Turner v. Hartford Nursing and Rehab

Filing 16

ORDER granting 11 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIAH S. TURNER,
Plaintiff,

CASE NO. 16-cv-12926
HON. GEORGE CARAM STEEH

v.
HARTFORD NURSING AND
REHAB,
Defendant.
________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (Doc. 11)
Plaintiff Mariah Turner, a certified nursing assistant (“CNA”), who
worked for defendant Hartford Nursing and Rehab (“Hartford”) for a mere
four months, brings this pregnancy disability action under Title VII and the
Pregnancy Discrimination Act (PDA) arising out of her termination after she
was transferred to light duty work. Now before the court is Hartford’s
motion for summary judgment on the grounds that Turner was discharged
for her three unexcused absences in the ten day period of her
reassignment to a light duty position. Oral argument had originally been
scheduled in this matter, but upon closer evaluation of the parties’
submissions, the court determines that a hearing is not necessary pursuant
to Local Rule 7.1(f)(2). Because plaintiff has failed to demonstrate a
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genuine issue of material fact, defendant’s motion for summary judgment
shall be granted.
I. Factual Background
On February 18, 2015, Hartford was terminated from her employment
for Northwest Manor, a non-party, due to two instances where she was a
no show/no call. (Doc 11-15 at PgID 114-15). On February 24, 2015,
Hartford hired Turner (formerly “Shannon”) as a CNA. (Doc. 11-3 at PgID
85). The CNA position required lifting of more than ten pounds. (Doc. 11-2
at PgID 74). Approximately three months later, Turner learned that she
was pregnant. (Doc. 11-2 at PgID 73). She had not been employed long
enough to qualify for leave under the collective bargaining agreement
(“CBA”) or the Family and Medical Leave Act (“FMLA”). Because she had
suffered a previous miscarriage, her pregnancy was deemed high risk and
Turner obtained a doctor’s note on June 4, 2015 stating that it was
medically advisable that she lift no more than ten pounds and be placed on
light duty assignment for the duration of her pregnancy. (Doc. 14-3 at PgID
149).
On the same day, Turner presented the note to the scheduler, Scarlet
Williamson, who, according to Turner’s deposition, told her that Hartford
does not ordinarily grant light duty to pregnant women but only offers such
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accommodations to those injured on the job, but promised to forward the
note to Amelia South, then Director of Hartford’s Human Resources’
Department. (Doc. 11-2 PgID 74). According to Turner’s deposition
testimony, South then telephoned her and informed her that they did not
ordinarily grant reassignment to light duty, but offered to call “corporate”
and get back to her. Id. On June 9, 2015, Hartford offered Turner a light
duty assignment in Admissions for a ten day period, subject to reevaluation
at the end of that period. (Doc. 11-9 at PgID100, 11-2 at PgID 74).
In support of its motion for summary judgment, Hartford has
submitted a formal written copy of its “Pregnancy Light Duty Policy.” (Doc.
11-5 at PgID 91). The policy states:
It is the policy of the facility to provide pregnant employees an
opportunity to continue to participate in the workforce during
pregnancy. Every effort will be made to accommodate the
pregnant employee’s restrictions in their regular position. This
policy is to establish guidelines relating to Temporary Light Duty
for employees with medical restrictions due to pregnancy when
they cannot be accommodated in their regular position.
Id. The Policy is undated and it is unclear if the Policy was ever provided to
Turner.
Turner worked eight-hour days in her new assignment from June 9 to
June 16, 2015. (Doc. 11-10 at PgID 102). But Turner then missed work on
three of the ten days she was assigned to light duty work. Turner claims all

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of her absences were medically excused and that she communicated each
absence to her employer. Hartford, on the other hand, argues none of the
absences were medically excused, and for two of the three absences,
Turner was a no call/no show.
Turner’s first absence occurred on June 17, 2015, when Turner left
work after completing two hours of her eight-hour shift complaining of
swelling of her feet. (Doc. 11-2 at PgID 75). She visited the Emergency
Room at Providence Hospital at 10:40 a.m. and was discharged at 12:37
p.m. (Doc. 11-11 PgID 105). The discharge papers note that Turner was
about six-weeks pregnant and has no visible edema. Id.at 106. Turner did
not return to work, and testified at her deposition that despite the doctor’s
note to the contrary, her feet were swollen and hurt her. (Doc.11-2 PgID
75).
Turner’s next absence occurred the next day when she had a doctor
appointment. Turner testified at her deposition that she told South about
her appointment. (Doc. 11-2 at PgID 76). Her doctor’s office provided a
note indicating that she was seen at the office on June 18, 2015 and
cleared her to return to work that same day. (Doc. 11-12 at PgID 108).
Turner did not return to work that day. She did, however, work her
regularly scheduled light duty shifts on June 19 and 22, 2015. (Doc. 11-10
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at PgID 102-03). On June 23, 2015, Turner did not report to work because
she was vomiting. (Doc. 11-2 at PgID 76). Turner testified at her
deposition that she spoke to the receptionist/secretary to report her
absence, id., but Hartford denies that it received such a call. Turner did not
see her doctor that day, but she testified that she telephoned the doctor’s
office and was told that vomiting during pregnancy is normal. Id.
On June 24, 2015, Hartford sent Turner a termination letter stating as
follows:
Your temporary light duty assignment with Hartford Nursing and
Rehab Center has ended. Unfortunately, there are no other light
duties [sic] assignments available that fall within your current
restrictions.
Pursuant to CBA, page 16, Section 7, a:[“]The employer shall
grant a leave of absence without pay to an eligible employee
with at least one (1) year of service who is disabled as a
result of sickness or injury for the period of continuing
disability.”
And pursuant to FMLA Act, in order to qualify for FMLA, you
must have worked at least 1250 hours preceding and have
been employed one year.
Unfortunately, Ms. Shannon, your medical condition does not
qualify for either situation. Therefore your employment with
Hartford Nursing and Rehab Center has been terminated.
Please feel free to reapply for a position once you are able to
work.
(Doc. 14-2, PgID 147) (emphasis in original).

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In its motion for summary judgment, Hartford claims it terminated
Turner because of her three allegedly unexcused absences for which two
were allegedly not reported. Turner, on the other hand, claims all of her
absences were excused, and that the real reason for her termination was
discrimination on the basis of her pregnancy. In her Complaint, Turner
alleges that “[o]ther workers are and have been permitted accommodations
when temporarily disabled, and were not fired due to their need for light
duty.” (Complaint, ¶ 9). The Complaint further avers, “Defendant’s actions
in refusing to permit Ms. Turner the same changes in duties as it does nonpregnant workers with conditions that limit their ability to lift or perform
other functions of their jobs violate the Pregnancy Discrimination Act, an
amendment of Title VII of the Civil Rights Act of 1964.” Id. at ¶ 18.
After her termination, Turner obtained new employment as a CNA at
Medilodge, a long term care facility, and at Burlington Coat Factory. (Doc.
11-2 at PgID 79, 82). On October 19 or 20, 2015, Turner was placed on
bed rest for the duration of her pregnancy. (Doc. 11-2 at PgID 81). Thus,
Hartford argues that should Turner’s pregnancy discrimination claim
survive summary judgment, any award for backpay must be capped as of
October 20, 2015 at which time Turner was admittedly unable to work.
Turner has not responded to that argument.
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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);
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.,

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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, 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).

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III. Analysis
A.

PDA and Title VII Standard of Law
The PDA expanded the protections of Title VII to cover those

“’women affected by pregnancy, childbirth or related medical conditions’ by
expressly requiring that employers provide the same treatment of such
individuals as provided for ‘other persons not so affected but similar in their
ability or inability to work.’” Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226
(6th Cir. 1996) (quoting 42 U.S.C. § 2000e(k)). But the PDA does not
require special or preferential treatment for pregnant employees, it only
requires “that pregnant employees be treated the same as non-pregnant
employees who are similarly situated with respect to their ability to work.”
Id. (emphasis in original). The Sixth Circuit has explicitly recognized that
“the PDA does not categorically prohibit the termination of pregnant
employees who are unable to work.” Cleveland v. Fed. Express Corp., 83
F. App’x 74, 81 (6th Cir. 2003). For example, in Spees v. James Marine,
Inc., 617 F.3d 380, 395 (6th Cir. 2010), the Sixth Circuit affirmed summary
judgment on plaintiff’s pregnancy discrimination claim for wrongful
termination, where her employer demonstrated that it terminated her, not
because she was pregnant, but because she submitted a notice from her
doctor that she required bedrest for the duration of her pregnancy. The

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PDA simply requires that a pregnant employee “shall be treated the same
for all employment-related purposes . . . as other persons not so affected
but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
Discrimination claims under the PDA and Title VII can be proved by
direct or indirect evidence. Logan v. Denny’s, Inc., 259 F.3d 558, 566-67
(6th Cir. 2001). In this case, Turner proceeds solely under the indirect or
circumstantial method; thus, the familiar McDonnell Douglas burden shifting
analysis applies. Under that paradigm, in order to establish her prima facie
case, the parties agree that plaintiff must show that “(1) she was pregnant,
(2) she was qualified for her job, (3) she was subjected to an adverse
employment decision, and (4) there is a nexus between her pregnancy and
the adverse employment decision.” Tysinger v. Police Dep’t of City of
Zanesville, 463 F.3d 569, 573 (6th Cir. 2006). If the plaintiff successfully
proves her prima facie case of pregnancy discrimination, the burden of
production shifts to the employer to establish a legitimate,
nondiscriminatory reason for the employment action. Id. at 576. If the
defendant satisfies its burden, the presumption of intentional discrimination
arising from the prima facie case is negated, and in order to defeat a
motion for summary judgment, plaintiff must rebut the articulated reason by
showing that it is not credible and is a mere pretext for discrimination. Id.
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The plaintiff can meet this burden by showing that the employer's reason
has no basis in fact, did not actually motivate the employer, or was
insufficient to motivate the adverse action. Id.
In this case, Turner seeks to prove the fourth prong of her prima facie
case under the theory of disparate treatment. She alleges that Hartford
refused to permit her to have the same change in duties as non-pregnant
workers with conditions that limit their ability to lift. (Complaint, ¶¶ 9, 18).
The Supreme Court recently addressed a similar disparate treatment claim
in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). In that
case, as here, plaintiff sought to proceed under the indirect or
circumstantial method under the McDonnell Douglas framework. In Young,
the Court explained that plaintiff may prove a prima facie case of
discrimination under the PDA by showing that “(1) she belonged to the
protected class, (2) she sought accommodation, (3) her employer did not
accommodate her, and (4) the employer did accommodate others ‘similar
in their ability or inability to work.’” Id. at 1354. Applying the burdenshifting method, the Court found that plaintiff had raised a genuine issue of
material fact in support of her prima facie case by introducing evidence that
UPS had a policy of allowing employees to be reassigned to light duty
when they were injured on-the-job, had disabilities under the Americans
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with Disabilities Act, or lost their DOT certification, yet failed to provide the
same benefit to pregnant employees with similar lifting restrictions. Id. at
1355-56.
B.

Prima Facie Case
In this case, Hartford concedes that the first three elements of

Turner’s prima facie case have been established, but contends that Turner
has failed to create a genuine issue of material fact as to the fourth
element: that there is a nexus between plaintiff’s pregnancy and her
termination. Plaintiff may prove a nexus between an adverse employment
action and her pregnancy through evidence that other non-pregnant
employees similarly situated in their ability or inability to work received
more favorable treatment. Young,135 S. Ct. at 1350, 54, Ensley-Gaines,
100 F.3d at 1226. This is the theory upon which Turner bases her
discrimination claim in this case. (Complaint, ¶¶ 9, 18). Courts have
recognized that the nexus element may be established by proof of
disparate treatment. For example, in Latowski v. Northwoods Nursing Ctr.,
549 F. App’x 478, 483-84 (6th Cir. 2013), the Sixth Circuit found that
plaintiff had established the fourth element of her prima facie case by
introducing evidence that her employer allowed employees with lifting
restrictions because they were injured on the job to be assigned to light
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duty work, but refused to afford her the same benefit. By contrast, in this
case, Turner has presented no evidence that Hartford allowed nonpregnant CNAs with lifting restrictions to be reassigned to light duty work.
Also, she has failed to introduce any evidence that non-pregnant CNAs
who could not perform the essential functions of their positions because of
their lifting restrictions were allowed to maintain their employment as CNAs.
In her response brief, Turner argues she has demonstrated sufficient
facts in support of the fourth prong of her prima facie case to defeat
Hartford’s motion for summary judgment for four reasons: (1) the scheduler
and head of Human Resources told her that Hartford does not
accommodate pregnant CNAs by allowing them to be reassigned to light
duty work, (2) there was no written policy allowing for light duty work at the
time of her termination, (3) the wording of her termination letter, and (4) she
was pregnant at the time of her termination. (Doc. 14 at PgID 141). The
court addresses each argument in turn below.
First, the court considers Turner’s argument that Williamson and
South both told her they did not think that Hartford provided for light duty
work for pregnant employees with medical restrictions. Williamson was the
scheduler, not a decision maker, so the court affords little weight to her
statement. In discrimination cases, in order to evaluate the relevance of a
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remark made by an individual who works for the employer, the court
considers both the substance of a remark as well as the influence the
individual had in the employee's termination. Asmo v. Keane, Inc., 471
F.3d 588, 595 (6th Cir. 2006) (citing Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 355 (6th Cir.1998)). Here, Williamson played no role in
Turner’s termination, and thus, her remark standing alone generally is
insufficient to give rise to an inference that Hartford discriminated against
her. Id. at 354. Even considering her statement, it does not support an
inference of discrimination. It is true that according to Turner’s deposition
testimony, Williamson did tell her that she thought employees were only
afforded light duty work when injured on the job, (Doc. 11-2 at PgID 74),
but Turner has failed to identify any such workers. In the absence of any
such evidence, the court affords little circumstantial weight to Williams’
statement.
The court turns now to South’s statement that Hartford did not
normally allow for reassignment to light duty for pregnant employees, but
she would investigate the matter further and get back to Turner. Id. As the
Director of Human Resources, the court gives greater weight to South’s
alleged statement than it affords to the scheduler’s statement. It is
undisputed that Hartford granted Turner reassignment to light duty work.
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Thus, even if it was not Hartford’s general policy to do so, Turner was
specifically granted permission to be reassigned to light duty work. Under
these circumstances, South’s statement that she was unsure of Hartford’s
policy regarding reassignment of pregnant employees to light duty work
does not support an inference of discrimination in this case.
Second, the court considers Turner’s claim that the non-existence of
any written policy regarding reassignment of pregnant employees to light
duty work is evidence of discriminatory intent. Unless Hartford had a policy
allowing for reassignment of non-pregnant workers with medical restrictions
to light duty work, Hartford is not required to offer the same to pregnant
employees. Ensley-Gaines, 100 F.3d at 1226. Plaintiff makes much of the
fact that Hartford produced an undated document to the EEOC which is a
formal written policy providing for accommodating pregnant employees with
light duty work where it is medically necessary. The fact that Hartford may
have adopted a formal policy of allowing pregnant employees to take light
duty assignments at a later point does not give rise to any inference of
discrimination at the time of Turner’s termination. As one court has noted:
Interestingly, although the PDA neither allows employers to deny
pregnant employees benefits given to other employees nor
requires them to give special treatment, an employer may
choose to give preferential treatment to pregnant employees,
without giving the same preferential treatment to other
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employees. As the Supreme Court has indicated, “Congress
intended the PDA to be a floor beneath which pregnancy
disability benefits may not drop—not a ceiling above which they
may not rise.”
Mullet v. Wayne-Dalton Corp., 338 F. Supp. 2d 806, 811 n.7 (N.D. Ohio
2004) (quoting California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,
285 (1987)).
In the absence of any evidence that non-pregnant employees with
medically necessary lifting restrictions were allowed reassignment to light
duty work, Hartford was not required to provide the same to pregnant
employees. The fact that Hartford adopted such a policy for pregnant
employees at some point, albeit likely after Turner was terminated, is not
evidence that the lack of such a preferential policy at the time Turner was
let go was in any way discriminatory. The question is simply whether
Turner was treated the same as non-pregnant employees with the same
lifting restrictions. Turner has presented no evidence that non-pregnant
employees were treated more favorably than her.
Third, the court considers the wording of her termination letter.
Turner claims the letter evidences discriminatory intent as it does not
mention her unexcused absences as the reason for her termination, only
that there is an absence of light duty assignments available. (Doc. 14-2 at

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PgID 147). The letter further advised Turner that due to her mere four
months of employment, she was ineligible for leave under the CBA or the
FMLA. Id. Even taking the reasons given in the termination letter on their
face, the letter is not evidence of discriminatory intent. Hartford was under
no obligation to reassign Turner to a light duty position, and so, even if this
were the real reason for her termination and not her allegedly unexcused
absences, that explanation is non-discriminatory and fails to support the
causal nexus element of Turner’s prima facie case.
Finally, the court considers Turner’s argument that the fact that she
was pregnant when she was terminated is evidence of the nexus required
to perfect her prima facie case. The mere fact that she was pregnant when
she was fired is insufficient to prove that her termination was
discriminatory. In the absence of any other evidence to link her termination
to pregnancy discrimination, Turner has failed to introduce sufficient
evidence to raise a genuine issue of material fact in support of her prima
facie case.
C.

Legitimate Nondiscriminatory Reason
Even if Turner could establish her prima facie case, Hartford has set

forth a legitimate, nondiscriminatory reason for the employment action.
Hartford claims that it discharged Turner for her three unexcused absences
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during her ten-day reassignment to light duty work in the Admissions
Department, at least one of which it alleges was a no call/no show
situation. Because Turner testified at her deposition that she notified her
employer for all of her absences, and viewing the facts in the light most
favorable to the nonmoving party, the court does not credit Hartford’s claim
that Turner was a no call/no show. In any event, Turner has come forward
with no evidence that her absences were medically necessary. Her first
absence on June 17, 2015 arose out of her alleged foot swelling, but the
doctor who examined her at the hospital noted in his discharge report that
there was no edema present. (Doc. 11-11 at PgID106).
Her second absence on June 18, 2015 for a doctor appointment was
also unexcused. The doctor’s note cleared her to return to work that day,
yet she did not report. (Doc. 11-12 PgID 108). On June 23, 2015, Turner
missed her light duty assignment for the third time when she admittedly did
not report to work because she was vomiting. She failed to submit a doctor
note excusing her absence.
Having demonstrated that Turner had three unexcused absences
during her ten-day light duty assignment, Hartford has established a
legitimate nondiscriminatory reason for her termination.

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D.

Pretext
Having set forth a legitimate nondiscriminatory reason for her

termination, the burden shifts back to Turner to come forward with evidence
to prove that the reason given for her termination was not the real reason
but was pretext for discrimination. To carry her burden to demonstrate
pretext, plaintiff can demonstrate 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. .... If a plaintiff can show
that the defendant's proffered, nondiscriminatory reason is
pretextual, the trier of fact may infer discrimination. ....
Nevertheless, the ultimate burden of proof to show
discrimination remains on the plaintiff at all times.

Tysinger, 463 F.3d at 576 (citing Dews v. A.B. Dick Co., 231 F.3d 1016,
1021 (6th Cir. 2000)). Turner has failed to meet her burden here.
Turner argues that Hartford’s reason is merely pretextual because the
termination letter did not reference her unexcused absences and in fact
invited her to reapply to Hartford in the future. However, even if Hartford
fired her because of the absence of light duty work, and not because of her
dismal attendance record, such a reason also would not be discriminatory
unless Turner could prove that non-pregnant employees with the same
ability or inability to work were treated more favorably than her. Having

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failed to do so, Turner has failed to raise a genuine issue of material fact
that Hartford’s reason for firing her was pretext for discrimination.
IV. Conclusion
For the reasons set forth above, Hartford’s motion for summary
judgment (Doc. 11) is GRANTED.
IT IS SO ORDERED.
Dated: July 25, 2017
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
July 25, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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