Johnson v. Volvo Parts North America et al
Filing
33
OPINION AND ORDER denying 27 Motion for Summary Judgment. Signed by Magistrate Judge Terence P Kemp on 04/14/2011. (sr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Johnson,
:
Plaintiff,
:
v.
:
:
Volvo Parts North America,
et al.,
Defendants.
Case No. 2:09-cv-0917
Magistrate Judge Kemp
:
OPINION AND ORDER
Defendant Volvo Parts North America (“Volvo") has filed a
motion for summary judgment on plaintiff John Johnson’s amended
complaint for unlawful retaliation in violation of the Family and
Medical Leave Act (“FMLA”).
Mr. Johnson opposes the motion.
For
the following reasons, because a reasonable trier of fact could
decide this case in Mr. Johnson’s favor, the Court will deny the
motion (#27).
I. Factual Background
The Court draws on the parties’ summary judgment filings and
the attachments to them, including depositions and affidavits,
for this statement of facts.
As discussed in the following
section, because the case is before the Court by way of Volvo’s
summary judgment motion, the Court is required to view the facts
in the light most favorable to Mr. Johnson, the non-moving party.
Mr. Johnson is a warehouse worker.
at Volvo in October 1997.
He began his employment
He was trained on all the different
machinery in the warehouse and for the first several years
primarily drove a sit-down forklift.
During his last two or
three years at Volvo, he operated a stand-up forklift commonly
known as a reach truck.
When a third-shift position opened in
2005, he successfully bid on it so he could be home during the
day while his wife attended nursing school.
Neil Morey was his
supervisor for nearly the entire time he worked third shift.
Dr. Gerald French has been Mr. Johnson’s physician for more
than twenty years.
In 1999, Dr. French first diagnosed Mr.
Johnson as suffering from anxiety and depression.
Based on that
diagnosis, Dr. French certified Mr. Johnson’s need for
intermittent leave under the FMLA.
For the next several years,
Mr. Johnson exercised his right to FMLA leave on a regular basis.
Volvo fired Mr. Johnson in 2005, claiming that he had
fraudulently taken FMLA leave.
At least according to Volvo, that
decision was made after Mr. Johnson was seen eating at a
restaurant while on leave.
Volvo claimed that someone who needed
to take a day off work due to depression and anxiety could not
have been well enough to eat at a restaurant.
Mr. Johnson’s
union filed a grievance on his behalf, and eventually Volvo
reinstated him with back pay.
On January 17, 2007, Mr. Johnson participated in a meeting
designed to address certain issues which had arisen with his
work.
Although Mr. Johnson could not recall what precipitated
the meeting, according to Elaine Wise, the Director of Operations
for Volvo Parts North America, he had been sent home the previous
day for behaving irrationally at work.
At the meeting, Volvo had
Mr. Johnson sign a document entitled “Conditions of Continued
Employment for John M. Johnson.”
In that document, Mr. Johnson
agreed to participate in the company-sponsored Employee
Assistance Program and to follow the EAP counselor’s recommended
treatment program.
Volvo agreed to pay Mr. Johnson for the
balance of his shift on January 16, 2007, and January 17, 2007,
and up to two additional workdays if the counselor determined at
his initial appointment that he was fit for duty.
The document
further stated that Mr. Johnson’s failure to comply with any of
the conditions would result in his termination.
Deposition Exhibit F).
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(Johnson
According to Mr. Johnson’s affidavit, which is attached to
his response (#28) to the summary judgment motion, in March 2007,
Volvo again tried to fire him for FMLA fraud.
on March 14, 2007.
A hearing was held
Mr. Johnson states that “[t]he evidence
adduced at the hearing clearly revealed that I did not use FMLA
leave on November 26, 2006,” which was apparently the date on
which Volvo claimed he took such leave improperly, and that “the
suggestion that I fraudulently claimed FMLA leave was nothing but
wishful thinking on [Volvo’s] part.”
On March 1, 2007, a female co-worker named Donna Pack
apparently claimed that Mr. Johnson drove his reach truck toward
her.
In his affidavit and his deposition, Mr. Johnson denied
this incident ever occurred.
In fact, he stated that if Ms. Pack
had made this allegation, that would have constituted a violation
of Volvo’s work rule 13 (which Volvo later relied on in
terminating Mr. Johnson) because the statement was false and
disparaging.
Volvo apparently met with Mr. Johnson and his union
representative on March 6, 2009, and asked for an extension of
the disciplinary hearing on this charge so it could finish its
investigation.
The union refused to agree, so the matter ended
without Mr. Johnson’s receiving any formal discipline.
However,
Estella Blake, Volvo’s human resources manager, sent him a
memorandum dated March 9, 2007, which stated, in part, “This is
to notify you that moving, any future violation of work rule 13,
will result in discipline for you up to and including immediate
termination.”
(Johnson affidavit, Exhibit A-2).
Work rule 13,
which was shown to Mr. Johnson at his deposition (Exhibit H),
addresses “Verbal or Written Harassment, Intimidation and/or
False Statements, Abuse Language” and includes in its description
of prohibited actions the “[p]ublishing of false, vicious or
malicious statement concerning any co-worker ....”
The
punishment for a violation of that rule is described as “Verbal
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Reprimand to Discharge.”
On April 1, 2007, Mr. Johnson received two written warnings
based on violations of rule 13 which allegedly happened on March
21, 2007.
See Johnson deposition Exhibits J and K.
Mr. Johnson
was accused of harassing Wes Kellogg, a supervisor, and
harassing and making false statements concerning John Woods,
another employee.
Mr. Johnson denied in his deposition
committing either of these infractions, stating that he never
spoke to Mr. Woods at all on that day, and that the only word he
said to Mr. Kellogg was “damn,” a comment he made in response to
Mr. Kellogg’s asking him “What the F are you looking at?”
On July 25, 2007, according to Mr. Johnson, a co-worker,
Brad McNichols, almost ran into him with a reach truck.
Mr.
Johnson shouted “near miss” and asked a co-worker, Shay Hamper,
if he had seen the incident.
Mr. Johnson testified in his
deposition Mr. McNichols had been harassing him for years and had
once threatened to “kick his ass.”
After the incident with the
reach truck, Mr. Johnson immediately complained to his
supervisor, Mr. Morey, whom he believed to be a friend of Mr.
McNichols; Mr. Morey told him that it was “probably just a close
call.”
See Johnson affidavit, ¶21.
He also informed another
supervisor, Gary Pendergast, of the near miss and left a voicemail message for Ms. Blake, the HR director, before he left the
warehouse.
When Ms. Blake did not promptly return his call, he
left a second voice mail from home.
He then went to sleep.
After Mr. Johnson went to sleep, his wife called Ms. Blake and
was able to speak with her about the incident.
she would look into it.
calling the police.
Ms. Blake said
There was also a discussion about
In his deposition, Mr. Johnson stated that
Ms. Blake had said that it was “within your rights” to do so.
Because they believed that Volvo’s human resources
department had not been much help with such incidents in the
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past, Mr. and Mrs. Johnson called Eric Griffin, a detective with
the Delaware County Sheriff’s Office and an acquaintance of Mrs.
Johnson’s.
Based on Detective Griffin’s advice, Mr. Johnson
filed an incident report with the sheriff’s office.
He believed
at the time, based on what the detective told him, that the
Sheriff’s office would probably not undertake an actual
investigation of his complaint.
By the time Mr. Johnson reported to work on August 2, 2007,
the Sheriff’s office had already interviewed certain Volvo
employees and supervisors at the warehouse.
After conducting
this investigation, the Sheriff’s office forwarded a report to
the Delaware County Prosecutor’s Office.
On October 10, 2007,
the investigating officer, John Harrington, received a letter
from the prosecutor’s office informing him that the case would
not be presented to the grand jury.
Mr. Johnson received a
similar letter from the prosecutor’s office shortly before that
date.
As a result of the decision not to prosecute, the
Sheriff’s office closed the case.
At his deposition, Mr. Johnson testified that on the morning
of October 16, 2007, Mr. Morey, his supervisor, approached him
and said, “Come on with me.”
Mr. Johnson was led to Ms. Blake’s
office in the HR department.
Ms. Blake asked him about the July
25, 2007 incident.
facts.
Mr. Johnson gave her his version of the
She then asked him to step outside the room.
When he
came back into the room, Mr. Morey stated, “There is nothing else
to do with you, John, but to terminate you.”
Mr. Morey then
signed paperwork (which appears to have been prepared before the
meeting) indicating that Mr. Johnson was discharged for violating
work rule 13, specifically “publishing of false, vicious or
malicious statements concerning any co-worker, management or the
company and its products.”
No mention was made of the fact that
the prosecutor’s office had decided not to pursue the case.
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Mr.
Johnson had taken FMLA leave the previous day after an extended
period of not taking such leave, but that was not mentioned at
the meeting.
Mr. Johnson filed a grievance through the union to contest
his termination.
In his deposition, he testified that his story
concerning the near miss was subsequently verified by the union
and the company during the arbitration process.
However, on
December 21, 2007, Rick Nye, the union president, sent plaintiff
a letter advising him that the union had decided not to advance
the grievance to arbitration.
The letter said that the union
lacked the credible evidence and witnesses needed to present his
case to arbitration.
Mr. Johnson testified that the union’s
decision not to arbitrate resulted from financial considerations
because it would have had to front the money to fight his
termination.
On October 15, 2009, Mr. Johnson commenced this
civil action seeking back pay, attorney’s fees, costs,
reinstatement or front pay, liquidated damages, and any other
relief afforded by the FMLA.
II. Summary Judgment Standard
Summary judgment is not a substitute for a trial when facts
material to the Court's ultimate resolution of the case
are in dispute.
It may be rendered only when appropriate
evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).
The moving party bears the burden of demonstrating
that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party.
(1970).
Adickes v. S.H. Kress & Co., 398 U.S. 144
Additionally, the Court must draw all reasonable
inferences from that evidence in favor of the nonmoving party.
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United States v. Diebold, Inc., 369 U.S. 654 (1962).
The
nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on which
that party 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 Corp. v. Catrett, 477 U.S.
317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Of course, since "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, 477 U.S. at 323, the
responding party is only required to respond to those issues
clearly identified by the moving party as being subject to the
motion.
It is with these standards in mind that the instant
motion must be decided.
III. Legal Analysis
The FMLA entitles an eligible employee to take up to twelve
weeks of leave during any twelve-month period for a variety of
reasons, including “a serious health condition that makes the
employee unable to perform the functions of the position of such
employee.”
Arban v. West Pub. Corp., 345 F.3d 390, 400 (6th Cir.
2003)(quoting 29 U.S.C. §2612(a)(1)(D)).
The parties do not
dispute that Volvo is a covered employer under the FMLA and that
Mr. Johnson’s depression and anxiety are serious health
conditions under the statute.
See 29 U.S.C. §2611(11)(“The term
‘serious health condition’ means an illness, injury, impairment,
or physical or mental condition that involves ... continuing care
by a health care provider”).
Under 29 U.S.C. §2615, a covered employer is prohibited both
from interfering with, restraining, or denying the exercise of
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its employees’ rights to family and medical leave and from
discharging or otherwise retaliating or discriminating against
such employees’ for opposing unlawful practices under the FMLA.
Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir. 2006).
Thus, there are two distinct theories of recovery on FMLA claims:
(1) the “entitlement” or “interference” theory and (2) the
“retaliation” or “discrimination” theory.
Arban, 345 F.3d at
400-01.
It is evident from both Mr. Johnson’s original complaint and
his amended complaint that he is proceeding under a retaliation
theory.
In its summary judgment motion, however, Volvo posits
that Mr. Johnson has pleaded separate claims under 29 U.S.C.
§2615(a)(1) and 29 U.S.C. §2614(a)(1)(A).
Based on that
assumption, it argues that Mr. Johnson cannot make out a prima
facie case of FMLA interference.
In his memorandum in
opposition, Mr. Johnson contends that he does, in fact, have an
interference claim based on Volvo’s “clear interference” with his
right to return to work and be restored to his former position.
It is apparent, however, that the reason Mr. Johnson is not being
restored to his previous position is because Volvo discharged him
allegedly in retaliation for using FMLA leave.
The Court’s
analysis will therefore focus on that single claim.
Volvo denies that Mr. Johnson was discharged in retaliation
for exercising his rights under the FMLA and argues that the real
reason that it fired him is that he violated work rule 13.
It is
true, as Volvo asserts, that it did not cite his use of FMLA
leave as a reason for the termination.
That is true in most FMLA
cases that get this far in litigation, however, and, as in most
cases, the question here is whether there is enough
circumstantial evidence of retaliation to allow a jury to find
that Volvo fired Mr. Johnson because he had been a frequent user
of FMLA leave.
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A. The Prima Facie Case
Because Mr. Johnson is attempting to prove a FMLA violation
with indirect evidence, the burden-shifting approach established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
applies.
See Skrjanc v. Great Lakes Power Service Co., 272 F.3d
309, 315 (6th Cir. 2001).
Under this analysis, Mr. Johnson must
first establish a prima facie case of retaliation in violation of
the FMLA.
To do this, Mr. Johnson must demonstrate (or at least
present facts from which a trier of fact could reasonably infer)
that (1) he availed herself of a protected right under the FMLA;
(2) he suffered an adverse employment action; and (3) that a
causal connection exists between the adverse employment action
and the exercise of his rights under the FMLA.
443 F.3d at 508; Skrjanc, 272 F.3d at 314.
See, e.g., Edgar,
If Mr. Johnson
satisfies these three requirements, then the burden shifts to
Volvo to proffer a legitimate, nondiscriminatory rationale for
the adverse job actions.
Id.
Once Volvo does this, the burden
shifts back to Mr. Johnson to prove (or, in the summary judgment
context, adduce facts from which a reasonable person could
conclude) that the articulated reason is in reality a pretext to
mask discrimination.
See Skrjanc, 272 F.3d at 315.
There is no dispute that by qualifying for and using FMLA
leave, Mr. Johnson availed himself of a protected right under the
FMLA.
There is also no dispute that being fired is an adverse
employment action.
Accordingly, Mr. Johnson easily satisfies the
first two requirements of a prima facie case.
The parties
disagree, however, as to whether Mr. Johnson has come forward
with
evidence from which a trier of fact could reasonably infer
a causal connection between his being fired and his exercise of
his right to take FMLA leave.
A causal connection may be established either through direct
evidence or knowledge coupled with a closeness in time that
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creates an inference of causation.
See Wrenn v. Gould, 808 F.2d
493, 501 (6th Cir. 1987)(citing Burrus v. United Telephone Co.,
683 F.2d 339, 342 (10th Cir. 1982)).
To show a causal link
between protected activity and adverse employment action, a
plaintiff must demonstrate that use of FMLA leave was a
“significant factor” motivating the employer’s adverse employment
action.
Dage v. Time Warner Cable, 395 F.Supp. 668, 675 (S.D.
Ohio 2005): see also Allen v. Dept. of Corrections, 165 F.3d 405,
413 (6th Cir. 1999)(to show a causal connection, a plaintiff must
produce evidence to support an inference that adverse employment
action was related to protected activity).
“Although no one
factor is dispositive in establishing a causal connection,
evidence that the defendant treated the plaintiff differently
from identically situated employees or that the adverse action
was taken shortly after the plaintiff’s exercise of protected
rights is relevant to causation.”
Id.
However, temporal
proximity alone is insufficient to support an inference of
causation in a case where retaliatory discrimination is alleged.
Nguyen v. City of Cleveland, 229 F.3d 559, 563-66 (6th Cir.
2000).
Mr. Johnson contends both that he was treated differently
from similarly-situated employees and that his termination
occurred one day after he took FMLA leave.
The Court will first
examine the temporal proximity issue.
Mr. Johnson argues that when Volvo decided to terminate him
on October 16, 2007, it knew that he had used FMLA the previous
day, and it was also aware he had frequently used such leave in
the past and was looking for any excuse to terminate his
employment.
In her affidavit executed on January 6, 2011, Elaine
Wise, Volvo’s director of operations, acknowledges both that Mr.
Johnson used FMLA leave on October 15, 2007 and that he had used
35 days of FMLA leave between June and October, 2007.
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There is
also evidence in the record that Mr. Johnson was terminated once
before, and then reinstated, for using FMLA leave; that Volvo
tried unsuccessfully to discipline him in March, 2007, for
fraudulent use of FMLA leave (which was based on an unfounded
factual assertion about his use of leave on November 26, 2006);
that it attempted to discipline him in March, 2007, for an
incident that, according to his testimony, never occurred; and
that it issued two written disciplinary actions against him in
April, 2007, again based on events that did not take place.
This
sequence of events, interspersed with Mr. Johnson’s continued use
of FMLA leave, could lead a reasonable juror to conclude that
there was not simply a temporal relationship between the
termination and Mr. Johnson’s use of FMLA leave, but a causal one
as well.
This conclusion is reinforced by the evidence about how
Volvo allegedly treated other employees under its “false, vicious
or malicious” statement policy.
According to Mr. Johnson,
the
most glaring example of disparate treatment occurred when Volvo
issued its finding that he violated work rules on March 1, 2007,
following its investigation of a female co-worker’s complaint
that he had driven a reach truck toward her.
He contrasts
Volvo’s handling of that incident with its reaction to his
similar complaint that Mr. McNichols almost hit him with a reach
truck on July 25, 2007, the incident which led to his
termination.
In the first instance, despite the absence of a
hearing, Volvo credited the other employee’s statement and warned
Mr. Johnson that further violations of work rules would lead to
his discipline, and perhaps even to his being fired, whereas in
the second instance, Volvo found Mr. Johnson to have lied about
the incident and then fired him.
He also points to other
incidents which show that his complaints were rarely taken
seriously or investigated, while every minor complaint directed
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toward him became a major issue.
To be “similarly situated” in the context of employee
discipline, the individual or individuals with whom a plaintiff
seeks to compare her treatment must be nearly identical in all
relevant aspects.
Noble v. Brinker Int’l, Inc., 391 F.3d 715,
728-29 (6th Cir. 2004)(internal citations and quotation marks
omitted).
This means that the plaintiff and any other non-
protected employee “must have dealt with the same supervisor,
have been subject to the same standards and have engaged in the
same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the
employer’s treatment of them for it.”
Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992).
Construing all inferences in Mr. Johnson’s favor, it can be
inferred that the same group of supervisors and HR personnel were
involved in the various disciplinary incidents involving Mr.
Johnson and other Volvo employees.
It also appears undisputed
that each was subject to the same standards, including work rule
13.
Thus, the question is whether Volvo’s conduct in response to
the various complaints made either by or about Mr. Johnson shows
that he was treated differently for no apparent reason, a
conclusion which would support the inference that a causal
connection existed between his use of FMLA leave (which
distinguished him from these other employees) and Volvo’s
decision to fire him.
The crux of Mr. Johnson’s argument involves the similarity
between Donna Pack’s complaint that he drove his reach truck
toward her and his complaint that Mr. McNichols nearly hit him
with a reach truck.
Ms. Pack was not disciplined for making her
complaint, which Mr. Johnson claims was false, but when Mr.
Johnson complained about an event which actually happened, he was
fired.
The question is whether a jury could reasonably find that
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the two employees engaged in the same conduct and, if so, that
there are no differentiating or mitigating circumstances which
would distinguish their conduct or Volvo’s treatment of them.
These events are not identical in all respects.
Ms. Pack
did not file a complaint with the Sheriff’s office about the
incident in which she was involved.
However, under work rule 13,
it appears not to matter to whom the false or malicious statement
is directed, only that it be about a co-worker.
Thus, both she
and Mr. Johnson made the same complaint; the difference was that
in one case, he was the alleged perpetrator, and in the other,
the alleged victim.
There are facts from which the jury could
conclude that Mr. Johnson’s version of both events were true, yet
Volvo not only disciplined him when it did not discipline Ms.
Pack, but it disciplined him on both occasions.
Although there
is some evidence from which the trier of fact could find that, in
both cases, Volvo believed it had discovered the true version of
events, and that in both cases it was Mr. Johnson who violated
work rules, that evidence is in dispute and the jury would not
have to credit it.
Thus, there is a factual dispute about
whether Mr. Johnson was treated differently from others who found
themselves in a materially indistinguishable situation.
The evidence that Mr. Johnson was the subject of other
harassment, and that all of his complaints about that conduct
were also disregarded and no one was investigated or disciplined,
strengthens the inference that he was being singled out for
different treatment in the workplace.
Certainly, from this
record, a jury could infer that had a co-worker complained that
Mr. Johnson engaged in conduct such as putting grease on another
employee’s reach truck, spitting on someone’s car window or
tampering with someone’s work equipment, he would have been
investigated and perhaps disciplined or fired.
Again, the jury
might reach a different conclusion, but that only highlights the
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fact that there are genuine issues here for the jury to resolve.
Consequently, the Court finds that Mr. Johnson has come forward
with enough evidence on the “causal connection” element of the
prima facie case to withstand summary judgment, and to require
Volvo to come forward with a legitimate nondiscriminatory reason
for firing him.
B. The Nondiscriminatory Reason and the Pretext Analysis
At the “legitimate nondiscriminatory reason” step of the
analysis, Volvo bears only the burden of production, not the
burden of persuasion.
Put simply, in order to create an
obligation on Mr. Johnson’s part to produce evidence beyond that
needed to prove a prima facie case, Volvo must simply articulate
a “valid rationale” for firing Mr. Johnson.
F.3d 795, 800 (6th Cir. 1996).
Hartsel v. Keys, 87
It has done so by referring to
his alleged violation of rule 13, and that is enough to satisfy
its burden.
It then becomes Mr. Johnson’s obligation to show
that a jury could find that reason to be a pretext for
discrimination.
In order for Mr. Johnson to demonstrate that Volvo’s
rationale is in reality a pretext for discrimination, he may
establish that the reasons given have no basis in fact, did not
motivate the discharge, or were insufficient to warrant
discharge.
Wexler v. White’s Fine Furniture, 317 F.3d 564, 576
(6th Cir. 2003).
Mr. Johnson may also meet his burden by showing
that Volvo’s reason for discharge was not credible.
Peters v.
Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002).
Successfully demonstrating that Volvo’s proffered reasons are a
pretext for discrimination only permits, but does not compel, the
Court to find discriminatory intent, which is Mr. Johnson’s
ultimate burden of persuasion, St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 510-11 (1993), but it is enough for him to get past
the summary judgment stage.
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Here, much of the evidence discussed above is directly
relevant to the analysis of this issue.
From that evidence, a
jury could find that Mr. Johnson did not make a malicious,
vicious or false statement about nearly being struck by a reach
truck, but that he was nonetheless fired for that reason.
Although Volvo appears to agree that there may be a factual
dispute about whether Mr. Johnson actually violated work rule 13,
it argues that it believed he had done so, and that a good faith
(but mistaken) belief that a work rule had been violated is
enough to prevent the stated reason for his firing to be deemed
pretextual.
The Court of Appeals explained this concept well in
Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008).
There, an employee was fired for allegedly improperly disclosing
confidential documents to her attorneys.
She claimed that the
disclosure was not only permitted but actually required by her
employer’s written policies.
The court held that whether she was
correct or not was ultimately irrelevant to the question of
whether she had been fired for a legitimate, nondiscriminatory
reason because she “failed to show the presence of a genuine
issue of material fact regarding [her employer’s] honest belief
that she had violated the company's privacy policy.”
Quoting
from a prior decision, Majewski v. Auto. Data Processing, Inc.,
274 F.3d 1106, 1117 (6th Cir. 2001), the court noted that “‘[A]s
long as an employer has an honest belief in its proffered
nondiscriminatory reason for discharging an employee, the
employee cannot establish that the reason was pretextual simply
because it is ultimately shown to be incorrect.’”
Consequently,
where the decision-maker testifies that he or she honestly
believed that the fired employee did something which justified
that firing, and the employee does not come forward with any
evidence to rebut that testimony, summary judgment in the
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employer’s favor must be granted even if the event that led to
the firing did not actually occur.
The fact that the county prosecutor decided not to press
charges could be considered as some evidence that Mr. Johnson’s
complaint was false.
However, it is a matter of common knowledge
that prosecutors decide not to pursue criminal sanctions against
alleged perpetrators of crimes for various reasons, only one of
which is that the complaining witness lied about what occurred.
In fact, it would have been somewhat unusual for criminal charges
to be pressed against someone for the type of routine workplace
altercation involved in this case.
That would be especially true
if the primary evidence consisted of the alleged victim’s
statement that the incident occurred and the alleged
perpetrator’s statement that it did not.
Prosecutors are
concerned about scarce resources and about proof beyond a
reasonable doubt, neither of which has any bearing on whether the
matter they are investigating actually occurred.
A reasonable
argument can be made that if Volvo relied exclusively upon the
decision not to prosecute, it had no sound factual basis for
concluding that Mr. Johnson had violated work rule 13.
There is also no evidence, beyond the wholly conclusory
statement in Ms. Wise’s affidavit, that Volvo conducted a
reasonable investigation of this incident.
Her affidavit states,
without any elaboration, that Volvo “determined, after an
internal investigation, that [Mr. Johnson’s] allegations about
... Brad McNichols were ‘false, vicious, or malicious.’” She also
concedes that the Sheriff’s office’s decision not to pursue the
matter was a factor, although there is no evidence that Volvo
ever attempted to learn why the criminal matter was dropped.
From this sparse record, the Court simply cannot conclude that
there is no factual dispute about whether Volvo really believed
that Mr. Johnson lied about the reach truck incident.
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Perhaps it
did, and perhaps it can make the jury believe that, but on this
record, the issue could be decided either way.
C. Mixed Motive
Mr. Johnson asserts for the first time in his memorandum in
opposition that the “implausible” nature of Volvo’s proffered
reason reveals at the very least a “mixed motive” for terminating
his employment.
He argues that the FMLA authorizes retaliation
claims where the adverse employment action was motivated by the
employee’s use of FMLA leave, as well as other permissible
factors.
See Hunter v. Valley View Local Schools, 579 F.3d 688,
691 (6th Cir. 2009).
An employee raising a mixed-motive claim under Title VII can
survive a summary judgment simply by producing evidence
sufficient to convince a jury that the impermissible reason was a
motivating factor for the defendant’s adverse employment action.
White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir.
2008)(citation omitted).
Compliance with the McDonnell
Douglas/Burdine shifting burdens of production is not required,
and the ultimate question on a summary judgment motion is whether
there is a genuine issue of material fact regarding the
defendant’s motivation.
Id. at 401-02.
In Hunter, the court of appeals acknowledged that Title VII
decisions do not automatically control the construction of other
employment statutes.
579 F.3d at 691.
The Sixth Circuit
continues to apply the Price Waterhouse burden-shifting framework
to FMLA retaliation claims.
Id. at 692.
Under this framework,
if a plaintiff presents evidence to establish that the defendant
discriminated against him because of his FMLA leave, the
defendant must then “prove by a preponderance of the evidence
that it would have made the same decision absent the
impermissible motive.”
marks omitted).
Id. (internal citation and quotation
The court found it unnecessary to decide whether
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White applies to an FMLA retaliation case because the plaintiff
had produced sufficient evidence to survive summary judgment even
under the more stringent Price Waterhouse standard.
Id. n.2.
The Court need not resolve any of these issues in the
context of this motion.
There is enough evidence to warrant
denial of summary judgment even without considering whether this
is properly a mixed motive case.
Thus, any issues about the
proper characterization of the case are better left to the trial
stage.
IV. Conclusion
Base on the foregoing reasons, the Court finds that there
are genuine issues of material fact concerning Mr. Johnson’s FMLA
retaliation claim and that Volvo is therefore not entitled to
judgment as a matter of law on that claim.
Accordingly, the
motion for summary judgment (#27) is denied.
/s/ Terence P. Kemp
United States Magistrate Judge
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