 419 ¶ 32:10-16). Lister also testified that he never received those forms
back from Reedy. In addition, Lister was not able to produce copies of the forms he
allegedly sent to Reedy when requested to do so at his deposition.
Reedy also alleges that Defendant, Rich Transport, LLC, also did not have
Worker’s Compensation coverage when Reedy’s injury occurred. According to Reedy,
the coverage for January 1, 2015 through January 1, 2016 was not signed until
September 1, 2015. So, although the policy retroactively covers the date Reedy was
injured, it was not effective until months after his injury. Defendants claim that this
document is merely evidence of the Workers Compensation policy. The date and
signature on the document reflect when the evidence of the policy was requested, not
the effective date.
The morning after his injury, Thursday January 29, 2015, Reedy started on his
route at 2:00am. Reedy’s wife had moved out of the house in December 2014, leaving
Reedy to care for five children. Reedy and his wife were married during the time period
at issue, but she did not move back in with him until March 2015. Reedy hired a
babysitter to take care of his kids while on his route because school was cancelled.
Reedy spun out due to a blizzard and icy conditions on the road. Around 6:00am,
Reedy did not feel safe to drive; so he told night dispatch about the conditions. Night
dispatch told Reedy to leave the truck at the rest stop and go home. Reedy parked the
truck at a rest stop and called a friend to pick him up and drive him home. When Reedy
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arrived, he sent the babysitter home. Arce testified that Reedy did not make first contact
with dispatch. Rather, according to Arce’s testimony, Arce called Reedy asking for an
estimated time of arrival to his next destination because Reedy was late delivering his
next shipment. At that point, Reedy told Arce that he had left the truck at a truck stop
because of the weather conditions and received a ride home.
At 10:00AM on Thursday January 29, 2015, Arce called to let Reedy know that
the roads were clear and that he needed to return to the truck. Reedy told Arce that he
would need to find a babysitter for his kids and that he would call Arce back. Reedy
could not find a babysitter. Reedy testified that when he told Arce he could not get the
truck because he couldn’t find a babysitter, Arce was upset and hung up on him. At
11:00am, Lister called Reedy. Reedy testified that the first question Lister asked him
was whether he was a single parent. Reedy answered in the affirmative, and Lister told
Reedy that if Lister would have known, Lister would not have hired Reedy. Lister
repeated the statement and hung up. Reedy testified that he also told Lister that both
Arce and Chandler knew about his single parent status.
Reedy testified that he was not scheduled to work on Friday January 30, 2015.
Defendant, Rich Transport, LLC, does not do business on the weekends. Reedy
testified that he did not have any contact with Arce or Lister that Friday or Saturday, and
the truck remained at the truck stop. According to Reedy, on Sunday February 1, 2015,
“Mike,” another driver employed by Defendant, called Reedy saying that he was going
to pick up the truck Reedy left at the truck stop. “Mike” also told Reedy that Reedy was
now on medical leave. The next day, Monday February 2, 2015, Reedy called Lister

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about the situation. Lister confirmed that “Mike” would be picking up the truck. He also
told Reedy that he was not on medical leave and was instead terminated.
In contrast with Reedy’s testimony, Arce testified that, when he spoke to Reedy
on Thursday January 30, 2015, he told Reedy that he needed to go back to his truck to
disconnect the trailer so that another driver could pick up the trailer and continue on the
route. According to Arce, Reedy drove with his kids in his personal vehicle to the truck
stop and disconnected the trailer from his truck. Reedy then left his truck at the truck
stop and drove home in his personal vehicle. The other driver picked up the trailer and
left an empty trailer for Reedy to pick up and continue his route. Arce also testified that
he spoke to Reedy on Friday January 30, 2015, asking Reedy whether he had picked
up the truck and trailer from the truck stop. According to Arce, Reedy told him that he
had not yet picked up the truck.
Reedy never received permission from Arce or Lister to see a doctor. Reedy,
nevertheless, went to the hospital sometime between February 1, 2015 and February 3,
2015 to address his back injury. The hospital contacted Defendant to inquire about
payment, but payment was denied. On February 18, 2015, Reedy filed the instant suit.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) empowers the court to render summary
judgment "forthwith if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The
Supreme Court has affirmed the court's use of summary judgment as an integral part of
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the fair and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox
v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
The standard for determining whether summary judgment is appropriate is
"'whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.'"
Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.
2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The
evidence and all reasonable inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d
900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law,
the opposing party must come forward with "specific facts showing that there is a
genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);
see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere
allegations or denials in the non-movant's pleadings will not meet this burden, nor will a
mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248,
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252. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).
ANALYSIS
A. Discrimination Based on Marital Status (Count I)
Reedy claims that Defendants discriminated against him based on his marital
status in violation of the ELCRA. The ELCRA states: “An employer shall not . . . [f]ail or
refuse to hire or recruit, discharge, or otherwise discriminate against an individual with
respect to employment . . . because of . . . marital status.” M.C.L. 32.2202(1)(a). The
ELCRA does not define “marital status.” Plaintiff may prove discrimination by direct or
circumstantial evidence. Hazel v. Ford Motor Co., 464 Mich. 456, 520 (2001). Direct
evidence is “‘evidence which, if believed requires the conclusion that discrimination was
at least a motivating factor in the employer’s actions.’” Id. Where plaintiff’s claim is
based on circumstantial evidence, the court relies on the McDonnell Douglas burden
shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-07 (1973).
Under that analysis, Reedy must first establish a prima facie case under this statute by
showing 1) he is a member of a protected class, 2) he suffered an adverse employment
action, 3) he was qualified for the job, and 4) he was terminated under circumstances
that give rise to an inference of unlawful discrimination. Saroli v. Automation & Modular
Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005); Wilcoxon v. Minnesota Min. &
Mfg. Co., 597 N.W.2d 250, 257 (Mich. Ct. App. 1999). Should Reedy satisfy the above
elements, Defendants bear the burden of proving a legitimate, nondiscriminatory
business reason for terminating Reedy. McDonnell Douglas, 411 U.S. at 802. Then, if
Defendants meet this burden, Reedy must prove by a preponderance of the evidence
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that the legitimate reason offered by Defendants was a pretext for discrimination. Id. at
807. “There are three ways a plaintiff can establish that a defendant's stated legitimate,
nondiscriminatory reasons are pretextual: (1) by showing the reasons had no basis in
fact, (2) if they have a basis in fact, by showing that they were not the actual factors
motivating the decision, or (3) if they were factors, by showing that they were jointly
insufficient to justify the decision.” Dubey v. Stroh Brewery Co., 462 N.W.2d 758, 760
(1990).
Reedy does not present direct evidence of discrimination. Instead, he offers two
instances of indirect evidence of discrimination. The first is Lister’s alleged statement
that, if he had known Reedy was a single parent, Reedy “would not have gotten that
job.” (Doc 13-2, Pg ID 363 ¶ 24:13-15) (emphasis added). Reedy argues that this is
direct evidence of discrimination and should, therefore, be enough to allow Reedy to
withstand summary judgment as to this claim. Lister did not, however, say that he was
terminating Reedy because he was a single parent, only that, had he known Reedy was
a single parent at the time of hiring, he would not have been hired. Additionally, Lister’s
statement was not made when Lister terminated Reedy. See DeBrow v. Century 21
Great Lakes, Inc., 620 N.W.2d 836, 839 (2001) (finding that an employer’s statement
“you’re too old for this shit,” was direct evidence of the employer’s intent to demote the
employee based on his age because it was allegedly made during the discussion in
which the employee was demoted). The second instance Reedy uses to demonstrate
discrimination is Arce allegedly telling Reedy, “I don’t give a fuck about your kids. Get
your fucking ass in that truck because that’s where we need to have you.” (Doc. 13-2,
Pg ID 366 ¶ 36:18-20).
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Given that Reedy only offers indirect evidence of discrimination, the McDonnell
Douglas framework applies. The parties agree that Reedy satisfies the second and third
elements required to demonstrate a prima facie case of discrimination, namely that he
suffered an adverse employment action and was qualified for the job. The primary
disagreement between the parties is whether Reedy is in fact a member of the
protected class, the first element of a prima facie case. Reedy claims that he was
terminated because he was a single parent. Defendants read the Michigan Supreme
Court’s decision in Miller v. C.A. Muer Corp. as construing the ELCRA’s use of the term
“marital status” narrowly to mean only “whether a person is married.” 362 N.W.2d 650,
653–54 (1984). Defendants allege that, because Reedy was married at the time of his
termination, he is not a member of the class. Miller, however, must be read in the
context of the anti-nepotism policy it was addressing. In Miller, plaintiff was required by
company policy to quit his job, be terminated, or transfer to another location after he
married his co-worker. In deciding the case, the Miller court paid particular attention to
the legislative intent of the ELCRA saying:
Civil rights acts seek to prevent discrimination against a person because
of stereotyped impressions about the characteristics of a class to which
the person belongs. The Michigan civil rights act is aimed at “the
prejudices and biases” borne against persons because of their
membership in a certain class . . . and seeks to eliminate the effects of
offensive or demeaning stereotypes, prejudices, and biases.
By including marital status as a protected class, the Legislature
manifested its intent to prohibit discrimination based on whether a person
is married.
Miller, 362 N.W.2d at 362-63 (emphasis in original). The Miller court was careful not to
interpret the term “marital status” too broadly so as to include people not intended by
the legislature. Id. The court, therefore, concluded that, with regard to anti-nepotism
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policies, “[a]bsent a more specific manifestation of legislative intent . . . the prohibition of
employment discrimination on the basis of ‘marital status’ was not meant to protect a
right to be employed in the same department as one's spouse.” Id. at 362.
Miller dealt with a very different set of facts from the matter at issue. This court,
consequently, does not find the Miller court’s seemingly narrow language dispositive.
Rather, the court finds instructive the Miller court’s consideration of the legislature’s
intent in passing the ELCRA, specifically the legislature’s concern with “stereotyped
impressions.” One “stereotyped impression” of single parents is a need for child-care
that married couples do not need because they share the responsibility of caring for
their children. The discrimination that Reedy alleges is precisely the kind of
discrimination the legislators who enacted the ECLRA sought to prevent by protecting
individuals based on “marital status.” See Wojan v. Alcon Labs., Inc., No. 07-11544,
2008 WL 4279365, at *11 (E.D. Mich. Sept. 15, 2008) (finding that a single parent who
alleged that she was discriminated against in part for her childcare arrangements was a
member of the class and had presented a prima facie case of discrimination).
Defendants also argue that, because Reedy was married during the time period
at issue, he cannot be included in the class of single people. Reedy, however, does not
need to have actually been single at the time of the incident to be included in the class.
Rather, Defendants’ perception of Reedy’s marital status is enough. See Kallabat v.
Michigan Bell Tel. Co., Case No. 12-15470, 2015 WL 5358093, at *3-4 (E.D. Mich.
June, 18, 2015) (citing Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002))
(applying perception theory in the context of a religious discrimination case). It is clear
from Lister’s alleged statements that Lister believed that Reedy was not married. This
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perception is enough to include Reedy in the protected class. For the reasons stated
above, the court finds that Reedy has presented a prima facie case of discrimination.
Defendants proffer job-abandonment as a legitimate, non-discriminatory reason
for terminating Reedy. According to Defendants, Reedy “voluntarily terminated his
employment . . . . [and] had performance issues that could have led to termination.”
(Doc. 13-7, Pg ID 494). Reedy insists that job-abandonment is merely a pretext for
discrimination. Defendants’ employee handbook defines job-abandonment as follows:
“absence without proper notification is considered abandonment of position and is
considered a voluntary termination without notice.” (Doc. 13-6, Pg ID 441). According to
Defendants, Reedy did not notify them that he was going to leave his truck at the truck
stop before he did so. Reedy also failed to return to the truck when requested.
Defendants argue that Reedy’s actions led them to determine that he abandoned his job
and had voluntarily terminated himself. However, if Reedy’s testimony is to be
believed–as it must at the summary judgment stage–Reedy did contact night dispatch to
let them know of the road conditions, and night dispatch told him that he could park his
truck at the rest stop and go home. So, under the definition of job abandonment
provided by Defendants’ handbook, Reedy did not abandon his job by leaving his truck
at the truck stop. Reedy did, however, fail to return to work when Arce requested that he
do so. This could have been considered job abandonment by Defendants.
In addition, the handbook creates an at-will employment situation, which enables
Defendants to terminate their employees “with or without cause, at any time without
prior notice . . . .” (Doc. 13-6, Pg ID 432). Although the handbook lays out a progressive
discipline policy, it reserves for the Defendants “the right to skip any and all steps in the
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progressive discipline procedure and suspend or terminate an employee for a first
offense . . . .” (Id. at 456-57). Therefore, even taking Reedy’s accounting of the facts as
true, he failed to return to his truck Thursday January 29, 2015 when he was told to do
so by Arce. Failing to return to work when asked is enough for an employer to terminate
an at-will employee. Reedy has the burden of demonstrating pretext, and he has not
done so here.
B. Retaliatory Discharge (Count III)
Reedy next claims that Defendants violated the WDCA by retaliating against him
for seeking medical services under the WDCA. The WDCA makes it illegal for an
employer to
discharge an employee or in any manner discriminate against an
employee because the employee filed a complaint or instituted or caused
to be instituted a proceeding under this act or because of the exercise by
the employee on behalf of himself or herself or others of a right afforded
by this act.
M.C.L. § 418.301. Reedy bears the burden of demonstrating a prima facie case of
retaliation by showing
(1) that the employee asserted a right to obtain necessary medical
services or actually exercised that right, (2) that the employer knew that
the employee engaged in this protected conduct, (3) that the employer
took an employment action adverse to the employee, and (4) that the
adverse employment action and the employee's assertion or exercise of a
right afforded under MCL 418.315(1) were causally connected.
Cuddington v. United Health Servs., Inc., 826 N.W.2d 519, 525 (Mich. Ct. App. 2012).
Reedy again offers indirect evidence of retaliation; so the McDonnell Douglas
burden shifting analysis applies. Reedy must first demonstrate a prima facie case of
retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-07 (1973).
Defendants insist that Reedy did not seek treatment until after he was terminated; so
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they could not have retaliated against him on that basis. While Reedy did not visit a
doctor while employed by Defendant, he did immediately notify his supervisor that he
was injured and wanted to see a doctor, thereby asserting his right under the WDCA
and informing his employer. In doing so, Reedy satisfied the first two elements of a
prima facie case. It is undisputed that Defendants took an adverse employment action
against Reedy; so the third element is also satisfied.
As to the fourth element, Reedy claims that two circumstances prove the causal
connection. First, Reedy alleges that Defendants did not have Worker’s Compensation
insurance coverage at the time Reedy was injured. To support this assertion, Reedy
points to a document showing the effective dates of the policy as January 1, 2015
through January 1, 2016. (Doc. 13-8, Pg ID 500). The document itself, however, was
signed and dated September 1, 2015. Assuming the policy did not go into effect until
September 1, 2015, Defendants would have had to pay out of pocket for Reedy’s
injuries. Reedy alleges this a potential motive for his termination. Defendants, on the
other hand, claim that the policy was in effect when Reedy was injured. Defendants
insist that the document Reedy points to as evidence is merely proof that the policy is in
effect, not the document that put the policy into effect. The document itself is titled
“Evidence of Workers’ Compensation Insurance.” (Id.) It is clear to the court that
Defendants’ interpretation is correct. Defendants had Worker’s Compensation
Insurance during the time period in question.
Second, Reedy uses Lister’s “shifting and inconsistent testimony” as indirect
evidence proving the causal connection. Defendants argue that Lister’s testimony was
not inconsistent and that Reedy misunderstands the difference between WDCA and
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OSHA’s reporting requirements. Upon reading Lister’s testimony, the court agrees that it
is not inconsistent. Because Reedy has not demonstrated a causal connection between
his seeking medical attention under the WDCA and subsequent termination, Reedy has
not established a prima facie case of retaliation under the WDCA.
Even assuming arguendo that Reedy has established a prima facie case of
retaliation under the WDCA, he has not demonstrated that the legitimate, nondiscriminatory reason proffered by Defendants is pretextual. As discussed above,
Defendants claim they terminated Reedy because he failed to return to work when Arce
requested that he do so. Reedy bears the burden of proving pretext. Looking at the
record as a whole, Reedy has not put forth sufficient evidence to demonstrate pretext.
IT IS ORDERED that summary judgment as to Counts I and III of Reedy’s
complaint is GRANTED.
Dated: August 24, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 24, 2016, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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