Carney v. Suncrest Healthcare of Middle Tennessee, LLC

Filing 58

MEMORANDUM OPINION OF THE COURT. Signed by Senior Judge William J. Haynes, Jr on 9/30/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw) (Additional attachment(s) added on 9/30/2015: # 1 Attachment Text Searchable Version) (af).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEBRA CARNEY,
Plaintiff,
v.
SUNCREST HEALTHCARE OF MIDDLE
TENNESSEE, LLC,
Defendant.

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No. 3:13-cv-00527
Senior Judge Haynes

MEMORANDUM
Plaintiff, Debra Carney, filed this action under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., against Defendant, Suncrest Healthcare of Middle Tennessee,
LLC. (“Suncrest”), her former employer. Plaintiff, who was employed with Suncrest as an account
manager, alleges interference with her FMLA leave and that her termination was in retaliation for
her use of FMLA leave.
Before the Court is Defendant’s motion for summary judgment (Docket Entry No. 38),
contending, in essence, that Plaintiff cannot prove interference with her FMLA leave because
Plaintiff was not denied benefits and that Plaintiff cannot prove retaliation because she cannot show
a causal connection between her use of FMLA leave and her termination. In response, Plaintiff
contends that she has established a prima facie showing of interference, as well as direct and
circumstantial evidence of retaliation. In addition, material factual disputes exist on whether
Defendant’s proffered reasons for Plaintiff’s discharge are pretextual.
For the reasons set forth below, the Court concludes that Defendant’s motion for summary
judgment (Docket Entry No. 38) should be granted.

A. Findings of Fact1
On April 4, 2011, Plaintiff began her employment as an account manager with Defendant
Suncrest Healthcare of Middle Tennessee, Inc., a home health services provider. (Docket Entry No.
41, Plaintiff’s Responses to Defendant’s Statement of Undisputed Material Facts at ¶ 1; Docket
Entry No. 38-5, Janene Mann Deposition at 22-23).2 Plaintiff reported to Janene Mann, Suncrest’s
regional director of business development. Id. at ¶ 3. In her position, Plaintiff managed accounts
with doctor’s offices, hospitals, case managers and nurses, for the “purpose of getting business for
the company.” (Docket Entry No. 45-1, Plaintiff’s Deposition at p. 41). Plaintiff was also required
to solicit new accounts. Id.
In May 2012, Plaintiff received an annual evaluation. (Docket Entry No. 47-3). On a one
to four scale, Plaintiff received mostly threes, that is, she “meets standards.” Id. at 1-2. Plaintiff
also received five ratings of fours, that is, “exceeds standards,” because Plaintiff: “[d]emonstrates
an attitude of teamwork and cooperation, and uses good communication skills in interfacing with
peers, staff and in resolving conflicts,” “[d]isplays a professional appearance and practices good
personal hygiene,” “[c]ontributes to a positive facility identity within the community at large,”
[r]esponds effectively and efficiently to referral sources within established time frames, and

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Upon a motion for summary judgment, the factual contentions are viewed in the light
most favorable to the party opposing the motion for summary judgment. Duchon v. Cajon Co.,
791 F.2d 43, 46 (6th Cir. 1986). As discussed infra, upon the filing of a motion for summary
judgment, the opposing party must come forth with sufficient evidence to withstand a motion for
directed verdict, Anderson v. Liberty Lobby, 477 U.S. 242, 247-52 (1986), particularly where
there has been an opportunity for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Court concludes that under the applicable law, there are not any material factual disputes.
Thus, this section constitutes a finding of facts.
2

The Court’s citations are to the pagination in the Court’s electronic case filing system.
The Court’s citations denoted by a “p.” refer to the pagination of a deposition.
2

maintains optimal customer satisfaction,” and “Annual Compliance Training completed.” Id.;
Docket Entry No. 38-17.

On June 6, 2012, Mann met with Plaintiff to discuss Plaintiff’s referral

numbers. (Docket Entry No. 41 at ¶ 4). Mann agreed that Plaintiff was getting referrals from her
current accounts, but advised Plaintiff to solicit new accounts and to think “outside the box.”
(Docket Entry No. 45-1 at p. 134). Later that night, Mann sent Plaintiff an email stating that “[w]hat
we have to focus on is how to build your referral base. I have already gone through several months
of your referrals and will send you a meeting request so we can review these and brainstorm as to
how to increase these.” (Docket Entry No. 38-6 at 1). Mann explained, “[a]s you can see ... you are
getting your Medicare from very few referral sources and if someone were to look at your referral
base that you have to pull from which is quite extensive – this is what we need to focus on – you are
going to have to let the other go and move forward.” Id. Mann added, “[a]nother area to increase,
obviously, is more physician referrals so you may want to think about who you can target to bring
more Medicare in for you.” Id.
In September 2012, Plaintiff participated in a “sales blitz” with Martee Harris, Suncrest’s
senior vice president of human resources. (Docket Entry No. 41 at ¶ 5). Plaintiff drove Harris to
the offices of Plaintiff’s accounts. (Docket Entry No. 45-5, Harris Deposition at pp. 13-14). Harris
complained that Plaintiff’s vehicle was “absolutely filthy” even though she knew Harris would be
driving with her. Id. at p. 14; Docket Entry No. 41 at ¶ 5. Harris described Plaintiff as “very
scattered” with her account and stated that Plaintiff was “more aggressive and not as assertive.” Id.
On September 29, 2012, Mann emailed Plaintiff about Plaintiff visiting some accounts more than
once a week, cautioning her “to make sure we aren’t in there too much.” (Docket Entry No. 38-9

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at 1). Mann advised Plaintiff that Plaintiff “could spend this time calling on other offices.” Id.
Plaintiff responded that she “actually did get referrals f[rom] each of these.” Id.
On October 2, 2012, Dr. Ladouceur evaluated Plaintiff for pain in her shoulder. (Docket
Entry No. 41 at ¶ 7). According to Plaintiff, Dr. Ladouceur suspected that Plaintiff had a torn rotator
cuff. (Docket Entry No. 45-1 at p. 64). After an exam, Dr. Ladouceur provided Plaintiff an injection
for her pain, and ordered an MRI to confirm a torn rotator cuff. Id. at pp. 63-64. Plaintiff received
the results of the MRI at the end of October. Id. at p. 64.
On October 15, 2012, Plaintiff did not attend an awards luncheon because she “got really,
really sick.” (Docket Entry No. 41 at ¶ 8; Docket Entry No. 45-1 at p. 172). Plaintiff testified that
she attempted to notify Mann, but was unable to reach her by cell phone. (Docket Entry No. 45-1
at p. 172). Mann told Plaintiff that she was “very embarrassed” and “wished [Plaintiff] had called
her earlier so she could have found a replacement.” Id. Plaintiff was disciplined for this incident,
and wrote on her reprimand that “as for not notify (sic) Janene - I was having chest pain and went
to ER.” (Docket Entry No. 38-12 at 1).
On October 30, 2012, Plaintiff notified Mann by email that Plaintiff would need surgery to
repair her torn rotator cuff. (Docket Entry No. 41 at ¶ 10; Docket Entry No. 38-10 at 2). Plaintiff
wrote, “I plan to have surg Dec 17tth[.] I will be out on PTO for 2 weeks. I thought this might be
the best time as last of Dec is slow ... I will need therapy for several weeks ... Please let me know
if these dates are ok[.]” (Docket Entry No. 38-10 at 2). Mann replied, “[g]lad to hear you are going
to have this taken care of. Just let me know when you have the exact dates that you will be out.”
Id. at 1. Plaintiff responded, “spoke with MD office this evening and the plan for surg is for Dec
6[.] I will let you know if that changes[.] I woud have like a little more time to work the mo of dec

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befiore taking off but it looks llike I will be back to get [face to face] at the end of mo[.] Ill let you
know if there are any changes.” Id.
On October 31, 2012, Candice Shannon, the accounts payable coordinator, emailed Mann
regarding Plaintiff’s email to Shannon on October 30, 2012, for issuance of certain expense checks
as soon as possible. (Docket Entry No. 41 at ¶ 11; Docket Entry No. 38-8, Mann Declaration,
Exhibit A at 4). Shannon advised Mann that Plaintiff had hand delivered her expense report to
Shannon and had “wanted to get into why these need to be paid as quick as possible.” (Docket Entry
No. 38-8 at 4; Docket Entry No. 45-1 at p. 162). Shannon stated that she did not want to “tattle on
Deborah,” but because Mann approved Plaintiff’s expense reports, Shannon “wanted to let [Mann]
know.” Id. Shannon suggested to Mann that “[i]f she is needing her money faster than what she is
getting it she can turn in an expense report every week instead of holding all the expenses for
months/weeks and then needing her money to be reimbursed faster than our policy allows.” Id.
On November 1, 2012, Plaintiff contacted Paula Farrell, Suncrest’s regional administrator,
about Plaintiff’s expense reports. (Docket Entry No. 41 at ¶ 12). Plaintiff explained that Shannon
advised her “to always go to you [Farrell] for any problems with my checks in the future.” (Docket
Entry No. 38-11 at 2). Farrell responded with a copy to Mann, “I do not mind at all following up
on this for you but I really think Janene should be the one to keep track of this.” Id. In response to
Farrell, Mann stated that she would discuss the issue with Plaintiff later and that “[i]t was not
necessary for [Plaintiff] to bother Paula with this. Paula, I am sorry.” Id. at 1.
On November 1, 2012, Plaintiff met with Mann concerning Plaintiff’s performance, namely:
“(i) not following policy on expense reports; (ii) not responding to emails appropriately and timely
and not keeping up with her daily schedule on Homecare CRM; (iii) not showing up to the Sage

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Awards Luncheon; (iv) not keeping up with tasks in a timely manner; and (v) spending excessive
time in the office or on the phone calling other Account Managers when she is stressed about her
referrals.” (Docket Entry No. 41 at ¶ 13). Of the issues, Mann discussed the second, third and fifth
with Plaintiff on October 23, 2012. (Docket Entry No. 38-12). Thus Plaintiff’s employee discipline
form is marked as a “First Warning (Verbal)” with an attachment that contains a description of
issues discussed. Id. Mann prepared the document “about one week before” the meeting, and at the
time was unaware of Plaintiff’s need for shoulder surgery or any related medical care. (Docket
Entry No. 38-8, Mann Declaration at ¶ 6).
As to Plaintiff “not following policy on expense reports,” Mann noted that expense reports
should be approved by Mann and Suncrest’s policy is not to contact the corporate office regarding
expense reports. Id. at 2. Mann explained, “Deborah has been verbally told and also in e-mails
along with all the marketing team to please follow the appropriate process for expense reports.” Id.
at 2. On Plaintiff “not responding to emails appropriately and timely and not keeping up with her
daily schedule in Homecare CRM,” Mann stated, “Deborah has not answered her e-mails timely or
meeting requests timely. Deborah at times when answering e-mails, they are extremely difficult to
understand as far as the spelling and verbage. ... [Deborah] needs to put her personal physician
appointments on her schedule on Homecare CRM[.]” Id. at 3. Plaintiff responded that she did
timely answer emails, spelling errors may be “a P.C. problem” and she began keeping a schedule
of her personal physician appointments since she was instructed to on October 23, 2012. Id. at 1.
For Plaintiff not showing up at the awards luncheon, Plaintiff explained that she “became ill before
and close to time of lunch and went to ER as for not notify (sic) Janene – I was having chest pain
and went to ER.” Id. at 1. As to the fourth issue, Plaintiff not keeping up with tasks in a timely

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manner, Plaintiff was instructed to submit a monthly checklist to Mann to show that all items were
completed. Id. at 4. For Plaintiff’s excessive time in the office or on the telephone with other
Account Managers, Mann “told [Plaintiff] that we have very few hours per day to make marketing
calls” and Mann needed Plaintiff “to make as many calls as possible per day instead of spending
time on the phone.” Id. at 4.
In “Additions” to this report, Mann wrote that “Deborah will be taking off a couple of weeks
for some needed surgery the first part of December,” and that Mann would be handling her accounts
during that time. Id. at 5. In her conclusion, Mann stated: “Deborah has brought some new referral
sources to SunCrest and we are very appreciative and want to do all we can to help Deborah be
successful and we want to help her improve in these areas listed above.” Id.
On November 7, 2012, Plaintiff contacted Liliya Duncan, Suncrest’s benefits administrator,
about FMLA benefits. (Docket Entry No. 41 at ¶ 14). Duncan sent Plaintiff FMLA forms, including
an FMLA fact sheet, a short term and long term disability claim form, an FMLA medical
certification form, an FMLA eligibility notification, a letter from human resources regarding certain
FMLA expectations and benefit premiums. Id. at ¶ 15. Plaintiff was informed that day that she was
eligible for FMLA benefits, that she was eligible for up to twelve weeks of unpaid leave if she were
approved for FMLA leave. (Docket Entry No. 41 at ¶¶ 16-18). Duncan advised Plaintiff that she
could use some of her approved leave intermittently. Id.
On December 13, 2012, Plaintiff underwent shoulder surgery. (Docket Entry No. 41 at ¶ 24).
Plaintiff’s doctor recommended physical therapy for her shoulder two to three times a week for six
to eight weeks, beginning December 16, 2012. Id. On January 2, 2013, Plaintiff returned to work.
Id. Mann covered Plaintiff’s territory while she was out during December and gave credit to

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Plaintiff for the referrals that Mann obtained. (Docket Entry No. 38-5 at pp. 109-110). Plaintiff
received a bonus in December 2012. (Docket Entry No. 45-2 at 37).
After returning to work, Plaintiff continued her physical therapy that caused her to report late
for work. Id.; Docket Entry No. 45-1 at p. 98. Plaintiff never missed a physical therapy session
because of work. Id. at pp. 97-98. Plaintiff did not request to receive any additional FMLA time
for her physical therapy. (Docket Entry No. 41 at ¶ 24). Plaintiff completed therapy in late February
or early March 2013. (Docket Entry No. 44, Plaintiff Declaration, at ¶ 5).
On January 14, 2013, Plaintiff received an annual performance evaluation from Mann.
(Docket Entry No. 41 at ¶ 26; Docket Entry No. 38-3 at pp. 108-09). The evaluation is on a scale
of one to four: a score of two means an employee “needs improvement;” three reflects that an
employee “meets standards;” and four reflects that an employee “exceeds standards.” (Docket Entry
No. 38-17 at 1-2). Plaintiff received two fours for “displays a professional appearance and practices
good personal hygiene” and “Annual Compliance Training completed.” Id. Plaintiff scored mostly
threes, with one two for “[a]ccomplishes job responsibilities in a professional and timely manner.
Demonstrates attention to detail, thoroughness and accuracy of daily work. Completes high quality
work in accordance with outlined standards within defined time frames.” Id. For this category,
Mann stated that “accomplishing job responsibilities in a professional and timely manner,” most
reflects an employee’s attendance. (Docket Entry No. 45-6, Mann Deposition, at p. 60). Mann
explained that “timely would be that you are out there each day and you are doing what you should
do.” Id.
In her “Evaluator’s Comments” Mann noted Plaintiff’s “good job of marketing Suncrest’s
Home Health Services and bringing on new referral sources,” her “positive attitude and helpfulness,”

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that Plaintiff has been “learning and implementing the Homecare CRM system,” that she has been
“very timely with her daily reports,” and that she “is very much a team player.” Id. at 4. Mann
commented that Plaintiff’s “challenges” were those “discussed in November and there has been
significant improvement.” Id. The evaluation includes a Referral/Goal Tracking Form, showing
Plaintiff’s referrals from January to November 2012. Id. at 9. Plaintiff’s goal was met seven out
of eleven months, and a handwritten note reflects that on average Plaintiff exceeded her 18 medicare
referral goal/quota. Id. Plaintiff received a bonus in January 2013 for exceeding her quotas.
(Docket Entry No. 45-2 at 37).
On February 4, 2013, Mann emailed several employees, including Plaintiff, about the
Homecare CRM system and the need to complete schedules. (Docket Entry No. 41 at ¶ 28). On
February 26, 2013, Mann saw Plaintiff at a hospital with Plaintiff’s husband whose mother was
undergoing a medical procedure. Id. at ¶ 29. That afternoon, Mann emailed Plaintiff, stating that
she “was just doing my run through Homecare CRM for everyone” and for Plaintiff noticed that
Plaintiff’s last schedule entry on February 8, 2013 was 1:15PM, on February 13, 2013 was
10:00AM, on February 18, 2013 was noon and on February 20, 2013 it was at 3:00PM. (Docket
Entry No. 38-19 at 1). Mann also stated that she “noticed several days a month [Plaintiff’s] last call
is around 3:00 p.m.” and that “[i]t would be good if [Plaintiff] could make calls at least until 44:30PM.” Id. Mann noted that if Plaintiff were completing another work activity, she should enter
it on the schedule. Id. Mann also stated that if Plaintiff was “unable to work,” she should tell Mann
so paid time off leave could be used, as “[w]e are expected to work from 8-5 every day.” Id. at 1-2.
Plaintiff responded: “I have noticed they pop up on other days. I really [have] to watch sometime

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no account will come up I always work until 4/4:30 I’ll ck back. I have had to go back before. Not
sure what I touch to cause this I had a entire day disappear one day[.]” Id. at 1.
In March 2013, Randy Bauch and Rosie O’Donnell, who are vendors and networking
professionals of Suncrest, contacted Mann. (Docket Entry No. 41 at ¶ 31). Bauch and O’Donnell
told Mann of Plaintiff’s statements that Mann was going to fire Plaintiff. Id.; Docket Entry No. 385, Mann Deposition at 13. Plaintiff also wrote on Bauch’s Facebook page “[k]eep me in mind if you
learn of anything. I wish you well with your new adventure.” (Docket Entry No. 45-1 at pp. 20304). Plaintiff disputes contacting Bauch or O’Donnell about a job or that she told anyone that Mann
was going to fire her. Id. at pp. 200-05.
On March 21, 2013, Mann planned to meet with Plaintiff to counsel Plaintiff on her
performance. (Docket Entry No. 38-5 at 24, 21). After two days of preparation, Mann had a binder
with forms to help Plaintiff’s organization. Id. at 21. Mann discussed with Harris the items for this
meeting with Plaintiff and the reports from O’Donnell and Bauch. Id. at 24-25. During this
conversation, Mann and Harris decided that “this wasn’t the kind of professional behavior that [they]
expect from [their] employees, and that it appeared [Plaintiff] did not want to be working with
[them], despite all [Mann’s] attempts to help [Plaintiff] be successful.” Id. at 25. Harris discussed
with Mann Plaintiff’s prior discipline history. (Docket Entry No. 38-7 at 8). Mann advised that she
“met with [Plaintiff] on numerous occasions trying to coach [Plaintiff]” and took disciplinary action
against Plaintiff on one occasion. Id. Suncrest’s disciplinary policy states:
The following procedures are generally utilized with respect to discipline. The
Agency practices progressive corrective discipline, and supervisor’s coach and
counsel employees on a regular basis. It is the established policy of the Agency that
any conduct, in its view, that interferes with or adversely affects employment is
sufficient grounds for disciplinary action. Depending on the conduct, disciplinary
steps may be enforced by the following methods and generally in the listed order:
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verbal warnings; written warnings; suspension; dismissal. An employee is required
to sign a written warning to confirm that the warning and recommended correction
were given to the employee.
Factors that may be considered in ascertaining the appropriate disciplinary steps
include, but are not limited to:
•
•
•
•
•
•

Seriousness of conduct
Employment record
Employee’s ability and desire to correct conduct
Action taken with respect to similar conduct by other employees
Effect on patients
Surrounding circumstances

(Docket Entry No. 45-4 at 31).
According to Harris, “progressive discipline is ... you take steps and depending on the
seriousness of the matter, you will elevate it.” Id. Harris further stated that “when you’ve got
somebody who’s responsible for selling your business, you can’t have them out selling their own
services to somebody else.” Id. at 8-9. As a result, Harris approved Plaintiff’s termination. (Docket
Entry No. 38-5 at 19, 25). On March 21, 2013, Mann and Harris met with Plaintiff and terminated
Plaintiff. (Docket Entry No. 45-1 at pp. 205-06).
Through the Tennessee Department of Labor and Workforce Development, Plaintiff
requested separation information from Defendant. (Docket Entry No. 38-20; Docket Entry No. 45-2
at 37-38). In answer to the question “[w]hat was the final incident that caused the discharge,” Mann
answered “[p]osting on Facebook that she was looking for another job – calling reps and networking
professionals asking for a job and saying I was going to fire her. She was also leaving work early
for personal issues and not letting Janene Mann know – her supervisor.” (Docket Entry No. 38-20
at 1, 3). In answer to the question “[d]id the claimant violate company policy,” with a box to check
yes or no, Mann wrote “[l]ook at #1 and she left work early several days for personal issues without

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telling Janene Mann and was looking for another job on company time.” Id. In answer to the
question “[w]hat was the reason for the prior incident(s) of rule violation, unacceptable behavior,
absenteeism or lateness,” Mann answered, “Deborah Carney said she didn’t put anything on
Facebook and didn’t talk to anyone but at the end of the conversation, she did say that she talked to
Rosie and said that she may be in trouble. She also said she didn’t put anything on Facebook but
it was on there and several saw it.” Id.
Plaintiff does not know of any Suncrest employees who took FMLA leave. (Docket Entry
No. 45-1 at p. 102). Plaintiff admits that no one threatened to fire her at any time due to her use of
FMLA benefits. Id. Plaintiff admits that she did not complain to anyone at Suncrest that she felt
discriminated against or retaliated against because of her use of FMLA benefits. Id. at p. 103.
Plaintiff stated that she “didn’t want to be retaliated against” and “didn’t want to tell one person and
they tell another person and they tell another person, so [she] just stayed quiet.” Id. Plaintiff admits
that at the termination meeting she did not mention any concerns about retaliation because of her
use of FMLA benefits. Id. at pp. 103-04.
Plaintiff identified co-workers Elizabeth McAllister and Bob Colvert with performance
issues. (Docket Entry No. 38-3, Plaintiff’s Deposition at 6-7). According to Plaintiff, McAllister
was late to meetings and “did not turn in or do her computer work on time.” Id. at 7. Colvert had
problems meeting his referral quota. Id. at 8. Plaintiff admits that she was only aware of
McAllister’s and Covert’s performance issues through her own observation and what they chose to
tell her. Id. at 6-11, 57-59. Plaintiff did not sit in on any meetings of her co-workers and their
supervisors and was unaware of what behaviors a supervisor may have approved. Id. Mann admits
that Colvert consistently did not make his quota. (Docket Entry No. 38-5 at 4-5). Mann stated that

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Colvert, as a new employee, was given time to “ramp up” to meet his quotas and that Colvert was
given time to gain business because his territories were changed. Id. Colvert was placed on
probation for under-performing. (Docket Entry No. 45-6 at p. 68). Plaintiff admits that Colvert was
eventually fired. (Docket Entry No. 41 at ¶ 39; Docket Entry No. 38-3 at 8-9).
B. Conclusions of Law
“The very mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.” Fed. R. Civ. P. 56
advisory committee notes. Moreover, "district courts are widely acknowledged to possess the power
to enter summary judgments sua sponte, so long as the losing party was on notice that [he] had to
come forward with all of [his] evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); accord
Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 1989).
In Anderson v. Liberty Lobby, Inc., the United States Supreme Court explained the nature
of a motion for summary judgment:
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment “shall be rendered forthwith 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.” By its very terms,
this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of
material fact.
As to materiality, the substantive law will identify which facts are material.
Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.
477 U.S. at 247-48 (emphasis in original). Earlier the Supreme Court defined a material fact for
Rule 56 purposes as “[w]here the record taken as a whole could not lead a rational trier of fact to
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find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Electrical Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
A motion for summary judgment is to be considered after adequate time for discovery.
Celotex, 477 U.S. at 326 (1986). Where there has been a reasonable opportunity for discovery,
the party opposing the motion must make an affirmative showing of the need for additional
discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d
351, 355-57 (6th Cir. 1989). But see Routman, 873 F.2d at 971.
There is a certain framework in considering a summary judgment motion as to the
required showing of the respective parties, as described by the Court in Celotex:
Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,”
which it believes demonstrate the absence of a genuine issue of material fact.
. . . [W]e find no express or implied requirement in Rule 56 that the moving
party support its motion with affidavits or other similar materials negating
the opponent’s claim.
Celotex, 477 U.S. at 323 (emphasis deleted).
As the Court of Appeals explained, “[t]he moving party bears the burden of satisfying
Rule 56(c) standards.” Martin v. Kelley, 803 F.2d 236, 239 n. 4 (6th Cir. 1986). The moving
party’s burden is to show “clearly and convincingly” the absence of any genuine issues of
material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991)(quoting
Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). “So long as the movant
has met its initial burden of ‘demonstrat[ing] the absence of a genuine issue of material fact,’ the
nonmoving party then ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Emmons, 874 F.2d at 353 (quoting Celotex, 477 U.S. at 323 and Rule 56(e)).
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Once the moving party meets its initial burden, the United States Court of Appeals for the
Sixth Circuit warned that “the respondent must adduce more than a scintilla of evidence to
overcome the motion [and]. . . must ‘present affirmative evidence in order to defeat a properly
supported motion for summary judgment.’” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989)(quoting Liberty Lobby). Moreover, the Court of Appeals explained that:
The respondent must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Further, “[w]here the record
taken as a whole could not lead a rational trier of fact to find” for the
respondent, the motion should be granted. The trial court has at least some
discretion to determine whether the respondent’s claim is “implausible.”
Street, 886 F.2d at 1480 (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914
F.2d 790, 792 (6th Cir. 1990) (“A court deciding a motion for summary judgment 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.’”) (quoting
Liberty Lobby).
If both parties make their respective showings, the Court then determines if the material
factual dispute is genuine, applying the governing law.
More important for present purposes, summary judgment will not lie if the
dispute about a material fact is “genuine,” that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.
....
Progressing to the specific issue in this case, we are convinced that the
inquiry involved in a ruling on a motion for summary judgment or for a
directed verdict necessarily implicates the substantive evidentiary standard
of proof that would apply at the trial on the merits. If the defendant in a
run-of-the-mill civil case moves for summary judgment or for a directed
verdict based on the lack of proof of a material fact, the judge must ask
himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the
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plaintiff on the evidence presented. The mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient; there must
be evidence on which the jury could reasonably find for the plaintiff. The
judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could
find by a preponderance of the evidence that the plaintiff is entitled to a
verdict – “whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon whom the onus of
proof is imposed.”
Liberty Lobby, 477 U.S. at 248, 252 (citation omitted).
It is likewise true that:
In ruling on [a] motion for summary judgment, the court must construe the
evidence in its most favorable light in favor of the party opposing the motion
and against the movant. Further, the papers supporting the movant are
closely scrutinized, whereas the opponent’s are indulgently treated. It has
been stated that: “The purpose of the hearing on the motion for such a
judgment is not to resolve factual issues. It is to determine whether there is
any genuine issue of material fact in dispute. . . .”
Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation
omitted). As the Court of Appeals stated, “[a]ll facts and inferences to be drawn therefrom must
be read in a light most favorable to the party opposing the motion.” Duchon v. Cajon Co., 791
F.2d 43, 46 (6th Cir. 1986).
The Sixth Circuit further explained the District Court’s role in evaluating the proof on a
summary judgment motion:
A district court is not required to speculate on which portion of the record the
nonmoving party relies, nor is it obligated to wade through and search the entire
record for some specific facts that might support the nonmoving party’s claim. Rule
56 contemplates a limited marshalling of evidence by the nonmoving party sufficient
to establish a genuine issue of material fact for trial. This marshalling of evidence,
however, does not require the nonmoving party to “designate” facts by citing specific
page numbers. Designate means simply “to point out the location of.” Webster’s
Third New InterNational Dictionary (1986).
Of course, the designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts upon which the
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nonmoving party relies; but that need for specificity must be balanced against a
party’s need to be fairly apprised of how much specificity the district court requires.
This notice can be adequately accomplished through a local court rule or a pretrial
order.
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Here, the parties have given
some references to the proof upon which they rely. Local Rules 56.01(b)-(d) require a showing
of undisputed and disputed facts.
In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions,
and other authorities on summary judgment and synthesized ten rules in the “new era” on
summary judgment motions:
1. Complex cases are not necessarily inappropriate for summary judgment.
2. Cases involving state of mind issues are not necessarily inappropriate for summary
judgment.
3. The movant must meet the initial burden of showing “the absence of a genuine
issue of material fact” as to an essential element of the non-movant’s case.
4. This burden may be met by pointing out to the court that the respondent, having
had sufficient opportunity for discovery, has no evidence to support an essential
element of his or her case.
5. A court should apply a federal directed verdict standard in ruling on a motion for
summary judgment. The inquiry on a summary judgment motion or a directed
verdict motion is the same: “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.”
6. As on federal directed verdict motions, the “scintilla rule” applies, i.e., the
respondent must adduce more than a scintilla of evidence to overcome the motion.
7. The substantive law governing the case will determine what issues of fact are
material, and any heightened burden of proof required by the substantive law for an
element of the respondent’s case, such as proof by clear and convincing evidence,
must be satisfied by the respondent.

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8. The respondent cannot rely on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact, but must “present affirmative evidence in order
to defeat a properly supported motion for summary judgment.”
9. The trial court no longer has the duty to search the entire record to
establish that it is bereft of a genuine issue of material fact.
10. The trial court has more discretion than in the “old era” in evaluating the
respondent’s evidence. The respondent must “do more than simply show that there
is some metaphysical doubt as to the material facts.” Further, “[w]here the record
taken as a whole could not lead a rational trier of fact to find” for the respondent, the
motion should be granted. The trial court has at least some discretion to determine
whether the respondent’s claim is “implausible.”
Street, 886 F.2d at 1479-80 (citations omitted).
The Court has distilled from these collective holdings four issues that are to be addressed
upon a motion for summary judgment: (1) whether the moving party has “clearly and convincingly”
established the absence of material facts; (2) if so, whether the plaintiff has presented sufficient facts
to establish all the elements of the asserted claim or defense; (3) if factual support is presented by
the nonmoving party, whether those facts are sufficiently plausible to support a jury verdict or
judgment under the applicable law; and (4) whether there are any genuine factual issues with respect
to those material facts under the governing law.
Plaintiff asserts claims for FMLA interference and retaliation. For an interference claim,
absent direct evidence, Plaintiff must prove that: “‘(1) [s]he was an eligible employee, (2) defendant
was a covered employer, (3) [s]he was entitled to leave under the FMLA, (4) [s]he gave defendant
notice of [her] intent to take leave, and (5) the defendant denied [her] FMLA benefits or interfered
with FMLA rights to which [s]he was entitled.’” Harris v. Metro. Gov’t of Nashville and Davidson
Cnty., Tenn., 594 F.3d 476, 482 (6th Cir. 2010) (citation omitted). Under the framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), if Plaintiff establishes her prima facie

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case, then the burden shifts to Defendant to prove a legitimate, nondiscriminatory reason for its
decision. If Defendant successfully carries this burden, then Plaintiff must show that Defendant’s
stated reasons are a pretext for its unlawful conduct. Donald v. Sybra, Inc., 667 F.3d 757, 761-62
(6th Cir. 2012); Jaszczyszyn v. Advantage Health Physician Network, 504 F. App’x 440, 447-448
(6th Cir. 2012).
“[T]o qualify as an eligible employee, an individual must have worked for at least 12 months
– and at least 1,250 hours during the previous 12-month period – for a covered employer. A covered
‘employer,’ in turn, comprises ‘any person engaged in commerce or in any industry or activity
affecting commerce who employs 50 or more employees [within 75 miles of the worksite] for each
working day during each of 20 or more calendar workweeks in the current or preceding calendar
year.’” Grace v. USCAR, 521 F.3d 655, 661 (6th Cir. 2008) (quoting 29 U.S.C. § 2611(2), (4)).
Defendant assumes “for the sake of this summary judgment motion only, that Plaintiff can establish
the first four elements of her prima facie case of FMLA interference, but argues that Plaintiff was
denied benefits or denied any FMLA right to which she was entitled.” (Docket Entry No. 38-2,
Defendant’s Memorandum in Support of Motion for Summary Judgment at 4).
Here, Plaintiff cannot establish a prima facie claim of interference with her FMLA leave
because Plaintiff received all FMLA leave she requested and she was not on FMLA leave when she
was terminated. Travers v. Cellco P’ship, 579 F. App’x 409, 415 (6th Cir. 2014) (“Because
[Plaintiff] received all the FMLA leave that she requested (and thus was not denied benefits as a
result of any alleged violation), [Plaintiff] has not demonstrated prejudice.”); see also Culpepper v.
BlueCross BlueShield of Tenn., Inc., 321 F. App’x 491, 496 (6th Cir. 2009) (“‘[The plaintiff’s]

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FMLA [interference] claim ... must fail. Culpepper received exactly what her doctor ordered – six
days of FMLA leave.’”).
Plaintiff relies upon Wysong v. Dow Chemical Company, 503 F.3d 441 (6th Cir. 2007),
contending that an interference claim arises when FMLA leave is a factor in an employee’s
termination. In Wysong, a plaintiff’s claim that she was terminated for taking FMLA leave was
cognizable under the 29 U.S.C. § 2615(a)(1)-interference theory. The Sixth Circuit explained that
employers “are prohibited from interfering, restraining, or denying the exercise of or attempted
exercise of any FMLA right. This prohibition includes retaliatory discharge for taking leave.” Id.
at 447 (quoting Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 825 (6th Cir. 2002)
(citations omitted)). The Court stated that “[i]f an employer takes an employment action based, in
whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied
the employee a benefit to which he is entitled.” Id. at 447.
In Wysong, the defendant’s regional medical director placed the plaintiff on work restrictions
due to the plaintiff’s neck problems. Id. at 444. Because the plaintiff could not be assigned to a job
consistent with the work restrictions, the plaintiff was told not to come into work. Id. The
defendant’s medical review board informed the plaintiff that she would need to pass a functional
capacity exam (“FCE”) as a condition of returning to work. Id. at 445. The defendant’s medical
director informed the plaintiff that she could not take the FCE unless she stopping taking all pain
medications for two weeks. On the advice of one of her physicians, the plaintiff refused. As a
result, the defendant refused to give the plaintiff the FCE and eventually terminated the plaintiff
because her medical leave of absence status was for a continuous period of six months. Id. The
Sixth Circuit summarized the plaintiff’s claim as follows:

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Wysong’s theory is that she was eventually terminated because of her taking FMLA
leave in 2002. Wysong asserts that Dr. Teter wrote the work restrictions, in part, as
a result of his knowledge that she had taken significant leave time in the past. The
work restrictions prevented her from working, and she states that she could not
comply with Dow’s mandate that she go off all pain medications for two weeks
before taking the FCE. Because she was not reporting to work, Dow terminated her.
According to Wysong, this chain of events indicates that Dow used her 2002 FMLA
leave time as a negative factor in its decision to terminate her.
Id. at 447-48.
Here, there is not any evidence that the Defendant considered Plaintiff’s FMLA leave in its
termination decision. Contrary to Wysong, where the plaintiff was prevented from returning to
work, Plaintiff was reinstated to her former position. Plaintiff was not denied FMLA leave nor leave
for any physical therapy. Therefore, the Court concludes that Plaintiff’s FMLA claim for
interference lacks proof to support a judgment on that claim.
As to Plaintiff’s FMLA retaliation claim, Plaintiff must prove that: “(1) she was engaged in
an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under
the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an
employment action adverse to her; and (4) there was a causal connection between the protected
FMLA activity and the adverse employment action.” Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d
549, 556 (6th Cir. 2006) (citing Arban, 345 F.3d at 404). As with an interference claim, the
McDonnell Douglas burden shifting framework applies. Jaszczyszyn, 504 F. App’x at 447-448.
Plaintiff fails to identify any statement of a decision maker to support as direct evidence of
discrimination. See Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir. 2006) (“‘Direct evidence
is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least
a motivating factor in the employer’s actions.’ It does not require the fact finder to draw any
inferences to reach that conclusion.”) (quoting Kocak v. Cmty. Health Partners of Ohio, Inc., 400
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F.3d 466, 470 (6th Cir. 2005)). Plaintiff stated that no one threatened to fire her at any time because
of her use of FMLA benefits. (Docket Entry No. 45-1 at p. 102). Plaintiff also stated that she did
not complain to anyone at Suncrest that she felt discriminated against or retaliated against because
of her use of FMLA benefits. Id. at p. 103.
If Defendant presents proof of a legitimate reason for Plaintiff’s termination, under the
McDonnell Douglas framework, the burden shifts to Defendant to show a legitimate, nondiscriminatory reason for the adverse employment action. Donald, 667 F.3d at 762. Defendant
asserts that Plaintiff was terminated due to performance issues and inappropriate contact with
vendors. Unprofessional behavior and performance issues are legitimate, non-discriminatory
motives for terminating an employee. See Yazdian v. ConMed Endoscopic Tech., Inc., 793 F.3d
634, 651 (6th Cir. 2015) (“ConMed has asserted legitimate, nondiscriminatory motives for
terminating Yazdian’s employment – insubordination and ‘unprofessional behavior.’”); Danielson
v. City of Lorain, 938 F.2d 681, 683 (6th Cir. 1991) (“The district court found, and we also
conclude, that the City articulated a legitimate, nondiscriminatory reason for dismissing her – poor
work performance.”).
The burden now shifts to Plaintiff to demonstrate that Defendant’s proffered reason for her
termination was a pretext for Defendant’s unlawful action. A plaintiff can show pretext “by
showing that the proffered reason had no basis in fact, did not motivate the termination, or was
insufficient to warrant the termination.” Donald, 667 F.3d at 762 (citing Grace, 521 F.3d at 670).
“‘[A] reason cannot ... be a pretext for discrimination unless it is shown both that the reason was
false, and that discrimination was the real reason.’” Seeger, 681 F.3d at 285 (citation omitted).

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Defendant contends that there is not a causal connection between Plaintiff’s FMLA activity
and her termination, as Plaintiff had performance issues prior to November 7, 2012 and subsequent
to that time. Plaintiff relies upon the temporal proximity of her intermittent FMLA leave and her
termination as establishing a causal connection. According to Plaintiff, she completed therapy in
late February or early March 2013. (Docket Entry No. 44 at ¶ 5).
“‘[T]his Circuit has embraced the premise that in certain distinct cases where the temporal
proximity between the protected activity and the adverse employment action is acutely near in time,
that close proximity is deemed indirect evidence such as to permit an inference of retaliation to
arise.’” Seeger, 681 F.3d at 283 (quoting DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004)).
Yet, “the law in this circuit is clear that temporal proximity cannot be the sole basis for finding
pretext.” Donald, 667 F.3d at 763 (citation omitted).
As to other proof of pretext, Plaintiff contends that she did not contact anyone aboutother
employment. Mann asserts that Randy Bauch and Rosie O’Donnell informed her about Plaintiff’s
employment inquiries. Assuming misunderstandings about Bauch and O’Donnell, Mann’s belief
is sufficient to prove a legitimate business reason. “The ground rules for application of the honest
belief rule are clear. A plaintiff is required to show ‘more than a dispute over the facts upon which
the discharge was based.’” Seeger, 681 F.3d at 285 (quoting Braithwaite v. Timken Co., 258 F.3d
488, 493-94 (6th Cir. 2001)). “‘Rather, the key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse employment action.’” Id. (quoting Smith
v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). Moreover, “[a]s long as the employer held
an honest belief in its proffered reason, ‘the employee cannot establish pretext even if the
employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.’” Id. at 285-86

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(citations omitted). Plaintiff’s proof does not show Defendant’s stated reason for Plaintiff’s
termiantion to be pretextual.
The Defendant also terminated Plaintiff for unapproved absences without prior notice to
Plaintiff’s supervisor. Plaintiff states: “Mann acknowledged that she did not know whether or not
Plaintiff was exercising FMLA leave on the various other days that she believed Plaintiff left work
for personal reasons, but merely believed that she ‘was not working enough.’ Plaintiff did speak
with Mann about her therapy schedule and adhered to the very limited guidance regarding
intermittent leave she received from Duncan.” (Docket Entry No. 42 at 15). Yet, Plaintiff does not
contend that she was exercising FMLA leave on the days that Mann noted her absences. Thus,
Plaintiff fails to demonstrate a connection between her absences and her use of FMLA leave.
Finally, Defendant asserts that Plaintiff was fired for performance issues. Defendant cites
Plaintiff’s discipline in June 2012 and November 2012 as well as her lack of improvement. Plaintiff
asserts that she only began receiving negative performance evaluations after she requested FMLA
leave.
Although Plaintiff’s May 2012 evaluation was favorable, on November 1, 2012, Plaintiff
received a disciplinary “First Warning” that listed several performance issues. (Docket Entry No.
38-12). This meeting was two days after Plaintiff informed Mann that she would need shoulder
surgery, though Mann asserts that she began preparing for this meeting a week prior. (Docket Entry
No. 38-8 at ¶ 6). Mann cited Plaintiff’s issues with expense reports, untimely emails, failure to
update Plaintiff’s daily schedule on tasks and goals, and excessively calling co-workers. (Docket
Entry No. 38-12). Three of these issues were discussed on October 23, 2012, almost a week before

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Plaintiff informed Mann that she would need shoulder surgery. (Docket Entry No. 38-12). The
expense report issue arose on October 30, 2012, and Shannon notified Mann on October 31, 2012.
Plaintiff further asserts that the number of doctors that she visited played a crucial role in
determining the number of referrals she could obtain and that her physical therapy while on
intermittent leave had a direct impact on the number of referrals she obtained during that time frame.
(Docket Entry No. 44, Plaintiff’s Declaration at ¶¶ 7-8). Mann also told Plaintiff that “[t]he rule of
thumb is that the more calls you make, the more opportunities you have for referrals.” (Docket
Entry No. 38-12 at 4). Yet, Plaintiff had low referral numbers before her injury. In June 2012,
Mann and Plaintiff met to address issues with Plaintiff’s referral numbers, and Mann advised
Plaintiff of the need to solicit new accounts. (Docket Entry No. 41 at ¶ 4; Docket Entry No. 45-1
at p. 134). On January 14, 2013, Plaintiff’s annual performance review indicated that she had failed
to meet her quota in January, February, May and September of 2012. (Docket Entry No. 38-17 at
9). Yet, Plaintiff received a bonus in January 2013.
Plaintiff further asserts that Defendant did not follow its progressive discipline policy with
Plaintiff. Plaintiff asserts that if there were a performance issue, she should have been placed on
probation as was her coworker Bob Colvert. (Docket Entry No. 47 at ¶ 49). The progression of
discipline, however, is not mandatory and states: “[d]epending on the conduct, disciplinary steps
may be enforced by the following methods and generally in the listed order: verbal warnings; written
warnings; suspension; dismissal.” (Docket Entry No. 45-4 at 31). Colvert’s situation was different,
as Colvert was new to the position and he was given time to “ramp up” because his accounts were
later changed. Id. Although Colvert was also eventually terminated for not meeting his quotas,
as a probationary employee Colvert is not comparable to Plaintiff. Thus, Plaintiff’s proof fails to

25

establish that she is “similarly-situated to the non-protected employee in all relevant respects,”
including his specific history of performance issues and his special circumstances. Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998).
Finally, Plaintiff’s was not terminated for her absences. Plaintiff was disciplined for not
keeping up with her schedule. Mann told Plaintiff that if Plaintiff was “unable to work,” Plaintiff
should notify Mann so leave could be used. (Docket Entry No. 38-19 at 1-2). Plaintiff has not
presented any evidence to show nor does she assert that her unscheduled and undocumented
absences were due to FMLA leave.
Accordingly, the Court concludes that Plaintiff has failed to meet her burden to prove that
Defendant’s legitimate, non-discriminatory reason for terminating her was a pretext for retaliation.
For these reasons, the Court concludes that Defendant’s motion for summary judgment
(Docket Entry No. 38) should be granted.
An appropriate Order is filed herewith.
ENTERED this the

day of September, 2015.

WILLIAM J. HAYNES, JR.
Senior United States District Judge

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