REXHAJ v. SWEEPING CORPORATION OF AMERICA (2024)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 30)

Arif Rexhaj worked for Sweeping Corporation of America (SCA) and its predecessor company as a diesel mechanic from September 2020 until March 2022, when his employment ended after a dispute concerning his sick leave. Rexhaj is of Albanian descent, Muslim, and speaks English with an accent. Asserting he was harassed because of his race, religion, and ethnicity, Rexhaj sued SCA, raising multiple claims for violations of federal and state employment protections—and also state tort claims against his former supervisor, Brett Hammond.

SCA and Hammond have moved for summary judgment as to some of Rexhaj's claims. For the reasons below, the motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Arif Rexhaj immigrated to the United States from Kosovo in 2005. Rexhaj Depo., ECF No. 30-5, PageID.326. He was hired by C&J Sweeping, SCA's predecessor company, as a diesel mechanic in September 2020 after developing a relationship with its senior mechanic, Ali Mulaj.¹ ECF No. 30-5, PageID.329. SCA is a large corporation headquartered in Ohio which operates street sweeping companies nationwide. ECF No. 30-3, PageID.287.

A. SCA Takeover

In late 2020 C&J was sold to SCA, and SCA took over operation of Rexhaj's shop in January 2021. Mulaj Depo., ECF No. 30-11, PageID.444. SCA's ownership brought with it changes in management. For instance, Mulaj was given an office and assumed a more managerial role. ECF No. 30-11, PageID.447. SCA also introduced a regional fleet manager, O.J. Hatfield, who visited Rexhaj's shop every month or so. ECF No. 30-11, PageID.457; ECF No. 30-3, PageID.286. And it hired a site manager, Greg McLain, to report to the shop daily. ECF No. 30-11, PageID.449.

For Rexhaj, things remained largely the same under the new ownership; his duties did not change, and he worked in the shop much as he had before. ECF No. 30-5, PageID.330.

B. Problems with Hammond

When McLain left the company in May 2021, and SCA hired Brett Hammond to replace him, problems began to arise for Rexhaj and other employees. ECF No. 30-11, PageID.451-52; ECF No. 30-5, PageID.331. At that point, SCA also introduced a regional manager, Mat Andrews. ECF No. 30-5, PageID.331; ECF No. 30-11, PageID.451. Andrews checked in at Rexhaj's shop around twice a month. ECF No. 30-5, PageID.331; ECF No. 30-12, PageID.504. Hammond, meanwhile, was on site daily as the shop manager. Mulaj says that Hammond and Andrews were “like two peas in a pod;” they shared internal jokes, which often involved them grabbing their genitals and telling one another to “come suck them.” ECF No. 30-11, PageID.451, 458.

Rexhaj and Mulaj testified that Hammond began creating an uncomfortable atmosphere in the shop from the outset of his arrival there. ECF No. 30-5, PageID.332; ECF No. 30-11, PageID.452. He showed up acting “weird” and “wired.” ECF No. 30-11, PageID.452. Mulaj and Rexhaj recall that, while they were standing on the shop floor with some other mechanics trying to diagnose an engine problem, Hammond “hopped” out of his office into the middle of the group, got down on his knees, and asked, “Is this a circle jerk?” ECF No. 30-5, PageID.332; PageID.30-11, PageID.452. Rexhaj and Mulaj testified that they and the other mechanics had never seen such behavior from management, so they dispersed in shock. ECF No. 30-5, PageID.332; ECF No. 30-11, PageID.453. This set the tone for a toxic environment for months to come.

According to Rexhaj, Hammond's conduct was not limited to sexual remarks. He testified that Hammond also kept up a constant stream of derogatory remarks towards Albanians and Muslims, calling Albanians “terrorists” and commenting, “This is not Albania,” and “Muslims are not white people.” ECF No. 30-5, PageID.336, 347. When the shop ordered pizza for lunch, Hammond would make remarks like, “These fucking Albanians. This fucking Muslim, why don't you eat pork?” ECF No. 30-5, PageID.336. When Rexhaj asked Hammond for leave to honor a death in the family in a traditional Islamic manner, Hammond refused to grant it. ECF No. 30-5, PageID.336.

Rexhaj testified that Hammond's behavior rapidly escalated. According to Rexhaj, Hammond approached him in the bathroom several times when he was changing out of dirty clothes at the end of his shift, touched his chest, slapped his buttocks, and made comments like, “Oh, you have a fine ass, fine ass,” and “Look, you have no hair on your chest.” ECF No. 30-5, PageID.332. Rexhaj asked Hammond to stop to no avail. ECF No. 30-5, PageID.332. He told Mulaj about the behavior, and Mulaj promised he would do something about it. ECF No, PageID.332-33.

Mulaj testified that, because he was receiving other complaints about Hammond and personally experiencing some troubling behavior (Hammond commented that his grandfather was a Nazi, for instance, and asked if Mulaj was a terrorist because he was Muslim), he raised some general concerns about Hammond's behavior with Andrews over lunch at a coney island restaurant less than a month after Hammond was hired. ECF No. 30-11, PageID.455. According to Mulaj, as he spoke with Andrews about Hammond's behavior, Andrews became “aggravated.” ECF No. 30-11, PageID.455-56. (Andrews does not recall this exchange and maintains that Mulaj never reported any complaints about Hammond to him. ECF No. 30-12, PageID.510, 513.)

According to Mulaj, Hatfield came to the shop about once a month during this time and was taken aback by Hammond's behavior. ECF No. 30-11, PageID.456. (He admits, though, that Hatfield did not witness Hammond make any sexual or religious remarks.) Mulaj recalls Hatfield asking, “Is he [Hammond] always wired up, that wired up?” ECF No. 30-11, PageID.456. When Mulaj said “yes” and commented that Hammond “swore like a sailor,” Hatfield got very quiet. ECF No. 30-11, PageID.456. Hatfield does not recall this exchange; he testified that swearing could be expected in the shop (he swore sometimes himself) but vulgar sexual language would never be appropriate. ECF No. 30-3, PageID.290.

A combination of two incidents with Hammond caused Rexhaj to walk off the job in July 2021. ECF No. 30-5, PageID.333.

During the first incident at the end of June, which was captured on the shop's video camera, Hammond can be seen approaching Rexhaj after he had just finished washing up after a repair and was leaning against an oil drum without his shirt on, catching his breath. Hammond takes his water bottle and hurls its contents at Rexhaj, who slips and nearly falls trying to avoid it. Hammond approaches Rexhaj, touches one shoulder, and then rubs both of his shoulders. Rexhaj appears to be shaking his head “no” and points his finger at Hammond. Hammond appears to look towards some bystanders then squats down and puts his arms briefly around Rexhaj's hips before moving them up to Rexhaj's shoulders, embracing him, and backing away. All the while, Hammond appears to be talking to an audience as he handles Rexhaj. Mulaj observed this incident and testified that there was some groping involved. ECF No. PageID.30-11, PageID.456.

The second incident happened at the beginning of July. Rexhaj says he was lying on the ground in the shop working on a truck with his body half underneath the vehicle. As he worked, Hammond came out of the office and sat on his lap without warning. ECF No. 30-5, PageID.333. Mulaj was not present for his incident, but Rexhaj testified that he immediately told him about it, remarking, “You promised me you were going to fix this and here we go, it just happened again.” ECF No. 30-5, PageID.333. Rexhaj says he finished his repairs on the truck and left the shop without taking lunch. ECF No. 30-5, PageID.333.

Mulaj testified that, after the video incident, he was so alarmed by Hammond's conduct that he forwarded stills of the video footage to Gerry Kesselring (an SCA higher-up) and called him about it. ECF No. 30-11, PageID.457. It is disputed when SCA officials learned about the incident. Hatfield recalls watching the video with Hammond and forwarding it to SCA's lawyers but does not remember when. ECF No. 30-3, PageID.292-93. Andrews, meanwhile, says that Mulaj sent a “threatening screenshot,” prompting an investigation into an alleged sexual assault of a different employee, but denies this occurred while Mulaj was still employed at SCA. ECF No. 30-12, PageID.510. The timeline of any investigation by SCA officials and Andrews's involvement is uncertain; Mulaj and Rexhaj believe it occurred before Mulaj was fired in August 2021; Andrews maintains it occurred afterwards. SCA's internal reports suggest any formal investigation occurred only after Mulaj was no longer with the company. See ECF No. 30-10, PageID.426.

But regardless of when SCA conducted its investigation, Rexhaj did not return to work for a few days, until Mulaj called him and promised him Hammond's behavior had been dealt with. ECF No. 30-5, PageID.333. Rexhaj testified that, on his return, he had a conversation with Hammond about appropriate workplace behavior, and things returned to “normal” for a while. ECF No. 30-5, PageID.333. In early August 2021, Hatfield and Andrews visited the shop and met with Rexhaj and Mulaj. ECF No. 30-5, PageID.333. Seemingly satisfied with their performance, they discussed promotions for both of them. Mulaj seemed to be onboard with this restructuring but commented that he had a leave request pending. ECF No. 30-11, PageID.458.

C. Mulaj's Termination

On August 13, 2021, just a day after Hatfield and Andrews met with Rexhaj and Mulaj to discuss the promotions over a lunch, Mulaj was abruptly fired. Mulaj had been with the company in its various forms since 1998. Rexhaj stayed on and was promoted to shop manager. ECF No. 30-5, PageID.334.

Rexhaj recalls speaking briefly to an SCA lawyer either shortly before or after Mulaj was fired. The lawyer was making accusations that Mulaj had stolen tools and equipment. ECF No. 30-5, PageID.334, 337, 340. During the conversation, the lawyer asked Rexhaj to sign some paperwork that he did not understand (and has not been made a part of the record). ECF No. 30-5, PageID.334. The lawyer also asked whether Rexhaj had experienced any inappropriate behavior from Hammond. Rexhaj admits that he did not tell the lawyer anything except that he did not want to be involved in an investigation. ECF No. 30-5, PageID.334. He testified that there were two reasons for this. First, at this point, he believed his conversation with Hammond had resolved the issue. ECF No. 30-5, PageID.334. Second, Hammond had threatened him about “mess[ing] around with SCA's lawyers” because of his immigration status. ECF No. 30-5, PageID.335, 340, 346. According to Rexhaj, Hammond had quipped during this conversations, “Well, if they deport you, I'll take care of your wife and kids.” ECF No. 30-5, PageID.341.

Rexhaj testified that, for about a month after he became the shop manager, he did not have any issues with Hammond—aside from his swearing and temper, which Rexhaj had gotten used to. ECF No. 30-5, PageID.335, 337. But then, unfortunately, the inappropriate touching resumed. ECF No. 30-5, PageID.337. Rexhaj says that he did not report the behavior to anybody because he felt he did not have the opportunity, especially after Andrews was fired as regional manager in February 2022. ECF No. 30-5, PageID.337; see also Andrews Depo., ECF No. 30-12, PageID.502. Hatfield visited only once after the harassment resumed but there were other, more pressing concerns to discuss during his short visit; for instance, the shop had changed locations and was having issues with robberies, and drivers and mechanics were not coming to work. ECF No. 30-5, PageID.337. Rexhaj was left largely on his own to deal with shop issues, and Hammond would not tell him when he approved leave for other mechanics. ECF No. 30-5, PageID.30-5, PageID.338.

D. Health Problems & End of Employment

By February 2022, Rexhaj had fallen into a deep depression and started drinking heavily because of Hammond's harassment. ECF No. 30-5, PageID.338. He also began experiencing heart and liver issues. ECF No. 30-5, PageID.338. He began seeing a doctor, who prescribed medication for depression and recommended that Rexhaj spend two or three weeks in rehab. ECF No. 30-5, PageID.338.

According to Rexhaj, he told Hammond that he was experiencing health issues and, in March, asked for time off under the Family Medical Leave Act (FMLA) with the intention of going to rehab to deal with his drinking problem and his depression. ECF No. 30-5, PageID.338-40. Rexhaj says that, at that point, his shop did not have a human resources office, so his only means of reporting health problems and requesting leave was to bring them up to Hammond. ECF No. 30-5, PageID.340.

The record is muddled regarding the timeline of Rexhaj's reports of health issues and his requests for leave. Counsel for Rexhaj asserts in his brief that Rexhaj told Hammond on March 7 that he was being treated for depression, heart problems, and alcoholism and needed to take FMLA leave—and that Hammond told him on March 10 he could take a week off. ECF No. 33, PageID.598. The brief does not cite any portions of the record to support these assertions. Continuing in this vein without any citations, counsel's brief says that Rexhaj called human resources and was told they would provide him with FMLA paperwork through Hammond. But on March 14, the brief asserts, Hammond fired Rexhaj. Id. Some of these same dates are alleged in the Charge of Discrimination Rexhaj later lodged with EEO and Michigan Department of Civil Rights. ECF No. 30-14, PageID.556.

Other portions of the record suggest different dates for and sequences of these events. At his deposition, Rexhaj testified that he began speaking to Hammond about his medical issues in February 2022 and requested FMLA leave at some point in March. ECF No. 30-5, PageID.340. His testimony does not make clear whether Hammond granted him any leave or if he took any time off. Rexhaj further testified that, between March 23 and March 24, Hammond texted him several times about having a telephone call or lunch to talk and, at some point, messaged him that his employment was terminated. ECF No. 30-5, PageID.343. Despite their apparent relevance, these messages have not been made a part of the record. Rexhaj testified that, about a week later, Hammond came by Rexhaj's house and took his work-issued car, the keys, and his work-issued phone. ECF No. 30-5, PageID.30-5, PageID.343. According to Rexhaj, Hammond also asked him to remove his tools from the shop, and Rexhaj told him, “If they keep bothering you there's a dumpster across the street, just throw them in the dumpster.” ECF No. 30-5, PageID.343. After this contact, Rexhaj had no further conversations with Hammond. ECF No. 30-5, PageID.344.

SCA's version of the events surrounding Rexhaj's departure from the company is quite different. According to SCA, Rexhaj was never fired but simply stopped showing up to work. Hatfield Depo., ECF No. 30-3, PageID.289. Hammond disputes that he fired Rexhaj, saying he had no authority to fire anybody unilaterally but could only recommend termination. ECF No. 30-4, PageID.311. Hatfield, meanwhile, testified that Hammond did have authority to fire employees. ECF No. 30-3, PageID.296. And Andrews said that, if an employee requested medical leave, it would be incumbent on the supervisor (Hammond, in this case) to provide the necessary paperwork or direct the employee to human resources. ECF No. 30-12, PageID.509.

During his deposition, Rexhaj testified that he did not speak to any human resources personnel until April, after Hammond had already fired him. ECF No. 30-5, PageID.340. He said that, at that point, a woman called him and said she wanted to send him FMLA paperwork, and he told her he had already been fired. ECF No. 30-5, PageID.340. Emails circulated in the HR department suggest that, on April 1, 2022, HR personnel were still trying to reach out to Rexhaj with FMLA paperwork and were thinking of “terminat[ing] him with the option to possibly rehire in the future” if he did not return the paperwork within fifteen days. ECF No. 30-15, PageID.558. These emails state that Hammond “really wants to retain [Rexhaj] as an employee if possible but his behavior recently has changed from a stellar employee, to not even coming in.” Id.

Rexhaj's health issues worsened after his employment with SCA ended, and he is presently unemployed.

E. Procedural History

On April 11, 2022, Rexhaj filed a Charge of Discrimination with the EEO and the Michigan Department of Civil Rights. ECF No. 30-14, PageID.556. On July 5, 2022, after being issued a right-to-sue letter, he initiated this lawsuit against SCA and Hammond. ECF No. 1. His 18-count complaint raises the following causes of action:

• Count I: Hostile Environment Sexual Harassment in Violation of Title VII against SCA;

• Count II: National Origin Discrimination in Violation of Title VII against SCA;

• Count III: Hostile Environment National Origin Harassment in Violation of Title VII against SCA;

• Count IV: Religious Discrimination in Violation of Title VII against SCA;

• Count V: Hostile Environment Religious Harassment in Violation of Title VII against SCA;

• Count VI: Retaliation / Retaliatory Harassment in Violation of Title VII against SCA;

• Count VII: Disability Discrimination in Violation of the Americans with Disabilities Act against SCA;

• Count VIII: Interference in Violation of the Family Medical Leave Act against Hammond and SCA;

• Count IX: Hostile Environment Sexual Harassment in Violation of the Elliott-Larsen Civil Rights Act as to Hammond and SCA;

• Count X: National Origin Discrimination in Violation of the Elliot-Larsen Civil Rights Act against Hammond and SCA;

• Count XI: Hostile Environment National Origin Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XII: Religious Discrimination in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XIII: Hostile Environment Religious Harassment in Violation of the Elliot-Larsen Civil Rights Act against Hammond and SCA;

• Count XIV: Disability Discrimination in Violation of the Michigan Persons with Disabilities Civil Rights Act against Hammond and SCA;

• Count XV: Retaliation / Retaliatory Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XVI: Assault and Battery against Hammond;

• Count XVII: Negligent Hiring / Supervision / Training / Retention against SCA; and

• Count XVIII: Intentional Infliction of Emotional Distress against Hammond and SCA.

SCA has moved for summary judgment on the retaliation claims (Counts VI & XV), the disability discrimination claims (Counts VII & XIV), the FMLA claim (Count VIII), the negligent-hiring claim (Count XVII), and the emotional-distress claim (Count XVIII). ECF No. 30. Rexhaj concedes that dismissal of the negligent-hiring claim (Count XVII) is appropriate but otherwise opposes the motion. ECF No. 33.

II. LEGAL STANDARD

A party is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). No genuine material factual dispute exists if “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

At summary judgment, the Court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in his favor. Id. The nonmoving party's evidence need not be in an admissible form. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). But he must “show that [he] can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).

III. DISCUSSION

A. Retaliation Claims [Counts VI & XV]

Defendants first argue that they are entitled to summary judgment on Rexhaj's retaliation claims under Title VII and the Elliott-Larsen Civil Rights Act. ECF No. 30, PageID.252-56.

Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee for “oppos[ing] any practice [it makes] unlawful ․, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” relating to a complaint of discrimination. 42 U.S.C. § 2000e-3(a). Similarly, the Elliott-Larsen Civil Rights Act provides:

Two or more persons shall not conspire to, or a person shall not ․ [r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.

MCL § 37.2701(a).

To make a prima facie claim of retaliation under these statutes, the plaintiff has the burden of establishing that “(1) he engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the employee, and (4) there was a causal connection between the protected activity and the adverse employment action.” Khalaf v. Ford Motor Co., 973 F.3d 469, 488-89 (6th Cir. 2020) (quotations and alterations omitted).

Defendants contend that Rexhaj has failed to establish a prima facie case. They do not dispute that his complaints to Mulaj about Hammond were protected activity. ECF No. 34, PageID.758. But, they maintain, Rexhaj lacks evidence that either Hammond or SCA knew about his complaints. ECF No. PageID.30, PageID.255. They emphasize that Rexhaj has admitted that, when his complaints came to the attention of SCA's management in summer 2021, he told the lawyer who was investigating them nothing except that he “did not want to be involved” in any investigation.

But the record creates fact questions as to the extent of SCA and Hammond's knowledge of Rexhaj's complaints. According to testimony Rexhaj has presented from Mulaj, Mulaj began bringing complaints about Hammond to Andrews as early as May 2021, when the two had lunch together at a coney island restaurant. As Defendants note, it seems these complaints initially were general. But Rexhaj has further presented evidence that—before he walked off the job in July 2021—he complained to Mulaj, and Mulaj called management and forwarded them video stills of Hammond's conduct. Rexhaj also says that he complained about Hammond's behavior directly to Hammond himself. Indeed, as Rexhaj tells it, Hammond must have known about the complaints: He threatened Rexhaj with deportation if Rexhaj pursued them.

Rexhaj's retaliation claim against SCA falters for a different reason: There is no evidence that SCA took any adverse employment action against him. What constitutes an “adverse action” in the context of a retaliation claim is broader than in the context of a discrimination claim; it includes anything that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Redlin v. Grosse Pointe Public School Sys., 921 F.3d 599, 614 (6th Cir. 2019) (quotations omitted). But Rexhaj can point to no such action by SCA as a corporate entity. Indeed, after he made his complaints, Rexhaj initially experienced a positive action: a promotion. And there is no evidence that any management personnel knew about Hammond's alleged threats regarding deportation or ratified them, so it cannot be held liable under a theory that it condoned those threats. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 346-47 (6th Cir. 2008).

The same analysis does not apply to the claim against Hammond, however. Unlike under Title VII, an individual can face liability under ELCRA's anti-retaliation provisions. Rymal v. Baergen, 686 N.W.2d 241, 296 (Mich. Ct. App. 2004).

Hammond argues that, even if Rexhaj can prove that he was aware of Rexhaj's protected activity, there is no evidence that Rexhaj's ultimate termination was retaliation for those complaints. Hammond focuses on the gap in time between the complaints (which ceased after Mulaj was fired in August 2021) and the alleged termination in March 2022. Hammond is correct that the record shows only a tenuous link between the complaining and the firing: the nearly 7-month period that elapsed without evidence of new complaints by Rexhaj undermines any inference that the termination was causally linked to the complaining. And Rexhaj has presented no other evidence that the two events were related. See, e.g., Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 320-21 (6th Cir. 2007) (adverse employment action three months after filing of EEOC charge was not sufficient on its own to establish causation).

But such an argument assumes that the termination is the only adverse action at issue. Rexhaj also has evidence that Hammond threatened him with deportation if he pursued complaints of harassment. Those threats apparently occurred during an investigation by SCA into complaints of sexual misconduct by Hammond. The Michigan Court of Appeals has held that “there is no basis ․ to limit retaliatory acts under ELCRA to those affecting the terms and conditions of employment such as pay, hiring and firing.” White v. Dep't of Transp., 964 N.W.2d 88, 120-21 (Mich. Ct. App. 2020). And “[w]hether a reasonable employee would view the challenged action as materially adverse involves questions of fact generally left for a jury decide.” Id. (citing McArdle v. Dell Prod., L.P., 293 F. App'x 331, 337 (5th Cir. 2008)). Here, a reasonable juror could conclude that Hammond's threats rose to the level of an adverse action: they could understandably dissuade a reasonable employee from continuing to voice complaints about discriminatory behavior.

For the reasons above, Rexhaj's Title VII retaliation claim (Count VI) must be dismissed, and his ELCRA claim (Count XV) must be dismissed with respect to SCA only. But Defendants’ motion is DENIED with respect to the ELCRA claim against Hammond individually.

B. Disability Discrimination Claims [Counts VII & XIV]

Defendants next ask for summary judgment on Rexhaj's claims under the Americans with Disabilities Act (ADA) and the Persons With Disabilities Civil Rights Act (PWDCRA). ECF No. 30, PageID.256-61.

The ADA proscribes discrimination “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.” 42 U.S.C. § 12112(1). An employer's denial of employment opportunities may amount to unlawful discrimination if the denial is based upon the employer's need make “reasonable accommodations to the known physical or mental impairments of an otherwise qualified individual.” Id. § 12112(b)(5)(A). The PWDCRA contains similar provisions. Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012).

Rexhaj claims that SCA failed to provide reasonable accommodations for his alcoholism and depression. To survive summary judgment, he needs evidence that: (1) he is disabled within the meaning of the Acts; (2) he is otherwise qualified; (3) SCA knew or had a reason to know about his disability; (4) he requested an accommodation; and (5) SCA failed to provide the necessary accommodation. Johnson v. Cleveland City School Dist., 443 F. App'x 974, 982-83 (6th Cir. 2011); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007); see also Aldini v. Kroger Co. of Mich., 628 F. App'x 347, 350 (6th Cir. 2015) (noting that analysis of ADA claims generally resolves PWDCRA claims). He also needs to show that the accommodation was reasonable. Tubbs v. Formica Corp., 107 F. App'x 485, 488-89 (6th Cir. 2004).

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities ․ a record of such an impairment ․ or being regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)-(C). Major life activities “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending ․, and working.” Id. § 12102(2)(A). Congress has made clear that the terms “disabled person” and “substantially limits” should be liberally interpreted, Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019), and the Sixth Circuit has previously held that alcoholism can be a qualifying disability, Blazek v. City of Lakewood, Ohio, 576 F. App'x 512, 516 (6th Cir. 2014).

From his complaint and his briefs, it is unclear which theory of disability Rexhaj is pursuing. He did not testify about how his depression and alcoholism impacted his major life activities during his employment, nor does he discuss their effects in his briefs. He has no evidence that SCA or Hammond regarded him as having an impairment. The only evidence of his alcoholism and depression in the record is comprised of his own testimony and notes from a doctor's visit from about a year before his employment at SCA ended, during which he told his doctor that he was “fine” but that his wife wanted him to go to rehab because his drinking had increased. See ECF No. 30-17, PageID.569.

If the Court accepts that Rexhaj's alcoholism and depression are qualifying disabilities, the next question is whether Hammond and SCA knew about them and understood he was asking for an accommodation. And on this question, Rexhaj lacks evidence. An employee has “some flexibility in how [he] request[s] an accommodation,” Mobley v. Miami Valley Hosp., 603 F. App'x 405, 413 (6th Cir. 2015); there are no “magic words” required, Leeds v. Potter, 249 F. App'x 442, 449 (6th Cir. 2007). But he must make clear that the request is being made because of medical restrictions; “[t]he employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation.” Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998).

Here, Rexhaj lacks evidence that he communicated his medical issues in a manner that should have alerted Hammond to the fact that he was experiencing a short-term disability. Rexhaj testified that, when he requested leave, “it was getting more difficult to wake up” and Hammond generally “knew what was going on.” ECF No. 30-5, PageID.340. He further said that he told Hammond, “I need some medical leave because I'm having issues with my health.” ECF No. 30-5, PageID.344. This testimony is insufficient to enable a reasonable juror to find that he was making a request for a disability accommodation.

Rexhaj further lacks evidence that his proposed accommodation was reasonable. Of course, a leave request can be considered a request for a reasonable accommodation under certain circumstances. King v. Steward Trumbull Memorial Hospital, Inc., 30 F.4th 551, 561 (6th Cir. 2022). But, from Rexhaj's own testimony, it is not clear that his request was limited to a definite time period. And it is doubtful that a request for indefinite leave would be considered reasonable.

Moreover, even if Rexhaj could satisfy all the other elements of a failure-to-accommodate claim, he lacks evidence that he would be able to perform the essential job functions of his position with the requested accommodation. See Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017). SCA argues that an essential function of Rexhaj's job as lead diesel mechanic was being onsite daily to assist with repairs, supervise employees, and monitor truck status. Id. (“Regular attendance is especially likely to qualify as an essential job function ․ of most jobs, especially the interactive ones.” (internal quotations omitted)); Gantt, 143 F.3d at 1047 (“An employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.”). Its argument is supported by the record, and Rexhaj has presented no evidence to dispute it.

For these reasons, summary judgment in favor of Defendants is appropriate on Rexhaj's disability claims (Counts VII & XIV).

C. FMLA Claim [Count VIII]

Defendants next contend that they are entitled to summary judgment on Rexhaj's FMLA claim. ECF No. 30, PageID.261-64.

The FMLA entitles eligible employees to take up to twelve weeks of leave during any twelve-month period “[b]ecause of a serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D). A claim for interference with FMLA rights is rooted in 29 U.S.C. § 2615(a), which provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th Cir. 2009); see also Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir. 2007).

A plaintiff may establish an FMLA claim by showing that: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer notice of his intent to take leave; and (5) the employer denied him FMLA benefits to which he was entitled. Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006). Because an employer interferes with an employee's exercise of FMLA rights whenever the employee does not receive the rights that are due to him, the employer's intent is irrelevant. Wallner v. Hilliard, 590 F. App'x 546, 550 (6th Cir. 2014).

SCA and Hammond do not dispute that Rexhaj was an eligible employee, that SCA was an employer subject to the FMLA, or that Rexhaj was entitled to leave. Their arguments focus and the fourth and fifth prongs of the claim. They argue that there is no genuine issue of material fact that Rexhaj did not give adequate notice of his intention to take leave or that he was actually denied benefits. ECF No. 30, PageID.263. According to them, Rexhaj was never fired; he just stopped showing up.

To support their argument, SCA and Hammond point to a 2019 SCA Employee handbook, which states that an employee “must submit medical certification within (15) calendar days of receipt of FMLA paperwork from the Company.” ECF No. 30-13, PageID.530. They additionally point to 29 C.F.R. § 825.302, a Department of Labor regulation setting forth notice requirements for foreseeable FMLA leave.

Defendants’ argument fails to persuade. Even if the 2019 Handbook was in effect at the time Rexhaj made his request in March 2022 (the record suggests it was periodically revised and there is no evidence whether Rexhaj saw any version at all), that version of the Handbook does not contain any requirement that a request for FMLA leave be in writing. It simply provides that an employee must submit a medical certification within 15 days of receiving FMLA paperwork—which Rexhaj apparently never got. According to Rexhaj, his shop did not have a human resources office, and he had to speak with Hammond for leave requests, and he did so. Andrews testified that it was Hammond's duty to provide FMLA paperwork to employees who requested FMLA leave or refer them to human resources, which Hammond apparently did not do before firing Rexhaj. ECF No. 30-12, PageID.509. Meanwhile, there is evidence that the HR personnel were discussing providing Rexhaj with the necessary paperwork after he had already been fired—suggesting that Rexhaj never received the necessary paperwork.

Several factual disputes remain, including whether and when Rexhaj provided notice of his intent to exercise his FMLA rights and whether Hammond actually had authority to and did fire him. As SCA notes, whether Rexhaj provided adequate notice is an intensely factual determination. Donald, 667 F.3d at 761. Under 29 C.F.R. § 825.302(c), an employee “shall provide at least verbal notice” of an intention to take leave and “specify a qualifying reason;” the employer “may find it necessary to inquire further” and “may also request certification to support the need for leave for a qualifying exigency.” In the light most favorable to Rexhaj, the record contains enough evidence for a reasonable juror to find that he satisfied the notice requirement and that SCA, due to Hammond's interference, failed to follow up.

Accordingly, SCA and Hammond's motion is DENIED as to Rexhaj's FMLA claim.

D. Intentional Infliction of Emotional Distress [Count XVIII]

Finally, SCA and Hammond contend they are entitled to summary judgment on Rexhaj's claim for intentional infliction of emotional distress. ECF No. 30, PageID.266-71.

To survive summary judgment, Rexhaj needs evidence of: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 910 (Mich. 1985). To satisfy the first element, the conduct must be so outrageous as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable; “[l]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Doe v. Mills, 536 N.W.2d 824, 834 (Mich. Ct. App. 1995). The test is whether “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Roberts, 374 N.W.2d at 909 (quotations omitted). Whether a defendant's conduct meets this threshold is a question of law for the court. Teadt v. Lutheran Church Missouri Synod, 603 N.W.2d 816, 824 (Mich. Ct. App. 2000).

SCA and Hammond argue that Hammond's conduct was not severe enough to rise to the level of “extreme and outrageous conduct.” ECF No. 30, PageID.269-70. They point to the decision by the Michigan Court of Appeals in Swain v. Morse, 957 N.W.2d 396, 412 (Mich. Ct. App. 2020), reference the video depicting the water-throwing incident, and argue that conduct like “touching the chest of a male co-worker in a private setting” is not “extreme or outrageous.” Id.

In Swain, the plaintiff sued the defendant after he put his arm around her and squeezed her breast through her clothing as the two were taking a selfie in a restaurant. 957 N.W.2d at 401. The Michigan Court of Appeals thought the question was close because the complaint described an isolated incident, but it ultimately agreed with the plaintiff that the conduct was “particularly brash and unexpected,” as it occurred in a public place. Id. at 412. In reaching this conclusion, the court discussed conduct that it had previously found to be extreme and outrageous: a supervisor's proposition of sex to a subordinate, for instance, did not qualify, but circulation of a cartoon depicting a plaintiff and a co-worker in sexual positions did. Id. at 412. The court also acknowledged that “community standards regarding sexual misconduct have changed significantly over the past few years.” Id.

Other Michigan decisions instruct that courts must look to the totality of the circumstances and the context of the alleged conduct in determining how an average community member might react and that it is significant to the determination if there is an “abuse of a relationship which puts the defendant in a position of actual or apparent authority over a plaintiff.” Margita v. Diamond Mortg. Corp., 406 N.W.2d 268, 272 (Mich. Ct. App. 1987); see also Denhof v. Dolan, No. 02-00275, 2003 WL 27391263, at *5 (E.D. Mich. Dec. 12, 2003) (collecting cases).

With these principles in mind, the Court concludes that Rexhaj has presented evidence that, if credited, would enable a reasonable juror to find that Hammond's conduct was outrageous. Among other things, in addition to the water-throwing incident, Rexhaj testified that Hammond groped him, sat on his lap without warning while he was working under a truck, approached him in the bathroom, touched his chest, and slapped his buttocks while making lewd comments. As Rexhaj's site manager, Hammond occupied a position of control over him. Rexhaj further testified that, after learning there was a death in his family, Hammond denied him leave to observe it in a religiously appropriate manner and instead insulted his religion. There is also evidence that, when Hammond learned his behavior was under investigation, he threatened Rexhaj with deportation if he reported the behavior and said he would “take care of [Rexhaj's] wife and children” if Rexhaj were removed from the country.

The Court is mindful that the Michigan Supreme Court has instructed that “[t]he rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language.” Roberts, 374 N.W.2d at 909 (quotations omitted). But what Rexhaj has described reaches beyond a simple case of “hurt feelings,” “unflattering opinions,” and “irascible tempers [blowing] off relatively harmless steam.” Id. (quotations omitted). The Court concludes that, under common standards of decency, a months-long campaign of sexual harassment involving groping, deportation threats, and derogatory religious remarks is behavior that an average community member would find outrageous. Hammond and SCA's arguments to the contrary depend on isolating individual incidents and viewing the evidence in the light most favorable to them, which the Court may not do.

SCA and Hammond further argue that Rexhaj lacks evidence that Hammond's behavior was reckless and that Rexhaj actually experienced severe distress. These arguments are not well-taken. The record contains evidence that Hammond's behavior continued despite several pleas and an investigation. The record further contains evidence that Rexhaj was in such distress he essentially tried to drink himself to death.

SCA and Hammond's motion is DENIED as to this claim.

IV. CONCLUSION

For the reasons above, SCA and Hammond's partial motion for summary judgment is GRANTED IN PART. Count XVII, for Negligent Hiring / Supervision / Training / Retention is dismissed by agreement of the parties. Count VI, for Retaliation under Title VII, is dismissed, and Count XV, for violation of the ELCRA, is dismissed as to SCA only. Finally, Counts VII and XIV, the disability-related claims, are dismissed. Defendants’ motion is DENIED with respect to the other claims.

SO ORDERED, this 31st day of March, 2024.

FOOTNOTES

1.   Ali Mulaj has also filed a lawsuit against SCA, which is pending before this Court. See Case No. 22-11711 (E.D. Mich. July 26, 2022).

TERRENCE G. BERG, United States District Judge