Opinion
Case Number 02-10267-BC
January 6, 2004
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff in this case was employed as the development director at Nouvel High School, a regional high school run by the Catholic Diocese of Saginaw located in mid-Michigan. According to her doctor, the plaintiff became unable to work in August 2000, approximately three months into a pregnancy. She did not return to work until March 2001, 33 weeks after she commenced her leave. When she reported for work, the new high school principal informed her that she was assigned to a new position with the same salary and benefits, according to a plan he had devised to reorganize the development office. The plaintiff perceived this reassignment as a demotion, tendered a letter of resignation a few days later, and then commenced this suit in the Saginaw County Circuit Court contending that the defendants violated her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., and discriminated against her on account of her pregnancy in violation of Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 31.2101, et seq. The defendants have moved for summary judgment on both counts. The Court heard the parties' arguments through counsel in open court on December 15, 2003. The Court now finds that although the defendants failed to comply with the Department of Labor's rules for designated leave time as falling under the FMLA, the plaintiff has failed to bring forth evidence that she suffered prejudice as a result since she was not medically able to return to work within 12 weeks of her leave commencement. She, therefore, has not shown that she is entitled to invoke the remedial provisions of the FMLA. The plaintiff likewise has failed to create an issue of fact on the question of whether discrimination based on her pregnancy was a factor that motivated the defendants to change her assignment upon her return to work. The Court will grant the defendants' motion for summary judgment and dismiss the case.
I.
The plaintiff began working for Nouvel as the Director of Development, a position which "involved aspects of marketing, fundraising, community involvement, and the development of relationships with donors and donor organizations," on September 8, 1998. At that time, Stanley DeVoir was principal of Nouvel and the plaintiff's direct supervisor. The plaintiff became pregnant in May 2000. In July 2000, Mr. DeVoir resigned and was replaced by Charles Sorentino as the new principal. Sorentino initially commuted from the Detroit area and was not at Nouvel on a regular daily basis.
The plaintiff became unable to perform her job due to complications arising from her pregnancy in August 2000. She requested a medical leave of absence and was approved for short-term disability on August 14, 2000, and began receiving benefits on August 22, 2000. The plaintiff contends that she thought this leave did not count towards leave under the FMLA based upon representations made to her by Liz Nicol, Nouvel's business manager. This understanding was fortified, she contends, by a memorandum issued by the new principal to Nouvel employees on July 1, 2000, which stated: "Disability insurance is an income protection program that is provided for all full-time school employees. Short term coverage begins on the 8th calendar day after the disability leave commences and continues for no more than 26 weeks at two-thirds pay up to a maximum of $500 [per] week. A qualifying claim would involve pregnancy . . . that prevents the employee from performing his/her job." Pl.'s Appx. to Br. Opposing MSJ Ex. 5. However, the section of the memorandum dealing with "Family and Medical Leave" states that "[s]hort-term disability benefits may be available for an eligible employee who is requesting time off for the employee's own serious health condition that prevents the employee from performing the employee's assigned job." Ibid.
The Diocese Family Medical Leave Policy, contains the following language: "If an employee takes paid sick leave for a condition that progresses into a serious health condition and the employee requests unpaid leave as provided under this policy, the Diocese may designate all or some portion of the related leave taken under this policy to the extent that the earlier leave meets the necessary qualifications." Pl.'s Appx. to Br. Opposing MSJ Ex. 6. It is undisputed that the defendants did not designate the plaintiff's initial leave as qualifying leave under the FMLA.
In October 2000, Sorentino began implementing a reorganization of the development office in the plaintiff's absence. As part of that effort, he named Ann Szymanowski, a prior subordinate of the plaintiff, as the Interim Director of Development. The plaintiff, meanwhile, notified Nouvel on November 6, 2000 that her medical condition would not allow her to return to work until after the birth of her child. She continued to receive short-term and long-term benefits during this period due to her inability to work.
The plaintiff's child was born on January 26, 2001. On February 6, 2001, Sorentino wrote the plaintiff a letter requesting the date that she anticipated returning to work. The plaintiff sent a letter to Sorentino on February 15, 2001, which was her first communication with personnel at Nouvel following the birth of her child. In that letter, the plaintiff announced her intention to take leave under the FMLA for 12 weeks beginning with the date of the child's birth, which would span from January 26, 2001 through April 26, 2001. She stated: "It is my intention to take twelve weeks of Family Leave time. During that time, I have requested the remainder of my sick, personal and vacation pay for this school year as required. The remaining time, I will take without pay. I plan to return to my position as Director of Development on April 26, 2001. At that time I will provide Nouvel with the necessary documents for a return to work from my physician". Ltr to Sorentino from Thompson dated Feb. 15, 2001, Pl.'s Appx. to Br. Opposing MSJ Ex. 4.
On March 5, 2001, Sorentino wrote to the plaintiff following a conversation and told her that she would not qualify for leave under the FMLA because she had not worked at least 1250 hours during the preceding 12 months. Sorentino then calculated the time remaining on the plaintiff's leave and accumulated vacation, sick and personal days and determined that she must return to work on March 30, 2001. On March 12, 2001, the plaintiff responded by letter to Sorentino, writing that "I do not understand why you believe that I do not qualify [for the requested FMLA leave]." Ltr to Sorentino from Thompson dated Mar. 12, 2001, Pl.'s Appx. to Br. Opposing MSJ Ex. 9. Nonetheless, she returned to work on March 30, 2001 with a certificate from her doctor. What happened next, was documented by Sorentino in a memorandum:
The following is a summary of my meeting this morning with Amy Thompson. Also in attendance was John Cuthbertson, Assistant Principal. Amy arrived in the main office at approximately 7:45 a.m. . . . She presented Mary Sullivan, my secretary, with a doctor's note allowing her return to work. The meeting started with me asking how she felt. . . . I then proceeded to explain that I was reassigning her duties in the development office to that of Coordinator of Fundraising Activities. I explained that her pay and benefits were not changing. I handed her the job description and went over it in its entirety.
Amy wanted an explanation about why she was being "demoted." I explained that the School Council had approved my plan for reorganizing the Development Department so that it could meet our projected goals. I said I felt that this reorganization and her place in the department were in the best interest of the future of the school. I spoke of the critical nature the school found itself in this year and outlined changes in the leadership structure. She felt that she should have been notified of this change before her return to work. I told her that according to the employee handbook I had a right to reassign her duties. She also asked whether her pay would be the same when contract renewal came up. I said I couldn't answer that question at this time. She wanted to know when this reorganization was implemented. I replied that I didn't have the exact date immediately at hand.
Amy said that she was within her right to have the Family and Medical Leave. I replied that she did not meet the 1250-hour requirement prior to one year of the request. She said she was requesting the date of this FMLA to commence from January 29, 2001 not from the end of her disability. I said the request that we received from her dated February 14, 2001 does not reflect this date
Near the conclusion of the meeting, Mrs. Thompson said she would need the weekend to reflect on this "new job offer." I reiterated several times that this was not a new job offer; this was a reassignment of her duties. It was clearly relayed that her intent to leave at the conclusion of the meeting meant she was refusing to work. She said she didn't see it that way. At that point, I reminded her that she was refusing to work, if she left. The meeting concluded with Amy leaving the office and building saying she would be in contact on Monday.
Memo to Fr. Tom Sutton from Sorentino dated Mar. 30, 2001, Pl.'s Appx. to Br. Opposing MSJ Ex. 10.
The plaintiff did not return to work. The parties dispute the significance of that action. The defendants claim that the plaintiff voluntarily terminated her employment on that day, rather than accept her reassignment. Thompson did eventually submit a letter of resignation, but she apparently viewed the events differently since she later filed suit alleging claims against the defendants for violations of the FMLA and the ELCRA. The plaintiff originally brought her claims in the Saginaw County, Michigan Circuit Court, but the defendants removed the case to this Court on federal question grounds under 28 U.S.C. § 1441(b).
The defendants have moved for summary judgment on the FMLA claim arguing that the plaintiff returned to work long after the 12-week period allowed by the FMLA expired, and she therefore was not entitled to claim any rights thereunder. The plaintiff responded with the argument that the defendants did not properly designate any of the paid leave period as qualifying leave under the FMLA, and therefore the plaintiff was entitled to measure the 12-week period beginning with her designation starting January 26, 2001. The defendants also argue that the plaintiff has failed to offer any evidence that a motivating factor for the defendants' adverse job action against the plaintiff was illegal discrimination on the basis of her pregnancy.
II.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. NASA, 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Ctr. v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Krqft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Per. Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). "[T]he party opposing the summary judgment motion must `do more than simply show that there is some "metaphysical doubt as to the material facts."'" Highland Capital, Inc. v. Franklin Nat'l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994), and Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "Thus, the mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Ibid. (quoting Anderson, 477 U.S. at 252; internal quote marks omitted).
A.
Under the FMLA, eligible employees are entitled to as many as 12 weeks of leave during a one-year period upon the occurrence of a number of health-related events, including "the birth of a son or daughter of the employee and in order to care for such son or daughter," and "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(A), (D). If the employee returns to work within 12 weeks, the employee is entitled to be restored to his or her prior job or to an equivalent position if the prior job is no longer available. 29 U.S.C. § 2614(a)(1). An employer is prohibited from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided" under the FMLA, and may not discharge or discriminate in any way against an employee for opposing practices that are unlawful under the FMLA. 29 U.S.C. § 2615. The FMLA provides a cause of action for employees to enforce their FMLA rights on the basis of either an entitlement or interference theory, or on the basis of retaliation or discrimination by an employer for the employee's use of leave under the Act. 29 U.S.C. § 2617(a).
The 12 weeks of unpaid leave was intended by Congress to set a minimum standard for qualifying employers, but Congressional policy encourages employers to provide more generous benefits. For example, some employers allow more than 12 weeks of leave; others provide paid leave; and yet others designate certain leave as not counting against the 12 weeks allotted under the FMLA. See U.S. Dept. of Labor, D. Cantor et al., Balancing the Needs of Families and Employers: Family and Medical Leave Surveys 5-10, 5-12 (2001) (cited in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 87 (2002)). Congress has authorized the Department of Labor to enact rules to carry out the purposes of the Act. See 29 U.S.C. § 2654. Pursuant to that authority, the Department of Labor has promulgated rules for employers to follow in designating the paid and unpaid leave that will count against the FMLA-mandated 12 weeks.
Simply put, the regulations state that "it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section." 29 C.F.R. § 825.208(a). According to the regulations, an employer's failure to give an appropriate notice designating leave as FMLA-qualifying leave precludes the employer from counting any of the absences against the FMLA's 12 weeks. See 29 C.F.R. § 825.208(c) ("[T]he employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement.").
In this case there is no dispute that the defendants failed to notify the plaintiff that any of her disability leave commencing in August 2000 was considered by them as FMLA leave. The Sixth Circuit has held that in such circumstances, an employee's pre-designation absences cannot be counted against the FMLA's 12 weeks, and an employee who returns to work within 12 weeks of the designation enjoys the protection of the FMLA despite an actual absence that exceeds 12 weeks. See Plant v. Morton Int'l, Inc., 212 F.3d 929, 935-36 (6th Cir. 2000). The plaintiff relies on this authority to support her claim that the 12-week clock did not start to run until she made a request for FMLA leave to commence on January 26, 2001.
However, the force of 29 C.F.R. § 825.208(a) (c) and the authority of Plant has been undercut by the Supreme Court's decision in Ragsdale, which held that the Secretary of Labor's "categorical penalty" imposed for violating the Secretary's notice regulations, which effectively extends the protection of the FMLA beyond the 12-week leave period, "is contrary to the Act's remedial design" and is invalid. Ragsdale, 535 U.S. at 88. The Court criticized the regulation at issue in that case because it penalized the employer for failure to give notice even when that lapse did not cause the employee to suffer any loss. The Court found this to be "incompatible" with the remedial scheme designed by Congress.
To prevail under the cause of action set out in § 2617, an employee must prove, as a threshold matter, that the employer violated § 2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, § 2617 provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost "by reason of the violation," § 2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation," § 2617(a)(1)(A)(i)(II), and for "appropriate" equitable relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered.Id. at 89. The Court did not dismiss entirely the possibility that an employer's failure to notify an employee that leave was designated as FMLA leave might burden an employee's exercise of rights under the FMLA and that such failure might be actionable. However, the Court rejected the Secretary's regulation as "extreme," contrary to the penalty provisions in the Act, and disruptive of the balance Congress attempted to reach between the interests of employers and employees in setting the protected leave time at 12 weeks. "The penalty provision does not say that in certain situations an employer's failure to make the designation will violate § 2615 and entitle the employee to additional leave. Rather, the regulation establishes an irrebuttable presumption that the employee's exercise of FMLA rights was impaired — and that the employee deserves 12 more weeks. There is no empirical or logical basis for this presumption." Id. at 90. The Court therefore concluded that "[t]he challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice," and "work[s] an end run around important limitations of the statute's remedial scheme." Id. at 90-91.
In Ragsdale, the specific focus of the Court's discussion was the Secretary's regulation found at 29 C.F.R. § 825.700(a) (2001), which states: "If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." The Court's reasoning, however, has broader reach. Other regulations governing the application of the FMLA contain "categorical penalties" and have been held invalid by courts in this Circuit. For instance, 29 C.F.R. § 825.208, upon which the plaintiff here relies, was declared invalid, based on Ragsdale's, reasoning, in Donahoo v. Master Data Ctr., 282 F. Supp.2d 540, 555 (E.D. Mich. 2003) (observing that "[e]ven though Ragsdale expressly invalidated only § 825.700(a), that regulation's notice provisions are almost identical to those in § 825.208, and its reasoning and holding — that when an employer violates a regulation by failing to give notice that an employee's leave will be counted as their FMLA leave, the employee is not automatically entitled to additional leave or FMLA protection — should apply equally to Plaintiffs argument here"). See also Summers v, Middleton Reutlinger, P.S.C., 214 F. Supp.2d 751, 757 (W.D. Ky. 2002) (finding that Ragsdale impliedly overruled Plant, and holding that the plaintiff must show actual prejudice as a result of the defendant's failure to notify her that her leave was an FMLA leave); Roberson v. Cendant Travel Servs., Inc., 252 F. Supp.2d 573, 577 (M.D. Tenn. 2002) (same).
This Court likewise concludes that an employer's violation of the notice regulations, specifically 29 C.F.R. § 825.208, does not automatically entitle an employee to additional leave beyond 12 weeks or establish a right to recovery under 29 U.S.C. § 2615 and 2617. Rather, the employee must also prove that she suffered prejudice by the employer's failure to properly notify her of her rights under the FMLA or that certain leave would be counted against her FMLA allotment. See Ragsdale, 535 U.S. at 91 (calling for a case-by case examination in court in order to "inquire into matters such as whether the employee would have exercised his or her FMLA rights in the absence of the employer's actions. To determine whether damages and equitable relief are appropriate under the FMLA, the judge or jury must ask what steps the employee would have taken had circumstances been different — considering, for example, when the employee would have returned to work after taking leave.").
The plaintiff here argues that there is a material fact question on the issue of prejudice because she insists that she might have structured her pregnancy leave differently had she known that here time off work commencing in August 2000 would be considered FMLA leave. She has filed an affidavit in which she catalogs several tasks that she claims she could have performed at home. In other words, the plaintiff says she could have continued to work, at least in some measure, despite her disability. However, the plaintiff filed a claim, supported by her physician's statement, that she qualified for short-term disability benefits. see Def.s' Reply Br. Ex J. As noted above, one may not claim disability benefits under the defendants' short-term disability program unless she suffers from "a serious health condition that prevents the employee from performing his/her job." Pl.'s Appx. to Br. Opposing MSJ Ex. 5 (emphasis added). The plaintiff signed the short-term benefit application below the legend that stated: "Any person who knowingly, and with intent to injure, defraud, or deceive and insurance company, files a statement of claim containing any false, incomplete or misleading information is guilty of a felony." Def.s' Reply Br. Ex J. The plaintiff cannot create a fact question by making contradictory statements in the record herself. See Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991) (observing that "it is well settled that a plaintiff may not create a factual issue for the purpose of defeating a motion for summary judgment by filing an affidavit contradicting a statement the plaintiff made in a prior deposition"). Moreover, there is no evidence that her job as development director, which apparently required a significant presence in the community, see Pl.'s Appx. to Br. Opposing MSJ Ex. 2 (job description), could have been performed effectively at home, or that the defendants would have permitted her to do that given the physical limitations certified by her physician.
The Court concludes that there is no evidence on this record that the plaintiff could have returned to work within 12 weeks of her leave commencement in August 2000 regardless of the notice the defendants might have given her regarding her rights and responsibilities under the FMLA. An employee who does not return to work within the 12-week period specified by the FMLA may not claim the protection provided by the Act. See Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 785 (6th Cir. 1998). The plaintiff's FMLA claim, therefore, will be dismissed.
B.
The plaintiff has also claimed that the defendants unlawfully discriminated against her on account of her pregnancy in violation of the ELCRA. Michigan law prohibits an employer from "fail[ing] or refus[ing] to hire, or recruit, or discharge, or otherwise discriminat[ing] against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of . . . sex." Mich. Comp. Laws § 37.2202(a). According to the Michigan legislature, "`sex' includes, but is not limited to pregnancy, childbirth, or a medical condition related to pregnancy or childbirth." Mich. Comp. Laws § 37.2201(d). To make out a claim of sex discrimination under that statute, a plaintiff must produce evidence that she suffered an adverse employment action and that sex was a determining factor in the employer's decision. Sniecinski v. Blue Cross and Blue Shield of Michigan, 469 Mich. 124, 134-35, 666 N.W.2d 186, 193-94 (2003).
As is the case under federal civil rights statutes, the elements of a civil rights claim under Michigan law may be proved by direct or circumstantial evidence, id. at 132, 666 N.W.2d 192. (holding that "[p]roof of discriminatory treatment in violation of the CRA may be established by direct evidence or by indirect or circumstantial evidence"), and Michigan courts frequently "turn to federal precedent for guidance in reaching [their] decision" to determine whether a claim has been established in discrimination cases. Radtke v. Everett, 442 Mich. 368, 382, 501 N.W.2d 155, 162 (1993) (quoting Sumner v. Goodyear Co., 427 Mich. 505, 525, 398 N.W.2d 368 (1986)). For analytical purposes, Michigan's Elliott-Larsen Act resembles federal law, and the same evidentiary burdens prevail as in Title VII cases. See Sniecinski, 469 Mich. at 135, 666 N.W.2d at 194; Sumner, 427 Mich. at 525, 398 N.W.2d at 376; Jenkins v. Southeastern Mich. Chapter, Am. Red Cross, 141 Mich. App. 785, 793 n. 2, 369 N.W.2d 223, 227 n. 2 (1985); Gallaway v. Chrysler Corp., 105 Mich. App. 1, 4-5, 306 N.W.2d 368, 370-71 (1981). In this case, the plaintiff does not contend that there is direct evidence of discrimination.
The well-known burden-shifting methodology described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), is employed when there is no direct evidence of discriminatory animus and the plaintiff must resort to circumstantial evidence to prove that element. See Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999). To prevail under this framework, a plaintiff must present a prima facie case, at which point the defendant must come forward with a legitimate, non-discriminatory reason for its action. If the defendant is able to offer such a reason for the adverse employment action, the plaintiff must offer evidence that the defendant's justification is a pretext that masks its true discriminatory intent. See Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003).
The defendants appear to concede that Thompson established a prima facie case of discrimination, assuming for the purpose of argument that the reassignment of the plaintiff to a position that reported to a former underling constituted "adverse action" by her employer. Therefore, the burden shifts to the defendants to articulate some legitimate, nondiscriminatory reason for placing the plaintiff in a different position when she returned to work. The defendants have met this burden by offering evidence that Thompson was reassigned based upon Sorentino's concerns regarding the plaintiff's job performance prior to the commencement of her leave of absence. See Def.s' Appx. to Br. in Support of MSJ Ex. C, Sorentino dep. at 33 (testifying that "I would say under energy level, I would specifically say I did not observe her to interact well in social situations where potential benefactors were present"). Sorentino also testified that Nouvel was not attracting new donors and that wealthy benefactors began decreasing their contributions to the school. Id. at 50. Sorentino also stated that he believed the entire development office required restructuring. He testified that "[reorganizong the department] was part of an overall strategic plan, five-year strategic plan for the entire Nouvel Catholic Central School. Specifically, I reforumlated it so that it could meet the needs of the school, the financial needs of the school." Id. at 58-59. As a result of the reorganization, two new positions were created, a full-time secretary was hired, and the development director position was retained. The plaintiff failed to prepare any outline for the continued functioning of her office prior to going on leave. Id. at 64. Thus, Sorentino assigned someone to take the plaintiff's position during this period, and he decided to replace the plaintiff after observing the interim development director, who is also a woman of child-bearing years, capably performing her duties. Id. at 65.
The plaintiff does not dispute that the defendant's proffered justification is facially legitimate. However, the plaintiff alleges that the reasons are a pretext that was intended to conceal the defendants' intention to discriminate against her on account of her pregnancy. In this circuit, a plaintiff can demonstrate pretext "by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Johnson, 319 F.3d at 866. A leading Sixth Circuit case, Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994), provides a thorough gloss on each of these methods of proving pretext. There, the court explained that the first method consists of a challenge to the factual basis for the employer's claim — i.e. "evidence that the proffered bases for the plaintiff's discharge never happened." Id. at 1084. When using this method, the plaintiff need not introduce additional evidence of discrimination beyond his prima facie case. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (holding that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). The second method usually encompasses an acknowledgment by the employee that events proffered by the employer actually occurred and that they could justify dismissal, but it adds the argument that the employer's proffered reason was not the true motivation. "In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it `more likely than not' that the employer's explanation is a . . . coverup." Manzer, 29 F.3d at 1084. The third method calls for a comparison of the treatment of similarly-situated employees outside the protected group, demonstrating that they "were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff." Ibid.
Here, the plaintiff does not offer any evidence contradicting the allegations that the development office needed restructuring or that it was becoming less effective. Nor does she contend that those reasons could not have motivated a principal to want to make a change. Rather, the plaintiff claims that poor performance and the need to restructure the development office under someone else's leadership could not have been the defendants' true motivating factor. The plaintiff insists that she worked and excelled as the Director of Development since September 8, 1998, and her two years of work and accomplishment are established by the testimony of Nouvel's former principal, Stanley DeVoir. According to the plaintiff, after a history of exemplary work, the successor principal, Sorentino, in less than one week of working with the plaintiff, could not have properly concluded that she could not do the job.
According to the Sixth Circuit, when a plaintiff relies on this so-called "second method" to prove pretext, there must be an enhanced showing of discrimination beyond the prima facie case.
The second showing . . . is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext, or coverup.
If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing, however, the entire "burden shifting" analysis of McDonnell Douglas and its successors would be illusory. No case could ever be culled out after the prima facie stage and every case would have to be determined by a jury. We do not believe that this was the intent of Congress or the outcome envisioned by the Supreme Court in its long line of cases implementing employment discrimination legislation. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of . . . discrimination.Manzer, 29 F.3d at 1084.
The plaintiff has not offered any such evidence of discrimination. She fails to create a genuine issue of material fact regarding whether she was reassigned to a different position by her employer because of her pregnancy. Thompson claims that she had done a stellar job; that Sorentino was unfamiliar with her work; and that no real basis (except for the fact that she became pregnant) existed for placing her in a different position when she returned to work. However, when this evidence is viewed in a light most favorable to the plaintiff, it does not demonstrate that discrimination instead of some other nondiscriminatory reason led to her reassignment to other duties. It does not amount to the showing necessary to establish pretext for purposes of avoiding summary judgment. The plaintiff has not demonstrated that Sorentino's concerns were fabricated for the purpose of replacing the plaintiff with someone else based upon the fact that she had been a pregnant woman. The plaintiff has not offered circumstantial evidence of an illegal, discriminatory motive on the part of the defendants sufficient to avoid summary judgment on her ELCRA claim.
III.
As noted above, under the prevailing authority, a plaintiff must show that an employer's failure to abide by the Department of Labor's regulations governing notification of employees of their rights and responsibilities under the FMLA caused prejudice to the employee. In this case, the plaintiff has not brought forth evidence sufficient to withstand summary judgment that demonstrates that she would have — or could have — returned to work within 12 weeks of when she first began her leave, even if the defendants had provided her with accurate information concerning her rights under the FMLA. Likewise, the plaintiff has not shown that unlawful discrimination motivated her employer's decision to reassign her to other duties after she returned from her pregnancy leave.
Accordingly, it is ORDERED that the defendants' motion for summary judgment [dkt #28] is GRANTED.
It is further ORDERED that the complaint is DISMISSED with prejudice.