Holmes v. Alive Hospice, Inc.

Filing 78

MEMORANDUM Signed by Chief Judge Kevin H. Sharp on 2/3/15. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARTHA HOLMES,

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Plaintiff,
v.
ALIVE HOSPICE, INC.
Defendant.

Civil No. 3:11-cv-0594
Judge Sharp

MEMORANDUM
Plaintiff’s complaint before this Court alleges unlawful discrimination and retaliation on
the basis of disability in violation of the American’s with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., and unlawful interference with rights and retaliation under the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Defendant Alive Hospice, Inc. has filed a
Motion for Summary Judgment on all claims in the Complaint. This motion, for the reasons that
follow, will be granted in part and denied in part.
I. FACTUAL BACKGROUND
Defendant Alive Hospice, Inc. is a non-profit hospice care organization doing business in
Nashville, Tennessee. Plaintiff is a former employee of Defendant. In April 2008, Plaintiff was
hired by Defendant as a part-time, on-call (“PRN”) licensed practical nurse (“LPN”) on a “flex
team” which provided continuous care to patients. In April 2009, Plaintiff was hired for a fulltime position in the Defendant’s Call Center.

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In December 2009, Plaintiff’s primary care physician requested her off work from December
3, 2009 to December 13, 2009 for “…nerves; a lot of stuff going on in [her] life.” (Docket No.
48 ¶ 25). Then, on January 21, 2010, Plaintiff requested FMLA leave from that date to April 16,
2010 for surgery related to her C5 vertebrae pressing into her spinal cord. (Docket No. 48 ¶ 29)
(Docket No. 51 ¶ 20). Although the start date of Plaintiff’s FMLA leave is in dispute, this Court,
in an effort to construe all facts in favor of the non-moving Plaintiff, will assume for purposes of
summary judgment that Plaintiff’s twelve-week FMLA leave started on January 21, 2010 (as
alleged by Plaintiff). (Docket No. 51 ¶ 21).
Plaintiff anticipated being released from her doctor’s care on April 15, 2010, the date of
Plaintiff’s post-surgery follow-up appointment; however, according to Plaintiff, the vertebrae in
her neck were not fusing properly, and her doctor recommended that she remain off of work for
an additional four weeks. (Docket No. 51 ¶ 23-24). Accordingly, on April 15, 2010, Plaintiff
brought Defendant a doctor’s note further excusing her from work until May 17, 2010, at which
time she would be reevaluated. (Docket No. 48 ¶ 33). Defendant agreed to provide Plaintiff
with additional leave through May 3, 2010, and Plaintiff signed a request for leave form that
described her leave ending on that date. (Docket No. 51 ¶ 27). Around May 4, 2010, when
Plaintiff did not return to work, Defendant changed Plaintiff’s status from a full-time employee
to PRN status. (Docket No. 51 ¶ 37) (Docket No. 48 ¶ 37).
On May 16, 2010, Plaintiff’s doctor extended her medical leave a final time through May 26,
2010 for reasons that are not explained on the medical release. (Docket No. 51 ¶ 39) (Docket
No. 51 ¶ 40). When Plaintiff was finally released to work, she notified Defendant of her
availability. (Docket No. 51 ¶ 42). Defendant’s representative, Edith Scott, told Plaintiff that
she would contact Plaintiff’s supervisor, Kathy Owens, to let her know Plaintiff was available to
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work. (Docket No. 51 ¶ 42). Scott also told Plaintiff not to contact Owens. Id. When Plaintiff
did not hear from Owens, Plaintiff called Owens to inquire about available shifts. (Docket No. 51
¶ 43). Owens told Plaintiff that she did not have any available work for Plaintiff because she
needed registered nurses (“RN’s”), not LPN’s to cover shifts. (Docket No. 48 ¶ 48). However,
when Plaintiff contacted the Call Center on another occasion to inquire about available shifts,
another LPN, Cynthia Mayberry, told Plaintiff that there were open shifts with LPN availability.
(Docket No. 51 ¶ 44). Plaintiff was not scheduled for any shifts, and on July 23, 2010,
Defendant terminated Plaintiff pursuant to Defendant’s policy that a PRN who did not work two
shifts in 30 days was subject to termination. (Docket No. 48 ¶ 51).
In June 2010, Defendant had an opening for the position of nurse authorization coordinator,
and Plaintiff applied. (Docket No. 51 ¶ 60). However, she was not qualified for the position
because she did not have insurance experience in billing, authorization, and eligibility, and the
position was filled by someone else. (Docket No. 48 ¶ 73, 76).
On November 3, 2010, Plaintiff filed an EEOC charge alleging discrimination between April
16, 2010 and July 1, 2010 due to her disability and use of FMLA leave. The EEOC charge
alleged that Defendant had significantly reduced Plaintiff’s hours due to her disability and upon
her return from FMLA leave, and that Plaintiff had been denied work even though positions were
available. (Docket No. 48 ¶ 81). On January 6, 2011, Plaintiff filed a second EEOC charge
alleging that she was terminated from her employment and denied the position of authorization
nurse coordinator due to her disability and in retaliation for filing her initial EEOC charge.
(Docket No. 48 ¶ 82).
Plaintiff’s complaint before this Court alleges unlawful discrimination based on her disability
in violation of the American’s with Disability Act, and unlawful retaliation under the ADA as a
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result of a complaint Plaintiff made to Defendant’s representative, her request for medical leave,
and her EEOC discrimination complaints. Plaintiff also claims unlawful interference with her
FMLA rights, failure to be reinstated after exercising her FMLA rights, and retaliation under the
FMLA based on her demotion, termination and Defendant’s failure to hire her for the position of
authorization nurse coordinator.
II. APPLICATION OF THE LAW
A party may obtain summary judgment if the evidence establishes there are no genuine
issues of material fact for trial and the moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(c); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th Cir.
2000). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the Court must construe the
evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in
his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986). However, the nonmoving party must rely on more than “[c]onclusory assertions,
supported only by Plaintiff's own opinions.” Arendale v. City of Memphis, 519 F.3d 587, 605
(6th Cir. 2008). Rather, Plaintiffs must “set out specific facts showing a genuine issue for trial.”
Harvey v. Campbell County, Tenn., 453 Fed. Appx. 557, 561 (6th Cir. 2011).
a. Exhaustion of Administrative Remedies for ADA Accommodation Claim
As an initial matter, Defendant argues that the Court’s jurisdiction related to her ADA
claims must be limited to the scope of her EEOC charges, which only encompass Defendant’s
acts in demoting and terminating Plaintiff and in not hiring her for the position of authorization

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nurse coordinator. From this argument, the Court infers that Defendant’s position is that Plaintiff
did not exhaust her administrative remedies regarding her failure to accommodate claim.
Defendant is correct in its assertion that this Court would not have jurisdiction over
Plaintiff’s failure to accommodate claim if such a claim was absent from her EEOC charges.
See, Jones v. Sumser Retirement Vill., 209 F.3d 851, 853 (6th Cir. 2000) (finding that the Court
does not have subject matter jurisdiction over an ADA claim “unless the claimant explicitly files
the claim in an EEOC charge or the claim can reasonably be expected to grow out of the EEOC
charge.)” Plaintiff’s EEOC charges do not explicitly claim that Defendant failed to reasonably
accommodate her disability. See Plaintiff’s EEOC Charge, Docket No. 41-3 p. 20-21 (alleging
discrimination based on a reduction in hours, demotion, termination, and a failure to hire
Plaintiff for the position of authorization nurse coordinator due to her disability). However, the
Court finds that Plaintiff’s failure to accommodate claim may reasonably be expected to grow
out of her EEOC charges.
Defendant relies on Jones to support its position. In Jones, the Sixth Circuit found that
the Plaintiff’s ADA termination claim and her accommodation claim differed “in kind and date,”
and the facts relevant to the plaintiff’s termination and alleged failure to accommodate were
different. Jones, 209 F.3d at 853-54. In that case, the plaintiff’s failure to accommodate claim
was based on events occurring prior to her termination when her employer failed to
accommodate her medically prescribed physical limitations while on the job. Id. at 853. Her
termination claim, on the other hand, was based on the employer’s acts in firing her after she
went on medical leave for her back injuries. Id.
In contrast, the facts in this case reveal that Plaintiff’s termination claim and failure to
accommodate claim are based on the same set of facts occurring around the same time period.
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Unlike Jones where the alleged lack of accommodation had already occurred prior to
termination, the claimed lack of accommodation here was additional requested medical leave
that Defendant allegedly sought to avoid by demoting and then terminating Plaintiff. See Dunn
v. Chattanooga Pub. Co., 993 F.Supp.2d 830, 842 (E.D. Tenn. 2014) (“[Plaintiff’s] discharge
claim and accommodation claim are intertwined: she was terminated because her disability
required she obtain medical leave; she was denied medical leave as an accommodation.”) This
Court, therefore, assumes jurisdiction over Plaintiff’s ADA accommodation claim.
b. ADA Disability Discrimination Claims
Title I of the Americans with Disabilities Act (“ADA”) provides that a covered employer
“shall [not] discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
Whitfield, v. Tennessee, 639 F.3d 253, 258 (6th Cir. 2011) (citing 42 U.S.C. § 12112(a)). In the
Sixth Circuit, a prima facie case of disability discrimination based on indirect evidence requires
the plaintiff to show that: “1) he or she is disabled; 2) otherwise qualified for the position, with
or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the
employer knew or had reason to know of the plaintiff's disability; and 5) the position remained
open while the employer sought other applicants or the disabled individual was replaced.” Id. at
259. The ADA defines disability in three ways: “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment (as described in paragraph
(3)).” 42 U.S.C. § 12102 (1).

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In her complaint, Plaintiff alleges that Defendant discriminated against her based on her
disability due to Multiple Sclerosis. (Docket No. 1 ¶¶ 8-9). Because Plaintiff has failed to offer
any proof that her Multiple Sclerosis was a disability within the meaning of the ADA, however,
her claims of disability discrimination must be dismissed.
Plaintiff has failed to offer evidence sufficient to raise a genuine issue of material fact
that she suffered from Multiple Sclerosis (“M.S.”), and, if so, that her M.S. substantially limited
one or more major life activities during the relevant time period. In general, major life activities
include, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating,
and working.” 42 U.S.C. § 12102 (2)(A).
The Court has been unable to identify, and neither party has pointed to, any written
record showing that Plaintiff has ever been diagnosed with or treated for M.S. The only
evidence Plaintiff offers to show that she was diagnosed with or treated for M.S. are Plaintiff’s
self-serving statements in her deposition that she was diagnosed with M.S. in January 2010 while
on medical leave. Plaintiff’s uncorroborated testimony does not raise a triable issue. See
Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (finding that Plaintiff’s hearsay
affidavit was not proper because it was not made on personal knowledge and did not set forth
“facts” that would be admissible into evidence, and, even if it did, it did not raise triable issue
because the statements contained therein were nothing more than the subjective belief of
plaintiff).
Notably, Plaintiff does not even mention that she had M.S. in her Statement of
Undisputed Facts or her Response to Defendant’s Motion for Summary Judgment. Instead,
Plaintiff maintains the following regarding her medical leave: she initially requested time off of
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work due to personal issues causing stress in her life (Docket No. 51 ¶ 13), she next submitted a
request for FMLA to have surgery related to problems with her C5 vertebrae pressing into her
spinal cord (Docket No. 51 ¶ 20), she then needed additional time to heal from surgery (Docket
No. 51¶ 24) and, finally, she asked for more time off because her doctor “recommended another
two weeks off of work, until May 26, 2010.” (Docket No. 51 ¶ 39). Accordingly, Plaintiff has
failed to offer sufficient evidence that she had M.S. and that her M.S. substantially limited one or
more major life activities. Therefore, she cannot qualify as disabled under the ADA.
In her Response to Defendant’s Motion for Summary Judgment, Plaintiff argues that she
qualifies as disabled under the “regarded as” definition of disability. The ADA says an individual
meets the requirement of “being regarded as having such an impairment” so long as “the
individual establishes that he or she has been subjected to an action prohibited under this chapter
because of an actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102 (3)(A). However, this
provision does not apply to transitory impairments with an actual or expected duration of 6
months or less. 42 U.S.C. § 12102 (3)(B).
In this case, Plaintiff has not shown that the Defendant was aware Plaintiff claimed to
have had M.S. or any other impairment that was not transitory. In an effort to support her
argument, Plaintiff cites only two pieces of evidence: Plaintiffs’ doctors notes, which were
provided to Defendant in connection with Plaintiff’s FMLA leave, and a phone call Owens made
to Plaintiff during Plaintiff’s medical leave to see how she was doing. (Docket No. 46 p. 31).
However, the Court could find nothing in the record showing that Owens was made aware of
Plaintiff’s claim of suffering from M.S. when she called Plaintiff to see how she was doing, (See
Docket No. 42-1 p. 16) and none of the doctors’ notes or FMLA leave forms provided in the
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record reference Plaintiff’s M.S. (See Docket No. 40-4; Docket No. 37-3). Plaintiff has failed,
therefore, to present any evidence showing that Plaintiff was diagnosed with M.S., and, if so, that
Defendant knew that Plaintiff had been diagnosed with M.S.
Even when viewed in the light most favorable to Plaintiff, the facts indicate, at most, that
Defendant knew Plaintiff needed to prepare for, undergo and recover from back surgery. As
such, Plaintiff has not established that Defendant perceived or regarded Plaintiff as having M.S,
and, therefore, it could not have discriminated against her based on that condition. Thus, all of
Plaintiff’s claims for disability discrimination under the ADA, including discrimination based on
Defendant’s demotion, termination, failure to hire and failure to accommodate, will be
dismissed.
c. ADA Retaliation Claim
The ADA prohibits retaliation against an individual because she opposes her employer’s
disability discrimination. 42 USC § 12203(a). See also, Johnson v. University of Cincinnati,
215 F.3d 561, 578 (6th Cir. 2000). To establish a prima facie case of retaliation under the ADA,
plaintiff must show that “(1) she engaged in protected activity, (2) defendant took an adverse
employment action, and (3) there was a causal connection between the protected activity and the
adverse employment action. Barrett v. Lucent Technologies, Inc., 36 Fed. Appx. 835, 841 (6th
Cir. 2002). If the plaintiff establishes this prima facie case, the burden shifts to the defendant to
establish a legitimate, nondiscriminatory reason for the adverse employment action. Id. The
plaintiff must then demonstrate by a preponderance of the evidence that the proffered reason was
a mere pretext for discrimination by showing that “(1) the proffered reasons have no basis in
fact, (2) the proffered reasons did not actually motivate the action, or (3) they were insufficient to
motivate the action.” Id.
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In her complaint, Plaintiff alleges that she was retaliated against “because of her
disabilities, request for leave and complaint of discrimination.” (Docket No. 1 ¶ 17). Plaintiff’s
Response to Defendant’s Motion for Summary Judgment and her Statement of Undisputed Facts
does not lend further clarity or specificity to her ADA retaliation claim. Indeed, Plaintiff does
not even address the ADA retaliation claim in her responsive briefs; rather, Plaintiff’s only
discussion of retaliation concerns her FMLA retaliation claim. Defendant, however, suggests
that Plaintiff’s claim is only based on two alleged instances of protected activity, including
Plaintiff’s EEOC disability discrimination complaints and a statement Plaintiff made to
Defendant’s representative, Jason Guy, regarding her termination. Under these circumstances,
this Court will assume that Plaintiff’s ADA retaliation claim is based on the following: (1) the
statement she made to Guy regarding her termination, (2) her request for medical leave, and (3)
her EEOC discrimination complaints.
Plaintiff’s statement to Guy and her request for medical leave are not actionable under an
ADA claim for retaliation because they are not protected activities. Specifically, Plaintiff has
failed to show how either activity is in opposition to Defendant’s alleged disability
discrimination. See 42 USC § 12203(a). The only reference the Court could find in the record
regarding Plaintiff’s statement to Guy is in Plaintiff’s response to Interrogatory No. 15. In that
response, Plaintiff states that she “spoke to Jason Guy about my complaint of being terminated.”
(Docket No. 34-3 p. 7). When determining whether a communication is a protected activity
under the ADA, a plaintiff must “articulate opposition to what she reasonably believes to be
unlawful activity.” Barrett v. Lucent Technologies, Inc., 36 Fed. Appx. 835, 842 (6th Cir. 2002).
Plaintiff’s assertion that she complained to Guy about being terminated does not show that

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Plaintiff complained about or opposed disability discrimination. Thus, Plaintiff’s statement to
Guy does not constitute protected activity under the ADA.
Similarly, Plaintiff’s request for medical leave does not constitute opposition to the
Defendant’s alleged disability discrimination. None of Plaintiff’s leave request forms evidence
Plaintiff complaining about anything, and there is nothing else in the record to show that
Plaintiff’s requests for medical leave were accompanied by any kind of complaint or opposition
related to disability discrimination.
Although the charges of disability discrimination Plaintiff filed with the EEOC are
protected activities, they do not help Plaintiff make a cognizable claim for retaliation under the
ADA. Plaintiff did not file her EEOC charges until November 3, 2010 and January 6, 2011.
(Docket No. 41-3 p. 20-21). By this time, any adverse employment action would have already
occurred. For example, it is undisputed that Plaintiff was demoted to PRN status at the end of
her leave in May 2010 (Docket No. 48 ¶¶ 36-37), Plaintiff applied for the position of
authorization nurse coordinator on June 10, 2010 (Docket No. 48 ¶ 86), and Plaintiff was
terminated on July 23, 2010 (Docket No. 48 ¶ 51). Under these circumstances, Plaintiff cannot
demonstrate that her EEOC charges, which were filed after Defendant’s alleged adverse
employment actions, caused any adverse employment actions to occur. Thus, Plaintiff’s claim
for retaliation under the ADA will be dismissed.
d. FMLA Interference Claim
The Family Medical Leave Act (“FMLA”) entitles an eligible employee to as many as
twelve weeks of leave during any twelve-month period if the employee has a “serious health
condition that makes the employee unable to perform the functions of the position of such
employee.” Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 243 (6th Cir. 2004) (quoting
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29 U.S.C. § 2612(a)(1)(D)). One definition of “serious health condition” under the statute is “an
illness, injury, impairment, or physical or mental condition that involves continuing treatment by
a health care provider.” Id. An employee seeking to use FMLA leave must notify the employer
that FMLA-qualifying leave is needed. Id. One theory for recovery under the FMLA is an
“entitlement” or “interference” theory arising from 29 U.S.C. § 2615(a)(1) which 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 in this subchapter.” Id. at 244. Plaintiff alleges an
interference theory based on Defendant’s alleged interference with her right to take FMLA leave.
To prevail on her interference claim, Plaintiff must establish that: (1) she was an eligible
employee, (2) Defendant is a covered employer, (3) she was entitled to leave under the FMLA,
(4) she gave Defendant notice of her intent to take leave, and (5) Defendant denied her FMLA
benefits or interfered with FMLA rights to which she was entitled. Id. In this case, the only
element in dispute is the fifth.
Defendant is entitled to summary judgment on Plaintiff’s claim that Defendant interfered
with her right to take FMLA leave because it is undisputed that Plaintiff received a full twelve
weeks of leave. Specifically, it is undisputed that Defendant gave Plaintiff unpaid leave from
January 1, 2010 through May 3, 2010. (Docket No. 51 ¶ ¶ 21, 37). This is more than the 12
weeks required under the FMLA. See 29 U.S.C. § 2612(a). As such, any claim that Plaintiff
was denied FMLA leave is untenable and cannot survive a motion for summary judgment. See
Shelton v. Bridgestone Metalpha, U.S.A., Inc., 2012 WL 1609670 (M.D. Tenn. May 8, 2012)
(finding where Plaintiff admitted she received the full extent of her FMLA leave, any claim that
Plaintiff was denied FMLA leave is moot.)

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The FMLA, however, not only grants the statutory right for an eligible employee to take
up to twelve weeks of leave, but also creates the concomitant right for an employee who has
taken leave “to be restored by the employer to the position of employment held by the employee
when the leave commenced.” Hoge, 384 F.3d at 244 (quoting 29 U.S.C. § 2614(a)(1)(A)).
Though Plaintiff’s argument is not entirely clear in this regard, the Court gleans from Plaintiff’s
Response that she believes Defendant converted her from full-time status to PRN (part-time)
status and “purposefully did not schedule her due [sic] her FMLA leave.” (Docket No. 46 p. 2122). Plaintiff also argues that converting her to PRN status and failing to schedule her ultimately
resulted in her termination. (Docket No. 46 p. 23). Thus, Plaintiff argues that she was denied
reinstatement to her former position upon her return from FMLA leave, and this demotion led to
her termination.
Defendant did not violate Plaintiff’s right to reinstatement under the FMLA, however,
because the undisputed evidence shows that she was not released to return to work at the end of
her FMLA leave. The Sixth Circuit has held that an employer does not violate the FMLA when
it fires an employee who is unable to return to work at the conclusion of the twelve-week period
of statutory leave. Edgar v. JAC Products, Inc., 433 F.3d 501, 506-07 (6th Cir. 2006). See also,
Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th Cir. 1998)
(finding that where plaintiff was not released to return to work until two weeks after her FMLA
leave period ended, evidence showed that plaintiff was unable to return to work within the period
provided by the FMLA and defendant was entitled to summary judgment). In this case,
Plaintiff’s FMLA leave began on January 21, 2010 and ended, twelve weeks later, on April 15,
2010. On April 15, 2010, Plaintiff told Defendant she would need leave until May 17, 2010;
however, Defendant only agreed to provide additional leave through May 3, 2010. On May 4,
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2010, when Plaintiff did not return to work and was not released to return to work, Plaintiff was
demoted and eventually terminated. (Docket No. 51 ¶¶ 40, 42). The Defendant does not violate
the FMLA by demoting and terminating Plaintiff after she was given her full FMLA leave and
where it is undisputed that Plaintiff was unable to work until at least 14 days after she exhausted
her leave. As such, Defendant is entitled to summary judgment on Plaintiff’s FMLA interference
claim.
e. FMLA Retaliation Claim
FMLA retaliation claims impose liability on employers that act against employees
specifically because those employees invoked their FMLA rights. Edgar, 443 F.3d at 508. The
Sixth Circuit applies the familiar burden-shifting test articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) to retaliation claims under the FMLA. Id. Plaintiff must make out a
prima facie case of retaliation by showing that (1) she availed herself of a protected right under
the FMLA by notifying Defendant of her intent to take leave, (2) she suffered an adverse
employment action, and (3) that there was a causal connection between the exercise of her rights
under the FMLA and the adverse employment action. Id.
There is no dispute that Plaintiff engaged in a statutorily protected activity by taking
FMLA leave and suffered an adverse employment action when she was demoted to PRN status
and eventually terminated. Defendant disputes the third element regarding a causal connection
between Plaintiff’s exercise of her FMLA rights and her demotion and termination. However,
the nearness in time between Plaintiff’s return from her FMLA leave and her demotion and
termination suffice to meet the low threshold of proof necessary to establish a prima facie case of
retaliatory discharge under the FMLA. See Seeger v. Cincinnati Bell Telephone Co., LLC, 681
F.3d 274, 283 (6th Cir. 2012).
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If Plaintiff establishes a prima facie case, the burden shifts to Defendant to proffer a
legitimate, nondiscriminatory rationale for discharging Plaintiff. Edgar, 443 F.3d at 508. Here,
Defendant’s stated reason for Plaintiff’s demotion to PRN status is that Plaintiff was put on PRN
status “when she wasn’t release[d] to work at the end of her medical leave.” (Docket No. 48 ¶
37). The Sixth Circuit has held that this type of reason, when combined with medical
information showing that the employee could not return to work, rebuts an employee’s prima
facie case of retaliation. Edgar, 433 F.3d at 513-14 (finding that in retaliation cases where the
medical information known to the employer prior to the termination decision shows that the
employee could not return within 12 weeks, an employer does not violate the FMLA when it
terminates the employee.”) Here, it is undisputed that Plaintiff’s doctor did not release her to
return to work until after her medical leave was exhausted. Thus, Defendant has rebutted
Plaintiff’s prima facie case in this regard.
Defendant’s stated reason for terminating Plaintiff is that she was terminated pursuant to
Defendant’s policy that a PRN who did not work two shifts in 30 days was subject to
termination. Plaintiff does not dispute this policy; rather, she argues that she was retaliated
against by not being offered or assigned any shifts, which ultimately resulted in her termination.
Defendant says that the reason Plaintiff was not offered any shifts was because there were no
shifts available for Plaintiff during that time. Specifically, Defendant says that there were no
shifts available because, during Plaintiff’s absence, Defendant reduced the staff scheduled for
each shift from three to two, Defendant preferred RNs over LPNs (Plaintiff’s position) to staff
the call center where Plaintiff worked, and at least one RN had to be scheduled per shift.
Defendant, has, therefore, articulated a legitimate reason for terminating Plaintiff.

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Once the defendant articulates a reason, the burden shifts back to Plaintiff to show that
Defendant’s proffered reason is a pretext for unlawful retaliation. As indicated, Plaintiff may
show pretext by showing (1) that the proffered reason had no basis in fact; (2) that the proffered
reason did not actually motivate her firing; or (3) that the proffered reason was insufficient to
motivate the adverse employment action. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th
Cir. 2012) (citing Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012)).
Plaintiff has offered evidence sufficient to raise a genuine issue of material fact regarding
whether Defendant’s legitimate reasons for terminating her are a pretext for retaliation under the
FMLA. Specifically, Plaintiff argues that Defendant’s contention that there were no LPN shifts
available during the 30 day period in question has no basis in fact. Plaintiff points to the
deposition of her co-worker, Cynthia Mayberry, who testified that Plaintiff called her to inquire
about shift availability for part time LPNs. Mayberry says that during the call, there were several
LPN shifts available, and, after the call, Mayberry told Owens that Plaintiff wished to be placed
on the schedule. This testimony is enough to raise a genuine issue of material fact as to whether
Defendant’s legitimate reason for termination has any basis in fact. As such, Plaintiff’s claim
that her termination constituted retaliation under the FMLA will survive summary judgment.
Because Plaintiff has offered evidence that Defendant’s reason for Plaintiff’s termination
might be pretextual, it can be inferred that Defendant’s demotion might have been part of a
larger plan to first demote Plaintiff to PRN status, and then deny her shifts so that she could be
terminated pursuant to Defendant’s policy. Plaintiff’s claim that her demotion constituted
retaliation under the FMLA will, therefore, also survive summary judgment.
Finally, Plaintiff claims that she was retaliated against when Defendant did not hire her
for the position of authorization nurse coordinator. (Docket No. 41-3 p. 21) (Docket No. 48 ¶
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82). Plaintiff applied for this position after she took FMLA leave and after she was terminated.
Because Plaintiff has failed to offer evidence sufficient to raise a genuine issue of material fact
regarding whether Defendant’s legitimate, nondiscriminatory reason for not hiring Plaintiff was
pretextual, this claim must be dismissed. It is undisputed that Plaintiff was not qualified for the
position of authorization nurse coordinator because she did not have insurance experience in
billing, authorization, and eligibility. (Docket No. 48 ¶ 73). Plaintiff does not offer any evidence
that would establish that Defendant’s legitimate reason was a mere pretext for retaliation. Thus,
Plaintiff’s retaliation claim regarding Defendant’s failure to hire her for the position of
authorization nurse coordinator will be dismissed.
III. CONCLUSION
On the basis of the foregoing, Defendant’s Motion for Summary Judgment will be
granted with respect to all claims except Plaintiff’s claim that her termination and demotion
constituted retaliation under the FMLA.
An appropriate Order will enter.

_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE 

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