Mikan v. Arbors at Fairlawn Care, LLC
Filing
52
Memorandum Opinion and Order granting Defendant's motion for summary judgment (Doc. # 27 ). Judge John R. Adams on 9/28/16. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SUSAN F. MIKAN,
Plaintiff,
vs.
ARBORS AT FAIRLAWN
CARE, LLC,
Defendant.
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CASE NO. 5:15 CV 250
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
(Resolving Doc. #27)
This matter is before the Court on Defendant, Arbors at Fairlawn Care, LLC’s (“the
Arbors”), motion for summary judgment as to Plaintiff’s claim of interference under the Family
and Medical Leave Act (“FMLA”) (Count One). For the reasons that follow, the Arbors motion
(Doc. #27) is GRANTED.
I.
FACTS
Plaintiff, Susan F. Mikan (“Mikan”), is a Registered Nurse (“RN”) who worked at the
Arbors facility as a part-time RN Supervisor. On July 18, 2014, Ms. Mikan was working in that
capacity for a shift beginning at 6 p.m. on July 18 and ending at 6 a.m. on July 19, in an area of
the facility called the 600 Hall. As an RN Supervisor, Ms. Mikan’s duties while on shift
included monitoring the residents on the hall; providing care; and informing other supervisors
and physicians of the status of residents or changes in condition. When Ms. Mikan’s shift began
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on July 18, 2014, two other supervisors were on duty: another RN Supervisor, Vicki Knotts,
whose shift began at 3 p.m. and would end at 11 p.m., and a Unit Manager, Valerie Wallick, who
was completing paperwork at the end of her day but was present when Ms. Mikan arrived. At
approximately 7:00 p.m. on July 18, Ms. Mikan entered a resident’s room to deliver a dinner
tray. At that time she found the resident, Resident C1, on the floor, between his bed and chair,
without his oxygen feed. (Mikan Dep. Tr. 96-97.) He was confused and unable to explain how
he came to be on the floor. (Mikan Dep. Tr. 97-98.) Ms. Mikan and other employees lifted
Resident C back onto his bed and arranged for him to be moved closer to the nurses’ station so
he could be more easily monitored. (Mikan Dep. Tr. 103-104.)
The Arbors is aware that its residents are particularly vulnerable to falls. Due to the
health status of the residents and the nature of the services provided by the facility, the Arbors
has in place a Neurological Assessment Protocol, also referred to as a neuro check procedure,
that employees must follow every time a resident has an unexplained fall. (Mikan Dep. Tr. 78,
84-85.) Ms. Mikan is aware of the procedure and its requirements, which include checking the
resident’s vital signs every fifteen minutes in the first hour after the fall until the resident is
stable and then every thirty minutes for the next two hours, and if the resident remains stable,
additional, less frequent, monitoring. (Mikan Dep. Tr. 80.) To facilitate compliance with the
procedure, the Arbors maintains a “Neurological Assessment Flowsheet” which requires
employees to enter data from each vital sign assessment after a fall. (Mikan Dep. Ex. M.)
If an employee observes a change in a resident’s condition while monitoring the resident
after an unexplained fall, the employee is required to immediately notify the resident’s physician
and a family or legal representative of the change. (Mikan Dep. Tr. 86.) Ms. Mikan was aware
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So designated by the parties to protect patient confidentiality.
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of the notification requirement; the Clinical Administrative Manual, which states the underlying
policy, is available to all staff. (Mikan Dep. Tr. 83-84, Ex. N.) For the purposes of the
notification policy, the fall itself is not considered a change in condition that must be reported. A
change must be reported after a fall only when the neuro check procedure reveals that vital signs
after the fall differ from previously recorded vital signs. (Mikan Dep. Tr. 82.)
Resident C had arrived at the Arbors on July 16, 2014. According to his chart, which was
available to all nursing personnel, his fully documented vital signs from the two days prior were
consistent. (Mikan Dep. Tr. 108, 110, Ex. S,T.) After Resident C’s fall on July 18, 2014, Ms.
Mikan checked and documented his vital signs at approximately 7:00 p.m.. She did not conduct
a check at 7:15 as required by the protocol. (Mikan Dep. Tr. 107, Ex. R.) She then checked the
resident’s vital signs at 7:30 p.m. but did not check his vital signs again until three hours later at
10:30 p.m.. Under the protocol, during that three hour period, she was required to make checks
at 7:45; 8:00; 8:30; 9:00; 9:30; and 10:00 – if the resident had stabilized. At this point, Ms.
Mikan waited another two and a half hours, until 2:00 a.m., before she checked Resident C’s
vital signs again. During her deposition, Ms. Mikan admitted that she did not compare Resident
C’s post-fall vital signs to those previously recorded in his chart. (Mikan Dep. Tr. pp. 108-127.)
At 2:00 a.m., Resident C’s vital signs showed insufficient oxygen and Ms. Mikan
recognized that he had become hypoxic. She then, for the first time, attempted to contact his
physician. When she could not reach the physician, she called 911. (Mikan Dep. Tr. p. 120.) At
2:25 a.m., she contacted Resident C’s family/legal representative. At 2:40 a.m., Resident C was
taken by ambulance from the Arbors to the hospital, where he went into cardiac arrest and died
shortly after arrival.
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According to the Arbors, with regard to Resident C, Ms. Mikan’s failure to follow the
neuro assessment protocol was compounded by her failure to properly respond to the 7:00 p.m.
vital signs check, which indicated that Resident C had undergone a significant change in
condition, triggering the notification requirement. (Yoho Dep. Tr. 50-51.) The 7:00 p.m. entry
in the neuro flow chart, immediately after the fall, reflects a decrease in Resident C’s blood
oxygen level from the 92% recorded in his chart at 4:00 p.m. to 84%; his blood pressure had
increased from 122/67 to 137/94; and his pulse had increased from 87 to 120. (Mikan Dep. Ex
S, R.) The Arbors states that these changes were significant and triggered the notification
requirement. (Yoho Dep. Tr. 49-54.)
According to the Arbors, this significant change in
condition was evident again in the 7:30 p.m. vital signs and repeated at 10:30 p.m. in the form of
reduced oxygen levels and elevated pulse. Thus, under the Arbors policy, notification of the
resident’s physician and family/legal representative was required at 7:00 p.m. and continued to
be required for approximately seven hours before it actually occurred, after 2 a.m..
At 4:50 a.m. on July 19, 2014, Ms. Mikan completed and submitted an electronic
Resident Incident Report, which generated a report to the Regional Director of Operations, Chris
Warrick. (Mikan Dep. Ex. V.) The Regional Director responded to the report on July 19, 2014,
with emails to Administrator, Monica Agee, and the Director of Nursing, Kathie Yoho, asking
why no one was called about the incident. Both women received the emails when returning to
work on Monday, July 21, 2014.
On July 21, 2014, Ms. Wallick, the Unit Manager, supplemented the Resident Incident
Report completed by Ms. Mikan by interviewing and taking statements from other staff members
on duty at the time. The supplemented report was submitted to the Arbors’ corporate office. At
the same time, Ms. Yoho began a separate investigation into the care received by Resident C at
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the Arbors. Later that day, Ms. Wallick and Ms. Yoho interviewed Ms. Mikan together to take a
statement concerning her shift on July 18–July 19. According to the supervisors, during the
interview, Ms. Mikan said she was just “real busy” and did not have time to notify the physician
and that she was sorry she “dropped the ball” and failed to follow the neuro check procedure, but
that she was just “too busy.” (Yoho Aff. App. 1; Yoho Dep. Tr. 53; Agee Dep. Tr. 30-31;
Wallick Aff. App.1.) Ms. Yoho told Ms. Mikan on July 21, 2014 that she was suspended
pending the completion of the investigation. (Yoho Dep. Ex. 15; Agee Dep. Tr. 41.)
Ms. Wallick, Ms. Yoho, and Ms. Agee, conducted a review of July 18 and 19. Over the
next six or seven days they determined that they would recommend termination of Ms. Mikan’s
employment as a result of the combined failures to comply with the neurological protocol and
inform the physician of the change in condition.
Ms. Agee and Ms. Yoho reviewed this
recommendation with the Regional Director, Mr. Warrick, who agreed with the decision and
authorized them to proceed. On July 28, 2014, Ms. Yoho prepared a Disciplinary Action Report
to provide Ms. Mikan with notification of her termination; she then called Ms. Mikan to tell her
that she did not need to come it to work because she was being terminated. (Yoho Dep. Tr. 61;
Yoho Aff. ¶ 14; Mikan Dep. Tr. 154-55.)
Unknown to Ms. Yoho and Ms. Agee, also on July 28, 2014, Ms. Mikan called the
Arbors’ Business Office Manager, Marsha Marville, and asked for information about taking
FMLA leave. According to the testimony of Ms. Agee, Ms. Marville routinely handled FMLA
leave requests and other payroll and employee status issues. According to Ms. Marville, FMLA
leave requests are common at the Arbors, especially for childbirth and other family related
reasons, requests are considered routine, and employees regularly take FMLA leave from the
Arbors and return to work at the Arbors without incident. (Marville Aff. ¶ 11 & 12; Marville
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Dep. Tr. p. 83-84.) Ms. Marville was not part of the investigations and termination decision; she
was unaware, when she spoke to Ms. Mikan on July 28, 2014, that a decision concerning her
employment status was forthcoming. In response to her conversation with Ms. Mikan, Ms.
Marville pulled FMLA forms and either prepared to mail them to her or posted them on a notice
board for her to pick up when she came in. (Marville Aff., ¶ 8; Dep. Tr. p. 35-41.) After her
conversation with Ms. Mikan and pulling the forms for her, Ms. Marville was informed by Ms.
Yoho that Ms. Mikan was being terminated and instructed to prepare the forms necessary to
remove her from the payroll system and compile an Employee Separation Report. (Marville
Aff., ¶8.) Ms. Agee and Ms. Yoho state that they were not aware of Ms. Mikan’s intention to
take FMLA leave when investigating and deciding to terminate her employment. (Agee Dep. Tr.
p. 19-21, Yoho Dep. Tr. p. 12-15.) Ms. Agee further explained in her deposition that FMLA
leave was not “pertinent when we were investigating” and that she would not have expected to
be informed of an FMLA request in the context of such an investigation because it was not
relevant. (Agee Dep. Tr. p. 23.)
Ms. Mikan does not dispute the Arbors’ description of July 18 and 19 or the timeline of
her suspension and termination. Ms. Mikan states that she informed a supervisor, Vicki Knotts,
of the fall and that Ms. Knotts, along with other staff members, helped her lift Resident C back
into his bed. Ms. Mikan also states that Ms. Knotts was aware of her medical condition and
potential need for FMLA leave – according to Ms. Knotts’s testimony during her deposition she
was aware that Ms. Mikan had a diagnosis, was contemplating surgery, and intended to use her
sick leave for the surgery, but expected to need FMLA leave, as well, afterwards. (Knotts Dep.
Tr. p. 18-19.) Ms. Knotts states that she was aware of the diagnosis before July 18, 2014.
(Knotts Dep. Tr. p. 18-19.) Ms. Mikan argues, in essence, that her July 28, 2014 request to Ms.
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Marville for FMLA paperwork was in fact her second FMLA request. Although Ms. Mikan
contends in her brief that she first made her FMLA leave request to Ms. Knotts, prior to July 18
and her subsequent suspension and termination, neither her own, nor Ms. Knotts’s deposition
testimony confirms this assertion. According to Ms. Knotts’s testimony, she has only a very
general knowledge and awareness of the FMLA, and she would have referred anyone asking
about FMLA leave to Marsha Marville, who handled all such requests and issued the necessary
paperwork. (Knotts Dep. Tr. p. 19-24; 56-57.) Ms. Knotts was not part of the investigation and
decision whether to terminate Ms. Mikan, she indicated that participation in either would not be
part of her role at the Arbors. (Knotts Dep. Tr. p. 58.) Ms. Knotts further stated that although in
her experience as a supervisor she had reviewed neurological assessment sheets with “a spot
somewhere that hasn’t been filled,” she could not recall ever seeing another neurological
assessment sheet with three hour gaps like those that occurred in Resident C’s assessment.
(Knotts Dep. Tr. p. 67-69.) Ms. Knotts confirmed during her deposition that she did not tell
anyone else about Ms. Mikan’s medical condition or possible need for FMLA leave after having
exhausted her sick leave and that she would have referred any FMLA issue to Ms. Marville.
(Knotts Dep. Tr. p. 57-58.)
Ms. Mikan described the circumstances surrounding her request for leave during her
deposition as follows:
Q What are you claiming the defendant did wrong?
A Well, I asked for Family Leave, the papers. I had never filled out those papers
before. I didn’t know what it entailed. So I called Marsha [Marville] who was in
HR and she told me she would have to get back to me.
…
Q . . . I want you to tell me everything the defendant did that you claim violated
the Family Medical Leave Act.
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A Well, I asked Marsha [Marville] to tell me what I needed to do and did I need
to come in and she said she would get back to me, and in a matter of time, I’m not
sure what amount of time lapsed, maybe an hour or so, that’s when Kathy Yoho
called me back and said I was terminated....
Q Prior to the occasion you have described for us when you talked to Marsha
[Marville] about the forms, had you ever asked for FMLA before at the Arbors?
A No.
(Mikan Dep. Tr. p. 9-10; 19.) Ms. Mikan further described her conversations with Ms. Knotts:
Q Other than what appears to have been a very brief telephone discussion with
Marsha [Marville], did you talk to anyone else at Arbors about any type of family
or medical leave?
A Vicki Knotts. She was my supervisor. I did mention to her that something
was going on. I wasn’t sure exactly what would transpire, but I was going to the
doctor and they found something and I conveyed that to her.
Q When did you have this conversation with Vicki Knotts?
A I can’t tell you exactly . . . In the month of July is when I was having all of the
tests that were being run, and when I would come to work, I would mention – you
know, because she wasn’t there every day that I worked, but on the days she was
there, I did mention to her that something was happening. At the time, I thought .
. . that [it] would be a matter of a couple days, but as time went on, I found out I
was going to have to have surgery and I didn’t know the date until after the 22nd
of July.
(Mikan Dep. Tr. p. 22-23.) When asked to clarify when she discussed surgery with Ms. Knotts,
Ms. Mikan explained “Not until after I knew, I knew for sure on the 16th [of July] that I would
have surgery, and on the 22nd [of July] his office called me with a date. . . It would have to be
after the 16th . . . after the 16th I knew for sure.” (Mikan Dep. Tr. p.26.) According to Ms.
Mikan’s description of her schedule, it appears that her shift on July 18-19, 2014 was the first
shift she worked after her July 16, 2014 appointment.
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II.
LEGAL STANDARD
Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law.” Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir. 2010). A fact must be
essential to the outcome of a lawsuit to be ‘material.’ Anderson v. Liberty Lobby Inc., 477 U.S.
242, 248 (1986). Summary judgment will be entered when a party fails to make a “showing
sufficient to establish…an element essential to that party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 322-23. “Mere conclusory and unsupported allegations, rooted in speculation, do not
meet [the] burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).
Summary judgment creates a burden-shifting framework. See Anderson, 477 U.S. 250.
The moving party has the initial burden of showing there is no genuine issue of material fact.
Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). Specifically,
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed.R.Civ.P. 56(c)(1).
The burden then shifts to the nonmoving party to prove that there is an issue of material fact
that can be tried. Plant, 212 F.3d at 934. If this burden is not met, the moving party is then
entitled to a judgment as a matter of law. Bell, 351 F.3d at 253. When evaluating a motion for
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summary judgment, the Court construes the evidence and draws all reasonable inferences in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The non-moving party may not simply rely on its pleadings; rather it
must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.1996). A fact is “material” only if its
resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
II.
LAW AND ANALYSIS
The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each
year if, among other things, an employee has a “serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29 U.S.C. §
2612(a)(1)(D). A “serious health condition” is defined as “an illness, injury, impairment, or
physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential
medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. §
2611(11). It is unlawful “for any employer to interfere with, restrain, or deny the exercise of or
attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Employers
who violate § 2615 are “liable to any eligible employee affected” for damages and appropriate
equitable relief. 29 U.S.C. § 2617(a)(1).
Under the Act, employees are required to provide the employer “at least 30 days advance
notice before FMLA leave is to begin if the need for the leave is foreseeable based on . . . [a]
planned medical treatment for a serious health condition.” 29 CFR § 825.302 (a). Employees
are further required under the Act to “consult with the employer and make a reasonable effort to
schedule [their planned medical] treatment so as not to disrupt unduly the employer’s operations,
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subject to approval of the health care provider.” 29 CFR § 825.302(e). Where an employee is
unable to provide the full 30 day notice, notice is required “as soon as is practicable” based on
the circumstances of the individual case. 29 CFR § 825.302 (b). The notice the employee shall
provide should be “at least” “verbal notice sufficient to make the employer aware that the
employee needs FMLA qualifying leave, and the anticipated timing and duration of the leave.”
29 CFR § 825.302 (c). Finally, an employer may require, absent unusual circumstances, that
notice be made in compliance “with the employer’s usual and customary notice and procedural
requirements for requesting leave.” 29 CFR § 825.302(d). These requirements may include
specifying the individual to whom notice must be provided. 29 CFR 825.302 (d)
Employers
may further specify that requests for leave must be made in written notice setting forth the
reasons for requested leave; the anticipated duration of the leave; and the anticipated start of the
leave. 29 CFR § 825.302 (d). Failure to comply with an employer’s requirements may result in
delay or denial of leave under the Act. 29 CFR § 825.302 (d).
Ms. Mikan alleges that the Arbors interfered with her rights under the FMLA by failing
to provide notices required by the Act and by terminating her employment after she made an
FMLA leave request. To succeed in her FMLA-interference claim, Ms. Mikan must demonstrate
that: (1) she was an eligible employee; (2) the defendant was an employer as defined under the
FMLA; (3) she was entitled to leave under the FMLA; (4) she gave the Arbors notice of her
intention to take leave; and (5) the Arbors denied her FMLA benefits to which she was entitled.
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003).
When a request for leave is made, the FMLA requires three specific notices: (1) the
Eligibility Notice, which must be provided, absent extenuating circumstances, within five
business days of an employee request for FMLA leave or an employer acquiring knowledge that
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an employee’s leave may be for an FMLA-qualifying issue; (2) a Rights and Responsibilities
Notice, explaining the specific expectations and obligations of the employee and explaining of
the consequences of a failure to meet the obligations; and (3) a Designation Notice, informing
the employee, within five days, when the employer has enough information to determine whether
leave is FMLA eligible that the leave will be designated and counted as FMLA leave. 29 CFR §
825.300 (b)(1); (c)(1); (d)(1).
Under 29 CFR § 825.300(e) “Failure to follow the notice
requirements set forth in this section may constitute an interference with” an employee’s FMLA
rights. The penalties for failure to notify may include liability “for compensation and benefits
lost by reason of the violation, for other actual monetary losses sustained as a direct result of the
violation, and for appropriate equitable or other relief, including employment, reinstatement,
promotion or any other relief tailored to the harm suffered.” 29 CFR § 825.300(e).
The parties do not dispute the first three elements of the Cavin test. Ms. Mikan appears
to be an eligible employee of an employer covered by the FMLA who may be entitled to FMLA
benefits. The remaining issue is when Ms. Mikan gave notice of her intention to take FMLA
leave and whether the alleged failure to provide notice and subsequent termination of her
employment was in any way an interference with or motivated by her intention to take leave.
With regard to notice, Ms. Mikan argues that her conversations with Ms. Knotts were sufficient
to constitute notice triggering reciprocal responsibilities for notice from the Arbors under the
Act. Taking every word of Ms. Mikan’s deposition testimony on the subject as true, it is clear
that the earliest opportunity on which she could satisfy the notice and timing requirements of the
FMLA under 29 CFR § 825.302 was July 22, 2014, the date on which she learned when her
surgery was scheduled. According to her deposition testimony, until the July 16 she thought she
would only need a couple days leave for a more routine procedure; she learned for the first time
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on July 16 that more extensive surgery would be necessary, but did not know until July 22 when
the surgery would be. (Mikan Dep. Tr. p. 22-24; 26.) Thus, according to 29 CFR § 825.302(c),
Ms. Mikan could provide notice “sufficient to make the employer aware that the employee needs
FMLA qualifying leave” including the “anticipated timing and duration of the leave” only after
she was placed on suspension following the events of her shift on July 18-19. According to her
own testimony, Ms. Mikan then made her request for FMLA paperwork to Ms. Marville on July
28, 2014. Taking Ms. Mikan’s testimony alone, it is clear there was no failure to provide
required notices prior to her first discussion with Ms. Marville concerning FMLA paperwork.
When Ms. Mikan’s testimony is read in the context of Ms. Marville’s, it becomes clear
that the Arbors “usual and customary notice and procedural requirements” for requesting leave
included written notice, as is permitted under the Act. 29 CFR § 825.302(d). During Ms.
Marville’s, deposition she describes a distinction made by the Arbors between requesting FMLA
paperwork and requesting FMLA leave. (Marville Dep. p. 69-73.) Ms. Marville explained that
only after the employee returns the paperwork can she learn what leave the person is actually
requesting, whether it is leave from work or intermittent leave, the duration of the leave, and
other information necessary to process the request. (Marville Dep. p. 69-73.) Ms. Marville
further explained that supervisors would only be informed about an FMLA leave request after
she received the paperwork back from the employee and was able to inform the supervisor when
the employee would be taking leave. (Marville Dep. Tr. p. 82.) Thus, it is clear from the record,
and Ms. Mikan’s own testimony, that Ms. Mikan made no protected, written, FMLA leave
request, including timing and duration pursuant to 29 CFR § 825.302, prior to the termination of
her employment with the Arbors.
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With regard to Ms. Mikan’s allegation that her termination was retaliatory and intended
to interfere with her rights under the FMLA, there is simply no evidence in the record that
supports such a finding. According to the deposition testimony of Ms. Mikan and Ms. Marville,
among others, FMLA requests were a matter of routine at the Arbors, employees regularly took
leave under the Act, and returned from leave without incident. According to the deposition
testimony of those involved in the termination decision, they had no knowledge of a possible
request for FMLA leave and the possibility of such a request was entirely irrelevant to the
termination decision. In the absence of a protected request for leave and any indication that a
potential need for FMLA leave was a factor in the termination decision, Ms. Mikan’s sole
remaining argument is the alleged “suspicious timing” of her termination after her request to Ms.
Marville for FMLA paperwork. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th
Cir.2012).
As Ms. Mikan acknowledges in her brief, any “suspicious timing” must be
accompanied by “some other, independent evidence” because temporal proximity “cannot be the
sole basis for finding pretext.” Id. Construing all evidence in the record in favor of Ms. Mikan,
this record offers no independent evidence of pretext. Accordingly, this Court finds summary
judgment in favor of the Arbors is the only appropriate result.
IV.
CONCLUSION
For the reasons set forth herein, Defendant’s motion for summary judgment is GRANTED.
IT IS SO ORDERED.
/s/ John R. Adams
_______________________
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT
DATED: SEPTEMBER 28, 2016
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