Miller v. Detroit Water and Sewerage Department et al

Filing 31

ORDER DENYING 17 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JASON MILLER,
Plaintiff,
v.

Case No. 17-10122

DETROIT WATER AND
SEWERAGE DEPARTMENT, and
GREAT LAKES WATER AUTHORITY,

HON. AVERN COHN

Defendants.
___________________________________/
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 17)
I.

INTRODUCTION

This is an employment case. Plaintiff Jason Miller (Miller) is suing Defendants
City of Detroit Water and Sewerage Department (DWSD), his former employer, and
Great Lakes Water Authority, which now operates many of DWSD’s water treatment
plants. Miller claims that DWSD unlawfully discriminated against him and terminated
him in violation of the Family and Medical Leave Act of 1993, 29 U.S.C § 2601 et seq.
(FMLA) and the Michigan Persons With Disabilities Civil Rights Act, M.C.L. § 37.1101 et
seq. (PWDCRA). Miller’s complaint is in four counts:
I.

FMLA Interference

II.

FMLA Retaliation

III.

PWDCRA Discrimination

IV.

PWDCRA Retaliation

(Doc. 1). Miller requests compensatory damages, liquidated damages, non-economic
damages, reinstatement, interest, costs, and attorney’s fees.
Now before the Court is DWSD’s motion for summary judgment (Doc. 17). Miller
has responded (Doc. 29) and DWSD has replied. (Doc. 24).1 The parties have also
submitted a joint statement of material facts. (Doc. 26). The Court declines to exercise
supplemental jurisdiction over Miller’s PWDCRA claims because they present a
“complex issue of State law,” 28 U.S.C. § 1367, and thus will only adjudicate summary
judgment as to the FMLA claims. For the reasons that follow, DWSD’s motion is
DENIED.
II.

BACKGROUND
A.

Miller started working as a DWSD Sewage Plant Attendant in 2001. At the times
relevant to this case, he was supervised by Melvin Murphy (Murphy), Earl Hurling
(Hurling), and Majid Khan (Khan). David McNeeley (McNeeley) was Khan’s supervisor.
B.
On April 13, 15, and 21, 2015, Miller called DWSD to report that he would be
absent and would request FMLA time to cover the absences. (Doc. 28-7). However,
since Miller’s FMLA leave expired on June 30, 2014, he had no more FMLA time to
cover his absences. (Doc. 28-15). Because Miller had no FMLA time available, he was
marked as AWOL for the three April absences and suspended for five days starting

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The response docket number is higher than the reply docket number because Miller
was instructed to re-file his response brief due to excessive use of footnotes.
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April 27, 2015. (Doc. 28-18). On April 27, 2015, Hurling gave Miller a Corrective
Disciplinary Action Form memorializing the AWOL. (Doc. 28-7).
Miller admits he had no FMLA time available to cover the April absences, but
contends that DWSD did not make him aware of that fact until he received the discipline
form in late April. (Doc. 28-7). Miller said that he was usually notified when his FMLA
expired, and that this time he only found out when he attempted to request FMLA and it
was denied. (Miller Dep. 81). A statement signed by Murphy details that on April 22,
2015, he notified Miller that he had no more FMLA time available. (Doc. 28-16).
C.
On May 14 or 15, 2015, Miller went to Human Resources and asked for
documents to make a new FMLA leave authorization request. (Miller Dep. 81; Doc. 22-1
¶ 21). He turned the completed documents in to Human Resources around May 28,
2015 (Doc. 28-19), and the request was granted on June 5, 2015. (Doc. 30-10). Miller
stated in an affidavit: “I explained [to Human Resources staff] that I wanted my FMLA
time to cover the April and May 2015 absences I had as a result of needing FMLA time.”
(Doc. 22-1 ¶ 24). Khan said retroactive FMLA leave was possible (Khan Dep. 101) and
employees would not be disciplined for an absence until FMLA requests had been
approved or denied. (Khan Dep. 97). However, the FMLA request form dated May 28,
2015 and signed by Miller indicates that he was requesting FMLA for a period beginning
on June 1, 2015 and ending on May 31, 2016. (Doc. 28-19). Human Resources
employee Maria Young (Young) said that she, not Miller, wrote those dates on the form.
(Young Dep. 172).
D.

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On June 3, 2015, Miller was suspended for 30 days for another AWOL that
occurred on May 17, 2015. Like the April AWOLs, this AWOL also occurred because
Miller called in sick requesting to use FMLA time, but had no sick or FMLA time in his
bank to cover the absence. (Doc. 28-5; Miller Aff. ¶ 3). The June suspension is
memorialized in two different disciplinary action forms: one unsigned on May 21, 2015
(Doc. 28-18) and the other signed on June 3, 2015. (Doc. 28-5). The June 3, 2015
document indicates that the suspension is “Pending Discharge.” (Id.). Hurling said that
he prepared the May 21, 2015 document as a draft, and that the final version was
signed by McNeeley on June 3, 2015. (Hurling Dep. 208). Hurling said he did not know
who authored the final version or added the words “Pending Discharge.” (Id. at 210).
The record does not reflect when the “Pending Discharge” indication was added or who
added it.
In a June 4, 2015 email, Khan wrote to McNeeley the following:
Dave [McNeeley], I Just learned from PCC, that Mr. Jason Miller turned in his
FMLA documentation to HR on Monday 6/1/2015, and he called in FMLA-sick to
work today, therefore his suspension notice could not be issued. Please advise if
any other options are available such as mailing to his home address.
(Doc. 29-13). Young and two other Human Resources employees were copied on the
email. In a response to Khan and all employees copied on the email, McNeeley wrote:
Majid [Khan], HR was aware of his submittal of his FMLA paperwork that is why
they decided to proceed with the suspension pending discharge. Maria [Young],
Do we mail the certified notice of does HR?
(Id.).
E.
On June 29, 2015, DWSD issued a Notice of Discharge stating that Miller was
terminated effective July 2, 2015 because of his AWOLs. (Doc. 28-6). The termination
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document is signed by Sue McCormick (McCormick), the DWSD Director. (Conerway
Dep. at 176). Young said that McNeeley, Khan, or Hurling typically would have made
the termination decision (Young Dep. 216); however, the record does not make clear
who actually made the decision. Human Resources manager Terri Conerway
(Conerway) said that she reviewed and approved Miller’s termination (Conerway Dep.
173-75), and that she was unaware of Miller’s pending FMLA request when she did so.
(Id. at 183).
III.

LEGAL STANDARD

A. Summary Judgment
Summary judgment will be granted if the moving party demonstrates that there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue of material fact when
“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). The Court must decide “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.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In doing so, the
Court “must view the evidence in the light most favorable to the non-moving party.”
Emp’rs Ins. of Wausau v. Petrol. Specialties, Inc., 69 F.3d 98, 101-02 (6th Cir. 1995).
B. FMLA Interference
The FMLA provides that “[i]t shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under this

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subchapter.” 29 U.S.C. § 2615(a)(1). Interference occurs when “an employer takes an
employment action based, in whole or in part, on the fact that the employee took FMLAprotected leave.” Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017)
(quoting Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)). An employer may be
held liable even for an unintentional violation. Marshall v. The Rawlings Co. LLC, 854
F.3d 368, 384 (6th Cir. 2017) (quoting Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d
274, 282 (6th Cir. 2012).
To establish a prima facie case of interference, a plaintiff must show that
(1) she was an eligible employee as defined under the FMLA; (2) her employer
was a covered employer as defined under the FMLA; (3) she was entitled to
leave under the FMLA; (4) she gave the employer notice of her intention to take
FMLA leave; and (5) her employer denied FMLA benefits to which she was
entitled.
Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017) (quoting Novak v.
MetroHealth Med. Ctr., 503 F.3d 572, 577-78 (6th Cir. 2007)).
C. FMLA Retaliation
The FMLA also prohibits retaliation: “[i]t shall be unlawful for any employer to
discharge or in any other manner discriminate against any individual for opposing any
practice made unlawful by this subchapter.” 26 U.S.C. § 2615(a)(2).
To establish a prima facie case of retaliation, a plaintiff must show that “she
availed herself of a protected right under the FMLA; her employer knew she availed
herself of her right under the FMLA; she suffered an adverse employment action; and
there was a causal connection between the exercise of her rights under the FMLA and
the adverse employment action.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381
(6th Cir. 2017) (citing Edgar v. JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006)).

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The parties agree that the first three elements of a prima facie case have been
met, and only the causal connection is at issue.
Both FMLA interference and retaliation claims are evaluated according to the
burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). After a
plaintiff establishes a prima facie case, the burden shifts to the defendant to provide a
non-discriminatory explanation for the conduct at issue, and then the burden shifts back
to the plaintiff to show that the proffered reason was pretext. Id. at 761-62.
IV.

DISCUSSION

Three disputes of material fact render summary judgment inappropriate as to
Miller’s FMLA claims.
First, there is conflicting evidence regarding which employment policy was in
effect at the time Miller was disciplined and terminated. The policy DWSD claims was in
effect provided for termination after two AWOLs (Doc. 28-8 p. 18). However, Hurling
said that “[t]his document wasn’t in effect in April of 2015.” (Hurling Dep. 254).
According to Khan, the policy in effect called for three AWOLs before an employee
could be terminated. (Khan Dep. 178). Miller was terminated after two AWOLs. The
Court cannot grant summary judgment without knowing which policy was in effect, as
whether DWSD violated its own employment policy would speak to the existence of
pretext.
Second, Miller says the Human Resources department failed to make his May
2015 FMLA application retroactive as he had requested. (Doc. 22-1 ¶ 24). In addition to
Young’s deposition testimony, the face of the form makes clear that Young, not Miller,

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was the one who filled in the requested dates. (Doc. 28-19). In absence of evidence that
Miller did not request retroactivity, there remains a dispute about whether a DWSD
employee refused to comply with Miller’s request, which would also be evidence of
pretext.
Third, the record does not make clear which supervisor made the decision to
terminate Miller. Thus, it is impossible to determine whether the person who made the
decision knew about Miller’s recent FMLA request. In addition, although Conerway (who
approved the termination decision) denies knowing about Miller’s May 2015 FMLA
request, the email from McNeeley to Khan states that “HR was aware of his submittal of
his FMLA paperwork that is why they decided to proceed with the suspension pending
discharge.” (Doc. 29-13). While it is possible that the email was intended to
communicate something other than blatant discrimination, DWSD has failed to offer an
alternative explanation.
V.

CONCLUSION

For the reasons stated above, Miller’s PWDCRA claims are DISMISSED without
prejudice. However, the case will proceed as to Miller’s FMLA claims because DWSD is
not entitled to summary judgment on those claims. The case manager is directed to set
a conference with the parties.

SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: July 13, 2018
Detroit, Michigan
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