Smith v. Senderra RX Partners, LLC
ORDER granting 29 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-10131
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
SENDERRA RX PARTNERS, LLC,
U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
Plaintiff Veleta Smith filed her Complaint  against Defendant Senderra RX
Partners on January 14, 2016. Senderra filed a Motion for Summary Judgment  on
October 21, 2016. The parties timely briefed the motion [31, 34] and the Court held a
hearing on March 2, 2017. At the conclusion of the hearing, the Court granted
Defendant’s Motion for Summary Judgment . This Opinion and Order
supplements the Court’s ruling.
For the following reasons, and for the reasons stated on the record, Defendant’s
Motion for Summary Judgment  is GRANTED.
Veleta Smith initially did very well at Senderra RX Partners: she was hired as a
Customer Service Representative in May 2013 and less than a year later, she was
promoted to Customer Service Team Lead. In 2015, however, the quality of Smith’s
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performance deteriorated, and she violated Senderra’s attendance policy on multiple
occasions. In August 2015, Smith’s supervisors attempted to help her get back on
track by placing her on a Performance Improvement Plan. They also offered Smith
information about the Family Medical Leave Act (“FMLA”) after learning that her
10-year-old daughter Ashley suffered from bladder issues. Senderra’s efforts
notwithstanding, Smith’s transgressions continued; notably, between September 3,
2015 and September 9, 2015, Smith failed to show up for work without notifying
anyone of her absence. On September 9, 2015, Senderra sent Smith a letter
acknowledging receipt of, and accepting, her resignation. Smith sued Senderra,
alleging that Senderra interfered with her FMLA rights and retaliated against her.
When evaluating a motion for summary judgment, the Court must determine
whether “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 a judgment as a matter of law.”
FED. R. CIV. P. 56(c). Defendant, as the moving party, has the burden of establishing
that there are no genuine issues of material fact, which may be accomplished by
demonstrating that the nonmoving party lacks evidence to support an essential
element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue for trial exists if “the evidence is such that a reasonable jury could return a
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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Assessing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmoving party, the Court finds that there is nothing from which a
jury could infer that Senderra interfered with or retaliated against Plaintiff.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff’s FMLA interference claim fails because she cannot show that she was
entitled to leave under the FMLA; that she gave Senderra notice of her intention to
take leave; and that Senderra denied her FMLA benefits to which she was entitled.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
A. Plaintiff was not entitled to FMLA-leave, and therefore, Senderra did not
wrongfully deny her anything to which she was entitled.
Defendant correctly points out that Plaintiff was not entitled to leave under the
FMLA because, as the evidence reveals, it was not medically necessary for Plaintiff to
stay home with her daughter. 29 U.S.C. § 2612(b)(1); see also Lane v. Pontiac
Osteopathic Hospital, No. 09-12634, 2010 U.S. Dist. LEXIS 610003, at *10 (E.D.
Mich. June 1, 2010) (the statute allows for an employee to take FMLA leave “only . . .
when [she] is ‘needed to care’ for a family member.”). The FMLA Medical
Certification from Ashley’s doctor specified that it was appropriate for Plaintiff to
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take leave from work when accompanying her daughter to a medical appointment.
However, Ashley did not have any doctor’s appointments after August 13 – the date
on which Defendant approved Plaintiff’s FMLA leave. Therefore, her unexcused
absences from work on August 26 and from September 3-9 were not medically
necessary. There was simply no FMLA-qualifying reason for Plaintiff to be absent
from work on those dates. Additionally, although there are certain circumstances in
which an employee can take FMLA leave to provide psychological comfort and
reassurance to a sick child, see 29 C.F.R. § 825.124(a),1 Plaintiff only ever told
Defendant that she needed to stay home because she was uncomfortable leaving
Ashley alone in the evenings – not because Ashley was sick and needed Plaintiff’s
care. See Pl.’s Ex. 1 at 134:10-14. Furthermore, Plaintiff cannot plausibly argue that it
was medically necessary to give up her late shift when she admitted that none of
Ashley’s doctor’s appointments took place between 6 and 8 PM.
In sum, Plaintiff has “put forth no evidence to suggest [that Plaintiff being at
work would] place her daughter in danger of not receiving the necessary care.”
Overley v. Covenant Transport, Inc., 178 F. App’x 488, 495 (6th Cir. 2006).
Plaintiff also appears to completely gloss over the fact that she violated
Defendant’s attendance policy on multiple occasions throughout 2015, well before the
possibility of FMLA leave was ever mentioned to her. See Def.’s Ex. 6. Even
These circumstances include “situations, where, for example . . . psychological comfort
and reassurance . . . would be beneficial to a child . . . with a serious health condition who
is receiving inpatient or home care.” 29 C.F.R. § 825.124(a).
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assuming Plaintiff was FMLA-eligible, she did not follow Defendant’s attendance
protocols. She knew that she should have called in to notify someone of her absences
in August and September 2015, yet she failed to do so. These attendance issues
provided Defendant with “a legitimate reason unrelated to the exercise of FMLA
rights for” accepting Plaintiff’s resignation and ending her employment. Ritenour v.
Tenn. Dep’t of Human Servs., 497 Fed. Appx. 521, 530 (6th Cir. 2012) (unpublished).
B. Plaintiff failed to give Defendant notice of her intention to take leave
The language of the FMLA regulations “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 v.
Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2013). Plaintiff admitted
during her deposition that she knew – and did not comply with – Defendant’s
attendance policies. (Pl.’s Ex. 1 at 95:2-4, 96:6-17, 101:1-4). She also knowingly
violated the terms of her performance improvement plan. Id. at 102:15-21. The
evidence in the record shows that Plaintiff’s repeated violations of Defendant’s
attendance policy justified Defendant’s decision to accept her resignation.
To establish her prima facie case of FMLA retaliation, Plaintiff must show that
(1) she engaged in FMLA-protected activity; (2) Senderra knew that she was
exercising FMLA rights; (3) she suffered an adverse employment action; and (4) there
was a causal connection between the FMLA-protected activity and the adverse
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employment action. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir.
2012). Once Plaintiff satisfies her prima facie case, the burden shifts to Defendant to
provide a legitimate, non-discriminatory reason for the adverse employment action.
The burden then returns to Plaintiff to show that Defendant’s proffered reason is
pretextual. Id. at 285.
Although there is scant evidence in the record indicating any causal connection
between the FMLA-protected activity – Plaintiff’s acceptance of her supervisor’s
offer to learn more about her FMLA eligibility – and the adverse employment action,
the Court will assume that Plaintiff has set forth a prima facie case of unlawful
retaliation. At this point in the burden shifting analysis, Senderra must proffer
evidence of a legitimate, non-discriminatory reason for the adverse action. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (“The defendant must clearly set
forth . . . reasons for its actions which, if believed by the trier of fact, would support a
finding that unlawful [retaliation] was not the cause of the employment action.”).
Defendant has presented extensive evidence justifying its decision to terminate
Plaintiff’s employment: a series of attendance and performance infractions throughout
2015 that constituted violations of Senderra’s policies, and the fact that Plaintiff failed
to show up to work – or give notice of her absences – for nearly one week.
Plaintiff can still defeat summary judgment if she produces “adequate evidence
demonstrating that [Senderra’s] proffered reason was a pretext for discrimination.”
Seeger, 681 F.3d at 285. This she cannot do: she has not adduced any evidence “from
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which the jury could reasonably reject [the defendant’s] explanation and infer that the
defendant intentionally discriminated against [her].” Clark v. Walgreen Co., 424 Fed.
Appx. 467, 474 (6th Cir. 2011) (unpublished). Plaintiff’s attendance and performance
issues caused her employment to end in September 2015. The record evidence –
including notes and testimony from Plaintiff’s supervisors – illustrate Plaintiff’s bad
habits; she was not consistently present at the office, was often away from her desk,
gossiped with others in her office, and did not follow Senderra’s attendance policy.
See, e.g., Def.’s Ex. 4.
Plaintiff lacks evidence to support her claim that her request for FMLA-leave
was in any way related to the termination of her employment with Senderra.
Accordingly, for the reasons discussed above, and for the reasons given on the record,
IT IS ORDERED that Defendant’s Motion for Summary Judgment  is
Dated: March 6, 2017
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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