Dunlap v. United Outstanding Physicians, PLLC et al

Filing 37

OPINION AND ORDER: (I) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 23 AND (II) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 22 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOYCE DUNLAP,
Plaintiff,
Case No. 15-cv-14022
v.
UNITED OUTSTANDING PHYSICIANS,
PLLC; UOP, LLC; ASSURANCE
PAYROLL, LLC D/B/A TERRA 1,
GLOBAL HR GROUP; AND GLOBAL HR I,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
OPINION AND ORDER: (I) DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [23] AND (II) GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [22]
I.

Introduction
This is a Family and Medical Leave Act (“FMLA”) case. Defendants

counterclaim with a breach of contract action. The relationship between the parties
in this case (such as who is the employer and how many employees are employed)
is vital to this case. However, those basic facts are unclear. Pending before the Court
is Plaintiff’s Motion for Summary Judgment [22] and Defendants’ Motion for
Summary Judgment [23]. Defendants’ Motion focuses on the FMLA and is fully
briefed by both parties. Plaintiff’s Motion for Summary Judgment focuses on breach
of contract. Defendants did not respond to Plaintiff’s motion, nor did the Defendants
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mention it during oral argument. For the following reasons the Court will DENY
Defendants’ Motion for Summary Judgment [23] and GRANT Plaintiff’s Motion
for Summary Judgment [22].
II.

Facts
This suit is brought against United Outstanding Physicians, PLLC; UOP,

LLC; and Assurance Payroll, LLC, (collectively “Defendants”). The relationship
between the three Defendants is unclear and subject to part of the dispute in the
instant Motions for Summary Judgment. As best as the Court can tell United
Outstanding Physicians, PLLC is virtually synonymous with UOP, LLC. Dkt. No.
35-2, p. 4 (Pg. ID 452). Together, United Outstanding Physicians, PLLC and UOP,
LLC connect health plans with physicians in order to provide medical services. Id.
The CEO of UOP, LLC is Dr. Yasser Hammoud. Id.
Assurance Payroll, LLC (hereinafter “Assurance”) does business as Terra 1,
Global HR Group, and Global HR I. Assurance and its affiliates provide payroll and
other services to United Outstanding Physicians, PLLC and UOP, LLC. Joyce
Dunlap (hereinafter “Plaintiff”) was employed as a “Physician Liaison”. Dkt. No.
35-4, p. 7 (Pg. ID 481). Plaintiff began working on October 15, 2007. Dkt. No. 272, p. 2 (Pg. ID 341). Plaintiff claims that she is unsure who her actual employer was.
On October 3, 2013, Plaintiff’s son was diagnosed with leukemia. Dkt. No.
27-2, p.4 (Pg. ID 343). On or about October 15, 2013 Plaintiff requested family
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medical leave. Dkt. No. 27-7, p. 2 (Pg. ID 366). On October 22, 2013 Plaintiff was
granted leave and assured that she would not be dropped from her health insurance.
Dkt. No. 23-3, p. 2 (Pg. ID 269). On November 1, 2013, Plaintiff’s health insurance
was discontinued. Dkt. No. 27-2, p. 5 (Pg. ID 344). This litigation followed. To date,
Plaintiff has not returned to work. To avoid confusion, additional facts are explained
during the Discussion section.
III.

Legal Standard

Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). No genuine dispute of material fact exists where the record “taken
as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Ultimately, the court evaluates “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.” Anderson, 477 U.S. at 251–52.

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IV.

Discussion

The FMLA prohibits interference and retaliation. Interference occurs when an
employer “interfere[s] with, restrain[s], or den[ies] the exercise of or the attempt to
exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Retaliation
occurs when an employer “discharge[s] or in any other manner discriminate[s]
against any individual for opposing any practice made unlawful by [the FMLA].” 29
U.S.C. § 2615(a)(2).
A. Interference
“An employee may prove FMLA interference using the familiar burdenshifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Demyanovich v. Cadon Plating & Coatings,
L.L.C., 747 F.3d 419, 427 (6th Cir. 2014). “[T]he employee has the initial burden of
establishing his prima facie case; if he does so, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for its actions; finally, the
employee has the burden of rebutting the employer’s proffered reasons by showing
them to be pretextual.” Id. (citing Donald v. Sybra, Inc., 667 F.3d 757, 761–62 (6th
Cir. 2012)).
“To establish a claim for interference under the FMLA, a plaintiff must
demonstrate that[:]
(1) he is an eligible employee,
(2) the defendant is an employer as defined under the FMLA,
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(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.”
Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th Cir. 2016) (citing Walton
v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)).
According to the Defendants, the Plaintiff cannot establish a prima facie case
for interference. Defendants argue that the Plaintiff “cannot establish that she was
an eligible employee, or that any of the defendants are covered employers, or that
she was entitled to FMLA leave, or that she was denied benefits or rights.” Dkt. No.
23, p. 11 (Pg. ID 252) (emphasis in original). The Court will address each argument.
i.

Eligible Employee

29 U.S.C. § 2611 puts forth the definitions for the FMLA.
“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 under section 2612 of this title; and
(ii) for at least 1,250 hours of service with such employer during the
previous 12-month period.”
In this case, it seems undisputed that Plaintiff worked at least 12 months and
for at least 1,250 hours. Dkt. No. 27, p. 15 (Pg. ID 324). Therefore, Plaintiff can
establish that she was an eligible employee based on her hours and length of
employment. Summary judgement on this element is thus improper.

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ii.

Covered Employer and Entitlement to Leave

The closer issues are who employed the Plaintiff and how many employees
were employed. If the number of employees is less than 50, Plaintiff is not entitled
to leave and this claim must fail.
The FMLA explains:
“The term ‘eligible employee’ does not include-(i) any Federal officer or employee covered under subchapter V of
chapter 63 of Title 5; or
(ii) any employee of an employer who is employed at a worksite at
which such employer employs less than 50 employees if the total
number of employees employed by that employer within 75 miles of that
worksite is less than 50.”
29 U.S.C. § 2611 (emphasis added). Plaintiff brings this claims against United
Outstanding Physicians, PLLC, UOP, LLC, and Assurance Payroll, LLC and claims
that the three entities are either (1) joint employers or (2) integrated employers. Dkt.
No. 27, p. 15 (Pg. ID 324). According to the Plaintiff, aggregating the employees of
each Defendants will result in more than 50 employees.
1. Joint Employers
“Where two or more businesses exercise some control over the work or
working conditions of the employee, the businesses may be joint employers under
the FMLA.” 29 C.F.R. § 825.106(a). “Employees jointly employed by two
employers must be counted by both employers, whether or not maintained on one of
the employer’s payroll, in determining employer coverage and employee
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eligibility.” 29 C.F.R. § 825.106(d). “[A] joint employment relationship generally
will be considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee’s services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest of the
other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with respect
to the employee’s employment and may be deemed to share control of
the employee, directly or indirectly, because one employer controls, is
controlled by, or is under common control with the other employer.”
29 C.F.R. § 825.106(a)
2. Integrated Employers
FMLA regulations further specify that “[s]eparate entities will be deemed to
be parts of a single employer for purposes of FMLA if they meet the integrated
employer test. Where this test is met, the employees of all entities making up the
integrated employer will be counted in determining employer coverage and
employee eligibility. A determination of whether or not separate entities are an
integrated employer is not determined by the application of any single criterion, but
rather the entire relationship is to be reviewed in its totality. Factors considered in
determining whether two or more entities are an integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.”
29 C.F.R. § 825.104(c)(2) (amended on other grounds by 82 FR 2221-01).
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3. Evidence of Joint or Integrated Employers
One common factor between joint employers and integrated employers is the
degree of control that one employer has over another’s business or employees. The
Defendants argue that Assurance (and its affiliates) did not exercise any control over
UOP, LLC or United Outstanding Physicians, PLLC. The Defendants’ argument
seems intuitively correct—it is unusual for a payroll entity to exercise control over
the business that it services. However, the evidence before the Court defies that
intuition.
The Court first turned to the Plaintiff’s W-2s to determine what company
employed her. However, federal filings do not conclusively establish who employed
the Plaintiff. In 2011 and 2012, Plaintiff’s W-2s list her employer as Global HR 1,
LLC. Dkt. No. 27 (Pg. ID 325). In 2013, Plaintiff’s W-2 lists her employer as Terra
1, LLC. Id. Mr. Hammoud, the CEO of UOP, LLC, admits that the W-2s issued to
UOP employees do not identify UOP, LLC or United Outstanding Physicians, PLLC
as the employer.
Unable to discern the Plaintiff’s employer from her W-2s, the Court next
analyzed the interrelation between Defendants. Evidence shows UOP, LLC
employees act authoritatively on behalf of both Terra 1, LLC and Global HR. For
example, on November 17, 2014, an Administrative Law Judge held an
unemployment hearing. Dkt. No. 35-4. In that hearing, the plaintiff is listed as the
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claimant and Terra 1, LLC is the listed employer. Id. In that same hearing, Susan
Hammoud and Charlotte Elliot (the Office Manager and Administrative Assistant at
UOP’s offices) appeared on behalf of the Terra 1, LLC. Id. Additionally, the Plaintiff
produced evidence showing that Dr. Alazzawi, a Director at UOP, LLC, signed
important employer documents on behalf of both UOP, LLC and Global HR. See
Dkt. Nos. 35-13, 27-11.Therefore, at least three different entities seem to have some
sort of overlapping control of company finances and business operations. Based on
that control, reasonable jurors could disagree on whether UOP, LLC is a joint or
integrated employer with Assurance and its affiliates.
4. Total Number of Employees
Even assuming a joint or integrated employer, the Defendants argue that the
“Plaintiff has not pointed to any evidence (and cannot do so) that shows that UOP,
LLC and the payroll services companies collectively had 50 or more employees.”
Dkt. No. 31 (Pg. ID 405). However, the Defendants’ argument misstates who carries
the burden of production. “The movant has the burden of showing that there is no
genuine issue of fact[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)
(emphasis added). To that end, the Defendants fail to sufficiently establish that they
have less than 50 employees.
In this case, Assurance is a potentially integrated or joint employer with UOP,
LLC. It seems uncontradicted that UOP, LLC employs at most 15 people. See Dkt.
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No. 35-2 (Pg. ID 458). However, given Assurance’s structure and management, it is
unclear how many employees Assurance has.
Assurance owns or did business as at least six different entities: Terra 1,
Global HR Group, Global HR I, Terra I, LLC, Global HR Group, LLC and Global
HR 1, LLC. Dkt. No. 35-6, p. 4 (Pg. ID 505). The names of these entities are very
similar. Nevertheless, slight differences in names appear to identify completely
separate entities. Some of the entities operate as payroll companies, while others
provide IT services. Id. Terra 1, LLC, Global HR Group, LLC and Global HR 1,
LLC provided payroll services to UOP, LLC. Dkt. No. 31-1, ¶ 1 (Pg. ID 413).
According to Mostafa Afr, President of Assurance, Assurance “never had any
employees during the period in question.” Dkt. No. 31-1, p. 2 (Pg. ID 403). Mr. Afr
also declared that Terra 1, LLC and Global HR 1 LLC “never had any employees
during the period.” Id. Notably, Mr. Afr fails to account for how many employees
Global HR, LLC had during the period in question.
Although Assurance technically had no employees, it issues payroll services
to over 600 clients. Dkt. No. 35-6, p. 6 (Pg. ID 507). This is possible because
Assurance has a complicated network of sub-departments and parent companies.
According to Mr. Afr, Assurance is a single department inside of one large company.
Dkt. No. 35-6, p. 5 (Pg. ID 506) (“Q. How can you operate a business with no
employees? A. Well, basically it is one company, but Assurance is like [sic]
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department.”). As best as the Court has determined, Assurance is a department for a
CPA firm called A&A Management Service. Id. A&A Management Service is
controlled by another entity called Afr CPA. Id. A&A Management has between 16
and 22 employees. Dkt. No. 35-6, p. 5 (Pg. ID 506). However, Mr. Afr fails to
account for how many employees Afr CPA has.
The Defendants fail to demonstrate that there is no genuine issue of fact
regarding the number of employees because the Defendants’ evidence is incomplete
and jumbled. The Defendants admit that Assurance does payroll in the names of at
least three different entities. However, the Defendants fail to produce any evidence
with respect to one of those three payroll entities. Next, the Defendants admit that
Assurance is owned by A&A Management Service, which is controlled by Afr CPA.
However, the Defendants fail to produce any evidence with respect to how many
employees Afr CPA has. It seems that Mr. Afr has created a shell game with sub
departments and parent companies—that he separates and/or combines when it is
convenient. Dkt. No. 35-6, p. 6 (Pg. ID 507). But, Mr. Afr fails to account for the
employees within each relevant entity.
The contours of this corporate network become even more unclear because
the Defendants speak in general terms like “Terra” and/or “Global”—taking for
granted that one general term could refer to multiple entities. Without the complete
information, the issue is not so one-sided to eliminate reasonable disagreement. Even
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assuming joint or integrated employers, the number of employees remains unclear.
Summary judgment, on this issue, is therefore improper.
iii.

Denial of Benefits or Rights

Defendants later argue that summary judgment is proper because the Plaintiff
cannot establish that the Defendants denied any benefits or rights. “Qualifying
employees who return to work within the 12–week period of their unpaid medical
leave are entitled to be restored to ‘the position of employment held by the employee
when the leave commenced,’ or ‘to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment.’ ” Grace
v. USCAR, 521 F.3d 655, 669 (6th Cir. 2008) (citing 29 U.S.C. § 2614(a)(1)). “For
example, if an employee on leave without pay would otherwise be entitled to full
benefits (other than health benefits1), the same benefits would be required to be
provided to an employee on unpaid FMLA leave.” 29 C.F.R. § 825.220. Therefore,
to prevail on an interference claim, Plaintiff must demonstrate that she was denied
benefits or that she returned to work within 12 weeks and that Defendants failed to
reinstate her. Here, Plaintiff claims that she was denied health benefits and
terminated.

1

Although federal regulations exclude health benefits from being covered by the
FMLA, Defendants’ written policies grant health benefits while on family medical
leave.
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a. Denial of Health Benefits
First, Defendants argue that Plaintiff’s health insurance coverage “was
terminated by the carrier, and not UOP.” Dkt. No. 23, p. 14 (Pg. ID 255). Dr.
Hammoud’s affidavit states that UOP, LLC did not terminate Plaintiff’s health
insurance coverage. See Dkt. No. 23-1, ¶¶ 8–10 (Pg. ID 260) (“I learned that Total
Health required Ms. Dunlap to work a minimum of 30 hours per week in order to
continue and qualify for health insurance. In addition, I was advised that I could not
pay her premium out of my own pocket.”). However Dr. Hammoud’s affidavit is in
conflict with UOP, LCC’s written policies and an email exchange between the
Plaintiff and Sue Hammoud.
UOP, LLC’s Family and Medical Leave Summary states:
“During an approved family or medical leave, your health
benefits will be provided as though you had continued to work. If you
have family coverage, please arrange with the payroll office to submit
timely monthly payment for your portion, if any, of the health insurance
premiums. To the full extent allowed under the FMLA, [Company]
reserves the right to recover health insurance premiums from
employees who fail to return to work at the end of an FMLA-qualifying
leave.”
Dkt. No. 27-3, p. 3 (Pg. ID 348) (emphasis added). UOP, LLC’s FMLA policy does
not include the 30-hour-per-week requirement that Dr. Hammoud mentioned.
Moreover, an email exchange from Sue Hammoud instructs the Plaintiff that her
health care will continue if she “put[s] in writing that [she was] unable to enroll on
[her] husband’s insurance and [she] will attempt to repay [her] insurance once [she]
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return[s] to work.” See Dkt. No. 23-3. Furthermore, both Dr. Hammoud and Sue
Hammoud confirmed that the Plaintiff applied for family medical leave and that
leave was granted.
The court must view the facts, and draw reasonable inferences from those
facts, in the light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In this case, neither side disputes that Plaintiff’s health insurance coverage
was actually terminated. However, the Defendants tip-toe around whether they
actually granted family medical leave and who is actually responsible for the
termination of health benefits. On these facts, a juror could reasonably infer that the
Defendants granted family medical leave. Although Defendants never explicitly say
they are granting family medical leave, the Plaintiff requested and was granted leave
that is virtually identical to UOP, LLC’s FMLA policy. Next, a juror could also
reasonably infer that the Defendants contributed to the interruption of Plaintiff’s
health benefits. Although Defendants claim that they did not terminate the benefits,
Defendants admit to: (1) paying for health care coverage for all employees; (2)
ensuring Plaintiff that she will be kept on health care, without being dropped; and
(3) requiring the Plaintiff to write some sort of promissory note to Dr. Hammoud,
rather than the insurance company. After considering all reasonable inferences, a
juror could find that Plaintiff’s health care was terminated at least in part to an action
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by the Defendants. Therefore, there is an issue of fact regarding whether the
Defendants denied the Plaintiff health benefits.
b. Failure to Reinstate
Next, the Defendants argue that the Plaintiff was never terminated. Instead,
Defendants assert that the Plaintiff “never returned from leave, even though she has
been specifically told that her job is still available.” Dkt. No. 23, p. 14 (Pg. ID 255).
This argument is at odds with an affidavit from Vicki Abbas. Ms. Abbas was a
Credentialing Coordinator for the Defendants. Dkt. No. 35-16, p. 1 (Pg. ID 550).
According to Ms. Abbas, “[i]n 2013, while Joyce Dunlap was on a leave of absence
to care for her ill son … Yasser Hammoud[] walked in and said words to the effect
that Joyce Dunlap’s insurance was terminated and so was Joyce.” Id., p. 2 (Pg. ID
551). Ms. Abba’s affidavit contradicts the Defendants’ argument that the Plaintiff
was never terminated, therefore creating an issue of fact.
Factual disagreement about any one of the five elements required for an
interference claims could be sufficient to foreclose summary judgment. Given the
factual disagreement about: (1) whether the Defendants are covered employers
(jointly or integrated); (2) whether there are enough employees to entitle the Plaintiff
to family medical leave; and (3) whether the Defendants terminated the Plaintiff’s
health benefits and fired her, summary judgment is improper on the interference
claim.
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A. Retaliation
In addition to interference, Plaintiff pleads a retaliation claim. “An employee
can establish a prima facie case of retaliation by showing that[:]
(1) he engaged in protected activity,
(2) his employer was aware of the protected activity,
(3) he was subject to an adverse employment action, and
(4) there was a causal nexus between the protected activity and the
adverse employment action.”
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432–33 (6th Cir.
2014). “The burden of establishing a prima facie case in a retaliation action is not
onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th
Cir. 2000).
Defendants argue that the Plaintiff can only establish that she engaged in
protected activity. See Dkt. No. 23, p. 11–12 (Pg. ID 252–53) (“The Plaintiff cannot
establish that the defendants were aware that she had engaged in protective activity
as the defendants rightfully believed that the FMLA did not apply. Nor can the
plaintiff establish that she was subject to an adverse employment action (much less
that there was a causal connection between these two events).”). Defendants’
argument is unpersuasive.
i.

Protected Activity

In the Defendants’ own papers, they concede that there is an issue of fact
regarding whether the Plaintiff engaged in protected activity. See Dkt. No. 23, p. 11
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(Pg. ID 252) (“Here, plaintiff may only, possibly, establish one of these elements,
namely, that she engaged in protected activity.”). This concession is correct. On
October 22, 2013, Plaintiff sent an email to Sue Hammoud (office manager and wife
of Dr. Yasser Hammoud). See Dkt. No. 23-3. In the email, the Plaintiff explains that,
“this is not just unpaid leave I requested unpaid family medical leave to take care of
my sick son.” Dkt. No. 23-3. Sue Hammoud responded to the Plaintiff’s email
seemingly confirming that the Plaintiff can take unpaid leave without being dropped
from her health insurance. This email alone could lead a reasonable jury to believe
that Plaintiff engaged in protected activity (taking family medical leave) and that the
employer was aware of it. Therefore summary judgment is not proper based on
engagement in protected activity or awareness of protected activity.
ii.

Adverse Employment Action

Next, the parties dispute whether the Plaintiff was terminated or whether she
simply did not return to work from leave. In a March 4, 2016 letter to Plaintiff’s
Counsel, the Defendants explain, “Ms. Dunlap’s employment with UOP, LLC was
never terminated . . [t]here is no resistance to her return to UOP, if she decides to do
that. The company will welcome her back.” Dkt. No. 31-2, p.2 (Pg. ID 417).
Nevertheless, according to former UOP employee Vicki Abbas, “while Joyce
Dunlap was on a leave of absence to care for her ill so . . . Yasser Hammoud[] walked
in and said words to the effect that Joyce Dunlap’s insurance was terminated and so
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was Joyce” Dkt. No. 35-16, p. 2 (Pg. ID 551). The evidence presented by both sides
creates a factual dispute, proper for submission to a jury.
iii.

Causal connection

“To establish a causal connection, a plaintiff must proffer evidence sufficient
to raise the inference that her protected activity was the likely reason for the adverse
action.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (internal citations and
quotations omitted). The burden of proof at the prima facie stage is minimal; all the
plaintiff must do is put forth some credible evidence that enables the court to deduce
that there is a causal connection between the retaliatory action and the protected
activity. Id. “Proof of temporal proximity between the protected activity and the
adverse employment action, ‘coupled with other indicia of retaliatory conduct,’ may
give rise to a finding of a causal connection.” Id.
In this case, Plaintiff requested family medical leave on October 14 or 15,
2013. Dkt. No. 27-2, p.4 (Pg. ID 343). On October 22, 2013, Sue Hammoud
confirmed that Plaintiff would not be dropped from her health insurance. Dkt. No.
23-3, p. 2 (Pg. ID 269). On November 1, 2013, Plaintiff’s health insurance was
terminated. Dkt. No. 27 (Pg. ID 319). At most, eighteen days separated the Plaintiff
from the alleged adverse action. Therefore, there is a close temporal proximity. See
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524 (6th Cir. 2008) (discussing
Shefferly v. Health Alliance Plan of Michigan, 94 Fed.Appx. 275, 285 (6th Cir.
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2004) (“[T]he passage of less than three weeks between [the employer’s] receipt of
the charges and the adverse actions gives rise to an inference of discrimination” and
“[t]herefore, in this case, [the plaintiff] has established a prima facie case of
retaliation”); see also McNett v. Hardin Cmty. Fed. Credit Union, 118 Fed.Appx.
960, 965 (6th Cir. 2004) (discussed by Mickey v. Zeidler Tool & Die Co.) (finding
causation when “only 13 days” separated protected activity from adverse action,
reasoning that an “employer’s knowledge of the protected activity coupled with an
adverse action occurring close in time can create an inference of causation where the
particular circumstances strengthen the inference of causation”). Therefore, the close
temporal proximity creates a factual dispute regarding causation.
Given this evidence and the low threshold showing that an FMLA plaintiff
must make, Plaintiff has made out a prima facie case of retaliation, which survives
summary judgment.
B. Breach of Contract
In their Counter-complaint, Defendants allege that Plaintiff breached her
employee agreement. The agreement states, “[y]ou agree that during the term of your
employment, or thereafter, that you will not disparage UOP, or its officers, directors,
or employees, or in any way disseminate unfavorable information about UOP, its
officers, directors or employees.” Dkt. No. 2-1, p. 3 (Pg. ID 30). According to the

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Counter-complaint, Plaintiff breached her employee agreement when she made
disparaging comments about UOP, LLC to a local newspaper.
The newspaper article, titled “Dearborn: Family hopes for help as son fights
leukemia,” is written by Katie Hetrick and dated November 19, 2013. Dkt. No. 234, p. 2 (Pg. ID 272). The article states that Plaintiff “was forced to take another leave
from United Outstanding Physicians, where she works as a biller… [h]er employer
is trying to drop the rest of the family from its insurance, and she is not sure whether
she will have a job when she gets back.” Id.
Plaintiff moves for summary judgment on this breach of contract
counterclaim. Plaintiff argues that the counterclaim fails as a matter of law because
the Plaintiff: (1) failed to provide evidence of the terms of the contract; (2) failed to
provide evidence that Ms. Dunlap uttered disparaging remarks; and (3) failed to
establish with reasonable certainty the damages suffered. Defendants did not
respond to this motion, nor did they argue against it.
i.

Terms of the contract

Defendants’ argument that the Plaintiff failed to provide evidence of the terms
of the contract is factually incorrect. It their Counter-complaint, Defendants attach a
copy of the employee agreement. See Dkt. No. 2-1. The agreement appears to be
signed by both the Plaintiff and Dr. Hammoud. Id.

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ii.

Disparaging remarks

Merriam-Webster defines disparage as “to lower in rank or reputation” or to
“depreciate by indirect means (as invidious comparison).”2 The article is titled,
“Family hopes for help as son fights leukemia”. Although the article is written by
Katie Hetrick, quotes from Joyce Dunlap and her husband comprise about half of
the article. An unquoted portion of the article claims that United Outstanding
Physicians is “trying to drop the rest of the family from its insurance”. Dkt. No. 234, p.2 (Pg. ID 272). A reasonable juror could find the article disparaging because the
tone of the article portrays United Outstanding Physicians negatively—as
obstructing a child’s need for medical treatment. Although those particular words
are not directly quoted, a reasonable jury could find that the author paraphrased
remarks from the Plaintiff.
iii.

Damages

Finally, Plaintiff argues that Defendants failed to sufficiently allege damages.
Plaintiff is correct. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Even
though the complaint need not contain “detailed” factual allegations, its “factual

2

https://www.merriam-webster.com/dictionary/disparage.
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allegations must be enough to raise a right to relief above the speculative level on
the assumption that all of the allegations in the complaint are true.” Ass’n of
Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007)
(quoting Bell Atlantic, 550 U.S. at 555). “Despite this, more than bare assertions of
legal conclusions is ordinarily required to satisfy federal notice pleading
requirements.” Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (internal
citations and quotations omitted). “The party asserting a breach of contract has the
burden of proving its damages with reasonable certainty[.]” Alan Custom Homes,
Inc. v. Krol, 256 Mich. App. 505, 512, 667 N.W.2d 379, 383 (2003).
In this case, Defendants claim that, “[a]s a direct and proximate result of
[Plaintiff’s] disparaging comments and statements, UOP, LLC has suffered
damages.” Dkt. No. 2, p. p (Pg. ID 26). That is the only reference to damages in the
Defendants’ three-page Counter-complaint. Without any response (written or oral)
to the Plaintiff’s Motion for Summary Judgment, Defendants’ one-sentence
reference to uncertain and unspecified damages is nothing more than a bare assertion
of a legal conclusion. Therefore, because Defendants failed to properly allege all
elements, their breach contract claim cannot survive Plaintiff’s Motion for Summary
Judgment.

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V.

Conclusion
For the foregoing reasons, the Court DENIES Defendants’ Motion for

Summary Judgment [23] and GRANTS Plaintiff’s Motion for Summary Judgment
[22].

SO ORDERED.

Dated: January 30, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

Detroit, MI

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, January 30, 2017, by electronic and/or ordinary mail.

/s/Tanya Bankston
Case Manager, [phone]

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