Allen v. Lincare Inc.

Filing 36

ORDER granting 28 defendant's Motion for Summary Judgment and denying 29 plaintiff's Motion for Partial Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHELLY ALLEN,
Plaintiff,
CASE NO. 16-CV-11996
HON. GEORGE CARAM STEEH

v.
LINCARE INC.,
Defendant.
/

ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (Doc. 28) AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 29)
Plaintiff Shelly Allen, a registered nurse who worked for defendant
Lincare, Inc. (“Lincare”), as a traveling infusion nurse for one year before
she was fired allegedly for excessive absenteeism, brought this race
discrimination suit under Title VII, 42 U.S.C. § 2000e-2(a)(1) and
Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws §§
37.2101, et seq. She also alleges retaliation for filing internal grievances
with her employer, and a complaint to the Equal Employment Opportunity
Commission (“EEOC”), as well as alleged violations of overtime provisions
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Now
before the court are Lincare’s motion for summary judgment, and Allen’s
-1-

motion for partial summary judgment as to the overtime claim only. Oral
argument was heard on December 21, 2017 and informs the court’s
decision here. For the reasons set forth below, Defendant’s motion for
summary judgment shall be granted and Plaintiff’s motion shall be denied.
I. Background
On June 9, 2014, Lincare hired Allen to work as an infusion nurse out
of its Livonia office. Allen was the only African American nurse assigned to
that office. Allen’s duties included making home calls to patients where
she would provide a variety of services including drawing blood, changing
dressings, providing cath care and antibiotics, and more complicated
procedures such as providing immunoglobulin (IG), hydration, Remicade,
enzymes, and steroids. (Pl’s. Dep. at 43-53, Doc. 33 Ex. 1) Allen claims
she was provided the more complicated procedures less often that white
nurses despite her requests for the more challenging work. Id. at 52-53.
Center Manager Krista Hyde hired her, id. at 133, and Allen reported to her
immediate supervisor, Lucille Walker. (Walker Dep., Doc. 28, Ex. 7 at 2, ¶
3).
A.

Attendance Problems
During her 90-day probationary period, Allen received exemplary

marks. (Doc. 28, Ex. 5). However, once her probationary period ended,
-2-

Allen had a serious absentee problem. According to Lincare’s attendance
policy, an employee does not accrue sick leave until she has completed
one year of eligible service, and vacation time begins to accrue after six
months. After Allen’s probation period ended, she was absent nineteen
times, not including the holiday time and three vacation days she had
accumulated, before she was terminated in June, 2015, for poor
attendance, poor performance, and poor attitude. Prior to her termination,
she was warned several times about her absentee problem.
First, she received a verbal warning for excessive absenteeism on
October 31, 2014, arising out of her 9 missed days in the first eight weeks
following her probationary period. (Doc. 28, Ex. 11). After calling in sick
again, reporting to work but refusing to perform her duties, and arriving late
for an assignment, Lincare gave Allen a documented verbal warning on
December 1, 2014. (Doc. 28, Ex. 13). Despite the second warning, Allen’s
attendance problems continued and she missed several more days of
work, citing the reasons as not having a car, not feeling well, and
experiencing a family emergency. (Doc. 28, Ex. 14, 16-17). As a result,
Lincare prepared a final written warning on February 16, 2015, which
ironically, it could not deliver to Allen until February 20, 2015, as she left
work early on February 17th and did not report to work on February 18th.
-3-

(Doc. 28, Ex. 18). Despite the final written warning, Allen missed work
again in April, refused to respond to her on call duties during that same
month, and again on June 8, 2015. (Doc. 28, Ex. 9, 19). As a result of
these continued excessive absences, and for other reasons as well,
Lincare terminated Allen on approximately June 9, 2015. (Doc. 33, Ex. 16).
Allen claims the write-ups contained erroneous information. Lincare
concedes that there were some typographical errors in her disciplinary
warnings. For example, the documented written warning states that Allen
was absent on September 11, 2014 when in fact she was absent on
September 17, 2014, and the final written warning states that Allen was
absent on January 17 and 18, 2015, when in fact she was absent on
January 19 and 20, 2015. But Allen does not dispute that she was absent
nineteen times in the nine months she worked after her probationary period
ended.
B.

Plaintiff’s Poor Attitude
Lincare began noticing a decline in Allen’s attitude near the end of

her probationary period when her marks began to slip. In September,
2014, Allen was assigned to office work because of a medical restriction
and one of her assignments was to identify patient locations on a map.
Allen complained about the assignment. (Doc. 28, Ex. 20 at 3, ¶ 7). One
-4-

of her co-workers complained to Walker that Allen was “bullying” her.
(Doc. 28, Ex. 23). Lincare also alleges that on one occasion, Allen refused
a work assignment saying “I’m not [expletive] doing it.” (Doc. 28, Ex. 24).
Allen denies this. Lincare also alleges that Allen was disrespectful of
management. On another occasion, Allen walked out of meeting with her
supervisors and went home claiming to be ill. (Doc. 28, Ex. 16). Allen
complained about the schedule repeatedly. (Doc. 28, Ex. 20 at 3, ¶ 8).
Lincare also alleges that Allen was disrespectful and dishonest, and that
her excuses for missing work were not always true. For example, on one
occasion she claimed to have access to a car while on call, but in fact, did
not. On another occasion, she claimed she could not work because she
lacked access to a car, when in fact she had one available. Id. at 3, ¶ 9. In
addition to attendance problems, Lincare’s final written warning to Allen
cited her lack of access to a car while on call was a major infraction under
the company’s policies, and that Allen was not a good team player as she
was not responsive to scheduling changes and was critical of
management’s decisions regarding assignments. (Doc. 28, Ex. 18).
C.

Complaints of Racial Discrimination
In August, 2014, Allen began complaining to her supervisors, Walker

and Hyde, that she was receiving less complicated assignments than other
-5-

nurses which required her to travel more and to see more patients. (Doc.
33, Pl. Dep., Ex. 1 at 54). Allen claims there was no change in her
assignments at that point, so in October, 2014, she complained to Area
Manager, Sue Botello, who forwarded her complaint to Human Resources
Manager, Linda Feller. Id. at 56-57. Allen claims she began to receive
more complicated assignments for a while after making her internal
complaint, including receiving IGs, but that the change was short-lived. Id.
at 58. On December 29, 2014, Allen filed a formal charge of discrimination
with the EEOC and the Michigan Department of Civil Rights alleging that
she was being denied preferential assignments because of her race. (Doc.
33, Ex. 6). The EEOC dismissed the complaint and issued a right to sue
notice on June 9, 2015. (Doc. 28, Ex. 34). Allen filed a second EEOC
complaint challenging her termination on July 15, 2015. (Doc. 28, Ex. 35).
The EEOC declined prosecution and issued a right to sue letter on April 19,
2016. (Doc. 28, Ex. 36).
Lincare disputes that Allen received less favorable assignments than
other nurses. Lincare has produced nursing clinical activity logs showing
that from October, 2014, when Allen was removed from her office only
restriction, until her termination, she was assigned to see 27 IG patients, or
approximately two to five such patients per month, or an average of 3.0 IG
-6-

patients per month. (Doc. 34, Ex. B). During this same period, four other
infusion nurses averaged 0, 2.7, 3.6, and 4 IG patients per month. Id.
In addition to the allegedly discriminatory assignment of nursing
duties, Allen argues that she has three other instances of direct proof of
Lincare’s racial bias against her. First, and at the crux of her complaint,
she relies on a comment that Walker admittedly made when she referred to
her as the “ebola” nurse when introducing her to a new nurse in November,
2014. (Doc. 33, Walker Dep., Ex. 2, 3 at 103-04). Walker claims the
comment was meant to be funny and was based on the fact that Allen was
wearing a surgical mask at the time. Id. at 103. Allen denies that she was
wearing a mask at the time that the comment was made and claims it is
evidence of racial bias. (Doc. 33, Pl. Dep., Ex. 1 at 126, Ex. 2). When
Allen and Walker later discussed the comment, Allen apologized and
hugged her. (Doc. 33, Pl. Dep., Ex. 1 at 127).
Second, she relies on a comment that Walker told Allen, “don’t touch
me, I find that very condescending when you touch me.” Id. at 128. Third,
during her deposition, she testified that a co-worker Kim Van Berkel threw
papers at her and cursed her, yet Walker and Hyde failed to take corrective
action. Id. at 130, 135. Although Allen testified to the alleged incident at
her deposition, in the argument section of her brief, she does not mention it
-7-

and Lincare has not responded to the claim. Fourth, Allen claims that
during a disciplinary meeting, Walker instructed her to “sit or kneel.” A
review of Allen’s deposition transcript, however, puts the comment in a
different light. As Allen herself testified, when she arrived at the
disciplinary action she asked Walker for permission to sit down, and Walker
responded, “oh, you can sit or kneel, whichever suits you best.” Id. at 116.
D.

Circumstantial Evidence
In addition to the proofs which Allen claims shows direct evidence of

discrimination, Allen also argues she can show circumstantial evidence of
discrimination because two other Lincare employees, one an administrative
assistant, the other an infusion nurse, also had attendance problems but
were not dismissed. Lincare responds that those employees were not
similarly situated as their employment problems were not as severe, and
unlike, Allen, there were no other issues regarding their performance or
attitude.
E. Overtime Claim
Allen alleges that she was an hourly employee at the rate of $34 per
hour and that Lincare violated the FLSA by failing to pay her overtime.
Lincare responds that Allen was paid an annual salary of $70,720, as well
as a $20 stipend when she was on call on a week night, and $50 when on
-8-

call on a Saturday or Sunday, as well as pay on an hourly basis at $34 per
hour when she saw patients while on call, or when she worked an
extended work day. Allen argues that her pay records show that she was
always compensated at $34 per hour, regardless of hours worked. The
matter is ripe for decision on summary judgment as both parties have
submitted earnings statements for the court’s review, as well as deposition
testimony of Allen, Walker, Hyde, and Botello, (Doc. 29, Ex. 2-4, 6), the
affidavit of Lincare’s Head of Payroll, Shiraz Mohammed, (Doc. 32, Ex. 3),
and other evidence relevant to the court’s determination.
II. Standard of Law
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 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);

-9-

see also Cox v. Kentucky Dep’t 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
-10-

"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, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
III. Analysis
A.

Race Discrimination
The court first addresses Allen’s claims of race discrimination. A

plaintiff asserting a race discrimination claim must produce either direct or
indirect evidence of bias. Laster v. City of Kalamazoo, 746 F.3d 714, 726
(6th Cir. 2014) (Title VII); Hazle v. Ford Motor Co., 464 Mich. 456, 462-63
(2001) (ELCRA). Although a plaintiff need not present both direct and
circumstantial evidence of bias, in this case, Allen seeks to proceed under
both theories. For the reasons discussed below, under either method of
proof, Allen has failed to raise a genuine issue of material fact in support of
her race discrimination claim. Accordingly, Defendant is entitled to
summary judgment.
-11-

1. Direct Evidence
The court first considers Allen’s claim that she has submitted direct
evidence of discrimination sufficient to create a genuine issue of material
fact. For the reasons set forth below, Allen has failed to do so. Direct
evidence is “evidence, which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s
actions.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003)
(quoting Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp., 176
F.3d 921, 926 (6th Cir. 1999)). Allen claims she has come forward with
direct evidence of discrimination based on the following comments by
supervisors: (1) Walker’s “ebola” comment, (2) Walker’s request that Allen
not touch her, and (3) Hyde’s comment that Allen could sit or kneel during
a disciplinary meeting.1 Allen has failed to link any of the allegedly
discriminatory comments to her discharge. All of the comments are racially
neutral and do not prove racial discrimination. The Sixth Circuit has
explained that in order to constitute direct evidence of discrimination, the

In her argument, Allen has not claimed that management’s failure to
satisfactorily respond to her complaint against Van Berkel gives rise to a
finding of discrimination. Even if the court were to consider this allegation,
it would not change the court’s conclusions here as Allen has not shown
that the incident gives rise to an inference of racial bias, or is in any way
connected to her termination.
1

-12-

evidence must prove discrimination without the assistance of any
inferences. Id. That situation does not exist here in relation to any of
Allen’s proofs.
Allen claims the “ebola” comment was particularly offensive.
According to Walker’s testimony, the comment was meant to be funny
because Allen was wearing a surgical mask. But even taking as true
Allen’s assertion that she was not wearing a mask at the time of the
comment, the “ebola” virus, although originating in Africa, can strike
anyone, and has, regardless of race. Thus, it is not clear that the illness
has any racial component or that reference to that particular illness would
have any racial overtones. Even if the “ebola” virus could be somehow be
linked to African Americans in particular, Walker’s offhand comment that
Allen was the “ebola” nurse is not evidence that Allen was terminated
because of her race. Similarly, Walker’s alleged request that Allen cease
touching her does not suggest any racial bias, as it is the sort of request
that could be made to any employee in the workplace, regardless of race,
as it is only commonplace for a worker to wish to be free from unwanted
touching from anyone.
Finally, the court considers Allen’s accusation that Hyde told her to
“sit or kneel” during a disciplinary meeting. Hyde remembers the comment
-13-

differently, and recalls that Allen asked if she needed to “kneel at Lucy’s
[Walker’s] feet” during their meeting. (Doc. 28, Ex. 16). Despite this
discrepancy, because the court is required to construe the proofs in the
light most favorable to the nonmoving party, the court accepts Allen’s
version of the comment that it was Hyde who told her to “sit or kneel.”
Significantly, Allen’s complaint that Hyde harbored racial bias towards her
is undermined by the fact that Hyde conducted her employment interview
and made the decision to hire her. (Doc. 33, Pl. Dep., Ex. 1 at 133). Also,
the comment is considered in the context of their meeting, in which Hyde
claims Allen was hostile, (Doc. 28, Ex. 16), and Allen admits she walked
out of the meeting after her supervisor told her she was not dismissed, then
quit work for the day claiming she was ill. (Doc. 33, Pl. Dep., Ex. 1 at 117).
Allen also testified at her deposition that Hyde was always “nasty” to her.
Id. at 133. Even if Allen’s subjective belief that Hyde was “nasty” to her
were true, general unpleasantness is not direct evidence of racial
discrimination. Like the comments discussed above, Hyde’s stray and
isolated comment to “sit or kneel” does not prove, nor lead to the inference,
that Allen’s race was the motivating reason for her discharge.
Having determined that none of the three comments Allen relies upon
to prove race discrimination are sufficient to do so, the court turns now to
-14-

Allen’s argument that allegedly unfair nursing assignments, which allegedly
treated her less favorably than non-African American nurses, constitute
direct evidence of discrimination. The court does not agree that even if
true, this would amount to direct evidence of discrimination, as the fact
finder would still have to infer that the allegedly unfair assignments were
racially motivated. Thus, this allegation is more appropriate to consider
using the method for analyzing circumstantial evidence. The point is moot,
however, as whether analyzed under the direct or circumstantial method,
Allen has failed to show that nursing assignments were unfair, let alone,
based on race. Lincare has submitted nursing clinical activity logs which
demonstrate that Allen was treated the same as other infusion nurses in
receiving assignments to perform IG treatments. (Doc. 34, Ex. B). In
addition, Allen has failed to refute Hyde’s nursing study which shows that
nursing assignments were fair in terms of time and travel. (Doc. 28, Ex.
26). Having failed to show that assignments were unfair, Allen cannot rely
upon nursing assignments to prove racial discrimination.
2.

Circumstantial Evidence
Having failed to raise a genuine issue of material fact of race

discrimination under the direct method, the court now turns to Allen’s
circumstantial evidence. Absent direct evidence of discrimination, claims
-15-

brought pursuant to Title VII and ELCRA are subject to the McDonnell
Douglas/Burdine tri-partite burden-shifting framework. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 252-56 (1981). Under this framework, the plaintiff
bears the initial “not onerous” burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. Burdine, 450 U.S. at
253. “To establish employment discrimination, a plaintiff must demonstrate
that (1) she is a member of a protected class, (2) she was qualified for his
job; (3) she suffered an adverse employment decision; and (4) she was
treated differently than similarly situated non-protected employees.”
Laster, supra, 746 F.3d at 727. Should plaintiff satisfy the above elements,
defendant has the burden of proving a legitimate, nondiscriminatory
business reason for terminating plaintiff. Jackson v. VHS Detroit
Receiving Hosp., 814 F.3d 769, 776 (6th Cir. 2016). “Once the employer
has come forward with a nondiscriminatory reason for firing the plaintiff, the
plaintiff must identify evidence from which a reasonable jury could conclude
that the proffered reason is actually a pretext for unlawful discrimination.”
Id. at 779. (citation and internal quotation marks omitted).
In this case, as is typically true, Allen satisfies the first three
elements. The critical inquiry for the court is whether Allen was treated
-16-

differently than similarly situated non-protected employees. In order to be
similarly situated, the employees must have engaged in misconduct of
comparable seriousness. Jackson, 814 F.3d at 777. The allegedly
similarly situated employees must have “engaged in the similar conduct,
without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.”
McMillan v. Castro, 405 F.3d 405, 413 (6th Cir. 2005).
Allen argues two other employees, Renee Palmer and Luvina Snider,
had similar attendance problems but were not fired. An analysis of those
employee’s positions, however, leads to the conclusion that they were not
similarly situated. The first employee identified by Allen, Palmer, was not
an infusion nurse, but an administrative assistant. Unlike Allen, she was
not charged with reporting to the homes of patients in need of timely and
often critical medical attention. In addition, her absenteeism did not rise to
the level of Allen’s attendance problems as she only missed five days for
which she received, much like Allen did, a documented verbal warning. As
to Snider, she is also distinguishable. She was absent half as many days
as Allen while she was caring for her sick mother who had cancer, and
although she received a final written warning for attendance problems, her
attendance improved, likely because her mother died. In addition, neither
-17-

Palmer nor Snider had any attitude problems as identified in Allen’s case.
Accordingly, Allen has failed to raise a genuine issue of material fact that
she was treated differently than similarly situated employees.
Even if Allen could prove that she was treated differently than
similarly situated employees, Lincare has come forward with proof that it
had a legitimate nondiscriminatory reason for her discharge. Allen has not
refuted Lincare’s proofs that Allen missed nineteen days of work in nine
months, and prior to her termination, was both informally and formally,
warned on multiple occasions that her absenteeism could be grounds for
termination. Allen also has failed to rebut Lincare’s proofs that Allen had a
poor attitude, and repeatedly complained about scheduling and nursing
assignments. Allen attempts to show pretext by arguing that the
disciplinary write-ups contained false information. In fact, the disciplinary
documents contain some typographical errors and misstate some of the
days Allen was absent, but Allen has not disputed that she was absent
nineteen times in the nine months following her probationary period. Thus,
Allen has failed to establish pretext. For the foregoing reasons, Lincare is
also entitled to summary judgment on Allen’s race discrimination claims
under the circumstantial method.

-18-

B.

Retaliation Claims
The court turns now to Allen’s claim she was discharged in retaliation

for filing an internal grievance to management and an EEOC complaint.
Lincare denies that Allen filed an internal grievance because Allen
expressed a desire to withdraw her complaint on October 24, 2014, when
she sent Human Resources Manager Linda Feller the following e-mail:
When I spoke with Susie I told her I thought I may Have (sic)
been decriminated (sic) against. I felt that I was not being
assigned any of the treatment patients and they were only
being given to the others (sic) nurses who [are] white. I just
happened to be the only AA nurse. I think this was more work
discrimination and not race. I have spoken to Krista and Lucy
and have since been assigned these patients after the lost (sic)
of many nurses. I really don,t (sic) feel this needs to be
handled as race and don,t (sic) want to pursue this in that
manner. There was a comment made to me by my nursing
manager when introducing me to a new employee which I took
as an insult but later she informed me she was just joking. I did
not take it as a joke at the time. Since, we have spoken on a
more private level and this has been resolved. I decline to
move forward at this time.
(Doc. 28, Ex. 30). For purposes of this order, the court accepts Allen’s
allegation that she filed an internal grievance, and the fact that she later
withdrew her complaint, does not prohibit Allen from arguing Lincare
retaliated against her for filing such a complaint.
Title VII prohibits an employer from retaliating against an employee
“because he has made a charge” of discrimination. 42 U.S.C. § 2000e-19-

3(a). Michigan’s ELCRA includes a similar provision, see MCL §
37.2701(a) which is analyzed under the same standard. Kuhn v.
Washtenaw Cty., 709 F.3d 612, 627 (6th Cir. 2013). As with a
discrimination claim, a plaintiff can prove retaliation with direct or
circumstantial evidence. Again, it appears that Allen seeks to proceed
under both methods here. For the same reasons Allen has failed to show
race discrimination based on direct evidence, Allen has failed to establish
any direct evidence of retaliation. The court now considers whether Allen’s
retaliation claim based on circumstantial evidence survives Lincare’s
motion for summary judgment. Once again, the court analyzes the claim
under the McDonnell Douglas framework.
Under that paradigm, a plaintiff has the initial burden to establish a
prima facie case of retaliation under Title VII by establishing that: (1) she
engaged in protected activity when she made her discrimination complaint;
(2) defendant knew about her exercise of the protected activity; (3)
defendant thereafter took adverse employment action against her; and (4)
there was a causal connection between the protected activity and the
adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336 (6th
Cir. 2013). If plaintiff establishes a prima facie case, the burden of
production shifts to defendant to “articulate some legitimate,
-20-

nondiscriminatory reason for [its action].” McDonnell Douglas, 411 U.S. at
802. If the defendant shows a legitimate nondiscriminatory reason for the
adverse employment action, the burden shifts back to the plaintiff to prove
that the proffered reason was pretext for discrimination. A plaintiff can
prove pretext three ways: “by showing that the proffered reason (1) has no
basis in fact, (2) did not actually motivate the defendant's challenged
conduct, or (3) was insufficient to warrant the challenged conduct.”
Johnson, 319 F.3d at 866 (citation and internal quotations omitted).
In addition to the circumstantial and direct evidence considered in the
context of Allen’s race discrimination claim, Allen also relies on the
proximity in time between the filing of her discrimination claims and her
termination to prove retaliation. The Sixth Circuit has recognized that in
order to show a causal connection, a plaintiff must show “a temporal
connection coupled with other indicia of retaliatory conduct.” Little v. BP
Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001). Temporal
proximity alone is not enough. Id. at 363-64. Also, where an employer
comes forward with proof that it had an intervening legitimate reason to
take an adverse employment action against the plaintiff, this dispels
whatever inference might be gleaned from the temporal proximity of the

-21-

adverse employment action and the employee’s complaints of
discrimination. Kuhn, 709 F.3d at 628.
In support of her retaliation claim, Allen seeks to rely on the same
evidence discussed in her race discrimination claim to prove causation,
along with the proximity in time to her termination and her internal and
EEOC complaints. For the same reasons discussed earlier in this opinion,
Allen has failed to raise a genuine issue of material fact to prove causation
between the filing of her race discrimination claims both internally, and with
the EEOC, and her termination.
The temporal proximity between her protected activity and
termination is not enough to create an inference of retaliation sufficient to
survive Lincare’s motion for summary judgment. At oral argument, the
parties disputed how close in time Allen’s termination was to her protected
activity. Lincare argued that it knew of Allen’s EEOC complaint which she
filed in December, 2014, by at least by January, 2015, some six months
prior to her termination. Lincare argues that six months is too remote in
time for the temporal proximity to give rise to an inference of retaliation.
Allen, on the other hand, argues that Lincare did not know about the EEOC
complaint until much later, possibly just days before her termination when it
received notice of the EEOC’s dismissal of her complaint. A review of the
-22-

record, however, supports Lincare’s version of events. On December 29,
2014, the EEOC gave Lincare notice of Allen’s EEOC complaint. (Doc. 34,
Ex. C). On January 28, 2015, Lincare’s Human Resources Manager, Linda
Feller, responded to the EEOC charge. (Doc. 34, Ex. D). Given the six
months that lapsed between the time when Lincare learned of Allen’s
EEOC complaint and the time that it terminated her, this is simply too long
to give rise to an inference of retaliation without any corroborating
evidence, which is lacking here. For these reasons, Lincare is entitled to
summary judgment on Allen’s retaliation claims.
C.

Overtime Claim
The court now turns to the parties cross-motions for summary

judgment as to Allen’s FLSA claim for alleged overtime violations.2 Allen
argues she is owed 492 hours of unpaid overtime. Having carefully

In her Complaint and motion for partial summary judgment, Allen
also seeks to proceed under Michigan’s Minimum Wage Act of 1964
(“MWA”), but as Lincare points out in its response brief, that law has been
replaced by the Michigan Workforce Opportunity Wage Act (“MWOWA”),
Mich. Comp. Laws § 408.411 et seq. Allen does not address Michigan law
in her reply brief and it appears she has abandoned her state law overtime
violation claim. Even if she does intend to proceed under Michigan law,
courts have recognized that analysis under the MWOWA is analogous of
FLSA claims. Dikker v. 5-Star Team Leasing, 243 F. Supp. 3d 844, 854
n.3 (W.D. Mich. 2017). Thus, any state law claims must be decided the
same way as her FLSA claim.
2

-23-

considered all of the evidence presented, the court concludes that Allen
was a salaried employee, exempt from the overtime provisions of the
FLSA. Lincare’s payroll status ticket states that Allen would be paid an
annual salary of $70,720 on a bi-weekly basis. (Doc. 32, Ex. 1). Also, her
job description identified her as an “exempt” employee. (Doc. 32, Ex. 2).
Allen was paid a bi-weekly salary of $2,720. There were no
deductions for partial days worked, for example, if Allen left work early, she
still received full pay for 80 hours of work. However, if Allen was absent a
full day for personal reasons or for a sick day, it was deducted from her
salary. Allen was not entitled to sick leave until she had been employed for
a full year, which she had not. Allen also received a $20 stipend for days
she was on call during the week, and a $50 bonus for a Saturday or
Sunday. In addition, while on call or when working additional hours in the
work week, such as when completing a patient’s infusion required her to
work more than eight hours in a day, she was paid $34 per hour straight
time in addition to her annual bi-weekly salary.
The court recites an example of how this method played out in
several examples. For instance, during the pay period ending November
16, 2014, Allen was paid her guaranteed minimum biweekly pay of $2,720,
received an on-call stipend of $120 (for two weekend days and one week
-24-

night), was paid 2.5 hours at $34 per hour for on-call time spent with a
patient. (Doc. 32. Ex. 4). Similarly, for the pay period ending on March 8,
2015, Allen received her guaranteed minimum salary of $2,720 plus an oncall stipend of $160 (for two weekend days and three weekdays) as well as
payment for 23 hours of actual on-call time at $34. Id. In calculating
Allen’s pay, Lincare deducted full day personal or sick day absences from
her salary. As discussed previously, Allen did not qualify for Lincare’s sick
day policy because she had not been employed for a full year.
The FLSA prohibits an employer from employing a non-exempt
employee for more than 40 hours in a week, unless the employee is
compensated at time and a half times the hours worked at the regular rate
in excess of 40 hours. 29 U.S.C. § 207(a). Persons employed in a bona
fide professional capacity are exempt from overtime pay requirements.
Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 837 (6th Cir.
2002)(citing 29 U.S.C. § 213(a)(1)). “The employer has the burden of
proving that an employee satisfies any exemptions under the FLSA, and
exemptions under the FLSA are narrowly construed against the employer.”
Id. (citations omitted). The regulations interpreting the FLSA provide a
“short test” for determining whether professional employees “who are
compensated on a salary or fee basis at a rate of at least $250 per week
-25-

exclusive of board, lodging, or other facilities” are exempt from the FLSA’s
overtime provisions. Id. (citing 29 C.F.R. § 541.315(a)). The parties agree
that the “short test” governs Allen’s claim here. Under that test, Lincare
must prove: “(1) that [Allen's] primary duties consisted of the performance
of work “requiring knowledge of an advanced type in a field of science or
learning;” (2) that her “work require[d] the consistent exercise of discretion
and judgment;” and (3) that she was paid “on a salary or fee basis at a rate
of at least $250 per week exclusive of board, lodging, or other facilities.”
Id. at 837-38 (citing 29 C.F.R. § 541.315(a)). Allen concedes that her
duties as a highly skilled registered nurse satisfy the first two prongs of this
test. She disputes only whether she was paid on a salary basis as defined
by the FLSA regulations.
Under the applicable Department of Labor regulations, Allen was a
salaried employee, and the fact that she was paid additional amounts for
on-call and work in excess of eight hours a day or 40 hours in a week does
not alter this conclusion. The regulations define the salary based test as
follows:
(a) General rule. An employee will be considered to be paid on
a “salary basis” within the meaning of this part if the employee
regularly receives each pay period on a weekly, or less
frequent basis, a predetermined amount constituting all or part
of the employee's compensation, which amount is not subject
-26-

to reduction because of variations in the quality or quantity of
the work performed.
(1) Subject to the exceptions provided in paragraph (b) of this
section, an exempt employee must receive the full salary for
any week in which the employee performs any work without
regard to the number of days or hours worked. Exempt
employees need not be paid for any workweek in which they
perform no work.
29 C.F.R. § 541.602. Lincare argues that two of the exceptions set forth in
§ 541.602 (b)(1) and (2) apply here. Those sections provide:
(b) Exceptions. The prohibition against deductions from pay in
the salary basis requirement is subject to the following
exceptions:
(1) Deductions from pay may be made when an exempt
employee is absent from work for one or more full days for
personal reasons, other than sickness or disability. Thus, if an
employee is absent for two full days to handle personal affairs,
the employee's salaried status will not be affected if deductions
are made from the salary for two full-day absences. However, if
an exempt employee is absent for one and a half days for
personal reasons, the employer can deduct only for the one
full-day absence.
(2) Deductions from pay may be made for absences of one or
more full days occasioned by sickness or disability (including
work-related accidents) if the deduction is made in accordance
with a bona fide plan, policy or practice of providing
compensation for loss of salary occasioned by such sickness or
disability. The employer is not required to pay any portion of the
employee's salary for full-day absences for which the employee
receives compensation under the plan, policy or practice.
Deductions for such full-day absences also may be made
before the employee has qualified under the plan, policy or
practice, and after the employee has exhausted the leave
allowance thereunder.
-27-

29 C.F.R. § 541.602(b)(1)(2). Courts have found similar deductions for fullday absences to be consistent with exempt status. See Martinez v. Hilton
Hotel Corp., 930 F. Supp. 2d 508, 521 (S.D.N.Y. 2013). Under the above
provisions, Lincare’s deductions of full-day absences for Allen’s use of
personal days, or sick days, for which she was ineligible under Lincare’s
policy requiring a year of employment prior to entitlement, does not alter
the conclusion that Allen was a salaried employee.
Also, Lincare’s policy of paying additional compensation for on-call
work or work in excess of 40-hours per week or eight hours per day, does
not transform Allen into an hourly employee. The regulations specifically
provide that such additional compensation is consistent with an employee’s
status as an exempt salaried employee as long as the employee is
“guarante[ed] the minimum weekly-required amount paid on a salaried
basis:”
(a) An employer may provide an exempt employee
with additional compensation without losing the
exemption or violating the salary basis requirement,
if the employment arrangement also includes a
guarantee of at least the minimum weekly-required
amount paid on a salary basis. Thus, for example, if
the current weekly salary level is $913, an exempt
employee guaranteed at least $913 each week paid
on a salary basis may also receive additional
compensation of a one percent commission on
sales. An exempt employee also may receive a
-28-

percentage of the sales or profits of the employer if
the employment arrangement also includes a
guarantee of at least $913 each week paid on a
salary basis. Similarly, the exemption is not lost if
an exempt employee who is guaranteed at least
$913 each week paid on a salary basis also
receives additional compensation based on hours
worked for work beyond the normal workweek.
Such additional compensation may be paid on any
basis (e.g., flat sum, bonus payment, straight-time
hourly amount, time and one-half or any other
basis), and may include paid time off.
29 C.F.R. § 541.604. Courts have applied this regulation to find that an
employer can pay additional compensation beyond the normal workweek
without jeopardizing exempt status. See Rivera v. Anjost Corp., 645 F.
App’x 30, 31 (2d Cir. 2016).
Allen argues that because she was paid different amounts each pay
period, she must be an hourly employee. But Allen was paid differently
because of her many absences for personal or sick days which may be
deducted without changing her exempt status. Also, Allen’s bi-weekly pay
fluctuated because she was paid a stipend for on-call work, and paid
additional compensation for work in excess of her normal workday or
workweek, neither of which alters her exempt status because she was still
guaranteed her bi-weekly salary.

-29-

Allen argues that Elwell supports her overtime violations claim;
however, that case is distinguishable. Elwell involved home health care
nurses who were paid a fee per visit, as well as hourly compensation for
visits that lasted more than two hours. 276 F.3d at 835. The Sixth Circuit
found that the regulations did not permit an employer from paying
additional hourly compensation for fee based work as the regulations
specifically require that in order to qualify as “fee basis” employment under
the FLSA, the employee must be paid for a completed task “regardless of
the time required for its completion.” Id. at 838 (quoting 29 C.F.R. §
541.313(b)). By contrast, the Sixth Circuit recognized the salary basis
regulation, which applies here, explicitly permits hybrid compensation
schemes as it provides, “additional compensation besides the salary is not
inconsistent with the salary basis of payment.” Id. at 838-39 (citing 29
C.F.R. § 541.118(b) recodified in 2004 as 29 C.F.R. § 541.604).
Allen’s reliance on Martin v. W.E. Monks & Co., 805 F. Supp. 500
(S.D. Ohio 1992) also fails to support her position. Martin is distinguishable
because the employees in that case were required to deduct hours when
they worked less than a full day, were required to make up hours in the
following week when they worked less than 40 hours the previous week,

-30-

and were required to assign part-time absences to vacation or sick time.
Id. at 505.
Allen relies on her employment application to support her claim that
she was an hourly employee because she listed her salary requirement as
$34 per hour. (Doc. 32, Ex. 11). The employment application is not
dispositive of how Lincare actually paid her; it is simply her request for a
certain minimum pay. Allen contends that Walker’s and Hyde’s deposition
testimony support her claim that she was an hourly, not a salaried
employee, but when considered in context, their testimony actually
supports the conclusion that she was a salaried employee. Walker
testified, “The nurses were all salaried nurses. If they worked past their 8hour or 10-hour day or 12-hour day . . . they did get paid a calculated
hourly rate for any time above those regular hours.” (Doc. 32, Ex. 10 at
163-64). Similarly, Hyde testified as follows:
Question: Do you know how much Ms. Allen was
earning per hour, during her
employment?
Mr. Ruemenapp: Object to the form.
Answer:

I believe it was $34.00 an hour.

Question: And she was paid for how many hours
she worked, is that correct?

-31-

Answer:

Yes and no. She listed it as $34.00 an
hour, but she was still a salary
employee. So doing the math would be
the breakdown of that. She wasn’t paid
hourly per se, but when she would
submit her additional on-call or overtime
this is the rate that would be reflected.

(Doc. 32, Ex. 12 at 33-34). Allen also relies on an e-mail written by Paula
Adams of Human Resources who responded to an inquiry as to whether it
was appropriate to deduct Allen’s holiday pay when she worked Good
Friday but called in sick the Monday after Easter. Adams responded, “I
agree - we pay her work what she worked – or if she’s exempt for the day
– but she doesn’t qualify for the holiday pay.” (Doc. 35, Ex. 1). Adams’
response that Allen was not eligible for holiday pay where she did not work
the Monday after Easter is consistent with the Employee Handbook’s policy
regarding holiday pay, and does not alter Allen’s exempt status.
Specifically, the handbook provides:
All eligible employees will receive 10 paid holidays during the
calendar year. To be eligible for holiday pay, you must be on
active status and work (or be on pre-approved time off) your full
scheduled day prior to and following the holiday.
Generally, holidays falling on a Saturday will be observed the
preceding Friday and holidays falling on a Sunday will be
observed on the following Monday.

-32-

(Doc. 32, Ex. 13 at 7). Adams specifically responded that if Allen was
deemed “exempt” she was paid for the day, which would be consistent with
her status as a salaried employee. A review of Allen’s paystub for the pay
period ending on April 5, 2015, which would have included the Good Friday
and Easter Monday in question, show that Allen was paid for six days of
work at the regular rate, and one vacation day, but not holiday pay. (Doc.
29-6 at PgID 995). Also, Allen’s letter to Lincare that she was not paid her
expected overtime in March and April, 2015 does not alter the court’s
analysis here. In sum, Allen worked as a salaried exempt employee and is
not entitled to overtime pay. Accordingly, Allen’s motion for partial
summary judgment shall be denied.
IV. Conclusion
For the reasons set forth above, Defendant’s motion for summary
judgment (Doc. 28) is GRANTED. Plaintiff’s cross-motion for partial
summary judgment (Doc. 29) is DENIED.
IT IS SO ORDERED.
Dated: January 10, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

-33-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 10, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-34-