Drew v. Quest Diagnostics, Inc.

Filing 51

OPINION AND ORDER denying 27 Motion for Summary Judgment. The Court schedules a final pretrial conference for 7/19/2012 at 11:00 AM and a three-day jury trial to commence on 8/21/2012. Signed by Judge S Arthur Spiegel on 6/20/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRENDA DREW,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
QUEST DIAGNOSTICS, INC.,
Defendant.

NO. 1:10-CV-00907

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for
Summary Judgment (doc. 27), Plaintiffs’ Response in Opposition
(doc. 33), and Defendants’ Reply (doc. 50).

The Court held a

hearing on Defendant’s motion on May 23, 2012.

For the reasons

indicated herein, the Court DENIES Defendant’s motion.
I.

Background
Plaintiff

Defendant

Quest

Brenda

Drew

Diagnostics,

retaliation (doc. 1).

is

Inc.,

suing

her

alleging

former
FMLA

employer

and

ERISA

Plaintiff had worked for Defendant for

nearly fifteen years, most recently as a phlebotomy supervisor
(Id.).

In Plaintiff’s view, her supervisor repeatedly discouraged

her from taking leave to have a hysterectomy, and then while she
was finally on leave for such surgery, she discovered her fiance
and domestic partner Manji Sambi (“Sambi”) had cancer (Id.).
Plaintiff’s

theory

is

that

Defendant

knew

about

the

health

problems, the FMLA leave that would be necessary, the insurance

costs at stake, and therefore fired her while she was on leave
(Id.).
Defendant moves for summary judgment based on the fact
that it implemented a reduction-in-force (“RIF”) after it lost a
hospital contract, and twenty-one employees were let go (doc. 27).
Defendant contends it applied a neutral RIF procedure that took
into account which employees could be let go based on performance
evaluations and written disciplinary actions (Id.).

Because

Plaintiff had two disciplinary actions within the year prior to the
RIF, Defendant contends it was required by its procedure to include
her in the RIF (Id.).
Plaintiff responds that she was targeted for discipline
so that her file could be “papered,” as within months after she
requested leave for the hysterectomy, her supervisor Donna Bryant
issued Plaintiff’s first disciplinary warning (doc. 33). Plaintiff
contends the fact that Bryant suggested she should borrow a book
called No More Hysterectomies, shows Bryant was against her taking
leave (Id.).

Plaintiff contends Bryant treated her differently

than another employee, Dawn McHolland, with whom Plaintiff had
conflict (Id.).

A few months later, Bryant issued a written

warning to Drew regarding scheduling failures, something that Drew
contends other employees experienced as well, but without warning
(Id.).

In September 2008, she received her last written warning,

stating that Plaintiff disregarded a recent directive regarding

2

staff placements (Id.).

Plaintiff contends she was unaware the

directive was still in effect, and she questions whether it was
legitimate (Id.).
In December 2008 Jennifer Lamb, senior human resources
generalist, and Bryant, informed Plaintiff of her termination,
while she was still on FMLA leave (Id.).

They also expressed that

the termination might be a “blessing in disguise,” as Plaintiff
would have more time to take care of Sambi, and Plaintiff would not
be able to give 100% to her job anyway (Id.).
Plaintiff contends she can establish a prima facie FMLA
retaliation case simply because she was on FMLA leave when she was
fired (Id.).

She also contends the statements relating to her

being able to take care of her fiance show direct evidence she was
being retaliated against due to FMLA leave (Id.).

She further

contends she can establish her case by indirect evidence because of
the temporal proximity between her termination and her leave, which
shows causation (Id.).

Plaintiff contends a jury could find the

RIF to be pretext, because the underlying disciplinary documents
had no valid basis (Id.).

Moreover, in her view, each discipline

could constitute pretext for retaliation (Id.). Plaintiff contends
another similarly-situated employee, Barb Beyersdoerfer, received
discipline from Bryant in the relevant time-period of 2008 which
was not taken account of in the RIF (Id.)

Finally, Plaintiff

contends she can establish ERISA retaliation because she was

3

terminated only a few weeks after she learned of Sambi’s diagnosis
(Id.).

In her view, the same reasoning applies in the context of

such claim to show that the RIF was pretext, and her ERISA
retaliation claim should survive (Id.).
Defendant contends in reply there is no direct evidence
of retaliation because the facts show Bryant only learned of
Sambi’s diagnosis during the conference call in which she and Lamb
informed Plaintiff she was being terminated (doc. 50).

Defendant

contends it is only speculation to contend that because other
employees knew about the diagnosis, Bryant must have as well (Id.).
Even if Bryant did know, Defendant contends such remarks were
ambiguous and cannot constitute direct evidence of animus (Id.).
Defendant further contends that because the Sixth Circuit
has adopted the “honest belief” rule, and it is undisputed that it
relied on a neutral RIF policy in determining who to let go (Id.).
Thus Defendant reasons, when Director Michael Fuller and Jennifer
Lamb made the termination decision, they did so based on an honest
belief that Plaintiff’s disciplinary record qualified her for
termination (Id.). Morever, Defendant reasons that the person with
alleged FMLA animus, Plaintiff’s supervisor Bryant, was not even
involved with the RIF process (Id.).

Defendant contends it is

only speculation to contend that Plaintiff’s discipline was linked
to FMLA animus because she had never requested leave prior to such
discipline, and such discipline was in fact motivated by the

4

Director Fuller, who encouraged Bryant to be tougher on Plaintiff
because Plaintiff was a mediocre performer (Id.).
Defendant

contends

there

can

be

no

ERISA

violation

Finally,
because

Plaintiff could only identify Sambi’s life insurance as the benefit
she was allegedly deprived, and evidence shows it is still in full
force and effect (Id.).
II. Applicable Legal Standard
Although a grant of summary judgment is not a substitute
for trial, it is appropriate “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 a
judgment as a matter of law.”

Fed. R. Civ. P. 56; see also, e.g.,

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).

In reviewing the instant motion, “this Court must

determine 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.”

Patton v. Bearden, 8

F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks
omitted).

5

The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.

First, “a party

seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact [.]”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).

The movant may do so by

merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced

with

such

a

motion,

the

non-movant,

after

completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the
motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
of that material fact.

See Celotex, 477 U.S. at 317; Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986).

As the “requirement [of

the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary

6

matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-248 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d

1304,

1310

(6th

Cir.

1989).

Furthermore,

“[t]he

mere

existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).

Accordingly, the non-movant must present

“significant probative evidence” demonstrating that “there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits.

Moore v.

Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, “the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies.” Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989) (internal quotation marks omitted).

In contrast, mere

conclusory allegations are patently insufficient to defeat a motion
for summary judgment.

See McDonald v. Union Camp Corp., 898 F.2d

1155, 1162 (6th Cir. 1990).

The Court must view all submitted

7

evidence,

facts,

and

reasonable

inferences

in

a

light

most

favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.

See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating

that no material facts are in dispute. See Matsushita, 475 U.S. at
587.

The fact that the non-moving party fails to respond to the

motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.

See

Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455
(6th Cir. 1991).
III. Analysis
There is no dispute that Plaintiff was on FMLA leave at
the time of her termination, and as such, the basic issue as to her
retaliation claim is whether a reasonable jury could find a causal
connection between her leave and her termination.1
1

Plaintiff

A Plaintiff can establish a prima facie case for FMLA
retaliation by showing 1) she engaged in an activity protected by
the FMLA, 2) the employer knew she was exercising FMLA rights, 3)
after learning of the employee’s exercise of FMLA rights, the
employer took an adverse action against the employee, and 4) a
causal connection exists between the protected FMLA activity and
the adverse employment action. Killian v. Yorozu Auto. Tenn.,
Inc., 454 F.3d 549, 556 (6th Cir. 2006). There is no dispute as
to the first three prongs of Plaintiff’s case.
8

asserts

that

she

can

proffer

both

direct

evidence to show such causal connection.

and

circumstantial

The Court will examine

Plaintiff’s claims seriatum.
A.

Direct Evidence
Direct evidence of interference occurs when either the

decision-maker or an employee who influenced the decision-maker
made discriminatory comments related to the employment action in
question.

See Reeves v. Sanderson Plumbing, 530 U.S. 133, 152

(2000), Ross v. Campbell Soup Co., 237 F.3d 701, 707-08 (6th Cir.
2001).
the

Direct evidence is “evidence which, if believed, requires

conclusion

that

unlawful

discrimination

motivating factor in the employer’s actions.”

was

at

least

a

Weberg v. Franks,

229 F.3d 514, 522 (6th Cir. 2000)(citations omitted), Lautner v.
American Tel. and Tel. Co., 1997 U.S. App. LEXIS 1267, No. 953756,(6th Cir. Jan. 22, 1997)(Direct evidence is "is evidence which
if believed, would prove the existence of a fact . . . without any
inferences or presumptions.")
Here, Plaintiff contends Bryant’s comments that Plaintiff
would not be able to give 100% due to Sambi’s diagnosis, and her
comments that Plaintiff’s termination would allow Plaintiff to
attend Sambi’s doctor appointments constitute direct evidence of
FMLA retaliation.

The Court disagrees.

Direct evidence

requires no inferences, and these comments would require the factfinder to infer Bryant made such statements while considering

9

future FMLA leave.
necessarily so.

Such statements could reflect animus, but not

The idea that such a diagnosis would be stressful

on an employee, and the idea that the employee would need time to
take care of her spouse, do not necessarily translate into direct
evidence of animus toward FMLA leave.
B.

Indirect Evidence
The McDonnell Douglas burden shifting analysis applies to

Plaintiff’s circumstantial evidence theory in support of her FMLA
retaliation claim.

Skrjanc v. Great Lakes Power Serv. Co., 272

F.3d 309, 315-16 (6th Cir. 2001).

As such, after Plaintiff

establishes her prima facie case, the burden shifts to Defendant to
proffer
action.

a

legitimate
Then,

Defendant’s

the

nondiscriminatory
burden

justification

shifts
is

back

merely

justification
to

Plaintiff

pretext

for

for

its

to

show

unlawful

retaliation.
At the hearing Defendant reiterated its position that
Plaintiff’s termination was simply the product of a neutral RIF.
Plaintiff, however, contended there is an issue of fact as to
whether Bryant acted with discriminatory animus, as evidenced by
her requests that Plaintiff delay her leave, her suggestion that
Plaintiff read the book No More Hysterectomies, and her issuing of
discipline to Plaintiff, who had never been disciplined previously
during fourteen years of employment. In Plaintiff’s view, although
the RIF may have appeared to be neutral, it was in fact tainted by

10

Bryant’s illegitimate discipline of Plaintiff.
Plaintiff relies on

Cutcher v. Kmart Corp., 364 Fed.

Appx. 183 (6th Cir. 2010), in which the Sixth Circuit reversed a
grant of summary judgment as to a claim for FMLA interference. The
appellate court found a question of fact for the jury where an
evaluation use!d to calculate a RIF score appeared to take into
account the plaintiff’s leave.

364 Fed. Appx. 189.

In such an

instance, the court reasoned, a reasonable juror could find that
plaintiff’s leave was a factor in her termination.

Id.

Plaintiff argues the same reasoning applies here, as
Bryant’s discipline of Plaintiff entered into the RIF, while
Bryant’s discipline of Beyersdoerfer did not.

As such, Plaintiff

contends she can show she was treated differently than a similarlysituated

employee

who

did

not

take

FMLA

leave.

Moreover,

Plaintiff argues that Bryant’s remarks upon Plaintiff’s termination
that Plaintiff would not be able to give one hundred percent, could
be found by a reasonable jury to show Bryant harboured retaliatory
animus toward anticipated future leave.

Defendant replied Bryant

would have to have been clairvoyant to foresee the RIF when she
issued Plaintiff’s discipline, because the discipline occurred
prior to Defendant’s loss of its contract with the Health Alliance.
Moreover, Defendant contended Plaintiff fails to account for the
fact that Mr. Fuller started as a supervisor in fall 2007 and
encouraged Bryant to do a better job disciplining her staff.

11

As a final matter, Plaintiff argued that Defendant failed
to comply with its own policies by not offering Plaintiff another
open position at the time of the RIF.

Defendant replied that

Plaintiff had access to the website announcing positions, and
simply did not apply for them.
Having

reviewed

this

matter,

the

Court

finds

that

Plaintiff has established a prima facie case for FMLA retaliation.2
She was terminated during her FMLA leave, thus showing temporal
proximity between the leave and the discharge.

Moreover, a

reasonsable jury could view Bryant’s repeated remarks to Plaintiff
that it was a bad time to take leave, and her suggestion regarding
the anti-hysterectomy book, as additional evidence in favor of
Plaintiff’s view.

As such, the analysis shifts to Defendant’s

RIF, and whether it can constitute a legitimate non-discriminatory
justification for Plaintiff’s termination.

The Court finds enough

factual questions raised in this case regarding the legitimacy of
the discipline underlying Plaintiff’s RIF score, especially the

2

The Court further finds no real question that Plaintiff has
proffered adequate evidence in support of her parallel FMLA
interference claim, which requires her to demonstrate 1) she was
an eligible employee, 2) she was entitled to leave under the
FMLA, 3) she provided adequate notice of her intention to take
leave, and 4) Defendant denied her FMLA benefits to which she was
entitled. Cavin v. Honda of America Mfg. Inc., 346 F.3d 713, 719
(6th Cir. 2003). A reasonable jury could find the facts that
Drew repeatedly told Plaintiff it was not a good time to take
leave, and that Defendant refused to take her back after she was
able to return to work, as evidence that Plaintiff suffered FMLA
interference.
12

fact that another employee’s discipline in the relevant time-period
was not considered in the calculation, such that a jury could find
the RIF analysis flawed.

The Court agrees with Plaintiff that she

need not establish that the RIF itself was pretextual, but that a
reasonable

jury

could

documents were.

conclude

the

underlying

disciplinary

Of course, a jury could also conclude the

discipline was as a result of Fuller’s direction.

However, the

question of fact as to what motivated the discipline is one for the
jury. Accordingly, there are jury questions as to Plaintiff’s FMLA
claims which preclude summary judgment.
C.

Plaintiff’s ERISA Claim
In addition to her FMLA claims, Plaintiff contends her

termination

also

amounts

to

a

violation

of

the

Employment

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140.

Under

such Act, “It shall be unlawful for any person to discharge. . .a
participant. . .for the purpose of interfering with the attainment
of any right to which such participant may become entitled under
the plan,. . .”

29 U.S.C. § 1140.

Defendant contends Plaintiff’s ERISA claim should fail
because in her deposition Plaintiff stated that the employee health
benefits

referred

to

in

her

Complaint

husband’s life insurance policy (doc. 27).

only

referred

to

her

Because Defendant has

proffered evidence that such life insurance policy remained in full
force and effect, it argues the Court should dismiss the ERISA

13

claim (Id.).
Plaintiff

responds

that

as

a

layperson

she

is

not

required to have the legal knowledge required to establish the
basis for an ERISA violation, such that Defendant’s attempt to
limit such claim to life insurance is not well-grounded. Plaintiff
argues the fact of the timing of her termination in relation to her
husband’s cancer diagnosis could be found to support a theory that
interference with health care benefits was at least a motivating
factor

in

the

termination.

The

Court

agrees,

and

denies

Defendant’s attack of Plaintiff’s ERISA claim.
IV.

Conclusion
Taking all submitted evidence, facts, and reasonable

inferences in a light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986), the Court concludes that a reasonable jury could find
a sufficient factual basis to support Plaintiff’s theory that her
termination was the product of unlawful animus toward Family and
Medical Leave Act leave.

The Court further finds that a jury

could find the timing of her termination, within only weeks of the
cancer diagnosis of her husband, to evidence Defendant’s intent to
interfere with health care benefits in violation of the Employee
Retirement Income Security Act, 29 U.S.C. § 1140. Accordingly, the
Court DENIES Defendant’s Motion for Summary Judgment (doc. 27),
SCHEDULES a final pretrial conference for 11:00 A.M. on July 19,

14

2012, and SETS the three-day jury trial to commence on August 21,
2012.

SO ORDERED.
Dated: June 20, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

15